Habibi Arehjan v Journeaux

[2020] QIRC 41

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Habibi Arehjan v Journeaux [2020] QIRC 041

PARTIES:

Habibi Arehjan, Nadia
(Applicant)

v

Journeaux, Simon
(Respondent)

CASE NO:

WC/2019/157

PROCEEDING:

Application to lift a stay on a Form 29 Notice of Non-Party Disclosure

DELIVERED ON:

11 March 2020

HEARING DATES:

11 March 2020

MEMBER:

McLennan IC

HEARD AT:

Brisbane

ORDERS:

1.   The Form 29 Notice of Non-Party Disclosure is set aside.

2.   I make no order as to costs.

CATCHWORDS:

WORKERS' COMPENSATION – APPLICATION TO LIFT A STAY ON A FORM 29 NOTICE OF NON-PARTY DISCLOSURE - where dispute about whether the request is a document – where  application dismissed

LEGISLATION:

Industrial Relations (Tribunals) Rules 2011 r 64B, r 64G

APPEARANCES:

Ms N. Habibi Arehjan, the Applicant in person.

Mr E. Halden of Sparke Helmore Lawyers for Dr S. Journeaux, Respondent.

Ms H. Blattman, Counsel directly instructed by the Workers' Compensation Regulator, interested party.

Reasons for Decision

1. On 6 January 2020, Ms Nadia Habibi Arehjan filed a Form 29 Notice of Non-Party Disclosure with the Industrial Registry. 

2. The Form 29 Notice sought to compel Dr Simon Journeaux to produce an “Answer to question about the clarification on report dated 28th of June 2018”.  He did not produce this.

3. By way of application under r 64G of the Tribunals Rules, Ms Arehjan has sought to have that Form 29 Notice enforced.  Under that rule, the tribunal’s options are to order that the Notice be:

   ·Enforced (by way of lifting the stay on the notice); or

   ·Varied, or

   ·Set aside.

4. A Hearing was conducted on 11 March 2020.  The purpose of the Hearing was to decide the enforcement Application filed by Ms Arehjan, regarding a Notice of Non-Party Disclosure directed at Dr Simon Journeaux.

5. Rule 64B(1) of the Industrial Relations (Tribunals) Rules 2011 says:

Notice requiring non-party production

(1)A party to a proceeding may, by notice of non-party production, require a person who is not a party to the proceeding (the non-party) to produce to the party, within 14 days after service of the notice on the non-party, a document –

(a)directly relevant to a matter in issue in the proceeding; and

(b)in the possession or under the control of the non-party; and

(c)that is a document the non-party could be required to produce at the hearing for the proceeding.

1. The parties were invited to make oral submissions as to whether or not Ms Arehjan’s Form 29 request of Dr Journeaux meets the criteria established under r 64B. As an interested party, the Regulator was also heard on that point.

   Conclusion

2. By definition, an ‘answer to a question’ is not a document in existence. It follows that the Notice does not comply with r 64B. 

3. The Notice cannot be varied to amend such a substantial non-compliance with r 64B.

1. I have determined to set aside the notice.  Put simply, this means the Form 29 Notice will not be enforced.

2. Answers to questions such as that posed by Ms Arehjan in her Form 29 may be asked of Dr Journeaux as a witness at any future Hearing of the Workers’ Compensation matter subject of the substantive appeal. 

3. I order accordingly.

   Orders

   1.   The Form 29 Notice of Non-Party Disclosure is set aside.

   2.   I make no order as to costs.

I certify that the preceding 11 paragraphs are a true copy of the Reasons for Decision of Industrial Commissioner McLennan.

R.D.H. McLENNAN, Industrial Commissioner:         ………………………………

Dated: 11 March 2020