Inghams Enterprises P/L v Q-Comp
[2010] QMC 10
•31 March 2010
MAGISTRATES COURTS OF QUEENSLAND
CITATION:
Inghams Enterprises P/L v Q-COMP [2010] QMC 10
PARTIES:
INGHAMS ENTERPRISES PTY LTD
(applicant)
v
Q-COMP
(respondent)
FILE NO/S:
MAG202441/09(2)
DIVISION:
Industrial Magistrates Court
PROCEEDING:
Application for disclosure
ORIGINATING COURT:
Industrial Magistrates Court at Brisbane
DELIVERED ON:
31 March 2010
DELIVERED AT:
Brisbane
HEARING DATE:
25 March 2010
MAGISTRATE:
Lee G
ORDER:
Application for disclosure allowed
CATCHWORDS:
INDUSTRIAL LAW – WORKERS COMPENSATION - Disclosure by party – power of Industrial Magistrates Court to order – source of that power – whether antecedent obligation for disclosure is necessary as with Uniform Civil Procedure Rules – whether order can be made without antecedent obligation for disclosure under Industrial Relations (Tribunals) Rules 2000
Evidence Act 1977 (Qld), s 134A
Industrial Relations Act 1999 (Qld), s 289, s 290, s 291, s 338(4)
Industrial Relations (Tribunal) Rules 2000 (Qld), r 5, r 38(2)(o), r 42, r 96(2)(n), r 96A
Uniform Civil Procedure Rules 1999 (Qld), r 211, Chapter 7 Parts 1 & 2
Workers Compensation and Rehabilitation Act 2003 (Qld), s 32(5), s 548A, s 549, s 550, s 553, s 554
Workers’ Compensation and Rehabilitation and Other Acts Amendment Act 2004 (Qld), s 68
Workers’ Compensation and Rehabilitation and Other Acts Amendment Act 2005 (Qld), s 45
Knight v Kluver [2001] QCA 254; [2002] QCA 1 cited
Q-COMP v Education Queensland [2005] QIC 46 cited
COUNSEL:
RD Green for applicant
AB Johnson for respondent
SOLICITORS:
Bruce Thomas Lawyers for applicant
Respondent appears on own behalf
By application filed 16 March 2010 Q-COMP seeks disclosure of documents by Inghams Enterprises Pty Ltd pursuant to rule 38(2)(o) of the Industrial Relations (Tribunal) Rules 2000 (the rules). Two affidavits of Jennifer Louise Horton sworn 15 and 24 March 2010 constituted the material in support of the application. I heard submissions on 25 March 2010 and reserved my decision.
Inghams Enterprises Pty Ltd (Inghams) was the employer of a worker named Amanda Karen Scoble (the worker) who lodged a workers compensation claim under the Workers’ Compensation and Rehabilitation Act 2003 (the Act) for psychological injury[1]. At first instance WorkCover rejected her claim[2]. She successfully appealed that decision to Q-COMP[3]. Inghams has appealed[4] that decision to this Industrial Magistrates Court created by and exercising the jurisdiction conferred on it by the Industrial Relations Act 1999 (IR Act)[5] and the Act. Q-COMP is respondent to the substantive appeal which is yet to be determined. The application for disclosure now comes before me in the nature of an interlocutory application by Q-COMP.
[1] Application dated 3 August 2009 in exhibit A to the affidavit of Jennifer Louise Horton sworn 24 March 2010 (hereinafter referred to as Affidavit 2);
[2] WorkCover’s decision dated 8 July 2009 in exhibit D of Affidavit 2;
[3] Q-COMP’s decision dated 9 September 2009 – exhibit G of Affidavit 2;
[4] Notice of Appeal dated 7 October 2009 – exhibit H of Affidavit 2;
[5] IR Act - sections 289 to 293 in Part 3 (Industrial Magistrates) Chapter 8 (Industrial Tribunals and Registry);
This application is opposed by Inghams on two broad bases. The first is a legal point, namely, that this court does not have the power to make an order for disclosure under rule 38(2)(o) of the rules. The second basis for opposing the application is that if it were concluded that this court does have power to make the orders sought, then it should not do so on a number of grounds including relevance.
Legal Point
An outline of written submissions was tendered for Inghams which focuses on the first basis for resisting this application i.e. the legal point[6]. It should be noted that paragraph 4 of those submissions to the effect that section 134A of the Evidence Act 1977 [7]does not apply in this case is not now an issue. Q-COMP has, quite properly in my view, conceded that it does not apply.
[6] Paragraphs 1 to 6 together with some legislation;
[7] The obligation to produce documents under that provision only applies to “an agency” as defined in subsection 134A(7). Inghams is not an agency;
The remaining submission for Inghams under this head is in respect of rule 38(2)(o) of the rules. Paragraphs 5 & 6 of those submissions state:
5.As to Rule 38(2)(o) of [the rules], it is conceded that the Court has a power to give directions in relation to the disclosure of documents. It is submitted however that this can only relate to documents in respect of which there is an obligation for disclosure. The obligation for disclosure is not included in the terms of reference pursuant to which that section is framed. The obligation for disclosure must be identified in other terms or in another section.
6.Section 552 [sic], by way of example, refers to an obligation on the part of parties to an Appeal to provide certain forms and/or statements. Such documents would clearly fall within the terms of the power provided for in Rule 38(2)(o). However, in the absence of a clearly identified obligation to disclose a certain document, the Court has no jurisdiction to order the disclosure of a document by way of direction. The power referred to in Rule 38 is permissive and in the absence of another mandatory term that gives function to the permissive power, the Rule cannot be used as a source for the obligation.
At the commencement of the hearing, I noted that rule 38(2) of the rules is in Part 2 of the rules and observed that, in reading those rules in isolation, it appears that Part 2 only applied to proceedings before the Industrial Court, Industrial Commission or registrar and not proceedings before an Industrial Magistrate. Counsel for Inghams then withdrew the first sentence in paragraph 5 of his written submissions.
For reasons that follow, I do not agree with Inghams’ submissions. I agree with the submissions of Q-COMP.
Unfortunately, counsel for both sides were unable to point to any authority addressing the issues in Ingham’s submissions. Thus I must resolve this from scratch although, given my ultimate view, it is not difficult. The essential question is to first ascertain which rules of procedure apply to the Industrial Magistrates Court exercising jurisdiction in reviewing decisions of Q-COMP pursuant to Part 3 (Appeals) in Chapter 13 (Reviews and Appeals) of the Act.
The Industrial Magistrates court is established by section 289 of the IR Act[8]. It is constituted by an Industrial Magistrate sitting alone: sections 290 & 291 of the IR Act. Sections 292 & 293 provide for the jurisdiction of the Industrial Magistrates Court to be generally exclusive subject to immaterial exceptions:
[8] In Part 3 (Appeals) of Chapter 13 (Reviews and Appeals);
292 Magistrate’s jurisdiction
(1) A magistrate has jurisdiction—(a) to exercise powers conferred on, or jurisdiction given to, magistrates by this Act or another Act; and ……..(my emphasis)
293 Magistrates’ jurisdiction is exclusive
(1) The jurisdiction conferred on a magistrate by this or another
Act is exclusive of the jurisdiction of another court or tribunal, unless
this or the other Act otherwise prescribes. ……. (my emphasis)Section 338 in Part 6 of the IR Act “Proceedings of court, commission, magistrates and registrar” in Chapter 8 “Industrial tribunals and registry” provides that rules can be made in consultation with the Chief Magistrate on a range of matters in subsection 338(4) including the practice and procedure to be followed “in and for proceedings” in the Industrial Magistrates Court: section 338(4)(a)(i).
The Industrial Relations (Tribunal) Rules 2000 (the rules) were made accordingly and came into effect on 1 January 2001[9]. They apply in a wide variety of proceedings before the Industrial Court, Commission or Industrial Magistrate under the IR Act, the Electrical Safety Act 2002 and the Workplace Health and Safety Act 1995. It appears to me that the rules were specially made to accommodate those proceedings. Part 2 of the rules which includes rule 38 applies to proceedings before the Industrial Court, Commission and Registry. Part 3 of the rules “Proceedings before industrial magistrate” apply to a variety of categories of claims but the rules themselves do not include workers compensation reviews under Part 3 of Chapter 13 of the Act: see rule 90(a) to (h).
[9] Rule 2;
Relevantly, by sections 548A & 549[10] of the Workers’ Compensation and Rehabilitation Act 2003 (the Act), an employer can appeal to an “appeal body” including an Industrial Magistrate against the decision of Q-COMP. Importantly for present purposes section 553 of the Act[11] provides:
[10] In Division 1, Part 3 of Chapter 13;
[11] In Division 1, Part 3 of Chapter 13;
553 Application of Uniform Civil Procedure Rules and
Industrial Relations (Tribunals) Rules(1) The Uniform Civil Procedure Rules 1999, chapter 7, part 2
and chapter 9, part 4 and the Industrial Relations (Tribunals)
Rules 2000 apply to an appeal under this division with
necessary changes.(2) However, if there is an inconsistency between a provision of
the rules mentioned in subsection (1) and a provision of this
division, the provision of this division prevails to the extent of
the inconsistency.By the combined effect of section 292 of the IR Act and sections 548A & 549 of the Act, jurisdiction is conferred on an Industrial Magistrate to review decisions of
Q-COMP. I accept Q-COMP’s submissions that section 553(1) of the Act imports the rules for the purposes of these reviews “with necessary changes”. The rules in Chapter 7 Part 2 of the Uniform Civil Procedure Rules (UCPR) (non party disclosure) and Chapter 9 Part 4 (Alternative Dispute Resolution processes) have been imported into reviews by Industrial Magistrates under the Act. I note that Chapter 7 Part 1 of the UCPR (disclosure by parties) has not been imported into these proceedings. I do not consider there to be any provision in the Act inconsistent with the rules to enliven subsection 553(2).
In my view the rules apply to these proceedings with necessary changes and that rule 38 in Part 2 potentially applies. I note rule 96 in Part 3 is in similar terms. Rule 38 provides:
38 Directions orders
(1) The court, commission or registrar may make a directions
order about the conduct of a proceeding on the application of
a party or on the initiative of the court, commission or
registrar.
(2) A directions order may, for example, relate to the following—(a) specifying the parties who are to be served with
applications, related material or other documents;
(b) requiring evidence of the service;
(c) another matter relating to service of an application;
(d) scheduling of conferences, mediation conferences,
preliminary hearings and hearings before the court,
commission or registrar;
(e) requiring further and better particulars of an application;
(f) requiring the applicant to file and serve all material to be
relied on in support of the application by affidavit or
another form;
(g) requiring a party to respond to a notice to admit facts;
(h) requiring the respondent to file and serve material in
reply;
(i) requiring the applicant to file and serve material in
reply;
(j) requiring the parties—
(i) to confer to agree on matters that can be agreed on;
and
(ii) to identify points in issue; and
(iii) to report back to the court, commission or
registrar;
(k) requiring the parties to file a written outline of
submissions or submissions about the subject matter of
the application;
(l) requiring—
(i) evidence to be given by affidavit; or
(ii) statements to be filed and served, in affidavit form,
of the primary evidence of a witness;
(m) requiring—
(i) the identification of the provisions of any relevant
legislation or industrial instruments; and
(ii) a list of cases to be relied on in support of or in
response to proceedings to be provided;
(n) requiring submissions in writing to justify the necessity
to carry out inspections or hearings at other locations;
(o) requiring disclosure of documents;
(p) requiring inspection of documents.
(3) An application for a directions order about a matter mentioned
in subrule (2)(b) to (p) must be in the approved form unless
the application was made in a document starting a proceeding.
(4) A draft of the directions order sought must be filed with the
application.Ingham’s submissions are to the effect that there must be some obligation for disclosure as in the UCPR before a court can order disclosure. Rule 38 of the rules is merely permissive. No authorities were cited in support of this point. It was submitted that section 554 of the Act provides for an obligation on a party to give to the other party any relevant document intended to be relied on at the hearing so that a direction under rule 38(2)(o) might be made in respect of those documents if section 554 is not complied with. The submission continues to the effect that the court does not have power to order disclosure in respect of any other document because of the absence of another provision creating an obligation for a party to do so. Again, no authority was cited in support of that point. The Court of Appeal decision of Knight v. Kluver [2001] QCA 254 (27 June 2001); [2002] QCA 1 (1 February 2002) was referred to. It involved proceedings where all of the UCPR applied (a claim for medical negligence) and in particular the UCPR rules on non party disclosure. It is authority for the proposition that non party disclosure under the UCPR cannot be made until the close of pleadings when the issues in the pleadings have crystallised. I accept Q-COMP’s submission that this case does not assist Inghams.
I don’t agree with Inghams’ submission. Section 554 is only enlivened if a party intends to rely on a particular document at the hearing. If a party, for reasons best known to that party, decides not to rely on it, then there is no obligation to disclose it. I think that submission defeats the real purpose of disclosure. In my view, the operation of section 554 has nothing to do with disclosure (formerly called “discovery”) by the parties, in the traditional sense of the word. Chapter 7 Part 1 UCPR (disclosure by parties), which creates an obligation on parties to disclose documents in conventional civil proceedings, does not apply to these proceedings. In my view, the rules cover this field and exist for that specific purpose. This is particularly so when section 553 of the Act has expressly included Chapter 7 Part 2 UCPR (non party discovery) indicating that the legislature had consciously excluded Chapter 7 Part 1 (disclosure by parties) reinforcing the purpose of the rules in rule 5:
5 Purpose of rules
The purpose of these rules is to provide for the just and
expeditious disposition of the business of the court,
commission, registrar and industrial magistrate at a minimum
of expense.This is further reinforced when one considers section 553 of the Act prior to its amendment in 2005. In its original form subsection 553(1) of the Act provided:
553 Application of Uniform Civil Procedure Rules and Industrial
Relations (Tribunals) Rules(1) The Uniform Civil Procedure Rules 1999, chapter 7, part 2 and
chapter 9, part 4 and the Industrial Relations (Tribunals) Rules 2000,
rules 96 to 98 apply to an appeal under this division with necessary
changes. ….. (my emphasis)`The phrase in subsection 553(1) “, rules 96 to 98” were omitted by the Workers’ Compensation and Rehabilitation and Other Acts Amendment Act 2005[12] with effect from 2 November 2005. It appears then that all of the rules apply to review proceedings under the Act. It is not clear but this amendment may have come about because the choice of appeal forum for appeals from Q-COMP decisions was expanded to include the Industrial Relations Commission[13] with a number of amendments including the insertion of section 548A “Meaning of appeal body” by the Workers’ Compensation and Rehabilitation and Other Acts Amendment Act 2004[14]. The application of section 553 in its original form only applied rules 96 to 98 in Part 3 which dealt with proceedings before an Industrial Magistrate. Section 553 may well have been amended to include rules in Part 2 that could more comfortably apply to proceedings before the Industrial Court, Commission and Registrar.
[12] No 50 of 2005, section 45;
[13] Established under the Industrial Relations Act 1999 (Qld);
[14] No 45 of 2004, section 68;
This application for disclosure has been brought under rule 38(2)(o) which is in Part 2 of the rules relating to proceedings before the Industrial Court, Commission or Registrar. It is my view that, having regard to the legislative history outlined above, where the appeal forum is the Industrial Magistrates Court, the more appropriate rule to bring such application is rule 96 in Part 3. Be that as it may, little turns on this as both rules are in almost identical terms. Given the grounds relied on by Inghams in resisting this application and the fact that rules 38 and 96 are in almost identical terms, I will treat this application as an application under rule 96. I do not think it is necessary to invite further submissions on this point.
As referred to above rule 96 in Part 3 of the rules (Directions Orders) is in almost identical terms to rule 38 in Part 2 dealing with proceedings before the Industrial Court, Commission and Registrar. Further, rules 96A and 42 in parts 3 & 2 respectively both entitled “Failure to Attend or Comply with Directions Order”, deal with the consequences that may follow if a directions order in not complied with including the dismissal of a proceeding: see rules 96A(3) & 42(3).
Rule 96 is, as is rule 38, cast in wide terms to the effect that the Industrial Magistrate, “may make a directions order about the conduct of a proceeding on the application of a party or on the initiative of the industrial magistrate” “requiring disclosure of documents” (rule 96(2)(n) which is the same as rule 38(2)(o)).
I do not accept Inghams’ submissions that this court does not have the power under the rules to order it to disclose documents in the absence of an antecedent obligation to do so. Apart from the minor exception of section 554 of the Act regarding the exchange of documents to be relied on in a hearing, there is no dispute that, unlike the UCPR, there is no separate obligation in the rules or elsewhere requiring a party to generally disclose documents in proceedings before an Industrial Magistrate under Part 3 Chapter 13 of the Act[15]. However, I do not accept that this amounts to a condition precedent to an Industrial Magistrate ordering disclosure by a party under either rule 96, or, for that matter, the Industrial Relations Commission under rule 38. While not prescriptive like the UCPR, the rules cover the field for these proceedings. Their purpose “is to provide for the just and expeditious disposition of the business of the …industrial magistrate”: see rule 5. It is left for the Industrial Magistrate to determine. I accept Q-COMP’s submissions that to accept such an argument would render those rules almost useless.
[15] Part 3 (Appeals) Chapter 13 (Reviews and Appeals);
Second Ground on Merits
The application seeks disclosure of the following documents:
a.all records (including but not limited to complete copies of all notes, memoranda, correspondence, letters, emails reports or other information records (whether electronic or in written form) concerning the employment, discipline, training and management (including the relevant personnel file) of Amanda Karen Scoble;
b.all records (including but not limited to complete copies of all notes, memoranda, correspondence, letters, emails reports or other information records (whether electronic or in written form) concerning the employment, discipline, training and management (including the relevant personnel file) of Craig Kenneth Brown;
c.all work instructions or procedural guides utilized by or applicable to Farms 8 and 9 situated at [address];
d.all reports, reviews, audits, operational reports with respect to the management and oversight of Farms 8 [and 9] situated at [address];
e.all reports, reviews, audits, operational reports and records of complaint with respect to the management and oversight of Farms 8 and 9 situated at [address];
f.all staff training policies, procedures and training records, (including but not limited to content of induction training, records of completion by Mrs Scoble, records of corrective action/retraining) applicable to Farms 8 and 9 situated at [address] at the time of employment of Mrs Scoble and thereafter;
g.all grievance policies and procedures (if applicable including addition revisions or versions) in force at the time of the employment of Amanda Karen Scoble and thereafter;
h.all workplace health and safety systems, policies and procedures (if applicable including addition revisions or versions) in force at the time of the employment of Amanda Karen Scoble.
At the outset, without conceding any obligation to do so, counsel for Ingham’s agreed on its behalf to provide those documents in paragraphs f, g and h above. Given my ultimate view of this matter, I would have ordered disclosure of them in any event.
Inghams opposes disclosure of all documents described in paragraphs a, b, c, d & e on a variety of grounds. It is said this is a fishing expedition and that there must be some evidence of the existence of the documents for disclosure. The threshold question, it was submitted was “relevance”, that there is no defined test to apply in considering what should be disclosed and that the requirement in section 554 of the Act overcomes any mischief, unfairness or injustice. It was further submitted that there are statements from many witnesses available and that the task of the court is to simply make findings of fact on that evidence which can be tested in court.
In setting aside WorkCover’s original decision Q-COMP accepted that the worker had sustained a personal injury, namely “anxiety/depression”, that it arose in the course of the worker’s employment and that her employment was a significant contributing factor to that injury. It was also found that the injury arose out of unreasonable management action taken in an unreasonable way by the employer in connection with the worker’s employment. So, what remains in issue are the activities or actions by or on behalf of Inghams in its dealings with the worker to determine if they are reasonable and taken in a reasonable way. If so, the worker would not have sustained an “injury” as defined in the Act being excluded by subsection 32(5).
Q-COMP outlines 13 stressors in support of the worker’s claim: see page 7 of
Q-COMP’s decision. Most of those relate to the workers immediate supervisor Mr Craig Brown. Q-COMP concluded that the actions of Mr Brown and a more senior farm manager Mr Rickter were unreasonable management action taken in an unreasonable way: see page 10 of Q-COMP’s decision. In appealing, Inghams challenges that finding. This appears to be the most relevant issue for the present application. Inghams also challenges that decision on a number of other grounds including the alleged effect of other contributors to the workers stress: see paragraphs 4(a) to (f) of the Notice of Appeal dated 7 October 2009[16]. Further, in its original submissions to WorkCover resisting the worker’s claim[17], among other things, it sought to rely on the principle in the decision of Hall P. in Q-COMP v. Education Queensland [2005] QIC 46 (8 July 2005) (“McArthur”) to the effect that where a number of stressors have contributed to a personal injury only some of which have resulted from reasonable management action taken in a reasonable way, then that injury is excluded from the definition of injury by subsection 32(5).
[16] Exhibit H to Affidavit of Jennifer Louise Horton sworn 24 March 2010;
[17] Exhibit B to Affidavit of Jennifer Louise Horton sworn 24 March 2010;
The worker started with Inghams on 27 July 2008. According to her statement accompanying her application for compensation[18] she was unfairly dismissed in August 2008 but was reinstated on 1 October 2008 without explanation or apology. On her return she was the subject of bullying, intimidation and harassment particularly when Mr Brown became involved in running Farm 9 at Inghams on 20 October 2008. The worker was in Farm 8 but was sent up to Farm 9 to work. When Mr Brown arrived, he changed the way things were to be done which were entirely different from the way the worker was trained to perform her duties and the way they had been performed in Farm 8.
[18] Exhibit A to Affidavit of Jennifer Louise Horton sworn 24 March 2010;
The affidavit of Jennifer Louise Horton sworn 15 March 2010 sets out the reasons why the documents in paragraphs a, b, c, d & e are relevant to this matter. I generally accept those reasons.
The purpose of disclosure includes “the disclosure, and subject to privilege, the inspection of an opponent’s documents”[19]. In the context of conventional litigation where all of the UCPR apply in Queensland Cairns emphasised the case being determined on its true merits with a fair trial. At 335 he said among other things:
Litigation must be conducted expeditiously and in such manner that the dispute is decided on its merits. Discovery is intended to promote a fair trial…
[19] Cairns, Australian Civil Procedure, 8th ed., Law Book Co. 2009 at page 335;
At 335 Cairns continued:
Discovery is in aid to the party prosecution system. Parties must prepare their own cases. Discovery gives access to information in the exclusive possession of the other side. …..
One of the advantages that flow from discovery is that “it puts the parties on an equal footing at the trial”[20].
[20] Cairns at page 335;
In this case, apart from minor exceptions outlined earlier, the UCPR do not apply. An alternative legislative scheme is in place for reviews under Part 3 of Chapter 13 of the Act which departs from traditional notions of litigation conducted in a traditional adversarial way. The rules apply by virtue of section 553 of the Act and this includes the range of orders this court can make under rule 96 (or rule 38 for the Industrial Relations Commission) which is cast in wide terms to facilitate the purpose of the application of the rules to reviews of this nature. This is in addition to section 554 of the Act requiring a party to produce to the other side documents to be relied upon at the hearing. While section 544 may reduce surprise at the trial which is said to also be an advantage that flows from discovery, it only does so to a limited extent in my view.
It has been submitted for Inghams that the test for disclosure is not prescribed anywhere. In my view, the test to apply is relevance and, that is left to the court to consider under the rules as to what it assesses as being in issue having regard to the facts of a particular case. I reject the arguments advanced on behalf of Inghams. Section 544 will not avoid mischief at all. It only applies to what material Inghams chooses to rely on at the hearing. Further, I note that a number of the witness statements in purported support for Inghams are not signed.
The question of “relevance” depends on the legislative background and rules of procedure that apply. For example, in Victoria, Western Australia, Tasmania and the Australian Capital Territory, the effect of the law in applying the applicable rules of court, “a document is relevant if it may, not must, either advance a party’s own case or damage the opponent’s case or alternatively would lead to a course of inquiry which would do so” and “Accordingly, the scope of discovery is determined by a liberal construction of the pleadings”[21]. On the other hand, in other jurisdictions such as New South Wales and Queensland, the law is that documents that are directly relevant only are to be disclosed and not documents that would lead to a course of inquiry[22]. However, the rules of court in New South Wales and the UCPR in Queensland are framed with this in mind. For example, rule 211(1) UCPR provides for a duty to disclose documents that are “directly relevant” whether or not there are pleadings. Although the rules of evidence do not apply in the current case, I observe that a document that is directly relevant does not automatically make it admissible in evidence: Equuscorp Pty. Ltd. v. Codd [2002] QCA 380 per Williams J.
[21] Cairns at page 341;
[22] Cairns at pages 342 (Federal Court) and page pp 342, 343 (Queensland);
In the present case, the constraints of the UCPR do not apply. It is left to the Industrial Magistrate to determine under rule 96. However, for reasons set out in the affidavit in support of the application and what follows in these reasons, I find that the described documents are directly relevant to the issues in these proceedings. If I am wrong in that conclusion, I would find that these documents fall within the more liberal test of “relevance” akin to that applicable in Victoria and Western Australia described above.
The worker’s file (paragraph a. of the application) ought to be disclosed. There would be a file in existence. It was submitted for Inghams that the worker should know what is in her file and therefore there is no need for disclosure of it. I do not agree. Her file is in the possession and control of Inghams and not in the possession or under the control of the worker. Her file would or should contain records of her training, work performance and any disciplinary action taken against her. In most cases workers infrequently keep proper records of their employment. The worker’s file is clearly relevant and it should be disclosed.
As to Mr Brown’s file (paragraph b. of the application), the disclosure sought is not as wide ranging as for the workers file. Personal details such as Mr Brown’s wage records etc are not required. What is sought is his training, work performance as a supervisor and any disciplinary proceedings that relate to his association or interactions with the worker in relation to work at Farm 9. This is relevant to the question for example as to whether, as a manager for Inghams, he acted in a reasonable way for the purposes of determining whether the worker’s personal injury is excluded from the statutory definition of “injury” by subsection 32(5). His file should be disclosed limited to those matters outlined in the application.
I do not intend re-iterating all of the reasons set out in the affidavit of Jennifer Louise Horton sworn 15 March 2010 suffice to say that I am generally satisfied of the grounds stated therein to conclude the documents are relevant.
As to the work instructions or procedural guides for Farms 8 & 9 referred to in paragraph c. of the application, the issue for the worker is that she was trained well and successfully fulfilled her duties while at Farm 8. However, her case appears to be that systems in Farm 9 where she was transferred to were quite different under the management of Mr Brown, who, according to the worker, conducted operations in his own unique way. I think these documents are relevant and should be disclosed.
For similar reasons, and for the reasons set out in paragraphs 26 to 34 of the affidavit of Jennifer Louise Norton sworn 15 March 2010, I find the material described in paragraphs d. & e. of the application to be of sufficient relevance to require disclosure.
The application for disclosure is granted. I make the orders sought in the application. I grant liberty to apply on the giving of at least 3 clear business days notice for any outstanding matters relevant to this application. If the parties cannot agree, I will hear submissions on costs.
3
2