Khan v Workers Compensation Nominal Insurer (iCare)
[2023] NSWPIC 647
•1 December 2023
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | Khan v Workers Compensation Nominal Insurer (iCare) & Ors [2023] NSWPIC 647 |
| APPLICANT: | Maaz Ilahi Khan |
| FIRST RESPONDENT: | Just Smart Solutions Pty Ltd t/a Just Taxi |
| SECOND RESPONDENT: | Workers Compensation Nominal Insurer (iCare) |
| SENIOR MEMBER: | Kerry Haddock |
| DATE OF DECISION: | 1 December 2023 |
| CATCHWORDS: | WORKERS COMPENSATION - Notices for Production served by applicant on first respondent and first respondent’s solicitors; objection to Notices for Production; failure to serve Notice of Objection in accordance with Personal Injury Commission Rules 2021; directions made for service of Notice of Objection and Notice of Opposition; first respondent provided “interim replies” and failed to “reply formally” after extension of time sought was granted; first respondent made email submissions and attached further documents after the expiry of the extended time limit; neither the email nor the documents was taken into account; Held –Notice for Production on first respondent’s solicitors wholly set aside; Notice for Production on first respondent set aside in part; first respondent to produce report of investigation commissioned by iCare, if report held, and subject to any claim of privilege. |
| DETERMINATIONS MADE: | The Commission determines: 1. The Notice for Production served by the applicant on the first respondent’s solicitors is set aside wholly, pursuant to Personal Injury Commission Rules 2021, rule 41(5)(a). 2. The Notice for Production served by the applicant on the first respondent is set aside, pursuant to Personal Injury Commission Rules 2021, rule 41(5)(a) as follows: (a) with respect to the list of payments from 28 April 2023; (b) with respect to payslips; (c) with respect to phone records, and (d) with respect to notice of suspension dated 23 May 2023. 3. If the first respondent holds a copy of a report of an investigation commissioned by iCare, it is directed to produce it to the applicant, pursuant to Personal Injury Commission Rules 2021, rule 41(5)(b), subject to any claim of privilege. 4. The conciliation/arbitration hearing date of 18 January 2024 at 10am is confirmed. |
STATEMENT OF REASONS
BACKGROUND
The applicant, Maaz Ilahi Khan (Mr Khan), has lodged an Application to Resolve a Dispute (the Application) in the Personal Injury Commission (Commission).
Mr Khan claims to have been either employed, or deemed to have been employed, by the first respondent, Just Smart Solutions Pty Ltd t/a Just Taxi (Just Taxi) as a taxi driver. He sustained injuries when he was struck in the face with an EFTPOS machine at Sydney Airport on 28 April 2023.
Mr Khan claims weekly benefits compensation from 3 August 2023 to date and continuing.
Just Taxi disputes that it employed Mr Khan, or that he was deemed to have been its employee.
Just Taxi did not hold workers compensation insurance at the date of the applicant’s injury. Workers Compensation Nominal Insurer (iCare) has therefore been joined to the Application as the second respondent.
The applicant has served on the first respondent and its solicitors Notices for Production.
This determination is made in respect of the Notices for Production served by the applicant on the first respondent and its solicitors.
ISSUES FOR DETERMINATION
The following issue is in dispute:
(a) whether the first respondent and its solicitors are required to comply with Notices for Production served by the applicant.
PROCEDURE BEFORE THE COMMISSION
The matter was listed for preliminary conference on 26 October 2023. Mr Davidson of counsel, instructed by Mr Buttar, appeared for the applicant, who was present. Mr Simons appeared for the first respondent. Ms Davis appeared for the second respondent, instructed by Ms Barnsley. Mr Khaya of the first respondent also attended.
The applicant had served on both respondents Notices for Production. The second respondent advised that it was able to comply with Notice, and no direction was sought in this regard.
The first respondent advised that it objected to the Notices for Production (copies of which have not been provided), but had failed to serve a Notice of Objection, in accordance with Personal Injury Commission Rules 2021 (the Rules).
The first respondent was directed to lodge and serve its Notice of Objection to the Notice for Production on or before 27 October 2023.
The applicant was directed to lodge and serve his Notice of Opposition to the first respondent’s notice of objection on or before 31 October 2023.
The parties were advised that at the conclusion of the time allowed for lodging the above Notices, that issue would be determined “on the papers”.
The first respondent provided “interim replies” by email on 27 October 2023. The email stated that the Notices for Production were attached, which they were not, and sought an extension of time to 1 November 2023 to “reply formally”.
The first respondent was granted an extension of time to 1 November 2023 to lodge and serve its Notice of Objection; and the applicant was granted an extension of time to 8 November 2023 to lodge and serve his Notice of Opposition.
The first respondent has not lodged or served any Notice of Objection.
The applicant has lodged his Notice of Opposition. He has attached further evidence, including evidence that was attached to the Application to Admit Late Documents dated 20 October 2023, to which the first respondent has objected, and which has not been admitted against Just Taxi. I have therefore not had regard to it in determining this issue.
The first respondent sent an email to the Commission on 29 November 2023, and it was brought to my attention on 30 November 2023. It contained submissions and attached documents. I have not had regard to the email or the documents. If the first respondent wishes to make submissions or rely on further evidence, it is not appropriate to do so by email to the Commission, after the date by which it was to comply with a direction.
As the first respondent has failed to comply with the direction, I have considered its “interim replies”, despite its unsatisfactory response.
I am satisfied that the parties to the dispute understand the nature of this issue and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.
EVIDENCE
Documentary evidence
The following documents were in evidence before the Commission and considered in making this determination:
(a) Application and attached documents;
(b) First respondent’s Reply, and
(c) Application to Admit Late Documents dated 19 October 2023, filed by the second respondent and attached documents (Reply).
FINDINGS AND REASONS
It is unnecessary that I discuss the evidence, given that I am in this determination concerned only with the first respondent’s objection to the applicant’s Notices for Production.
SUBMISSIONS
First respondent
As I have noted, the first respondent has provided only “interim replies”, despite seeking and being granted an extension of time.
The first respondent’s responses may be summarised as follows:
(a) Notice to first respondent’s solicitors:
The documents sought were:
(i)All documents, notes, emails, correspondence, incident reports, list of payments, security reports, liability reports, witness statements, manager reports and/or medical reports, investigator reports and/or memoranda from 28 April 2023 to date for the Applicant, Maaz Ilahi Khan, DOB (redacted), including but not limited to: Workers compensation file claim no. 2023200518.
Response: the description is too wide; only material that is “non-privileged” and relevant should be supplied. This part of the schedule should be amended (without specifying the amendment). Courts will not permit parties to embark on a “fishing expedition” in the hope of locating a document to assist their case.
(b) Notice to first respondent:
The documents sought were:
(i)All documents, notes, emails, correspondence, incident reports, list of payments, security reports, liability reports, witness statements, manager reports and/or medical reports, investigator reports and/or memoranda from 28 April 2023 to date for the applicant, Maaz Ilahi Khan, DOB (redacted), including but not limited to Workers compensation file claim no. [sic] 2023200518.
The responses were as follows;
Incident report
Response: this is defined in our view as a document as to a record of the incident at the time, please see attached “Incident Report Form”.
List of payments
Response: the first respondent did not make any payment to the applicant relating to his claim.
Security reports, liability reports, witness statements, manager reports and/or medical reports, investigator reports and/or memoranda.
Response: the first respondent received a claim form filled out by the applicant and correspondence from his solicitor “and that is all”.
Medical reports
Response: the first respondent did not arrange any medical reports.
Investigator reports
Response: the first respondent was approached by an investigator from iCare. It understood the applicant had a copy “of this”. Can this be confirmed pending a further reply by us?
Memoranda
Response: the first respondent was not the “author” of workers compensation file claim [sic] 2023200518, this should be addressed to the second respondent.
(ii)All notices of when the applicant worked, including log on and log off records – log on and log off records in relation to taxi T-1916 from 27 March 2023 to 5 May 2023 were attached.
Response: please see attached log on and log off records in relation to taxi T-1916 from 27 March 2023 to 5 May 2023.
(iii)All payslips directed to the applicant for every shift, including notices of payment
Response: This is not applicable, the applicant was not an employee of the first respondent, and no payslip was ever provided to the applicant.
(iv)The Code of Conduct form allegedly signed by the applicant.
Response: Please see attached Code of Conduct signed by the applicant, we also enclose Operator Agreement.
(v)Detailed receipts totalling $5,608,90 charged by Just Taxi
Response: Please see attached the following (inclusive of GST):
All Communications Pty Ltd tax invoice dated 23 March 2023 = $3,300, this invoice was paid by Just Taxi, then reissued to Mr Maaz Khan direct (Taxi Inv: 000021).
Taxi Network Fees outstanding to date of $2,308.90 (Taxi Inv: 000022).
The above amounts, we are instructed, are paid by Elizabeth Street (Elizabeth Street) Finance Pty Ltd who the applicant has a signed Lease of Taxi Agreement with. We are advised that Elizabeth Street also funds the Green Slip, Comprehensive Insurance and the Taxi Plate Monthly Fee, which are direct debited from the applicant’s bank account.
(vi)Record of jobs, including job fees and other charges deducted weekly.
Response: Please see attached:
Account job and job fee data for the period 26 March 2023 to 23 April 2023.
Cab charge data for the period 28 March 2023 to 24 April 2023.
Levy.
Trip hail data for the period 27 March 2023 to 27 April 2023.
(vii)Phone call records from Just Taxi and call support from the base in Hyderabad, India.
Response: we are instructed the first respondent does not hold the records but are instructed these records are possibly held with an entity overseas. We are instructed that our client attempted on numerous occasions to contact the applicant to discuss the reasons for his termination due to not abiding with the Code of Conduct but all attempts by telephone were unsuccessful.
(viii)Notice of suspension issued on 23 May 2023 “without valid reason”.
Response: We are instructed that a notice of suspension was not issued on 23 May 2023, but enclose copy of email sent 25 May 2023 at 1:44pm.
Applicant
The applicant provided its Notice of Opposition by letter dated 6 November 2023.
As regards the objection as a whole, the applicant referred to the Rules – rule 50(2)(a) and Workers Compensation Rules 2006 – rule 13.8(3). He submitted that the objection did not clearly identify the documents subject to objection and provide reasons. He pressed for “all documents held by the [first] respondent to be produced.”
Direction for Production [sic] on the first respondent’s solicitors
The applicant submitted that the Direction [sic] allowed sufficient time to produce all requested documents.
The dispute related to the issue of employment or engagement of the applicant and his classification as a “worker” or “deemed worker”. The documents requested “clearly relate to this nature [sic].”
The applicant submitted that documents the first respondent may consider privileged are to be submitted to me to determine their admission. Communication between Just Taxi and iCare “cannot be privileged and must be produced”.
The applicant referred to the Uniform Civil Procedure Rules (NSW) 2005 (UCPR), rules 15.12 and 21.1(2).
Notice for Production on the first respondent
In response to the first respondent’s objection to the request for a list of payments, on the basis that it has not made any payment to the applicant relating to his claim, he submitted that text messages (which are not in evidence against the first respondent) evidence a contractual agreement between him and the first respondent, “detailing wage outcomes and payments for each job completed.”
The applicant submitted that he did not have a copy of any relevant investigator reports, and “please provide a copy as soon as possible since the implication is that there was such a report made and is in existence.”
As regards payslips, the applicant submitted that he attached “an example of the style of document we wish to obtain detailing the payment received…please see attached End of Shift Report dated 27 April 2023. We seek clarification as to who the applicant could receive the relevant payslips from, if not the company they work for.”
The applicant submitted that the Direction [sic] could not be considered “too wide” or a “fishing expedition”. I note that no such objection was taken to the Notice for Production addressed to the first respondent.
The applicant referred to ICAP Australia Pty Ltd v BGC Partners (Australia) Pty Ltd[1] and submitted the requested documents were sought for the purpose of classifying him as a “worker” or “deemed worker” and verifying the nature of his employment or engagement. This issue “specifically arises due to inconsistencies in our clients’ [sic] alleged signatures on documents provided by the employer.”
[1] [2009] NSWCA 307.
The applicant submitted that, as records of earnings being calculated based off work completed existed, notices of payment to him existed and were applicable to be produced.
The applicant submitted that the Code of Conduct and Operator Agreement produced by Just Taxi dated 6 March 2023 contained “constructed signatures.”
The applicant’s submissions about the phone call records between the first respondent and Hyderabad India refer to documents that have not been admitted into evidence against the first respondent and include submissions on the evidence.
The applicant’s submissions about the notice of suspension again refer to documents that have not been admitted into evidence against the first respondent, and he submits that the email does not include the respondent’s reply to the email. His submissions again include submissions on the evidence.
SUMMARY
Notices for Production are provided for in Division 5.2 of the Rules.
Rule 38 of the Rules provides:
“38 Definitions
(1) In this Division—
parties means the requesting party and the producer.
party to proceedings includes the insurer of an employer in workers compensation proceedings.
producer means a party to proceedings named or proposed to be named in a notice for production.
requesting party means a party to proceedings who intends to serve or has served a notice for production on a producer.
(2) For the purposes of this Division, a document—
(a) does not include a document that must be provided, under enabling legislation, to a requesting party by a claimant, employer or insurer in relation to a claim, whether on request or otherwise, except if there has been a failure to provide the document as and when required by the relevant provision, and
(b) is taken to be relevant to a fact in issue if it could rationally affect the assessment of the probability of the existence of the fact, other than by relating solely to the credibility of a witness, regardless of whether the document would be admissible in evidence.”
Rule 39 of the Rules provides:
“ for productionNotice39
A requesting party may serve a notice for production on a producer at the producer's address for service requiring the producer to produce for inspection a document that is-
(a) clearly identified in the notice, and
(b) relevant to a fact in issue in the proceedings.”
Rule 41 of the Rules provides:
“41 Compliance with notice for production
(1) A producer must comply with a notice for production by delivering to the requesting party, at the requesting party's address for service and within the time required by rule 40(2), a clear copy of the document referred to in the notice that is--
(a) in the possession or control of the producer, and
(b) not the subject of a notice of objection referred to in subrule (2).
(2) A producer must also serve on the requesting party, at the requesting party's address for service and within the time required by rule 40(2), a notice of objection concerning a document that has not been delivered, stating--
(a) the document is not suitable for copying but may be inspected at a specified place and time and on a date within 7 days of the date on which the notice of objection was served on the requested party, or another date agreed to by the parties, or
(b) the document is privileged and the reasons for the claim of privilege, or
(c) the document is not relevant to a fact in issue in the proceedings and the reasons why it is not relevant, or
(d)if the producer is a claimant--an amount sufficient to meet the reasonable expenses of complying with the notice for production has not been paid, and the reasons for making the assertion, or
(e) the document has already been produced to the requesting party, or
(f) the document is, to the best of the producer's knowledge or belief, in the possession or control of another specified person, or
(g) the producer has no knowledge of the document's existence or location, or
(h) another objection to production and the reasons for the objection.
(3) A requesting party who wishes to oppose a notice of objection must, within 2 working days of the date on which the notice of objection was served on the requesting party, lodge, and serve on the other parties, a notice of opposition.
(4) The notice of opposition must--
(a) set out the reasons for the opposition, and
(b) attach a copy of the notice for production and the notice of objection.
(5) The Commission or the President may determine an objection to a notice for production by--
(a) setting aside the notice for production wholly or in part, or
(b) directing the documents be produced to the requesting party or the Commission, or
(c) making another order the Commission or the President thinks fit.
(6) If a producer fails to comply with a notice for production in workers compensation proceedings--
(a) the requesting party may, by written notice to the principal registrar within 2 working days after the time for compliance has expired, request that the principal registrar refer the matter to the Authority for consideration of the prosecution of an offence under section 290(2) of the 1998 Act, and
(b) the Commission may, on the application of the requesting party or of its own motion, make a determination as to costs under Chapter 7, Part 8, Division 3 of the 1998 Act as it thinks fit, subject to the applicability of section 341 of the 1998 Act as in force before 1 October 2012.
(7) To avoid doubt, the President may exercise a function of the Commission
under subrule (6)(b) in addition to, or instead of, making an order under section 290(6)(c) of the 1998 Act.”
Notice for Production on the first respondent’s solicitors
The Notice for Production served on the first respondent’s solicitors may be shortly dealt with. The solicitors are not a party to the proceedings.
Should the applicant seek to obtain documents from the first respondent’s solicitors, he would be required to request that an order be made for the issue of a Direction for Production, pursuant to rule 46 of the Rules. No such request or order has been made.
The Notice for Production on the first respondent’s solicitors is wholly set aside.
Notice for Production on first respondent
The applicant’s references to the Workers Compensation Commission Rules 2006 and UCPR are misguided.
The former Workers Compensation Commission was abolished by the establishment of the Personal Injury Commission on 1 March 2021. Its Rules have no application to this Commission.
The UCPR provide, in rule 1.5, that the rules apply to each court referred to in Column 1 of Schedule 1. They include the Supreme Court; Industrial Court; Industrial Relations Commission (when constituted otherwise than as the Industrial Court); the Land and Environment Court; the District Court; the Dust Diseases Tribunal; and the Local Court. They do not include the Personal Injury Commission.
The Rules provide, in rule 5, that they apply to, among other proceedings, Commission proceedings. They are therefore the appropriate rules to be applied.
Rules 39 and 41 require that a document requested in a Notice for Production be relevant to a fact in issue in the proceedings. The party seeking the production of documents bears the onus of showing, expressly and precisely, the apparent relevance of the documents sought to the issues in dispute.
I have found the applicant’s submissions of little assistance in determining the Objection and Opposition to Objection to the Notice for Production on the first respondent. His submissions appear to be directed to the evidence, rather than to the production of documents.
The first respondent has responded to the Notice for Production for the most part by stating that a document it has not produced is not in its possession or control; or by providing the document.
The applicant’s response appears to be either that the first respondent has the documents it has not produced, or he disputes the veracity of the documents.
As regards the request for a list of payments, the applicant sought a list of payments from 28 April 2023, the date of the injury. The first respondent, not unreasonably, in my view, construed this as a request for a list of payments made to or on behalf of the applicant as compensation for the injury.
The first respondent stated that it had not made any payments, which, in view of its uninsured status and the involvement of the second respondent, is likely to be correct. That part of the Notice for Production is set aside.
As regards the request for any investigation report, the first respondent has stated that it provided a statement to iCare and assumed the applicant had a copy of the report but requested confirmation of this. The applicant has submitted that he does not have a copy.
It is not clear whether the first respondent holds a copy of any report of an investigation commissioned by iCare. If it holds such a report, it is directed to produce it to the applicant, subject to any claim of privilege.
The first respondent has stated that no payslip was ever provided to the applicant, as it was not its employee. That appears to be disputed by the applicant, although his submission is difficult to understand.
The first respondent is not able to provide documents it does not hold. That part of the Notice for Production is set aside. The employment or engagement relationship between the applicant and the first respondent is in issue in these proceedings.
The first respondent has stated that it does not hold the phone call records, which may be held in India.
For the same reason as above, that part of the Notice for Production is set aside.
The first respondent has stated that a notice of suspension was not issued on 23 May 2023. It is not therefore able to provide such document. For the same reason as above, that part of the Notice for Production is set aside.
The first respondent appears to have produced the other documents sought by the Notice for Production.
The orders are set out in the Certificate of Determination.
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