Mason v Arnott's Biscuits Ltd - [2021] QIRC 250

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:	Mason v Arnott's Biscuits Ltd [2021] QIRC 250
PARTIES:	Mason, Barry Kenneth (Applicant) v Arnott's Biscuits Ltd (Respondent)
CASE NO:	WC/2021/23
PROCEEDING:	Application in existing proceedings
DELIVERED ON:	23 July 2021
HEARING DATES:	On the papers
MEMBER:	McLennan IC
HEARD AT:	Brisbane
ORDERS:	*1. That pursuant to r 64H(2) of the Industrial Relations (Tribunals) Rules 2011* (Qld): a. The Notice of non-party disclosure filed 30 April 2021 be varied on pg 3 under the heading 'Schedule of Documents' to strike out documents numbered 1, 3, 4, 5, 6, 7, 9, 10 and 11. b. The Notice of non-party disclosure filed 30 April 2021 be varied on pg 3 under the heading 'Schedule of Documents' to read: 2 All documents that record or evidence that the Applicant himself has been trained or reviewed in his employment including but not limited to that which relate to competency on machines and any other training programs undertaken. 8 All scrap figures for Line 7 while the Applicant operated the Line 7 cutting machine. c. The Respondent is to disclose the documents in the varied Notice of non-party disclosure to the Applicant within 14 days.**
CATCHWORDS:	WORKERS' COMPENSATION – DISCLOSURE – Notice of non-party disclosure – Application seeking compliance order – whether documents sought are directly relevant to issue in the proceeding – where documents not in the possession of Respondent – consideration of confidentiality
LEGISLATION: CASES:	Industrial Relations (Tribunals) Rules 2011 (Qld) r 64B, r 64E, r 64F, r 64G, r 64H Workers' Compensation and Rehabilitation Act 2003 (Qld) s 32 DP World Brisbane Pty Ltd v Rogers & Anor [2014] ICQ 10 House v The King (1936) 55 CLR 499 Mullins v Workers' Compensation Regulator; Ex parte Drake International Pty Ltd (No 2) [2020] QIRC 003 Robson v REB Engineering Pty Ltd [1997] 2 Qd R 102 Rubin v Bank of Queensland Ltd [2010] QSC 175

Reasons for Decision

Background

On 30 April 2021, Mr Barry Mason (the Applicant) filed a Form 29 Notice of non-party disclosure with the Industrial Registry (the Notice).
The Notice sought to compel Arnott's Biscuits Ltd (Arnott's; the Respondent) to produce various documents. The Applicant claims he requires the sought documents for the future substantive hearing of his Workers' Compensation Appeal filed 8 March 2021 (the Appeal).
On 4 May 2021, the Applicant served the Notice on the Respondent under r 64D of the Industrial Relations (Tribunals) Rules 2011 (Qld) (the Rules). The Respondent did not comply within 14 days as required under r 64B of the Rules nor object to the Notice within 7 days under r 64E of the Rules.
On 2 June 2021, the Applicant filed a Form 4 Application in existing proceedings (the Application) seeking that the Respondent be ordered to comply with the Notice.
Objection
In its submissions filed 17 June 2021, the Respondent objected to providing certain documents listed in the Notice pursuant to r 64E of the Rules (Objection Notice).
Notably, r 64E of the Rules…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Mason v Arnott's Biscuits Ltd

Details

AGLC: Mason v Arnott's Biscuits Ltd [2021] QIRC 250
Case: [2021] QIRC 250
Decision Date: 23 July 2021

CaseChat Overview and Summary

The appeal in Mason v Arnott's Biscuits Ltd concerned the disclosure of documents in a workers' compensation matter. The applicant sought a compliance order for the disclosure of documents from Arnott's Biscuits Ltd, a non-party to the proceeding. The primary issue before the court was whether the documents sought by the applicant were directly relevant to the matter in issue and in the possession or control of the respondent. The applicant contended that the documents were relevant and in the possession of the respondent, while the respondent argued that the documents were either not directly relevant or not in its possession.

The court considered the relevant provisions of the Industrial Relations (Tribunals) Rules 2011 (Qld), specifically rule 64B, which provides that a party may require a non-party to produce a document that is directly relevant to a matter in issue and in the possession or control of the non-party. The court also considered the meaning of the term "directly relevant," finding that it means something which tends to prove or disprove the allegation in issue. The court found that some of the documents sought by the applicant were not directly relevant to the matter in issue, while others were not in the possession of the respondent. Accordingly, the court varied the Notice of non-party disclosure to exclude the irrelevant documents and those not in the possession of the respondent.

The court also considered the respondent's argument that some of the documents were confidential. The court found that the respondent had not demonstrated that the documents were confidential and therefore ordered the respondent to disclose the remaining documents to the applicant within 14 days. The court did not make any orders in relation to the confidentiality of the documents, leaving that matter to be determined in further proceedings if necessary.

Orders

Orders of the court

1. That pursuant to r 64H(2) of the Industrial Relations (Tribunals) Rules 2011 (Qld):

a. The Notice of non-party disclosure filed 30 April 2021 be varied on pg 3 under the heading 'Schedule of Documents' to strike out documents numbered 1, 3, 4, 5, 6, 7, 9, 10 and 11.

b. The Notice of non-party disclosure filed 30 April 2021 be varied on pg 3 under the heading 'Schedule of Documents' to read:

2 All documents that record or evidence that the Applicant himself has been trained or reviewed in his employment including but not limited to that which relate to competency on machines and any other training programs undertaken.

8 All scrap figures for Line 7 while the Applicant operated the Line 7 cutting machine.

c. The Respondent is to disclose the documents in the varied Notice of non-party disclosure to the Applicant within 14 days.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

Rule 64H of the Rules provides the following (emphasis added):(1)Unless the operation of a notice is stayed, and subject to any order under rule 64G (2) , the non-party must produce the document specified in the notice for inspection by the party at the place of business of the non-party, or the non-party’s lawyer, within ordinary business hours or at another place or time agreed by the party and the non-party.(2) If the non-party does not comply with subrule (1), the party may apply to the industrial tribunal who may order compliance and make another order the industrial tribunal considers appropriate. Rule 64B of the Rules provides that a party to a proceeding may require a person who is not party to the proceeding to produce a document that is:(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 In Mullins v Workers' Compensation Regulator; Ex parte Drake International Pty Ltd (No. 2), Commissioner Black considered that test (emphasis added, citations removed): In Robson v REB Engineering Pty Ltd, Demack J considered the term "directly relevant":My opinion is that the word "directly" should not be taken to mean that which constitutes direct evidence as distinct from circumstantial evidence. Rather, "directly relevant" means something which tends to prove or disprove the allegation in issue.[3][3] [1997] 2 Qd R 102, 105. Referred to in Rubin v Bank of Queensland Ltd [2010] QSC 175.The Appeal On 8 March 2021, the Applicant filed an appeal seeking to overturn a decision made by Mr Steven May (the decision maker) of the Workers' Compensation Regulator (the Regulator) dated 19 October 2020 (the Decision). The Regulator accepted the Applicant "has sustained an injury of a psychiatric nature". The decision maker determined the most reliable account of factors contributory to the Applicant's psychiatric injury was to be ascertained from a formal statement obtained by Mr John Sargeant of SafeAssure Pty Ltd. The contents of that statement have been extracted from the Decision and are outlined below. The Regulator accepts the injury arose out of or in the course of the Applicant's employment and was the major significant contributing factor to the Applicant's injury. The Regulator drew this conclusion from an alleged incident on 2 May 2019 in which the Applicant was allegedly approached in the breakroom by manufacturing manager Mr Simon Duffy (the 2 May 2019 Incident). As alleged by the Applicant, the 2 May 2019 Incident can be summarised as follows:·The Applicant was on a short break at the time. ·Mr Duffy approach Applicant and asked why a board had not been updated. ·The Applicant responded that he was taking a designated break and had not taken any notice of the board. ·Mr Duffy informed the Applicant that he wanted it updated. ·The Applicant found this to be strange because Mr Duffy had walked past someone else who was seated and unlike the Applicant, did not have an injury.[4] ·This led the Applicant to consider he was being targeted by management. [4] The Decision refers to an injury to the Applicant's right ankle which was accepted and in relation to which benefits were paid up until 13 June 2019.