Oriental Star International Pty Ltd v Workers Compensation Nominal Insurer (iCare)
[2024] NSWPIC 641
•18 November 2024
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | Oriental Star International Pty Ltd v Workers Compensation Nominal Insurer (iCare) & Anor [2024] NSWPIC 641 |
| APPLICANT: | Oriental Star International Pty Ltd |
| FIRST RESPONDENT: | Workers Compensation Nominal Insurer (iCare) |
| SECOND RESPONDENT: | Yongxiao Zhou |
| MEMBER: | Rachel Homan |
| DATE OF DECISION: | 18 November 2024 |
| CATCHWORDS: | WORKERS COMPENSATION - Objection to compliance with notice to produce seeking second respondent’s personnel file on grounds that the request was too vague and wide; notice of opposition to the objection claimed the documents were directly relevant to dispute, unambiguous and ought to be readily available; R v Saleam considered; Held – applicant directed to comply with the second respondent’s Notice to Produce within 14 days. |
| DETERMINATIONS MADE: | The Commission directs: 1. The applicant to comply with the second respondent’s Notice to Produce by serving a copy of Mr Steven (Yongxiao) Zhou’s personnel file within 14 days of this determination. |
STATEMENT OF REASONS
BACKGROUND
These proceedings concern Oriental Star International Pty Ltd (the applicant’s) liability to reimburse an amount specified in a notice issued pursuant to s 145(1) if the Workplace Injury Management and Workers Compensation Act 1998 paid to Mr Steven (Yongxiao) Zhou (the second respondent) as workers compensation.
The second respondent claimed to have sustained a psychological injury in the course of his employment with the applicant due to an excessive and unreasonable workload, bullying, harassment and unfair treatment. The claim was accepted by the Workers Compensation Nominal Insurer (the first respondent) and compensation for the injury was paid.
At a preliminary conference held on 30 October 2024, a direction was made extending the time in which the second respondent could serve a notice for production on the applicant.
In compliance with that direction, the second respondent served a notice for production on the applicant on 5 November 2024. Amongst other things, the notice requested the production of the “personnel file of Mr Zhou”.
On 12 November 2024, the applicant wrote to the second respondent objecting to the production of the “personnel file of Mr Zhou”. The production of that material was objected to on the ground that the description of the documents was too vague and too wide. It was said that the second respondent had failed to provide a sufficient description of the class of documents to which the request was related.
On 13 November 2024, the applicant wrote to the Commission filing a notice of opposition to the objection raised by the applicant. The second respondent submitted that the objection was without merit and that the production of the requested documents was both necessary and relevant to the issues in dispute.
In particular, the second respondent submitted that the description of documents was not overly broad. There was no ambiguity in the category of documents requested. The documents were directly relevant to the dispute regarding the second respondent’s employment and the circumstances surrounding the termination of his employment. It was submitted that the production of the documents would not cause undue burden or prejudice to the applicant’s as they were standard records maintained by an employer and should be readily available. The applicant had not identified any specific hardship or difficulty in producing such documents.
FINDINGS AND REASONS
Rule 39 of the Personal Injury Commission Rules 2021 provides:
“39 Notice for production
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.”
Under r 40(2) a producer must comply with a notice for production within seven days of the date on which the notice was served on the producer. The manner of compliance is provided for in r 41:
“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.”
10. In R v Saleam[1], the test for determining whether a party is required to produce documents was stated in the following terms:
“Before access is granted (or an order to produce made) the applicant must (i) identify a legitimate forensic purpose for which access is sought; and (ii) establish that it is ‘on the cards’ that the documents will materially assist his case.” (at [11])
[1] [1999] NSWCCA 86.
The substantive issues in these proceedings have been identified as:
(a)whether the applicant is liable to reimburse the first respondent the amount set out in the notice issued pursuant to s 145(1) of the Workers Compensation Act 1987 dated 10 July 2024, including:
i) whether the second respondent received an “injury” pursuant to s 4 of the Workers Compensation Act 1987;
ii) the extent and quantification of incapacity resulting from injury during the period covered by the s 145(1) notice; and
iii) whether the medical and related treatment expenses identified in the notice were reasonably necessary as a result of injury pursuant to s 60 of the Workers Compensation Act 1987.
Central to the dispute as to “injury” is a factual dispute regarding the nature of the second respondent’s employment conditions and the circumstances surrounding the termination of his employment.
I am satisfied, for the reasons set out in the second respondent’s notice of opposition, that the second respondent’s “personnel file” is likely to contain material that is relevant to a fact in issue in these proceedings. I am further satisfied that there is a legitimate forensic purpose for which access is to the documents is sought and that the documents may materially assist in the resolution of the disputes in these proceedings.
I do not accept that the description of the documents is too vague or wide. I accept the second respondent’s submission that a personnel file would typically contain documents related to an employee's employment history, including but not limited to, contracts, performance evaluations, disciplinary records, correspondence, and details regarding termination. Such materials should be in the applicant’s possession and readily available. The request is a standard and reasonable request for disclosure of documents that are directly relevant to the dispute.
No other basis for the objection has been identified by the applicant.
In the circumstances, I will direct that the personnel file be produced to the second respondent within 14 days of this determination.
I note that the applicant is not required to produce:
(a) any material which is not suitable for copying;
(b) any material which is privileged;
(c) any material which has already been produced to the second respondent;
(d) any material which is, to the best of the applicant’s knowledge or belief, in the possession or control of another specified person; or
(e) any material of which the applicant has no knowledge of its existence or location.
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