Peng v Bak10cut Pty Ltd (No. 3) - [2022] QIRC 112

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION: PARTIES:	Peng v BAK10CUT PTY LTD & Anor (No. 3) [2022] QIRC 112 Peng, Yu-Rong (Complainant) v BAK10CUT PTY LTD (First Respondent) & Yuan, Wenxin (Second Respondent)
CASE NO:	AD/2019/107
PROCEEDING:	Application in existing proceedings
DELIVERED ON:	28 March 2022
MEMBER	McLennan IC
HEARD AT:	On the papers
ORDERS:	1. Pursuant to r 226(2)(d) of the Industrial Relations (Tribunals) Rules 2011 (Qld), I declare that the production of documents by WorkCover Queensland produced pursuant to an Attendance notice to produce instead of a Notice of non-party disclosure to be effectual. 2. Pursuant to r 226(2)(e) of the Industrial Relations (Tribunals) Rules 2011 (Qld), the documents produced to the Industrial Registry by WorkCover Queensland may be copied and provided to either party upon request to the Industrial Registry.
CATCHWORDS:	INDUSTRIAL LAW - PROCEDURE - application in existing proceedings - respondents seek electronic copy of documents produced under Attendance notice to produce - where Industrial Relations (Tribunals) Rules 2011 does not make provision for copying documents produced under an Attendance notice to produce - whether use of Attendance notice to produce for obtaining non-party discovery is an abuse of process - whether an order can be made allowing the parties to obtain a copy of the documents - consideration of whether the order sought should be made in the circumstances
LEGISLATION:	Human Rights Act 2019 (Qld) s 4, s 25 Industrial Relations Act 2016 (Qld) s 451 Industrial Relations (Tribunals) Rules 2011 (Qld) r 6, r 58, r 59, r 61, r 64E, r 64F, r 226
CASES:	DP World Brisbane Pty Ltd v Rogers & Anor [2014] ICQ 010 Peng v Bak10Cut Pty Ltd & Anor [2020] QIRC 115 Wallace v Workers' Compensation Regulator [2021] QIRC 277 Weston and Parer v State of Queensland(Department of Justice and Attorney-General) (No. 4) [2016] QIRC 075 Wylie v Workers' Compensation Regulator [2021] QIRC 386

Reasons for Decision

Background

On 10 October 2019, the Queensland Human Rights Commission referred to the Queensland Industrial Relations Commission a complaint made by Ms Yu-Rong Peng (the Complainant) against BAK10CUT PTY LTD and Wenxin Yuan (the Respondents).
I heard the matter on 7 - 9 October 2020.
On 22 April 2021, the Respondents filed a Form 4 - Application in existing proceedings seeking that the matter be reopened and to adduce further affidavit evidence (the Application to Reopen). My decision on the Application to Reopen was dismissed on appeal and the matter was returned to me on 21 February 2022 to rehear and decide.
On 22 February 2022, at the request of the Respondents,[1] I issued a Form 32B - Attendance notice to produce directed at WorkCover Queensland (the Attendance Notice).[2]
[1] Form 32 - Request for attendance notice, 21 February 2022.
[2] Form 32B - Attendance notice to produce, 22 February 2022.
The Attendance Notice sought production of:
Any and all records, claims, reports, correspondence and/or notes (electronic or otherwise) regarding Yu-Rong Peng (Date of Birth 12 March 1990).[3]
[3]…

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.

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Details

Case: [2022] QIRC 112
Decision Date: 28 March 2022

CaseChat Overview and Summary

In Peng v Bak10cut Pty Ltd, the Queensland Industrial Court was asked to determine whether an Attendance notice to produce could be misused to obtain documents from a non-party, and if an order could be made to allow the parties to obtain a copy of these documents. The respondents sought an electronic copy of documents produced by WorkCover Queensland under an Attendance notice to produce. The Industrial Relations (Tribunals) Rules 2011 did not provide for copying documents produced under an Attendance notice to produce, leading to the question of whether the use of an Attendance notice to produce for non-party discovery was an abuse of process.

The court had to decide whether an order could be made to allow the parties to obtain a copy of the documents, considering the absence of specific provisions in the Rules for such an outcome. The court concluded that an Attendance notice to produce was misused but followed the reasoning in Wallace and Wylie to give effect to the order sought. The court determined that the misuse of an Attendance notice to produce did not render the proceedings a nullity, and thus, an order could be made to permit the parties to obtain a copy of the documents.

The court found that the irregularity did not render the proceedings void and granted the order to allow the parties to obtain a copy of the documents. The court ordered that the production of documents by WorkCover Queensland under the Attendance notice to produce would be declared effectual and that the documents could be copied and provided to either party upon request to the Industrial Registry. This decision ensures that the misuse of process does not unduly prejudice the parties involved in the proceedings.

Orders

Orders of the court

1. Pursuant to r 226(2)(d) of the Industrial Relations (Tribunals) Rules 2011 (Qld), I declare that the production of documents by WorkCover Queensland produced pursuant to an Attendance notice to produce instead of a Notice of non-party disclosure to be effectual.

2. Pursuant to r 226(2)(e) of the Industrial Relations (Tribunals) Rules 2011 (Qld), the documents produced to the Industrial Registry by WorkCover Queensland may be copied and provided to either party upon request to the Industrial Registry.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

I will follow the reasoning in Wallace and Wylie to give effect to the order sought, pursuant to r 226 of the Rules.Conclusion I have concluded that an Attendance notice to produce was misused. Pursuant to r 226(1) of the Rules, "a failure to comply with these rules is an irregularity and does not of itself render a proceeding, document, step taken or order made in a proceeding, a nullity." For the reasons outlined above, I have determined to declare the Attendance Notice to be effectual pursuant to r 226(2)(d) and will grant an order permitting that a copy of the documents be produced to either party upon request to the Industrial Registry in electronic form pursuant to r 226(2)(e) of the Rules.Orders I order accordingly:1.Pursuant to r 226(2)(d) of the Industrial Relations (Tribunals) Rules 2011 (Qld), I declare that the production of documents by WorkCover Queensland produced pursuant to an Attendance notice to produce instead of a Notice of non-party disclosure to be effectual.

Ratio Decidendi

Legal Principle Established

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