Radziwill v Q-Comp
[2011] QMC 32
•22 February 2011
MAGISTRATES COURTS OF QUEENSLAND
CITATION:
Radziwill v Q-COMP & Anor [2011] QMC 32
PARTIES:
KATHARINA RADZIWILL
(appellant)
v
Q-COMP
(respondent)
CALOUNDRA SUB BRANCH RSL SERVICES CLUB INC
(intervenor)
FILE NO/S:
MAG55415/09(9)
DIVISION:
Industrial Magistrates Court
PROCEEDING:
Appeal against decision of Q-COMP – application for disclosure
ORIGINATING COURT:
Industrial Magistrates Court at Brisbane
DELIVERED ON:
22 February 2011
DELIVERED AT:
Brisbane
HEARING DATE:
18 February 2011
MAGISTRATE:
Lee G
ORDER:
Application for disclosure allowed
CATCHWORDS:
INDUSTRIAL LAW – PRACTICE AND PROCEDURE - disclosure – where substantive appeal by worker against decision of Q-COMP under Workers Compensation and Rehabilitation Act 2003 - where intervenor granted leave to fully participate at trial under Industrial Relations Act 1999 - whether intervenor subject to disclosure to applicant – whether intervenor be treated as a party as such – whether non party disclosure more appropriate
Industrial Relations Act 1999 (Qld), s 289, s 290, s 291, s 292, s 293, s 319, s 320(2), s 320(3), s 338(4)
Industrial Relations (Tribunal) Rules 2000 (Qld), r 5, r 38(2)(o), r 96 (2)(n)
Uniform Civil Procedure Rules 1999 (Qld), r 211, r 245, r 246, r 247, 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
State of Queensland v Q-COMP & Coyne [2003] QIC 118 cited
COUNSEL:
G Cross for appellant
R Jamieson for respondent
J Merrell for intervenor
SOLICITORS:
Everingham Lawyers for appellant
Respondent appears on own behalf
Aitken Legal for intervenor
By application filed 11 February 2011, Katharina Radziwill, the appellant in the substantive appeal, (“the worker”) seeks disclosure of documents by the Caloundra Sub Branch RSL Services Club Inc (“the employer”) pursuant to rule 38(2)(o) of the Industrial Relations (Tribunal) Rules 2000 (“the rules”). Q-COMP, the respondent in the substantive appeal, neither consents nor opposes this interlocutory application.
The affidavit of Susan Joy Lewis sworn 16 February 2011 and written submissions dated 18 February 2011 constituted the material in support of the application which is opposed by the employer supported by an affidavit of Christopher James Campbell sworn 17 February 2011. I heard submissions on 18 February 2011 and reserved my decision. I note that this matter is set down for a seven (7) day hearing to commence 7 March 2011. Due to the urgency of the matter, these reasons have been prepared quickly.
On 17 February 2009, while Q-COMP found that the worker sustained a psychological injury, that it arose out of or in the course of her employment with the employer, and that, in relation to all five stressors, her employment was a significant contributing factor to the injury, it rejected the worker’s claim[1] for compensation on the basis of section 32(5) i.e. the psychological disorder arose out of or in the course of reasonable management action taken in a reasonable way. The worker relied on five work related stressors that led to her de-compensation. On 12 March 2009 the worker appealed Q-COMP’s decision to this court. Q-COMP is the respondent in the appeal. The employer, describing itself as the “Caloundra Sub-Branch RSL Services Club Inc.”, brought an application under section 320(2) of the Industrial Relations Act 1999 “(IR Act”) for “the right to be heard” in this appeal relying on detailed written submissions on file dated 20 August 2009. Subsections 320(2) & (3) provide:
[1] Lodged 14 February 2008 – see page 2 Q-Comp’s reasons for decision at exhibit “SJL 1” to Affidavit of Susan Joy Lewis sworn 16 February 2011;
320 Basis of decisions of the commission and magistrates
(1) ….
(2) In proceedings, the commission or Industrial Magistrates
Court—(a) is not bound by technicalities, legal forms or rules of
evidence; and
(b) may inform itself on a matter it considers appropriate
in the exercise of its jurisdiction.(3) Also, the commission or Industrial Magistrates Court is to be
governed in its decisions by equity, good conscience and the
substantial merits of the case having regard to the interests
of—(a) the persons immediately concerned; and
(b) the community as a whole.By consent of the worker, Q-COMP and the employer, on 20 August 2009 orders were made in the following terms:
1.[The employer] has the right to be heard in the appeal to the Industrial Magistrate’s court by [the worker] against the decision of [Q-COMP] dated 17 February 2009 (the appeal)
2.[The employer] be given leave to participate in the appeal.
3.[The employer] be at liberty to apply to the Court to change the venue of the hearing of the appeal.
4.At least 20 business days before the hearing of the appeal, [the worker] and [Q-COMP] serve on the [employer] any document that the [worker] or
[Q-COMP] wants to adduce at the hearing of the appeal.5.At least 20 business days before the hearing of the appeal, [the employer] serve on the [worker] and on [Q-COMP] any document that [the employer] wants to adduce at the hearing of the appeal.
6.In the conduct of the appeal, [the employer] be at liberty, subject to any order made at the hearing of the appeal, to
(a) call evidence;
(b) cross –examine any witness called by [the worker] or [Q-COMP];
(c) make submissions at the hearing of the appeal;
(d) seek costs at the completion of the appeal.
7.There be no order as to costs in respect of this application.
The documents sought in the present application are:
· Minutes of the employer’s committee meetings for the period 1 January 2006 to 22 August 2007;
· The worker’s personnel file; and
· An audit report referred to in the affidavit of Susan Joy Lewis.
The worker has been employed with the employer since December 2003[2]. In more recent times she was the “Training and Human Resources Manager. By resolution of a committee of the employer on 21 February 2007 the worker’s salary was increased from $110,000 to $150,000 to reflect her increased responsibility in taking over payroll duties.
[2] Paragraph 7 Affidavit of Susan Joy Lewis sworn 16 February 2011 referring to page 2 Q-COMP’s reasons for decision;
The worker has not worked since 22 August 2007 when her employment with the employer was terminated. The history of this matter indicates that the hearing of the substantive appeal has previously been deferred due to the worker’s lack of capacity.
In support of the application it was submitted that this court has jurisdiction to make the orders sought. While there is room for argument as to whether a person who has been granted leave to be heard under section 320(2) IR Act is a party to proceedings: State of Queensland v. Q-COMP & Coyne [2003] QIC 118, it should be treated as a party for the purposes of discovery. It was submitted that section 553 of WCRA which imports Chapter 7 Part 2 UCPR (non-party disclosure) provisions don’t apply. Rather, it was submitted that the rules apply and in particular rule 38(2)(o) & (p). For reasons that follow, in my view the appropriate rule for an order for discovery in the Industrial Magistrates Court is rule 96(2)(n).
The employer concedes that this application should have been brought adopting the non-party disclosure provisions of Chapter 7 Part 2 of the UCPR but objects to the court’s jurisdiction to make the orders sought on the basis that the employer is a “party”.
The basis for opposing the application is twofold. The first is that the Industrial Magistrates Court does not have the power to order disclosure from the employer under rule 38(2) of the Industrial Relations (Tribunals) Rules 2000 (the rules) because it is not a party to the appeal and that the appropriate step that should have been taken by the worker was to seek non party discovery pursuant to the combined effect of section 553 of the Workers Compensation and Rehabilitation Act 2003 (WCRA) and Chapter 7 Part 2 of the Uniform Civil Procedure Rules (UCPR). The second ground is that if unsuccessful on the first ground, then the scope of the documents sought to be discovered is excessive and amounts to a fishing expedition.
Does this Court have the power to order discovery by the employer?
The first question is to consider the statutory provisions and the rules of procedure that 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[3]. 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:
[3] 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)Then, prior to 1 November 2010, section 548A of WCRA conferred jurisdiction on an Industrial Magistrate to hear and determine workers compensation appeals under Part 3 Chapter 13 of WCRA[4].
[4] In Division 1, Part 3 of Chapter 13; section 146 of the Civil and Criminal Jurisdiction Reform and Modernisation Amendment Act 2010 (No 26/2010) amended section 548A of WCRA removing “Industrial Magistrate” as an “appeal body” for most reviewable decisions under WCRA with effect from 1 November 2010;
In Particular, by sections 548A & 549 of WCRA, an employer can appeal to an “appeal body” including an Industrial Magistrate against the decision of Q-COMP. In this case the employer has not appealed. It has been granted leave to be heard in a worker appeal pursuant to section 320(2) IR Act. It was submitted for the employer that the legislative scheme supports the view that in those circumstances the employer is not a party. No authorities were cited. Reference was made to section 549 WCRA which provides:
549 Who may appeal
(1) A claimant, worker or employer aggrieved by the decision
(the appellant) may appeal to an appeal body against the
decision of the Authority or the insurer (the respondent).
(2) An insurer aggrieved by a decision of the Authority to
confirm, vary or set aside a decision of the insurer mentioned
in section 540(1)(a)(i) to (vi) may appeal to an appeal body
against the decision of the Authority.
(3) If the appellant is an employer—(a) the claimant or worker may, if the claimant or worker
wishes, be a party to the appeal; and
(b) an insurer may, if the insurer wishes, be a party to the
appeal if the appeal is against a decision of the
Authority to confirm, vary or set aside a decision of the
insurer mentioned in section 540(1)(a)(i) to (vi).
(4) If the appellant is WorkCover, an employer may, if the
employer wishes, be a party to the appeal.Particular reliance was placed on s 549(3)(a) which specifically provides that where an employer appeals a worker “may be a party to the appeal”. The submission continues to the effect that there is no express provision enabling an employer to be a party where, as here, the worker appeals and the only avenue is to seek leave under section 320(2) of the IR Act. Although that is not the end of the matter, on its face, I agree with that. In my view though, it does not follow that the employer should not be treated as a party for discovery purposes in proceedings where, in terms of the consent order of 20 August 2009, it has chosen to enter into the arena with all the trappings of a party. During submissions, it was thought this point had not been raised before and there were no authorities on point.
Next, section 553 of WCRA[5] provides:
[5] 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 WCRA, jurisdiction is conferred on an Industrial Magistrate to review decisions of
Q-COMP. Section 553 (1) of WCRA 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 WCRA. 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).
Submissions for the worker are that the non party discovery procedures in the UCPR do not apply here because the employer should be treated as a party and that an order for discovery should be made under rule 38 of the rules.
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[6]. 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” including rule 96 applies 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).
[6] Rule 2;
In my view the rules generally apply to these proceedings with necessary changes and that rule 38 in Part 2 applies to proceedings in the Industrial Relations Commission[7] and that rule 96 in Part 3 applies to proceedings in this court. They are in almost the same terms and the power to order discovery is in exactly the same terms. Rule 38 provides:
[7] As well and the Industrial Court of Queensland and the Registrar;
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.In my view, the rules cover the 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[8] 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[9] 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[10]. 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.
[8] No 50 of 2005, section 45;
[9] Established under the Industrial Relations Act 1999 (Q’ld);
[10] 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. In my view, 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. To this extent I agree with submissions for the employer on this point. Be that as it may, little turns on this as both rules are, relevantly, in identical terms. Given the grounds relied on by the employer in resisting this application and the fact that rules 38 and 96 dealing with discovery are in 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.
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)). This is an application by the worker who is a party.
I do not accept the employer’s submissions that this court does not have the power under the rules to order it to disclose documents. Apart from the minor exception of section 554 of the Act regarding the exchange of documents to be relied on in a hearing, 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[11]. 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.
[11] Part 3 (Appeals) Chapter 13 (Reviews and Appeals);
In my view and in the circumstances of this case, this court can order the employer to make discovery as sought in this application. Those circumstances include:
· Rule 5 provides for the just and expeditious disposition of the matter “at a minimum of expense”. The employer has chosen to apply for leave to be heard resulting in wide ranging rights akin to those of a “party”. It appears it is not a “party” in name only. It would be unjust for the employer to avoid discovery obligations particularly given the reasons for applying for leave to be heard set out in the following paragraphs.
· Rule 96(2)(n) empowers this court to make orders for discovery. While the employer is not described as a party, having regard to the consent orders above, it has all the trappings and rights of a party. In fact, paragraphs 4 & 5 of the consent orders put the worker, Q-COMP and the employer on an equal footing regarding documents to be supplied if intended to be relied on at trial. Further, they purport to increase the minimum period required under section 554 to supply documents to be relied on thus relaxing their obligations there under. Whether paragraph 6(d) of the consent orders simply creates a right to seek costs after the substantive appeal as opposed to exposing the employer to a costs order against it, this is a debate for another day.
· I note the employer’s written submissions in support of its application under section 320(2) IR Act dated 20 August 2010 that it has a “direct pecuniary interest, a direct reputation risk interest and a direct legal interest in the proceedings”[12]. It drew a distinction between its interests and that of Q-COMP and made the point that “it is wrong for Q-COMP to treat an employer as a client and /or to accept instructions from an employer” and “Q-COMP has no duty to call witnesses at the request of an employer nor is Q-COMP required to develop a case considered to be appropriate by an employer”. Indeed it has previously taken “an active part in seeking reviews of the decisions of WorkCover in relation to its decisions regarding the [worker’s] application for compensation”[13]. Curiously, despite asserting that it is not a party in this application, I note the employer’s acknowledgment during oral submissions that it would comply with section 554 of WCRA which imposes an obligation on a “party” to give each other party a document to be relied on at the hearing. This supports the view I have already come to that the employer should be treated as party for the purposes of this application.
·
The fact that there is no express statutory mechanism in WCRA to enable an employer to be joined as a “party” where a worker has appealed a decision of
Q-COMP as is the case for a worker in respect of an employer appeal under section 549(3)(a) of WCRA, it does not automatically follow that a person granted leave to appear under a different statute, namely section 320(2) IR Act, should be quarantined from disclosure obligations in the circumstances of this case. By that I am not suggesting that all persons who are granted leave to appear under section 320(2) IR Act should be subject to disclosure orders. Among other things, it will depend on the reasons for applying for leave, the terms upon which leave is granted, and the role and extent to which the person seeking leave intends to participate at trial. Counsel could not refer me to any authorities on this issue. In this court, there is scope for rule 96(2)(n) of the rules to apply.
· Section 320(2)(a) IR Act provides that an Industrial Magistrate is not bound by technicalities, legal forms or rules of evidence. I also note section 320(3) IR Act provides that this court should be governed by equity, good conscience and the substantial merits of the case having regard to, inter alia, the persons immediately concerned. I also note section 319 IR Act, which is located in the same Division and Part of the IR Act as section 320[14], no distinction is drawn between “party” and “a person ordered or permitted to appear” for the purposes of entitlement to representation[15]. Subsection 319(5) provides that “proceedings” in section 319 means proceedings under the IR Act or another act. This includes the WCRA. This further supports the view that the employer in this case should be treated as a party for the purposes of this application.
· As conceded by the employer, this application could have been made under Chapter 7 Part 2 UCPR[16] (non-party disclosure) by virtue of section 553 of WCRA without objection to jurisdiction or power to make such orders subject of course to the objections procedure under rules 245 to 247 UCPR.
· The trial is set down for 7 March 2011. Given the unavoidable delays in bringing this matter on for trial, the matter should proceed expeditiously with a minimum of further expense. Bringing a non party discovery application under Chapter 7 Part 2 of the UCPR now would only increase legal costs and may cause further delay.
[12] Paragraphs 17 to 21 submissions for the employer dated 20 August 2010;
[13] Paragraph 22 submissions for the employer dated 20 August 2010;
[14] Division 3 (Conduct of proceedings) Part 6 (Proceedings of court, commission, magistrates and registrar) in Chapter 8 (Industrial tribunals and registry) of IR Act;
[15] Section 319(1) in relation to general agents & ss 319(2)(c) for representation before an Industrial Magistrate; this is also reflected in Part 4 of the rules (Lawyers, agents and other representatives);
[16] Rules 242 to 249 UCPR;
Should Orders for Discovery be Made in this case?
Q-COMP outlined five stressors in support of the worker’s claim: see page 4 of
Q-COMP’s decision. They are (1) excessive workload (2) working 70 hours per week to fulfil expectations (3) being directed to take unlawful actions (4) being placed under undue and ongoing scrutiny and undue duress that no other manager was expected to endure at meetings and also made to do presentations that no other manager had to do (5) circumstances surrounding her termination of employment.
As to stressors (1) to (4), Q-COMP concluded either that the employer’s actions were reasonable or that the worker had not proven that the employers actions unreasonable. As to stressor (5), Q-COMP concluded that the termination was not “handled reasonably”. Having regard to the authorities on multiple stressor cases, Q-COMP concluded that the worker had not sustained an injury as defined because of section 32(5) of WCRA[17]. In appealing, the worker challenges those findings. In seeking leave to appear under section 320(2) IR Act, the employer framed the issues this way seemingly putting just about everything in issue in a de novo hearing in this court[18]:
The general case to be argued by [the employer] before the Court, ….is that any psychiatric or psychological injury [the worker] had that arose out of or in the course of her employment where her employment was a significant contributing factor to the injury, arose out of or in the course of reasonable management action taken in a reasonable way in connection with [the worker’s] employment or [the worker’s] expectation or perception of reasonable management action being taken against [the worker]. (footnotes omitted)
[17] Paragraph 2.8 submissions for the worker dated 18 February 2011;
[18] Paragraph 8 submissions for the employer dated 20 August 2010;
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 WCRA which departs from traditional notions of litigation conducted in a traditional adversarial way. The rules apply by virtue of section 553 of WCRA 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 554 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 the employer that the worker’s application is a fishing expedition and because there are no pleadings in these proceedings to define the issues, it acted reasonably in requesting particulars of the worker’s claim to be litigated in this court in order to identify relevant documents. I find this submission rather curious given the extent of the employer’s involvement in the matter to date. Further, it was submitted that if the employer wished to rely on a document at the hearing, it would be obliged to give it to the other side by force of section 554 of WCRA at least 10 days before the hearing and therefore overcomes any mischief, unfairness or injustice. On that last point, the obligation to disclose only arises if the employer here wishes to rely on it at trial. Needless to say that a decision to rely on a document in the sole possession of a party to the exclusion of the opposing party would no doubt be based on a forensic decision that it supports that party’s case. If, for example, it did not support that party’s case but tended to support the opposing party’s case, a forensic decision may be made not to rely on it in which case no obligation is enlivened under section 554, or for that matter, paragraph 5 of the consent order at paragraph [4] above. Section 554 does not avoid the necessity of discovery in the traditional sense. I think that submission defeats the real purpose of disclosure.
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. Generally, it is left to the Industrial Magistrate to determine under rule 96 of the rules. In the absence of the express constraints similar to those in the UCPR and for reasons set out in the affidavit and submissions in support of the application, I am of the view that minutes of committee meetings from 2 January 2006 to her last day of work on 22 August 2007 are documents that fall within the more liberal test described above i.e. they are documents that “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”. Those documents may contain matter about the worker or decisions about the worker leading up to her termination. It is not to the point that the employer has selected some minutes which have been provided to the worker. Proper disclosure should be undertaken on an objective basis. I do not accept that this is a fishing expedition and that the minutes should be disclosed. This is not a case requiring the employer to dredge through boxes and boxes of archives. There is a dearth of evidence before me as to the internal structures or systems of the employer but based on the evidence and submissions of the worker, the minutes from either or both committees i.e. the Caloundra Sub Branch RSL Services Club Inc or the RSL Sub Branch of the employer should be discovered that relate to the worker. One should not escape the obligation to discover documents based on fine distinctions in internal management structures that employers may choose to employ.
The worker’s personnel file should be disclosed. Such file, if properly kept, would ordinarily contain a range of documents including work performance in accordance with her contract of employment, performance appraisals (if any), any warnings, and any disciplinary action taken and the like. It was submitted for the employer that a copy of that file has already been given free of charge but now insists on payment of photocopy fees before releasing a second copy. In the interests of fairness I do not accept that as a valid reason in these proceedings for declining to provide a further copy of the file. I note that the worker had previous solicitors and that she is said to be suffering from a severe psychiatric condition. It has obviously gone astray. In that context, any remedy for recouping costs might be dealt with after a determination of the substantive matter on the merits. It is not disputed that the worker’s original personnel file is in the possession and control of the employer and not in the possession or under the control of the worker. The worker’s personnel file is clearly relevant and should be disclosed. In my view it satisfies the more stringent test of “relevance” akin to that applicable to the UCPR.
I am not satisfied on the sworn material before me that the results of an audit undertaken after the worker ceased work on 22 August 2007 should be disclosed. There is very little if anything to connect the purpose of the audit or the results of the audit with the issues in this case other than an assertion that after the worker was terminated, a Mr Terry Hamilton undertook the audit as to the “function of the Caloundra RSL”. The pure basis for connecting this to the present case is in the affidavit of Susan Joy Lewis where she deposes “I believe that this Audit report would confirm that the conduct of [the worker] was always exemplary prior to her termination”[23]. The basis for that belief is not stated. I note also that, while not sworn in evidence, Mr Merrell of counsel, undoubtedly upon instructions, submitted for the employer in court that the audit report is unrelated to anything to do with the worker. Based on the sworn material placed before me by the worker in this application, I conclude that the audit report should not be disclosed.
[23] Paragraph 35 affidavit of Susan Joy Lewis sworn 16 February 2011&exhibit “SJL 15”; see also paragraphs 38, 41, 44 & 48; and also paragraph 3.7 submissions for the worker;
The application for disclosure of the following documents is granted:
· The minutes of the meetings for the Caloundra Sub Branch RSL Services Club for the period 2 January 2006 to 22 August 2007;
· The worker’s personnel file.
Given that the trial is listed for 7 March 2011, the parties are to expedite these orders in order that the trial can proceed in a timely way without further delay.
Costs of this application are reserved.
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