Smith v Workers' Compensation Regulator

Case [2025] QIRC 105

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION: Smith v Workers' Compensation Regulator [2025] QIRC 105
PARTIES:

Smith, Paul
(Appellant)

v

Workers' Compensation Regulator
(Respondent)
CASE NO: WC/2023/11
PROCEEDING: Application in existing proceedings
DELIVERED ON: 17 April 2025

DATE OF FINAL SUBMISSIONS:

HEARING DATE:

Appellant's written submissions filed on 15 April 2024

Appellant's revised submissions filed on 24 April 2024

Written submissions of the State of Queensland (Queensland Health, Metro North Hospital and Health Service) filed on 13 May 2024

Written submissions of Mapien filed on 24 May 2024

Appellant's citation list filed on 23 August 2024

Written submissions of the State of Queensland (Queensland Health, Metro North Hospital and Health Service) filed on 10 April 2025

7 August 2024
MEMBER: Knight IC

HEARD AT:

ORDERS:

Brisbane

1.   Within 14 days, the State of Queensland (Queensland Health) to produce to Mr Smith a copy of Attachment N of the Mapien Report (Part 2), containing v 1 of the State’s redactions.
CATCHWORDS: INDUSTRIAL LAW – APPLICATION IN EXISTING PROCEEDINGS – where applicant filed a notice of non-party disclosure – where nominated party objects to the notice of non-party disclosure – where applicant seeks a decision regarding objections pursuant to r 64G of the Industrial Relations (Tribunals) Rules 2011 (Qld)
LEGISLATION AND INSTRUMENTS:

Industrial Relations (Tribunals) Rules 2011 (Qld)   r 64B, r 64E, r 64F and r 64G

Workers’ Compensation and Rehabilitation Act 2003 (Qld) s 279, s 280, s 549
CASES:

Boorman v State of Queensland (Department of Justice and Attorney-General) [2021] QIRC 062

Church v Simon Blackwood (Workers' Compensation Regulator) [2015] ICQ 031

DP World Brisbane Pty Ltd v Rogers & Anor [2014] ICQ 010

E v The Friends' School Inc [2014] TASWRCT 36

Friends' School v Edmiston [2014] TASSC 68

Harris v Caladine (1991) 172 CLR 84

Mercantile Mutual Custodians Pty Ltd v Village/Nine Network Restaurant & Bars Pty Ltd [2001] 1 Qd R 276

Mullins v Workers' Compensation Regulator; Ex parte Drake International Pty Ltd (No. 2) [2020] QIRC 3

National Employers' Mutual General Association Ltd v Waind and Hill [1978] 1 NSWLR 372

Robson v Engineering Pty Ltd [1997] 2 Qd R 102

Rubin v Bank of Queensland Ltd [2010] QSC 175

Weston and Parer v State of Queensland (Department of Justice and Attorney General) (No. 4) [2016] QIRC 75

Xstrata Queensland Ltd v Santos Ltd [2005] QSC 323
APPEARANCES:

Dr S. Sherlock, agent for the Appellant in person

Mr B. McMillan of counsel, directly instructed by the Workers' Compensation Regulator

Mr J. McLean of counsel, directly instructed by Mapien Pty Ltd

Mr P. Zielinski of counsel, directly instructed by Mr B. Dwyer on behalf of McCullough Robertson, for the State of Queensland (Queensland Health)

Reasons for Decision

Introduction

  1. On 2 February 2023, Mr Paul Smith filed a Workers' Compensation Appeal ('the Appeal') against a decision made by the Workers' Compensation Regulator ('the Regulator') in the Queensland Industrial Relations Commission pursuant to s 549 of the Workers’ Compensation and Rehabilitation Act 2003 (Qld).

  2. On 5 April 2024, Dr Susannah Sherlock…

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AGLC
Smith v Workers' Compensation Regulator [2025] QIRC 105
Case
[2025] QIRC 105
Decision Date

CaseChat Overview and Summary

Smith, the applicant, brought an application against the Workers' Compensation Regulator, the respondent, in existing proceedings. The applicant filed a notice of non-party disclosure seeking the production of a document from a non-party, Dr. Sherlock. The respondent, Queensland Health, lodged an objection to the notice of non-party disclosure. The applicant sought a decision regarding the objections pursuant to r 64G of the Industrial Relations (Tribunals) Rules 2011 (Qld).

The legal issues the court had to decide related to the interpretation and application of rules 64B, 64E, and 64G of the Tribunal Rules. The applicant argued that the document in question was directly relevant to matters in issue in the proceedings, there was no other reasonably simple and inexpensive way of proving the matter, and therefore the notice of non-party disclosure was valid. The respondent contended that the notice of non-party disclosure was invalid due to the existence of alternative means to obtain the document. The court had to determine whether the non-party objection should be lifted, the notice varied, or the notice set aside.

The court found that the Mapien Report (Part 2) contained information relevant to the complaints made by Dr. Sherlock about the MNHHS Integrity Unit and its Director, Ms. Lisa Todd. The court noted that the applicant had identified specific stressors from Mr. Smith’s SOFC that the Mapien Report (Part 2) was directly relevant to. The court held that the applicant had satisfied the requirements of r 64B of the Tribunal Rules, and the respondent’s objection was accordingly set aside. The court ordered Queensland Health to produce a copy of Attachment N of the Mapien Report (Part 2) to the applicant within 14 days.

No additional orders were made by the court beyond the specified order regarding the production of the document.

Orders

Orders of the court

Brisbane

1. Within 14 days, the State of Queensland (Queensland Health) to produce to Mr Smith a copy of Attachment N of the Mapien Report (Part 2), containing v 1 of the State’s redactions.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

Relevantly, r 64G of the Tribunal Rules provides the Commission the power to make any order it considers appropriate about an objection made to an NNPD: 64G Industrial tribunal’s decision about objection(1)Within 7 days after service of an objection under rule 64E, the party may apply to the industrial tribunal for a decision about the objection.(2)The industrial tribunal may make any order it considers appropriate including, but not limited to, an order—(a) lifting the stay; or(b) varying the notice; or(c) setting aside the notice.(3)Unless the industrial tribunal otherwise orders, each party to an application to decide an objection must bear the party’s own costs of the application. Rule 64B of the Tribunal Rules confers upon the Complainant the right to require, through an NNPD, the production of a document that is, inter alia, directly relevant to a matter in issue in the proceedings. Specifically, it provides:64B Notice requiring non-party production(1)A party to a proceeding may, by notice of non-party production, require a person who is not party to the proceeding (the non-party) to produce to the party, within 14 days after service of the notice on the non-party, a document—(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(c)that is a document the non-party could be required to produce at the hearing for the proceeding.(2)The party may not require production of a document if there is available to the party another reasonably simple and inexpensive way of proving the matter sought to be proved by the document.(3)The non-party must comply with the notice but not before the end of 7 days after service of the notice on the non-party.(4)The requirement, under this rule, for a non-party to produce a document is not an ongoing duty. Rule 64E of the Tribunal Rules provides for an objection to the production of documents requested under a Form 29 and outlines: 64E Objection to production(1)The non-party, or a person who has been served with a copy of the notice under rule 64D, may object to the production of some or all of the documents mentioned in the notice within 7 days after its service or, with the leave of the industrial tribunal, a later time. Rule 64F of the Tribunal Rules provides that "Service of an objection under rules 64E operates as a stay of the notice." It is not in contention that the Mapien Report (Part 2) dealt with complaints made by Dr Sherlock in late 2019 and 2020 about the MNHHS Integrity Unit, and relevantly, its Director, Ms Lisa Todd, in relation to the adequacy of her management and assessment of those complaints.[8] [8] State's submissions filed 13 May 2024, [7]. Within the filed Form 29 – Notice of non-party disclosure,[9] Dr Sherlock has, in a table format, listed a series of stressors taken from Mr Smith’s SOFC about which the Mapien Report (Part 2) is said to be directly relevant, namely:[10][9] Form 29 – Notice of non-party disclosure, filed 5 April 2024, 3.[10] Ibid 8-9.

Ratio Decidendi

Legal Principle Established

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