Wallace v Workers' Compensation Regulator - [2021] QIRC 277

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION: PARTIES:	Wallace v Workers' Compensation Regulator [2021] QIRC 277 Wallace, Vicki Ann (Appellant) v Workers' Compensation Regulator (Respondent)
CASE NO:	WC/2020/114
PROCEEDING:	Application in existing proceedings
DELIVERED ON:	11 August 2021
MEMBER	Hartigan 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 the documents by the Department of Human Services produced pursuant to an Attendance Notice for Production on 1 March 2021 instead of a Notice of Non-Party Production 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 the Department of Human Services pursuant to the Attendance Notice for Production may be copied by the Workers' Compensation Regulator.
CATCHWORDS:	INDUSTRIAL LAW - QUEENSLAND - PROCEDURE - where application in existing proceedings by the Respondent to copy documents produced under an Attendance Notice to Produce - where Industrial Relations (Tribunals) Rules 2011 do not make provisions for copying documents produced under an Attendance Notice to Produce - whether the Commission can rely on s 451 of the Industrial Relations Act 2016 to grant the order - where the use of an Attendance Notice to Produce for obtaining non-party discovery is potentially an abuse of process - where use of wrong procedure does not amount to a nullity – where declaration is made that the production of documents under the Attendance Notice to Produce be effectual – where order is granted to Respondent to copy documents.
LEGISLATION:	Industrial Relations Act 2016 (Qld), s 451, s 551, Industrial Relations (Tribunals) Rules 2011 (Qld), r 5, r 6, r 58, r 59, r 60, r 60A, r 64B, r 64C, r 64D, r 64E, r 64G, r 64H, r 226 Workers' Compensation and Rehabilitation Act 2003 (Qld), s 144A, s 144B
CASES:	Adler v Khoo [2010] QCA 360 Collie v Edmunds [2006] QSC 343 Goodwin v Phillips (1908) 7 CLR 1 Kelsey v Logan City Council & Ors [2018] QIRC 108 Leighton Contractors Pty Ltd v Western Metals Limited [2001] 1 Qd R 261 Quinlan v Rothwell [2002] 1 Qd R 647

Reasons for Decision

This is an application made in an existing proceedings relating to an appeal of a decision of the Workers' Compensation Regulator ("the Regulator"). In the proceedings, both parties seek to obtain copies of the Appellant's ("Ms Wallace") Medicare and PBS records[1] ("the documents") which have been produced in accordance with an Attendance Notice to Produce.
[1] The description of the documents requested in the Attendance Notice to Produce was: "A full and complete copy of the Medicare Patient and PBS Histories in written or electronic form for a ten (10) year period immediately preceding receipt of this document pertaining to the Appellant - Vicki Ann Wallace (DOB 01/03/1957."
On 4 March 2021, the Regulator applied for leave to inspect and take copies of the documents which were produced in accordance…

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 Wallace v Workers' Compensation Regulator

Details

AGLC: Wallace v Workers' Compensation Regulator [2021] QIRC 277
Case: [2021] QIRC 277
Decision Date: 11 August 2021

CaseChat Overview and Summary

In the case of Wallace v Workers' Compensation Regulator, the Workers' Compensation Regulator sought to obtain copies of documents produced under an Attendance Notice to Produce by the Department of Human Services. The matter was before the Queensland Industrial Relations Commission, which needed to determine whether it could rely on s 451 of the Industrial Relations Act 2016 to grant the order, and whether the use of an Attendance Notice to Produce for obtaining non-party discovery was potentially an abuse of process. The court was also required to decide whether the use of the wrong procedure amounted to a nullity and whether a declaration should be made that the production of documents under the Attendance Notice to Produce be effectual.

The court considered the unique circumstances of the case, including the substantial compliance with the relevant safeguards and the relevance of the documents to the appeal. The court determined that the failure to comply with the Tribunal Rules did not render the production of the documents a nullity, and although it may amount to an abuse of process, it decided not to set aside the production of the documents. Instead, the court issued a declaration that the production of the documents be effectual and granted orders permitting the Regulator to copy the documents produced.

The court held that the safeguards in r 64D of the Tribunal Rules had been substantially complied with, and the Regulator's submission as to the relevance of the documents was accepted. The court also concluded that the use of an Attendance Notice to Produce for obtaining non-party discovery was potentially an abuse of process, but it did not amount to a nullity. The court issued orders that the documents produced by the Department of Human Services be permitted to be copied, and the Regulator may seek to have the documents copied upon request made to the Industrial Registry. The court's decision provides guidance on the use of Attendance Notices to Produce and the consequences of non-compliance with the Tribunal Rules.

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 the documents by the Department of Human Services produced pursuant to an Attendance Notice for Production on 1 March 2021 instead of a Notice of Non-Party Production 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 the Department of Human Services pursuant to the Attendance Notice for Production may be copied by the Workers' Compensation Regulator.

Background

Background to the litigation

Accordingly, in this application, the Regulator has sought orders, relying on the Commissions' general powers under s 451(2) of the Industrial Relations Act 2016 ("IR Act"), in the following, alternative, terms: 1) pursuant to s 451(2) of the IR Act, that the Industrial Registry provide to the Applicant copies of any material disclosed by Services Australia/the Department of Human Services to the Queensland Industrial Relations Commission under the Form 32B – Attendance Notice to Produce issued on 5 January 2021; and2) in the alternative, pursuant to s 451(2) of the IR Act, the Department of Human Services is ordered to provide to the Applicant directly, a full and complete copy of the Medicare Patient and PBS histories in written or electronic form for a 10-year period immediately preceding the date of receipt of this order pertaining to the appellant - Vicki Ann Wallace (DOB 01/03/1957). Relevant background As referred to above, the issue has arisen in the course of an appeal lodged by Ms Wallace, who made an application for compensation with Workcover on or about 30 April 2019, for a lower back injury sustained on 9 April 2019. On 9 January 2020, Workcover provided reasons for a decision in which it confirmed a decision to terminate Ms Wallace's entitlement to compensation pursuant to ss 144A and 144B of the Workers' Compensation and Rehabilitation Act 2003 (Qld) ("the WCR Act"). Ms Wallace lodged an application for review of that decision on 1 April 2020. By a review decision dated 17 July 2020, containing written reasons for the decision dated 29 July 2020, the Regulator's review unit confirmed the decision of Workcover to terminate Ms Wallace's entitlement to compensation from 9 January 2020, in accordance with ss 144A and 144B of the WCR Act. It is from that decision that Ms Wallace has lodged the appeal to the Queensland Industrial Relations Commission on 27 August 2020. The Regulator submits, and I accept (for the purpose of this application only), that one of the issues in the appeal, is whether Ms Wallace had a pre-existing condition which was aggravated by the event on 9 April 2019, and the extent of that aggravation. Relevantly, both parties have sought to obtain copies of Ms Wallace's Medicare and PBS records as part of their respective preparation for the appeal. I accept the submissions made by Regulator that it is likely that those records may lead to further lines of inquiry for both parties when, and if, they are provided. The Regulator states that if orders are granted in the terms sought, then it will disclose any copy of the documents which is provided to it to Ms Wallace's legal representatives during the course of disclosure. On 5 May 2021, I issued directions that, inter alia, a copy of the application, any supporting material and the notice of listing for the hearing of the application, be served on the Department of Human Services. The Department of Human Services did not attend the hearing of the application, nor has it responded in any other form to the application.Relevant legislation

Evidence

Evidence Before The Court

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Decision

Reasons for decision

In addition to the relevant circumstances of this matter referred to in paragraph [60] above, I am satisfied that in this proceeding the safeguards in r 64D of the Tribunal Rules have been substantially complied with and I accept the Regulator's submission as to the relevance of the documents. I will issue orders that the documents produced by the Department of Human Services be permitted to be copied. Given that the documents were produced to the Industrial Registry, the Regulator may seek to have the documents copied upon request made to the Industrial Registry.Conclusion For the foregoing reasons, I have concluded that the request for production of the documents from the Department of Human Services by way of an Attendance Notice to Produce, rather than a Notice of Non-Party Production to be a failure to comply with the Tribunal Rules. Pursuant to r 226(1) of the Tribunal Rules, such a failure to comply with the Tribunal Rules is an irregularity and does not of itself render the production of the documents a nullity. Whilst such non-compliance my amount to an abuse of process and the production of the documents is liable to be set aside, I have determined not to do so on this occasion due to the unique circumstances giving rise to the application. Instead, I intend to issue a declaration that the production of documents be effectual, and grant orders permitting the Regulator to copy the documents produced. Orders I issue the following orders:1. Pursuant to r 226(2)(d) of the Industrial Relations (Tribunals) Rules 2011 (Qld), I declare that the production of the documents by the Department of Human Services produced pursuant to an Attendance Notice for Production on 1 March 2021 instead of a Notice of Non-Party Production 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 the Department of Human Services pursuant to the Attendance Notice for Production may be copied by the Workers' Compensation Regulator.

Ratio Decidendi

Legal Principle Established

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