Wylie v Workers' Compensation Regulator - [2021] QIRC 386

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION: PARTIES:	Wylie v Workers' Compensation Regulator [2021] QIRC 386 Wylie, Kenneth Andrew (Applicant) v Workers' Compensation Regulator (Respondent)
CASE NO:	WC/2021/65
PROCEEDING:	Application in existing proceedings
DELIVERED ON:	10 November 2021
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 Services Australia 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 Services Australia may be copied and provided to the Applicant upon request to the Industrial Registry.
CATCHWORDS:	INDUSTRIAL LAW - PROCEDURE - application in existing proceedings - Applicant seeks 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 Applicant to obtain a copy of the documents - consideration of whether the order sought should be made in the circumstances
LEGISLATION:	Industrial Relations Act 2016 (Qld) s 451 Service and Execution of Process Act 1992 (Cth) s 47, s 55 Industrial Relations (Tribunals) Rules 2011 (Qld) r 6, r 58, r 60, r 64B, r 64H, r 226
CASES:	Wallace v Workers' Compensation Regulator [2021] QIRC 277

Reasons for Decision

Background

On 11 May 2021, Mr Kenneth Wylie (the Appellant) filed an appeal against a decision of the Workers' Compensation Regulator (the Appeal).
At the request of the Workers' Compensation Regulator (the Respondent),[1] the Industrial Registrar issued a Form 32B - Attendance notice to produce directed at 'The Proper Officer, Services Australia and Information Release Branch, Legal Services Div' (the Notice).[2]
[1] Form 32 - Request for attendance notice, 24 June 2021.
[2] Form 32B - Attendance notice to produce, 24 June 2021.
The Notice sought production of:
A full and complete copy of the Medicare Patient and PBS Histories in written or electronic form for a five (5) year period immediately proceeding in receipt of this document pertaining to the appellant - Mr Kenneth Andrew Wylie (DOB 31/03/1981).[3]
[3] Ibid.
After reading the Form 4 - Application in existing proceedings filed by the Respondent on 28 June 2021, the Industrial Registrar granted the Respondent permission to inspect the documents that had been produced to the Industrial Registrar under the Notice. That order was made on 2 July 2021 pursuant to r 60(3)(b) of the Industrial Relations (Tribunals) Rules 2011 (Qld) (the Rules).
On 28 September 2021, Mr Wylie filed a Form 4 - Application in existing proceedings seeking an electronic copy of the documents produced under the Notice (the Application). Mr Wylie seeks a copy of the documents rather than inspection as he and his…

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 Wylie v Workers' Compensation Regulator

Details

AGLC: Wylie v Workers' Compensation Regulator [2021] QIRC 386
Case: [2021] QIRC 386
Decision Date: 10 November 2021

CaseChat Overview and Summary

Wylie was the applicant in an appeal before the Industrial Court of Queensland, contesting a decision related to workers' compensation. The central issue was whether the use of an Attendance notice to produce documents, rather than a Notice of non-party disclosure, constituted an abuse of process and whether an order could be made allowing Wylie to obtain a copy of the documents in question. The legal question was whether such an order could be made, considering the potential misuse of the Attendance notice to produce for non-party discovery.

The court examined whether the misuse of the Attendance notice to produce rendered the proceedings null and void or if it constituted an irregularity that could be rectified. It considered the principles set out in previous cases, including Wallace, which allowed for the declaration of such notices as effectual despite procedural irregularities. The court noted that under rule 226(1) of the Industrial Relations (Tribunals) Rules 2011, a failure to comply with the rules is an irregularity and does not render a proceeding null and void. The court found that, while there was misuse of the Attendance notice to produce, this did not invalidate the proceedings or the documents produced. Instead, it allowed the court to declare the notice effectual and grant an order to provide Wylie with a copy of the documents.

The court ordered that the documents produced by Services Australia under the Attendance notice to produce would be deemed effectual, as per rule 226(2)(d) of the Industrial Relations (Tribunals) Rules 2011. Furthermore, the court ruled that these documents could be copied and provided to Wylie upon request, in accordance with rule 226(2)(e) of the same rules. The court's decision upheld the integrity of the proceedings while addressing the procedural irregularity and ensuring Wylie had access to the necessary documents.

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 Services Australia 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 Services Australia may be copied and provided to the Applicant 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

In the circumstances of this Appeal, I will follow the reasoning in Wallace 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 produce to be effectual pursuant to r 226(2)(d) and will grant an order permitting that a copy of the documents be produced to Mr Wylie 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 Services Australia 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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