Corney v Workers' Compensation Regulator [2023] QIRC 170

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION CITATION: Corney v Workers' Compensation Regulator [2023] QIRC 170 PARTIES: Corney, Steven (Appellant) v Workers' Compensation Regulator (Respondent) CASE NO: WC/2022/201 PROCEEDING: Objection to Notice of Non-Party Disclosure DELIVERED ON: 9 June 2023 MEMBER: HEARD AT: Hartigan DP On the papers ORDER: 1. Leave is granted pursuant to rule 64E(2) of the Queensland Industrial Relations (Tribunal) Rules 2011 (Qld) for Mr Corney to object to the Notice of Non- Party disclosure filed in the Industrial Registry on 1 March 2023. 2. Pursuant to rule 64G(2)(c) of the Queensland Industrial Relations (Tribunal) Rules 2011 (Qld) the Notice of Non-Party Disclosure is set aside. CATCHWORDS: INDUSTRIAL LAW – DISCLOSURE – Notice of Non-Party Disclosure –whether the Appellant is an affected party – Appellant is an affected party – leave is granted to object – Notice of Non-Party Disclosure set aside LEGISLATION: Industrial Relations (Tribunals) Rules 2011 (Qld), r 64B, r 64C, r 64D, r 64E and r 64G -- 1 of 9 -- 2 CASES: Uniform Civil Procedure Rules 1999 (Qld), r 245 CSR Ltd v Casaron Pty Ltd (2003) QSC 126 Reasons for Decision Introduction [1] The Workers' Compensation Regulator ('the Regulator') filed a Notice of Non-Party Disclosure ('the NNPD'), pursuant to r 64B of the Industrial Relations (Tribunals) Rules 2011 (Qld) ('the Tribunal Rules') requiring that the Townsville Family Medical Centre disclose information relating to Mr Steven Corney ('the Appellant'). [2] Mr Corney, the Appellant in the substantive proceedings which is an appeal of the Regulator's decision to reject Mr Corney's application for workers' compensation, objects to the NNPD. [3] By written correspondence to the Commission, on 8 March 2023, the Regulator contended that Mr Corney was not a person affected by the NNPD and was not able to object to it being issued. I subsequently listed the matter for mention and issued directions with regard to the parties filing written submissions. Those directions have been complied with by the parties. Background [4] During the period when the circumstances giving rise to his application for compensation occurred, Mr Corney was employed as an Enrolled Nurse by the Townsville Hospital and Health Service ('the THHS'). Mr Corney claims to have sustained a psychiatric injury that arose out of, or in the course of his employment. [5] On 20 June 2022, Mr Corney lodged an application for compensation with WorkCover Queensland for a psychiatric injury. [6] By letter dated 11 August 2022, WorkCover advised Mr Corney that his application for compensation had been rejected. [7] On 14 December 2022, Mr Corney lodged with the Industrial Registrar a Notice of Appeal of the Regulator's decision dated 18 November 2022 rejecting Mr Corney's application for compensation in accordance with s 32 of the Act. The Notice of Non-Party Disclosure – Townsville Family Medical Centre [8] By Notice of Non-Party Disclosure filed by the Regulator, Townsville Family Medical Centre ('the Medical Centre') was required to produce the following documents: -- 2 of 9 -- 3 No. Date Description 1 Various A full and complete copy of all records relating to Steven Corney (DOB:22/01/1971) including but not limited to consultation and/or treatment notes, patient history, mental health care plans, medical certificates, reports, referrals, letters and other correspondence or documentation (whether handwritten or typed, in hardcopy or electronic format). [9] In the NNPD, the Regulator contends that the documents are relevant in that they will assist in determining the issue of whether Mr Corney sustained a compensable injury pursuant to s 32 of the Act. [10] It is apparent from the above that the NNPD does not particularise the request for documents by reference to a period of time of records relating to the claimed injury. Mr Corney states that he has been attending the Medical Centre for approximately 16 years. Consequently, the NNPD as currently drafted would require production of documents over the period of 16 years. The Appellant's objection [11] On 6 March 2023, Mr Corney filed in the Industrial Registry, and served on the Regulator a Notice of Objection ('the Notice') to the NNPD. In the Notice, Mr Corney relies on the following grounds in support of his objection, as relevantly summarised: (1) that Mr Corney is an affected person; (2) that the Regulator is seeking further confidential medical records that fall ''outside of what has previously been provided'' to the Regulator; and (3) that the request for further confidential medical records should not be accepted as the issue to be determined is whether management action taken against Mr Corney was reasonable and not whether he sustained an injury. Relevant legislative framework [12] The procedure for issuing NNPD's are dealt with in Part 2, Division 2, Subdivision 7A of the Tribunal Rules. [13] Relevantly, r 64B of the Tribunal Rules provides that a party to a proceeding may, by NNPD, require a person who is not a party to the proceeding ('the non-party'), to produce to the party, a document directly relevant to the matter in issue in the proceeding and in the possession or under the control of the non-party and that it is a document that a non- party could be required to produce at the hearing for the proceeding. -- 3 of 9 -- 4 [14] Rule 64B is in the following terms: 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. [15] Rule 64C of the Tribunal Rules provides that, a NNPD must state the matter in issue in the proceeding about which the document sought is directly relevant, be in the approved form and be served on the non-party. [16] Rule 64D of the Tribunal Rules provides that the party must serve a copy of the NNPD on a person, other than the party and non-party, about whom the information is sought by the notice, and, if the party knows the non-party does not own a document required to be produced, the owner of the document. The name and address of anyone who must be served under r 64D must be written on the notice and all copies of the notice.1 [17] Rule 64E of the Tribunal Rules identifies how an objection to the production of documents may be made as follows: 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. (2) Also, another person who would be affected by the notice and who has not been served may object to the production of some or all of the documents mentioned in the notice at any time with the leave of the industrial tribunal. (3) The objection must— (a) be written; and (b) be served on the party; and 1 Tribunal Rules, r 64D(5). -- 4 of 9 -- 5 (c) if the person objecting (the objector) is not the non-party—be served on the non-party; and (d) clearly state the reasons for the objection. (4) The reasons may include, but are not limited to, the following— (a) if the objector is the non-party—the expense and inconvenience likely to be incurred by the non-party in complying with the notice; (b) the lack of relevance to the proceeding of the documents mentioned in the notice; (c) the lack of particularity with which the documents are described; (d) a claim of privilege; (e) the confidential nature of the documents or their contents; (f) the effect production would have on any person; (g) if the objector was not served with the notice—the fact that the objector should have been served. [18] An objection stays the operation of the notice.2 [19] Rule 64G of the Tribunal Rules provides that within seven days after service of an objection under r 64E, the party may apply to the industrial tribunal for a decision about the objection. Rule 64G provides that the Commission may make an order it considers appropriate, but not limited to, an order: (a) lifting the stay; or (b) varying the notice; or (c) setting aside the notice. Is Mr Corney a party who has standing to object to the NNPD? [20] The Regulator contends that only a party who can object to the issuing of the NNPD is the Medical Centre. To support its contention, the Regulator submits that Mr Corney is not a person ''affected'' by the NNPD pursuant to r 64D of the Tribunal Rules. [21] The Regulator submits that Mr Corney is precluded from being a person who is able to make an objection to the NNPD ''as he is not the nominated party, an affected party or another person who would be affected'' by the NNPD. [22] The Regulator notes in its submissions that the Medical Centre does not object to providing the documents sought in the NNPD. [23] In his Notice of Objection, Mr Corney submits that he is a person affected by the NNPD because the Regulator is seeking his confidential medical information. 2 Tribunal Rules, r 64F. -- 5 of 9 -- 6 [24] Rule 64E of the Tribunal Rules, is in similar terms to r 245 of the Uniform Civil Procedure Rules 1999 (Qld) (''UCPR''). [25] In CSR Ltd v Casaron Pty Ltd,3 Mackenzie J, when considering the application of r 245, granted leave to a party (pursuant to r 245(2) of the UCPR) to object to the production of documents sought by non-party disclosure. His Honour considered the standing of a party to object to a NNPD as follows: ''As to standing, UCPR 245(2) seems to be intended to ensure that a person who may be affected by a notice has the right to object to the production of documents mentioned in the notice if the Court gives leave to do so. In my view, consistently with the intent of the rule apparent from rule 245(4), it would extend to a party if the notice required production of documents relating to them that went beyond what may be required to be produced under the rules. I would only make two general observations. One is that the right of a party to object to a notice given by another party to a non-party who may or may not be disposed to object is subject to leave being given and must be closely confined to ensure that it does not become a standard ploy in litigation. It is not the purpose of giving a right to object to a party to enable that party to quarantine evidence which may otherwise be admissible for the purpose of the other party establishing part of its case''. [26] Rule 64E(2) of the Tribunal Rules applies, inter alia, to another person who would be affected by the NNPD. The non-party disclosure sought by the Regulator is for a full and complete copy of all medical records relating to seemingly all attendances at the Medical Centre by Mr Corney. Clearly, Mr Corney's medical documents are a class of document that relate to Mr Corney. I consider that he is a person who would be affected by the NNPD. [27] Consequently, I grant leave, pursuant to r 64E(2) of the Tribunal Rules for Mr Corney to object to production of the medical records sought in the NNPD as he is a person affected by the NNPD. Mr Corney's objection [28] Mr Corney objects to the disclosure requested in the NNPD on the following basis: (1) relevance and lack of particularity of the documents described in the NNPD; and (2) confidential nature of the documents sought. [29] I will determine the objection in the categories set out above. 3 (2003) QSC 126. -- 6 of 9 -- 7 Relevance and lack of particularity of the documents described in the NNPD [30] Rule 64B(1)(a) of the Tribunal Rules provides that a party can only request documents ''directly relevant to a matter in issue in the proceedings''. Rule 64B of the Tribunal Rules provides the following: 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. … [31] Rule 64E(4)(c) of the Tribunal Rules relevantly provides: 64E Objection to production (4) The reasons may include, but are not limited to, the following— … (c) the lack of particularity with which the documents are described; … [32] Mr Corney submits that the documents sought in the NNPD ''fails to define documents only relevant to the current matter'' as the documents sought relate to 16 years of his medical history which ''have nothing to do with the current matter''. [33] If the Commission were to set aside his objection to the NNPD, Mr Corney submits that the following would occur: Allowing this request I believe would be condoning a Phishing expedition by the WCR as they have now indicated that the applicant has suffered an injury that had been accepted as occurring by WorkCover and the WCR Appeal. [34] Firstly, the onus rests on Mr Corney to establish that his application for compensation is one for acceptance. The hearing is a hearing de novo meaning that the Commission will hear the matter afresh. In the hearing, the Regulator is not bound by its previous position nor is it bound by the decision of WorkCover. [35] Consequently, it is not known at this stage what position the Regulator will take and whether it accepts that Mr Corney sustained, inter alia, a personal injury. [36] The Regulator submits that the medical records sought by the Regulator are directly relevant to determining whether Mr Corney suffered an ''injury'' pursuant to s 32 of the Act. In support of its position, the Regulator relies on Mullins v Workers’ Compensation -- 7 of 9 -- 8 Regulator; Ex parte Drake International Pty Ltd (No. 2)4 where Commissioner Black considered the concept of relevance as follows: In Xstrata Queensland Ltd v Santos Ltd & Ors, McMurdo J was asked to consider the distinction between the test of relevance under the general law and the requirement of the Uniform Civil Procedure Rules 1999 (Qld) (UCRP) which is that only directly relevant documents must be disclosed. In this respect, McMurdo J said that ''a document is directly relevant in this sense only if it tends to prove or disprove an allegation in issue in the proceedings''.5 [37] To further support its position, the Regulator also relies on Robson v REB Engineering Pty Ltd6 where Demack J considered the term ''directly relevant'' as follows: My opinion is that the word ''directly'' should not be taken to mean that which constitutes evidence as distinct from circumstantial evidence. Rather, ''directly relevant'' means something which tends to prove or disprove the allegation in issue.7 [38] Clearly, in making the application for compensation and in filing this appeal, Mr Corney contends that he suffered an injury within the meaning of the Act and further that the injury was a psychiatric or psychological injury and did not arise out of reasonable management action taken in a reasonable way. Relevantly, the Notice of Appeal appealing the Regulator's decision of 18 November 2022 states that ''Mr Corney sustained a personal injury of a psychiatric nature due to unfair and unjust management action and bullying in regard to an alleged Breach of Confidentiality''. [39] Accordingly, whilst the Regulator's position is unknown at this early stage of the proceeding, it is clear, based on the Notice of Appeal, that an issue in the proceeding will be whether Mr Corney sustained an injury within the meaning of the Act. That inquiry will be informed by Mr Corney's contention that he sustained a psychiatric or psychological injury that arose out of or in the course of his employment, that the employment is a significant contributing factor to the injury and that the injury did not arise out of or in the course of reasonable management action taken in a reasonable way. That injury is the injury which is the subject of the application for compensation. [40] Whilst I accept that medical records from the Medical Centre may be relevant to the inquiry referred to in paragraph [39] above, the NNPD currently formulated does not do so with any particularity. The NNPD drafted by the Regulator is broad in scope, and on Mr Corney's submissions (which I accept), would encompass his attendances on the Medical Centre over a period of some 16 years. There is currently no material before the Commission which would support such a broad ranging and wholesale disclosure of Mr Corney's medical records over such an extensive period of time. The Regulator did not make any submissions with respect to seeking to vary the NNPD to provide greater particularity in circumstances where the objection may be upheld. 4 [2020] QIRC 003. 5 Ibid [28]. 6 [1997] 2 Qd R 102. 7 Ibid 105. -- 8 of 9 -- 9 [41] For these reasons, I consider that the unparticularised request for all of Mr Corney's medical records (which encompass a period of some 16 years) contained in the NNPD should be set aside as the Regulator has failed to establish the relevance of such a broad ranging request for medical documents. Such a conclusion is also supported by Mr Corney's reliance on 64E(4)(c) of the Tribunal Rules as the NNPD lacks particularity and consequently, the NNPD should be set aside for not being sufficiently descriptive. [42] Given my findings above, and that I have formed a view that the NNPD should be set aside, it is unnecessary for me to address Mr Corney's additional objections to the NNPD. Order [43] Accordingly, I make the following order: 1. Leave is granted pursuant to rule 64E(2) of the Queensland Industrial Relations (Tribunal) Rules 2011 (Qld) for Mr Corney to object to the Notice of Non- Party disclosure filed in the Industrial Registry on 1 March 2023. 2. Pursuant to rule 64G(2)(c) of the Queensland Industrial Relations (Tribunal) Rules 2011 (Qld) the Notice of Non-Party Disclosure is set aside. -- 9 of 9 --