Atkinson v Workers' Compensation Regulator [2023] QIRC 122

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION CITATION: PARTIES: Atkinson v Workers' Compensation Regulator [2023] QIRC 122 Atkinson, Sandra (Appellant) v Workers' Compensation Regulator (Respondent) CASE NO: WC/2022/126 PROCEEDING: Workers' Compensation Appeal – Application in existing proceedings DELIVERED ON: 4 May 2023 MEMBER: HEARD AT: ORDERS: McLennan IC On the papers 1. Pursuant to r 64H(2) of the Industrial Relations (Tribunals) Rules 2011, BHP Coal Pty Ltd is ordered to produce item nos. 8, 11, 26 and 27 of the Form 29 Notice(s) of non-party disclosure filed 24 November 2022. 2. BHP Coal Pty Ltd is ordered to comply with Order 1 within 21 days of the release of this Decision. 3. The Form 4 Application in existing proceedings filed 20 March 2023 is dismissed. CATCHWORDS: WORKERS' COMPENSATION – DISCLOSURE – notice of non-party disclosure – application seeking compliance order – where incorrect entity listed on Notice – where correct entity provided some documentation – where correct entity is -- 1 of 11 -- 2 LEGISLATION: CASES: attempting to locate documentation – whether compliance order should be made Industrial Relations (Tribunals) Rules 2011 (Qld) r 64B, r 64E, r 64F, r 64G, r 64H Workers' Compensation and Rehabilitation Act 2003 (Qld) s 32 House v The King (1936) 55 CLR 499 Reasons for Decision Background [1] On 2 August 2022, Ms Sandra Atkinson (the Appellant) filed an appeal against a decision of the Workers' Compensation Regulator (the Respondent) dated 7 July 2022. The Respondent had decided to confirm the decision of BHP Group Limited to reject the Appellant's application for compensation in accordance with s 32 of the Workers' Compensation and Rehabilitation Act 2003 (Qld) (the Act). [2] On 2 August 2022, the Industrial Registrar issued a Directions Order with respect to the disclosure of documents. Following the conclusion of that Directions Order, the Appellant filed several Form 29 – Notices of non-party disclosure (Form 29). [3] At the request of the Appellant, the Industrial Registry issued sealed copies of the following Form 29s: • Form 29 dated 24 November 2022 nominating "Specialist Employee Relations, BHP Pty Ltd" and listing "Head of Engineering, BHP Coal" as an affected party; • Form 29 dated 24 November 2022 nominating "Specialist Employee Relations, BHP Pty Ltd" and listing "Head of Engineering, BHP Coal" and "Inspector of Mines (Coal), Resources Safety and Health Queensland" as affected parties; and • Form 29 dated 24 November 2022 nominating "Charlotte Dignan, MinterEllison" and listing "Head of Engineering, BHP Coal Pty Ltd" as an affected party. [4] On 24 January 2023, MinterEllison on behalf of BHP Pty Ltd (BHP PL) and BHP Coal Pty Ltd (BHP Coal) provided correspondence outlining that: • no documents are held by BHP PL relating to the Appellant or the Peak Downs mine; • BHP Coal is the Appellant's employer; and • in anticipation that the Form 29 will be directed to the correct BHP entity, pursuant to r 64E of the Industrial Relations (Tribunals) Rules 2011 (Qld) (the Rules) – BHP -- 2 of 11 -- 3 Coal will object to the production of some of the documents sought for a range of reasons. (the 24 January 2023 Letter). [5] At the request of the Appellant, the Industrial Registry issued further sealed copies of the following Form 29s: • Form 29 dated 3 February 2023 nominating "BHP Coal c/ of MinterEllison, Charlotte Dignan" and listing "Head of Engineering, BHP Coal Pty Ltd" as an affected party; and • Form 29 dated 7 February 2023 nominating "BHP Coal c/ of MinterEllison, Charlotte Dignan" and listing "Head of Engineering, BHP Coal Pty Ltd" as an affected party. [6] On 13 February 2023, the Appellant filed a Form 4 – Application in existing proceedings seeking an order that BHP Coal provide the Appellant with the following documents: − Performance improvement plan policies and procedures, BHP has advised that no such document exists. Can this be confirmed. − Position description for Specialist Governance and Technical Stewardship − Engineering organizational structure including competencies, roles and responsibilities − Mobile Crib Tie Downs MP email dated 20 April 2020 The appellant has provided additional information and evidence to the respondent on the 30/01/2023 to assist in locating: − Medical Declaration dated October 2019 (the 13 February 2023 Application) [7] On 15 February 2023, I issued a Directions Order requiring submissions from the Appellant, Respondent and BHP Coal with respect to the 13 February 2023 Application. [8] Then, at the request of the Appellant, the Industrial Registry issued sealed copies of the following Form 29: • Form 29 dated 13 March 2023 nominating "BHP Coal c/ of MinterEllison, Charlotte Dignan" and listing "Head of Engineering, BHP Coal" as an affected party. [9] On 20 March 2023, the Appellant filed a Form 4 – Application in existing proceedings seeking an order that BHP Coal provide the Appellant with "Mine Records" (the 20 March 2023 Application). [10] On 22 March 2023, I issued a Directions Order requiring submissions from the Appellant, Respondent and BHP Coal with respect to the 20 March 2023 Application. -- 3 of 11 -- 4 [11] Then, at the request of the Appellant, the Industrial Registry issued a sealed copy of the following Form 29: • Form 29 dated 11 April 2023 nominating "BHP Coal c/ MinterEllison, Charlotte Dignan" and listing "Head of Engineering, BHP Coal Pty Ltd" as an affected party. Relevant provisions [12] Rule 64B(1) of the Industrial Relations (Tribunals) Rules 2011 (Qld) (the Rules) provides that a party to a proceeding may require a person who is not party to the proceeding to produce a document that is: (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. [13] Rule 64E of the Rules provides for objection to production of documents requested under a Form 29 and outlines: (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. … (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. [14] Rule 64F of the Rules provides that "Service of an objection under rules 64E operates as a stay of the notice." [15] Rule 64G outlines the party's right to apply for a decision about the objection as follows: (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. -- 4 of 11 -- 5 (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. … [16] Rule 64H of the Rules provides the following (emphasis added): (1) Unless the operation of a notice is stayed, and subject to any order under rule 64G(2), the non-party must produce the document specified in the notice for inspection by the party at the place of business of the non-party, or the non-party’s lawyer, within ordinary business hours or at another place or time agreed by the party and the non-party. (2) If the non-party does not comply with subrule (1), the party may apply to the industrial tribunal who may order compliance and make another order the industrial tribunal considers appropriate. [17] The question of whether to order compliance is fundamentally an exercise of discretion. Such an exercise must be undertaken judicially and according to the rules of reason and justice, nor arbitrarily or capriciously or according to private opinion.1 The Form 29s [18] The Appellant indicated she served the Form 29s subject of the 13 February 2023 Application on 24 November 2022. In the 24 January 2023 Letter, BHP advised that the Appellant had incorrectly nominated BHP PL rather than BHP Coal on the relevant Form 29s. BHP Coal advised that "inquiry and search will be made by the correct BHP entity and documents produced – assuming they can be found – once an appropriately drawn and directed NNPD is served" with respect to some of the requested documents. [19] Despite those comments, in response to the 13 February 2023 Application - BHP Coal submits that, "As detailed in correspondence sent to the QIRC on 24 January 2023, our client did not dispute the relevancy of the documents. It was confirmed that our client would search for these documents and they would be produced if they could be located." [20] Rule 226 of the Rules provides: (1) 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. (2) If there has been a failure to comply with these rules, the court, the commission, a magistrate or the registrar may— (a) set aside all or part of the proceeding; or (b) set aside a step taken or order made in the proceeding; or (c) declare a document or step taken to be ineffectual; or 1 House v The King (1936) 55 CLR 499, [2]. -- 5 of 11 -- 6 (d) declare a document or step taken to be effectual; or (e) make another order that could be made under these rules; or (f) make another order dealing with the proceeding generally as the court, commission, magistrate or registrar considers appropriate. [21] I note that BHP Coal had provided the Appellant with some documents despite the incorrect name being listed on the relevant Form 29s and advised they would continue searching for others. Notably also, BHP PL and BHP Coal are represented by the same law firm in this matter and BHP Coal was listed on the relevant Form 29s albeit as an "affected party". For those reasons and in the interest of an expeditious resolution – pursuant to r 226(2)(f) of the Rules, I will deal with this proceeding as though the Form 29s nominated the correct entity - BHP Coal. However, out of fairness to BHP Coal, I will only consider ordering compliance with respect to the documents that BHP Coal do not object to producing. [22] Furthermore, as BHP PL / BHP Coal did not object to the relevant Form 29s within 7 days after service – which I appreciate may be due to the incorrect entity being listed – I do not consider that the 24 January 2023 Correspondence stays the Form 29s pursuant to r 64F of the Rules. Therefore, I will consider whether or not I should order compliance under r 64H(2) of the Rules. The 13 February 2023 Application [23] Originally the Appellant sought that BHP Coal provide the following documents in the 13 February 2023 Application: − Performance improvement plan policies and procedures, BHP has advised that no such document exists. Can this be confirmed. − Position description for Specialist Governance and Technical Stewardship − Engineering organizational structure including competencies, roles and responsibilities − Mobile Crib Tie Downs MP email dated 20 April 2020 The appellant has provided additional information and evidence to the respondent on the 30/01/2023 to assist in locating: − Medical Declaration dated October 2019 [24] Within submissions filed on 1 March 2023, BHP Coal reiterated they do not dispute the relevancy of the documents. BHP Coal confirmed they would search for and produce the documents if the documents could be located. I will turn now to consider each requested document. Performance improvement plan policies and procedures [25] The Appellant listed "Relevant policies as current 2019. FFW, PPI, PIP" as item no. 25 in a Form 29 filed on 24 November 2022 and issued by the Industrial Registry on 25 November 2022. -- 6 of 11 -- 7 [26] In the 13 February 2023 Application, the Appellant sought "Performance improvement plan policies and procedures, BHP has advised that no such document exists. Can this be confirmed." [27] In the 24 January 2023 Letter, BHP Coal advised the Appellant they "have located PDM Fitness For Work – Physical and Psychological Impairment (PPI) Management Plan version 1H (9 September 2017)." Further, BHP Coal submits they sent correspondence to the Appellant on 3 February 2023 confirming there was no PIP policy. [28] Pursuant to r 64B of the Rules, a non-party is only required to produce a document that is "in the possession or under the control of the non-party". BHP Coal has claimed the PIP policy does not exist. I accept this to be the case because BHP Coal has already accepted and provided the Appellant with much of the requested information. Further, within her written submissions, the Appellant does not appear to contest that the PIP policy does not exist, rather she merely sought confirmation that was the case. [29] It seems unlikely that BHP Coal would go to the effort of contesting further documentation rather than provide it if available. I find that BHP Coal does not possess the requested documentation and therefore an order of compliance would be futile. Position description [30] The Appellant listed "Role description Sandra Atkinson – current as 2019" as item no. 26 in a Form 29 filed on 24 November 2022 and issued by the Industrial Registry on 25 November 2022. [31] In the 13 February 2023 Application, the Appellant specifically sought "Position description for Specialist Governance and Technical Stewardship". [32] BHP Coal submits that they have been unable to locate the position description as at 2019/2020. However, they did disclose the "Specialist Governance & Technical Stewardship KPT document which outlines the core functional accountabilities of the role". The Appellant "noted" this in her reply submissions. [33] BHP Coal have conceded the relevance of the role description sought by the Appellant. Although BHP Coal submit they have been unable to locate the document, that is not a submission that it is not in their possession nor that the document does not exist. Rather, it appears that the document may be in their possession and discoverable through further investigation. [34] On that basis, I will make an order pursuant to r 64H(2) of the Rules requiring that BHP Coal produce item no. 26 in the Form 29 filed on 24 November 2022 – including further and broader investigation into BHP Coal records to locate the document within 21 days of release of this Decision. -- 7 of 11 -- 8 Engineering organisational structure [35] The Appellant listed "Engineering organizational structure, including competencies, roles and responsibilities" as item no. 27 in a Form 29 filed on 24 November 2022 and issued by the Industrial Registry on 25 November 2022. In the 13 February 2023 Application, the Appellant specifically sought that document. [36] BHP Coal submits they have been unable to locate the engineering organisational structure as at 2019/2020. BHP Coal have conceded the relevance of the requested document. Although BHP Coal submit they have been unable to locate the document, that is not a submission that it is not in their possession nor that the document does not exist. Rather, it appears that the document may be in their possession and discoverable through further investigation. [37] On that basis, I will make an order pursuant to r 64H(2) of the Rules requiring that BHP Coal produce item no. 27 in the Form 29 filed on 24 November 2022 – including further and broader investigation into BHP Coal records to locate the document within 21 days of release of this Decision. Mobile Crib Tie Downs MP email [38] The Appellant listed "Mobile Crib Tie Downs – MP - email" as item no. 8 in a Form 29 filed on 24 November 2022 and issued by the Industrial Registry on 25 November 2022. [39] In the 13 February 2023 Application, the Appellant specifically sought "Mobile Crib Tie Downs MP email dated 20 April 2020". [40] BHP Coal submits that the requested email has been disclosed to the Appellant. The Appellant rejected this submission, contending: This is not the case, as already shown in previous examples, namely "Crib Hut Audio 20191107". The email contained correspondence with a supplier of transportable office buildings on site and copies of engineering compliance certificates and installation requirements. [41] It appears from the above exchange that BHP Coal have been unable to locate the exact email requested by the Appellant. BHP Coal have conceded the relevance of the requested document. Although BHP Coal may be unable to locate the document, that is not a submission that it is not in their possession nor that the document does not exist. Rather, it appears that the document may be in their possession and discoverable through further investigation. [42] On that basis, I will make an order pursuant to r 64H(2) of the Rules requiring that BHP Coal produce item no. 8 in the Form 29 filed on 24 November 2022 – including further -- 8 of 11 -- 9 and broader investigation in BHP Coal records to locate the document within 21 days of release of this Decision. Medical Declaration [43] The Appellant listed "Medication Declaration" as item no. 11 in a Form 29 filed on 24 November 2022 and issued by the Industrial Registry on 30 January 2023. [44] In the 13 February 2023 Application, the Appellant specifically sought "Medication Declaration dated October 2019". [45] BHP Coal submits they are attempting to locate the "Medical Declaration" requested by the Appellant. [46] BHP Coal have conceded the relevance of the requested document. Although BHP Coal submit they are continuing to attempt to locate the document, that is not a submission that it is not in their possession nor that the document does not exist. Rather, it appears that the document may be in their possession and discoverable through further investigation. [47] On that basis, I will make an order pursuant to r 64H(2) of the Rules requiring that BHP Coal produce item no. 11 in the Form 29 dated 24 November 2022 – including further and broader investigation into BHP Coal records to locate the document within 21 days of release of this Decision. The 20 March 2023 Application [48] The Appellant listed "All Mine entry records in relation to incidents noted in correspondence with RSHQ" as item no. 14 in a Form 29 filed on 24 November 2022 and issued by the Industrial Registry on 25 November 2022. The Appellant nominated BHP PL to provide those documents. The Appellant listed BHP Coal and Resources Safety and Health Queensland as affected parties only. [49] In the 20 March 2023 Application, the Appellant specifically sought "Mine records". [50] The Appellant seeks that BHP Coal provide her with "Mine Records" with reference to s 68 of the Coal Mining Safety and Health Act 1999 (Qld) which provides: (1) A coal mine operator for a coal mine must keep a mine record that includes— (a) all reports of, and findings and recommendations resulting from inspections, investigations and audits carried out at the mine under this Act; and (b) all directives issued under this Act to the coal mine operator and the operator’s agents or representatives; and (c) a record of all remedial actions taken as a result of directives issued under this Act; and (d) a record of and reports about all serious accidents and high potential incidents that have happened at the mine; and -- 9 of 11 -- 10 (e) all other reports or information that may be prescribed under a regulation for this section. Maximum penalty—200 penalty units. (2) For subsection (1), a matter must be kept in the mine record for 7 years after the matter is included in the record. (3) Subsection (2) applies whether the matter was included under this Act or the repealed Coal Mining Act 1925. (4) The coal mine operator must ensure the mine record, relating to at least the previous 6 months, is available at all reasonable times for inspection by each of the following— (a) coal mine workers employed at the mine; (b) the site senior executive. [51] Within the 24 January 2023 Letter, BHP Coal outlined that "Mine entry records are documents created and held by Resources Safety and Health Queensland (RSHQ) in 2022. The correct BHP entity objects to providing such documents." In their submissions filed 6 April 2023, BHP Coal appears to object to providing the documents on the basis that the Form 29 filed 25 November 2022 was directed to BHP PL rather than BHP Coal and therefore the 30 March 2023 Application is "premature". In response, the Appellant conceded that the original Form 29 omitted "Coal" and so filed a new Form 29 on 10 April 2023 seeking the "mine records" from BHP Coal. [52] I accept that the documentation sought is not in the possession or under the control of the non-party listed on the relevant Form 29 filed 24 November 2022. On that basis, I am not satisfied that the Appellant may require BHP PL to produce the requested documentation. In circumstances where BHP PL has objected to producing the documents because the documents are not in their possession and also by virtue of BHP PL being incorrectly listed on the Form 29, I will not be ordering compliance with respect to the "mine records". [53] Further, I note that on 10 April 2023, the Appellant filed an updated Form 29 nominating BHP Coal and requesting "Mine records as per previous request". The Appellant indicated in her written submissions that she elected to file that updated Form 29 following discussions with BHP Coal's representative and in the interest of completeness and cooperation in resolving the matter. In the event that BHP Coal objects or the Appellant seeks an order for compliance with respect to that updated Form 29, fresh directions will be issued requiring submissions on that matter. [54] I order accordingly. Orders: 1. Pursuant to r 64H(2) of the Industrial Relations (Tribunals) Rules 2011, BHP Coal Pty Ltd is ordered to produce item nos. 8, 11, 26 and 27 of the Form 29 Notice(s) of non-party disclosure filed 24 November 2022. -- 10 of 11 -- 11 2. BHP Coal Pty Ltd is ordered to comply with Order 1 within 21 days of the release of this Decision. 3. The Form 4 Application in existing proceedings filed 20 March 2023 is dismissed. -- 11 of 11 --