Collins v Workers' Compensation Regulator [2023] QIRC 105

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION CITATION: Collins v Workers' Compensation Regulator [2023] QIRC 105 PARTIES: Collins, Jodie Marie (Appellant) v Workers' Compensation Regulator (Respondent) CASE NO: WC/2022/88 PROCEEDING: Objection to Notice of Non-Party Disclosure DELIVERED ON: 6 April 2023 MEMBER: HEARD AT: Hartigan DP On the papers ORDER: 1. Pursuant to r 93 of the Industrial Relations (Tribunal) Rules 2011 (Qld), leave is granted to extend time to the Workers' Compensation Regulator to make an application under r 64G(1) of the Industrial Relations (Tribunal) Rules 2011 (Qld) for a decision about an objection to a Notice of Non-Party Disclosure; 2. The stay of the Notice of Non-Party Disclosure is lifted; 3. The Notice of Non-Party Disclosure addressed to Services Australia, issued by the Industrial Registry on 30 August 2022, be varied by requiring the documents sought in the relevant Notice of Non-Party Disclosure to be produced directly to the Queensland Industrial Registry with respect to proceedings WC/2022/88, within 14 days; and -- 1 of 11 -- 2 4. The Workers' Compensation Regulator is directed to immediately serve a copy of this decision on Services Australia. CATCHWORDS: INDUSTRIAL LAW – DISCLOSURE – Notice of Non-Party Disclosure – where disclosure is opposed by Services Australia – where the Workers’ Compensation Regulator applies for an extension of time to file application – consideration of relevant factors - whether the non-party disclosure order sought be made– extension of time granted – notice of non-party disclosure varied – application granted. LEGISLATION: CASES: Workers Compensation and Rehabilitations Act 2003 (Qld), s 32 Industrial Relations (Tribunals) Rules 2011 (Qld), r 64E, r 64F and r 64G Health Insurance Act 1973 (Cth), s 130 National Health Act 1953 (Cth), s 135A(1) Attorney-General (N.T.) v Maurice [1986] HCA 80 Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission [2002] HCA 4 DP World Brisbane Pty Ltd v Rogers & Anor [2014] ICQ 10 Esso Australia Resources v Commissioner of Taxation [1999] HCA 67 Goldsmith v Sandilands (2002) 190 ALR 370 Lloyd v Department of Communities, Child Safety and Disability Services [2013] QIRC 129 Shelly v McRoberts Agency [2009] 190 QGIG 189 Smith v CreditLink Services Limited [2004] 176 QGIG 643 -- 2 of 11 -- 3 Wallace v Workers' Compensation Regulator [2021] QIRC 277 Reasons for Decision Introduction [1] The Workers' Compensation Regulator ('the Regulator') requested a Notice of Non-Party Disclosure ('the NNPD') to be issued by the Industrial Registrar, pursuant to r 64 of the Industrial Relations (Tribunals) Rules 2011 (Qld) ('the Tribunal Rules') requesting that Services Australia disclose information relating to the Appellant. [2] Services Australia objects to the NNPD. The issue in the present proceedings is whether Services Australia's objection with respect to the NNPD be upheld. Relevantly, the Regulator has issued a NNPD with respect to documents identified in the NNPD relating to a claim for workers' compensation made by Ms Jodie Collins. Background [3] During the period when the circumstances giving rise to her application for compensation occurred, Ms Collins was employed as a Receptionist by Integral Diagnostics No.1 Pty Ltd. Ms Collins claims to have sustained a psychological injury that arose out of, or in the course of her employment. [4] On 19 November 2021, Ms Collins lodged an application for compensation with WorkCover Queensland for an injury which Ms Collins describes as a "psychological/psychiatric injury". [5] By letter dated 22 December 2021, WorkCover advised Ms Collins that her application for compensation had been rejected. [6] On 20 January 2022, Ms Collins lodged an application with the Regulator for a review of the decision. Although the Regulator was satisfied that Ms Collins had sustained a personal injury of a psychological/psychiatric nature, it was determined that the injury did not arise out of her employment. Consequently, the Regulator determined that s 32(5) of the Workers' Compensation and Rehabilitation Act 2003 ('the Act') operates to exclude the psychiatric condition sustained by Ms Collins from the definition of 'injury' within s 32(1) of the Act ('the Regulator's decision'). [7] On 6 May 2022, Ms Collins lodged with the Industrial Registrar a Notice of Appeal of the Regulator’s decision dated 14 April 2022 rejecting Ms Collins' application for compensation in accordance with s 32 of the Act. -- 3 of 11 -- 4 The Notice of Non-Party Disclosure – Services Australia [8] By a Notice of Non-Party Disclosure filed by the Regulator, Services Australia was required to produce the following documents: No. Date Description 1 Various A full and complete copy of the Medicare Patient History and Pharmaceutical Benefits Scheme Patient Summary reports pertaining to the Appellant, Ms Jodie Collins (DOB [removed]) whether in written or electronic form, for the five (5) year period immediately preceding receipt of this notice. [9] In the NNPD, the Regulator contends that the documents are relevant in that they will assist in determining the issue of whether Ms Collins sustained a psychological injury arising out of or in the course of her employment. Services Australia's objection [10] Services Australia objects to the production of the documentation requested by the Regulator in the NNPD. [11] Services Australia wrote to the Regulator objecting to the production of documents stipulated in the NNPD in the following terms: The notice directs the Agency to produce its response to Workers’ Compensation Regulatory Services, who do not appear to be the identified individual or their legal representative. We are unable to produce information under the notice unless the information is to be received by the individual to whom the information relates, or that individual’s legal representative. This is due to section 130(1) of the Health Insurance Act 1973 (Cth) (Health Insurance Act) and section 135A(1) of the National Health Act 1953 (Cth) (National Health Act). Under these secrecy provisions, it is generally not lawful for the Agency to release an individual’s protected information. However, pursuant to section 130(4A(b)) of the Health Insurance Act and section 135A(5C) of the National Health Act, we are able to produce information to an individual to whom that information relates. … 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 -- 4 of 11 -- 5 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. [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 provides that the non-party, or a person who has been served with a copy of the notice under r 64D, may object to the production of some or all of the documents mentioned in the notice within seven days after its service with the leave of the industrial tribunal2 at a later time. [18] The non-party, or a person who has been served with a copy of the notice under r 64D, may object to the production of some or all documents within the notice within seven days for reasons3 which may include, but are not limited to the following: 1 Tribunal Rules, r 64D(5). 2 Pursuant to r 64A, industrial tribunal means – for a proceeding before the court – the court; or for a proceeding before the commission – the commission; or for a proceeding before the registrar – the registrar. 3 Tribunal Rules, r 64E(1). -- 5 of 11 -- 6 (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.4 [19] An objection stays the operation of the notice.5 [20] Section 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. [21] Rule 64H provides for the production and copying of documents produced under a NNPD as follows: 64H Production and copying of documents (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. (3) The party may copy a document produced under this subdivision. 4 Tribunal Rules, r 64E(4)(a)-(g). 5 Tribunal Rules, r 64F. -- 6 of 11 -- 7 Consideration [22] The Regulator filed a Form 4 - Application in existing proceedings ('the Application') in the Industrial Registry seeking various orders from the Commission with respect to a NNPD addressed to Services Australia pursuant to r 64G(2)(b) of the Tribunal Rules. The Regulator also seeks an extension of time to make the Application. I will deal with the request for an extension of time first. [23] In the Application, the Regulator applies for an extension of time to make an application under r 64G of the Tribunal Rules pursuant to r 93 of the Tribunal Rules. [24] Rule 93 of the Tribunal Rules provides: 93 Extension or shortening of time (1) Subject to the Act, an enabling Act or these rules, a party to a proceeding may apply to the court, commission or registrar to extend or shorten the time prescribed for doing anything. (2) The application may be joined with or form part of a document starting a proceeding. (3) If the court, commission or registrar decides to extend or shorten the prescribed time, the court, commission or registrar must give notice of its decision to each party to the proceeding to which the application relates. Extension of time [25] The Regulator seeks an extension of time for filing the Application on the basis that the Application was filed seven days outside the time prescribed in r 64G(1) of the Tribunal Rules. [26] The Regulator contends that the delay of seven days is not excessive and refers to cases before this Commission6 where leave for an extension of time were granted in circumstances of far greater delay.7 [27] The Regulator relies on two reasons to explain the delay. Firstly, that the representative of the Regulator who had carriage of the matter was absent from work ill for a period of two days during the seven day period and was absent from work ill for several days the following week. [28] Secondly, the Regulator’s counsel ''overlooked'' an email from the Regulator sent on 2 September 2022 which attached a draft of the Application and supporting affidavit to be settled by counsel. The settled documents were returned from counsel on 14 September 2022. 6 Although none of the cases referred to by the Regulator consider r 64G of the Tribunal Rules. 7 Shelly v McRoberts Agency [2009] 190 QGIG 189; Smith v CreditLink Services Limited [2004] 176 QGIG 643; Lloyd v Department of Communities, Child Safety and Disability Services [2013] QIRC 129. -- 7 of 11 -- 8 [29] The Regulator contends that there is no prejudice to Ms Collins or to Services Australia should an extension be granted. [30] Whilst I accept that the Application by the Regulator was filed beyond the time prescribed under the Tribunal Rules, I have determined that the delay was not excessive and that the Regulator has provided a reasonable explanation for the delay which included legal representative error. I am satisfied, given the nature of the Application, that neither Ms Collins or Services Australia will suffer any prejudice should an extension be granted. I have also had regard to the nature of the Application which is made in the context of pre-trial discovery and conclude that the interests of justice weigh in favour of granting an extension of time. For these reasons, I will grant an extension of time to the Regulator to file the Application. The Application [31] The Application filed by the Regulator seeks orders, inter alia, as follows: … 2. The Workers’ Compensation Regulator applies for a decision about the objection to Notice of Non-Party Disclosure served on Services Australia pursuant to Rule 64G(1) of the Industrial Relations (Tribunals) Rules 2011. 3.The Workers’ Compensation Regulator seeks an order from the Queensland Industrial Relations Commission to vary a Notice of Non-Party Disclosure addressed to Services Australia, issued by the Industrial Registry on 1 September 2022, pursuant to Rule 64G(2)(b) of the Industrial Relations (Tribunal) Rules 2011. 4. It is requested that the notice be varied by requiring the documents sought in the relevant Notice of Non-Party Disclosure to be issued directly to the Queensland Industrial Registry, rather than requiring the nominated party to provide the documents directly to the requesting party, or the individual to whom the documents directly relate. … [32] The issue with respect to the use of the NNPD and Services Australia's objection is surprisingly novel in the context of workers' compensation appeals before the Commission. That is because, historically, the Regulator sought pre-trial discovery from non-parties by filing an Attendance Notice to Produce. In Wallace v Workers’ Compensation Regulator 8 I determined that the use of an Attendance Notice to Produce a document for the purpose of obtaining pre-trial discovery was an abuse of process and liable to be set aside.9 That is because an Attendance Notice to Produce is akin to a subpoena and the purpose of discovery and subpoena processes are distinct. [33] As noted above, Services Australia objects to the NNPD and, in doing so, relies on s 130(1) of the Health Insurance Act 1973 (Cth) ('Health Insurance Act') and s 135A(1) of the National Health Act 1953 (Cth) ('National Health Act'). 8 [2021] QIRC 277. 9 Ibid [51]-[53]. -- 8 of 11 -- 9 [34] Section 130(1) of the Health Insurance Act relevantly provides: 130 Officers to observe secrecy (1) A person shall not, directly or indirectly, except in the performance of his or her duties, or in the exercise of his or her powers or functions, under this Act or for the purpose of enabling a person to perform functions in relation to a medicare program or for the purposes of enabling a person to perform functions under the Medicare Guarantee Act 2017, the Dental Benefits Act 2008, the My Health Records Act 2012 (whether as a delegate or otherwise) or the indemnity legislation, and while he or she is, or after he or she ceases to be, an officer, make a record of, or divulge or communicate to any person, any information with respect to the affairs of another person acquired by him or her in the performance of his or her duties, or in the exercise of his or her powers or functions, under this Act. Penalty: 5 penalty units. [35] Section 135A(1) of the National Health Act relevantly states: 135A Officers to observe secrecy (1) A person shall not, directly or indirectly, except in the performance of duties, or in the exercise of powers or functions, under this Act or for the purpose of enabling a person to perform functions in relation to a medicare program or under the Medicare Guarantee Act 2017, the indemnity legislation or the My Health Records Act 2012 (whether as a delegate or otherwise), and while the person is, or after the person ceases to be, an officer, divulge or communicate to any person, any information with respect to the affairs of a third person acquired by the first-mentioned person in the performance of duties, or in the exercise of powers or functions, under this Act. Penalty: Imprisonment for 2 years or 50 penalty units, or both. (2) Where the third person mentioned in subsection (1) is a party to an action or proceeding before a court, nothing in that subsection precludes the disclosure to the court of information with respect to the affairs of the third person. … [36] The Regulator properly accepts the validity of the grounds of objection made by Services Australia and further accepts that it would be unlawful for the relevant officers of Services Australia to produce records directly to the Regulator having regard to the obligations set out in s 130 of the Health Insurance Act and s 135A of the National Health Act. [37] The Regulator, however, argues that the effectiveness of its statutory obligations10 to conduct and defend proceedings under the Act will be severely constrained if it cannot obtain Medicare and PBS records from Services Australia in this appeal and in a majority of workers' compensation appeals before the Commission. [38] The Regulator confirms in its submissions that the purpose of the discovery is to investigate whether there are any pre-existing psychiatric issues and whether there are 10 In this regard it refers to s 327(1)(n) of the Act. -- 9 of 11 -- 10 relevant non-work related stressors by identifying and obtaining relevant medical records from the Appellant’s treating medical practitioner. [39] The Regulator proposes that the variation of the order in the Application achieves the dual purpose of providing for the Regulator to undertake discovery whilst ensuring that such discovery complies with the requirements of the National Health Act. Relevantly, by providing that discovery of the documents be produced to the Commission and thereby seeming to comply with s 135A(2) of the National Health Act. [40] Ultimately, I have concluded that the documents requested by the Regulator in the NNPD are relevant to the proceeding in this instance. [41] I have also had regard to the fact that Services Australia has previously complied with Attendance Notices to Produce requiring production of the same class of documents as those requested in this NNPD in other workers' compensation appeal proceedings before the Commission [42] To that end, I am satisfied that an order should be made that Services Australia comply with the Notice of Non-Party Disclosure as amended by me. [43] This application raises procedural matters which have the potential to effect the efficient conduct of not only this proceeding, but a number of workers' compensation appeals before this Commission. It also raises a tension between the appropriate use of the procedure for the use of discovery and subpoena. Ultimately, it is a matter for the parties to ensure their respective compliance with the Tribunal Rules having regard to the purpose of those rules. Order [44] For these reasons, I allow the application and make orders in the following terms: 1. Pursuant to r 93 of the Industrial Relations (Tribunal) Rules 2011 (Qld), leave is granted to extend time to the Workers' Compensation Regulator to make an application under r 64G(1) of the Industrial Relations (Tribunal) Rules 2011 (Qld) for a decision about an objection to a Notice of Non-Party Disclosure; 2. The stay of the Notice of Non-Party Disclosure is lifted; 3. The Notice of Non-Party Disclosure addressed to Services Australia, issued by the Industrial Registry on 30 August 2022, be varied by requiring the documents sought in the relevant Notice of Non-Party Disclosure to be produced directly to the Queensland Industrial Registry with respect to proceedings WC/2022/88, within 14 days; and -- 10 of 11 -- 11 4. The Workers' Compensation Regulator is directed to immediately serve a copy of this decision on Services Australia. -- 11 of 11 --