Crandon v Queensland Bulk Water Supply Authority t/as Seqwater [2021] QIRC 248

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION CITATION: Crandon v Queensland Bulk Water Supply Authority t/as Seqwater [2021] QIRC 248 PARTIES: Crandon, Kevin (Applicant) v Queensland Bulk Water Supply Authority t/as Seqwater (Respondent) CASE NO: WC/2021/10 PROCEEDING: Application in existing proceedings to lift a stay on a Form 29 Notice of non-party disclosure DELIVERED ON: 22 July 2021 HEARING DATES: On the papers MEMBER: McLennan IC HEARD AT: Brisbane ORDERS: 1. That pursuant to r 64G(2) of the Industrial Relations (Tribunals) Rules 2011 (Qld): a. The Notice of non-party disclosure filed 11 May 2021 be varied on pg 3 to strike out documents numbered 1 - 5. b. The annexure to the Notice of non-party disclosure filed 11 May 2021 be varied under the heading 'Schedule of Documents' to read: 1 All documents pertaining to the complaint made against the Applicant with respect to the -- 1 of 24 -- 2 Incident that allegedly took place on 3 March 2020 and subsequent investigation into said complaint, including but not limited to the complaint, statements of witnesses, records of interview of witnesses, investigation file notes and reports, any document recording how the complaint was assessed and determined, and any other document considered by the Respondent during the investigation process. The scope of documents is limited to that which was produced, provided or considered on and before 9 March 2020. The documents are to be provided without redactions. 3 Medical and health records held on the Applicant's personnel file, a summary of leave records including but not limited to a breakdown of dates on which the Applicant took annual leave, sick leave and any other form of leave as well as the reasons for taking said leave and records of previous investigations into allegations made against the Applicant. The scope of documents is limited to that which were filed in the Applicant's personnel file on and before 9 March 2020. The documents are to be provided without redactions. c. The annexure to the Notice of non-party disclosure be varied under the heading 'Schedule of Documents' to strike out documents numbered 2, 4, 5 and 6. -- 2 of 24 -- 3 d. The stay is then lifted on the varied Notice of non-party disclosure. e. The Respondent is to disclose the documents in this Order to the Applicant within 21 days. CATCHWORDS: WORKERS' COMPENSATION – DISCLOSURE – Application to lift stay on a Form 29 Notice of non-party disclosure – where application is made out of time – whether documents sought are directly relevant to issue in the proceeding – consideration of confidentiality LEGISLATION: CASES: Civil Procedure Act 2005 (NSW) s 63 Industrial Relations Act 2016 (Qld) s 564 Industrial Relations (Tribunals) Rules 2011 (Qld) r 27, r 64B, r 64E, r 64F, r 64G, r 64I, r 226 Public Sector Ethics Act 1994 (Qld) Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298 DP World Brisbane Pty Ltd v Rogers & Anor [2014] ICQ 10 House v The King (1936) 55 CLR 499 Lawler v Workers' Compensation Regulator; Ex parte Council of the City of Gold Coast [2016] QIRC 87 Mullins v Workers' Compensation Regulator; Ex parte Drake International Pty Ltd (No 2) [2020] QIRC 003 Robson v REB Engineering Pty Ltd [1997] 2 Qd R 102 -- 3 of 24 -- 4 Rubin v Bank of Queensland Ltd [2010] QSC 175 Shaw v State of Queensland (Department of Education) [2021] QIRC 127 State of Queensland (Department of Health) v WorkCover Queensland [2020] QIRC 113 Lloyd v State of Queensland (Department of Communities, Child Safety and Disability Services) [2013] QIRC 129 Tonia Shelley v McRoberts Agency [2009] 190 QGIG 189 Weston and Parer v State of Queensland (Department of Justice and Attorney-General) (No. 4) [2016] QIRC 75 Reasons for Decision Background [1] On 11 May 2021, Mr Kevin Crandon (the Applicant) filed a Form 29 Notice of non-party disclosure with the Industrial Registry (the Notice). [2] The Notice sought to compel the Queensland Bulk Water Supply Authority trading as Seqwater (Seqwater; the Respondent) to produce various documents. The Applicant claims he requires the sought documents for the future substantive hearing of his Workers' Compensation Appeal filed 4 February 2021 (the Appeal). [3] The Industrial Registry advised Mr Crandon that all affected parties1 must be named in the Notice and served under r 64D of the Rules. The affected parties did not object to the Notice under r 64E of the Rules. [4] The Applicant served the Notice on the Respondent by email at 5:36pm. Pursuant to r 27 of the Industrial Relations (Tribunals) Rules 2011 (Qld) (the Rules), "If a document is served on a person after 4p.m., the document is taken to have been served on the next day." As such, the Notice is taken to have been served on 12 May 2021. 1 Following communication with the Industrial Registry on 11 May 2021, the Applicant amended the Notice to include the names of the affected parties and their addresses of service. Namely, Mr Craig Bolin, Mr Steven Weekly, Mr Stuart Cassie, Mr Geoffrey Slatyer and Mr Joe Meisner. -- 4 of 24 -- 5 [5] On 19 May 2021, the Respondent advised the Applicant and the Industrial Registry by way of written correspondence that "Seqwater objects to the production of the documents, and categories of documents, sought in the two schedules provided for in the NNPD…" and set out the reasons for the objection (Objection Letter). [6] The Objection Letter was issued pursuant to r 64E of the Rules and stayed the operation of the Notice by virtue of r 64F of the Rules. [7] On 27 May 2021, the Applicant filed a Form 4 Application in existing proceedings (the Application) seeking that the Respondent be ordered to comply with the Notice. That is, that the stay be lifted. [8] However, r 64G of the Rules prescribes that the party may apply to the Industrial Tribunal for a decision about the objection "within 7 days after service of an objection…". Therefore, the Application was filed a day out of time. [9] Before determining whether the stay on the Notice should be lifted, I am first required to address the superseding jurisdictional issue of the Application being filed out of time. Should the Application be heard out of time? Considerations in the exercise of discretion [10] The question of whether to extend the prescribed time limit is fundamentally an exercise of discretion. Such an exercise must be undertaken judicially and according to the rules of reason and justice, not arbitrarily or capriciously or according to private opinion.2 [11] The character of the delay, be it excessive, reasonable or otherwise, takes its colour from the surrounding circumstances.3 It is true that in some cases delays of several weeks have been considered to be not excessive.4 However, in such cases the delay is usually accompanied by a substantial explanation such as legal representative error, natural disasters or the like.5 That is not the case here. [12] The Applicant was afforded the opportunity to make submissions to explain the delay in filing his Application. In submissions filed 23 June 2021 and 29 June 2021, the Applicant submitted the following: • Rule 226 of the Rules confers power on the commission "to deal with a failure to comply with the Rules" and provides as follows: 2 House v The King (1936) 55 CLR 499, [2]. 3 Lloyd v State of Queensland (Department of Communities, Child Safety and Disability Services) [2013] QIRC 129, [40]; Tonia Shelley v McRoberts Agency [2009] 190 QGIG 189. 4 Ibid. 5 Ibid. -- 5 of 24 -- 6 (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 (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. • Rule 226 of the Rules "is in almost identical terms" to s 63 of the Civil Procedure Act 2005 (NSW). The authorities with respect that provision interpret it to mean: a) Every omission or mistake in practice or procedure is now regarded as an irregularity which the court can and should rectify so long as it can do so without injustice. b) An irregularity does not invalidate the proceedings, any steps taken in the proceedings or any document, judgment or order in the proceedings. c) It confers broad power on the court/commission to rectify irregularities arising as the result of a failure to comply with the requirements of the rules. • The impact of r 226 distinguishes this type of matter from cases where the Industrial Relations Act 2016 (Qld) (the IR Act) stipulates time limits with rights to extend time limits.6 Therefore, the test for granting an extension of time in those cases under the IR Act do not apply where a failure to comply with the Rules has occurred and r 226 applies. [13] The Respondent responded by way of submissions filed 24 June 2021, summarised as follows: • The discretion to extend the prescribed time limit should only be exercised where the Commission is positively satisfied that there are reasonable grounds to do so.7 • The reason for the delay should be "acceptable and compelling" so as to warrant the dispensation of the statutory time limit.8 6 For example, under s 564 of the Industrial Relations Act 2016 (Qld). 7 Shaw v State of Queensland (Department of Education) [2021] QIRC 127, [14]. 8 Ibid [42]. -- 6 of 24 -- 7 [14] I do not accept that it is appropriate to merely determine the error was an irregularity and dispense with the need to consider whether or not the time should be extended. The Applicant reasoned that (emphasis added), "Every omission or mistake in practice or procedure is now regarded as an irregularity which the court can and should rectify so long as it can do so without injustice." [15] I am empowered to extend the time for allowing the Application only where there is a reasonable ground to do so. To ensure a just decision is reached, I must consider a number of grounds to determine whether it is reasonable to hear the Application out of time. Length of delay [16] The seven day time limit has been determined by the legislature to be the appropriate period for a person to file an Application of this type. [17] Rule 64G of the Rules prescribes the time limit to make an Application to have the stay lifted and the Notice enforced (emphasis added): 64G Industrial tribunal's decision about objection (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. (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. (3) Unless the industrial tribunal otherwise orders, each party to an application to decide an objection must bear the party's own costs of the application. [18] The Applicant was required to apply to the Commission for a decision about the objection by 26 May 2021. [19] The parties do not dispute that the delay of one day is "short". Explanation for the delay [20] As I observed in State of Queensland (Department of Health) v WorkCover Queensland: The statutory timeframe of 7 days to object must be respected and should not be departed from without good reason.9 9 [2020] QIRC 113, 4 [13]. -- 7 of 24 -- 8 [21] The Applicant's explanation for the delay is that he sought assistance from a solicitor as to what he must do in response to the Objection Letter. The Applicant was advised he must file the Application by 27 May 2021 which "was an error caused by the solicitor because the information supplied by the Applicant to obtain the legal assistance was misinterpreted as meaning that Seqwaer (sic) objections were received on 20 May 2021 and not 19 May 2021." [22] I note however that on 21 May 2021, the Industrial Registry outlined to the Applicant the procedural process for filing this Application. That email correspondence stated: If you would like to proceed, you will need to apply to the commission by way of filing a Form 4 Application in existing proceedings for a decision about the objection within 7 days after service of the objection (r 64G) - that is, by Wednesday 26 May 2021.10 [23] It is clear from the email issued on 21 May 2021 that the Applicant was clearly advised of the deadline to file the Application. Upon receiving conflicting information from a solicitor, the Applicant should have clarified the date with the Industrial Registry. Further, it appears the solicitor's error may have arisen from the Applicant providing erroneous information in the first instance. Prejudice to the Applicant [24] With respect to the issue of prejudice, the Applicant submitted the following: • The Respondent has not produced any documents on any relevant matter and the Applicant is prejudiced by the fact he has no information about the reasonable management action issue. • In the absence of production of documents, the Applicant will suffer significant prejudice because he will not know what steps were taken by his employer with respect to the investigation of the complaint made against him and he does not know what information or evidence was collected by the employer. • The Applicant does not know which witnesses were interviewed and what was said. The Applicant requires this information to consider witnesses to call for the Appeal. [25] The prejudice the Applicant would suffer should the Application be dismissed is that he would lose the opportunity for a decision to be made to lift the stay on the Notice. In the event that such a Decision were to find in the Applicant's favour, it would mean that he would then gain access to that information he contends is relevant to the Appeal. [26] That potential outcome is of course not an insubstantial detriment. 10 The emphasis mirrors the 21 May 2021 correspondence. -- 8 of 24 -- 9 Conduct of the Respondent [27] There is no evidence that any actions of the Respondent caused or contributed to the delay in filing this Application. Prejudice to The Respondent [28] The Applicant submits that given the short period of delay, no injustice would be suffered by the Respondent should the Application be heard out of time. Further, the Applicant submits the discretion provided by r 226 renders the presumptions of prejudice to the Respondent inapplicable. For the reasons outlined above, I disagree with that contention and will proceed to consider potential prejudice to the Respondent. [29] I accept that delay itself is considered to give rise to a general presumption of prejudice to the Respondent.11 Furthermore, minimal additional prejudice to the Respondent in and of itself is an insufficient basis to grant an extension of time.12 The Respondent did not further elaborate submissions with respect to prejudice it may suffer. Consideration of time delay [30] While the Applicant's explanation for delay is not compelling, taking into consideration the totality of the above-mentioned factors, I accept that it is reasonable to hear this Application out of time. Of particular note is the minimal delay of one day, the fact the Applicant sought procedural advice soon after being served with the Objection Letter and the substantial prejudice he would suffer should this Application not be considered. [31] I will now proceed to consider this Application. Relevant Principles [32] Rule 64B of 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. [33] In Mullins v Workers' Compensation Regulator; Ex parte Drake International Pty Ltd (No. 2), Commissioner Black considered that test (emphasis added, citations removed): 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 11 Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541, 556. 12 Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298, 300. -- 9 of 24 -- 10 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."13 [34] In Robson v REB Engineering Pty Ltd, Demack J considered the term "directly relevant": My opinion is that the word "directly" should not be taken to mean that which constitutes direct evidence as distinct from circumstantial evidence. Rather, "directly relevant" means something which tends to prove or disprove the allegation in issue.14 The Appeal [35] On 4 February 2021, the Applicant filed an appeal seeking to overturn a decision of the Workers' Compensation Regulator (the Regulator) dated 8 January 2021. In that decision, the Regulator rejected the Applicant's claim for compensation in respect of an alleged psychiatric injury. [36] The Appeal stems from allegations of misconduct made against the Applicant during his employment with Seqwater. The principal allegation was that the Applicant had used a racial slur in front of other Seqwater employees (the Incident). [37] On 9 March 2020, the Applicant was stood down from work pending the outcome of the investigation into the Incident. The Applicant claims that on this date, he suffered a psychiatric injury. The Applicant alleges the cause of his psychiatric injury was being "accused of something I didn't do and stood down from my position which has caused additional mental health issues when I already have PTSD…"15 [38] In its decision, the Regulator accepted that the Applicant "sustained a personal injury of a psychiatric nature", the psychiatric injury arose out of the Applicant's employment and his employment was a significant contributing factor. However, the Regulator determined that the "injury was sustained as a result of reasonable management action taken in a reasonable way." The Regulator's decision provided that (emphasis added): The events giving rise to your injury involve actions taken by SEQ Water to investigate allegations of misconduct in the performance of your duties and the manner in which those allegations were investigated. It is the investigation of those allegations which on the medical and factual evidence was causative of your psychiatric injury and accordingly I conclude the injury arose out of management action.16 [39] As outlined above, the issue in dispute in the Appeal is whether or not the Respondent took reasonable management action in a reasonable way. 13 [2020] QIRC 003. 14 [1997] 2 Qd R 102, 105. Referred to in Rubin v Bank of Queensland Ltd [2010] QSC 175. 15 Reasons for Decision of Nadine Jenson, Review Unit, Workers' Compensation Regulatory Services, 8 January 2021, p 1. 16 Reasons for Decision of Nadine Jenson, Review Unit, Workers' Compensation Regulatory Services, 8 January 2021, p 9. -- 10 of 24 -- 11 The Notice [40] The documents sought in the Notice were set out in two separate schedules. [41] The documents sought at p 3 of the Notice are reproduced below: No. Date Description 1 Witness Statement of Craig Bolin 2 Witness Statement of Steven Weekly 3 05/03/2020 Written notification to COO Stuart Cassie of complaint being raised 4 Witness statement of unknown 3 rd person in the car when the alleged incident happened 5 Statement of Geoffrey Slatyer in regards to the bullying complaint raised by Kevin Crandon [42] The documents sought in an annexure to the Notice are reproduced below: No. Description 1 All documents, including record of complaint or issue, statements or witness, records of interview of witness, file notes and emails (including about the complaint or related to the complaint or reporting on the complaint or investigating the complaint), phone records, text messages and other correspondence, investigation reports including draft reports, including correspondence with WorkCover or the Regulator providing any information - in relation to any investigation undertaken by The Respondent in regard to any complaint made against Kevin Crandon related to the alleged comments made by Kevin Crandon during a car trip with work colleagues on the 3 rd of March 2020. 2 The full file prepared or maintained by the People and Culture team of Seqwater with respect to the investigation referred to at point 1 above. 3 The HR file for/about Kevin Crandon kept and maintained by Seqwater including medical and health records and leave records and investigation records. 4 All records, statements, records of interviews or witness statements, file notes and emails (including about the complaint or related to the complaint or reporting on the complaint or investigating the complaint), phone records, text messages and other correspondence, investigation reports including draft reports, into the allegation of bullying made by Kevin against his manager Geoffrey Slatyer in about February 2020. 5 All correspondence from or to Geoffrey Slatyer referring to the Applicant Kevin Crandon during the period February to August 2020. 6 All correspondence or records of communications between Seqwater employee Joe Meisner and Craig Bolin or Steven Weekly or any other witness involved in the incident in the period of 1 week prior to the making of the complaint referred to in item 1 above. [43] I note that items 1 - 4 outlined at pg 3 of the Notice are specifically covered under item 1 and would likely fall under item 2 of the annexure to the Notice. Further, item 5 outlined at pg 3 of the Notice is specifically covered under item 4 of the annexure to the Notice. For those reasons, I will consider the categories as outlined in the annexure to the Notice to avoid unnecessary duplication. -- 11 of 24 -- 12 [44] The Respondent has objected to the production of all documents. [45] The Notice filed by the Applicant is addressed to Mr Neil Brennan, Chief Executive Officer of the Respondent and generally outlines the following reasons for why the documents sought are directly relevant: • The Applicant "seeks records of the investigation conducted by the insured employer with respect to the investigation of conduct allegations made against him as relevant to this proceeding." Further, the Applicant "seeks his HR file as relevant to obtain and (sic) medical and health information and leave records and any records with respect to the investigation." • Given the timing of the Applicant's bullying complaint, it is reasonable to conclude that there is a relationship between the Applicant making a bullying complaint against Mr Slatyer to the Seqwater COO Mr Cassie and the complaint then made against the Applicant. The Applicant was never interviewed in relation to the bullying complaint he made and believes no action was taken. The documents sought will explain the failure of the Respondent to investigate the Applicant's bullying complaint. • The Applicant believes that witnesses involved in the alleged car incident may have been influenced by Mr Miesner, another Seqwater employee. The Applicant had concerns that would negatively impact Mr Miesner and had indicated his intention to report those concerns. The persons who made the complaint against the Applicant report to Mr Miesner "or maybe (sic) regarded as aligned to him". The Objection Letter [46] In its Objection Letter, the Respondent generally objected to the production of documents sought in the Notice on the following grounds: • The documents are not relevant to the matters in issue in the proceedings. • The Notice fails to properly set out the relevance of each category sought (including the relevance of the documents likely to be captured by each category). • There is no legitimate forensic purpose for the categories of documents sought, and the Notice does not particularise why those documents are required for the Proceeding. • Many of the documents and correspondence captured by the categories sought are likely to contain confidential information. This is especially the case in circumstances where the Applicant's employment ceased some time ago. -- 12 of 24 -- 13 • The production of documents captured by certain categories is likely to have a negative effect on a number of employees, especially those who participated in the investigation of the incident and would be entitled to expect that the contents of their statements would be kept confidential. • There would be material expense and inconvenience to the Respondent in producing the documents, especially in circumstances where the documents are not relevant. • Most of the categories constitute an impermissible fishing expedition. [47] In furtherance to the Objection Letter, on 24 June 2021 the Respondent filed written submissions in which it argued that to the extent that any document falling within the categories sought to be produced was created after the Applicant's date of injury, those documents cannot be relevant to causation of the Applicant's injury.17 Applicant's Submissions [48] In its submissions filed 14 June 2021 and 29 June 2021, the Applicant generally submitted the following: • The Respondent has a Code of Conduct made under the Public Sector Ethics Act 1994 (Qld) that requires its employees to comply with Seqwater policies and procedures. The values under the Code of Conduct are integrity, respect, care and courage. • The purpose of Seqwater's Discipline Procedure18 is to "support a fair and consistent management of the disciplinary process". The Discipline Procedure is firmly based on the principles of procedural fairness which are to be applied and are to guide an investigation process. The Discipline Procedure promises that any disciplinary matter involving allegations of misconduct will involve a comprehensive investigation and consideration of a broad range of documents. Clause 5.1.1 and 5.2 of the Discipline Procedure states that Seqwater: (a) Will conduct a comprehensive investigation of any allegations of misconduct; (b) Will apply the rules of procedural fairness; (c) Will gather all available evidence; 17 Lawler v Workers' Compensation Regulator; Ex parte Council of the City of Gold Coast [2016] QIRC 87. 18 Seqwater, Discipline Procedure PRO-00962, 3 May 2018. -- 13 of 24 -- 14 (d) The employee's response will be given due consideration; (e) Will take into account all available matters reasonably connected with the alleged behaviour; (f) Will interview all appropriate persons and collect all relevant documentation; (g) Will give consideration to relevant personnel records; (h) Will take into account records of discussions concerning the allegations; (i) Will obtain information and statements from witnesses; and (j) Will maintain a written record of all investigation details. • Based upon Seqwater's Discipline Procedure, it is reasonable to conclude that Seqwater, in compliance with its own Discipline Procedure, has maintained a detailed and comprehensive file containing the types of documents described in the Discipline Procedure. It is only by access to that material that the Applicant can consider whether the Respondent engaged in reasonable management action taken in a reasonable way as it has asserted. Category One & Category Two [49] The Applicant has sought all documents in relation to any investigation into his misconduct on 3 March 2020, including various witness statements in relation to the Respondent's investigation (Category One). Further, the Applicant has sought the "full file prepared or maintained" by People and Culture with respect to the investigation of the Incident (Category Two). [50] The Applicant submits he requires the documents covered by Category One and Category Two because: • The WorkCover decisions reflect the conclusion that the investigation process undertaken by the Respondent was reasonable management action taken in a reasonable way. The Applicant refutes that conclusion. • The Applicant's letter to the Respondent dated 27 March 2020 includes reference to information supplied to him by Seqwater that only two of the four people in the vehicle heard the alleged racial slur. This means that the investigation by the Respondent should have examined the reasons why only two of the four people in the vehicle heard the alleged slur in circumstances where the Applicant vehemently denied the racial slur. -- 14 of 24 -- 15 • The documents sought are directly relevant to the issue of whether or not the Applicant's injury arose out of reasonable management action taken in a reasonable way. The Applicant is entitled to challenge the Regulator's conclusion, the investigation process and whether the investigation was a "comprehensive investigation" as required by the Seqwater Discipline Procedure. [51] In the Objection Letter and subsequent submissions filed 24 June 2021, the Respondent submitted the following: • The Applicant's concerns regarding the investigation itself broadly include that: the Respondent investigated allegations which the Applicant denies are true, the Applicant was stood down on full pay pending the investigation and the Respondent followed an inadequate process in relation to the investigation, insofar as it communicated with the Applicant regarding the process, the allegations and the ultimate outcome. Taking into consideration the above context, the documents sought in Category One will not be relevant to an issue in the Proceedings. • The Applicant has sought copies of employee witness statements/records of interviews that the Respondent submits is not relevant to the Respondent's conduct in investigating the incident, standing him down, or how it communicated with him during the process. • Category One and Category Two are so broad that it could not be directly referable to any particular issue in the Proceedings, and is presumably sought for the purpose of investigating additional matters outside the scope of the matters presently in issue. • The Objection Letter proposed that the Applicant identify each document sought under Category One and Category Two, and particularise the matters in issue to which they relate. The Applicant has not done so. In the absence of an adequate explanation as to relevance, it is submitted that the stay ought not to be lifted. The absence of such particularisation of relevance is compelling. • The categories will capture a range of documents which post-date the Applicant's date of alleged cause of injury, which are therefore irrelevant. • In the alternative, only the documents relevant to the existing proceedings, with reference to the alleged cause of injury above, are those which relate to the basis for or reasonableness of: (a) the Respondent's decision to put the allegations regarding the alleged racial comment on 3 March 2020 to the Applicant, on 9 March 2020; and -- 15 of 24 -- 16 (b) the Respondent's decision to stand the Applicant down pending the investigation of the above allegation. This would be limited to any written complaint received by the Respondent in relation to the Incident or any other document or information received by the Respondent that is relevant to the Respondent's decision to stand the Applicant down on pay. • In the alternative, if it is determined that documents created after the date of injury are relevant to the proceedings, it is submitted that Category 1 and Category 2 should be significantly narrowed. The Respondent submits that the following documents achieve the same purpose as outlined in the Applicant's submissions: (a) The documents outlined immediately above; (b) Any written records of interviews or statements from witnesses to the Incident; and (c) Any investigation report prepared following the investigation of the Incident. • Any document produced would need to be confidential and may also negatively impact the relevant witnesses in circumstances where they would be entitled to expect that the contents of their interview would remain confidential. Accordingly, in the event that the Respondent is required to produce the above documents, it is submitted that the Respondent should be permitted to redact the identities of the witnesses involved. In response to that point, the Applicant contends that once an investigation is complete, confidentiality would not normally be maintained in the face of Commission or Court proceedings. The Applicant submits he will require access to the names of the witnesses if he is able to fully present his own case. For example, he should have the right to determine which witnesses to call. [52] In its submissions filed 18 June 2021, the Regulator submitted that although a number of formal letters between the Applicant and the Respondent have already been disclosed, any further documents in possession of the Respondent regarding 'the making of the complaint', 'any documents recording any interviews or statements from potential witnesses' and 'any documents recording how the complaint was assessed and how the outcome of the complaint was arrived at' should be disclosed. Consideration [53] The primary issue in the Appeal is whether or not the investigation into the allegations made against the Applicant constitutes reasonable management action taken in a reasonable way. The documents contained in the file pertaining to the investigation of the Incident, including documents taken into consideration by the Respondent and -- 16 of 24 -- 17 witness statements will tend to prove or disprove whether or not the investigation process constituted reasonable management action taken in a reasonable way. [54] Reasonable management action is not limited to the Respondent's communication with the Applicant regarding the investigation process, but rather extends to the evidence gathered, the consideration given to each aspect as well as the scope and depth of the investigation itself. If the Applicant is able to prove the Respondent failed to comply with its Discipline Procedure, then it would be open to the QIRC Member to conclude the Respondent did not take reasonable management action in a reasonable way. The Applicant will require the documentation sought to prove this. [55] On that basis, I agree that the documents falling under the ambit of Category One and Category Two are directly relevant to an issue in the Appeal proceeding. [56] Notwithstanding the above, I agree with the Respondent's contention that the scope of the documents should be limited to those which were available, were considered and prepared prior to 9 March 2020 - being the date the Applicant sustained his psychiatric injury. That is because consideration of management action will be limited to the management action taken in the lead up to the psychiatric injury being sustained. The material considered by the Respondent after that fact is irrelevant for present purposes. [57] Further, the Applicant submitted that the purpose of requesting the documents under Category Two "is to ensure that the full contents of the file is produced if the documents are not otherwise produced in response to the first category above." There is a significant overlap between Category 1 and Category 2 because Category 2 is unreasonably broad and does not particularise the required documentation. For that reason, I will order that Category 2 be struck out to avoid unnecessary duplication. [58] The disclosure of the documentation will allow the Applicant to determine whether or not the Respondent has complied with its Discipline Procedure and this evidence could form a substantial part of the Applicant's case. Or indeed, the Regulator's case. [59] The Respondent also makes submissions about how the information sought is confidential and the Respondent should be permitted to redact the identities of the witnesses involved. [60] With respect to such issues, Martin J said in DP World Brisbane Pty Ltd v Rogers & Anor (citations omitted) (emphasis added): The mere claim that a document to be produced is confidential is not a valid objection to its production. Much of what is disclosed to another party in court or tribunal proceedings of one kind or another may well be confidential. It has been held that where this is the case, "the risk to the confidentiality of the information must be tolerated in the interest of the administration of justice". Where specific issues of privacy or a heightened concern for commercial confidentiality, for example, arise, arrangements may be made to ensure that the disclosure of material and information that is made does not go beyond what is strictly necessary in the circumstances. What has been said -- 17 of 24 -- 18 with regard to confidential information might equally be said to apply in the case of personal information that might in other circumstances be protected by privacy legislation. Accordingly, the mere fact that information to be produced might include "private" information, however defined, is an insufficient ground in law to justify the setting aside of a Notice or to issue a Notice.19 [61] In my view, under r 64B of the Rules, the Respondent is required to provide documents if they are directly relevant. The Respondent is not entitled to remove or redact parts of documents of their own volition that they consider to be unduly sensitive, private or confidential. The requirements for disclosure in proceedings overbear those other requirements, in part because documents disclosed in the course of litigation are already subject to various protections. If the matter proceeds to hearing, it is open to seek suppression orders. [62] I appreciate the Respondent has raised concerns regarding privacy and confidentiality, and so I will make this point clear. Parties who receive documents in the course of proceedings by way of discovery, subpoena or notice of non-party disclosure must not use those documents or the information therein for a purpose other than the conduct of the proceedings in question. [63] I will order accordingly. Category Three [64] The Applicant has sought his complete Human Resources file kept and maintained by the Respondent regarding his former employment, including medical, health and leave records (Category Three). [65] The Applicant submits he requires the documents covered by Category Three because: • The Applicant's evidence will be that he was able to continue in employment without any negative impact from post-traumatic stress disorder associated with his service in the Navy. • The Applicant's medical, health and leave records are directly relevant to the issue of his fitness for work prior to the investigation against him - specifically "to the connection between a pre-existing post-traumatic stress disorder caused by Mr Crandon's service in the Navy and an injury caused by the conduct of his employer and directly relevant to medical evidence in the proceeding." • The Applicant's performance and disciplinary record will also be relevant to his conduct and issues associated with the investigation and are matters that should have been taken into account during the investigation to comply with Seqwater's Discipline Procedure. Further, the Applicant's performance as an employee is 19 [2014] ICQ 010, [18] – [20]. -- 18 of 24 -- 19 directly relevant to the likelihood of him engaging in a racial slur of the type alleged against him. • The Applicant's records will be relevant to the knowledge of the Respondent with respect to the health of the Applicant and to the condition of post-traumatic stress disorder. It is relevant to whether, in light of the Applicant' s health, the conduct of his employer was reasonable. [66] In the Objection Letter and subsequent submissions filed 24 June 2021, the Respondent submitted that: • The Applicant's entire personnel file is not relevant to any issue in proceedings. • The Applicant's submissions appear to focus on relevance arising from quantum of any liability whereas the current proceedings relate to assessment of liability. • The Applicant's personnel file will include documents which date back to about 2008, and will be entirely irrelevant to any matter in issue. • The Respondent invited the Applicant to particularise which specific documents are sought under this category, together with an explanation on relevance. The Applicant has not done so. • Notwithstanding the above, the Respondent is prepared to produce records which evidence the periods in which the Applicant took personal leave during his employment and any previous disciplinary action taken against the Applicant during his former employment with the Respondent. [67] The Regulator submits that if the Applicant's personnel file contains any document falling into the categories listed at [51] above in respect of the investigation process, then such documents should be disclosed. Consideration [68] Clause 5.2 of the Seqwater Discipline Procedure provides that Seqwater will give consideration to relevant personnel records as part of the investigation process into allegations of misconduct. If the Applicant can prove the Respondent failed to do so, this is an allegation which may prove the Respondent failed to take reasonable management action in a reasonable way. For that reason, I find that the documents requested under Category Three are directly relevant to an issue in this proceeding. [69] I acknowledge the Respondent's concerns regarding the ambit of the personnel file, particularly considering the Applicant's length of service. However, the Applicant can -- 19 of 24 -- 20 not prove what is within the scope of the Respondent's knowledge if he does not have access to the personnel file. [70] I will order accordingly. Category Four [71] The Applicant has sought all records, statements, records of interview, witness statements, phone records, text messages etc. in relation to the complaint of bullying made by the Applicant against Mr Slatyer in or about February 2020 (Category Four). [72] The Applicant submits he requires the documents covered by Category Four because: • Approximately one day before the Incident, the Applicant made a complaint against his manager Mr Slatyer. During the investigation against him, the Applicant was informed that his complaint against Mr Slatyer had been fully investigated. The Applicant contends that his complaint was never investigated or dealt with by the Respondent and nothing had occurred to indicate that an investigation had occurred. • A complaint made by the Applicant which immediately proceeds a complaint made against him is directly relevant to whether the conduct of the Respondent could be reasonable management action taken in a reasonable way. [73] In the Objection Letter and subsequent submissions filed 24 June 2021, the Respondent submitted that the stated cause of the Applicant's injury, which is the subject of the Proceedings, does not relate to any action, or inaction, by the Respondent in relation to addressing and/or investigating any bullying complaint made by the Applicant against Mr Slatyer. Accordingly, any documents relating to any such action, or inaction, are not relevant to any matter in issue in the Proceedings. [74] In relation to Categories Four, Five and Six, the Regulator submits that the difficulty with the request of documents is that neither the Applicant nor his solicitor at the time of writing, have been able to identify any such written complaint. As such it is difficult to determine the relevance of such documents. Further, "it seems fanciful to submit that the genesis and the outcome of the complaint against the Appellant has been somehow influenced by an alleged complaint made by the Appellant." Consideration [75] The issue in contention is whether the investigation process into the misconduct allegation made against the Applicant constituted reasonable management action taken in a reasonable way. Whether or not the Respondent undertook a comprehensive investigation into the bullying complaint made by the Applicant will not have a bearing -- 20 of 24 -- 21 on that issue in the Appeal proceeding. Even if the documents would tend to prove that the investigation process into the bullying complaint was incomplete, that complaint is separate from the one that caused the Applicant's psychiatric injury and is therefore irrelevant. [76] I will order accordingly. Category Five and Category Six [77] The Applicant has sought all correspondence from or to Mr Slatyer referring to the Applicant between February and August 2020 (Category Five). Further, the Applicant has sought all correspondence or records of communication between Mr Meissner and any of the witnesses involved in the Incident in the week prior to the Incident being formally raised (Category Six). [78] The Applicant submits he requires the documents covered by Category Five because: • At the initial interview attended by the Applicant where he was informed of the allegations against him and that he was stood down, Mr Slatyer and Mr Cassie were present. The Applicant had made the allegation about Mr Slatyer to Mr Cassie. The letter of allegation against the Applicant and the outcome letter with respect to the investigation were signed and issued by Mr Cassie. • Correspondence to and from Mr Slatyer about the Applicant prior to and during the investigation process are relevant to the issue of the relationship between the Applicant and Mr Slatyer as well as to Mr Slatyer's involvement in the investigation process. It is directly relevant to whether reasonable management action was taken by the Respondent. [79] The Applicant submits he requires the documents covered by Category Six because: • During the investigation process he informed Seqwater HR staff of a conversation that occurred during the day of the Incident. One of the occupants in the vehicle and a witness initiated a conversation about the Applicant's conduct. The Applicant explained to investigators that the conversation with this witness involved the Applicant's actions being referred to by this person as stupid and raised voices being directed at the Applicant. The action taken by the Applicant and the subject of the discussion impacted the work unit supervised by Mr Meisner and some participants in the Incident reported directly or indirectly to Mr Meisner. • The Applicant's relationship with Mr Meisner and the fact that Mr Meisner's business unit was impacted by the business case are matters that should have been part of the investigation and consideration of matters during the investigation process. -- 21 of 24 -- 22 [80] In the Objection Letter and subsequent submissions filed 24 June 2021, the Respondent submitted the following: • The categories sought are exceptionally broad, likely capture a large number of documents which will be irrelevant to the Appeal and constitutes an impermissible fishing expedition. • Both categories are likely to capture confidential internal correspondence, and put the Respondent to the material inconvenience of searching Mr Slatyer's, Mr Meissner's and others' email accounts. • In respect of Mr Slatyer, the searches would be required in relation to a period of seven months. The Respondent objects as follows: a) The Applicant has failed to set out the basis on which he alleges that the correspondence will be relevant to an issue in the Proceedings. b) At the time of the Incident, the witnesses either reported to Mr Meissner, or were work colleagues of his. Accordingly, Category Five is very likely to capture, and require production of, ordinary work-related correspondence between these parties, which is both confidential to the Respondent and irrelevant to the Proceedings. c) Mr Cassie was the decision-maker in relation to the investigation of the Incident and subsequent disciplinary action, and not either Mr Meissner or Mr Slatyer. d) The categories constitute an impermissible fishing expedition. As part of the Appeal, the Applicant has, without proper basis or foundation, alleged that the investigation into the Incident was in response to either a complaint made by the Applicant against Mr Slatyer, or alternatively concerns the Applicant has asserted to have raised in relation to the spending of public money. These allegations are denied by the Respondent. It would appear that these categories are being sought by the Applicant, without specifically knowing what (if any) document he is seeking, in order to consider whether he has any basis to make the above allegations. In Weston and Parer v Department of Justice and Attorney-General (Qld) (No 4), it was stated that: A request for disclosure must not be in the nature of a fishing expedition in the sense that it is an endeavour not to obtain evidence to support a case but to discover whether there is a case at all.20 20 [2016] QIRC 75, [4]. -- 22 of 24 -- 23 • The Applicant presently has no basis to allege that Mr Slatyer improperly instigated, interfered with, or negatively influenced the investigation as a result of any complaint made by the Applicant in relation to him. Instead, it is submitted that this category is being sought to consider whether there is any proper basis for such an allegation, which the Respondent submits is an impermissible use of a disclosure request. The Applicant responded to this point by arguing that he has identified a basis for him to be reasonably suspicious of the conduct of others involved. During the same vehicle trip that gave rise to allegations against the Applicant, issues were raised with him about concerns he expressed. Consideration [81] For the reasons outlined under Category 4 above, I have concluded that similarly the documents sought under Category Five and Category 6 are not directly relevant to an issue in the Appeal proceeding. Further, I agree with the Respondent that the request for this information comprises an "impermissible fishing expedition" that is aimed at discovering whether there is a case that exists with respect to the Applicant's suspicions. [82] The description of documents requested by the Applicant are unreasonably broad and will inevitably capture correspondence that is irrelevant to the proceeding. I agree that some of the documents sought are so vague and unparticularised as to render the request unduly onerous. Conclusion [83] I will vary the Notice for the reasons and on the terms outlined above, and then lift the stay on the Notice such that the remaining documents are required to be disclosed. [84] Due to the significant number of documents to be disclosed, I accept the Respondent's submissions that any Order for production should grant a minimum of 21 days for compliance. [85] I order accordingly. Orders: 1. That pursuant to r 64G(2) of the Industrial Relations (Tribunals) Rules 2011 (Qld): a. The Notice of non-party disclosure filed 11 May 2021 be varied on pg 3 to strike out documents numbered 1 - 5. -- 23 of 24 -- 24 b. The annexure to the Notice of non-party disclosure filed 11 May 2021 be varied under the heading 'Schedule of Documents' to read: 1 All documents pertaining to the complaint made against the Applicant with respect to the Incident that allegedly took place on 3 March 2020 and subsequent investigation into said complaint, including but not limited to the complaint, statements of witnesses, records of interview of witnesses, investigation file notes and reports, any document recording how the complaint was assessed and determined, and any other document considered by the Respondent during the investigation process. The scope of documents is limited to that which was produced, provided or considered on and before 9 March 2020. The documents are to be provided without redactions. 3 Medical and health records held on the Applicant's personnel file, a summary of leave records including but not limited to a breakdown of dates on which the Applicant took annual leave, sick leave and any other form of leave as well as the reasons for taking said leave and records of previous investigations into allegations made against the Applicant. The scope of documents is limited to that which were filed in the Applicant's personnel file on and before 9 March 2020. The documents are to be provided without redactions. c. The annexure to the Notice of non-party disclosure be varied under the heading 'Schedule of Documents' to strike out documents numbered 2, 4, 5 and 6. d. The stay is then lifted on the varied Notice of non-party disclosure. e. The Respondent is to disclose the documents in this Order to the Applicant within 21 days. -- 24 of 24 --