Bunney v Workers' Compensation Regulator [2020] QIRC 210

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION CITATION: Bunney v Workers' Compensation Regulator [2020] QIRC 210 PARTIES: Bunney, Glenn (Appellant) v Workers' Compensation Regulator (Respondent) CASE NO: WC/2019/96 PROCEEDING: Application in existing proceedings DELIVERED ON: 7 December 2020 MEMBER: HEARD AT: Power IC Brisbane ORDERS: 1. Sundale is to produce to the Appellant in accordance with r 64H(1) of the Industrial Relations (Tribunals) Rules 2011 documents in Categories 1 and 2 (or the equivalent policies), 3, 4, 7, 10, 11 and 12 of the Notice of Non-Party Disclosure issued by the Appellant on 3 April 2020, within fourteen days. 2. Sundale is to produce to the Appellant a redacted copy of the Minutes of the Board Meeting of 14 May 2020 which does not disclose confidential legal advice received from its solicitors, and must otherwise produce documents in -- 1 of 19 -- 2 Category 5 in accordance with Order 1 above. 3. Sundale is not required to produce documents in Category 6 and 8. 4. Sundale is to produce documents in Category 9 excluding documents relating to Mr McHugh or Ms Daly. 5. Within one month after producing the documents referred to in Orders 1 and 2 above, Sundale is to give to the Appellant written notice of its reasonable expenses of producing those documents. CATCHWORDS: INDUSTRIAL LAW - APPLICATION IN EXISTING PROCEEDINGS – where there is an objection to a notice of non-party disclosure LEGISLATION: CASES: Industrial Relations Act 2016 (Qld) s 545(2) Industrial Relations (Tribunals) Rules 2011 (Qld), r 41, r 42, r 46, r 64B, r 64E, r 64F, r 64G, r 64I 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 -- 2 of 19 -- 3 Mullins v Workers' Compensation Regulator; Ex parte Drake International Pty Ltd (No. 2) [2020] QIRC 003 Osland v Secretary to the Department of Justice [2008] HCA 37 Talbot v Boyd Legal (A Firm) and Ors [2020] QSC 185 Westsland P/L v Johnson [1999] QSC 337 Weston and Parer v State of Queensland (Department of Justice and Attorney General) (No 4) [2016] QIRC 75 APPEARANCES: Mr J. Kimmins, of Counsel, instructed by Denning Insurance Law, for the Appellant Mr P. O'Neill, directly instructed by the Workers' Compensation Regulator. Ms N. Pearce, of Counsel, instructed by McCullough Robertson, for Sundale Ltd. Reasons for Decision Background [1] The Appellant in the substantive proceedings, Mr Bunney ('the Appellant'), has sought production of documents by Sundale Ltd ('Sundale'), a non-party to the proceedings. [2] The issue for determination in this proceeding is whether Sundale is required to produce documents identified in the Notice of Non-Party Disclosure ('NNPD') in relation to the claim for workers' compensation by Mr Glenn Bunney ('the Appellant'). -- 3 of 19 -- 4 [3] The NNPD relates to an appeal brought by the Appellant against a decision of the Workers' Compensation Regulator arising from an alleged injury sustained whilst an employee with Sundale. [4] The Appellant served Sundale with the NNPD on 9 April 2020. Sundale's representatives McCullough Robertson served the objection to the NNPD by letter dated 24 April 2020 from. [5] Sundale objects to the production of the requested records pursuant to r 64E of the Industrial Relations (Tribunals) Rules 2011 ('the Rules'). Rule 63F provides that service of an objection under r 64E operates as a stay of the notice. [6] The parties filed written submissions in accordance with a directions order following which a hearing was held. [7] In summary, Sundale's objections to the production of a number of documents are based on the following - (a) lack of relevance to a matter in issue in the proceedings; (b) confidentiality; and (c) privilege. [8] The Appellant opposes the granting of leave to object to the NNPD on the basis that it was provided outside the permissible time period. Relevant legislative framework Industrial Relations (Tribunals) Rules 2011 [9] Rule 41(1) of the Rules provides that the Commission may make a directions order about the conduct of the proceeding on the application of a party or on the initiative of the Commission. Rule 41(2)(o) provides that a directions order may relate to requiring disclosure of documents and r 41(2)(p) provides that a directions order may relate to requiring inspection of documents. [10] Rule 46 of the Rules provides: (1) If a directions order requiring disclosure of documents is made, a party must disclose any document that - (a) is relevant to the proceeding or a matter in issue in the proceeding; and (b) is in, or comes into, the position of the party. -- 4 of 19 -- 5 (2) A party must act under subrule (1) until the proceeding is concluded or the matter in issue is admitted, withdrawn, struck out or otherwise disposed of. (3) Subrule (1) does not apply to a document in relation to which there is a valid claim to privilege from disclosure. [11] Rule 64B of the Rules provides the following: 64B Notice requiring non-party production (1) A party to a proceeding may, by notice of non-party production, require a person who is not party to the proceeding (the non-party) to produce to the party, within 14 days after service of the notice on the non-party, a document - (a) directly relevant to a matter in issue in the proceeding; and (b) in the possession or under the control of the non-party; and (c) that is a document the non-party could be required to produce at the hearing for the proceeding. (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. [12] Rule 64E of the Rules provides the following: 64E Objection to production (1) The non-party, or a person who has been served with a copy of the notice under rule 64 D, may object to the production of some or all of the documents mentioned in the notice within 7 days after its service or, with the leave of the industrial tribunal, a later time. (2) Also, another person who would be affected by the notice and who has not been served may object to the production of some or all of the documents mentioned in the notice at any time with the leave of the industrial tribunal. (3) The objection must - (a) be written; and (b) be served on the party; and (c) if the person objecting (the objector) is not the non-party - be served on the non-party; and (d) clearly state the reasons for the objection. -- 5 of 19 -- 6 (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. [13] Rule 64F of the Rules provides: 64F Objection stays notice Service of an objection under rule 64E operates as a stay of the notice. [14] Rule 64I of the Rules provides: 64I Costs of production (1) Subject to rule 64G(3), the party must pay the non-party's reasonable expenses of producing a document. (2) Within 1 month after producing a document, the non-party must give to the party written notice of the non-party's reasonable expenses of producing it. (3) Unless the industrial tribunal otherwise orders, the party may apply to the registrar within 1 month after receiving written notice under subrule (2) for assessment of the expenses. [15] A number of principles relevant to the task of considering an objection to disclosure were identified in Weston and Parer v State of Queensland (Department of Justice and Attorney General) (No. 4)1 - [4] The case law relating to disclosure establishes a number of principles including the following which are relevant to the task confronting the Commission: · A decision of the Commission to order disclosure is a quintessential exercise of discretion. · To be discoverable a document must relate to the questions or issues to be decided by the proceedings. · A document is relevant if it contains information which enables the party calling for production of the document to advance its own case or damage the case of their adversary or it is a document which may fairly lead to a train of inquiry which may have either of those consequences. 1 Weston and Parer v State of Queensland (Department of Justice and Attorney General) (No. 4) [2016] QIRC 75 -- 6 of 19 -- 7 · A party will not be required to produce documents where to do so would be oppressive. · 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. · Orders for disclosure should not be made for the purpose of enabling a party to attack credibility. Documents requested [16] The documents sought by the Appellant in the NNPD are reproduced from the Appellant's Attachment B to the Form 29 below - No. Dates Description 1 Versions current during the period 14.05.2018 to 24.07.2018 Sundale Ltd Grievance and Complaints 2 Versions current during the period 14.05.2018 to 24.07.2018 Sundale Ltd Code of Ethics 3 Unknown Copies of the written complaints received by Mr John Woodward, as referred to in paragraph 56 of his statement dated 7 October 2018. 4 Unknown Diary notes of the oral complaints which were made to Mr Woodward as referred to in paragraph 48 of Mr Woodward's statement dated 7 October 2018. 5 14.05.2018 Minutes of the Board Meeting, together with any memorandum, diary notes or other such documents. In paragraph 62 of Mr Woodward's statement dated 7 October 2018 he refers to a Board meeting which occurred on 14 May 2018 wherein it was agreed that the allegations need to be investigated and that pending the investigation the Appellant's employment should be suspended on full pay. That Board meeting is directly relevant to the suspension of the Appellant's employment and what followed the suspension of the Appellant's employment. 6 Unknown Written advice from McCullough Robertson Lawyers, together with all documents in Sundale Ltd's possession or power which relate to Ms Daly and any advices should be disclosed. At paragraph 63 of Mr Woodward's statement, he refers to Ms Lydia Daly providing written advice in relation to several options. 7 14 May 2018 to 24 July 2018 Documents within Sundale's possession or power to and from Angela Petie. Sundale relies upon her evidence in relation to what was involved in the investigation and the timing of the investigation. Therefore, documents which are in Sundale's -- 7 of 19 -- 8 possession or power, which are from or relate to Ms Petie are directly relevant to the issues in this proceeding. On paragraph 5 of the Outline of Evidence of Ms Petie, there is reference to a Letter of Engagement from McCullough Robertson dated 17 May 2018. In paragraph 6, Ms Petie also refers to certain documents with which she was provided. To the extent that these are not in the possession of Sundale Ltd, these documents which are within the possession of McCullough Robertson Lawyers are within their control and could be obtained by a simple request to that firm. 8 14 May 2018 to 24 July 2018 Copies of all documents exchange with Clout PR & Content. Sundale intends to lead evidence to the effect that Sundale Ltd sought the services of Clout PR & Content in advance of its announcements to Sundale Ltd staff and contractors via email and in person. In paragraph 16 of the Outline of Evidence of Professor Henley, it is asserted that the Board was guided in what action to take and its action should be communicated by advice from Sundale's lawyers and Clout PR & Content. Therefore, documents which are in Sundale's possession or power, which are from or relate to Clout PR a& Content are directly relevant to the issues in this proceeding. 9 Unknown Any file notes, diary notes or other memoranda which relate to advice from or contact with Mr McHugh, Ms Petie or Ms Daly. These documents are directly relevant to the issues in this proceeding and should be produced by Sundale Ltd. 10 Unknown Paragraph 3.1(a)(i) of the Appellant's employment contract refers to the "Executive's Position Description". A copy of that document, current as at the time of the Appellant's suspensions, is requested. 11 Unknown Document in support of Ms Danielle McKenzie's assertion that she was travelling to Brisbane for a flight and did so by bus. 12 Unknown Any file notes, diary notes or other memoranda which relate to communications between Ms McKenzie and staff, as described in paragraphs 2 and 5 of Ms McKenzie's Outline of Evidence. Leave to object [17] The Appellant served the NNPD on 9 April 2020. The objection to the NNPD on behalf of Sundale was received on 24 April 2020 from McCullough Robertson. Rule 64E of the Rules provides that a non-party may object to the production of some or all of the documents in a NNPD within seven days after its service. The objection was therefore required to be served by 16 April 2020 (considering Easter public holidays), however Sundale did not deliver its objections until 24 April 2020. The objections were therefore delivered eight days beyond the prescribed time limit. -- 8 of 19 -- 9 [18] The Appellant submits that leave should not be granted to object to the NNPD for the following reasons, in summary: • the objections were served out of time; • no explanation was provided for serving objections out of time; • no acknowledgement was made that the objections were served late; • Sundale did not acknowledge that leave was required to validly serve the objections for the purposes of rr 64E and 64F; • the Appellant has been put to the expense, inconvenience and delay associated with making application to the Commission for orders pursuant to rr 64(1) and 64(2); and • Sundale has not produced any of the documents that it concedes it is required to produce under the NNPD and a demand for payment of costs is not a valid reason for refusing to do so. [19] Sundale submits that it should be granted leave to object beyond the time limit for the following reasons, in summary - • the intervention of the Easter long weekend on the day immediately following service of the notice, consumed more than half of the seven days; • Sundale immediately sought legal advice upon receiving the NNPD and their solicitors engaged with the Appellant in order to obtain the statement of facts and contentions; and • the Appellant's conduct including refusal to provide a copy of the pleadings and duplication of requests on three non-parties. [20] In my view, a decision to deny Sundale leave to object would be unfair in the circumstances. Sundale did not ignore the NNPD and through its legal representatives attempted to engage with the disclosure process. Sundale appears to have acted diligently in attempting to comply with the timeframe, which was in effect shorter than would normally be the case due to the intervening Easter holiday period. The delay of eight days in filing its objections is modest and with no discernible prejudice suffered by the Appellant. [21] As a non-party to the substantive matter, it is important that Sundale's submissions with respect to the documents sought are considered. [22] Pursuant to r 64E(1)(ii), leave is granted to extend time for delivery of Sundale's objections to the NNPD by a period of eight days. -- 9 of 19 -- 10 Legal Professional Privilege [23] Sundale has objected to providing a number of documents on the basis of legal professional privilege. [24] It is well settled that in assessing whether communications attract legal professional privilege, it is the purpose of the report and not the motivation of the individual who made the report that is relevant.2 The dominant purpose test was affirmed in Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission3: It is now settled that legal professional privilege is a rule of substantive law which may be availed of by a person to resist the giving of information or the production of documents which would reveal communications between a client and his or her lawyer for the dominant purpose of giving or obtaining legal advice or the provision of legal services including representation in legal proceedings. It may here be noted that the "dominant purpose" test for legal professional privilege was recently adopted by this court in Esso Australia Resources v Commissioner of Taxation in place of the "sole purpose" test which had been applied following the decision in Grant v Downs. [25] The dominant purpose is to be determined objectively, however that does not render evidence of the intention of the documents maker irrelevant. As outlined by Applegarth J, in Talbot v Boyd Legal (A Firm) & Ors4, an appropriate starting point when applying the dominant purpose test is to ask what was the intended use or uses of the document which accounted for it being brought into existence. Waiver [26] The Appellant in this matter submits that Sundale cannot rely upon legal professional privilege on the basis that such privilege has been waived. [27] As held in Attorney-General (N.T.) v Maurice5 ('Maurice') legal professional privilege is limited by the doctrine of waiver. Privilege is implied to be waived when by reasons of conduct on the privilege holder's part, it becomes unfair to maintain the privilege. In Maurice, the Court considered that the question as to whether an implied waiver exists: …depends on whether it would be unfair or misleading to allow a party to refer to or use material and yet assert that material, or material associated with it is privileged from production …6 2 Esso Australia Resources v Commissioner of Taxation (1999) HCA 67 8 3 (2002) HCA 49 4 4 [2020] QSC 185 5 [1986] HCA 80 6 Ibid at [7] -- 10 of 19 -- 11 [28] Sundale relies upon Osland v Secretary to the Department of Justice,7 as addressing similar facts in which a party has disclosed the act of obtaining legal advice and the gist of the advice. In this matter the Court said the following – Whether, in a given context, a limited disclosure of the existence, and the effect, of legal advice is inconsistent with maintaining confidentiality in the terms of advice will depend upon the circumstances of the case.8 Relevance [29] Rule 64B entitles the Appellant to require (by a notice of non-party disclosure) production of a document which inter alia is directly relevant to a matter in issue in the proceedings in which the non-party could be required to produce at the hearing for the proceeding. [30] The test is whether the documents are directly relevant to a matter in issue in the proceeding. In Mullins v Workers' Compensation Regulator; Ex parte Drake International Pty Ltd (No. 2)9, Black IC stated the following - In Xstrata Queensland Ltd v Santos Ltd & Ors, McMurdo J was asked to consider the distinction between the test of relevance under the general law and the requirement of the Uniform Civil Procedure Rules 1999 (Qld) (UCRP) which is that only directly relevant documents must be disclosed. In this respect, McMurdo J said that "a document is directly relevant in this sense only if it tends to prove or disprove an allegation in issue in the proceedings". [31] The central issue in the substantive matter is whether Sundale has sustained an injury as a result of the stressors identified in his Statement of Facts and Contentions, and if so whether the injury is excluded on the basis of reasonable management action taken in a reasonable way. Documents sought are relevant if they tend to prove or disprove matters relating to this issue. Consideration [32] I note Sundale's submission that the document in Category 1 does not exist ('Grievance and Complaints Policy'), and that they are prepared to produce a copy of the document to which it is believed reference is intended to be made ('Whistle-blower Policy'). [33] Counsel for the Appellant advised at the hearing that correspondence had been exchanged between the parties with respect to Item No. 4 on the NNPD. The Appellant no longer seeks these documents based on Sundale's advice that they do not exist. 7 (2008) 234 CLR 275 8 Ibid at [51] 9 [2020] QIRC 003 -- 11 of 19 -- 12 [34] Sundale offered to produce documents sought in the NNPD Categories 1, 2, 10 and 11 on 24 April 2020 upon payment to the sum of $11,000 in costs. [35] The Appellant submits that Sundale agreed to provide the documents numbered 1, 2, 3, 10 and 11 in the application on 24 April 2020, however have not yet done so due to disagreement on the matter of costs. Documents subject to objection Category 3 - Copies of the written complaints received by Mr John Woodward as referred to in paragraph 56 of his statement dated 7 October 2018 Category 4 - Diary notes of the oral complaints which were made to Mr Woodward as referred to in paragraph 48 of Mr Woodward's statement dated 7 October 2018 [36] The Appellant submits that these documents are directly relevant as such complaints are asserted by the Regulator to be the reason that the Appellant was stood down from his employment. [37] In accordance with the Appellant's employment contract, Sundale was only entitled to suspend the Appellant in accordance with clause 17.1: …if the employer has reasonable grounds for suspecting that the executive has breached this document or had engaged in serious misconduct, it may suspend the executive to enable it time to discuss this with the executive and to consider what further action it will take as a result of the suspected breach or misconduct. [38] Sundale objects to providing copies of the complaint on the basis of r 64E(4)(e) of the Rules which provides that an objection may include "the confidential nature of the document or their contents". [39] Although the Appellant submits that staff were not instructed to keep complaints confidential until after Sundale announced the Appellant's suspension and investigation, I accept that the complaints contain information that were likely to have been imparted in confidence. [40] In DP World Brisbane Pty Ltd v Rogers & Anor10, President Martin J outlined the principles to be considered with respect to claims of confidentiality: 10 [2014] ICQ 010 -- 12 of 19 -- 13 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 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 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 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. [41] It was on the basis of these complaints that the Appellant was suspended from his employment. The content of the complaints is relevant to consideration of whether Sundale had reasonable grounds for suspecting a breach of his employment contract or that he had engaged in serious misconduct. I understand Sundale's submission that compliance with the Appellant's employment contract is the subject of separate proceedings, however it is also relevant to the issue of reasonable management action. [42] Sundale submits that the Appellant was provided with the substance of the complaint, as was the insurer and the Regulator. In my view summaries of the original complaints are not adequate to determine if Sundale took reasonable action following receipt of the original complaints. [43] Sundale is ordered to produce the Category 3 and Category 4 documents as outlined in the NNPD. Category 5 - Minutes of the Board Meeting, together with any memorandum, diary notes or other such documents [44] Sundale submits that it is prepared to produce a redacted copy of the Board Minutes of 14 May 2020 (redacted to remove reference to privileged oral legal advice). [45] The Board Meeting in question is the forum in which the decision was made that the allegations needed to be investigated and the Appellant's employment would be suspended on full pay. [46] The decision to suspend the Appellant's employment is central to the issue as to whether Sundale's actions were reasonable management action taken in a reasonable way. I accept that the Board Meeting documents are therefore relevant to the matter and should be disclosed to the Appellant. -- 13 of 19 -- 14 [47] Sundale submits that the Minutes record legal advice given at the meeting and claim legal professional privilege over this part of the Minutes. [48] I accept that legal professional privilege attaches to the oral legal advice because it was given for the dominant purpose of either providing to Sundale confidential legal advice. [49] The Appellant submits that Sundale has waived privilege in relation to advice from legal advice, and in particular, reference is made to paragraphs 58, 59, 63, 69, 74, 76 and 77 of the statement of Mr Woodward, the Chairperson of Sundale's Board of Directors. [50] As outlined above, legal professional privilege is limited by the doctrine of waiver. The question to consider with respect to waiver is whether it would be unfair or misleading to allow a party to refer to or use material and yet assert that material, or material associated with it, is privileged from production11. [51] Sundale relies upon Osland v Secretary to the Department of Justice,12 to assert that there has been no implied waiver of legal professional privilege. Sundale submits that Mr Woodward's statement was made to assert that due process had been followed and that its action was not based on arbitrary considerations. The statement is submitted to involve no inconsistency or unfairness to the Appellant and was given to provide the fullest information about the process it had followed. [52] In my view, Sundale's conduct does not constitute an implied waiver of legal professional privilege in this matter. The Appellant asserts that Sundale has waived privilege by reference to Mr Woodward's statement. I accept this statement was intended to outline a process by which Sundale sought legal advice. As noted above, privilege is implied to be waived when it becomes unfair to maintain the privilege. I am not satisfied that it is unfair to the Appellant to maintain Sundale's legal professional privilege in this matter. [53] Sundale is ordered to produce a copy of the Board Minutes of 14 May 2020, with reference to privileged oral legal advice redacted. Category 6 - Written advice from McCullough Robertson Lawyers [54] Before consideration is given to issues of privilege and waiver, the question of relevance must be addressed. I accept that the legal advice is relevant in that it directly relates to the actions taken by management with respect to the Appellant's employment, and specifically the suspension, terms of suspension and email to staff. 11Attorney-General (N.T.) v Maurice [1986] HCA 80 12 [2008] HCA 37 -- 14 of 19 -- 15 [55] I accept that legal professional privilege attaches to the written legal advice because it was given for the dominant purpose of either providing to Sundale confidential legal advice, or alternatively actual or anticipated litigation. [56] The same consideration outlined above with respect to the oral legal advice applies to the written legal advice. Reference to having sought and obtained legal advice was done so for the purpose of outlining the process undertaken rather than to reveal a particular aspect of the advice. I am not persuaded that Sundale has waived the right to privilege as a result of references in Mr Woodward's statement. [57] Category 6 documents are set aside. Category 7 - Documents within Sundale's possession or power to and from Angela Petie [58] The Appellant asserts that these documents are directly relevant as Angela Petie carried out the investigation into the Appellant. [59] I note that Regulator relies upon Ms Petie's evidence in relation to what was involved in the investigation and the timing of the investigation. I accept that there are issues with respect to the commencement of the investigation that are relevant to whether management acted reasonably in the circumstances. [60] Sundale alleges that McCullough Robertson retained Ms Petie on behalf of Sundale for the dominant purpose of obtaining legal advice for use in anticipated legal proceedings and such communications are privileged. However, the Appellant submits that Ms Petie was appointed to conduct the investigation as a "workplace consultant", not to provide legal advice. [61] I am not persuaded that the retention of Ms Petie was for the dominant purpose of obtaining legal advice or for use in anticipated legal proceedings. As I understand it, Ms Petie was retained by Sundale to conduct a workplace investigation and provide a report on her findings. This does not attract legal professional privilege. [62] Sundale is ordered to produce documents within their possession or power to and from Angela Petie. -- 15 of 19 -- 16 Category 8 - Copies of all documents exchanged with Clout PR & Content [63] The Appellant submits that the Regulator intends to lead evidence to the effect that Sundale sought the services of Clout PR & Content and relied upon its advice in relation to the relevant matters and therefore the action was reasonable management action carried out in a reasonable way. [64] In Goldsmith v Sandilands the High court said that evidence is relevant "if it could rationally affect, directly or indirectly, the assessment of the probability of the existence of a fact in issue in the proceeding."13 I am not persuaded that documents exchanged with Clout PR & Content could affect the assessment of the probability of a fact in issue in these proceedings. [65] Whilst the Regulator may lead evidence to the effect that Sundale sought the advice of Clout PR & Content, in my view this is only relevant in confirming the fact that advice was sought. The content of any such advice does not tend to prove or disprove that Sundale's actions in sending the email to all staff upon the Appellant's suspension was reasonable in the circumstances. Whether the advice provided by Clout PR & Content was reasonable or not, and whether the advice was followed or not, is not relevant to the issue to be determined. [66] Category 8 documents are set aside. Category 9 - Any files notes, diary notes or other memoranda which relate to advice from or contact with Mr McHugh, Ms Petie or Ms Daly [67] The Appellant submits that these documents are directly relevant as the Regulator relies upon the provision of advice and services of McHugh, Petie and Daly, to Sundale, to establish reasonable management action taken in a reasonable way. [68] It is not in my view adequate to submit that documents are relevant simply because they have been referred to in the Regulator's material. It is not clear how the documents relating to Mr McHugh can tend to prove or disprove any issues in the substantive matter. As noted earlier, the actions of Sundale in having sought PR advice is not in dispute. However, the content of this advice does not assist in determining whether management action was reasonable in the context of the Appellant's nominated stressors. It is the management action of Sundale, not the advice of their service providers or advisers that is relevant to the substantive matter. [69] This category of documents is not in my view relevant for the same reasons discussed previously in relation to Mr McHugh from Clout PR & Content. I accept that they may be 13 (2002) 190 ALR 370 -- 16 of 19 -- 17 relevant with respect to Ms Daly, however these documents as discussed previously are subject to legal professional privilege which has not been waived. [70] With respect to this category of documents as they relate to advice from or contact with Ms Petie, I accept that these documents are relevant on the basis that the circumstances in which the workplace investigation occurred has the tendency to prove or disprove the Appellant's assertions with respect to reasonable management action. [71] Category 9 documents are to be provided with respect to advice from or contact with Ms Petie only. Documents relating to Mr McHugh and Ms Daly are set aside. Category 12 - Any files notes, diary notes or other memoranda which relate to communications between Ms McKenzie and staff, as described in paragraphs 2 and 5 of Ms McKenzie's Outline of Evidence [72] Sundale alleges that these documents of a confidential nature, however the Appellant's submit that there is no evidence to support such an assertion. [73] As outlined above with respect to the original complaints, the contents of the complaints are relevant to the question of whether the management action undertaken was reasonable and taken in a reasonable way. Similarly, the manner in which the complaints came to the attention of management is relevant in determining if the subsequent actions were reasonable. [74] In the interests of the administration of justice, an order for production is unlikely to be refused on the basis of confidentiality. The confidentiality of the document is somewhat protected following disclosure on the basis of implied undertakings. As noted in Westsand P/L v Johnson14, a party gaining access to a document pursuant to a NNPD is subject to an implied undertaking not to use it except for the purpose of the litigation. [75] Sundale is ordered to produce the Category 12 documents as outlined in the NNPD. Costs of production [76] The Appellant is required to pay Sundale's "reasonable expenses of producing a document" in adherence to the NNPD. [77] In support of their submission seeking the costs of production, Sundale submits that the breadth of the NNPD is extensive and they were not assisted in determining relevance by 14 [1999] QSC 337 -- 17 of 19 -- 18 provision of the Appellant's pleadings. Consequently, substantial time would be spent by its solicitors McCullough Robertson recovering and reviewing documents that may fall within the scope of the Notice. Sundale asserts that the reasonable expenses of undertaking this exercise, including McCullough Robertson's involvement to advise Sundale on compliance with the Notice are payable by the Applicant pursuant to r 64I of the Rules. [78] Sundale refers to the approved form of the NNPD that informs a non-party that it: ...is entitled to the reasonable costs and expenses of producing these documents. The nominated party must give notice of its costs and expenses within one month of compliance with this notice and the requesting party can pay those costs or cause the costs and expenses claimed to be assessed. [79] Sundale appears to have formed a view that documents subject to NNPD are not required to be provided prior to payment of the expenses as assessed by themselves. This is misconceived. [80] In accordance with r 64I of the Rules, within one month of producing a document Sundale must give the Applicant written notice of Sundale's reasonable expenses of producing the documents. The Applicant may apply to the Registrar within one month after receiving written notice for assessment of the expenses. Costs of this application [81] The Appellant seeks costs of the application in accordance with s 545(2) of the Industrial Relations Act 2016 and r 64H(2) of the Rules. [82] The Appellant submits that it is in order for the Commission to exercise its discretion to award costs in circumstances where Sundale refused to produce any of the documents until its costs were paid, did not accept offers by the Appellant to meet its reasonable expenses, and served objections out of time. [83] Sundale also seeks costs of the application on the basis that the NNPD was insufficiently detailed to comply with the requirements of such a notice. Sundale asserts that the schedule of documents contained no statement of the allegations in issue, with Sundale having the burden of divining the allegations. [84] I accept that Sundale raised legitimate objections with respect to relevance and privilege at the hearing in this matter, and the time delay to file the objection was not significant in the circumstances. Whilst the Appellant did not provide a statement of the allegations in issue as required, it is not the case that the Appellant failed to identify the allegations at all in the proceedings. -- 18 of 19 -- 19 [85] On balance, I am not persuaded that sound reasons exist as to why I should depart from the default practice, and as such pursuant to r 64G(3) of the Rules, each party to this application must bear their own costs. Orders 1. Sundale is to produce to the Appellant in accordance with r 64H(1) of the Industrial Relations (Tribunals) Rules 2011 documents in Categories 1 and 2 (or the equivalent policies), 3, 4, 7, 10, 11 and 12 of the Notice of Non-Party Disclosure issued by the Appellant on 3 April 2020, within fourteen days. 2. Sundale is to produce to the Appellant a redacted copy of the Minutes of the Board Meeting of 14 May 2020 which does not disclose confidential legal advice received from its solicitors, and must otherwise produce documents in Category 5 in accordance with Order 1 above. 3. Sundale is not required to produce documents in Category 6 and 8. 4. Sundale is to produce documents in Category 9 excluding documents relating to Mr McHugh or Ms Daly. 5. Within one month after producing the documents referred to in Orders 1 and 2 above, Sundale is to give to the Appellant written notice of its reasonable expenses of producing those documents. -- 19 of 19 --