Deceased Estate of Barry James Willis v Workers' Compensation Regulator [2020] QIRC 77

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION CITATION: Deceased Estate of Barry James Willis v Workers' Compensation Regulator [2020] QIRC 077 PARTIES: Deceased Estate of Barry James Willis (Appellant) v Workers' Compensation Regulator (Respondent) CASE NO: WC/2019/189 PROCEEDING: Application in existing proceedings DELIVERED ON: 29 May 2020 HEARING DATE: 16 March 2020 MEMBER: Merrell DP HEARD AT: Brisbane ORDER: Pursuant to r 64G(2)(a) of the Industrial Relations (Tribunals) Rules 2011, the stay of the notice of non-party disclosure dated 13 December 2019 to the Director-General of the Department of Education is lifted. CATCHWORDS: WORKERS' COMPENSATION - APPEAL AGAINST DECISION OF WORKERS' COMPENSATION REGULATOR - death - whether claimant was a 'worker' within the meaning of s 11 of the Workers' Compensation and Rehabilitation Act 2003 - application in existing proceedings to lift stay of notice of non-party disclosure - alleged contravention of s 271(2) of the Work Health and Safety Act 2011 by an Inspector appointed under that Act - whether unauthorised disclosure by Inspector is a relevant consideration in lifting the stay - whether the confidentiality requirement in s 271(2) of the Work Health and Safety Act 2011 applies to documents sought in the notice of non-party disclosure - requirements to properly -- 1 of 25 -- 2 describe documents in notice of non-party disclosure - stay lifted LEGISLATION: Industrial Relations Act 2016, s 531 and s 541(c) Industrial Relations (Tribunals) Rules 2011, r 6, r 59, r 64B, r 64E, r 64F, r 64G and r 64H Privacy Act 1988 (Cth), s 14 Taxation Administration Act 1953 (Cth), sch 1 Right to Information Act 2009, s 3, s 48 and sch 3 Work Health and Safety Act 2011, s 148, s 171, s 271 and s 273 Work Health and Safety Regulations 2011, s 701A and sch 18A Workers' Compensation and Rehabilitation Act 2003, s 11, s 327, s 330, s 336, s 573 and sch 2 CASES: ACE Insurance Ltd v Trifunovski [2011] FCA 1204; (2011) 200 FCR 532 Attorney-General v Walker (1849) 3 Exch 242; (1849) 154 ER 833 Clayton Utz (A Firm) v Dale [2015] VSCA 186: [2015] 47 VR 48 DP World Brisbane Pty Ltd v Rogers and Anor [2014] ICQ 010 Elias v Commissioner of Taxation [2002] FCA 845; (2002) 123 FCR 499 Fraser v Safework NSW [2019] NSWCATAD 227 LLM Holdings Pty Ltd v Michalakellis [2019] QIRC 075 Lucas Industries Ltd v Hewitt (1978) 18 ALR 555 McColl v Lehmann [1987] VR 503 -- 2 of 25 -- 3 Mullins v Workers' Compensation Regulator; Ex parte Drake International Pty Ltd (No 2) [2020] QIRC 003 Neat Holdings v Karajan Holdings Pty Ltd [1992] HCA 66; (1992) 67 ALJR 170 Norrie v New South Wales Registrar of Births, Deaths and Marriages [2013] NSWCA 145; (2013) 84 NSWLR 697 Perilya v Nash [2015] NSWSC 706 Southern Pacific Hotel Services Inc v Southern Pacific Hotel Corporation Limited [1984] 1 NSWLR 710 St Francis Xavier Cabrini Hospital Governing Board Inc v Micallef [2000] VSC 19 Toowoomba Demolition and Earthmoving Pty Ltd ATF Castle Family Trust v Workers' Compensation Regulator [2020] QIRC 030 Treasury and Finance, Department of 2018/11929 [2019] SAOmbFOI 5 Xstrata Queensland v Santos Ltd [2005] QSC 323 APPEARANCES: Mr P. O'Neill of Counsel directly instructed by Ms R. Jamieson of the Workers' Compensation Regulator Mr G. Beard of Brighthill Lawyers for the Deceased Estate of Barry James Willis Mr W. Ash and Ms B. Sakrzewski-Hetherington of Mills Oakley Lawyers for Brisbane Auto Recycling Pty Ltd Mr B. McMillan of Counsel, instructed by Crown Law for the State of Queensland (Department of Education) -- 3 of 25 -- 4 Reasons for Decision Introduction [1] On 17 May 2019, Mr Barry Willis sustained crush injuries from an impact by a forklift at the premises of Brisbane Auto Recycling Pty Ltd ('BAR'). As a consequence of those injuries, Mr Willis passed away in hospital on 25 May 2019.1 Mr Willis, amongst other work he performed, used a truck to move wrecked motor vehicles to and from BAR's premises. [2] Mr Willis' death was the subject of an investigation by Workplace Health and Safety Queensland ('WHSQ').2 WHSQ is an agency within the Department of Education ('the Department'). That investigation was conducted by Senior Inspector Tony Sheean. There is no dispute that Mr Sheean, in the course of his investigation, exercised powers pursuant to pt 9 of the Work Health and Safety Act 2011 ('the WHS Act') to obtain certain items and documents. [3] On 11 June 2019, an application for workers' compensation in respect of the death of Mr Willis was lodged by his daughter, Ms Josephine Cleeland. By decision dated 30 July 2019, WorkCover Queensland accepted that application. In doing so, WorkCover determined that Mr Willis was a 'worker' of BAR within the meaning of s 11 of the Workers' Compensation and Rehabilitation Act 2003 ('the Act').3 [4] By application for review lodged with the Workers' Compensation Regulator on 30 July 2019, BAR contended that Mr Willis was not a 'worker'.4 In supplementary grounds for review, BAR submitted, amongst other things, that: • WHSQ had issued notices pursuant to s 171 of the WHS Act and obtained information from BAR; and • it was unclear whether WorkCover had relied on information, obtained that way, from BAR.5 [5] By review decision dated 14 October 2019, the Regulator set aside WorkCover's decision and substituted a new decision to reject the application for compensation on the basis that Mr Willis was not a 'worker' ('the review decision').6 [6] By notice of appeal filed on 5 November 2019, the Estate of Mr Willis appealed against the review decision.7 Ms Ruth Moroney, Senior Appeals Officer, was allocated carriage of the appeal on behalf of the Regulator. In the course of disclosure, Ms Moroney became aware of WHSQ's investigation and that WHSQ had in its possession evidence that may 1 Exhibit 1, paras. 3-4. 2 Exhibit 1, para. 5. 3 Exhibit 1, exhibit RM-3. 4 Exhibit 1, exhibit RM-4, third page, paras. 1-2. 5 Exhibit 1, exhibit RM-5, paras. 4.3-4.4. 6 Exhibit 1, exhibit RM-6. 7 Exhibit 1, exhibit RM-7. -- 4 of 25 -- 5 be relevant to the appeal.8 On 18 November 2019, Ms Moroney telephoned Mr Sheean, had a conversation with him, and then sent him an email requesting he provide her with certain information.9 [7] By notice of non-party disclosure dated 13 December 2019, issued at the request of the Regulator, the Director-General of the Department was required to produce certain documents obtained during WHSQ's investigation ('the notice').10 The notice was served on BAR and stated that documents obtained during the WHSQ investigation were directly relevant to whether Mr Willis was in fact a 'worker'.11 [8] By notice of objection dated 18 December 2019 and served on the Regulator and on the Director-General of the Department, BAR objected to the notice ('the objection').12 One of BAR's grounds for the objection was that certain information sought by the Regulator in the notice was confidential information within the meaning of s 271(2) of the WHS Act and it would be unlawful for WHSQ to disclose that information. The other grounds were that item 4 of the notice lacked particularity and that other documents sought did not exist.13 Pursuant to r 64F of the Industrial Relations (Tribunals) Rules 2011 ('the Rules'), the service of the objection operated as a stay of the notice. [9] By application in existing proceedings filed by the Regulator on 20 December 2019 ('the Regulator's application'), it applies for: • an order, pursuant to r 64G(2) of the Rules, lifting the stay of the notice; • an order, pursuant to r 64H of the Rules, that the Director-General of the Department comply with the notice; and • an order, pursuant to s 541(c) the Industrial Relations Act 2016, that BAR pays its costs. [10] Rule 64G(2)(a) confers discretion on the Commission to make any order it considers appropriate including, but not limited to, an order lifting the stay. [11] The ultimate question is whether I should exercise my discretion and lift the stay. BAR submitted that a relevant consideration, in the exercise of my discretion, is its allegation that during their conversation on 18 November 2019, Mr Sheean disclosed information, which he had obtained during his investigation, to Ms Moroney in contravention of s 271(2) of the WHS Act, and that the Regulator was 'knowingly concerned' in that contravention.14 [12] From the submissions made, the issues to be determined are: • what did Mr Sheean say to Ms Moroney on 18 November 2019? 8 Exhibit 1, paras. 17-21. 9 Exhibit 1, para. 24. 10 Exhibit 2, exhibit RJ-4. 11 Exhibit 2, exhibit RJ-4, page 2. 12 Exhibit 2, exhibit RJ-5. 13 Exhibit 2, exhibit RJ-5, para. 2.2. 14 The submissions of BAR filed on 28 February 2020 ('BAR's submissions'), para. 53. -- 5 of 25 -- 6 • did Mr Sheean disclose information to Ms Moroney in contravention of s 271(2) of the WHS Act and, if so, was the Regulator knowingly concerned in that contravention? • if there was a contravention by Mr Sheean of s 271(2) of the WHS Act and if the Regulator was knowingly concerned in that contravention, is that relevant to the exercise of the discretion under r 64G(2)(a)? • does the confidentiality requirement in s 271(2) of the WHS Act apply to the documents required to be produced by the notice? • is item 4 of the notice drawn too broadly? and • having regard to all relevant considerations, should the stay be lifted? [13] For the reasons that follow, I order that the stay of the notice be lifted. What did Mr Sheean say to Ms Moroney on 18 November 2019? [14] Ms Moroney's evidence was that following the filing of the appeal against the review decision, she became aware, in the course of disclosure, that Mr Sheean had retrieved text messages, from Mr Willis' mobile phones, from the Directors of BAR to Mr Willis. Ms Moroney's evidence was that she was aware of the text messages because: • in an email to her dated 15 November 2019 from Mr Gavin Beard of Brighthill Lawyers, the lawyers for the Estate of Mr Willis,15 reference was made to: − a statement of Ms Kathlyn Kelly, dated 29 October 2019, regarding her reading multiple text messages from BAR's Directors to Mr Willis with work instructions that were on Mr Willis' mobile phone; and − an additional statement from Ms Cleeland which also referred to her reading multiple text messages on Mr Willis' mobile phones from BAR's Directors with work instructions;16 and • of her reading Ms Kelly's statement in which, at paragraph 8, Ms Kelly stated that around June 2019, Mr Sheean attended the Archerfield Speedway to retrieve Mr Willis' mobile phones and that after unlocking two of the phones, she witnessed approximately 18 messages on one phone and 17 messages on the other from the Directors of BAR giving Mr Willis addresses and car details to pick up cars.17 [15] Ms Moroney's evidence was that upon reading Ms Kelly's statement, she formed the view that the text messages were potentially relevant evidence regarding the employment status of Mr Willis.18 15 Exhibit 1, exhibit RM-8. 16 Exhibit 1, paras. 18-19. 17 Exhibit 1, para. 20. 18 Exhibit 1, para. 21. -- 6 of 25 -- 7 [16] Ms Moroney's evidence-in-chief was that on 18 November 2019, she telephoned Mr Beard to confirm whether WHSQ still had possession of the mobile phones, in response to which Mr Beard stated that she would have to confirm that with WHSQ.19 [17] On 18 November 2019, Ms Moroney called Mr Sheean who confirmed that WHSQ still had possession of the mobile phones.20 In her affidavit, Ms Moroney stated that Mr Sheean also mentioned that WHSQ had possession of duplicate receipt books.21 In her evidence in cross-examination, Ms Moroney stated that she said to Mr Sheean that she wanted a copy of the text messages in response to which Mr Sheean stated he could not give her any information and that she would have to confer with the Department22 and make a request through his superiors.23 Ms Moroney stated that Mr Sheean gave her his email address.24 Ms Moroney also stated that Mr Sheean mentioned that the receipt books had the details of BAR and the phone number of BAR on them.25 [18] Ms Moroney, in further cross-examination: • said that Mr Sheean said he had a photograph of a text message of an instruction on 17 May 2019; 26 and • denied the suggestion put to her that Mr Sheean advised her that there was a photograph of work instructions given by the Directors of BAR to Mr Willis to collect and deliver vehicles.27 [19] By email dated 18 November 2019, Ms Moroney requested from Mr Sheean: • a photo of the instructions given by the Directors of BAR to Mr Willis to collect and deliver vehicles; • a photocopy of the duplicate receipt book which Mr Willis used when he received vehicles on behalf of BAR; • if possible, the statement given by 'Kathleen' Marie Kelly, the company secretary of Archerfield Speedway; and • any other document that may be of assistance to demonstrate that Mr Willis was a 'worker' at the time of his death.28 [20] Ms Moroney stated that she sent the email to Mr Sheean because it was her practice to send a follow-up email to let people know that the call she made to them was a legitimate 19 Exhibit 1, para. 22. 20 Exhibit 1, para. 24. 21 Exhibit 1, para. 24. 22 T 1-18, ll 11-24. 23 T 1-22, ll 35-40. 24 T 1-22, ll 9-10. 25 T 1-15, ll 12-15. 26 T 1-15, l 30 to T 1-17, l 1 and T 1-20, ll 41-44. 27 T1-20, ll 36-39. 28 Exhibit 1, exhibit RM-10. -- 7 of 25 -- 8 one.29 Ms Moroney stated she did not expect to get a response from Mr Sheean because he had told her that she would have to make a request through his superiors and that he could not give her that information.30 [21] Earlier in her evidence in cross-examination, Ms Moroney stated that, in drawing in her email to Mr Sheean, it was her assumption that the receipt books were used by Mr Willis when he received vehicles on behalf of BAR31 and that Mr Sheean never told her the purpose for which the duplicate receipt books were used.32 [22] Ms Moroney's evidence-in-chief was that after she had spoken to Mr Sheean, she received, from Mr Beard, a further statement of Ms Cleeland dated 23 November 2019. Ms Moroney stated that Ms Cleeland provided further details around being present when Mr Sheean unlocked some of the mobile phones belonging to Mr Willis, and that Ms Cleeland specifically mentioned a text message on the morning of 17 May 2019 at 7.30 am to Mr Willis giving him instructions which was the day Mr Willis was involved in the accident.33 [23] Ms Moroney stated that she formed the view that the information in the possession of WHSQ was relevant to the issue to be determined in the substantive appeal, namely, whether Mr Willis was a 'worker' within the meaning of s 11 of the Act and that it was necessary for the Regulator, pursuant to its obligations as a model litigant, to try and obtain that evidence.34 [24] Ms Moroney then stated that on 11 December 2019, she received another email from Mr Beard who advised that his client was the lawful owner of the mobile phones and consented to the Regulator recovering the text messages located on the mobile phones seized by Mr Sheean.35 [25] Mr Sheean attended the hearing of this matter pursuant to an attendance notice requested by BAR. In his evidence-in-chief, when he was asked questions about his conversation with Ms Moroney, he invoked the privilege against self-incrimination.36 [26] Ms Moroney, from my observations of her during cross-examination, was genuinely trying to recall the details of the conversation with Mr Sheean. In doing so, Ms Moroney gave evidence about what Mr Sheean said to her which went beyond that contained in her affidavit. For this reason, I accept that Ms Moroney gave her evidence honestly. [27] A question arises as to whether I could and should draw any inference following on from Mr Sheean invoking the privilege against self-incrimination. The Regulator submits no adverse inference should be drawn.37 The Department submits that no inference should be drawn because there is no other evidence that tends to prove Mr Sheean contravened 29 T 1-18, ll 26-28. 30 T 1-22, ll 35-40. 31 T 1-18, ll 46 to T 1-19, l 4. 32 T 1-19, ll 6-9. 33 Exhibit 1, para. 26. 34 Exhibit 1, para. 27. 35 Exhibit 1, para. 28. 36 T 1-25, ll 39-42. 37 T 1-32, ll 26-44. -- 8 of 25 -- 9 s 271(2) of the WHS Act.38 BAR submits that I should draw an adverse inference if I do not accept the evidence of Ms Moroney.39 No adverse inference should be drawn against a witness who claims the privilege against self-incrimination.40 I do not draw any adverse inference against Mr Sheean. [28] This means that I am left with the uncontradicted evidence of Ms Moroney which I accept. [29] I find Mr Sheean told Ms Moroney that: • WHSQ still had possession of Mr Willis' mobile phones; • WHSQ had possession of duplicate receipt books with the details of BAR and the phone number of BAR on them; and • he had a photograph of a text message of an instruction on 17 May 2019. Did Mr Sheean disclose information to Ms Moroney in contravention of s 271(2) of the WHS Act and, if so, was the Regulator knowingly concerned in that contravention? [30] Section 271 of the WHS Act provides: 271 Confidentiality of information (1) This section applies if a person obtains information or gains access to a document in exercising any power or function under this Act, other than under part 7. (2) The person must not do any of the following- (a) disclose to anyone else- (i) the information; or (ii) the contents of or information contained in the document; (b) give access to the document to anyone else; (c) use the information or document for any purpose. Maximum penalty-100 penalty units. (3) Subsection (2) does not apply to the disclosure of information, or the giving of access to a document or the use of information or a document- (a) about a person, with the person’s consent; or (b) that is necessary for the exercise of a power or function under this Act; or (c) that is made or given by the regulator or a person authorised by the regulator if the regulator reasonably believes the disclosure, access or use- (i) is necessary for administering, or monitoring or enforcing compliance with, this Act; or (ii) is necessary for the administration or enforcement of another Act prescribed under a regulation; or (iii) is necessary for the administration or enforcement of another Act or law, if the disclosure, access or use is necessary to lessen or prevent a serious risk to public health or safety; or 38 T 1-34, l 45 to T 1-35, l 11. 39 T 1-41, l 41 to T1-42, l 19. 40 Clayton Utz (A Firm) v Dale [2015] VSCA 186: [2015] 47 VR 48, [188]-[197] (Tate JA, with Ashley JA at [1] and Ferguson JA at [232] agreeing). -- 9 of 25 -- 10 (iv) is necessary for the recognition of authorisations under a corresponding WHS law; or (v) is required for the exercise of a power or function under a corresponding WHS law; or (d) that is required by any court, tribunal, authority or person having lawful authority to require the production of documents or the answering of questions; or (e) that is required or authorised under a law; or (f) to a Minister. The Regulator's submissions [31] The matters in contention around Mr Sheean's discussion with Ms Moroney concern WHSQ's possession of Mr Willis' mobile phones, the duplicate receipt books and a photo of a text message from BAR's Directors to Mr Willis on the day of the accident. The mobile phones [32] The Regulator submitted: • on Ms Moroney's evidence, her first knowledge of the mobile phones came from her perusal of the file about the appeal and from the email from Mr Beard on 15 November 2019 which referred to, inter alia, Ms Kelly's statement about Mr Sheean retrieving Mr Willis' mobile phones and Ms Kelly's witnessing of the text messages, when the phones were unlocked, which contained messages from BAR's Directors giving Mr Willis certain work directions;41 and • consequently, Ms Moroney's first source of information about the mobile phones was Mr Beard and not Mr Sheean.42 The duplicate receipt books [33] The Regulator submitted that Mr Sheean revealing that he had taken possession of the receipt books would not constitute confidential information and would not constitute a breach of s 271(2) of the WHS Act.43 This was because Mr Sheean did not reveal the contents of any document and did not provide any document to Ms Moroney.44 [34] The Regulator submitted that even if Mr Sheean's mention to Ms Moroney that he had possession of the duplicate receipt books was disclosure of 'confidential information' for the purposes of s 271 of the WHS Act there was still no breach. This was because: • Ms Moroney was able to seek that information pursuant to s 573(1A) of the Act; • Mr Sheean was an authorised person for the purposes of s 330(2)(b) of the Act; or • the disclosure by Mr Sheean would be excused by s 271(3)(c)(ii) or s 271(3)(e) of the WHS Act because pursuant to the combined effect of s 701A and sch 18A of 41 T 1-27, ll 45 to T 1-28, l 34. 42 T 1-28, l 35 to T 1-29, l 3. 43 The Regulator's submissions filed on 14 February 2020 ('the Regulator's submissions'), para. 45. 44 T 1-26, ll 43-46. -- 10 of 25 -- 11 the Work Health and Safety Regulations 2011, the Act is a prescribed Act for the purposes of s 271(3)(c)(ii) of the WHS Act.45 The photograph of a text message of an instruction on 17 May 2019 [35] The Regulator did not specifically address this matter. [36] In general terms, the Regulator submitted: • that the only evidence before the Commission as to what information may or may not have been revealed by Mr Sheean in the course of the conversation with Ms Moroney came from Ms Moroney and that merely identifying the existence of something does not constitute the giving of a document nor would it constitute the revealing of the contents of the information;46 and • the proof that Mr Sheean did not contravene s 271(2) of the WHS Act was the fact that when requested, Mr Sheean refused to provide Ms Moroney with the documents which led to the issuing of the notice.47 [37] The Regulator submitted that the allegation that there had been a disclosure of confidential information to it by Mr Sheean, and that it was complicit in a breach of s 271 of the WHS Act, was not made on the evidence before the Commission.48 The Department's submissions [38] The submissions on behalf of the Department were that: • BAR's submissions appeared to proceed on the basis that Mr Sheean disclosed confidential information by merely confirming to Ms Moroney that the Department had possession of the documents about which she enquired;49 • s 271(1) of the WHS Act relevantly provides that the prohibition in s 271(2) applies to 'information' obtained or 'a document' gained in the exercise of a power or function under that Act and that s 271(2) relevantly prohibits disclosure of the information or 'the contents of or information contained in the document';50 • on the evidence before the Commission, it is not open to conclude that Mr Sheean contravened s 271(2) of the WHS Act by informing Ms Moroney of the existence of documents obtained in the exercise of his powers under the WHS Act in circumstances where he specifically did not disclose the content of or information contained in those documents, which is relevant to the prohibition in s 271(2)(a)(ii);51 and 45 The Regulator's submissions, para. 46. 46 T 1-29, ll 11-14. 47 T 1-29, ll 15-21. 48 The submissions in reply of the Regulator filed on 6 March 2020 ('the Regulator's reply submissions'), paras. 1-2. 49 The submissions of the Department filed on 6 March 2020 ('the Department's submissions'), para. 16. 50 The Department's submissions, paras. 17-18. 51 The Department's submissions, para. 19. -- 11 of 25 -- 12 • the fact the subject documents existed could not properly be considered 'information' obtained by the exercise of a power under the WHS Act because the Regulator discovered the existence of those documents from witness statements in material disclosed to it by the Estate of Mr Willis in the course of the substantive appeal proceeding.52 BAR's submissions [39] BAR submitted that the issue in dispute was whether any of the exceptions in s 271(3) of the WHS Act either applied or may now be applied.53 [40] In written submissions, BAR submitted that: • if the Regulator was submitting that Mr Sheean was acting as the delegate of the Chief Executive of the Department in disclosing information pursuant to s 573(1A) of the Act, then the instrument of delegation is not in evidence; and if Mr Sheean was permitted to disclose the information as the delegate, he could have done so and there would have been no need for the notice to have been issued;54 • it would appear from Ms Moroney's email to Mr Sheean, which was sent after their telephone conversation, that Mr Sheean must have mentioned more than simply that he had possession of the duplicate receipt books;55 • an authorised person, as referred to in s 330(2)(b) of the Act, is only authorised in relation to the functions of conducting investigations and inspections to monitor compliance with functions of the Act and there was no evidence that Mr Sheean was carrying out his functions, as an authorised person, in disclosing the information, and if he thought he could, there would be no need for the notice to have been issued;56 • to the extent it was contended by the Regulator that Mr Sheean is excused by reason that the Act is a prescribed Act for the purposes of s 271(3)(c)(ii) of the WHS Act, the Regulator failed to demonstrate how the disclosure of the requested information would be necessary for the administration or enforcement of the Act in that the test of necessity is much higher than whether something is desirable;57 and • to the extent the Regulator submits the Estate of Mr Willis consented to the disclosure of information so as to satisfy the exception in s 271(3)(a) of the WHS Act, the exception has not been satisfied as the text messages were between two or more parties;58 52 The Department's submissions, para. 21. 53 BAR's submissions, para. 16. 54 BAR's submissions, paras. 19-21. 55 BAR's submissions, paras. 23-24. 56 BAR's submissions, paras. 25-26. 57 BAR's submissions, paras. 27-29. 58 BAR's submissions, para. 34. -- 12 of 25 -- 13 [41] In oral submissions, BAR submitted that: • it is a contravention of s 271(2)(a)(i) of the WHS Act to disclose 'the information';59 • the Macquarie Dictionary meaning of 'information' is '… Knowledge communicated or received concerning some fact or circumstance; knowledge on various subjects, however required; the act of informing; the state of being informed.';60 • the Regulator, in its written submissions in reply filed on 6 March 2020, at paragraph 5, conceded that Mr Sheean disclosed 'information' to Ms Moroney on 18 November 2019;61 • Mr Sheean did disclose 'information', namely, that he had taken possession of the duplicate receipt book;62 • Mr Sheean then disclosed the contents of that document, namely, that the duplicate receipt book contained the names and contact details of BAR;63 • Mr Sheean then disclosed information about the text message instruction of 17 May 2019;64 and • the above disclosures by Mr Sheean contravened s 271(2)(a) of the WHS Act.65 [42] BAR submitted that there is no evidence that Mr Sheean had a reasonable belief that the disclosures he made to Ms Moroney were necessary - in that there was no reasonable alternative66 - for the administration or enforcement of the Act so that the exemption contained in s 271(3)(c)(ii) of the WHS Act was not made out.67 Did Mr Sheean disclose 'the information' or 'the contents of or information contained in the document' within the meaning of s 271(2)(a) of the WHS Act? [43] It is not in dispute that Mr Sheean, when investigating the incident leading to Mr Willis' death, exercised power under pt 9 of the WHS Act to obtain the mobile phones and the receipt books, and to copy one mobile phone text message. [44] Section 271(1) of the WHS Act provides that the prohibition contained in s 271(2) applies if a person obtains information or gains access to a document in exercising any power or function under the WHS Act, other than under pt 7. 59 T 1-37, l 33. 60 T 1-37, ll 35-40. 61 T 1-37, ll 42-43. 62 T 1-38, ll 3-4. 63 T 1-38, ll 14-17. 64 T 1-38, ll 14-33 65 T 1-38, ll 35-40. 66 On the authority of the Attorney-General v Walker (1849) 3 Exch 242; (1849) 154 ER 833, 838 (Chief Baron Pollock). 67 T 1-38, l 42 to T 1-39, l 32. -- 13 of 25 -- 14 [45] Section 271(2)(a) of the WHS Act provides that a person must not disclose to anyone else: • the information; or • the contents of or information contained in the document. [46] One of the purposes of s 271(2) of the WHS Act is to prohibit the disclosure of information lawfully obtained by an inspector when exercising a power or function under pt 9 of the WHS Act. The noun 'information' is not defined in the WHS Act. In context, 'information' is used in its ordinary sense. Therefore, resort may be had to a dictionary for its ordinary meaning.68 In my view, the word 'information', as used in s 271 of the WHS Act, means '… knowledge communicated or received concerning some fact or circumstance'.69 [47] A contravention of s 271(2) of the WHS Act is a criminal offence. However, in the present civil proceeding, given the serious allegation made by BAR against Mr Sheean, for it to prove that Mr Sheean contravened s 271(2) on the balance of probabilities, clear, cogent or strict proof is necessary.70 The mobile phones [48] In my view, by Mr Sheean stating to Ms Moroney that WHSQ still had possession of Mr Willis' mobile phones, he did disclose 'information' to her within the meaning of s 271(1) of the WHS Act. This is because he disclosed his knowledge of a fact communicated to him in the course of him exercising a power under the WHS Act, namely, the fact of the existence of the mobile phones. The fact that Ms Moroney was advised of the existence of the mobile phones prior to her conversation with Mr Sheean is not relevant. The obligation was on Mr Sheean not to disclose information he had obtained in his exercise of a power under the WHS Act. The duplicate receipt books [49] By Mr Sheean informing Ms Moroney he had possession of the duplicate receipt books, he did disclose 'information' to her within the meaning of s 271(1) of the WHS Act. This is because he disclosed his knowledge of a fact communicated to him in the course of exercising a power under the WHS Act, namely, the fact of the existence of the duplicate receipt books. Further, on Ms Moroney's evidence, Mr Sheean went further and informed her that the duplicate receipt books had on them the details of BAR and the phone number of BAR. To that extent, Mr Sheean informed Ms Moroney of part of the content of the duplicate receipt books. 68 Norrie v New South Wales Registrar of Births, Deaths and Marriages [2013] NSWCA 145; (2013) 84 NSWLR 697, [84]-[85] (Beazley ACJ). 69 Macquarie Dictionary (7 th ed, 2017) 'information' (def 1). 70 Neat Holdings v Karajan Holdings Pty Ltd [1992] HCA 66; (1992) 67 ALJR 170, 171 (Mason CJ, Brennan, Deane and Gaudron JJ). -- 14 of 25 -- 15 The photograph of a text message of an instruction on 17 May 2019 [50] Mr Sheean informed Ms Moroney that he had a photograph of a text message of an instruction on 17 May 2019, but he did not disclose the content of that instruction. [51] However, by Mr Sheean disclosing to Ms Moroney that he had a photograph of a text message of an instruction on 17 May 2019, he did disclose information to her within the meaning of s 271(1) of the WHS Act. This is because he disclosed his knowledge of a fact communicated to him in the course of exercising a power under the WHS Act, namely, the fact of the existence of that text message. [52] The question therefore becomes whether these disclosures were authorised under the WHS Act or any Act. [53] On the evidence before me, I am not satisfied that Mr Sheean's disclosures of the existence of the mobile phones, the duplicate receipt books and the photograph of the text message, and that the receipt books had on them the details of BAR and the phone number of BAR, were authorised under any Act. [54] Section s 573(1A) of the Act provides: (1A) The chief executive of the department within which the Work Health and Safety Act 2011 is administered may disclose to the Regulator or WorkCover any information the chief executive has relating to a matter under this Act or touching the administration of this Act. [55] However, I accept BAR's submissions that there is no evidence of any instrument of delegation from the Director-General of the Department to Mr Sheean for the purposes of s 573(1A) of the Act. [56] It is true that an inspector under the WHS Act, while the person holds the appointment, is taken to be an authorised person appointed by the Regulator under s 330(2)(b) of the Act. However, s 336 of the Act sets out the functions of such an authorised person which are: • to provide the Regulator information and advice about compliance with the Act; • to require compliance with the Act through issuing of the notices; and • to investigate contraventions of the Act and assist in the prosecution of offences against the Act. [57] Again, I accept BAR's submission that even though Mr Sheean was an authorised person within the meaning of s 330(2)(b) of the Act, there is no evidence that he was carrying out a function referred to in s 336 of the Act when he spoke to Ms Moroney. [58] There is no evidence to demonstrate why the Regulator, appointed under the WHS Act, reasonably believed that Mr Sheean's disclosures were necessary for the administration or enforcement of the Act within the meaning of s 271(3)(c)(ii) of the WHS Act. -- 15 of 25 -- 16 [59] Similarly, there is no evidence that Mr Sheean's disclosures were required or authorised under the Act within the meaning of s 271(3)(e) of the WHS Act. [60] It cannot be the case that the Regulator was knowingly concerned in Mr Sheean's unauthorised disclosures. On Ms Moroney's evidence, she only telephoned Mr Sheean to confirm that WHSQ was still in possession of the mobile phones after she had received advice from Brighthill Lawyers. It was Mr Sheean who volunteered to Ms Moroney the information of WHSQ's possession of the mobile phones and of the duplicate receipt books, the existence of BAR's details and phone number on the receipt books, and of WHSQ's possession of a photograph of a text message of an instruction on 17 May 2019. Are Mr Sheean's unauthorised disclosures relevant to the exercise of my discretion? [61] In written submissions, BAR submitted that a relevant consideration, in the exercise of the discretion in r 64G(2)(a) of the Rules, was that the Regulator was knowingly concerned in the alleged contravention of s 271 of the WHS Act.71 That was said to be the case because, pursuant to s 531 of the Industrial Relations Act 2016, the Commission is to be guided in its decisions by equity, good conscience and the substantial merits of the case having regard to the persons immediately concerned and the community as a whole; and therefore, equity and good conscience weigh against granting the orders sought by the Regulator.72 [62] BAR also submitted that: • the Regulator should not be allowed to benefit from the Department's breach of s 271 of the WHS Act, particularly in circumstances where the Regulator appears to be complicit in that breach;73 and • the Commission should be guided by the restrictions on disclosure of information by government agencies imposed by the Right to Information Act 2009 ('the RTI Act').74 [63] In particular, BAR submitted that: • the documents and information sought by the Regulator would be defined as 'exempt information' within the meaning of s 10(3) in sch 3 to the RTI Act,75 in that the information given to Mr Sheean was given in the course of an investigation of the contravention of the law, under an Act, that abrogated the privilege against self-incrimination;76 and 71 BAR's submissions, para. 53. 72 BAR's submissions, paras. 54-55. 73 BAR's submissions, para. 57. 74 BAR's submissions, para. 58. 75 Section 10(3) (Law enforcement or public safety information) of sch 3 to the RTI Act provides that information is 'exempt information' if: (a) it consists of information given in the course of an investigation of a contravention or possible contravention of the law (including revenue law); and (b) the information was given under compulsion under an Act that abrogated the privilege against self-incrimination. 76 BAR's submissions, para. 59. -- 16 of 25 -- 17 • s 48(2) of the RTI Act77 provides that the Parliament considers that disclosure of exempt information would, on balance, be contrary to the public interest.78 [64] I am not persuaded by BAR's submissions that I should be guided by the restrictions on disclosure of information by government agencies imposed by the RTI Act. Provisions of that kind do not restrict the powers of the Commission under the Rules.79 [65] Further, the functions of the Rules and the RTI Act are different. Relevantly, the purpose of the Rules is to provide for the just and expeditious disposition of the business of the Commission at a minimum of expense.80 The primary object of the RTI Act is to give a right of access to information in the government’s possession or under the government’s control unless, on balance, it is contrary to the public interest to give the access.81 [66] I was not addressed by the Regulator about whether the fact of any unauthorised disclosure by Mr Sheean is relevant to the exercise of my discretion under r 64G(2)(a) of the Rules. The Regulator submitted that there was nothing to concern the Commission about the exercise of its discretion to lift the stay because there was no breach of s 271 of the WHS Act.82 [67] Rule 64E(4) of the Rules does not limit the grounds upon which a non-party or other person may object to a notice requiring non-party disclosure. Rule 64G(2)(a) does not give any express indication of the criteria by which the discretion, to lift a stay of a notice, is to be exercised. There is nothing in the subject matter, scope and purpose of pt 2, div 2, sub-div 7A of the Rules that suggests some implied limitation on the factors to which the Commission may legitimately have regard in determining to lift a stay; and so it is largely for the Commission, in light of the matters placed before it by the parties, to determine which matters are relevant and the comparative importance to be afforded to those matters.83 [68] This issue has been raised by BAR as an objector and has been the subject of argument by the Regulator and by the Department. Its relevance lies in the fact that one of Mr Sheean's unauthorised disclosures was part of the reason why at least one of the documents, a certified copy of the duplicate receipt book used by Mr Willis, was sought by the Regulator in the notice. For these reasons, I will take into account, in the exercise of my discretion, the unauthorised disclosures made by Mr Sheean. 77 Section 48 (Exempt Information) of the RTI Act provides: (1) If an access application is made to an agency or Minister for a document, the agency or Minister must decide to give access to the document unless disclosure would, on balance, be contrary to the public interest. (2) Schedule 3 sets out the types of information the disclosure of which the Parliament has considered would, on balance, be contrary to the public interest. (3) However, despite an agency or Minister being able, under section 47(3)(a), to refuse access to all or part of a document, the agency or Minister may decide to give access. (4) In this Act— exempt information means the information that is exempt information under schedule 3. 78 BAR's submissions, para. 60. 79 DP World Brisbane Pty Ltd v Rogers and Anor [2014] ICQ 010, [19] ('DP World') (Martin J, President). 80 Industrial Relations (Tribunals) Rules 2011, r 6. 81 Right to Information Act 2009, s 3. 82 T 1-29, ll 23-27. 83 Elias v Commissioner of Taxation [2002] FCA 845; (2002) 123 FCR 499, [56]-[57] (Hely J). -- 17 of 25 -- 18 Does the confidentiality requirement in s 271(2)(b) of the WHS Act apply to the documents required to be produced by the notice? [69] The schedule to the notice has four categories of documents which the Director-General is required to produce: • item 1 - the download and/or screenshots of text messages from the late Mr Willis' mobile phone between him and the Directors of BAR; • item 2 - a certified copy of the duplicate receipt book used by the late Mr Willis when he received vehicles on behalf of BAR; • item 3 - a copy of witness statements taken by the Workplace Health and Safety investigator in relation to the late Mr Willis' employment with BAR; and • item 4 - a copy of any other document or thing which relates to the late Mr Willis' employment with BAR.84 [70] Rule 64B(1) of the Rules provides that a party to a proceeding may, by notice of non-party production, require a person who is not a party to the proceeding, to produce to the party, within 14 days after service of the notice on the non-party, a document: • directly relevant to a matter in issue in the proceeding; and • in the possession or under the control of the non-party; and • that is a document that the non-party could be required to produce at the hearing for the proceeding. The Regulator's submissions [71] The Regulator contends that the authorities dealing with s 271 in the cognate Acts confirm that there is a requirement under s 271 of the WHS Act to maintain the confidentiality of confidential information unless one of the exceptions applied.85 [72] The Regulator submitted that the information sought by Ms Moroney is potentially highly relevant to the issue of Mr Willis' employment status and therefore it was not only appropriate, but necessary for Ms Moroney, by the Regulator exercising its statutory function to conduct and defend proceedings under the Act before a court or tribunal,86 to seek to obtain copies of the text messages from Mr Sheean.87 84 Exhibit 2, exhibit RJ-4, page 3. 85 The Regulator's submissions, paras. 29-37. The authorities cited were Perilya v Nash [2015] NSWSC 706, [97] ( Hall J), Fraser v Safework NSW [2019] NSWCATAD 227, [75]-[77] (Montgomery SM) and Treasury and Finance, Department of 2018/11929 [2019] SAOmbFOI 5, [34]-[37]. 86 Workers' Compensation and Rehabilitation Act 2003, s 327(1)(n). 87 The Regulator's submissions, paras. 39-41. -- 18 of 25 -- 19 [73] The Regulator then submitted that because the Estate of Mr Willis, as the now owner of the mobile phones, had consented to the Regulator receiving copies of the text messages88 disclosure of the text messages would be authorised by s 271(3)(a) of the WHS Act.89 [74] The Regulator submitted the following exceptions in s 271(3) of the WHS Act applied in respect of disclosure of all information sought by it in the notice: • the combined effect of s 573(1A) of the Act and s 271(3)(c)(ii) or s 271(3)(e) of the WHS Act;90 • s 148(c) of the WHS Act;91 and • s 271(3)(d) of the WHS Act which provides that s 271(2) does not apply to the disclosure of information, or the giving of access to a document or the use of information or a document that is required by any court, tribunal, authority or person having lawful authority to require the production of documents or the answering of questions.92 [75] The Regulator contended that, under those exceptions, the Commission has lawful authority to require production of the documents and that the information being sought is relevant evidence to the issue to be determined by the Commission in the substantive hearing, namely, whether Mr Willis was a 'worker' within the meaning of s 11 of the Act.93 [76] In oral submissions, the Regulator also referred to the decision of the Industrial Court of Queensland in DP World Brisbane Pty Ltd v Rogers and Anor.94 It submitted that the decision is authority for the proposition that confidentiality concerns do not trump the interests of justice and do not trump the interests of both the Commission and the parties in having relevant evidence before the Commission where that evidence can assist in the determination of the substantive matter.95 [77] The Regulator also referred to the decisions of the Commission in LLM Holdings Pty Ltd v Michalakellis96 and Mullins v Workers' Compensation Regulator; Ex parte Drake International Pty Ltd (No 2),97 both of which dealt with the issue of relevance for the purposes of an objection to a notice to produce. In Mullins, Industrial Commissioner Black made reference to authority for the proposition that a document will be directly relevant if it tends to prove or disprove an allegation in issue in the proceedings.98 88 Exhibit 1, para. 28 and exhibit AM-12. 89 The Regulator's submissions, paras. 47-50. 90 The Regulator's submissions, para. 51. 91 The Regulator's submissions, para. 51. 92 The Regulator's submissions, para. 52. 93 The Regulator's submissions, paras. 52-53. 94 DP World (n 79). 95 T 1-30, l 13 to T 1-31, l 21. 96 [2019] QIRC 075, [19]-[20] (Industrial Commissioner Knight). 97 [2020] QIRC 003. 98 Ibid [27]-[29] (Industrial Commissioner Black). The authorities included Xstrata Queensland v Santos Ltd [2005] QSC 323, [45] (McMurdo J). -- 19 of 25 -- 20 [78] On the authority of Mullins, I accept the Regulator's submission that a document will be directly relevant if it tends to prove or disprove an allegation in issue in the proceedings. The Department's submissions [79] The Department submitted that the reason provisions such as s 271(3)(d) of the WHS Act existed across the statute books was that they allowed confidentiality to be breached if authorised by law, so that subpoenas, summonses and notices of non-party disclosure could be issued to compel the production of otherwise confidential information.99 BAR's submissions [80] BAR submitted that in respect of the Regulator's argument about the Estate of Mr Willis consenting to disclosure of the text messages pursuant to s 273(3)(a) of the WHS Act, that exception is not satisfied because the text messages were between two or more parties.100 BAR also submitted that the Regulator's argument about s 148(c) of the WHS Act was misconceived because that provision related to disclosure of documents obtained under pt 7, div 2 of the WHS Act, whereas Mr Sheean exercised power under pt 9, div 3 of the WHS Act.101 [81] BAR made no written submissions about the Regulator's submissions concerning s 271(3)(d) of the WHS Act. However, in oral submissions, it again submitted that the Commission should be guided by the restrictions on disclosure of information set out in the RTI Act because it is part of a law that abrogates the privilege against self-incrimination and there is a presumption that the disclosure sought by the Regulator would be contrary to the public interest.102 The Regulator, in its written submissions, contended that as the mobile phones were owned by the Estate of Mr Willis, were not in the possession of BAR and because they had been seized by Mr Sheean at a location that was not owned by BAR, it would be difficult to see how BAR could maintain any claim of privilege against self-incrimination in relation to the text messages.103 The confidentiality requirement in s 271(2)(b) of the WHS Act does apply to information required to be produced by the notice [82] In my view, the confidentiality requirement in s 271(2)(b) of the WHS Act does not apply to the documents sought by the Regulator in the notice. There are a number of reasons for this. 99 T 1-36, ll 8-12. 100 BAR's submissions, para. 34. 101 BAR's submissions, para. 35. I accept these submissions of BAR. Section 148(c) of the WHS Act relevantly provides that a person must not use or disclose information or a document, obtained under division 2 in an inquiry into a suspected contravention, for a purpose that is not related to the inquiry or rectifying the suspected contravention, unless the use or disclosure is required or authorised by or under law. This refers to pt 7, div 2 of the WHS Act which relevantly confers on a 'WHS entry permit holder' certain rights under ss 117 and 118 of the WHS Act to enter workplaces and to inspect and make copies of documents relevant to a suspected contravention of the WHS Act. Mr Sheean did not exercise power under pt 7 of the WHS Act. 102 T 1-40, ll 8-17. 103 The Regulator's submissions, para. 48. -- 20 of 25 -- 21 [83] First, the documents sought are directly relevant to the question of whether Mr Willis was a 'worker' within the meaning of s 11 of the Act. Whether Mr Willis was a 'worker' relevantly depends upon: • whether Mr Willis worked under a contract and in relation to the work, was an employee for the purpose of assessment for PAYG withholding under the Taxation Administration Act 1953 (Cth), sch 1, pt 2-5;104 or • whether Mr Willis met the description of a 'worker' within the meaning of sch 2, pt 1, of the Act, which, relevantly provides that a contractor is a worker if the contractor makes a contract with someone else for the performance of work that is not incident to a trade or business regularly carried on by the contractor and where the contractor does not sublet the contract, does not employ a worker or if the contractor does employ a worker, the contractor performs part of the work personally.105 [84] In the former case, relevant considerations are the extent of control of, or the right to control, the putative employee whether actual or by law, and how business like is the alleged business of the putative employee.106 In the latter case, a relevant consideration is whether an individual, providing work or services under a contract for services, makes a contract with someone for the performance of work or the provision of a service that is not casually connected with, or is not appertaining or attaching to, the trade or business regularly carried out by the person as an individual.107 [85] In my view, the downloads or screenshots of the text messages and the photocopies of the duplicate receipt books used by Mr Willis are directly relevant to the above considerations. The text messages go to tending to prove or disprove the issue of control by BAR over Mr Willis. The receipt books go to tending to prove or disprove the nature of any alleged business of Mr Willis. [86] For these reasons, the documents sought in items 1 and 2 of the notice are documents that fall within the scope of r 64B(1) of the Rules. [87] Secondly, I accept that access to the documents sought in items 1 and 2 of the notice (and for that matter, to the other documents sought in items 3 and 4 in the notice) is not to be given to anyone else by virtue of s 271(2)(b) of the WHS Act. [88] However, s 271(3)(d) applies in the circumstances. Because of their direct relevance, access to the documents required to be produced in the notice is required by the Commission having the lawful authority to require their production. [89] Again, I am not persuaded by BAR's submissions that I should be guided by the restrictions on the disclosure of information by government agencies imposed by the RTI Act. As I have referred to earlier, provisions of that kind do not restrict the powers of the Commission. 104 Workers' Compensation and Rehabilitation Act 2003, s 11(1). 105 Workers' Compensation and Rehabilitation Act 2003, sch 2, pt 1, s 3. 106 ACE Insurance Ltd v Trifunovski [2011] FCA 1204; (2011) 200 FCR 532, [29] (Perram J). 107 Toowoomba Demolition and Earthmoving Pty Ltd ATF Castle Family Trust v Workers' Compensation Regulator [2020] QIRC 030, [234] (Deputy President Merrell). -- 21 of 25 -- 22 [90] For these reasons, it is my view that the confidentiality requirement in s 271(2)(b) of the WHS Act does not apply to documents required to be produced by the notice. Is item 4 of the notice drawn too broadly? [91] Item 4 of the notice described the documents and things to be produced in the following way: A copy of any other document or thing which relates to the deceased's employment with Brisbane Auto Recycling Pty Ltd. [92] BAR refers to r 64E(4)(c) of the Rules which provides that a reason a party may object to a notice is the lack of particularity with which documents are described. BAR submits that the Regulator's request in item 4 relies upon the Department exercising its own judgement as to what is or what is not relevant; and that if the Regulator does not know what it is asking the Department to provide, it should not be entitled to request it.108 [93] BAR also submitted that the documents required to be produced pursuant to r 64B of the Rules are only those that are directly relevant to a matter in issue in the proceeding.109 On the authority of Xstrata Queensland v Santos Ltd,110 BAR submitted that a document is only directly relevant if it tends to prove or disprove an allegation in the proceedings as opposed to just relating to the matter which is beyond more than a fishing expedition.111 [94] The Regulator submits that item 4 is a 'catch all' provision which allows for the Director-General to disclose any other document or information which is relevant to the matter in issue as described in the notice and that it is significant that no objection or difficulty has been raised by the Director-General in complying with the notice.112 [95] The Department submits that it does not object to the breadth of the notice, in respect of item 4, and, on that basis, submits it cannot see how BAR could sustain its objection.113 [96] The documents required to be produced by way of a subpoena (or in the case of the Rules, a notice requiring non-party disclosure) should be described in relatively clear language.114 Further, the documents must be described with reasonable particularity,115 such that the recipient of a subpoena is not and should not be required to consult a dictionary and then carry out an exercise in the construction of the document before embarking upon the collection of the documents.116 108 BAR's submissions, paras. 43-45. 109 Industrial Relations (Tribunals) Rules 2011, r 64B(1)(a). 110 [2005] QSC 323, [45] (McMurdo J) 111 T 1-39, l 40 to T 1-40, l 4. 112 The Regulator's submissions, paras. 57-60. 113 T1-34, ll 41-45. 114 Southern Pacific Hotel Services Inc v Southern Pacific Hotel Corporation Limited [1984] 1 NSWLR 710, 720-721 ('Southern Pacific') (Clarke J). 115 St Francis Xavier Cabrini Hospital Governing Board Inc v Micallef [2000] VSC 19, [8] (Beach J). 116 Southern Pacific (n 114), 720 (Clarke J). -- 22 of 25 -- 23 [97] Nevertheless, a degree of generality in the description of the documents may, according to the circumstances, be compatible with reasonableness.117 A subpoena should not be rejected as oppressive or an abuse of process because it directs production of documents by reference to those relating to a specific subject matter within the recipient's knowledge.118An addressee is required to read the subpoena sensibly and with reference to the circumstances known to him or her.119 [98] In my view, having regard to the principles referred to above, the notice, in respect of item 4, is described in reasonably clear language. It directs the recipient's attention to a specific subject matter, namely, Mr Willis' employment with BAR. While I acknowledge there is dispute, not involving the Department, as to whether Mr Willis was a 'worker' within the meaning of the Act, the Director-General, by reading the notice sensibly, including the description of the matter in issue in the appeal - as set out on page 2 of the notice - would be able to comply with the notice. [99] Further, in my view, it is relevant that the Director-General, as the custodian of the documents, does not object to the breadth of the notice in respect of item 4.120 [100] This tends to demonstrate that the notice is reasonably clear. [101] For these reasons, I am not satisfied that the documents and things sought, as described in item 4 in the notice, is a material consideration to the exercise of my discretion. [102] Another issue raised by BAR is that the witness statements referred to in item 3 in the notice do not exist. [103] The Regulator submitted that that is a matter for the Department, in that if it does not have documents of that description in its possession or under its control, then that will be confirmed and nothing will be disclosed. The Regulator submitted that this matter was not a valid ground of objection.121 I agree with the Regulator's submissions. That objection does not appear to me to be a valid ground of objection for the reasons submitted by the Regulator. It was not pressed by BAR in its submissions. Having regard to all the relevant considerations, should the stay be lifted? [104] In oral submissions, BAR contended that the contravention by Mr Sheean of s 271(2) of the WHS Act is relevant to the exercise of my discretion under r 64G(2)(a) because that alleged contravention allowed Ms Moroney to be able to draft the notice and that the Directors of BAR provided information to Mr Sheean,122 which BAR's Directors understood was protected by the WHS Act, such that the Regulator should not profit from that breach.123 117 Lucas Industries Ltd v Hewitt (1978) 18 ALR 555, 570 ('Lucas') (Smithers J, Bowen CJ at 557 and Nimmo J at 577 agreeing). 118 McColl v Lehmann [1987] VR 503, 513 (Kaye J). 119 Lucas (n 117), 571 (Smithers J, Bowen CJ at 557 and Nimmo J at 577 agreeing). 120 T 1-34, ll 42-44. 121 The Regulator's submissions, para. 62-64. 122 In BAR's submissions at para. 39, BAR submitted that BAR and its Directors are separately being prosecuted under ss 31 and 34C of the WHS Act for industrial manslaughter. 123 T 1-40, l 19 to T 1-41, l 1. -- 23 of 25 -- 24 [105] I am not persuaded by these arguments. There are a number of reasons for this. [106] First, all the documents sought to be produced by the notice are directly relevant to issues in the appeal. [107] Secondly, as the text messages and the duplicate receipt books are directly relevant to issues in the appeal, their production should not be prevented by the mere fact of Mr Sheean's unauthorised disclosures in relation to them. [108] Thirdly, the Regulator was not knowingly concerned in those unauthorised disclosures and Ms Moroney had some advice of text messages between Mr Willis and the Directors of BAR prior to her conversation with Mr Sheean. [109] Fourthly, by virtue of s 271(3)(d) of the WHS Act, s 271(2)(b) of that Act does not apply to the giving of access to the documents required to be produced in the notice. [110] Finally, for the reasons given above, item 4 of the notice is described in a way where the Director-General, reading the notice sensibly, can understand it. [111] For all these reasons, the stay of the notice should be lifted. [112] The Regulator sought an order, pursuant to r 64H of the Rules, that the Director-General comply with the notice. However, r 64H(1) does not confer power on an industrial tribunal to make such an order. Rule 64H(1) provides that unless the operation of the notice is stayed, and subject to any other order under r 64G(2), the non-party must produce documents specified in the notice for inspection. The only order that may be made by an industrial tribunal is under r 64H(2) when the non-party does not comply with the notice. The Department has indicated that it will comply with the notice if the stay is lifted. I will lift the stay and, for these reasons, I will not make an order under r 64H. Costs [113] In the Regulator's application, it seeks an order, pursuant to s 541(c) of the Industrial Relations Act 2016, that BAR pays the Regulator's costs of the Regulator's application. [114] Rule 64G(3) of the Rules provides that unless the relevant industrial tribunal otherwise orders, each party to an application to decide an objection must bear the party’s own costs of the application. [115] Section 541 of the Industrial Relations Act 2016 provides: 541 Decisions generally The court or commission may, in an industrial cause do any of the following- (a) make a decision it considers just, and include provision for preventing or settling the industrial dispute or dealing with the industrial matter to which the cause relates, without being restricted to any specific relief claimed by the parties to the cause; (b) dismiss the cause, or refrain from hearing, further hearing, or deciding the cause, if the court or commission considers- -- 24 of 25 -- 25 (i) the cause is trivial; or (ii) further proceedings by the court or commission are not necessary or desirable in the public interest; (c) order a party to the cause to pay another party the expenses, including witness expenses, it considers appropriate. [116] In my view, a question that may be relevant is whether the Regulator's application falls within the meaning of 'industrial cause' in s 541 of the Industrial Relations Act 2016 and whether BAR is a 'party' to such a cause within the meaning of s 541(c) of that Act. [117] No party or person made any submissions about costs. I will hear all parties and persons on the issue of costs. Conclusion [118] For the reasons given above, pursuant to r 64G(2)(a), I lift the stay on the notice. [119] I will separately issue directions to enable the parties, and other persons who appeared, to file short written submissions about costs and, unless otherwise ordered, I will determine the issue of costs on the papers. -- 25 of 25 --