Boorman v State of Queensland (Department of Justice and Attorney-General) [2021] QIRC 62

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION CITATION: Boorman v State of Queensland (Department of Justice and Attorney-General) [2021] QIRC 062 PARTIES: Boorman, Lisa (Applicant) v State of Queensland (Department of Justice and Attorney-General) (Respondent) CASE NO: WC/2019/16 PROCEEDING: Application in existing proceedings to lift a stay on a Form 29 Notice of Non-Party Disclosure DELIVERED ON: 23 February 2021 HEARING DATES: On the papers MEMBER: McLennan IC HEARD AT: Brisbane ORDERS: Orders per [58]. CATCHWORDS: INDUSTRIAL LAW – APPLICATION TO LIFT A STAY ON A FORM 29 NOTICE OF NON-PARTY DISCLOSURE – objections to produce documents - where direct relevance is considered – where confidentiality is considered - where notices are varied. LEGISLATION: Industrial Relations (Tribunals) Rules 2011 (Qld) r 64B, r 64E, r 64F, r 64G, r 64H -- 1 of 12 -- 2 CASES: Deceased Estate of Barry James Willis v Workers’ Compensation Regulator [2020] QIRC 077 DP World Brisbane Pty Ltd v Rogers & Anor [2014] ICQ 010 King v Workers’ Compensation Regulator [2019] QIRC 134 Mullins v Workers' Compensation Regulator; Ex parte Drake International Pty Ltd (No 2) [2020] QIRC 003 Robson v REB Engineering Pty Ltd [1997] 2 Qd R 102 Rubin v Bank of Queensland Ltd [2010] QSC 175 Reasons for Decision [1] On 19 October 2020, Ms Lisa Boorman (‘the Applicant’) filed three Form 29 Notices of Non-Party Disclosure with the Industrial Registry (‘the Notices’). [2] The Notices sought to compel the State of Queensland (Department of Justice and Attorney-General) (‘the State’, ‘DJAG’) to produce various documents that Ms Boorman submitted she requires for the future substantive hearing of her Workers’ Compensation Appeal filed 21 January 2019 (‘the Appeal’). In the Appeal, Ms Boorman appeals against a decision of the Workers’ Compensation Regulator to reject her application for compensation. [3] On 25 November 2020, the State advised Ms Boorman and the Industrial Registry that they objected to the Notices, in part. That objection stayed the operation of the Notices, insofar as they were objected to, by virtue of r 64F of the Industrial Relations (Tribunals) Rules 2011 (Qld).1 It also appears that, for the parts of the Notices which the State did not object to, the documents disclosed were subject to varying degrees of redaction. [4] On 1 December 2020, Ms Boorman filed an Application in Existing Proceedings (by way of email) seeking that the State be ordered to comply with the Notices in accordance with the Rules. 1 ‘the Rules’. -- 2 of 12 -- 3 [5] The question to be answered in this application is whether the stay on the Notices should be lifted, and on what terms. [6] For the reasons that follow, I have determined that parts of the Notices should be struck out, and the stay on the remaining components should be lifted. The Notices [7] The Notices filed by Ms Boorman are all addressed to the State, though some indicate that a Mr Darren Campbell is an interested party, and they all contain largely the same statement about why the documents sought are directly relevant. The parties have referred to the notices as the ‘First’, ‘Second’ and ‘Third’ Notice, and for convenience I will adopt the same terminology. The documents sought in the Notices are reproduced below, with bolding indicating an objection to production by the State. [8] The First Notice’s Schedule of documents sought is reproduced below: No. Date Description 1 2020 Ashdale investigation report completed for DJAG into concerns raised by Lisa Boorman in 2019 2 2019 DJAG Public Interest Disclosure Risk Assessment undertaken for Lisa Boorman 3 var. DJAG correspondence detailing management action referenced re: reported concerns (2019-20) [9] The Second Notice’s Schedule of documents sought is reproduced below: No. Date Description 1 18/04/2018 Emails to Neil Lawson (ESU) from Diane Antonsen detailing and reporting workplace concerns 2 07/06/2018 Email to Neil Lawson from Diane Antonsen detailing and reporting further workplace concerns 3 28/06/2018 Emails to Neil Lawson from Diane Antonsen detailing additional workplace concerns 4 04/07/2018 Email Stuart Woods (HR) from Diane Antonsen reporting workplace concerns [10] The Third Notice’s Schedule of documents sought is reproduced below: No. Date Description 1 var. Emails to DG David Mackie by Darren Campbell reporting workplace treatment concerns (2018-20) 2 var. Emails to DDG Jenny Lang by Darren Campbell reporting workplace treatment concerns (2018-20) 3 var. Emails to HR/Stuart Woods from Darren Campbell reporting workplace treatment concerns (2018-20) 4 var. Emails to ESU/Neil Lawson by Darren Campbell reporting workplace treatment concerns (2018-20) 5 2020 Investigation report about workplace treatment concerns raised by Darren Campbell (2019- 2020) -- 3 of 12 -- 4 [11] Within the Notices, Ms Boorman’s explanation as to the relevance of those documents to the appeal included: It is expected this material will reveal details of the evidence has already been obtained from DJAG investigations into the alleged events which caused a deterioration in the health of the appellant and details of the investigation and management action taken to date in relation to the reported concerns. The appellant also believes these documents will better demonstrate the difference in findings between the 2019 and 2020 investigations compared with the submissions by DJAG to WorkCover and the Workers Compensation Regulator in 2018. One of the key points of contention for the appellant has been the alleged omission of relevant information by DJAG, namely the concerns that had been reported to key departmental staff in HR and ESU about the inappropriate workplace treatment of the appellant, prior to the DJAG submissions to WorkCover and the Regulator in 2018. (sic) [12] The parties filed submissions in accordance with Directions. Submissions [13] Ms Boorman’s application seeks that the stay on the Notices be lifted and that non- redacted documents be provided to her. In support of that application, Ms Boorman submits that whether the injury is excluded by being reasonable management action taken in a reasonable way will involve considering the nature of the treatment afforded to her by Ms Steel. [14] Ms Boorman says that she, and others, received poor treatment from Ms Steel in similar circumstances. It appears that Ms Boorman’s position is that she intends to lead some evidence about Ms Steel’s treatment of others as a form of propensity or similar fact evidence; if Ms Steel has treated others in a certain way, it renders it more likely that she treated Ms Boorman in a similar way. I would note that, depending on the nature of that evidence and the circumstances of the case more generally, such propensity or similar fact evidence is potentially admissible.2 There is limited jurisprudence on the issue, but it appears to me that such materials are potentially directly relevant and therefore potentially disclosable.3 [15] Ms Boorman also believes that Ms Steel has received some disciplinary action in response to her treatment of Ms Boorman, and that evidence of such disciplinary action would tend to prove that the actions both occurred and were unreasonable. However, I would note that the Commission is tasked with finding its own facts. It follows that the relevance of a disciplinary finding made by another entity is inherently minimal. In the usual course, the limited probative value of such a document does not outweigh the unfair 2 King v Workers’ Compensation Regulator [2019] QIRC 134, [11]. 3 See, eg, Rubin v Bank of Queensland Ltd [2010] QSC 175, [19] – [24]; Mullins v Workers' Compensation Regulator; Ex parte Drake International Pty Ltd (No 2) [2020] QIRC 003. -- 4 of 12 -- 5 prejudice it would carry, and so it would typically be inadmissible. Even so, admissibility is a separate consideration. [16] Ms Boorman’s submissions attach several “witness statements”, which are largely correspondence she has exchanged with various persons. She submits that the content of those statements has informed her request for certain documents to be disclosed. [17] Ms Boorman submits that, while the State has not objected to each of the Notices in their entirety, the documents supplied to date have been redacted to varying degrees. I have determined to consider each of the documents sought in the Notices. [18] The Department submits that many of the documents sought are irrelevant, because they relate only to complaints made by other persons and so have no probative connection to the management action which is said to be unreasonable. Usually, that would be the case. However, in this instance Ms Boorman has indicated that she intends to adduce propensity evidence in support of her factual contentions. It appears to me that most of the documents sought go beyond a mere fishing expedition and are not simply sought to discover whether other persons have had disputes with Ms Steel. Ms Boorman has indicated that she seeks specific documents alluded to by witnesses in the course of her communications with them. As a result, the allegations that other persons have made about their interactions with Ms Steel become are directly relevant. The documents which support the contemporaneous or at least timely making of complains would then also be directly relevant. [19] The Department also makes submissions about how the information sought is confidential and private, as it concerns persons other than Ms Boorman and indeed other than persons that Ms Boorman has sought the permission of. The Department says that they have acted in accordance with their obligations under the Information Privacy Act 2009 (Qld) and a relevant directive. The Department submits that their confidentiality obligations were not displaced by the Notices where the persons concerned have not all consented. [20] As for the documents which were disclosed, several of those have been subject to redactions. In my view, while I appreciate the Department is seeking to comply with their obligations to confidentiality and privacy, that is not the appropriate course with respect to confidentiality and privacy. The Department is required, under r 64B, to provide documents that are directly relevant. The Department is not entitled to remove or redact parts of documents of their own volition that they consider to be unduly sensitive, private or confidential. The requirements for disclosure in proceedings overbear those other requirements, in part because documents disclosed in the course of litigation are already subject to various protections. If the matter proceeds to hearing, it is open to a party to the proceedings or the Department to seek suppression orders. -- 5 of 12 -- 6 [21] With respect to such issues, Martin J said (citations omitted):4 The mere claim that a document to be produced is confidential is not a valid objection to its production. Much of what is disclosed to another party in court or tribunal proceedings of one kind or another may well be confidential. It has been held that where this is the case, “the risk to the confidentiality of the information must be tolerated in the interest of the administration of justice”. Where specific issues of privacy or a heightened concern for commercial confidentiality, for example, arise, arrangements may be made to ensure that the disclosure of material and information that is made does not go beyond what is strictly necessary in the circumstances.8 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. Reference was made in the submissions before the Commission and in this Court to the provisions of the Privacy Act 1988 (Cth). The provisions of that Act do not restrict the powers of the Commission in this case. If that Act is relevant, Principle 11, contained in s 14, expressly exempts “disclosure … required or authorised by or under law” from the limits on disclosure of personal information. The second concern identified in the Commission’s reasons was as to the use to which information incidentally disclosed as a result of the relevant Notice might be put. This concern is similar to that which centres upon notions of privacy or confidentiality. It is well established that parties to whom documents are discovered may not use the discovered documents or the information that they contain for a purpose other than the conduct of the proceedings in question. To do so would amount to conduct in contempt of the relevant court or tribunal, and this principle has been held to extend to material produced on subpoena. Accordingly, this concern does not justify the exercise of the Commission’s discretion. [22] The same conclusion was reached by Merrell DP in Deceased Estate of Barry James Willis v Workers’ Compensation Regulator,5 albeit in a different context. I would also note that s 4 of the Information Privacy Act 2009 (Qld) creates an exemption conceptually similar to Principle 11 within s 14 of Privacy Act 1988 (Cth). [23] The Department also submits that there are other means for the Appellant to attain those documents or prove those issues in the proceedings. The Department submits that the documents are not direct evidence and do not displace the need for witnesses to be called to that effect. Ms Boorman’s position is that the relevant persons she has spoken to did not retain copies of those materials. In my view, the Form 29 Notices are an efficient means of attaining those documents. True enough, they do not displace the requirement for witness testimony, but they form part of the case seemingly advanced by Ms Boorman. [24] The Department submits that the document disclosure sought is onerous and beyond that which is reasonably necessary. As is borne out in my consideration below, I would agree with that to the extent that some of the documents sought are so vague and unparticularised as to render the request unduly onerous. However, that is also assuaged by an extension of time for compliance, which the Department has requested and I have granted further in this Decision. 4 DP World Brisbane Pty Ltd v Rogers & Anor [2014] ICQ 010, [18] – [20]. 5 Deceased Estate of Barry James Willis v Workers’ Compensation Regulator [2020] QIRC 077. -- 6 of 12 -- 7 Consideration [25] The test set out in the rules is whether the documents are directly relevant to a matter in issue in the proceeding.6 In Mullins v Workers’ Compensation Regulator; Ex parte Drake International Pty Ltd (No. 2) [2020] QIRC 003, Commissioner Black considered that test (emphasis added, citations removed): In Xstrata Queensland Ltd v Santos Ltd & Ors, McMurdo J was asked to consider the distinction between the test of relevance under the general law and the requirement of the Uniform Civil 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.” [26] In Robson v REB Engineering Pty Ltd, Demack J considered the term “directly relevant”:7 My opinion is that the word “directly” should not be taken to mean that which constitutes direct evidence as distinct from circumstantial evidence. Rather, “directly relevant” means something which tends to prove or disprove the allegation in issue. [27] Rule 64B has several further stipulations. The documents sought by Ms Boorman must be under the possession or control of the State and must be documents which the State could be required to produce at the hearing of the appeal. Further, Ms Boorman may not require the production of a document where there is another reasonably simple and inexpensive way of proving the matter sought to be proved by the document. [28] A workers’ compensation appeal is a hearing de novo. In workers’ compensation appeals, parties are required to plead their case in Statements of Facts and Contentions (‘SOFC’). That has not yet occurred. Even so, Ms Boorman has filed a Form 9 – WCR notice of appeal, which requires her to set out the ‘Facts relied on’ and the ‘Grounds of appeal’. [29] Further, the appeal is against a decision from the Regulator, which was informed by the submissions of both Ms Boorman and the State. It is important to recognise that the matter is a hearing de novo and so the scope of Ms Boorman’s case may be broader, or simply different, than the matter before the Regulator. [30] As such, in these circumstances, I will consider the contents of each of those documents in determining what the issues in dispute in the appeal are. If a document is directly relevant to one of those issues then, subject to the caveats in r 64B, the document is subject to disclosure. 6 Industrial Relations (Tribunals) Rules 2011 (Qld) r 64B. 7 Robson v REB Engineering Pty Ltd [1997] 2 Qd R 102, 105. Referred to in Rubin v Bank of Queensland Ltd [2010] QSC 175. -- 7 of 12 -- 8 [31] The Regulator determined that Ms Boorman sustained a personal injury of a psychiatric nature, the injury arose out of her employment, and her employment was the major significant contributing factor to the injury. However, the Regulator also found that the personal injury was excluded from the definition of injury under s 32(5) of the Workers’ Compensation and Rehabilitation Act 2003 (Qld) (‘WC Act’), because it arose out of reasonable management action taken in a reasonable way by the State. It follows that the operation of s 32(5) will likely be at issue in the proceedings. [32] Ms Boorman received a workers’ compensation medical certificate dated 11 July 2018, and several further medical reports in July and August 2018. As such, events post-dating those reports will ordinarily be of limited relevance; any injury had already been sustained and so those later events could not have caused the injury. I disagree with Ms Boorman’s submission that events after the injury occurred are relevant on the basis that they ‘could evidence aggravation of an existing injury’. An aggravation is effectively treated as a separate injury under ss 32(3)(b) and 32(4) of the WC Act. [33] Ms Boorman makes various submissions about how she believes the Department has misled WorkCover and the Regulator. Again, this appeal is constrained to whether Ms Boorman’s injury is exempted by s 32(5). Events occurring after that fact have limited relevance, because they cannot be said to have caused the injury the subject of the appeal. [34] Whether management action was reasonable, or taken in a reasonable way, involves a broad consideration of all of the relevant circumstances. It follows that the documents which may tend to prove or disprove such allegations are typically afforded a wide ambit with respect to discovery. [35] Ms Boorman contends that her injury is not exempted by s 32(5), as the management action she was subjected to from Ms Steel was unreasonable and conducted in an unreasonable way. [36] From the materials before me, it appears that the management action in question includes the meetings on 9 February 2018 and 8 June 2018 between Ms Boorman and Ms Steel. It appears there is some contention about both the factual circumstances, and the characterisation of those circumstances. The question is then whether each of the documents sought are directly relevant to those matters. [37] Bearing those considerations in mind, I will deal with each of the Notices in turn. The First Notice [38] The first document sought is an investigation report completed by a third party for the Department, said to relate to “concerns raised” by Ms Boorman in 2019. The document has been provided in a redacted form. -- 8 of 12 -- 9 [39] The views of an investigator have no relevance to the appeal. The Commission must find its own facts and draw its own conclusions from those facts. Indeed, from the Respondent’s submissions, it appears that the first document is not a completed investigation report at all, but rather only a step in the investigation process. Whether Ms Steel was subject to some disciplinary action is largely irrelevant; it is for the Commission to find its own facts, and even if the Department took such action that would not itself constitute evidence that anything untoward occurred. [40] However, insofar as the document provides witness statements from Ms Boorman, Ms Steel, or other persons about their interactions with Ms Steel, those elements would be directly relevant to matters in issue. [41] Indeed, I would note that the Department did not object to producing document one in their objection filed 25 November 2020. The Department submits that the version of the document provided is redacted, such that it only includes the portions which are directly relevant to the matters in issue and not subject to confidentiality. I have found that propensity evidence is capable of being directly relevant, and that direct relevance has paramountcy over confidentiality for the purposes of disclosure. While the Department submits the document is inaccurately described, the Department does not suggest that document one was inadequately particularised such that they could not readily identify it. The appropriate course is for Ms Boorman to be provided with an unredacted version of document one in the First Notice. [42] The second document sought appears to be a procedural step taken by the Department with respect to any public interest disclosure. It is not contentious that Ms Boorman made a complaint. The fact that the Department engaged in a process of taking steps to separate or counsel persons while an investigation occurred does not appear to have direct relevance to a matter in issue. The contents of such a document would not tend to increase the likelihood of Ms Boorman’s factual or legal contentions regarding her interactions with Ms Steel being accurate. I would therefore set aside the First Notice with respect to document two. [43] The third document sought is insufficiently particularised. The date range is described as “2019-20”, and the content is said to be “DJAG correspondence detailing management action referenced re: reported concerns”. Such a request is so broad as to be oppressive, and so lacking in particularity that it does not allow the Department a fair opportunity to understand precisely what is sought and then whether that document would be directly relevant to a fact in issue. I would therefore set aside the First Notice with respect to document three. The Second Notice [44] Each of the categories of documents sought relate to correspondence between Mr Lawson and Ms Antonsen, or Mr Woods and Mr Antonsen. While the description still only -- 9 of 12 -- 10 provides a broad notion of ‘workplace concerns’, the emails sought are sufficiently particularised with specific dates and the names of the parties to the correspondence. [45] The Department has provided redacted copies of the documents sought. The Department notes that their redactions are only so far as to be consistent with the redactions provided by Ms Antonsen herself in the witness statement referred to. [46] Ms Boorman has sought unredacted copies. I would note that, subsequent to the Department’s submissions, Ms Boorman provided signed correspondence from Ms Antonsen to the effect that she provides permission for the Department to provide: … full and unredacted version (sic) of any emails or documents sent or received via the DJAG email system that I referred to in my Witness Statement of 2018, which Lisa Boorman is seeking copies of… [47] In my view, the issues of privacy and confidentiality are assuaged by the protections afforded to documents in litigation, and further by Ms Antonsen’s correspondence. The question is whether the documents sought are directly relevant. In circumstances where Ms Boorman has said that she wishes to adduce propensity evidence from Ms Antonsen and others regarding Ms Steel’s manner of conducting herself, it follows that complaints Ms Antonsen may have made about such conduct, or similar conduct, would be directly relevant. [48] In their objection, the Department submits that they were unable to locate document four. However, in their further submissions filed 12 January 2021 at [10], the Department submitted that they have provided redacted copies of those documents. In correspondence to the Industrial Registry dated 18 December 2020, the Department confirmed that document four had been provided, though the email did not confirm whether that document was redacted or not. [49] I will lift the stay on the Second Notice. The documents are to be produced in an unredacted form. The Third Notice [50] The Third Notice is inadequately particularised with respect to documents one, two, three and four. There is no sufficient explanation about what is meant by ‘workplace treatment concerns’, and the date range spans several years. In the normal course, the Commission may vary a notice if there is some minor defect with it. However, the lack of particularity in this instance goes far beyond that. To vary the descriptions of those documents at this stage would deprive the Department of a fair opportunity to object to the disclosure of those documents. I will therefore set aside the Third Notice with respect to documents one, two, three and four. -- 10 of 12 -- 11 [51] The Department submits that they have provided a redacted copy of the fifth document, which they submit is the same type of document sought document one of the First Notice. In support of that position, the Department submits that they rely upon the same submissions made regarding document one of the First Notice. [52] As set out above, concerns as to confidentiality and privacy are relevant with respect to disclosure, but in my view overborne by direct relevance. Indeed, Mr Campbell has not raised any objection to the document’s production. It would be open to him, or any other interested party, to apply for suppression at a hearing of this matter. [53] As to whether document five is directly relevant, it appears on the material before me that, amongst other things, Ms Boorman has interviewed Mr Campbell, formed a view from those discussions that Mr Campbell has had similar interactions with Ms Steel as she did, and so intends to adduce propensity evidence from him. The beginnings of an investigation process regarding a complaint that Mr Campbell made regarding Ms Steel’s conduct, either to himself or to other persons, would therefore be directly relevant to a matter in issue. That is consistent with my findings as to the disclosure of emails concerning Ms Antonsen, and document one in the First Notice. [54] I would therefore lift the stay on the Third Notice with regard to document five. Timeframes for disclosure [55] The Department has submitted that, in the event disclosure is ordered, they would request 28 days to comply due to the large number of documents sought. Given that there are three notices to be complied with, and there are no impending dates in the substantive appeal, I will grant that extension for disclosure to occur. Protections for disclosure of documents [56] I appreciate that Ms Boorman is not legally represented, and the Department has raised concerns regarding privacy and confidentiality, and so I will make this point clear. Parties who receive documents in the course of proceedings by way of discovery, subpoena or notice of non-party disclosure must not use those documents or the information therein for a purpose other than the conduct of the proceedings in question. Conclusion [57] I will vary the Notices in the terms set out above, and then lift the stay on the Notices such that the remaining documents are required to be disclosed. -- 11 of 12 -- 12 [58] Orders: 1. That the First Notice be varied under the heading ‘Schedule of documents’ to strike out documents numbered 2 and 3. The stay is then to be lifted on the varied First Notice, and the document numbered 1 is to be disclosed without redactions. 2. That the stay on the Second Notice be lifted. The documents numbered 1 – 4 are to be disclosed without redactions. 3. That the Third Notice be varied under the heading ‘Schedule of documents’ to strike out documents numbered 1 – 4. The stay is then to be lifted on the varied Third Notice, and the document numbered 5 is to be disclosed without redactions. 4. The State of Queensland (Department of Justice and Attorney-General) is to disclose the documents in Orders 1 – 3 to Ms Boorman within 28 days. -- 12 of 12 --