Mohr-Edgar v Legal Aid Queensland [2021] ICQ 2

"(1) The applicant applies for orders requiring that the Telstra documents produced to Ms Mohr-Edgar on 2 November 2020 in accordance with the Commission's decision on 27 October 2020, be produced to the applicant by the Industrial Registry."

• [14] The application is, with respect, a little ambiguous. It could refer to the documents contained within annexures A, B, C and D on the USB, or it might only refer to annexures A and B if the words "in accordance with the Commission's decision of 27 October 2020" limits the categories of documents only to annexures A and B, it being common ground that the documents within annexures C and D do not fall within the orders.
• [15] Ms Mohr-Edgar submits, as already observed, that none of the documents, including annexures A and B, fall within the notice and, therefore, it would follow that they are not documents supplied "in accordance with the Commission's decision". Ms Mohr‑Edgar opposes the application.
• [16] Any ambiguity in the expression of the relief sought in the application has been removed by Legal Aid's submissions. What is pursued by Legal Aid is access only to the documents in annexures A and B of the USB. Legal Aid accepts Ms Mohr Edgar at her word that she has destroyed annexures C and D which were mistakenly sent to her, and also accepts that she has destroyed annexures A and B and the documents sent to her directly by Telstra.
• [17] Legal Aid points out that what is sought are not orders directing Ms Mohr-Edgar to produce documents, but, rather, a direction to the Registrar that the Registrar produce the documents. Having made that submission, Legal Aid observed that once the documents fell to the possession of Ms Mohr-Edgar, she had an obligation under r 46 of the Rules to then produce them to Legal Aid by way of disclosure. Rule 46 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 possession of the party.

(2) A party must act under subrule (1) until the proceeding is concluded or the matter in issue is admitted, withdrawn, struck out or otherwise disposed of.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."

• [18] It is unnecessary to consider that submission, because the orders which are sought are directions to the Registrar. In any event, Ms Mohr-Edgar no longer has possession of the documents.
• [19] Legal Aid submits, though, that as the documents in annexures A and B were at one stage in the possession of Ms Mohr-Edgar and she had the benefit of considering their contents, it is only fair that Legal Aid have access to them, as well.
• [20] As already observed, Ms Mohr-Edgar says that she viewed the documents within annexures A and B and formed the view that they did not fall within the scope of the notice. That is why she deleted them and advised the Registry accordingly. Ms Mohr-Edgar submits that r 46 only requires her to disclose documents that are relevant and that are in her possession. She submits that the documents are not relevant and are not in her possession, so she has no ongoing obligation to disclose them. For reasons already explained, it is not necessary to rule on Ms Mohr-Edgar's obligation under r 46.
• [21] Ms Mohr-Edgar submits that Telstra has inadvertently produced documents outside the terms of the notice and, therefore, it would be inappropriate for the Registrar to distribute the documents to Legal Aid. Ms Mohr-Edgar submits that the position is analogous to that considered by the High Court in Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Ltd.[2] Ms Mohr-Edgar considered her ethical position in the light of that decision and considered her obligations under r 31 of the Australian Solicitors Conduct Rules 2012. That rule provides:

31.1 Unless otherwise permitted or compelled by law, a solicitor to whom material known or reasonably suspected to be confidential is disclosed by another solicitor, or by some other person and who is aware that the disclosure was inadvertent must not use the material and must:

31.1.1 return, destroy or delete the material (as appropriate) immediately upon becoming aware that disclosure was inadvertent; and

31.1.2 notify the other solicitor or the other person of the disclosure and the steps taken to prevent inappropriate misuse of the material.

31.2 A solicitor who reads part or all of the confidential material before becoming aware of its confidential status must:

31.2.1 notify the opposing solicitor or the other person immediately; and

31.3 If a solicitor is instructed by a client to read confidential material received in error, the solicitor must refuse to do so."

• [22] As Ms Mohr-Edgar considered that the documents must have been inadvertently disclosed by Telstra, she formed the view that she was ethically obliged to destroy her electronic copies. It follows, so she submitted, that the documents ought not be disclosed to Legal Aid. She further submitted:

"The respondent [a reference to Telstra] has not identified any section of the Industrial Relations Act that would grant the Court the power to release Telstra phone records that are outside the scope of the order dated 27 October 2020 to the respondent."

• [23] Alternatively, if such power does exist, then Ms Mohr-Edgar submits that, as a matter of discretion, the order should not be made, primarily because the documents are irrelevant and outside the scope of the notice.
• [24] After hearing argument, I made the following orders:

"1. I direct the Registrar forthwith to provide the first respondent with electronic copies of Annexure A and Annexure B as described in the email from Ms Alexandra Wojciechowski to the appellant dated 2 November 2020.

1. By 4.00 pm on 15 February 2021 the first respondent shall disclose to the appellant any documents within Annexure A and Annexure B to which the duty of disclosure arises. Such disclosure shall be made by delivery of:

(a) a written list identifying each disclosable document and its relevance; and

• [25] These are my reasons for making those orders.
• [26] Both the Industrial Relations Act 2016, which I will call the IR Act, and the Rules contemplate adversarial proceedings both in the Queensland Industrial Relations Commission, which I will call "the QIRC", and the Queensland Industrial Court. Unsurprisingly, then, the Rules prescribe procedures for the disclosure to parties of documents and information.
• [27] As the parties to the proceedings are the ones who are directly interested in the litigation, disclosure obligations firstly fall upon them and third parties are only involved where necessary. There is no right to inter partes disclosure. A party may, though, seek a direction under r 41(2)(o) that another party make disclosure. That has occurred here. Once disclosure has been directed, the scope of the duty to disclose is governed by r 46, which is set out earlier.[3]
• [28] Subdivision 7A of Division 2 of Part 2 of the Rules concerns notices of non-party production. Rule 64B provides as follows:

(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."

• [29] There are various rules concerning the making of objections to the notice and then r 64H provides as follows:

(1) Unless the operation of a notice is stayed, and subject to any order under rule 64G(2), the non-party must produce the document specified in the notice for inspection by the party at the place of business of the non-party, or the non-party's lawyer, within ordinary business hours or at another place or time agreed by the party and the non-party.

(2) If the non-party does not comply with subrule (1), the party may apply to the industrial tribunal who may order compliance and make another order the industrial tribunal considers appropriate.

(3) The party may copy a document produced under this subdivision."

• [30] What is contemplated is not production to the Registry but production to the party seeking disclosure from the third party. Here, as I have explained, the documents were produced to the Registrar. It can be seen that the third party disclosure procedure only arises if the documents have not been obtained by disclosure inter partes. That is consistent with the policy that third parties should be inconvenienced as little as possible.
• [31] Subdivision 7 concerns the issue of attendance notices. This is a procedure whereby a person who is not a party to the proceedings may be required to produce documents to the Registrar. This procedure is only available where the procedure under subdivision 7A has failed and, by inference, therefore, where inter partes disclosure has failed to produce the document. Rules 58, 59, 60 and 63 provide as follows:

(1) On the request of a party, a member of the commission or the registrar may issue an attendance notice to a person.

(2) A member of the commission or the registrar may refuse a request of a party to issue an attendance notice requiring a person, who is a non-party to the proceeding, to produce a stated document if satisfied -

(a) the party could require the production of the document under subdivision 7A; and

(b) the party has not made reasonable attempts, under subdivision 7A, to obtain the document.

(3) On the direction of a member of the commission, the registrar must issue an attendance notice to a person.

(4) For subrule (1), a request for an attendance notice must -

(b) state the name or designation by office or position of the person to whom the attendance notice is directed, unless the court, commission or registrar otherwise directs; and

(d) be accompanied by a draft of the attendance notice, in the approved form, that is requested.

(5) An attendance notice, other than an attendance notice for a compulsory conference, may only be directed to a single person.

(6) The name or designation by office or position of the person to whom an attendance notice is directed must be stated in the notice before it is issued.

1. Requirements for attendance notice to produce

An attendance notice requiring a person to produce a stated document or thing must -

(b) contain a notice, in the approved form, telling the person that the person has the right to apply to the court or commission to have the attendance notice set aside on any sufficient grounds, including, for example -

(i) the document or thing is not relevant to the proceedings; or

(iii) oppressiveness, including oppressiveness because substantial expense may be incurred that may not be reimbursed; or

1. Inspection of document or thing produced under attendance notice

(1) A document or thing produced to the court, commission or registrar, whether produced voluntarily or under an attendance notice, may be inspected by -

(b) with permission of the court, commission or registrar - a party.

(2) However, information obtained from the document must not be made public without the permission of the court, commission or registrar.

(3) If the court, commission or registrar considers that part of a document does not relate to a matter in issue, the court, commission or registrar may order that the part be closed.

(1) This rule applies if the person named in an attendance notice requiring the production of a document or thing is not a party to the proceeding.

(2) Unless the court, commission or registrar otherwise directs, the attendance notice must permit the person to produce, by the day before the day production is required, the document or thing at the registry.

(3) If a document or thing is produced at the registry under subrule (2), the appropriate officer of the court or commission must -

(b) notify the party who requested production of the document or thing that it has been produced at the registry; and(c) deal with the document or thing as the court or commission directs.

(4) An attendance notice that only requires production of a document or thing may be satisfied by an agent of the person named in the notice producing the document or thing to the court or commission."

• [32] The IR Act establishes this Court, the QIRC and the registry. Section 424 concerns the jurisdiction and powers of the Court, and it is in these terms:

(a) perform all functions and exercise all powers given to the court under this Act or another Act; and

(b) hear and decide, and give its opinion on, a matter referred to it by the commission; and

(c) hear and decide an offence against this Act, unless this Act provides otherwise; and

(d) hear and decide appeals from an industrial magistrate's decision in proceedings for -

(ii) recovery of damages, or other amounts, under this Act; and

(e) if the court is constituted by the president, exercise the jurisdiction and powers of the Supreme Court to ensure, by prerogative order or other appropriate process -

(i) the commission and magistrates exercise their jurisdictions according to law; and

(ii) the commission and magistrates do not exceed their jurisdictions.

(a) make the decisions it considers appropriate, irrespective of specific relief sought by a party; and

(3) The court's jurisdiction is not limited, by implication, by a provision of this Act or another Act.

(4) The jurisdiction conferred on the court by this Act or another Act is exclusive of the jurisdiction of another court or tribunal, unless this or the other Act provides otherwise."

• [33] The present application has been filed in the Court, not in the Commission. The documents are sought to be produced by the Registrar for the purposes of the appeal from the orders of Industrial Commissioner Pidgeon. It is therefore not necessary at this stage to consider the jurisdiction and powers of the Commission.
• [34] Section 513 of the IR Act concerns the functions and powers of the Registrar. That provides as follows:

(b) has the functions conferred on the registrar under this Act or another Act.

(2) The registrar has the power to do all things necessary or convenient to be done to perform the registrar's functions.

(3) In performing a function or exercising a power, the registrar must comply with a direction given by the president in relation to the court or the commission."

• [35] There is obviously power in the Court to give directions to the Registrar in order to facilitate the proper and efficient hearing of an appeal. Section 424(2)(b) expressly grants the power to give directions. That must include directions concerning documents disclosed in the course of proceedings. Section 513(3) obliges the Registrar to follow directions of the Court. Ms Mohr-Edgar submits though that there is no jurisdiction to direct the Registrar to produce the documents to Legal Aid if the documents do not fall within the description of the documents sought by the notice requiring third party production.
• [36] The documents have been produced by Telstra. Telstra has presumably considered its obligations under the notice and under the Rules and produced documents which it considered it is required to produce. The documents are within the possession of the Registrar. Here, there is, or may be dispute as to the relevance of the documents, whether they fall within the notice and what should ultimately become of them and, whether further orders ought to be made on appeal. Ms Mohr-Edgar's submission, if correct, would lead to the inevitable conclusion that the Court has no jurisdiction to make orders relating to those documents for the purposes of eventually determining those disputes. That cannot be the intention of the Rules and I reject Ms Mohr-Edgar's submission. There is jurisdiction to make the directions sought by Legal Aid.
• [37] Ms Mohr-Edgar's other argument is in relation to discretionary issues, that is, should the power to direct the Registrar to produce the documents to Legal Aid be exercised? That raises a different set of issues.
• [38] There are discretionary alternatives to ordering the Registrar to produce the documents to Legal Aid. One alternative is to direct the Registrar to produce the documents to the Court. I could view them and make a decision as to relevance. Legal Aid would be disadvantaged in that type of procedure because Ms Mohr-Edgar has seen the documents and it has not. Legal Aid may be able to make arguments about establishing the documents' relevance if they saw the documents, but might not otherwise be able to do so. These problems sometimes arise in arguments concerning privilege. It is a situation which is often awkward. On the other hand, if the documents are produced to Legal Aid, they are bound by the implied undertaking; that is the undertaking not to use the documents for any purpose other than the litigation.
• [39] Ms Mohr-Edgar's real argument is that Telstra has produced documents which it need not have produced and therefore those documents ought not to be produced to Legal Aid. Ms Mohr-Edgar is, therefore, effectively defending Telstra's rights so as to support a position which she wishes to maintain.
• [40] Expense Production Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Ltd[4] involved a party to whom privilege enured seeking to maintain that privilege despite inadvertent disclosure. It is of little assistance to Ms Mohr-Edgar. She has no rights in the documents, save those rights granted by order.
• [41] Telstra is a major corporation no doubt with no lack of access to legal advice. Telstra answered the notice in a way it thought appropriate. It is not for Ms Mohr-Edgar to defend Telstra's position. However, one consideration that does arise is whether, before directing the Registrar to produce the documents to Legal Aid, Telstra should be placed on notice so it could, if it saw fit, make submissions consistently with Ms Mohr-Edgar's and seek the return of the documents.
• [42] I do not think, in the circumstances, that it would be unfair to Telstra, or otherwise inappropriate, to determine the present application without Telstra being involved. Telstra has produced the documents and has taken no further part in the proceedings. It has not, for instance, sought to set aside the notice or submitted that compliance is oppressive or that it ought to be relieved from complying with the notice. The documents do not disclose the content of any conversation and therefore questions of privacy are not a major concern. The litigation before the Commission and the Court does not directly involve Telstra and its rights are not at risk. The parties are bound by the implied undertaking.
• [43] Adjourning the current application so that Telstra might be placed on notice is likely to achieve nothing other than delaying the determination of the current application, placing the date for the hearing of the appeal in jeopardy, and incurring costs and/or inconvenience, including to Telstra, who is not a party to the proceedings and has no interest in its outcome.
• [44] In my view, it is clearly appropriate for Legal Aid to have access to the documents given that they are documents which were obtained in the very proceedings presently the subject of appeal and given that the other party, Ms Mohr-Edgar, has already had access to them.
• [45] One complication is that Legal Aid may take a different view to Ms Mohr-Edgar as to the relevance of the documents to the principal application. Ms Mohr-Edgar no longer has the documents. She destroyed them because she felt ethically obliged to do so. In those circumstances, it would be terribly unfair if Legal Aid saw some relevance in any particular document and sought to use it against Ms Mohr-Edgar without her being on notice of the alleged relevance.
• [46] Ms Marr, of counsel, who appeared for Legal Aid, accepted that the duty of disclosure would apply to any relevant document within annexure A and annexure B. It was, therefore, appropriate for me to give directions to ensure not only disclosure, but identification of the alleged relevance of any document. I fashioned the order accordingly.
• [47] Legal Aid has been successful in its application. It did not seek costs. In all the circumstances, that was, in my view, the appropriate course. There should be no order as to costs.

[1] [2020] QIRC 185.

[2] [2013] HCA 46; (2013) 250 CLR 303.

[4] [2013] HCA 46; (2013) 250 CLR 303.