Peng v Bak10Cut Pty Ltd & Anor [2020] QIRC 115

Queensland Industrial Relations Commission|2020-08-07

The application should be dismissed since it was directed exclusively to credit in that it was simply and solely directed towards putting the plaintiffs in a position to assert that, since the defendants had been guilty of dishonest trading in one country, they were the sort of people who would trade dishonestly in the five countries in question.

[32] The Respondents have not directed me to, nor have I found, anything within that case which supports the position that evidence related solely to credit becomes admissible where there are two conflicting versions to distinguish between. On the contrary, Justice Walton was quite clear in finding that discovery which relates solely to credit is not allowed.

Orders for disclosure should not be made for the purpose of enabling a party to attack credibility.

[34] The vast majority of proceedings contain some factual disputes. If the mere presence of two conflicting versions was a sufficient basis to order disclosure of material that relates solely to credit, that would entirely undermine the principle that discovery which relates solely to credit is impermissible. The process proposed by the Respondents is not the process which has been followed in this Commission, nor is it the process I am minded to adopt.

[35] Here, the Respondents are effectively seeking the visa materials so as to place themselves in the position to assert that, since the Complainant's visa is or was contingent upon these proceedings, she must not be a witness of credit. That is not a sufficient reason to warrant an order for further disclosure. It follows that I am not minded to order disclosure of the visa material sought by the Respondents from the Complainant.

[36] As an aside, even if it were true that the Complainant's visa has been extended on the basis that these proceedings exist, that would not automatically materially impair my confidence in the reliability of the witness's evidence. The mere fact that a person is engaged in a civil proceeding and has had their visa extended in order to conduct that proceeding is generally unremarkable. It follows that such a line of questioning may well be disallowed.[13] Even so, I am not minded to make any definitive findings in that regard at this stage.

[37] The Respondents requested two outcomes from their Application in existing proceedings at the mention of this matter on 24 July 2020. First, that the Complainant be compelled to attend upon a medical examination for the purpose of creating a rebuttal medical report. Second, that the Complainant disclose documents related to her visa, as it may be the case that the Complainant's visa is contingent upon or related to these proceedings.

[38] I am not satisfied that this Commission is empowered to order a Complainant in a proceeding under the AD Act to attend upon a medical examination.

[39] Nor am I satisfied that the further disclosure sought involves documents that are relevant to a matter in issue in the proceeding. They relate solely to credibility, which is not a sufficient basis to order disclosure.

The Respondents' Application in existing proceedings commenced orally at the mention of this matter on 24 July 2020 is dismissed.

[1] Though for simplicity I have continued to refer to the parties in their roles in the substantive proceedings, namely Complainant and Respondent.

[2] See, eg, Public Service Act 2008 (Qld) ch 5 pt 7.

[5] Coco v The Queen [1994] HCA 15; (1994) 179 CLR 427, 438-439.

[7] Weston and Parer v State of Queensland (Department of Justice and Attorney-General) (No. 4) [2016] QIRC 75.

[8] Ibid [4] cited with approval in Kelsey v Logan City Council & Ors (No 6) [2018] QIRC 115, [16].

[9] George Ballantine & Son Ltd and others v F E R Dixon & Son Ltd and others [1974] 2 All ER 503.

[12] Weston and Parer v State of Queensland (Department of Justice and Attorney-General) (No. 4) [2016] QIRC 75, [4] cited with approval in Kelsey v Logan City Council & Ors (No 6) [2018] QIRC 115, [16].

Relations (Tribunals) Rules 2011

Injuries Proceedings Act 2002

Compensation and Rehabilitation Act 2003

Coco v The Queen [1994] HCA 15; (1994) 179 CLR 427

Cuttiford v Queensland Police Service [2011] QIRC 6

Grant v BHP Coal Pty Ltd (No 2) [2015] FCA 1374

Kelsey v Logan City Council & Ors (No 6) [2018] QIRC 115

Weston and Parer v State of Queensland (Department of Justice and Attorney-General) (No. 4) [2016] QIRC 75

White v Ducks in a Row Pty Ltd [2016] QDC 212

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