Powell v Workers' Compensation Regulator [2025] QIRC 310

King v Workers' Compensation Regulator [2019] QIRC 134

State of Queensland (Department of Agriculture and Fisheries) v Workers' Compensation Regulator [2020] QIRC 97

St Clair v Timtalla Pty Ltd [2010] QSC 296

Weston and Parer v State of Queensland [2016] QIRC 75

Ms S Anderson of counsel, instructed by Barsby Law for the Appellant

Mr S Sapsford of counsel, instructed by the Workers' Compensation Regulator for the Respondent.

Ms O Perkiss of counsel, instructed by Latitude Law for the non-party, EB Games Australia.

• [1] This is an interlocutory application to set aside a notice of non-party disclosure which was granted by order of a Senior Registry Officer of the Queensland Industrial Relations Commission on 11 September 2025.

• [2] The substantive matter is an appeal seeking to overturn a decision of the Workers' Compensation Regulator. However, these appeals are a hearing de novo, and it is not a question of whether that decision comes under the scrutiny of the Commission. However, what will come under the scrutiny of the Commission is whether, in fact, the alleged injury is captured by the exclusion of s 32(5) of the Workers' Compensation and Rehabilitation Act 2003 ('WC Act').

• [3] The employer non-party, which I will refer to as "EB Games", has filed an objection. The objection has been properly made, and the effect of that is to stay the above-mentioned notice to produce. The notice to produce is in the following terms:

(a) Category 1: "Résumé and position description of Mr Justin Howard and Mr Tim Jay".

(b) Category 2: "All file notes and records of conversations involving Mr Howard and/or the Appellant, including (a) notes of any meetings or discussions held with the Appellant; (b) records of Mr Howard's investigations into the Appellant's complaints; and (c) communications between Mr Howard and other employees regarding the Appellant's complaint"; all of those "for the period commencing of employment (8 August 2023 to present)".

(c) Category 3: "Documents relating to other complaints made against Ms Chloe Glynn, Mr Justin Howard, Mr Tim Jay and other employees, including (a) complaints involving bullying, harassment, vilification or cultural issues within the HR team; and (b) internal investigation reports, emails, meeting notes, and outcomes of those complaints"; all of those for the period of three years prior to 8 August 2023 to present.

(d) Category 4: "Records concerning the employee who the Appellant replaced and who left prior to the Appellant commencing employment, including (a) her name and contact details; (b) any complains made by or about her during her employment; and (c) documents referencing her departure, and reasons, (for example, did not fit in with the culture)"; all of those for the period three years prior to her commencement to the date of her departure.

• [4] The employer's objection is based on the following categories: expense and inconvenience, the lack of relevance of the documents, the lack of particularity, legal professional privilege, confidentiality, and the effect of the orders on others.

• [5] As I mentioned earlier, with four weeks of trial dates fast approaching, I was concerned to have this matter heard and decided at least a week or two before day one of trial. Written outlines of submissions have been filed. I have read and considered those, and heard the submissions before me today.

• [6] As a matter of law, the relevance of a document is what is required. The class of documents must have a tendency to prove or disprove an issue in the proceedings. A set of principles to guide cases like these was set out by Industrial Commissioner Fisher in Weston and Parer v State of Queensland ('Weston').[1] Industrial Commissioner Fisher said that:[2]

The case law relating to disclosure establishes a number of principles including the following which are relevant to the task confronting the Commission:

• A decision of the Commission to order disclosure is a quintessential exercise of discretion;

• To be discoverable, a document must relate to the question or issues to be decided by the proceedings;

• A document is relevant if it contains information which enables the party calling for production of the document to advance its own case or damage the case of their adversary or it is a document which may fairly lead to a train of enquiry which may have either of those consequences;

• A party will not be required to produce documents where to do so would be oppressive;

• A request for disclosure must not be in the nature of a fishing expedition in the sense that it is an endeavour not to obtain evidence to support a case but to discover whether there is a case at all; and finally,

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

• [7] With respect to the parties' written submissions, I agree with the Appellant's submission that the scope of this appeal is not confined to the initial decision by WorkCover and the Regulator's decision. The scope of the matter is set by the statement of facts and contentions, the list of stressors, and of course, the legislative test, in particular the one I have referred to earlier of s 32(5) of the WC Act.

• [8] I discussed further the issues of the categories of documents with the parties during the hearing today, especially about the broadness and the potential for the orders as they currently are drafted to be oppressive. I cannot agree with the submission that the size of an organisation matters a great deal to what is or is not an oppressive task in the way of discovery.

• [9] I agree that this process may result in more than just the documents considered by the Workers' Compensation Regulator or WorkCover, because of course, this is a hearing de novo. There are limits, however, and I have referred to those earlier.

• [10] At paragraph 23 of the Appellant's submissions there is reference to the statement of Mr Howard dated 5 January 2024. I do not have that. The submission that within it there is some sort of waiver of either legal professional privilege, which I think is not the case of what is being asserted, but more a waiver of some sort of confidentiality in relation to the former employee nicknamed "Dee".

• [11] The scope of the appeal, as in the third party's submissions, is stated to be limited to the decision by the Regulator. As I noted earlier, this is a hearing de novo, it is a clean slate, and the Regulator's decision is of historical significance, perhaps, but otherwise irrelevant. It is up to the Appellant to prove injury, unless it is admitted, the cause of it, each conversation, each alleged inaction or failure or breach of procedure if her case in relation to reasonable management action, or otherwise, is to succeed. Some facts may be admitted. I do not know what they are other than from what we can all glean from the statements of facts and contentions.

• [12] There is said to be no position description for Mr Howard or Mr Jay, and the résumé for Mr Jay has been provided, and that there is no résumé for Mr Howard in relation to that first category.

• [13] The submissions of EB Games also notes category 2, and concedes, appropriately in my opinion, that some targeted searches could be carried out, but only for documents directly concerning the Appellant's complaints up to and including the end of employment, which the Appellant has conceded in submissions today is the appropriate range, at least ceasing upon the end of employment.

• [14] In the third category of documents, the third party, EB Games, advises in its submissions that there are no such documents. That is, other complaints in relation to those persons. That is also the case, the third party submits, with respect to the fourth category of documents.

• [15] The argument presented by the Appellant in respect of that first category of documents seems less in contention now because it appears there will be forthcoming an affidavit in relation to the documents that do not exist and there has been production of those that do. However, the matter still remains for determination.

• [16] The Appellant says that this is relevant to understanding what was reasonable management action. Some of the contentions that will be a matter between the parties where they are at odds on fact are, for example, Mr Howard's alleged inaction following a complaint by the Appellant being conveyed to him, a failure to act after being aware of alleged differential treatment of the Appellant by her co workers, and Mr Howard not addressing the failing team dynamic and ensuring proper investigation.

• [17] The Appellant says that résumés and position descriptions will help understand the role and authority and qualifications of those who are charged with responsibility of management action in this instance. I find, therefore, that there will be a key issue that is disputed amongst the parties as to the conduct of Mr Howard and Mr Jay.

• [18] If it is relevantly found to be management action, the issue then becomes one of reasonableness, and of course, causation. That is a question of fact to be determined objectively as his Honour Merrell DP ruled in State of Queensland (Department of Agriculture and Fisheries) v Workers' Compensation Regulator.[3]

• [19] The action taken, or not taken, in accordance with a particular relevant policy or procedure may be relevant. What the duties and authorities are to act in a relevant way or a particular way in accordance with a person's position description or their capacity as evidenced by their résumé may be a relevant consideration in deciding objectively whether actions by that person were or were not reasonable in the circumstances.

• [20] I hasten to add that this is a long range or broad view. I am mindful that the word "reasonable", or what is reasonable, does not amount to perfection. I can see that it may assist the Commission and the parties' cases to know what each relevant person's authorities, responsibilities, et cetera, were in respect of managing the alleged complaints and the alleged subsequent conduct.

• [21] On that basis, I consider that the résumés and position descriptions are not particularly hard to find. The order is framed neatly. The third party has not argued that there is any oppression associated with finding those documents. On that basis, I am minded to allow the disclosure of the category 1 documents to stand as it currently is in the existing order.

• [22] As to the second category of documents sought, this relates to "the file notes and conversations involving Mr Howard and/or the Appellant" and includes "a range of notes of meetings or discussions held with the Appellant, records of Mr Howard's investigation into the Appellant's complaints and communications between Mr Howard and other employees regarding the Appellant's complaint".

• [23] Now, the order is stated to cover documents created from 8 August 2023 to the present. However, the Appellant has appropriately conceded that the cut off date for that would be 25 October 2023, which is the Appellant's last day of work with the third party employer.

• [24] The s 32(5) exclusion brings into focus Mr Howard's conduct in responding to the alleged complaint. The examples provided are, I think, potentially relevant. However, the opening sentence of the second category is too broad, in my opinion. In my view, I accept the submission that, in the way this order is currently worded, it renders oppressive the nature of the order by use of the words "including" and the words "and/or" and the first bullet point.

• [25] As it reads presently, the order requires everything to be reviewed and covers a great deal of potentially irrelevant material. It can be remedied, however. As I have discussed with the parties today, that remedy simply involves narrowing the focus and changing some of the wording.

• [26] Noting that the focus or the scope of this matter is confined to Ms Powell's complaints in relation to what followed in the form of whether it was reasonable management action done in a reasonable way, I would amend the second category of orders to become, "documents created between 8 August 2023 to 25 October 2023 as follows: all file notes and records of conversations involving Mr Howard and the Appellant about, firstly, the Appellant's complaints that are set out in the statement of facts and contentions; secondly, Mr Howard's investigations into the Appellant's complaints as they are set out in the statement of facts and contentions".

• [27] The second subcategory of this second category is, "all communications between Mr Howard and Ms Chloe Glynn, Mr Justin Howard, Mr Tim Jay, Mr Bree McManus and Mr Bron Stark regarding the Appellant's complaints as they are described in the Appellant's statement of facts and contentions".

• [28] The third category of documents in the current order is, "documents relating to complaints made against Ms Chloe Glynn, Mr Justin Howard, Mr Tim Jay and other HR employees, including complaints involving bullying, harassment, vilification or cultural issues within the HR team" and "internal investigation reports, emails, meeting notes, outcomes of those complaints".

• [29] The stated period is from three years before 8 August 2023, so that would be from 8 August 2020 to the present. This would, I accept, require an enormous search covering five years of correspondence. It also raises the issue of propensity or tendency issue - evidence. I am mindful that the Commission, by virtue of s 531(2)(a) of the Industrial Relations Act 2016 is not bound by the rules of evidence. However, those rules should not be departed from without good reason.

• [30] In King v Workers' Compensation Regulator ('King'),[4] his Honour the Vice President, considered similar fact evidence. It was a case like this one alleging certain conduct - although in that case it was positive conduct - occurred which is said to have caused the injury and which was denied. By way of example, the alleged conduct by Ms Glynn towards the Appellant is denied.

• [31] In King, his Honour said, that similar fact evidence will be admissible if it is "logically probative. That is, relevant to proving a matter in issue. Provided that it is not unfair or oppressive and the other side has had notice, it will be admissible".[5] As was observed by Martin J in St Clair v Timtalla Pty Ltd,[6] with respect to the admissibility of similar fact evidence, "the modern cases support the view that the essential criterion for admissibility is relevance".[7] His Honour, O'Connor VP, concluded that the correct approach was to admit the similar fact evidence and leave it to the ultimate trier to determine the relevance and weight of the evidence after hearing the totality of the evidence. It is clear to me that a tendency to act in a way alleged, which is denied, could be of assistance in proving or disproving such allegations as they are denied. That will be a matter for the evidence and the hearing process.

• [32] For the present purposes of disclosure of documents that may assist in those inquiries, I can see relevance, potentially. It is the enormity of the terms of this third category that I agree are potentially oppressive. Again, however, that can be remedied. The problem really arises from phrasing such as "including". The term, although lengthy at five years, is capable of being manageable if the scope of the search is narrowed by reference to the documents within it.

• [33] I would allow the third category in an amended form, which would be, "document created between the 8th of August 2020 and the present containing (a) complaints alleging bullying, harassment or vilification by Ms Chloe Glynn, Mr Justin Howard or Mr Tim Jay towards employees of the employer; (b) investigation findings or reports about complaints alleging bullying or harassment or vilification by Ms Chloe Glynn, Mr Justin Howard or Mr Tim Jay towards employees of the employer; and (c) written statements in response to complaints about or alleging bullying, harassment or vilification by Ms Chloe Glynn, Mr Justin Howard or Mr Tim Jay by or on behalf of those persons".

• [34] The fourth and final category of documents sought is records concerning the employee who the Appellant replaced and who left employment with EB Games prior to the Appellant commencing employment, including the name and contact details, which have now been revealed, any complaints made by or about that person during her employment, and documents referencing her departure, and reasons, for the period of three years prior to her departure.

• [35] The same issue arises here with the use of the word "including". It renders the search, or the scope of the search itself too vague and will cover too much territory, in my opinion, for it not to be oppressive. The name and contact details appears to me to be a request for information to contact a potential witness. For the present purposes, for the notice to produce, I do not accept that that meets the test for "directly relevant to an issue in the proceedings".

• [36] The use of the word "any complaint" is also very broad and has the very real potential to require the third party to produce material that has no relevance to the proceedings at all. So too, any complaints about her. I am not satisfied that that reveals a matter that would be particularly relevant to the proceedings as I can see them at this stage.

• [37] If it is to see if the complaints were made about this person's inability to "fit in", then that seems to me to be approaching, at this early stage, something beyond probability and wondering into the realm of speculation. However, documents regarding that person's departure, whilst categorised that way is too broad, could be something that is relevant to the facts in issue in these proceedings.

• [38] In its current wording, that could include anything that refers to that person leaving, and potentially, even innocent messaging to third parties, et cetera. However, the key to these proceedings is that person's reasons for departure. It is a specific enough category that should be easily enough found, and as I understand it, the third party has made concessions, appropriately, already and disclosed some material. I should think that that will be relevant, potentially, to the sorts of issues that I discussed earlier.

• [39] For this fourth category, I would order as follows: "documents referencing the reason for ceasing employment with EB Games with respect to the person who occupied the position, or relevantly comparable position, held by the Appellant prior to the Appellant being employed by - in that position". So to reiterate, that fourth category will be narrowed to only documents referencing the reason for that person's departure.

• [40] As discussed in the hearing today, it is a matter for the third party to make any applications as to whether material within those documents ought to be redacted or is, for example, the subject of confidentiality obligations or legal professional privilege. We will cross that bridge when we come to it.

• [41] On that basis, I order that the orders issued on 11 September 2025 requiring EB Games Australia to produce documents set out therein is revoked. I will publish new orders in accordance with these reasons as soon as I am able.

1. That the orders requiring third party disclosure (EB Games Australia) issued on 11 September 2025 are revoked.

1. EB Games Australia is ordered to provide disclosure by 5pm on 17 October 2025 the following documents in its possession and control:

1. The resumes and position descriptions for Mr Justin Howard and Mr Tim Jay.

1. Documents created between 8 August 2023 and 10 October 2023 as follows:

1. File notes and records of conversations involving Mr Justin Howard and the Appellant about:

1. The Appellant's complaints as described in the Appellant's Statement of Facts and Contentions;

1. Mr Justin Howard's investigation into those complaints;

1. All communications between Mr Justin Howard, Ms Chloe Glynn, Mr Tim Jay, Ms Bree McManus and Mr Bron Stark regarding the Appellant's complaints as described in the Appellant's Statement of Facts and Contentions.

1. Documents created between 8 August 2020 and 10 October 2025 containing:

1. Complaints about the conduct of Ms Chloe Glynn, Mr Justin Howard or Mr Tim Jay alleging bullying, harassment or vilification towards employees of EB Games;

1. Investigation findings or reports about complaints alleging Ms Chloe Glynn, Mr Justin Howard or Mr Tim Jay engaged in bullying, harassment or vilification towards employees of EB Games;

1. Written statements in response to complaints about alleged bullying, harassment or vilification conduct of Ms Chloe Glynn, Mr Justin Howard or Mr Tim Jay by, or on behalf of, these persons.

1. Documents referencing the reason for ceasing employment with EB Games with respect to the person who occupied the position held by the Appellant prior to the Appellant being employed in that position.

[1] [2016] QIRC 75.

[3] [2020] QIRC 97, [25].

[4] [2019] QIRC 134.

[6] [2010] QSC 296.