Supreme Court Civil Procedure Act 1932;

Workers Rehabilitation and Compensation Act 1988, ss 25, 42, 81A;

Workers Rehabilitation and Compensation Regulations 2011, reg 6.

Applebee v Alsaffar [2011] TASSC 1;

Fingal Pastoral Pty Ltd v Page Seager Lawyers (A Firm) [2017] TASSC 24;

Glenorchy District Football Club Inc v C [2019] TASWRCT 29;

Mulley v Manifold [1959] HCA 23; (1959) 103 CLR 341;

Toll Transport Pty Ltd t/as Toll Tasmania v B [2020] TASWRCT 19.

The decision has been anonymised for the purpose of publication.

Amended pursuant to s119 of the Tasmanian Civil & Administrative Tribunal Act 2020

Clerical error, paragraph 18 replacing 'this' with 'said'.

1. This is a dispute about discovery in the worker's referral under s 42 of the Workers Rehabilitation and Compensation Act 1988 (WRC Act). The worker was employed by TasTAFE as a teacher and made a claim for compensation in respect of a psychological injury. His injury is related, in part, to interpersonal conflict with a colleague, whom I will call Mr Z, culminating in a physical altercation between the two which led to the worker's dismissal.
2. The worker seeks discovery of all documents relating to complaints about Mr Z, including statements by co-workers, students, co-employees and others. The worker sought records that both pre-date and post-date the physical altercation.
3. For convenience, and for consistency with the approach taken by the parties, I use the word 'complaints' to include complaints, concerns, grievances, grizzles and reports (that is, not limited to formal grievances).
4. During submissions, the employer asserted that there were:

No documents relating to any previous complaint, grievance, grizzle, or anything of the nature in respect of [Mr Z] prior to this incident occurring.

5. The worker accepted counsel's assertion and does not press for further and better discovery of complaints made prior to his altercation. Accordingly, the sole issue I need to decide is whether the employer must discover records of complaints made after the physical altercation.

1. Discovery is addressed in the Workers Rehabilitation and Compensation Regulations 2021 (the Regulations). Regulation 6 states:

6. Discovery > > (1) A party, by notice in writing served on any other party, may request -

(a) discovery of any document or property that is relevant to the issues in dispute in any application or referral; and

(b) a list of all documents discoverable under paragraph (a); and

(c) disclosure of the location of those documents.

(2) A party on whom a notice is served under subregulation (1) is to comply with the notice within 14 days after the date of service of the notice or within any other period agreed to by the parties.

(3) The Tribunal may order a party who has not complied with subregulation (2) to make discovery under subregulation (1) within any period that the Tribunal considers appropriate.

(4) If further documents that are discoverable under subregulation (1)(a) come into the possession, custody or control of a party who has already made discovery, that party is to make further discovery as soon as practicable.

(5) Any document in respect of which privilege is claimed under any law is exempt from discovery.

(6) This regulation does not apply to a referral made under section 81A of the Act, other than a referral made under section 81A(5) of the Act.

1. In Glenorchy District Football Club Inc v C [2019] TASWRCT 29, the Workers Rehabilitation and Compensation Tribunal said, at [25]:

Regulation 6(1)(a) permits a party to request discovery of documents relevant to the issues in dispute in any application or referral. To be relevant the document must relate in some way to the matter in dispute and it has been held in Donaldson v Harris (1973) 4 SASR 299 at 304 that relevance will be established if the document sheds any light on the case or if it would lead to a train of enquiry which would either advance a party's own case or damage that of his adversary: Mulley v Manifold [1959] HCA 23; (1959) 103 CLR 341 at 345.

2. Although those observations related to the 2011 Regulations, they are relevantly identical to the 2021 Regulations and therefore the Tribunal's observations equally applicable.

1. To determine whether the records sought by the employer satisfy reg 6(1)(a), I need to consider the issues that are relevant to the worker's s 42 referral. The employer relies on three grounds for contending that the worker is not entitled to compensation under the WRC Act. The first is a factual dispute. The second is whether the worker's injury is attributable to his serious and wilful misconduct in engaging in the physical altercation with Mr Z. The third is whether any injury arose substantially out of reasonable action taken in a reasonable manner by the employer to terminate the worker and/or reasonable administrative action taken in a reasonable manner.
2. The request for further and better discovery is connected to the second ground. The worker contends that his conduct is in issue and, specifically, whether he engaged in serious and wilful misconduct. The worker will not be entitled to compensation if his injury is "attributable to [his] serious and wilful misconduct": WRC Act, s 25(2)(a)(i).
3. The worker relies on Toll Transport Pty Ltd t/as Toll Tasmania v B [2020] TASWRCT 19. At [12] - [14], the Tribunal set out the test for serious and wilful misconduct:

12. In Hills v Brambles Limited (supra) at [5] Green CJ made this observation about conduct qualifying as serious and wilful: > > "For conduct to amount to serious and wilful misconduct it must be such as to give rise to an immediate risk of serious injury, it must be deliberate and not merely a thoughtless act done on the spur of the moment and it must be accompanied by an appreciation of the risk which is involved in it." > > 13. In Comcare v Calipari [2001] FCA 1534 Finn J stated at [4] that "serious injury" should signify "no more than the converse of trivial injury. If it is intended to signify more than that and to postulate a positive requirement, it can find no justification in the terms of the statute itself nor in the general run of authoritative expositions of the formula." This criteria will be satisfied if the risk of injury to the worker is materially increased by her conduct. > > 14. In the case of Sawle v Macadamia Processing Co Pty Ltd [1999] NSWCC 26 at [24] and [25] O'Meally J. states: > > "Serious and wilful misconduct is conduct beyond negligence, even beyond culpable or gross negligence. In order to establish serious and wilful misconduct, it must be demonstrated that the person performing an act or suffering an omission knows it will cause risk of injury, or acts in disregard of consideration whether it will cause injury. The word 'wilful' connotes that the applicant must have acted deliberately. As it seems to me, in order to establish serious and wilful misconduct, a person accused of it must be shown to have knowledge of the risk of injury and, in light of that knowledge, proceeded without regard to the risk. > > It had been said that serious and wilful misconduct represented a higher stand of misconduct than that which would justify immediate dismissal. However, with the changes to the industrial relations laws, immediate dismissal is now a thing difficult to achieve."

4. The employer does not accept entirely the worker's characterisation of his case. It submits that:
   • The worker's claim form refers to stress caused by management action over time, culminating in the physical altercation. However, it seems to me that the circumstances of the physical altercation are nonetheless relevant, not least because it is the basis of the employer's reliance on the 'serious and wilful conduct' defence in the WRC Act, s 25(2)(a)(i).
   • The worker's evidence in the s 81A referral did not suggest any apprehension on his part about Mr Z's propensity for aggression.
   • Although the worker claims self-defence, he has "a bet each way" by relying on his remorse and his conduct being an aberration in respect of the physical altercation which, I infer, would be inconsistent with self-defence.
   • In any event, the worker's conduct went beyond self-defence.
   • It would follow that evidence of complaints made about Mr Z would not be relevant to the issues in dispute.
5. During submissions, I questioned counsel for the worker about the relevance of complaints made about Mr Z after his physical altercation with the worker. Counsel agreed that the relevance of any complaints would be akin to tendency evidence. That is, they may bolster an argument by the worker that it was well known that Mr Z "had a temper issue".

1. With some hesitation, I have concluded that records of complaints are discoverable. The parties' competing arguments are finely balanced. I find the employer's characterisation of the worker's case to be overly narrow. For reasons which I will endeavour to explain, Mr Z's reputation or propensity for aggression may be relevant. I do not think that, for the purposes of discovery for a s 42 referral, the worker should be too literally confined to documents relied on as part of his claim for compensation. I reject the employer's submission that Mr Z's behaviour in other situations is irrelevant having regard to the worker's characterisation of his claim. Instead, I think that, at least for the purposes of determining this request for further and better discovery, the altercation must be considered as a culminating event.
2. Applebee v Alsaffar [2011] TASSC 1, which the worker relies on, involved a request for further and better discovery under the Supreme Court Civil Procedure Act 1932 (SCCPA). Blow J referred to the low threshold and discussed the relevance of tendency evidence in an action for negligence by a medical practitioner. I have found the case to be of minimal assistance. First, each case will turn on its own facts depending on the issues in dispute. Second, that case relates to discovery under the SCCPA.
3. The test for discovery under the SCCPA appears to have narrowed over time, consistent with a departure from "the expansive test identified in Compagnie Financiere et Commerciale du Pacifique v Peruvian Guano Company [1883] UKLawRpKQB 95; (1882) 11 QBD 55" by rules made under that Act: Fingal Pastoral Pty Ltd v Page Seager Lawyers (A Firm) [2017] TASSC 24 at [29]. But the test under reg 6 remains an expansive one. As the High Court said in Mulley v Manifold [1959] HCA 23; (1959) 103 CLR 341 at 345:

[D]iscovery is a procedure directed towards obtaining a proper examination and determination of these issues - not towards assisting a party upon a fishing expedition. Only a document which relates in some way to a matter in issue is discoverable, but it is sufficient if it would, or would lead to a train of enquiry which would, either advance a party's case or damage that of his adversary.

4. Whether Mr Z had a reputation or propensity for aggression may advance the worker's case by militating against the worker having engaged in serious and wilful misconduct by engaging in the altercation with Mr Z. The employer concedes that the test for serious and wilful misconduct requires an examination of Mr Z's state of mind. The worker contends that it might bolster an argument that his action "might not have been out of proportion".
5. The relevance is somewhat tenuous, limited as it is to evidence of reputation or tendency, particularly where any complaints post-date the physical altercation. However, in these circumstances it meets the low threshold for discovery. That said, this decision does not mean that any such evidence would necessarily be relevant (and admissible) on the hearing of the s 42 referral. That is a separate question.

1. The worker's application succeeds. I order that within 14 days, the employer make discovery of all records in its possession of complaints, however described, made about Mr Z.