Williams v State of Queensland

Industrial Relations (Tribunals) Rules 2011 (Qld) r 64B

Uniform Civil Procedure Rules 1999 (Qld) r 243

Deppro Pty Ltd v Hannah [2008] QSC 193; [2009] 1 Qd R 1

Lucas Industries Ltd v Hewitt (1978) 18 ALR 555

McColl v Lehmann [1987] VicRp 46; [1987] VR 503

Niceforo v Berkshire Hathaway Specialty Insurance Company & Ors [2023] QSC 282

Plum v Rockhampton Regional Council (No 3) [2025] QIRC 189

Smith v State of Queensland (Queensland Health) & Anor (No 2) [2023] QIRC 79

Ms M Brooks of counsel, for the State of Queensland.

[1] Dr Williams is the Applicant in the substantive matters D/2025/49 and GP/2025/29. Pursuant to r 64B of the Industrial Relations (Tribunals) Rules 2011 (Qld), Dr Williams served a notice of non-party disclosure on Dr Trevor Fayers ('the Notice').

[2] Dr Fayers, who was represented by the Respondent at the time, lodged an objection in the correct form and, the effect of doing so brings about a statutory stay to the Notice. That stay remains in place until such time as an application to lift it is either partly or wholly successful.

[3] This decision is in relation to that application filed by Dr Williams seeking to lift the stay created by the objection lodged by Dr Fayers. The parties, and Dr Fayers, filed and exchanged written submissions. I have had the benefit of considering all of that material in advance of today's hearing. I have also considered carefully the submissions of the parties at today's hearing.

[4] This decision deals with a single issue. That is, whether the objection to the Notice should be accepted or, alternatively, should the stay be lifted and Dr Fayers compelled to produce the relevant material.

[6] Queensland Health submits that I should set the Notice aside because the documents are not directly relevant to the proceedings. That argument is advanced, I summarise, on the basis of:

(a) the Notice does not consider documents disclosed so far by Queensland Health, which are significant; and

(b) the Notice is a 'fishing expedition'.

[7] Queensland Health argues that the documents referred to in the Notice are correspondence between Dr Fayers and others that referred to or relate to Dr Williams between 1 January 2013 to the date of the notice ('Request Period').

[8] The point is that Dr Williams and Dr Fayers have not always, at the same time, both been employees of the Respondent during the Request Period. Accordingly, Queensland Health submits, Dr Williams' request for anything outside the time that she and Dr Fayers were both employees of Queensland Health cannot be relevant to either the general protections claim or the industrial dispute.

[9] I was initially attracted by this submission. However, it needs to be remembered that the substance of the allegations includes history between the above-mentioned two individuals outside of when they were both employees of Queensland Health, as well as during the period when they were both employees of Queensland Health.

[10] For example, one of the allegations is that Dr Fayers contacted Dr Williams by telephone when Dr Williams was in Melbourne. This was at a time when Dr Fayers and Dr Williams were not both Queensland Health employees. The allegation, in summary, is that Dr Fayers accused Dr Williams of making a complaint against him which was the subject of some news media at the time.

[11] Dr Fayers' attitude towards Dr Williams is relevant in my opinion, even how that attitude has developed over and during periods of time when he and Dr Williams were not both employees of Queensland Health. It needs to be remembered that the general protections claim goes specifically to Dr Fayers' state of mind and motivating reasons for the impugned actions. How he regarded Dr Williams, as a person and a practitioner, is very much an issue in these proceedings. It is for that reason that I am persuaded that documents that assist in determining what Dr Fayers thought of Dr Williams, even arising out of exchanges they had at times they were not both employees of Queensland Health, are directly relevant to an issue in the proceedings as they will likely assist in deciding whether the requisite state of mind was present as alleged and which is denied.

[12] This is not to be confused with propensity or a "discriminatory pattern" of behaviour which is what resulted in dismissing the non-party notice to produce documents in the matter of Smith v State of Queensland (Queensland Health) & Anor (No 2),[1] which is the case that Queensland Health relies on. I do not see this as propensity evidence. I see it as potential evidence that goes to informing what Dr Fayers' state of mind was; specifically, what he thought of Dr Williams both as a practitioner and personally, when it comes to deciding the contested issue of why certain actions were taken or certain things were said.

[13] On that basis, I do not accept Queensland Health's submission that any documents prior to 3 July 2023 are thereby irrelevant. The history between these two people was active at that point in time and I am of the view that that history is relevant.

[14] I also do not accept that this category of documents is too broad as Queensland Health argues. The general protections claim in particular is essentially about whether Dr Fayers was acting adversely to Dr Williams' interest and, if so, why. Dr Fayers' state of mind is identified in the Notice where it refers to the reason for any of the impugned actions.

Queensland Health may have/has already disclosed some documents

[15] Queensland Health's argument here, in summary, is that it has disclosed all of Dr Fayers' email correspondence that is on its email account, which is not subject to legal professional privilege. I accept the submissions from Dr Williams that this misses a potentially significant body of documents within Dr Fayers' personal email accounts and other communication platforms such as WhatsApp, Facebook messenger, etc. I am satisfied that documents in Dr Fayers' possession and control that may exist on any of those platforms would not be something that Queensland Health has disclosed or may yet disclose. Accordingly, I reject this submission.

[16] I am not satisfied that this is a fishing expedition. On my assessment there is a clear focus by Dr Williams on what documents she is seeking production of. I do not accept that this is seeking documents that may assist Dr Williams to find out if she has a case against Dr Fayers, for example. Dr Williams has already put Dr Fayers front and centre of the case against Queensland Health by pleading that Dr Fayers has been acting in his capacity as a Queensland Health employee at all relevant times.

[17] In my opinion, the Notice is not so lacking in particularity and specificity, or apparently seeking information about matters outside the scope of the issues in these proceedings that I could comfortably accept that it is a fishing expedition.

[18] Dr Fayers argues that there is not enough particularity or specificity to the Notice. What Burns J described as "no better source of the allegations in issue in the proceedings" in Niceforo[2] when his Honour referred to the notice in that case containing relevant extracted portions of the pleadings, is pressed as acceptable.[3] The submission is, in summary, that the Notice needs to set out all of Queensland Health's response to the claims, or particularise each relevant instance of alleged conduct in issue, and therefore make clear what the issue between the parties is.

[19] Dr Fayers argues that I should set aside the Notice because it is not compliant with r 64C (1) (a) of the Rules. This argument refers to r 243 (1) (b) of the UCPR, which Dr Fayers submits mirrors the requirement in r 64C (1) of the Rules to "state the matter in issue in the proceeding about which the document sought is directly relevant." Relying on the decision in Deppro.[4] Dr Fayers argues that this means that the Dr Williams needed to, and failed to, 'distil from the pleadings and articulate in the form of a statement, the issue about which the document held by the third party is relevant.'

[20] That argument is encapsulated in the submission that Dr Fayers, in this case, says he needs to 'interpret the pleadings in an attempt to 'divine the allegations Dr Williams contends are at issue in order to see which documents sought are directly relevant.' For reasons which follow, I do not accept that submission. The task of identifying which issues in the proceedings the documents sought are directly relevant to is quite simple and straightforward in my opinion.

[21] For example, the Notice in relation to the general protections claim relevantly says, I summarise and paraphrase, that Dr Fayers is alleged to have:

(a) discriminated unlawfully against Dr Williams on the basis of sex;

(b) victimised Dr Williams;

(c) bullied Dr Wiliams;

(d) engaged in unlawful adverse action against Dr Williams, including by making false and derogatory comments about her and her professional abilities;

(e) was involved in sending an anonymous letter to the family of a deceased patient blaming Dr Williams for that person's death; and

(f) was involved in preventing Dr Williams from returning to work at all or unless supervised.

[22] On my assessment that is more than sufficiently specific and contains more than enough particularity. As to what is in issue, it is obvious that all of those allegations are an issue because all of them are either denied or not admitted. All of those allegations are central to the case as well. It needs to be remembered that Dr Fayers was represented by the Respondent up until just recently, including when it lodged the objection to the Notice on his behalf. The denials on file, lodged by the Respondent, include denials of factual allegations regarding Dr Fayers.

[23] I concede that it is theoretically possible that the Respondent could have lodged those denials in relation to alleged acts by Dr Fayers without asking Dr Fayers how he responds to the allegations (i.e. by taking a statement only). However, I am not comfortable in accepting such a hypothetical situation is the case in the absence of evidence compelling such a conclusion. The Respondent is still a party to these proceedings and Dr Fayers, could also have put easily on evidence claiming he knows nothing about the allegations and the denials lodged on his behalf by the Respondent.

[24] Regarding that part of the Notice relating to the industrial dispute, it sets out the industrial matters including, again I summarise and paraphrase:

(a) the fair and just conduct of employees;

(b) sexual harassment; and

(c) discrimination.

[25] The Notice also states that the documents sought are relevant to establishing the truth or otherwise of reasons for the impugned conduct.

[26] It is important to note that the Notice specifically highlights the issue of what the reasons were for the alleged action. And so, I find, what was Dr Fayers' motive or state of mind behind any of the alleged acts is clearly identified as an issue in the Notice.

[27] As to the submissions on insufficient particularity or specificity, I accept that there is always a clearer or better way of setting something out. Perhaps what Burns J referred to in Niceforo could be a gold standard approach. But r 64C(1)(a) of the Rules does not require anything more than making it clear enough to the target reader what the matter in issue in the proceedings is, about which the documents are sought.

[28] It needs to be remembered that the third-party here is not some corporate service provider that otherwise isn't a feature of the proceedings. It is Dr Fayers. He is central to a lot of the allegations and always has been. I cannot comfortably accept that he is a stranger to the proceedings or, by virtue of Deppro or Niceforo, he should be treated as though he was for the purposes of r 64C.

[29] It's not like Dr Fayers is external to a complex and long-running dispute that he knows very little about and the Notice falls short of making it clear which documents are relevant to a dispute between two parties that he has had no involvement in. For that reason, I would distinguish this case from Deppro on fact, applying the principles as per Burns J in Niceforo.

[30] I am also very much guided by what his honour, Merrell DP, said, in Plum v Rockhampton Regional Council (No 3)(my emphasis): [5]

Nevertheless, a degree of generality in the description of the documents may, according to the circumstances, be compatible with reasonableness. An attendance notice should not be rejected as oppressive or an abuse of process because it directs production of documents by reference to those relating to a specific subject matter within the recipient's knowledge. An addressee is required to read the subpoena sensibly and with reference to the circumstances known to him or her.

[31] My view of Dr Fayers' position, is that he is taking an overly technical stance in a bid to overcome what in my opinion is a sufficiently clear notice to produce based on a clearly stated set of issues, including the issue of motive or reasons for impugned conduct.

[32] So I do not accept that this case is very different legally to the one in Deppro. But it is very different factually, and in a material way in my opinion. On the facts I have found in this case, there is nothing like the sort of deficiencies in the Notice that were present in Deppro and which moved the Court to make the comments that Dr Fayers points to in Deppro. This case is different because I find the Notice to be sufficiently clear and not infected with the issues the Court criticised in Deppro.

[33] To adopt the wording of his Honour, Merrell DP, in Plumb, the Notice, when read sensibly in circumstances known to Dr Fayers, is sufficiently clear in my opinion.

[34] I conclude that the Notice is not a fishing expedition. The documents to which it refers are relevant. The documents are not such that Queensland Health has already disclosed or is likely to. In my opinion, the Notice states the matters in issue with sufficient clarity and complies with r 64C of the Rules.

1. Dr Fayers' objection to the notice of non-party disclosure filed 2 October 2025 is dismissed.
2. The legislative stay imposed on that Notice to produce is lifted.

[1] [2023] QIRC 79.

[2] Niceforo v Berkshire Hathaway Specialty Insurance Company & Ors [2023] QSC 282 ('Niceforo').

[4] Deppro Pty Ltd v Hannah [2008] QSC 193; [2009] 1 Qd R 1 ('Deppro').

[5] Plum v Rockhampton Regional Council (No 3) [2025] QIRC 189 [39] (Citing Lucas Industries Ltd v Hewitt (1978) 18 ALR 555, 570 and McColl v Lehmann [1987] VicRp 46; [1987] VR 503, 513).