Wang v Workers' Compensation Regulator [2023] QIRC 71 (2 March 2023)

Last Updated: 24 April 2023

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:	Wang v Workers' Compensation Regulator [2023] QIRC 071
PARTIES:	Wang, Yuehai (Appellant) v Workers' Compensation Regulator (Respondent)
CASE NO:	WC/2021/202
PROCEEDING:	Appeal against decision of the Workers' Compensation Regulator
DELIVERED ON:	2 March 2023
HEARING DATE:	On the papers
DATES OF WRITTEN SUBMISSIONS:	Third party's written submissions filed on 28 February 2023 and Appellant's written submissions filed on 1 March 2023
MEMBER: HEARD AT:	Merrell DP Brisbane
ORDER:	Pursuant to r 61 of the Industrial Relations (Tribunals) Rules 2011, the Attendance notice to produce, dated 10 February 2023 and directed to John E. Magoffin, is set aside.
CATCHWORDS:	WORKERS' COMPENSATION - ENTITLEMENT TO COMPENSATION - Appeal by Appellant against review decision of the Respondent that Appellant did not have a valid and enforceable application for workers' compensation within the meaning of s 131(1) of the Workers' Compensation and Rehabilitation Act 2003 - Directions issued for the hearing and determination of the Appellant's appeal - Appellant, pursuant to r 59 of the Industrial Relations (Tribunals) Rules 2011, directed an Attendance notice to produce to his former solicitor - objection to Attendance notice to produce - determination of objection to Attendance notice to produce - documents sought are irrelevant - documents or thing the subject of the Attendance notice to produce not in existence - Attendance notice to produce required the person to whom it was directed to compile an affidavit - Attendance notice to produce set aside pursuant to r 61 of the Industrial Relations (Tribunals) Rules 2011
LEGISLATION:	Industrial Relations (Tribunals) Rules 2011, r 58, r 59, r 60A and r 61 Legal Profession Act 2007, s 317 Workers' Compensation and Rehabilitation Act 2003, s 131
CASES:	Church v (Simon Blackwood) Workers' Compensation Regulator [2015] ICQ 031; (2015) 252 IR 461 Roberts-Smith v Fairfax Media Publications Pty Ltd (No 15) [2021] FCA 582 Xinfeng Australia International Investment Pty Ltd v GR Capital Group Pty Ltd [2020] NSWSC 620

Reasons for Decision

Introduction

[1] Mr Yuehai Wang was employed, on a casual basis, as a mechanic with Juicy Love Pty Ltd in Cairns. Mr Wang claims that on 28 August 2019, when he commenced walking home from his place of employment, a motor vehicle drove onto the footpath where he was walking, ran over his left foot and knocked him down.^[1] Following this event, Mr Wang claims he reported the accident to his employer, was taken by ambulance to the Cairns Hospital where he was diagnosed with an injured left elbow and '... left foot (suspicious fracture)' and was then later discharged from the Hospital.^[2]

[2] As best as I can make out from the statements of facts and contentions filed by both parties, it seems that Mr Wang initiated an application for workers' compensation by lodging, on or about 23 April 2021, a Work Capacity Certificate issued by his General Practitioner.^[3] Mr Wang accepts that his entitlement to compensation for injury arose on 28 August 2019.^[4]

[3] WorkCover Queensland:

• waived the six month time frame for Mr Wang to lodge his application for compensation, as contained in s 131(1) of the Workers' Compensation and Rehabilitation Act 2003 ('the Act'), such that Mr Wang had a valid and enforceable application for compensation even though he did not lodge his application within six months after the date his entitlement to compensation arose; and

• did not waive s 131(2) of the Act, such that WorkCover Queensland's liability to pay compensation was limited to a period starting no earlier than 20 business days before the day on which Mr Wang lodged a valid application.

[4] It seems Mr Wang applied for a review by the Workers' Compensation Regulator of the decision of WorkCover Queensland referred to in the second dot point of the last paragraph of these reasons. By review decision dated 2 December 2021, the Regulator set aside the earlier decision of WorkCover Queensland to waive the six month time frame and substituted a new decision, namely, that Mr Wang did not have a valid and enforceable application for compensation ('the review decision').

• [5] By application to appeal filed on 20 December 2021, Mr Wang appealed against the review decision. Mr Wang's appeal is set down for hearing in Cairns on 7 and 8 March 2023. An appeal to the Commission against a review decision of the Regulator is a hearing de novo.^[5] This means that the parties are to start the 'case' again,^[6] and the ambit of such a hearing (before the Commission) is determined by the case which was before the Regulator.^[7] Subject to any other issue coming up in Mr Wang's appeal, the matter for my determination is whether I should waive the six month time frame if I am satisfied Mr Wang's failure to lodge his application within the six month time frame was due to mistake or a reasonable cause.^[8]

[6] As best as I can make out from Mr Wang's statement of facts and contentions, he claims that he did not make his application for compensation within six months after his entitlement to compensation for injury arose because of the failure of his former employer,^[9] his former solicitors^[10] and a medical practitioner^[11] to either advise him to make, or to make on his behalf, a workers' compensation application. The six month period ended on 28 February 2020.

[7] On 10 February 2023, Mr Wang, pursuant to r 58 of the Industrial Relations (Tribunals) Rules 2011 ('the Rules') requested an Attendance notice to produce ('the Notice') be issued to Mr John E. Magoffin, a solicitor Mr Wang claimed he consulted in February 2021. The Notice was issued.

[8] By email sent to the Industrial Registry on 20 February 2023, Mr Magoffin objected to the Notice, giving reasons for his objection. By email dated 23 February 2023, Mr Wang, who is self-represented, corresponded directly with Mr Magoffin stating reasons why he (Mr Magoffin) should comply with the Notice. That email was also sent to the Industrial Registry. In those circumstances, it was reasonable to take Mr Wang's email as being an application by him for a decision about the objection taken by Mr Magoffin within the meaning of r 60A of the Rules.

[9] This is my decision about Mr Magoffin's objection to the Notice.

[10] For the reasons that follow, pursuant to r 61 of the Rules, I will set aside the Notice.

The Rules

[11] Rule 58(1) relevantly provides that on the request of a party, the Commission may issue an Attendance notice to a person.

[12] Rule 59 deals with the requirements for Attendance notices to produce and relevantly provides that the notice must '... adequately describe the document or thing.'

[13] The general principles concerning notices to produce were summarised by Abraham J in Roberts-Smith v Fairfax Media Publications Pty Ltd (No 15),^[12] namely:

[7] The party who issued the notice to produce carries the onus of establishing that they are entitled to the documents sought: Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd (No 3) [2012] FCA 61 at [6] per Collier J.

[8] Those principles are well established, and were summarised in Wong v Sklavos [2014] FCAFC 120; (2014) 319 ALR 378 at [12] as follows:

The party issuing a subpoena bears the onus of demonstrating that the subpoena has a legitimate forensic purpose in relation to the issues in the proceedings: Santos Ltd v Pipelines Authority of South Australia [1996] SASC 5578; (1996) 66 SASR 38 at 52. A subpoena may be set aside if it requires the production of documents which do not have apparent relevance to the issues arising on the pleadings: Trade Practice Commission v Arnotts Ltd (No 2) (1989) 88 ALR 90; Campaign Master (UK) Ltd v Forty Two International Pty Ltd (No 4) [2010] FCA 398; (2010) 269 ALR 76 at [39]- [40]; McHugh v Australian Jockey Club Limited [No 2] [2011] FCA 724 at [13]; McIlwain v Ramsey Food Packaging Pty Ltd [2005] FCA 1233; (2005) 221 ALR 785 at [35]; Dorajay Pty Ltd v Aristocrat Leisure Ltd [2005] FCA 558 at [17]. Other cases have used different terminology, but with essentially the same effect, for example, by requiring that, viewed realistically, the documents sought have a bearing on an issue which is not unreal, fanciful or speculative (R v Barton (1981) 2 NSWLR 414 at 420), or that the material sought is reasonably likely to add in some way to the relevant evidence in the case (Spencer Motors Pty Ltd v LNC Industries Ltd (1982) 2 NSWLR 921 at 927), or that it be “on the cards” that the documents sought will materially assist the party at whose request the subpoena has been issued: Allister v R [1984] HCA 85; (1984) 154 CLR 404 at 414; Tamawood Ltd v Habitare Developments Pty Ltd [2009] FCA 364 at [13], [35]-[38].

[9] Therefore, there must be a legitimate forensic purpose in seeking the documents for them to be the subject of a subpoena. They must have an apparent relevance in relation to the issues in the proceedings. The test for apparent relevance has been described as having a low threshold. A document or class of documents may satisfy that threshold if it gives rise to a line of enquiry relevant to the issues before the trier of fact: Hooke v Bux Global Limited (No 2) [2018] FCA 836 at [38], citing Boase v Axis International Management Pty Ltd (No 3) [2012] WASC 498 at [11]. What is involved then is a question about reasonable likelihood, not possibility: Chief Executive Officer of Australian Transactions Reports and Analysis Centre v TAB Ltd [2016] FCA 122 at [40] citing Seven Network Ltd v News Ltd (No 11) [2006] FCA 174 at [6].

[14] In Xinfeng Australia International Investment Pty Ltd v GR Capital Group Pty Ltd ('Xinfeng Australia'),^[13] Ward CJ in Eq relevantly stated:

38. Relevantly for present purposes, having regard to the complaints here raised, a subpoena or notice to produce will be objectionable if it is being used as part of a “fishing expedition” (see One.Tel at [32]). As I have noted in the past, a useful explanation of what constitutes a “fishing expedition” is that given by Owen J in Associated Dominions Assurance Society Pty Ltd v John Fairfax & Sons Pty Ltd (1952) 72 WN (NSW) 250 (at 254), namely, that it is where a party has no evidence that “fish of a particular kind are in a pool [but] desires to be at liberty to drag it for the purpose of finding out whether there are any there or not”. Both parties have invoked this metaphor in their submissions on the present application.

The Notice, Mr Magoffin's objection and the submissions made

[15] The Notice required Mr Magoffin to produce certain documents in relation to Mr Wang's '... personal injury case'. In summary, the Notice requested:

• a written report of Mr Magoffin's firm's progress of '... the matter in which the law practice is retained pursuant to s 317 (1) of Legal Profession Act 2007';

• a written report of the legal costs '... incurred by the client to date, or since the last bill (if any), in the matter pursuant to s 317 (1) of Legal Profession Act 2007';

• voice recordings of conversations between Mr Wang and Mr Magoffin in the Magoffin Law office '... in February 2021'; and

• if Mr Magoffin did not have such voice recordings, Mr Magoffin was to '... produce an Affidavit to provide the following information' which concerned:

• - whether Mr Magoffin had a conversation with Mr Wang in Mr Magoffin's office to discuss Mr Wang's personal injury case;

• - whether Mr Magoffin requested permission from Mr Wang to record the conversation and whether Mr Wang allowed the conversation to be recorded;

• - whether, in the conversation, Mr Magoffin and Mr Wang talked about Mr Wang's '... WorkCover claim', what was said including that Mr Magoffin confirm that Mr Wang said to him that '... They (Maurice Blackburn Lawyers) told me I [had] no Workcove[r]' and whether particular advice was provided by Mr Magoffin to Mr Wang; and

• - whether or not Mr Magoffin's firm contacted Maurice Blackburn lawyers to request them to transfer Mr Wang's '... case' to Mr Magoffin's firm and whether or not Mr Wang's '... case' was transferred from Maurice Blackburn lawyers to Mr Magoffin's firm.

[16] Section 317(1) of the Legal Profession Act 2007 provides:

317. Progress reports

(1) A law practice must give a client, on reasonable request-

(a) a written report of the progress of the matter in which the law practice is retained; and

(b) a written report of the legal costs incurred by the client to date, or since the last bill (if any), in the matter.

[17] Mr Magoffin objects to the Notice because:

• no documents exist relating to Mr Magoffin's firm's retainer with Mr Wang because the retainer was terminated and his firm did not deliver an invoice for legal costs;

• no file concerning Mr Wang was transferred from Maurice Blackburn Lawyers to Mr Magoffin's firm;

• he (Mr Magoffin) does not have any voice recordings between himself and Mr Wang; and

• the Notice is (in part) a request to give evidence and not a Notice to produce documents.

[18] Mr Magoffin's submissions generally reflected these grounds. Mr Magoffin also submitted that:

• Mr Wang sought to retain his firm in relation to injuries Mr Wang sustained as a pedestrian in a motor vehicle accident;

• Mr Wang initiated a Motor Accident claim '... with Maurice Blackburn and after termination of his retainer with them and after he saw our firm, he initiated a claim with WorkCover for Statutory benefits'; and

• his firm terminated its retainer with Mr Wang, confirmed by correspondence to Mr Wang dated 27 October 2021.

[19] Mr Wang makes a number of irrelevant and scandalous allegations about his '... previous lawyers'.

[20] Relevantly to the Notice, and as best as I understand Mr Wang's submissions, Mr Wang submits that the first two documents, of which he seeks production, is to prove the work Mr Magoffin did for him.

[21] Mr Wang then submits, in respect of the remainder of the documents, and in light of Mr Magoffin's objection to them, that Mr Magoffin should answer a series of questions Mr Wang has posed for Mr Magoffin in a schedule and for which Mr Wang only allows for yes or no answers.

The Notice should be set aside

[22] In my view, the Notice should be set aside.

[23] In his statement of facts and contentions, Mr Wang claims he engaged Mr Magoffin's firm in February 2021.^[14]

[24] If Mr Wang did not consult Mr Magoffin's firm until February 2021, which is approximately a year after the expiry of the six month period contained in s 131(1) of the Act, it is difficult to see how any document or thing in Mr Magoffin's possession could be relevant to Mr Wang's case on appeal. In my view, Mr Wang is on a fishing expedition as described by Ward CJ in Eq in Xinfeng Australia.

[25] In any event, Mr Magoffin has informed the Commission that:

• the two written reports sought to be produced by Mr Wang do not exist; and

• the voice recording specified does not exist because Mr Magoffin has no such recording.

[26] For these reasons, the Notice, in respect of the first three documents or things sought by Mr Wang, should be set aside. If documents do not exist, they cannot be relevant. Even if they did exist, it is difficult to see how they could be relevant in proving the reasons for Mr Wang's failure to lodge his application for compensation within six months of 28 August 2019.

[27] The Notice then requires Mr Magoffin to produce an affidavit, about the matters summarised above, if Mr Magoffin did not have the specified voice recordings. This part of the Notice does not require Mr Magoffin to produce an existing document or thing that is in his possession. It is not a proper process to use an Attendance notice to produce to obtain such material as sought by Mr Wang.

Conclusion

[28] For the reasons I have given, the Notice should be set aside.

Order

[29] I make the following order:

Pursuant to r 61 of the Industrial Relations (Tribunals) Rules 2011, the Attendance notice to produce, dated 10 February 2023 and directed to John E. Magoffin, is set aside.

---

^[1] The Amended Statement of Facts and Contentions of Mr Yuehai Wang filed on 27 May 2022 ('Mr Wang's contentions'), Attachment A, first page, paras. 1-2.

^[2] Mr Wang's contentions, Attachment A, first page, paras. 2-3.

^[3] Mr Wang's contentions, Attachment A, second page, para. 14 and the Statement of Facts and Contentions filed by the Workers' Compensation Regulator on 29 June 2022 ('the Regulator's contentions'), Attachment "A", para. 8.

^[4] Mr Wang's contentions, Attachment A, fifth page, para. 1(a).

^[5] Church v (Simon Blackwood) Workers' Compensation Regulator [2015] ICQ 031; (2015) 252 IR 461, [27] (Martin J, President).

^[6] Ibid [29] and [30].

^[7] Ibid [33].

^[8] Workers' Compensation and Rehabilitation Act 2003, s 131(6)(a) and (c).

^[9] Mr Wang's contentions, Attachment A, first page, para. 5.

^[10] Mr Wang's contentions, Attachment A, second page, paras. 8 and 9 and the fifth page to eighth page, paras. 1‑5.

^[11] Mr Wang's contentions, Attachment A, first page, para. 3.

^[12] [2021] FCA 582.

^[13] [2020] NSWSC 620.

^[14] Mr Wang's contentions, Attachment A, second page, para. 13.