Ferrington v WorkCover Queensland [2012] QSC 354

In Ferrington v WorkCover Queensland1, the Honourable Justice McMeekin in the Supreme Court of Queensland at Rockhampton had to give consideration as to whether an employer had an obligation to disclose documentation that related to matters that were extraneous (although related) to the matters in issue in a personal injury claim.  

The worker brought the application. The insurer was the Respondent to the application and the North Goonyella Coal Mines Pty Ltd (the employer) 'intervened' in the application.  

The worker complained that the insurer had failed to discharge its disclosure obligations as set out in sections 279 and 284 of the Workers' Compensation and Rehabilitation Act 2003 (the Act).  

The insurer disagreed.  

The employer supported the insurer's position.  

The worker claimed to have suffered personal injury in the course of his employment with the employer after being exposed to toxic chemical fumes. The worker alleged he suffered a psychiatric injury as a result of this event.  

The worker had served a Notice of Claim for Damages pursuant to section 275 of the Act.  

The event which was the subject of the worker's claim had given rise to a prosecution of the employer pursuant to the Coal Mining Safety and Health Act. It was anticipated that those matters would be the subject of a trial in 2013.  

The employer had been charged with breaching section 34 of the Coal Mining Safety and Health Act 1999 after allegations that the employer had failed to carry out their obligations that this Act imposed upon them and that this caused bodily harm. The maximum penalty included a fine of up to $82,500.00 or one year imprisonment.  

The worker's application related to the disclosure of three classes of documents:

  1. documents dealing with the worker's termination of employment (the termination documents);
  2. documents dealing with a report of an industrial chemist (the industrial chemist's report);
  3. documents 'including but not limited to reports and/or statements relating to the workplace incident and its investigations (the other documents).  

The Court was not satisfied that there was any obligation upon the insurer or the employer to disclose any of the documents that were the subject of the worker's application. The prosecution had been finalised.  

As to the termination documents, upon the Court informing itself of the contents of those documents, it considered that these documents did not need to be disclosed because they were subject to a valid claim of privilege.

As to the industrial chemists' report and the other broader challenge as to disclosure the Court found:  

In my view there is nothing unreasonable in the attitude taken by [the employer] in declining the request to disclose the relevant documents.  

I am conscious of the disadvantage that the Applicant suffers. He may have his claim for damages delayed. He could proceed with his claim without the employer's material and so avoid that delay but may lose the advantages that section 279 and section 284 give him. That will be a matter for him. But Orders can be framed such that the Applicant will not lose his right to pursue his claim or these documents.  

It was suggested at the hearing that an undertaking might be offered. The terms of such an undertaking were not explored. However, it seems to me artificial to think that the Applicant's solicitors could appropriately use the documents provided if they could not obtain the Applicant's instructions on them. There in lies the problem.  

In my view the interests of justice lie in preserving the position of the Defendants until trial of the summary charges. The interests of the parties can be met by requiring disclosure of the documents that at a time after their potential to unfairly prejudice the employer has passed.2

The Court was not satisfied that any of the other documents fell within any of the exceptions set out in section 279(1)(A) of the Act and accordingly, there was no obligation to disclose them.  

The Court otherwise dismissed the worker's application but made no order as to costs.  

A copy of the Judgment can be found here.