QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:	Wolff v MiHaven Pty Ltd (No. 2) [2025] QIRC 136
	
PARTIES:	Wolff, Christian
(Applicant)

v

MiHaven Pty Ltd
(Respondent)	
		
CASE NO:	WC/2024/97	
		
PROCEEDING:	Application to lift a stay on a Form 29 Notice of Non-Party Disclosure	
		
DELIVERED ON:	29 May 2025	
		
SUBMISSIONS:	Applicant's submissions filed 17 March 2025
Affected Party submissions filed 31 March 2025
Respondent's submissions filed 1 April 2025
Worker's Compensation Regulator submissions filed 15 April 2025
Applicant's reply submissions filed 22 April 2025	
		
MEMBER:	McLennan IC	
		
HEARD AT:	On the papers	
		
ORDERS:
	The orders contained in paragraph [60] of these Reasons for Decision.
	
CATCHWORDS:	INDUSTRIAL LAW – APPLICATION TO LIFT A STAY ON A FORM 29 NOTICE OF NON-PARTY DISCLOSURE – objections to produce documents 	

LEGISLATION:

CASES:	
Industrial Relations (Tribunals) Rules 2011 
r 64B, r 64E, r 64G
Bunney v Workers' Compensation Regulator [2020] QIRC 210

Mullins v Workers' Compensation Regulator; Ex parte Drake International Pty Ltd (No. 2) [2020] QIRC 003	

Reasons for Decision

[1]	On 10 February 2025, Mr Wolff filed a Form 29 – Notice of Non-Party Disclosure ('the Form 29 Notice') with the Industrial Registry.  

[2]	The Form 29 Notice sought to compel production of various documents that Mr Wolff requires for the future substantive Hearing of his Workers' Compensation Appeal.  

[3]	The Form 29 Notice stated the "nominated party" to be (emphasis added):

	MiHaven Pty Ltd T/A MiHaven Training
	Training Operations Manager

[4]	The Form 29 Notice listed the "affected parties" to be Kristine Hunt and Aedan Wolff.

[5]	The Workers' Compensation Regulator ('the Regulator') is Respondent in that substantive appeal matter.  

[6]	Mr Wolff contended that the documents held by MiHaven Pty Ltd ('the company') are:

… directly relevant to determining whether MiHaven Pty Ltd engaged in unreasonable management actions, contributing to the Appellant's psychological injury through excessive workload, lack of support and workplace mistreatment…the requested records will establish whether MiHaven Pty Ltd failed to take reasonable steps to mitigate foreseeable psychological harm. 

[7]	The question of whether or not Mr Wolff was subjected to "reasonable management action taken in a reasonable way" will be significant in determining his Workers Compensation Appeal.

The Tribunals Rules

[8]	By way of application under r 64G of the Industrial Relations (Tribunals) Rules 2011 ('the Tribunals Rules'), Mr Wolff has sought to have that Form 29 Notice enforced.  Under that rule, the tribunal's options are to order that the Notice be:

•	Enforced (by way of lifting the stay on the notice); or

•	Varied; or

•	Set aside. 

[9]	I issued a Directions Order on 4 March 2025 to obtain written submissions from Mr Wolff and "the Nominated Party (and any Affected Parties)" – with an invitation to also hear the Regulator should they so desire.  Those written submissions were sought to inform my decision with respect to the Form 4 Application filed by Mr Wolff on 26 February 2025, asking the Commission to make "An order directing Kristine Hunt to produce the requested documents as outlined in Form 29."  Submissions from the Regulator and Mr Aedan Wolff (Affected Party) were filed, together with submissions from Mr Wolff and MiHaven.

[10]	Rule 64B(1) of the Tribunals Rules says (emphasis added): 

Notice requiring non-party production
(1)	A party to a proceeding may, by notice of non-party production, require a person who is not a party to the proceeding (the non-party) to produce to the party, within 14 days after service of the notice on the non-party, a document – 
(a)	directly relevant to a matter in issue in the proceeding; and
(b)	in the possession or under the control of the non-party; and
(c)	that is a document the non-party could be required to produce at the hearing for the proceeding.

[11]	The key point of the Tribunal Rule above is that a party to a proceeding may compel a third party to produce a "directly relevant" document "in the possession or under the control of" the non-party.  Direct relevance is first assessed with reference to the Statement of Facts and Contentions filed.

[12]	In Mullins v Workers' Compensation Regulator; Ex parte Drake International Pty Ltd (No. 2), Commissioner Black considered the application in these terms:

In Goldsmith v Sandilands, the High Court said that "evidence is relevant if it could rationally affect, directly or indirectly, the assessment of the probability of the existence of a fact in issue in the proceeding."

In Xstrata Queensland Ltd v Santos Ltd & Ors, McMurdo J was asked to consider the distinction between the test of relevance under the general law and the requirement of the Uniform Civil Procedure Rules 1999 (Qld) (UCRP) which is that only directly relevant documents must be disclosed.  In this respect, McMurdo J said that "a document is directly relevant in this sense only if it tends to prove or disprove an allegation in issue in the proceedings."

[13]	The Tribunals Rules envisage that a non-party may object to the production of documents.

[14]	Rule 64E(3)(d) of the Industrial Relations (Tribunals) Rules 2011 says:

Objection to production	
(3)	The objection must –
…
(d)	clearly state the reasons for the objection.

[15]	Rule 64E(4) further states that:

Objection to production	
(4)	The reasons may include, but are not limited to, the following –
(a)	if the objector is the non-party – the expense and inconvenience likely to be incurred by the non-party in complying with the notice;
(b)	the lack of relevance to the proceeding of the documents mentioned in the notice;
(c)	the lack of particularity with which the documents are described;
(d)	a claim of privilege;
(e)	the confidential nature of the documents or their contents;
(f)	the effect production would have on any person;
(g)	if the objector was not served with the notice – the fact that the objector should have been served.

Objections

[16]	In this case, the non-party did not object to providing the documents sought by Mr Wolff under items 2-7.  With respect to Item 1 documents requested, the response was that "documents have been produced", notwithstanding the broad and non-specific descriptor provided in the Notice.

[17]	With respect to each of the 7 items requested by Mr Wolff, the replies contained in the 27 February 2025 correspondence are noted below each item requested:

1.	Emails & Internal Correspondence
Communications involving Ms. Hunt, HR, and Mi-Haven  management discussing the Appellant's workload, performance, or any complaints about workplace conditions.

"A specific document (or documents) is not being requested, rather a blanket request to produce any internal email or correspondence pertaining to vague discussion points.  The documents requested do not include a timeframe or specific date to search.

The request for documents is exceptionally broad and all encompassing, and without particularity.  However, documents have been produced, that to the best of my knowledge and ability to search across multiple criteria, meet the Notice requirement."
	
2.	Meeting Minutes & Notes
Records from leadership or compliance meetings addressing  staffing concerns, workload, and the Appellant's role.

"Documents are produced."

3.	Performance Records 
Any formal performance management records, written warnings,  or complaints filed regarding the Appellant.

"Documents are produced."

4.	Workload & Staffing Records 
Documents showing task allocations, deadlines, and work  expectations compared to other Compliance Officers.

"Document is produced."

5.	Investigation Documents (Son's Apprenticeship Issue)
Emails, reports, and meeting notes concerning the handling of the Appellant's concerns about his son's training.

"Documents are produced."

6.	Flexible Work Arrangements
Records of approvals for time off and whether similar flexibility  was granted to other employees.

"Documents are produced."

7.	Staff Complaints & HR Records
Documents related to any staff complaints about the  Appellant and how they were handled. Note: Prior to 1 August 2023 only.

"Documents are produced."

[18]	The above response to items in the Form 29 Notice was contained in MiHaven's correspondence dated 27 February 2025.  Mr Wolff takes issue with the correspondence not being prepared and / or signed by Ms Hunt herself, as the non-party to whom the Notice is directed.  However, I note that Ms Hunt will likely be called as a witness in the substantive matter, her evidence subject to cross-examination, and credibility as a witness will be assessed at that time.

[19]	In circumstances where items requested at 2-7 are noted to be "produced", one might have assumed Mr Wolff's Application was filed to obtain documents referred to in Item 1.  However, Mr Wolff's Form 4 – Application does not expressly state whether he is content with the company's responses to Items 2-7.  Statements such as "I respectfully seek the following orders from the Commission: (a) An order directing Kristine Hunt to produce the requested documents as outlined in Form 29 …" indicates Mr Wolff is not satisfied with the production of documents under items 2-7.  

[20]	Out of an abundance of fairness and caution, I will address each Item 1-7 in this Decision.

[21]	Further correspondence from MiHaven dated 1 April 2025 noted "all hard copies of produced documents were sent by Australia Post, in a secure satchel, to the address nominated by the Appellant on 7 March 2025.  All "Schedule of Documents" Item requests were produced to the best abilities of MiHaven, despite the lack of dates and particularities, and therefore does not have any departures from the response comments."

[22]	The questions here really are: 

•	What document(s) has Mr Wolff asked for, that have not been produced?

•	Does Ms Hunt have those documents?

•	Are those documents directly relevant?

Item 1 of the Notice

[23]	Mr Wolff's Application sought an order to compel Ms Hunt to provide the requested documents, but he does not particularise what she has failed to produce.  The only clue lies in Mr Wolff's reference to "…internal communications, such as the emails sent by Kristine Hunt on 15 March 2023 and 31 May 2023, and meeting records requested…", as also contained in the Form 4 Application.  

[24]	In what appears to me to be a commencement of Mr Wolff's submissions on the substantive matter, he asserted that those documents are directly relevant because (emphasis added):

The Regulator's Statement of Facts asserts that Ms Hunt's action constituted reasonable management action, while her Witness Outline claims that workload concerns were only raised in August 2023 and that she provided adequate support.

However, emails already submitted as evidence contradict this claim, demonstrating that Ms Hunt was aware of the Appellant's workload stress as early as March 2023.

Key evidence which has already been submitted to WorkCover in September 2023 and the Regulator during the appeals process contradicting Ms Hunt's claims:

•	Email from Ms Hunt (15 March 2023) subject: Confirming workloads and tasks – Kris Hunt acknowledges noticing the Appellant appeared "a bi down" and states she is "getting a little worried" about his workload.  She offers to "de-load some tasks" and expresses concern the Appellant may "crack" under pressure

•	Email from Ms Hunt (31 May 2023) subject: Re_New White Card info – She directly asks the Appellant, "Are you okay?  Just lots on at the moment?", acknowledging workload stress months before her claimed awareness in August 2023.

These emails directly contradict the assertion in Ms Hunt's Witness Outline that workload concerns were only raised in August 2023.

Instead, the records confirm that Ms Hunt was aware of the Appellant's excessive workload and stress months earlier yet failed to take appropriate action.

The absence of any additional records from Ms Hunt suggests a deliberate omission or misrepresentation of the facts in the Regulator's case.

[25]	Mr Wolff's submission quotes from Ms Hunt's emails dated 15 March 2023 and 31 May 2023, so it does not appear that he seeks the specific production of those two documents.  Rather, Mr Wolff's conjecture appears to be along the lines that 'there must be further - as yet undisclosed – emails and documents authored or received by Ms Hunt in the period between March – August 2023 otherwise the statements contained in the Regulator's Statement of Facts and Contentions are insupportable.'  

[26]	Mr Wolff does not particularise what those precise documents are, though the date range 1 March – 1 September 2023 is indicated.

[27]	With respect to Items 1, the company has responded (on behalf of Ms Hunt) that there is no objection to producing the requested documents but:

•	a specific document is not identified, rather a 'blanket request' without dates, authors / attendees, type ascribed;

•	the request is hindered by a lack of particularity of documents sought;

•	"… documents have been produced, that to the best of my [Mr Mort's] knowledge and ability to search across multiple criteria, meet the Notice requirement."

[28]	While some documents under Item 1 are reported by the company to have been "produced", difficulty arose in producing the material described as Item 1 because the documents sought are not clearly identified, but are instead a "blanket request".  That argument has merit.  Attempts to discover broad categories of unparticularised documents have been characterised as "fishing expeditions" and the Commission is not generally minded to grant such Applications.

[29]	Though I am also mindful of the need for the timely and efficient conduct of matters,  that object would be defeated if the Application with respect to Item 1 were denied entirely, such that Mr Wolff then set about to file and serve further Form 29 Notices that better particularised and narrowed the documents sought.

[30]	For those reasons, I believe the fairest and most practical outcome is achieved by making an order to vary the Notice with respect to Item 1.  

[31]	The group of Item 1 documents sought by Mr Wolff can better particularised by:

•	Document type: Internal emails, file notes, memorandums or diary notes that may have been made by Ms Hunt;

•	Time period: 1 March 2023 to 1 September 2023;

•	Subject matter: Mr Wolff's workload, stress, work performance and / or complaints about workplace conditions;

•	Sent between any of the following people: Mr James Mort, Ms Kristine Hunt and / or Ms Andrea Tunjic;

[32]	I will vary the Notice to order that Ms Hunt produce any document in the above defined category, that may be in her possession or under her control.  

[33]	I make the above distinction because whilst I acknowledge and appreciate that Mr Mort has written to advise that "documents have been produced, that to the best of my [Mr Mort's] knowledge and ability to search across multiple criteria, meet the Notice requirement", only Ms Hunt herself of course knows whether there are any documents that may be in her possession or under her control (that may be held as diary notes, hard copies or otherwise not readily searchable by Mr Mort on the shared work computer system, for example).  

[34]	It may well be the case that there are no further documents in the category further particularised by me at [31]-[33] above, that are held by Ms Hunt.  But if there are, she must produce them to Mr Wolff.

Item 2 of the Notice

[35]	With respect to Item 2, "Meeting Minutes & Notes" described as "Records from leadership or compliance meetings addressing staffing concerns, workload, and the Appellant's role", Mr Mort has noted that these "Documents are produced."

[36]	My comments about Item 1 above are also apposite here.  I do not know, but assume, that the documents produced by Mr Mort in compliance with Item 2 so far have been "Meeting Minutes."  

[37]	I will vary the Notice to order that Ms Hunt produce any "notes" she may have taken in connection with the meeting minutes produced in accordance with Item 2 of the Notice, that may be in her possession or under her control.  

[38]	I make the above distinction because whilst I acknowledge and appreciate that Mr Mort has written to advise that "Documents are produced", only Ms Hunt herself of course knows whether there are any "notes" that may be in her possession or under her control (that may be held as diary notes, hard copies or otherwise not readily searchable by Mr Mort on the shared work computer system, for example).  

[39]	It may well be the case that there are no further documents under Item 2, that are held by Ms Hunt.  But if there are, she must produce them to Mr Wolff.

Item 3 of the Notice

[40]	With respect to Item 3, Mr Mort has noted that these "Documents are produced."

[41]	As the documents are described as "formal" (so presumably saved and searchable on the work computer system), and Mr Wolff has not identified any deficit in what was provided to him, I will make no order with respect to Item 3.

Item 4 of the Notice

[42]	With respect to Item 4, Mr Mort has noted "Document is produced."  That appears to indicate that a single document was produced, though Mr Wolff has not identified any deficit in what was provided to him.

[43]	The category of documents sought by Mr Wolff here is similar to those addressed in my first Decision of Wolff v MiHaven Pty Ltd with respect to Item 7 Workload Documentation.  In that earlier decision, I reasoned:

•	The Regulator would only include material in its Statement of Facts and Contentions that it considered to be directly relevant to the substantive matter.

•	Documents pertaining to task lists, internal planning and Mr Wolff's responsibilities, deadlines, and workload appear directly relevant in this case.

•	Any such documents would ordinarily be expected to appear in the "list of documents" provided by the Regulator to Mr Wolff, which seems to be the simplest place to start to identify any such documents in existence.  

•	The parties have an ongoing duty of disclosure to each other, so any further documentation either may obtain (that is relevant to the matters at issue) must be exchanged without delay.  

•	The Regulator may be well-placed to assist Mi-Haven in locating the documents referred to in the Respondent's Statement of Facts and Contentions, so the documents may in turn be provided to Mr Wolff.

[44]	Consistent with my determinations above, I will make an Order to vary the Notice to compel Ms Hunt to produce any documents in the Item 4 category "that may be in her possession or under her control (eg diary notes, hard copies or otherwise not readily searchable by Mr Mort on the shared work computer system) made in the period 1 March 2023 to 1 September 2023.  Ms Hunt will be required only to produce documents with respect to Mr Wolff – not "other Compliance Officers."  There is no requirement that Ms Hunt 'create' a document in answer to the Item 4 inquiry – only to produce those that currently exist.

Item 5 of the Notice

[45]	With respect to Item 5, Mr Mort's response stated that the "Documents are produced."

[46]	Mr Aedan Wolff's (Affected Party) submissions dated 31 March 2025 support the Applicant's Form 29 Notice with respect to Item 5.

[47]	Consistent with my explanation above, I will make an Order to vary the Notice to compel Ms Hunt to produce any documents in the Item 5 category that may be in her possession or under her control (eg diary notes, hard copies or other such materials that are not readily searchable by Mr Mort on any shared work computer system) that may have been made about the handling of Mr Wolff's "concerns about his son's training" in the period from 24 May to 6 June 2023.  

Item 6 of the Notice

[48]	With respect to Item 6, Mr Mort's response stated that the "Documents are produced."

[49]	I assume the documents produced are "records of approvals for time off" for Mr Wolff alone.  If so, that is entirely appropriate.  

[50]	Mr Wolff has also sought Ms Hunt's response to the question "whether similar flexibility was granted to other employees", though has not identified that there is a particular document he seeks on that matter.  In my view, any Flexible Work Arrangements that may (or may not) have been granted to other staff, pursuant to others' particular individual circumstances are not directly relevant to Mr Wolff's matter so ought not be produced.  Further, as earlier noted, a Form 29 Notice of Non-Party Disclosure is issued to require a non-party to produce "a document" that exists – there is no ability to compel a non-party to create a document to answer a question.

[51]	In light of that assessment, I will make no order with respect to Item 6.

Item 7 of the Notice

[52]	With respect to Item 7, Mr Mort's response stated that the "Documents are produced."  

[53]	On the other hand, Mr Wolff has asserted that "A review of the produced and outstanding documents (per Form 29 – Notice of Non-Party Disclosure) confirms that critical records remain undisclosed, including … Staff Complaints & HR Records – Any formal complaints about the Appellant prior to 1 August 2023."

[54]	If there are documents concerning "Any formal complaints about the Appellant prior to 1 August 2023" that may be in Ms Hunt's possession or under her control, I will order her to produce them to Mr Wolff.

[55]	As earlier observed, it appears Ms Hunt will be called as a witness by the Regulator at the Hearing of the substantive matter, so Mr Wolff will have the opportunity to cross-examine her.  As envisaged by the Rules, that may well be "another reasonably simple and inexpensive way of proving the matter sought to be proved by the document."  The Industrial Commissioner who hears the matter will have the opportunity to make their own assessment of witness credit, with respect to that and all other matters.  

[56]	I will make no order pertaining to "HR Records".  That is too broad and could capture documents about other staff members not directly relevant to a matter at issue.  

[57]	I appreciate the Regulator's 15 April 2025 submission that "The Appellant has been put on notice of the Regulator's case by way of our Statement of Facts and Contentions and Outlines of Witness Evidence.  All relevant material obtained throughout the course of our preparations for hearing so far has been disclosed."  Therefore, the Regulator may be well-placed to assist Ms Hunt in locating the documents referred to in the Respondent's Statement of Facts and Contentions and her witness statement, so the documents may in turn be provided to Mr Wolff.

Conclusion

[58]	The effect of this Decision is that Ms Hunt must disclose the documents ordered by variation of the Notice (where such documents exist and are under her possession or control) within 14 days, pursuant to r 64B.

[59]	Bearing in mind that the default position under Rule 64G(3) is that each party to an application such as this bears their own costs, and given the brevity of this matter, I am not minded to award costs in this instance.  Each party is to bear their own costs of this application.

[60]	I order accordingly.

Orders

1.	The Notice to Produce served on "MiHaven Pty Ltd T/A MiHaven Training, Training Operations Manager" (Ms Kristine Hunt) on 10 February 2025 is varied, with respect to the categories of documents referred to at numbers 1, 2, 4, 5 and 7 at page 3 of the itemised 'Schedule of documents'.  
Ms Hunt must produce the documents (as described in the categories below) that may be in her possession or under her control:

1.	All internal emails, file notes and / or memorandums between Mr James Mort, Ms Kristine Hunt and / or Ms Andrea Tunjic, in the period between 1 March 2023 to 1 September 2023 (inclusive), about Mr Wolff's workload, stress work performance and / or complaints about workplace conditions.  
	and
Any diary notes that may have been made by Ms Hunt, in the period between 1 March 2023 to 1 September 2023 (inclusive), about Mr Wolff's workload, stress work performance and / or complaints about workplace conditions.  

2.	Any notes that may have been taken by Ms Hunt in connection with the Meeting Minutes produced.  

4.	Any diary notes or hard copy documents that may have been made by Ms Hunt, in the period between 1 March 2023 to 1 September 2023, with respect to Mr Wolff only – not "other Compliance Officers."  

5.	Any diary notes or hard copy documents that may have been made by Ms Hunt, in the period between 24 May to 6 June 2023, about the handling of Mr Wolff's "concerns about his son's training".

7.	Any documents concerning formal complaints made about Mr Wolff prior to 1 August 2023.  

2.	Each party is to bear their own costs.