Work Health and Safety Tribunal upholds objection to WorkSafe discovery application
The Work Health and Safety Tribunal has upheld an objection to a discovery application, finding that the documents did not relate to the workplace in question; did not relate to the matter in question; and were not necessary for the fair disposal of the case
The applicant was a mining company, and the respondent was the Worksafe Western Australia Commissioner. The respondent affirmed the Improvement Notice (‘Notice) of a Worksafe inspector (‘Inspector’) which identified that the applicant’s employees were exposed to a hazard involving riding a horse without a helmet. After the applicant referred the Notice to the Tribunal for further review, the applicant objected to providing the following documents to the respondent:
- Category 1: All records or documents relating to injuries sustained by any of the Applicant’s staff in the course of working with horses since 1 January 2016.
- Category 3: Documents setting out the Applicant’s policies and procedures regarding the use of motor bikes
The applicant contended Category 1 was too broad as it covered all horse-related injuries beyond the specific hazard within the Notice, and Category 3 was not relevant to the Tribunal’s determination.
The respondent contended the records or documents in Category 1 were relevant because they demonstrated the unpredictability of horses and the causes and prevalence of falls from them. The respondent contended Category 1 was relevant to assessing the effectiveness of the applicant’s hazard mitigation efforts at Fossil Downs. The respondent contended Category 3 was necessary as the applicant at certain times of year retired motorbikes due to high temperatures when wearing helmets.
The Tribunal considered discovery under s 27(1)(o) of the Industrial Relations Act 1979 (WA) and according to caselaw principles. The Tribunal noted it must consider if the documents related to a matter in question, and if so, whether it was just to order discovery. The Tribunal found the matter in question was whether the Inspector was justified in forming her opinion when issuing the notice.
The Tribunal found that documents relating to workplaces other than the Fossil Downs station did not relate to the matter in question and noted the Inspectors opinion did not relate to the unpredictability of horses or to general horse related injuries. The Tribunal found Category 1 documents were not discoverable to the extent that they went beyond serious injury or death resulting from a rider falling from a horse and receiving impact to the head at Fossil Downs Station since 1 January 2016.
The Tribunal noted it was not apparent that the use of motorbikes was yet relied upon or at issue. The Tribunal found that Category 3 did not relate to the matter in question and the Inspector’s opinion.
The Tribunal found that Categories 1 and 3 were not necessary for the fair disposal of the case and it would not be just to order they be discovered. The Tribunal upheld the applicant’s objection to the discovery and asked the parties to confer and write to the Tribunal’s associate proposing any orders that the parties say the Tribunal should make to give effect to the reasons.
The decision can be read here.