To disclose or not to disclose: Commissioner clamps down on fishing expedition in proceedings.

Case Summary – Kirby v Workers’ Compensation Regulator [2021] QIRC 225

If a dispute between two or more parties escalates into litigation in a Court, Tribunal or Commission Hearing, often the parties are under obligations to disclose to the other side all documents and information that is relevant to the either the matter or an issue in the matter (subject to legal exceptions). This is commonly referred to as the Duty of Disclosure.

However, there are strict rules relating to which types of documents can or cannot be disclosed. One such rule relates to “fishing expeditions” – where one party seeks disclosure from another party not because it helps them obtain evidence to support their own case or challenge the other side’s case, but in order to determine whether a case exists at all. In this situation, the party who was asked to disclose will generally not be required to do so.

A good example of this point was illustrated by the case of Kirby v Workers’ Compensation Regulator [i], in which Ms Kirby was denied disclosure of a document in circumstances that were deemed by the Industrial Relations Commissioner as being “within the realm of a fishing expedition.”


Ms Kirby was in the process of appealing a decision of the Workers’ Compensation Regulator (‘WCR’) after the WCR refused to waive the time limitation for Ms Kirby to apply for compensation under the Workers Compensation and Rehabilitation Act 2003 (Qld) (the ‘substantive proceedings’). After the parties were issued directions to undertake the disclosure process, on 20 April 2022 Ms Kirby filed a Notice of Non-Party Disclosure – requesting that Ms Jones (the WCR Principal Review Officer reviewing Ms Kirby’s case) disclose a particular email that functioned as a “Read Receipt”. Ms Steele, a Senior Appeals Officer of WCR, outlined that the Read Receipt was requested from McGraw-Hill (Ms Kirby’s old employer) on an email WCR sent to them stating that their allocation of a Review Officer to Ms Kirby’s matter would be delayed 4-6 weeks.

Ms Kirby then filed an Application in Existing Proceedings to seek disclosure from WCR of the Read Receipt.

The Submissions

Ms Kirby argued that in order for the WCR to make the decision and findings in the substantive proceeding that they did, they would have needed to consider additional information that was not disclosed to Ms Kirby. Ms Kirby therefore wanted the WCR to disclose the Read Receipt in order to find such information.

In response, the WCR outlined that the Read Receipt had actually previously been disclosed to Ms Kirby, and that the Read Receipt in question contained no additional information or attachments than what was previously disclosed and had not been altered in any substantial way. Additionally, the WCR clarified that all relevant documents had been disclosed to Ms Kirby in two separate administrative releases (made on 29 April 2020 and 26 June 2020) that contained all correspondence and submissions relating to her case – with the exception of documents protected by legal privilege. The WCR therefore wanted this Application to be dismissed.

The Issues

The Commission (Knight IC) had to identify:

  1. Whether the Read Receipt actually included information that had not been disclosed to Ms Kirby by the WCR; and
  2. If so, whether the WCR breached its duty of disclosure to Ms Kirby by not providing all relevant documents.


The Commission considered the source of the disclosure duty: in this case rules 46 and 64B of the Industrial Relations (Tribunal) Rules 2011 (Qld), as well as the cases of DP World Brisbane Pty Ltd v Rogers & Anor[ii] and Weston and Parer v State of Queensland (Department of Justice and Attorney General) (No 4).[iii]

Knight IC accepted WCR’s evidence that the Read Receipt contained no additional information than what was already included in Ms Kirby’s submissions, and therefore there was nothing within the Read Receipt that had not already been disclosed to Ms Kirby. As the Read Receipt had already been disclosed to Ms Kirby by the WCR prior to the application being considered, the WCR would not need to disclose it again.

Additionally, the Commissioner took issue with Ms Kirby’s submissions, in that whilst Ms Kirby believed that there was information that had not been disclosed by the WCR she could not outline what such material was or could be. The Commissioner took the view that Ms Kirby’s application was more of a “fishing expedition” – that the application for disclosure was not Ms Kirby attempting to attain information to support her case, but rather to uncover whether she had a case at all. Therefore, the WCR would not be required to disclose the Read Receipt for this reason.

As a result, the Commission held the following:

  • Ms Kirby’s application was to be dismissed.
  • The Notice of Non-Party Disclosure filed on 24 November 2020 was to be set aside.
  • The costs of Ms Kirby’s application would be reserved for the successful party of the substantive proceedings.


Courts and tribunals will not take kindly to matters initiated when the evidence is doubtful, and one party seeks information from the other party merely to make a case. Parties need to have evidence independently to prove their cases. Fishing expeditions are considered unhelpful and a waste of resources.

If you need an assessment of your evidence before making a compensation claim, contact our client engagement team for an appointment with our lawyers. Call (07) 3252 0011 or email: enquiry@corneyandlind.com.au

This article was written by Jackson Litzow

[i] [2021] QIRC 225.

[ii] [2014] ICQ 010.

[iii] [2016] QIRC 75.

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