Procedural Direction PIC3 – Documents and late documents

Introduction

1.     This Procedural Direction concerns the preparation and lodgment of material, and the lodgment and admission of late documents, in the Commission.

Preliminary

2.    This Procedural Direction is made by the President under section 21 of the Personal Injury Commission Act 2020 (the PIC Act).

3.    The President or a member before whom a matter is listed may excuse a party from complying with any aspect of this Procedural Direction before or after the time for compliance with any action required.

4.    Nothing in this Procedural Direction prevents the President or a member directing a party to take any appropriate step in proceedings.

5.     This Procedural Direction is to be read with and subject to any provision of the PIC Act, the enabling legislation, and the Personal Injury Commission Rules2021 (the PIC Rules).

Applicable legislation and rules

6.     Parties should be familiar with the following provisions:

(a)    sections 3 and 42 of the PIC Act;

(b)    section 290 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act);

(c)    rules 17, 18, 33, 66, and 67 of the PIC Rules.

Documents generally

7.     All information in the possession of the party to a dispute, relevant to the resolution of the real issues in proceedings, and intended to be relied on, should be lodged with the Commission and served on all other parties in accordance with the requirements of the PIC Act, enabling legislation, and the PIC Rules.

8.     The above documents should be included in any application or reply, as there are limits on the introduction of late evidence.

9.     Parties and legal representatives should ensure that copies of documents lodged in proceedings are clear, sharp and legible. Multiple copies of the same document should be avoided. Documents which have already been lodged and served in the proceedings should not be reproduced.

10.   A document in a language other than English must be accompanied by an English translation and a declaration in the approved form by the translator that the translation is an accurate translation.

11.   A document lodged may only be amended in accordance with Division 4.2 of the PIC Rules.

Material in the workers compensation division

12.   The Commission requires the early exchange of information between parties (s 290 of the 1998 Act).

13.   In addition to the requirements of rule 67 of the PIC Rules, the Commission specifically requires the following information be lodged and served in workers compensation proceedings:

(a)    where proceedings are commenced by a worker, a signed statement of the worker;

(b)    where oral evidence is required from a witness, a signed statement from that witness, and

(c)    where the dispute concerns weekly payments of compensation, a schedule of earnings, in the prescribed form, must be provided by the employer or their representative. See Procedural Direction PIC5 – Schedule of earnings for further information on the preparation of a schedule.

14.   A party will be prevented from relying on a document where it is not provided in accordance with section 290 of the 1998 Act and the PIC Rules, unless leave is granted by the Commission in accordance with rule 67(2) of the PIC Rules.

Material in the motor accidents division

15.   In addition to the requirements of rule 67 of the PIC Rules, any specific material required by a form approved by the President, the enabling legislation or PIC Rules must be lodged with the Commission.

16.   In a claim for damages, a schedule of damages must be provided with the application. If a party disputes the accuracy of the schedule of damages lodged with the application, they must lodge a schedule of damages with their reply, in accordance with rule 100 of the PIC Rules.

17.   In proceedings where statutory benefits are in dispute, a schedule of earnings, in the prescribed form, must be provided with the application. If a party disputes the accuracy of the schedule, they must lodge a schedule of earnings with their reply, in accordance with rule 68 of the PIC Rules. See Procedural Direction PIC5 – Schedule of Earnings for further information on the preparation of a schedule.

Order of documents

18.   Supporting documents should be sorted into a logical sequence, unless otherwise stated. The following order is recommended:

(a)    witness statements of the claimant and any other witnesses;

(b)    claim forms;

(c)    dispute notices;

(d)    schedule of damages;

(e)    schedule of earnings;

(f)     relevant correspondence;

(g)    list of payments;

(h)    factual investigation reports;

(i)     medical reports;

(j)     medical investigation reports;

(k)    clinical notes;

(l)     financial records;

1. wage records;
2. pay slips;
3. bank statements;
4. tax returns, and
5. award information.

19.   Documents within each of the above categories should be arranged in chronological order, with the first in time placed first. Documents should be recorded in the relevant Commission form and appropriately paginated.

20.   Care should be taken to ensure that all documents attached are relevant to the resolution of the real issues in proceedings, rather than attaching all documents in the possession of a party. For example, financial records are generally unlikely to be relevant for the purposes of a medical assessment.

Form of statements

21.   The timely and effective resolution of matters before the Commission requires that the statements provided by parties contain all appropriate and relevant facts, together with a sufficiently detailed history. Any statement relied on by a claimant should include, but not be limited to:

(a)    work history;

(b)    the circumstances of the injury;

(c)    information regarding medical treatment received in respect of the injury, and

(d)    a summary of any ongoing effect/s of the injury.

22.   Where a party proposes to rely on a statement of a third party, that statement should be relevant to the resolution of the real issues in the proceedings.

Applications to admit late documents

23.   Rule 67 of the PIC Rules requires a party to lodge and serve all information and documents which the party proposes to rely on. Material not lodged with the application or reply must be lodged by completing the appropriate form.

24.   The reasons for the lateness of the document and for its admission in the proceedings should be set out in the application. Pro forma paragraphs quoting the Commission’s power to admit late documents should not be used as the only basis to support the application.

Proceedings in the Commission

25.   An application to admit late documents must be lodged with the Commission no later than three working days prior to a preliminary conference or hearing or 14 days prior to the medical assessment and must be served on the parties as soon as practicable (rule 67(3) of the PIC Rules).

Admission of late documents

26.   Parties are expected to comply with the timeframe requirements set out in the legislation and rules. The lodgment and registration of the appropriate form does not mean that the document attached is admitted as evidence in the proceedings.

27.   In the case of late documents lodged prior to a medical assessment by a medical assessor, the President will provide the other party with an opportunity to lodge written submissions in response to the application. If the other party objects to admission of the late documents the matter will be listed for an online conference (via audio or audio-visual link) before a member for determination.

28.   In determining an application for leave to admit late documents, the following matters will be considered:

(a)    the interests of justice;

(b)    the requirements of the workers compensation legislation and the PIC Rules;

(c)    the submissions of the parties including the adequacy of the moving party’s reason/s for the delay in lodging the document/s;

(d)    any prejudice that would result from granting or refusing leave to admit the documents;

(e)    the effect, if any, on the timely resolution of the dispute, and

(f)     the objects of the Commission under sections 3 and 42 of the PIC Act.

Documents tendered during conciliation/arbitration

29.   Where a party seeks leave to admit a document during a conciliation/arbitration hearing, admission of the document will be determined by the member with conduct of the matter, in accordance with the principles set out above.