Practice Direction No 9 - Applications to admit late documents

30 October 2018

Commencement

1.    This Practice Direction is issued pursuant to r 18.1 of the Workers Compensation Commission Rules 2011 (2011 Rules) and commences on 30 October 2018. It replaces Practice Direction No 9 – Lodgment of Late Documents and Leave to Introduce Evidence, dated 8 September 2011.

Application

2.    This Practice Direction does not apply to appeals under s 352 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act).

Purpose

3.    The purpose of this Practice Direction is to provide practical and procedural guidance regarding applications to admit late documents. In this Practice Direction, “late documents” includes documents, information, material and evidence.

Material before the Commission

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

5.    Rule 10.3 of the 2011 Rules requires a party to lodge and serve all information and documents which the party proposes to rely on. The Commission specifically requires the following information be lodged and served:

(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 all weekly payments made, including amounts and periods. This information must be provided by the employer or their representative.

6.    A party will be prevented from relying on a document where it is not provided in accordance with s 290 of the 1998 Act and the 2011 Rules, unless leave is granted by Commission (r 10.3(4) of the 2011 Rules).

Application to admit late documents

7.    An application to admit late documents must be lodged by completing a Form 2C - Application to Admit Late Documents.

8.    An application to admit late documents must be lodged with the Commission no later than five working days prior to a telephone conference, arbitration hearing or medical assessment and must be served on the parties as soon as practicable.

9.    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.

Admission of late documents

10.    Parties are expected to comply with the timeframe requirements set out in the legislation and rules. The lodgment and registration of a Form 2C - Application to Admit Late Documents does not mean that the document attached is admitted as evidence in the proceedings.

11.    In the case of late documents lodged prior to a medical assessment by an Approved Medical Specialist, the Registrar 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 telephone conference before an Arbitrator for determination.

12.    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 2011 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 objectives of the Commission.

Documents tendered during conciliation/arbitration

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

His Hon Judge Greg Keating

President