Practice Direction No 18 - Hearing of Proceedings

4 August 2020

Commencement

1. This Practice Direction is issued pursuant to r 18.1 of the Workers Compensation Commission Rules 2011 (2011 Rules) and commences on 4 August 2020. 

   Application

2. This Practice Direction applies to all applications heard by the Workers Compensation Commission.

   Purpose

3. The Commission’s priority is to continue to deliver its services during the COVID-19 pandemic while ensuring the safety and wellbeing of staff, members, service partners and those who use the Commission’s services.
4. This Practice Direction sets out the procedure for deciding whether a hearing may be conducted in-person, by audio link (AL), by audio visual link (AVL) or other means. The legislative basis for this Practice Direction is s 354 of the Workplace Injury Management and Workers Compensation Act 1998.
   

   Hearing of Proceedings

5. During the currency of the COVID-19 pandemic and until further notice, the Commission will, wherever possible, list matters for hearing by AL (telephone) or AVL.  The Arbitrator will, in consultation with the parties at the teleconference, determine whether a case should proceed by AL, AVL or a combination (where some parties attend by AL and others by AVL).
6. Questioning or cross-examination of witnesses (including parties) will be permitted in limited circumstances and only if the Arbitrator is of the view that it is necessary.
7. At the teleconference, a party may apply for the proceeding to be set down for an in-person conciliation/arbitration hearing.  The applicant for an in‑person hearing must establish:

(a) That the hearing cannot proceed by AL or AVL; or

(b) That it would be prejudicial to the party to have the matter heard other than in-person.

8. Such an application must address the matters set out below.      

   (a) Whether the parties are legally represented and whether any of the parties are self-represented.

   (b) Why leave to call oral evidence and/or cross examine witnesses should be allowed and on what issues.

   (c) The name of each witness, the specific nature of the evidence of each witness and reliance the party intends to place on that evidence. The party must also comply with
   r 14.2 and r 14.3 of the 2011 Rules and Practice Direction No 7B – Summons to Attend.

   (d) An estimate of the time to be taken in relation to cross-examination of witnesses and the overall hearing.

   (e) If there are issues of credit, why it is that such issues cannot be addressed by AL or AVL hearing.

   (f) The degree of complexity of the legal and/or factual issues in dispute and why it is that such issues cannot be addressed by AL or AVL hearing.

   (g) The importance and complexity of the subject matter of the proceedings and why it is that such issues cannot be addressed by AL or AVL hearing.

   (h) Whether any of the parties or witnesses require the services of an interpreter.

   (i) Whether the party seeking the in-person hearing is able to participate in a hearing by AL or AVL, either personally or at their legal representative’s office, and if not, why not?

   (j) The preferred location of the in-person hearing and the extent of travel required by all parties, legal representatives and witnesses to attend at that location.

   (k) Such further or other legal or factual matter or other relevant exceptional circumstance that the party wishes to rely upon in establishing that a hearing which is not in-person is potentially unfair.

9. If the Commission grants the application for an in-person hearing, such an application may be on such terms as the Commission, in the exercise of its discretion, imposes, having regard to the current public health crisis and the safety of Commission members and staff and the community. For example, if an application for an in-person hearing is granted, it might be that the Commission orders that the oral evidence be taken in an in-person hearing with the balance of the hearing including the submissions of the parties to be conducted by AVL. The Commission may also limit the number of persons physically present in the hearing room based upon physical distancing principles.

His Hon Judge Gerard Phillips

President