Edition No.82

Welcome

I hope you all had a restful and meaningful Easter break and enjoyed the recent ANZAC Day commemorations – a day of remembrance and solemnity for those who served. With both holidays falling so close together this year, I trust the shorter weeks have brought a welcome pause amidst your busy schedules.

It is my sad duty to inform all Commission users of the death of Allan Cowley, one of our foundation members. I would like to extend my deepest condolences to the friends, family, and colleagues of Allan. He will be dearly missed.

In this edition of PIC News, you will find a critical update on the naming of parties in judicial review proceedings.

Guidance and reminders are provided on how additional documents may be introduced in Commission proceedings to promote consistency and assist practitioners in aligning with the expectations of rule 67.

Finally, we provide an update on the Commission’s ongoing digital and physical security uplift, designed to strengthen the security of our operations.

Regards,
Judge Gerard Phillips
President

Vale Allan Cowley

It is with much sadness that we inform all Commission users of the death of Allan Cowley, one of our foundation members.

Allan had been a long-time assessor in the Commission’s legacy bodies, starting this role in 2006. He was a vastly experienced practitioner and decision maker. Allan will be dearly missed by his colleagues and those who regularly appeared before him.

Naming convention in appeals

Practitioners are directed to the judgment of Basten AJ in Cheers v Mid Coast Council [2024] NSWSC 1553 (Cheers), in which his Honour commented on the naming of Commission defendants in judicial review proceedings at [85]-[86]. His Honour ordered that the names of the persons constituting the Medical Appeal Panel should be deleted and replaced with the name of the decision-making body, being the “Medical Appeal Panel”. On 11 December 2024, his Honour repeated the point in Oswell v Sublime Install Pty Ltd [2024] NSWSC 1586 (Oswell).

In response to the comments made by Basten AJ in Cheers and Oswell, the Commission has updated its website guidance on the naming of parties in judicial review proceedings to reflect that the decision-making body be named as a defendant, rather than directing users to personally name each decision-maker. This remains consistent with Uniform Civil Procedure Rule 59.3(4) which provides that the “body or person responsible for a decision to be reviewed must be joined as a defendant” to judicial review proceedings. The updated website guidance also reminds practitioners that if the decision being challenged involves the exercise of the President’s power by a delegate, it is the President who should be named as a party, rather than the delegate.

Practitioners are advised to review the updated website guidance and to adopt this approach when commencing judicial review proceedings in the NSW Supreme Court or the NSW Court of Appeal against Commission decisions. Where parties are not named in accordance with the Commission’s guide, the Commission may ask the plaintiff to amend their originating process accordingly.

View the updated naming conventions guidance

Rule 67 guidance and reminders

As practitioners are aware, amendments to rule 67 commenced in November 2024. Apart from introducing the 500-page limit, the amendments set out how additional documents may be introduced in Commission proceedings.

It is pleasing to note there is substantial compliance with the additional document provisions. However, it is understandable that some practitioners are still adjusting to the change, and the Commission is committed to providing guidance and reminders in the proper application of the rule 67 provisions.

Requirements for lodging additional documents

Rule 67C makes provision for parties to introduce Additional Documents:

• automatically in medical assessment proceedings if the relevant conditions are met, or
• if an appropriate decision maker grants leave because they are satisfied the introduction of the document is necessary to facilitate the just, quick and cost-effective resolution of the real issues in the proceedings.

Real issues in proceedings – rule 67C(4)

If practitioners are making an application for leave, rather than utilising the automatic introduction provisions, they will need to satisfy the appropriate decision maker that introduction of the documents is necessary to facilitate the just, quick and cost-effective resolution of the real issues in the proceedings. Whilst the Commission has seen an increase in practitioners applying the new test, there are still a number of applications which merely quote the test and assert that it is met. In particular, there is a pattern of some practitioners seeking to have very voluminous sets of clinical notes admitted without any submissions addressing why the introduction of the full set of those clinical notes is necessary to facilitate the resolution of the real issues.

Submissions must be made addressing each of the additional documents and their connection to the real issues in the proceedings.

Please note, if the Commission has directed a party to lodge additional documents in a matter, there is no need for the party to address the test under rule 67C(4). However, the Application to Lodge Additional Documents (ALAD) should reference the Commission’s direction.

Automatic admission of additional documents

The Commission is still seeing a large number of ALADs being lodged very close to medical examination dates. Whilst in some cases this may be unavoidable, it is crucial that any additional documents are lodged as soon as possible to ensure that the Commission is able to resolve the real issues in the proceedings justly, quickly and cost effectively. 

Additional documents may be automatically introduced, without the need for practitioners to make submissions addressing the rule 67C(4) test, if the documents are lodged no later than 14 days before the medical assessment and the other requirements of rule 67C (2) are met.

Practitioners are encouraged to utilise this method as an efficient way to have additional documents introduced in circumstances where the relevant requirements are met.

Additional documents will automatically be introduced in medical assessment proceedings if the ALAD is lodged:

• no later than 14 days before the medical assessment
• on one occasion only
• is served on all other parties to the proceedings as soon as practicable
• with written consent from the other party/parties
• in compliance with rule 67(1), namely
  • the documents are consecutively numbered, and
  • do not contain duplicates or documents already admitted, and
  • are indexed and sorted by document category.

Review rule 67

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