e-bulletin No. 107 - August 2020

Practice Direction No 18 – Hearing of proceedings during  COVID-19 pandemic

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.

A new practice direction, Practice Direction No 18 – Hearing of proceedings during COVID-19 pandemic, 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.

Practice Direction No 18 commences on 4 August 2020.

Digital production of documents and minimising DX, Australia Post and courier

Digital Production of Documents: The Commission requires persons who produce documents (in compliance with a Direction for Production) to produce them by email to [email protected] or to contact the Registry by telephone (1300 368 040) to organise other arrangements.  In support of this policy:

1. When the Commission sends a sealed Direction for Production to a filing party, the Commission will advise that when the filing party writes to the producer, their letter should state that production should be by email to [email protected] and if that is not possible, the producer must contact the Registry to organise other arrangements.
2. The approved form (Direction for Production, Form 8) for directing a person to produce documents to the Commission has been amended to provide that during COVID -19, and until further notice, production should be by email to [email protected] and, if that is not possible, the producer must contact the Registry to organise other arrangements.

Email preferred: Where possible, please do not send hardcopy documents to the Commission by any method, including DX or Australia Post or courier.  The Commission’s staff are working remotely and accordingly, email is preferred over hard copy documents for those documents not required to be lodged through the online portal.

Preparation for con/arb and mediation

Some complacency has crept back into preparation for con/arbs and mediations.

Conducting con/arbs and mediations by AL or AVL requires extra preparation, particularly consulting with clients early and discussing the case with the other party prior to the listing.

I again remind legal practitioners of the importance of thorough preparation for con/arbs and mediations including:

• Early notification to the Commission of the names and contact numbers of those attending on behalf of a party;
• Insurer representative attendance at con/arbs and mediations;
• Properly instructing counsel;
• Consulting with clients and holding client conferences well in advance of the listing; and
• Discussing the case with the other party prior to the telephone con/arb or mediation to narrow issues and to allow the best opportunity to resolve the dispute

Adjournment of proceedings

Practice Direction No 2 – Adjournment of proceedings sets out the Commission’s policy on adjournments. It is in the interests of all parties that matters are heard and resolved as quickly as possible.  This ensures that workers who have an entitlement under the workers compensation legislation are paid promptly, that costs are kept to a minimum, and that any inconvenience and uncertainty associated with the dispute is minimised.

The Commission will aim to proceed as scheduled in all matters.  This means that all parties and their representatives must be ready to proceed at the time and place fixed by the Commission.

The following matters are not sufficient reasons for granting an adjournment:

• The consent of the parties to the adjournment;
• The convenience of the parties, including the unavailability of counsel or legal representatives, and
• The failure to properly prepare for the matter.

An application for adjournment must be soundly based and made in accordance with this Practice Direction.

Updated protocols for AMS Assessments

In e-Bulletin No 106, I announced the recommencement of in-person medical assessments from 20 July 2020.

The Disputes Services team continues to work through the backlog of cases from the ‘medical assessment pending list’.

Foremost is ensuring, to the extent possible, that the risk of transmission of the coronavirus is minimised when attending a medical assessment.

The Commission is contacting workers prior to their appointment to assess whether the worker is well enough to attend the appointment.

The Commission has also requested that AMSs conduct the assessment in two stages. The first stage requires the AMS to conduct a telephone or video consultation with the worker prior to the physical examination.  The telephone or video consultation allows the AMS to take a history and address any other relevant issues.  The second stage is conducting the in-person examination.  Conducting the assessment in two stages minimises the amount of time the AMS and worker are physically present together.

The wearing of masks is at the discretion of the AMS.  It is recommended that workers wear a mask to/from the appointment and during the assessment where it is practical to do so.

The protocol, Protocols for Medical Assessments During Coronavirus Pandemic, has been updated (updated 30 July 2020).  The main updates to the protocol have been enclosed in a circle with an exclamation mark (!) for easy identification

Personal Injury Commission Bill

The Personal Injury Commission Bill 2020 was introduced into NSW Parliament and passed the Legislative Assembly on 17 June 2020. The Bill is currently before the Legislative Council.

Article published in Workplace Review

An article, Legal Practice after the Pandemic, was published in Volume 10, No 1 edition of Workplace Review.

Judge Gerard Phillips

President