Practice Direction No 7A - Directions for production

1 January 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 1 January 2020. It replaces Practice Direction No 7 – Directions for Production and Summonses, dated 30 October 2018.

Application

2.   This Practice Direction applies to all proceedings in the Commission.

Purpose

3.   This Practice Direction provides practical and procedural guidance regarding directions for production.

Power to issue directions for production

4.   Under s 357 of the Workplace Injury Management and Workers Compensation Act 1998 (NSW) (the 1998 Act), the Commission may issue a direction to a person (whether or not that person is a party to the proceedings) requiring that person to produce documents or furnish information to the Commission.

5.   The Commission and the Registrar may exercise the power under s 357 of the 1998 Act at the request of a party or of its own motion.  

6.   In a claim for work injury damages, a Mediator has all the functions of the Commission under s 357 of the 1998 Act, including the power to issue directions for production (s 318D(1) of the 1998 Act).

Application for a direction for production

7.   A party to proceedings may request the Arbitrator, Registrar or Mediator to order the issue of a direction for production (r 13.3 of the 2011 Rules).  

8.   A request for an order for a direction for production should be made at any teleconference fixed in the proceedings or, in a “special case” and for the “avoidance of injustice”, after the teleconference (r 13.4(1) of the 2011 Rules).  

9.   A “special case” and for the “avoidance of injustice” are not defined in the 2011 Rules but may include, for example, discovery after the teleconference that a non-party is in possession of relevant documents. A request for an order for direction for production made after the telephone conference should be made in writing to the Registrar, setting out the reasons why the direction should be issued.

10.   In determining whether to order the issue of a direction for production, the Arbitrator may:  
(a)   determine any objection by a party;

(b)   direct the time for service of the direction and the time for production by the producer;

(c)   direct the making of access orders, including a first access order, and

(d)   make such other provision as the Arbitrator thinks fit.

11.   Pursuant to r 13.4(2) of the 2011 Rules a direction for production will not be issued where the party requesting the direction had the opportunity to obtain documents prior to referral of the dispute to the Commission. For example, where the documents are in possession of the nominal insurer or where an authority to obtain information has been provided by the worker and has not been acted on by the insurer. However, a direction for production may be granted where the insurer can show that special reasons prevented them from acting on the authority to obtain information.  

12.   When leave is granted to issue a direction for production, the party who requested the order must lodge in the Commission a Form 8 – Direction for Production. See Guide to Completing Form 8 for further information.

13.   The Registry will issue the direction for production by signing, dating and sealing the direction. It will also stipulate the proposed return date.

Service of directions for production outside the State of New South Wales

14.   The Service and Execution of Process Act 1992 (Cth) (SEPA) authorises a court to grant leave for the service of directions for production outside the State of New South Wales (s 57 of SEPA).

15.   An application under s 57 of SEPA, in respect of Commission proceedings, must be made to the President of the Commission. A party seeking to serve a direction for production outside the state must lodge in the Commission an Application for Leave to Serve a Direction for Production and Summons Outside the State with the Form 8 Direction for Production, a draft Order for approval by the President of the Commission and Notice to Producer/Witness in accordance with the SEPA Form 5 (s 59 of SEPA).

16.   Adequate reasons for the service of the direction outside the state must be provided in the application. It is not sufficient to rely on the fact the Arbitrator ordered/directed that the direction for production be made.

17.   The President of the Commission may grant leave for service only if satisfied that:

(a)  there is sufficient time for the producer to comply without serious hardship or inconvenience, and

(b)  production is necessary in the interests of justice

Service of direction for production

18.    The requesting party must serve the direction for production on the producer and all other parties to the proceedings, no later than seven days before the date for production specified in the direction (r 13.5 of the 2011 Rules).

Conduct money

19.The requesting party must pay or tender sufficient conduct money to meet the reasonable expenses of compliance with the direction by the producer (r 13.6 of the 2011 Rules).

20.The producer is not excused from compliance on the ground of insufficient conduct money, unless the producer objects to production under r 13.8 of the 2011 Rules and provides the requesting party with written reasons why the amount is insufficient (r 13.6(2) of the 2011 Rules).

Compliance

21.    A person who fails without reasonable excuse to comply with the direction for production is guilty of an offence (s 357(3) of the 1998 Act).

Access order

22.The Registrar will notify the parties when the documents have been produced by issuing an access order.  

23.The access order will notify the parties of the dates on which their respective access periods commence and finish. The first access period must not exceed seven days.

24.Access orders are determined according to the nature of the material produced. Standard first access orders will apply regardless of which party lodges the direction for production. For example, first access orders will be made to the worker if the documents produced contain the worker’s medical records.

25.The purpose of first access is to enable a party to consider whether privilege should be claimed on any of the documents produced. During the first access, a party may make a claim for privilege by identifying the document/s and reasons for the claim of privilege, and notifying the parties and the Commission in writing. The Registrar will seek submissions from the other side on the claim of privilege. The Registrar will then consider the claim and any submissions before notifying the parties of the outcome.

26.A party may apply to the Registrar to amend the access order, prior to first access. See Guide to Completing Form 8 for further information.

Inspection and copying of documents produced

27.The parties must attend the Commission at Level 20, 1 Oxford Street, Darlinghurst, during their authorised access period to inspect and copy the produced documents. There is no charge for inspection and photocopying of documents. The produced documents cannot be removed from the Commission’s premises.

Applications to admit late documents

28.If a party seeks to rely on late documents produced pursuant to a direction, that party must lodge in the Commission a Form 2C – Application to Admit Late Documents (see Practice Direction No 9: Applications to Admit Late Documents).

His Hon Judge Gerard Phillips
President