Practice Direction No 7B - Summons to attend

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 7 – Directions for Production and Summonses, dated 8 September 2011.

Application

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

Purpose

3.    This Practice Direction provides practical and procedural guidance regarding summons to attend.

Power to issue a summons

4.    Under s 359 of the Workplace Injury Management and Workers Compensation Act 1998 NSW (the 1998 Act), the Registrar may issue a summons requiring a person to attend any conference or hearing before the Commission, including a mediation of a work injury damages claim.

5.    In a claim for work injury damages, a Mediator has all the functions of the Commission under s 359 of the 1998 Act (s 318D(1) of the 1998 Act).

Application to issue a summons

6.    Parties proposing to call a witness (including an expert witness) to rely on oral evidence must comply with the requirements set out in rr 14.2 and 14.3 of the 2011 Rules.

7.    A party proposing to rely on oral evidence of a witness must lodge and serve a signed statement or expert report from the witness at the commencement of proceedings or in a late document (r 10.3 of the 2011 Rules). The 2011 Rules provide for limited circumstances in which oral evidence may be tendered from a witness who has not provided a signed statement (rr 14.2(4) and (5) of the 2011 Rules).

8.    A party seeking to call a witness to attend must lodge in the Commission a Form 8B – Summons to Attend. They must also notify the Arbitrator and other parties at the telephone conference of the application for a summons to attend. See Guide to Completing Form 8B for further information.

9.    A party wishing to call an expert to give oral evidence by summons must demonstrate that the expert’s evidence will assist the Commission in the resolution of the dispute. For further information in relation to expert oral evidence see Practice Direction No 3 – Information, documents and other evidence.

Service of summons outside the State of New South Wales

10.    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).

11.    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 summons to attend must lodge in the Commission a From 8A – Application for Leave to Serve a Direction for Production and Summons Outside the State and attach Form 8B - Summons to attend, 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).

12.    Adequate reasons for the service of the summons outside the state must be provided in the application. It is not sufficient to rely on the fact the Arbitrator ordered/directed that the summons be issued.

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

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

(b)   attendance is necessary in the interests of justice.

Service of summons

14.    The requesting party must serve the summons on the attendee and on each other party to the proceedings, not less than seven days before the required attendance date (r 13.13(3) of the 2011 Rules).

Conduct money

15.    The requesting party must pay or tender sufficient conduct money to meet the reasonable expenses of compliance with the summons by the attendee, at the time of service of the summons or not later than a reasonable time before the time at which the attendee is required to attend (r 13.13(5) of the 2011 Rules).

Compliance

16.    Where the attendee fails to comply with the summons, the Registrar may refer the matter to the State Insurance Regulatory Authority for consideration as to prosecution for an offence under s 359(2) of the 1998 Act (r 13.15 of the 2011 Rules).

His Hon Judge Greg Keating

President