Practice Direction No 8 - Notice for production
The purpose of this Practice Direction is to provide guidance regarding the process and procedure for issuing notices for production.
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 8 – Notices for Production, dated 8 September 2011.
Application
2. This Practice Direction applies to all Commission proceedings.
Purpose
3. The purpose of this Practice Direction is to provide guidance regarding the process and procedure for issuing notices for production.
Notices for production between parties
4. All information and documents relied on by a party to a dispute should be lodged with the Commission and served on all other parties in accordance with the workers compensation legislation and 2011 Rules.
5. A party to proceedings may serve on another party a notice for production of documents held by that party. A notice for production is made between the parties and is not issued by the Commission.
Form of notice for production
6. A notice of production should be in the form approved by the President. Parties may use the template notice for production available on the Commission’s website.
Time for service and production
7. Rule 12.3 of the 2011 Rules provides that a notice for production must be served on the producing party within 21 days from the date of registration of the Application to Resolve a Dispute (Form 2). The producing party has seven days to produce to the requesting party the documents sought in the notice. The documents for notice for production should not be sent to the Commission.
Conduct money
8. Where the producer is an applicant worker, he or she is not required to comply with the notice for production, unless an amount sufficient to meet the reasonable expenses of complying with the notice is paid at the time of service of the notice or not later than a reasonable time before the date for production (r 12.5(1) of the 2011 Rules).
Objecting to a Notice of Production
9. The party on whom a notice for production is served may object to production by serving a notice of objection on the requesting party. The notice of objection must be served within seven days of service of the notice for production.
10. Rule 12.4(1)(b) of the 2011 Rules provides that the notice of objection must be served on the requesting party concerning any document not produced stating:
(a) that the document is not suitable for copying but may be inspected at a place and time stated in the notice of objection and on a date within 7 days of service of the notice of objection, or such other date as the parties may agree, or
(b) that the document is a privileged document and the reasons for the claim of privilege, or
(c) that the document is not relevant to a fact in issue in the proceedings and the reasons why, or
(d) any other objection to production and the reasons for the objection, or
(e) if the producer is an applicant worker, that sufficient money has not been paid or tendered to meet the reasonable expenses of complying with the notice for production, and the reasons why, or
(f) that the document has already been produced to the requesting party, or
(g) that the document is to the best of the producer’s knowledge, information or belief, in the possession or control of such other person as may be specified in the notice of objection, or
(h) that the producer has no knowledge, information or belief as to the existence or whereabouts of the document.
11. A requesting party who wishes to oppose a notice of objection referred to in r 12.4(1)(b) of the 2011 Rules must lodge and serve a written a notice of opposition within two working days of being served with the notice of objection (r 12.4(4) of the 2011 Rules).
The Arbitrator or Registrar will determine an objection to a notice for production (r 12.4(6) of the 2011 Rules), and may:
(a) set aside the notice for production in whole or in part;
(b) direct that the documents the subject of the direction be produced to the requesting party or to the Commission,
(c) make such other order as the Arbitrator or Registrar thinks fit.
12. A producer complies with a notice for production by complying with r 12.4 of the 2011 Rules.
Compliance
13. A person who fails without reasonable excuse to comply with a notice to produce is guilty of an offence (s 290(2) of the Workplace Injury Management and Workers Compensation Act 1998(the 1998 Act)).
14. If a party fails to produce documents under a notice for production, the Registrar may refer the matter to the State Insurance Regulatory Authority for consideration as to prosecution for an offence under s 290(2) of the 1998 Act and, where appropriate, consider a costs order under Div 3 of Pt 8 of Ch 7 of the 1998 Act (r 12.4(2) of the 2011 Rules). The Registrar may exercise these functions on application in writing by the requesting party.
His Hon Judge Greg Keating
President