Practice Direction No 12 - Joinder of other parties and disputes
The purpose of this Practice Direction is to set out the practice and procedure in relation to the joining of other parties and disputes to Commission proceedings.
30 October 2018
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 12 – Joinder of Other Parties and Disputes, dated 8 September 2011.
2. This Practice Direction applies to all applications heard by the Commission.
3. The purpose of this Practice Direction is to set out the practice and procedure in relation to the joining of other parties and disputes to Commission proceedings.
Power to join other parties and disputes
4. Part 11 of the 2011 Rules sets out the procedure for the joinder of additional parties and disputes.
5. The Commission may make an order joining a person or party who is not a party to proceedings, on its own motion or by application, at any stage of the proceedings. A person or party includes an employer, a dependant of a deceased worker, a worker, and an insurer.
6. The Commission may direct that multiple proceedings be consolidated or dealt with concurrently, on its own motion or by application.
Procedure to join other parties to proceedings
7. A person may be joined to proceedings in circumstances where:
(a) they have an interest in proceedings, or
(b) they should have been joined, and/or
(c) it is necessary to ensure that all matters in dispute and all relevant issues can be effectively and fully dealt with (see r 11.1(4) of the 2011 Rules).
8. An application to join an additional party may be made by a party to the proceedings or by a person seeking to be joined to the proceedings. An application is made by lodging in the Commission an Application to Join a Party to the Proceedings (Form 2B). The application must contain full details of the person or party proposed to be joined and the reasons for the request. All documents in support of the application must be attached.
9. The unsealed application must be served on all other parties and the person proposed to be joined, if applicable, at the same time as lodgment. If any other party or the person proposed to be joined is an employer (but not a self-insurer), the application must also be served on any relevant insurer of the employer.
10. A party or the person proposed to be joined may oppose the application by notice in writing. The opposition must be lodged with the Commission and served on the other parties and on the person proposed to be joined, if applicable, within 3 days of service of the joinder application.
11. Parties must take reasonable steps to identify potential parties to a proceeding and make any necessary application for joinder as soon as practicable. An application for joinder is not appropriate where an applicant commences proceedings against the incorrect respondent. Such an error should be corrected by order or the filing of fresh proceedings.
12. An application to correct the description of the respondent may be granted, with the consent of the correct respondent, by order of the Commission. Alternatively, an application to discontinue proceedings against the incorrect respondent (Form 14A – Agreement to Discontinue Proceedings or Form 14B – Election to Discontinue Proceedings) should be filed and fresh proceedings against the correct respondent commenced.
Determination of joinder application
13. The application for joinder may be determined at any stage of the proceedings. The Commission will attempt to deal with the application before the substantive proceedings proceed to hearing.
14. The Commission will have regard to r 11.1(5) of the 2011 Rules and other matters when making appropriate orders and directions after an additional party is joined to the proceedings. Those matters include:
(a) the requirement to notify the joined party of the order for joinder and the need to provide them with all relevant documents in the proceedings;
(b) the need to re-name the parties (for example, respondent to be re-named first respondent; joined respondent to be named second respondent);
(c) whether any amended documents need to be lodged (for example, whether an amended Application to Resolve a Dispute (Form 2) should be lodged, to clearly identify the injuries and claims against each of the respondents);
(d) the need for the joined party to lodge and serve a reply, relevant documents in support and a certificate of service, and
(e) whether any pending teleconference or hearing date should be vacated and/or whether a new listing date should be allocated.
Procedure to consolidate multiple proceedings or deal with proceedings concurrently
15. The Commission may direct that multiple proceedings be consolidated or dealt with concurrently, where there is more than one dispute arising out of the same injury. The Commission may also order that matters be dealt with concurrently, where there are separate proceedings brought by different claimants and the same evidence may need to be considered (for example, injuries that arise out of the same work incident).
16. There is no approved form for applying to the Commission for proceedings to be consolidated or to be dealt with concurrently. An application may be made by writing to the Registrar setting out the details of the relevant proceedings, the reasons for the application and whether the other parties consent.
17. The application should be served on all other parties at the same time it is lodged with the Commission. If any other party is an employer (but not a self-insurer), the application must also be served on the employer’s insurer.
18. A party may oppose the application by notice in writing. The opposition should be lodged with the Commission and served on the other parties within 3 days of service of the application.
19. The Commission will generally order that proceedings be consolidated where separate proceedings have been commenced in relation to different claims arising out of the same injury. In these circumstances, all relevant documents from the later matter/s will be transferred to the earlier matter. If there is more than one listing date, the Commission will confirm one date and vacate the others.
20. The Commission will generally order that proceedings be dealt with concurrently where the separate proceedings involve the same claimant but different injuries, and possibly different employers, or where the separate proceedings involve different claimants but are factually similar. If there is more than one listing date, the Commission will confirm one date and vacate the others.
His Hon Judge Keating