Practice Direction No 17 - Reconsideration Applications

1 January 2020

Commencement

1. This Practice Direction is issued pursuant to r 18.1 of the Workers Compensation Commission Rules 2011 and commences on 1 January 2020. It replaces the Requests for Reconsiderations under Sections 329(1A), 350(3) and 378 of the Workplace Injury Management and Workers Compensation Act 1998 policydated February 2010.

   Application

2. This Practice Direction applies to applications for reconsideration under ss 329(1A), 350(3) and 378 of the Workplace Injury Management and Workers Compensation Act 1998(the 1998 Act).

   Purpose

3. The purpose of this Practice Direction is to set out the Commission’s practice and procedure in relation to reconsideration applications.

   Reconsideration Application

4. A reconsideration application may be lodged by letter, setting out the relevant reconsideration power, grounds for the reconsideration and the orders sought. It should be made as soon as practicable after the applicant becomes aware of the basis for seeking a reconsideration.
5. Section 329(1A) of the 1998 Act provides that the Registrar may refer a medical assessment under Pt 7 of Ch 7 of the 1998 Act to an Approved Medical Specialist for reconsideration.
6. Section 350(3) of the 1998 Act provides that the Commission may rescind, alter or amend any decision by a Presidential member or an Arbitrator.
7. Section 378 of the 1998 Act provides that the Registrar or a Medical Appeal Panel may rescind, alter or amend any decision it has previously made.

   Obvious error

8. An obvious error may be corrected by lodging a letter, instead of lodging a reconsideration application. An obvious error includes a typographical error or an obvious calculation error. See Practice Direction No 4 – Correction of “obvious error”.

   Grounds for reconsideration

9. The reconsideration application must identify:

   (a) the relevant reconsideration power;

   (b) the ground/s for reconsideration, with appropriate reference to the relevant decision sought to be reconsidered;

   (c) whether the reconsideration is in relation to the whole or only part, and which part, of the decision, and

   (d) the decision and order/s sought on reconsideration.

10. All submissions must:

    (a) clearly and succinctly address each ground for reconsideration;

    (b) be divided into numbered paragraphs with appropriate subheadings, which separately address each ground for reconsideration;

    (c) where relevant, include the circumstances that justify any delay in the making of the reconsideration application;

    (d) where relevant, include submissions detailing why the decision should be reconsidered, rather than appealed;

    (e) include references to relevant legislation and case authorities, together with the relevant section, page or paragraph reference;

    (f) include the relevant page or paragraph reference to the evidence, and

    (g) include the date of service of the reconsideration application on the other parties to the dispute (applicant only).

11. If a party seeks to rely on fresh evidence, additional evidence or substituted evidence in relation to a ground for reconsideration, they must provide:

    (a) a schedule of the evidence, including the author and date of the evidence;

    (b) a clear copy of the evidence;

    (c) submissions as to why the evidence is fresh evidence or evidence in addition to or in substitution for the evidence received in relation to the decision made, and

    (d) submissions as to why the evidence was not available to, and could not reasonably have been obtained by, the party before the decision made.

    Lodgment and service

12. The applicant must serve a copy of the reconsideration application on all parties to the proceedings, together with a notification that the parties have 21 days to reply, prior to lodgment in the Commission.
13. The reconsideration application will be accepted if the Registrar is satisfied that it complies with the relevant procedural requirements. The parties will be notified in writing whether the reconsideration application is accepted.
14. The other parties may respond to the reconsideration application by lodging and serving a reply within 21 days of service of the application.
15. The reply may be by letter setting out submissions dealing clearly and succinctly with each of the ground/s for reconsideration and submissions in support (using the format described above at [10]–[11]). The failure to lodge a reply may result in the reconsideration application being considered in the absence of any submissions by the respondent/s.

    Discontinuing a reconsideration application

16. A reconsideration application may be discontinued by the filing party prior to a decision being issued, by lodging and serving on each other party an Election to Discontinue Proceedings (Form 14B).
17. If the parties agree to discontinue a reconsideration application on terms, the parties may lodge an Agreement to Discontinue (Form 14A).

    Matters for consideration

18. The reconsideration power is discretionary.
19. If the Registrar accepts the reconsideration application, the matter will usually be determined by the original decision maker.
20. The following matters will be considered in deciding the reconsideration application:

    (a) the relevant reconsideration power;

    (b) the objectives of the Commission under s 367 of the 1998 Act;

    (c) the reason for and extent of any delay;

    (d) any fresh evidence, additional evidence or substituted evidence, that could not have reasonably been obtained prior to the decision and which would have likely led to a different result if before the original decision maker;

    (e) the public interest in finality of litigation;

    (f) that mistake or oversight by a legal representative or agent may not, in itself, be determinative of whether relief should be granted, and

    (g) the interests of justice.

21. Reconsideration applications are generally determined on the papers. However, in some circumstances a direction may be issued for further information or a telephone conference or hearing may be held. The Registrar will advise the parties of the relevant time and place of any telephone conference or hearing.
22. The Commission will issue the reconsideration decision in writing as soon as practicable after it is made.
23. The Commission will publish decisions consistent with its Policy on Publication of Decisions in the Workers Compensation Commission.

His Hon Judge Gerard Phillips

President