Practice Direction No 3 - Information, documents and other evidence
The purpose of this Practice Direction is to set out the practice and procedure for: (a) preparing and lodging documents and material, including expert evidence, and (b) taking of oral evidence.
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 3 – Expert Evidence, dated 8 September 2011.
2. This Practice Direction does not apply to appeals under s 352 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act).
3. The purpose of this Practice Direction is to set out the practice and procedure for:
(a) preparing and lodging documents and material, including expert evidence, and
(b) taking of oral evidence.
Information and material relied on by 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. If proceedings are commenced by a worker, a signed written statement of the evidence by the worker must be provided (see “Form of statements” below).
6. If a matter involves a claim for weekly payments of compensation, the employer must provide a schedule of all weekly payments made. This must include the amounts and periods of benefits paid.
7. The Commission may allow a party to introduce late information or material which has not been previously lodged or provided to any other party, if the Commission is satisfied it is in the interests of justice (see Practice Direction No 9 – Applications to Admit Late Documents).
8. The Commission may also allow a party to issue a Direction for Production or Summons to Attend on parties or non-parties (see Practice Direction No 7A – Directions for Production, Practice Direction No 7B – Summons to Attend and Practice Direction No 8 – Notices for Production).
Duplication of material and quality of copies
9. Parties and legal representatives should ensure that copies of documents attached to applications and replies are clear, sharp and legible.
10. Multiple copies of the same document should be avoided. It is not necessary for parties to reproduce documents which have already been lodged and served in the proceedings.
Order of documents
11.Supporting documents should be sorted into a logical sequence, unless otherwise stated. The following order is recommended:
(a) witness statements;
- (i) worker;
- (ii) other witnesses;
(b) claim forms;
(c) dispute notices;
(d) relevant correspondence;
(e) list of payments;
(f) factual investigation reports;
(g) medical reports;
(h) medical investigation reports;
(i) clinical notes;
(j) financial records;
- wage records;
- pay slips;
- bank statements;
- tax returns, and
- award information.
12. Documents within each of the above categories should be arranged in chronological order, with the first in time placed first. Documents should be recorded in the relevant Commission form and appropriately paginated.
Form of statements
13. The timely and effective resolution of matters before the Commission requires that the statements provided by parties contain all appropriate and relevant facts, together with a sufficiently detailed history. A statement by an injured worker should include, but is not limited to:
(a) work history;
(b) circumstances of the injury;
(c) information regarding medical treatment received in respect of the injury, and
(d) a summary of any ongoing effect/s of the injury.
Expert evidence - general duty to the Commission
14. An expert witness has an overriding duty to assist the Commission impartially on matters in dispute relevant to the expert's area of expertise.
15. An expert witness's paramount duty is to the Commission. An expert witness is not an advocate for a party or the person retaining them.
16. An expert’s written report should include:
(a) details of the expert’s qualifications;
(b) the facts, matters and assumptions on which the opinions in the report are based;
(c) the literature or other material used in making the report. Care should be taken to refer to the appropriate guidelines for medical assessments;
(d) reasons for each opinion expressed. Where several opinions are provided in the report, the expert should summarise them;
(e) any reference to examinations, tests or investigations on which the expert relies should include to the extent possible, the identity and qualifications of the person/s who carried them out, findings and dates of any investigations;
(f) if an expert’s opinion is not fully researched because the expert considers that insufficient information is available, a statement that the opinion is no more than provisional. Where an expert witness who has prepared a report believes that it may be incomplete or inaccurate without some qualification, that qualification must be stated in the report, and
(g) if applicable, a clear statement identifying that a particular question or issue falls outside his or her field of expertise.
Forensic medical report
17. Clauses 44, 45 and 46 of the Workers Compensation Regulation 2016 (2016 Regulation) restrict the number of forensic medical reports that may be tendered in evidence and the disclosure of medical reports to Approved Medical Specialists. A forensic medical report is defined in cl 44 of the 2016 Regulation.
18. Where a party proposes to rely on the oral evidence of a witness, they must lodge and serve a document containing the name of the witness and a signed written statement of the evidence to be given by the witness (r 10.3 of the 2011 Rules). This rule applies to both expert and lay evidence.
19. Rule 14.2(2) of the 2011 Rules provides for the Commission to allow a party to call oral evidence without a witness statement where:
(a) a document has been provided which sets out:
- (i) the specific nature of the evidence, and
- (ii) the reliance the party places on the evidence, and
- (iii) the reasons why the evidence has not been included in a statement, and
- (iv) the time the evidence is expected to be included in a statement, and
(b) the party states that a written statement containing the evidence will be lodged and served on all parties as soon as possible after the statement can be obtained.
20. If a witness refuses to sign a statement and a party has issued a summons on that person to attend and give evidence, then the witness may give oral evidence without a statement having been lodged and served (r 14.2(3) of the 2011 Rules).
21. Rule 14.2 of the 2011 Rules applies in respect of an expert witness as it applies in respect of any other witness (r 14.3 of the 2011 Rules). A party wishing to call an expert to give oral evidence must demonstrate that the evidence of the expert witness will assist the Commission in the resolution of the dispute.
22. At the telephone conference, the Arbitrator will address a number of procedural issues, including whether there is a demonstrated need to hear oral evidence from expert witnesses. The Arbitrator will then advise the parties of the witnesses, including expert witnesses, who will be permitted to give oral evidence at the conciliation conference and arbitration hearing.
23. During a conciliation conference, arbitration hearing or any proceedings, the Commission may direct that expert witnesses confer together, in the absence of the parties and their legal representatives, to:
(a) endeavour to reach agreement on material matters for expert opinion, and
(b) provide the Commission with a joint report, orally or in writing, that specifies matters agreed or matters not agreed and the reasons for any non-agreement.
His Hon Judge Greg Keating