Practice Direction No 5 – Question of law

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 5 ­– Reference of Question of Law to the Workers Compensation Commission Constituted by the President, dated 8 September 2011

Application

2.    This Practice Direction applies to the referral of a question of law under s 351 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 regarding the referral of a question of law, arising in proceedings before an Arbitrator, to the President of the Commission.

Application for Leave to Refer a Question of Law

4.    The referral of a question of law is made by lodging in the Commission an Application for Leave to Refer a Question of Law (Form 13). It may be made on application by a party to the proceedings before an Arbitrator or of the Arbitrator’s own motion (s 351(2) of the 1998 Act, r 16.1 of the 2011 Rules). However, only an Arbitrator may refer a question of law to the President for consideration.

5.    An application must be made as soon as practicable and prior to final determination of the matter by the Arbitrator. If a party has made the application, the applicant must serve an unsealed copy of the application on each other party to the proceedings and the State Insurance Regulatory Authority of New South Wales (the Authority).

6.   In determining whether to refer the application to the President for consideration, the Arbitrator may seek submissions from each party. If the Arbitrator determines not to refer the application to the President, the parties to the proceedings will be provided with reasons for that decision.

7.    If the Arbitrator determines to refer the application to the President, or the Arbitrator refers an application on his or her own motion by lodging a Form 13, the Commission will serve a sealed copy of the application on each of the parties to the proceedings and the Authority. It will also serve a Direction inviting the parties and the Authority to respond to the application, by filing a Response to Application for Leave to Refer a Question of Law (Form 13A). A response may be lodged in the Commission and served on each other party and the Authority, within 14 days of receipt of the sealed application or by the date referred to in the Direction.

8.    The Authority has a right to be heard in any proceedings before the Commission, pursuant to s 106 of the 1998 Act. If the Authority seeks to intervene in the proceedings, it must advise the Commission and the parties in writing within 14 days of receipt of the sealed application.

9.    The following documents must be attached to the application and response:

(a)   a statement of the facts that are said to give rise to the question of law;

(b)   a clear and concise expression of the question of law;

(c)   submissions detailing the basis on which the question of law is novel or complex, or submissions in opposition, as the case may be;

(d)   submissions detailing an opinion on the question of law;

(e)   submissions detailing any other factors which are submitted to support or oppose the question of law pursuant to s 351 of the 1998 Act;

(f)   a list of authorities relied on to support the submissions (If the authority is an unreported decision, a full copy of the decision must be attached to the submissions. It is not necessary to provide copies of Commission decisions or other decisions available on legal websites.);

(g)   a statement as to whether the application should be determined on the papers, and

(h)   submissions on whether there is any impediment to the Arbitrator continuing to exercise his or her functions in respect of the resolution of the dispute before the application is determined.

Leave by the President

10.    The President may not grant leave for referral of a question of law unless satisfied that the question involves a novel or complex question of law (s 351(3) of the 1998 Act).

11.    The President may consider several factors in determining whether leave should be granted including whether the question of law involves an interpretation of legislative provisions not previously considered at a Presidential or appellate level.

12.    The President will usually determine the application on the papers. If the matter proceeds to telephone conference or hearing the parties will be informed by way of notice. If the matter proceeds to hearing it is expected that the parties’ legal representatives will attend before the Commission.

13.    The President will issue a written decision on the application. In accordance with the Commission’s Policy on Publication of Decisions in the Workers Compensation Commission, the decision will be published on AustLII, BarNet JADE and LexisNexis seven days from the date of determination, unless an objection is raised.

Proceedings before the Arbitrator

14.    The Arbitrator will continue to progress the dispute proceedings while the application is before the President. The Arbitrator will use his or her best endeavours to bring the parties to the dispute to a settlement that is acceptable to all of them (s 355 of the 1998 Act), unless the question of law concerns the Arbitrator’s jurisdiction to make a determination (s 351(5) of the 1998 Act).

15.    The President’s decision on the application will be remitted to the Arbitrator, who referred the question, to resolve any outstanding matters.

16.    If an award has been made in the matter before the Arbitrator, before the application was determined, the award may be varied so that it is consistent with the President’s opinion on the question of law. If the award needs to be varied, the Arbitrator may issue a direction inviting the parties to be heard on the terms of the variation of the award.

17.    If an award has not been made in the matter before the Arbitrator, the proceedings before the Arbitrator will continue as soon as possible. If the matter proceeds to a determination by the Arbitrator, any award must be consistent with the opinion of the President on the question of law.

Discontinuing the application

18.    If the applicant seeks to discontinue the application to refer a question of law prior to determination by the President, it must lodge in the Commission and serve on all other parties an Election to Discontinue Proceedings (Form 14B).

19.    If the parties agree to discontinue the application to refer a question of law on terms, the parties must lodge in the Commission an Agreement to Discontinue (Form 14A). This must identify the terms of agreement and the proceedings to be discontinued.

His Hon Judge Greg Keating

President