Procedural Direction PIC10 - Personal Injury Commission Hearings
This Procedural Direction sets out how matters will be heard.
This Procedural Direction applies to: The Workers Compensation Division and the Motor Accidents Division. All previous versions of PIC10 cease to apply.
Date of commencement: 8 June 2022.
1. The Commission is committed to the principle of open, transparent and in-person hearings for all matters. Priority will be given to matters where there is a multiplicity of parties, a requirement for oral evidence and cross-examination or a circumstance where the Commission, in the exercise of its discretion regarding a particular matter, decides that it is appropriate for the matter to be heard in person. Consistent with the objects of the Personal Injury Commission Act 2020 (PIC Act), the Commission is committed to the just, quick and efficient discharge of all matters that are required to be heard, and in some circumstances having regard to the nature of the dispute, this will involve the Commission appointing a virtual hearing on the Commission’s audio-visual platform. In some circumstances the hearing will be a combination of both in-person and audio-visual evidence and/or submissions. The Commission member, in the exercise of their discretion, will decide which hearing option or combination of hearing options is most appropriate given the circumstances of the matter, balancing the need for open justice and the statutory mandate for the quick, just and efficient dealing with all matters dealt with by the Commission.
2. This Procedural Direction is made by the President under section 21 of the PIC Act.
3. The President, each of the Heads of Division or the Principal Registrar may excuse a party from complying with any aspect of this Procedural Direction, before or after compliance was required.
4. This Procedural Direction does not prevent the President or a presiding member, directing a party to take any appropriate step in proceedings.
Applicable Legislation and Rules
5. This Procedural Direction must be read with, and subject to, the PIC Act, the enabling legislation and the Personal Injury Commission Rules 2021 (PIC Rules).
6. Parties should be familiar with the following provisions:
(a) section 52 of the PIC Act; and
(b) Part 2 and Div. 5.1 of the PIC Rules.
7. The Venue Options are:
(a) Venue Option 1: In-person (when a venue is available)
(b) Venue Option 2: Audio-visual link
(c) Venue Option 3: Audio link
(d) Venue Option 4: A combination of Venue Options 1‑3
7A. All parties, including the worker or claimant and the insurance claims officer, are required to attend the hearing. If the hearing venue is an in-person venue, then all parties and the insurance claims officer are expected to attend in-person. In exceptional circumstances, the Division Head may excuse an in-person attendance on application by a party in writing.
8. If a party or parties want the hearing listed using a Venue Option other than that selected by the Commission (Alternate Venue Option), they must raise that issue at the preliminary conference.
9. The presiding member at the preliminary conference, or the Division Head at a later date, will decide, in their reasonable discretion, if an Alternate Venue Option will be used after hearing submissions about why an Alternate Venue Option is preferred.
10. When a party seeks an Alternate Venue Option that includes an in-person hearing component, that party must address the following matters at the preliminary conference:
(a) whether the parties are legally represented and whether any of the parties are self-represented;
(b) where oral evidence is required, why leave should be granted to call oral evidence and/or cross examine witnesses and on what basis (i.e., state the issues);
(c) the name of each witness, the specific nature of the evidence of each witness and the reliance that the party intends to place on that evidence. The party must also comply with Div. 5.1 of the PIC Rules and Procedural Direction PIC 9 – Production of Information and Calling of Witnesses;
(d) an estimate of the time to be taken for the cross-examination of witnesses and the overall hearing;
(e) if there are issues of credit, state why those issues cannot be addressed by audio link or audio-visual link hearing;
(f) the degree of complexity of the legal and/or factual issues in dispute and state why those issues cannot be addressed by audio link or audio-visual link hearing;
(g) the importance and complexity of the subject matter of the proceedings and state why those issues cannot be addressed by audio link or audio-visual link hearing;
(h) whether any of the parties or witnesses require the services of an interpreter;
(i) whether the party seeking the in-person hearing can participate in a hearing by audio link or audio-visual link, either personally or at their legal representative’s office, and if not, why not;
(j) the preferred location of the in-person hearing, and the extent and nature of the travel required by all parties, legal representatives and witnesses to attend at that location; and
(k) any further or other legal or factual matters or exceptional circumstances that the party wishes to rely upon to establish that a hearing which is not in-person is potentially unfair.
11. If the Commission decides that a Venue Option will be used that includes an in-person component, the Commission may impose conditions on how that in-person hearing will be conducted, such as limiting the number of participants, which, in the exercise of its discretion, will aim to maximise the health and safety of all participants and will consider the COVID-19 risk profile at the relevant time.
12. Questioning or cross-examination of witnesses (including parties) may be permitted if the presiding member decides that it is necessary or is otherwise significantly preferred, in the interests of justice or for any other reason.
Special Pandemic/COVID-19 Arrangements
13. Legal representatives must submit a witness schedule to the Commission as part of the case management process when Venue Option 1 or Venue Option 4 is used (to the extent that there is an in-person component). A witness schedule must be submitted no less than 5 business days before the scheduled in-person hearing date. If the witness schedule is not submitted within time, the hearing will in most cases, be rescheduled.
14. The witness schedule must identify the time and date that each person will be required to participate in the hearing.
15. Legal representatives must jointly plan schedules for the attendance/participation of witnesses and any other participants in the hearing. The plan must set out a start and end time for each individual attendance for the schedule to be accepted by the Commission (and where an in-person component applies to the Venue Option, to permit the Commission to enforce hearing density limits in line with relevant risk assessments).
16. Legal representatives for each party must work together to ensure that their witness schedules are harmonised and will work effectively in terms of timing and efficient witness management. The Commission is not responsible for the scheduling process and the legal representatives must agree about schedules that they submit to the Commission as outlined above. If acceptable schedules are not submitted within time, the Commission will reschedule the hearing in most cases.
17. Where the Venue Option involves an in-person component, witnesses and other persons will not be able to sit in Commission premises and wait to be called at the convenience of the Commission and legal representatives. Those pre-pandemic practices are unsafe and inconsistent with the Commission’s applicable risk assessment.
Summons to Attend
18. All summonses to attend must specify:
(a) the date of any attendance;
(b) the Venue Option being used and adequate details about how the relevant person will access the venue (note: this will depend on the nature of the venue (i.e., audio-visual link, audio, in-person or a combination of those options); and
(c) the start and finish time for the relevant person’s attendance.
In-Person Hearing Protocols and Legal Practitioner Duties
Vaccination, Rapid Antigen Testing, Masks and Hygiene Protocols
19. An individual cannot participate in an in-person Commission event unless they:
(a) are double vaccinated with a vaccination approved by ATAGI (The Australian Technical Advisory Group on Immunisation);
(b) produced a negative RAT (Rapid Antigen Test) on the morning of the listed event;
(c) are free from flu-like symptoms; and
(d) wear any of the following masks while attending the Commission’s premises:
i. single use, disposable surgical grade mask; or
ii. a triple layered cloth mask; or
iii. a mask with superior effectiveness such as N95s or KN95s – see https://www.health.gov.au/resources/publications/face-masks-how-they-protect-you
20. Anyone who attends an in-person hearing (including legal practitioners) must comply with the Commission’s hygiene protocols (which will be clearly posted at the venue), and those protocols will include not eating or drinking (other than drinking from each person’s own bottled water) in the venue and the Commission’s premises.
Legal Representatives’ Duties (In-Person Hearings)
21. Legal representatives must:
(a) advise their clients, and every person that proposes to attend an in-person hearing in support of their client’s matter (this includes counsel, witnesses, translators, any support persons etc) about the requirements in paragraphs 19 and 20;
(b) sight reliable evidence of double vaccination from each of the persons described in sub-paragraph (a) above, and advise the Commission (i.e., the relevant Dispute Officer) in writing that they have done so, not less than 5 business days before the in-person hearing date; and
(c) before the commencement of the in-person hearing, ask each of the persons described in sub-paragraph (a) above, if they produced a negative RAT on the morning of the listed hearing date, and
i. if any of the relevant persons advise they did not take a RAT, or that they produced a positive RAT, the legal representative must tell any such person that they cannot participate in the in-person event, and they must leave the venue and Commission premises (if they have been admitted) and the legal representative must advise the presiding decision-maker, so that any required adjustments can be made to the proceeding process; and
ii. advise the presiding decision-maker at the commencement of the proceeding that all persons described in sub-paragraph (a) above are double vaccinated (to that extent that is accurate) and produced a negative RAT that day (to that extent that is accurate).