Procedural Direction PIC1 – Conduct of parties during proceedings
This Procedural Direction sets standards for parties as well as additional expectations of representatives during the course of their proceedings.
This Procedural Direction applies to: Workers Compensation Division, Motor Accidents Division
Date of commencement: 9 June 2022
1. Parties to proceedings in the Commission are expected to abide by certain behavioural and conduct standards during the course of their proceedings. This Procedural Direction sets standards for parties as well as additional expectations of representatives.
2. This Procedural Direction is made by the President under section 21 of the Personal Injury Commission Act 2020 (the PIC Act).
3. The President or a member before whom a matter is listed may excuse a party from complying with any aspect of this Procedural Direction before or after the time for compliance with any action required.
4. Nothing in this Procedural Direction prevents the President or a member directing a party to take any appropriate step in proceedings.
5. This Procedural Direction is to be read with and subject to any provision of the PIC Act, the enabling legislation, and the Personal Injury Commission Rules2021 (the PIC Rules).
Applicable legislation and rules
6. Parties should be familiar with the following provisions:
(a) section 3 of the PIC Act, which sets out the objects of the PIC Act;
(b) part 5 of the PIC Act, which sets out the practice of the Commission, and
(c) part 6 of the PIC Rules.
Objects of the PIC Act
7. Section 3 of the PIC Act sets out the objects of the Act. These objects guide the practice and procedure of the Commission.
8. To achieve the objects of the PIC Act, the Commission has developed rules for the commencement of, conduct during, and resolution of disputes in the Commission. The PIC Rules give effect to the guiding principle of the practice and procedure of the Commission as set out in section 42 of the PIC Act, being the facilitation of the just, quick and cost effective resolution of the real issues in the proceedings.
9. Parties to proceedings, and representatives of parties, must cooperate with the Commission to give effect to the guiding principle, and in so doing, comply with the PIC Act, the PIC Rules, any Procedural Directions, and any direction given by the Commission.
10. Members, medical assessors and mediators are also required to comply with their respective codes of conduct during the course of proceedings.
Representation before the Commission
11. Section 48 of the PIC Act concerns representation before the Commission. A party to proceedings in the Commission is entitled to be represented by a legal practitioner or agent.
12. A party may also choose to represent themselves. In proceedings in the workers compensation division, an insurer is not entitled to legal representation where a party to proceedings is a self-represented worker, without leave of the Commission. Leave may be granted under section 48(4) of the PIC Act. Rule 61 of the PIC Rules provides for certain circumstances where leave is not required:
(a) the preparation and lodgment of documents commencing or responding to proceedings;
(b) participation in preliminary conferences and conciliation conferences, and
(c) the preparation and sending of correspondence to the Commission or another party.
13. In accordance with this rule, once a matter proceeds to a hearing, leave will be required for an insurer to be represented where the proceedings involve a self-represented worker.
14. If an insurer wishes to be legally represented during a hearing before the Commission, an application for a grant of leave to be represented by an Australian legal practitioner must be made in the Reply.
15. A party is also entitled to other assistance (such as an interpreter) to communicate effectively during proceedings. Where an interpreter is required, this should be indicated on the form commencing proceedings or in the reply lodged.
Conduct prior to proceedings
16. It is expected that parties have preliminary discussions prior to any listing in the Commission. These discussions should focus on resolving the issue as a whole or in part, or if that is not possible, limiting the issues in dispute. Regardless of the outcome of these preliminary discussions, parties are still expected to use their best endeavours to settle the matter before the Commission.
17. Parties should also discuss and consider lodging the following with an Application or Reply:
(a) a statement of agreed facts and issues, in accordance with rule 70 of the PIC Rules;
(b) an agreed schedule of earnings or schedule of damages;
(c) in workers compensation proceedings, an agreed figure for PIAWE, or
(d) any agreement reached as to the degree of permanent impairment in one or more body parts.
Commencing and replying to proceedings
18. When commencing or replying to proceedings, parties must comply with the PIC Act, the PIC Rules, any applicable Procedural Directions and the requirements of the Form commencing the proceedings.
19. Documents attached to an Application or Reply must be legible, in English (or with an appropriate translation, in accordance with rule 18 of the PIC Rules), indexed in a logical way and paginated. Only relevant documents should be attached.
20. All documents on which the party proposes to rely should be attached to the Application or Reply. There are limited opportunities to lodge further evidence in the Commission.
21. In workers compensation proceedings, a notice for production should only be sought where necessary, so as not to delay the resolution of proceedings. Only documents with an apparent relevance to the issues in dispute should be sought through a notice for production. All reasonable steps should be taken to obtain evidence from the other parties prior to serving a notice for production.
Contacting the Commission
22. Except during the course of a preliminary conference, conference, or hearing, a party should never communicate directly with the decision maker to which the matter is allocated. All correspondence must be sent through the Commission’s online portal, via email (email@example.com), via one of the other contact methods provided in the Commission rules, or through the Commission staff member assigned to manage the dispute.
23. When communicating with the Commission in relation to a dispute, all opposing parties must be copied into any correspondence. The Commission will not be involved in ex-parte communications.
Conduct during proceedings
24. Parties must be appropriately prepared for any listing before the Commission. Where the listing is not in person (i.e. via telephone or audio-visual link), the party must ensure that the space is sufficiently private and noise free to allow proper participation in the matter. Distractions should be minimised (by, for example, turning off mobile phones and ensuring doors are closed).
25. Section 43 of the PIC Act provides general guidance about the procedure of the Commission:
(1) Proceedings in any matter before the Commission are to be conducted with as little formality and technicality as the proper consideration of the matter permits.
(2) The Commission is not bound by the rules of evidence but may inform itself on any matter in the manner the Commission thinks appropriate and as the proper consideration of the matter before the Commission permits.
(3) The Commission is to act according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms.
26. These principles apply at all stages of proceedings, and have guided the creation of the PIC Rules and Procedural Directions.
27. Each party must be familiar with the purpose of the preliminary conference and be prepared to address all relevant issues. This involves exploring all opportunities for resolution of the dispute, including narrowing the issues in dispute where the matter is unable to be resolved.
28. All parties required to be joined to the preliminary conference (which will occur online via audio or audio-visual link) must be available at the time scheduled and have appropriate authority to provide instructions to resolve the dispute.
29. Parties must be prepared and ready to participate at the scheduled time, as further preliminary conferences will generally not be scheduled, except in exceptional circumstances.
30. A decision maker may give a preliminary view on the case at this stage. Parties should listen attentively and consider the views of the decision maker on the issues raised.
Conferences and hearings
31. In proceedings before a member, if some or all of the issues in dispute are unable to be resolved, the matter will proceed to a conference. This usually occurs between 3 and 8 weeks after the preliminary conference. This represents a further opportunity for the parties to resolve the dispute through agreement.
32. Conferences will be conducted in person, or online (via audio or audio-visual link), depending on the circumstances of the case.
33. As with preliminary conferences, all parties must be available at the time of the scheduled conference and have appropriate authority to provide instructions to resolve the dispute. Insurance claims officers must attend in person.
34. A member may give a further preliminary view on the case at this stage. This is the final opportunity to resolve the dispute or discontinue the proceedings before the matter will be determined by the member.
35. If the parties are unable to resolve the dispute by agreement, the matter will proceed to a formal hearing. The member hearing the dispute will make it clear to the parties when the matter proceeds to this formal stage of the proceedings.
36. Parties will be given an opportunity to present their case through providing oral or written submissions, and, where leave is granted, through examination of a witness. Hearings are recorded. A copy of the recording will be made available to the parties in accordance with the Commission’s policy Audio recordings and transcripts.
Expectations of representatives
37. In addition to any applicable instruments regarding the conduct of representatives generally, including the model litigant policy, the Commission expects representatives to adhere to the following general principles:
(a) in presenting their party's case, adhere to that party's instructions, prior to and during proceedings;
(b) honestly represent the party to the proceedings. That is, not knowingly put forward any information that is untrue, or assist or encourage a party to do anything which is dishonest, or misrepresents known facts;
(c) be knowledgeable about, and comply with, the relevant enabling legislation, the PIC Rules, Procedural Directions, and Guidelines, and the usual practices and procedures of the Commission;
(d) behave courteously and respectfully to the opposing party, and his or her representative, to any witnesses called during the proceedings, to the decision maker, and to Commission staff;
(e) not engage in behaviour that could reasonably be perceived to be inappropriate, unprofessional, or an abuse of process, and
(f) not engage in direct or indirect discriminatory conduct towards or in relation to any other person, including parties or representatives.
38. In addition to the above, the Commission expects representatives to adhere to the following during the course of proceedings:
(a) assist the worker, employer, claimant or insurer to understand and participate in the dispute resolution processes of the Commission taking into account the party's personal circumstances and needs, especially in the case of persons with a disability;
(b) conduct themselves and the process at all stages with efficiency, timeliness and expedition. Representatives or agents must not unnecessarily or unreasonably hinder, delay or intrude upon, or detract from, the earliest finalisation (whether by settlement, conciliation or hearing) of any matter before the Commission;
(c) cooperate fully in exploring durable settlement outcomes with the other parties to the dispute;
(d) not negotiate a settlement that the representative or agent knows to be demonstrably unfair, criminal, fraudulent or unconscionable;
(e) not seek to influence the Commission member or Commission staff by means prohibited by law;
(f) not communicate ex-parte with the Commission during proceedings, and
(g) not engage in conduct intended to disrupt the Commission proceedings.
Publication of decisions
39. The Commission draws the attention of parties and their representatives to Part 14 of the PIC Rules.
40. Rule 131 requires that details of a decision required to be published by section 58 of the PIC Act are to be published on the Commission’s website or in another location directed by the President, no earlier than 7 days after the decision is issued.
41. A party, their legal representative or agent, or any other person, therefore must not publish, disseminate, or provide a copy of a decision which may be published under section 58 of the PIC Act to any third party (except that a party may provide a copy of the decision to a legal representative for the purpose of obtaining legal advice), within a period of 7 days after the decision is issued by the Commission.