Procedural Direction PIC10 – Hearings during COVID-19
This Procedural Direction sets out how matters will be heard during the COVID-19 pandemic.
This Procedural Direction applies to: Workers Compensation Division, Motor Accidents Division
Date of commencement: 1 March 2021
1. The Commission is committed to delivering services efficiently during the COVID-19 pandemic whilst ensuring the safety and wellbeing of staff, members, service partners, parties to proceedings, their legal representatives, and any other person involved in Commission proceedings. This Procedural Direction sets out how matters will be heard during the pandemic.
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 52 of the PIC Act, and
(b) Part 2 and Div 5.1 of the PIC Rules.
Hearing of proceedings
7. During the currency of the COVID-19 pandemic and until further notice, the Commission will, wherever possible, list matters for hearing by audio link or audio-visual link. The member will, in consultation with the parties at the teleconference, determine whether a case should proceed by audio link, audio-visual link, or a combination (where some parties attend by audio link and others by audio-visual link).
8. Questioning or cross-examination of witnesses (including parties) will be permitted in limited circumstances and only if the member is of the view that it is necessary.
9. At the initial teleconference, a party may apply for the proceedings to be set down for an in-person hearing. When applying for an in-person hearing, the following must be established:
(a) that the hearing cannot proceed by audio link or audio-visual link, or
(b) that it would be prejudicial to the party to have the matter heard in a way other than in-person.
10. Such an application must address the following matters:
(a) whether the parties are legally represented and whether any of the parties are self-represented;
(b) where oral evidence is required, why leave to call oral evidence and/or cross examine witnesses should be allowed and on what issues;
(c) the name of each witness, the specific nature of the evidence of each witness and reliance the party intends to place on that evidence. The party must also comply with Div 5.1 of the PIC Rules and Procedural Direction PIC6 – Production of Information and Calling of Witnesses;
(d) an estimate of the time to be taken in relation to cross-examination of witnesses and the overall hearing;
(e) if there are issues of credit, why it is that such 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 why it is that such 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 why it is that such 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 is able to 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 of travel required by all parties, legal representatives and witnesses to attend at that location, and
(k) such further or other legal or factual matter or other relevant exceptional circumstance that the party wishes to rely upon in establishing that a hearing which is not in-person is potentially unfair.
11. If the Commission grants the application for an in-person hearing, such an application may be on such terms as the Commission, in the exercise of its discretion, imposes, having regard to the current public health crisis and the safety of Commission members and staff and the community. For example, if an application for an in-person hearing is granted, it might be that the Commission orders that the oral evidence be taken in an in-person hearing, with the balance of the hearing including the submissions of the parties, to be conducted by audio-visual link.
12. The Commission may also limit the number of persons physically present in the hearing room based upon physical distancing principles.