Procedural Direction PIC9 – Production of Information and Calling of Witnesses

Introduction

1.     The purpose of this Procedural Direction is to set out the practice and procedure of the Commission for Notices for Production, Directions for Production and Summonses to Attend.

Preliminary

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 Rules 2021 (the PIC Rules).

Applicable legislation and rules

6.    Parties should be familiar with the following provisions:

(a)   sections 49-51 of the PIC Act;

(b)   section 290 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act), and

(c)   part 5 of the PIC Rules.

Notices for production between parties

7.    Notices for production only apply to workers compensation proceedings (see s 290 of the 1998 Act and rule 37 of the PIC Rules).

8.    A party to proceedings may serve on another party a notice for production of documents held by that party. A notice for production is made between the parties and is not issued by the Commission.

9.    A party serving a notice for production may use the form approved by the President, which is available on the Commission’s website.

Time for service and production

10.  A notice for production must be served on the producing party within 21 days from the date of registration of the application that initiated proceedings. The producing party has seven days to produce to the requesting party the documents sought in the notice (see rule 40). The documents produced subject to a notice for production should not be sent to the Commission.

11.  A producer complies with a notice for production by delivering to the requesting party, at the requesting party’s address for service within 7 days, a clear copy of the documents that are within the possession or control of the producer and not the subject of a notice of objection (see below).

Conduct money

12.  Where the producer is claimant worker, he or she is not required to comply with the notice for production, unless an amount sufficient to meet the reasonable expenses of complying with the notice is paid at the time of service of the notice or not later than a reasonable time before the date for production (see rule 42).

Objecting to a Notice of Production

13.  The party on whom a notice for production is served may object to production by serving a notice of objection on the requesting party. The notice of objection must be served within seven days of service of the notice for production.

14.  The notice of objection must be served on the requesting party concerning any document not produced stating:

(a)   the document is not suitable for copying but may be inspected at a specified place and time an on a date within 7 days of the date on which the notice of objection was served on the requested party, or another date agreed to by the parties;

(b)   the document is privileged and the reasons for the claim of privilege, or

(c)   the document is not relevant to a fact in issue in the proceedings and the reasons why it is not relevant, or

(d)   if the producer is a claimant, an amount sufficient to meet the reasonable expenses of complying with the notice for production has not been paid, and the reasons for making the assertion, or

(e)   the document has already been produced to the requesting party, or

(f)    the document is, to the best of the producer’s knowledge or belief, in the possession or control of another specified person, or

(g)   the producer has no knowledge of the document’s existence or location, or

(h)   another objection to production and the reasons for the objection (see Rule 41(2)).

15.  A requesting party who wishes to oppose a notice of objection must lodge in the Commission and serve on the other party a written a notice of opposition within two working days of being served with the notice of objection (see rule 41(3)).

16.  The Commission may determine an objection to a notice for production by:

(a)   setting aside the notice for production in whole or in part;

(b)   directing that the documents the subject of the direction be produced to the requesting party or to the Commission, or

(c)   make such other order as the Commission or President thinks fit (see rule 41(5)).

Compliance

17.  If a person fails to comply with a notice for production:

(a)   the requesting party may, by written notice to the Principal Registrar within 2 working days after the time for compliance has expired, request that the Principal Registrar refer the matter to the State Insurance Regulatory Authority (the Authority) for consideration of the prosecution of an offence under section 290(2) of the 1998 Act, and

(b)   the Commission may, on the application of the requesting party or of its own motion, make a determination as to costs under Chapter 7, Part 8, Division 3 of the 1998 Act as it thinks fit (see Rule 41 (6)).

Directions for Production

18.  This part of the Procedural Direction applies to proceedings in both the workers compensation and motor accidents division of the Commission.

Power to Issue Directions for Production

19.  Under s 49 of the PIC Act the Commission may issue a direction to a person (whether or not that person is a party to the proceedings) requiring that person to produce documents or furnish information to the Commission.

Request for direction for production

20.  A party to proceedings may request that the member to whom proceedings are referred order the issue of a direction for production for the production of documents by a person who is not a party to proceedings (see rule 46).

21.  A request for an order for a direction for production should be made:

(a)   at a preliminary conference, or

(b)   in a special case and for the avoidance of injustice after the preliminary conference, for example, discovery after the preliminary conference that a non-party is in possession of relevant documents. A request for an order for direction for production made after the preliminary conference should be made in writing, setting out the reasons why the direction should be issued (see rule 47).

22.  In deciding whether to order the issue of a direction for production, the member may:

(a)   determine any objection by a party;

(b)   direct the time for service of the direction and the time for production by the producer;

(c)   direct the making of access orders, including a first access order, and

(d)   make such other provision as the member thinks fit (see rule 47(3).

23.  Pursuant to rule 47(2) a direction for production of documents will not be issued where the party requesting the direction is entitled to be provided with the documents prior to the referral of the dispute to the Commission.

24.  When leave is granted to issue a direction for production, the party who requested the order must prepare the direction in accordance with the terms of the order and deliver the direction to the Registry (rule 47(4)).

25.  The Commission will issue the direction for production by signing, dating and sealing the direction. It will also stipulate the proposed return date.

Service of direction for production

26.  The requesting party must serve the direction for production on the producer and all other parties to the proceedings, no later than seven days before the date for production specified in the direction (see rule 48(1)).

Service of directions for production outside the State of New South Wales

27.  The Service and Execution of Process Act 1992 (Cth) (SEPA) authorises a court to grant leave for the service of directions for production outside the State of New South Wales (s 57 of SEPA).

28.  An application under s 57 of SEPA, in respect of Commission proceedings, must be made to the President. A party seeking to serve a direction for production outside the state must lodge an Application for Leave to Serve a Direction for Production and Summons Outside the State with the direction for production.

29.  Adequate reasons for the service of the direction outside the state must be provided in the application. It is not sufficient to rely on the fact the member ordered/directed that the direction for production be made.

30.  The President may grant leave for service only if satisfied that:

(a)   there is sufficient time for the producer to comply without serious hardship or inconvenience, and

(b)   production is necessary in the interests of justice.

Conduct money

31.  The requesting party must pay sufficient conduct money to meet the reasonable expenses of compliance with the direction by the producer (see rule 53(1)).

32.  The producer is not excused from compliance on the ground of insufficient conduct money, unless the producer objects to production and provides the requesting party with written reasons why the amount is insufficient (see rule 53 (2)).

Access order

33.  The Commission will notify the parties when the documents have been produced by issuing an access order.

34.  The access order will notify the parties of the dates on which their respective access periods commence and finish.

35.  Access orders are determined according to the nature of the material produced. Standard first access orders will apply regardless of which party lodges the direction for production. For example, first access orders will be made to the claimant if the documents produced contain the claimant’s medical records.

36.  The purpose of first access is to enable a party to consider whether privilege should be claimed on any of the documents produced. During the first access, a party may make a claim for privilege by identifying the document/s and reasons for the claim of privilege, and notifying the parties and the Commission in writing. The member will seek submissions from the other side on the claim of privilege. The member will then consider the claim and any submissions before notifying the parties of the outcome.

Compliance

37.  If a producer fails to comply with a direction, the party who requested the issue of the direction may request the President refer the matter to the Authority for the consideration of the prosecution for an offence under the 1998 Act or PIC Act (see rule 49(3)).

Inspection and copying of documents produced

38.  A party to proceedings or the party's legal representative or agent may inspect and make copies of the documents produced pursuant to the direction for production.

39.  Originals or copies of documents produced may be returned to the producer if requested or otherwise will be destroyed 60 days after the date of the expiry of the access period for the documents unless the President orders differently (see rule 52).

Applications to admit late documents

40.  If a party seeks to rely on late documents produced pursuant to a direction, that party must lodge those documents in the Commission (see Procedural Direction PIC3 - Documents and Late Documents).

Calling Witnesses/Summonses to Attend

41.  This part of the Practice Direction applies to proceedings in both the workers compensation and motor accidents division of the PIC.

Power to Issue Directions for Production

42.  Under section 51 of the PIC Act, the Division Head of a Commission Division may issue a summons, requiring the attendance of a person at any conference or hearing before the Commission. If the proceedings are allocated to the Motor Accidents Division, a summons may be issued only to a party to the proceedings.

Application to issue a summons

43.  Parties proposing to call a witness (including an expert witness) to rely on oral evidence must comply with the requirements set out in rule 34.

44.  A party proposing to rely on oral evidence of a witness must lodge and serve a signed statement or expert report from the witness at the commencement of proceedings or in a late document (see rules 34(1) and 35(1)).The rules provide for limited circumstances in which oral evidence may be tendered from a witness who has not provided a signed statement (rule 34(3)).

45.  A party seeking to call a witness to attend must lodge in the Commission the summons. They must also notify the relevant member and other parties to proceedings of the application for a summons to attend.

46.  A party wishing to call an expert to give oral evidence by summons must demonstrate that the expert’s evidence will assist the Commission in the resolution of the dispute. For further information in relation to expert oral evidence see Procedural Direction PIC4 - Expert Witnesses.

Service of summons outside the State of New South Wales

47.  The Service and Execution of Process Act 1992 (Cth) (SEPA) authorises a court to grant leave for the service of a summons outside the State of New South Wales (s 57 of SEPA).

48.  An application under s 57 of SEPA, in respect of Commission proceedings, must be made to the President. A party seeking to serve a summons outside the state must lodge an Application for Leave to Serve a Direction for Production and Summons Outside the State with the summons.

49.  Adequate reasons for the service of the summons outside the state must be provided in the application.

50.  The President may grant leave for service only if satisfied that:

(a)   there is sufficient time for the witness to comply without serious hardship or inconvenience, and

(b)   attendance is necessary in the interests of justice.

Service of summons

51.  The requesting party must serve the summons on the attendee and on each other party to the proceedings, not less than seven days before the required attendance date (see rule 56(3)).

Conduct money

52.  The requesting party must pay or tender sufficient conduct money to meet the reasonable expenses of compliance with the summons by the attendee, at the time of service of the summons or not later than a reasonable time before the time and date of attendance (see rule 58).