Procedural Direction WC3 – Presidential appeals and questions of law
This Procedural Direction concerns the practice and procedure for an appeal against the decision of a non-presidential member, as well as the referral of a question of law to the President.
This Procedural Direction applies to: Workers Compensation Division
Date of commencement: 9 June 2022
Applicable legislation and rules
Threshold and preliminary matters
Certification of reasonable prospects of success
1. This Procedural Direction concerns the practice and procedure for an appeal against the decision of a non-presidential member, as well as the referral of a question of law to the President.
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 351 and 352 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act), and
(b) division 13.2 and r 133A of the PIC Rules.
7. An appeal is commenced by making an application to the President by lodging an Application – Appeal Against Decision of Member.
8. It is imperative that all procedural requirements are complied with when lodging an application, including those set out in:
(a) section 352 of the 1998 Act;
(b) division 13.2 and r 133A of the PIC Rules;
(c) the Workers Compensation Regulation2016, and
(d) this Procedural Direction.
9. The President may refuse to register an application if it does not satisfy all procedural requirements. In considering the procedural requirements of an application, the President does not need to be satisfied as to the substance of the appeal.
10. If there are procedural deficiencies in the appeal application, the President may issue a direction to rectify those deficiencies as an alternative to refusing to accept, seal, issue or register the application. In these circumstances, the appeal application will not proceed further until the President is satisfied that the appeal is procedurally compliant.
11. An appeal stays the operation of the decision appealed against. However, it does not affect the operation of a decision as to weekly payments of compensation and weekly payments of compensation remain payable despite any appeal.
Threshold and preliminary matters
12. An appeal application must address the following threshold and preliminary matters.
13. An appeal can only be made within 28 days after the making of the decision appealed against (s 352(4) of the 1998 Act). A decision is made when the Commission issues a Certificate of Determination under s 294(1) of the 1998 Act. Time to lodge an appeal commences to run on the day after the Certificate of Determination is issued. An appeal is made when the appeal application is registered by the President. An appeal is registered when it is accepted by the President and affixed with the seal of the Commission.
14. In exceptional circumstances, the Presidential member may extend the time for making an appeal (s 352(4)(b) of the 1998 Act; r 123 and r 133A of the PIC Rules). If the appeal application is lodged more than 28 days after the date of the decision appealed against, the appealing party must:
(a) as soon as practicable give notice to the other parties of the intention to seek the extension;
(b) make the extension application at the same time as the relevant application to which it relates;
(c) provide the reasons why the appeal has been lodged out of time;
(d) provide full details of the arguments in favour of granting an extension of time for the making of an appeal, and
provide details of the demonstrable and substantial injustice that losing the right to appeal would allegedly cause
15. An appeal must satisfy the monetary threshold requirements under s 352(3) of the 1998 Act. The amount of compensation at issue on the appeal must be at least $5,000 (or such amount as stipulated by the regulations) and at least 20% of the amount awarded in the decision appealed against.
On the papers
16. If the Presidential member is satisfied that sufficient information and submissions have been provided in respect of the appeal, it will be determined ‘on the papers’ without the need for an online conference (via audio or audio-visual link) or formal hearing. Appeals are usually determined on the papers.
17. For more information on determinations on the papers, see Procedural Direction PIC2 – Determination of matters on the papers
18. Leave is required to appeal against an interlocutory decision. The presidential member must be of the opinion that determining the appeal is necessary or desirable for the proper and effective determination of the dispute.
19. Where leave is required, submissions should be attached addressing the requirements of section 352(3A) of the 1998 Act.
Fresh or additional evidence
20. Fresh evidence, or evidence in addition to or in substitution for the evidence received in relation to the decision appealed against will only be accepted on appeal with the leave of the Presidential member (s 352(6) of the 1998 Act). Leave will not be granted unless the Presidential member is satisfied that:
(a) the evidence concerned was not available to the party, and could not reasonably have been obtained by the party, before the proceedings concerned, or
(b) that failure to grant leave would cause substantial injustice in the case.
21. If a party seeks to rely on fresh evidence, or evidence in addition to or in substitution for the evidence received in relation to the decision appealed against, they must provide:
(a) a schedule of the fresh, additional or substituted evidence;
(b) a copy of the fresh, additional or substituted evidence;
(c) a brief outline of the fresh, additional or substituted evidence;
(d) the reasons why the fresh, additional or substituted evidence was not in the proceedings before the member, and
(e) submissions on why the fresh, additional or substituted evidence should be admitted or rejected on appeal.
Setting out the appeal
22. The application to appeal should be set out in accordance with the below procedural requirements. A failure to comply with these requirements may result in the appeal being rejected and/or a direction for compliance being issued by the President.
Grounds of appeal
23. An appeal is limited to the determination of whether the member’s decision is affected by any error of fact, law or discretion, and to the correction of any such error. It is not a review or new hearing (s 352(5) of the 1998 Act).
24. The grounds of appeal must be clearly and succinctly stated. The grounds of appeal must identify:
(a) the respects in which error of law, fact or discretion is alleged to have occurred;
(b) any material findings it is said the member should or should not have made, and
(c) any material facts it is said the member should or should not have found.
25. It is not acceptable to merely allege that the member erred in law, fact or discretion, or that the decision is against the evidence or the weight of the evidence.
26. The appeal application must also record:
(a) whether the appeal is from the whole or only part, and which part, of the decision;
(b) the decision or order/s sought on appeal, and
(c) any costs order sought in respect of the appeal and proceedings before the member, if applicable
27. All submissions must clearly and succinctly address each ground of appeal separately. The submissions must:
(a) be divided into numbered paragraphs;
(b) appear with appropriate subheadings, associated with each ground of appeal relied on;
(c) include references to relevant legislation and case authorities, together with the relevant section, page or paragraph reference;
(d) include the relevant page number to the evidence, in the appeal documents, Application to Resolve a Dispute, Reply and/or Application to Admit Late Documents, and
(e) include the relevant page and line number to the Commission’s official transcript of proceedings.
28. The submissions must be presented in a neat, legible manner. They must be signed by the person who prepared them and have the following recorded under the signature:
(a) the name of the signatory;
(b) the signatory’s telephone number, and
(c) the signatory’s email address.
29. The appellant must attach a chronology to the appeal application. The chronology should not be limited to procedural history and should not be a chronology merely of matters of assistance to one party. It must include an objective summary of all relevant matters referred to in the evidence. The chronology should include references to the page number where the evidence is to be found in the Application to Resolve a Dispute, Reply and/or Application to Admit Late Documents.
30. In reply to the appeal application, the respondent/s may provide an alternative or supplementary chronology to that lodged by the appellant.
31. The following is a suggested form for chronologies:
1 January 2019
Worker injures back lifting a box at work
Worker’s statement – ARD, page 10
2 January 2019
Worker attends Dr Smith
Worker’s statement – ARD, page 11
List of authorities
32. A list of authorities referred to and relied on in the submissions must be attached to the submissions. The full and correct name and citation of each authority must be given. 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 decisions available on legal websites.
33. If the President is satisfied that the appeal application complies with the relevant procedural requirements, a copy of the application will be returned to the filing party with the seal of the Commission, together with a direction outlining the timetable for the filing and serving of submissions and supporting documentation.
34. The President will issue the parties with a copy of the transcript of arbitration proceedings, and oral decision if the matter was determined orally. Any supplementary submissions following receipt of the transcript/s must be lodged and served on all parties to the proceedings within 14 days of the date of issue or within such other time as stipulated by the President.
35. The appellant must serve a copy of the sealed appeal application and supporting documents on all parties to the proceedings within 7 days of registration of the appeal application or by the date referred to in the direction. The appellant must also serve a copy of the appeal application on the employer’s insurer, unless the employer is a self-insurer.
36. The appellant must lodge a Certificate of Service within seven days of the date of service of the appeal application or by the date referred to in the direction, certifying service of the sealed appeal application and direction on the other parties.
Opposing the appeal
37. The respondent/s to the appeal may respond to the appeal application by lodging a Notice of Opposition to Appeal Against Decision of Member, within 28 days of service of the appeal application or by the date referred to in the direction. The Notice of Opposition must be complete and have attached submissions dealing with the threshold and preliminary matters (see above, –). It must respond clearly and succinctly to each of the appellant’s grounds of appeal and submissions in support (using the format described above at –). The failure to lodge a Notice of Opposition may result in the appeal being considered in the absence of any submission by the respondent/s.
38. The President will return a sealed copy of the Notice of Opposition to the filing party. The respondent/s must serve a sealed copy of the Notice of Opposition on each other party by the date referred to in the direction.
39. The respondent/s must lodge a Certificate of Service within seven days of the date of service of the Notice of Opposition or by the date referred to in the direction, certifying service of the sealed Notice of Opposition and supporting documents on all other parties.
Notice of contention
40. If the respondent wishes to contend that the decision should be affirmed on grounds other than those relied on by the member, but does not seek a discharge or variation of any part of that decision, it must lodge and serve a Notice of Contention with the Commission, at the same time the Notice of Opposition is lodged.
41. The Notice of Contention must state, briefly but specifically, the grounds relied on and submissions in support of the contention (using the format described above at –). Submissions made in respect of a Notice of Contention must be made in a separate document or under a clear separate heading to submissions made in respect of a Notice of Opposition.
Reply by the appellant
42. The appellant must lodge and serve on each other party any submissions in reply to the Notice/s of Opposition and Notice of Contention (if applicable), within 14 days of service of the Notice/s of Opposition and Notice of Contention or by the date referred to in the direction. Submissions made in respect of a Notice of Contention must be made in a separate document or under a clear separate heading to submissions made in respect of a Notice of Opposition.
43. The appellant must also lodge a Certificate of Service certifying service of submissions in reply on each other party within 7 days of service.
Certification of reasonable prospects of success
44. The legal representatives for the parties must certify that their client’s case has reasonable prospects of success pursuant to section 352(7A) of the 1998 Act and clause 2 of Sch 2 of the Legal Profession Uniform Law Application Act 2014. This certification appears in the Appeal Against Decision of Member and of the Notice of Opposition to Appeal Against Decision of Member.
45. If the appellant seeks to discontinue the appeal or the respondent seeks to discontinue their Notice of Contention prior to determination by a Presidential member, that party must lodge and serve on all other parties an Election to Discontinue Proceedings
46. An appeal or Notice of Contention against a decision of a member is determined by a Presidential member.
47. The Presidential member may issue directions as to the future conduct of the appeal or Notice of Contention. This may include whether further submissions are required and/or whether the matter will proceed to an online conference and/or a hearing. If the matter proceeds to an online conference or hearing the parties will be informed by way of notice.
48. A hearing can be conducted in person or via audio-visual link, as the circumstances dictate. The parties’ legal representatives must attend any hearing before the Commission.
49. If the appeal or Notice of Contention is determined on the papers or the decision is reserved following hearing, the President will advise the parties of the decision in writing as soon as practicable after it is made. Where the Presidential member refuses to grant leave to appeal, the reasons for the decision will be given in writing.
50. The Commission will publish decisions in accordance with section 58 of the PIC Act and rules 131-132 of the PIC Rules.
Questions of law
51. The referral of a question of law is made by lodging in the Commission an Application for Leave to Refer a Question of Law. It may be made on application by a party to the proceedings before a member or of the member’s own motion (s 351(2) of the 1998 Act). However, only a member may refer a question of law to the President for consideration.
52. An application must be made as soon as practicable and prior to final determination of the matter by the member. 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).
53. In determining whether to refer the application to the President for consideration, the member may seek submissions from each party. If the member determines not to refer the application to the President, the parties to the proceedings will be provided with reasons for that decision.
54. If the member decides to refer the application to the President (either on application of a party or by his or her own motion) 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. 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.
55. The Authority has a right to be heard in any proceedings before the Commission, pursuant to section 47 of the PIC Act. If the Authority wishes to intervene in the proceedings for referral of a question of law, it must advise the Commission and the parties in writing within 14 days of receipt of the sealed application.
56. 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 member continuing to exercise his or her functions in respect of the resolution of the dispute before the application is determined.
Leave by the President
57. 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).
58. 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.
59. The President will usually determine the application on the papers. If the matter proceeds to an online conference (via audio or audio-visual link) 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. A hearing can be conducted in person or via audio-visual link, as the circumstances dictate.
60. The President will issue a written decision on the application, which will be published in accordance with the PIC Act and PIC Rules.
Proceedings before the member
61. The member will continue to progress the dispute proceedings while the application is before the President. The member 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 member’s jurisdiction to make a determination (s 351(5) of the 1998 Act).
62. The President’s decision on the application will be remitted to the member who referred the question, to resolve any outstanding matters.
63. Any award made in the matter before the question of law was determined 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 member may issue a direction inviting the parties to be heard on the terms of the variation of the award.
64. If the member had not made an award, the proceedings will continue before the member as soon as possible. If the matter proceeds to a determination by the member, any award must be consistent with the opinion of the President on the question of law.
65. 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.