Procedural Direction WC7 – Reconsiderations of decisions of the Commission
This Procedural Direction sets out the procedure in relation to an application to reconsider a matter that has been dealt with by the Commission in the Workers Compensation Division.
This Procedural Direction applies to: Workers Compensation Division
Date of commencement: 16 August 2022
Note: Ensure that you are using the latest version of this Procedural Direction. The most up-to-date version of all Procedural Directions are available at www.pi.nsw.gov.au. Other Procedural Directions may apply.
1. This Procedural Direction sets out the procedure in relation to an application to reconsider a matter that has been dealt with by the Commission in the Workers Compensation Division.
2. Section 57 of the PIC Act provides that the Commission may reconsider any matter that has been dealt with by the Commission in the Workers Compensation Division, and rescind, alter or amend any decision previously made or given in that division.
3. This Procedural Direction is made by the President under section 21 of the Personal Injury Commission Act 2020 (the PIC Act).
4. 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.
5. Nothing in this Procedural Direction prevents the President or a member directing a party to take any appropriate step in proceedings.
6. 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).
Lodgement and service
7. There is no applicable Form for a reconsideration application. It may be lodged by letter, setting out the grounds for the reconsideration and the orders sought. It should be made as soon as practicable after the party becomes aware of the basis for seeking a reconsideration.
8. The reconsideration application will be accepted if the President is satisfied that it complies with the relevant procedural requirements. The parties will be notified in writing whether the reconsideration application is accepted.
Submissions in support
9. Submissions must be attached, divided into numbered paragraphs with appropriate subheadings, addressing:
(a) each ground for reconsideration;
(b) where relevant, the circumstances that justify any delay in the making of the reconsideration application, and
(c) where relevant, why the decision should be reconsidered, rather than appealed;
(d) include references to relevant legislation and case authorities, together with the relevant section, page or paragraph reference, and
(e) include the relevant page or paragraph reference to the evidence.
10. The applicant must include the date of service of the reconsideration application on the other parties to the dispute.
11. If a party seeks to rely on fresh evidence, additional evidence or substituted evidence in relation to a ground for reconsideration, they must provide:
(a) a schedule of the evidence, including the author and date of the evidence;
(b) a clear copy of the evidence;
(c) submissions as to why the evidence is fresh evidence or evidence in addition to or in substitution for the evidence received in relation to the decision made, and
(d) submissions as to why the evidence was not available to, and could not reasonably have been obtained by, the party before the decision was made.
Responding to an application
12. The other parties may respond to the reconsideration application by lodging and serving a reply within 21 days of service of the application.
13. The reply may be by letter setting out submissions dealing clearly and succinctly with each of the ground/s for reconsideration and submissions in support. The failure to lodge a reply may result in the reconsideration application being considered in the absence of any submissions by the respondent/s.
Consideration of applications
14. On the expiry of the 21-day period for reply, or on the receipt of submissions in response (whichever occurs first) the matter will be referred to a member for consideration. The matter will usually be referred back to the original member who determined the dispute, unless that member is unavailable or inappropriate.
15. The following matters may be considered in deciding the reconsideration application:
(a) the objects of the Commission under ss 3 and 42 of the PIC Act;
(b) the reason for and extent of any delay in bringing the application;
(c) any fresh evidence, additional evidence or substituted evidence, that could not have reasonably been obtained prior to the decision and which would have likely led to a different result if before the original decision maker;
(d) the public interest in finality of litigation;
(e) that mistake or oversight by a legal representative or agent may not, in itself, be determinative of whether relief should be granted, and
(f) the interests of justice.
16. Reconsideration applications are generally determined on the papers. However, in some circumstances a direction may be issued for further information or an online conference (via audio or audio-visual link) or in person hearing may be held. The President will advise the parties of the relevant time and place of any online conference or in person hearing.
17. The Commission will issue the reconsideration decision in writing as soon as practicable after it is made.
18. The Commission will publish decisions consistent with s 58 of the PIC Act and rr 131 and 132 of the PIC Rules.