Compensation Court Act 1984 Rule amending Compensation Court Rules 1990 (1995-120) [GG No 28 of 10.3.1995] (NSW)
1995—No. 120
COMPENSATION COURT ACT 1984—RULE
NEW SOUTH WALES
[Published in Gazette No. 28 of 10 March 1995]
1. This rule was made by the Rule Committee on 7 December 1994.
2. The Compensation Court Rules 1990 are amended as follows:
| (a) | Part 1, rule 4, after “PART 6—PARTIES AND CLAIMS” |
insert:
“Division 1—General—rr. 1–19
| ||
| (b) | Part 1, rule 4, after “PART 8—SERVICE” insert: “Division1—General—rr. 1–17 |
Division 2—Service in Foreign Country—rr. 18-22”.
| (c) | Part 1, rule 4, after “PART 12—SETTING DOWN FOR | |||
| HEARING, CALL-OVER AND PRE-HEARING CONFERENCE” insert: | ||||
|
EVALUATION”.
| (d) | INSPECTION OF PROPERTY, ETC. |
Part 1, rule 4, after “PART 20—MEDICAL EXAMINATIONS, “Division 1A—Medical Referees and Medical Panels—rr. 5A”,
(e) Before Part 6, rule 1 insert “Division 1—General”.
(f) After Part 6, rule 19 insert the following Division:
Division 2—Minors and Disable Persons
Definitions
20. In this Division:
“disable person” means a minor or an incompetent person.1995—No. 120
“minor” means a person under the age of 18 years.
“tutor” means a next friend or guardian ad litem of a disable
person.
Reference to tutor
21. Where it is necessary to refer to the office of a tutor, he shall be described as a tutor unless it is necessary to distinguish between the offices of next friend and guardian ad litem.
Need for tutor
22. (1) Subject to section 23 and subrule (3), a disable person may not, except by his next friend, bring or make a claim or carry on any proceedings for relief in the Court.
(2) Subject to subrule (3), a disable person may not, except by his guardian ad litem:
(a) defend any proceedings;
(b) intervene in any proceedings; or
(c) appear in any proceedings under a judgment or order.(3) Where, in any proceedings, a disable person has a tutor, the
disable person may, by his tutor, commence, carry on or defend
any third or subsequent party proceedings.
Conduct of Proceedings by tutor
23. (1) Subject to the rules, where a disable person is a party to any proceedings, anything which would, if he were not a disable person, be required or authorised by the rules to be done by him shall or may be done by his tutor.
(2) A tutor must act by a solicitor.
Appointment of tutor generally
24. (1) Subject to subrule (5), and subject to rules 25 and 27, an order appointing a tutor is not necessary.
(2) A disable person may not be a tutor and a corporation may not be a tutor, but otherwise, and subject to subrule (3), any person may be a tutor.
(3) A person may not be a tutor of a disable person in any proceedings in which he has an interest adverse to the interest of the disable person.
(4) A person shall not be made a tutor without his consent. (5) Where a person has been or is tutor for a disable person in
any proceedings, no other person may, except on appointment by the Court, act as tutor for the disable person in those proceedings.
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(6) A person, other than a tutor appointed by the Court, shall not take any step in any proceedings as tutor for a disable person unless beforehand there have been filed:
(a) his consent to act; and
(b)
a certificate by his solicitor that the tutor has no interest in the proceedings adverse to that of the disable person.
Appointment of tutor of incompetent person
25. (1) Where an incompetent person has a curator and the curator has or may be given authority, under the Protected Estates Act 1983, to bring or defend proceedings on behalf of the incompetent person, a person other than the curator shall not, unless the Court otherwise orders, act as tutor of the incompetent person in proceedings which the curator has or may be given authority to bring or defend.(2) Subrule (1) shall not apply to the Deputy Protective Commissioner while he has, under section 5 (5) of the Protected Estates Act 1983, the functions conferred and imposed upon the Protective Commissioner by or under that or any other Act or law.
(3) Where, after the commencement of proceedings, a party becomes an incompetent person, no step in the proceedings shall be taken by or against the incompetent person until a tutor for him has been appointed by the Court.
(4) A person shall not take any step in any proceedings as tutor for an incompetent person unless he has been appointed tutor by the Court or unless there has been filed (in addition to the documents mentioned in rule 24 (6)):
(a)
in a case to which subrule (1) applies, a certificate by the tutor that he is curator for the incompetent person and specifying the date on which and the manner by which he became curator; or
(b)
in a case to which subrule (1) does not apply, a certificate by his solicitor that he knows or that he believes that subrule (1) does not apply and giving the grounds of his knowledge or belief.
Non-appearance by disable person
26. Where originating process in any proceedings has been served on a disable person, a party to the proceedings shall not take any further step in the proceedings affecting the disable person until a tutor for the disable person appears on the record or is appointed by the Court under rule 27.
1995—No. 120
Appointment by the Court
27. (1) The Court may, on motion by a party to proceedings or any other person, appoint a tutor for a disable person for the purposes of the proceedings.
(2) A person moving for an appointment under this rule shall, unless the Court otherwise orders, serve notice of the motion on the disable person.
(3) The evidence on a motion for an appointment under subrule (1) shall include evidence:
(a)
that the person for whom the tutor is proposed to be appointed is a disable person;
(b)
where the proposed tutor is the registrar, that the applicant has no knowledge of any other proper person to be appointed; and
(c)
where the proposed tutor is not the registrar, that the proposed tutor:
(i) consents to act;
(ii) is a proper person for appointment;
(iii) has no interest in the proceedings adverse to the interest of the disable person; and
(iv) that the disable person is in default of appearance,
if that is the fact.
Removal
28. (1) The Court may, on motion by a party to proceedings or by any other person or of its own motion:
(a) remove a tutor; and
(b) stay the proceedings until appointment of a tutor in place of the tutor removed. (2) A person moving for an order under this rule shall, unless the Court otherwise orders, serve notice of the motion on the tutor whose removal is sought and on the disable person for whom he is tutor.
Compromise, etc, of matter in suit
29. (1) Where proceedings have been commenced, and afterwards an agreement is made by the tutor in the proceedings of a disable person for the compromise or settlement of any matter in dispute in the proceedings, the Court may approve or
disapprove the agreement.
1995—No. 120
(2) An agreement approved by the Court under subrule (1) is as
binding on the disable person as if the disable person were not a
disable person and his tutor were his agent to make the agreement.(3) An agreement disapproved by the Court under subrule (1) is
not binding on the disable person.
Terms of approval30. (1) The Court may give its approval under rule 29 on terms. (2) Without affecting the generality of subrule (1), the Court:
(a)
may, as a term of its approval, require that any money or other property payable or applicable to or for the benefit of a disable person be dealt with by way of settlement or otherwise as the Court thinks fit for the benefit of the disable person; and
(b)
may make such orders as it thinks fit for the carrying out of its requirements under paragraph (a).
Service
31. (1) This rule applies where, in any proceedings, a document is required to be served on a disable person.
(2) Service on a disable person shall not be affected otherwise than in accordance with this rule.
(3) Where the disable person has a tutor or a solicitor in the
proceedings, the document may be served on the tutor or solicitor.
(4) The document may be served on any person (including thedisable person) whom the Court may, before or after service,
approve.
(5) Where the person to be served is a minor, and has no tutor in the proceedings, the document may be served:
(a) if he is aged 16 years or upwards, on him;
(b) on a parent of his or a guardian of his person or of his estate; or
(c) if he has no parent and has no guardian of his person or of his estate, on a person with whom he resides or in whose
care he is.(6) Where the person to be served is an incompetent person and
has no tutor in the proceedings, the document may be served:
(a) if he has a curator, on the curator; or
(b)
if he has no curator, on a person with whom he resides or in whose care he is.
1995—No. 120
(7) A document served pursuant to any of subrules (3) to (6) must be served in the manner required by the rules with respect to the document.
(8) A judgment or order requiring a disable person to do, or refrain from doing, any act, and a subpoena addressed to a disable person, must, in addition to any other service required by the rules, and notwithstanding anything in subrules (3) to (6), be served personally on the disable person.
(9) This rule does not extend the jurisdiction of the Court over a disable person absent from the State.
(g) Before Part 8, rule 1 insert “Division 1—General”.
(h) After Part 8, rule 17 insert the following Division:
Division 2—Service in Foreign Country
Application
18. This Division applies to the service of any document for the
purpose of proceedings in the Court in another country.
Requisite documents, filing and service
19. A person (in this Division called the person applying) requiring a document to be served in another country shall:
(a) file with the registrar:
(i) the document to be served;
(ii) unless English is an official language of the country concerned, a translation of the document in accordance with rule 22;
(iii) a copy of the document and of the translation; and
(iv) such further copies of the document and of the translation as the registrar may direct.
20. Where documents are filed and lodged under rule 19, the registrar shall seal the documents lodged with the seal of the court.
21. Such documents shall be served in accordance with the
Rules.
Translation
22. A translation of a document lodged under rule 19 shall:
(a)
be a translation into an official language of the country in which service is required; and
1995—No. 120
(b)
bear a certificate, in that language, of the translator, stating his qualifications and certifying that it is a translation of the document.
(i) After Part 12 insert the following Part:
PART 12A—MEDIATION AND NEUTRAL
EVALUATION
Directions
1. The Court may give directions for regulating and prescribing the practice and procedure to be followed in a mediation or neutral evaluation, including the preparation and service of documents. Mode of referral
2. The Court may refer a matter for mediation or neutral evaluation if:
(a)
a request for such referral is filed by any person who has an address for service in the proceedings with the consent of all other persons endorsed thereon; or
(b)
at any stage when the matter is before the Court all persons consent to such referral.
Selection of mediator or evaluator
3. The parties may agree:
(a) as to who is to be the mediator or evaluator; or
(b)
that the mediator or evaluator be any one of the persons on any list compiled by the Chief Judge pursuant to section 38H of the Act.
Appointments and directions by mediator or evaluator
4. A person to whom a matter is referred for mediation or neutral evaluation:
(a)
shall, within 14 days of being notified of the referral, in writing appoint a time for the mediation or neutral evaluation; and
(b)
may give directions relating to preparations for and conduct of the mediation or neutral evaluation.
Completion of referral
5. The parties and the mediator or evaluator shall conduct the referral with the object, so far as practicable, of completing the referral within 42 days.
1995—No. 120
Neutral evaluation session procedure
6. (1) Unless the evaluator otherwise directs:
(a) a neutral evaluation session shall be attended:(i) subject to subparagraph (ii), by each party or, where a party is a company, by the officer of the company having responsibility for the conduct of the proceedings; or
(ii) if the conduct of the proceedings by a party is controlled by an insurer—by the officer of the insurer having responsibility for the conduct of the proceedings;
(b) a party must be accompanied by that party’s counsel or solicitor at a neutral evaluation session; and (c) the evaluator, after hearing the parties, shall express the evaluator’s views on: (i) the degree of probability of each party succeeding in the proceedings;
(ii) the compensation or other remedy likely to be awarded to the worker, and shall express a view on the range of compensation if it is appropriate to do so.
(2) The evaluator’s views may be expressed conditionally (e.g.
“if X is accepted then A but if Y is accepted then B”)
Mediation session procedure
7. Unless the mediator otherwise directs:
(a) a mediation session shall be attended:
(i) subject to subparagraph (ii), by each party or, where a party is a company, by an officer of the company having authority to settle the proceedings; or
(ii) if the conduct of the proceedings by a party is controlled by an insurer—by an officer of the insurer having authority to settle the proceedings; and
(b)
a party shall be accompanied by that party’s counsel or solicitor at a mediation session.
Notification of conclusion of mediation or neutral evaluation
8. The mediator or evaluator shall, within 7 days of the
conclusion of the mediation or neutral evaluation, advise the Court
of the fact that the mediation or neutral evaluation has been
concluded but not of the details thereof.
1995—No. 120
| (j) | Part 20, rule 1 (l), after “examination” insert “(other than examination by a medical referee or medical panel as provided in the Compensation Act)”. |
(k) After Part 20, rule 5 insert the following Division:
Division 1A—Medical Referees and Medical Panels
Application for reference
5A. (1) An application for reference to a medical referee or medical panel shall contain information as to:
(a) whether or not the injury to which the application relates is the subject of proceedings (other than proceedings on the application) pending in the Court; and (b) whether or not the application is made pursuant to an entitlement to the reference conferred, or an obligation to apply for the reference imposed, by the Compensation Act. (2) Where an application for reference contains information to the effect that the injury to which the application relates is the subject of proceedings pending in the Court, and that the application is not made pursuant to an entitlement or obligation referred to in subrule (1) (b), the registrar shall list the application before the registrar for argument and determination, and shall advise the parties to the application of the listing.
(3) Where an application for reference contains information to the effect that:
(a)
the injury to which the application relates is not the subject of proceedings pending in the Court, and that the application is not made pursuant to an entitlement referred to in subrule (1) (b); or
(b)
the injury to which the application relates is the subject of proceedings pending in the Court, and that the application is made pursuant to an obligation referred to in subrule (1) (b),
the registrar shall endorse on the application and on sufficient
copies of an application the following matter:“If any respondent to this application objects to the reference applied for, that respondent may, within 21 days from this date, request that the application be listed before me for argument and determination. If no such request is made I will order the reference applied for.”,
1995—No. 120
and shall send a copy so endorsed to each party to the application
for reference.(4) Where an application for reference to a medical referee or medical panel is made in respect of a worker and, by operation of the Compensation Act, any certificate or report of the medical referee or medical panel may, when given or made, become conclusive evidence as to any matter relating to the worker’s condition or fitness for employment, the registrar shall endorse:
(a)
where the registrar advises the worker under subrule (2) of a listing for argument and determination, on that advice;
(b)
where the registrar makes, without listing the application under subrule (2), an order for the reference, on the notice of appointment sent to the worker; or
(c)
where the registrar sends a copy of the application to the worker under subrule (3), on that copy,
notice to the effect that the certificate or report may become such
conclusive evidence.(5) A certificate given under section 131 (4) of the Compensation Act shall be in or to the effect of the approved form.
T.J. Doubleday
Secretary, Rule Committee
Compensation Court of New South Wales.
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