Compensation Court Rules 1990 (NSW)
These rules may be cited as the Compensation Court Rules 1990.
These rules have effect on and from 1 January 1991.
The overriding purpose of these rules is to facilitate the just, quick and cheap resolution of the real issues in any proceedings.
The Court must seek to give effect to the overriding purpose when it exercises any power given to it by the rules or when interpreting any rule.
A party is under a duty to assist the Court to further the overriding purpose and, to that effect, to participate in the processes of the Court and to comply with directions and orders of the Court.
A solicitor or barrister shall not, by his or her conduct, cause his or her client to be put in breach of the duty identified in (3).
The Court may take into account any failure to comply with (3) or (4) in exercising a discretion with respect to costs.
Subject to subrule (2) and to Part 29 Division 1, the Workers’ Compensation Rules do not apply to proceedings in the Court, whether those proceedings were or are commenced before or after the commencement of these rules.
Anything done in respect of any proceedings in the Court in conformity with the Workers’ Compensation Rules before the commencement of these rules shall be as valid as if it had been done in conformity with these rules.
(Repealed)
In these rules unless the context or subject matter otherwise indicates or requires:
(i) a document or thing of which evidence could not be adduced in the proceedings over the objection of any person, by virtue of the operation of Part 3.10 Division 1 of the Evidence Act,
(ii) a document the contents or production of which would disclose:
(A) a protected confidence or the contents of a document recording a protected confidence or protected identity information, within the meaning of section 126B of the Evidence Act, where:
(I) consent by the protected confider within the meaning of section 126C of the Evidence Act has not been given to disclosure of the confidence, contents or information, and
(II) section 126D of the Evidence Act would not operate to stop Part 3.10 Division 1A of the Evidence Act from preventing the adducing of evidence in respect of the confidence, contents or information,
(B) (Repealed)
(iiA) a document of which evidence could not be adduced in the proceedings by virtue of the operation of section 126H of the Evidence Act,
(iii) where Party B is a natural person, a document or thing the contents or production of which may tend to prove that party B:
(A) has committed an offence against or arising under an Australian law or a law of a foreign country, or
(B) is liable to pay a civil penalty,
within the meaning of section 128 of the Evidence Act,
(iv) a document the admission or use of which in a proceeding would be contrary to section 129 of the Evidence Act,
(v) a document that relates to matters of state within the meaning of section 130 of the Evidence Act,
(vi) a document to which section 131 of the Evidence Act applies,
(vii) a document or thing:
(A) the disclosure of the contents of which, or
(B) the production of which, or
(C) the admission or use of which,
in the proceedings would be contrary to any Act or Commonwealth Act other than the Evidence Act or the Evidence Act 1995 of the Commonwealth.
A reference in the rules to a worker or to a dependant of a worker has the same meaning as it has when made in the 1998 Act.
A reference in the rules to an address, other than an exchange box in a document exchange, is a reference to the address including the postcode number appropriate to that address.
Where under the rules the Court may make any order or give any direction or leave or do any other thing on terms, the Court may make the order or give the direction or leave or do the thing on such terms and conditions (if any) as the Court thinks fit.
Subject to subrules (2) and (2A) and to rule 7, the practice in the Court shall be the practice provided by the Act, the Workers Compensation Acts or the rules.
The Court may if it thinks fit on terms dispense with compliance with any of the requirements of the rules, either before or after the occasion for the compliance arises.
A Practice Note issued by the Chief Judge for the speedy determination of the real questions between the parties to proceedings in general or to specific proceedings or classes of proceedings shall be taken to be a direction given by the Court under subrule (2).
(a), (b) (Repealed)
The general practice of the Court prescribed by the rules shall apply to all proceedings authorised by any existing or future Act to be commenced, taken or continued in the Court, except in so far as that practice is inconsistent with any provision of or under any such Act.
Where a person desires to commence proceedings or take any step in any proceedings, and the manner or form of procedure is not prescribed by the Act, the Workers Compensation Acts or the rules, or by or under any other Act, or the person is in doubt as to the manner or form of procedure, the Court may, on application by the person or of its own motion, give directions.
Proceedings commenced in accordance with the directions of the Court shall be well commenced.
A step taken in accordance with the directions of the Court shall be regular and sufficient.
An application for directions under this rule may be made, whether or not proceedings have been commenced, by notice of motion under Part 14.
A registrar shall seal or stamp with the seal of the Court any originating process filed with him, and any award, order, notice, certificate or other process, or any copy thereof, made, given or issued by him, and any document filed with or issued by him and required by the rules to be sealed.
There shall be a registry at Sydney and a registry at each other place the subject of a direction given by the Chief Judge for the purposes of this subrule.
The registries shall be under the control and direction of the registrar, subject to any direction by the Chief Judge or a Judge.
Except on Saturdays, Sundays and public holidays, and whether in vacation or otherwise, the registry at Sydney and at any other place shall be open to the public for business between 9.00 in the morning and 4.00 in the afternoon.
A registry shall, notwithstanding subrule (3), be kept open to the public for business, or closed for business, at such times on such days as the Chief Judge or a Judge or the registrar shall direct.
The registrar shall from time to time cause to be affixed in some conspicuous place in each of the registries a notice of the places, days and hours at which the Chief Judge has directed that the Court shall sit.
There shall be a fixed vacation and a variable vacation in each year.
The fixed vacation shall be a period of 6 weeks from the beginning of the Monday before the 24th of December.
The variable vacation shall be a period of 4 weeks regulated by the Chief Judge.
During vacation the Court shall sit on such days only, and for the hearing of proceedings of such types only, as the Chief Judge shall direct.
(Repealed)
Subject to this rule, proceedings shall be heard at Sydney.
Subject to subrules (3) and (4), where proceedings are commenced in a registry at a place other than Sydney, they shall be heard at that other place.
The Court or a registrar may, if it or he thinks fit, and with or without application by any party, order in respect of any proceedings that the proceedings be heard at a specified place other than the place at which they are required under subrule (1) and (2) to be heard, and the proceedings shall be heard at that specified place.
In making an order under subrule (3) the Court or a registrar may have regard to, but is not bound by, any desired venue for the hearing stated in the originating process filed in the proceedings.
A Judge may if he thinks fit direct that proceedings commenced to be heard before him at any place be continued before him at another place.
Nothing in this rule shall be construed as limiting any function of the Chief Judge under the Act.
A Judge, commissioner or registrar in chambers may, in respect of any proceedings, give any decision or make any order which he could lawfully give or make in court and which he considers may be properly given or made in chambers, whether those chambers are situated in Sydney or elsewhere.
A Judge, commissioner or registrar shall not proceed in chambers under subrule (1) unless he is satisfied that all parties appearing and all other persons properly interested have adequate notice of his intention so to proceed and will have adequate notice of any decision or order that he is likely to give or make in chambers.
Where in any proceedings a Judge or a commissioner reserves his decision on any question of fact or law, he may:
(a) give his decision in court at any place at which the Court is sitting, or in chambers in accordance with rule 2, or
(b) draw up his decision in writing, sign it and forward it to a registrar.
Where a registrar receives a decision forwarded to him under subrule (1) (b), he shall, after giving at least 24 hours’ notice to the parties to the proceedings, read or otherwise publish the decision at a convenient time and place specified in the notice, whether or not the Court is sitting at that place at that time.
A decision given by a Judge or a commissioner under subrule (1) (a) or read or otherwise published by a registrar under subrule (2) shall take effect on the day on which it is given, read or otherwise published and shall be as valid as if given by the Judge or a commissioner at the hearing of the proceedings to which the decision relates.
The Court may, on terms, adjourn any sittings or the hearing of any proceedings in such manner as the Court thinks fit.
Any period of time fixed by the Act or the rules, or by or under the Workers Compensation Acts, for the doing of any act in or in connection with any proceedings, or fixed by any decision or order or by any document in the proceedings, shall be reckoned in accordance with this rule.
Where a time of one day or a longer time is to be reckoned by reference to a given day or event, the given day or the day of the given event shall not be counted.
Where, apart from this subrule, the period in question, being a period of 5 days or less, would include a day on which the registry relevant to the proceedings in which the period is to be reckoned is closed, that day shall be excluded.
Where the last day for doing a thing in respect of any proceedings is a day on which the registry relevant to the proceedings is closed, and by reason thereof the thing cannot be done on that day, the thing may be done on the next day on which the registry is open.
The Court may, on terms, by order extend or abridge any time fixed by the rules or by any decision or order.
The Court may extend time under subrule (1) as well after as before the time expires, whether or not an application for the extension is made before the time expires or at all.
The period within which a person is required by the rules or by an order to serve, file or amend any document may be extended by consent, without an order for extension.
(Repealed)
Where no time is fixed by the Act or the rules, or by or under the Workers Compensation Acts, or by any decision or order of the Court, for the doing of any thing in or in connection with any proceedings, the Court may, by order, fix the time within which the thing is to be done.
In the period from the beginning of 25 December until the end of 9 January next following, time shall not, unless the Court otherwise orders, run so as to put any party in default in respect of any act for the doing of which a time is fixed by the rules or by any decision or order of the Court, but, subject to Part 2 rule 3 (2), business may be done during that period.
subject to subrule (1), the Chief Judge may, in special circumstances, by Practice Note, fix a period when time shall not, unless the court otherwise orders, run so as to put any party in default in respect of any act for the doing of which a time is fixed by the rules or by any decision or order of the Court, but subject to Part 2 rule 3 (2) business may be done during that period.
In this Part:
(a) the time and date of the occurrence of a relevant injury,
(b) the identity of the employer or person liable under the Workers Compensation Acts in respect of a relevant injury,
(c) the identity of an insurer or insurers of an employer or of a person liable under the Workers Compensation Acts, against whom a claim for workers compensation may be made in respect of a relevant injury, or
(d) the identity of the self insurer against whom a claim for workers compensation may be made in respect of a relevant injury.
Where, on application to the Court by any applicant, it appears to the Court that:
(a) the applicant, having made reasonable inquiries, is unable to ascertain a discoverable matter for the purpose of commencing proceedings in relation to a relevant injury, and
(b) some person has or may have knowledge of facts, or has or may have in that person’s possession, custody or power any document or thing, tending to assist in the ascertainment of the discoverable matter,
the Court may order that person:
(c) to attend before the Court or the registrar on a day named in the order and be orally examined on any matter relating to the discoverable matter, and
(d) to produce any document or thing in that person’s possession, custody or power relating to the discoverable matter.
Where, on application by any applicant, the matters mentioned in subrule (1) (a) appear to the Court and it further appears to the Court that a corporation has or may have in its possession, custody or power any document or thing tending to assist in ascertainment of a discoverable matter, the Court may order the corporation or any officer of the corporation to produce any document or thing in the possession, custody or power of the corporation relating to the discoverable matter.
An applicant may apply for orders under rule 2 by notice of motion under Part 14 supported by affidavit, without making any person a respondent.
An application under rule 2 before a Registrar shall be referred to the Court on application by any party.
An order under rule 2 shall be served within a reasonable time on the person ordered to attend or to produce any document or thing.
An order under rule 2 shall not require a person to attend or to produce any document or thing on any day on which that person’s attendance, or production by that person, is required, unless an amount sufficient to meet the reasonable expenses of complying with the order in relation to that day is paid or tendered to that person at the time of service of the order or not later than a reasonable time before that day.
Where an order under rule 2 requires a corporation to produce any document or thing, the amount mentioned in subrule (1) may be paid or tendered to any person apparently in the service of the corporation and apparently of or above the age of sixteen years.
Where any person incurs expense or loss in complying with an order under rule 2 in an amount substantially exceeding any amount paid under rule 4, the Court or the registrar before whom the person complies with the order may order the applicant for the order to pay to the person an amount sufficient to make good the expense or loss.
The Court may order that any failure to comply with an order under rule 2 be dealt with as a failure to comply with a subpoena.
For the purposes of this Part, a document shall be privileged from production if it is a privileged document or thing.
Except as otherwise provided in the rules or by or under any Act, the originating process in respect of any proceedings shall be an application for determination.
For the purpose of service an originating process shall be valid until the expiration of 2 months after the date on which it is filed or for such further period as the Court may direct.
Nothing in this rule prevents the Court from making an order striking out any proceedings on the grounds of undue delay by the applicant or appellant in serving the originating process.
Nothing in this rule prevents an applicant or appellant from commencing fresh proceedings by lodging another originating process.
Proceedings shall be commenced when the originating process in respect of the proceedings is filed.
Without limiting the generality of rule 1, but subject to this Part, proceedings:
(a) under section 224 (1) or 225 (3) of the 1998 Act in respect of the Uninsured Liability and Indemnity Scheme,
(b) for an order for further expenses under section 62 of the 1987 Act,
(c) for a review of a weekly payment under section 55 of the 1987 Act,
(d) for the commutation of a weekly payment under section 51 of the 1987 Act,
(e) under section 16 of the Workers Compensation (Bush Fire, Emergency and Rescue Services) Act 1987 in respect of bush fire fighters’ compensation,
(f) under section 21 of the Police Regulation (Superannuation) Act 1906, and
(g) under section 29 of the Sporting Injuries Insurance Act 1978,
(h) by way of appeal under section 8I of the Workers Compensation (Dust Diseases) Act 1942,
shall be commenced by the filing of an application for determination.
This rule is made pursuant to section 106G of the 1987 Act.
This rule applies to “existing claims” under the 1987 Act as defined in section 87D of the said Act and as may be amended by any regulation duly made under the said Act pursuant to section 87D (2).
A party seeking to commence any proceeding in respect of any such claim shall file with the initiating process either:
(a) a certificate of compliance in the form stipulated by subrule (6) of this rule certifying that the commencement of such proceeding is not contrary to the provisions of sections 106D, 106E, or 106F of the said Act as the case may be, or
(b) a copy of a certificate of the Senior Conciliation Officer or conciliation officer issued pursuant to section 98D regarding the conciliation of the dispute the subject of the proposed proceeding.
Where the certificate of the Senior Conciliation Officer or conciliation officer filed with the initiating process does not expressly deal with all elements sought to be recovered in the proposed proceeding the party seeking to commence proceedings shall file with it a certificate of compliance in relation to all other elements.
Any initiating process not accompanied by such appropriate certificate or certificates shall not be accepted for filing.
Such certificates of compliance shall be in or to the effect of the approved form or such portion or portions thereof as may be relevant to the particular matter.
This rule ceases to operate, and is deemed rescinded, if and when the category of “existing claims” ceases to exist pursuant to any regulation duly made pursuant to subsections (2) and (3) of section 87D.
Where, leave of the Court having been previously obtained, a party seeks to file as amended application for determination adding an additional party or parties to the current proceedings than the provisions of this rule apply mutatis mutandis in respect of the proposed applications against such added party or parties.
This rule applies in respect of all initiating process presented for filing on or after 27 June 1997 and before 11 December 1998.
This rule is made pursuant to section 106FE of the 1987 Act.
This rule applies to “new claims” under the 1987 Act as defined in section 87D of the said Act.
A party seeking to commence any proceeding in respect of any such claim shall file with the initiating process either:
(a) a copy of a certificate of conciliation outcome issued by the Principal Conciliator or a conciliation officer pursuant to section 98D, or
(b) a copy of the notification by a conciliation officer under section 104 (3) in relation to the dispute which is the subject matter of the proposed proceeding, and/or
(c) a certificate of compliance in the form stipulated by subrule (6) of this rule certifying that the commencement of such proceedings is not contrary to the provisions of section 106FB, 106FC or 106FD of the said Act as the case may be.
Where the certificate of the Principal Conciliator or conciliation officer or the notification under section 104 (3) filed with the initiating process does not expressly deal with all elements sought to be recovered in the proposed proceeding the party seeking to commence proceedings shall also file with the initiating process a certificate of compliance in relation to all other elements.
Any initiating process not accompanied by such appropriate certificate, certificates and/or notification shall not be accepted for filing.
Such certificate of compliance shall be in or to the effect of the approved form or such portion or portions thereof as may be relevant to the particular matter.
Where, leave of the Court having been previously obtained, a party seeks to file as amended application for determination adding an additional party or parties to the current proceedings than the provisions of this rule apply mutatis mutandis in respect of the proposed applications against such added party or parties.
This rule applies in respect of all initiating process presented for filing on or after 27 June 1997 and before 11 December 1998.
This rule is made pursuant to section 104 of the 1998 Act.
This rule applies to claims for compensation referred to in sections 101, 102 and 103 of the 1998 Act.
A party seeking to commence any proceeding in respect of any such claim shall file with the initiating process either:
(a) a copy of a conciliation certificate issued by the Principal Conciliator or a conciliation officer pursuant to section 84 indicating that conciliation was wholly or partially unsuccessful, or
(b) a copy of the notification by a conciliation officer under section 95 (4) in relation to the dispute which is the subject matter of the proposed proceedings, and/or
(c) a certificate of compliance in the form stipulated by sub-rule (6) of this rule certifying that the commencement of such proceedings is not contrary to the provisions of section 101, 102 or 103 of the said Act as the case may be.
Where the certificate of the Principal Conciliator or conciliation officer or the notification under section 95 (4) files with the initiating process does not expressly deal with all elements sought to be recovered in the proposed proceeding the party seeking to commence proceedings shall also file with the initiating process a certificate of compliance in relation to all other elements.
Any initiating process not accompanied by such appropriate certificate, certificates and/or notification shall not be accepted for filing.
Such certificate of compliance shall be in or to the effect of the approved form or such portion or portions thereof as may be relevant to the particular matter.
Where, leave of the Court having been previously obtained, a party seeks to file an amended application for determination adding an additional party or parties to the current proceedings then the provisions of this rule apply mutatis mutandis in respect of the proposed applications against such added party or parties.
This rule applies in respect of all initiating process presented for filing on or after 11 December 1998.
In this rule,
The application for determination to commence proceedings under the Act shall contain particulars of the orders sought.
In proceedings under the Act in relation to a decision of:
(a) the SAS Trustee Corporation—that Corporation, or
(b) the Commissioner of Police—that Commissioner,
shall be a respondent to the proceedings.
Notwithstanding Part 11 rule 3, in proceedings under the Act any answer filed under that rule shall contain a statement as to whether the respondent consents to the orders sought (or any of them), and any grounds on which the respondent opposes the making of any of the orders sought.
(Repealed)
In proceedings under the Act, the registrar shall:
(a) where an answer is filed, after the expiry of 21 days after the filing of the answer, or
(b) where no answer is filed, after the expiry of 21 days after the last day for filing the answer,
list the proceedings before a Judge for a directions hearing.
On a directions hearing the Judge may make orders concerning the conduct of the proceedings, which may include an order fixing a hearing date.
The WorkCover Authority shall be a necessary party to any application under section 224 (1) or 225 (3) of the 1998 Act.
Where a matter or question for determination by the Court under the Uninsured Liability and Indemnity Scheme is already the subject of proceedings, proceedings to determine the matter or question may be commenced by notice of motion under Part 14 in the proceedings already before the Court.
Where a worker who has commenced proceedings for compensation seeks to apply for an order under section 62 (6A) of the 1987 Act he may so apply by notice of motion under Part 14 in the proceedings.
An application for an order for suspension of a weekly payment, or for a declaration that a worker’s right to take or prosecute any proceedings under the 1998 Act has been suspended, until, pursuant to section 120 of that Act, the worker submits to medical examination may be made, whether or not proceedings have been commenced in respect of the subject matter to which the weekly payment relates, by notice of motion under Part 14.
An application objecting to a reference to a medical referee or medical panel pursuant to Part 20 rule 5A (3) shall be made by notice of motion under Part 14 in any case proceeding in relation to the subject medical dispute, or otherwise by summons under rule 11A.
The following applications shall be made by notice of motion under Part 14 where proceedings are pending in relation to the subject matter of the application:
(a) for contribution pursuant to sections 15, 16 or 17 of the 1987 Act,
(b) for indemnification pursuant to section 20 of the 1987 Act,
(c) for apportionment pursuant to sections 22 or 22A of the 1987 Act, and
(d) for a determination pursuant to section 22B of the 1987 Act.
It shall not be necessary to endorse a return date on any notice of motion filed pursuant to subrule (1).
Where there are no proceedings pending in relation to the subject matter of an application under subrule (1), proceedings shall be commenced by application for determination.
An application for a determination of the Court under section 53 of the 1987 Act shall be commenced by notice of motion under Part 14, supported by affidavits.
The affidavits mentioned in subrule (1) shall include affidavits by the worker and a medical practitioner who has examined the worker.
The affidavits mentioned in subrule (1) shall verify:
(a) the circumstances in which the application is made,
(b) the age and a description of the applicant sufficient to identify him,
(c) particulars as to the injury, the nature and extent of the incapacity resulting from the injury, and the history and treatment of the worker since the injury,
(d) the amount and duration of the weekly payment,
(e) the worker’s present and proposed places of residence, and
(f) the detail of any award or previous proceedings in respect of the injury.
Proceedings under Part 21 rule 12 (2) shall be commenced by notice of motion under Part 14, supported by affidavits.
This Division applies to proceedings commenced by summons.
For the purposes of Division 1 of Part 5, a Summons is an originating process.
The procedure for the hearing and disposal of a Summons shall be as near as practicable to that applicable to the hearing and disposal of a notice of motion in accordance with the provisions of Part 14 (2), (3), (4) and (5).
The following proceedings shall be commenced by summons where no proceedings have been commenced in relation to the subject matter in dispute:
(a) for an order for costs pursuant to section 112 (7) of the 1998 Act,
(b) (Repealed)
(c) for revocation of a direction of a conciliator for payment of weekly payments pursuant to section 97 (2) of the 1998 Act,
(d) for an order for refund of weekly payments pursuant to section 58 of the 1987 Act,
(e) for any order or other relief relating to discontinuation of payments pursuant to section 52A of the 1987 Act,
(f) for apportionment between dependents pursuant to section 29 of the 1987 Act or for variation of any previous apportionment pursuant to section 30 of the 1987 Act,
(g) where liability has been admitted, for an order for payment in respect of dependent children pursuant to section 31 of the 1987 Act,
(h) for variation in the manner in which the Public Trustee invests, applies, pays out or otherwise deals with money paid to the Public Trustee pursuant to section 85 of the 1987 Act. The Public Trustee shall be made a respondent to any such application, and
(i) for any order, direction or authorisation in respect of the payment of compensation pursuant to sections 83, 85, and 85A of the 1987 Act.
This Division applies to an appeal to the Court brought under any existing or future Act other than the Act or the Workers Compensation Acts, and so applies subject to any provision of or under the Act under which the appeal is brought.
The originating process for the commencement of an appeal to which this Division applies shall be a notice of appeal.
A notice of appeal mentioned in subrule (1) shall contain:
(a) particulars of the decision appealed against,
(b) particulars of the grounds of appeal on which the appellant intends to rely, or a reference to the affidavit in which those particulars are contained, and
(c) where it is not intended to serve the notice of appeal on any person, a statement to that effect.
The appellant at the time of lodging a notice of appeal as mentioned in subrule (1) shall also lodge:
(a) a copy of the application or other originating process which was before the authority which made the decision appealed against, and
(b) a copy of the decision or determination the subject of the appeal.
An appeal to which this Division applies shall be commenced within 28 days after the decision appealed against, or within such further time as may be ordered by the Court.
A notice of appeal mentioned in rule 13 shall, unless service is dispensed with by order of the Court made at or before the hearing, be served on every respondent to the appeal.
A party to an appeal to which this Division applies who intends to rely on any affidavit shall file the affidavit and serve it on each other party to the appeal (except a party on whom service of the notice of appeal is dispensed with as mentioned in rule 15) in sufficient time before the hearing to enable that other party to reply on affidavit, or within such period as the Court may order.
A respondent to an appeal to which this Division applies:
(a) who files an affidavit in the appeal shall include in the first affidavit so filed an address for service, or
(b) who does not file such an affidavit shall, before being heard in the appeal, file and serve on the appellant a notice of appearance.
Where in respect of an appeal to which this Division applies:
(a) a respondent has filed an affidavit or notice of appearance, or
(b) no respondent has filed an affidavit or notice of appearance, and the appellant has filed an affidavit of service of the notice of appeal showing that the notice of appeal was served on a respondent more than 14 days previously,
the registrar shall set the appeal down for call-over or mention for the purpose of fixing a hearing date, and shall advise the parties of the setting down.
The provisions of this rule apply subject to any order of the Court.
Except as provided in this Division, the procedures to be observed in respect of an appeal to which this Division applies shall be the procedures prescribed in respect of proceedings commenced by application for determination, subject to such modifications to those procedures as may be necessary to give effect to this rule.
In this Division:
An application for leave may be made by notice of motion under Part 14.
An application for leave must be filed and served within 14 days of the date on which the decision sought to be appealed against was given, or within such extended time as the Court may fix.
In addition to service on any respondent to the application, the applicant must serve the application for leave on the proper officer of the Supreme Court.
The Court may extend the time prescribed in subrule (2) at any time.
The applicant for leave must file with, or include in, the notice of motion or a supporting affidavit:
(a) a statement of the points on which the applicant objects to the decision of the assessor,
(b) a statement of the reasons why leave should be given,
(c) all of the documents which were submitted by the parties for the consideration of the assessor, or copies of those documents, and
(d) where the assessor has given reasons for the decision sought to be appealed against, a copy of those reasons.
On the day fixed for the hearing or adjourned hearing of the application, the Court may proceed to hear and determine the application or may adjourn it to another day.
The Court may, whether or not it adjourns the application, require any party to produce any relevant document in the party’s possession or control, or to provide further particulars as to the party’s case in the application.
Nothing in this rule prevents the Court from dealing with the application in chambers.
Where the Court grants leave to appeal under section 208M (3) of the subject Act, it may give directions as to the extent, if any, to which matter which was before it, and decisions made by it, on the application for leave are admissible or binding on the hearing of the appeal, and may:
(a) proceed immediately to hear and determine the appeal, or
(b) give such directions as to filing and service of documents, conferences, fixing of a hearing date, and any other matter as appear requisite for the hearing and determination of the appeal.
If the Court so orders, an appeal may be heard and determined in chambers.
In this Part,
An applicant may, in one proceedings, apply for relief against the same respondent in respect of more than one claim.
Two or more persons may be joined as applicants or respondents in any proceedings:
(a) where:
(i) if separate proceedings were brought by or against each of them, as the case may be, some common question of law or fact would arise in all the proceedings, and
(ii) all rights claimed in the proceedings (whether they are joint, several or alternative) are in respect of or arise out of the same death or injury, or series of deaths or injuries, or
(b) where the Court gives leave so to do.
Where, in any proceedings, the applicant claims relief to which any other person is entitled jointly with him:
(a) all persons so entitled shall be parties to the proceedings, and
(b) any of them who does not consent to being joined as an applicant shall be made a respondent.
Subrule (1) applies subject to any Act, and subject to section 62 of the Bankruptcy Act 1966 (Commonwealth), and applies unless the Court gives leave to the contrary.
The Court may grant leave under rule 3 before or after the joinder and may grant leave under rule 4 (2) before or after the non-joinder.
An applicant may apply for leave under rule 3 or rule 4 either before or after lodging his originating process and may so apply without serving notice of the motion on any person on whom the originating process has not been served.
Where, in any proceedings, a respondent is jointly liable with some other person and also severally liable, that other person need not be made a respondent in the proceedings.
Where persons are jointly, but not severally, liable in respect of a death or injury and proceedings in respect of that death or injury are commenced against some but not all of those persons, the Court may, on the application of any respondent in the proceedings, by order stay the proceedings until the other persons so liable are added as respondents.
Where an insurer under a policy of insurance or indemnity issued to an employer is entitled to defend, or make any application in, any proceedings in the name of the employer, but in respect of part only of the subject of the proceedings, the Court may if it thinks fit, on terms, at any stage of the proceedings grant leave to the employer to appear separately and be separately represented in respect of that part.
Where the Court grants leave under subrule (1) to an employer in respect of a part of the subject of any proceedings, any document subsequently filed by or in the name of the employer in the proceedings shall clearly identify the part, including any period of insurance, in respect of which it is filed.
Where any joinder of parties or claims may embarrass or delay hearing of the proceedings or is otherwise inconvenient, the Court may order separate hearings or make such other order as the Court thinks fit.
No proceedings shall be defeated by reason of the misjoinder of a party or the non-joinder of any person as a party.
The Court may in any proceedings determine the issues or questions in dispute so far as they affect the rights and interests of the parties.
Where a person who is not a party to any proceedings:
(a) ought to have been joined as a party, or
(b) is a person whose joinder as a party is necessary to ensure that all matters in dispute in the proceedings may be effectually and completely determined and adjudicated upon,
the Court, on application by him or by any party or of its own motion, may, on terms, order that he be added as a party and make orders for the further conduct of the proceedings.
Where a party:
(a) has been improperly or unnecessarily joined, or
(b) has ceased to be a proper or necessary party,
the Court, on application by any party, or of its own motion, may, on terms, order that he cease to be a party and make orders for the further conduct of the proceedings.
Where a party dies or becomes bankrupt but a claim in the proceedings survives, the proceedings shall not abate by reason of the death or bankruptcy.
Where the interest or liability of a party passes by assignment, transmission, devolution or otherwise to another person, the Court may make orders for the addition, removal or re-arrangement of parties and may make orders for the further conduct of the proceedings.
The Court may act under subrule (2) on application by a party, or by a person to whom the interest or liability passes, or of its own motion.
Without limiting the generality of the powers of the Court under rules 10, 11 and 12, orders under those rules for the further conduct of proceedings may include orders relating to:
(a) service of the order and other documents in the proceedings,
(b) amendment,
(c) the filing of answers by added respondents, and
(d) substitution of one party for another party or a former party.
Where the Court orders that a party be substituted for another party or a former party, all things done in the proceedings before the making of the order shall, unless the Court otherwise orders, have effect in relation to the new party as those things had effect in relation to the old, but the filing of an answer by the old party shall not dispense with the filing of an answer by the new party.
Subject to subrule (2), where a new party is added pursuant to an order under rule 10 or rule 12, the date of commencement of the proceedings so far as concerns him shall be the date of filing of the originating process amended to add him as a party, or, where an amended originating process is not filed, the date of the amendment adding him as a party.
Where:
(a) a party dies but a claim in the proceedings survives his death, and
(b) an order under rule 12 for the addition of a party in substitution for the deceased party is not made within 3 months after the death,
the Court may, on application by a party or by a person to whom liability on the claim survives on the death, order that, unless within a specified time after service of the order in accordance with subrule (2), a party is added in substitution for the deceased party, the proceedings shall be dismissed so far as concerns any claim for or against the person to whom the claim in the proceedings or the liability thereon, as the case may be, survives on the death.
On making an order under subrule (1), the Court shall give such directions as it thinks fit for service of the order on the persons (whether parties or not) interested in continuing the proceedings.
An executor or administrator may continue or defend proceedings in like manner as if he were a party claiming or defending in his own right.
Where in any proceedings (other than proceedings commenced under rule 17) it appears to the Court that a deceased person was interested, or that the estate of a deceased person is interested, in any matter in question in the proceedings and that he has no personal representative, the Court may, on the application of any party:
(a) order that the proceedings continue in the absence of a person representing the estate of the deceased person, or
(b) by order (with the consent of the person appointed) appoint a person to represent that estate for the purpose of the proceedings.
An order under subrule (1), and any decision or order subsequently given or made in the proceedings, shall bind the estate of the deceased person to the same extent as the estate would have been bound had a personal representative of the deceased person been a party to the proceedings.
Before making an order under this rule, the Court may require notice of the application for the order to be given to such (if any) of the persons having an interest in the estate as the Court thinks fit.
In proceedings for the benefit of dependants in the case of the death of a worker, the following persons shall be joined as respondents:
(a) the personal representative (if any) of the worker, if that personal reprentative is not already an applicant,
(b) if the proceedings are brought by or on behalf of some only of the dependants, the other dependants, and
(c) any other person claiming to be a dependant.
(Repealed)
Where an injured worker dies leaving no dependants, proceedings to recover his reasonable burial or cremation expenses may be continued:
(a) by the personal representative of the worker, or
(b) by any person to whom any such expenses are due or who has paid any such expenses.
In proceedings brought under subrule (3) (b):
(a) the personal representative (if any) of the worker, and any person referred to in subrule (3) (b) who has not been joined as an applicant, shall be joined as a respondent, and
(b) if the amount awarded is insufficient to meet the expenses sought to be recovered, the Court may give directions for the apportionment of that amount.
The Court may give the conduct of the whole or any part of any proceedings to such party as it thinks fit.
Where numerous persons have the same interest in any proceedings, the proceedings may, unless the Court otherwise orders, be continued by or against any one or more of them as representing all or as representing all except one or more of them.
At any stage of proceedings pursuant to this rule the Court, on the application of the applicant in the proceedings, may, on terms, appoint any one or more of the respondents or other persons (as representing whom the claim is made against the respondents) to represent all, or all except one or more, of those persons in the proceedings.
Where, under subrule (2), the Court appoints a person who is not a respondent, the Court shall make an order under rule 10 adding him as a respondent.
A decision given or order made in proceedings pursuant to this rule shall be binding on all the persons as representing whom the applicants claim or, as the case may be, the respondents are claimed against, but shall not be enforced against any person not a party to the proceedings except with the leave of the Court.
An application for leave under subrule (4) shall be made by motion, notice of which shall be served on the persons against whom it is sought to enforce the decision or order.
Notwithstanding that a decision or order to which an application under subrule (5) relates is binding on the person against whom the application is made, that person may dispute liability to have the decision or order enforced against him on the ground that by reason of facts and matters particular to his case he is entitled to be exempted from the liability.
This rule does not apply to proceedings concerning:
(a) the administration of the estate of a deceased person, or
(b) property subject to a trust.
In this Division:
(a) in respect of a person:
(i) the management of whose estate is, by the Protected Estates Act 1983, or by an order of the Supreme Court or the Guardianship Board under that Act, committed to the Protective Commissioner,
(ii) of whose estate the Protective Commissioner has, in accordance with section 63 of that Act, undertaken the management, or
(iii) in relation to whose property the Protective Commissioner is authorised as mentioned in section 66 (1) (a) of that Act—
the protective Commissioner,
(b) in respect of a person whose estate a manager has been appointed by order of the Supreme Court or the Guardianship Board under section 22 or section 22A of the Protected Estates Act 1983—the manager appointed.
(a) a person who is not a minor and who is:
(i) incapable of managing that person’s own affairs, or
(ii) incommunicate, or
(b) a minor who has a curator.
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.
Subject to section 23 of the 1987 Act 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.
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.
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.
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.
A tutor must act by a solicitor.
Subject to subrule (5), and subject to rules 25 and 27, an order appointing a tutor is not necessary.
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.
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.
A person shall not be made a tutor without his consent.
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.
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.
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.
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.
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.
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.
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.
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.
A person moving for an appointment under this rule shall, unless the Court otherwise orders, serve notice of the motion on the disable person.
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.
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.
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.
Subject to section 51 of the 1987 Act, 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.
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.
An agreement disapproved by the Court under subrule (1) is not binding on the disable person.
The Court may give its approval under rule 29 on terms.
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).
This rule applies where, in any proceedings, a document is required to be served on a disable person.
Service on a disable person shall not be affected otherwise than in accordance with this rule.
Where the disable person has a tutor or a solicitor in the proceedings, the document may be served on the tutor or solicitor.
The document may be served on any person (including the disable person) whom the Court may, before or after service, approve.
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.
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.
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.
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.
This rule does not extend the jurisdiction of the Court over a disable person absent from the State.
Unless the Court otherwise orders, which order may be on terms, interest shall not be ordered to be paid in any proceedings unless there is included in the originating process in respect of the proceedings a statement that interest will be claimed, and particulars of the period or periods for which, the rate or rates at which, and (where the amount or amounts are known) the amount or amounts on which, interest is intended to be claimed.
Unless the Court otherwise orders, which order may be on terms, the rate at which interest shall be ordered to be paid shall, in respect of any part of a period, be the rate per centum yearly prescribed in respect of that period for the purposes of section 95 (1) of the Supreme Court Act 1970, or the rate or rates specified under rule 1 in respect of that part, whichever is less.
In this Part:
Except where otherwise provided by or under any Act, service may be effected by any person over the age of 16 years.
Service may be personal, but need not be personal unless required by the rules or any order.
Personal service may be effected by delivering a copy to the party personally.
A copy may be delivered to a person by handing it to him or by leaving it in his presence and informing him of its nature.
Except where personal service is required, service may be effected by delivering a copy at the residence or place of business of the party, to a person apparently not less than 16 years old and apparently residing at that residence or employed at that place of business.
It shall not be necessary to the regular service of any document that the original thereof be produced to any person.
In this rule,
Service may not be effected on Christmas Day or Good Friday.
Where service of any document has not been personal, and the Court is satisfied on the evidence before it that the service did not come to the knowledge of the party within a reasonable time, or on that evidence is in doubt, the Court shall not allow any fresh step in the proceedings to be taken against the party, but shall adjourn or strike out the proceedings, or order fresh process to issue, as to it may seem just.
Where it is impracticable for any reason to effect service of any document, but steps have been taken for the purpose of bringing, or having a tendency to bring, the document to the notice of the party, the Court may if it thinks fit by order direct that the service be deemed to have been effected on a date specified in the order.
Where a party lodges any document for filing in reply to a document alleged to have been served on him, he shall be taken to have waived any objection he may have to the service unless he lodges and serves notice of that objection at the time when he lodges the document.
Where any insurer of a respondent is named in an originating process, a copy of that originating process shall be served on any such insurer.
Where a solicitor makes on a copy of any originating process a note that he accepts service of the process on behalf of any person, the process shall be taken to have been served on that person on the date on which a copy of the process was delivered to the solicitor or left at his office.
This rule does not apply to or in respect of the service of any originating process, or document as to which personal service is required.
Where a party has on the record of the Court a solicitor acting for him, delivery of a copy to the solicitor, or leaving a copy at the solicitor’s office, or sending a copy by post addressed to the solicitor at his office, shall be taken to be good service on the party.
An address for service shall be the address of a place at which documents in the proceedings in which the address is notified may, during ordinary business hours, be left for the person whose address for service it is, and to which documents in the proceedings may be posted for the person.
The address for service in any proceedings of a person who has on the record of the Court a solicitor acting for him in the proceedings shall be the office of the solicitor, or of his agent in the place at which is situated the registry relevant to the proceedings.
The address for service in any proceedings of a person who acts in the proceedings without a solicitor shall be an address notified by the person in the first document filed by him in the proceedings.
A person may change his address for service by filing and serving a notice of the change showing his new address for service.
This rule does not apply to or in respect of the service of any originating process, or document as to which personal service is required.
Where a person has, by the operation of rule 8 (2) or (3), an address for service in any proceedings, leaving a copy at, or sending a copy by post addressed to the person at, that address for service shall be taken to be good service on the person.
Where the address for service of a person to be served is the office of a solicitor who has an exchange box in a document exchange, in the State, of Australian Document Exchange Pty Limited, leaving a copy, addressed to that solicitor, in that exchange box or at another exchange box for transmission to that exchange box shall be taken to be good service on that person on a day 2 days after the copy is so left.
Where the address for service of a person to be served with a document is the office of a solicitor, and the solicitor has added to that address “will accept service to fax number” together with the solicitor’s facsimile transmission number, transmitting to that number the information contained in the document by a means that reproduces, in the hands of the recipient, that information as it appears in the document shall be taken to be good service of the document on the person on a day one day after the information is so transmitted.
(Repealed)
Where a person confined in a prison is a party, service on him may be effected by delivering a copy at the prison to the officer in charge thereof for delivery to the party.
Where for the purpose of any proceedings:
(a) a document is handed, or information or a request is conveyed, to the officer in charge of a prison for delivery to a party who is confined in the prison, or
(b) a party who is confined in a prison hands a document, or conveys information or a request, to the officer in charge of the prison for delivery to the registrar,
the officer shall ensure that the document, information or request is so delivered as soon as practicable.
Where a party or person keeps the place of residence or place of business of a party closed, or by any means prevents access being obtained thereto, and remains therein in order to obstruct or hinder the delivering to the party or person of a copy which would take effect as service on the party, service on the party may be effected by:
(a) placing the copy in the mail-box appropriate to, or affixing the copy on any outer door of, the place of residence or place of business, or, if access cannot be obtained to any such mail-box or door, affixing the copy on some part of the place of residence or place of business, or of any fence or wall surrounding it, as near as practicable to the principal door or entrance, and
(b) within 24 hours after so placing or affixing the copy sending by post to the party at the place of residence or place of business a notice informing him of the placing or affixing.
Where the person attempting service is prevented by the violence or threat of violence of any person from delivering a copy for the purpose of effecting service, he may deliver the copy by leaving it as near as practicable to the person to whom he intended to deliver it.
Where a party has before or after the commencement of any proceedings agreed that any document in the proceedings may be served on him or on some other person on his behalf in a manner or at a place specified in the agreement, service in accordance with the agreement shall be sufficient service on the party.
For the purposes of the proof of service, evidence of a statement by a person of his identity, or that he holds some office, is evidence of his identity or that he holds the office, as the case may be.
Where for any reason it is impracticable to effect service of any document in any of the modes prescribed for that service, the Court may, on application supported by an affidavit showing grounds, by order direct that, instead of service, such steps be taken as are specified in the order for the purpose of bringing the document to the notice of the party.
Where the Court makes an order subrule (1) it may order that service be taken to be effected on the happening of any specified event, or on the expiry of any specified time.
Without limiting the generality of subrule (1), where the person sought to be served is a party as to whom a matter or question arises as to payment by him of compensation, the Court may order under subrule (1):
(a) that the document be served on the insurer of that person, or
(b) that any notice published under section 222 (1) of the 1998 Act stand in lieu of service.
Service on the WorkCover Authority may be effected by delivering a copy to an officer of the Authority at, or by sending a copy by post addressed to the Authority at, the office of the Authority, or by leaving a copy, addressed to the Authority, in the Authority’s exchange box in a document exchange of Australian Document Exchange Pty Limited, or at another exchange box for transmission to that exchange box.
This Division applies to the service of any document for the purpose of proceedings in the Court in another country.
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.
Where documents are filed and lodged under rule 19, the registrar shall seal the documents lodged with the seal of the Court.
Subject to any applicable convention, such documents shall be served in accordance with the Rules.
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
(b) bear a certificate, in that language, of the translator, stating his qualifications and certifying that it is a translation of the document.
A notice in the prescribed form shall be served with any originating process.
In this Division convention means a convention made between Her Majesty or any of her predecessors and the king or other head of state of a foreign country regarding legal proceedings in civil matters.
In this Part,
A party filing a relevant document shall include in the document such particulars of any claim, defence or other matter alleged as are necessary to enable the opposite party to identify the case he is required by the document to meet.
Rule 3 does not affect the generality of subrule (1).
Where a party seeks to include in his claim against another party moneys which he has paid, or is liable to pay, he shall give in a relevant document the best particulars he can give of those moneys.
Where rule 2 or rule 3 requires particulars to be given in a relevant document and it is inconvenient to set those particulars out in the relevant document, they shall be set out in a separate document referred to in the relevant document and filed and served with the relevant document.
Notwithstanding subrule (1), where the necessary particulars exceed one page and have, before the date on which the relevant document is filed, been given to the party on whom the relevant document is required to be served (or to whom a copy of the relevant document is required to be given or sent), and the relevant document shows the date on which the particulars were given:
(a) subrule (1) shall not require that the particulars be filed or served; but
(b) the Court may order that a copy of the particulars be filed and served.
The Court may, on terms, order a party to file and serve on any other party:
(a) particulars of any claim, defence or other matter stated in a relevant document filed by him, or
(b) a statement of the nature of the case on which he relies.
Without limiting the generality of subrule (1), where a party alleges as a fact that a person had knowledge or notice of some fact, matter or thing, the Court may, on terms, order that party to file and serve on any other party:
(a) where he alleges knowledge, particulars of the facts on which he relies, and
(b) where he alleges notice, particulars of the notice.
Where the Court makes an order under this rule, it may, if it thinks fit, by the same or any subsequent order direct that, if the order made under this rule is not complied with within a period of time stated by the Court, any proceedings brought, or any document filed, by the party in default shall be struck out, or that any such proceedings shall be stayed until the order made under this rule is complied with.
The Court shall not make an order under this rule before the filing of an answer in any proceedings unless, in the opinion of the Court, the order is necessary or desirable to enable the respondent to file the answer, or for some other special reason.
In any application where the quantum of weekly compensation is or may be an issue and there is or may be a dispute in respect of the actual or probable earnings of a worker during any relevant period the following provisions shall, unless the Court otherwise orders, have effect:
(1) The applicant shall file and serve on each other party not later than 10 days before conciliation of a coal miner’s claim or, where there is no conciliation, 21 days before the hearing date, a schedule containing full particulars of such earnings during such period.
(2) If any party disputes the accuracy of any matter in the schedule that party shall, not later than 7 days after service of the schedule or 28 days after expiry of the time prescribed for filing an answer pursuant to Part 11 rule 3 (1), whichever is the later, file and serve a schedule containing its allegations of such earnings.
(3) A matter not so disputed shall be deemed to be admitted.
(4) In all matters where the venue is other than Sydney, Parramatta, Newcastle or Wollongong the applicant shall serve the schedule referred to in subrule (1) at least 14 days prior to the date fixed for call over of matters listed for those sittings.
Where a respondent from whom an applicant claims compensation fails:
(a) to file an answer as referred to in Part 11,
(b) to deny wholly or partially in an answer filed by him that he is liable to pay the compensation claimed, or
(c) to set out in an answer filed by him a sufficient statement of the grounds for any such denial,
within the time limited for the filing of an answer, the applicant may apply to the Court for default judgment.
An application for default judgment may be made by filing an affidavit of service of the originating process in the proceedings and filing and serving (at least 3 days before the date fixed by the registrar for the hearing of the application for default judgment) notice of intention to apply for default judgment.
On the hearing of an application for default judgment the Court may make such determination in the proceedings or give such directions for the further conduct of the proceedings as it thinks fit.
Where, on motion under Part 14 by an applicant in relation to any claim for compensation or other relief or any part of any such claim:
(a) there is evidence of the facts on which the claim or part is based, and
(b) there is evidence given by the applicant or by some responsible person that, in the belief of the person giving the evidence, the respondent has no grounds on which to contest the claim or part,
the Court may, at any time, make such award in favour of the applicant on that claim or part as the nature of the case requires.
An award made under this rule may, on sufficient cause being shown, be set aside, on terms, by order of the Court.
Where in proceedings on a claim for compensation it appears to the Court that in relation to the claim or to any part of the claim:
(a) no reasonable grounds for the claim are disclosed,
(b) the proceedings are frivolous or vexatious, or
(c) the proceedings are an abuse of the process of the Court,
the Court may order that the proceedings be stayed or dismissed generally or in relation to any part of the claim.
A respondent who seeks an order under this rule may apply for the order on motion under Part 14.
Where in respect of any proceedings on a claim for compensation:
(a) a respondent has not filed a notice of appearance or answer, and
(b) the applicant has not filed an affidavit of service of the originating process on that respondent,
within 3 months after the date of commencement of the proceedings, the proceedings as against that respondent are deemed to have been struck out, and no further step may be taken in those proceedings (other than an application mentioned in subrule (2)) until the proceedings have been restored to the list.
The Court may, on application by a party and on terms, restore to the list any proceedings deemed to have been struck out under subrule (1).
A party to any proceedings may appear:
(a) by a barrister or solicitor retained by or on behalf of that party, or by a solicitor employed (as an agent or otherwise) by a solicitor so retained, or
(b) if no barrister or solicitor is so retained and:
(i) if that party is a natural person—by himself, or
(ii) if that party is a corporation, and the Court so approves—by an officer of the corporation authorised in that behalf by the corporation in a document signed by the secretary or other public officer of the corporation and lodged with the registrar,
or by another person allowed by leave of the Court granted in the particular proceedings to appear on that party’s behalf.
Subject to and in accordance with the rules and any provision made by or under the Workers Compensation Acts, a person appearing in any proceedings may address the Court and examine and cross-examine witnesses.
A person who is not a barrister or solicitor retained as mentioned in subrule (1) shall not be entitled to receive or recover an amount of money or other remuneration or consideration for appearing on behalf of another person in any proceedings.
Subrule (3) does not operate to prevent an employee who appears on behalf of his employer in the ordinary course of his employment from receiving wages or salary for so appearing.
No amount paid to a person who appears in any proceedings and who is not a barrister or solicitor retained as mentioned in subrule (1) shall be allowed as costs between party and party.
Subject to the rules of evidence being complied with, an arbitrator shall act according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms.
A party to any referred proceedings may appear before the arbitrator in person, by counsel or solicitor, or, by leave of the arbitrator, by an agent.
A subpoena in respect of referred proceedings may be made returnable before the arbitrator.
Subject to subrule (4), evidence given in referred proceedings shall be given and received in the same way as it would be given and received before the Court.
Without prejudice to any arrangement made by a party for the recording of evidence in referred proceedings, subrule (1) shall not be construed as requiring any such evidence to be recorded.
An arbitrator may administer an oath or take an affidavit for the purpose of referred proceedings.
Documents purporting to be hospital clinical notes and records, doctors’ records, workers compensation records and wages records shall, unless the arbitrator otherwise directs, to the extent that they are admissible in evidence on the hearing of the referred proceedings, be so admissible without further proof as to their identity.
Where, at the hearing of referred proceedings, a witness:
(a) refuses or fails to take an oath when required by the arbitrator to do so, or
(b) refuses or fails to answer a question that he is required by the arbitrator to answer,
the arbitrator or a party to the proceedings may apply to the Court for an order that the witness attend before the Court for examination.
Where application is made for an order under subrule (1), the Court shall, unless satisfied that there was a reasonable excuse for the refusal or failure of the witness to take the oath or answer the question, make the order applied for.
Where the Court makes an order under subrule (1) it may also order the transmission to the arbitrator of the record of any evidence given pursuant to an order under subrule (1), and any such evidence shall be deemed to have been given at the hearing before the arbitrator.
An arbitrator may direct a person who:
(a) wilfully insults:
(i) the arbitrator while he is hearing referred proceedings or proceeding to or from such a hearing, or
(ii) a person in attendance at such a hearing or proceeding to or from such a hearing,
(b) wilfully misbehaves during the hearing of referred proceedings,
(c) wilfully and without lawful excuse interrupts the hearing of referred proceedings,
(d) assaults or wilfully obstructs an arbitrator or other person during the hearing of referred proceedings, or
(e) without lawful excuse, disobeys a lawful direction given to him by the arbitrator during the hearing of referred proceedings,
to remove himself from the sitting of the arbitrator at which the contravention occurs.
The issues in dispute in referred proceedings shall be determined by the arbitrator on the evidence adduced before him, and the arbitrator shall record his determination by an award in writing signed by him and forwarded by him to the registrar as soon as practicable.
An award mentioned in subrule (1) shall contain, or have attached to it, a report of all findings of fact made by the arbitrator necessary to his determination, and the reasons for his determination, being reasons that, in the opinion of the arbitrator, are sufficiently stated to make the parties aware of his view of the case made by each of them.
The registrar shall, forthwith after receiving the award of an arbitrator, send to each of the parties to the proceedings to which the award relates, or to the representative of such a party, a copy of the award on which he has endorsed the date of sending and the registrar’s notice as to the listing of the proceedings under subrule (4).
The registrar shall list the proceedings for mention before him on a date 28 days after the sending of the award under subrule (3), or a date as soon as practicable after that date.
A party shall be taken to consent to the entry of the award of the arbitrator as the decision of the Court in the proceedings unless the party, before the date fixed by the registrar for the mention of the proceedings under subrule (4), files a notice of objection and serves that notice on each other party.
Where a party files and serves notice of objection under subrule (5), the award of the arbitrator ceases to have effect, and the proceedings shall be heard and determined in the Court as if they had never been referred to arbitration.
On the mention of the proceedings as referred to in subrule (4), the registrar shall:
(a) if a party has filed notice of objection under subrule (5), give directions as to the further hearing of the proceedings, or
(b) if no party has filed notice of objection under subrule (5), enter the award of the arbitrator as the decision of the Court in the proceedings.
An award entered by the registrar under subrule (7) (b) shall for all purposes be deemed to be the decision of the Court in the proceedings.
Without affecting the generality of subrule (6), a subpoena for the giving of evidence or production of documents, at a rehearing before the Court of any proceedings, by the arbitrator to whom the proceedings were referred under rule 5, shall not be issued if the evidence relates or the documents relate to the arbitration.
An arbitrator may make, in respect of the hearing of referred proceedings before him, any order as to the payment of fees or costs that the Court might have made in respect of the hearing of the proceedings if the proceedings had been heard before the Court.
A notice required by the rules to be given shall be in writing, unless authorised by the rules or by the Court to be given orally.
Where the registrar gives or sends in respect of any proceedings a notice required by the rules to be given or sent by him, he shall make on an appropriate document filed in the proceedings a notation of the date on which the notice is given or sent.
For the purposes of the Act and the rules, and subject to Part 11 rule 1 (1), a corporation may authorise an officer of the corporation to sign any document, or do any thing which a party to any proceedings acting in person may do, in respect of any proceedings to which the corporation is or may become a party, and any document signed or thing done by an officer so authorised shall be deemed to be signed or done by the corporation.
An authority given by a corporation to an officer of the corporation for the purposes of subrule (1) shall be under the seal of the corporation, and shall, before the officer so authorised takes any step in any proceedings by virtue of the authority, be lodged with the registrar.
An authority may be lodged for the purposes of subrule (2) by the lodging of the authority, or a copy of the authority prepared by photographic or other similar process.
An authority mentioned in subrule (2) may be expressed to be for the purposes only of the proceedings named in the authority, or for the purposes of all proceedings brought, or to be brought.
An authority mentioned in subrule (2) shall, after being lodged with the registrar for the purposes of that subrule, remain in force until revoked by the lodging with the registrar of a revocation signed by the secretary or other public officer of the corporation.
A party to any proceedings may search the file kept by the registrar in respect of the proceedings.
A person other than a party to any proceedings or the solicitor for the party shall not search the file kept by the registrar in respect of the proceedings except by leave of the Court or registrar.
Notwithstanding subrule (2), a registrar shall make available for the inspection of an officer appointed by the Auditor General any book, file or other record kept by the registrar, whether or not it is a book of account, which is required by the officer in the course of his duties.
The Court may, if it thinks fit, strike out any proceedings ancillary to any proceedings in the Court at any time on terms, and a registrar may, if he thinks fit, strike out any ancillary proceedings before him on terms, and, without affecting the generality of the foregoing provision of this subrule, the Court or registrar may so strike out any ancillary proceedings if:
(a) no party appears, or
(b) a respondent to the ancillary proceedings does, but the applicant in the ancillary proceedings does not, appear.
Where ancillary proceedings are struck out under subrule (1), the Court (or, where the ancillary proceedings are struck out by a registrar, the registrar or the Court) may, on the application of any party, order that the ancillary proceedings be reinstated on terms, and, without affecting the generality of the foregoing provisions of this subrule, the ancillary proceedings may be reinstated upon such terms and conditions as to costs, the staying of the proceedings or the ancillary proceedings until payment of costs, and the priority of the hearing of the ancillary proceedings as the Court or registrar, as the case may require, thinks fit.
Subrule (2) applies except where otherwise provided in section 18 of the Act.
(Repealed)
Brief on hearing
Head of Claim | Amount recovered not exceeding | Amount recovered over | |||
$5,700 | $11,400 | $15,200 | $15,200 | ||
$ | $ | $ | $ | ||
1 | Property damage | 240 | 240 | 240 | 240 |
2 | Medical hospital, etc | 240 | 323 | 430 | 430 |
3 | Commutations and redemptions | 170 | 220 | 290 | 340 |
(Where the amount recovered exceeds $50,700 the brief fee shall be $445.00) | |||||
4 | Lump sum loss of faculties | 190 | 265 | 355 | 530 |
5 | Weekly payments (closed period) | 285 | 370 | 495 | 747 |
6 | Weekly payments (continuing period) or claims under s 67 of the Compensation Act | 390 | 475 | 635 | 800 |
7 | Death Claims | 440 | 525 | 695 | 800 |
In death claims where liability is admitted subject only to formal proof of marriage, dependency or other similar issue, a brief fee will be allowed only if specially ordered by the Court. | |||||
8 | Declaration of liability—$295. | ||||
9 | Examination under Part 21—$140. | ||||
10 | Conferences
| ||||
11 | Refreshers
| ||||
12 | Where the hearing is adjourned upon an order for payment of the costs of the day—$196. | ||||
13 | Motions, including motions for suspension of weekly payments, or to state a case—$117. | ||||
14 | Settling request for a case to be stated and settling the case, including associated conferences and attendances before the Court—$230. | ||||
15 | Other settling—$91. | ||||
16 | Advice on evidence, if certified to by the Court—$91. | ||||
17 | View, if certified to by Court—$133 and $95 for each hour after the first. | ||||
18 | To take reserved judgment, if certified to by Court—$65. | ||||
19 | Attending on pre-hearing conference, where the registrar thinks it appropriate for counsel to attend—$230. | ||||
20 | Mentions, where the registrar thinks it appropriate for counsel to attend—$50, or, where questions of privilege or matters of a like nature are argued—$50, or $95 per complete hour, whichever is the greater. | ||||
21 | Loadings
| ||||
22 | Fees for Queen’s Counsel or more than one counsel will not be allowed without an order of the Court. | ||||
23 | Unless otherwise ordered, fees for Queen’s Counsel will be those for junior counsel plus one-half. | ||||
24 | Pre-hearing conference before the registrar—$95. | ||||
25 | Counsel’s fees for conducting a review of a decision of a commissioner under section 36, or a reference by a commissioner under section 37, of the Act shall, unless the Court otherwise orders, and whatever be any amount recovered or deemed to be recovered, be the maximum amount prescribed in this Schedule in respect of such a head of claim as gave rise to the review or reference. | ||||
26 | The Court may in a special case order that fees additional to those provided in this Schedule be payable to counsel. |
$ | ||
1 | Preparing originating process, notice of appeal to the Court, notice of application for leave to make an appeal to the Court, or third or subsequent party notice, including necessary copies | 35.00 |
2 | Preparing further particulars, when required by an opposite party, including copy to file | 10.50 |
3 | Preparing subpoena to give evidence, including copy for service and attending to issue—each witness | 10.50 |
4 | Preparing subpoena to produce documents or things, including copy for service and attending to issue—each witness | 20.50 |
5 | Preparing notice to produce or admit documents, or to admit facts, including necessary copy | 12.50 |
Or, if special or necessarily long, such allowance as the registrar thinks proper, not exceeding per page | 10.00 | |
6 | Preparing notice of motion, not being in respect of an ex parte application, including necessary copies | 12.50 |
Or, if special or necessarily long, such allowance as the registrar thinks proper, not exceeding per page | 10.00 | |
7 | Preparing request for listing or any other necessary or proper notice or demand not otherwise provided for, including necessary copies | 10.00 |
Or, if special or necessarily long, such allowance as the registrar thinks proper, not exceeding per page | 10.00 | |
8 | Preparing certificate of readiness where required, including necessary copies | 12.50 |
Or, if special or necessarily long, such allowance as the registrar thinks proper, not exceeding per page | 10.00 | |
9 | Service or attempted service by a solicitor or his employee, where service by post is not authorised | 12.50 |
10 | For each kilometre beyond 3 kilometres necessarily travelled in attempting to serve any process, to be allowed once only in respect of one address, the kilometres allowed to be reckoned one way only and not to exceed | 160.60 |
| ||
11 | Service of any process which is authorised to be served by post | 5.00 |
12 | To commence or defend proceedings, or for third or subsequent party notice | 25.00 |
13 | For any necessary affidavit which, in the opinion of the registrar, cannot be prepared from information already known to the solicitor | 16.00 |
14 | For counsel to advise on evidence | 25.00 |
15 | Whether counsel employed or not, for work necessarily done in preparing for hearing and not otherwise provided for, including:
| |
| 35.00 | |
| ||
16 | Any document necessarily or properly filed or delivered to another party or to counsel or the Court and not otherwise provided for, per page | 10.00 |
| ||
17 | Of any document, where no other provision is made, per page copied | 1.20 |
A fee will not be allowed for any copy unless the registrar is satisfied that the copy was necessary and that no copy previously prepared was available. | ||
18 | Of originating process, third or subsequent party notice, or answer, per page | 10.00 |
19 | Of notice to produce or admit | 16.00 |
20 | Of draft of special order or award prepared by registrar | 15.00 |
| ||
21 | To file any document not otherwise provided for | 10.00 |
22 | To inspect documents or produce documents for inspection | 16.00 |
Or, per hour | 25.00 | |
23 | To obtain or give any necessary or proper consent or admission | 10.00 |
24 | On examination of a witness under Part 21, without counsel | 50.50 |
And for each complete hour after the first hour | 25.00 | |
25 | On examination of a witness under Part 21, with counsel | 25.00 |
26 | On deponent to swear an affidavit or for a solicitor or his clerk to swear an affidavit | 8.00 |
27 | On counsel with brief | 12.50 |
28 | To appoint conference | 7.00 |
29 | On conference with counsel, per hour | 35.00 |
30 | On a pre-hearing conference, call-over, mention or interlocutory application: | |
| 35.00 | |
| 54.00 | |
31 | In Court on the hearing of any proceedings: | |
| 54.00 | |
| 70.00 | |
|
| ||
32 | To take, with or without counsel, a deferred judgment | 25.00 |
33 | On taxation of costs | 25.00 |
Or, per hour | 35.00 | |
34 | Any telephone attendance not otherwise provided for | 5.50 |
35 | Any attendance not otherwise provided for | 10.00 |
Or, per hour | 35.00 | |
36 | Travelling and waiting time—per hour | 30.90 |
or, in the case of a clerk, per hour | 15.45 | |
37 | Form letters | 5.50 |
38 | Letters other than form letters | 10.00 |
Or, if special or necessarily lengthy, such amount as the registrar thinks fit. | ||
39 | For procuring certificates, office copies or other documentary evidence which the registrar thinks necessary and proper, such amount as is just and reasonable, not exceeding the amount actually paid. | |
40 | For the necessary expenses of postage, telex, telegrams, and the carriage and transmission of documents, such amount as is just and reasonable, not exceeding the amount actually paid. | |
41 | Court fees, bailiff’s fees, and other fees and payments which, in the opinion of the registrar, have been properly paid, and which are not otherwise provided for. | |
42 | For preparing plans, charts or models for use at the hearing, where the Court has not disallowed the costs of the same, such amount as is just and reasonable, not exceeding the amount actually paid. | |
43 | Fares reasonably incurred in respect of any attendance. | |
44 | Amounts reasonably paid to interpreters, not exceeding: | |
| 107.00 | |
| 48.00 | |
| 17.00 | |
| 50.00 | |
And, for each half-hour after the first hour | 17.00 | |
Maximum fee for any conference or examination | 82.00 | |
45 | In any case not otherwise provided for in this Schedule, and in which in the opinion of the taxing officer an allowance should be made, such amount may be allowed as is just and reasonable. |
$ | ||
1 | Briefs on hearing | |
Brief Fees shall be calculated on the nature of the relief obtained, in accordance with the following scale | ||
Scale A: | $500 | |
Scale B: | $700 | |
Scale C: | $800 | |
The scale appropriate for the relief obtained shall be as follows: | ||
| A | |
| A | |
| A | |
| A | |
| C | |
| C | |
| B | |
| C | |
| C | |
| A | |
| C | |
| A | |
| C | |
2 | Declaration of Liability | $295 |
3 | Examination under Part 21 | $140 |
4 | Conferences | |
Where brief fee does not exceed $255: | $42 | |
Where brief fee exceeds $255, but does not exceed $410: | $50 | |
Where brief fee exceeds $410 but does not exceed $615: | $72 | |
Where brief fee exceeds $615: | $92 | |
Other conferences, if certified: | $100–$250 | |
5 | Refreshers | |
Where the hearing is not concluded on the date on which it is begun, there will be allowed, unless the Court otherwise orders, in respect of each further day on which the hearing continues | ||
for more than 3 hours, a refresher of two-thirds, or | ||
for 3 hours or less, a refresher of one half of the brief fee. | ||
In respect of hearings outside the Sydney metropolitan area:
| ||
6 | Where the hearing is adjourned upon an order for payment of the costs of the day—a fee equal to a refresher of one half of the brief fee. | |
7 | Where the matter is not reached on a day upon which it is listed for hearing—a fee equal to a refresher of two thirds of the brief fee (if certified by the Court). | |
8 | Motions, where the Court certifies that the matter is appropriate for Counsel | $300 |
9 | Settling request for a case to be stated and settling the case, including associated conferences and appearances before the Court | $230 |
10 | Settling particulars | $91 |
11 | Other settling | $91 |
12 | Advice on evidence | $91 |
13 | View, if certified to by the Court | $133 |
14 | To take reserved judgment, if certified to by the Court | $65 |
15 | Attending on pre-hearing conference, where the registrar thinks it appropriate for counsel to attend | $230 |
16 | Mentions, where the registrar thinks it appropriate for counsel to attend—$50, or where questions of privilege or matters of a like nature are argued—$50, or $95 per complete hour, whichever is the greater. | |
17 | Loadings:
| |
18 | Fees for Queen’s Counsel or more than one counsel will not be allowed without an order of the Court. | |
19 | Unless otherwise ordered, fees for Queen’s Counsel will be those for junior counsel plus one-half. | |
20 | Pre-hearing conference before the registrar | $95 |
21 | The Court may in a special case order that fees additional to those provided in this Schedule be payable to counsel. |
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