Khan v Workers Compensation Nominal Insurer (iCare) & Ors
[2023] NSWPIC 687
•21 December 2023
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | Khan v Workers Compensation Nominal Insurer (iCare) & Ors [2023] NSWPIC 687 |
| APPLICANT: | Maaz Ilahi Khan |
| FIRST RESPONDENT: | Just Smart Solutions Pty Ltd t/a Just Taxi |
| SECOND RESPONDENT: | Workers Compensation Nominal Insurer (iCare) |
| SENIOR MEMBER: | Kerry Haddock |
| DATE OF DECISION: | 21 December 2023 |
| CATCHWORDS: | WORKERS COMPENSATION - Notices for Production served by applicant on first respondent and first respondent’s solicitors; objection to Notices for Production; failure to serve Notice of Objection in accordance with Personal Injury Commission Rules 2021; directions made for service of Notice of Objection and Notice of Opposition; first respondent provided “interim replies” and failed to “reply formally” after extension of time sought was granted; first respondent made email submissions and attached further documents after the expiry of the extended time limit; neither the email nor the documents was taken into account; Held – Notice for Production on first respondent’s solicitors wholly set aside; Notice for Production on first respondent set aside in part; first respondent to produce report of investigation commissioned by iCare, if report held, and subject to any claim of privilege. |
| DETERMINATIONS MADE: | The Commission determines: 1. The application by the first respondent for leave to serve a Notice for Production on the applicant is refused. 2. The conciliation/arbitration hearing date of 18 January 2024 at 10am is confirmed. |
STATEMENT OF REASONS
BACKGROUND
The background to this matter is set out in my decision dated 1 December 2023, which should be read in conjunction with this decision.
On 4 December 2023, the first respondent served on the applicant a Notice for Production. It was not served within 21 days of the registration of the Application to Resolve a Dispute, in accordance with Personal Injury Commission Rules 2021, rule 40 (1) (the Rules).
The applicant maintains that the first respondent is therefore not entitled to serve a Notice for Production.
The first respondent has requested that the Personal Injury Commission (Commission) dispense with the requirement of rule 40 (1), pursuant to rule 6 (4).
This determination is made in respect of the Notice for Production served by the first respondent on the applicant.
ISSUE FOR DETERMINATION
The following issue is in dispute:
(a) whether the first respondent is entitled to serve on the applicant a Notice for Production.
PROCEDURE BEFORE THE COMMISSION
The matter was listed for preliminary conference on 26 October 2023. Mr Davidson of counsel, instructed by Mr Buttar, appeared for the applicant, who was present. Mr Simons appeared for the first respondent. Ms Davis appeared for the second respondent, instructed by Ms Barnsley. Mr Khaya of the first respondent also attended.
The applicant had served on both respondents, and the solicitors for the first respondent, Notices for Production. The second respondent advised that it was able to comply with the Notice, and no direction was sought.
The first respondent advised that it objected to the Notices for Production but had failed to serve a Notice of Objection, in accordance with the Rules.
The first respondent was directed to lodge and serve its Notice of Objection to the Notices for Production on or before 27 October 2023.
The applicant was directed to lodge and serve his Notice of Opposition to the first respondent’s Notice of Objection on or before 31 October 2023.
The parties were advised that at the conclusion of the time allowed for lodging the above Notices, that issue would be determined “on the papers”.
That dispute was the subject of my determination dated 1 December 2023.
At the preliminary conference on 26 October 2023, the first respondent sought and was granted leave to issue Directions for Production on various parties. It did not seek leave to serve a Notice for Production on the applicant.
The solicitors for the first respondent emailed the Commission on two occasions on
2 November 2023, seeking leave to file and serve two further Directions for Production. Leave was granted. They did not seek leave to serve a Notice for Production on the applicant.The solicitors for the first respondent were advised on 2 November 2023 that I would not consider any further requests by email for leave to issue Directions for Production; and that the appropriate time at which to make such a request had been at the preliminary conference on 26 October 2023.
The solicitors for the first respondent were further advised that should the first respondent or any other party wish to raise any further interlocutory matters, it or he was to request a further preliminary conference, supported by appropriate reasons.
On 29 November 2023, the solicitors for the first respondent requested by email a further preliminary conference, as they wished to seek leave to issue further Directions for Production. They did not refer to seeking leave to serve a Notice for Production on the applicant.
As by that time I had very limited time in which to convene a further preliminary conference, directions were made by email on 29 November 2023.
The solicitors for the first respondent were directed to provide details of the documents sought to be produced on or before 1 December 2023; and the solicitors for the applicant and the second respondent were directed to advise of any objection on or before
6 December 2023.As neither the applicant nor the second respondent advised of any objection, the first respondent was granted leave to lodge the Directions for Production. The time for service was abridged, given the approaching Christmas season and the date of the conciliation/arbitration hearing.
There was no application at that time for leave to serve a Notice for Production on the applicant.
The first respondent’s solicitors sent an email to the Commission on 18 December 2023. They attached a copy of an email dated 4 December 2023, to the applicant’s solicitors, serving a Notice for Production on the applicant; and an email from the applicant’s solicitors of the same date, in which they advised that the first respondent was not entitled to serve a Notice for Production, as it should have been filed [sic] within 21 days of the registration of the Application to Resolve a Dispute (the Application).
The first respondent’s solicitors requested a “ruling/direction” by the Commission, relying on rule 6 (4) of the Rules. They submitted that: “So far as the First Respondent is concerned, by way of submission, this is a vital document for the case of the First Respondent.”
Given the time constraints, the applicant and the second respondent were requested to provide any submissions in reply by close of business on 20 December 2023; and were advised that emailed submissions were acceptable.
EVIDENCE
Documentary evidence
The following documents were in evidence before the Commission and considered in making this determination:
(a) Application and attached documents;
(b) First respondent’s Reply;
(c) Application to Admit Late Documents dated 19 October 2023, filed by the second respondent and attached documents (Reply), and
(d) Notice for Production served on the applicant, dated 4 December 2023.
FINDINGS AND REASONS
It is unnecessary that I discuss the evidence, given that I am in this determination concerned only with the applicant’s objection to the first respondent’s Notice for Production.
SUBMISSIONS
First respondent
The first respondent’s submissions, as noted above, were: “So far as the First Respondent is concerned, by way of submission, this is a vital document for the case of the First Respondent.”
Applicant
The applicant submitted on 21 December 2023, after the time allowed for submissions, as follows:
“We oppose for the reason already mentioned in our email to Remington. If PIC to extend time then we may request further Notices or Directions to produce documents and witnesses be allowed to applicant as well.”
Second respondent
The second respondent has made no submissions.
SUMMARY
Rule 6 of the Rules provides:
“6 Dispensing with requirements of Rules
(1) The Commission may, by order, dispense with a requirement of these Rules in relation to particular Commission proceedings if satisfied it is appropriate to do so.
(2) The President may, by order, dispense with a requirement of these Rules in relation to particular applicable proceedings, or particular kinds of applicable proceedings, if satisfied it is appropriate to do so.
(3) The power given to the President by subrule (2) extends to a requirement of Part 5 of the Act applied to applicable proceedings, other than Commission proceedings, by a provision of these Rules.
(4) A requirement may be dispensed with under this rule before or after the occasion for compliance with the requirement arises.”
Rule 39 of the Rules provides:
“39 Notice for production
A requesting party may serve a notice for production on a producer at the producer's address for service requiring the producer to produce for inspection a document that is--
(a) clearly identified in the notice, and
(b) relevant to a fact in issue in the proceedings.”
Rule 40 of the Rules provides:
“40 Time for service and production
(1) A notice for production must be served on the producer within 21 days of registration of the application that initiated the proceedings.
(2) A producer must comply with a notice for production within 7 days of the date on which the notice was served on the producer.”
The Notice for Production served on the applicant seeks production of the following:
“1. A copy of the Tax Return lodged and prepared by the Applicant for the period 1 July 2022 to 30 June 2023.
2. A copy of all BAS Statements, Balance Sheets, Pre-Filing Tax Return Reports for the period 1 July 2022 to 30 June 2023.
3. Copies of any Financial Statements held by the Applicant with any Financial Institution for any account open by the Applicant for the period 1 July 2022 to 30 June 2023.”
Section 42 of the Personal Injury Commission Act 2020 (the 2020 Act) contains the guiding principle to be applied to practice and procedure in the Commission:
“42 Guiding principle to be applied to practice and procedure
(1) The
"guiding principle" for this Act and the Commission rules, in their application to proceedings in the Commission, is to facilitate the just, quick and cost effective resolution of the real issues in the proceedings.(2) The Commission must seek to give effect to the guiding principle when it--
(a) exercises any power given to it by this Act or the Commission rules, or
(b) interprets any provision of this Act or the Commission rules.
(3) Each of the following persons is under a duty to co-operate with the Commission to give effect to the guiding principle and, for that purpose, to participate in the processes of the Commission and to comply with directions and orders of the Commission--
(a) a party to proceedings in the Commission,
(b) an Australian legal practitioner or other person who is representing a party in proceedings in the Commission.
(4) In addition, the practice and procedure of the Commission should be implemented so as to facilitate the resolution of the issues between the parties in such a way that the cost to the parties and the Commission is proportionate to the importance and complexity of the subject-matter of the proceedings.
(5) However, nothing in this section requires or permits the Commission to exercise any functions that are conferred or imposed on it under enabling legislation in a manner that is inconsistent with the objects or principles for which that legislation provides in relation to the exercise of those functions.”
Applying s 42 of the 2020 Act, I am not satisfied that it is appropriate to dispense with the requirement of rule 40 (1) of the Rules, pursuant to rule 6 (1).
The first respondent has been extended considerable latitude in this matter, as may be seen from the above history.
The proceedings were commenced on 22 September 2023. At no time before
4 December 2023 did the first respondent serve a Notice for Production, or seek leave to serve a Notice for Production, on the applicant, despite its submission that the documents sought is [sic] a “vital document”.Even when the applicant’s solicitors brought to the first respondent’s solicitors’ attention on
4 December 2023 (the same day on which the Notice for Production was served) their non-compliance with the Rules, the first respondent did not approach the Commission until 14 days later.The matter is listed for conciliation/arbitration hearing on 18 January 2024, a date that was fixed at the preliminary conference on 26 October 2023.
Given the time of the year, it is by no means certain that, if leave were granted to serve the Notice for Production, the applicant would be in a position to obtain and produce the documents prior to 18 January 2024.
The applicant has foreshadowed that he may need to rely on further evidence should leave be granted to the first respondent to serve a Notice for Production.
The determination of the matter should not potentially be delayed because documents that were “vital” to the first respondent were not sought in a timely manner, or in compliance with the Rules.
The orders are set out in the Certificate of Determination.
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