INDUSTRIAL RELATIONS
COMMISSION OF NEW SOUTH WALES
PRACTICE NOTE NO. 24
Pursuant to Section
185A of the Industrial Relations Act 1996 and Section 15 of the Civil
Procedure Act 2005
PROCEDURES - POLICE HURT ON DUTY APPEALS
1. The Practice
Note applies to proceedings before the Commission under section 186 of the Police
Act 1990.
2. This Practice
Note shall come into force on 1 July 2010
3. The purpose of
this Practice Note is to facilitate the resolution of appeal matters brought
before the Commission pursuant to section 186 of the Police Act 1990
(known as Hurt on Duty appeals) by ensuring that such proceedings are conducted
in an efficient and expeditious manner and that all those who appear before the
Commission do all they can to facilitate the just, quick and cost effective
disposal of proceedings before the Commission.
HURT ON DUTY APPEALS
4. Procedure
generally
4.1 The hearing of
an appeal is to be formal.
4.2 A person who is
entitled to be present at a formal hearing of the Commission is:
a) the appellant
whose appeal is being heard,
b) the
Commissioner of Police or delegate
and is entitled to representation in accordance with
Section 166 of the Industrial Relations Act 1996.
4.3 In relation to
the production of documents or the attendance of witnesses before the
Commission the provisions of Section 165 of the Industrial Relations Act 1996
and Part 33 of the Uniform Civil Procedure Rules 2005 apply.
4.4 A formal hearing
of the Commission is to be recorded.
5. Allocation
of Listing Date
5.1 Upon filing of a
Hurt on Duty appeal the Registrar shall cause, within a period of not more than
seven days from when the time limited for lodging an appeal expires, a date to
be fixed for the matter to be conciliated by the Commission and notify the
parties accordingly. The standard or usual time from filing to the first
listing for Conciliation and Directions shall be a period of 21 days.
5.2 At the time of
fixing the date for Conciliation the Registrar shall also require the parties
to lodge and serve a written case setting out the arguments on which the person
relies in relation to the Conciliation hearing on a date being not less than
one week prior to the date fixed for the Conciliation. All documents are to be
numbered, tabulated and indexed.
6. Conciliation
6.1 Parties who
appear before the Commission should do all they can to facilitate the fair and
prompt disposal of matters before the Commission. Ways in which this should
occur include:
a) ready
identification of the issues in dispute,
b) ensuring
readiness for the conciliation hearing,
c) using their
best endeavours to resolve the issues in dispute.
6.2 Ordinarily there
should be only one conciliation; however, the Commission may permit a further
conciliation.
6.3 If the appellant
fails to appear at a conciliation conference, and has not provided a clear and
compelling reason for non-attendance, this may result in the appeal being
dismissed.
6.4 For the purposes
of section 100E(2) of the Industrial Relations Act 1996 any objection to
the member who conducted a conciliation pursuant to section 100E(1) sitting as
a member to hear the appeal must be lodged within 7 days of the date of such
conciliation.
6.5 For the purposes
of section 100E(2) of the Industrial Relations Act 1996 a member of the
commission is not taken to have commenced conciliation merely because:
a) the member
attempted conciliation after commencing the hearing; or
b) the member
arranged or gave directions for a conference of the parties involved in the
industrial dispute or other matter, or their representatives, to be presided
over by the member, but the conference did not take place or was not presided
over by the member; or
c) the member
arranged or gave directions for those parties or their representative to confer
among themselves at a conference at which the member was not present.
7. Preliminary
issues
7.1 If a preliminary
issue for example, a jurisdictional challenge is raised at the conciliation
conference, the Member shall determine whether the matter shall be heard as a
threshold issue or be dealt with after conciliation.
7.2 If the Member
determines that the issue should be heard before conciliation then the matter
shall be referred to the Registrar for allocation to a Member for hearing after
appropriate directions are made and the Member has established the time
required to hear the issue.
7.3 If the Member
determines that the issue should be heard before conciliation then the matter
shall be referred to the Registrar for allocation to a Member for hearing after
appropriate directions are made and the Member has established the time
required to hear the issue.
7.4 In cases where
the Member conducts conciliation and the conciliation fails the Member shall
then forward the matter to the Industrial Registrar for allocation to a Member
for hearing.
7.5 Directions will
be made by the Member which may be a modified form of the usual directions if
the matter is to be set down to hear a threshold issue.
7.6 The Registrar
will subsequently advise the parties of a date or dates for hearing and the
court location for the hearing of the matter.
8. Listed for
Hearing
8.1 When
conciliation before the Commission is unsuccessful, the usual directions in
Paragraph 9 of this Practice Note shall operate unless, after application by a
party to the appeal, the Commission considers that the "usual
directions" should be modified or alternative directions made.
8.2 The Commission
shall also ascertain a reasonable estimate of the time required for the hearing
of the appeal, specify in the Commission's opinion the time required for
hearing and make any other appropriate directions having regard to paragraphs
9and 10 of this Practice Note.
8.3 The Commission
shall, forthwith, refer the parties to the List Office of the Industrial
Registry for the purpose of obtaining a hearing date(s) in accordance with the
Commission's opinion of the time required for hearing and directions which are
made.
9. Usual
Directions
For the purpose of this Practice Note "usual
directions" shall mean directions in the following terms or to the
following effect:-
9.1 All evidence
shall be in the form of signed written statements.
9.2 The respondent
shall file and serve any material relevant to the employer’s case (in addition
to that previously served on the appellant pursuant to clause 5.2) upon which
they will seek to rely within 21 days. The respondent's case shall include all
signed written statements (typed with numbered paragraphs and pages) of the
intended evidence of each witness upon which they rely
9.3 The appellant
shall file and serve signed written statements (typed with numbered paragraphs
and pages) of the intended evidence of each witness together with any other
relevant documentation within 21 days of the date fixed for the filing and
service of the respondent’s documents.
9.4 The respondent
shall file and serve any reply to the appellant's documents within 7 days of
the date fixed for the filing and service of the appellant's documents.
9.5 The parties
shall include in or with their written witness statements all matters and
documents upon which they rely or they allege are relevant to the proceedings.
9.6 Parties shall
file and serve at the same time as they file their written statements and any other
relevant documentation - a short summary of their case.
9.7 Without leave of
the Commission, written statements and other documentation filed and served
later than the time specified by the Commission in its directions may not be
relied upon by the party.
9.8 At the
conclusion of any failed conciliation, the Commission shall determine any
issues of leave having regard to the provisions of Part 7.3 of the Uniform
Civil Procedure Rules 2005 (issue of summons in certain circumstances
requires leave) and make such directions as are necessary in that regard.
9.9 Summonses for
production of documents may be made returnable before the Registrar upon any
date that the Registrar conducts a list. Where orders are sought other than for
photocopy access for both parties or if a claim for privilege or the like is
made, those matters will be referred by the Registrar to the Commission to be
dealt with on an interlocutory basis. Under these arrangements summonses will
be returnable before the Registrar, not the Commission.
9.10 If, in the
opinion of the Commission, the appeal is a matter that requires attendance by a
person with specialised knowledge of issues relevant to the Hurt on Duty
appeal, make such directions as are necessary in that respect or, alternatively,
apply such provisions of Practice Note 21 as may be appropriate to the
proceedings
10. Other
Directions
10.1 The Commission
may make such other directions as it considers appropriate for the just
resolution of the issues between the parties.
10.2 Such other
directions may include directions that:
a) without leave
of the Commission, a party cannot rely on any matter that is not contained
within the documentation filed and served by that party.
b) proceedings
shall be conducted on the written statements and other relevant documentation
filed and served by a party except where reasonable notice is given to the
other party that a witness is required for cross-examination.
c) in the absence
of any period of reasonable notice being fixed by the Commission,
cross-examination of a witness shall not be allowed unless at least 7 days
prior to the hearing notice has been given to the opposing party that a witness
is required for cross-examination.
11. Compliance
with Directions
11.1 Any directions
made under paragraphs 5,7,9,10 of this Practice Note must be complied
with and will apply unless:
(a) an application
is made after the completion of conciliation and prior to the hearing;
(b) where
applicable, the direction is varied during the course of the hearing of the
matter;
(c) any application
to vary directions after the conciliation conference must be made as soon as
possible, in writing and contain full supporting grounds (unless made during
the course of the hearing of the matter).
12. Adjournment
Policy
12.1 In accordance
with the Commission's function to provide a forum for the resolution of Appeal
matters in a fair and prompt manner, as a general rule, an adjournment of the
date that is allocated for an Conciliation or Hearing will not be granted unless
there are clear and compelling reasons for the adjournment to occur.
12.2 The time fixed
for the hearing of an appeal is definite. Any applications for adjournment must
be made in a timely way, be in writing and contain full grounds. Such applications
will be considered and determined by the Commission. It should be understood
that adjournment applications will be granted only on clear and compelling
grounds.
12.3 An application
for an adjournment during the course of an Appeal is a matter for the member
hearing the matter in the proper exercise of his/her discretion. It should be
clearly understood that such applications will be granted only on clear and
compelling grounds.
12.4 In the event that
a party fails to attend at an appeal hearing, the appeal may, in appropriate
circumstances, be heard and determined in the absence of that party.
13. Lodgement of
Appeals
13.1 A Notice of
Appeal may be lodged personally or by post or by facsimile.
R. P. Boland J, President
30 June 2010
____________________
Printed by
the authority of the Industrial Registrar.