INDUSTRIAL RELATIONS
COMMISSION OF NEW SOUTH WALES
PRACTICE NOTE NO. 21
Issue Date:
|
1 February 2010
|
Disclosure of
Experts Reports and Medical and Hospital Reports
Pursuant to Section
185A of the Industrial Relations Act 1996 and Section 15 of the Civil
Procedure Act 2005
1. The Practice
Note applies to proceedings
·
in relation to an appeal under section 44 of the Superannuation
Administration Act 1991, and
·
to any other proceedings in which the Commission or
Court may at any time on the application of a party or of its own motion direct
that they must apply.
2. This Practice
Note shall come into force on 1 February 2010.
3. Definitions.
In this Practice Note
(a) expert’s
report means a statement by an expert in writing which sets out the
expert’s opinion and the facts on which the opinion is formed and which
contains the substance of the expert’s evidence which the party serving the
statement intends to adduce in chief at the hearing,
(b) hospital
report means a statement in writing concerning a patient made by or on
behalf of a hospital which the party serving the statement intends to adduce in
evidence in chief at the hearing,
(c) medical
report means a statement in writing concerning a patient made by or on
behalf of a registered medical practitioner which the party serving the
statement intends to adduce in evidence in chief at the hearing.
4. Procedure
4.1 Unless the
Commission otherwise orders, in proceedings to which this Practice Note
applies, each party in the proceedings must, at least 21 days before the date
set down for hearing, serve experts’ reports, medical reports and hospital
reports on each other party who has an address for service in the proceedings.
4.2 An application
to the Commission for an order under clause 4.1 (other than an order solely for
abridgment or extension of time) may be made without serving notice of the
motion.
4.3 In proceedings
to which this Rule applies, except with the leave of the Commission or by
consent of the parties:
(a) the oral expert
evidence in chief of any expert is not admissible unless that evidence is
covered by the expert’s report served in accordance with this Practice Note,
and
(b) neither an
expert’s report nor a medical or hospital report is admissible when tendered
under section 63 or section 64 or section 69 of the Evidence Act 1995,
unless it has been served in accordance with this Practice Note.
4.4 For the purpose
of clause 4.3 of this Practice Note, evidence is covered by a report if the
report contains the substance of the matters sought to be adduced in evidence.
5. Expert’s
report admissible at hearing
5.1 Where an
expert’s report is served in accordance with this Practice Note or an order is
made under clause 4.1, the report is admissible as evidence of the expert’s
opinion and, where the expert’s direct oral evidence of a fact upon which the
opinion was formed would be admissible, as evidence of that fact, without
further evidence, oral or otherwise.
5.2 A party may,
unless the Commission otherwise orders, not later than 7 days before the date
set down for hearing, require the attendance for cross-examination of the
expert.
5.3 The parties may
not by consent abridge the time fixed by or under clause 5.2
5.4 A requirement
under clause 5.2 must be made to the party who served the report.
5.5 Where the
attendance of an expert is required under clause 5.2, the expert’s report must
not be tendered under section 63 or section 64 or section 69 of the Evidence
Act 1995 or otherwise used unless the person attends or is dead or the Commission
grants leave to use it.
5.6 Where an expert
attends pursuant to a requirement under clause 5.2, the party using the report
may re-examine that expert.
6. Notice under
section 67 or section 99 of the Evidence Act 1995
6.1 Notice for the
purposes of section 67 or section 99 of the Evidence Act 1995 must,
unless the Commission otherwise orders, be given:
(a) in any case
where the Commission has by notice to the parties fixed a date for hearing-not
later than 21 days before the date fixed by that notice: or
(b) in any other
case-not later than 21 days before the date on which the Commission determines
the date of hearing
Boland J, President
1 February 2010
____________________
Printed by
the authority of the Industrial Registrar.