Practice Note No.21


Issue Date:
1 February 2010

INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES
 

PRACTICE NOTE No. 21
Pursuant to Section 185A of the Industrial Relations Act 1996 and Section 15 of the Civil Procedure Act 2005
 

Disclosure of Experts Reports and Medical and Hospital Reports

 

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



BolandJ, President
1 February 2010