7.9.4 Preparing for the initial hearing

Once notified of a Request for Arbitration, the Agent should immediately begin preparing for the initial hearing. This includes arranging any necessary oral evidence or witness statements (including expert witness evidence) to be presented at arbitration.

Oral evidence

Oral evidence is given by a person (a witness) verbally answering questions asked by a party to the dispute, their representative or the Arbitration Officer at an arbitration hearing.

A witness could be any person with information about the issues in dispute, such as:

• the worker

• another employee of the employer, or

• a treating health practitioner or other expert.

Parties must provide a witness statement for any person they wish to give oral evidence, and make a request to WIC Workplace Injury Commission for that witness to give oral evidence. Where an expert is requested to provide oral evidence the experts report may constitute the written witness statement.

Requesting WIC’s permission for a witness to give oral evidence

A party can request WIC’s permission for a witness to give oral evidence as soon as practicable either:

• prior to the initial hearing, by completing the Pre-hearing Information Form;

• in writing at anytime throughout the arbitraton process; or

• orally at a hearing.

The request should detail:

• the witness’s name and contact details and their relationship to a party

• the witness’s expertise (if an expert witness)

• the estimated length of time required to question the witness

• the dates and time of the witness’s unavailability

• how the witness’s evidence is relevant to the issues in dispute.

WIC will provide the request to the other party for a response. If WIC permits a witness to give oral evidence all parties will be notified.

Witness statements

A witness statement is a person’s signed written account relating to the facts in dispute. The statement should be made from personal knowledge, rather than information they have heard from another person. A witness should state every material thing relating to the facts as they have observed them. A witness should not give an opinion, unless they are an expert witness.

The witness statement should be signed in the presence of another person, whose name and signature should be recorded on the statement. If the witness gives oral evidence, they may be asked to confirm the facts referred to in the written witness statement under oath or affirmation.

See: Arbitration Witness Statement Form

Expert witnesses

An expert witness is a person who gives expert or opinion evidence - such as a medical practitioner. An expert witness can provide evidence in a witness statement, expert report or orally based upon their knowledge and expertise. Where an expert is requested to provide oral evidence, the expert’s report may constitute the written witness statement or outline of evidence.

Note: It is an offence for a person to make a false or misleading statement in connection with a dispute referred for arbitration. The offence is punishable by a fine, imprisonment or both. (s301J)

Request for documents or information

WIC may request documents or information which have not already been exchanged between the parties, including from a person who is not a party to the dispute. WIC may do so of its own accord, or at the request of a party.

 

Where a party is seeking WIC to request documents or information, they can do so via the Pre-hearing Information Form, orally at a hearing or in writing.

The request should specify:

1. the person or organisation requesting documents or information;

2. the title or type of documents or information requested;

3. the date or date range of the documents or information requested; and

4. the reason for the request, as relevant to the issues in dispute.

A person may refuse to comply with a request on the basis they claim privilege or immunity regarding the requested documents or information (e.g. legal professional privilege, self-incrimination privilege, diplomatic immunity or statutory immunity).

Where a party fails or refuses to provide documents, disclose information or give oral evidence without a reasonable excuse, an Arbitration Officer may ‘draw an adverse inference’, meaning they conclude that the documents, information or oral evidence would not support that party on a particular issue. Prior to drawing an adverse inference, WIC must notify the party and provide them with a reasonable opportunity to respond (s301O(3)).

The time in where WIC must make a determination regarding the dispute (refer to 7.9.7 Arbitration determinations) does not accrue during the period between the date of the request for information and its receipt/the due date (s301Q).

Pre-hearing Information Form

All parties to a dispute must provide the Pre-hearing Information Form (PHIF) to WIC within 10 business days of the referral for arbitration being received. Each party’s PHIF will be exchanged with the other party/parties to the dispute.

The Pre-hearing Information Form details any:

• remaining documents or evidence yet to be lodged with WIC

• requests for WIC to request documents or information from another party

• requests for a witness to give oral evidence at hearing

• requests by a party to begin presenting their case at the initial hearing or whether they request a hearing ‘on the papers’, without a further oral hearing

• requests to have legal representation or a paid advocate at the hearing

Prior to an initial hearing, the claimant A person who applies for WorkCover benefits. may also be asked to provide a witness statement, a timeline and/or a written response to the Reply to the Referral for Arbitration made by an Agent or Self-insurer. All documents and information lodged with WIC will be made available to the claimant, the Agent or Self-insurer and/or any representatives.

See: Timeline form

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