Interlocutory Applications

On 24 November 2017, the Registrar of the Workers’ Compensation Arbitration Service issued a Practice Note regarding Interlocutory Applications, procedures and consultation, within the Workers’ Compensation Arbitration Service.

The Practice Direction sets out the following requirements:

Rule 48 requires an Interlocutory Application to be lodged for Orders for Production of Documents;

Consultation is required for all Interlocutory Applications, no matter how unlikely it is that the parties will reach agreement, or narrow the issues in dispute;

Consultation requires oral discussion by the parties, either by telephone or in person;

Notice of intention to commence an Interlocutory Application, or an exchange of correspondence, is insufficient;

If consultation is not feasible, the party must explain the exceptional circumstances, including explaining what attempts were made to consult, why consultation was not possible and why exceptional circumstances exist to justify lodging the application in the absence of consultation;

The party making the Interlocutory Application is required to provide evidence of the consultation, including identifying who took part in the consultation, when and how it took place, and the outcome;

Further, the party making the Interlocutory Application is required to provide a joint list of unavailable dates;

A failure to properly consult, identify the outcome of consultation, or justify why the requirement to consult ought to be waived (that is, what the exceptional circumstances are) may result in the Registrar or Arbitrator:

(a) rejecting an interlocutory application at the time of filing;
(b) making an adverse costs orders against those parties or practitioners who are at fault (pursuant to ss 264 and 265 of the Workers’ Compensation and Injury Management Act 1981).
 
Further, failure to lodge a Notice of Consent or Opposition to an Interlocutory Application no later than two working days prior to the Interlocutory Application hearing, may result in the Interlocutory Application being determined as if that party did not oppose the Application, and possibly, adverse Costs Orders.

Impact to Insurers

The process to commence an Interlocutory Application may be more protracted, particularly if the opposing law firm is not prepared to participate in the conferral process;

You may now also be able to seek Costs Orders against solicitors and/or workers, whom commence frivolous Interlocutory Applications, without proper conferral.