Compulsory conference

Before the injured worker starts a proceeding for damages, there must be a conference of the parties. Any party may call the compulsory conference and it must be held within three months after WorkCover gives the injured worker a written notice under section 281of the Workers’ Compensation and Rehabilitation Act 2003. However, if the parties agree the conference can be held at a later date.

WorkCover must advise the injured worker’s employer of the time and place of the compulsory conference.

On application from a party, the court may fix the time and place for the compulsory conference or dispense with the compulsory conference for good reason, and may make any other orders the court considers appropriate.

In considering whether to dispense with the compulsory conference, the court must take into account the extent of compliance by the parties with their respective obligations in relation to the claim.

The injured worker in person, a person authorised to settle on WorkCover’s behalf and a person authorised to settle on behalf of any contributor must attend the conference and actively participate in an attempt to settle the claim, unless the injured worker or person has a reasonable excuse.

If it would be unreasonable for all parties to attend at the same place, for example, because of distance or illness, the conference may be conducted by telephone conferencing, video conferencing or another form of communication that allows continuous communication between the parties.

The compulsory conference can be held with a mediator if all parties agree. However, it must be specified how the cost associated with using a mediator will be borne. The mediator must be a person independent of the parties, as agreed by the parties or nominated by the registrar of the court on application.

If any party is unable to agree on the appointment of a mediator within 30 days after the date for the compulsory conference is fixed, either party may apply to the registrar of the court for the nomination of a mediator.

At least seven days before the compulsory conference is to be held, each party must give each other party the following:

• copies of all documents not yet given to the party that are relevant and required to be given for the claim
• a statement verifying that all relevant documents in the possession of the party or the party’s lawyer have been given as required
• if the party has legal representation, a certificate (a ‘certificate of readiness’) signed by the party’s lawyer to the effect that the party is ready for the conference.

A certificate of readiness must state the following:

• the party is completely ready for the conference
• all investigative material required for the conference has been obtained, including witness statements from persons, other than expert witnesses
• medical or other expert reports have been obtained from all persons the party proposes to rely on as expert witnesses at the conference
• the party has complied fully with the party’s obligations to give all other parties material that is relevant and required to be given for the claim
• the party’s lawyer has given the party a statement (a ‘financial statement’) containing the information required under the following points.

A financial statement must provide all of the following:

• details of the legal costs payable by the party to the party’s lawyer up to the completion of the conference
• an estimate of the party’s likely legal costs and net damages if the claim proceeds to trial and is decided by the court
• an estimate of the party’s likely legal costs and net damages of the claim is settled without proceeding to trial
• the consequences for the party, in terms of costs, in each of the following court cases if the claim proceeds to trial and is decided by the court:
  • the amount of the damages awarded by the court is equal to, or more than, the injured worker’s written final offer
• the amount of the damages awarded by the court is less than the injured worker’s written final offer but equal to, or more than, WorkCover’s final written offer
• the amount of the damages awarded by the court is equal to, or less than, WorkCover’s written final offer.

WorkCover must also give a copy of the certificates of readiness and WorkCover’s costs statement to the worker’s employer at least seven days before the compulsory conference.