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Common Law Disclosure Policy

The object of the pre-proceedings process is to facilitate the just and expeditious resolution of the real issues of a claim, with minimum expense and duration for all parties (section 273). Appropriate disclosure by all parties helps identify and resolve the real issues, so parties can investigate and assess the prospects of the claim and prepare for early resolution. As a model litigant, WorkCover has an obligation to ensure appropriate disclosure occurs in a timely manner by all parties throughout the management of a claim.

This policy has been developed to clearly explain how WorkCover applies and expects disclosure obligations to be undertaken under section 279 of the Workers' Compensation and Rehabilitation and Other Legislation Amendment Act 2013. If relevant documents are not disclosed they cannot be used at trial unless given leave of the Court (section 285).

Disclosure must occur within 21 business days of the service of Notice of Claim or receipt of request, subject to section 284.

Where a document includes information that is not required to be disclosed e.g. it is privileged or gives rise to a reasonable suspicion of fraud, the document should still be disclosed with this information removed or concealed.

This disclosure obligation continues throughout the pre-proceedings and litigation process.

What must be disclosed?

The parties must exchange all documents relating to:

  • The circumstances of the event resulting in the injury
  • The worker's injury and
  • The worker's prospects of rehabilitation (section 279(1)(a)).

Examples of these documents include:

The Event

  • Any statements made by the claimant, employer, contributor(s) or other witness(es) which have been documented and have regard to the circumstances of the accident and the worker's injury including any written or formal statements, files notes, memoranda or other document, whether signed or unsigned, having the hallmark of a statement which has been adopted by the witness  and any updates to those
  • Any applications for compensation made by the worker and the associated claim files relating to the event
  • Letters of instruction and/or questions to factual investigators and liability experts
  • Documents from the employer relevant to the event  including  incident reports, maintenance records, logbooks, investigative reports and training records.

The Injury including financial loss from injury

  • Medical and hospital records, reports, and relevant information about the worker's injury
  • Previous claim files relating to  personal injuries, illnesses and impairments of a medical, psychiatric or psychological nature sustained by the worker from, before or after the event (whether related to the event or not) that may affect the assessment of permanent impairment and amount of damages.
  • Wage details of the claimant or a comparative employee
  • Letters of instruction and/or questions to doctors and allied health providers (including treating and independent practitioners)
  • Centrelink and Medicare Australia documents

Rehabilitation

  • Rehabilitation reports
  • Common Law Return to Work communications

What is not required to be disclosed?

Documents that are protected by legal professional privilege, Iegal communication between a client or the client's agent and their professional legal advisors for the dominant purpose of obtaining or providing legal advice or in anticipation of litigation.

However , section 284(2) outlines that even if legal professional privilege applies, investigative reports, medical reports and reports relevant to the worker’s rehabilitation and relevant documents under s 279, other than correspondence between a party and a party’s lawyer must be disclosed.

In the situation where WorkCover or a contributor has reasonable grounds to suspect a worker of fraud, information or documents which would alert the worker to the suspicion of fraud or could help further the fraud will not be disclosed. However, once there are no longer grounds for a suspicion of fraud, relevant documents must be disclosed (including any surveillance). The conclusion that there is clear evidence to reject a suspicion of fraud will be made on a case by case basis, but should coincide with a clear determination  not to prosecute a claimant for fraud.

Surveillance should be disclosed in the instance it confirms the extent of the claimant's claimed incapacity  and there is no continuing suspicion of fraud. Surveillance which does not contain footage of the claimant will be considered irrelevant and hence does not need to be disclosed.

Last updated
28 June 2019

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