Veterans Review Board

Transcription

1 Veterans Review Board Alternative Dispute Resolution Guidelines In carrying out its functions the Board must pursue the objective of providing a mechanism for review that is fair just economical informal and quick. The Board has, as a national approach, decided to make Alternative Dispute Resolution available to all Board appeals. 1. What is Alternative Dispute Resolution? Alternative Dispute Resolution (or ADR as it is commonly known) is a term which describes alternative process which can help parties to finalise a case, without the need for a Board hearing, so the expense and time of a hearing can be avoided. 2. If I participate in ADR, do I forego the right to a hearing? No, the involvement in an ADR process does not mean that the parties forgo their right to a hearing if the matter is not finalised. 3. What alternative processes are available to help finalise a case? Trial of Alternative Dispute Resolution in NSW and ACT A trial of Alternative Dispute Resolution (ADR) processes will be undertaken in NSW and ACT from 1 January 2015, for all new applications for review that are lodged from this date. ADR processes at the Board are conducted by a Conference Registrar, who may be a Board member. Generally, there will be one outreach and only two conferences held for each application. If a matter has not settled during the ADR process, the future conduct of the matter, including the possibility of another form of ADR and the requirements for a hearing, will be discussed at the final conference.

2 In all non trial locations (QLD, SA, WA, NT, VIC and TAS) case appraisal or neutral evaluation will continue to be available for all Board appeals. 4. Who will make a referral to an ADR process? All matters in NSW and the ACT lodged on or after 1 January 2015 will be automatically referred for the ADR trial. In all other locations, you can request that your case be referred for a case appraisal or neutral evaluation. Alternatively, Registry staff may refer a case for consideration of whether the matter maybe suitable for an case appraisal or neutral evaluation. If this occurs, the Board will consult with the representative (or in the case of unrepresented matters, the applicant), to obtain consent to refer the matter for a case appraisal or neutral evaluation. 5. What will happen in the ADR trial process? As set out in the General Practice Direction, the ADR trial processes at the Board are conducted by a Conference Registrar, who may be a Board member. Generally, there will be one outreach and only two conferences held for each application. If a matter has not settled during the ADR process, the future conduct of the matter, including the possibility of another form of ADR and the requirements for a hearing, will be discussed at the final conference. The process is informal, flexible and its course depends on the assessment of the Conference Registrar as to what is appropriate for the particular case. 5.1 Outreach The outreach will usually be held once the parties have the Departmental report and around 2 weeks after the Applicant s Advice form is received by the Board. The outreach will take place between the applicant and/or their representative and the Conference Registrar (outreach will not require participation by a Commission representative). The outreach will take place by telephone. If there are any special circumstances, a party may request that an outreach be held at an earlier or later date. The applicant and/or their representative are not required to prepare any written material for the outreach. However, a representative must have clear instructions from the applicant, understand the issues to be decided, know the next step they wish to take and know what evidence they want to gather. If the Board s assistance is required to obtain a report under s148(6a), it should be raised at the outreach. Please note that if you ask a Registrar to obtain material under s148(6a), the material whether favourable to your case or not, will be added to the section 137 report. Further, you may also wish to discuss with the Conference Registrar at outreach the merits of making an FOI request at this stage, or whether a request to the Commission for certain or further documents contained on the Departmental files should be directed by the Conference Registrar.

3 If an applicant is unrepresented, the outreach will ensure that an applicant is represented where possible by facilitating referrals to ex-service organisations and the Legal Aid Commissions. In some cases, the outreach may be adjourned instead of proceeding to a first conference and a further outreach may be rescheduled, with the aim of resolving an application prior to further conferencing where it is possible. Also, in some cases a Conference Registrar may direct that an application be referred for another ADR process (such as case appraisal or neutral evaluation) or listing for hearing, rather than proceeding to further conferencing. These outcomes will be discussed at the outreach and directions are generally made in consultation. 5.2 Conferences If an application is not resolved at an outreach, the first conference will usually be held 4 weeks after the outreach, or as directed by a Conference Registrar. The conference will be conducted by telephone and will take place between both the parties and a Conference Registrar. If there are any special circumstances, a party may request that a conference be held at an earlier or later date. Again, if an applicant has not been resolved at the first conference, a second conference will usually be held 12 weeks after the first conference, or as directed by the Conference Registrar. The conference will be conducted by telephone and will take place between both the parties and a Conference Registrar. The evidence that has been placed before the Board and the merits of each case will be discussed with a view to settlement. During the conferencing process, the Conference Registrar will: assist the parties to clarify their own interests and understand the interests of the other parties; identify and deal with case management issues; and make any appropriate referral to another ADR process. The Conference Registrar will explain the procedure for the finalisation of the matter at a Board hearing should it not be resolved during the conference process. He or she may give suggestions or advice as to narrowing issues in dispute, ADR options, preparation for hearing and options for resolution. 5.3 Preparation and Explanation of Process The Conference Registrar will outline the purpose and process of the conference including their role. He or she will also explain the process at the Board if the application is not resolved.

4 5.4 Issue Identification The applicant and/or their representative and the representative from the Commission, with the assistance of the Conference Registrar, will outline the case from his or her perspective. With the assistance of the Conference Registrar, the parties narrow the issues in dispute and clarify the legal framework within which the dispute is to be determined. There may also be a discussion about any further evidence that needs to be gathered. 5.5 Case management At the end of the first conference, the matter may be listed for another conference or some other ADR process or proceed to hearing. Depending on the progress of the matter, the Conference Registrar may make directions after the first, second or subsequent conference. Directions are generally made in consultation with the parties. 5.6 Resolution Using ADR techniques, the Conference Registrar will assist the parties to explore resolution options. This may occur during the first and/or subsequent conference(s). 5.7 Referral to other ADR processes The Conference Registrar will consider whether the application may be referred for another ADR process and where appropriate he or she will make a referral to that ADR process. 5.8 What do I need to provide for a Conference? 5.9 First Conference - Statement of Issues A statement of issues is not mandatory in all first conferences and a Conference Register will issue the parties with a direction, if it is required. If the parties are directed to provide a statement of issues, each must prepare a brief statement setting out the issue(s) they consider to be in dispute. The parties must exchange their statements and send a copy to the Board at least one working day prior to the first conference. The statement of issues must address the specific issue(s) in question and must not be expressed in general terms. A template is available on the Board s website.

5 5.10 Second Conference Statement of Facts and Contentions At least 14 days prior to the second conference, the applicant s representative is required to send a statement of facts and contentions to the Commission representative and the Board. This statement must clearly and concisely set out the facts upon which the applicant relies and any contentions to be drawn from those facts and should include references to relevant legislation and case law. All supporting material, including medical reports, questionnaires or statements, must also be exchanged and lodged at this time. At least 7 days prior to the second conference, the Commission representative is to send to the applicant s representative and the Board a statement in reply, together with all relevant material. This statement is similar to the Board s submission templates. An updated template for statements of facts and contentions is available on the Board s website. If the facts are not in dispute between the parties, an agreed statement of facts should be sent to the Board 14 days before the second conference. The parties will then have 7 days to lodge a statement of the contentions which they say should be drawn from those facts. Unrepresented applicants are not required to prepare a statement of facts and contentions Please refer to the General Practice Direction for more information on what you need to prepare and/or provide at each step of the ADR trial process. 6. Case appraisal What should I consider in referring a matter for Case Appraisal? Does the matter turn on a particular evidentiary or factual issue? Would the hearing be complex and lengthy? Would additional independent investigation assist in finalising the matter? Would it be more convenient to evaluate on the papers? What do I need to provide for a Case Appraisal? You should provide material in support of the application, along with your submissions to clarify issues of diagnosis, kind of death (where applicable), medical and other evidentiary matters. The case appraisal will be expedited, where there is relevant material is provided to assist the member conducting the appraisal.

6 How does Case Appraisal work? Case Appraisal is a process of assessing the facts in a case and by that process assisting the parties to finalise the matter. The process is outlined below: 1. The Case Appraisal process is undertaken in confidence and without prejudice to the parties. 2. The appraiser (usually a Board member) reads all of the documents, including any submissions sent by the parties. 3. The appraiser assesses the merits of the case. 4. An outcome of Case Appraisal may be that a favourable decision can be made on the papers. However, this is a decision for the individual Member assessing the case and cannot be pre-determined. 5. If a favourable decision can be made, the applicant or representative will be sent a draft copy of the decision. If the applicant or representative accept the draft decision, it will be published in the usual way. If not accepted, the matter will proceed to hearing. 6. If a favourable decision cannot be made on the papers, at the request of a party, the appraiser may give a written opinion about the factual issues in dispute. This will only be a summary of the likely outcome at a hearing of the factual issues based on the evidence available at the time of the Case Appraisal. The opinion may be admitted in evidence at the Board hearing unless a party objects to the admission of the opinion. 7. Further, the appraiser may make directions for the Registrar to obtain relevant information which may assist in finalising the matter on the papers or to progress the matter to a hearing. Once the further evidence is received, you will be sent a copy and you will have 28 days to provide any amended submissions in response to the new material. 8. Unless a favourable decision can be made on the papers, the matter will normally proceed to a hearing. 7. Neutral Evaluation What should I consider in referring a matter for Neutral Evaluation? You can identify a legal and/or factual issue that is decisive. You are willing to have the identified issue evaluated. Most investigations and gathering of evidence has been completed.

7 How does Neutral Evaluation work? Neutral Evaluation is different to case appraisal. It is where an evaluator provides you with an opinion about the outcome of a case, which can help you work out if there is a setback in the application. The Neutral Evaluation process is undertaken in confidence and without prejudice to the parties. Before participating in Neutral Evaluation, you are strongly encouraged to prioritise the issues for consideration. The evaluator will focus specifically on key issues raised by the facts of a case (as presented by the parties) as well as relevant questions of law. At the conclusion of the evaluation, the evaluator will offer the parties a nonbinding opinion either on: What they think the possible or probable outcomes may be; or A particular point of law. The purpose of the non-binding opinion is to provide an objective basis to assess how to proceed. If the matter is not finalised, the evaluator may recommend further relevant information be sought, which may assist in achieving finalisation through the use of some other ADR process or to progress the matter to a hearing. Doug Humphreys Principal Member 13 October 2015