Marginal note:Limits

41. Except with leave of the Tribunal, a party is not permitted to do any of the following at the hearing:

• (a) raise a position, seek to prove a material fact or to introduce a document that was not disclosed, or call a witness — other than an expert witness — who was not named, in its statement of particulars, reply or supplementary statement of particulars;

• (b) introduce an expert report into evidence or call the expert as a witness if the expert report was not provided in accordance with Rules 26 to 28; and

• (c) in the case of the Commissioner or the complainant, request any remedy or disciplinary action, as the case may be, that was not raised in its statement of particulars.

Marginal note:Examination outside hearing

• 42. (1) A party that wishes to examine a person who is unable to attend the hearing may make a motion to the Tribunal for an order to examine that person outside the hearing and to introduce that person’s evidence at the hearing.

• Marginal note:Directions required

  (2) If the Tribunal grants the party’s motion, the Tribunal must provide directions regarding

  • (a) the time, place and manner of the examination and cross-examination;

  • (b) the notices to be given to the person being examined, the parties and the interested persons;

  • (c) the attendance of parties; and

  • (d) the production of any documents requested by the examining party.

Marginal note:Exclusion of witnesses

• 43. (1) The Tribunal may order that a witness be excluded from the hearing room until they are called to give evidence.

• Marginal note:Exception

  (2) However, the Tribunal cannot order the exclusion of any witness who is a party or any witness whose presence is essential to instruct the party’s representative, but the Tribunal may require the witness to give evidence before any other witnesses are called to give evidence on behalf of that party.

Marginal note:Communication with excluded witnesses prohibited

44. If the Tribunal orders that a witness be excluded from the hearing room, it is prohibited for any person to communicate with the witness regarding the evidence given during their absence from the hearing room until the witness has been called and has finished giving evidence.

Marginal note:Application

• 45. (1) Subject to subrules (2) to (4) and except for Rules 5, 6 and 21, these Rules apply to the proceedings in respect of an application that is made to the Tribunal by the Commissioner under subsection 20.4(1) of the Act before the day on which these Rules come into force.

• Marginal note:Non-application

  (2) The time limits referred to in paragraph 23(a) and Rule 24 do not apply to the proceedings in respect of the application.

• Marginal note:Tribunal directions

  (3) If the Tribunal provides a party or interested person with directions regarding any matter of procedure that is governed by these Rules before the day on which these Rules come into force, they must continue to act in accordance with those directions and the Rules that would otherwise govern the matter do not apply.

• Marginal note:Non-application

  (4) If a Rule contains a time limit that requires the doing of a thing within a prescribed number of days before the day on which the hearing begins, the time limit does not apply if

  • (a) before the day on which these Rules come into force, the Tribunal provides the parties with directions regarding the time for the doing of the thing; or

  • (b) on the day on which these Rules come into force, there are no more than the prescribed number of days remaining before the day on which the hearing begins.