Dust Diseases Tribunal Amendment (Claims Resolution) Act 2005 (NSW)
An Act to amend the Dust Diseases Tribunal Act 1989 and the Dust Diseases Tribunal Regulation 2001 to make further provision for the resolution of claims in respect of dust-related conditions and the jurisdiction and practice and procedure of the Dust Diseases Tribunal; and for other purposes.
This Act is the Dust Diseases Tribunal Amendment (Claims Resolution) Act 2005.
This Act commences on a day or days to be appointed by proclamation, except as provided by this section.
Schedule 3 (Amendment of Civil Procedure Act 2005) commences on the date of assent to this Act or the date of assent to the Civil Procedure Act 2005 whichever is the later.
The Dust Diseases Tribunal Act 1989 is amended as set out in Schedule 1.
The Dust Diseases Tribunal Regulation 2001 is amended as set out in Schedule 2.
Sections 39, 40 and 41 of the Interpretation Act 1987 do not apply to the amendments made by subsection (1).
The Civil Procedure Act 2005 is amended as set out in Schedule 3.
The Dust Diseases Tribunal Rules are amended as set out in Schedule 4.
Sections 39, 40 and 41 of the Interpretation Act 1987 do not apply to the amendments made by subsection (1).
(Section 3)
Omit the definition of
Insert after section 11 (1):
Proceedings by any tort-feasor liable in respect of damages referred to in subsection (1) to recover contribution from any other tort-feasor liable in respect of that damage may be brought before the Tribunal.
This subsection does not prevent those proceedings being brought in another court.
Insert “or (1A)” after “subsection (1)” wherever occurring.
Omit section 13 (3).
Insert after section 14 (4):
Part 8 (Enforcement of judgments and orders) of the Civil Procedure Act 2005 does not apply to authorise the Tribunal to exercise any function of a court under that Part.
Omit the sections.
Insert after section 20 (6):
This section is subject to the regulations.
Omit the section.
Insert after section 25B (1):
If an issue of a general nature already determined in proceedings before the Tribunal (the
Omit the section.
Omit the section.
Omit the section.
Omit the section.
Omit the Part. Insert instead:
In this Part:
The Governor may make regulations for or with respect to the following:
(a) the establishment of a claims resolution process for claims, with procedures for identifying the issues in dispute between the parties to a claim and the settlement of claims by alternative dispute resolution processes,
(b) procedures and presumptions for the apportionment of liability between defendants and cross-defendants in connection with a claim,
(c) the making and acceptance of offers of compromise and the consequences by way of costs penalties and costs relief of the rejection of an offer by a party who fails to improve their position at hearing,
(d) identifying the issues that remain in dispute when a claim is not settled by the claims resolution process and limiting the determination of the claim in the Tribunal to a determination of those issues,
(e) subpoenas to give evidence or to produce any document or thing, including the issue and return of subpoenas and compliance with subpoenas,
(f) costs (including disbursements) payable by a party in or in relation to a claim,
(g) the practice and procedure to be followed in proceedings and any other matter for or with respect to which rules may be made under this Act,
(h) the exclusion of any proceedings or class of proceedings from the operation of any specified provision of the Civil Procedure Act 2005 or the rules made under that Act,
(i) the modification of any specified provision of the Civil Procedure Act 2005 or the rules made under that Act in its application to any proceedings or class of proceedings.
Without limitation, this section authorises the making of regulations for or with respect to the following:
(a) the exchange of information between the parties to a claim,
(b) the compulsory mediation of claims and the functions, privileges, remuneration, immunities and protections of mediators and parties to mediation,
(c) procedures and presumptions for the apportionment of liability between defendants and cross-defendants (including by providing for the making of determinations as to apportionment and for the determination by the Minister of standard presumptions as to apportionment),
(d) the appointment of a single claims manager to be responsible for managing and otherwise dealing with a claim on behalf of all defendants and cross-defendants to the claim,
(e) determining the issues in dispute between the parties, and the facts and evidence that may be relied on by the parties, for the purpose of the determination by the Tribunal of a claim that has been through the claims resolution process,
(f) requiring the parties to a claim and their legal representatives to provide information about or relevant to the claim and any aspect of the claim (including costs and disbursements incurred in connection with a claim),
(g) the awarding of costs on a party and party basis, on an indemnity basis, or on any other basis, including costs penalties and costs relief in connection with a contravention of any provision of the regulations,
(h) the assessment of costs payable to a legal practitioner in connection with a claim, including by providing for the modification of provisions of the Legal Profession Act 1987 or the Legal Profession Act 2004 with respect to the assessment of those costs,
(i) suspending the operation of any provision of rules of court and any direction or order of the Tribunal under a provision of this or any other Act or rules of court while a claim is subject to the claims resolution process or other procedures under the regulations or subsequently, pending its determination by the Tribunal.
The regulations under this section prevail to the extent of any inconsistency between a provision of those regulations and a provision of the Civil Procedure Act 2005, rules of court or any direction or order of the Tribunal made under a provision of this or any other Act or rules of court.
The provisions of the Dust Diseases Tribunal Regulation 2001 inserted in that Regulation by the Dust Diseases Tribunal Amendment (Claims Resolution) Act 2005 are provisions that are authorised by and made under this section.
Regulations under this section may apply to all claims or to a particular class or classes of claim.
The regulations may provide that specified provisions of the regulations under this section are part of the procedural law of the State for the purposes of the determination of any claim.
A legal practitioner who acts for a party on a claim must provide the Registrar with such information concerning the claim as the regulations may require for the purposes of this section.
If both a barrister and a solicitor act for a party, the obligation to comply with subsection (1) falls on the solicitor and not the barrister.
A failure by a legal practitioner to comply with this section is capable of being unsatisfactory professional conduct by the legal practitioner.
If a party to a claim is not represented on the claim by a legal practitioner, the party must provide the information required by this section (as and when a legal practitioner representing the party would be required to provide it).
Maximum penalty: 5 penalty units.
The Registrar is to maintain a database of the information provided to the Registrar under this section and is to maintain and provide access to that database in accordance with such directions as the Attorney General may give to the Registrar from time to time.
The Registrar must provide to the Attorney General such reports with respect to information provided to the Registrar under this section as the Attorney General may from time to time direct.
Any document (other than a report under subsection (6)) that contains information provided to the Registrar under this section, and the database maintained by the Registrar under this Part, are not subject to the Freedom of Information Act 1989.
A person who in the course of the administration of this Act obtains information provided to the Registrar under subsection (1) (not including information included in a report under subsection (6)) must not directly or indirectly make a record of the information or divulge it to another person except:
(a) with the consent of the person who provided the information to the Registrar, or
(b) in connection with the administration or execution of this Act, or
(c) in accordance with a requirement imposed by or under a law of the State (other than a requirement imposed by a subpoena or other compulsory process) or of the Commonwealth.
Maximum penalty: 50 penalty units.
Insert as section 33 (8) and (9):
The adoption by the rules by reference of any rules made under the Supreme Court Act 1970 operates in the case of any such rules that are subsequently repealed (subject to any express provision to the contrary) as an adoption of those rules as in force immediately before their repeal, and continues to operate despite their repeal.
The provisions of this Act prevail to the extent of any inconsistency between those provisions and a provision of the Civil Procedure Act 2005 or the Uniform Civil Procedure Rules 2005.
Insert after section 35:
Proceedings for an offence under this Act or the regulations may be dealt with summarily before a Local Court.
Omit the section. Insert instead:
Division 5 of Part 6 of the Civil Procedure Act 2005 extends to proceedings before the Tribunal in relation to any liability of an employer to or in respect of whom section 151AB of the Workers Compensation Act 1987 applies.
However, that Division does not apply to any claim in respect of which an inter-insurer dispute remains unresolved.
Insert at the end of clause 1 (1):
Dust Diseases Tribunal Amendment (Claims Resolution) Act 2005
Insert after Part 5:
An amendment of section 11 by the Dust Diseases Tribunal Amendment (Claims Resolution) Act 2005 extends to a cause of action that arises before the commencement of the amendment.
Section 25B (1A) as inserted by the Dust Diseases Tribunal Amendment (Claims Resolution) Act 2005 extends to a judgment of the Tribunal in proceedings after the commencement of the amendment even if the earlier proceedings referred to in that subsection were determined before that commencement.
An amendment made by Schedule 1 [4]–[8], [10]–[13] or [15]–[17] of the Dust Diseases Tribunal Amendment (Claims Resolution) Act 2005 extends to proceedings in the Tribunal commenced before the commencement of the amendment.
(Section 4)
Insert in alphabetical order:
Omit the heading to Part 3. Insert instead:
Insert after Part 3:
In this Part:
This Part applies to a claim in respect of an asbestos-related condition that is made by the person who is or was suffering from the asbestos-related condition (or by a person claiming through that person) or that is a cross-claim by a defendant on such a claim.
A reference in this Part to the service of the plaintiff’s statement of particulars on the last of the original defendants is a reference to service under Division 3 of the plaintiff’s statement of particulars:
(a) if there is only one original defendant—on that defendant, or
(b) if there is more than one original defendant—on the last of the original defendants to be served.
This Part applies only to the following claims:
(a) claims commenced by statement of claim filed on or after 1 July 2005,
(b) claims commenced by statement of claim filed before 1 July 2005 (
current claims ) but only if:(i) a hearing date for the claim has not been set before 1 July 2005, and not if each of the parties to the claim has notified the Registrar in writing that the parties have agreed that this Part is not to apply to the claim, or
(ii) all of the parties to the claim have agreed that this Part is to apply to the claim.
If this Part applies to a current claim, the plaintiff must (when the plaintiff is ready to proceed) provide each defendant and cross-defendant with a proposal in writing (a
The plaintiff’s current claim proposal is to identify the following:
(a) the steps already taken by the parties in connection with the claim that should be taken to constitute performance of particular steps in the claims resolution process,
(b) the point in the claims resolution process that the claim should be regarded as having reached,
(c) any further steps that need to be taken by the parties to bring the claim to a particular point in the claims resolution process (including a timetable for completing any required steps),
(d) any modifications to the timetable for completion of the claims resolution process that may be necessary to enable completion of the claims resolution process, while giving effect to the maximum extent possible to the timetable for completion of that process as set out in this Part.
The parties must act reasonably in trying to reach agreement on the plaintiff’s current claim proposal.
If the parties have not reached agreement within 10 business days after the plaintiff’s current claim proposal is provided to the last defendant or cross-defendant to be provided with the proposal, any party may notify the Registrar that agreement has not been reached and the Registrar is then to determine the matters in dispute.
The matters agreed by the parties or determined by the Registrar for the purposes of a current claim proposal have effect for the purpose of varying the requirements of this Part as to the time within which any relevant aspect of the claims resolution process must be completed, and this Part is varied accordingly in its application to the current claim concerned.
Clause 18 (Removal of certain claims from claims resolution process) provides for claims that are determined to be urgent to be removed from the claims resolution process. This is available for current claims.
The provisions of this Part form part of the procedural law of the State for the purposes of the determination of any claim.
A claim to which this Part applies is subject to the claims resolution process once the claim is filed.
Clause 18 provides for some claims to be removed from the claims resolution process.
A claim remains subject to the claims resolution process:
(a) until the claim is settled by mediation or otherwise and the Tribunal makes an order to give effect to the settlement, or
(b) if the claim is not settled by the time mediation is concluded—until mediation is concluded and clause 33 (Unsuccessful mediation—agreement as to issues in dispute) has been complied with.
The parties to a claim can agree to extend the period for which the claim remains subject to the claims resolution process.
If a significant change in the medical condition of the plaintiff occurs after the claim is filed, the parties to the claim can agree (on one or more occasions) to suspend the claims resolution process for a period of up to:
(a) 10 business days for malignant claims, or
(b) 20 business days for non-malignant claims,
with the result that during any such suspension time does not run for the purposes of any period within which anything is required to be done by a party under the claims resolution process.
While a claim is subject to the claims resolution process:
(a) the parties to the claim must comply with the provisions of this Part, and
(b) proceedings in the Tribunal to determine the claim are deferred and the claim is not subject to case management by the Tribunal, and
(c) the claim is not subject to the provisions of rules of court, or any direction or order of the Tribunal under a provision of the Act, any other Act or rules of court, as to any steps to be taken in proceedings on the claim or for the referral of the claim for alternative dispute resolution, such as mediation.
Clause 18 provides for the removal of certain claims from the claims resolution process.
This clause does not affect the application of the practice and procedures of the Tribunal with respect to:
(a) the amendment of the statement of claim to join a party before the plaintiff’s statement of particulars is served, or
(b) the amendment of the statement of claim to join a party to the claim at the request of the plaintiff where the Tribunal is satisfied that it is necessary to do so to preserve the plaintiff’s cause of action, or
(c) the amendment of the statement of claim to add a claim under the Compensation to Relatives Act 1897 after the death of the plaintiff, or
(d) the making of cross-claims, except to the extent of any inconsistency with clause 21 (Cross-claims by defendant), or
(e) the making of orders to give effect to any agreement or arrangement between the parties, whether resulting from an offer of compromise or otherwise, or
(f) the issue and return of subpoenas, or
(g) the granting of leave to commence an action under section 6 of the Law Reform (Miscellaneous Provisions) Act 1946, or
(h) the amendment of the statement of claim to discontinue proceedings against a party.
If a claim is not settled through the claims resolution process, proceedings in the Tribunal can proceed or the parties can decide to continue with attempts to settle the claim.
If the plaintiff dies, the claims resolution process is suspended until:
(a) the Tribunal amends the statement of claim to add a claim under the Compensation to Relatives Act 1897, or
(b) the claimant notifies the parties to the claim that the matter is ready to proceed,
with the result that during that suspension time does not run for the purposes of any period within which anything is required to be done by a party under the claims resolution process.
A claim is removed from (and is therefore not subject to) the claims resolution process if:
(a) the Tribunal determines, on application by the claimant and on the basis of medical evidence presented for the claimant, that the claim is urgent, or
(b) all the parties to the claim agree, following the required information exchange, that the claim should not be the subject of the claims resolution process and notify the Registrar accordingly, or
Note— For example, the parties may consider that the claim raises novel issues (in the nature of a “test case”) that are unlikely to be resolved by the claims resolution procedures.
(c) the Tribunal determines on application by a party (
the applicant ) that the claim should be removed from the claims resolution process because another party to the claim has failed to comply with a requirement of the claims resolution process and that failure has resulted in substantial prejudice to the applicant or substantial delay.
A claim is
If a non-malignant claim would not be urgent if it were to be treated for the purposes of the claims resolution process as a malignant claim, the Tribunal must (instead of determining that the claim is urgent) order that the claim is to be treated as a malignant claim for the purposes of the claims resolution process.
A non-malignant claim is also to be treated as a malignant claim for the purposes of the claims resolution process if all the parties to the claim agree that the claim should be treated as a malignant claim and notify the Registrar accordingly.
An application for a determination by the Tribunal that a non-malignant claim is urgent must not be made until the parties have used their best efforts to reach agreement as provided by subclause (4).
The Tribunal is not to determine that a claim should be removed from the claims resolution process because a party to the claim has failed to comply with a requirement of the claims resolution process unless the Tribunal is satisfied that the failure is continuing and that the party has been notified of and requested to remedy the failure.
A claim that is removed from the claims resolution process by agreement of the parties is required under clause 51 (Non-urgent claims to be subject of directions hearing) to be referred to the Tribunal for directions.
If a claim is removed from the claims resolution process because the Tribunal determines under this clause that the claim is urgent, the Tribunal must consider whether to order the application to the claim of the provisions of Divisions 4 (Compulsory mediation) and 5 (Apportionment), and:
(a) if the Tribunal does so order:
(i) those provisions apply as if the claim were still subject to the claims resolution process (subject to any modifications ordered under subparagraph (ii)), and
(ii) the Tribunal may, in ordering the application of those provisions to the claim, order that those provisions apply subject to specified modifications, and
(iii) the Tribunal must by its order specify the period within which mediation or apportionment under the applied provisions must be completed, or
(b) if the Tribunal does not so order despite an application for such an order by a party to the claim, the Tribunal must give its reasons for not so ordering.
A party to a claim who is required by a provision of this Part to provide documents or information to another party by way of a statement of particulars or reply must, while the claim is subject to the claims resolution process, update or notify any necessary changes to the documents and information provided (as and when any relevant new or changed documents or information becomes available).
The plaintiff on a claim must file and serve on each original defendant (with the plaintiff’s statement of claim) a statement of particulars of the plaintiff’s claim.
The plaintiff’s statement of particulars:
(a) must be in the form set out in Form 1 in Schedule 2, and
(b) must specify the information that is required to complete that form, and
(c) must be accompanied by such documents and information as that form requires (and is not required to be accompanied by any other documents or information).
If documents or information required to accompany the plaintiff’s statement of particulars is not available to the plaintiff when the statement of particulars is filed and served:
(a) the statement must indicate this, and
(b) the plaintiff must provide the documents or information to each original defendant as and when they become available to the plaintiff.
The plaintiff should not obtain witness statements and expert or other reports before filing the statement of particulars. The defendant will indicate under clause 22 (7) whether further information is required, having regard to the issues that remain in dispute.
The plaintiff’s statement of claim in the proceedings is not properly served on the defendant until the statement of particulars has been served on the defendant.
Rules of court provide for the period for which a statement of claim remains valid for service after it is filed.
Within 5 business days after serving the plaintiff’s statement of particulars on a defendant the plaintiff must notify the Registrar and each of the original defendants of the date on which the statement of particulars was served on the last of the original defendants.
A defendant is entitled to be informed by the Registrar, on request to the Registrar, of the date of service of the plaintiff’s statement of particulars on the last of the original defendants.
This clause does not apply if the plaintiff’s statement of claim is filed in conjunction with an application by the claimant under clause 18 (Removal of certain claims from claims resolution process) for a determination by the Tribunal that the claim is urgent and that application results in the making of such a determination by the Tribunal.
When subclause (7) applies, the statement of claim will be regarded as having been served when it was actually served and a statement of particulars is not required.
An original defendant in proceedings must make any cross-claim as soon as practicable after being served with the plaintiff’s claim in the proceedings.
Cross-claims by all defendants (including original defendants) must be filed and served within:
(a) 10 business days for malignant claims, or
(b) 30 business days for non-malignant claims,
after service of the plaintiff’s statement of particulars on the last of the original defendants.
An original defendant may request the plaintiff to extend the time for filing and serving a cross-claim but can only make such a request before the end of the period within which a cross-claim is required to be filed and served.
The time for filing and serving a cross-claim cannot be extended in total by more than:
(a) 10 business days for malignant claims, or
(b) 20 business days for non-malignant claims.
A plaintiff is required to consent to a request to extend the time for filing and serving a cross-claim unless the plaintiff is able to demonstrate that the extension requested would result in substantial prejudice to the claimant.
A failure by the plaintiff to consent despite being required to do so constitutes a failure to comply with a provision of this Part and may be taken into account by the Tribunal in making an order for the payment of costs.
An extension of the time for filing and serving a cross-claim operates to extend (for the period of the extension) all subsequent time periods within which anything is required to be done under the claims resolution process in respect of the claim concerned.
If a person is identified as the insurer of a defendant only after expiry of the period within which a cross-claim is required under this clause to be filed and served on the insurer:
(a) a cross-claim may, with the consent of the plaintiff, be filed and served on that insurer after the expiry of that period, and
(b) the plaintiff must not refuse that consent unless the plaintiff can establish that the joining of the insurer will result in substantial prejudice to the plaintiff, and
(c) once joined, the insurer is entitled to update the defendant’s reply, and
(d) the joining of the insurer does not affect the running of any time period for the purposes of the claims resolution process.
A cross-claim that is not filed and served as required by this clause cannot be made in the proceedings (but without affecting any right of a defendant to pursue the claim in separate proceedings commenced by the defendant).
A defendant must serve a copy of the plaintiff’s statement of claim and statement of particulars with the defendant’s cross-claim. A defendant’s cross-claim is not properly served until a copy of the plaintiff’s statement of claim and statement of particulars is served.
A defendant’s cross-claim must notify the cross-defendant of the date on which the plaintiff’s statement of particulars was served on the defendant (or on the last of the original defendants on the claim to be served if there was more than one original defendant) as required by this Division.
A defendant in proceedings must file and serve on the claimant and each other party to the claim (including other defendants) a reply to the claim against the defendant.
The defendant’s reply:
(a) must be in the form set out in Form 2 in Schedule 2, and
(b) must specify the information that is required to complete that form, and
(c) must be accompanied by such documents and information as that form requires (and is not required to be accompanied by any other documents or information), and
(d) in the case of the reply served on the plaintiff, need not specify the information required by Part 8 (Apportionment of liability among defendants) of that form.
If information or documents required to accompany a defendant’s reply is not available to the defendant when the reply is filed and served:
(a) the statement must indicate this, and
(b) the defendant must provide the documents or information to the claimant and each other party as and when they become available to the defendant.
A reply by an original defendant must be served within:
(a) 20 business days for malignant claims, or
(b) 30 business days for non-malignant claims,
after the claim is served on the defendant.
A reply by a defendant other than an original defendant must be served within:
(a) 30 business days for malignant claims, or
(b) 60 business days for non-malignant claims,
after service of the plaintiff’s statement of particulars on the last of the original defendants.
If the plaintiff’s claim alleges that the asbestos-related condition with which the claim is concerned occurred in the course of employment, the plaintiff’s statement of particulars can require an early response on that issue from a defendant who is alleged to be an employer, in which case the defendant must, within 10 days after the claim is served on the defendant, provide the response and attach the evidence required by 3.1–3.3 of Part 3 (Response to claim relating to employment) of Form 2 in Schedule 2.
A defendant’s reply must indicate whether the defendant requires more information from the plaintiff about the plaintiff’s claim and the nature of that information, and must indicate whether the defendant requires an opportunity to inspect any premises or place.
The plaintiff must comply with any reasonable requirement of the defendant for more information concerning the plaintiff’s claim (whether made as part of the defendant’s reply or subsequently) and must provide that information as soon as practicable and in any case no later than 5 days before the start of mediation.
In this clause:
If a defendant does not admit an issue, the plaintiff may request the defendant to provide the plaintiff with information not already provided to the plaintiff on which the defendant proposes to rely in respect of that issue, including documentary evidence, witness statements and a summary of expert medical opinions.
A defendant must comply with any reasonable requirement of the plaintiff under this clause and must provide that information as soon as practicable and in any case no later than 5 days before the start of mediation.
An original defendant who requires the plaintiff to attend for a medical examination in connection with the plaintiff’s claim must notify the plaintiff of that requirement within:
(a) 10 business days for malignant claims involving only one defendant, or
(b) 20 business days for malignant claims involving more than one defendant, or
(c) 30 business days for non-malignant claims involving only one defendant, or
(d) 50 business days for non-malignant claims involving more than one defendant,
after service of the plaintiff’s statement of particulars on the last of the original defendants.
Any medical examination of the plaintiff that an original defendant requires must take place within:
(a) 20 business days for malignant claims involving only one defendant, or
(b) 30 business days for malignant claims involving more than one defendant, or
(c) 40 business days for non-malignant claims involving only one defendant, or
(d) 60 business days for non-malignant claims involving more than one defendant,
after service of the plaintiff’s statement of particulars on the last of the original defendants.
The period within which a medical examination is required to take place under subclause (2) may be varied by agreement between all the parties to the claim. Any such variation has no effect the running of any other time period for the purposes of the claims resolution process.
If more than one original defendant requires the plaintiff to attend for a medical examination in connection with the plaintiff’s claim, the plaintiff is entitled to choose to have those medical examinations conducted as a joint examination (with one examination on one occasion by the medical practitioners concerned) as an alternative to attending each examination separately.
Subclause (4) does not apply to a medical examination required by a defendant if the defendant objects to the examination being conducted as part of a joint examination of the plaintiff.
An original defendant who obtains a report of the results of a medical examination of the plaintiff must on request by any cross-defendant provide the report to the cross-defendant.
Once a claim is no longer subject to the claims resolution process, a cross-defendant can seek the leave of the Tribunal under rules of court to attend for a medical examination.
After serving the party’s statement of particulars or reply on a claim, a party to a claim may only change the facts on which the party relies (whether by way of addition, deletion or correction) if the change is due to:
(a) the discovery by the party of facts that were not known to and not reasonably discoverable by the party before serving the party’s statement of particulars or reply, or
(b) the plaintiff remembering facts only after serving the plaintiff’s statement of particulars, or
(c) a change by another party to the facts on which that other party relies.
In determining whether facts were reasonably discoverable by a party, regard is to be had to what would be likely to be discovered by the party in the reasonable pursuit of the party’s claim or defence.
A fact is not reasonably discoverable by a party if the only way in which it could be discovered is by the exercise of a power of the Tribunal.
A change to the facts on which a party relies must be notified to the other parties to the claim as soon as practicable after the party making the change becomes aware of the need for the change.
This clause does not prevent a party changing the facts on which the party relies but any change that is not authorised by this clause constitutes a contravention of this clause for the purposes of clause 53 (Costs penalties).
The Dust Diseases Board must, at the request of any party to a claim, give the party access to and allow the party to make a copy of, or provide the party with a copy of, any file of information maintained by the Board for the purpose of or in connection with a claim by the plaintiff for payment of compensation under the Workers’ Compensation (Dust Diseases) Act 1942.
The Dust Diseases Board may require payment of a fee by a party to cover the Board’s reasonable costs incurred under this clause.
A claim that is subject to the claims resolution process must be referred for mediation under this Division.
Referral of a claim for mediation does not prevent or interfere with the parties pursuing settlement negotiations outside of mediation.
The claim must be referred for mediation within:
(a) 30 business days for malignant claims involving only one defendant, or
(b) 50 business days for malignant claims involving more than one defendant, or
(c) 60 business days for non-malignant claims involving only one defendant, or
(d) 100 business days for non-malignant claims involving more than one defendant,
after service of the plaintiff’s statement of particulars on the last of the original defendants.
If a claim is not referred for mediation within the time required by this clause, the Registrar must immediately refer the claim for mediation.
Until the Registrar has been notified that a claim has been settled the Registrar is to presume that the claim has not been settled and is to presume that a claim has not been referred for mediation unless the Registrar has been notified that the claim has been referred for mediation.
If a claim involves more than one defendant, the claim must not be referred for mediation until:
(a) the defendants have reached agreement as to the contribution that each is liable to make to the plaintiff’s damages, or
(b) if the defendants cannot reach agreement as to that apportionment, until the Contributions Assessor has determined the matter.
The Registrar may, with the agreement of all the parties to a claim, defer referring the claim for mediation on one occasion only for the period agreed by the parties, but not exceeding:
(a) 5 business days for a malignant claim, or
(b) 20 business days for a non-malignant claim.
The period of any such deferral is to be added to the relevant period in clause 29 (1), so as to extend the period within which mediation of the claim concerned must be concluded.
Mediation of a claim must be concluded within:
(a) 45 business days for malignant claims involving only one defendant, or
(b) 60 business days for malignant claims involving more than one defendant, or
(c) 90 business days for non-malignant claims involving only one defendant, or
(d) 120 business days for non-malignant claims involving more than one defendant,
after service of the plaintiff’s statement of particulars on the last of the original defendants.
A mediator may defer mediation (on one or more occasions) to allow the parties sufficient time to properly consider information provided before or during mediation or to allow time for information not yet available to be provided, but must not defer mediation if the mediator is of the opinion that deferral would result in substantial prejudice to a party or substantial delay.
Deferral of mediation may be for a period not exceeding (on each occasion of deferral):
(a) 5 business days for a malignant claim, or
(b) 20 business days for a non-malignant claim.
The period of any such deferral is to be added to the relevant period in subclause (1), so as to extend the period within which mediation of the claim concerned must be concluded.
A claim is referred for mediation by the appointment of a mediator to conduct the mediation.
A mediator can be appointed:
(a) by the parties by agreement, or
(b) by the Registrar at the request of the parties, or
(c) by the Registrar if the claim is referred for mediation by the Registrar.
A mediator appointed by the Registrar must be appointed from a list of mediators compiled by the President.
The President is to compile a list of persons considered by the President to be suitable to be mediators for the purposes of this Part. As far as practicable, mediators should be persons with experience in claims in respect of dust-related conditions.
The persons chosen by the President are to be chosen from among a list of persons nominated jointly by the Law Society of New South Wales and the New South Wales Bar Association or, failing such a nomination, of the President’s own choosing.
Mediation for the purposes of this Part is a structured negotiation process in which the mediator, as a neutral and independent party:
(a) assists the parties to a claim to achieve their own resolution of the claim, and
(b) assists the parties to narrow the issues in dispute, and
(c) makes recommendations to the parties concerning the acceptance of offers and the likely outcome of proceedings.
It is the duty of each party to a claim that is referred for mediation to participate, in good faith, in the mediation.
A mediator may issue a certificate to the effect that in the mediator’s opinion a party to a claim referred for mediation did not participate in good faith in the mediation.
A defendant may impose a monetary limit on the authority of a single claims manager to settle a claim on behalf of the defendant but must act reasonably in imposing that limit. The imposition of such a limit is an aspect of participation by a defendant in mediation and can be the subject of a certificate of the mediator under this clause. See clause 48.
Each defendant to a claim must be present or represented at a mediation session.
If there is a single claims manager for a claim:
(a) the single claims manager must be present or represented at a mediation session, and
(b) (despite subclause (1)) no other defendant for whom the single claims manager acts is required to be present or represented at a mediation session unless the mediator otherwise directs.
The plaintiff must be present at a mediation session (either in person or by telecommunications link) unless a medical practitioner has certified that the plaintiff is not fit to be present.
The mediator may control who is in attendance at a mediation session and may limit the number of representatives that a party has at a mediation session.
A party represented at a mediation session must be represented by a person with sufficient authority to make binding decisions on behalf of the party with respect to the claim. The mediator may refuse to allow a person to represent a party at the mediation unless satisfied that the person has that authority.
The mediator may require that a defendant be represented at a mediation session by a designated officer of the defendant whose functions include the management or control of the administration of claims against the defendant (such as the officer designated by the title of Claims Manager or a similar title).
In this clause:
If a claim that is the subject of mediation is not settled before the mediation is required to be concluded, the mediator must:
(a) notify the Registrar that the claim has not been settled, and
(b) require the parties to the mediation to agree on which issues are in dispute between the parties and on the facts that are relevant to those issues.
The mediator is to certify as to what the parties have agreed as the issues in dispute and the facts relevant to those issues and is to file the certificate with the Registrar and provide a copy of the certificate to each of the parties.
When a claim that is the subject of a mediator’s certificate under this clause is before the Tribunal for determination:
(a) the Tribunal must determine the claim on the basis that the issues agreed to be in dispute are the only issues in dispute between the parties and on the basis of the agreed facts, as certified by the mediator, and
(b) the parties are not permitted to raise any other issue as an issue in dispute between the parties.
If the parties to mediation do not agree on which issues are in dispute, each party must lodge with the Tribunal a statement of the issues that the party considers are in dispute and a statement of the facts as alleged by the party that are relevant to those issues.
If a party to proceedings includes in its statement of the issues that the party considers are in dispute an issue that in the proceedings is not determined in favour of the party and that the Tribunal determines was unreasonably left in dispute, the party is liable to pay the costs of any other party to the proceedings, assessed on an indemnity basis, that are occasioned by establishing, or by preparation for the purpose of establishing, how the issue is to be determined.
In determining whether an issue was unreasonably left in dispute by a party, consideration must be given to the steps taken by the party to ascertain whether there was a reasonable basis for doing so.
For the purposes of this clause, when a party to proceedings admits that an issue is not an issue in dispute in the proceedings, the issue is considered to be an issue that has not been determined in favour of the party.
If a party to proceedings disputes a fact and subsequently that fact is proved in the proceedings or admitted for the purpose of the proceedings by the disputing party, and the Tribunal determines that the fact was unreasonably left in dispute, the disputing party is liable to pay the costs of any other party to the proceedings, assessed on an indemnity basis, occasioned by proof of the fact or preparation for the purpose of proving the fact.
If mediation of a claim results in settlement of the claim, the mediator may, on the application of a defendant who intends to dispute in subsequent proceedings the contribution that the defendant is liable to make to the damages recovered by the plaintiff, require the plaintiff to give evidence on oath before the mediator in respect of any matter that appears to the mediator to be relevant to the liability of any person to contribute in respect of damages payable on the claim.
If the plaintiff is to be required to give evidence under this clause, the mediator is to determine the arrangements for the taking of that evidence and advise the parties of those arrangements.
That evidence is to be given immediately following the conclusion of mediation unless the mediator determines that the giving of that evidence should be delayed.
A defendant who wants a plaintiff to give evidence pursuant to this clause must give notice to the mediator, the plaintiff and each other party to the claim.
That notice must be given at least 2 business days before the start of mediation. If the decision to require the plaintiff to give evidence is made after that (including after the start of mediation), the notice may still be given but this constitutes a failure to comply with this clause for the purposes of clause 53 (Costs penalties).
Once the plaintiff has given that evidence, the plaintiff cannot be required to give evidence in proceedings before the Tribunal in respect of the dispute unless the Tribunal is satisfied that a failure by the plaintiff to give the evidence concerned will cause substantial injustice to a defendant.
A record of the evidence given by the plaintiff before the mediator is admissible in proceedings before the Tribunal in respect of the dispute.
The hearsay rule (within the meaning of the Evidence Act 1995) does not prevent the admission of a record of that evidence of the plaintiff or the use of that record to prove the existence of a fact that the plaintiff intended to assert by a representation made in that evidence.
For the purposes of this clause, the mediator may:
(a) require the plaintiff to take an oath or to make an affirmation in a form approved by the mediator, and
(b) administer an oath to or take an affirmation of the plaintiff.
A defendant at whose request evidence is given by the plaintiff under this clause is liable for the costs of and associated with the taking of that evidence (including the costs of transcription services and costs for the time of the mediator but not including the costs of other parties). If more than one defendant makes the request, the defendants are liable in equal shares for those costs.
In this clause:
The Tribunal may make orders to give effect to any agreement or arrangement arising out of the mediation of a claim.
The Tribunal is not to make an order entering judgment in favour of the plaintiff if the plaintiff has failed to provide any evidence that the plaintiff has been required to provide by the mediator under clause 35 (Challenge to defendant’s contribution after successful mediation) and that failure is continuing, unless the failure is due to the death or permanent incapacity of the plaintiff.
This Division does not affect the enforceability of any other agreement or arrangement that may be made, whether or not arising out of mediation of a claim, in relation to the matters the subject of a mediation.
No matter or thing done or omitted to be done by a mediator subjects the mediator to any action, liability, claim or demand if the matter or thing was done or omitted to be done in good faith for the purposes of a mediation under this Part.
In this clause,
Subject to subclause (3), the same privilege with respect to defamation as exists with respect to judicial proceedings and a document produced in judicial proceedings exists with respect to:
(a) a mediation session, or
(b) a document or other material sent to or produced to a mediator, or sent to or produced at the Tribunal or the office of the Registrar, for the purpose of enabling a mediation session to be arranged.
The privilege conferred by subclause (2) only extends to a publication made:
(a) at a mediation session, or
(b) as provided by subclause (2) (b), or
(c) as provided by subclause (7).
Evidence of anything said or of any admission made in a mediation session is not admissible in any proceedings before any court, tribunal or body except as is otherwise specifically provided by this Part.
Except as provided by this Part, a document prepared for the purposes of, or in the course of, or as a result of, a mediation session, or any copy of such a document:
(a) is not admissible in evidence in any proceedings before any court, tribunal or body, and
(b) cannot be the subject of a subpoena issued in any proceedings before any court, tribunal or body.
Subclauses (4) and (5) do not apply with respect to any evidence or document:
(a) if the persons in attendance at, or identified during, the mediation session and, in the case of a document, all persons identified in the document, consent to the admission of the evidence or document, or
(b) in proceedings instituted with respect to any act or omission in connection with which a disclosure has been made under subclause (7).
A mediator may disclose information obtained in connection with the administration or execution of this Part only in any one or more of the following circumstances:
(a) with the consent of the person from whom the information was obtained,
(b) in connection with the administration or execution of this Part,
(c) if there are reasonable grounds to believe that the disclosure is necessary to prevent or minimise the danger of injury to any person or damage to any property,
(d) if the disclosure is reasonably required for the purpose of referring any party or parties to a mediation session to any person, agency, organisation or other body and the disclosure is made with the consent of the parties to the mediation session for the purpose of aiding in the resolution of a dispute between those parties or assisting the parties in any other manner,
(e) in accordance with a requirement imposed by or under a law of the State (other than a requirement imposed by a subpoena or other compulsory process) or the Commonwealth.
The costs of mediation, including remuneration payable to the mediator, are to be borne by:
(a) the parties to the claim in such proportions as they may agree among themselves if mediation results in settlement of the claim or the claim is otherwise settled, or
(b) the defendant (or all the defendants in equal shares) if mediation does not result in settlement of the claim and the claim is not otherwise settled.
If there is a single claims manager for the claim, any costs of mediation payable by the defendants for whom the single claims manager acts are payable by the single claims manager, and any such payment by the single claims manager is to be reimbursed as a disbursement in accordance with clause 50 (Costs of the SCM).
Subclause (1) does not interfere with the power of the Tribunal to include costs of mediation in an award of costs to the party that is successful before the Tribunal but the Tribunal may decline to include costs of mediation in an award of costs if the Tribunal is satisfied that the party in whose favour the award is to be made did not participate in good faith in the mediation.
A reference in this Division to a defendant includes a reference to a cross-defendant.
The defendants to a claim who are alleged to be liable to contribute to any damages recovered by the plaintiff must agree among themselves as to the contribution that each is liable to make to those damages.
Agreement must be reached no later than:
(a) 35 business days for malignant claims, or
(b) 70 business days for non-malignant claims,
after service of the plaintiff’s statement of particulars on the last of the original defendants.
The first defendant must file with the Registrar an apportionment statement setting out details of the apportionment of liability that the defendants have agreed to.
If by the end of the period within which the defendants are required to reach agreement as to apportionment an apportionment statement setting out details of the apportionment of liability that the defendants have agreed to has not been filed with the Registrar, the Registrar is to refer the matter to a Contributions Assessor for determination.
The Contributions Assessor to which a matter is referred is to determine the contribution that each defendant is liable to make and is to make that determination on the assumption that the defendants are liable and solely on the basis of:
(a) the plaintiff’s statement of particulars and the defendants’ replies on the claim, and
(b) standard presumptions as to apportionment determined by the Minister for the purposes of this clause by order published in the Gazette.
A Contributions Assessor’s determination is to be made within:
(a) 40 business days for malignant claims, or
(b) 80 business days for non-malignant claims,
after service of the plaintiff’s statement of particulars on the last of the original defendants.
Neither the referral of a matter for determination by a Contributions Assessor nor a determination of the matter by a Contributions Assessor prevents the defendants concerned from agreeing among themselves at any time as to the contribution that each is liable to make to the plaintiff’s damages.
A determination of a Contributions Assessor under this Division cannot be challenged, reviewed, quashed or called into question before any court of law or administrative review body in any proceedings. This subclause does not prevent the subsequent taking, or determination by the Tribunal, of a dispute between defendants as to apportionment.
The Director-General of the Attorney General’s Department is to appoint a panel of legal practitioners to be Contributions Assessors for the purposes of this Division.
A Contributions Assessor is entitled to such remuneration in connection with the exercise of functions as a Contributions Assessor as the Director-General may determine from time to time.
The amount of the remuneration of a Contributions Assessor is payable by the defendants in respect of whose liability to contribute the Contributions Assessor is making a determination, and is payable by each in proportion to their determined shares of contribution.
If there is a single claims manager for the claim, any remuneration of a Contributions Assessor that is payable by the defendants for whom the single claims manager acts is payable by the single claims manager, and any such payment by the single claims manager is to be reimbursed as a disbursement in accordance with clause 50 (Costs of the SCM).
If there is no single claims manager for the claim, the defendant whose determined share of contribution is greatest is required to pay to the Registrar the full amount of the Contributions Assessor’s remuneration and has a right of contribution against the other defendants concerned for their proportionate shares of that remuneration.
An agreement or determination as to apportionment among defendants for the purposes of this Division is conclusively binding on the defendants for the purposes of the settlement, or determination by the Tribunal, of the plaintiff’s claim and payment of the plaintiff’s damages.
The agreement or determination is not binding for the purposes of the subsequent taking, or determination by the Tribunal, of a dispute between defendants as to apportionment.
If a defendant disputes the contribution that the defendant is liable to make to damages recovered by the plaintiff and the judgment of the Tribunal in the dispute does not result in the defendant materially improving the defendant’s position, the defendant is liable to pay the costs of each other party to the dispute occasioned by the dispute, assessed on an indemnity basis.
To the extent of any inconsistency between this clause and Part 6 (Offers of compromise), this clause prevails.
For the purposes of this clause, the defendant is considered to
A reference in this Division to a defendant includes a reference to a cross-defendant.
If there is more than one defendant to a plaintiff’s claim, the defendants must use a claims manager to manage and negotiate the resolution of the plaintiff’s claim on their behalf, and for that purpose the defendants must all use the same claims manager (a
The defendants are not required to use an SCM if all the defendants agree not to use an SCM.
The defendants can agree on the selection of an SCM for the claim and for that purpose they can select one of the defendants or some other person (such as a claims management company).
Failing agreement between defendants on the selection of an SCM for a claim, the first defendant must notify the Registrar (before the end of the period within which the defendants are required to reach agreement on apportionment) that the defendants have not agreed on the selection of an SCM.
The selection of an SCM is then to be made by:
(a) the Registrar if the defendants have agreed (within the required period under the claims resolution process) on the apportionment of liability between them, or
(b) the Contributions Assessor when determining the apportionment of liability between the defendants if the defendants have not agreed within the required period on that apportionment.
The procedure for the selection of an SCM by the Registrar or a Contributions Assessor is as follows if there is no primary defendant:
(a) the selection of an SCM is to be made by selecting a defendant at random from among those defendants who each have an apportioned share of at least 15% or, if only one of the defendants has an apportioned share of at least 15%, by selecting that defendant,
(b) if none of the defendants has an apportioned share of at least 15%, the selection of an SCM is to be made by selecting a defendant at random from among all of the defendants.
The procedure for the selection of an SCM by the Registrar or a Contributions Assessor is as follows if there is a primary defendant:
(a) if no other defendant has an apportioned share of at least 15%, the primary defendant is selected as the SCM,
(b) if one or more of the other defendants has an apportioned share of at least 15%, the primary defendant becomes the first possible SCM and a second possible SCM is to be chosen,
(c) the second possible SCM is to be chosen by selecting a defendant at random from among the group of defendants comprising the primary defendant and such of the other defendants as each have an apportioned share of at least 15%,
(d) if the same defendant is both the first and second possible SCMs, that defendant is to be selected as the SCM for the claim,
(e) if the first and second possible SCMs are different defendants, the defendant who is first possible SCM is to be selected as the SCM but the selection of the defendant does not operate unless the defendant accepts selection by notifying each of the other defendants in writing within 2 business days after selection that the defendant will act as the SCM,
(f) if the first possible SCM does not accept selection as the SCM, the defendant who is second possible SCM is to be selected as the SCM.
The defendant who is finally selected under this clause as the SCM for a claim must act as the SCM for the claim.
The person selected as the SCM for a claim must notify the plaintiff and each defendant in writing as soon as practicable after selection that the person will act as the SCM. Notification is required only to the plaintiff if the primary defendant has already notified each of the other defendants (as provided for by the SCM selection process) that the defendant will act as the SCM.
For the purposes of determining a defendant’s apportioned share for a claim in connection with the operation of this clause, the defendant may choose to have included in the defendant’s share of responsibility any responsibility in connection with the claim of a related body corporate of the defendant (within the meaning of the Corporations Act 2001 of the Commonwealth).
In this clause:
(a) the defendant whose apportioned share for the claim is more than 50%, or
(b) if there is no such defendant—the defendant with the largest apportioned share for the claim, being a share of responsibility that is at least 20 percentage points greater than that of the defendant with the next largest apportioned share for the claim.
The role of the SCM is to manage and negotiate and seek to resolve the plaintiff’s claim on behalf of all of the defendants and for that purpose the SCM has and may exercise on behalf of each defendant all the functions of a defendant.
The SCM’s role includes the selection of expert evidence on behalf of all the defendants but this does not prevent a defendant from obtaining their own expert reports.
Anything done or omitted to be done by the SCM in purported exercise of the functions of the SCM is taken to have been done or omitted to be done by the relevant defendant or defendants.
A defendant who is the SCM for a claim is entitled to perform the role of the SCM in accordance with the defendant’s usual arrangements for managing claims (which can include managing the claim themselves or an arrangement whereby particular kinds of claim are managed on behalf of the defendant by an insurer).
Each defendant is taken to authorise the SCM to settle the matter with the plaintiff, both informally and at any formal mediation.
A defendant may impose a monetary limit on the authority of the SCM to settle a claim on behalf of the defendant but must act reasonably in imposing that limit.
The imposition of a monetary limit on the authority of the SCM to settle a claim on behalf of a defendant is, for the purposes of the mediation of the claim, an aspect of participation in mediation, and the power of a mediator to issue a certificate to the effect that in the mediator’s opinion a defendant did not participate in good faith in the mediation extends to this aspect of the defendant’s participation in mediation.
If a claim that is the subject of mediation is not settled before mediation is required to be completed, each defendant is taken to authorise the SCM to agree on its behalf on which issues are in dispute between the parties and on the facts that are relevant to those issues, unless in the case of any particular defendant the defendant has notified the SCM that the SCM is not authorised to do this on behalf of the defendant.
The SCM does not have any role or functions in respect of apportionment of liability between defendants or any later dispute between the defendants as to apportionment of liability.
The role of the SCM does not limit or otherwise interfere with:
(a) the responsibility of a defendant for preparing and serving the defendant’s reply to the plaintiff’s statement of particulars, or
(b) the right of a defendant to attend at and be represented at the mediation of a claim, or
(c) a defendant’s responsibility to comply with a requirement by the mediator that a defendant be represented at mediation by a particular officer of the defendant, or
(d) a defendant’s responsibility for questioning the plaintiff on issues relevant to contribution (if necessary) at the conclusion of a successful mediation.
The role of the SCM concludes:
(a) if the plaintiff’s claim is settled through mediation or otherwise before mediation of the claim is required to be completed—on final implementation of the settlement or on finalisation of any costs assessment in respect of the settlement, whichever is later, or
(b) if the plaintiff’s claim is not settled before mediation of the claim is required to be completed—when the parties or the defendants reach agreement on which issues are in dispute between them or conclude their efforts to reach agreement.
The parties may agree to the use of an SCM beyond the time when the role of the SCM would otherwise conclude under this clause and any such agreement has effect to continue the operation of this Part in respect of the SCM (including clause 50 with respect to the costs of the SCM) in accordance with that agreement.
If the SCM is not one of the defendants, the costs of the SCM are payable as agreed between the defendants and the SCM.
If the SCM is one of the defendants, each of the other defendants is liable to reimburse the SCM in respect of the SCM’s costs an amount that is the sum of the following amounts:
(a) the amount calculated by dividing half the amount of the SCM’s costs by the number of defendants (including the SCM),
(b) a share of half the amount of the SCM’s costs in the same proportion as the defendant’s apportioned share of responsibility for the plaintiff’s claim.
For the purposes of this clause, the
(a) any costs of mediation or the remuneration of a Contributions Assessor borne by the SCM, and
(b) in relation to an SCM who is not one of the defendants, the remuneration of the SCM, and
(c) in relation to an SCM who is a defendant, the defendant’s operational costs (including internal legal costs) and its external costs (including expert reports and external legal costs).
The Minister may by order published in the Gazette establish a scale of costs for use in determining the operational costs of an SCM that are allowable for the purposes of this clause.
The external legal costs of an SCM are subject to assessment under the Legal Profession Act 2004 on the application of a defendant required under this clause to reimburse the SCM for any amount of those costs.
This clause applies to the following claims:
(a) a claim that has completed the claims resolution process without being settled,
(b) a claim that has ceased under Division 2 to be part of the claims resolution process pursuant to the agreement of the parties,
(c) a claim that the Tribunal has determined under Division 2 should be removed from the claims resolution process because of a failure to comply with a requirement of the claims resolution process.
The following provisions apply to claims to which this clause applies except a claim described in subclause (1) (c):
(a) the Registrar must set the claim down for a directions hearing before the Tribunal to take place within 10 days for malignant claims or 20 days for non-malignant claims,
(b) the plaintiff or, if the plaintiff’s claim has been settled and cross-claims remain to be determined, the first defendant must propose in writing to the remaining parties what further steps (if any) need to be taken to prepare the matter for hearing, together with a timetable for completing those steps,
(c) if the parties agree on those steps and the timetable, written notice of the agreement must be provided to the Registrar and the Tribunal must enter orders to give effect to that agreement.
The following provisions apply to all claims to which this clause applies:
(a) the Tribunal may, subject to this subclause, make orders and give directions to the parties as to the steps to be taken to prepare the claim for hearing and for that purpose may order the amendment of the plaintiff’s statement of claim,
(b) a defence is taken to have been filed to the claim and to any cross-claims, unless the Tribunal orders that a defence must be filed,
(c) the Tribunal may only order that a defence be filed in relation to matters that remain in dispute and only if the Tribunal is satisfied that it is necessary to do so to ensure that the outstanding issues in dispute are properly tried,
(d) the parties to the claim cannot administer interrogatories, order discovery or issue requests for particulars unless leave to do so is granted by the Tribunal, and the Tribunal may only grant that leave where it is satisfied that:
(i) the information sought by the party has not been provided as part of the information exchange process, and
(ii) the information relates to issues that remain in dispute, and
(iii) the order is necessary to ensure that the outstanding issues in dispute are properly tried,
(e) rule 8A (Personal injuries cases; particulars) of Part 33 of the Supreme Court Rules 1970 and rules 15.12 and 15.13 of the Uniform Civil Procedure Rules 2005 do not apply to the claim,
(f) the plaintiff may file an affidavit (but only in relation to issues that remain in dispute) and for that purpose may rely on the plaintiff’s statement of particulars,
(g) the Tribunal cannot require the plaintiff to file an affidavit if the plaintiff elects to rely on the plaintiff’s statement of particulars served under Division 3 (or specified parts of that statement) as the plaintiff’s affidavit (including any necessary changes made to that statement in the course of information exchange),
(h) the Tribunal may not refer the claim or any aspect of the claim to mediation or neutral evaluation and may not refer a dispute as to apportionment concerning the claim to arbitration.
If the Tribunal has determined that a claim is urgent on application by the claimant under Division 2, the statement of claim for the claim is, for the purposes of any provision of rules of court as to the serving of a defence, taken to have been served when the Tribunal made that determination.
In making an order as to the payment of costs in proceedings, the Tribunal must take into account any failure by a party to proceedings to comply with a provision of this Part.
In particular, the Tribunal must take into account any increase in the costs of the proceedings that is attributable to any such failure and may order the party responsible for the failure to pay the costs of each other party to the dispute occasioned by the failure, assessed on an indemnity basis.
The Tribunal may take into account a certificate issued by a mediator to the effect that in the mediator’s opinion a party to a claim referred for mediation did not participate in good faith in the mediation.
In this Part:
(a) a document or thing of which evidence could not be adduced in an action over the objection of any person, by virtue of the operation of Part 3.10 (other than sections 128 and 130) of the Evidence Act 1995, or
(b) if the party on whom the subpoena is served is a natural person—a document or thing the contents or production of which may tend to prove that the party:
(i) has committed an offence against or arising under an Australian law or a law of a foreign country, or
(ii) is liable to a civil penalty, within the meaning of the Evidence Act 1995, or
(c) a document that relates to matters of state within the meaning of section 130 of the Evidence Act 1995, unless and until the Tribunal directs that it cease to be a privileged document.
This Part applies to subpoenas issued on or after the commencement of this Part.
The provisions of this Part apply to the exclusion of the equivalent provisions of rules of court.
This Part applies to all claims, not just claims that are subject to the claims resolution process under Part 4.
A subpoena must not require the person named to attend or produce any document or thing on any day on which the person’s attendance is required unless an amount sufficient to meet the reasonable expenses of the person named of complying with the subpoena in relation to that day is paid or tendered to the person at the time of service of the subpoena or not later than a reasonable time before that day.
The amount mentioned in section 20 (6) of the Act is to be, in respect of a person duly served with a subpoena in any proceedings, the amount which would be payable in respect of that person if the party issuing the subpoena were entitled to claim witness’ expenses in respect of that person as costs in the proceedings.
Where the person named in a subpoena for production of any document or thing is not a party to the proceedings, the subpoena must, unless the Tribunal otherwise orders, permit the person to produce the document or thing to the Registrar not later than the day before the first date on which the person’s attendance is required, instead of attending and producing the document or thing as required by the subpoena.
Where a document or thing is produced to the Registrar pursuant to subclause (1), the Registrar must:
(a) give a receipt to the person producing the document or thing, and
(b) produce the document or thing as the nature of the case requires or as the Tribunal may direct.
This clause does not apply to so much of a subpoena as requires the person named to attend to testify in any proceedings.
Exhibits in any proceedings must be returned to the persons who produced them (whether on subpoena or otherwise) to the Tribunal or the Registrar:
If no, proceed to question 4.9.
If you do not know, do you have any evidence to contradict the claimant’s allegation? Summarise the type of evidence on which you intend to rely to support your position.
4.9 Do you admit that you owed a statutory duty to the claimant as an occupier or otherwise during the alleged period of exposure?
Yes
□
No
□
Do not know
□
Note— A statutory duty may otherwise arise if you:
• employed persons in the premises where the claimant was carrying out the work that he or she alleges exposed him or her to asbestos;
• the premises at which you were carrying out work were a factory within the meaning of the Factories and Shops Act 1912 or the Factories, Shops and Industries Act 1962;
• a person was carrying out building or construction work within the meaning of the Construction Safety Act 1912;
• the claimant was engaged in building or construction work within the meaning of the Construction Safety Act 1912.
If yes, proceed to question 4.10.
If no or do not know, on what basis do you claim that you did not have a duty?
4.10 Do you admit that your breach of duty (whether common law or statutory) is a cause of the alleged asbestos related injury?
Yes
□
No
□
Do not know
□
If yes, proceed to question 4.11.
If no, set out the basis on which you assert that you discharged your duty and provide detailed information concerning the reasons why you do not admit the breach of duty caused the injury. Summarise the type of evidence on which you intend to rely to support your position.
If you do not know, do you have any evidence to contradict the claimant’s allegation? Summarise the type of evidence on which you intend to rely to support your position.
4.11 Regardless of whether you admit that the claimant has an asbestos related injury, whether or not you admit that you owed a duty (whether common law or statutory) or whether or not you admit that you breached that duty, do you admit that the conduct alleged by the claimant to have been engaged in by you is a cause of the asbestos related injury alleged by the claimant?
Yes
□
No
□
Do not know
□
If yes, proceed to question 4.12.
If no, set out the basis of your argument as to why you do not admit that the conduct caused the injury. Summarise the type of evidence on which you intend to rely to support your position.
If you do not know, do you have any evidence to contradict the claimant’s allegation? Summarise the type of evidence on which you intend to rely to support your position.
4.12 Do you intend to rely on any other defence which you say defeats the claimant’s claim in whole or in part (such as a limitation defence or that the risk of injury to the claimant was not foreseeable)?
Yes
□
No
□
If no, proceed to Part 5.
If yes, provide details of that defence and summarise the type of evidence on which you intend to rely to support your position.
If the claimant alleges that his or her injury was caused by exposure to asbestos which occurred as a result of contact with another person whom the claimant alleges was exposed to asbestos manufactured or supplied by you, you should also complete this Part. In completing this Part you should construe a reference to the claimant as a reference to the person who it is alleged was exposed to the product manufactured or supplied by you.
5.1 What are the asbestos products to which is it alleged that the claimant was exposed as set out in the claimant’s statement of particulars?
5.2 Do you admit that you manufactured or supplied those products at any time?
Yes
□
No
□
Do not know
□
If yes, proceed to question 5.3.
If no, on what basis do you assert that you did not manufacture or supply those products? If you know who supplied or manufactured those products, identify that person. Summarise the type of evidence on which you intend to rely to support your position.
If you do not know, do you have any evidence to contradict the claimant’s allegation? Summarise the type of evidence on which you intend to rely to support your position.
5.3 Do you admit that the claimant was exposed to products manufactured or supplied by you in the circumstances alleged by the claimant or otherwise.
Yes
□
No
□
Do not know
□
If yes, proceed to question 5.4.
If no, on what basis do you disagree with the claimant’s version of events? Summarise the type of evidence on which you intend to rely to support your position.
If you do not know, do you have any evidence to contradict the claimant’s allegation? Summarise the type of evidence on which you intend to rely to support your position.
5.4 What was the composition of each asbestos product you admit to manufacturing or supplying, including the type and quantity of asbestos?
5.5 Do you agree with the description of:
(a) the circumstances in which exposure occurred (including the duties or activities engaged in by the claimant and the frequency with which exposure occurred);
Yes
□
No
□
Do not know
□
(b) the intensity or duration of exposure?
Yes
□
No
□
Do not know
□
If you answered yes or do not know to both of the above questions, proceed to question 5.6.
If you answered no to one or both of the above questions, set out the basis on which you disagree with the claimant’s description. Summarise the type of evidence on which you intend to rely to support your position.
If you do not know, do you have any evidence to contradict the claimant’s allegation? Summarise the type of evidence on which you intend to rely to support your position.
5.6 Do you admit in the period alleged that you failed to provide to the persons who used your products instructions as to the steps to be taken to handle asbestos in a safe manner or warnings as to the risks associated with asbestos?
Yes
□
No
□
If yes, proceed to question 5.7.
If no, set out in detail the instructions or warnings which you say were provided, including details on how or by what means those instructions were conveyed to the user of the product. Specify for each relevant product the date on which you claim that warnings or instructions first appeared. Summarise the type of evidence on which you intend to rely to support your position.
5.7 Do you admit that you owed a common law duty of care to the claimant during the period of alleged exposure?
Yes
□
No
□
If yes, proceed to question 5.8.
If no, why do you believe that you did not have a duty?
5.8 Do you admit that you knew or ought to have known that exposure to asbestos gave rise to a risk of personal injury (either of the kind suffered by the claimant or other person injury) at the time of the alleged exposure?
Yes
□
No
□
If yes, proceed to question 5.9 (although you may provide further information on your knowledge at the time of the alleged exposure if you consider this to be relevant).
If no, set out in detail your basis (including the evidence on which you intend to rely) for not admitting that you had such knowledge, including references to any decided cases which support your position.
5.9 Do you admit that you failed to discharge your common law duty of care to the standard of a reasonable person?
Yes
□
No
□
Do not know
□
If yes, proceed to question 5.10.
If no, provide a detailed response setting out how you discharged the duty to the standard of a reasonable person, for example, by providing instructions on the safe use and handling of asbestos or by providing warnings. Provide a detailed description of those measures and summarise the type of evidence on which you intend to rely to support your position.
If you do not know, do you have any evidence to contradict the claimant’s allegation? Summarise the type of evidence on which you intend to rely to support your position.
5.10 Do you admit that your breach of duty of care is a cause of the alleged asbestos related injury?
Yes
□
No
□
Do not know
□
If yes, proceed to question 5.11.
If no, provide detailed information concerning the reasons why you do not admit the breach of duty caused the injury. Summarise the type of evidence on which you intend to rely to support your position.
If you do not know, do you have any evidence to contradict the claimant’s allegation? Summarise the type of evidence on which you intend to rely to support your position.
5.11 Regardless of whether or not you admit that the claimant has an asbestos related injury, whether or not you admit that you owed a duty of care and whether or not you admit that you breached any duty of care, do you admit that the conduct alleged by the claimant to have been engaged in by you (in particular the manufacture or supply of the products) is a cause of the asbestos related injury alleged by the claimant?
Yes
□
No
□
Do not know
□
If yes, proceed to question 5.12.
If no, provide detailed information concerning the reasons why you do not admit the conduct caused the injury. Summarise the type of evidence on which you intend to rely to support your position.
If you do not know, do you have any evidence to contradict the claimant’s allegation? Summarise the type of evidence on which you intend to rely to support your position.
5.12 Do you intend to rely on any other defence which you say defeats the claimant’s claim in whole or in part (such as a limitation defence or that the risk of injury to the claimant was not foreseeable)?
Yes
□
No
□
If no, proceed to Part 7.
If yes, provide details of that defence and summarise the type of evidence on which you intend to rely to support your position.
6.1 Do you admit that the claimant was exposed to asbestos in the manner alleged by the claimant?
Yes
□
No
□
Do not know
□
If yes, proceed to question 6.2.
If no, on what basis do you dispute the claimant’s allegation that they were exposed to asbestos in the manner alleged. Summarise the type of evidence on which you intend to rely to support your position.
If you do not know, do you have any evidence to contradict the claimant’s allegation? Summarise the type of evidence on which you intend to rely to support your position.
6.2 Do you agree with the claimant’s description of:
(a) the circumstances in which exposure occurred (including the frequency with which exposure occurred)?
Yes
□
No
□
Do not know
□
(b) the intensity and duration of exposure?
Yes
□
No
□
Do not know
□
(c) the products to which the claimant was exposed?
Yes
□
No
□
Do not know
□
If you answered yes to all of the above questions, proceed to question 6.3.
If you answered no to one or more of the above questions, set out the basis on which you disagree with the claimant’s description for each question. Summarise the type of evidence on which you intend to rely to support your position.
If you answered that you do not know the answer to one or more of the above questions, do you have any evidence to contradict the claimant’s allegation? Summarise the type of evidence on which you intend to rely to support your position.
6.3 Do you admit that you knew or ought to have known that exposure to asbestos gave rise to a risk of personal injury (either of the kind suffered by the claimant or other person injury) at the time of the alleged exposure?
Yes
□
No
□
If yes, proceed to question 6.4 (although you may provide further information on your knowledge at the time of the alleged exposure if you consider this to be relevant).
If no, set out in detail your basis (including the evidence on which you intend to rely) for not admitting that you had such knowledge, including references to any decided cases which support your position.
6.4 Do you admit that you owed a duty to the claimant (either common law or statutory) during the period of alleged exposure?
Yes
□
No
□
If yes, proceed to question 6.5.
If no, on what basis do you claim that you did not have a duty?
6.5 Regardless of whether or not you admit that you had a duty, did you discharge the duty?
Yes
□
No
□
Do not know
□
If yes, set out the basis on which you assert that you discharged the duty and provide detailed information concerning the steps taken which you consider discharged the duty. Summarise the type of evidence on which you intend to rely to support your position.
If no, proceed to question 6.6.
If you do not know, do you have any evidence to contradict the claimant’s allegation? Summarise the type of evidence on which you intend to rely to support your position.
6.6 Do you admit that your breach of duty is a cause of the alleged asbestos related injury?
Yes
□
No
□
Do not know
□
If yes, proceed to question 6.7.
If no, set out the basis for your reasons as to why you do not admit the breach of duty caused the injury. Summarise the type of evidence on which you intend to rely to support your position.
If you do not know, do you have any evidence to contradict the claimant’s allegation? Summarise the type of evidence on which you intend to rely to support your position.
6.7 Regardless of whether you admit that the claimant has an asbestos related injury, whether or not you admit that you owed a duty or whether or not you admit that you breached that duty, do you admit that the conduct alleged by the claimant to have been engaged in by you is a cause of the asbestos related injury alleged by the claimant?
Yes
□
No
□
Do not know
□
If yes, proceed to question 6.8.
If no, set out the basis for your reasons as to why you do not admit that the conduct caused the injury. Summarise the type of evidence on which you intend to rely to support your position.
If you do not know, do you have any evidence to contradict the claimant’s allegation? Summarise the type of evidence on which you intend to rely to support your position.
6.8 Do you intend to rely on any other defence which you say defeats the claimant’s claim in whole or in part (such as a limitation defence or that the risk of injury to the claimant was not foreseeable)?
Yes
□
No
□
If no, proceed to Part 7.
If yes, provide details of that defence and summarise the type of evidence on which you intend to rely to support your position.
Do you believe that you may be entitled to recover all or part of the damages from your former or current insurer?
Yes | □ | No | □ | Do not know | □ |
If yes, specify the insurer, the type of insurance, the period of cover and whether there is any limit to the cover provided. If you answered that you do not know you should indicate when you expect to be in a position to answer this question.
A standard presumption set out in the Table in clause 5 (1) of the Dust Diseases Tribunal (Standard Presumptions—Apportionment) Order 2005 will be used to apportion liability among the defendants if the defendants cannot agree on apportionment.
A standard presumption will be used to assign a share of liability to each defendant depending on which category it falls into. The standard presumptions vary according to the period in which the exposure occurred and the category of defendant. The Contributions Assessor may vary the standard presumption applying to a claim having regard to the factors set out in clause 5 (5) and (6) of the Order, but the Contributions Assessor may not vary the standard presumptions outside of the permitted range.
Answer the following questions.
8.1 Into which category should each defendant be placed?
8.2 How should the standard presumptions be varied to take account of the level of knowledge which you believe should be assigned to each Category 2 defendant, (including yourself if relevant)? Set out the basis for your position.
Note— Please note, the standard presumptions have been prepared on the basis that Category 1 defendants are presumed to have had actual knowledge of the risks of asbestos, so it cannot be argued that the presumption should be varied against a Category 1 defendant on the basis of its level of knowledge.
8.3 What level of knowledge should be attributed to each Category 2 defendant, including yourself, as to the risks of asbestos (either of the kind suffered by the claimant or other personal injury) at the time of the alleged exposure? Set out the basis for your position, including references to any cases on which you intend to rely to support your position.
8.4 If other findings have been made in relation to your knowledge of the risks of asbestos at the time of the alleged exposure, provide details of those cases. Do you intend to rely on or dispute those findings? If you intend to dispute those findings, on what basis?
8.5 Should the standard presumptions be varied on the basis of the identity, capacity, size or state of sophistication of a particular defendant (including yourself), including the industry, and nature of the industry in which the defendant was engaged? Set out the basis for your position.
8.6 Should the standard presumptions be varied on the basis of the number of defendants identified in each category as being at fault in connection with the claim? Set out the basis for your position.
8.7 Should the standard presumptions be varied having regard to the steps which a particular defendant (including yourself) took, ought to have taken and/or was capable of taking to minimise the risk of harm? Set out the basis for your position.
8.8 Should the standard presumptions be varied for any other reason? Set out the basis for your position.
8.9 If there are more than two defendants in any one category, are there any particular factors relating to the blameworthiness of those defendants which would justify sharing the apportioned liability between those defendants other than on an equal basis? Set out the basis of your position.
Provide a detailed response to each question indicating whether you agree with the claimant’s assessment of damages. If you disagree with the claimant’s assessment, you must specify the facts and circumstances on which you rely on to establish your position.
9.1 Are there any other conditions or injuries which you believe contributed to the claimant’s damage?
Yes
□
No
□
If yes, specify the other conditions or injuries.
9.2 Set out the facts and circumstances on which you say the level of general damages should be calculated and the amount which should be awarded. Your response should indicate the extent to which you say other conditions or injuries contribute to the claimant’s pain and suffering and loss of enjoyment of life, whether you dispute the claimant’s evidence as to prognosis and details of any previous awards of the Tribunal which you think are relevant. Summarise the type of evidence on which you intend to rely to support your position.
9.3 Do you agree with the claimant’s assessment of:
(a) the alleged per weekly loss;
(b) the period of time over which such loss is alleged to occur;
(c) the assessment of the personal expenditure of the claimant?
Yes
□
No
□
Not applicable
□
If yes, proceed to question 9.4.
If no, set out the basis on which you dispute each of the matters set out above. Summarise the type of evidence on which you intend to rely to support your position.
9.4 Do you agree with the claimant’s assessment of the cost of future medical care?
Yes
□
No
□
Not applicable
□
If yes, proceed to question 9.5.
If no, set out the basis on which you say future medical care should be assessed. Summarise the type of evidence on which you intend to rely to support your position.
9.5 Do you agree with the claimant’s assessment of out of pocket expenses?
Yes
□
No
□
Not applicable
□
If yes, proceed to question 9.6.
If no, set out the basis on which you say out of pocket expenses should be assessed. Summarise the type of evidence on which you intend to rely to support your position.
9.6 Do you agree with the claimant’s assessment of personal care costs, both past and future?
Yes
□
No
□
Not applicable
□
If yes, proceed to question 9.7.
If no, set out the basis on which you say personal care costs should be assessed, with particular attention to the nature and level of care required and the cost of that care. Summarise the type of evidence on which you intend to rely to support your position.
9.7 Do you agree with the claimant’s assessment of the cost of services provided to third parties?
Yes
□
No
□
Not applicable
□
If yes, proceed to question 9.8.
If no, set out the basis on which you say the cost of services provided to third parties should be assessed, with particular attention to the nature of the services and the claimant’s circumstances. Summarise the type of evidence on which you intend to rely to support your position.
9.8 Do you agree with the claimant’s assessment of the cost of home modifications?
Yes
□
No
□
Not applicable
□
If yes, proceed to Part 10.
If no, set out the basis on which you say the cost of home modifications should be assessed. Set out the evidence on which you intend to rely to support your position.
I, [
Claims manager’s or defendant’s solicitor’s signature:
Date:
Title:
Date:
(Clause 81)
Information concerning claims
Proceedings number | |
Name of claimant | |
Name of each defendant | |
Name of each cross-defendant | |
If you are a solicitor, party for which you acted | |
If you are a solicitor, name of your firm and solicitor on the record | |
Nature of claimant’s injury | □ Mesothelioma □ Asbestosis □ Asbestos related cancer □ Asbestos related pleural diseases |
Was the claim settled or determined by the Tribunal? | □ Settled □ Judgment ( |
If the claim was settled, state the amount for which the claim was settled (including the amount of any costs included in the statement or assessed separately) | Total amount (including costs): Costs (if separately agreed or assessed): |
If the claim was not settled, state the quantum of damages awarded at judgment (including the amount of any costs agreed or assessed) | Total amount (including costs): Costs (if separately agreed or assessed): |
Have you previously been awarded provisional damages for an asbestos related injury | |
Total solicitor/client costs (including amounts recovered from the defendants)—excluding disbursements | |
Counsel’s fees | |
Cost of expert reports obtained (identify the nature of the report and the cost of each report) | |
Other disbursements | |
Specify the amount of legal costs recovered. List the amount recovered from each other party separately and identify that party. | |
Specify the amount of disbursements recovered. List the amount recovered from each other party separately and identify that party. | |
Were costs recovered on an indemnity basis? List the amount recovered from each other party separately and identify that party. | |
If costs were recovered on an indemnity basis, describe the circumstances in which this order was made | |
If a defendant, the amount paid to a single claims manager (whether another defendant or an independent claims manager) | |
Operational costs—excluding disbursements | |
External legal costs—excluding disbursements | |
Counsel’s fees | |
Cost of expert reports obtained (identify the nature of the report and the cost of each report) | |
Other disbursements |
Signature:
(Section 5)
Omit Schedule 5.15 [1] and [5].
Insert “, the Dust Diseases Tribunal” after “Supreme Court” in rule 6.2 (4) (a).
Omit “or the District Court” from rule 10.20 (2) (a).
Insert instead “, the District Court or the Dust Diseases Tribunal”.
Omit “Part 6, Division 5” from Column 3 of the matter relating to the Dust Diseases Tribunal in Schedule 1 (Application of rules).
Insert in Column 4 of the matter relating to the Dust Diseases Tribunal in Schedule 1:
Part 21
Part 22
Insert at the end of Schedule 2 (Local rules that prevail over these rules):
Dust Diseases Tribunal Rules
Rules |
All rules |
(Section 6)
Omit the rule. Insert instead:
If these Rules provide that specified provisions of the rules of court of the Supreme Court apply to proceedings before the Tribunal and to matters in respect of which the Tribunal has jurisdiction, those provisions so apply:
(a) in the same way as they apply in proceedings before the Supreme Court and to matters in respect of which that Court has jurisdiction, and
(b) with necessary modifications and to the extent that they are not inconsistent with the Dust Diseases Tribunal Act 1989.
Insert after rule 3:
Part 24 (except rule 1 (3) of that Part) of the Supreme Court Rules 1970 applies to proceedings before the Tribunal and to matters in respect of which the Tribunal has jurisdiction.
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