Dust Diseases Tribunal Regulation 2007 (NSW)
This Regulation is the Dust Diseases Tribunal Regulation 2007.
In this Regulation:
Notes included in this Regulation (other than those in Schedules 1 and 2) do not form part of this Regulation.
Subject to this Regulation, the fee that a person must pay in respect of a matter referred to in Column 1 of Schedule 1 is:
(a) except as provided by paragraph (b), the fee specified in respect of that matter in Column 2 of that Schedule, or
(b) if the person is a corporation and a fee is specified in respect of that matter in Column 3 of that Schedule, the fee so specified.
However, a reference in that Schedule to a corporation does not include a reference to a corporation that produces evidence, satisfactory to the registrar:
(a) that its turnover, in the financial year of the corporation immediately preceding the financial year in which the fees are to be taken, was less than $200,000, or
(b) if the corporation has not been in existence for a full financial year—that its turnover in its first financial year is likely to be less than $200,000.
No fee is chargeable to the Crown or any other person with respect to any document or service filed or provided:
(a) for the Government of New South Wales, or
(b) for any New South Wales Government Department, or
(c) for any statutory body whose expenditure is paid out of the Consolidated Fund.
The registrar may require evidence to be furnished for the purpose of deciding whether a statutory body’s expenditure is paid out of the Consolidated Fund.
This clause does not prevent the recovery from any person by the Crown or by any such statutory body of any such fee that, had it been paid, would have been recoverable from that person.
The taking of a fee for the filing of any initiating process (or a cross-claim) on behalf of a pro bono party to proceedings is to be postponed until judgment has been given in the proceedings.
The fee is not to be taken at all, or if taken must be remitted, if in relation to the claim (or cross-claim):
(a) judgment is against that party, or
(b) judgment is in favour of that party, but damages are not awarded (or only nominal damages are awarded) in his or her favour and costs are not awarded in his or her favour.
The registrar must not refuse to file or issue any document relevant to proceedings merely because, in accordance with this clause, a fee has not been taken for the filing of any initiating process (or cross-claim) on behalf of a pro bono party to those proceedings.
For the purposes of this clause, a party is a
(a) he or she is being represented under the pro bono scheme of the Law Society of New South Wales or the pro bono scheme of the New South Wales Bar Association, and
(b) a solicitor (in the case of the Law Society’s scheme), or a barrister (in the case of the Bar Association’s scheme), acting for the party certifies in writing to the registrar, with whom the initiating process (or cross-claim) is lodged on behalf of the party that the party is being so represented.
The taking of any fee in respect of the business of the Tribunal in relation to proceedings involving a pensioner party or legally assisted party is, if the fee is payable by the pensioner party or legally assisted party, to be postponed until judgment has been given in the proceedings.
The fee is not to be taken at all, or if taken must be remitted, if:
(a) judgment in the proceedings is against the pensioner party or legally assisted party, or
(b) judgment is in favour of the pensioner party or legally assisted party, but damages are not awarded (or only nominal damages are awarded) in his or her favour and costs are not awarded in his or her favour.
The registrar must not refuse to file or issue any document relevant to proceedings merely because, in accordance with this clause, a fee in respect of any business of the Tribunal has not been taken on behalf of a pensioner party or legally assisted party to those proceedings.
For the purposes of this clause:
(a) a party to proceedings is a
pensioner party if he or she is the holder of any card issued by the Commonwealth Government that entitles the holder to Commonwealth health concessions, and(b) a party to proceedings is a
legally assisted party if he or she is receiving legal assistance through a complying community legal centre within the meaning of section 240 of the Legal Profession Act 2004.
Any fee charged under this Regulation for any document or service is payable by the person at whose request the document is filed or the service rendered to the registrar.
For the purposes of subclause (1), the fee provided for by item 13 of Schedule 1 is taken to be payable by the person who filed the notice to produce referred to in that item.
If a document is filed or a service rendered at the request of a person acting as an agent for another person, each of those persons is jointly and severally liable for payment of any such fee.
For the purposes only of subclause (2), a solicitor or other person by whom a person is carrying on proceedings is taken to be acting as an agent for that person.
A reference in Schedule 1 to a fee payable in the case of a corporation is a reference to a corporation on whose behalf a request is made to file a document or render a service.
A first directions hearing fee in relation to any proceedings is payable:
(a) except as provided by paragraph (b), by the plaintiff, or
(b) if the Tribunal makes any order as to the payment of the fee, by the parties and in the proportions so ordered.
This fee is recoverable as a disbursement and may be the subject of an award of costs.
If a party is carrying on proceedings by a solicitor or other person, the party and solicitor or other person are jointly and severally liable for the payment of the first directions hearing fee.
A first directions hearing fee becomes payable:
(a) immediately after a date is allocated for the first directions hearing in the Tribunal, as referred to in clause 65 (Non-urgent claims to be subject of directions hearing), or
(b) immediately after a date is allocated for the first directions hearing in the Tribunal for a claim determined to be urgent by the Tribunal on application by the claimant under Division 2 of Part 4, or
(c) when the Tribunal or Registrar notifies the parties in writing of the Tribunal’s intention to allocate a date for a first directions hearing for the proceedings,
whichever occurs first.
A first directions hearing fee is not payable in relation to any hearing for the purpose of the Tribunal making orders to give effect to any agreement or arrangement between the parties as to settlement of the claim or cross-claim.
A fee charged under this Regulation becomes payable when the document concerned is filed or the service concerned is rendered.
However, the registrar, when requested to file a document or render a service:
(a) may require any fee for the document or service to be paid before the document is filed or the service rendered, or
(b) may, by order in writing, direct that the whole or any part of any such fee be postponed, waived or remitted, subject to such conditions (if any) as the registrar thinks fit to impose.
The registrar may delegate his or her power under this clause to direct that the whole or any part of any fee be postponed, waived or remitted to any person holding office as, or appointed to act temporarily as, deputy registrar of the Tribunal.
A reference in subclause (2) to the registrar includes a reference to a person to whom the registrar delegates his or her powers in accordance with this clause.
This clause is subject to clauses 6 and 7.
The registrar must deduct 2.5% of any amount received by way of interest or dividends on funds that are paid to the Tribunal and invested, in accordance with the Supreme Court Rules 1970 (as applied by the Dust Diseases Tribunal Rules), and must pay any amount so deducted to the Treasurer for payment into the Consolidated Fund.
In this Part:
Unless the parties otherwise agree, the period from the beginning of 25 December until the end of 9 January next following is to be ignored for the purpose of reckoning the time fixed by this Regulation for the doing by a party of any act in connection with the claims resolution process.
Subclause (2) does not prevent any business in connection with the claims resolution process from being conducted during the period referred to in that subclause.
The objectives of the claims resolution process are as follows:
(a) to foster the early provision of information and particulars concerning claims in respect of asbestos-related conditions,
(b) to encourage early settlement of those claims,
(c) to reduce legal and administrative costs in connection with those claims.
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, including a compensation to relatives claim) 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 (but 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 22 (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 22 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 37 (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 22 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 service of the statement of claim on the defendant, including the service of the statement of claim outside Australia, or
(b) the amendment of the statement of claim to join a party before the plaintiff’s statement of particulars is served, or
(c) 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
(d) the amendment of the statement of claim to add a compensation to relatives claim after the death of the plaintiff, or
(e) the making of cross-claims, except to the extent of any inconsistency with clause 25 (Cross-claims by defendant), or
(f) 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
(g) the issue and return of subpoenas, or
(h) the granting of leave to commence an action under section 6 of the Law Reform (Miscellaneous Provisions) Act 1946, or
(i) 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 compensation to relatives claim, 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.
If the plaintiff dies, the person who represented the plaintiff in the proceedings or (if the plaintiff was not represented) the plaintiff’s legal personal representative must notify each defendant and the Registrar in writing of the plaintiff’s death as soon as practicable after becoming aware of the plaintiff’s death (unless the death occurred before the commencement of this subclause).
The suspension of the claims resolution process under this clause does not apply to the operation of Division 5 (
It is the responsibility of the single claims manager or (if there is no single claims manager) the first defendant to notify the Registrar in writing (within the time required by subclause (3)) of an agreement by all the defendants that the apportionment process is to be suspended.
If the plaintiff died before the commencement of this subclause but the apportionment process proceeds pursuant to this clause, Division 5 applies for that purpose as if a requirement that anything be done by a party within a specified period after service of the plaintiff’s statement of particulars were a requirement that the thing be done within that specified period after 26 March 2007.
Subclauses (2)–(6) commence on 12 March 2007.
Rules 10.5–10.19, 10.21 and 10.22 of the Uniform Civil Procedure Rules 2005 apply to and in respect of the service of documents for the purposes of this Part in the same way as they apply to and in respect of the service of documents for the purposes of proceedings in the Tribunal.
In the case of a defendant who is outside Australia, any document to be served for the purposes of this Part may be served on the defendant:
(a) in the same manner as that in which the relevant statement of claim was served on the defendant, or
(b) in such other manner as the parties may agree.
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 65 (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 26 (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 22 (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.
If the time for filing and serving a cross-claim is extended, the original defendant must notify the Registrar in writing of the extension without delay (but only if the cross-claim is filed and served after the commencement of this subclause). This subclause commences on 12 March 2007.
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 business days before the start of mediation.
If 2 or more defendants to a claim are related bodies corporate (within the meaning of the Corporations Act 2001 of the Commonwealth) and represented in the proceedings by the same legal practitioner or firm of legal practitioners, those defendants may file and serve a joint reply to the claim (instead of each filing and serving individual replies) and are not required to serve the joint reply on each other.
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 business 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 on 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 67 (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.
The parties must notify the Registrar in writing as soon as the claim is referred for mediation or the claim is settled.
If a claim is not referred for mediation within the time required by this clause, the Registrar is to refer the claim for mediation on the next business day following the end of that period.
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 33 (1), so as to extend the period within which mediation of the claim concerned must be concluded.
The Registrar can delegate to any member of staff of the Tribunal any function of the Registrar under this clause (except this power of delegation).
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 62.
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 67 (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:
This clause applies to a plaintiff, whether in New South Wales or elsewhere:
(a) who is the subject of a medical practitioner’s certificate under clause 36 (3) to the effect that he or she is not fit to be present at a mediation session, or
(b) in respect of whom the parties are in agreement that he or she should be allowed to give evidence by means of a telecommunications link.
For the purposes of clause 39, a plaintiff to whom this clause applies may give evidence by means of a telecommunications link and, for that purpose, anything that needs to be done in order to enable the plaintiff’s evidence to be so given (such as the administration and taking of an oath) may also be done by such means.
For the purposes of clause 39, a plaintiff may give evidence on oath before a mediator outside New South Wales, but only if:
(a) the plaintiff is the subject of a medical practitioner’s certificate under clause 36 (3) to the effect that he or she is not fit to be present at a mediation session, and
(b) the defendant on whose application the plaintiff is required to give evidence requests that the plaintiff’s evidence be so given, and
(c) the mediator is satisfied that it is appropriate in all of the circumstances for the plaintiff’s evidence to be so given.
Without limiting clause 39 (10), a defendant at whose request evidence is given by the plaintiff under this clause is liable for the costs incurred by the mediator and the plaintiff’s legal representatives in travelling to the place at which the evidence is to be given. If more than one defendant makes the request, the defendants are liable in equal shares for those costs.
Rules 24.9 and 24.11–24.15 of the Uniform Civil Procedure Rules 2005 apply for the purposes of clause 39 in the same way as they apply for the purposes of proceedings in the Supreme Court, and so apply as if a reference in those rules to an examiner were a reference to a mediator.
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 39 (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 64 (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 settlement or determination of a plaintiff’s claim (
Subclause (2) extends to a case where the original claim was settled or determined before the commencement of this clause where the first directions hearing for the cross-claim had not been held as at that commencement but does not extend to such a case if all of the cross-defendants agree that it should not apply to the case and the Registrar is notified by the cross-claimant in writing of that agreement within 10 business days after the commencement of this clause.
If subclause (2) extends to a case because of the operation of subclause (3), this Division applies to the case as if a requirement that anything be done by a party within a specified period after service of the plaintiff’s statement of particulars were a requirement that the thing be done within that specified period after 16 March 2007.
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 on the next business day following the end of that period.
The Registrar can delegate to any member of staff of the Tribunal any function of the Registrar under this clause (except this power of delegation).
The Registrar is to notify each defendant of the referral of a matter to a Contributions Assessor.
The Contributions Assessor to whom 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.
For the standard presumptions as to apportionment determined by the Minister see the Dust Diseases Tribunal (Standard Presumptions—Apportionment) Order 2007.
The defendants may agree that for the purposes of the Contribution Assessor’s determination a particular defendant should not be assumed to be liable to contribute, in which case the defendant is not to be assumed to be liable for that purpose (including for the purposes of the application in that case of the standard presumptions as to apportionment). This subclause does not apply in a case in which the matter was referred to the Contributions Assessor before the commencement of this clause.
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 Registrar is to provide each defendant with a copy of the Contribution Assessor’s determination as soon as practicable after the determination is made.
If there is a clerical mistake, or an error arising from an accidental slip or omission, in a determination of a Contributions Assessor (not being a mistake or error made before the commencement of this clause), the Contributions Assessor or another Contributions Assessor may correct the mistake or error:
(a) of the Contributions Assessor’s own motion within 7 business days after the determination is made, or
(b) on the application of any defendant (made to the Contributions Assessor whose determination is in question within 7 business days after the determination is made) as soon as practicable after the application for correction is made.
A defendant who applies for the correction of a mistake or error must give notice of the application to each other defendant.
If a mistake or error is corrected, the Contributions Assessor is to provide the corrected determination to the Registrar and the Registrar is to provide a copy of the corrected determination to each of the defendants.
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 64 (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.
If the Contributions Assessor to whom a matter is referred has acted for any of the defendants to the claim, or for any person against any of the defendants, within the period of 12 months before the matter is referred, the Contributions Assessor must notify the Registrar and each of the defendants in writing by the end of the next business day following the day on which the matter was referred to the Contributions Assessor.
A defendant (
If the Registrar receives such an objection, the Registrar must by the end of the next business day following the day on which the objection is received:
(a) refer the matter to another Contributions Assessor, and
(b) give notice in writing of that referral to each of the defendants and to the Contributions Assessor to whom the matter was previously referred.
When a matter is referred to another Contributions Assessor following an objection, the time periods provided for by the following provisions are each extended by 2 business days:
(a) clause 32 (1) (period within which claim must be referred for mediation),
(b) clause 33 (1) (period within which mediation must be concluded),
(c) clause 49 (6) (period within which Contributions Assessor’s determination is to be made).
When a matter is referred to another Contributions Assessor following an objection, this clause applies to that referral in the same way as it applies to the original referral, with the result that if the matter is again referred to another Contributions Assessor following an objection the time periods referred to in subclause (4) are each further extended by 2 business days.
The Registrar can delegate to any member of staff of the Tribunal any function of the Registrar under this clause (except this power of delegation).
This clause (except subclause (6)) commences on 12 March 2007 and does not apply in the case of a matter referred to a Contributions Assessor before that date.
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.
Even if the Tribunal’s judgment does not result in the defendant materially improving the defendant’s position, the defendant is not liable to pay costs under subclause (3) if:
(a) the Tribunal determines that the defendant is not liable on the claim, and
(b) the ground on which the Tribunal makes that determination is a ground on which the defendant disputed liability on the claim and of which the defendant provided evidence in the defendant’s reply to the claim, and
(c) the Tribunal determines that the ground was the principal or only ground on which the defendant disputed liability on the claim.
Subclause (4) does not apply in a case in which the matter was referred to a Contributions Assessor before the commencement of this clause.
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
If the reply of a defendant (
(a) subsequently that ground is established in the proceedings by the evidence provided in the reply or admitted for the purpose of the proceedings by the disputing defendant, and
(b) the Tribunal determines on that ground that the innocent defendant is not liable on the claim or cross-claim, and
(c) the Tribunal determines that the ground was the principal or only ground on which the innocent defendant disputed liability on the claim.
The costs penalty provided by this clause does not apply if the innocent defendant escapes liability on a ground not raised in the innocent defendant’s reply.
This clause does not apply in a case if, before the commencement of this clause:
(a) the defendants reached agreement as to apportionment, or
(b) the matter was referred to a Contributions Assessor.
This Division applies to a claim for contribution (the
The plaintiff on the new cross-claim is referred to in this Division as the
This Division applies to a new cross-claim made before the commencement of this Division only in the following cases:
(a) if a first directions hearing in respect of the claim was not held before the commencement of this Division, this Division applies to the new cross-claim unless the initiating defendant and each new defendant agree that this Division is not to apply and the initiating defendant notifies the Registrar in writing of that agreement within 10 business days after the commencement of this Division,
(b) if a first directions hearing in respect of the claim was held before the commencement of this Division, this Division applies to the new cross-claim only if the initiating defendant and each new defendant agree that this Division is to apply and the initiating defendant notifies the Registrar in writing of that agreement within 10 business days after the commencement of this Division.
The following modifications apply for the purposes of the application of this Division to a new cross-claim made before the commencement of this Division:
(a) the initiating defendant must give notice in writing under clause 57 (1) within 25 business days after the commencement of this Division, and
(b) any material required to be served by the initiating defendant with or at the same time as the statement of claim for the new cross-claim must instead be served within 25 business days after the commencement of this Division, and
(c) any action required to be taken within a specified period of time after the statement of claim for the new cross-claim is served must instead be taken within that period after material is served as provided by paragraph (b).
Despite clause 18, a new cross-claim to which this Division applies is subject to the claims resolution process once the claim is filed and until:
(a) the defendants to the claim agree as required by Division 5 to the contribution that each is liable to make to damages recovered by the plaintiff on the original claim, or
(b) failing agreement, a Contributions Assessor has determined under Division 5 the contribution that each defendant is liable to make.
Under clause 19, proceedings in the Tribunal to determine the new cross-claim are deferred while the claim is subject to the claims resolution process. Under clause 26, a defendant to a cross-claim is required to file and serve a reply to the cross-claim, subject to subclause (2). Cross-claimants are not required to provide a statement of particulars for their cross-claim.
Despite clause 26 (5), a reply under clause 26 by a new defendant must be served within 30 business days after service of the new cross-claim statement of claim on the last of the new defendants.
The initiating defendant must serve with the statement of claim for the new cross-claim copies of each of the following:
(a) the statement of particulars of the plaintiff on the original claim, and
(b) the replies of each of the original claim defendants to the original claim, and
(c) an appropriately revised version of Part 8 (Apportionment of liability among defendants) of Form 2 of the initiating defendant’s reply to the original claim against the defendant, and
(d) any agreement among the original claim defendants as to the contribution that each is liable to make to damages recovered on the original claim, and
(e) any determination by a Contributions Assessor as to the contribution that the original claim defendants are liable to make to damages recovered on the original claim.
If the plaintiff on the original claim did not file and serve a statement of particulars of the plaintiff’s claim, the initiating defendant must (instead of serving a copy of the plaintiff’s statement of particulars with the statement of claim for the new cross-claim) provide and serve with the statement of claim for the new cross-claim a statement that provides sufficient particulars of the original claim, based on information provided by the plaintiff in the plaintiff’s statement of claim on the original claim and any other information provided by the plaintiff.
If the Tribunal determines that the initiating defendant failed to provide sufficient particulars of the original claim as required by subclause (2) and that as a result an issue was left in dispute between the initiating defendant and a new defendant in proceedings on the new cross-claim (being an issue subsequently determined in favour of the new defendant), the initiating defendant is liable to pay the new defendant’s costs, assessed on an indemnity basis, occasioned by the dispute.
The initiating defendant must give notice in writing of the commencement of proceedings on the new cross-claim to each of the original claim defendants who was a party to the original claim at the time of the agreement or determination as to contribution on the original claim and must give that notice before or at the time that the statement of claim in the new cross-claim proceedings is served.
The initiating defendant must also serve on each of those original claim defendants, at the same time as the statement of claim for the new cross-claim is served:
(a) a copy of the statement of claim for the new cross-claim, and
(b) a copy of the appropriately revised version of Part 8 (Apportionment of liability among defendants) of Form 2 of the initiating defendant’s reply to the original claim against the defendant (as served with the statement of claim for the new cross-claim).
Each original claim defendant may elect whether or not to be subject to a new apportionment of liability on the original claim among defendants including any new defendants.
An election must be made within 10 business days after the original claim defendant is served with a copy of the statement of claim for the new cross-claim
An election is made by giving notice of the election in writing to the Registrar, the initiating defendant and each of the other original claim defendants, accompanied by an appropriately revised version of Part 8 (Apportionment of liability among defendants) of Form 2 of the original claim defendant’s reply to the original claim.
Failure to elect within the required time constitutes an election not to be subject to a new apportionment of liability.
If the initiating defendant or another original claim defendant did not file a reply to the original claim, an obligation under this Division to serve a copy of an appropriately revised version of Part 8 of Form 2 of the reply is to be read instead as an obligation to file and serve a reply under clause 26.
The provisions of Division 5 apply again in respect of the original claim and the original claim defendants (with the new defendants included as defendants to the claim), subject to the following modifications and clarifications:
(a) agreement as to apportionment must be reached no later than 70 business days after service of the statement of claim for the new cross-claim on the last of the new defendants,
(b) agreement as to apportionment is only required to be reached by (and is only binding under clause 52 on) such of the original claim defendants as have elected to be subject to a new apportionment of liability on the original claim and the new defendants,
(c) a Contribution Assessor’s determination as to apportionment under Division 5 is to be made within 80 business days after service of the statement of claim for the new cross-claim on the last of the new defendants,
Yes
□
No
□
Do not know
□
If yes, set out the basis on which you assert that you discharged your duty and provide detailed information concerning the steps taken which you consider discharged the duty of care. Summarise the type of evidence on which you intend to rely to support your position.
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 95)
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 |
|
Was the claim settled or determined by the Tribunal? |
( |
At what stage was the claim settled or determined |
|
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 (list each report separately, identifying the nature of the report including specialty (eg medical report (pathology), occupational therapist, industrial hygienist) 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) | |
Was any matter referred to a Contributions Assessor for determination? | |
Was a single claims manager used or did all the defendants decide not to use a single claims manager? | |
Name of single claims manager | |
Who selected the single claims manager (defendants, Registrar or Contributions Assessor)? | |
Operational costs—excluding disbursements | |
External legal costs—excluding disbursements | |
Counsel’s fees | |
Cost of expert reports obtained (list each report separately, identifying the nature of the report including specialty (eg medical report (pathology), occupational therapist, industrial hygienist) and the cost of each report | |
Other disbursements |
Signature:
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0
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