Trustees of the Sydney Grammar School v Winch

[2013] NSWCA 37

Court of Appeal

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Trustees of the Sydney Grammar School v Winch [2013] NSWCA 37

Hearing dates:

23 August 2012

Decision date:

27 February 2013

Before:

Bathurst CJ at [1], Allsop P at [1], Beazley JA at [26], McColl JA at [27], Meagher JA at [1]

Decision:

1. Grant leave to appeal.

2. Direct the appellants to file a notice of appeal in the form of the draft in the White Book within seven days.

3. Appeal allowed.

4. Dismiss the proceedings in the Dust Diseases Tribunal.

5. Respondent to pay the appellants' costs of the proceedings in the Dust Diseases Tribunal, including the costs of the appellants' notice of motion filed on 13 September 2011.

6. Respondent to pay the appellants' costs of the application for leave to appeal and of the appeal.

7. Respondents to have a certificate under the Suitors' Fund Act 1951 if otherwise qualified.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Catchwords:

DUST DISEASES TRIBUNAL - jurisdiction - exclusive jurisdiction of Dust Diseases Tribunal conferred by s 11(1) Dust Diseases Tribunal Act 1989 - whether proceedings should be dismissed for want of jurisdiction - where respondent claims compensation for psychiatric illness allegedly suffered as a result of father's death from mesothelioma exposure whilst in appellants' employ - whether respondent "claiming through" deceased for damages "in respect of" his death under s 11(1)(c) Dust Diseases Tribunal Act 1989

DUST DISEASES TRIBUNAL - pendent or ancillary jurisdiction - s 11(3) and s 11(4) Dust Diseases Tribunal Act 1989

DUST DISEASES TRIBUNAL - jurisdiction - whether Mangion v Jamies Hardie & Co Pty Ltd (1990) 20 NSWLR 100 correctly decided

STATUTORY INTERPRETATION - principles - construction of relational terms - relevance of amendments

WORDS AND PHRASES - "claiming through" - "in respect of"

Legislation Cited:

Arbitration (Foreign Awards and Agreements) Act 1974 (Cth)
Civil Liability Act 2002
Civil Liability Amendment (Personal Responsibility) Act 2002
Civil Procedure Act 2005
Common Law Practice Act 1867-1978 (Qld)
Compensation to Relatives Act 1897
Consumer, Trader and Tenancy Tribunal Act 2001
Dust Diseases Tribunal Act 1989
Dust Diseases Tribunal Amendment (Claims Resolution) Act 2005
International Arbitration Act 1974 (Cth)
Interpretation Act 1987
Law Reform (Miscellaneous Provisions) Act 1944
Law Reform (Miscellaneous Provisions) Act 1946
Limitation Act 1969
Motor Vehicles Insurance Act 1936-1979 (Qld)
Statute Law (Miscellaneous Provisions) Act (No 3) 1989
Workers Compensation Legislation Amendment (Dust Diseases and Other Matters) Act 1998
Workers' Compensation (Dust Diseases) Act 1942
Workers' Compensation Act 1916 (Qld)

Dust Diseases Tribunal Rules
Supreme Court Rules 1970
Uniform Civil Procedure Rules 2005

Cases Cited:

Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41; (2009) 239 CLR 27
Allianz Australia Insurance Ltd v Bluescope Steel Ltd [2012] NSWCA 240
Allina Pty Ltd v Commissioner of Taxation (1991) 28 FCR 203
Amaca Pty Ltd v Cremer [2006] NSWCA 164; (2006) 66 NSWLR 400
Anderson v Kaufman (1991) 7 NSWCCR 198
Attia v British Gas plc [1988] QB 304
Australian Education Union v Department of Education and Children's Services [2012] HCA 3; (2012) 86 ALJR 217
BHP Billiton Ltd v Schultz [2004] HCA 61; (2004) 221 CLR 400
BHPB Freight Pty Ltd v Cosco Oceania Chartering Pty Ltd [2008] FCA 551; (2008) 168 FCR 169
Brambles Australia Ltd v British and American Tobacco Australia Services Ltd; Re Mowbray (No 6) [2006] NSWDDT 7; (2006) 3 DDCR 495
Certain Lloyd's Underwriters Subscribing to Contract No IH00AAQS v Cross; Certain Lloyd's Underwriters Subscribing to Contract No IH00AAQS v Thelander [2012] HCA 56; (2012) 293 ALR 412
Clark v Seltsam Pty Ltd [1999] NSWDDT 2; (1999) 18 NSWCCR 587
Commissioner of Police v Eaton [2013] HCA 2
CSR Ltd v Amaca Pty Ltd [2008] NSWCA 329; (2008) 9 DDCR 182
Curran v Young [1965] HCA 14; (1965) 112 CLR 99
De Sales v Ingrilli [2002] HCA 52; (2002) 212 CLR 338
DJL v Central Authority [2000] HCA 17; (2000) 201 CLR 226
Emanuele v Australian Securities Commission [1997] HCA 20; (1997) 188 CLR 114
FAI General Insurance v Southern Cross Exploration [1988] HCA 13; (1988) 165 CLR 268
Genders v Government Insurance Office of New South Wales (1959) 102 CLR 363
Gett v Tabet [2009] NSWCA 76; (2009) 254 ALR 504
Grain Elevators Board (Vic) v Dunmunkle Corporation [1946] HCA 13; (1946) 73 CLR 70
Grech v James Hardie & Co Pty Ltd & Others [1989] NSWDDT 1; (1989) 5 NSWCCR 274
Interlego AG and Lego Australia Pty Ltd v Croner Trading Pty Ltd [1992] FCA 624; (1992) 39 FCR 348
Jaensch v Coffey [1984] HCA 52; (1984) 155 CLR 549
Kelly v Rogers [1892] 1 QB 910
Koehler v Cerebos (Australia) Ltd [2005] HCA 15; (2005) 222 CLR 44
Kostas v HIA Insurance Services Pty Ltd t/as Home Owners Warranty [2010] HCA 32; (2010) 241 CLR 390
Laminex (Australia) Pty Ltd t/as Laminex Industries v Coutts [2006] NSWCA 186; (2006) 3 DDCR 728
Mangion v James Hardie & Co Pty Ltd (1990) 20 NSWLR 100
McDowell v Baker (1979) 144 CLR 413
Minister for Employment and Workplace Relations v Gribbles Radiology Pty Ltd [2005] HCA 9; (2005) 222 CLR 194
Mount Isa Mines Ltd v Pusey [1970] HCA 60; (1970) 125 CLR 383
New South Wales Bar Association v Muirhead (1988) 14 NSWLR 173
Newcrest Mining Limited v Thornton [2012] HCA 60; (2012) 293 ALR 493
Nominal Defendant (Qld) v Taylor [1982] HCA 38; (1982) 154 CLR 106
Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72
Owners of the Ship, Shin Kobe Maru v Empire Shipping Co Inc [1994] HCA 54; (1994) 181 CLR 404
Piercy v Young [1880] 14 Ch D 200
Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355
Re Wakim; Ex parte McNally [1999] HCA 27; (1999) 198 CLR 511
Scala v Mammolitti (1965) 114 CLR 153
Seltsam Pty Ltd v Energy Australia [1999] NSWCA 89; (1999) 17 NSWCCR 720
Shipping Corporation of India Ltd v Gamlen Chemical Co (A/asia) Pty Ltd [1980] HCA 51; (1980) 147 CLR 142
Tame v State of New South Wales; Annetts v Australian Stations Pty Ltd [2002] HCA 35; (2002) 211 CLR 317
Tanning Research Laboratories Inc v O'Brien [1990] HCA 8; (1990) 169 CLR 332
The Queen v Khazaal [2012] HCA 26; (2012) 86 ALJR 884
Unsworth v Commissioner for Railways (1958) 101 CLR 73
Vetter v Lake Macquarie City Council [2001] HCA 12; (2001) 202 CLR 439
Wallaby Grip (BAE) Pty Ltd (in liquidation) v Eraring Energy [2004] NSWCA 269; (2004) 60 NSWLR 701
Workers' Compensation Board (Q) v Technical Products Pty Ltd [1988] HCA 49; (1988) 165 CLR 642
Zheng v Cai [2009] HCA 52; (2009) 239 CLR 446

Texts Cited:

Second Reading Speech, New South Wales, Legislative Assembly, Parliamentary Debates (Hansard), 3 May 1989
Second Reading Speech, New South Wales, Legislative Assembly, Parliamentary Debates (Hansard), 23 November 1989
Second Reading Speech, New South Wales, Legislative Council, Parliamentary Debates (Hansard), 31 May 1995
Second Reading Speech, New South Wales, Legislative Assembly, Parliamentary Debates (Hansard), 5 May 2005
Second Reading Speech, New South Wales, Legislative Council, Parliamentary Debates (Hansard), 17 November 1998

Category:

Principal judgment

Parties:

The Trustees of the Sydney Grammar School - Appellants
Jessie Winch - Respondent

Representation:

Counsel: T G R Parker SC - Appellants
P C B Semmler QC with S Tzouganatos - Respondent
Solicitors: Toomey Pegg - Appellants
Turner Freeman Lawyers - Respondent

File Number(s):

CA2011/346923

Publication restriction:

No

 Decision under appeal 

Jurisdiction:

9115

Citation:

Winch v Amaca Pty Ltd (discontinued 22.09.2011) and the Trustees of the Sydney Grammar School [2011] NSWDDT 8; (2011) 10 DDCR 56

Date of Decision:

2011-10-07 00:00:00

Before:

Kearns J

File Number(s):

DDT 71/2010

Judgment

1. BATHURST CJ, ALLSOP P and MEAGHER JA: The respondent brought proceedings against the applicant in the Dust Diseases Tribunal ("Tribunal") for damages for nervous shock arising out of the death from mesothelioma of her father, who was employed by the applicant as a teacher. In a judgment delivered on 7 October 2011, Kearns J dismissed the applicant employer's motion for an order that those proceedings be dismissed for want of jurisdiction. The applicant seeks leave to appeal from that decision.

1. The issue sought to be raised in the appeal is whether proceedings for damages for nervous shock or psychiatric illness arising out of the death of a person from a dust related disease are within s 11(1) of the Dust Diseases Tribunal Act 1989 (the "Act") and therefore within the jurisdiction of the Tribunal. It should be noted at the outset that the respondent does not contend, in the alternative, that if her claim could not have been brought under s 11(1), the Tribunal nevertheless had jurisdiction to entertain it under sub-section 11(4) as a matter that is "ancillary or related" to a matter the subject of proceedings properly brought under s 11(1). Nor does she argue that her claim was one which could have been included in such proceedings by dint of s 11(3) of the Act.

1. In reaching his conclusion, the primary judge applied this Court's decision in Mangion v James Hardie & Co Pty Limited (1990) 20 NSWLR 100. In that appeal, the Court (Samuels AP, Clarke JA agreeing, and Mahoney JA) held that s 11(1) conferred jurisdiction on the Tribunal to hear and determine proceedings in respect of the death of a person caused by a dust related condition where the proceedings were brought by a widow for damages pursuant to the Compensation to Relatives Act 1987 and where proceedings were brought by a widow for damages for nervous shock (which claim was then governed by s 3 of the Law Reform (Miscellaneous Provisions) Act 1944).

1. The applicant argues that insofar as Mangion decided that proceedings for damages for nervous shock were within s 11(1) of the Act, it was plainly or clearly wrong in the sense referred to in Gett v Tabet [2009] NSWCA 76; (2009) 254 ALR 504 at [294]-[296]; and, to that extent, that the decision should be overruled.

1. We have had the benefit of reading the judgment of McColl JA in draft and agree with the orders proposed by her Honour. Specifically, we agree that Mangion was incorrectly decided insofar as it concluded that Mrs Mangion's claim for damages for nervous shock fell within s 11(1). Because the reasons of Samuels AP and Mahoney JA for so concluding were different, it is necessary to identify those differences before expressing the reasons for our opinion that the case was wrongly decided in this respect.

1. Samuels AP construed s 11(1) as requiring that the proceedings in respect of which exclusive jurisdiction is conferred (by the closing words of s 11(1)), be proceedings for damages in respect of a "dust-related condition" which satisfies the conditions or description in paragraphs (a), (b) and (c) of s 11(1). In particular, by paragraph (c), they must be proceedings for damages brought by the person who suffered from that condition "or a person claiming through that person", being in either case a person whose entitlement to bring such an action in any other court or tribunal is excluded by the closing words of s 11(1).

1. Applying that construction to the compensation to relatives and nervous shock claims, it was necessary that the person bringing the proceedings be "a person claiming through" the person who suffered from the dust-related condition: at 104B. This condition was satisfied in relation to the former claim because it was a derivative action dependent on or secondary to rights of action vested in the deceased immediately before his death: at 104C-G. The position was not so clear in relation to the action for damages for nervous shock. It was not derived from any cause of action vested in the person whose death occasioned the nervous shock injury, nor did it depend upon any existing liability to that person: at 104G-105A. However, because his Honour considered the object of the Act to be to assign to the Tribunal "all proceedings in respect of injury or death caused by dust-related conditions", it was necessary to give the words "claiming through" a liberal construction sufficient to prevent the frustration of that purpose: at 105E-F. For that reason, the expression "claiming through" should be construed to include a claim by a widow for damages for nervous shock "as made through the husband, in the sense of in consequence of his dust-related death": 105F-106F. Reference was made to subsections 11(3) and (4) but not on the basis that one or other of those provisions would permit a nervous shock claim, to be included in proceedings otherwise within s 11(1).

1. Applying that construction to those claims, it was also necessary that the proceedings answer the description in the closing lines of s 11(1) that they be "for damages in respect of" the dust-related condition or death. The nature and breadth of the relationship between the proceedings or damages claimed and the dust-related condition or death which was sufficient in this context to satisfy that description was not dealt with in the reasons of Samuels AP. It seems to have been accepted that an action for damages "incurred in consequence" of the dust-related death of the husband would answer this description, and that each of the relevant claims did so: at 102A, 105F.

1. Mahoney JA approached the matter slightly differently. He identified the relevant purpose of s 11(1) as being that "where the person affected by a dust-related condition or a person claiming through him would have been entitled to bring an action for damages for that condition and so must bring the proceedings before the Tribunal, all other proceedings for damages "in respect of" that condition must be brought before the Tribunal" (emphasis added): at 111A-B. His Honour did not construe s 11(1) as requiring that the proceedings which must be brought before the Tribunal satisfy the conditions, or answer the description, in each of paragraphs (a), (b) and (c). He considered the word "that", when used in the closing lines of s 11(1), referred only to the dust-related condition or death described in paragraphs (a) and (b) and not to a condition or death which would have been subject to the entitlement described in paragraph (c). Accordingly, where a claim by the person who was suffering or had suffered from the dust-related condition, or a person claiming through that person, "would have lain", the conditions in those paragraphs were satisfied and the closing words of s 11(1) applied generally to confer jurisdiction upon all proceedings for damages "in respect of" the condition or death, and irrespective of whether they were brought by the person primarily affected, or a person claiming "through that person": at 110E-112C.

1. On this construction it was not necessary for Mahoney JA to decide whether either of the proceedings in issue in Mangion was brought by "a person claiming through" the person primarily affected by the dust-related condition: at 111D. This notwithstanding, his Honour expressed an inclination to the view that these words referred only to a claim "which, if the person primarily affected has died, his legal personal representative will have": at 111D-E.

1. On the construction adopted by Mahoney JA it remained necessary that the proceedings be "for damages in respect of" the dust-related condition or death referred to in paragraphs (a) and (b). His Honour construed this expression as requiring that the relationship denoted by the words "in respect of" be between the proceedings and the dust-related condition or death rather than between the damages sought to be recovered in those proceedings and that condition or death: at 109E. An action for damages under the compensation to relatives legislation was in the ordinary sense of those words a proceeding for damages "in respect of" a dust-related death. Having regard to the purpose of s 11(1) as identified by his Honour, a proceeding "deriving" from "the situation where the condition or death of the person suffering from the dust-related condition is attributable to a breach of duty owed to him by another" was also sufficient to answer that description: at 110D. In relation to the action for damages for nervous shock, Mahoney JA entertained doubts as to whether that could be said to be "in respect of" the relevant condition or death, even adopting this broad view of what was sufficient to satisfy those words. Nevertheless, he was not prepared to dissent from Samuels AP's conclusion that s 11(1) extended to claims for nervous shock: at 112G.

1. Thus, the position in Mangion, insofar as it decided that s 11(1) of the Act conferred jurisdiction on the Tribunal in relation to a claim for damages for nervous shock, was as follows. Samuels AP (with whom Clarke JA agreed) construed s 11(1) as requiring for the conferral of jurisdiction, that the proceedings be brought by the person primarily affected "or a person claiming through that person"; and considered that such a claim answered this description notwithstanding that it was not derived from any cause of action vested in the deceased or dependent upon any existing liability of his employer to him. His Honour was prepared to give that expression a "liberal" construction which went beyond its ordinary or usual meaning to promote what he identified as the purpose or object underlying the legislation, namely to assign to the Tribunal all proceedings in respect of injury or death caused by dust-related conditions. Samuels AP did not expressly address whether proceedings for damages for nervous shock answered the description of being "for damages in respect of a dust-related condition or death". Mahoney JA construed s 11(1) as not requiring, for proceedings which must be brought before the Tribunal, that they be brought by or "through" the person primarily affected; and was inclined to the view that this expression would not have extended beyond a claim which by statute survived for the benefit of that person's estate. His Honour expressed doubts as to whether the requirement that the proceedings for damages be "in respect of" the condition or death was satisfied, but was not prepared to dissent from the ultimate conclusion of Samuels AP.

1. Subject to the more specific reasons given below, we agree with McColl JA's reasons for concluding that Samuels AP was incorrect in his construction of s 11(1)(c) and the phrase "claiming through". We also agree on the same basis with her Honour's reasons for concluding that Samuels AP did not correctly consider and apply the "in respect of" requirement in the closing lines of s 11(1). The statutory context and purpose of s 11(1) did not require or justify in the interpretation of these two expressions, any departure from their ordinary meaning as expounded by her Honour: see esp her Honour's reasons at [162] - [183] below.

1. In addition, we do not agree with Mahoney JA's construction of s 11(1) as not requiring, in relation to proceedings which must be brought before the Tribunal, that they be brought by the person primarily affected or a person claiming through that person. In our opinion, as our reasons below explain, the words "proceedings for damages in respect of that dust-related condition or death" refer to a cause of action falling within s 11(1)(c). If that were not the case there would be little work for subsections 11(3) and (4) which confer additional jurisdiction in respect of claims which may be, but are not required to be, brought before the Tribunal. That construction of s 11(1) was adopted by Samuels AP and Clarke JA in Mangion and by Giles JA (Hodgson and Bryson JJA agreeing) in Laminex (Australia) Pty Limited v Coutts [2006] NSWCA 186; 3 DDCR 728 esp at [38].

1. Our additional reasons for these conclusions are as follows.

1. The Tribunal was constituted by the Act. The purpose of the Tribunal was, as the then Attorney-General stated in the second reading speech:

"... to hear claims in tort for negligence and breach of statutory duty relating to death or personal injury attributable to specified dust diseases and other dust-related conditions." (Second reading speech of the Minister, the Hon John Dowd, Hansard, Legislative Assembly, 3 May 1989, p 7398.)

1. The particular problem perceived that was sought to be remedied by the Tribunal was described by the Attorney-General at the commencement of the second reading speech as:

"... the considerable delays that exist in the common law jurisdictions of both the Supreme Court and the District Court, which this Government inherited. Delays, of course, are particularly critical for plaintiffs with dust diseases, such as mesothelioma, which have a long latency period but, once diagnosed, result in rapid deterioration and usually lead to death within 12 to 18 months. The Government is committed to these claims being dealt with expeditiously by the creation of a separate tribunal that will provide a fast-track mechanism." (Second reading speech of the Minister, the Hon John Dowd, Hansard, Legislative Assembly, 3 May 1989, p 7398.)

1. After a brief description of the operative provisions, the Attorney-General described the hoped for advantages of the Tribunal:

"The bill seeks to marry the skills of Compensation Court judges with the power to deal with common law matters. The Compensation Court is a specialist jurisdiction that deals with medical matters, and it is intended it will acquire expertise in common law. This measure is an attempt to stop duplication of common law and workers' compensation liability determinations. From this experience the government expects to learn how to marry together the Compensation Court, the Supreme Court and the District Court which will be inevitable as the Downing Centre is developed. One judge or several judges may be involved, but litigants are entitled to fast track procedures as a means of reducing the long hearing lists in the Hunter Valley. The Compensation Court is not overloaded but this measure will help to reduce the District Court lists.

This will be an experiment in having the one tribunal deal with matters from both jurisdictions, thus speeding hearings and saving money for litigants. Based on this experience, the tribunal could be extended to deal with the diseases of chronicity, which conditions have built up over time - although trauma cases and similar matters will be dealt with by the Compensation Court. This experiment has been carefully thought through. I hope it will enable relief to be given to a group of needy workers in this State who belatedly have been found to have been let down by a society that has failed to recognize some aspects of dust disease." (Second reading speech of the Minister, the Hon John Dowd, Hansard, Legislative Assembly, 3 May 1989, p 7399.)

1. The terms of Part 3 of the Act dealing with jurisdiction and proceedings show that one of the means of effecting these benefits and advantages included the conferring of exclusive jurisdiction to hear certain classes of cases, and the conferring of additional jurisdiction in relation to other claims. Whilst those additional claims are not required to be brought before the Tribunal, they may, if commenced in the Supreme or District Court, be required to be transferred to the Tribunal in the circumstances described in s 12 and once made before or transferred to the Tribunal are, by s 10(1), subject to its exclusive jurisdiction.

1. As McColl JA has noted, s 11 is a carefully drawn section which must be examined as a whole in its statutory context and conformably with its purpose, drawn from the text of the Act and relevant secondary material. Section 11(1) provides for proceedings for damages in respect of "that" dust-related condition or death, which is the dust-related condition in paras (c), (b) and (a). Textually, the preferable reading of "in respect of" in the last paragraph of s 11(1) is as a phrase to relate the proceedings to the dust-related condition or death and damages therefor; in the sense that the damages claimed are assessed by reference to that condition or death and its consequences for the claimant or persons on whose behalf the claim is made. This would limit s 11(1) to the claim concerning the condition in question or subsequent death, being a claim made by the person primarily affected, or those through him or her if he or she has died.

1. It was no doubt evident to the legislature that there were other types of claims or actions that could be seen to be related to the primary action brought by the person primarily affected, or by a person claiming through him or her, that should or could, conformably with the purposes of the Act, be brought before the Tribunal. Subsections (3) and (4) in the original form of the Act catered for these. Subsection (1A) was added later. Section 11(3) concerned the cause of action giving rise to proceedings within subsection (1) and also another claim to which that cause of action gives rise. An example would be a claim for negligence for an unsafe system of work giving rise to damages due to the incurring of a dust-related condition and also some other non dust-related injury. Because the proceedings which must be brought under subsection (1) are proceedings to enforce a cause of action of the person primarily affected, or a person claiming through that person, it is not obvious that a claim for damages for nervous shock could be included in proceedings before the Tribunal in reliance upon subsection 11(3). However, that question does not arise because the respondent eschewed reliance on subsection 11(3) to found jurisdiction.

1. Section 11(4) was in broader terms. It used broad language: "any matter that is ancillary or related to a matter". The notion of a "matter" in a judicial jurisdictional context is linguistically and legally wide: Re Wakim; Ex parte McNally [1999] HCA 27; (1999) 198 CLR 511 at 585-586 [139]-[142]; Tanning Research Laboratories Inc v O'Brien [1990] HCA 8; 169 CLR 332 at 351. The Act is not in a context of federal jurisdiction; but the word "matter" in the context of jurisdiction of courts or tribunals can be seen to be one of currency. A "matter" in this universe of discourse is a controversy arising from a common substratum of facts. A "related" matter can thus be seen as a related controversy arising from a related, perhaps overlapping, substratum of facts. The breadth of these concepts is not cut down by the definition of "ancillary or related matter" in s 3:

"ancillary or related matter, in relation to any proceedings, includes any claim relating to the subject-matter of the proceedings that a defendant in the proceedings has against another person, whether that other person is a party to the proceedings or not."

In this definition, the intermediate words after the word "includes" might be seen to be narrower than the general words "related matter"; but it is important to recognise that the general words are not defined or limited by these words; the general words include them. There is no warrant to read down the width of the words "related matter" by the inclusion in the definition of a claim that might be seen to be specific to an existing defendant. The width of the concept of "related matter" would permit the inclusion in proceedings under s 11(1) (or s 11(1A)) of a claim by a different plaintiff in a related matter or controversy. There is no call in this case to examine the limits of the width of the relationship of matter in s 11(4). It is sufficient to say that in the context of a claim for the benefit of a deceased's estate or a compensation to relatives claim, in each case brought under s 11(1), s 11(4) would permit inclusion of a nervous shock claim, such as that pleaded here by the respondent, Ms Winch.

1. If s 11(4) is read as a broad jurisdictional provision intended to pick up any related matter or controversy to the proceedings for damages in respect of the dust-related condition falling within s 11(1), there is no call to strain the text of the paragraph (c) or the last lines of s 11(1), and in particular the words "claiming through that person" and "in respect of", so as to justify a departure from the ordinary meaning of the language used. The person making a claim in respect of an ancillary or related matter would not have the benefit of ss 11A, 12A and 12B of the Act. Section 11A is limited to claims under s 11(1) and ss 12A and 12B only apply to proceedings capable of being brought under s 11(1): Wallaby Grip (BAE) Pty Ltd (In Liq) v Eraring Energy [2004] NSWCA 269; 60 NSWLR 701.

1. On the above interpretation, s 11 works in a balanced way reflecting the exclusive (in the sense described above) and non-exclusive jurisdiction of the Tribunal under Part 3. If subsections 11(3) and (4) were not in the Act and the substance of the jurisdictional work of the section was done by s 11(1), there would have been powerful reasons to read s 11(1) more broadly, as Samuels AP and Mahoney JA sought to do in Mangion. Parliament, however, has provided for related matters in a widely drafted subsection (s 11(4)). This allows the text of s 11(1) to be read without adopting strained constructions of the expressions "claiming through" and "in respect of" or the construction of s 11(1) adopted by Mahoney JA.

1. For these reasons we are persuaded that Mangion is sufficiently wrong to warrant departure from it. As we have already noted, the question whether the respondent's claim did or could have fallen within s 11(3) or 11(4) does not arise. The orders proposed by McColl JA should be made.

1. BEAZLEY JA: I have had the advantage of reading in draft the judgment of McColl JA and the judgment of Bathurst CJ, Allsop P and Meagher JA. As their Honours have fully explained, notwithstanding that Mangion v James Hardie & Co Pty Limited (1990) 20 NSWLR 100 is a long standing decision of this Court, an examination of the provisions of the Dust Diseases Tribunal Act 1989, s 11 leads to the inevitable conclusion that the decision in that case was plainly wrong. I agree with the reasons of the members of this Court as to its proper construction.

1. McCOLL JA: Jessie Winch, the respondent, brought proceedings in the Dust Diseases Tribunal (the "Tribunal") claiming compensation from the Trustees of the Sydney Grammar School, the applicants, for psychiatric illness she alleged she suffered as a result of her father dying from mesothelioma. She alleged her father had been exposed to asbestos dust and fibre while employed by the applicants as an art teacher. The applicants moved the Tribunal for an order that the proceedings be dismissed for want of jurisdiction. His Honour Judge Kearns dismissed the application: Winch v Amaca Pty Ltd (discontinued 22.09.2011) and the Trustees of the Sydney Grammar School [2011] NSWDDT 8; (2011) 10 DDCR 56.

1. The critical issue is whether the Tribunal had jurisdiction to deal with the respondent's claim for psychiatric illness. The primary judge held that it did, in part because he was bound to do so by virtue of this Court's decision in Mangion v James Hardie & Co Pty Ltd (1990) 20 NSWLR 100 ("Mangion").

1. The applicants seek leave to appeal from the primary judge's decision. Full argument was heard on the application for leave to appeal as if it were the appeal, on the basis that the appeal could be disposed of without further argument if leave to appeal were granted. In my view, as shall become apparent from the reasons which follow, the matter involves an issue of principle which warrants granting leave to appeal. I shall refer to the applicants as the appellants henceforth.

1. This matter was listed before a five judge bench because the appellants wish to challenge this Court's decision in Mangion in which, relevantly, the Court held that the Tribunal had jurisdiction in proceedings in respect of the death of a person caused by a dust-related condition where a claim for nervous shock was brought pursuant to s 3 of the Law Reform (Miscellaneous Provisions) Act 1944 (the "1944 Act"). In so holding, the Court upheld an appeal from a decision to the contrary of O'Meally J: Grech v James Hardie & Co Pty Ltd & Others [1989] NSWDDT 1; (1989) 5 NSWCCR 274 ("Grech"). For the reasons which follow, I am of the view that Mangion was wrongly decided in this respect and should be over-ruled. Even if that is not correct, when s 11(1) is construed in the Dust Diseases Tribunal Act 1989 (the "Tribunal Act"), I would conclude the jurisdiction does not extend to the respondent's claim for damages for psychiatric illness. The appeal should be allowed with costs.

Statement of the case

1. The respondent is the daughter of John Harley Winch. Mr Winch worked as an art teacher at Sydney Grammar School in the 1970s, during which time he was exposed to asbestos. In late 2006 he was diagnosed with mesothelioma from which he died on 28 March 2007. Before his death, Mr Winch commenced proceedings against the appellants for damages, claiming that he had been exposed to asbestos during his employment with it. The proceedings were continued after his death by his widow pursuant to Part 2 of the 1944 Act and in due course settled.

1. On 24 March 2010 the respondent filed a statement of claim in the Tribunal commencing proceedings against, relevantly, the appellants.

1. Paragraph 2 of the statement of claim pleaded:

"The plaintiff is 'a person claiming through' the deceased, damages 'in respect of' his death, within the meaning of s 11(1)(c) of the Dust Diseases Tribunal Act 1989."

1. After pleading the facts of Mr Winch's employment at the school and exposure to and inhalation of asbestos dust and fibre during the course of his employment, the statement of claim continued:

"9. The cause of the deceased's death was the negligence of the defendants and each of them.

10. As a consequence of the deceased's death, the plaintiff has suffered and continues to suffer a recognised psychiatric illness.

11. The cause of the plaintiff's psychiatric illness was the negligence of the defendants and each of them."

1. The extensive particulars of negligence may be broadly described as alleging that the appellants failed to provide Mr Winch with a safe place or system of work because he was exposed to asbestos dust and fibre without any, or any effective, protection, warning or other measures appropriate having regard to the risks associated with working with products containing asbestos.

1. On 13 September 2011 the appellants filed a motion seeking an order that the proceedings be dismissed for want of jurisdiction and alternatively directions for the further conduct of the proceedings on the footing that the Claims Resolution Process did not apply to the proceedings. As I have said, the primary judge dismissed the motion.

1. It was common ground before the Tribunal and on appeal that the psychiatric illness condition the subject of the respondent's proceedings is not a "dust related condition" within the meaning of the Tribunal Act, but that the mesothelioma from which Mr Winch suffered was did fall within the statutory language.

1. The primary judge noted (at [1]), that although some of the facts may be contentious, they might be taken to be established for the purposes of the application. The appellants did not contest that proposition on appeal.

Legislative framework

1. The respondent commenced her proceedings in the Tribunal seeking to invoke the jurisdiction conferred by the Tribunal Act.

1. In the Second Reading Speech to the Bill which became the Tribunal Act, the Attorney General, the Hon Mr John Dowd said (Second Reading Speech, New South Wales, Legislative Assembly, Parliamentary Debates (Hansard), 3 May 1989 at 7398):

"The principal bill wilI create a tribunal, to be called the Dust Diseases Tribunal, with jurisdiction to hear claims in tort for negligence and breach of statutory duty relating to death or personal injury attributable to specified dust diseases and other dust-related conditions. Honourable members will be aware of the considerable delays that exist in the common law jurisdictions of both the Supreme Court and the District Court, which this Government inherited. Delays, of course, are particularly critical for plaintiffs with dust diseases, such as mesothelioma, which have a long latency period but, once diagnosed, result in rapid deterioration and usually lead to death within 12 to 18 months. The Government is committed to these claims being dealt with expeditiously by the creation of a separate tribunal that will provide a fast-track mechanism ... Clause 11 provides for claims for damages arising from dust diseases and other dust-related conditions to be made to, and to be dealt with, by the tribunal. It provides also for claims arising out of the death of such persons to be made to, and to be dealt with, by the tribunal ... ." (Emphasis added)

1. The Tribunal is a court of record: s 4(2). Its primary jurisdiction is set out in s 10 of the Tribunal Act which relevantly provides:

"(1) The Tribunal has, except as provided by sections 29 and 32, exclusive jurisdiction to hear and determine proceedings referred to in sections 11 and 12.

(2) The Tribunal has such other jurisdiction as may be conferred on it by or under any other Act.

...

(4) In any proceedings brought under section 11 or transferred under section 12, the Tribunal has the same power to make decisions as the Supreme Court would, but for this section, have had in relation to similar proceedings brought in the Supreme Court.

(5) Subject to sections 13 (6) and 14, a decision of the Tribunal has the same effect as, and may be enforced in the same way as, a decision of the Supreme Court."

1. Section 11 provides:

11 Claims for damages for dust diseases etc to be brought under this Act

(1) If:

(a) a person is suffering, or has suffered, from a dust-related condition or a person who has died was, immediately before death, suffering from a dust-related condition, and

(b) it is alleged that the dust-related condition was attributable or partly attributable to a breach of a duty owed to the person by another person, and

(c) the person who is or was suffering from the dust-related condition or a person claiming through that person would, but for this Act, have been entitled to bring an action for the recovery of damages in respect of that dust-related condition or death,

proceedings for damages in respect of that dust-related condition or death may be brought before the Tribunal and may not be brought or entertained before any other court or tribunal.

(1A) Proceedings by any tort-feasor liable in respect of damages referred to in subsection (1) to recover contribution from any other tort-feasor liable in respect of that damage may be brought before the Tribunal.

Note: This subsection does not prevent those proceedings

(2) In subsection (1), a reference to a duty includes a reference to a duty imposed by statute as well as a duty imposed under the common law.

(3) If the cause of action giving rise to proceedings to be brought under subsection (1) or (1A) also gives rise to a claim in respect of some other matter, the claim may be included in those proceedings even though it does not relate to a dust-related condition from which a person is suffering or has suffered.

(4) Any matter that is ancillary or related to a matter that is the subject of proceedings to be brought under subsection (1) or (1A) may also be included in those proceedings.

(5) In subsection (1) (c), the reference to a person claiming through a person who is or was suffering from a dust-related condition includes a reference to a relative for whose benefit an action may be brought under the Compensation to Relatives Act 1897." (Emphasis added)

1. At the time Grech was decided the provisions italicised in s 11 were not in force. Sub-section (5) was added by Schedule 1 of the Statute Law (Miscellaneous Provisions) Act (No 3) 1989 (the "1989 Act"). The Bill which became the 1989 Act passed through both Houses of Parliament on 23 November 1989. It commenced operation on the date of assent, 21 December 1989: s 2. It was accompanied by an Explanatory Note, which did not form part of the Act, but stated:

"Explanatory note

The proposed amendment makes it clear that an action for the benefit of a relative of a deceased person seeking damages in respect of a dust-related condition suffered by the deceased person must be brought under the Act and not the Compensation to Relatives Act 1897."

1. In the Second Reading Speech to the Bill which became the 1989 Act, the Attorney General, the Hon Mr John Dowd said (Second Reading Speech, New South Wales, Legislative Assembly, Parliamentary Debates (Hansard), 23 November 1989 at 13379):

"The amendment to the Dust Diseases Tribunal Act will ensure that disease [sic, proceedings] under the Compensation to Relatives Act with respect to dust or dust-related proceedings fall[s] within the jurisdiction of the Tribunal which has now been in operation for some weeks ..."

1. Sub-section (1A) was added by the Dust Diseases Tribunal Amendment (Claims Resolution) Act 2005, Sch 1 [2] (the "2005 Act"). In the Second Reading Speech to the Bill which became the 2005 Act, the Attorney General, the Hon Mr Bob Debus, relevantly said (Second Reading Speech, New South Wales, Legislative Assembly, Parliamentary Debates (Hansard), 5 May 2005 at 15804):

"The bill also amends the Act to clarify the extent of the jurisdiction of the Dust Diseases Tribunal by providing that the tribunal's jurisdiction to determine claims extends to claims for contribution between liable tortfeasors that are brought separately from the claimant's claim."

1. In Laminex (Australia) Pty Ltd t/as Laminex Industries v Coutts [2006] NSWCA 186; (2006) 3 DDCR 728 ("Laminex"), Giles JA suggested that s 11(1A) may have changed the outcome in Wallaby Grip (BAE) Pty Ltd (in liquidation) v Eraring Energy [2004] NSWCA 269; (2004) 60 NSWLR 701 ("Wallaby Grip") in which the Court held that the "proceedings before the Tribunal" were those capable of being brought under s 11(1), and not claims which could be included within the proceedings as ancillary or related matters pursuant to s 11(4). The ancillary or related claim in question was a defendant's claim for statutory contribution.

1. Section 3 contains the following relevant definitions

" 'ancillary or related matter', in relation to any proceedings, includes any claim relating to the subject-matter of the proceedings that a defendant in the proceedings has against another person, whether that other person is a party to the proceedings or not.

'dust-related condition' means:

(a) a disease specified in Schedule 1, or

(b) any other pathological condition of the lungs, pleura or peritoneum that is attributable to dust."

1. Section 12 requires proceedings of the kind referred to in s 11(1) which are brought or pending in either the Supreme or District Courts to be transferred to the Tribunal, together with any ancillary or related matters.

1. Other provisions of the Tribunal Act enacted after Mangion was decided confer significant benefits on plaintiffs in proceedings before the Tribunal and cast light on its jurisdiction.

1. Section 11A, introduced in 1995, empowers the Tribunal to make an award of damages in stages in:

"... proceedings of the kind referred to in section 11 (1) that are brought after the commencement of this section and in which there is proved or admitted to be a chance that at some definite or indefinite time in the future the person who is suffering from the dust-related condition in respect of which the proceedings are brought ( 'the injured person') will, as a result or partly as a result of the breach of duty giving rise to the cause of action, develop another dust-related condition ..."

1. Section 11A was described as unique to the Tribunal in BHP Billiton Ltd v Schultz [2004] HCA 61; (2004) 221 CLR 400 ("BHP Billiton Ltd v Schultz") (at [6]) per Gleeson CJ, McHugh and Heydon JJ. It means the Tribunal does not have to calculate damages on a once-only basis and, as was explained in the Second Reading Speech, deals with the situation which may be envisaged with, for example, "asbestosis, which may or may not progress to mesothelioma, with the probability often impossible to evaluate": Courts Legislation Amendment Bill, Second Reading Speech, Parliamentary Debates, Hansard, Legislative Council, 31 May 1995.

1. Sections 12A, 12B, 12C, 12D, 25A and 25B were inserted into the Tribunal Act by the Workers Compensation Legislation Amendment (Dust Diseases and Other Matters) Act 1998 (the "1998 Act"). The amendment to add subsection (3) to s 25 was made by the Courts Legislation Amendment Act 1995.

1. The mischief to which the provisions were addressed was identified in the Second Reading Speech of the Attorney General, the Hon Jeff Shaw QC, as follows (New South Wales Legislative Council, Parliamentary Debates (Hansard), 17 November 1998, at 9973 - 9974):

"The main purposes of this bill are to increase the fairness of workers compensation and common law provisions relating to dust diseases, to make procedural changes to enable more efficient disposal of proceedings in the Dust Diseases Tribunal and facilitate the settlement of claims, and to make other miscellaneous revisions. Dust diseases, to which this legislation relates, are defined to include conditions such as asbestosis, mesothelioma and silicosis. While asbestos is no longer mined or in general use in New South Wales, its harmful effects on individuals, families and society continue. Many of the current cases of asbestos-related disease arise from exposure during the 1950s, 1960s and 1970s when few, if any, adequate precautions were taken to protect workers and others....

It is not uncommon for workers and other persons suffering from the most serious type of dust disease to have very limited life expectancy. Consequently, claimants are often under considerable pressure to try to finalise their general damages claim before death, for the benefit of their families. This has meant that in some cases hearings have been held in harrowing circumstances when the claimant is on the verge of death. Having regard to the special nature of dust diseases, the bill provides that where the claimant dies before completion of the Tribunal proceedings the claimant's estate will still be able to pursue recovery of the outstanding general damages. This is intended to avoid the arbitrariness and added distress involved in the present situation.

Another important proposal in the bill relates to the time allowed for bringing of common law claims for dust diseases. The existing provisions of the Limitation Act, which lay down a basic three-year limit for claims that runs from time of injury, do not easily fit the reality of gradual-onset dust diseases. Cases of dust disease may have a latency period of 30 years or more.

The current Act allows discretion to extend the three-year and related time limit provisions based on factors such as the claimants having been unaware of the disease or its cause or extent. However, application of such provisions takes time and involves additional expense for claimants who may have a short life expectancy. In recognition of the particular circumstances applicable to dust diseases, it is proposed to minimise such technical legal hurdles by providing that those current provisions do not apply in these cases. In consultation some organisations have raised a concern that changes, such as that proposed to limitation provisions, could increase the case load of the Dust Diseases Tribunal by encouraging forum shopping from interstate or overseas.

That concern is proposed to be addressed more widely in other legislation taking account of comments by the Chief Justice and the President of the Court of Appeal in the recent judgment in James Hardie v Grigor [(1998) 45 NSWLR 20]."

1. Section 12A relevantly provides:

"12A No limitation period

(1) The purpose of this section is to enable proceedings to be brought before the Tribunal in relation to dust-related conditions at any time.

(2) Nothing in the Limitation Act 1969 or any other statute of limitations operates to prevent the bringing or maintenance of proceedings before the Tribunal in relation to dust-related conditions.

3) Without limiting subsection (2):

(a) sections 14, 18A, 60C and 60G of, Division 6 of Part 2 of, and Schedule 5 to, the Limitation Act 1969 do not prevent the bringing or maintenance of any such proceedings before the Tribunal, and

(b) any such proceedings may be brought or maintained before the Tribunal even though a limitation period has already expired under that Act, and

(c) any such proceedings may be brought or maintained before the Tribunal as if Division 1 of Part 4 of that Act had never been in force."

1. Section 12B provides:

"12B Damages for non-economic loss after death of plaintiff

(1) The purpose of this section is to enable the estate of a person whose death has been caused by a dust-related condition to recover damages for the person's pain or suffering, or for any bodily or mental harm suffered by the person, or for curtailment of the person's expectation of life, provided proceedings commenced by the person were pending before the Tribunal at the person's death.

(2) Section 2(2)(d) of the Law Reform (Miscellaneous Provisions) Act 1944 does not apply in relation to proceedings commenced by a person before his or her death and pending before the Tribunal at his or her death, where the cause of action is for damages in respect of a dust-related condition."

1. Section 12C ensures that "[f]or the avoidance of doubt", settlement with "one or more joint tortfeasors in or in relation to proceedings before the Tribunal and who are liable in respect of damage as a result of a dust-related condition" shall not bar recovery against one or more other joint tortfeasors (whether or not they are defendants in the proceedings), unless the terms of the settlement otherwise provide. The common law vice to which that provision was directed was recently considered in Newcrest Mining Limited v Thornton [2012] HCA 60; (2012) 293 ALR 493: French CJ (at [18] - [22]); Heydon J (at [45]); Crennan and Kiefel JJ (at [76].

1. Section 12D applies to "proceedings before the Tribunal ... for damages in relation to dust-related conditions" and provides that "[i]n determining damages for non-economic loss in any such proceedings, no deduction is to be made for any amount of compensation already paid or payable, or payable in the future, under the Workers' Compensation (Dust Diseases) Act 1942".

1. Other provisions of the Tribunal Act facilitate, by leave, the admission of evidence in current proceedings of "[h]istorical evidence and general medical evidence concerning dust exposure and dust diseases" whether or not the proceedings are between the same parties (s 25(3)), envisage the use of "[m]aterial obtained for the purposes of proceedings before the Tribunal by discovery or interrogatories ... in other proceedings before the Tribunal, whether or not the proceedings are between the same parties" (s 25A) and prohibit the relitigation or rearguing of "[i]ssues of a general nature" already determined in proceedings before the Tribunal (s 25B) (an expression which is not defined and whose scope has not been the subject of authoritative determination: see the discussion by Curtis J in Brambles Australia Ltd v British and American Tobacco Australia Services Ltd; Re Mowbray (No 6) [2006] NSWDDT 7; (2006) 3 DDCR 495 (at [11] ff) but, semble, would include matters such as causation: see James Hardie & Coy Pty Ltd v Barry [2000] NSWCA 353; (2000) 50 NSWLR 357 (at [12]) per Spigelman CJ). None of these provisions were in force when Mangion was decided.

1. Finally I note that Parts 3 - 9 of the Civil Procedure Act 2005 and the Uniform Civil Procedure Rules 2005 ("UCPR") apply to proceedings in the Dust Diseases Tribunal: s 4, Civil Procedure Act; UCPR r 1.5.

Negligently inflicted psychiatric harm

1. The expression "nervous shock" has been described as "apt to mislead" and as "a common lawyer's shorthand for the categories of psychiatric harm which are compensable under the tort of negligence": Tame v State of New South Wales; Annetts v Australian Stations Pty Ltd [2002] HCA 35; (2002) 211 CLR 317 ("Tame") (at [204]) per Gummow and Kirby JJ. It went "out of fashion" in the United Kingdom (see Attia v British Gas plc [1988] QB 304 (at 317) per Bingham LJ) and doubts about the use of the expression in Australia were referred to in Mount Isa Mines Ltd v Pusey [1970] HCA 60; (1970) 125 CLR 383 (at 394) per Windeyer J; see also Jaensch v Coffey [1984] HCA 52; (1984) 155 CLR 549 (at 552) per Gibbs CJ;(at 559 - 560) per Brennan J; (at 587) per Deane J. As is apparent from most of the judgments in Tame, the term "recognisable psychiatric illness" is now more commonly used to describe the compensable disability. It expresses the common lawyer's (belated) adoption of medical parlance: Mount Isa Mines Ltd v Pusey (at 394).

1. However, at the time Mangion was decided, such claims were governed by Part 3, s 3 of the 1944 Act which provided:

"3 Personal injury arising from mental or nervous shock

(1) In any action for injury to the person caused after the commencement of this Act, the plaintiff shall not be debarred from recovering damages merely because the injury complained of arose wholly or in part from mental or nervous shock ..."

1. Mangion was written by reference to the term "nervous shock" in the 1944 Act. I shall, accordingly, use that expression in these reasons when appropriate to discuss that decision. It should be understood, however, to be intended to be synonymous with the contemporary expression of "recognisable psychiatric illness".

1. At the time the respondent brought her proceedings, Part 3 of the Civil Liability Act 2002 dealt with any claim for damages for mental harm resulting from negligence, regardless of whether the claim was brought in tort, in contract, under statute or otherwise: s 28(1). Part 3 of the Civil Liability Act was inserted by the Civil Liability Amendment (Personal Responsibility) Act 2002 (the "Personal Responsibility Act") and commenced on 6 December 2002. The Personal Responsibility Act repealed Part 3 of the 1944 Act. However, subject to exceptions not presently relevant, the Civil Liability Act does not apply to civil liability in proceedings of the kind referred to in s 11 of the Tribunal Act: s 28(3), s 3B(1)(b), Civil Liability Act.

1. If, accordingly, s 11 confers jurisdiction on the Tribunal to entertain the respondent's claim for recognisable psychiatric illness then, it seems, that claim will have to be decided in accordance with the common law principles governing such an action as expounded in Tame. That case held that liability for negligently inflicted psychiatric injury turns on whether the defendant ought reasonably to have foreseen the risk of his or her negligent act or omission leading to the plaintiff suffering a recognisable psychiatric injury and that risk is not far-fetched or fanciful: Tame (at [18]) per Gleeson CJ; (at [66]) per Gaudron J; (at [200] - [201]) per Gummow and Kirby JJ; (at [267]) per Hayne J; see also Koehler v Cerebos (Australia) Ltd [2005] HCA 15; (2005) 222 CLR 44 (at [33]) per McHugh, Gummow, Hayne and Heydon JJ.

1. The negligent act or omission relevant to this inquiry in this case will at least include making good the particulars of negligence to which I have referred which revolve around analysing the use of asbestos in Mr Winch's workplace. The foreseeability issue will, again at least, include the respondent establishing that the appellants ought reasonably to have foreseen that if Mr Winch died as a result of his exposure to asbestos, there was a risk that a person in the respondent's position may suffer a recognisable psychiatric injury.

Mangion - O'Meally J's decision

1. Mangion arose out of eight actions commenced by plaintiffs in the Supreme Court seeking to recover damages in consequence of the death of their husbands by reason of a dust disease. Each sued under the Compensation to Relatives Act 1897 ("Compensation to Relatives Act") and one, Grace Mangion, claimed damages for nervous shock sustained as a result of her husband's death pursuant to the 1944 Act. The actions were on foot when the Tribunal Act commenced operation. The Registrar of the Common Law Division in which the proceedings were pending transferred them to the Dust Diseases Tribunal pursuant to s 12(1) of the Tribunal Act.

1. O'Meally J (at 277) determined a preliminary question as to the Tribunal's jurisdiction to hear and determine the actions: Grech.

1. One of the plaintiffs and three of the defendants, James Hardie & Company Pty Ltd, Seltsam Ltd and Alcan Australia Ltd contended that the words "a person claiming through that person" in s 11(1)(c) of the Tribunal Act were sufficient to invest the Tribunal with jurisdiction to deal both with claims under the Compensation to Relatives Act and s 3 of the 1944 Act enabling recovery of damages for injury arising from mental or nervous shock.

1. O'Meally J rejected (at 279) a submission that the Tribunal Act should be characterised as remedial hence warranting a liberal interpretation because he considered the Tribunal Act did not contain any "new entitlement or redress", but only changed procedures and not substantive rights.

1. His Honour held that the Tribunal did not have jurisdiction over the claims for the following reasons. First, he held (at 279) that an action for nervous shock was an action personal to the plaintiff and was not an action made by a person suffering a dust disease, nor one by "a person claiming through that person" as required by s 11(1)(c). Secondly, in his Honour's view, an action based upon the Compensation to Relatives Act was "not the cause of action of the person who has died" so that the cause of action created by the Compensation to Relatives Act was not an action brought by "a person claiming through" a person who has died of a dust disease. In his Honour's view "[t]he reference to 'that person' in s 11(1)(c) was a reference to a person who was suffering from a dust-related condition". He remarked (at 279 - 280):

"The word 'claiming' in the phrase 'claiming through' in s 11(1)(c) does not, in my opinion, mean claiming as a result of a 'dust-related condition or death'. The whole phrase 'a person claiming through that person' should be considered and when considered limits claims to those brought in a representative capacity."

1. In this respect, his Honour appears to have been influenced by Kelly v Rogers [1892] 1 QB 910 ("Kelly v Rogers") and Piercy v Young [1880] 14 Ch D 200, which, His Honour observed (at 278), gave the phrase "claiming through" a narrow interpretation.

1. Thirdly, O'Meally J referred (at 280) to the principle "that the jurisdiction of a superior court is not to be ousted other than by express words in, or by obvious inference from, an Act of Parliament" and concluded that s 11 and s 12 of the Tribunal Act ousted the jurisdiction of the Supreme Court to hear and determine claims for damages by persons or the estates of persons suffering or who had suffered from specified dust-related conditions, but did not oust that Court's jurisdiction to hear and determine actions for damages under the Compensation to Relatives Act or for nervous shock.

1. Accordingly, his Honour concluded (at 281 - 282) that the Tribunal did not have jurisdiction to hear and determine any actions for damages under the Compensation to Relatives Act or to hear and determine actions for damages for nervous shock and remitted the proceedings to the Supreme Court.

Mangion - Court of Appeal decision

1. Once the proceedings were "returned" to the Supreme Court, three of the actions came before Wood J who ordered that the questions of jurisdiction be decided separately as preliminary questions of law pursuant to Supreme Court Rules 1970, Pt 31, r 2, and, invoking Pt 12, r 2(1)(a) of those Rules, ordered that the proceedings be removed into the Court of Appeal: Mangion (at 102).

1. Two questions of law were identified for the Court of Appeal's consideration, being (Mangion at 102):

"(1) Is the Dust Diseases Tribunal Act 1989 effective to confer upon the Dust Diseases Tribunal of New South Wales jurisdiction in proceedings in respect of the death of a person caused by a dust-related condition where proceedings are brought for damages pursuant to the Compensation to Relatives Act 1987?

(2) Is the Dust Disease Tribunal Act 1989 effective to confer upon the Dust Diseases Tribunal of New South Wales jurisdiction in proceedings in respect of the death of a person caused by a dust-related condition where the proceedings are brought for damages pursuant to the Law Reform (Miscellaneous Provisions) Act 1944, s 3, for nervous shock?"

1. Samuels AP (with whom Clarke JA agreed) approached the separate questions on the basis that the issues turned on the words "claiming through" in s 11(1)(c): Mangion at 104.

1. His Honour had no difficulty finding (at 104) that "[a]n action under the Compensation to Relatives Act is a derivative action, dependent on or secondary to rights of action vested in the deceased immediately before his or her death". Accordingly, accepting that "the Macquarie Dictionary defines 'through' to include 'by the means or instrumentality of' and 'by reason of or in consequence of' ", his Honour concluded that "it is clear that X, asserting rights under the Compensation to Relatives Act, claims 'through' the person whose death terminated the right to support which the claimant seeks to replace by an award of damages ...": Mangion at 104.

1. His Honour found support for that conclusion in the following passage from the joint judgment of Brennan and Dawson JJ in Tanning Research Laboratories Inc v O'Brien [1990] HCA 8; (1990) 169 CLR 332 (at 342) ("Tanning Research"):

"Next, the prepositions 'through' and 'under' convey the notion of a derivative cause of action or ground of defence, that is to say, a cause of action or ground of defence derived from the party. In other words, an essential element of the cause of action or defence must be or must have been vested in or exercisable by the party before the person claiming through or under the party can rely on the cause of action or ground of defence." (Emphasis added)

1. His Honour did not find the answer so "readily compelled" in the case of an action for damages for nervous shock under s 3 and s 4 of the 1944 Act which he observed "is not derived from any cause of action vested in the person whose death (for example) occasioned the claimant's injury by nervous shock ... [and] does not depend upon any existing liability to the original victim, whose contributory negligence, or failure for any reason in an action against the defendant, is no answer to the claimant's case [and] ... merely required ... 'that the act, neglect or default that caused death, injury or peril was in some sense wrongful'": Mangion at 104 - 105. His Honour referred for the last proposition to Scala v Mammolitti (1965) 114 CLR 153 (at 162) per Windeyer J.

1. Samuels AP then considered the Tribunal Act, having regard to the requirement (s 33, Interpretation Act 1987) that he should prefer a construction that promoted "the purpose or object underlying the Act". He stated (at 105):

"It is manifest from the terms of s 11 and s 12 of the Act that its purpose was to assign to a specified tribunal claims for damages for negligence or breach of statutory duty in respect of injury or death attributable to a dust-related condition. Such proceedings may not be brought before any other court or tribunal, and, if pending in the Supreme Court on the commencement of s 12, the registrar of the relevant division must transfer the proceedings to the Tribunal. Section 11(3) of the Act is not easy to interpret, but it does at least indicate that proceedings for a dust-related condition may carry with them into the Tribunal claims in respect of other matters which are not dust-related. Section 11(4) confers on the Tribunal jurisdiction to deal with matters ancillary or related to the proceedings contemplated by s 11(1), and presumably includes, for example, questions concerning apportionment and the liability of insurers: see the definition in s 3(1).

The object of the Act being to assign to the Tribunal all proceedings in respect of injury or death caused by dust-related conditions, it is necessary to give the words 'claiming through' a sufficiently liberal construction to prevent the frustration of the statutory purpose.

It seems to be a reasonable view of the language used in the context of this Act to regard, for example, a claim by a widow for damages for nervous shock sustained upon the death of her husband from a dust-related condition attributable to his employer's breach of duty as made 'through' the husband, in the sense of in consequence of his dust-related death.

If 'through', and thus the provisions to which the word is central, is regarded as ambiguous or obscure, so as to authorise consideration of extrinsic material by dint of the Interpretation Act, s 34(1)(b)(i), the Attorney-General's Second Reading Speech offers some assistance. Both he, and the Explanatory Note to the Bill, make clear that s 11 was intended to provide that claims arising out of the death of persons affected by dust-related conditions should be dealt with by the Tribunal." (Emphasis added)

I note that the enactment of sub-section (5) does not appear to have been drawn to the Court of Appeal's attention as it was not included when s 11 was quoted: see Mangion (at 103).

1. Samuels AP found support for his conclusion in the passage I have emphasised in the Attorney General's Second Reading Speech (see [40] above) to which he had regard pursuant to s 34(1)(b)(i) of the Interpretation Act. His Honour did not think "that it [could] be doubted that a claim for damages for nervous shock under the 1944 Act is a claim which conforms to that prescription".

1. Finally, Samuels AP adopted (at 106) the approach Mason and Wilson JJ applied in Tanning Research in dealing with a submission about the construction of art IV of the Hague Rules "... we think that such an extraordinary result has only to be stated to suggest that the argument is untenable': Shipping Corporation of India Ltd v Gamlen Chemical Co (A/asia) Pty Ltd [1980] HCA 51; (1980) 147 CLR 142 (at 164). He concluded:

"If one makes the not unreasonable assumption that in the present state of our society most dust-affected workers are likely to be males, proceedings by widows in respect of their husbands' deaths caused by dust-related diseases will ordinarily consist of a claim under the Compensation to Relatives Act with which, less commonly, may be linked, in the same statement of claim, a claim for nervous shock. It would indeed be extraordinary if these two claims had to be decided by different tribunals. In my opinion the Tribunal has jurisdiction to deal with both."

1. Like Samuels AP, Mahoney JA had little difficulty concluding that the Compensation to Relatives Act proceedings were within the Tribunal's jurisdiction. He took into account in this respect that the "objective sought to be achieved by the Dust Diseases Tribunal Act was, or included, that where a person is liable for damages because of his liability for a dust-related condition, all aspects of his liability should be determined by one Tribunal", that the legislature intended to avoid multiple litigation in different jurisdictions in dust-related condition cases and, also, the possibility of inconsistent decisions in different courts or tribunals in respect of claims based upon a dust-related condition: Mangion (at 108 - 109).

1. Mahoney JA recognised (at 109) that s 11(1) was the central provision of this part of the Tribunal Act and that the essential question was to determine what proceedings it specified. He remarked that its structure "provides that if the three conditions specified in pars(a), (b) and (c) are satisfied, then the proceedings which it specifies may be brought before the Tribunal and no other court or tribunal."

1. Unlike Samuels AP, Mahoney JA (at 109) focused on the words in the final clause of s 11(1), "proceedings for damages in respect of that dust-related condition or death" and said:

"Therefore, the proceedings for damages which may come before the Tribunal are proceedings having to that dust-related condition or death the relationship of being 'in respect of' it."

1. Mahoney JA referred to statements in Genders v Government Insurance Office of New South Wales (1959) 102 CLR 363 (at 387); McDowell v Baker (1979) 144 CLR 413 (at 415) to the effect that the words "in respect of" "denote a relationship which is wide in its ambit". Giving those words their ordinary meaning in s 11(1), his Honour concluded (at 109 - 110) that a Compensation to Relatives Act claim was one "in respect of" a dust-related condition or death. While accepting that it was "at least arguable" that "the generality of 'in respect of' is to be conditioned" he concluded, "it is to be conditioned by reference to the objective which the legislation sought to achieve and the means it chose to achieve it". In his view (at 110):

"[T]he kind of 'proceeding for damages' that the legislature envisaged as described by the term 'in respect of' is a proceeding deriving from the kind of situation adverted to in particular in par (b), viz, the situation where the condition or death of the person suffering from a dust related condition is attributable to a breach of duty owed to him by another."

1. Mahoney JA rejected (at 110) the respondent's submission that the words "proceedings for damages in respect of that dust-related condition or death" should be read down to limit the proceedings to those brought by a person affected by the dust-related condition or "a person claiming through that person". In his view, there was no "warrant in the subsection for the implication of such a restriction upon the generality of the words". He explained (at 110 - 111):

"The argument suggests, I think, that the necessity for the implication arises because of par (c) and the purpose of it. I do not think that that is correct. Stated broadly - and therefore without the qualifications which necessarily must be made - the purpose of pars (a), (b) and (c) is to ensure that, where the person affected by a dust-related condition or a person claiming through him would have been entitled to bring an action for damages for that condition and so must bring the proceedings before the Tribunal, all other proceedings for damages 'in respect of' that condition must be brought before the Tribunal. The restriction imposed by s 11(1) upon other courts and tribunals applies only where the person afflicted by the dust-related condition or 'a person claiming through that person' would have been entitled to bring an action for damages in an ordinary court because of the condition.

Paragraphs (a), (b) and (c) perform a function having some analogy to the function performed by, for example, the Compensation to Relatives Act, s 3(1). Section 3(1), as it operated in 1897, allowed a claim by relatives under s 4(1) to be made only if the person who has died by reason of the defendant's wrongful act would (if death had not ensued) have been entitled to maintain an action and recover damages from the defendant. The relatives may sue only if the deceased could have sued.

The purpose of pars (a), (b) and (c) is to limit the operation of the restrictions on jurisdiction imposed by s 11(1) to dust-related conditions and to limit them further to cases in which a right of action for damages in respect of the condition or death from it was vested in the person affected by the condition 'or a person claiming through that person'. Section 11(1) operates only where, in this sense, the person primarily affected by the condition or his estate could have sued for it.

On this construction of par (c) it is not necessary to pursue in detail the meaning of the words 'a person claiming through that person'. But I am inclined to the view that the words refer essentially to the claim which, if the person primarily affected has died, his legal personal representative will have. Since the Law Reform (Miscellaneous Provisions) Act 1944, where a person's condition is attributable to the breach of the duty owed to him by another and he dies, all causes of action vested in him survive for the benefit of his estate (s 2(1)). His legal personal representative is 'a person claiming through that person' in respect of that cause of action. The purpose of pars (a), (b) and (c) is to ensure that, where the person primarily affected by the condition or, if he is dead, his legal personal representative, has the relevant cause of action, then all proceedings for damages in respect of the condition are to be brought before the Tribunal."

1. Mahoney JA then turned to the nervous shock issue. He observed (at 112), that by virtue of his reasons:

"...[A] proceeding for damages by a widow because of the nervous trauma suffered by her consequent upon her husband's dust-related condition or death is within the restrictions imposed by s 11(1) only if it is a proceeding 'in respect of' his dust-related condition or death."

1. Having observed that a nervous shock action might derive from statute pursuant to the 1944 Act or from the common law, Mahoney JA noted that if the objective of the Tribunal Act was to prevent a multiplicity of proceedings, then "the bringing of a nervous shock claim before the Tribunal would not - at least, it might not - further that objective". However, he continued, "if the objective of the Act be seen as including the avoidance of inconsistent decisions concerning a dust-related condition, that would be furthered by holding the present kind of claim to be one 'in respect of' that condition or death from it." He concluded (at 112) that while he "entertain[ed] doubts", he did not dissent from Samuels AP and Clarke JA's conclusion "that s 11(1) extends to this class of case".

Primary judgment

1. The appellants contended before the primary judge that the respondent's claim was not within the Tribunal's jurisdiction because "[she] is not suffering from a dust-related condition (s 11(1)(a)) and nor is she a person claiming through a person suffering from a dust-related condition (s 11(1)(c))": primary judgment (at [4]). The primary judge accepted the first part of this submission, but held that Mangion mandated he reject the second. He concluded (at [6] - [9]) that Mangion was authority for the proposition that the Tribunal had jurisdiction to deal with a claim for nervous shock "emanating from the illness or death of a person with a dust-related condition", even where that claim was advanced by a person not claiming under the Compensation to Relatives Act 1897.

1. The primary judge also rejected (at [10]) the appellants' submission that Mangion was no longer binding authority having regard to the "later passing" of s 11(5) of the Tribunal Act with its express reference to Compensation to Relatives Act claims, the structure of the Tribunal's claims resolution process and anomalies the appellants contended including nervous shock within the Tribunal's jurisdiction would produce.

1. The primary judge observed pithily that the answer to the appellants' submission concerning the effect of the introduction of s 11(5) was that:

"[13] ... [Section] 11, as originally enacted and so held by Mangion, gave the Tribunal jurisdiction to hear appropriate nervous shock claims. If that jurisdiction was to be taken away from the Tribunal, I would expect that it would be done so by the use of clear and unambiguous language, rather than by the cryptic and obtuse way in which it is said to have been done, if Mr Parker's submission is correct.

1. His Honour was also persuaded (at [11]) to his conclusion by the fact that the s 11(5) amendment had not been considered to have affected the meaning of s 11(1)(c) in Seltsam Pty Ltd v Energy Australia [1999] NSWCA 89; (1999) 17 NSWCCR 720 ("Seltsam") and Laminex and by the fact that the Tribunal Act had not been amended to address nervous shock claims despite the decision in Mangion.

1. Accordingly his Honour concluded (at [15]) that "Mangion stands and the Tribunal has jurisdiction to hear the plaintiff's claim."

Appellants' submissions

1. Mr T G R Parker of Senior Counsel, who appeared for the appellants on appeal and before the Tribunal, advanced two general submissions. The first was that because the respondent's psychiatric illness was not a "dust-related condition", although Mr Winch's mesothelioma was, the Tribunal would have jurisdiction over the respondent's claim only if she was a person "claiming through" Mr Winch and her proceedings could be characterised as being "for damages in respect of" Mr Winch's mesothelioma. He contended that neither of these conditions was satisfied. The second was that the decision in Mangion that a nervous shock claim was within the Tribunal's exclusive jurisdiction under s 11(1) was wrong and should be overruled.

1. First, Mr Parker argued that insofar as Mangion held that a person bringing nervous shock proceedings, whose condition was alleged to been caused by awareness another person had been injured or died as a result of the person suffering a dust-related condition, it was clearly incorrect. He argued that such a nervous shock claim was independent of any cause of action the injured or deceased person might have so that the plaintiff in such a case could not be said to be "claiming through" the injured or deceased person.

1. Secondly, Mr Parker submitted that the respondent's nervous shock claim could not be characterised as a claim made through Mr Winch nor constituted proceedings for damages "in respect of" his dust-related condition. It was not a claim through Mr Winch because the nervous shock claim was an independent cause of action not derived from, or dependent on, there having been a breach of duty to Mr Winch in respect of his condition. Rather, the respondent complained of a breach of duty she alleged the appellants owed her directly. Further, the damages she sought to recover would be assessed by reference to her psychiatric condition and did not depend in any way upon any assessment of damages for Mr Winch's dust-related condition.

1. Thirdly, Mr Parker contended that insofar as Samuels AP's reasons in Mangion (at 106) rested on his concern about the "practical problem" of a plaintiff having to bring a Compensation to Relatives Act and nervous shock claim in two jurisdictions, that issue was best addressed by including those claims in proceedings properly brought under s 11(1) or s 11(1A) via the route afforded by s 11(3) and s 11(4) rather than by stretching the meaning of "claiming through" in s 11(1). Thus Mr Parker submitted that once Samuels AP held that Ms Mangion's Compensation to Relatives Act claim was within s 11(1), her nervous shock claim would have fallen within the "pendent" jurisdiction conferred by either s 11(3) or s11(4). However he argued that route was not available to the respondent as Mr Winch's proceedings were no longer on foot having been settled some years prior to the commencement of her nervous shock proceedings. Accordingly there were no principal proceedings in which her claim could be "included": see s 11(3) and s 11(4).

Respondent's submissions

1. Mr P Semmler of Queens Counsel, who appeared for the respondent with Mr S Tzouganatos on appeal and below, first submitted that the Tribunal had jurisdiction over the respondent's claim because the conditions in s 11(1)(a), (b) and (c) were satisfied. Section 11(1)(a) was satisfied because immediately before his death Mr Winch was suffering from the dust-related condition of mesothelioma. Section 11(1)(b) was satisfied because the respondent alleged that Mr Winch's mesothelioma was caused by, or attributable to, the negligence of the appellants in allowing him to be exposed to asbestos dust in the course of his employment. Section 11(1)(c) was satisfied because the respondent was a person who, but for the Tribunal Act, was entitled to bring an action for "damages 'in respect of'" Mr Winch's death. The last step in Mr Semmler's argument was based on Mangion (at 105 - 107) per Samuels AP and (at 112 - 113) per Mahoney JA.

1. Secondly, Mr Semmler submitted that the Court should prefer a construction of s 11 which advanced the legislature's manifest intention that the Tribunal should have exclusive jurisdiction in claims arising from dust-related conditions as explained in Mangion (at 105) and Laminex (at [57]).

1. It is, however, relevant to one of the questions in the appeal, namely whether Mangion was wrongly decided insofar as nervous shock claims are concerned, to recognise that none of s 11A, s 12A - s 12D, s 25(3), s 25A or s 25B had been enacted when it was determined. Those provisions, however, provide relevant context for the purposes of this Court determining whether s 11(1) extends to the respondent's proceedings. As Gageler J recently observed, "where a statute is amended, the statute and the amending statute are 'to be read together as a combined statement of the will of the legislature'": Commissioner of Police v Eaton [2013] HCA 2 (at [97]).

Relational terms

1. In The Queen v Khazaal [2012] HCA 26; (2012) 86 ALJR 884 ("Khazaal") (at [31]) French CJ observed of what he described as "relational terms":

"Relational terms such as 'connected with' appear in a variety of statutory settings. Other examples are: 'in relation to'; 'in respect of'; 'in connection with'; and 'in'. They may refer to a relationship between two subjects which may be the same or different and may encompass activities, events, persons or things. They may denote relationships which are causal or temporal or relationships of similarity or difference. The task of construing such terms does not involve the resolution of ambiguity. They are ambulatory words and may be designed to cover a variety of subjects and a variety of relationships between those subjects. The nature and breadth of the relationships they cover will depend upon their statutory context and purpose. Generally speaking it is not desirable, in construing relational terms, to go further than is necessary to determine their application in a particular case or class of cases. A more comprehensive approach may be confounded by subsequent cases." (Emphasis added)

1. French CJ spoke in a similar vein in Kostas v HIA Insurance Services Pty Ltd t/as Home Owners Warranty [2010] HCA 32; (2010) 241 CLR 390 ("Kostas") (at [24]), of the words "with respect to" in s 67(1) of the Consumer, Trader and Tenancy Tribunal Act 2001. Such words, he said were "to be read and applied having regard to their legislative context ...[and] [l]ike the terms 'in relation to' or 'in connection with' ... constitute a 'prepositional phrase' of indefinite content".

1. "Claiming through" is clearly capable of falling within the genus of relational terms. It is used to identify the relationship that identifies a person, other than the primary victim, whose claim may be within the Tribunal's s 11 jurisdiction.

1. While accepting the wisdom of French CJ's injunction that the nature and breadth of the two critical relational terms in s 11 ("claiming through" and "in respect of") depends on their context, some light may be cast on their interpretation by reference to authorities on which the appellants, in particular, relied, some of which were referred to in Mangion.

(a) claiming through

1. The principal authority on the phrase "claiming through" to which the appellants referred was Tanning Research, which Samuels AP quoted in Mangion. Tanning Research concerned the question whether the liquidator of a company, who rejected a proof of debt lodged by a foreign company claiming the price of goods sold under an agreement with the company being wound up which contained an arbitration clause, claimed "through or under" the company for the purposes of s 7(4) of the Arbitration (Foreign Awards and Agreements) Act 1974 (Cth) and hence was entitled to obtain a stay under s 7(2) of that Act of Supreme Court proceedings challenging that rejection. Brennan and Dawson JJ (with whom Toohey J agreed) held (at 342) that the meaning of the phrase "must be ascertained not by reference to authority but by reference to the text and context of s 7(4)". That being said, their Honours' reasons, as Samuels AP recognised, warrant consideration.

1. Critically, in my view, after the passage Samuels AP quoted (see [78] above) in which Brennan and Dawson JJ explained that "the prepositions 'through' and 'under' convey the notion of a derivative cause of action or ground of defence", their Honours said (at 342 - 343):

"A liquidator may be a person claiming through or under a company because the causes of action or grounds of defence on which he relies are vested in or exercisable by the company; a trustee in bankruptcy may be such a person because the causes of action or grounds of defence on which he relies were vested in or exercisable by the bankrupt.

A liquidator who defends his rejection of a proof of debt on the ground that, under the general law, the liability to which the proof relates is not enforceable against the company takes his stand on a ground which is available to the company. A liquidator who resists a claim made by a creditor against the assets available for distribution on the ground that there is no liability under the general law thus stands in the same position vis-à-vis the creditor as does the company. ... But it is otherwise if the liquidator supports his rejection of a proof of debt in reliance on a ground which allows him, and him alone, to go behind the judgment, account stated, covenant or estoppel on which the company's liability is founded. The entitlement of a liquidator to go behind a judgment, account stated, covenant or estoppel is unaffected, either substantially or procedurally, by the existence of an international arbitration agreement binding on the company ..." (Emphasis added)

See also Deane and Gaudron JJ (at 353).

1. The notion that the phrase "claiming though" or its analogues conveys some notion of derivation from a principal claim or title can be seen in other cases.

1. In Kelly v Rogers, one of the decisions to which O'Meally J referred, the Court of Appeal (Lord Esher MR, Fry and Lopes LJJ) held that there had been no breach of a covenant for quiet enjoyment of the demised premises in terms "without any interruption from or by him, the said lessor ... or any person or persons whomsoever lawfully claiming by, through, or under him". The owners of the reversion upon the original lease recovered possession of the premises under a condition of re-entry contained in that lease for non-payment of rent and breach of covenant. However they did not breach the covenant by the lessor for quiet enjoyment because their interruption was that of the superior landlord (Lord Esher (at 912); Lopes LJ (at 913)) or under a superior title (Fry LJ (at 912), rather than "through" or "under" the lessor.

1. In Nominal Defendant (Qld) v Taylor [1982] HCA 38; (1982) 154 CLR 106 the High Court (Mason, Wilson and Brennan JJ; Murphy J dissenting; Aickin J died before judgment was delivered) held that a claim against the Nominal Defendant brought by the children of the deceased passenger/owner of the vehicle in which he died for loss of support under s 12 and s 13 of the Common Law Practice Act 1867-1978 (Qld), was not a "claim for damages in respect of accidental bodily injury (fatal or non-fatal) to any person caused in Queensland ... through ... an uninsured motor vehicle for which the owner of such uninsured vehicle would be legally liable" (s 4F(2) Motor Vehicles Insurance Act 1936-1979 (Qld)). (Emphasis added). Section 12 of the Common Law Practice Act allowed the dependants of a deceased person to bring an action against a wrongdoer when it could be shown that the death was caused by a wrongful act such as would have enabled "the party injured to maintain an action and recover damages".

1. Mason and Brennan JJ held (at 109 - 110) that the cause of action created by s 12 was "quite separate and independent from the cause of action which the deceased would have had if he had lived ... [and was] not one which he could have brought had he survived, for it is his death that is the cause of action". Accordingly their Honours concluded "there is nothing in the suggestion made by the appellant that the respondents here are claiming through the deceased".

1. Finkelstein J considered Mangion in BHPB Freight Pty Ltd v Cosco Oceania Chartering Pty Ltd [2008] FCA 551; (2008) 168 FCR 169, in the course of determining whether Cosco, which was not a party to an arbitration agreement between BHPB Freight and a third party, could apply for a stay of proceedings pending in the Federal Court in reliance on s 7(2) of the International Arbitration Act 1974 (Cth). Section 7(4) provided that "[f]or the purposes of subsections (2) and (3), a reference to a party includes a reference to a person claiming through or under a party."

1. Finkelstein J referred (at [12] - [14]) to the passage from Tanning Research (at 342) set out above (at [78]) and to Samuels AP's elaboration of the meaning of a "derivative action" in Mangion: (see [77] - [78] above). His Honour observed that it followed that "while the relationship between the claimant [for the stay] and the party to the arbitration agreement 'must be an essential ingredient of the claim', that relationship must be relevant to the grounds advanced in support of the claim". After referring to a number of other authorities, his Honour concluded (at [15]) that:

"[T]hese cases show that there are two somewhat overlapping criteria that must be met to trigger the operation of s 7(4). The first is that there is a relationship of sufficient proximity between the party to the arbitration agreement and the person claiming to prosecute or defend an action through or under that party. The second is that the claim or defence is derived from the party to the arbitration agreement." (Emphasis added)

As Cosco could not satisfy either of these criteria, it was not entitled to apply for a stay.

(b) in respect of

1. Among the authorities to which French CJ referred in both Kostas and Khazaal was Workers' Compensation Board (Q) v Technical Products Pty Ltd [1988] HCA 49; (1988) 165 CLR 642 ("Technical Products") (at 653 - 655) per Deane, Dawson and Toohey JJ. The appellants relied on Technical Products as illustrating the limit of the prepositional phrase "in respect of".

1. In Technical Products, the plaintiff's husband was seriously injured in the course of his employment with Technical Products Pty Ltd. She alleged that as a consequence she suffered nervous shock and resulting psychiatric illness. She sued Technical Products for damages. It joined the Workers' Compensation Board of Queensland as a third party claiming indemnity from it. The Board demurred to the plaintiff's statement of claim on the ground that she had no entitlement under the Workers' Compensation Act 1916 (Qld) (the "WCA"). The Full Court of the Supreme Court of Queensland overruled the demurrer. The Board appealed to the High Court arguing that as the plaintiff sued for damages in respect of her own injury and not in respect of that suffered by her husband, she had no cause of action against it. Technical Products contended that the plaintiff's damages were prima facie in respect of her husband's injury because of the width of the meaning of the phrase "in respect of" in s 8(1) of the WCA. That provision required Technical Products to be insured by the Board "against all sums for which, in respect of injury to any worker employed by him, he may become legally liable by way of ... damages arising under circumstances creating also, independently of this Act, a legal liability in the employer to pay damages in respect of that injury."

1. The High Court (Wilson, Deane, Dawson, Toohey and Gaudron JJ) unanimously allowed the appeal, holding that "damages in respect of that injury" in s 8(1) meant damages in respect of an injury to a worker, assessed by reference to his injury and did not extend to damages for nervous shock to a person other than a worker where they would not be payable to or for the worker and would be assessed, not by the injury to the worker, but by its effect on another.

1. All members of the Court recognised that the words "in respect of" are capable of having a wide meaning, but said their meaning had to be determined by the context in which they appeared: Wilson and Gaudron JJ (at 646 - 657); Deane, Dawson, Toohey JJ (at 653 - 655).

1. It is unnecessary to explore in detail the contextual considerations peculiar to the WCA which led the Court to its conclusion. It is sufficient to note that the fact the object of the Act was to provide benefits to injured workers and their dependants in respect of injury suffered by the worker in the course of his employment was critical to the decision. The influence of this can be seen in Wilson and Gaudron JJ's statement (at 646) that "the primary meaning of the phrase ['damages in respect of that injury'] would describe the damages flowing directly to the worker or his dependants from the injury which he had suffered in the course of his employment". Further, Deane, Dawson and Toohey JJ (at 657) concluded that "the use of the phrase 'in respect of' does not, of itself, extend the meaning of an expression such as 'damages in respect of injury to any worker' so as to include damages payable to a person other than the worker." Finally, all members of the Court took into account the fact that any damages awarded in respect of the plaintiff's nervous shock claim would not be quantified by reference to the injury suffered by the worker, but by "[a]nother injury ... the nervous shock and psychiatric illness which she has suffered": Wilson and Gaudron JJ (at 646); see also Deane, Dawson and Toohey JJ (at 655 - 656).

1. Mr Parker relied upon the latter proposition, in particular, to emphasise that any damages the respondent might recover would be assessed by reference to such nervous shock injury as she might establish and that that had nothing to do with the damages which could have been recovered by Mr Winch in respect of his asbestos-related injury.

1. Mr Parker also relied on Unsworth where the question arose as to whether a claim for contribution by a joint tortfeasor was an "action ... to recover damages or compensation in respect of personal injury" within the meaning of s 121 of The Railways Acts 1914 to 1955 (Qld). Fullagar and Taylor JJ held that it was not. McTiernan ACJ (see 81 - 82) did not find it necessary to consider the issue. Fullagar J (at 86) was of the view that the proceedings to which s 121 referred were "proceedings taken to enforce liability for acts or omissions which are wrongful as against the person taking those proceedings [and that] [p]roceedings to obtain contribution in pursuance of the new statutory right given by The Law Reform Act are not such proceedings". Taylor J (at 91) held that the contribution claim was not within the statutory language because it was "of an entirely different character [and was] ... in effect a claim for a partial indemnity". While his Honour accepted that in the contribution claim the claimant had to establish that the person against whom the claim was made was "a person 'who is, or would if sued have been, liable in respect of the same damage'", in his view, "it [was] in no sense an action to recover damages in respect of personal injury".

1. Mr Parker submitted that Unsworth strongly supported the appellant's case because the contribution claim did not fall within s 121, even though it depended upon there having been a liability in respect of the personal injury to the plaintiff which gave rise to the claim which he emphasised was not a feature of the respondent's nervous shock claim.

Conclusion

1. The Tribunal Act did not create new causes of action. It created a specialist tribunal to deal with a certain type of claim for damages whose exclusive jurisdiction replaced that formerly exercised by the Supreme Court or the District Court: Goliath Portland Cement Co Ltd v Bengtell (1994) 33 NSWLR 414 (at 417) per Gleeson CJ. Its "jurisdiction is ... described in terms of a set of conditions in s 11(1)(a), (b) and (c) concerned with suffering a dust-related condition and entitlement to bring an action for recovery of damages in respect of that condition or related death, and the statement that proceedings for damages in respect of the dust-related condition or death may be brought": Laminex (at [37]) per Giles JA (Hodgson and Bryson JJA agreeing).

1. In my view neither the language, context nor purpose of s 11(1) extends the Tribunal's jurisdiction to claims such as the respondent's.

1. The first requirement for jurisdiction is "a person" who "is suffering, or has suffered, from a dust-related condition or a person who has died [who] was, immediately before death, suffering from a dust-related condition": s 11(1)(a). The indefinite article is used before "person" (who might conveniently be described as the "primary victim") and "dust-related condition".

1. Section 11(1)(b), which is cumulative on s 11(1)(a), requires an allegation "that the dust-related condition was attributable or partly attributable to a breach of a duty owed to the person by another person" (emphasis added). The definite article as used before "dust-related condition" and "person" ties those words back to the condition and the primary victim referred to in s 11(1)(a). It suggests that a precondition of the Tribunal's jurisdiction is that there be an allegation of breach of duty to the primary victim which caused, or was a cause of, that person's dust-related condition: see Laminex (at [21]).

1. Section 11(1)(c), which is cumulative on the preceding subsections, identifies the third prerequisite of jurisdiction. Again, its focus is first on the primary victim, but it also extends the scope of s 11(1) to include "a person claiming through" the primary victim. However, both persons must, but for the Tribunal Act, "have been entitled to bring an action for the recovery of damages in respect of that dust-related condition or death". In other words, as Bathurst CJ said in the course of argument, the opening part of s 11(1)(c) identifies the plaintiff, whereas the latter part of it identifies the cause of action and the words "claiming through that person" does not expand the cause of action falling within s 11(1).

1. If those three conditions are satisfied, "proceedings for damages in respect of that dust-related condition or death may be brought before the Tribunal and may not be brought or entertained before any other court or tribunal". The phrase "that dust-related condition or death" where it appears both in subsection (1)(c) and the final clause of s 11(1) again ties the condition or death which may be the subject of Tribunal proceedings to the preceding subsections (a) and (b).

1. The language of s 11(3) is also significant in the sense that it refers to "the cause of action giving rise to proceedings to be brought under subsection (1)". That is a textual indication that the elements of the cause of action of proceedings encompassed by s 11(1) are identified in that provision. It is arguable that s 11(3) would enable proceedings such as the respondent's to be included in s 11(1) or (1A) proceedings extant before the Tribunal. The precondition of s 11(3) inclusion is that the s 11(1) or (1A) cause of action "also gives rise to a claim in respect of some other matter". However the "person" whose proceedings may be included by reference to s 11(3) is not tied back to the persons identified in s 11(1), not least because the included matter does not have to "relate to a dust-related condition from which a person is suffering or has suffered" - critical words which inform the s 11(1) jurisdiction. If s 11(3) was the vehicle by which claims such as the respondent's could be heard in the Tribunal, they would not be characterised as s 11(1) proceedings so as to receive the benefit of provisions such as s 12A: see Wallaby Grip (at [26] and [29]).

1. Subsection 11(4) has been described as conferring "in the nature of a pendant or ancillary jurisdiction in respect of claims arising out of the same cause of action as gave rise to the claim for damages for a dust-related condition": BHP Billiton Ltd v Schultz (at [230]) per Callinan J. That statement is borne out by the non-exhaustive definition of "ancillary or related matter" in s 3 of the Tribunal Act (see [47] above). It is also arguable for the reasons stated in the plurality's reasons (at [22] - [23]) that the respondent's proceedings would constitute a "matter" within the meaning of s 11(4) and be included in s 11(1) proceedings via that route.

1. It may be that had Samuels AP appreciated that Mrs Mangion's nervous shock claim could have been included in her Compensation to Relatives Act claim, whether via the s 11(3) or s 11(4) route, he would not have been so affronted (see [82] above) by the conclusion that the proceedings did not fall within s 11(1).

1. Both subsection (3) and (4), in my view, emphasise the legislative intention that the Tribunal's jurisdiction be focused on proceedings at the heart of which lie the s 11(1) cause of action.

1. Finally, s 11(5) must be taken into account. Having regard to the fact it was enacted immediately after the decision in Grech, I would regard it as having been inserted to avoid doubt. The fact that the subsection is not exhaustive indicates a proper legislative concern not to confine the language of s 11(1)(c), but does not otherwise affect the interpretation of the provision. In other words, in my view, s 11(5) is not informative, of itself, as to whether or not the respondent's proceedings are within the Tribunal's jurisdiction.

1. The fundamental structure of s 11 is to focus on the primary victim and to confer jurisdiction on the Tribunal in respect of that person's proceedings for damages in respect of "that dust-related condition or death". The secondary focus of the provision is on "a person claiming through" the primary victim. The necessity for such an expanded operation of s 11 is immediately apparent from the reference to the "death" of the primary victim.

1. However the words "claiming through" must be read harmoniously with the words "in respect of". Those words indicate, in my view, that the action of the person "claiming though" the primary victim must depend on and/or be derived from the primary victim's cause of action. That is because the words "in respect of" are used twice, on both occasions to focus on that person's claim being "for the recovery of damages in respect of that dust-related condition or death".

1. It is at this point that I discern error in the reasoning in Mangion. Samuels AP (at 105) focussed only on the words "claiming through" in the context of the object he discerned from the s 11 and s 12 of the Tribunal Act "to assign to a specified tribunal claims for damages for negligence or breach of statutory duty in respect of injury or death attributable to a dust-related condition". But, with respect, as his Honour had already explained, nervous shock claims could not be so described. Such claims are not "for the recovery of damages in respect of that dust-related condition or death".

1. It is apparent that the words "in respect of" in s 11(1)(c) and the final clause of s 11(1) do not confine the damages which may be claimed to those the primary victim might, or might but for death, have claimed. They clearly do encompass such cases: the estate pursuing, pursuant to s 2 of the 1944 Act, any cause of action vested in the deceased who suffered from a dust-related condition attributable or partly attributable to a breach of a duty owed to the person by another person is clearly made by a person "claiming through [the deceased] ... for damages in respect of that dust-related condition or death". That is apparent not only from the language of s 11(1), but also from the recognition in s 12B of the Tribunal Act of the fact that estate proceedings are within the Tribunal's jurisdiction.

1. However Compensation to Relatives Act claims are not claims the primary victim might, or might but for death, have made. Damages in such cases are calculated by reference to the pecuniary benefit that could reasonably have been expected to accrue to the claimant from the continuance of the life had death not occurred: De Sales v Ingrilli [2002] HCA 52; (2002) 212 CLR 338 (at [11]) per Gleeson CJ; generally (at [91] - [103]) per McHugh J; (at [128]) per Kirby J. Such claims are, however, "a derivative action, dependent on or secondary to rights of action vested in the deceased immediately before his or her death" as Samuels AP explained in Mangion (at 104) so that they are made by persons "claiming through" the primary victim. This is because the court's jurisdiction to entertain such a claim depends upon the plaintiff establishing that "the death of a person is caused by a wrongful act, neglect, or default, and the act, neglect, or default is such as would (if death had not ensued) have entitled the party injured to maintain an action and recover damages in respect thereof ... " and the defendant to such proceedings is "the person who would have been liable if death had not ensued": s 3, Compensation to Relatives Act.

1. Claims for nervous shock do not fall into either of the preceding categories. They are not proceedings the primary victim might have brought, nor are they dependent on a right of action vested in that person, as Samuels AP recognised in Mangion (at 104 - 105). Such a claim may be made even though there has been no breach of a duty of care to the deceased. Thus while the respondent's statement of claim pleads that Mr Winch's death was caused by a dust-related condition attributable to the appellant's negligence, such a breach is not an element of her cause of action. As Barwick CJ explained in Curran v Young [1965] HCA 14; (1965) 112 CLR 99 (at 100 - 101), albeit in the context of a husband's claim for loss of consortium:

"The action of the husband of its very nature is quite independent of that of the wife and is in no sense dependent on her ability to obtain a verdict for herself against the defendant. Although the husband's action may be grounded upon the same act of the defendant as would be an action by the wife for her own injury, the damage is entirely different. He sues, not for the injury to her, but for the damage suffered by himself by the wrongful act of the defendant, albeit because she was injured thereby."

See also McTiernan J at (103); Kitto J (at 104 - 105).

1. In Mangion, Samuels AP (at 105) found support for the conclusion that a nervous shock claim brought by a widow was made by a person "claiming through" the primary victim in what he identified as the object of the Act being to assign to the Tribunal all proceedings in respect of injury or death caused by dust-related conditions. He also had regard to the Second Reading Speech. As will be apparent I respectfully disagree with his Honour's conclusion based on the language of s 11(1). Nor do I understand the Second Reading Speech as broadly as did his Honour. Rather, in my view, it is apparent that the mischief to which the Tribunal Act was directed was the rapid demise of those with dust diseases. Establishing the Tribunal was intended to provide a fast-track mechanism to address that mischief: see [40] above. No doubt it was thought that the Tribunal would develop a core expertise in such diseases and their causation which would facilitate that rapid disposal. However, with respect to Samuels AP, the reasons the Attorney General identified for establishing the Tribunal did not apply to nervous shock claims. There was no apparent reason why such claims could not proceed in the ordinary course in either the Supreme Court or the District Court.

1. Nor, in my view, with respect, did Mahoney JA's approach (recognising that his Honour was, in any event, doubtful about his conclusion) support his conclusion in Mangion concerning nervous shock claims. First, as will be apparent, unlike his Honour, in my view the requirement that the s 11(1) proceedings be "in respect of that dust-related condition or death" as it appears in sub-section (1)(c) and the repetition of that phrase in the final clause indicates that the proceedings assigend to the Tribunal by the operation of s 11(1) must be brought by a person identified in s 11(1)(c). Viewed in context, I do not read the same words appearing twice in s 11(1) to have been intended to have the differential operation his Honour identified. Rather, in my view, recognition that s 11(1)(a) - (c) describe the prerequisites for the Tribunal's exclusive jurisdiction reflect a hierarchy of s 11(1) which best gives effect to its purpose and language: Project Blue Sky Inc v Australian Broadcasting Authority (at [70]). Secondly, his Honour's construction failed to appreciate that the large work he construed the final phrase of s 11(1) to effect could arguably be done under either s 11(3) or s 11(4). Thirdly, I disagree with his Honour's reliance on the assumed objective of the Tribunal Act insofar as, in my view, in ascribing an expansive operation to the final phrase of s 11(1), his Honour has placed too much weight on that objective at the expense of the text: cf Certain Lloyd's Underwriters (at [25] - [26]) per French CJ and Hayne J; (at [89]) per Kiefel J.

1. In my view, the conclusion that a nervous shock claim did not fall within the Tribunal's s 11(1) jurisdiction is one the Court should have reached in Mangion. Substantive and procedural amendments to the Tribunal Act since Mangion was decided reinforce that conclusion, highlighting the focus on the primary victim and the facilitation of the enforcement of that person's substantive rights. Those amendments enact "a very special and largely unique regime for the assessment and recovery of damages ... for the benefit of sufferers of dust-related diseases": BHP Billiton Ltd v Schultz (at [231], [239] and [241]) per Callinan J; see also Kirby J (at [148]).

1. I have already referred to the unique nature of s 11A: see [51] above. It is expressly confined to "proceedings of the kind referred to in s 11(1) ... " and thus excludes proceedings included via the s 11(3) and s 11(4) route.

1. Section 12A and s 12B respectively preclude limitations provisions from operating in respect of proceedings in relation to dust-related conditions and enable the estates of persons whose death was caused by a dust-related condition to include damages for non-economic loss as long as the proceedings were pending before the Tribunal at the time of death. Section 12A only applies to proceedings which fall within s 11(1): Wallaby Grip (see [128] - [133] above). And s 12B in terms applies only to a survivor action which, as will be apparent from the previous discussion, falls within s 11(1) because it is made by "a person claiming through" the primary victim.

1. It might readily be understood that the legislature intended that the rapid and just resolution of the claims of those suffering from dust-related conditions would be facilitated by these substantive amendments. As much is apparent from the nature of these provisions, as well as from the Second Reading Speeches to the Courts Legislation Amendment Bill and the 1998 Act (see [51] and [53] above). Equally, too, it can be understood that the legislature intended that the claims derived from the primary victim's claim in the sense explained in Tanning Research should also benefit from having their claims heard by a specialist tribunal. However, in my view, the same cannot be said of a person such as the respondent whose cause of action is independent of Mr Winch's. There is no apparent reason why such a person should have the benefit of the substantive advantages the legislature has bestowed upon those whose claims fall within s 11(1). However proceedings included in s 11(1) proceedings via either the s 11(3) or s 11(4) route would have the benefit of the procedural advantages conferred by s 25(3), s 25A and s 25B which represent "statutory modification of the adversary system": James Hardie & Coy Pty Ltd v Barry (at [20])) per Spigelman CJ; see also BHP Billiton Ltd v Schultz (at [239]) per Callinan J. Such a scheme represents a balance which gives pre-eminence to the rights of primary victims and those of persons "claiming through" them, but recognises the utility of the procedural provisions reflecting the special nature of actions concerning dust diseases apply to all proceedings before the Tribunal.

1. For the foregoing reasons, in my view, the respondent cannot be said to be "claiming though" Mr Winch. Nor can her proceedings be described as "proceedings for damages in respect of that dust-related condition or death".

1. This conclusion is primarily based on the textual considerations in s 11 of the Tribunal Act. Those textual considerations, which clearly troubled the Court in Mangion, should have led their Honours to conclude that claims for nervous shock brought pursuant to s 3 of the 1944 Act were not proceedings "in respect of the death of a person caused by a dust-related condition". In my view, Mangion was plainly or clearly wrong and should be overruled: Gett v Tabet [2009] NSWCA 76; (2009) 254 ALR 504 (at [294] - [295]).

1. Further, even if Mangion could be said to have been arguably correct having regard to the form the Tribunal Act took at the time it was decided, when s 11 is construed in the Tribunal Act as presently enacted, I would conclude the Tribunal's jurisdiction does not extend to the respondent's claim for damages for psychiatric illness

Orders

1. I propose the following orders:

1. Grant leave to appeal.

2. Direct the appellants to file a notice of appeal in the form of the draft in the White Book within seven days.

3. Appeal allowed.

4. Dismiss the proceedings in the Dust Diseases Tribunal.

5. Respondent to pay the appellants' costs of the proceedings in the Dust Diseases Tribunal, including the costs of the appellants' notice of motion filed on 13 September 2011.

6. Respondent to pay the appellants' costs of the application for leave to appeal and of the appeal.

7. Respondents to have a certificate under the Suitors' Fund Act 1951 if otherwise qualified.

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Amendments

04 June 2013 - reference corrected

Amended paragraphs: 183

09 April 2013 - corrected paragraph numbering

Amended paragraphs: 110 - 202

19 March 2013 - Certificate of Suitors' Fund Act 1951 approved

Amended paragraphs: Decision: No 7 added; Paragraph 203, No 7 added

Decision last updated: 31 July 2013