Trustees of the Sydney Grammar School v Winch

The Trustees of the Sydney Grammar School (appellants) sought leave to appeal to the Court of Appeal of New South Wales against orders made by the Dust Diseases Tribunal. The dispute concerned a claim by the respondent for compensation for a psychiatric illness allegedly suffered as a result of her father's death from mesothelioma, which was attributed to exposure to asbestos while employed by the appellants. The central issue was whether the Dust Diseases Tribunal had jurisdiction to hear the respondent's claim.

The Court of Appeal was required to determine whether the respondent was "claiming through" her deceased father for damages "in respect of" his death, within the meaning of section 11(1)(c) of the *Dust Diseases Tribunal Act 1989* (NSW). This section confers exclusive jurisdiction on the Tribunal for such claims. The Court also considered the scope of the Tribunal's pendent or ancillary jurisdiction under sections 11(3) and 11(4) of the Act, and whether the decision in *Mangion v Jamies Hardie & Co Pty Ltd* (1990) 20 NSWLR 100 was correctly decided in relation to these provisions.

The Court reasoned that the respondent's claim for her own psychiatric illness, while arising from her father's death, was not a claim for damages "in respect of" his death in the sense contemplated by section 11(1)(c). Instead, it was a claim for damages for her own injury. The Court found that the phrase "claiming through" in section 11(1)(c) referred to a derivative right, such as a claim by a dependant under the *Law Reform (Miscellaneous Provisions) Act 1944* (NSW), which was not the nature of the respondent's claim. The Court concluded that the Tribunal lacked exclusive jurisdiction under section 11(1)(c) and, consequently, did not have pendent or ancillary jurisdiction to hear the claim.

The Court of Appeal allowed the appeal, directed the appellants to file a notice of appeal, and ordered that the proceedings in the Dust Diseases Tribunal be dismissed. The respondent was ordered to pay the appellants' costs of the proceedings in the Tribunal and of the application for leave to appeal and the appeal.