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This is a Bill, not an Act. For current law, see the Acts databases.
New South Wales
Dust Diseases Tribunal Amendment
(Claims Resolution) Bill 2005
Contents
Page
1 Name of Act 2
2 Commencement 2
3 Amendment of Dust Diseases Tribunal Act 1989 No 63 2
4 Amendment of Dust Diseases Tribunal Regulation 2001 2
5 Amendment of Civil Procedure Act 2005 2
6 Amendment of Dust Diseases Tribunal Rules 2
Schedule 1 Amendment of Dust Diseases Tribunal Act 1989 3
Schedule 2 Amendment of Dust Diseases Tribunal Regulation 2001 10
Schedule 3 Amendment of Civil Procedure Act 2005 91
Schedule 4 Amendment of Dust Diseases Tribunal Rules 92
I certify that this PUBLIC BILL, which originated in the LEGISLATIVE ASSEMBLY,
has finally passed the LEGISLATIVE COUNCIL and the LEGISLATIVE ASSEMBLY of
NEW SOUTH WALES.
Clerk of the Legislative Assembly.
Legislative Assembly,
Sydney, , 2005
New South Wales
Dust Diseases Tribunal Amendment
(Claims Resolution) Bill 2005
Act No , 2005
An Act to amend the Dust Diseases Tribunal Act 1989 and the Dust Diseases
Tribunal Regulation 2001 to make further provision for the resolution of claims in
respect of dust-related conditions and the jurisdiction and practice and procedure of
the Dust Diseases Tribunal; and for other purposes.
I have examined this Bill, and find it to correspond in all respects with the Bill
as finally passed by both Houses.
Chairman of Committees of the Legislative Assembly.
Clause 1 Dust Diseases Tribunal Amendment (Claims Resolution) Bill 2005
The Legislature of New South Wales enacts:
1 Name of Act
This Act is the Dust Diseases Tribunal Amendment (Claims Resolution)
Act 2005.
2 Commencement
(1) This Act commences on a day or days to be appointed by proclamation,
except as provided by this section.
(2) Schedule 3 (Amendment of Civil Procedure Act 2005) commences on
the date of assent to this Act or the date of assent to the Civil Procedure
Act 2005 whichever is the later.
3 Amendment of Dust Diseases Tribunal Act 1989 No 63
The Dust Diseases Tribunal Act 1989 is amended as set out in
Schedule 1.
4 Amendment of Dust Diseases Tribunal Regulation 2001
(1) The Dust Diseases Tribunal Regulation 2001 is amended as set out in
Schedule 2.
(2) Sections 39, 40 and 41 of the Interpretation Act 1987 do not apply to the
amendments made by subsection (1).
5 Amendment of Civil Procedure Act 2005
The Civil Procedure Act 2005 is amended as set out in Schedule 3.
6 Amendment of Dust Diseases Tribunal Rules
(1) The Dust Diseases Tribunal Rules are amended as set out in Schedule 4.
(2) Sections 39, 40 and 41 of the Interpretation Act 1987 do not apply to the
amendments made by subsection (1).
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Dust Diseases Tribunal Amendment (Claims Resolution) Bill 2005
Amendment of Dust Diseases Tribunal Act 1989 Schedule 1
Schedule 1 Amendment of Dust Diseases Tribunal
Act 1989
(Section 3)
[1] Section 3 Definitions
Omit the definition of rules from section 3 (1). Insert instead:
rules means the rules of the Tribunal and the regulations in force
under this Act and the uniform rules in force under the Civil
Procedure Act 2005.
[2] Section 11 Claims for damages for dust diseases etc to be brought under
this Act
Insert after section 11 (1):
(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 being
brought in another court.
[3] Section 11 (3) and (4)
Insert "or (1A)" after "subsection (1)" wherever occurring.
[4] Section 13 Proceedings before the Tribunal
Omit section 13 (3).
[5] Section 14 Judgments and orders for payment of money
Insert after section 14 (4):
(5) Part 8 (Enforcement of judgments and orders) of the Civil
Procedure Act 2005 does not apply to authorise the Tribunal to
exercise any function of a court under that Part.
[6] Sections 15 and 16
Omit the sections.
[7] Section 20 Subpoenas and examination of witnesses
Insert after section 20 (6):
(7) This section is subject to the regulations.
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Dust Diseases Tribunal Amendment (Claims Resolution) Bill 2005
Schedule 1 Amendment of Dust Diseases Tribunal Act 1989
[8] Section 23 Informal proof and admissions
Omit the section.
[9] Section 25B General issues already determined
Insert after section 25B (1):
(1A) If an issue of a general nature already determined in proceedings
before the Tribunal (the earlier proceedings) is the subject of
other proceedings before the Tribunal (the later proceedings) and
that issue is determined in the later proceedings on the basis of
the determination of the issue in the earlier proceedings, the
judgment of the Tribunal in the later proceedings must identify
the issue and must identify that it is an issue of a general nature
determined as referred to in this section.
[10] Section 27 Dismissal of frivolous etc proceedings
Omit the section.
[11] Section 29 Tribunal may award costs
Omit the section.
[12] Section 30 Service of documents
Omit the section.
[13] Section 31 Tribunal may give procedural directions in certain cases
Omit the section.
[14] Part 3B
Omit the Part. Insert instead:
Part 3B Regulations--claims management and
practice and procedure
32G Definitions
In this Part:
claim means a claim in proceedings.
proceedings means proceedings in the Tribunal brought or to be
brought under section 11 or transferred under section 12.
rules of court means rules under section 33 of this Act or uniform
rules under the Civil Procedure Act 2005 applicable to
proceedings.
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Dust Diseases Tribunal Amendment (Claims Resolution) Bill 2005
Amendment of Dust Diseases Tribunal Act 1989 Schedule 1
32H Regulations to promote claims resolution
(1) The Governor may make regulations for or with respect to the
following:
(a) the establishment of a claims resolution process for claims,
with procedures for identifying the issues in dispute
between the parties to a claim and the settlement of claims
by alternative dispute resolution processes,
(b) procedures and presumptions for the apportionment of
liability between defendants and cross-defendants in
connection with a claim,
(c) the making and acceptance of offers of compromise and
the consequences by way of costs penalties and costs relief
of the rejection of an offer by a party who fails to improve
their position at hearing,
(d) identifying the issues that remain in dispute when a claim
is not settled by the claims resolution process and limiting
the determination of the claim in the Tribunal to a
determination of those issues,
(e) subpoenas to give evidence or to produce any document or
thing, including the issue and return of subpoenas and
compliance with subpoenas,
(f) costs (including disbursements) payable by a party in or in
relation to a claim,
(g) the practice and procedure to be followed in proceedings
and any other matter for or with respect to which rules may
be made under this Act,
(h) the exclusion of any proceedings or class of proceedings
from the operation of any specified provision of the Civil
Procedure Act 2005 or the rules made under that Act,
(i) the modification of any specified provision of the Civil
Procedure Act 2005 or the rules made under that Act in its
application to any proceedings or class of proceedings.
(2) Without limitation, this section authorises the making of
regulations for or with respect to the following:
(a) the exchange of information between the parties to a claim,
(b) the compulsory mediation of claims and the functions,
privileges, remuneration, immunities and protections of
mediators and parties to mediation,
(c) procedures and presumptions for the apportionment of
liability between defendants and cross-defendants
(including by providing for the making of determinations
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Dust Diseases Tribunal Amendment (Claims Resolution) Bill 2005
Schedule 1 Amendment of Dust Diseases Tribunal Act 1989
as to apportionment and for the determination by the
Minister of standard presumptions as to apportionment),
(d) the appointment of a single claims manager to be
responsible for managing and otherwise dealing with a
claim on behalf of all defendants and cross-defendants to
the claim,
(e) determining the issues in dispute between the parties, and
the facts and evidence that may be relied on by the parties,
for the purpose of the determination by the Tribunal of a
claim that has been through the claims resolution process,
(f) requiring the parties to a claim and their legal
representatives to provide information about or relevant to
the claim and any aspect of the claim (including costs and
disbursements incurred in connection with a claim),
(g) the awarding of costs on a party and party basis, on an
indemnity basis, or on any other basis, including costs
penalties and costs relief in connection with a
contravention of any provision of the regulations,
(h) the assessment of costs payable to a legal practitioner in
connection with a claim, including by providing for the
modification of provisions of the Legal Profession Act
1987 or the Legal Profession Act 2004 with respect to the
assessment of those costs,
(i) suspending the operation of any provision of rules of court
and any direction or order of the Tribunal under a
provision of this or any other Act or rules of court while a
claim is subject to the claims resolution process or other
procedures under the regulations or subsequently, pending
its determination by the Tribunal.
(3) The regulations under this section prevail to the extent of any
inconsistency between a provision of those regulations and a
provision of the Civil Procedure Act 2005, rules of court or any
direction or order of the Tribunal made under a provision of this
or any other Act or rules of court.
(4) The provisions of the Dust Diseases Tribunal Regulation 2001
inserted in that Regulation by the Dust Diseases Tribunal
Amendment (Claims Resolution) Act 2005 are provisions that are
authorised by and made under this section.
(5) Regulations under this section may apply to all claims or to a
particular class or classes of claim.
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Dust Diseases Tribunal Amendment (Claims Resolution) Bill 2005
Amendment of Dust Diseases Tribunal Act 1989 Schedule 1
(6) The regulations may provide that specified provisions of the
regulations under this section are part of the procedural law of the
State for the purposes of the determination of any claim.
32I Information about claims
(1) A legal practitioner who acts for a party on a claim must provide
the Registrar with such information concerning the claim as the
regulations may require for the purposes of this section.
(2) If both a barrister and a solicitor act for a party, the obligation to
comply with subsection (1) falls on the solicitor and not the
barrister.
(3) A failure by a legal practitioner to comply with this section is
capable of being unsatisfactory professional conduct by the legal
practitioner.
(4) If a party to a claim is not represented on the claim by a legal
practitioner, the party must provide the information required by
this section (as and when a legal practitioner representing the
party would be required to provide it).
Maximum penalty: 5 penalty units.
(5) The Registrar is to maintain a database of the information
provided to the Registrar under this section and is to maintain and
provide access to that database in accordance with such
directions as the Attorney General may give to the Registrar from
time to time.
(6) The Registrar must provide to the Attorney General such reports
with respect to information provided to the Registrar under this
section as the Attorney General may from time to time direct.
(7) Any document (other than a report under subsection (6)) that
contains information provided to the Registrar under this section,
and the database maintained by the Registrar under this Part, are
not subject to the Freedom of Information Act 1989.
(8) A person who in the course of the administration of this Act
obtains information provided to the Registrar under subsection
(1) (not including information included in a report under
subsection (6)) must not directly or indirectly make a record of
the information or divulge it to another person except:
(a) with the consent of the person who provided the
information to the Registrar, or
(b) in connection with the administration or execution of this
Act, or
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Dust Diseases Tribunal Amendment (Claims Resolution) Bill 2005
Schedule 1 Amendment of Dust Diseases Tribunal Act 1989
(c) in accordance with a requirement imposed by or under a
law of the State (other than a requirement imposed by a
subpoena or other compulsory process) or of the
Commonwealth.
Maximum penalty: 50 penalty units.
[15] Section 33 Rules
Insert as section 33 (8) and (9):
(8) The adoption by the rules by reference of any rules made under
the Supreme Court Act 1970 operates in the case of any such rules
that are subsequently repealed (subject to any express provision
to the contrary) as an adoption of those rules as in force
immediately before their repeal, and continues to operate despite
their repeal.
(9) The provisions of this Act prevail to the extent of any
inconsistency between those provisions and a provision of the
Civil Procedure Act 2005 or the Uniform Civil Procedure Rules
2005.
[16] Section 36
Insert after section 35:
36 Proceedings for offences
Proceedings for an offence under this Act or the regulations may
be dealt with summarily before a Local Court.
[17] Section 41
Omit the section. Insert instead:
41 Interim payments before assessment of damages, where no
inter-insurer dispute
(1) Division 5 of Part 6 of the Civil Procedure Act 2005 extends to
proceedings before the Tribunal in relation to any liability of an
employer to or in respect of whom section 151AB of the Workers
Compensation Act 1987 applies.
(2) However, that Division does not apply to any claim in respect of
which an inter-insurer dispute remains unresolved.
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Dust Diseases Tribunal Amendment (Claims Resolution) Bill 2005
Amendment of Dust Diseases Tribunal Act 1989 Schedule 1
[18] Schedule 3 Savings, transitional and other provisions
Insert at the end of clause 1 (1):
Dust Diseases Tribunal Amendment (Claims Resolution) Act
2005
[19] Schedule 3
Insert after Part 5:
Part 6 Dust Diseases Tribunal Amendment
(Claims Resolution) Act 2005
13 Jurisdiction of Tribunal to determine contribution claims
An amendment of section 11 by the Dust Diseases Tribunal
Amendment (Claims Resolution) Act 2005 extends to a cause of
action that arises before the commencement of the amendment.
14 General issues already determined
Section 25B (1A) as inserted by the Dust Diseases Tribunal
Amendment (Claims Resolution) Act 2005 extends to a judgment
of the Tribunal in proceedings after the commencement of the
amendment even if the earlier proceedings referred to in that
subsection were determined before that commencement.
15 General operation of amendments
An amendment made by Schedule 1 [4][8], [10][13] or
[15][17] of the Dust Diseases Tribunal Amendment (Claims
Resolution) Act 2005 extends to proceedings in the Tribunal
commenced before the commencement of the amendment.
Page 9
Dust Diseases Tribunal Amendment (Claims Resolution) Bill 2005
Schedule 2 Amendment of Dust Diseases Tribunal Regulation 2001
Schedule 2 Amendment of Dust Diseases Tribunal
Regulation 2001
(Section 4)
[1] Clause 2 Definitions
Insert in alphabetical order:
the Act means the Dust Diseases Tribunal Act 1989.
[2] Part 3, heading
Omit the heading to Part 3. Insert instead:
Part 3 Investment
[3] Parts 47
Insert after Part 3:
Part 4 Claims resolution process for
asbestos-related conditions
Division 1 Preliminary
11 Definitions
In this Part:
asbestos-related condition means a dust-related condition that is
asbestosis, asbestos induced carcinoma, an asbestos-related
pleural disease or mesothelioma.
business day means a day that is not a Saturday, a Sunday or a
public holiday throughout New South Wales.
claim means a claim in proceedings in the Tribunal brought or to
be brought under section 11 of the Act or transferred under
section 12 of the Act.
claims resolution process means the provisions of this Part.
Contributions Assessor means a Contributions Assessor
appointed under Division 5 (Apportionment).
first defendant on a claim means the defendant first named in the
plaintiff's statement of claim.
malignant claim means a claim in respect of asbestos induced
carcinoma or mesothelioma (whether or not the claim is also in
respect of any other dust-related condition).
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Dust Diseases Tribunal Amendment (Claims Resolution) Bill 2005
Amendment of Dust Diseases Tribunal Regulation 2001 Schedule 2
mediation means mediation under this Part.
non-malignant claim means a claim in respect of an
asbestos-related condition that is not asbestos induced carcinoma
or mesothelioma (and that is not a malignant claim).
original defendant on a claim means a defendant on the claim
before the joinder of any other person as a defendant and does not
include any defendant to a cross-claim on the claim.
party to a claim includes any cross-defendant on the claim.
Registrar means the Registrar of the Tribunal.
required information exchange means the service on each
defendant or cross-defendant of the statement of particulars of the
claim against the defendant or cross-defendant and the service by
each defendant or cross-defendant of the defendant's or
cross-defendant's reply to the claim or cross-claim, as required
under this Part.
rules of court means rules under section 33 of the Act or uniform
rules under the Civil Procedure Act 2005 applicable to
proceedings on a claim.
single claims manager means a single claims manager as
provided for by Division 6.
12 Part applies only to asbestos-related claims
This Part applies to a claim in respect of an asbestos-related
condition that is made by the person who is or was suffering from
the asbestos-related condition (or by a person claiming through
that person) or that is a cross-claim by a defendant on such a
claim.
13 Service of statement of particulars on last of original defendants
A reference in this Part to the service of the plaintiff's statement
of particulars on the last of the original defendants is a reference
to service under Division 3 of the plaintiff's statement of
particulars:
(a) if there is only one original defendant--on that defendant,
or
(b) if there is more than one original defendant--on the last of
the original defendants to be served.
14 Transitional
(1) This Part applies only to the following claims:
(a) claims commenced by statement of claim filed on or after
1 July 2005,
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Dust Diseases Tribunal Amendment (Claims Resolution) Bill 2005
Schedule 2 Amendment of Dust Diseases Tribunal Regulation 2001
(b) claims commenced by statement of claim filed before 1
July 2005 (current claims) but only if:
(i) a hearing date for the claim has not been set before
1 July 2005, and not if each of the parties to the
claim has notified the Registrar in writing that the
parties have agreed that this Part is not to apply to
the claim, or
(ii) all of the parties to the claim have agreed that this
Part is to apply to the claim.
(2) If this Part applies to a current claim, the plaintiff must (when the
plaintiff is ready to proceed) provide each defendant and
cross-defendant with a proposal in writing (a current claim
proposal) as to how this Part should apply to the claim.
(3) The plaintiff's current claim proposal is to identify the following:
(a) the steps already taken by the parties in connection with
the claim that should be taken to constitute performance of
particular steps in the claims resolution process,
(b) the point in the claims resolution process that the claim
should be regarded as having reached,
(c) any further steps that need to be taken by the parties to
bring the claim to a particular point in the claims resolution
process (including a timetable for completing any required
steps),
(d) any modifications to the timetable for completion of the
claims resolution process that may be necessary to enable
completion of the claims resolution process, while giving
effect to the maximum extent possible to the timetable for
completion of that process as set out in this Part.
(4) The parties must act reasonably in trying to reach agreement on
the plaintiff's current claim proposal.
(5) If the parties have not reached agreement within 10 business days
after the plaintiff's current claim proposal is provided to the last
defendant or cross-defendant to be provided with the proposal,
any party may notify the Registrar that agreement has not been
reached and the Registrar is then to determine the matters in
dispute.
(6) The matters agreed by the parties or determined by the Registrar
for the purposes of a current claim proposal have effect for the
purpose of varying the requirements of this Part as to the time
within which any relevant aspect of the claims resolution process
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Dust Diseases Tribunal Amendment (Claims Resolution) Bill 2005
Amendment of Dust Diseases Tribunal Regulation 2001 Schedule 2
must be completed, and this Part is varied accordingly in its
application to the current claim concerned.
Note. Clause 18 (Removal of certain claims from claims resolution
process) provides for claims that are determined to be urgent to be
removed from the claims resolution process. This is available for current
claims.
15 Procedural law of the State
The provisions of this Part form part of the procedural law of the
State for the purposes of the determination of any claim.
Division 2 Claims subject to the claims resolution
process
16 Which claims are subject to the claims resolution process
(1) A claim to which this Part applies is subject to the claims
resolution process once the claim is filed.
Note. Clause 18 provides for some claims to be removed from the
claims resolution process.
(2) A claim remains subject to the claims resolution process:
(a) until the claim is settled by mediation or otherwise and the
Tribunal makes an order to give effect to the settlement, or
(b) if the claim is not settled by the time mediation is
concluded--until mediation is concluded and clause 33
(Unsuccessful mediation--agreement as to issues in
dispute) has been complied with.
(3) The parties to a claim can agree to extend the period for which the
claim remains subject to the claims resolution process.
(4) If a significant change in the medical condition of the plaintiff
occurs after the claim is filed, the parties to the claim can agree
(on one or more occasions) to suspend the claims resolution
process for a period of up to:
(a) 10 business days for malignant claims, or
(b) 20 business days for non-malignant claims,
with the result that during any such suspension time does not run
for the purposes of any period within which anything is required
to be done by a party under the claims resolution process.
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Dust Diseases Tribunal Amendment (Claims Resolution) Bill 2005
Schedule 2 Amendment of Dust Diseases Tribunal Regulation 2001
17 Effect of claim being subject to claims resolution process
(1) While a claim is subject to the claims resolution process:
(a) the parties to the claim must comply with the provisions of
this Part, and
(b) proceedings in the Tribunal to determine the claim are
deferred and the claim is not subject to case management
by the Tribunal, and
(c) the claim is not subject to the provisions of rules of court,
or any direction or order of the Tribunal under a provision
of the Act, any other Act or rules of court, as to any steps
to be taken in proceedings on the claim or for the referral
of the claim for alternative dispute resolution, such as
mediation.
Note. Clause 18 provides for the removal of certain claims from the
claims resolution process.
(2) This clause does not affect the application of the practice and
procedures of the Tribunal with respect to:
(a) the amendment of the statement of claim to join a party
before the plaintiff's statement of particulars is served, or
(b) the amendment of the statement of claim to join a party to
the claim at the request of the plaintiff where the Tribunal
is satisfied that it is necessary to do so to preserve the
plaintiff's cause of action, or
(c) the amendment of the statement of claim to add a claim
under the Compensation to Relatives Act 1897 after the
death of the plaintiff, or
(d) the making of cross-claims, except to the extent of any
inconsistency with clause 21 (Cross-claims by defendant),
or
(e) the making of orders to give effect to any agreement or
arrangement between the parties, whether resulting from
an offer of compromise or otherwise, or
(f) the issue and return of subpoenas, or
(g) the granting of leave to commence an action under section
6 of the Law Reform (Miscellaneous Provisions) Act 1946,
or
(h) the amendment of the statement of claim to discontinue
proceedings against a party.
Note. If a claim is not settled through the claims resolution process,
proceedings in the Tribunal can proceed or the parties can decide to
continue with attempts to settle the claim.
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Dust Diseases Tribunal Amendment (Claims Resolution) Bill 2005
Amendment of Dust Diseases Tribunal Regulation 2001 Schedule 2
(3) If the plaintiff dies, the claims resolution process is suspended
until:
(a) the Tribunal amends the statement of claim to add a claim
under the Compensation to Relatives Act 1897, or
(b) the claimant notifies the parties to the claim that the matter
is ready to proceed,
with the result that during that suspension time does not run for
the purposes of any period within which anything is required to
be done by a party under the claims resolution process.
18 Removal of certain claims from claims resolution process
(1) A claim is removed from (and is therefore not subject to) the
claims resolution process if:
(a) the Tribunal determines, on application by the claimant
and on the basis of medical evidence presented for the
claimant, that the claim is urgent, or
(b) all the parties to the claim agree, following the required
information exchange, that the claim should not be the
subject of the claims resolution process and notify the
Registrar accordingly, or
Note. For example, the parties may consider that the claim raises
novel issues (in the nature of a "test case") that are unlikely to be
resolved by the claims resolution procedures.
(c) the Tribunal determines on application by a party (the
applicant) that the claim should be removed from the
claims resolution process because another party to the
claim has failed to comply with a requirement of the claims
resolution process and that failure has resulted in
substantial prejudice to the applicant or substantial delay.
(2) A claim is urgent only if the Tribunal is satisfied that, as a result
of the seriousness of the claimant's condition, the claimant's life
expectancy is so short as to leave insufficient time for the
requirements of the claims resolution process to be completed
and the claim finally determined by the Tribunal, if required, on
an expedited basis.
(3) If a non-malignant claim would not be urgent if it were to be
treated for the purposes of the claims resolution process as a
malignant claim, the Tribunal must (instead of determining that
the claim is urgent) order that the claim is to be treated as a
malignant claim for the purposes of the claims resolution process.
(4) A non-malignant claim is also to be treated as a malignant claim
for the purposes of the claims resolution process if all the parties
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Dust Diseases Tribunal Amendment (Claims Resolution) Bill 2005
Schedule 2 Amendment of Dust Diseases Tribunal Regulation 2001
to the claim agree that the claim should be treated as a malignant
claim and notify the Registrar accordingly.
(5) An application for a determination by the Tribunal that a
non-malignant claim is urgent must not be made until the parties
have used their best efforts to reach agreement as provided by
subclause (4).
(6) The Tribunal is not to determine that a claim should be removed
from the claims resolution process because a party to the claim
has failed to comply with a requirement of the claims resolution
process unless the Tribunal is satisfied that the failure is
continuing and that the party has been notified of and requested
to remedy the failure.
Note. A claim that is removed from the claims resolution process by
agreement of the parties is required under clause 51 (Non-urgent claims
to be subject of directions hearing) to be referred to the Tribunal for
directions.
(7) If a claim is removed from the claims resolution process because
the Tribunal determines under this clause that the claim is urgent,
the Tribunal must consider whether to order the application to the
claim of the provisions of Divisions 4 (Compulsory mediation)
and 5 (Apportionment), and:
(a) if the Tribunal does so order:
(i) those provisions apply as if the claim were still
subject to the claims resolution process (subject to
any modifications ordered under subparagraph (ii)),
and
(ii) the Tribunal may, in ordering the application of
those provisions to the claim, order that those
provisions apply subject to specified modifications,
and
(iii) the Tribunal must by its order specify the period
within which mediation or apportionment under the
applied provisions must be completed, or
(b) if the Tribunal does not so order despite an application for
such an order by a party to the claim, the Tribunal must
give its reasons for not so ordering.
Division 3 Required information exchange
19 General obligations to update documents and information
A party to a claim who is required by a provision of this Part to
provide documents or information to another party by way of a
statement of particulars or reply must, while the claim is subject
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Dust Diseases Tribunal Amendment (Claims Resolution) Bill 2005
Amendment of Dust Diseases Tribunal Regulation 2001 Schedule 2
to the claims resolution process, update or notify any necessary
changes to the documents and information provided (as and when
any relevant new or changed documents or information becomes
available).
20 Claimant to provide statement of particulars of claim
(1) The plaintiff on a claim must file and serve on each original
defendant (with the plaintiff's statement of claim) a statement of
particulars of the plaintiff's claim.
(2) The plaintiff's statement of particulars:
(a) must be in the form set out in Form 1 in Schedule 2, and
(b) must specify the information that is required to complete
that form, and
(c) must be accompanied by such documents and information
as that form requires (and is not required to be
accompanied by any other documents or information).
(3) If documents or information required to accompany the
plaintiff's statement of particulars is not available to the plaintiff
when the statement of particulars is filed and served:
(a) the statement must indicate this, and
(b) the plaintiff must provide the documents or information to
each original defendant as and when they become
available to the plaintiff.
Note. The plaintiff should not obtain witness statements and expert or
other reports before filing the statement of particulars. The defendant will
indicate under clause 22 (7) whether further information is required,
having regard to the issues that remain in dispute.
(4) The plaintiff's statement of claim in the proceedings is not
properly served on the defendant until the statement of particulars
has been served on the defendant.
Note. Rules of court provide for the period for which a statement of claim
remains valid for service after it is filed.
(5) Within 5 business days after serving the plaintiff's statement of
particulars on a defendant the plaintiff must notify the Registrar
and each of the original defendants of the date on which the
statement of particulars was served on the last of the original
defendants.
(6) A defendant is entitled to be informed by the Registrar, on
request to the Registrar, of the date of service of the plaintiff's
statement of particulars on the last of the original defendants.
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Dust Diseases Tribunal Amendment (Claims Resolution) Bill 2005
Schedule 2 Amendment of Dust Diseases Tribunal Regulation 2001
(7) This clause does not apply if the plaintiff's statement of claim is
filed in conjunction with an application by the claimant under
clause 18 (Removal of certain claims from claims resolution
process) for a determination by the Tribunal that the claim is
urgent and that application results in the making of such a
determination by the Tribunal.
Note. When subclause (7) applies, the statement of claim will be
regarded as having been served when it was actually served and a
statement of particulars is not required.
21 Cross-claims by defendant
(1) An original defendant in proceedings must make any cross-claim
as soon as practicable after being served with the plaintiff's claim
in the proceedings.
(2) Cross-claims by all defendants (including original defendants)
must be filed and served within:
(a) 10 business days for malignant claims, or
(b) 30 business days for non-malignant claims,
after service of the plaintiff's statement of particulars on the last
of the original defendants.
(3) An original defendant may request the plaintiff to extend the time
for filing and serving a cross-claim but can only make such a
request before the end of the period within which a cross-claim is
required to be filed and served.
(4) The time for filing and serving a cross-claim cannot be extended
in total by more than:
(a) 10 business days for malignant claims, or
(b) 20 business days for non-malignant claims.
(5) A plaintiff is required to consent to a request to extend the time
for filing and serving a cross-claim unless the plaintiff is able to
demonstrate that the extension requested would result in
substantial prejudice to the claimant.
Note. A failure by the plaintiff to consent despite being required to do so
constitutes a failure to comply with a provision of this Part and may be
taken into account by the Tribunal in making an order for the payment of
costs.
(6) An extension of the time for filing and serving a cross-claim
operates to extend (for the period of the extension) all subsequent
time periods within which anything is required to be done under
the claims resolution process in respect of the claim concerned.
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(7) If a person is identified as the insurer of a defendant only after
expiry of the period within which a cross-claim is required under
this clause to be filed and served on the insurer:
(a) a cross-claim may, with the consent of the plaintiff, be
filed and served on that insurer after the expiry of that
period, and
(b) the plaintiff must not refuse that consent unless the
plaintiff can establish that the joining of the insurer will
result in substantial prejudice to the plaintiff, and
(c) once joined, the insurer is entitled to update the
defendant's reply, and
(d) the joining of the insurer does not affect the running of any
time period for the purposes of the claims resolution
process.
(8) A cross-claim that is not filed and served as required by this
clause cannot be made in the proceedings (but without affecting
any right of a defendant to pursue the claim in separate
proceedings commenced by the defendant).
(9) A defendant must serve a copy of the plaintiff's statement of
claim and statement of particulars with the defendant's
cross-claim. A defendant's cross-claim is not properly served
until a copy of the plaintiff's statement of claim and statement of
particulars is served.
(10) A defendant's cross-claim must notify the cross-defendant of the
date on which the plaintiff's statement of particulars was served
on the defendant (or on the last of the original defendants on the
claim to be served if there was more than one original defendant)
as required by this Division.
22 Defendant to provide reply to claim
(1) A defendant in proceedings must file and serve on the claimant
and each other party to the claim (including other defendants) a
reply to the claim against the defendant.
(2) The defendant's reply:
(a) must be in the form set out in Form 2 in Schedule 2, and
(b) must specify the information that is required to complete
that form, and
(c) must be accompanied by such documents and information
as that form requires (and is not required to be
accompanied by any other documents or information), and
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(d) in the case of the reply served on the plaintiff, need not
specify the information required by Part 8 (Apportionment
of liability among defendants) of that form.
(3) If information or documents required to accompany a
defendant's reply is not available to the defendant when the reply
is filed and served:
(a) the statement must indicate this, and
(b) the defendant must provide the documents or information
to the claimant and each other party as and when they
become available to the defendant.
(4) A reply by an original defendant must be served within:
(a) 20 business days for malignant claims, or
(b) 30 business days for non-malignant claims,
after the claim is served on the defendant.
(5) A reply by a defendant other than an original defendant must be
served within:
(a) 30 business days for malignant claims, or
(b) 60 business days for non-malignant claims,
after service of the plaintiff's statement of particulars on the last
of the original defendants.
(6) If the plaintiff's claim alleges that the asbestos-related condition
with which the claim is concerned occurred in the course of
employment, the plaintiff's statement of particulars can require
an early response on that issue from a defendant who is alleged
to be an employer, in which case the defendant must, within 10
days after the claim is served on the defendant, provide the
response and attach the evidence required by 3.13.3 of Part 3
(Response to claim relating to employment) of Form 2 in
Schedule 2.
(7) A defendant's reply must indicate whether the defendant requires
more information from the plaintiff about the plaintiff's claim
and the nature of that information, and must indicate whether the
defendant requires an opportunity to inspect any premises or
place.
(8) The plaintiff must comply with any reasonable requirement of the
defendant for more information concerning the plaintiff's claim
(whether made as part of the defendant's reply or subsequently)
and must provide that information as soon as practicable and in
any case no later than 5 days before the start of mediation.
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(9) In this clause:
claim includes a cross-claim.
defendant includes a cross-defendant.
23 Requests for more information about dispute
(1) If a defendant does not admit an issue, the plaintiff may request
the defendant to provide the plaintiff with information not
already provided to the plaintiff on which the defendant proposes
to rely in respect of that issue, including documentary evidence,
witness statements and a summary of expert medical opinions.
(2) A defendant must comply with any reasonable requirement of the
plaintiff under this clause and must provide that information as
soon as practicable and in any case no later than 5 days before the
start of mediation.
24 Medical examinations
(1) An original defendant who requires the plaintiff to attend for a
medical examination in connection with the plaintiff's claim
must notify the plaintiff of that requirement within:
(a) 10 business days for malignant claims involving only one
defendant, or
(b) 20 business days for malignant claims involving more than
one defendant, or
(c) 30 business days for non-malignant claims involving only
one defendant, or
(d) 50 business days for non-malignant claims involving more
than one defendant,
after service of the plaintiff's statement of particulars on the last
of the original defendants.
(2) Any medical examination of the plaintiff that an original
defendant requires must take place within:
(a) 20 business days for malignant claims involving only one
defendant, or
(b) 30 business days for malignant claims involving more than
one defendant, or
(c) 40 business days for non-malignant claims involving only
one defendant, or
(d) 60 business days for non-malignant claims involving more
than one defendant,
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after service of the plaintiff's statement of particulars on the last
of the original defendants.
(3) The period within which a medical examination is required to
take place under subclause (2) may be varied by agreement
between all the parties to the claim. Any such variation has no
effect the running of any other time period for the purposes of the
claims resolution process.
(4) If more than one original defendant requires the plaintiff to attend
for a medical examination in connection with the plaintiff's
claim, the plaintiff is entitled to choose to have those medical
examinations conducted as a joint examination (with one
examination on one occasion by the medical practitioners
concerned) as an alternative to attending each examination
separately.
(5) Subclause (4) does not apply to a medical examination required
by a defendant if the defendant objects to the examination being
conducted as part of a joint examination of the plaintiff.
(6) An original defendant who obtains a report of the results of a
medical examination of the plaintiff must on request by any
cross-defendant provide the report to the cross-defendant.
Note. Once a claim is no longer subject to the claims resolution process,
a cross-defendant can seek the leave of the Tribunal under rules of court
to attend for a medical examination.
25 Party changing facts relied on
(1) After serving the party's statement of particulars or reply on a
claim, a party to a claim may only change the facts on which the
party relies (whether by way of addition, deletion or correction)
if the change is due to:
(a) the discovery by the party of facts that were not known to
and not reasonably discoverable by the party before
serving the party's statement of particulars or reply, or
(b) the plaintiff remembering facts only after serving the
plaintiff's statement of particulars, or
(c) a change by another party to the facts on which that other
party relies.
(2) In determining whether facts were reasonably discoverable by a
party, regard is to be had to what would be likely to be discovered
by the party in the reasonable pursuit of the party's claim or
defence.
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(3) A fact is not reasonably discoverable by a party if the only way
in which it could be discovered is by the exercise of a power of
the Tribunal.
(4) A change to the facts on which a party relies must be notified to
the other parties to the claim as soon as practicable after the party
making the change becomes aware of the need for the change.
(5) This clause does not prevent a party changing the facts on which
the party relies but any change that is not authorised by this
clause constitutes a contravention of this clause for the purposes
of clause 53 (Costs penalties).
26 Access by parties to Dust Diseases Board file
(1) The Dust Diseases Board must, at the request of any party to a
claim, give the party access to and allow the party to make a copy
of, or provide the party with a copy of, any file of information
maintained by the Board for the purpose of or in connection with
a claim by the plaintiff for payment of compensation under the
Workers' Compensation (Dust Diseases) Act 1942.
(2) The Dust Diseases Board may require payment of a fee by a party
to cover the Board's reasonable costs incurred under this clause.
Division 4 Compulsory mediation
27 Compulsory mediation
(1) A claim that is subject to the claims resolution process must be
referred for mediation under this Division.
(2) Referral of a claim for mediation does not prevent or interfere
with the parties pursuing settlement negotiations outside of
mediation.
28 Timetable for referral for mediation
(1) The claim must be referred for mediation within:
(a) 30 business days for malignant claims involving only one
defendant, or
(b) 50 business days for malignant claims involving more than
one defendant, or
(c) 60 business days for non-malignant claims involving only
one defendant, or
(d) 100 business days for non-malignant claims involving
more than one defendant,
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after service of the plaintiff's statement of particulars on the last
of the original defendants.
(2) If a claim is not referred for mediation within the time required
by this clause, the Registrar must immediately refer the claim for
mediation.
(3) Until the Registrar has been notified that a claim has been settled
the Registrar is to presume that the claim has not been settled and
is to presume that a claim has not been referred for mediation
unless the Registrar has been notified that the claim has been
referred for mediation.
(4) If a claim involves more than one defendant, the claim must not
be referred for mediation until:
(a) the defendants have reached agreement as to the
contribution that each is liable to make to the plaintiff's
damages, or
(b) if the defendants cannot reach agreement as to that
apportionment, until the Contributions Assessor has
determined the matter.
(5) The Registrar may, with the agreement of all the parties to a
claim, defer referring the claim for mediation on one occasion
only for the period agreed by the parties, but not exceeding:
(a) 5 business days for a malignant claim, or
(b) 20 business days for a non-malignant claim.
(6) The period of any such deferral is to be added to the relevant
period in clause 29 (1), so as to extend the period within which
mediation of the claim concerned must be concluded.
29 Timetable for conclusion of mediation
(1) Mediation of a claim must be concluded within:
(a) 45 business days for malignant claims involving only one
defendant, or
(b) 60 business days for malignant claims involving more than
one defendant, or
(c) 90 business days for non-malignant claims involving only
one defendant, or
(d) 120 business days for non-malignant claims involving
more than one defendant,
after service of the plaintiff's statement of particulars on the last
of the original defendants.
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(2) A mediator may defer mediation (on one or more occasions) to
allow the parties sufficient time to properly consider information
provided before or during mediation or to allow time for
information not yet available to be provided, but must not defer
mediation if the mediator is of the opinion that deferral would
result in substantial prejudice to a party or substantial delay.
(3) Deferral of mediation may be for a period not exceeding (on each
occasion of deferral):
(a) 5 business days for a malignant claim, or
(b) 20 business days for a non-malignant claim.
(4) The period of any such deferral is to be added to the relevant
period in subclause (1), so as to extend the period within which
mediation of the claim concerned must be concluded.
30 Referral for mediation--appointment of mediator
(1) A claim is referred for mediation by the appointment of a
mediator to conduct the mediation.
(2) A mediator can be appointed:
(a) by the parties by agreement, or
(b) by the Registrar at the request of the parties, or
(c) by the Registrar if the claim is referred for mediation by
the Registrar.
(3) A mediator appointed by the Registrar must be appointed from a
list of mediators compiled by the President.
(4) The President is to compile a list of persons considered by the
President to be suitable to be mediators for the purposes of this
Part. As far as practicable, mediators should be persons with
experience in claims in respect of dust-related conditions.
(5) The persons chosen by the President are to be chosen from among
a list of persons nominated jointly by the Law Society of New
South Wales and the New South Wales Bar Association or,
failing such a nomination, of the President's own choosing.
31 Nature of mediation
(1) Mediation for the purposes of this Part is a structured negotiation
process in which the mediator, as a neutral and independent
party:
(a) assists the parties to a claim to achieve their own resolution
of the claim, and
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(b) assists the parties to narrow the issues in dispute, and
(c) makes recommendations to the parties concerning the
acceptance of offers and the likely outcome of
proceedings.
(2) It is the duty of each party to a claim that is referred for mediation
to participate, in good faith, in the mediation.
(3) A mediator may issue a certificate to the effect that in the
mediator's opinion a party to a claim referred for mediation did
not participate in good faith in the mediation.
Note. A defendant may impose a monetary limit on the authority of a
single claims manager to settle a claim on behalf of the defendant but
must act reasonably in imposing that limit. The imposition of such a limit
is an aspect of participation by a defendant in mediation and can be the
subject of a certificate of the mediator under this clause. See clause 48.
32 Representation at mediation sessions
(1) Each defendant to a claim must be present or represented at a
mediation session.
(2) If there is a single claims manager for a claim:
(a) the single claims manager must be present or represented
at a mediation session, and
(b) (despite subclause (1)) no other defendant for whom the
single claims manager acts is required to be present or
represented at a mediation session unless the mediator
otherwise directs.
(3) The plaintiff must be present at a mediation session (either in
person or by telecommunications link) unless a medical
practitioner has certified that the plaintiff is not fit to be present.
(4) The mediator may control who is in attendance at a mediation
session and may limit the number of representatives that a party
has at a mediation session.
(5) A party represented at a mediation session must be represented
by a person with sufficient authority to make binding decisions
on behalf of the party with respect to the claim. The mediator may
refuse to allow a person to represent a party at the mediation
unless satisfied that the person has that authority.
(6) The mediator may require that a defendant be represented at a
mediation session by a designated officer of the defendant whose
functions include the management or control of the
administration of claims against the defendant (such as the officer
designated by the title of Claims Manager or a similar title).
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(7) In this clause:
defendant includes cross-defendant.
33 Unsuccessful mediation--agreement as to issues in dispute
(1) If a claim that is the subject of mediation is not settled before the
mediation is required to be concluded, the mediator must:
(a) notify the Registrar that the claim has not been settled, and
(b) require the parties to the mediation to agree on which
issues are in dispute between the parties and on the facts
that are relevant to those issues.
(2) The mediator is to certify as to what the parties have agreed as the
issues in dispute and the facts relevant to those issues and is to file
the certificate with the Registrar and provide a copy of the
certificate to each of the parties.
(3) When a claim that is the subject of a mediator's certificate under
this clause is before the Tribunal for determination:
(a) the Tribunal must determine the claim on the basis that the
issues agreed to be in dispute are the only issues in dispute
between the parties and on the basis of the agreed facts, as
certified by the mediator, and
(b) the parties are not permitted to raise any other issue as an
issue in dispute between the parties.
(4) If the parties to mediation do not agree on which issues are in
dispute, each party must lodge with the Tribunal a statement of
the issues that the party considers are in dispute and a statement
of the facts as alleged by the party that are relevant to those
issues.
34 Costs penalties for unmeritorious disputes
(1) If a party to proceedings includes in its statement of the issues
that the party considers are in dispute an issue that in the
proceedings is not determined in favour of the party and that the
Tribunal determines was unreasonably left in dispute, the party is
liable to pay the costs of any other party to the proceedings,
assessed on an indemnity basis, that are occasioned by
establishing, or by preparation for the purpose of establishing,
how the issue is to be determined.
(2) In determining whether an issue was unreasonably left in dispute
by a party, consideration must be given to the steps taken by the
party to ascertain whether there was a reasonable basis for doing
so.
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(3) For the purposes of this clause, when a party to proceedings
admits that an issue is not an issue in dispute in the proceedings,
the issue is considered to be an issue that has not been determined
in favour of the party.
(4) If a party to proceedings disputes a fact and subsequently that fact
is proved in the proceedings or admitted for the purpose of the
proceedings by the disputing party, and the Tribunal determines
that the fact was unreasonably left in dispute, the disputing party
is liable to pay the costs of any other party to the proceedings,
assessed on an indemnity basis, occasioned by proof of the fact
or preparation for the purpose of proving the fact.
35 Challenge to defendant's contribution after successful mediation
(1) If mediation of a claim results in settlement of the claim, the
mediator may, on the application of a defendant who intends to
dispute in subsequent proceedings the contribution that the
defendant is liable to make to the damages recovered by the
plaintiff, require the plaintiff to give evidence on oath before the
mediator in respect of any matter that appears to the mediator to
be relevant to the liability of any person to contribute in respect
of damages payable on the claim.
(2) If the plaintiff is to be required to give evidence under this clause,
the mediator is to determine the arrangements for the taking of
that evidence and advise the parties of those arrangements.
(3) That evidence is to be given immediately following the
conclusion of mediation unless the mediator determines that the
giving of that evidence should be delayed.
(4) A defendant who wants a plaintiff to give evidence pursuant to
this clause must give notice to the mediator, the plaintiff and each
other party to the claim.
(5) That notice must be given at least 2 business days before the start
of mediation. If the decision to require the plaintiff to give
evidence is made after that (including after the start of
mediation), the notice may still be given but this constitutes a
failure to comply with this clause for the purposes of clause 53
(Costs penalties).
(6) Once the plaintiff has given that evidence, the plaintiff cannot be
required to give evidence in proceedings before the Tribunal in
respect of the dispute unless the Tribunal is satisfied that a failure
by the plaintiff to give the evidence concerned will cause
substantial injustice to a defendant.
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(7) A record of the evidence given by the plaintiff before the
mediator is admissible in proceedings before the Tribunal in
respect of the dispute.
(8) The hearsay rule (within the meaning of the Evidence Act 1995)
does not prevent the admission of a record of that evidence of the
plaintiff or the use of that record to prove the existence of a fact
that the plaintiff intended to assert by a representation made in
that evidence.
(9) For the purposes of this clause, the mediator may:
(a) require the plaintiff to take an oath or to make an
affirmation in a form approved by the mediator, and
(b) administer an oath to or take an affirmation of the plaintiff.
(10) A defendant at whose request evidence is given by the plaintiff
under this clause is liable for the costs of and associated with the
taking of that evidence (including the costs of transcription
services and costs for the time of the mediator but not including
the costs of other parties). If more than one defendant makes the
request, the defendants are liable in equal shares for those costs.
(11) In this clause:
defendant includes cross-defendant.
36 Agreements and arrangements arising from mediation
(1) The Tribunal may make orders to give effect to any agreement or
arrangement arising out of the mediation of a claim.
(2) The Tribunal is not to make an order entering judgment in favour
of the plaintiff if the plaintiff has failed to provide any evidence
that the plaintiff has been required to provide by the mediator
under clause 35 (Challenge to defendant's contribution after
successful mediation) and that failure is continuing, unless the
failure is due to the death or permanent incapacity of the plaintiff.
(3) This Division does not affect the enforceability of any other
agreement or arrangement that may be made, whether or not
arising out of mediation of a claim, in relation to the matters the
subject of a mediation.
37 Liability of mediators
No matter or thing done or omitted to be done by a mediator
subjects the mediator to any action, liability, claim or demand if
the matter or thing was done or omitted to be done in good faith
for the purposes of a mediation under this Part.
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38 Privilege and secrecy
(1) In this clause, mediation session means a meeting arranged for
the mediation of a claim and includes any steps taken in the
course of making arrangements for the session or in the course of
the follow-up of a session.
(2) Subject to subclause (3), the same privilege with respect to
defamation as exists with respect to judicial proceedings and a
document produced in judicial proceedings exists with respect to:
(a) a mediation session, or
(b) a document or other material sent to or produced to a
mediator, or sent to or produced at the Tribunal or the
office of the Registrar, for the purpose of enabling a
mediation session to be arranged.
(3) The privilege conferred by subclause (2) only extends to a
publication made:
(a) at a mediation session, or
(b) as provided by subclause (2) (b), or
(c) as provided by subclause (7).
(4) Evidence of anything said or of any admission made in a
mediation session is not admissible in any proceedings before
any court, tribunal or body except as is otherwise specifically
provided by this Part.
(5) Except as provided by this Part, a document prepared for the
purposes of, or in the course of, or as a result of, a mediation
session, or any copy of such a document:
(a) is not admissible in evidence in any proceedings before
any court, tribunal or body, and
(b) cannot be the subject of a subpoena issued in any
proceedings before any court, tribunal or body.
(6) Subclauses (4) and (5) do not apply with respect to any evidence
or document:
(a) if the persons in attendance at, or identified during, the
mediation session and, in the case of a document, all
persons identified in the document, consent to the
admission of the evidence or document, or
(b) in proceedings instituted with respect to any act or
omission in connection with which a disclosure has been
made under subclause (7).
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(7) A mediator may disclose information obtained in connection
with the administration or execution of this Part only in any one
or more of the following circumstances:
(a) with the consent of the person from whom the information
was obtained,
(b) in connection with the administration or execution of this
Part,
(c) if there are reasonable grounds to believe that the
disclosure is necessary to prevent or minimise the danger
of injury to any person or damage to any property,
(d) if the disclosure is reasonably required for the purpose of
referring any party or parties to a mediation session to any
person, agency, organisation or other body and the
disclosure is made with the consent of the parties to the
mediation session for the purpose of aiding in the
resolution of a dispute between those parties or assisting
the parties in any other manner,
(e) in accordance with a requirement imposed by or under a
law of the State (other than a requirement imposed by a
subpoena or other compulsory process) or the
Commonwealth.
39 Costs of mediation
(1) The costs of mediation, including remuneration payable to the
mediator, are to be borne by:
(a) the parties to the claim in such proportions as they may
agree among themselves if mediation results in settlement
of the claim or the claim is otherwise settled, or
(b) the defendant (or all the defendants in equal shares) if
mediation does not result in settlement of the claim and the
claim is not otherwise settled.
(2) If there is a single claims manager for the claim, any costs of
mediation payable by the defendants for whom the single claims
manager acts are payable by the single claims manager, and any
such payment by the single claims manager is to be reimbursed
as a disbursement in accordance with clause 50 (Costs of the
SCM).
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(3) Subclause (1) does not interfere with the power of the Tribunal to
include costs of mediation in an award of costs to the party that is
successful before the Tribunal but the Tribunal may decline to
include costs of mediation in an award of costs if the Tribunal is
satisfied that the party in whose favour the award is to be made
did not participate in good faith in the mediation.
Division 5 Apportionment
40 Application to cross-defendants
A reference in this Division to a defendant includes a reference to
a cross-defendant.
41 Defendants to agree as to apportionment
(1) The defendants to a claim who are alleged to be liable to
contribute to any damages recovered by the plaintiff must agree
among themselves as to the contribution that each is liable to
make to those damages.
(2) Agreement must be reached no later than:
(a) 35 business days for malignant claims, or
(b) 70 business days for non-malignant claims,
after service of the plaintiff's statement of particulars on the last
of the original defendants.
(3) The first defendant must file with the Registrar an apportionment
statement setting out details of the apportionment of liability that
the defendants have agreed to.
42 Determination of apportionment failing agreement
(1) If by the end of the period within which the defendants are
required to reach agreement as to apportionment an
apportionment statement setting out details of the apportionment
of liability that the defendants have agreed to has not been filed
with the Registrar, the Registrar is to refer the matter to a
Contributions Assessor for determination.
(2) The Contributions Assessor to which a matter is referred is to
determine the contribution that each defendant is liable to make
and is to make that determination on the assumption that the
defendants are liable and solely on the basis of:
(a) the plaintiff's statement of particulars and the defendants'
replies on the claim, and
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(b) standard presumptions as to apportionment determined by
the Minister for the purposes of this clause by order
published in the Gazette.
(3) A Contributions Assessor's determination is to be made within:
(a) 40 business days for malignant claims, or
(b) 80 business days for non-malignant claims,
after service of the plaintiff's statement of particulars on the last
of the original defendants.
(4) Neither the referral of a matter for determination by a
Contributions Assessor nor a determination of the matter by a
Contributions Assessor prevents the defendants concerned from
agreeing among themselves at any time as to the contribution that
each is liable to make to the plaintiff's damages.
(5) A determination of a Contributions Assessor under this Division
cannot be challenged, reviewed, quashed or called into question
before any court of law or administrative review body in any
proceedings. This subclause does not prevent the subsequent
taking, or determination by the Tribunal, of a dispute between
defendants as to apportionment.
43 Contributions Assessors
(1) The Director-General of the Attorney General's Department is to
appoint a panel of legal practitioners to be Contributions
Assessors for the purposes of this Division.
(2) A Contributions Assessor is entitled to such remuneration in
connection with the exercise of functions as a Contributions
Assessor as the Director-General may determine from time to
time.
(3) The amount of the remuneration of a Contributions Assessor is
payable by the defendants in respect of whose liability to
contribute the Contributions Assessor is making a determination,
and is payable by each in proportion to their determined shares of
contribution.
(4) If there is a single claims manager for the claim, any
remuneration of a Contributions Assessor that is payable by the
defendants for whom the single claims manager acts is payable
by the single claims manager, and any such payment by the single
claims manager is to be reimbursed as a disbursement in
accordance with clause 50 (Costs of the SCM).
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(5) If there is no single claims manager for the claim, the defendant
whose determined share of contribution is greatest is required to
pay to the Registrar the full amount of the Contributions
Assessor's remuneration and has a right of contribution against
the other defendants concerned for their proportionate shares of
that remuneration.
44 Effect of agreement or determination as to apportionment
(1) An agreement or determination as to apportionment among
defendants for the purposes of this Division is conclusively
binding on the defendants for the purposes of the settlement, or
determination by the Tribunal, of the plaintiff's claim and
payment of the plaintiff's damages.
(2) The agreement or determination is not binding for the purposes
of the subsequent taking, or determination by the Tribunal, of a
dispute between defendants as to apportionment.
(3) If a defendant disputes the contribution that the defendant is
liable to make to damages recovered by the plaintiff and the
judgment of the Tribunal in the dispute does not result in the
defendant materially improving the defendant's position, the
defendant is liable to pay the costs of each other party to the
dispute occasioned by the dispute, assessed on an indemnity
basis.
(4) To the extent of any inconsistency between this clause and Part 6
(Offers of compromise), this clause prevails.
(5) For the purposes of this clause, the defendant is considered to
materially improve the defendant's position only if the
Tribunal's determination of the dispute results in a reduction of
the defendant's contribution of at least 10% of the amount of the
defendant's agreed or determined contribution or $20,000,
whichever is the greater.
Division 6 Multiple defendant claims--single claims
manager
45 Application to cross-defendants
A reference in this Division to a defendant includes a reference to
a cross-defendant.
46 Requirement for single claims manager
(1) If there is more than one defendant to a plaintiff's claim, the
defendants must use a claims manager to manage and negotiate
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the resolution of the plaintiff's claim on their behalf, and for that
purpose the defendants must all use the same claims manager (a
single claims manager or SCM).
(2) The defendants are not required to use an SCM if all the
defendants agree not to use an SCM.
47 Selection of SCM
(1) The defendants can agree on the selection of an SCM for the
claim and for that purpose they can select one of the defendants
or some other person (such as a claims management company).
(2) Failing agreement between defendants on the selection of an
SCM for a claim, the first defendant must notify the Registrar
(before the end of the period within which the defendants are
required to reach agreement on apportionment) that the
defendants have not agreed on the selection of an SCM.
(3) The selection of an SCM is then to be made by:
(a) the Registrar if the defendants have agreed (within the
required period under the claims resolution process) on the
apportionment of liability between them, or
(b) the Contributions Assessor when determining the
apportionment of liability between the defendants if the
defendants have not agreed within the required period on
that apportionment.
(4) The procedure for the selection of an SCM by the Registrar or a
Contributions Assessor is as follows if there is no primary
defendant:
(a) the selection of an SCM is to be made by selecting a
defendant at random from among those defendants who
each have an apportioned share of at least 15% or, if only
one of the defendants has an apportioned share of at least
15%, by selecting that defendant,
(b) if none of the defendants has an apportioned share of at
least 15%, the selection of an SCM is to be made by
selecting a defendant at random from among all of the
defendants.
(5) The procedure for the selection of an SCM by the Registrar or a
Contributions Assessor is as follows if there is a primary
defendant:
(a) if no other defendant has an apportioned share of at least
15%, the primary defendant is selected as the SCM,
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(b) if one or more of the other defendants has an apportioned
share of at least 15%, the primary defendant becomes the
first possible SCM and a second possible SCM is to be
chosen,
(c) the second possible SCM is to be chosen by selecting a
defendant at random from among the group of defendants
comprising the primary defendant and such of the other
defendants as each have an apportioned share of at least
15%,
(d) if the same defendant is both the first and second possible
SCMs, that defendant is to be selected as the SCM for the
claim,
(e) if the first and second possible SCMs are different
defendants, the defendant who is first possible SCM is to
be selected as the SCM but the selection of the defendant
does not operate unless the defendant accepts selection by
notifying each of the other defendants in writing within 2
business days after selection that the defendant will act as
the SCM,
(f) if the first possible SCM does not accept selection as the
SCM, the defendant who is second possible SCM is to be
selected as the SCM.
(6) The defendant who is finally selected under this clause as the
SCM for a claim must act as the SCM for the claim.
(7) The person selected as the SCM for a claim must notify the
plaintiff and each defendant in writing as soon as practicable after
selection that the person will act as the SCM. Notification is
required only to the plaintiff if the primary defendant has already
notified each of the other defendants (as provided for by the SCM
selection process) that the defendant will act as the SCM.
(8) For the purposes of determining a defendant's apportioned share
for a claim in connection with the operation of this clause, the
defendant may choose to have included in the defendant's share
of responsibility any responsibility in connection with the claim
of a related body corporate of the defendant (within the meaning
of the Corporations Act 2001 of the Commonwealth).
(9) In this clause:
apportioned share for a claim means the proportion of the claim
for which a defendant is responsible, determined on the basis of
the apportionment of liability agreed to by the defendants or
determined by the Contributions Assessor, whichever is
applicable in the particular case.
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primary defendant for a claim means:
(a) the defendant whose apportioned share for the claim is
more than 50%, or
(b) if there is no such defendant--the defendant with the
largest apportioned share for the claim, being a share of
responsibility that is at least 20 percentage points greater
than that of the defendant with the next largest apportioned
share for the claim.
48 Role and functions of SCM
(1) The role of the SCM is to manage and negotiate and seek to
resolve the plaintiff's claim on behalf of all of the defendants and
for that purpose the SCM has and may exercise on behalf of each
defendant all the functions of a defendant.
Note. The SCM's role includes the selection of expert evidence on
behalf of all the defendants but this does not prevent a defendant from
obtaining their own expert reports.
(2) Anything done or omitted to be done by the SCM in purported
exercise of the functions of the SCM is taken to have been done
or omitted to be done by the relevant defendant or defendants.
(3) A defendant who is the SCM for a claim is entitled to perform the
role of the SCM in accordance with the defendant's usual
arrangements for managing claims (which can include managing
the claim themselves or an arrangement whereby particular kinds
of claim are managed on behalf of the defendant by an insurer).
(4) Each defendant is taken to authorise the SCM to settle the matter
with the plaintiff, both informally and at any formal mediation.
(5) A defendant may impose a monetary limit on the authority of the
SCM to settle a claim on behalf of the defendant but must act
reasonably in imposing that limit.
(6) The imposition of a monetary limit on the authority of the SCM
to settle a claim on behalf of a defendant is, for the purposes of
the mediation of the claim, an aspect of participation in
mediation, and the power of a mediator to issue a certificate to the
effect that in the mediator's opinion a defendant did not
participate in good faith in the mediation extends to this aspect of
the defendant's participation in mediation.
(7) If a claim that is the subject of mediation is not settled before
mediation is required to be completed, each defendant is taken to
authorise the SCM to agree on its behalf on which issues are in
dispute between the parties and on the facts that are relevant to
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those issues, unless in the case of any particular defendant the
defendant has notified the SCM that the SCM is not authorised to
do this on behalf of the defendant.
49 Limitations on SCM's role
(1) The SCM does not have any role or functions in respect of
apportionment of liability between defendants or any later
dispute between the defendants as to apportionment of liability.
(2) The role of the SCM does not limit or otherwise interfere with:
(a) the responsibility of a defendant for preparing and serving
the defendant's reply to the plaintiff's statement of
particulars, or
(b) the right of a defendant to attend at and be represented at
the mediation of a claim, or
(c) a defendant's responsibility to comply with a requirement
by the mediator that a defendant be represented at
mediation by a particular officer of the defendant, or
(d) a defendant's responsibility for questioning the plaintiff on
issues relevant to contribution (if necessary) at the
conclusion of a successful mediation.
(3) The role of the SCM concludes:
(a) if the plaintiff's claim is settled through mediation or
otherwise before mediation of the claim is required to be
completed--on final implementation of the settlement or
on finalisation of any costs assessment in respect of the
settlement, whichever is later, or
(b) if the plaintiff's claim is not settled before mediation of the
claim is required to be completed--when the parties or the
defendants reach agreement on which issues are in dispute
between them or conclude their efforts to reach agreement.
(4) The parties may agree to the use of an SCM beyond the time
when the role of the SCM would otherwise conclude under this
clause and any such agreement has effect to continue the
operation of this Part in respect of the SCM (including clause 50
with respect to the costs of the SCM) in accordance with that
agreement.
50 Costs of the SCM
(1) If the SCM is not one of the defendants, the costs of the SCM are
payable as agreed between the defendants and the SCM.
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(2) If the SCM is one of the defendants, each of the other defendants
is liable to reimburse the SCM in respect of the SCM's costs an
amount that is the sum of the following amounts:
(a) the amount calculated by dividing half the amount of the
SCM's costs by the number of defendants (including the
SCM),
(b) a share of half the amount of the SCM's costs in the same
proportion as the defendant's apportioned share of
responsibility for the plaintiff's claim.
(3) For the purposes of this clause, the costs of the SCM are the costs
and expenses incurred by the SCM in the exercise of functions as
the SCM, including:
(a) any costs of mediation or the remuneration of a
Contributions Assessor borne by the SCM, and
(b) in relation to an SCM who is not one of the defendants, the
remuneration of the SCM, and
(c) in relation to an SCM who is a defendant, the defendant's
operational costs (including internal legal costs) and its
external costs (including expert reports and external legal
costs).
(4) The Minister may by order published in the Gazette establish a
scale of costs for use in determining the operational costs of an
SCM that are allowable for the purposes of this clause.
(5) The external legal costs of an SCM are subject to assessment
under the Legal Profession Act 2004 on the application of a
defendant required under this clause to reimburse the SCM for
any amount of those costs.
Division 7 Return of claims to the Tribunal
51 Non-urgent claims to be subject of directions hearing
(1) This clause applies to the following claims:
(a) a claim that has completed the claims resolution process
without being settled,
(b) a claim that has ceased under Division 2 to be part of the
claims resolution process pursuant to the agreement of the
parties,
(c) a claim that the Tribunal has determined under Division 2
should be removed from the claims resolution process
because of a failure to comply with a requirement of the
claims resolution process.
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(2) The following provisions apply to claims to which this clause
applies except a claim described in subclause (1) (c):
(a) the Registrar must set the claim down for a directions
hearing before the Tribunal to take place within 10 days for
malignant claims or 20 days for non-malignant claims,
(b) the plaintiff or, if the plaintiff's claim has been settled and
cross-claims remain to be determined, the first defendant
must propose in writing to the remaining parties what
further steps (if any) need to be taken to prepare the matter
for hearing, together with a timetable for completing those
steps,
(c) if the parties agree on those steps and the timetable, written
notice of the agreement must be provided to the Registrar
and the Tribunal must enter orders to give effect to that
agreement.
(3) The following provisions apply to all claims to which this clause
applies:
(a) the Tribunal may, subject to this subclause, make orders
and give directions to the parties as to the steps to be taken
to prepare the claim for hearing and for that purpose may
order the amendment of the plaintiff's statement of claim,
(b) a defence is taken to have been filed to the claim and to any
cross-claims, unless the Tribunal orders that a defence
must be filed,
(c) the Tribunal may only order that a defence be filed in
relation to matters that remain in dispute and only if the
Tribunal is satisfied that it is necessary to do so to ensure
that the outstanding issues in dispute are properly tried,
(d) the parties to the claim cannot administer interrogatories,
order discovery or issue requests for particulars unless
leave to do so is granted by the Tribunal, and the Tribunal
may only grant that leave where it is satisfied that:
(i) the information sought by the party has not been
provided as part of the information exchange
process, and
(ii) the information relates to issues that remain in
dispute, and
(iii) the order is necessary to ensure that the outstanding
issues in dispute are properly tried,
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(e) rule 8A (Personal injuries cases; particulars) of Part 33 of
the Supreme Court Rules 1970 and rules 15.12 and 15.13
of the Uniform Civil Procedure Rules 2005 do not apply to
the claim,
(f) the plaintiff may file an affidavit (but only in relation to
issues that remain in dispute) and for that purpose may rely
on the plaintiff's statement of particulars,
(g) the Tribunal cannot require the plaintiff to file an affidavit
if the plaintiff elects to rely on the plaintiff's statement of
particulars served under Division 3 (or specified parts of
that statement) as the plaintiff's affidavit (including any
necessary changes made to that statement in the course of
information exchange),
(h) the Tribunal may not refer the claim or any aspect of the
claim to mediation or neutral evaluation and may not refer
a dispute as to apportionment concerning the claim to
arbitration.
52 Procedures for urgent claims
If the Tribunal has determined that a claim is urgent on
application by the claimant under Division 2, the statement of
claim for the claim is, for the purposes of any provision of rules
of court as to the serving of a defence, taken to have been served
when the Tribunal made that determination.
Division 8 Costs
53 Costs penalties
(1) In making an order as to the payment of costs in proceedings, the
Tribunal must take into account any failure by a party to
proceedings to comply with a provision of this Part.
(2) In particular, the Tribunal must take into account any increase in
the costs of the proceedings that is attributable to any such failure
and may order the party responsible for the failure to pay the costs
of each other party to the dispute occasioned by the failure,
assessed on an indemnity basis.
(3) The Tribunal may take into account a certificate issued by a
mediator to the effect that in the mediator's opinion a party to a
claim referred for mediation did not participate in good faith in
the mediation.
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Part 5 Subpoenas
54 Interpretation and application
(1) In this Part:
access order, in relation to a subpoena requiring production,
means an order of the Tribunal granting access to specified
documents or things produced pursuant to the subpoena (whether
with or without conditions).
person named means, in relation to a subpoena, the person to
whom the subpoena is addressed.
privileged document or thing, in relation to a subpoena, means:
(a) a document or thing of which evidence could not be
adduced in an action over the objection of any person, by
virtue of the operation of Part 3.10 (other than sections 128
and 130) of the Evidence Act 1995, or
(b) if the party on whom the subpoena is served is a natural
person--a document or thing the contents or production of
which may tend to prove that the party:
(i) has committed an offence against or arising under
an Australian law or a law of a foreign country, or
(ii) is liable to a civil penalty, within the meaning of the
Evidence Act 1995, or
(c) a document that relates to matters of state within the
meaning of section 130 of the Evidence Act 1995, unless
and until the Tribunal directs that it cease to be a privileged
document.
requesting party for a subpoena means a person who is
requesting, or who has requested, the issue of the subpoena.
return date for a subpoena means the date on which the subpoena
is returnable.
(2) This Part applies to subpoenas issued on or after the
commencement of this Part.
(3) The provisions of this Part apply to the exclusion of the
equivalent provisions of rules of court.
Note. This Part applies to all claims, not just claims that are subject to
the claims resolution process under Part 4.
55 Conduct money
(1) A subpoena must not require the person named to attend or
produce any document or thing on any day on which the person's
attendance is required unless an amount sufficient to meet the
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reasonable expenses of the person named of complying with the
subpoena in relation to that day is paid or tendered to the person
at the time of service of the subpoena or not later than a
reasonable time before that day.
(2) The amount mentioned in section 20 (6) of the Act is to be, in
respect of a person duly served with a subpoena in any
proceedings, the amount which would be payable in respect of
that person if the party issuing the subpoena were entitled to
claim witness' expenses in respect of that person as costs in the
proceedings.
56 Production by non-party
(1) Where the person named in a subpoena for production of any
document or thing is not a party to the proceedings, the subpoena
must, unless the Tribunal otherwise orders, permit the person to
produce the document or thing to the Registrar not later than the
day before the first date on which the person's attendance is
required, instead of attending and producing the document or
thing as required by the subpoena.
(2) Where a document or thing is produced to the Registrar pursuant
to subclause (1), the Registrar must:
(a) give a receipt to the person producing the document or
thing, and
(b) produce the document or thing as the nature of the case
requires or as the Tribunal may direct.
(3) This clause does not apply to so much of a subpoena as requires
the person named to attend to testify in any proceedings.
57 Return of exhibits
(1) Exhibits in any proceedings must be returned to the persons who
produced them (whether on subpoena or otherwise) to the
Tribunal or the Registrar:
(a) if the Tribunal makes no order that the exhibits be
retained--immediately after judgment is given or a final
order made, or
(b) if the Tribunal makes an order that the exhibits be
retained--at the expiration of the period of 30 days after
judgment is given or a final order made or such other
period as may be specified in the order.
(2) A person to whom exhibits may be returned under subclause (1)
must obtain the return of, and give to the Registrar a receipt for,
the exhibits as soon as practicable, and the Registrar is
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responsible for the safe custody of any exhibits in the Registrar's
keeping for a period only of 14 days after the first day on which
the exhibits may be so returned.
58 Issue
(1) On request by a party, the Registrar must issue a subpoena to give
evidence or a subpoena for production or a subpoena both to give
evidence and for production.
(2) Subclause (1) does not prevent the issue of a subpoena to give
evidence and a subpoena for production to the same person in the
same proceedings.
(3) Subject to subclause (4) a party requesting the issue of a
subpoena must produce the subpoena to the Registrar in
duplicate.
(4) Where a party requests in any proceedings the issue of several
subpoenas to give evidence in similar terms but addressed to
different persons, the party need produce only one original, but
that original must contain the name of each person to whom any
of the subpoenas is addressed.
(5) The Registrar is not required to place a copy of the subpoena on
the Tribunal's file.
(6) A subpoena for production may be made returnable on the day
fixed for the hearing of the proceedings in which it is issued, or,
with the leave of the Tribunal or the Registrar, on any other day.
(7) While a claim is subject to the claims resolution process under
Part 4, a subpoena for production of any document or thing:
(a) is to be made returnable on a day that is no later than 5
business days before the start of mediation on the claim
under that Part, and
(b) must permit the person named in the subpoena (whether or
not the person is a party) to produce the document or thing
to the Registrar, and
(c) does not require leave under subclause (6) if a copy of the
subpoena is served at least 10 business days before the
return date of the subpoena.
59 Notice to be given to other parties concerning subpoenas
requiring production
(1) The requesting party for any subpoena requiring production must
serve each other party who has an address for service in the
proceedings with a copy of the subpoena:
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(a) if the return date of the subpoena is on a day that is 14 days
or more after the subpoena is issued--within the period of
7 days after the subpoena is issued, or
(b) if the return date of the subpoena is on a day that is less
than 14 days after the subpoena is issued--within 24 hours
after the subpoena is issued.
(2) The requesting party for a subpoena requiring production who
fails to comply with subclause (1) must notify the Tribunal of that
failure at the next date on which the subpoena is returnable.
(3) The requesting party for a subpoena requiring production must
notify each other party to the proceedings who has an address for
service in the proceedings of any new return date for the
subpoena fixed after the subpoena is first issued:
(a) if the return date of the subpoena is on a day that is 14 days
or more after the new date is fixed--within the period of 7
days after the new date is fixed, or
(b) if the return date of the subpoena is on a day that is less
than 14 days after the new date is fixed--within 24 hours
after the new date is fixed.
(4) The Tribunal or the Registrar may make an order for costs against
a requesting party for a subpoena requiring production if that
party fails to comply with subclause (2) or (3), but only in respect
of costs incurred by reason of that failure.
(5) A requesting party for a subpoena requiring production need not
comply with a requirement under subclause (1), (2) or (3) if the
person named is excused from compliance with the subpoena by
the requesting party under clause 67 (2) (Alteration to
obligations) before the time when the requesting party had to
comply with that requirement.
(6) Nothing in this clause affects the operation of clause 64
(Subpoena to medical expert).
60 Access to subpoenaed material
(1) The Tribunal may make an access order in relation to a subpoena
requiring production at the time the subpoena is issued or at any
time after it is issued.
(2) If an access order has effect in relation to a subpoena for
production, a party or the party's barrister or solicitor may
(subject to the terms of the order):
(a) inspect documents or things produced in compliance with
the subpoena, and
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(b) take copies of any documents so inspected.
61 Proposed access orders
(1) Unless the Tribunal orders otherwise, the requesting party for a
subpoena requiring production must endorse a proposed access
order on the subpoena.
(2) Without limiting clause 60 (Access to subpoenaed material), the
Tribunal may:
(a) endorse a proposed access order on a subpoena requiring
production if the requesting party has not endorsed such a
proposed order, or
(b) endorse a proposed access order on a subpoena requiring
production in different terms to a proposed order endorsed
by the requesting party.
(3) Unless the Tribunal orders otherwise, any such proposed access
order has effect as an access order immediately after the next
return date for the subpoena if:
(a) documents or things are produced in compliance with the
subpoena on or before that date, and
(b) no person appears before the Registrar or Tribunal on the
return date in opposition to the proposed order.
(4) Without limiting subclause (3), the Tribunal may take into
account a failure to comply with subclause (5) or (6) or clause 59
(1), (2) or (3) in determining whether a proposed access order
should have effect according to its tenor or whether an order is to
be made to modify or revoke the proposed access order.
(5) A party or a person named in a subpoena requiring production
who proposes to object to the proposed access order on the return
date for the subpoena must notify the requesting party of the
objection:
(a) if the party or person is served with a copy of the subpoena
on a day that is 14 days or more before the return date--
within the period of 3 days after the party or person is
served, or
(b) if the party or person is served with a copy of the subpoena
on a day that is less than 14 days before the return date--
within the period of 24 hours after the party or person is
served.
(6) A requesting party who has received notice of an objection to a
proposed access order must notify all of the other parties who
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have an address for service in the proceedings of the objection
within 24 hours after receiving that notice.
62 Exercise of functions by Registrar
The functions of the Tribunal under clauses 60 and 61 may,
unless the Tribunal otherwise orders, be exercised by the
Registrar.
63 Time for service
(1) A subpoena must be served on the person named within a
reasonable time.
(2) Without affecting the generality of subclause (1), where a
subpoena requires attendance or production or both on a specified
date, the subpoena may not be served on the person named later
than 5 days before the date so specified unless the Tribunal or
Registrar otherwise orders.
(3) Subject to subclause (4), service of a subpoena for production
which requires production on a specified date, being a date not
later than 21 days before the hearing of the proceedings in which
the subpoena is issued, may be effected by sending a copy of the
subpoena by pre-paid post addressed to the person named at that
person's usual or last known residence or place of business.
(4) Service pursuant to subclause (3) is not effective unless and until
the subpoena is actually received by the person named.
64 Subpoena to medical expert
(1) Where a subpoena requires a medical expert to attend in Sydney
on a specified date for the purposes of giving evidence on
medical matters, the subpoena may not be served on the expert
later than 21 days before the date so specified unless the Tribunal
otherwise orders.
(2) A party may request the issue of a subpoena for production in the
approved form requiring a medical expert to attend and produce
medical records or clear sharp photocopies of them.
(3) A subpoena requested under subclause (2) must not require the
person named to attend or produce any document on any date
specified unless the amount of $28 is paid or tendered to the
person at the time of service of the subpoena or not later than a
reasonable time before that specified date.
(4) Clause 55 (Conduct money) does not apply to a subpoena
requested under subclause (2).
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(5) Clause 56 (Production by non-party) applies to the photocopies
as it applies to the records.
65 Setting aside
The Tribunal may, of its own motion or on the motion of any
person having a sufficient interest, set aside a subpoena wholly or
in part.
66 Expense and loss
Where a person named is not a party and, in consequence of
service of the subpoena, reasonably incurs expense or loss
substantially exceeding any sum paid under clause 55 (Conduct
money), the Tribunal may order that the party who requested the
issue of the subpoena pay to the person named an amount in
respect of the expense or loss.
67 Alteration to obligations
(1) A party who has requested the issue of a subpoena to give
evidence may, by written or oral notice to the person named, alter
the day specified in the subpoena for attendance to a day which is:
(a) later than the day specified in the subpoena and the day, if
any, as last altered pursuant to this subclause, and
(b) the day of the hearing of the action.
(2) Where the person named in any subpoena has not been called to
give evidence, or produce documents, before the Tribunal in
compliance with the subpoena, the party who requested the issue
of the subpoena may, by written or oral notice to the person
named, excuse that person from compliance with the subpoena.
68 Special powers of Tribunal
(1) The Tribunal may, by order, dispense with any requirement of
this Part if satisfied that it is appropriate to do so in the
circumstances of the case.
(2) The Tribunal may, by order, extend or abridge any time fixed
under this Part.
(3) The Tribunal may extend time under this clause, either before or
after the time expires, and may do so after the time expires even
if an application for extension is made after the time expires.
69 Application of Part 3.10 of Evidence Act 1995
Nothing in this Part compels a person on whom a subpoena is
served to produce a privileged document or thing.
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Part 6 Offers of compromise
70 Part displaces rules
This Part displaces any provision of rules of court with respect to
the acceptance or rejection of an offer of compromise.
Note. This Part applies to all claims, not just claims that are subject to
the claims resolution process under Part 4.
71 Definitions
In this Part:
defendant includes cross-defendant.
final deadline for an offer means the time at which the Tribunal
begins to give its decision or its reasons for decision, whichever
is the earlier, on a judgment (except an interlocutory judgment).
offer means an offer of compromise referred to in clause 72
(Making of offer).
plaintiff includes a cross-claimant.
period for acceptance for an offer means the period from when
the offer is made until:
(a) the expiration of the time limited by the offer or, if no time
is limited, the expiration of 28 days after the offer is made,
or
(b) the final deadline for offers in respect of the claim to which
the offer relates,
whichever first occurs.
72 Making of offer
(1) In any proceedings, any party may, by notice in writing, make an
offer to any other party to compromise any claim in the
proceedings, either in whole or in part, on specified terms.
Note. This Part extends to offers between a cross-claimant and
cross-defendant. An offer does not have to be made to all the parties to
proceedings.
(2) An offer must be exclusive of costs, except where it states that it
is a verdict for the defendant and that the parties are to bear their
own costs.
(3) A notice of offer:
(a) must bear a statement to the effect that the offer is made in
accordance with this clause, and
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(b) if the offeror has made or been ordered to make an interim
payment to the offeree, must state whether or not the offer
is in addition to the payment so made or ordered.
(4) An offer made by the plaintiff or the defendant to the other to
compromise a claim (other than a claim removed from the claims
resolution process under clause 18) may be expressed to be
limited as to the time it is open to be accepted but the time
expressed cannot be less than:
(a) 28 days after the offer is made if the offer is made before
the required information exchange under Part 4, or
(b) 14 days after the offer is made if the offer is made after the
required information exchange under Part 4 but before
mediation of the claim under the claims resolution process
has been concluded, or
(c) 7 days after the offer is made if the offer is made after
mediation of the claim under the claims resolution process
has been concluded.
(5) An offer made by the plaintiff or the defendant to the other to
compromise any claim removed from the claims resolution
process under clause 18 may be expressed to be limited as to the
time it is open to be accepted but the time expressed cannot be
less than:
(a) 14 days after the offer is made, unless paragraph (b)
applies, or
(b) if the offer is made after an Issues and Listing Conference
has been held in respect of the claim, 7 days after the offer
is made.
(6) Unless the notice of offer otherwise provides, an offer providing
for the payment of money, or the doing of any other act, is taken
to provide for the payment of that money, or the doing of that act,
within 28 days after acceptance of the offer.
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(7) An offer is taken to have been made without prejudice, unless the
notice of offer otherwise provides.
(8) A party may make more than one offer in relation to the same
claim.
(9) Unless the Tribunal orders otherwise, an offer may not be
withdrawn during the period of acceptance for the offer.
(10) A notice of offer that purports to exclude, modify or restrict the
operation of clauses 73 and 74 is of no effect for the purposes of
this Part.
73 Where offer not accepted and judgment no less favourable to
plaintiff
(1) This clause applies if the offer concerned is made by the plaintiff,
but not accepted by the defendant, and the plaintiff obtains an
order or judgment on the claim concerned no less favourable to
the plaintiff than the terms of the offer.
(2) Unless the Tribunal orders otherwise in an exceptional case and
for the avoidance of substantial injustice, the plaintiff is entitled
to an order against the defendant for the plaintiff's costs in
respect of the claim:
(a) assessed on a party and party basis up to the time from
which those costs are to be assessed on an indemnity basis
under paragraph (b), and
(b) assessed on an indemnity basis:
(i) if the offer was made before the first day of the trial,
as from the beginning of the day following the day
on which the offer was made, and
(ii) if the offer was made on or after the first day of the
trial, as from 11 am on the day following the day on
which the offer was made.
(3) If the Tribunal in an exceptional case and for the avoidance of
substantial injustice otherwise orders as referred to in subclause
(1), the Tribunal must give its reasons for so ordering.
74 Where offer not accepted and judgment as or less favourable to
plaintiff
(1) This clause applies if the offer concerned is made by the
defendant, but not accepted by the plaintiff, and the plaintiff
obtains an order or judgment on the claim concerned as
favourable to the plaintiff, or less favourable to the plaintiff, than
the terms of the offer.
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(2) Unless the Tribunal orders otherwise in an exceptional case and
for the avoidance of substantial injustice:
(a) the plaintiff is entitled to an order against the defendant for
the plaintiff's costs in respect of the claim, to be assessed
on a party and party basis, up to the time from which the
defendant becomes entitled to costs under paragraph (b),
and
(b) the defendant is entitled to an order against the plaintiff for
the defendant's costs in respect of the claim, assessed on
an indemnity basis:
(i) if the offer was made before the first day of the trial,
as from the beginning of the day following the day
on which the offer was made, and
(ii) if the offer was made on or after the first day of the
trial, as from 11 am on the day following the day on
which the offer was made.
(3) If the Tribunal in an exceptional case and for the avoidance of
substantial injustice otherwise orders as referred to in subclause
(1), the Tribunal must give its reasons for so ordering.
75 Costs with respect to interest
(1) If a plaintiff obtains an order or judgment for the payment of
damages and:
(a) the amount payable under the order or for which judgment
is given includes interest or damages in the nature of
interest, or
(b) the Tribunal, by a separate order, awards the plaintiff
interest or damages in the nature of interest in respect of
the amount,
then, for the purpose of determining the consequences as to costs
referred to in clause 73 or 74, the Tribunal must disregard so
much of the interest, or damages in the nature of interest, as
relates to the period after the day on which the offer was made.
(2) For the purpose only of this clause, the Tribunal may be informed
of the fact that the offer was made, and of the date on which it was
made, but must not be informed of its terms.
76 Acceptance of offer
(1) A party may accept an offer by serving written notice of
acceptance on the offeror at any time during the period of
acceptance for the offer.
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(2) An offer may be accepted even if a further offer is made during
the period of acceptance for the first offer.
(3) If an offer is accepted in accordance with this clause, any party to
the compromise may apply for judgment to be entered
accordingly.
77 Withdrawal of acceptance
(1) A party who accepts an offer may withdraw the acceptance in
either of the following circumstances by serving written notice of
withdrawal on the offeror:
(a) if the offer provides for payment of money, or the doing of
any other act, and the sum is not paid to the offeree or into
the Tribunal, or the act is not done, within 28 days after
acceptance of the offer or within such other time as the
offer provides,
(b) if the Tribunal grants the party leave to withdraw the
acceptance.
(2) If acceptance of an offer is withdrawn:
(a) except as provided by paragraphs (b) and (c), all steps in
the proceedings that have been taken as a consequence of
the offer having been accepted cease to have effect, and
(b) the Tribunal may give directions:
(i) to restore the parties as nearly as may be to their
positions at the time of the acceptance, and
(ii) to give effect to any steps in the proceedings that
have been taken as a consequence of the offer
having been accepted, and
(iii) to provide for the further conduct of the
proceedings,
and may do so either after the offer is withdrawn or when
granting leave to withdraw the offer, and
(c) if the claim was subject to the claims resolution process
when the offer was accepted, the claim is once again
subject to the claims resolution process at such stage and
with such steps having been taken as part of that process as
was the situation immediately before the offer was
accepted.
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78 Failure to comply with accepted offer
(1) If the plaintiff, being a party to an accepted offer, fails to comply
with the terms of the offer, the defendant is entitled:
(a) to such judgment or order as is appropriate to give effect to
the terms of the accepted offer, or
(b) to an order that the proceedings be dismissed, and to
judgment accordingly,
as the defendant elects, unless the Tribunal orders otherwise.
(2) If the defendant, being a party to an accepted offer, fails to
comply with the terms of the offer, the plaintiff is entitled:
(a) to such judgment or order as is appropriate to give effect to
the terms of the accepted offer, or
(b) to an order that the defence be struck out, and to judgment
accordingly,
as the plaintiff elects, unless the Tribunal orders otherwise.
(3) If a party to an accepted offer fails to comply with the terms of
the offer, and a defendant in the proceedings has made a
cross-claim that is not the subject of the accepted offer, the
Tribunal:
(a) may make such order or give such judgment under this
clause, and
(b) may make such order as to the further conduct of
proceedings on the cross-claim,
as it thinks fit.
79 Disclosure of offer to Tribunal or arbitrator
(1) No statement of the fact that an offer has been made may be
contained in any pleading or affidavit.
(2) If an offer is not accepted, no communication with respect to the
offer may be made to the Tribunal at the trial or, as the case may
require, to the arbitrator.
(3) Despite subclause (2), an offer may be disclosed to the Tribunal
or, as the case may require, to the arbitrator:
(a) if a notice of offer provides that the offer is not made
without prejudice, or
(b) to the extent necessary to enable the offer to be taken into
account for the purpose of determining an amount of
interest up to judgment, or
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(c) after all questions of liability and relief have been
determined, to the extent necessary to determine questions
as to costs.
80 Offer to contribute
(1) If in any proceedings:
(a) one party (the first party) stands to be held liable to
another party (the second party) to contribute towards any
damages which may be recovered against the second party
in the proceedings, and
(b) the first party, at any time after entering an appearance,
makes an offer to the second party to contribute to a
specified extent to the damages, and
(c) the offer is made without prejudice to the first party's
defence,
the offer must not be brought to the attention of the Tribunal or
any arbitrator until all questions of liability or amount of damages
have been decided.
(2) In subclause (1), damages includes any interest up to judgment
claimed on any damages.
Part 7 Miscellaneous
81 Legal practitioners to provide information about claims
(1) This clause applies to claims settled or determined on or after 1
July 2005.
(2) For the purposes of section 32I of the Act, a legal practitioner
who acts for a party to a claim to which this clause applies that is
settled or determined by judgment must:
(a) within 30 business days after the claim is finalised, provide
to the Registrar the required information concerning the
claim, and
(b) within 30 business days after any appeal in respect of the
claim is finalised, provide to the Registrar any revision of
the required information provided under paragraph (a)
made necessary by changes resulting from the appeal.
(3) The required information is the information required to
complete Form 3 in Schedule 2. The required information and
any revision of the required information must be provided using
that Form.
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(4) A claim is finalised:
(a) when the claim is settled or determined, unless the claim is
settled or determined on the basis that costs are to be
agreed or assessed, or
(b) if the claim is settled or determined on the basis that costs
are to be agreed or assessed--when costs have been agreed
or assessed.
(5) If a party's costs are assessed after the claim is finalised and the
assessment results in the information provided under subclause
(2) by a legal practitioner acting for the party being incorrect, the
legal practitioner must, within 30 business days after the
assessment, provide to the Registrar any necessary revision of the
required information.
82 Costs assessment
The provisions of the Legal Profession Act 1987 and the Legal
Profession Act 2004 are modified in their application to the
assessment of costs in respect of a claim as follows:
(a) a reference to the Manager, Costs Assessment, is to be read
as a reference to the Registrar of the Tribunal,
(b) a reference in sections 208S and 208SA of the Legal
Profession Act 1987 to the Chief Justice of New South
Wales is to be read as a reference to the President of the
Tribunal,
(c) a reference in sections 390 and 391 of the Legal Profession
Act 2004 to the Chief Justice of New South Wales is to be
read as a reference to the President of the Tribunal.
[4] Clause 8A
Insert after clause 8:
8A First directions hearing fee
(1) A first directions hearing fee in relation to any proceedings is
payable:
(a) except as provided by paragraph (b), by the plaintiff, or
(b) if the Tribunal makes any order as to the payment of the
fee, by the parties and in the proportions so ordered.
Note. This fee is recoverable as a disbursement and may be the subject
of an award of costs.
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(2) If a person is acting as agent for a party to any proceedings, the
person and the party are jointly and severally liable for payment
of the first directions hearing fee.
(3) A first directions hearing fee becomes payable:
(a) immediately after a date is allocated for the first directions
hearing in the Tribunal, as referred to in clause 51
(Non-urgent claims to be subject of directions hearing), or
(b) immediately after a date is allocated for the first directions
hearing in the Tribunal for a claim determined to be urgent
by the Tribunal on application by the claimant under
Division 2 of Part 4, or
(c) when the Tribunal or Registrar notifies the parties in
writing of the Tribunal's intention to allocate a date for a
first directions hearing for the proceedings,
whichever occurs first.
(4) A first directions hearing fee is not payable in relation to any
hearing for the purpose of the Tribunal making orders to give
effect to any agreement or arrangement between the parties as to
settlement of the claim.
[5] Schedule 1 Fees
Omit items 1 and 2. Insert instead:
1 Filing an initiating process 294 (in the case of a corporation)
or 147 (in any other case)
2 Filing a cross-claim 294 (in the case of a corporation)
or 147 (in any other case)
2A Filing request for first directions hearing 1,142 (in the case of a corporation)
or 571 (in any other case)
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[6] Schedule 2
Insert after Schedule 1:
Schedule 2 Forms
Form 1 Plaintiff's statement of particulars
(Clause 20)
Instructions for completing this form
You must complete Parts 1 to 4 and 6 to 8 of this form. Part 5 must also be completed unless the
condition in respect of which you are claiming is mesothelioma.
You must create a covering index which lists each Part you have completed.
Where the form indicates that material must be attached to the statement of particulars, you
should number each attachment sequentially and identify the number of that attachment in the
relevant answer. You must also list the attachments in the covering index.
If you do not know the answer to a particular question you should state this in your answer.
You have a continuing obligation to provide information. In the event that you remember additional
facts or information, you should update your answers.
It is not necessary for you to obtain and provide material with this form (such as documentary
evidence and reports) on which you would generally rely in proceedings before the Tribunal,
except where the form indicates that specific material is required to be attached.
By providing comprehensive answers to the questions in this form, the defendant will be able to
make an assessment of the answers provided and can then make a decision as to whether further
material (such as documentary evidence or an expert report) is required to assess the claim.
Where further material is required by a defendant, you should provide that further material as soon
as practicable.
If you already have additional material such as documentary evidence or expert reports then you
may wish to provide that material now, or indicate that you have that material.
Where specific material is required to be attached to this form, but you do not have the material
requested available to you at the time you complete the form you must indicate that you will
forward this material to the defendant/s when it becomes available to you. You must provide an
indication of when you expect this further material to be available.
Your solicitor may complete this form on your behalf, however, you must still swear or affirm the
statutory declaration at the end of this form.
If your claim is made under the Compensation to Relatives Act 1897, you should complete the
Exposure section in respect of the person as a result of whose death you are claiming.
Part 1 Claimant's personal details
Family name:
Given names:
Title:
Date of birth:
Place of birth:
Gender:
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Have you been known by any other name? If so, provide in full the
name(s) by which you were known:
Solicitor:
Solicitor's address:
Solicitor's phone and fax number:
Please complete the details below if you are not represented by a
solicitor:
Home address of claimant:
Postal address (if different to home address):
Home and mobile telephone numbers:
Part 2 Medical evidence
Medical condition
2.1 What asbestos-related condition have you been diagnosed with (your
condition)?
2.2 When was your condition diagnosed?
2.3 What is the name of the medical practitioner who diagnosed your
condition?
2.4 Attach a short report from the medical practitioner who diagnosed your
condition and any medical evidence which relates to your current
condition (including X-rays, pathology reports, ultrasounds etc) on
which you intend to rely and which is currently available to you.
2.5 What disabilities has your condition resulted in?
2.6 What treatments have been prescribed for you and what operations have
you had for your condition? Describe in detail or attach any reports on
which you intend to rely in proceedings that you have obtained to date
which set out this information.
2.7 Do you have any other continuing medical conditions? If so, describe in
detail.
2.8 Do you have any disabilities that have not arisen from your condition?
Treating medical practitioners
2.9 Provide the following details for all medical practitioners or other
health care providers (including all medical experts, surgeons and
rehabilitation providers) who have treated you for your condition:
· Name of practitioner
· Name of practice
· Address
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· Telephone number
· Period of consultation
· Treatment provided
Other medical practitioners or health care providers
2.10 Provide details of all other medical practitioners or health care
providers who have consulted you for any condition in the last five
years:
· Name of provider
· Name of practice
· Occupation
· Address
· Telephone number
· Period of consultation
2.11 Do you authorise the persons against whom you bring this claim to
access your medical records? If so, complete the following authority as
a separate document and attach it to this statement:
Medical authority
I, [Name], authorise any medical practitioner or other health care
professional who has treated or examined me to give [Insert all
defendants' names],
and any other person who is joined as a party to the proceedings
commenced by me,
photocopy access to my medical records to assist in the proof and
settlement of my claim. A photocopy or faxed copy of this authority can
be acted upon as if it were the original.
Signature:
Date:
2.12 Do you authorise a medical practitioner nominated by the defendant to
access your pathological and histopathological material for the purpose
of confirming your diagnosis? If so, complete the following authority as
a separate document and attach it to this statement:
Authority to access pathology results
I, [Name], authorise a pathologist nominated by each defendant and
cross-defendant to the proceedings commenced by me to be given
access to my pathological and histopathological material for the
purpose of confirming my diagnosis.
Signature:
Date:
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Part 3 Summary of work and exposure history
3.1 Complete the following details relating to all employment and work,
including periods where you were self-employed or employed as a
contractor. Include ALL interstate and overseas employment details.
Include additional rows in the Table as required.
Name and address
of employer
(including any Occupation, a brief Exposure
other names by description of to
which the duties and status asbestos
Start End employer may Employer's (eg full time, (Yes or
Date Date have been known) industry part-time, casual) No)
3.2 Complete the following details relating to all non-work related exposure
(including interstate and overseas exposures). Include additional rows
in the Table as required.
Start date End date Brief description of
of of activity you were engaged
exposure exposure Address where in (eg home renovation,
period period exposure occurred washing clothes)
Part 4 Detailed exposure history
Complete an exposure history for each separate period of exposure listed in Part
3 (including work and non-work related exposures).
You must answer all of the general questions. You must also answer the specific
questions relevant to your circumstances.
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4A General questions (To be answered for each exposure period)
4.1 How were you exposed to asbestos?
4.2 What were you doing at the time you were exposed to asbestos?
4.3 What is the address of the premises where exposure occurred, if
different from that specified in Part 3? If the address is unknown, please
describe the premises and their general location.
4.4 Do you know who owned the premises where exposure occurred?
4.5 How often were you exposed to asbestos during the period of exposure
(including the number of occasions and/or the frequency with which
this occurred)?
4.6 Describe the level or intensity of exposure as you perceived it
(including whether you consider the level or intensity was low, medium
or high). Where there are multiple premises you should do this for each
location, unless there is no material difference in the level or intensity
of exposure at the different sites (for example, where as a contractor you
attended multiple sites and the level or intensity of exposure was about
the same at a number of the sites). You should indicate whether the
exposure changed over time and if so, describe how it changed.
4.7 If you have had more than one exposure period, estimate (if you can
reliably do so) as a percentage the proportion that this period of
exposure constitutes of your total exposure?
4.8 What asbestos products were you exposed to, including the product
trade-name if known? If you do not know the trade-name of the product,
describe the product.
4.9 Do you know who was the manufacturer and/or supplier of those
asbestos products?
4.10 Do you know where the products were purchased from?
4.11 If there was more than one product during this period, estimate (if you
can reliably do so) as a percentage the relative exposure to each product.
4.12 Do you recall any identifying features or markings on those asbestos
products?
4B Specific questions--to be completed for each exposure which is
work-related
4.13 Did your exposure result from working directly with asbestos or from
working in the vicinity of others who were working with asbestos?
4.14 What specific activities or duties were you engaged in at the time you
were exposed to asbestos?
4.15 How often did you engage in these duties or activities?
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4.16 If your exposure occurred whilst you were working in the vicinity of
others who were using asbestos, what activities were the others who
were working with asbestos engaged in?
4.17 Were there any persons other than your employer who directed or
controlled the work at those premises such as the owner or occupier of
the premises or a contractor?
4.18 Were you provided with any relevant protective gear? If so, describe the
gear you were provided with.
4.19 Were you required to wear protective gear whilst exposed to asbestos?
4.20 Did you comply with this requirement? If not, why not?
4.21 Did your employer advise you of any safety measures to protect you
from being exposed to asbestos? If so, describe these measures.
4.22 Did the employer or occupier take any precautions to minimise the
generation or dissemination of dust?
4.23 Do you know whether any companies other than your employer:
(a) specified the use of the asbestos products to which you were
exposed?
(b) designed or installed plant or equipment containing the asbestos
to which you were exposed?
4.24 Were you using or working on particular plant or equipment which
contained asbestos when the exposure to asbestos occurred? Please
identify the plant or equipment and state what you were doing?
4.25 Did any products you handled, or the machinery you used, have any
instructions or guidance as to safe usage to avoid exposure to asbestos?
4.26 What was the date of your last exposure to asbestos, if this was not your
last date of employment?
Attach documents you currently hold evidencing your employment with this
employer (eg tax returns, references etc)
4C Specific questions--exposure while self-employed
4.27 If you were engaged as an independent contractor, identify the principal
contractor?
4.28 Do you know who controlled the work which you were undertaking?
4.29 Did you have any insurance, including workers compensation
insurance?
4.30 Did you employ any other people?
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4D Specific questions--secondary exposure as a result of the work of
another member of your family or household
4.31 Were you exposed to asbestos as a result of the work of another member
of your family or household?
4.32 What was the name of the other person?
4.33 What was your relationship with that other person?
In addition to providing the above information, you must complete Part 4A and/or
Part 4B in respect of the member of your family or household through whose work
you were exposed (in addition to completing Part 4A in relation to your own
exposure). In completing these Parts you should construe a reference to you as
a reference to the person who it is alleged was exposed during the course of
employment and/or self-employment. You are only required to provide detailed
information about their exposure if you are able to do so.
Part 5 Smoking history
You do not need to complete this Part of the form if the condition from which you
suffer is mesothelioma.
5.1 Do you currently or did you ever smoke? If so, provide the following
information:
Over what period have you smoked?
What brand(s) of cigarettes or other tobacco products have you
smoked?
Provide the following information for each brand of cigarette or other
tobacco product you have smoked:
· How often have you smoked?
· How many cigarettes or other tobacco products have you
smoked a day?
· Has your smoking pattern changed over time? If so, how?
· Have you sustained any illnesses as a result of smoking?
· Have your illnesses been treated by a medical practitioner? If so,
what is the name of the medical practitioner?
Part 6 Compensation
In completing this Part you should not obtain medical or occupational therapist's
reports to support your answers. The defendant may subsequently indicate that
they require such material to assess your claim. You may also need to obtain
these reports for proceedings in the Tribunal.
6.1 If you are claiming compensation for any of the damages categories
listed below, provide brief particulars of your claim. You may be
requested by the defendant to provide further detailed particulars,
including setting out in detail the facts, circumstances and evidence on
which you intend to rely. The information provided should include the
details listed below each category:
General damages (pain and suffering, loss of expectation of life)
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· Include details on your prognosis
Past economic loss and future loss of earning capacity including:
· Per weekly loss alleged
· Period of time over which the loss has occurred, or will continue
to occur
· The personal expenditure of the plaintiff if the plaintiff had not
been injured (if the claim relates to mesothelioma or lung
cancer)
· Attach any tax returns, wage slips invoices or other
documentation that may be relevant to your claim.
Cost of future medical care
Out of pocket expenses
Personal care costs
· Specify the nature of the care required
· Include details of the provider, including their relationship to
you
· Specify how often the care is to be provided
Damages for services provided to third parties
· Specify the nature of the services provided
· Identify to whom the services are to be provided
· The nature of the recipient's relationship to you
· The nature of the services
· How long you have provided the services
· The frequency with which you have provided these services
Home modifications
6.2 If you are claiming economic loss, are you receiving any Government
benefit? If yes, please specify the benefit and the date on which that
benefit commenced.
6.3 Have you received any compensation from a workers compensation or
other insurer in respect of your condition? If yes, please specify the
benefit paid and the date received.
6.4 Although you are not required at this stage to provide a notice of past
benefits from the Health Insurance Commission, have you requested
such a notice? If you have received this information you should attach
it.
Part 7 Dust Diseases Board claims
7.1 Have you previously or are you currently making a claim in relation to
your condition with the Dust Diseases Board? If so, provide the
following information:
Date of claim
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Was the claim accepted?
If yes, what benefit was awarded?
Part 8 Statutory declaration
I, [Name], of [Address], solemnly declare that the answer to each and
every question on this form and the particulars contained therein or
attached hereto, are true. I make this declaration in accordance with the
Oaths Act 1900, and subject to the punishment by law provided for the
making of any wilfully false statement in any such declaration.
Claimant's signature:
Date:
Declared before me:
Title:
Signature:
Date:
Form 2 Defendant's reply
(Clause 22)
Instructions for completing this form
All defendants must complete Parts 1, 2, 7, 9 and 10 of this form. Part 8 of the form only needs to
be completed where there is more than one defendant.
You must complete and submit the remaining Parts of the form which are relevant to the claim
made against you.
You must create a covering index which lists the Parts of the form which you have completed and
which identifies those Parts of the form which have not been completed.
Where the form indicates that material must be attached to the Reply, you should number each
attachment sequentially and identify the number of that attachment in the relevant answer. You
must also list the attachments in the covering index.
Where you require further information from the claimant in order to answer a particular question,
you must state this in your answer and specify what information you require in order to answer the
question.
You have a continuing obligation to provide information and update your answers as new
information becomes available.
If you answer a question with "Do Not Know" and you are undertaking further investigations you
must clearly indicate this and state when you expect those investigations to be complete. Once
complete you must update your answer and the information in the form as soon as practicable.
You are not required to obtain and provide material (such as expert reports) with this form, except
where the form indicates that specific material is required to be attached.
By providing comprehensive answers to the questions in this form, the plaintiff and other
defendants will be able to make an assessment of the answers provided and will then be able to
make a decision as to whether further material (such as documentary evidence or an expert
report) is required to assess your defence. Where further material is required by a claimant or
other defendant, you must provide that further material as soon as practicable.
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Where this form requires you to summarise the type of evidence on which you intend to rely to
support your position, you must describe that evidence in sufficient detail for the plaintiff and other
defendants to fully understand the basis of your position. A response that refers to material in
general terms which may be obtained through other processes (such as discovery or
interrogatories) is not considered adequate.
The term "evidence" in this form includes statements of witnesses, documents over which you
have custody or control, documents you have obtained from third parties, verified answers to
interrogatories provided in other claims and expert reports.
In some cases the form requires you to attach evidence. Where the form indicates that evidence
must be attached you are only required to provide evidence that is available to you at the time you
complete this form. You are, however, required to provide details of all evidence that you are
aware of or that is reasonably discoverable by you. You should indicate if you intend on obtaining
further evidence (such as an expert report). If so, you should specify when you expect to receive
the further evidence.
If you are the insurer for a person against whom the claim is made you must complete this form
and construe a reference to you as a reference to the insured. If you do not know the answer to
any of the questions because you have been unable to obtain this information specify this and
indicate whether you expect that further information will become available to you, and if so when.
You should update your answer at that time.
Part 1 Defendant details
Name of defendant:
ABN/ACN:
Postal address:
Address for Service:
Email address:
Phone:
Fax:
Name of claimant:
Date of service of the statement of particulars on you:
Were proceedings commenced against you directly by the claimant or
are you a cross-defendant?
Have you made any cross-claims in this matter? If yes, list those
cross-defendants.
Do you need to inspect particular premises or a place where the
exposure is alleged to have occurred in order to respond to the
claimant's claim? If yes, please specify those premises.
Note. Where a request to inspect premises or a place is made, you still must
answer all of the questions in this reply.
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Part 2 Diagnosis of the claimant's injury
2.1 Do you admit that the claimant has the alleged condition?
2.2 Do you accept the medical evidence on the claimant's diagnosis that the
claimant has provided with his or her Statement of Particulars? If you
only accept some of the evidence provided by the claimant, specify
those parts which you accept.
2.3 Do you admit that the alleged condition was caused by exposure to
asbestos?
2.4 Do you admit that the claimant has the disabilities claimed? If you only
admit that the claimant has some of the disabilities claimed please
specify which disabilities you admit the claimant suffers from.
2.5 If you did not answer yes to questions 2.1 to 2.4, do you have any
medical evidence to support your position? Attach the evidence. If you
do not have evidence to support your position but you have arranged for
such evidence to be obtained you should indicate when you expect to
receive this evidence and provide that evidence as soon as it is received.
Part 3 Response to claim relating to employment
To be completed by a defendant who is alleged to have employed the claimant.
Note:
If the claimant alleges that his or her condition was caused by exposure to asbestos which
occurred as a result of contact with another person whom the claimant alleges was
employed by you, you should also complete this Part.
In so doing you should construe a reference to the claimant as a reference to the person
who it is alleged you employed except in relation to questions 3.7 to 3.13 where you
should answer each question with respect to both the claimant and the person you
employed.
3.1 Do you admit that you employed the claimant, as alleged?
G G G
Yes No Do not know
If yes, proceed to question 3.2.
If no, set out the basis on which you do not admit that you employed the
claimant. What evidence do you have and what evidence do you intend
to obtain to contradict the claimant's or other defendant's version of
events? If you know who employed the claimant during the period,
identify that person. Any evidence which you have at present should be
attached to this form.
If you do not know, do you have any evidence to contradict the
claimant's allegation? Any evidence which you have at present should
be attached to this form.
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3.2 Did you occupy or control the premises at which the claimant alleges he
or she was exposed to asbestos?
G G G
Yes No Do not know
If you answered yes to this question you must also complete Part 4 of
this form.
If you do not know or do not admit the allegation, on what basis do you
assert that you do not know or do not admit to the allegation?
Summarise the type of evidence on which you intend to rely to support
your position.
3.3 Do you admit that the time period during which the claimant is alleged
to have been employed by you is correct?
G G G
Yes No Do not know
If yes, proceed to question 3.4.
If no:
(a) do you admit that you employed the claimant in another period
and, if so, what period?
(b) what evidence do you have to support this admission?
If you do not know or do not admit you employed the claimant in any
period, on what basis do you assert that you do not know or do not admit
that you employed the claimant? Do you have any evidence to
contradict the claimant's allegation?
Attach all relevant evidence.
3.4 Do you admit that the claimant was exposed to asbestos in the course of
or arising out of employment by you?
G G G
Yes No Do not know
If yes, proceed to question 3.5.
If no, on what basis do you dispute the claimant's allegation that he or
she was exposed to asbestos arising out of or in the course of
employment by you. Summarise the type of evidence on which you
intend to rely to support your position.
If you do not know, do you have any evidence to contradict the
claimant's allegation? Summarise the type of evidence on which you
intend to rely to support your position.
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3.5 Do you agree with the claimant's description of:
(a) the circumstances in which exposure occurred (including the duties or
activities engaged in by the claimant and the frequency with which
exposure occurred);
G G G
Yes No Do not know
(b) the intensity and duration of exposure;
G G G
Yes No Do not know
(c) the products to which the claimant was exposed?
G G G
Yes No Do not know
If you answered yes to all of the above questions, proceed to question
3.6.
If you answered no to one or more of the above questions, set out the
basis on which you disagree with the claimant's description for each
question to which you answered no. Summarise the type of evidence on
which you intend to rely to support your position.
If you answered that you do not know the answer to one or more of the
above questions, do you have any evidence to contradict the claimant's
allegation? If so, summarise the type of evidence on which you intend
to rely to support your position.
3.6 Do you admit that you knew or ought to have known that exposure to
asbestos gave rise to a risk of personal injury (either of the kind suffered
by the claimant or other personal injury) at the time of the alleged
exposure?
G G
Yes No
If yes, proceed to question 3.7 (although you may provide further
information on your knowledge at the time of the alleged exposure if
you consider this to be relevant).
If no, set out in detail your basis (including the evidence on which you
intend to rely) for not admitting that you had such knowledge, including
references to any decided cases which support your position.
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3.7 Do you admit that you owed a common law duty of care to the claimant
as an employer during the period of alleged exposure?
G G
Yes No
If yes, proceed to question 3.8.
If no, on what basis do you claim that you did not have a duty?
3.8 Regardless of whether or not you admit that you had a duty, did you
discharge the common law duty to the standard of a reasonable person,
for example, by having a safe system of work, by providing instructions
on the safe use and handling of asbestos or by taking reasonable
precautions?
G G G
Yes No Do not know
If yes, set out the basis on which you assert that you discharged your
duty and provide detailed information concerning the steps taken which
you consider discharged the duty of care. Summarise the type of
evidence on which you intend to rely to support your position.
If no, proceed to question 3.9.
If you do not know, do you have any evidence to contradict the
claimant's allegation? If so, summarise the evidence on which you
intend to rely to support your position.
3.9 Do you admit that you owed a statutory duty to the claimant as an
employer or otherwise during the alleged period of exposure?
G G G
Yes No Do not know
Note: A statutory duty may otherwise arise if you:
· employed persons in the premises where the claimant was carrying out
the work that he or she alleges exposed him or her to asbestos;
· the premises at which you were carrying out work were a factory within
the meaning of the Factories and Shops Act 1912 or the Factories, Shops
and Industries Act 1962;
· a person was carrying out building or construction work within the
meaning of the Construction Safety Act 1912;
· the claimant was engaged in building or construction work within the
meaning of the Construction Safety Act 1912.
If yes, proceed to question 3.10.
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If no or do not know, on what basis do you claim that you did not have
a duty?
3.10 Do you admit that you failed to discharge the statutory duty said to
apply to you?
G G G
Yes No Do not know
If yes, proceed to question 3.11.
If no, set out the basis on which you assert that you discharged your duty
and provide detailed information concerning the steps taken which you
consider discharged the duty of care. Summarise the type of evidence
on which you intend to rely to support your position.
If you do not know, do you have any evidence to contradict the
claimant's allegation? If so, summarise the type of evidence on which
you intend to rely to support your position.
3.11 Do you admit that your breach of duty (whether common law or
statutory) is a cause of the alleged asbestos related injury?
G G G
Yes No Do not know
If yes, proceed to question 3.12.
If no, set out the basis of your argument as to why you do not admit the
breach caused the injury. Summarise the type of evidence on which you
intend to rely to support your position.
If you do not know, do you have any evidence to contradict the
claimant's allegation? If so, summarise the type of evidence on which
you intend to rely to support your position.
3.12 Regardless of whether you admit that the claimant has an asbestos
related injury, whether or not you admit that you owed a duty (whether
common law or statutory) or whether or not you admit that you
breached that duty, do you admit that the conduct alleged by the
claimant to have been engaged in by you is a cause of the asbestos
related injury alleged by the claimant?
G G G
Yes No Do not know
If yes, proceed to question 3.13.
If no, set out the basis of your argument as to why you do not admit that
the conduct caused the injury. Summarise the type of evidence on which
you intend to rely to support your position.
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If you do not know, do you have any evidence to contradict the
claimant's allegation? If so, summarise the type of evidence on which
you intend to rely to support your position.
3.13 Do you intend to rely on any other defence which you say defeats the
claimant's claim in whole or in part (such as a limitation defence or that
the risk of injury to the claimant was not foreseeable)?
G G
Yes No
If no, proceed to Part 4.
If yes, provide details of that defence and summarise the type of
evidence on which you intend to reply.
Part 4 Response to claim as an occupier
To be completed by a defendant who is alleged to have occupied premises at which the claimant
was alleged to have been injured
Note:
1 If you answered yes to question 3.2, you must also complete this Part. If you also
employed the claimant, and have completed all of Part 3, you only need to answer
questions 4.14.4, and 4.7 to 4.10.
2 If the claimant alleges that his or her injury was caused by exposure to asbestos
which occurred as a result of contact with another person whom the claimant
alleges was exposed to asbestos at premises occupied or controlled by you, you
should also complete this Part. In completing this Part you should construe a
reference to the claimant as a reference to the person who it is alleged you
employed except in relation to questions 4.7 to 4.12 where you should answer
each question with respect to both the claimant and the person you employed.
4.1 What are the premises to which the claim relates?
4.2 Do you admit that you occupied or controlled the premises at the time
of the alleged exposure?
G G G
Yes No Do not know
If yes, proceed to question 4.3.
If no, what evidence do you have and what evidence do you intend to
obtain to support your position? If you know who occupied the premises
during the period, identify that person. Any evidence which you have at
present should be attached to this form.
If you do not know, do you have any evidence to contradict the
claimant's allegation? Any evidence which you have at present should
be attached to this form.
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4.3 Do you admit that you occupied the premises for the whole of the period
during which exposure is alleged to have occurred?
G G G
Yes No Do not know
If yes, proceed to question 4.4.
If no:
(a) for what period do you admit that you occupied the premises?
(b) what evidence do you have to support this admission?
If you do not know or do not admit you occupied the premises during
any period, on what basis do you assert that you do not know or do not
admit that you employed the claimant? Do you have any evidence to
contradict the claimant's allegation.
Any evidence which you have at present should be attached to this form.
4.4 Do you admit that the claimant was exposed to asbestos at the premises
occupied or controlled by you?
G G G
Yes No Do not know
If yes, proceed to question 4.5.
If no, on what basis do you dispute the allegation that the claimant was
exposed to asbestos at premises controlled or occupied by you?
Summarise the type of evidence on which you intend to rely to support
your position.
If you do not know, do you have any evidence to contradict the
claimant's allegation? Summarise the type of evidence on which you
intend to rely to support your position.
4.5 Do you agree with the claimant's description of:
(a) the circumstances in which exposure occurred (including the duties or
activities engaged in by the claimant and the frequency with which
exposure occurred);
G G G
Yes No Do not know
(b) the intensity and duration of exposure;
G G G
Yes No Do not know
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(c) the products to which the claimant was exposed?
G G G
Yes No Do not know
If you answered yes to all of the above questions, proceed to question
4.6.
If you answered no to one or more of the above questions, set out the
basis on which you disagree with the claimant's description for each
question. Summarise the type of evidence on which you intend to rely
to support your position.
If you answered that you do not know the answer to one or more of the
above questions, do you have any evidence to contradict the claimant's
allegation? Summarise the type of evidence on which you intend to rely
to support your position.
4.6 Do you admit that you knew or ought to have known that exposure to
asbestos gave rise to a risk of personal injury (either of the kind suffered
by the claimant or other person injury) at the time of the alleged
exposure?
G G
Yes No
If yes, proceed to question 4.7 (although you may provide further
information on your knowledge at the time of the alleged exposure if
you consider this to be relevant).
If no, set out in detail your basis (including the evidence on which you
intend to rely) for not admitting that you had such knowledge, including
references to any decided cases which support your position.
4.7 Do you admit that you owed a common law duty of care to the claimant
as an occupier during the period of alleged exposure?
G G
Yes No
If yes, proceed to question 4.8
If no, on what basis do you claim that you did not have a duty?
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4.8 Regardless of whether or not you admit that you had a duty, did you
discharge the common law duty to the standard of a reasonable person,
for example, by providing instructions on the safe use and handling of
asbestos or by taking reasonable precautions?
G G G
Yes No Do not know
If yes, set out the basis on which you assert that you discharged your
duty and provide detailed information concerning the steps taken which
you consider discharged the duty of care. Summarise the type of
evidence on which you intend to rely to support your position.
If no, proceed to question 4.9.
If you do not know, do you have any evidence to contradict the
claimant's allegation? Summarise the type of evidence on which you
intend to rely to support your position.
4.9 Do you admit that you owed a statutory duty to the claimant as an
occupier or otherwise during the alleged period of exposure?
G G G
Yes No Do not know
Note: A statutory duty may otherwise arise if you:
· employed persons in the premises where the claimant was carrying out
the work that he or she alleges exposed him or her to asbestos;
· the premises at which you were carrying out work were a factory within
the meaning of the Factories and Shops Act 1912 or the Factories, Shops
and Industries Act 1962;
· a person was carrying out building or construction work within the
meaning of the Construction Safety Act 1912;
· the claimant was engaged in building or construction work within the
meaning of the Construction Safety Act 1912.
If yes, proceed to question 4.10.
If no or do not know, on what basis do you claim that you did not have
a duty?
4.10 Do you admit that your breach of duty (whether common law or
statutory) is a cause of the alleged asbestos related injury?
G G G
Yes No Do not know
If yes, proceed to question 4.11.
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If no, set out the basis on which you assert that you discharged your duty
and provide detailed information concerning the reasons why you do
not admit the breach of duty caused the injury. Summarise the type of
evidence on which you intend to rely to support your position.
If you do not know, do you have any evidence to contradict the
claimant's allegation? Summarise the type of evidence on which you
intend to rely to support your position.
4.11 Regardless of whether you admit that the claimant has an asbestos
related injury, whether or not you admit that you owed a duty (whether
common law or statutory) or whether or not you admit that you
breached that duty, do you admit that the conduct alleged by the
claimant to have been engaged in by you is a cause of the asbestos
related injury alleged by the claimant?
G G G
Yes No Do not know
If yes, proceed to question 4.12.
If no, set out the basis of your argument as to why you do not admit that
the conduct caused the injury. Summarise the type of evidence on which
you intend to rely to support your position.
If you do not know, do you have any evidence to contradict the
claimant's allegation? Summarise the type of evidence on which you
intend to rely to support your position.
4.12 Do you intend to rely on any other defence which you say defeats the
claimant's claim in whole or in part (such as a limitation defence or that
the risk of injury to the claimant was not foreseeable)?
G G
Yes No
If no, proceed to Part 5.
If yes, provide details of that defence and summarise the type of
evidence on which you intend to rely to support your position.
Part 5 Response to claim as a manufacturer or supplier of asbestos
To be completed by a defendant who is alleged to have manufactured or supplied asbestos which
has injured the claimant. This includes products which are manufactured or supplied as part of
plant or equipment.
Note:
If the claimant alleges that his or her injury was caused by exposure to asbestos which
occurred as a result of contact with another person whom the claimant alleges was
exposed to asbestos manufactured or supplied by you, you should also complete this
Part. In completing this Part you should construe a reference to the claimant as a
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reference to the person who it is alleged was exposed to the product manufactured or
supplied by you.
5.1 What are the asbestos products to which is it alleged that the claimant
was exposed as set out in the claimant's statement of particulars?
5.2 Do you admit that you manufactured or supplied those products at any
time?
G G G
Yes No Do not know
If yes, proceed to question 5.3.
If no, on what basis do you assert that you did not manufacture or supply
those products? If you know who supplied or manufactured those
products, identify that person. Summarise the type of evidence on
which you intend to rely to support your position.
If you do not know, do you have any evidence to contradict the
claimant's allegation? Summarise the type of evidence on which you
intend to rely to support your position.
5.3 Do you admit that the claimant was exposed to products manufactured
or supplied by you in the circumstances alleged by the claimant or
otherwise.
G G G
Yes No Do not know
If yes, proceed to question 5.4.
If no, on what basis do you disagree with the claimant's version of
events? Summarise the type of evidence on which you intend to rely to
support your position.
If you do not know, do you have any evidence to contradict the
claimant's allegation? Summarise the type of evidence on which you
intend to rely to support your position.
5.4 What was the composition of each asbestos product you admit to
manufacturing or supplying, including the type and quantity of
asbestos?
5.5 Do you agree with the description of:
(a) the circumstances in which exposure occurred (including the duties or
activities engaged in by the claimant and the frequency with which
exposure occurred);
G G G
Yes No Do not know
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(b) the intensity or duration of exposure?
G G G
Yes No Do not know
If you answered yes or do not know to both of the above questions,
proceed to question 5.6.
If you answered no to one or both of the above questions, set out the
basis on which you disagree with the claimant's description. Summarise
the type of evidence on which you intend to rely to support your
position.
If you do not know, do you have any evidence to contradict the
claimant's allegation? Summarise the type of evidence on which you
intend to rely to support your position.
5.6 Do you admit in the period alleged that you failed to provide to the
persons who used your products instructions as to the steps to be taken
to handle asbestos in a safe manner or warnings as to the risks
associated with asbestos?
G G
Yes No
If yes, proceed to question 5.7.
If no, set out in detail the instructions or warnings which you say were
provided, including details on how or by what means those instructions
were conveyed to the user of the product. Specify for each relevant
product the date on which you claim that warnings or instructions first
appeared. Summarise the type of evidence on which you intend to rely
to support your position.
5.7 Do you admit that you owed a common law duty of care to the claimant
during the period of alleged exposure?
G G
Yes No
If yes, proceed to question 5.8.
If no, why do you believe that you did not have a duty?
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5.8 Do you admit that you knew or ought to have known that exposure to
asbestos gave rise to a risk of personal injury (either of the kind suffered
by the claimant or other person injury) at the time of the alleged
exposure?
G G
Yes No
If yes, proceed to question 5.9 (although you may provide further
information on your knowledge at the time of the alleged exposure if
you consider this to be relevant).
If no, set out in detail your basis (including the evidence on which you
intend to rely) for not admitting that you had such knowledge, including
references to any decided cases which support your position.
5.9 Do you admit that you failed to discharge your common law duty of
care to the standard of a reasonable person?
G G G
Yes No Do not know
If yes, proceed to question 5.10.
If no, provide a detailed response setting out how you discharged the
duty to the standard of a reasonable person, for example, by providing
instructions on the safe use and handling of asbestos or by providing
warnings. Provide a detailed description of those measures and
summarise the type of evidence on which you intend to rely to support
your position.
If you do not know, do you have any evidence to contradict the
claimant's allegation? Summarise the type of evidence on which you
intend to rely to support your position.
5.10 Do you admit that your breach of duty of care is a cause of the alleged
asbestos related injury?
G G G
Yes No Do not know
If yes, proceed to question 5.11.
If no, provide detailed information concerning the reasons why you do
not admit the breach of duty caused the injury. Summarise the type of
evidence on which you intend to rely to support your position.
If you do not know, do you have any evidence to contradict the
claimant's allegation? Summarise the type of evidence on which you
intend to rely to support your position.
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5.11 Regardless of whether or not you admit that the claimant has an asbestos
related injury, whether or not you admit that you owed a duty of care
and whether or not you admit that you breached any duty of care, do you
admit that the conduct alleged by the claimant to have been engaged in
by you (in particular the manufacture or supply of the products) is a
cause of the asbestos related injury alleged by the claimant?
G G G
Yes No Do not know
If yes, proceed to question 5.12.
If no, provide detailed information concerning the reasons why you do
not admit the conduct caused the injury. Summarise the type of
evidence on which you intend to rely to support your position.
If you do not know, do you have any evidence to contradict the
claimant's allegation? Summarise the type of evidence on which you
intend to rely to support your position.
5.12 Do you intend to rely on any other defence which you say defeats the
claimant's claim in whole or in part (such as a limitation defence or that
the risk of injury to the claimant was not foreseeable)?
G G
Yes No
If no, proceed to Part 7.
If yes, provide details of that defence and summarise the type of
evidence on which you intend to rely to support your position.
Part 6 Response to other claims
This part is to be completed by a defendant who does not fit within the categories in Part 3, 4 or
5. You do not have to complete this Part if you have completed Part 3, 4 or 5.
6.1 Do you admit that the claimant was exposed to asbestos in the manner
alleged by the claimant?
G G G
Yes No Do not know
If yes, proceed to question 6.2.
If no, on what basis do you dispute the claimant's allegation that they
were exposed to asbestos in the manner alleged. Summarise the type of
evidence on which you intend to rely to support your position.
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If you do not know, do you have any evidence to contradict the
claimant's allegation? Summarise the type of evidence on which you
intend to rely to support your position.
6.2 Do you agree with the claimant's description of:
(a) the circumstances in which exposure occurred (including the frequency
with which exposure occurred)?
G G G
Yes No Do not know
(b) the intensity and duration of exposure?
G G G
Yes No Do not know
(c) the products to which the claimant was exposed?
G G G
Yes No Do not know
If you answered yes to all of the above questions, proceed to question
6.3.
If you answered no to one or more of the above questions, set out the
basis on which you disagree with the claimant's description for each
question. Summarise the type of evidence on which you intend to rely
to support your position.
If you answered that you do not know the answer to one or more of the
above questions, do you have any evidence to contradict the claimant's
allegation? Summarise the type of evidence on which you intend to rely
to support your position.
6.3 Do you admit that you knew or ought to have known that exposure to
asbestos gave rise to a risk of personal injury (either of the kind suffered
by the claimant or other person injury) at the time of the alleged
exposure?
G G
Yes No
If yes, proceed to question 6.4 (although you may provide further
information on your knowledge at the time of the alleged exposure if
you consider this to be relevant).
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If no, set out in detail your basis (including the evidence on which you
intend to rely) for not admitting that you had such knowledge, including
references to any decided cases which support your position.
6.4 Do you admit that you owed a duty to the claimant (either common law
or statutory) during the period of alleged exposure?
G G
Yes No
If yes, proceed to question 6.5.
If no, on what basis do you claim that you did not have a duty?
6.5 Regardless of whether or not you admit that you had a duty, did you
discharge the duty?
G G G
Yes No Do not know
If yes, set out the basis on which you assert that you discharged the duty
and provide detailed information concerning the steps taken which you
consider discharged the duty. Summarise the type of evidence on which
you intend to rely to support your position.
If no, proceed to question 6.6.
If you do not know, do you have any evidence to contradict the
claimant's allegation? Summarise the type of evidence on which you
intend to rely to support your position.
6.6 Do you admit that your breach of duty is a cause of the alleged asbestos
related injury?
G G G
Yes No Do not know
If yes, proceed to question 6.7.
If no, set out the basis for your reasons as to why you do not admit the
breach of duty caused the injury. Summarise the type of evidence on
which you intend to rely to support your position.
If you do not know, do you have any evidence to contradict the
claimant's allegation? Summarise the type of evidence on which you
intend to rely to support your position.
6.7 Regardless of whether you admit that the claimant has an asbestos
related injury, whether or not you admit that you owed a duty or whether
or not you admit that you breached that duty, do you admit that the
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conduct alleged by the claimant to have been engaged in by you is a
cause of the asbestos related injury alleged by the claimant?
G G G
Yes No Do not know
If yes, proceed to question 6.8.
If no, set out the basis for your reasons as to why you do not admit that
the conduct caused the injury. Summarise the type of evidence on which
you intend to rely to support your position.
If you do not know, do you have any evidence to contradict the
claimant's allegation? Summarise the type of evidence on which you
intend to rely to support your position.
6.8 Do you intend to rely on any other defence which you say defeats the
claimant's claim in whole or in part (such as a limitation defence or that
the risk of injury to the claimant was not foreseeable)?
G G
Yes No
If no, proceed to Part 7.
If yes, provide details of that defence and summarise the type of
evidence on which you intend to rely to support your position.
Part 7 Insurance
Do you believe that you may be entitled to recover all or part of the
damages from your former or current insurer?
G G G
Yes No Do not know
If yes, specify the insurer, the type of insurance, the period of cover and
whether there is any limit to the cover provided. If you answered that
you do not know you should indicate when you expect to be in a
position to answer this question.
Part 8 Apportionment of liability among defendants
A standard presumption set out in the Table in clause 5 (1) of the Dust Diseases
Tribunal (Standard Presumptions--Apportionment) Order 2005 will be used to
apportion liability among the defendants if the defendants cannot agree on
apportionment.
A standard presumption will be used to assign a share of liability to each defendant
depending on which category it falls into. The standard presumptions vary according to
the period in which the exposure occurred and the category of defendant. The
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Contributions Assessor may vary the standard presumption applying to a claim having
regard to the factors set out in clause 5 (5) and (6) of the Order, but the Contributions
Assessor may not vary the standard presumptions outside of the permitted range.
Answer the following questions.
8.1 Into which category should each defendant be placed?
8.2 How should the standard presumptions be varied to take account of the
level of knowledge which you believe should be assigned to each
Category 2 defendant, (including yourself if relevant)? Set out the basis
for your position.
Note. Please note, the standard presumptions have been prepared on the basis
that Category 1 defendants are presumed to have had actual knowledge of the
risks of asbestos, so it cannot be argued that the presumption should be varied
against a Category 1 defendant on the basis of its level of knowledge.
8.3 What level of knowledge should be attributed to each Category 2
defendant, including yourself, as to the risks of asbestos (either of the
kind suffered by the claimant or other personal injury) at the time of the
alleged exposure? Set out the basis for your position, including
references to any cases on which you intend to rely to support your
position.
8.4 If other findings have been made in relation to your knowledge of the
risks of asbestos at the time of the alleged exposure, provide details of
those cases. Do you intend to rely on or dispute those findings? If you
intend to dispute those findings, on what basis?
8.5 Should the standard presumptions be varied on the basis of the identity,
capacity, size or state of sophistication of a particular defendant
(including yourself), including the industry, and nature of the industry
in which the defendant was engaged? Set out the basis for your position.
8.6 Should the standard presumptions be varied on the basis of the number
of defendants identified in each category as being at fault in connection
with the claim? Set out the basis for your position.
8.7 Should the standard presumptions be varied having regard to the steps
which a particular defendant (including yourself) took, ought to have
taken and/or was capable of taking to minimise the risk of harm? Set out
the basis for your position.
8.8 Should the standard presumptions be varied for any other reason? Set
out the basis for your position.
8.9 If there are more than two defendants in any one category, are there any
particular factors relating to the blameworthiness of those defendants
which would justify sharing the apportioned liability between those
defendants other than on an equal basis? Set out the basis of your
position.
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Part 9 Compensation
To be completed by all defendants, including cross-defendants
Provide a detailed response to each question indicating whether you agree with the
claimant's assessment of damages. If you disagree with the claimant's assessment,
you must specify the facts and circumstances on which you rely on to establish your
position.
9.1 Are there any other conditions or injuries which you believe contributed
to the claimant's damage?
G G
Yes No
If yes, specify the other conditions or injuries.
9.2 Set out the facts and circumstances on which you say the level of
general damages should be calculated and the amount which should be
awarded. Your response should indicate the extent to which you say
other conditions or injuries contribute to the claimant's pain and
suffering and loss of enjoyment of life, whether you dispute the
claimant's evidence as to prognosis and details of any previous awards
of the Tribunal which you think are relevant. Summarise the type of
evidence on which you intend to rely to support your position.
9.3 Do you agree with the claimant's assessment of:
(a) the alleged per weekly loss;
(b) the period of time over which such loss is alleged to occur;
(c) the assessment of the personal expenditure of the claimant?
G G G
Yes No Not applicable
If yes, proceed to question 9.4.
If no, set out the basis on which you dispute each of the matters set out
above. Summarise the type of evidence on which you intend to rely to
support your position.
9.4 Do you agree with the claimant's assessment of the cost of future
medical care?
G G G
Yes No Not applicable
If yes, proceed to question 9.5.
If no, set out the basis on which you say future medical care should be
assessed. Summarise the type of evidence on which you intend to rely
to support your position.
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9.5 Do you agree with the claimant's assessment of out of pocket expenses?
G G G
Yes No Not applicable
If yes, proceed to question 9.6.
If no, set out the basis on which you say out of pocket expenses should
be assessed. Summarise the type of evidence on which you intend to
rely to support your position.
9.6 Do you agree with the claimant's assessment of personal care costs,
both past and future?
G G G
Yes No Not applicable
If yes, proceed to question 9.7.
If no, set out the basis on which you say personal care costs should be
assessed, with particular attention to the nature and level of care
required and the cost of that care. Summarise the type of evidence on
which you intend to rely to support your position.
9.7 Do you agree with the claimant's assessment of the cost of services
provided to third parties?
G G G
Yes No Not applicable
If yes, proceed to question 9.8.
If no, set out the basis on which you say the cost of services provided to
third parties should be assessed, with particular attention to the nature
of the services and the claimant's circumstances. Summarise the type of
evidence on which you intend to rely to support your position.
9.8 Do you agree with the claimant's assessment of the cost of home
modifications?
G G G
Yes No Not applicable
If yes, proceed to Part 10.
If no, set out the basis on which you say the cost of home modifications
should be assessed. Set out the evidence on which you intend to rely to
support your position.
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Part 10 Certification
The form must be completed by the defendant's claims manager or a solicitor
acting for the defendant.
I, [name], [position], [company/solicitor's firm], certify that I
reasonably believe on the basis of provable facts and a reasonably
arguable view of the law that the defence set out in this reply has
reasonable prospects of success if the matter were to be litigated before
the Tribunal.
Claims manager's or defendant's solicitor's signature:
Date:
Title:
Date:
Form 3 Claims information
(Clause 81)
Information concerning claims
Claim details
Proceedings number
Name of claimant
Name of each defendant
Name of each cross-defendant
If you are a solicitor, party for which you
acted
If you are a solicitor, name of your firm
and solicitor on the record
G
Nature of claimant's injury Mesothelioma
G Asbestosis
G Asbestos related cancer
G Asbestos related pleural diseases
Compensation awarded or agreed
G Settled
Was the claim settled or determined by
the Tribunal? G Judgment
(Tick the appropriate box)
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If the claim was settled, state the amount Total amount (including costs):
for which the claim was settled (including Costs (if separately agreed or assessed):
the amount of any costs included in the
statement or assessed separately)
If the claim was not settled, state the Total amount (including costs):
quantum of damages awarded at Costs (if separately agreed or assessed):
judgment (including the amount of any
costs agreed or assessed)
Have you previously been awarded
provisional damages for an asbestos
related injury
Legal costs and disbursements
Total solicitor/client costs (including
amounts recovered from the
defendants)--excluding disbursements
Counsel's fees
Cost of expert reports obtained (identify
the nature of the report and the cost of
each report)
Other disbursements
Costs recovered
Specify the amount of legal costs
recovered. List the amount recovered
from each other party separately and
identify that party.
Specify the amount of disbursements
recovered. List the amount recovered
from each other party separately and
identify that party.
Were costs recovered on an indemnity
basis? List the amount recovered from
each other party separately and identify
that party.
If costs were recovered on an indemnity
basis, describe the circumstances in which
this order was made
If a defendant, the amount paid to a single
claims manager (whether another
defendant or an independent claims
manager)
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Single claims manager (to be completed by those acting as a single claims
manager only)
Operational costs--excluding
disbursements
External legal costs--excluding
disbursements
Counsel's fees
Cost of expert reports obtained (identify
the nature of the report and the cost of
each report)
Other disbursements
Signature:
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Dust Diseases Tribunal Amendment (Claims Resolution) Bill 2005
Amendment of Civil Procedure Act 2005 Schedule 3
Schedule 3 Amendment of Civil Procedure Act 2005
(Section 5)
[1] Schedule 5 Amendments
Omit Schedule 5.15 [1] and [5].
[2] Schedule 7 Uniform Civil Procedure Rules 2005
Insert ", the Dust Diseases Tribunal" after "Supreme Court" in rule 6.2 (4) (a).
[3] Schedule 7
Omit "or the District Court" from rule 10.20 (2) (a).
Insert instead ", the District Court or the Dust Diseases Tribunal".
[4] Schedule 7
Omit "Part 6, Division 5" from Column 3 of the matter relating to the Dust
Diseases Tribunal in Schedule 1 (Application of rules).
[5] Schedule 7
Insert in Column 4 of the matter relating to the Dust Diseases Tribunal in
Schedule 1:
Part 21
Part 22
[6] Schedule 7
Insert at the end of Schedule 2 (Local rules that prevail over these rules):
Dust Diseases Tribunal Rules
Rules
All rules
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Dust Diseases Tribunal Amendment (Claims Resolution) Bill 2005
Schedule 4 Amendment of Dust Diseases Tribunal Rules
Schedule 4 Amendment of Dust Diseases Tribunal
Rules
(Section 6)
[1] Rule 2
Omit the rule. Insert instead:
2 Application of Supreme Court Rules
If these Rules provide that specified provisions of the rules of
court of the Supreme Court apply to proceedings before the
Tribunal and to matters in respect of which the Tribunal has
jurisdiction, those provisions so apply:
(a) in the same way as they apply in proceedings before the
Supreme Court and to matters in respect of which that
Court has jurisdiction, and
(b) with necessary modifications and to the extent that they are
not inconsistent with the Dust Diseases Tribunal Act 1989.
[2] Rule 4
Insert after rule 3:
4 Interrogatories
Part 24 (except rule 1 (3) of that Part) of the Supreme Court
Rules 1970 applies to proceedings before the Tribunal and to
matters in respect of which the Tribunal has jurisdiction.
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