Part 3Jurisdiction of, and
proceedings before, the Tribunal
10Jurisdiction and functions of
the Tribunal
(1)
The Tribunal has, except as provided by sections
29 and 32, exclusive jurisdiction to hear and determine proceedings referred
to in sections 11 and 12.
(2)
The Tribunal has such other jurisdiction as may
be conferred on it by or under any other Act.
(3)
The Tribunal has, wherever sitting, jurisdiction
throughout New South Wales.
(4)
In any proceedings brought under section 11 or
transferred under section 12, the Tribunal has the same power to make
decisions as the Supreme Court would, but for this section, have had in
relation to similar proceedings brought in the Supreme
Court.
(5)
Subject to sections 13 (6) and 14, a decision of
the Tribunal has the same effect as, and may be enforced in the same way as, a
decision of the Supreme Court.
(6)
The following matters are declared to be excluded
matters for the purposes of section 5F of the Corporations Act
2001 of the Commonwealth in relation to the provisions of
sections 471B and 500 (2) of that Act:
(a)
proceedings under section 11 of this
Act,
(b)
proceedings transferred under section 12 of this
Act,
being proceedings that, but for this subsection, could
not be commenced or proceeded with without the leave of the Court referred to
in section 471B or 500 (2) of the Corporations Act
2001 of the Commonwealth.
Note—
In the absence of this subsection, sections 471B
and 500 (2) of the Corporations Act 2001 of the
Commonwealth would require the leave of the Federal Court or the Supreme Court
to commence or proceed with proceedings under this Act against certain
companies that are being externally administered. This section ensures that
section 5F of that Act will operate to ensure that those sections will not
require the leave of the Court directing the external administration before
proceedings can be commenced or proceeded with in the
Tribunal.
(7)
Proceedings to which subsection (6) refers are
declared to be an applied Corporations legislation matter for the purposes of
Part 3 of the Corporations (Ancillary Provisions)
Act 2001 in relation to sections 471B and 500 (2) of the
Corporations Act 2001 of the
Commonwealth as if a reference in those sections to the Court were a reference
to the Tribunal.
Note—
Part 3 of the Corporations
(Ancillary Provisions) Act 2001 provides for the
application of provisions of the Corporations Act
2001 and Part 3 of the Australian Securities and Investments
Commission Act 2001 of the Commonwealth as laws of the
State in respect of any matter declared by a law of the State (whether with or
without modification) to be an applied Corporations legislation matter for the
purposes of that Part in relation to those Commonwealth provisions. Section 14
(2) of the Corporations (Ancillary Provisions)
Act 2001 ensures that a declaration made for the purposes
of Part 3 of that Act only operates to apply a provision of the Corporations
legislation to a matter as a law of the State if that provision does not
already apply to the matter as a law of the Commonwealth. If a provision
referred to in a declaration already applies as a law of the Commonwealth,
nothing in the declaration will affect its continued operation as a law of the
Commonwealth.
s 10: Am 2001 No 34,
Sch 2.11 [2]; 2001 No 112, Sch 2.15.
11Claims for damages for dust
diseases etc to be brought under this Act
(1)
If:
(a)
a person is suffering, or has suffered, from a
dust-related condition or a person who has died was, immediately before death,
suffering from a dust-related condition, and
(b)
it is alleged that the dust-related condition was
attributable or partly attributable to a breach of a duty owed to the person
by another person, and
(c)
the person who is or was suffering from the
dust-related condition or a person claiming through that person would, but for
this Act, have been entitled to bring an action for the recovery of damages in
respect of that dust-related condition or death,
proceedings for damages in respect of that dust-related
condition or death may be brought before the Tribunal and may not be brought
or entertained before any other court or tribunal.
(2)
In subsection (1), a reference to a duty includes
a reference to a duty imposed by statute as well as a duty imposed under the
common law.
(3)
If the cause of action giving rise to proceedings
to be brought under subsection (1) also gives rise to a claim in respect of
some other matter, the claim may be included in those proceedings even though
it does not relate to a dust-related condition from which a person is
suffering or has suffered.
(4)
Any matter that is ancillary or related to a
matter that is the subject of proceedings to be brought under subsection (1)
may also be included in those proceedings.
(5)
In subsection (1) (c), the reference to a person
claiming through a person who is or was suffering from a dust-related
condition includes a reference to a relative for whose benefit an action may
be brought under the Compensation to Relatives Act
1897.
s 11: Am 1989 No 226,
Sch 1.
11AAward of provisional
damages
(1)
This section applies to proceedings of the kind
referred to in section 11 (1) that are brought after the commencement of this
section and in which there is proved or admitted to be a chance that at some
definite or indefinite time in the future the person who is suffering from the
dust-related condition in respect of which the proceedings are brought
(the
injured person) will, as a result or partly as a result of
the breach of duty giving rise to the cause of action, develop another
dust-related condition.
(2)
The Tribunal may, in accordance with the
rules:
(a)
award damages assessed on the assumption that the
injured person will not develop another dust-related condition,
and
(b)
award further damages at a future date if the
injured person does develop another dust-related
condition.
s 11A: Ins 1995 No
21, Sch 4 (2).
12Transfer of proceedings from
the Supreme Court or District Court to the Tribunal
(1)
If:
(a)
on the commencement of this section, proceedings
of the kind referred to in section 11 (1) are pending in the Supreme Court and
the hearing of those proceedings has not begun, or
(b)
after that commencement, proceedings of that kind
are brought or are pending in the Supreme Court,
the registrar of the division of that Court in which the
proceedings are pending or are brought must transfer the proceedings to the
Tribunal, together with any ancillary or related
matters.
(2)
If:
(a)
on the commencement of this section, proceedings
of the kind referred to in section 11 (1) are pending in the District Court
and the hearing of those proceedings has not begun, or
(b)
after that commencement, proceedings of that kind
are brought or are pending in the District Court,
the registrar of that Court for the place where the
proceedings are pending or are brought must transfer the proceedings to the
Tribunal, together with any ancillary or related
matters.
12ANo limitation
period
(1)
The purpose of this section is to enable
proceedings to be brought before the Tribunal in relation to dust-related
conditions at any time.
(2)
Nothing in the Limitation Act
1969 or any other statute of limitations operates to
prevent the bringing or maintenance of proceedings before the Tribunal in
relation to dust-related conditions.
(3)
Without limiting subsection (2):
(a)
sections 14, 18A, 60C and 60G of, and Schedule 5
to, the Limitation Act
1969 do not prevent the bringing or maintenance of any
such proceedings before the Tribunal, and
(b)
any such proceedings may be brought or maintained
before the Tribunal even though a limitation period has already expired under
that Act, and
(c)
any such proceedings may be brought or maintained
before the Tribunal as if Division 1 of Part 4 of that Act had never been in
force.
s 12A: Ins 1998 No
130, Sch 1 [3].
12BDamages for non-economic loss
after death of plaintiff
(1)
The purpose of this section is to enable the
estate of a person whose death has been caused by a dust-related condition to
recover damages for the person’s pain or suffering, or for any bodily or
mental harm suffered by the person, or for curtailment of the person’s
expectation of life, provided proceedings commenced by the person were pending
before the Tribunal at the person’s death.
(2)
Section 2 (2) (d) of the Law
Reform (Miscellaneous Provisions) Act 1944 does not apply
in relation to proceedings commenced by a person before his or her death and
pending before the Tribunal at his or her death, where the cause of action is
for damages in respect of a dust-related condition.
s 12B: Ins 1998 No
130, Sch 1 [4].
12CEffect of settlement on
proceedings by or against joint and several tortfeasors
(1)
For the avoidance of doubt, settlement with one
or more joint tortfeasors in or in relation to proceedings before the Tribunal
and who are liable in respect of damage as a result of a dust-related
condition is not a bar to recovery against one or more other joint tortfeasors
(whether or not they are defendants in the proceedings), unless the terms of
the settlement otherwise provide.
(2)
A tortfeasor who settles proceedings before the
Tribunal that are brought against the tortfeasor by a plaintiff in respect of
damage as a result of a dust-related condition is not precluded from
recovering contribution in respect of that same damage under section 5 (1) (c)
of the Law Reform (Miscellaneous Provisions)
Act 1946 from any other tortfeasor (whether a joint
tortfeasor or otherwise) who is not a party to the settlement only because a
judgment giving effect to that settlement has been entered in favour of the
plaintiff without the Tribunal having considered the merits of the
case.
(3)
This section does not affect the operation or
interpretation of section 5 (1) (a) of the Law Reform
(Miscellaneous Provisions) Act 1946.
s 12C: Ins 1998 No
130, Sch 1 [5].
12DDamages for non-economic loss
not to be reduced by certain compensation payments
(1)
This section applies to proceedings before the
Tribunal (including proceedings on an appeal from the Tribunal) for damages in
relation to dust-related conditions.
(2)
In determining damages for non-economic loss in
any such proceedings, no deduction is to be made for any amount of
compensation already paid or payable, or payable in the future, under the
Workers’ Compensation (Dust Diseases) Act
1942.
(3)
In this section:
damages
for non-economic loss means damages or compensation for the
following:
(a)
pain and suffering,
(b)
loss of amenities of life,
(c)
loss of expectation of life,
(d)
disfigurement,
(e)
the need for services of a domestic nature or
services relating to nursing and attendance which have been or are to be
provided to a person by another person, and for which the first person has not
paid and is not liable to pay any fee or charge.
s 12D: Ins 1998 No
130, Sch 1 [6].
13Proceedings before the
Tribunal
(1)
The Tribunal must hold its proceedings in open
court, except to the extent that the rules provide
otherwise.
(2)
The President is to fix the times and places for
the holding of proceedings before the Tribunal and is to nominate the member
before whom proceedings are to be held.
(3)
The Tribunal may adjourn its proceedings to any
time or place.
(4)
If proceedings before the Tribunal have been
brought by two or more persons and those proceedings arise out of the same
cause of action, the Tribunal may hear and determine those proceedings
together if of the opinion that none of those persons’ cases would be
prejudiced.
(5)
A decision of the Tribunal is not liable:
(a)
to be vitiated because of any informality or want
of form, or
(b)
to be questioned or appealed against in any
court,
except as provided by section 32 of this Act or section
48 of the Supreme Court Act
1970.
(6)
Whenever appropriate, the Tribunal may reconsider
any matter that it has previously dealt with, or rescind or amend any decision
that the Tribunal has previously made.
(7)
If the President is of the opinion that the
balance of cost and convenience in the proceedings so requires, the President
may direct that the hearing of the proceedings, or any part of the
proceedings, take place outside New South Wales.
s 13: Am 1995 No 21,
Sch 4 (9) (20); 1998 No 130, Sch 1 [2].
14Judgments and orders for
payment of money
(1)
If a judgment or order of the Tribunal is for
payment of an amount of money (including a sum awarded as costs) the judgment
or order shall, on the filing of the prescribed documents in the registry of
the Common Law Division of the Supreme Court, be taken to be a judgment of
that Court for the payment of that amount of money in accordance with the
judgment or order of the Tribunal.
(2)
For the purposes of subsection (1), the
prescribed documents are:
(a)
a copy of the judgment or order of the Tribunal
certified by the registrar to be a true copy, and
(b)
an affidavit by the person to whom the amount of
money was adjudged or ordered to be paid specifying the amount unpaid under
the judgment or order and, where the judgment or order is to take effect on a
default, as to the making of the default.
(3)
No fee is payable for the filing of documents
under subsection (1).
(4)
Subsection (3) applies irrespective of the
provisions of any other Act to the contrary.
15Tribunal may order the payment
of interest before damages become payable
(1)
In any proceedings before the Tribunal, the
Tribunal may order that there be included in any award of damages or of any
other sum that it has adjudged or ordered to be paid interest at such rate as
it thinks appropriate on the whole or any part of that award for the whole or
any part of the period from the date when the cause of action arose until the
date when the damages or sum became payable.
(2)
Subsection (1) does not:
(a)
authorise the giving of interest on interest,
or
(b)
apply in relation to a debt on which interest is
payable as of right, whether by virtue of an agreement or
otherwise.
16Interest normally payable in
respect of unpaid damages
(1)
Unless the Tribunal in any particular case orders
that interest should not be paid, and subject to subsection (3), interest is
payable on so much of an award of damages or of any other sum which the
Tribunal has adjudged or ordered to be paid as remains from time to time
unpaid.
(2)
Interest payable under subsection (1) in respect
of an award of damages or of any other sum:
(a)
must be calculated as from the date when the
award was made or from such later date as the Tribunal in any particular case
decides, and
(b)
must be calculated at the rate prescribed for the
purposes of section 95 (1) of the Supreme Court Act
1970, and
(c)
forms part of the award, but not so as to require
the payment of interest on interest.
(3)
If:
(a)
the amount of an award of damages or of any other
sum which the Tribunal has ordered to be paid (excluding the amount of costs
to be ascertained by taxation or otherwise) is paid in full within 28 days
after the award becomes payable, or
(b)
the amount of costs ascertained by taxation or
otherwise is paid in full within 28 days after that amount is so
ascertained,
interest is not, unless the Tribunal otherwise orders in
any particular case, payable on the amount so paid.
17Parties to proceedings before
the Tribunal
(1)
If a party to proceedings before the Tribunal has
a right to proceed against two or more persons who may be jointly
liable:
(a)
it is sufficient if at least one of those persons
is served with process in the proceedings, and
(b)
a decision in the proceedings may be given and
enforced against the person or persons found to be
liable.
(2)
Subsection (1) is subject to the
rules.
(3)
Section 97 of the Supreme Court Act
1970 applies to a decision given in proceedings before the
Tribunal in the same way as it applies to a judgment given in proceedings
before the Supreme Court.
(4)
An executor, administrator, trustee or other
legal personal representative may bring or defend proceedings before the
Tribunal in the same manner as if he or she were bringing or defending
proceedings in his or her own right.
(5)
If, before the holding of particular proceedings
before the Tribunal or at any stage during the holding of any proceedings, the
Tribunal is of the opinion that a person ought to be joined as a party to the
proceedings, the Tribunal may, by notice in writing served on the person or by
oral direction given during the proceedings, join the person as a party to the
proceedings.
18
s 18: Rep 1995 No 21,
Sch 4 (4).
19Right of appearance and
representation before the Tribunal
(1)
A party to proceedings before the
Tribunal:
(a)
may appear in the proceedings personally or by a
barrister or solicitor, and
(b)
may not, except by leave of the Tribunal, be
represented in the proceedings otherwise than by a barrister or
solicitor.
(2)
Only a barrister or solicitor is entitled to
demand or receive a fee or reward for representing a party in proceedings
before the Tribunal.
20Subpoenas and examination of
witnesses
(1)
If the Tribunal so directs or a party to
proceedings before the Tribunal so requests, the registrar must issue a
subpoena requiring a specified person to do either or both of the
following:
(a)
to attend and give evidence before the Tribunal
at a time and place specified in the subpoena,
(b)
to produce to the Tribunal, or to attend before
the Tribunal and produce, any document or thing in the person’s custody
or under the person’s control that the person is required by the
subpoena to produce.
(2)
If:
(a)
in accordance with this section, a person is
required by a subpoena to produce a document, and
(b)
the document is not in writing, or is not written
in the English language, or is not decipherable on
sight,
the subpoena shall be taken to require the person to
produce, in addition to the document if it is in writing, or instead of the
document if it is not in writing, a statement, written in the English language
and decipherable on sight, containing the whole of the information in the
document.
(3)
The Tribunal may administer an oath to any person
appearing as a witness before the Tribunal, whether or not a subpoena has been
issued to the witness under subsection (1), and allow the witness to be
examined and cross-examined on oath.
(4)
A witness attending or appearing before the
Tribunal has the same protection and, without affecting any penalty that may
be imposed under this Act, is subject to the same liabilities, as a witness
would have or be subject to in proceedings before the Supreme
Court.
(5)
A witness attending before the Tribunal in
accordance with a subpoena issued under subsection (1) is entitled to be paid
such fees and allowances as are prescribed by, or calculated in accordance
with, the rules.
(6)
If a subpoena is issued under subsection (1) at
the request of a party, the person specified in the subpoena is not required
to comply with the subpoena unless, not later than a reasonable time before
the day on which the subpoena is to be complied with, that person is tendered
an amount, prescribed by, or calculated in accordance with, the rules, to meet
the expense of complying with the requirements of the
subpoena.
21Person issued with a subpoena
may be apprehended
(1)
If a person served with a subpoena issued under
section 20 (1) to attend before, or to produce a document to, the Tribunal
fails to comply with the subpoena, the Tribunal may, on proof of the service
of the subpoena, issue to such person as the Tribunal appoints a warrant for
the apprehension of that person.
(2)
A warrant issued under this section
authorises:
(a)
the apprehension of the person to whom the
warrant relates, and
(b)
the bringing of that person before the Tribunal,
and
(c)
the detention of that person in custody until he
or she is released by order of the Tribunal or the Supreme
Court.
(3)
The apprehension of a person under this section
does not relieve the person from any liability incurred as a result of
non-compliance with a subpoena to attend before, or to produce a document or
thing to, the Tribunal.
22Inspection and retention of
records
(1)
The Tribunal:
(a)
may inspect any document or statement produced
before it and retain it for such period as it thinks necessary for the
purposes of the proceedings in relation to which it was produced,
and
(b)
may make copies of the document or statement or
any part of the document or statement.
(2)
If a document or statement is produced before,
and retained by, the Tribunal, the person otherwise entitled to possession of
the document or statement is, on request, entitled to be supplied, as soon as
practicable, with a copy of the document or statement certified by the
registrar to be a true copy.
(3)
A document or statement so certified is
admissible as evidence in all courts as if it were the original document or
statement.
(4)
If, in accordance with subsection (2), a person
is entitled to be supplied with a copy of a document or statement, the person,
or a person authorised by the person, may, at such times and places as the
registrar directs, inspect and make copies of, or take extracts from, the
document or statement.
23Informal proof and
admissions
(1)
The Tribunal, at any stage of any proceedings
before it:
(a)
may dispense:
(i)
with the rules of evidence for proving any matter
which is not genuinely in dispute, and
(ii)
with such rules as might cause expense and delay
arising from any commission to take evidence or arising from any other
circumstance, and
(b)
may require any party to the proceedings (not
being a minor or person of unsound mind) to make admissions with respect to
any document or to any question of fact, and
(c)
in the case of a refusal or neglect to make those
admissions, may, unless the Tribunal is of the opinion that the refusal or
neglect is reasonable, order that party to pay the costs of proof resulting
from the refusal or neglect.
(2)
Without limiting subsection (1) (a), the Tribunal
may dispense with proof of handwriting, documents or the identity of parties,
or proof of authority.
(3)
An admission made as required by the Tribunal
under subsection (1) (b):
(a)
is for the purpose of the proceedings in which it
is made and for no other purpose, and
(b)
is subject to all just exceptions,
and
(c)
may, with the leave of the Tribunal, be amended
or withdrawn.
(4)
The Tribunal may give leave for the purposes of
subsection (3) (c) on terms.
24Examination de bene
esse
(1)
The Tribunal may, on the application of a party
to proceedings before it, authorise:
(a)
any judge, counsel, attorney, commissioner for
taking affidavits or justice of the peace, whether of New South Wales or
elsewhere, or
(b)
any British Consular Officer or Australian
Consular Officer in any place out of New South
Wales,
to take at some convenient place the examination of a
witness de bene esse, if the witness:
(c)
is absent from New South Wales,
or
(d)
is expected to die or to be unable from sickness
or infirmity to attend at the hearing of the
proceedings.
(2)
In subsection (1), the expressions
“Australian Consular Officer” and “British Consular
Officer” have the same meanings as they have in section 26 of the
Oaths Act 1900.
25Evidence in proceedings before
the Tribunal
(1)
Any evidence that would be admissible in
proceedings in the Supreme Court is admissible in proceedings before the
Tribunal.
(2)
Except as otherwise provided by this Part or the
rules, evidence is not admissible in proceedings before the Tribunal if it
would not be admissible in those proceedings by virtue of subsection
(1).
(3)
Historical evidence and general medical evidence
concerning dust exposure and dust diseases which has been admitted in any
proceedings before the Tribunal may, with the leave of the Tribunal, be
received as evidence in any other proceedings before the Tribunal, whether or
not the proceedings are between the same parties.
s 25: Am 1995 No 21,
Sch 4 (19).
25AMaterial already
obtained
(1)
Material obtained for the purposes of proceedings
before the Tribunal by discovery or interrogatories may:
(a)
with the leave of the Tribunal,
and
(b)
with the consent of:
(i)
subject to subparagraph (ii), the party who
originally obtained the material or the party’s solicitors,
or
(ii)
another person prescribed by the
rules,
be used in other proceedings before the Tribunal,
whether or not the proceedings are between the same
parties.
(2)
The rules may provide that subsection (1) does
not apply in specified kinds of proceedings or in specified
circumstances.
s 25A: Ins 1998 No
130, Sch 1 [7].
25BGeneral issues already
determined
(1)
Issues of a general nature determined in
proceedings before the Tribunal (including proceedings on an appeal from the
Tribunal) may not be relitigated or reargued in other proceedings before the
Tribunal without the leave of the Tribunal, whether or not the proceedings are
between the same parties.
(2)
In deciding whether to grant leave for the
purposes of subsection (1), the Tribunal is to have regard to:
(a)
the availability of new evidence (whether or not
previously available), and
(b)
the manner in which the other proceedings
referred to in that subsection were conducted, and
(c)
such other matters as the Tribunal considers to
be relevant.
(3)
The rules may provide that subsection (1) does
not apply in specified kinds of proceedings or in specified circumstances or
(without limitation) in relation to specified kinds of
issues.
(4)
This section does not affect any other law
relating to matters of which judicial notice can be taken or about which proof
is not required.
s 25B: Ins 1998 No
130, Sch 1 [8].
26Contempt of the
Tribunal
In respect of proceedings before the Tribunal,
the Tribunal has the same powers for punishing contempt of the Tribunal as are
conferred on a Judge of the Supreme Court for punishing contempt of a division
of the Supreme Court.
27Dismissal of frivolous etc
proceedings
(1)
If, at any stage of proceedings before the
Tribunal, the Tribunal is satisfied:
(a)
that the proceedings are frivolous, vexatious,
misconceived or lacking in substance, or
(b)
that for any other reason the proceedings should
not be entertained,
it may dismiss the proceedings.
(2)
If the Tribunal dismisses the proceedings as
provided by subsection (1), it may order the person who brought the
proceedings to pay the costs of the proceedings.
28
s 28: Rep 1995 No 21,
Sch 4 (5).
29Tribunal may award
costs
(1)
The Tribunal may, in any proceedings before it,
make such order as to the payment of costs as it thinks just and may assess
the amount of those costs.
(2)
Costs included in an order or assessment under
subsection (1) must not, where provision is made for similar costs in the
scales applicable to proceedings in the Common Law Division of the Supreme
Court, exceed the costs provided for in the highest of those scales, except
with the approval of the Tribunal or the officer responsible for taxing those
costs.
(3)
The registrar of the Common Law Division of the
Supreme Court is the officer responsible for taxing costs included in an order
or assessment made under subsection (1).
30Service of
documents
Service of a document for the purposes of or in
relation to proceedings before the Tribunal may be effected by delivering a
copy of the document to the person on whom the document is to be served or in
such manner as may be prescribed by the rules.
31Tribunal may give procedural
directions in certain cases
If the manner or form of procedure for taking any
step in proceedings before the Tribunal is not prescribed by this Act or by
the rules:
(a)
the Tribunal may direct what manner or form of
procedure is to be followed, and
(b)
any step taken in accordance with a direction so
given shall, for the purposes of the proceedings, be regarded as having been
taken lawfully.
32Appeal to Supreme
Court
(1)
A party who is dissatisfied with a decision of
the Tribunal in point of law or on a question as to the admission or rejection
of evidence may appeal to the Supreme Court.
(2)
The Supreme Court may, on the hearing of any
appeal under this section, remit the matter to the Tribunal for determination
by the Tribunal in accordance with any decision of the Supreme Court and may
make such other order in relation to the appeal as the Supreme Court sees
fit.
(3)
A decision of the Supreme Court on an appeal
under this section is binding on the Tribunal and on all parties to the
proceedings in respect of which the appeal was made.
(4)
The following appeals under this section may be
made only by leave of the Supreme Court:
(a)
an appeal from an interlocutory
decision,
(b)
an appeal from a decision as to costs
only,
(c)
an appeal from a final decision, other than an
appeal that involves (directly or indirectly) a claim for, or a question
relating to, an amount of $20,000 or more.
s 32: Subst 1995 No
88, Sch 1; 1998 No 49, Sch 11 [1].