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.
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).
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.
[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 procedure32G DefinitionsIn 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.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 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.(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(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 offencesProceedings 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.
[18] Schedule 3 Savings, transitional and other provisions
Insert at the end of clause 1 (1):
[19] Schedule 3
Insert after Part 5:13 Jurisdiction of Tribunal to determine contribution claimsAn 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 determinedSection 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 amendmentsAn 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.
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 4–7
Insert after Part 3:Part 4 Claims resolution process for asbestos-related conditionsDivision 1 Preliminary11 DefinitionsIn this Part: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).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 claimsThis 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 defendantsA 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,(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 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 StateThe 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 process16 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, orwith 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.(b) 20 business days for non-malignant claims,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.(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, orwith 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.(b) the claimant notifies the parties to the claim that the matter is ready to proceed,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, orNote—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 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 exchange19 General obligations to update documents and informationA party to a claim who is required by a provision of this Part to provide documents or information to another party by way of a statement of particulars or reply must, while the claim is subject to the claims resolution process, update or notify any necessary changes to the documents and information provided (as and when any relevant new or changed documents or information becomes available).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.(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, orafter service of the plaintiff’s statement of particulars on the last of the original defendants.(b) 30 business days for non-malignant claims,(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.(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(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, orafter the claim is served on the defendant.(b) 30 business days for non-malignant claims,(5) A reply by a defendant other than an original defendant must be served within:(a) 30 business days for malignant claims, orafter service of the plaintiff’s statement of particulars on the last of the original defendants.(b) 60 business days for non-malignant claims,(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 3.1–3.3 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.(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, orafter service of the plaintiff’s statement of particulars on the last of the original defendants.(d) 50 business days for non-malignant claims involving more than one defendant,(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, orafter service of the plaintiff’s statement of particulars on the last of the original defendants.(d) 60 business days for non-malignant claims involving more than one defendant,(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.(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 mediation27 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, orafter service of the plaintiff’s statement of particulars on the last of the original defendants.(d) 100 business days for non-malignant claims involving more than one defendant,(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, orafter service of the plaintiff’s statement of particulars on the last of the original defendants.(d) 120 business days for non-malignant claims involving more than one defendant,(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(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).(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.(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.(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 mediatorsNo 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.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).(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).(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 Apportionment40 Application to cross-defendantsA 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, orafter service of the plaintiff’s statement of particulars on the last of the original defendants.(b) 70 business days for non-malignant claims,(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(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, orafter service of the plaintiff’s statement of particulars on the last of the original defendants.(b) 80 business days for non-malignant claims,(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).(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 manager45 Application to cross-defendantsA 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 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,(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: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.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 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.(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 Tribunal51 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.(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,(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 claimsIf 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 Costs53 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.Part 5 Subpoenas54 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 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 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:(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(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 have an address for service in the proceedings of the objection within 24 hours after receiving that notice.62 Exercise of functions by RegistrarThe 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).(5) Clause 56 (Production by non-party) applies to the photocopies as it applies to the records.65 Setting asideThe 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 lossWhere 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 1995Nothing in this Part compels a person on whom a subpoena is served to produce a privileged document or thing.Part 6 Offers of compromise70 Part displaces rulesThis 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 DefinitionsIn 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, orwhichever first occurs.(b) the final deadline for offers in respect of the claim to which the offer relates,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(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.(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.(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, orthen, 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.(b) the Tribunal, by a separate order, awards the plaintiff interest or damages in the nature of interest in respect of the amount,(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.(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, andand may do so either after the offer is withdrawn or when granting leave to withdraw the offer, and(iii) to provide for the further conduct of the proceedings,(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.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, oras the defendant elects, unless the Tribunal orders otherwise.(b) to an order that the proceedings be dismissed, and to judgment accordingly,(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, oras the plaintiff elects, unless the Tribunal orders otherwise.(b) to an order that the defence be struck out, and to judgment accordingly,(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, andas it thinks fit.(b) may make such order as to the further conduct of proceedings on the cross-claim,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(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, andthe 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.(c) the offer is made without prejudice to the first party’s defence,(2) In subclause (1), damages includes any interest up to judgment claimed on any damages.Part 7 Miscellaneous81 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.(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 assessmentThe 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.(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, orwhichever occurs first.(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,(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:
[6] Schedule 2
Insert after Schedule 1:Schedule 2 FormsForm 1 Plaintiff’s statement of particulars(Clause 20)Instructions for completing this formYou 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 detailsFamily name:Given names:Title:Date of birth:Place of birth:Gender: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 evidenceMedical condition2.1 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 practitioners2.9 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• Telephone number• Period of consultation• Treatment providedOther medical practitioners or health care providers2.10 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 consultation2.11 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 authorityI, [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 resultsI, [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:Part 3 Summary of work and exposure history3.1 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.
□ Asbestosis
□ Asbestos related cancer
□ Asbestos related pleural diseases
□ Judgment
(Tick the appropriate box)
Costs (if separately agreed or assessed):
Costs (if separately agreed or assessed):
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 21Part 22
[6] Schedule 7
Insert at the end of Schedule 2 (Local rules that prevail over these rules):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 RulesIf 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 InterrogatoriesPart 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.