Dust Diseases Tribunal Act 1989 (NSW)

Dust Diseases Tribunal Act 1989 No 63 An Act to provide for the constitution of a Dust Diseases Tribunal, to define the jurisdiction and functions of the Tribunal, and to provide for related matters. Part 1 Preliminary 1 Name of Act This Act may be cited as the Dust Diseases Tribunal Act 1989. 2 Commencement This Act commences on a day or days to be appointed by proclamation. 3 Definitions (1) In this Act— ancillary or related matter, in relation to any proceedings, includes any claim relating to the subject-matter of the proceedings that a defendant in the proceedings has against another person, whether that other person is a party to the proceedings or not. barrister has the same meaning as in the Legal Profession Uniform Law (NSW). District Court means the District Court of New South Wales established by the District Court Act 1973. damages includes further damages awarded under section 11A. decision includes judgment, order and ruling. dust-related condition means— (a) a disease specified in Schedule 1, or (b) any other pathological condition of the lungs, pleura or peritoneum that is attributable to dust. member means a member of the Tribunal. President means the President of the Tribunal. registrar means the registrar of the Tribunal. Rule Committee means the Dust Diseases Tribunal Rule Committee established under section 32A. 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. settlement, when used in relation to a claim, includes compromise or agreement. solicitor has the same meaning as in the Legal Profession Uniform Law (NSW). Tribunal means the Dust Diseases Tribunal of New South Wales established by this Act. (2) In this Act— (a) a reference to a function includes a reference to a power, authority and duty, and (b) a reference to the exercise of a function includes, where the function is a duty, a reference to the performance of the duty. (3) Notes included in this Act do not form part of this Act. Part 2 Constitution of the Tribunal 4 Tribunal to be established as a court of record (1) There is established by this Act a tribunal to be known as the Dust Diseases Tribunal of New South Wales. (2) The Tribunal is a court of record. 5 Tribunal to have a seal (1) The Tribunal is required to have a seal and to use the seal to seal or stamp any document that is required by or under this or any other Act to be sealed or stamped. (2) All courts and persons acting judicially are required to take judicial notice of the Tribunal's seal. 6 Single member to constitute the Tribunal The jurisdiction of the Tribunal is exercisable by a single member and that member, when exercising that jurisdiction, constitutes the Tribunal. 7 Members of the Tribunal (1) The Governor may, by commission under the public seal of the State, appoint any qualified person to be a member of the Tribunal. (2) A person is qualified to be a member of the Tribunal if the person is a Judge or acting Judge of the Supreme Court or District Court, or of a Court that is of equivalent status (for the purposes of Part 9 of the Constitution Act 1902) to the Supreme Court or District Court. (3) The Oaths Act 1900 applies in respect of a member in the same way as it applies in respect of a Judge of the Supreme Court. (3A) The Governor may, by the commission of a person's appointment as a member or by a subsequent commission under the public seal of the State, appoint a member to be President of the Tribunal. (3B) Subject to subsection (3C), the President is to hold office as President so long as he or she holds office as a member. (3C) With the approval of the Governor, the President may resign his or her office as President without resigning his or her office as a member. (4) Schedule 2 has effect with respect to a member. 7A Vacancy in office of or absence of President (1) If there is a vacancy in the office of the President, or the President is absent from his or her duties, the senior of the other members willing to act as President is, if there is no Acting President appointed under section 7B, to act as President, and is, while so acting, to have all the functions of the President. (2) For the purposes only of subsection (1)— (a) the members are to have seniority between themselves according to the dates of their commission as members, a member whose commission is dated earlier than that of another member being senior to that other member, and (b) if the commissions of two or more members bear the same date, those members are to have seniority between themselves according to the seniority assigned to them by their commission or, failing any such assignment, according to the order of their being sworn. 7B Acting President (1) The Governor may, by commission under the public seal of the State, appoint a member to be Acting President during such period as the President may be absent from his or her duties. (1A) Unless the Governor has made an appointment under subsection (1) (and without limiting subsection (1)), the Attorney General may, by instrument in writing, appoint a member to be Acting President during such period as the President may be absent from his or her duties. (1B) An appointment under this section may be made for a particular absence or for any absence that occurs from time to time. (2) While holding office, the Acting President is to have the same functions as the President. (3) In this section, absent from duty includes a vacancy in the office of President. 8 Immunity of member While exercising the functions of a member, a member has the same protection and immunity as a Judge of the Supreme Court has in the exercise of the functions of such a Judge. 9 Staff of the Tribunal to be appointed (1) A registrar and such other staff of the Tribunal as may be necessary for the proper administration of this Act and the rules may be appointed and employed in accordance with Part 2 of the Public Sector Management Act 1988. (2) A person may hold the office of registrar in conjunction with any other office if the functions of that other office are not inconsistent with those of the office of registrar. (3) The registrar and other staff of the Tribunal have such functions as are prescribed by this Act and the rules. (4) The Tribunal may, with the approval of the Minister and of the Minister administering a government department or administrative office, arrange for the use of the services of any staff or facilities of the department or office. Part 3 Jurisdiction of, and proceedings before, the Tribunal 10 Jurisdiction and functions of the Tribunal (1) The Tribunal has, except as provided by sections 29 and 32, exclusive jurisdiction to hear and determine proceedings referred to in sections 11 and 12. (2) The Tribunal has such other jurisdiction as may be conferred on it by or under any other Act. (3) The Tribunal has, wherever sitting, jurisdiction throughout New South Wales. (4) In any proceedings brought under section 11 or transferred under section 12, the Tribunal has the same power to make decisions as the Supreme Court would, but for this section, have had in relation to similar proceedings brought in the Supreme Court. (5) Subject to sections 13 (6) and 14, a decision of the Tribunal has the same effect as, and may be enforced in the same way as, a decision of the Supreme Court. (6) The following matters are declared to be excluded matters for the purposes of section 5F of the Corporations Act 2001 of the Commonwealth in relation to the provisions of sections 471B and 500 (2) of that Act— (a) proceedings under section 11 of this Act, (b) proceedings transferred under section 12 of this Act, being proceedings that, but for this subsection, could not be commenced or proceeded with without the leave of the Court referred to in section 471B or 500 (2) of the Corporations Act 2001 of the Commonwealth. Note— In the absence of this subsection, sections 471B and 500 (2) of the Corporations Act 2001 of the Commonwealth would require the leave of the Federal Court or the Supreme Court to commence or proceed with proceedings under this Act against certain companies that are being externally administered. This section ensures that section 5F of that Act will operate to ensure that those sections will not require the leave of the Court directing the external administration before proceedings can be commenced or proceeded with in the Tribunal. (7) Proceedings to which subsection (6) refers are declared to be an applied Corporations legislation matter for the purposes of Part 3 of the Corporations (Ancillary Provisions) Act 2001 in relation to sections 471B and 500 (2) of the Corporations Act 2001 of the Commonwealth as if a reference in those sections to the Court were a reference to the Tribunal. Note— Part 3 of the Corporations (Ancillary Provisions) Act 2001 provides for the application of provisions of the Corporations Act 2001 and Part 3 of the Australian Securities and Investments Commission Act 2001 of the Commonwealth as laws of the State in respect of any matter declared by a law of the State (whether with or without modification) to be an applied Corporations legislation matter for the purposes of that Part in relation to those Commonwealth provisions. Section 14 (2) of the Corporations (Ancillary Provisions) Act 2001 ensures that a declaration made for the purposes of Part 3 of that Act only operates to apply a provision of the Corporations legislation to a matter as a law of the State if that provision does not already apply to the matter as a law of the Commonwealth. If a provision referred to in a declaration already applies as a law of the Commonwealth, nothing in the declaration will affect its continued operation as a law of the Commonwealth. 11 Claims for damages for dust diseases etc to be brought under this Act (1) If— (a) a person is suffering, or has suffered, from a dust-related condition or a person who has died was, immediately before death, suffering from a dust-related condition, and (b) it is alleged that the dust-related condition was attributable or partly attributable to a breach of a duty owed to the person by another person, and (c) the person who is or was suffering from the dust-related condition or a person claiming through that person would, but for this Act, have been entitled to bring an action for the recovery of damages in respect of that dust-related condition or death, proceedings for damages in respect of that dust-related condition or death may be brought before the Tribunal and may not be brought or entertained before any other court or tribunal. (1A) Proceedings by any tort-feasor liable in respect of damages referred to in subsection (1) to recover contribution from any other tort-feasor liable in respect of that damage may be brought before the Tribunal. Note— This subsection does not prevent those proceedings being brought in another court. (2) In subsection (1), a reference to a duty includes a reference to a duty imposed by statute as well as a duty imposed under the common law. (3) If the cause of action giving rise to proceedings to be brought under subsection (1) or (1A) also gives rise to a claim in respect of some other matter, the claim may be included in those proceedings even though it does not relate to a dust-related condition from which a person is suffering or has suffered. (4) Any matter that is ancillary or related to a matter that is the subject of proceedings to be brought under subsection (1) or (1A) may also be included in those proceedings. (5) In subsection (1) (c), the reference to a person claiming through a person who is or was suffering from a dust-related condition includes a reference to a relative for whose benefit an action may be brought under the Compensation to Relatives Act 1897. 11A Award of provisional damages (1) This section applies to proceedings of the kind referred to in section 11 (1) that are brought after the commencement of this section and in which there is proved or admitted to be a chance that at some definite or indefinite time in the future the person who is suffering from the dust-related condition in respect of which the proceedings are brought (the injured person) will, as a result or partly as a result of the breach of duty giving rise to the cause of action, develop another dust-related condition. (2) The Tribunal may, in accordance with the rules— (a) award damages assessed on the assumption that the injured person will not develop another dust-related condition, and (b) award further damages at a future date if the injured person does develop another dust-related condition. 12 Transfer of proceedings from the Supreme Court or District Court to the Tribunal (1) If— (a) on the commencement of this section, proceedings of the kind referred to in section 11 (1) are pending in the Supreme Court and the hearing of those proceedings has not begun, or (b) after that commencement, proceedings of that kind are brought or are pending in the Supreme Court, the registrar of the division of that Court in which the proceedings are pending or are brought must transfer the proceedings to the Tribunal, together with any ancillary or related matters. (2) If— (a) on the commencement of this section, proceedings of the kind referred to in section 11 (1) are pending in the District Court and the hearing of those proceedings has not begun, or (b) after that commencement, proceedings of that kind are brought or are pending in the District Court, the registrar of that Court for the place where the proceedings are pending or are brought must transfer the proceedings to the Tribunal, together with any ancillary or related matters. 12A No limitation period (1) The purpose of this section is to enable proceedings to be brought before the Tribunal in relation to dust-related conditions at any time. (2) Nothing in the Limitation Act 1969 or any other statute of limitations operates to prevent the bringing or maintenance of proceedings before the Tribunal in relation to dust-related conditions. (3) Without limiting subsection (2)— (a) sections 14, 18A, 60C and 60G of, Division 6 of Part 2 of, and Schedule 5 to, the Limitation Act 1969 do not prevent the bringing or maintenance of any such proceedings before the Tribunal, and (b) any such proceedings may be brought or maintained before the Tribunal even though a limitation period has already expired under that Act, and (c) any such proceedings may be brought or maintained before the Tribunal as if Division 1 of Part 4 of that Act had never been in force. 12B Damages for non-economic loss after death of plaintiff (1) The purpose of this section is to enable the estate of a person whose death has been caused by a dust-related condition to recover damages for the person's pain or suffering, or for any bodily or mental harm suffered by the person, or for curtailment of the person's expectation of life, provided proceedings commenced by the person were pending before the Tribunal at the person's death. (2) Section 2 (2) (d) of the Law Reform (Miscellaneous Provisions) Act 1944 does not apply in relation to proceedings commenced by a person before his or her death and pending before the Tribunal at his or her death, where the cause of action is for damages in respect of a dust-related condition. 12C Effect of settlement on proceedings by or against joint and several tortfeasors (1) For the avoidance of doubt, settlement with one or more joint tortfeasors in or in relation to proceedings before the Tribunal and who are liable in respect of damage as a result of a dust-related condition is not a bar to recovery against one or more other joint tortfeasors (whether or not they are defendants in the proceedings), unless the terms of the settlement otherwise provide. (2) A tortfeasor who settles proceedings before the Tribunal that are brought against the tortfeasor by a plaintiff in respect of damage as a result of a dust-related condition is not precluded from recovering contribution in respect of that same damage under section 5 (1) (c) of the Law Reform (Miscellaneous Provisions) Act 1946 from any other tortfeasor (whether a joint tortfeasor or otherwise) who is not a party to the settlement only because a judgment giving effect to that settlement has been entered in favour of the plaintiff without the Tribunal having considered the merits of the case. (3) This section does not affect the operation or interpretation of section 5 (1) (a) of the Law Reform (Miscellaneous Provisions) Act 1946. 12D Damages for non-economic loss not to be reduced by certain compensation payments (1) This section applies to proceedings before the Tribunal (including proceedings on an appeal from the Tribunal) for damages in relation to dust-related conditions. (2) In determining damages for non-economic loss in any such proceedings, no deduction is to be made for any amount of compensation already paid or payable, or payable in the future, under the Workers' Compensation (Dust Diseases) Act 1942. (3) In this section— damages for non-economic loss means damages or compensation for the following— (a) pain and suffering, (b) loss of amenities of life, (c) loss of expectation of life, (d) disfigurement, (e) the need for services of a domestic nature or services relating to nursing and attendance which have been or are to be provided to a person by another person, and for which the first person has not paid and is not liable to pay any fee or charge. 13 Proceedings before the Tribunal (1) The Tribunal must hold its proceedings in open court, except to the extent that the rules provide otherwise. (2) The President is to fix the times and places for the holding of proceedings before the Tribunal and is to nominate the member before whom proceedings are to be held. (3) The President may delegate to a member the President's functions under subsection (2). (4) If proceedings before the Tribunal have been brought by two or more persons and those proceedings arise out of the same cause of action, the Tribunal may hear and determine those proceedings together if of the opinion that none of those persons' cases would be prejudiced. (5) A decision of the Tribunal is not liable— (a) to be vitiated because of any informality or want of form, or (b) to be questioned or appealed against in any court, except as provided by section 32 of this Act or section 48 of the Supreme Court Act 1970. (6) Whenever appropriate, the Tribunal may reconsider any matter that it has previously dealt with, or rescind or amend any decision that the Tribunal has previously made. (7) If the President is of the opinion that the balance of cost and convenience in the proceedings so requires, the President may direct that the hearing of the proceedings, or any part of the proceedings, take place outside New South Wales. 14 Judgments and orders for payment of money (1) If a judgment or order of the Tribunal is for payment of an amount of money (including a sum awarded as costs) the judgment or order shall, on the filing of the prescribed documents in the registry of the Common Law Division of the Supreme Court, be taken to be a judgment of that Court for the payment of that amount of money in accordance with the judgment or order of the Tribunal. (2) For the purposes of subsection (1), the prescribed documents are— (a) a copy of the judgment or order of the Tribunal certified by the registrar to be a true copy, and (b) an affidavit by the person to whom the amount of money was adjudged or ordered to be paid specifying the amount unpaid under the judgment or order and, where the judgment or order is to take effect on a default, as to the making of the default. (3) No fee is payable for the filing of documents under subsection (1). (4) Subsection (3) applies irrespective of the provisions of any other Act to the contrary. (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. 15, 16 (Repealed) 17 Parties to proceedings before the Tribunal (1) If a party to proceedings before the Tribunal has a right to proceed against two or more persons who may be jointly liable— (a) it is sufficient if at least one of those persons is served with process in the proceedings, and (b) a decision in the proceedings may be given and enforced against the person or persons found to be liable. (2) Subsection (1) is subject to the rules. (3) Section 95 of the Civil Procedure Act 2005 applies to a decision given in proceedings before the Tribunal in the same way as it applies to a judgment given in proceedings before the Supreme Court. (4) An executor, administrator, trustee or other legal personal representative may bring or defend proceedings before the Tribunal in the same manner as if he or she were bringing or defending proceedings in his or her own right. (5) If, before the holding of particular proceedings before the Tribunal or at any stage during the holding of any proceedings, the Tribunal is of the opinion that a person ought to be joined as a party to the proceedings, the Tribunal may, by notice in writing served on the person or by oral direction given during the proceedings, join the person as a party to the proceedings. 18 (Repealed) 19 Right of appearance and representation before the Tribunal (1) A party to proceedings before the Tribunal— (a) may appear in the proceedings personally or by an Australian legal practitioner, and (b) may not, except by leave of the Tribunal, be represented in the proceedings otherwise than by an Australian legal practitioner. (2) Only an Australian legal practitioner is entitled to demand or receive a fee or reward for representing a party in proceedings before the Tribunal. 20 Subpoenas and examination of witnesses (1) If the Tribunal so directs or a party to proceedings before the Tribunal so requests, the registrar must issue a subpoena requiring a specified person to do either or both of the following— (a) to attend and give evidence before the Tribunal at a time and place specified in the subpoena, (b) to produce to the Tribunal, or to attend before the Tribunal and produce, any document or thing in the person's custody or under the person's control that the person is required by the subpoena to produce. (2) If— (a) in accordance with this section, a person is required by a subpoena to produce a document, and (b) the document is not in writing, or is not written in the English language, or is not decipherable on sight, the subpoena shall be taken to require the person to produce, in addition to the document if it is in writing, or instead of the document if it is not in writing, a statement, written in the English language and decipherable on sight, containing the whole of the information in the document. (3) The Tribunal may administer an oath to any person appearing as a witness before the Tribunal, whether or not a subpoena has been issued to the witness under subsection (1), and allow the witness to be examined and cross-examined on oath. (4) A witness attending or appearing before the Tribunal has the same protection and, without affecting any penalty that may be imposed under this Act, is subject to the same liabilities, as a witness would have or be subject to in proceedings before the Supreme Court. (5) A witness attending before the Tribunal in accordance with a subpoena issued under subsection (1) is entitled to be paid such fees and allowances as are prescribed by, or calculated in accordance with, the rules. (6) If a subpoena is issued under subsection (1) at the request of a party, the person specified in the subpoena is not required to comply with the subpoena unless, not later than a reasonable time before the day on which the subpoena is to be complied with, that person is tendered an amount, prescribed by, or calculated in accordance with, the rules, to meet the expense of complying with the requirements of the subpoena. (7) This section is subject to the regulations. 21 Person issued with a subpoena may be apprehended (1) If a person served with a subpoena issued under section 20 (1) to attend before, or to produce a document to, the Tribunal fails to comply with the subpoena, the Tribunal may, on proof of the service of the subpoena, issue to such person as the Tribunal appoints a warrant for the apprehension of that person. (2) A warrant issued under this section authorises— (a) the apprehension of the person to whom the warrant relates, and (b) the bringing of that person before the Tribunal, and (c) the detention of that person in custody until he or she is released by order of the Tribunal or the Supreme Court. (3) The apprehension of a person under this section does not relieve the person from any liability incurred as a result of non-compliance with a subpoena to attend before, or to produce a document or thing to, the Tribunal. 22 Inspection and retention of records (1) The Tribunal— (a) may inspect any document or statement produced before it and retain it for such period as it thinks necessary for the purposes of the proceedings in relation to which it was produced, and (b) may make copies of the document or statement or any part of the document or statement. (2) If a document or statement is produced before, and retained by, the Tribunal, the person otherwise entitled to possession of the document or statement is, on request, entitled to be supplied, as soon as practicable, with a copy of the document or statement certified by the registrar to be a true copy. (3) A document or statement so certified is admissible as evidence in all courts as if it were the original document or statement. (4) If, in accordance with subsection (2), a person is entitled to be supplied with a copy of a document or statement, the person, or a person authorised by the person, may, at such times and places as the registrar directs, inspect and make copies of, or take extracts from, the document or statement. 23 (Repealed) 24 Examination de bene esse (1) The Tribunal may, on the application of a party to proceedings before it, authorise— (a) any judge, counsel, attorney or commissioner for affidavits, whether of New South Wales or elsewhere, or (b) any British Consular Officer or Australian Consular Officer in any place out of New South Wales, to take at some convenient place the examination of a witness de bene esse, if the witness— (c) is absent from New South Wales, or (d) is expected to die or to be unable from sickness or infirmity to attend at the hearing of the proceedings. (2) In subsection (1), the expressions "Australian Consular Officer" and "British Consular Officer" have the same meanings as they have in section 26 of the Oaths Act 1900. 25 Evidence in proceedings before the Tribunal (1) Any evidence that would be admissible in proceedings in the Supreme Court is admissible in proceedings before the Tribunal. (2) Except as otherwise provided by this Part or the rules, evidence is not admissible in proceedings before the Tribunal if it would not be admissible in those proceedings by virtue of subsection (1). (3) Historical evidence and general medical evidence concerning dust exposure and dust diseases which has been admitted in any proceedings before the Tribunal may, with the leave of the Tribunal, be received as evidence in any other proceedings before the Tribunal, whether or not the proceedings are between the same parties. 25A Material already obtained (1) Material obtained for the purposes of proceedings before the Tribunal by discovery or interrogatories may— (a) with the leave of the Tribunal, and (b) with the consent of— (i) subject to subparagraph (ii), the party who originally obtained the material or the party's Australian legal practitioner, or (ii) another person prescribed by the rules, be used in other proceedings before the Tribunal, whether or not the proceedings are between the same parties. (2) The rules may provide that subsection (1) does not apply in specified kinds of proceedings or in specified circumstances. 25B General issues already determined (1) Issues of a general nature determined in proceedings before the Tribunal (including proceedings on an appeal from the Tribunal) may not be relitigated or reargued in other proceedings before the Tribunal without the leave of the Tribunal, whether or not the proceedings are between the same parties. (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. (2) In deciding whether to grant leave for the purposes of subsection (1), the Tribunal is to have regard to— (a) the availability of new evidence (whether or not previously available), and (b) the manner in which the other proceedings referred to in that subsection were conducted, and (c) such other matters as the Tribunal considers to be relevant. (3) The rules may provide that subsection (1) does not apply in specified kinds of proceedings or in specified circumstances or (without limitation) in relation to specified kinds of issues. (4) This section does not affect any other law relating to matters of which judicial notice can be taken or about which proof is not required. 26 Contempt of the Tribunal In respect of proceedings before the Tribunal, the Tribunal has the same powers for punishing contempt of the Tribunal as are conferred on a Judge of the Supreme Court for punishing contempt of a division of the Supreme Court. 27–31 (Repealed) 32 Right of appeal to Supreme Court (1) A party who is dissatisfied with a decision of the Tribunal in point of law or on a question as to the admission or rejection of evidence may appeal to the Supreme Court. (2) The Supreme Court may, on the hearing of any appeal under this section, remit the matter to the Tribunal for determination by the Tribunal in accordance with any decision of the Supreme Court and may make such other order in relation to the appeal as the Supreme Court sees fit. (3) A decision of the Supreme Court on an appeal under this section is binding on the Tribunal and on all parties to the proceedings in respect of which the appeal was made. (4) The following appeals under this section may be made only by leave of the Supreme Court— (a) an appeal from an interlocutory decision, (b) an appeal from a decision as to costs only, (c) an appeal from a final decision, other than an appeal that involves (directly or indirectly) a claim for, or a question relating to, an amount of $20,000 or more,