Judgment
1BATHURST CJ, ALLSOP P and MEAGHER JA: The respondent brought proceedings against the applicant in the Dust Diseases Tribunal ("Tribunal") for damages for nervous shock arising out of the death from mesothelioma of her father, who was employed by the applicant as a teacher. In a judgment delivered on 7 October 2011, Kearns J dismissed the applicant employer's motion for an order that those proceedings be dismissed for want of jurisdiction. The applicant seeks leave to appeal from that decision.
2The issue sought to be raised in the appeal is whether proceedings for damages for nervous shock or psychiatric illness arising out of the death of a person from a dust related disease are within s 11(1) of the Dust Diseases Tribunal Act 1989 (the "Act") and therefore within the jurisdiction of the Tribunal. It should be noted at the outset that the respondent does not contend, in the alternative, that if her claim could not have been brought under s 11(1), the Tribunal nevertheless had jurisdiction to entertain it under sub-section 11(4) as a matter that is "ancillary or related" to a matter the subject of proceedings properly brought under s 11(1). Nor does she argue that her claim was one which could have been included in such proceedings by dint of s 11(3) of the Act.
3In reaching his conclusion, the primary judge applied this Court's decision in Mangion v James Hardie & Co Pty Limited (1990) 20 NSWLR 100. In that appeal, the Court (Samuels AP, Clarke JA agreeing, and Mahoney JA) held that s 11(1) conferred jurisdiction on the Tribunal to hear and determine proceedings in respect of the death of a person caused by a dust related condition where the proceedings were brought by a widow for damages pursuant to the Compensation to Relatives Act 1987 and where proceedings were brought by a widow for damages for nervous shock (which claim was then governed by s 3 of the Law Reform (Miscellaneous Provisions) Act 1944).
4The applicant argues that insofar as Mangion decided that proceedings for damages for nervous shock were within s 11(1) of the Act, it was plainly or clearly wrong in the sense referred to in Gett v Tabet [2009] NSWCA 76; (2009) 254 ALR 504 at [294]-[296]; and, to that extent, that the decision should be overruled.
5We have had the benefit of reading the judgment of McColl JA in draft and agree with the orders proposed by her Honour. Specifically, we agree that Mangion was incorrectly decided insofar as it concluded that Mrs Mangion's claim for damages for nervous shock fell within s 11(1). Because the reasons of Samuels AP and Mahoney JA for so concluding were different, it is necessary to identify those differences before expressing the reasons for our opinion that the case was wrongly decided in this respect.
6Samuels AP construed s 11(1) as requiring that the proceedings in respect of which exclusive jurisdiction is conferred (by the closing words of s 11(1)), be proceedings for damages in respect of a "dust-related condition" which satisfies the conditions or description in paragraphs (a), (b) and (c) of s 11(1). In particular, by paragraph (c), they must be proceedings for damages brought by the person who suffered from that condition "or a person claiming through that person", being in either case a person whose entitlement to bring such an action in any other court or tribunal is excluded by the closing words of s 11(1).
7Applying that construction to the compensation to relatives and nervous shock claims, it was necessary that the person bringing the proceedings be "a person claiming through" the person who suffered from the dust-related condition: at 104B. This condition was satisfied in relation to the former claim because it was a derivative action dependent on or secondary to rights of action vested in the deceased immediately before his death: at 104C-G. The position was not so clear in relation to the action for damages for nervous shock. It was not derived from any cause of action vested in the person whose death occasioned the nervous shock injury, nor did it depend upon any existing liability to that person: at 104G-105A. However, because his Honour considered the object of the Act to be to assign to the Tribunal "all proceedings in respect of injury or death caused by dust-related conditions", it was necessary to give the words "claiming through" a liberal construction sufficient to prevent the frustration of that purpose: at 105E-F. For that reason, the expression "claiming through" should be construed to include a claim by a widow for damages for nervous shock "as made through the husband, in the sense of in consequence of his dust-related death": 105F-106F. Reference was made to subsections 11(3) and (4) but not on the basis that one or other of those provisions would permit a nervous shock claim, to be included in proceedings otherwise within s 11(1).
8Applying that construction to those claims, it was also necessary that the proceedings answer the description in the closing lines of s 11(1) that they be "for damages in respect of" the dust-related condition or death. The nature and breadth of the relationship between the proceedings or damages claimed and the dust-related condition or death which was sufficient in this context to satisfy that description was not dealt with in the reasons of Samuels AP. It seems to have been accepted that an action for damages "incurred in consequence" of the dust-related death of the husband would answer this description, and that each of the relevant claims did so: at 102A, 105F.
9Mahoney JA approached the matter slightly differently. He identified the relevant purpose of s 11(1) as being that "where the person affected by a dust-related condition or a person claiming through him would have been entitled to bring an action for damages for that condition and so must bring the proceedings before the Tribunal, all other proceedings for damages "in respect of" that condition must be brought before the Tribunal" (emphasis added): at 111A-B. His Honour did not construe s 11(1) as requiring that the proceedings which must be brought before the Tribunal satisfy the conditions, or answer the description, in each of paragraphs (a), (b) and (c). He considered the word "that", when used in the closing lines of s 11(1), referred only to the dust-related condition or death described in paragraphs (a) and (b) and not to a condition or death which would have been subject to the entitlement described in paragraph (c). Accordingly, where a claim by the person who was suffering or had suffered from the dust-related condition, or a person claiming through that person, "would have lain", the conditions in those paragraphs were satisfied and the closing words of s 11(1) applied generally to confer jurisdiction upon all proceedings for damages "in respect of" the condition or death, and irrespective of whether they were brought by the person primarily affected, or a person claiming "through that person": at 110E-112C.
10On this construction it was not necessary for Mahoney JA to decide whether either of the proceedings in issue in Mangion was brought by "a person claiming through" the person primarily affected by the dust-related condition: at 111D. This notwithstanding, his Honour expressed an inclination to the view that these words referred only to a claim "which, if the person primarily affected has died, his legal personal representative will have": at 111D-E.
11On the construction adopted by Mahoney JA it remained necessary that the proceedings be "for damages in respect of" the dust-related condition or death referred to in paragraphs (a) and (b). His Honour construed this expression as requiring that the relationship denoted by the words "in respect of" be between the proceedings and the dust-related condition or death rather than between the damages sought to be recovered in those proceedings and that condition or death: at 109E. An action for damages under the compensation to relatives legislation was in the ordinary sense of those words a proceeding for damages "in respect of" a dust-related death. Having regard to the purpose of s 11(1) as identified by his Honour, a proceeding "deriving" from "the situation where the condition or death of the person suffering from the dust-related condition is attributable to a breach of duty owed to him by another" was also sufficient to answer that description: at 110D. In relation to the action for damages for nervous shock, Mahoney JA entertained doubts as to whether that could be said to be "in respect of" the relevant condition or death, even adopting this broad view of what was sufficient to satisfy those words. Nevertheless, he was not prepared to dissent from Samuels AP's conclusion that s 11(1) extended to claims for nervous shock: at 112G.
12Thus, the position in Mangion, insofar as it decided that s 11(1) of the Act conferred jurisdiction on the Tribunal in relation to a claim for damages for nervous shock, was as follows. Samuels AP (with whom Clarke JA agreed) construed s 11(1) as requiring for the conferral of jurisdiction, that the proceedings be brought by the person primarily affected "or a person claiming through that person"; and considered that such a claim answered this description notwithstanding that it was not derived from any cause of action vested in the deceased or dependent upon any existing liability of his employer to him. His Honour was prepared to give that expression a "liberal" construction which went beyond its ordinary or usual meaning to promote what he identified as the purpose or object underlying the legislation, namely to assign to the Tribunal all proceedings in respect of injury or death caused by dust-related conditions. Samuels AP did not expressly address whether proceedings for damages for nervous shock answered the description of being "for damages in respect of a dust-related condition or death". Mahoney JA construed s 11(1) as not requiring, for proceedings which must be brought before the Tribunal, that they be brought by or "through" the person primarily affected; and was inclined to the view that this expression would not have extended beyond a claim which by statute survived for the benefit of that person's estate. His Honour expressed doubts as to whether the requirement that the proceedings for damages be "in respect of" the condition or death was satisfied, but was not prepared to dissent from the ultimate conclusion of Samuels AP.
13Subject to the more specific reasons given below, we agree with McColl JA's reasons for concluding that Samuels AP was incorrect in his construction of s 11(1)(c) and the phrase "claiming through". We also agree on the same basis with her Honour's reasons for concluding that Samuels AP did not correctly consider and apply the "in respect of" requirement in the closing lines of s 11(1). The statutory context and purpose of s 11(1) did not require or justify in the interpretation of these two expressions, any departure from their ordinary meaning as expounded by her Honour: see esp her Honour's reasons at [162] - [183] below.
14In addition, we do not agree with Mahoney JA's construction of s 11(1) as not requiring, in relation to proceedings which must be brought before the Tribunal, that they be brought by the person primarily affected or a person claiming through that person. In our opinion, as our reasons below explain, the words "proceedings for damages in respect of that dust-related condition or death" refer to a cause of action falling within s 11(1)(c). If that were not the case there would be little work for subsections 11(3) and (4) which confer additional jurisdiction in respect of claims which may be, but are not required to be, brought before the Tribunal. That construction of s 11(1) was adopted by Samuels AP and Clarke JA in Mangion and by Giles JA (Hodgson and Bryson JJA agreeing) in Laminex (Australia) Pty Limited v Coutts [2006] NSWCA 186; 3 DDCR 728 esp at [38].
15Our additional reasons for these conclusions are as follows.
16The Tribunal was constituted by the Act. The purpose of the Tribunal was, as the then Attorney-General stated in the second reading speech:
"... to hear claims in tort for negligence and breach of statutory duty relating to death or personal injury attributable to specified dust diseases and other dust-related conditions." (Second reading speech of the Minister, the Hon John Dowd, Hansard, Legislative Assembly, 3 May 1989, p 7398.)
17The particular problem perceived that was sought to be remedied by the Tribunal was described by the Attorney-General at the commencement of the second reading speech as:
"... the considerable delays that exist in the common law jurisdictions of both the Supreme Court and the District Court, which this Government inherited. Delays, of course, are particularly critical for plaintiffs with dust diseases, such as mesothelioma, which have a long latency period but, once diagnosed, result in rapid deterioration and usually lead to death within 12 to 18 months. The Government is committed to these claims being dealt with expeditiously by the creation of a separate tribunal that will provide a fast-track mechanism." (Second reading speech of the Minister, the Hon John Dowd, Hansard, Legislative Assembly, 3 May 1989, p 7398.)
18After a brief description of the operative provisions, the Attorney-General described the hoped for advantages of the Tribunal:
"The bill seeks to marry the skills of Compensation Court judges with the power to deal with common law matters. The Compensation Court is a specialist jurisdiction that deals with medical matters, and it is intended it will acquire expertise in common law. This measure is an attempt to stop duplication of common law and workers' compensation liability determinations. From this experience the government expects to learn how to marry together the Compensation Court, the Supreme Court and the District Court which will be inevitable as the Downing Centre is developed. One judge or several judges may be involved, but litigants are entitled to fast track procedures as a means of reducing the long hearing lists in the Hunter Valley. The Compensation Court is not overloaded but this measure will help to reduce the District Court lists.
This will be an experiment in having the one tribunal deal with matters from both jurisdictions, thus speeding hearings and saving money for litigants. Based on this experience, the tribunal could be extended to deal with the diseases of chronicity, which conditions have built up over time - although trauma cases and similar matters will be dealt with by the Compensation Court. This experiment has been carefully thought through. I hope it will enable relief to be given to a group of needy workers in this State who belatedly have been found to have been let down by a society that has failed to recognize some aspects of dust disease." (Second reading speech of the Minister, the Hon John Dowd, Hansard, Legislative Assembly, 3 May 1989, p 7399.)
19The terms of Part 3 of the Act dealing with jurisdiction and proceedings show that one of the means of effecting these benefits and advantages included the conferring of exclusive jurisdiction to hear certain classes of cases, and the conferring of additional jurisdiction in relation to other claims. Whilst those additional claims are not required to be brought before the Tribunal, they may, if commenced in the Supreme or District Court, be required to be transferred to the Tribunal in the circumstances described in s 12 and once made before or transferred to the Tribunal are, by s 10(1), subject to its exclusive jurisdiction.
20As McColl JA has noted, s 11 is a carefully drawn section which must be examined as a whole in its statutory context and conformably with its purpose, drawn from the text of the Act and relevant secondary material. Section 11(1) provides for proceedings for damages in respect of "that" dust-related condition or death, which is the dust-related condition in paras (c), (b) and (a). Textually, the preferable reading of "in respect of" in the last paragraph of s 11(1) is as a phrase to relate the proceedings to the dust-related condition or death and damages therefor; in the sense that the damages claimed are assessed by reference to that condition or death and its consequences for the claimant or persons on whose behalf the claim is made. This would limit s 11(1) to the claim concerning the condition in question or subsequent death, being a claim made by the person primarily affected, or those through him or her if he or she has died.
21It was no doubt evident to the legislature that there were other types of claims or actions that could be seen to be related to the primary action brought by the person primarily affected, or by a person claiming through him or her, that should or could, conformably with the purposes of the Act, be brought before the Tribunal. Subsections (3) and (4) in the original form of the Act catered for these. Subsection (1A) was added later. Section 11(3) concerned the cause of action giving rise to proceedings within subsection (1) and also another claim to which that cause of action gives rise. An example would be a claim for negligence for an unsafe system of work giving rise to damages due to the incurring of a dust-related condition and also some other non dust-related injury. Because the proceedings which must be brought under subsection (1) are proceedings to enforce a cause of action of the person primarily affected, or a person claiming through that person, it is not obvious that a claim for damages for nervous shock could be included in proceedings before the Tribunal in reliance upon subsection 11(3). However, that question does not arise because the respondent eschewed reliance on subsection 11(3) to found jurisdiction.
22Section 11(4) was in broader terms. It used broad language: "any matter that is ancillary or related to a matter". The notion of a "matter" in a judicial jurisdictional context is linguistically and legally wide: Re Wakim; Ex parte McNally [1999] HCA 27; (1999) 198 CLR 511 at 585-586 [139]-[142]; Tanning Research Laboratories Inc v O'Brien [1990] HCA 8; 169 CLR 332 at 351. The Act is not in a context of federal jurisdiction; but the word "matter" in the context of jurisdiction of courts or tribunals can be seen to be one of currency. A "matter" in this universe of discourse is a controversy arising from a common substratum of facts. A "related" matter can thus be seen as a related controversy arising from a related, perhaps overlapping, substratum of facts. The breadth of these concepts is not cut down by the definition of "ancillary or related matter" in s 3:
"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."
In this definition, the intermediate words after the word "includes" might be seen to be narrower than the general words "related matter"; but it is important to recognise that the general words are not defined or limited by these words; the general words include them. There is no warrant to read down the width of the words "related matter" by the inclusion in the definition of a claim that might be seen to be specific to an existing defendant. The width of the concept of "related matter" would permit the inclusion in proceedings under s 11(1) (or s 11(1A)) of a claim by a different plaintiff in a related matter or controversy. There is no call in this case to examine the limits of the width of the relationship of matter in s 11(4). It is sufficient to say that in the context of a claim for the benefit of a deceased's estate or a compensation to relatives claim, in each case brought under s 11(1), s 11(4) would permit inclusion of a nervous shock claim, such as that pleaded here by the respondent, Ms Winch.
23If s 11(4) is read as a broad jurisdictional provision intended to pick up any related matter or controversy to the proceedings for damages in respect of the dust-related condition falling within s 11(1), there is no call to strain the text of the paragraph (c) or the last lines of s 11(1), and in particular the words "claiming through that person" and "in respect of", so as to justify a departure from the ordinary meaning of the language used. The person making a claim in respect of an ancillary or related matter would not have the benefit of ss 11A, 12A and 12B of the Act. Section 11A is limited to claims under s 11(1) and ss 12A and 12B only apply to proceedings capable of being brought under s 11(1): Wallaby Grip (BAE) Pty Ltd (In Liq) v Eraring Energy [2004] NSWCA 269; 60 NSWLR 701.
24On the above interpretation, s 11 works in a balanced way reflecting the exclusive (in the sense described above) and non-exclusive jurisdiction of the Tribunal under Part 3. If subsections 11(3) and (4) were not in the Act and the substance of the jurisdictional work of the section was done by s 11(1), there would have been powerful reasons to read s 11(1) more broadly, as Samuels AP and Mahoney JA sought to do in Mangion. Parliament, however, has provided for related matters in a widely drafted subsection (s 11(4)). This allows the text of s 11(1) to be read without adopting strained constructions of the expressions "claiming through" and "in respect of" or the construction of s 11(1) adopted by Mahoney JA.
25For these reasons we are persuaded that Mangion is sufficiently wrong to warrant departure from it. As we have already noted, the question whether the respondent's claim did or could have fallen within s 11(3) or 11(4) does not arise. The orders proposed by McColl JA should be made.
26BEAZLEY JA: I have had the advantage of reading in draft the judgment of McColl JA and the judgment of Bathurst CJ, Allsop P and Meagher JA. As their Honours have fully explained, notwithstanding that Mangion v James Hardie & Co Pty Limited (1990) 20 NSWLR 100 is a long standing decision of this Court, an examination of the provisions of the Dust Diseases Tribunal Act 1989, s 11 leads to the inevitable conclusion that the decision in that case was plainly wrong. I agree with the reasons of the members of this Court as to its proper construction.
27McCOLL JA: Jessie Winch, the respondent, brought proceedings in the Dust Diseases Tribunal (the "Tribunal") claiming compensation from the Trustees of the Sydney Grammar School, the applicants, for psychiatric illness she alleged she suffered as a result of her father dying from mesothelioma. She alleged her father had been exposed to asbestos dust and fibre while employed by the applicants as an art teacher. The applicants moved the Tribunal for an order that the proceedings be dismissed for want of jurisdiction. His Honour Judge Kearns dismissed the application: Winch v Amaca Pty Ltd (discontinued 22.09.2011) and the Trustees of the Sydney Grammar School [2011] NSWDDT 8; (2011) 10 DDCR 56.
28The critical issue is whether the Tribunal had jurisdiction to deal with the respondent's claim for psychiatric illness. The primary judge held that it did, in part because he was bound to do so by virtue of this Court's decision in Mangion v James Hardie & Co Pty Ltd (1990) 20 NSWLR 100 ("Mangion").
29The applicants seek leave to appeal from the primary judge's decision. Full argument was heard on the application for leave to appeal as if it were the appeal, on the basis that the appeal could be disposed of without further argument if leave to appeal were granted. In my view, as shall become apparent from the reasons which follow, the matter involves an issue of principle which warrants granting leave to appeal. I shall refer to the applicants as the appellants henceforth.
30This matter was listed before a five judge bench because the appellants wish to challenge this Court's decision in Mangion in which, relevantly, the Court held that the Tribunal had jurisdiction in proceedings in respect of the death of a person caused by a dust-related condition where a claim for nervous shock was brought pursuant to s 3 of the Law Reform (Miscellaneous Provisions) Act 1944 (the "1944 Act"). In so holding, the Court upheld an appeal from a decision to the contrary of O'Meally J: Grech v James Hardie & Co Pty Ltd & Others [1989] NSWDDT 1; (1989) 5 NSWCCR 274 ("Grech"). For the reasons which follow, I am of the view that Mangion was wrongly decided in this respect and should be over-ruled. Even if that is not correct, when s 11(1) is construed in the Dust Diseases Tribunal Act 1989 (the "Tribunal Act"), I would conclude the jurisdiction does not extend to the respondent's claim for damages for psychiatric illness. The appeal should be allowed with costs.