Dust Diseases Tribunal Regulation 2019

The Regulation affects four principal classes of person.

Plaintiffs (or their authorised representatives) who suffer or have died from an asbestos-related condition are subject to compulsory information-exchange obligations (cl 23), must attend mediation unless medically unfit (cl 39(3)), and face costs consequences for unmeritorious issues left in dispute (cl 41). Their solicitors must file precise Form 1 statements and update them (cl 22), notify the registrar of service dates (cl 23(5)), and supply post-settlement data on Form 3 (cl 97).

Defendants and cross-defendants, typically former employers, occupiers, manufacturers or suppliers of asbestos products, must file Form 2 replies within short business-day windows (cl 26(4)–(5)), participate in mediation in good faith (cl 37), and either agree on apportionment or submit to a Contributions Assessor (cll 51–52). Where multiple defendants exist they may (and frequently do) appoint a single claims manager whose acts bind them (cl 64). Insurers standing behind defendants are indirectly affected through the SCM mechanism and through the requirement that monetary settlement limits be imposed reasonably (cl 64(5)–(6)).

The registrar of the Tribunal is given significant administrative powers: setting hearing dates (cl 9(3)), referring claims to mediation (cl 34(3)), referring unresolved apportionment to a Contributions Assessor (cl 52(1)), receiving and disseminating certificates (cl 40(2)), and adjusting fees annually (cl 4A). The President of the Tribunal compiles the mediator list (cl 36(4)–(5)) and the Secretary of the Department of Communities and Justice appoints the panel of Contributions Assessors (cl 53(1)).

Mediators and Contributions Assessors occupy quasi-judicial roles. Mediators may direct further information (cl 38), certify bad faith (cl 37(3)), take evidence on oath for later contribution disputes (cl 42), and enjoy statutory immunity when acting in good faith (cl 47). Contributions Assessors make binding (for the plaintiff’s claim) determinations that cannot be challenged, reviewed, quashed or called into question by any court or administrative review body (cl 52(9)), subject to the four statutory carve-outs in that subclause.

Legal practitioners acting for any party must certify that the defence or claim has reasonable prospects (Form 2 Pt 11) and supply detailed claims information to the registrar within 30 business days of finalisation (cl 97). Failure to do so can itself attract costs sanctions under cl 69.

Plaintiffs’ duties include serving a Form 1 statement of particulars with the statement of claim (cl 23(1)), notifying the registrar of the date of service on the last original defendant (cl 23(5)), providing a timetable (cl 24), updating information (cl 22), and participating in mediation in good faith (cl 37(2)). Rights include choosing joint medical examinations (cl 29(4)), amending the statement of claim without leave before the Form 1 is served (cl 17(3)), and electing to rely on the Form 1 as an affidavit at hearing (cl 67(2)(g)).

Defendants’ duties centre on timely replies (cl 26), early cross-claims (cl 25), agreement or submission to apportionment (cl 51), and good-faith mediation. They have the right to request further particulars (cl 26(7)), to inspect premises (cl 26(7)), to a joint medical examination (cl 29), and to have a Contributions Assessor apply standard Ministerial presumptions (cl 52(4)). A defendant may impose a reasonable monetary limit on an SCM’s settlement authority (cl 64(5)).

The registrar’s rights and duties are largely facilitative but include power to postpone, waive or remit fees (cl 10(2)(b)), to refer claims to mediation or a Contributions Assessor when parties fail to do so (cll 34(3), 52(1)), and to receive and disseminate mediator certificates and agreed-issue statements (cl 40).

Mediators may direct additional information (cl 38), defer mediation within limits (cl 35(2)–(4)), and require evidence on oath for contribution disputes (cl 42). Their certificates as to issues in dispute bind the Tribunal (cl 40(3)).

Parties enjoy privilege and confidentiality protections for mediation communications (cl 48) and immunity for mediators acting in good faith (cl 47). Costs-recovery rights are heavily modulated by compliance: indemnity costs are mandatory in defined circumstances (cll 41, 55(4), 56, 69) unless the Tribunal finds exceptional circumstances and gives reasons (cll 89(3), 90(3)).

The Regulation relies overwhelmingly on costs sanctions rather than criminal penalties. Clause 69(1) requires the Tribunal, when making any costs order, to take into account any failure to comply with Part 3. Clause 69(2) permits an indemnity-costs order for costs occasioned by the failure. Specific triggers include:

• Unmeritorious issues left in dispute after mediation (cl 41(1)–(2)).
• Disputing a fact that is later proved or admitted (cl 41(4)).
• A defendant who disputes an agreed or assessed contribution and fails to improve its position by at least 10 % or $20,000 (cl 55(4)), subject to the three exceptions in cl 55(5).
• An innocent defendant whose reply evidence establishes a complete defence that another defendant disputes (cl 56).
• Bad-faith mediation certified by the mediator (cl 69(3)).

Failure to file a cross-claim within time prevents it being made in the existing proceedings (cl 25(9)), although separate proceedings remain possible and are then caught by Division 6. A Contributions Assessor’s determination is statutorily shielded from judicial review (cl 52(9)), the only statutory ouster of its kind in the Regulation.

Fee-related enforcement is by postponement, remission or refusal to file (cl 10), subject to the pro-bono and pensioner protections in cll 6–7. The registrar may require evidence of Crown or statutory-body status (cl 5(2)).

The Regulation is expressly subordinate to the Dust Diseases Tribunal Act 1989. It cross-references s 33 of the Act (rules of court) and s 34 (fees). Clause 15 declares that the claims-resolution provisions form part of the procedural law of the State, engaging choice-of-law rules in interstate or overseas service cases.

It displaces parts of the Civil Procedure Act 2005 and the UCPR. Clause 17(1)(c) suspends the operation of rules of court and Tribunal directions concerning steps in proceedings or referral to alternative dispute resolution while a claim is in the claims-resolution process. Clause 70(2) excludes the subpoena provisions of the UCPR. Clause 86 displaces UCPR offer-of-compromise rules. Clause 98 modifies the Legal Profession Uniform Law Application Act 2014 so that costs assessments are conducted by the Tribunal registrar rather than the Manager, Costs Assessment, and appeals lie to the President rather than the Chief Justice.

Interaction with the Workers’ Compensation (Dust Diseases) Act 1942 occurs through cl 31, which gives parties access to Dust Diseases Board files. The Compensation to Relatives Act 1897 is accommodated by specific provisions in Forms 1 and 2 and by cl 18 (suspension on death) and cl 21 (resumption).

The Evidence Act 1995 is engaged in cl 48 (mediation privilege), cl 42(8) (hearsay exception for plaintiff evidence taken before a mediator), and cl 85 (preservation of Part 3.10 privileges in subpoena context). The Interpretation Act 1987 supplies default rules for the construction of the Regulation (cl 3(1) note) and for revocation of mediator appointments (cl 36(6) note).

The 2019 Regulation repealed and replaced the 2013 Regulation (cl 100(1)). The principal substantive addition was cl 4A and Schedule 1 Part 2, which introduced automatic annual CPI adjustment of fee units. The formula uses the Sydney All Groups CPI for the December quarter, with base year 2021, rounding to the nearest cent and a floor that prevents reduction (Sch 1 cl 2). The explanatory note to the 2022 amending regulation (335) states that the changes were made to “update fees” and to reflect amendments to the Interpretation Act 1987 and other legislation.

Clause 3 was amended in 2022 to update the definition of “corporation” by direct reference to s 57A of the Corporations Act 2001 (Cth). Schedule 1 fees were substituted three times (2020, 2021, 2022) to reflect CPI movements and policy adjustments, most recently producing a fee unit of $115.59 for 2024–25 (editorial note to Sch 1 cl 2).

The claims-resolution process itself has remained structurally stable since its introduction in the 2005 Regulation, but the 2019 version tightened the interaction between urgency applications and the requirement for a statement of particulars (cl 23(7)), expanded the circumstances in which a claim removed for urgency may be returned after the plaintiff’s death (cl 20(8)), and clarified the continued operation of apportionment after settlement of the plaintiff’s claim (cl 50(2)).

These changes reflect two policy drivers: (1) protecting the real value of Tribunal fees in an inflationary environment, and (2) fine-tuning a pre-hearing filter that, according to the objects in cl 12, is intended to resolve the overwhelming majority of asbestos claims without a contested hearing.

The Regulation itself contains no reported challenges to its validity. Clause 52(9) expressly provides that a Contributions Assessor’s determination “cannot be challenged, reviewed, quashed or called into question before any court of law or administrative review body in any proceedings”, subject to four statutory qualifications that protect the plaintiff, preserve causation principles, maintain joint-and-several liability, and permit subsequent inter-defendant proceedings. No challenge to the breadth of that ouster clause is recorded in the text.

Mediator certificates of bad faith (cl 37(3)) have been controversial in practice because they expose a defendant to indemnity costs yet are issued without a hearing. The Regulation provides no internal review mechanism; the only recourse is costs argument before the Tribunal under cl 69(3). The statutory immunity in cl 47 has not been tested on the face of the instrument.

The binding effect of a cl 40 certificate on the issues in dispute has been the subject of judicial comment in Tribunal reasons (though none are cited in the Regulation). Clause 40(3) requires the Tribunal to determine the claim on the certified issues and facts only. The practical controversy is whether a party can later seek to amend to raise a new issue that emerged after mediation; the Regulation is silent, leaving the matter to the Tribunal’s general powers once the claim returns under cl 67.

The single-claims-manager model (Division 7) has generated debate about whether an SCM’s settlement authority can be limited after the event. Clause 64(5) requires the limit to be imposed reasonably; a mediator certificate of bad faith can be issued if it is not. No appellate guidance appears in the Regulation.

Most practitioners underestimate the rigidity of the timetables. A malignant claim must be referred to mediation within 30 business days (one defendant) or 50 business days (multiple defendants) after service of the Form 1 on the last original defendant (cl 34(1)). The registrar will refer it automatically the next business day if the parties do not (cl 34(3)). Once referred, the mediation must conclude within 45 or 60 business days respectively (cl 35(1)). Deferral is possible but limited and must be added to the outer date.

The Form 1 and Form 2 are not narrative pleadings; they are questionnaires. Omitting a document required by the form or failing to state that it is unavailable triggers cl 38 directions and potential bad-faith certification. The continuing obligation in cl 22 is wider than UCPR r 31.5; it applies to “any relevant new or changed documents or information” and runs until the claim leaves the process.

Clause 40 is a trap. If mediation fails, the parties must agree on issues and facts. The mediator certifies that agreement and it binds the Tribunal. If they cannot agree, each must lodge its own statement, but the costs sanctions in cl 41 for unreasonably leaving an issue in dispute are severe (indemnity costs for preparation and proof). Many parties sign off on an overly narrow agreed-issue document to avoid argument, only to discover at hearing that a critical causation point was inadvertently omitted.

The SCM provisions appear voluntary (cl 63) but once appointed the SCM’s acts bind all defendants (cl 64(2)). A defendant who later wishes to dispute apportionment cannot use the SCM for that purpose (cl 65(1)). The costs-reimbursement formula in cl 66(2) can produce counter-intuitive results when a small defendant with a low apportionment share must still pay half the SCM’s costs on a per-head basis.

Contributions Assessors apply “standard presumptions” published by Ministerial order (cl 52(4)(b)). The current order dates from 2007 and has not been updated; yet the Regulation was made in 2019. The presumptions are heavily weighted against manufacturers and suppliers. A defendant who wishes to argue for a lower share must do so within the narrow variation criteria in the order; the Assessor’s decision is immune from review.

Finally, cl 97 is routinely overlooked. Every legal practitioner who finalises an asbestos claim must lodge a Form 3 within 30 business days. The data populates the Dust Diseases Register. Failure to lodge, or late lodgement, is a breach of the Regulation that the Tribunal must take into account on costs (cl 69).

Compliance begins at filing. A plaintiff’s solicitor must annex a completed Form 1 (or indicate unavailability of documents) and serve it with the statement of claim; until that occurs the claim is not properly served (cl 23(4)). Within five business days the plaintiff must notify the registrar and all original defendants of the date of service on the last original defendant (cl 23(5)). That date starts every subsequent clock.

A defendant’s solicitor must file and serve a Form 2 within 20 business days (malignant, original defendant) or 30/60 business days (non-malignant or cross-defendant). The reply must address each Part relevant to the allegations, attach all presently available evidence, and state what further information or inspection is required. A joint reply is permitted where related corporate defendants share the same solicitor (cl 26(9)).

All parties must update documents and information “as and when any relevant new or changed documents or information become available” (cl 22). The obligation is absolute and continues until the claim leaves the process. In practice this requires a systematic diary system keyed to the service date on the last original defendant.

Mediation preparation requires strict adherence to cl 38 directions. If a mediator directs further information, it must be supplied within five business days (malignant) or ten (non-malignant). Non-compliance without reasonable grounds can ground a bad-faith certificate.

At mediation itself, each defendant must appear by a representative with actual settlement authority (cl 39(5)). An SCM may appear for all, but any defendant wishing to be present may insist on attendance. If a contribution dispute is anticipated, notice under cl 42 must be given at least two business days before mediation commences; late notice is a breach for costs purposes (cl 42(5)).

Apportionment discussions should commence immediately after replies are served. The first defendant must file an agreed apportionment statement within 35 business days (malignant) or 70 (non-malignant) (cl 51(2)). If none is filed the registrar refers the matter to a Contributions Assessor the next business day (cl 52(1)). Defendants should exchange short written submissions limited to the statutory variation criteria; the Assessor is not required to receive oral argument.

When the claim returns to the Tribunal under cl 67, the parties should endeavour to agree a consent timetable before the first directions hearing. The Tribunal will treat defences as filed unless it orders otherwise (cl 67(3)(b)) and will not permit discovery, interrogatories or further particulars unless satisfied that the information was not provided during the claims-resolution process and is necessary to try the remaining issues (cl 67(3)(d)).

Costs arguments should be prepared on an indemnity basis from the outset. Any failure to comply with a timetable, any unmeritorious issue left in dispute, or any bad-faith certificate will be before the Tribunal when costs are argued. The only escape is to persuade the Tribunal that exceptional circumstances exist and that substantial injustice would be caused by the ordinary costs rule (cll 89(2), 90(2)); the Tribunal must give reasons for any such departure.

Legal practitioners must keep cl 97 diaries. Within 30 business days of finalisation (or of costs assessment if later) a Form 3 must be lodged. The form requires granular breakdown of solicitor/client costs, counsel fees, expert reports, disbursements, costs recovered, SCM payments and whether a Contributions Assessor was used. The data is used for systemic monitoring; inaccurate or late returns can themselves attract costs sanctions under cl 69.

In short, compliance is achieved by treating the claims-resolution process as the main event rather than a preliminary filter. Every deadline, every form, every update obligation, and every good-faith requirement must be diarised, resourced and monitored with the same rigour that would be applied to a contested hearing. The costs consequences of error are draconian and, once triggered, are difficult to displace.