20Removal of certain claims from claims resolution process

#### 20 Removal of certain claims from claims resolution process 20 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, or > > > > > > Note. > > > > > > 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 process. > > > > > (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, or > > > > > (d) the Tribunal determines, of its own motion, that the claim should be removed from the claims resolution process because no documents have been filed, and the claim has not otherwise progressed in the claims resolution process, within the previous 12 months. > > > (2) A claim is urgent only if the Tribunal is satisfied that, as a result of the seriousness of the claimant’s medical condition— > > > > > (a) 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, or > > > > > (b) the claimant is not likely to be able to give oral evidence or participate in Tribunal processes once the claims resolution process is completed. > > > (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 under subclause (1)(b) or (c) is required under clause 67 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 of Divisions 4 and 5 to the claim, and— > > > > > (a) if the Tribunal does so order— > > > > > > > (i) those Divisions 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 Divisions to the claim, order that those Divisions apply subject to specified modifications, and > > > > > > > (iii) the Tribunal must by its order specify the period within which mediation or apportionment under the applied Divisions must be completed, or > > > > > (b) if the Tribunal does not so order despite an application for an order by a party to the claim, the Tribunal must give its reasons for not so ordering. > > > (8) If a claim has been removed from the claims resolution process under subclause (1)(a) and the plaintiff to the claim has died after that removal, the claim is returned to the claims resolution process (and becomes subject to that process) on the occurrence of either of the following events— > > > > > (a) if a hearing date for the claim had not been set before the plaintiff’s death—the Tribunal grants leave to amend the statement of claim to substitute the plaintiff or to add a compensation to relatives claim (unless each of the parties to the claim notifies the registrar in writing that the parties have agreed that the claim should not be returned to the claims resolution process), > > > > > (b) if a hearing date for the claim had been set before the plaintiff’s death—each of the parties to the claim has notified the registrar in writing that the parties have agreed that the claim should be returned to the claims resolution process. > > > > > > Note. > > > > > > If the parties do not come to the agreement referred to in paragraph (b), the claim is not returned to the claims resolution process and will continue to be dealt with by the Tribunal. > > > (9) Without limiting subclause (1)(a), medical evidence may be presented for the claimant for the purposes of subclause (1)(a)— > > > > > (a) by means of an affidavit that sets out a medical opinion that has been given orally (including an affidavit by a person who heard the oral medical opinion of the medical practitioner concerned), and > > > > > (b) even if there has not been compliance with the provisions of rule 31.23 of the [Uniform Civil Procedure Rules 2005](/view/html/inforce/current/sl-2005-0418) (including the expert witness code of conduct in Schedule 7 to those Rules). > > > (10) If evidence under subclause (9) is not available, evidence of the following matters may be presented by means of an affidavit by the claimant’s spouse or de facto partner, the claimant’s legal practitioner or other person— > > > > > (a) the claimant’s age, > > > > > (b) the nature of the claimant’s dust-related condition, > > > > > (c) the date the claimant was diagnosed with a dust-related condition, > > > > > (d) any other diagnosed medical conditions, > > > > > (e) whether or not the claimant is receiving palliative treatment.