52Determination of apportionment failing agreement

#### 52 Determination of apportionment failing agreement 52 Determination of apportionment failing agreement > > (1) If an apportionment statement setting out details of the apportionment of liability agreed to by the defendants has not been filed with the registrar by the end of the period within which the defendants are required to reach agreement as to apportionment, the registrar is to refer the matter to a Contributions Assessor for determination on the next business day following the end of that period. > > > (2) The registrar can delegate to any member of staff of the Tribunal any function of the registrar under this clause (except this power of delegation). > > > (3) The registrar is to notify the plaintiff and each defendant of the referral of a matter to a Contributions Assessor. > > > (4) The Contributions Assessor to whom 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. > > > > Editorial note. > > > > For the standard presumptions as to apportionment determined by the Minister see the [Dust Diseases Tribunal (Standard Presumptions—Apportionment) Order 2007](/view/html/inforce/current/sl-2007-0142). > > > (5) In addition to the documents referred to in subclause (4)(a), a Contributions Assessor may (but need not) take into account any of the following— > > > > > (a) any of the plaintiff’s statement of particulars and the defendants’ replies that were amended after they were first filed, > > > > > (b) any of the defendants’ replies on the claim that were filed late. > > > (6) The defendants may agree that for the purposes of the Contributions Assessor’s determination a particular defendant should not be assumed to be liable to contribute, in which case the defendant is not to be assumed to be liable for that purpose (including for the purposes of the application in that case of the standard presumptions as to apportionment). > > > (7) A Contributions Assessor’s determination is to be made within 40 business days for malignant claims, or 80 business days for non-malignant claims, after service of the plaintiff’s statement of particulars on the last of the original defendants. > > > (8) 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. > > > (9) 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— > > > > > (a) is not binding on the plaintiff, and > > > > > (b) does not change any law relating to causation as between the plaintiff and the defendants, and > > > > > (c) does not displace any law relating to the joint and several liability of the defendants, and > > > > > (d) does not prevent the subsequent taking, or determination by the Tribunal, of a dispute between defendants as to apportionment in a separate proceeding. > > > (10) The registrar is to provide the plaintiff and each defendant with a copy of the Contributions Assessor’s determination as soon as practicable after the determination is made. > > > (11) If there is a clerical mistake, or an error arising from an accidental slip or omission, in a determination of a Contributions Assessor, the Contributions Assessor or another Contributions Assessor may correct the mistake or error— > > > > > (a) of the Contributions Assessor’s own motion within 7 business days after the determination is made, or > > > > > (b) on the application of any defendant (made to the Contributions Assessor whose determination is in question within 7 business days after the determination is made) as soon as practicable after the application for correction is made. > > > (12) A defendant who applies for the correction of a mistake or error must give notice of the application to each other defendant. > > > (13) If a mistake or error is corrected, the Contributions Assessor is to provide the corrected determination to the registrar and the registrar is to provide a copy of the corrected determination to each of the defendants.