Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Amaca Pty Limited v Ugarte [2023] NSWCA 54 Hearing dates: 24 March 2023 Date of orders: 24 March 2023 Decision date: 24 March 2023 Before: Ward P; Basten AJA Decision: (1) Note the undertaking of the applicant to pay the requisite filing fees for the filing of the summons seeking leave to appeal. (2) Applicant to file the notice of appeal restricted to the one ground articulated in oral submissions. (3) Leave to appeal refused with costs. Catchwords: APPEALS – interlocutory appeal – decision of Dust Diseases Tribunal in point of law – continuation of hearing – failure to return matter to claims resolution process – prejudice to parties – no error in point of law COURTS AND JUDGES – review of decision of specialist tribunal – procedure for urgent hearings followed – order in nature of prohibition not warranted Legislation Cited: Dust Diseases Tribunal Act 1989 (NSW), ss 4, 7, 11, 12A, 12B, 13, 32 Supreme Court Act 1970 (NSW), ss 46A, 48, 69 Dust Diseases Tribunal Regulation 2019 (NSW), Pt 3, cll 12, 20 Cases Cited: The Queen v Australian Stevedoring Industry Board; Ex parte Melbourne Stevedoring Co Pty Ltd (1953) 88 CLR 100; [1953] HCA 22 Category: Principal judgment Parties: Amaca Pty Limited (Applicant) Julian Ugarte (Respondent) Representation: Counsel: JC Sheller SC (Applicant) T Moisidis (Respondent) Solicitors: Mills Oakley Lawyers (Applicant) Maurice Blackburn Lawyers (Respondent) File Number(s): 2023/45673 Publication restriction: Nil Decision under appeal Court or tribunal: Dust Diseases Tribunal Date of Decision: 24 March 2023 Before: Strathdee DCJ File Number(s): 2023/45673 [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] JUDGMENT 1. THE COURT: The respondent, Julian Ugarte, recently commenced proceedings in the Dust Diseases Tribunal seeking damages from Amaca Pty Ltd ("Amaca"). Mr Ugarte suffers from peritoneal mesothelioma which, he asserts, resulted from exposure to asbestos fibres released from Amaca's products whilst working as a plumber between approximately 1971 and 1987. 2. Mr Ugarte is 77 years old. He was diagnosed with peritoneal mesothelioma in early August 2022 and underwent significant surgery on 18 August 2022. He was readmitted to St George Hospital on 2 February 2023. His health has deteriorated rapidly in the last few weeks. 3. On 10 February 2023, Mr Ugarte commenced proceedings in the Dust Diseases Tribunal. A week later he filed an amended statement of claim. The current proceedings are based on a further amended statement of claim filed on Monday, 13 March 2023. On 22 March 2023 his solicitors served on Amaca a lengthy statement of particulars, in accordance with the claims resolution process which operates in the Tribunal. 4. As a result of Mr Ugarte's failing health, the Tribunal convened to take evidence from him at St George Hospital on Friday, 24 March 2023. Some brief cross- examination took place, but the process was curtailed by Mr Ugarte's inability to continue. 5. The issue before this Court arose from a statement by the trial judge during the proceedings on 24 March that she intended to continue the hearing on Sunday, 26 March and on Monday, 27 March. On the same day, Friday 24 March, Amaca notified this Court's registry that it sought to commence proceedings seeking leave to appeal from the decision of the trial judge to proceed with the hearing. 6. The matter was listed before two judges of the Court at 3.30pm on Friday 24 March to consider the leave application and, if leave were granted, to consider the appeal. The Chief Justice directed, pursuant to s 46A(2) of the Supreme Court Act 1970 (NSW), that the appeal, being one requiring leave, could be disposed of by such two judges as the President directed. The Court was constituted accordingly. 7. Having heard counsel for Amaca and for Mr Ugarte, the Court made orders as follows: 1. Note the undertaking of the applicant to pay the requisite filing fees for the filing of the summons seeking leave to appeal. 2. Applicant to file the notice of appeal restricted to the one ground articulated in oral submissions. 3. Leave to appeal refused with costs. The Court reserved its reasons, which it now publishes. Procedural background 1. The Tribunal, established under the Dust Diseases Tribunal Act 1989 (NSW) ("Tribunal Act"), is a court of record (s 4(2)) and is constituted by a judge: s 7(2). The Tribunal is generally constituted by a judge of the District Court and is so constituted (by Judge Strathdee) for the purposes of the present proceeding. 2. The Tribunal has exclusive jurisdiction in respect of claims for damages for breach of duty resulting in injury or death caused by a "dust-related condition": s 11. There is no dispute that the Tribunal's jurisdiction was properly engaged in the present case. 3. There is no limitation period applicable to proceedings in relation to dust-related conditions: s 12A. Not only is allowance thus made for the fact that many such conditions have long latency periods, but allowance is also made for the fact that once a person becomes symptomatic, the period between diagnosis and death may be severely curtailed. The Tribunal Act provides that where death occurs, the estate of the person may recover damages for the person's pain or suffering and for curtailment of life expectancy, provided proceedings were commenced by the person and were pending in the Tribunal before his or her death: s 12B. To that extent, the Tribunal Act operates by way of exception to the provisions in the Law Reform (Miscellaneous Provisions) Act 1944 (NSW) in relation to the damages recoverable where a cause of action survives the plaintiff's death. However, damages for loss of earning capacity do not survive death. The Court was advised by counsel that if the proceedings were not completed in Mr Ugarte's lifetime, his estate would suffer a loss in the order of $150,000. 4. Parties familiar with the jurisdiction and procedure of the Tribunal are conscious of the speedy processes commonly adopted. These are supported by s 13(5) of the Tribunal Act which states that a decision of the Tribunal is not liable to be vitiated "because of any informality or want of form". 5. The Dust Diseases Tribunal Regulation 2019 (NSW), Pt 3, provides for a "[c]laims resolution process for asbestos-related conditions". The purpose of the claims resolution process is to foster the early provision of information and particulars concerning claims, to encourage early settlement and to reduce associated legal and administrative costs: cl 12. Lodging a claim for an asbestos-related condition automatically engages the claims resolution process and removes the claim from the ordinary procedural steps provided by the Tribunal Act and rules, except to the extent that the Regulation otherwise provides. However, a claim may be removed from the claims resolution process in circumstances covered by cl 20, which relevantly states: 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 … … (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. … (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. 1. Returning to the Tribunal Act, there is provision for an appeal to this Court where a person is "dissatisfied with a decision of the Tribunal in point of law or on a question as to the admission or rejection of evidence": s 32(1). There is a privative clause in the Tribunal Act (s 13(5)), but that provision expressly excludes from its operation appeals under s 32 and proceedings under s 48 of the Supreme Court Act. Section 48 provides for the jurisdiction of this Court in relation to a "specified tribunal", a term which includes the Dust Diseases Tribunal: s 48(1)(iia). Section 48(2) assigns proceedings to this Court in relation to specified tribunals, by reference to such jurisdiction as that conferred under s 69 of the Supreme Court Act. The Court therefore has jurisdiction to consider appeals on points of law and, more generally, proceedings in its supervisory jurisdiction, including for breach of procedural fairness. Determination of present application 1. Amaca did not challenge the decision of the trial judge to remove the claim from the claims resolution process for the purpose of taking evidence from Mr Ugarte. Amaca did not subsequently suggest the claim was not "urgent" in the terms defined in cl 20(2); the power of the judge to remove the claim from the claims resolution process was thus engaged. 2. Rather, Amaca submitted that it would be prejudiced by the judge's decision that the matter would continue according to the timetable fixed by the trial judge, because it (Amaca) would have no opportunity to take the procedural steps which might otherwise be available to it to obtain evidence and prepare its defence. The factual premise may be accepted, namely that a process by which the claim was considered and determined within a matter of days might well cause prejudice to Amaca. On the other hand, it was also accepted by the parties that failure to determine the claim before the claimant's death would cause loss to the claimant and his estate. 3. In these circumstances, the nature of the application in this Court was by no means clear. No application was made to the trial judge to adjourn the proceedings for a period, because, as Amaca submitted, it was clear that such an application would be refused, consistently with the removal of the case from the claims resolution process. However, that concession was telling. The purpose of removing the matter from the claims resolution process was so that it could be determined expeditiously. The Court was not taken to any provision by which it should return to the claims resolution process once the claimant's evidence had been taken. For example, cl 20(8), set out above, did not have that effect. 4. On what basis was an error of law asserted in circumstances where it was open to the judge to remove the matter from the claims resolution process and then continue to deal with it expeditiously? If it were submitted that, although the decision to remove the proceeding from the claims resolution process was initially valid, to continue to deal with it as a matter of urgency was procedurally unfair, or that the resulting determination would be legally unreasonable, some element beyond a mere weighing of the respective prejudices would need to be identified. Nothing taking the matter beyond a reasonable exercise of the Tribunal's powers was demonstrated. 5. Whatever the form of the proceeding in this Court, in effect Amaca sought prohibition against a specialised Tribunal carrying out its statutory function in accordance with its powers and procedures, under its rules and in accordance with the Regulation. As a matter of principle, the Court would be slow to intervene prior to the Tribunal making its decision. As explained in The Queen v Australian Stevedoring Industry Board; Ex parte Melbourne Stevedoring Co Pty Ltd: [1] "Now it might be said that until an order for cancellation or suspension of the registration of an employer has been actually made the Court ought not to consider whether the basis for making such an order is so wanting that the power has not arisen or whether to exercise the power means the application of an erroneous test or some other abuse, and that accordingly the Court should withhold the writ until the result of the inquiry is known." 1. The High Court noted that the existence of a strong privative provision afforded a reason for the Court to intervene in advance of a decision being made. The joint reasons continued: [2] "But the chief point of difficulty in the case lies in the distinction between on the one hand a mere insufficiency of evidence or other material to support a conclusion of fact when the function of finding the fact has been committed to the tribunal and on the other hand the absence of any foundation in fact for the fulfilment of the conditions upon which in point of law the existence of the power depends." 1. Even greater caution should be exercised in circumstances where there is no doubt that the power is engaged, and the concern is at best that it may be exercised in a manner which will ultimately prove to be unfair or unreasonable. Not only should the Court not assume illegality in an uncompleted process, but the circumstances are such that, in accordance with the statutory scheme, the nature of procedural fairness which would apply in ordinary civil proceedings has been significantly reduced to allow for the determination of matters of urgency. 2. Furthermore, apart from the limited ability of a party to review findings of fact, there is no privative clause which would remove the opportunity for an appeal on a question of law or a challenge in the supervisory jurisdiction of the Court to the ultimate determination of the Tribunal. 3. On the other hand, if the Court were to intervene to prevent the Tribunal completing its process expeditiously, it is not at all clear that the resultant prejudice to the claimant or the claimant's estate could be rectified in the event that he died before the claim was determined. 4. Finally, there remained, at the date of hearing, at least the possibility that the proceeding in the Tribunal would not be determined before the death of Mr Ugarte. Conclusion 1. In these circumstances it was unclear that Amaca had raised any point of law supporting a challenge to the continuation of the hearing on an urgent basis in the Tribunal. For these reasons, the Court refused leave to appeal. ********** Endnotes 1. (1953) 88 CLR 100 at 118 (Dixon CJ, Williams, Webb and Fullagar JJ); [1953] HCA 22. 2. Melbourne Stevedoring Co at 119. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 28 March 2023