Dust Diseases Tribunal New South Wales Medium Neutral Citation: Winch v Amaca Pty Limited (discontinued 22.09.2011) and The Trustees of The Sydney Grammar School [2011] NSWDDT 8 Hearing dates: 22 September 2011 Decision date: 07 October 2011 Before: Kearns J Decision: I dismiss the second defendant's motion filed on 13 September 2011. I order the second defendant to pay the plaintiff's costs. Catchwords: Dust Diseases Tribunal; notice of motion; claim for nervous shock; whether within the jurisdiction of the Tribunal; whether within the claims resolution process; whether Form 1 particulars should be struck out on the basis that nervous shock is not an asbestos-related condition Legislation Cited: Dust Diseases Tribunal Act 1989; Compensation to Relatives Act 1987; Dust Diseases Tribunal Regulation 2001, 2005 Cases Cited: Mangion v James Hardie & Co Pty Limited (1990) 20 NSWLR 100; Laminex (Australia)Pty Ltd (t/as Laminex Industries) v Coutts [2006] NSWCA 186; Seltsam Pty Ltd v Energy Australia [1999] NSWCA 89 Category: Procedural and other rulings Parties: Jessie Winch (Plaintiff) Amaca Pty Limited (First Defendant) (Discontinued 22 September 2011) The Trustees of Sydney Grammar School (Second Defendant) Representation: Mr Semmler QC instructed by Turner Freeman appeared for the plaintiff Mr T G R Parker SC instructed by Toomey Pegg Lawyers appeared for the second defendant File Number(s): DDT71/2010 Judgment Introduction 1Mr Winch contracted mesothelioma and died as a result. The plaintiff is his daughter. As a result of his illness and death, the plaintiff suffered nervous shock. Mr Winch's illness and death and the plaintiff's nervous shock were caused by the negligence of the second defendant. Some or all of these facts may be contentious, but they may be taken to be established for the purposes of the application before me. That application is that the proceedings be dismissed for want of jurisdiction or that directions be given for the further conduct of the proceedings on the basis that the claims resolution process (CRP) does not apply to the proceedings. The issues 2Three questions arise. (1) Does the Tribunal have jurisdiction to hear the plaintiff's case? (2) If it does, do the proceedings come under the CRP? (3) If they do, should the plaintiff's particulars be struck out as being misconceived on the basis that she brings her claim as one in relation to an asbestos-related condition when it is not? (1) Jurisdiction 3To determine whether the Tribunal has jurisdiction it is necessary to turn to ss10, 11 and 12 of the Dust Diseases Tribunal Act 1989 (DDT Act). Relevantly, they provide: 10(1) The Tribunal has, except as provided by sections 29 and 32, exclusive jurisdiction to hear and determine proceedings referred to in sections 11 and 12; 11(1) If- (a) a person is suffering, or has suffered, from a dust-related condition or a person who has died was, immediately before death, suffering from a dust-related condition, and (b) it is alleged that the dust-related condition was attributable or partly attributable to a breach of a duty owed to the person by another person, and (c) the person who is or was suffering from the dust-related condition or a person claiming through that person would, but for this Act, have been entitled to bring an action for the recovery of damages in respect of that dust-related condition or death, proceedings for damages in respect of that dust-related condition or death may be brought before the Tribunal and may not be brought or entertained before any other court or tribunal. (1A) Proceedings by any tort-feasor liable in respect of damages referred to in subsection (1) to recover contribution from any other tort-feasor liable in respect of that damage may be brought before the Tribunal. (2) In subsection (1), a reference to a duty includes a reference to a duty imposed by statute as well as a duty imposed under the common law. (3) If the cause of action giving rise to proceedings to be brought under subsection (1) or (1A) also gives rise to a claim in respect of some other matter, the claim may be included in those proceedings even though it does not relate to a dust-related condition from which a person is suffering or has suffered. (4) Any matter that is ancillary or related to a matter that is the subject of proceedings to be brought under subsection (1) or (1A) may also be included in those proceedings. (5) In subsection (1) (c), the reference to a person claiming through a person who is or was suffering from a dust-related condition includes a reference to a relative for whose benefit an action may be brought under the Compensation to Relatives Act 1987. 12(1) If- (a) on the commencement of this section, proceedings of the kind referred to in section 11 (1) are pending in the Supreme Court and the hearing of those proceedings has not begun, or (b) after that commencement, proceedings of that kind are brought or are pending in the Supreme Court, the registrar of the division of that Court in which the proceedings are pending or are brought must transfer the proceedings to the Tribunal, together with any ancillary or related matters. (2) If- (a) on the commencement of this section, proceedings of the kind referred to in section 11 (1) are pending in the District Court and the hearing of those proceedings has not begun, or (b) after that commencement, proceedings of that kind are brought or are pending in the District Court, the registrar of that Court for the place where the proceedings are pending or are brought must transfer the proceedings to the Tribunal, together with any ancillary or related matters. 4The question that arises is whether the plaintiff's claim for damages for nervous shock falls within the Tribunal's jurisdiction, being exclusive jurisdiction. Mr Parker SC, who appeared for the second defendant, submitted that the plaintiff's claim is not within the jurisdiction of the Tribunal because the plaintiff is not suffering from a dust-related condition (s11(1)(a)) and nor is she a person claiming through a person suffering from a dust-related condition (s11(1)(c)). I am of the view that the first part of the second defendant's submission is correct, but the second part is not. Mangion v James Hardie & Co Pty Limited (1990) 20 NSWLR 100 mandates that view. There was dispute as to what Mangion determined. It is therefore necessary to examine it to determine its ratio. 5In Mangion , three actions were brought in the Supreme Court. The plaintiffs sought to recover damages in respect of the deaths of their husbands who all died from dust diseases. Each plaintiff brought proceedings under the Compensation to Relatives Act 1897. One plaintiff also claimed damages for nervous shock. The proceedings were all on foot when the DDT Act was passed. The Registrar of the Supreme Court then transferred all proceedings to the Tribunal in conformity with s12(1) of the DDT Act. When the proceedings came before O'Meally J, as he then was, he held that the Tribunal lacked jurisdiction and he remitted the matters to the Supreme Court. They came before Wood J, as he then was. Wood J ordered that the jurisdiction question should be determined as a preliminary issue and, to this end, he ordered questions of law be removed to the Court of Appeal for the Court of Appeal to determine. The questions the Court of Appeal was required to determine were: (1) Is the Dust Diseases Tribunal Act 1989 effective to confer upon the Dust Diseases Tribunal of New South Wales jurisdiction in proceedings in respect of the death of a person caused by a dust-related condition where proceedings are brought for damages pursuant to the Compensation to Relatives Act 1987? (2) Is the Dust Disease Tribunal Act 1989 effective to confer upon the Dust Diseases Tribunal of New South Wales jurisdiction in proceedings in respect of the death of a person caused by a dust-related condition where proceedings are brought for damages pursuant to the Law Reform (Miscellaneous Provisions) Act 1944, s 3, for nervous shock? (Mangion at 102E-F) 6The Court of Appeal held that the Tribunal had jurisdiction. Mr Parker submitted that the Court of Appeal, having held that the Tribunal had jurisdiction in the Compensation to Relatives cases, it therefore determined that the Tribunal had jurisdiction and its determination on the nervous shock question was unnecessary for its decision and accordingly was obiter. I disagree. 7There were four causes of action in Mangion . Three were for damages pursuant to Compensation to Relatives Act . They were the subject matter of the first question. One was for damages for nervous shock. That was the subject matter of the second question. The Court of Appeal needed to resolve both. To have answered the first question and not the second would have left unanswered the question as to whether the nervous shock claim should proceed in the Tribunal. Further, in answering the first question, yes, it did not necessarily follow that the answer to the second question would be yes. This is self-evident. It is also clear from the reservations expressed by Mahoney JA in relation to that question. Accordingly, it was essential that both questions be answered. 8At 104G - 105B, Samuels AP noted the distinction between the two different causes of action being brought, namely the Compensation to Relatives action and the nervous shock action. He was there pointing out the nature of a Compensation to Relatives action being a derivative action whereas a nervous shock action was not. He then turned to s11 and s12 and stated that the words "claiming through" in s11(1)(c) should be given "a sufficiently liberal construction to prevent the frustration of the statutory purpose" (105F) of having all proceedings in respect of injury or death caused by dust related conditions determined by the Tribunal. He thought that the language of the Act allowed that a claim for nervous shock would be a claim made "through" the deceased (105F). He thought that to read "through" so as to exclude nervous shock claims when claims in respect of death were clearly within the Tribunal's jurisdiction would be "manifestly absurd or unreasonable" (106C). Clarke JA agreed with Samuels AP. Mahoney JA had reservations, but did not dissent. 9The result is clear and that is that the Court of Appeal held that a claim for nervous shock emanating from the illness or death of a person with a dust-related condition is a claim which falls within the jurisdiction of the Tribunal. 10Mr Parker presented a number of submissions to the effect that Mangion no longer stands as binding authority in respect of nervous shock claims. The arguments include that: * the later passing s11(5), because it refers to Compensation to Relatives and not nervous shock, indicates that nervous shock is no longer covered by the language of s11(1)(c); * the structure of the CRP is incompatible with nervous shock claims being included within the Tribunal's jurisdiction; * to include nervous shock claims within the Tribunal's jurisdiction would produce a number of anomalies. 11I do not find any of these submissions persuasive. The submission that s11(1)(c) has acquired a different meaning because of the introduction of s11(5) is answered by at least two cases decided after s11(5) came into force. They are Laminex (Australia)Pty Ltd (t/as Laminex Industries) v Coutts [2006] NSWCA 186 and Seltsam Pty Ltd v Energy Australia [1999] NSWCA 89 . 12Those cases do not raise the issue that has been raised here. It is significant to note, however, that Mangion was decided very soon after the DDT Act came into force. Cases have applied it. It has stood for over 20 years without being overruled. 13In any event, Mr Parker's submissions are answered by a more compelling, competing position. This is that s11, as originally enacted and so held by Mangion , gave the Tribunal jurisdiction to hear appropriate nervous shock claims. If that jurisdiction was to be taken away from the Tribunal, I would expect that it would be done so by the use of clear and unambiguous language, rather than by the cryptic and obtuse way in which it is said to have been done, if Mr Parker's submission is correct. 14In 1990, the Court of Appeal in Mangion decided that the Tribunal had jurisdiction for appropriate nervous shock claims. No alteration to the Act and nothing in the Dust Diseases Tribunal Regulation 2001 and 2007, has addressed this item on the "menu" ( Mangion, 106D) of the Tribunal's jurisdiction. 15In my view, Mangion stands and the Tribunal has jurisdiction to hear the plaintiff's claim. (2) Do the proceedings come under the CRP? 16Mr Semmler QC, who appeared for the plaintiff, submitted that the language of the Regulation, which brings matters under the CRP, is similar to the language of s11, which brings this case within the jurisdiction of the Tribunal. Therefore, it is argued, giving the language the same meaning, the result that follows is that this claim comes within the CRP. Mr Parker submitted that the language and structure of the CRP are unsuited to, if not incompatible with, nervous shock claims such that these claims do not come under CRP. It is necessary to refer to several parts of the Regulation. 17The Dust Diseases Tribunal Regulation was first introduced in 2001. It was replaced by a new Regulation, largely similar, in 2007. It is sufficient to refer to the 2007 Regulation. 18Part 4 of the Regulation is headed " Claims resolution process for asbestos-related conditions ". I set out those clauses, or parts of clauses, relevant to a consideration of this question. 12. asbestos-related condition means a dust-related condition that is asbestosis, asbestos induced carcinoma, an asbestos-related pleural disease or mesothelioma. claim means a claim in proceedings in the Tribunal brought or to be brought under section 11 of the Act or transferred under section 12 of the Act. claims resolution process means the provisions of this Part. compensation to relatives claim means a claim on a cause of action under the Compensation to Relatives Act 1897 . malignant claim means a claim in respect of asbestos induced carcinoma or mesothelioma (whether or not the claim is also in respect of any other dust-related condition). non-malignant claim means a claim in respect of an asbestos-related condition that is not asbestos induced carcinoma or mesothelioma (and that is not a malignant claim). 13. The objectives of the claims resolution process are as follows: (a) to foster the early provision of information and particulars concerning claims in respect of asbestos-related conditions, (b) to encourage early settlement of those claims, (c) to reduce legal and administrative costs in connection with those claims. 14. This Part applies to a claim in respect of an asbestos-related condition that is made by the person who is or was suffering from the asbestos-related condition (or by a person claiming through that person, including a compensation to relatives claim) or that is a cross-claim by a defendant on such a claim. 15. A reference in this Part to the service of the plaintiff's statement of particulars on the last of the original defendants is a reference to service under Division 3 of the plaintiff's statement of particulars: (a) if there is only one original defendant-on that defendant, or (b) if there is more than one original defendant-on the last of the original defendants to be served. 18. (1) A claim to which this Part applies is subject to the claims resolution process once the claim is filed. (2) A claim remains subject to the claims resolution process: (a) until the claim is settled by mediation or otherwise and the Tribunal makes an order to give effect to the settlement, or (b) if the claim is not settled by the time mediation is concluded-until mediation is concluded and clause 37 (Unsuccessful mediation-agreement as to issues in dispute) has been complied with. ... (4) If a significant change in the medical condition of the plaintiff occurs after the claim is filed, the parties to the claim can agree (on one or more occasions) to suspend the claims resolution process for a period of up to: (a) 10 business days for malignant claims, or (b) 20 business days for non-malignant claims, with the result that during any such suspension time does not run for the purposes of any period within which anything is required to be done by a party under the claims resolution process. 20. (1) If the plaintiff dies, the claims resolution process is suspended until: (a) the Tribunal amends the statement of claim to add a compensation to relatives claim, or (b) the claimant notifies the parties to the claim that the matter is ready to proceed, with the result that during that suspension time does not run for the purposes of any period within which anything is required to be done by a party under the claims resolution process. 24. (1) The plaintiff on a claim must file and serve on each original defendant (with the plaintiff's statement of claim) a statement of particulars of the plaintiff's claim. (2) The plaintiff's statement of particulars: (a) must be in the form set out in Form 1 in Schedule 2, and (b) must specify the information that is required to complete that form, and (c) must be accompanied by such documents and information as that form requires (and is not required to be accompanied by any other documents or information). (3) If documents or information required to accompany the plaintiff's statement of particulars is not available to the plaintiff when the statement of particulars is filed and served: (a) the statement must indicate this, and (b) the plaintiff must provide the documents or information to each original defendant as and when they become available to the plaintiff. (4) The plaintiff's statement of claim in the proceedings is not properly served on the defendant until the statement of particulars has been served on the defendant. 26. (1) A defendant in proceedings must file and serve on the claimant and each other party to the claim (including other defendants) a reply to the claim against the defendant. (2) The defendant's reply: (a) must be in the form set out in Form 2 in Schedule 2, and (b) must specify the information that is required to complete that form, and (c) must be accompanied by such documents and information as that form requires (and is not required to be accompanied by any other documents or information), and (d) in the case of the reply served on the plaintiff, need not specify the information required by Part 8 (Apportionment of liability among defendants) of that form. 19Form 1 is a most comprehensive document. It requires a plaintiff to provide extensive information on a number of subjects including: * personal details; * medical condition; * treating medical practitioners and other medical practitioners and health care providers; * provision of medical authorities; * work history; * exposure history, both at work and away from work; * smoking history; * details of general damages claimed; * details of past economic loss and future loss of earning capacity; * future medical and other care; * out-of-pocket expenses; * services provided to others; * house modifications; * Government benefits received; * workers' compensation or other insurance payments received; * Dust Diseases Board claims. 20Form 2 is no less detailed in its requirements than Form 1. 21The Regulation sets times for the exchange of this detailed information between the parties. 22Mr Semmler's submission on the similarity of the language between the Regulation and the Act draws on clause 14 of the Regulation and s11(1)(c) of the Act. In particular, it draws on use of the word "through" in both provisions. I think Mr Semmler's submission is correct. 23Section 11 requires three things to be satisfied before the Tribunal has jurisdiction. In the context of this case, they are: (1)Mr Winch must have been a person who immediately before his death suffered from a dust-related condition. That is satisfied; (2)Mr Winch's dust-related condition must have been allegedly attributable to the negligence of another. That is satisfied; (3) "the person who is or was suffering from the dust-related condition" (Mr Winch) "or a person claiming through that person would, but for this Act, have been entitled to bring an action for the recovery of damages in respect of that dust-related condition or death". This requirement is expressed in the alternative. One reading of it would be that the requirement is satisfied if either Mr Winch or a person claiming through him would be entitled to bring an action. It could be said that the requirement is satisfied simply on the basis that one of those alternatives is satisfied, namely that Mr Winch would have been entitled to bring an action. I do not think that is a proper reading of the provision. I think a proper reading is that the first of the alternatives applies where Mr Winch is the plaintiff and the second of the alternatives applies where "a person claiming through" him is the plaintiff. The question then is whether the plaintiff is a person claiming through Mr Winch. That is one question. There is then a further question and that is if the plaintiff is a person claiming through Mr Winch, is her action for the recovery of damages "in respect of that dust-related condition or death"? 24I have already addressed Mangion . The Court of Appeal held that a nervous shock claim comes within the Tribunal's jurisdiction. It does so because a plaintiff is a person claiming "through" the person who suffered a dust-related condition. It follows that nervous shock claims are "proceedings for damages in respect of that dust-related condition or death" and are to be brought in the Tribunal - s11(1)(c). 25When one then goes to clause 14, one sees that the CRP applies to "a claim in respect of an asbestos-related condition". This is sufficiently close to the terminology of s11 that the same meaning should be given to the phrase in clause 14 as is given to the phrase in s11. The difference in the reference to "dust-related condition" in s11 and "asbestos-related condition" in clause 14 is of no moment. Section 11 is dealing with all cases in which the Tribunal has jurisdiction. Clause 14 is limited to asbestos-related conditions because the CRP has taken a category of case, asbestos cases, within the Tribunal's jurisdiction and subjected that category to the CRP. 26Mr Parker made a number of submissions as to why these proceedings are not subject to the CRP. He submitted: * the plaintiff does not have an asbestos-related condition within the meaning of clause 12. That is so, but that is not the only question. Clause 12 defines "asbestos-related condition". Clause 14 then states that the CRP applies to a claim in respect of an asbestos-related condition made by the person suffering from it "or by a person claiming through that person". Mangion establishes that the plaintiff is a person claiming "through" Mr Winch; * the timetables set by the CRP are timetables for a malignant or non-malignant asbestos-related condition and they are exhaustive. There is no scope for a timetable for nervous shock. This argument serves to illustrate that there are anomalies however the Regulation is interpreted. A plaintiff who suffers both mesothelioma and silicosis would clearly have a claim within the jurisdiction of the Tribunal. On Mr Parker's submission, a mesothelioma claim would be subject to the CRP, but a silicosis claim would not. This means that in the one proceeding, the case would be subjected to two sets of procedures, one under the CRP for mesothelioma and one out side the CRP for silicosis. There would be different time frames for the taking of certain steps. One part of the proceedings would be subject to the compulsory mediation process and the contributions assessment process and one part would be not so subject. This serves to illustrate that seeking guidance as to the interpretation of the regulation by reasoning from anomalies can be an unreliable process; * the structure of the CRP does not mention or contemplate nervous shock claims. The submission proceeds that to be within the CRP, one would have to say that the asbestos-related condition contemplated by clause 14 is Mr Winch's condition. That much is so, but one needs to go further in accordance with Mangion and note that the plaintiff is a person claiming "through" Mr Winch. This submission proceeds to the effect that Mr Winch's claim would be a malignant claim, but he died in 2007 and the plaintiff's condition is not life-threatening. This outcome is said to be bizarre. It would be just as bizarre in relation to a Compensation to Relatives claim, yet a Compensation to Relatives claim is clearly within the CRP. One can go further and look to Form 1 where much of the information sought is quite inappropriate to a Compensation to Relatives claim. That form is just as inappropriate to a Compensation to Relatives claim as it is to a nervous shock claim. The plaintiff's submission must resolve to Compensation to Relatives claims being included in the CRP because the CRP expressly says so and nervous shock claims being excluded because they have not been included. For reasons given, I do not think that submission should be upheld. 27I consider this claim does come within the CRP. (3) Should the plaintiff's particulars be struck out? 28Before I come to this issue, there are some clauses of the Regulation I need to consider. I set them out. 18. (1) A claim to which this Part applies is subject to the claims resolution process once the claim is filed. (2) A claim remains subject to the claims resolution process: (a) until the claim is settled by mediation or otherwise and the Tribunal makes an order to give effect to the settlement, or (b) if the claim is not settled by the time mediation is concluded-until mediation is concluded and clause 37 (Unsuccessful mediation-agreement as to issues in dispute) has been complied with. 19. (1) While a claim is subject to the claims resolution process: (a) the parties to the claim must comply with the provisions of this Part, and (b) proceedings in the Tribunal to determine the claim are deferred and the claim is not subject to case management by the Tribunal, and (c) the claim is not subject to the provisions of rules of court, or any direction or order of the Tribunal under a provision of the Act, any other Act or rules of court, as to any steps to be taken in proceedings on the claim or for the referral of the claim for alternative dispute resolution, such as mediation. (2) This clause does not affect the application of the practice and procedures of the Tribunal with respect to: (a) the service of the statement of claim on the defendant, including the service of the statement of claim outside Australia, or (b) the amendment of the statement of claim to join a party before the plaintiff's statement of particulars is served, or (c) the amendment of the statement of claim to join a party to the claim at the request of the plaintiff where the Tribunal is satisfied that it is necessary to do so to preserve the plaintiff's cause of action, or (d) the amendment of the statement of claim to add a compensation to relatives claim after the death of the plaintiff, or (e) the making of cross-claims, except to the extent of any inconsistency with clause 25 (Cross-claims by defendant), or (f) the making of orders to give effect to any agreement or arrangement between the parties, whether resulting from an offer of compromise or otherwise, or (g) the issue and return of subpoenas, or (h) the granting of leave to commence an action under section 6 of the Law Reform (Miscellaneous Provisions) Act 1946, or (i) the amendment of the statement of claim to discontinue proceedings against a party. 22. (1) A claim is removed from (and is therefore not subject to) the claims resolution process if: ... (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. ... (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. 65. (1) This clause applies to the following claims: (a) a claim that has completed the claims resolution process without being settled, (b) a claim that has ceased under Division 2 to be part of the claims resolution process pursuant to the agreement of the parties, (c) a claim that the Tribunal has determined under Division 2 should be removed from the claims resolution process because of a failure to comply with a requirement of the claims resolution process. (2) The following provisions apply to claims to which this clause applies except a claim described in subclause (1) (c): (a) the Registrar must set the claim down for a directions hearing before the Tribunal to take place within 10 days for malignant claims or 20 days for non-malignant claims, (b) the plaintiff or, if the plaintiff's claim has been settled and cross-claims remain to be determined, the first defendant must propose in writing to the remaining parties what further steps (if any) need to be taken to prepare the matter for hearing, together with a timetable for completing those steps, (c) if the parties agree on those steps and the timetable, written notice of the agreement must be provided to the Registrar and the Tribunal must enter orders to give effect to that agreement. (3) The following provisions apply to all claims to which this clause applies: (a) the Tribunal may, subject to this subclause, make orders and give directions to the parties as to the steps to be taken to prepare the claim for hearing and for that purpose may order the amendment of the plaintiff's statement of claim, (b) a defence is taken to have been filed to the claim and to any cross-claims, unless the Tribunal orders that a defence must be filed, (c) the Tribunal may only order that a defence be filed in relation to matters that remain in dispute and only if the Tribunal is satisfied that it is necessary to do so to ensure that the outstanding issues in dispute are properly tried, (d) the parties to the claim cannot administer interrogatories, order discovery or issue requests for particulars unless leave to do so is granted by the Tribunal, and the Tribunal may only grant that leave where it is satisfied that: (i) the information sought by the party has not been provided as part of the information exchange process, and (ii) the information relates to issues that remain in dispute, and (iii) the order is necessary to ensure that the outstanding issues in dispute are properly tried, (e) rule 8A (Personal injuries cases; particulars) of Part 33 of the Supreme Court Rules 1970 and rules 15.12 and 15.13 of the Uniform Civil Procedure Rules 2005 do not apply to the claim, (f) the plaintiff may file an affidavit (but only in relation to issues that remain in dispute) and for that purpose may rely on the plaintiff's statement of particulars, (g) the Tribunal cannot require the plaintiff to file an affidavit if the plaintiff elects to rely on the plaintiff's statement of particulars served under Division 3 (or specified parts of that statement) as the plaintiff's affidavit (including any necessary changes made to that statement in the course of information exchange), (h) the Tribunal may not refer the claim or any aspect of the claim to mediation or neutral evaluation and may not refer a dispute as to apportionment concerning the claim to arbitration. 29I have determined that the plaintiff's claim is one to which Part 4 of the regulation applies. The removal clause, clause22, has not been invoked and does not apply. The effect of clause 18 is that the plaintiff's claim remains subject to the CRP. The effect of this is that clause 19 applies. This means that while the claim is subject to the CRP: * "the claim is not subject to case management by the Tribunal" (clause 19(1)(b); * "the claim is not subject to ... any direction or order of the Tribunal ... as to any steps to be taken in proceedings on the claim" * (clause 19(1)(c)). 30Clause 19(2) permits the Tribunal to make directions or orders in particular instances, but this case does not come within that provision. Clause 65 permits the Tribunal to give directions and make orders for the conduct of certain proceedings, but this clause has not been invoked and does not apply. 31The result is that clause 19 applies and I am unable to make the order sought by the second defendant. To do so, would be to make an order as to a step to be taken in the proceedings and would be contrary to clause 19(1)(c). 32Having said that, however, I would make an observation about Mr Parker's submission. The submission is that the document of particulars is misconceived. I take it that that submission goes to the document's answers rather than its questions. I get that from the follow-up submission which is that the plaintiff needs to go away and re-do the answers speaking as to Mr Winch rather than as to the plaintiff herself. It seems to me this would be an absurd position. The first question in Form 1 is "What asbestos-related condition have you been diagnosed with (your condition)?" Numerous questions proceed directing attention to the person who was injured by exposure to dust. I have summarised them in paragraph 19. To answer all these questions in the way contended for by Mr Parker, would inform the second defendant as to everything about Mr Winch and nothing about the plaintiff or her case. 33I have not examined the plaintiff's answers to the questions in any detail, but it seems to me the plaintiff has, in effect, adapted the form so as to provide answers pertinent to herself and her case. If this is so, it is likely that the plaintiff has supplied the second defendant with the particulars it needs for the preparation of its case. Orders 34I dismiss the second defendant's motion filed on 13 September 2011. 35I order the second defendant to pay the plaintiff's costs. 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: 05 March 2012