Court of Appeal Supreme Court New South Wales

• Medium Neutral Citation: Trustees of the Sydney Grammar School v Winch [2013] NSWCA 37
• Hearing dates: 23 August 2012
• Decision date: 27 February 2013
• Before: Bathurst CJ at [1], Allsop P at [1], Beazley JA at [26], McColl JA at [27], Meagher JA at [1]

Decision

1. Grant leave to appeal.

2. Direct the appellants to file a notice of appeal in the form of the draft in the White Book within seven days.

3. Appeal allowed.

4. Dismiss the proceedings in the Dust Diseases Tribunal.

5. Respondent to pay the appellants' costs of the proceedings in the Dust Diseases Tribunal, including the costs of the appellants' notice of motion filed on 13 September 2011.

6. Respondent to pay the appellants' costs of the application for leave to appeal and of the appeal.

7. Respondents to have a certificate under the Suitors' Fund Act 1951 if otherwise qualified.

[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.]

• Catchwords: DUST DISEASES TRIBUNAL - jurisdiction - exclusive jurisdiction of Dust Diseases Tribunal conferred by s 11(1) Dust Diseases Tribunal Act 1989 - whether proceedings should be dismissed for want of jurisdiction - where respondent claims compensation for psychiatric illness allegedly suffered as a result of father's death from mesothelioma exposure whilst in appellants' employ - whether respondent "claiming through" deceased for damages "in respect of" his death under s 11(1)(c) Dust Diseases Tribunal Act 1989; DUST DISEASES TRIBUNAL - pendent or ancillary jurisdiction - s 11(3) and s 11(4) Dust Diseases Tribunal Act 1989; DUST DISEASES TRIBUNAL - jurisdiction - whether Mangion v Jamies Hardie & Co Pty Ltd (1990) 20 NSWLR 100 correctly decided; STATUTORY INTERPRETATION - principles - construction of relational terms - relevance of amendments; WORDS AND PHRASES - "claiming through" - "in respect of"
• Legislation Cited: Arbitration (Foreign Awards and Agreements) Act 1974 (Cth); Civil Liability Act 2002; Civil Liability Amendment (Personal Responsibility) Act 2002; Civil Procedure Act 2005; Common Law Practice Act 1867-1978 (Qld); Compensation to Relatives Act 1897; Consumer, Trader and Tenancy Tribunal Act 2001; Dust Diseases Tribunal Act 1989; Dust Diseases Tribunal Amendment (Claims Resolution) Act 2005; International Arbitration Act 1974 (Cth); Interpretation Act 1987; Law Reform (Miscellaneous Provisions) Act 1944; Law Reform (Miscellaneous Provisions) Act 1946; Limitation Act 1969; Motor Vehicles Insurance Act 1936-1979 (Qld); Statute Law (Miscellaneous Provisions) Act (No 3) 1989; Workers Compensation Legislation Amendment (Dust Diseases and Other Matters) Act 1998; Workers' Compensation (Dust Diseases) Act 1942; Workers' Compensation Act 1916 (Qld); Dust Diseases Tribunal Rules; Supreme Court Rules 1970; Uniform Civil Procedure Rules 2005
• Cases Cited: Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41; (2009) 239 CLR 27; Allianz Australia Insurance Ltd v Bluescope Steel Ltd [2012] NSWCA 240; Allina Pty Ltd v Commissioner of Taxation (1991) 28 FCR 203; Amaca Pty Ltd v Cremer [2006] NSWCA 164; (2006) 66 NSWLR 400; Anderson v Kaufman (1991) 7 NSWCCR 198; Attia v British Gas plc [1988] QB 304; Australian Education Union v Department of Education and Children's Services [2012] HCA 3; (2012) 86 ALJR 217; BHP Billiton Ltd v Schultz [2004] HCA 61; (2004) 221 CLR 400; BHPB Freight Pty Ltd v Cosco Oceania Chartering Pty Ltd [2008] FCA 551; (2008) 168 FCR 169; Brambles Australia Ltd v British and American Tobacco Australia Services Ltd; Re Mowbray (No 6) [2006] NSWDDT 7; (2006) 3 DDCR 495; Certain Lloyd's Underwriters Subscribing to Contract No IH00AAQS v Cross; Certain Lloyd's Underwriters Subscribing to Contract No IH00AAQS v Thelander [2012] HCA 56; (2012) 293 ALR 412; Clark v Seltsam Pty Ltd [1999] NSWDDT 2; (1999) 18 NSWCCR 587; Commissioner of Police v Eaton [2013] HCA 2; CSR Ltd v Amaca Pty Ltd [2008] NSWCA 329; (2008) 9 DDCR 182; Curran v Young [1965] HCA 14; (1965) 112 CLR 99; De Sales v Ingrilli [2002] HCA 52; (2002) 212 CLR 338; DJL v Central Authority [2000] HCA 17; (2000) 201 CLR 226; Emanuele v Australian Securities Commission [1997] HCA 20; (1997) 188 CLR 114; FAI General Insurance v Southern Cross Exploration [1988] HCA 13; (1988) 165 CLR 268; Genders v Government Insurance Office of New South Wales (1959) 102 CLR 363; Gett v Tabet [2009] NSWCA 76; (2009) 254 ALR 504; Grain Elevators Board (Vic) v Dunmunkle Corporation [1946] HCA 13; (1946) 73 CLR 70; Grech v James Hardie & Co Pty Ltd & Others [1989] NSWDDT 1; (1989) 5 NSWCCR 274; Interlego AG and Lego Australia Pty Ltd v Croner Trading Pty Ltd [1992] FCA 624; (1992) 39 FCR 348; Jaensch v Coffey [1984] HCA 52; (1984) 155 CLR 549; Kelly v Rogers [1892] 1 QB 910; Koehler v Cerebos (Australia) Ltd [2005] HCA 15; (2005) 222 CLR 44; Kostas v HIA Insurance Services Pty Ltd t/as Home Owners Warranty [2010] HCA 32; (2010) 241 CLR 390; Laminex (Australia) Pty Ltd t/as Laminex Industries v Coutts [2006] NSWCA 186; (2006) 3 DDCR 728; Mangion v James Hardie & Co Pty Ltd (1990) 20 NSWLR 100; McDowell v Baker (1979) 144 CLR 413; Minister for Employment and Workplace Relations v Gribbles Radiology Pty Ltd [2005] HCA 9; (2005) 222 CLR 194; Mount Isa Mines Ltd v Pusey [1970] HCA 60; (1970) 125 CLR 383; New South Wales Bar Association v Muirhead (1988) 14 NSWLR 173; Newcrest Mining Limited v Thornton [2012] HCA 60; (2012) 293 ALR 493; Nominal Defendant (Qld) v Taylor [1982] HCA 38; (1982) 154 CLR 106; Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72; Owners of the Ship, Shin Kobe Maru v Empire Shipping Co Inc [1994] HCA 54; (1994) 181 CLR 404; Piercy v Young [1880] 14 Ch D 200; Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355; Re Wakim; Ex parte McNally [1999] HCA 27; (1999) 198 CLR 511; Scala v Mammolitti (1965) 114 CLR 153; Seltsam Pty Ltd v Energy Australia [1999] NSWCA 89; (1999) 17 NSWCCR 720; Shipping Corporation of India Ltd v Gamlen Chemical Co (A/asia) Pty Ltd [1980] HCA 51; (1980) 147 CLR 142; Tame v State of New South Wales; Annetts v Australian Stations Pty Ltd [2002] HCA 35; (2002) 211 CLR 317; Tanning Research Laboratories Inc v O'Brien [1990] HCA 8; (1990) 169 CLR 332; The Queen v Khazaal [2012] HCA 26; (2012) 86 ALJR 884; Unsworth v Commissioner for Railways (1958) 101 CLR 73; Vetter v Lake Macquarie City Council [2001] HCA 12; (2001) 202 CLR 439; Wallaby Grip (BAE) Pty Ltd (in liquidation) v Eraring Energy [2004] NSWCA 269; (2004) 60 NSWLR 701; Workers' Compensation Board (Q) v Technical Products Pty Ltd [1988] HCA 49; (1988) 165 CLR 642; Zheng v Cai [2009] HCA 52; (2009) 239 CLR 446
• Texts Cited: Second Reading Speech, New South Wales, Legislative Assembly, Parliamentary Debates (Hansard), 3 May 1989; Second Reading Speech, New South Wales, Legislative Assembly, Parliamentary Debates (Hansard), 23 November 1989; Second Reading Speech, New South Wales, Legislative Council, Parliamentary Debates (Hansard), 31 May 1995; Second Reading Speech, New South Wales, Legislative Assembly, Parliamentary Debates (Hansard), 5 May 2005; Second Reading Speech, New South Wales, Legislative Council, Parliamentary Debates (Hansard), 17 November 1998
• Category: Principal judgment
• Parties: The Trustees of the Sydney Grammar School - Appellants; Jessie Winch - Respondent
• Representation: Counsel: T G R Parker SC - Appellants; P C B Semmler QC with S Tzouganatos - Respondent; Solicitors: Toomey Pegg - Appellants; Turner Freeman Lawyers - Respondent
• File Number(s): CA2011/346923
• Publication restriction: No

Decision under appeal

• Jurisdiction: 9115
• Citation: Winch v Amaca Pty Ltd (discontinued 22.09.2011) and the Trustees of the Sydney Grammar School [2011] NSWDDT 8; (2011) 10 DDCR 56
• Date of Decision: 2011-10-07 00:00:00
• Before: Kearns J
• File Number(s): DDT 71/2010

Judgment

1 BATHURST CJ, ALLSOP P and MEAGHER JA: The respondent brought proceedings against the applicant in the Dust Diseases Tribunal ("Tribunal") for damages for nervous shock arising out of the death from mesothelioma of her father, who was employed by the applicant as a teacher. In a judgment delivered on 7 October 2011, Kearns J dismissed the applicant employer's motion for an order that those proceedings be dismissed for want of jurisdiction. The applicant seeks leave to appeal from that decision.

2 The issue sought to be raised in the appeal is whether proceedings for damages for nervous shock or psychiatric illness arising out of the death of a person from a dust related disease are within s 11(1) of the Dust Diseases Tribunal Act 1989 (the "Act") and therefore within the jurisdiction of the Tribunal. It should be noted at the outset that the respondent does not contend, in the alternative, that if her claim could not have been brought under s 11(1), the Tribunal nevertheless had jurisdiction to entertain it under sub-section 11(4) as a matter that is "ancillary or related" to a matter the subject of proceedings properly brought under s 11(1). Nor does she argue that her claim was one which could have been included in such proceedings by dint of s 11(3) of the Act.

3 In reaching his conclusion, the primary judge applied this Court's decision in Mangion v James Hardie & Co Pty Limited (1990) 20 NSWLR 100. In that appeal, the Court (Samuels AP, Clarke JA agreeing, and Mahoney JA) held that s 11(1) conferred jurisdiction on the Tribunal to hear and determine proceedings in respect of the death of a person caused by a dust related condition where the proceedings were brought by a widow for damages pursuant to the Compensation to Relatives Act 1987 and where proceedings were brought by a widow for damages for nervous shock (which claim was then governed by s 3 of the Law Reform (Miscellaneous Provisions) Act 1944).

4 The applicant argues that insofar as Mangion decided that proceedings for damages for nervous shock were within s 11(1) of the Act, it was plainly or clearly wrong in the sense referred to in Gett v Tabet [2009] NSWCA 76; (2009) 254 ALR 504 at [294]-[296]; and, to that extent, that the decision should be overruled.

5 We have had the benefit of reading the judgment of McColl JA in draft and agree with the orders proposed by her Honour. Specifically, we agree that Mangion was incorrectly decided insofar as it concluded that Mrs Mangion's claim for damages for nervous shock fell within s 11(1). Because the reasons of Samuels AP and Mahoney JA for so concluding were different, it is necessary to identify those differences before expressing the reasons for our opinion that the case was wrongly decided in this respect.

6 Samuels AP construed s 11(1) as requiring that the proceedings in respect of which exclusive jurisdiction is conferred (by the closing words of s 11(1)), be proceedings for damages in respect of a "dust-related condition" which satisfies the conditions or description in paragraphs (a), (b) and (c) of s 11(1). In particular, by paragraph (c), they must be proceedings for damages brought by the person who suffered from that condition "or a person claiming through that person", being in either case a person whose entitlement to bring such an action in any other court or tribunal is excluded by the closing words of s 11(1).

7 Applying that construction to the compensation to relatives and nervous shock claims, it was necessary that the person bringing the proceedings be "a person claiming through" the person who suffered from the dust-related condition: at 104B. This condition was satisfied in relation to the former claim because it was a derivative action dependent on or secondary to rights of action vested in the deceased immediately before his death: at 104C-G. The position was not so clear in relation to the action for damages for nervous shock. It was not derived from any cause of action vested in the person whose death occasioned the nervous shock injury, nor did it depend upon any existing liability to that person: at 104G-105A. However, because his Honour considered the object of the Act to be to assign to the Tribunal "all proceedings in respect of injury or death caused by dust-related conditions", it was necessary to give the words "claiming through" a liberal construction sufficient to prevent the frustration of that purpose: at 105E-F. For that reason, the expression "claiming through" should be construed to include a claim by a widow for damages for nervous shock "as made through the husband, in the sense of in consequence of his dust-related death": 105F-106F. Reference was made to subsections 11(3) and (4) but not on the basis that one or other of those provisions would permit a nervous shock claim, to be included in proceedings otherwise within s 11(1).

8 Applying that construction to those claims, it was also necessary that the proceedings answer the description in the closing lines of s 11(1) that they be "for damages in respect of" the dust-related condition or death. The nature and breadth of the relationship between the proceedings or damages claimed and the dust-related condition or death which was sufficient in this context to satisfy that description was not dealt with in the reasons of Samuels AP. It seems to have been accepted that an action for damages "incurred in consequence" of the dust-related death of the husband would answer this description, and that each of the relevant claims did so: at 102A, 105F.

9 Mahoney JA approached the matter slightly differently. He identified the relevant purpose of s 11(1) as being that "where the person affected by a dust-related condition or a person claiming through him would have been entitled to bring an action for damages for that condition and so must bring the proceedings before the Tribunal, all other proceedings for damages "in respect of" that condition must be brought before the Tribunal" (emphasis added): at 111A-B. His Honour did not construe s 11(1) as requiring that the proceedings which must be brought before the Tribunal satisfy the conditions, or answer the description, in each of paragraphs (a), (b) and (c). He considered the word "that", when used in the closing lines of s 11(1), referred only to the dust-related condition or death described in paragraphs (a) and (b) and not to a condition or death which would have been subject to the entitlement described in paragraph (c). Accordingly, where a claim by the person who was suffering or had suffered from the dust-related condition, or a person claiming through that person, "would have lain", the conditions in those paragraphs were satisfied and the closing words of s 11(1) applied generally to confer jurisdiction upon all proceedings for damages "in respect of" the condition or death, and irrespective of whether they were brought by the person primarily affected, or a person claiming "through that person": at 110E-112C.

10 On this construction it was not necessary for Mahoney JA to decide whether either of the proceedings in issue in Mangion was brought by "a person claiming through" the person primarily affected by the dust-related condition: at 111D. This notwithstanding, his Honour expressed an inclination to the view that these words referred only to a claim "which, if the person primarily affected has died, his legal personal representative will have": at 111D-E.

11 On the construction adopted by Mahoney JA it remained necessary that the proceedings be "for damages in respect of" the dust-related condition or death referred to in paragraphs (a) and (b). His Honour construed this expression as requiring that the relationship denoted by the words "in respect of" be between the proceedings and the dust-related condition or death rather than between the damages sought to be recovered in those proceedings and that condition or death: at 109E. An action for damages under the compensation to relatives legislation was in the ordinary sense of those words a proceeding for damages "in respect of" a dust-related death. Having regard to the purpose of s 11(1) as identified by his Honour, a proceeding "deriving" from "the situation where the condition or death of the person suffering from the dust-related condition is attributable to a breach of duty owed to him by another" was also sufficient to answer that description: at 110D. In relation to the action for damages for nervous shock, Mahoney JA entertained doubts as to whether that could be said to be "in respect of" the relevant condition or death, even adopting this broad view of what was sufficient to satisfy those words. Nevertheless, he was not prepared to dissent from Samuels AP's conclusion that s 11(1) extended to claims for nervous shock: at 112G.

12 Thus, the position in Mangion, insofar as it decided that s 11(1) of the Act conferred jurisdiction on the Tribunal in relation to a claim for damages for nervous shock, was as follows. Samuels AP (with whom Clarke JA agreed) construed s 11(1) as requiring for the conferral of jurisdiction, that the proceedings be brought by the person primarily affected "or a person claiming through that person"; and considered that such a claim answered this description notwithstanding that it was not derived from any cause of action vested in the deceased or dependent upon any existing liability of his employer to him. His Honour was prepared to give that expression a "liberal" construction which went beyond its ordinary or usual meaning to promote what he identified as the purpose or object underlying the legislation, namely to assign to the Tribunal all proceedings in respect of injury or death caused by dust-related conditions. Samuels AP did not expressly address whether proceedings for damages for nervous shock answered the description of being "for damages in respect of a dust-related condition or death". Mahoney JA construed s 11(1) as not requiring, for proceedings which must be brought before the Tribunal, that they be brought by or "through" the person primarily affected; and was inclined to the view that this expression would not have extended beyond a claim which by statute survived for the benefit of that person's estate. His Honour expressed doubts as to whether the requirement that the proceedings for damages be "in respect of" the condition or death was satisfied, but was not prepared to dissent from the ultimate conclusion of Samuels AP.

13 Subject to the more specific reasons given below, we agree with McColl JA's reasons for concluding that Samuels AP was incorrect in his construction of s 11(1)(c) and the phrase "claiming through". We also agree on the same basis with her Honour's reasons for concluding that Samuels AP did not correctly consider and apply the "in respect of" requirement in the closing lines of s 11(1). The statutory context and purpose of s 11(1) did not require or justify in the interpretation of these two expressions, any departure from their ordinary meaning as expounded by her Honour: see esp her Honour's reasons at [162] - [183] below.

14 In addition, we do not agree with Mahoney JA's construction of s 11(1) as not requiring, in relation to proceedings which must be brought before the Tribunal, that they be brought by the person primarily affected or a person claiming through that person. In our opinion, as our reasons below explain, the words "proceedings for damages in respect of that dust-related condition or death" refer to a cause of action falling within s 11(1)(c). If that were not the case there would be little work for subsections 11(3) and (4) which confer additional jurisdiction in respect of claims which may be, but are not required to be, brought before the Tribunal. That construction of s 11(1) was adopted by Samuels AP and Clarke JA in Mangion and by Giles JA (Hodgson and Bryson JJA agreeing) in Laminex (Australia) Pty Limited v Coutts [2006] NSWCA 186; 3 DDCR 728 esp at [38].

15 Our additional reasons for these conclusions are as follows.

16 The Tribunal was constituted by the Act. The purpose of the Tribunal was, as the then Attorney-General stated in the second reading speech:

"... to hear claims in tort for negligence and breach of statutory duty relating to death or personal injury attributable to specified dust diseases and other dust-related conditions." (Second reading speech of the Minister, the Hon John Dowd, Hansard, Legislative Assembly, 3 May 1989, p 7398.)

17 The particular problem perceived that was sought to be remedied by the Tribunal was described by the Attorney-General at the commencement of the second reading speech as:

"... the considerable delays that exist in the common law jurisdictions of both the Supreme Court and the District Court, which this Government inherited. Delays, of course, are particularly critical for plaintiffs with dust diseases, such as mesothelioma, which have a long latency period but, once diagnosed, result in rapid deterioration and usually lead to death within 12 to 18 months. The Government is committed to these claims being dealt with expeditiously by the creation of a separate tribunal that will provide a fast-track mechanism." (Second reading speech of the Minister, the Hon John Dowd, Hansard, Legislative Assembly, 3 May 1989, p 7398.)

18 After a brief description of the operative provisions, the Attorney-General described the hoped for advantages of the Tribunal:

"The bill seeks to marry the skills of Compensation Court judges with the power to deal with common law matters. The Compensation Court is a specialist jurisdiction that deals with medical matters, and it is intended it will acquire expertise in common law. This measure is an attempt to stop duplication of common law and workers' compensation liability determinations. From this experience the government expects to learn how to marry together the Compensation Court, the Supreme Court and the District Court which will be inevitable as the Downing Centre is developed. One judge or several judges may be involved, but litigants are entitled to fast track procedures as a means of reducing the long hearing lists in the Hunter Valley. The Compensation Court is not overloaded but this measure will help to reduce the District Court lists.

This will be an experiment in having the one tribunal deal with matters from both jurisdictions, thus speeding hearings and saving money for litigants. Based on this experience, the tribunal could be extended to deal with the diseases of chronicity, which conditions have built up over time - although trauma cases and similar matters will be dealt with by the Compensation Court. This experiment has been carefully thought through. I hope it will enable relief to be given to a group of needy workers in this State who belatedly have been found to have been let down by a society that has failed to recognize some aspects of dust disease." (Second reading speech of the Minister, the Hon John Dowd, Hansard, Legislative Assembly, 3 May 1989, p 7399.)

19 The terms of Part 3 of the Act dealing with jurisdiction and proceedings show that one of the means of effecting these benefits and advantages included the conferring of exclusive jurisdiction to hear certain classes of cases, and the conferring of additional jurisdiction in relation to other claims. Whilst those additional claims are not required to be brought before the Tribunal, they may, if commenced in the Supreme or District Court, be required to be transferred to the Tribunal in the circumstances described in s 12 and once made before or transferred to the Tribunal are, by s 10(1), subject to its exclusive jurisdiction.

20 As McColl JA has noted, s 11 is a carefully drawn section which must be examined as a whole in its statutory context and conformably with its purpose, drawn from the text of the Act and relevant secondary material. Section 11(1) provides for proceedings for damages in respect of "that" dust-related condition or death, which is the dust-related condition in paras (c), (b) and (a). Textually, the preferable reading of "in respect of" in the last paragraph of s 11(1) is as a phrase to relate the proceedings to the dust-related condition or death and damages therefor; in the sense that the damages claimed are assessed by reference to that condition or death and its consequences for the claimant or persons on whose behalf the claim is made. This would limit s 11(1) to the claim concerning the condition in question or subsequent death, being a claim made by the person primarily affected, or those through him or her if he or she has died.

21 It was no doubt evident to the legislature that there were other types of claims or actions that could be seen to be related to the primary action brought by the person primarily affected, or by a person claiming through him or her, that should or could, conformably with the purposes of the Act, be brought before the Tribunal. Subsections (3) and (4) in the original form of the Act catered for these. Subsection (1A) was added later. Section 11(3) concerned the cause of action giving rise to proceedings within subsection (1) and also another claim to which that cause of action gives rise. An example would be a claim for negligence for an unsafe system of work giving rise to damages due to the incurring of a dust-related condition and also some other non dust-related injury. Because the proceedings which must be brought under subsection (1) are proceedings to enforce a cause of action of the person primarily affected, or a person claiming through that person, it is not obvious that a claim for damages for nervous shock could be included in proceedings before the Tribunal in reliance upon subsection 11(3). However, that question does not arise because the respondent eschewed reliance on subsection 11(3) to found jurisdiction.

22 Section 11(4) was in broader terms. It used broad language: "any matter that is ancillary or related to a matter". The notion of a "matter" in a judicial jurisdictional context is linguistically and legally wide: Re Wakim; Ex parte McNally [1999] HCA 27; (1999) 198 CLR 511 at 585-586 [139]-[142]; Tanning Research Laboratories Inc v O'Brien [1990] HCA 8; 169 CLR 332 at 351. The Act is not in a context of federal jurisdiction; but the word "matter" in the context of jurisdiction of courts or tribunals can be seen to be one of currency. A "matter" in this universe of discourse is a controversy arising from a common substratum of facts. A "related" matter can thus be seen as a related controversy arising from a related, perhaps overlapping, substratum of facts. The breadth of these concepts is not cut down by the definition of "ancillary or related matter" in s 3:

"ancillary or related matter, in relation to any proceedings, includes any claim relating to the subject-matter of the proceedings that a defendant in the proceedings has against another person, whether that other person is a party to the proceedings or not."

In this definition, the intermediate words after the word "includes" might be seen to be narrower than the general words "related matter"; but it is important to recognise that the general words are not defined or limited by these words; the general words include them. There is no warrant to read down the width of the words "related matter" by the inclusion in the definition of a claim that might be seen to be specific to an existing defendant. The width of the concept of "related matter" would permit the inclusion in proceedings under s 11(1) (or s 11(1A)) of a claim by a different plaintiff in a related matter or controversy. There is no call in this case to examine the limits of the width of the relationship of matter in s 11(4). It is sufficient to say that in the context of a claim for the benefit of a deceased's estate or a compensation to relatives claim, in each case brought under s 11(1), s 11(4) would permit inclusion of a nervous shock claim, such as that pleaded here by the respondent, Ms Winch.

23 If s 11(4) is read as a broad jurisdictional provision intended to pick up any related matter or controversy to the proceedings for damages in respect of the dust-related condition falling within s 11(1), there is no call to strain the text of the paragraph (c) or the last lines of s 11(1), and in particular the words "claiming through that person" and "in respect of", so as to justify a departure from the ordinary meaning of the language used. The person making a claim in respect of an ancillary or related matter would not have the benefit of ss 11A, 12A and 12B of the Act. Section 11A is limited to claims under s 11(1) and ss 12A and 12B only apply to proceedings capable of being brought under s 11(1): Wallaby Grip (BAE) Pty Ltd (In Liq) v Eraring Energy [2004] NSWCA 269; 60 NSWLR 701.

24 On the above interpretation, s 11 works in a balanced way reflecting the exclusive (in the sense described above) and non-exclusive jurisdiction of the Tribunal under Part 3. If subsections 11(3) and (4) were not in the Act and the substance of the jurisdictional work of the section was done by s 11(1), there would have been powerful reasons to read s 11(1) more broadly, as Samuels AP and Mahoney JA sought to do in Mangion. Parliament, however, has provided for related matters in a widely drafted subsection (s 11(4)). This allows the text of s 11(1) to be read without adopting strained constructions of the expressions "claiming through" and "in respect of" or the construction of s 11(1) adopted by Mahoney JA.

25 For these reasons we are persuaded that Mangion is sufficiently wrong to warrant departure from it. As we have already noted, the question whether the respondent's claim did or could have fallen within s 11(3) or 11(4) does not arise. The orders proposed by McColl JA should be made.

26 BEAZLEY JA: I have had the advantage of reading in draft the judgment of McColl JA and the judgment of Bathurst CJ, Allsop P and Meagher JA. As their Honours have fully explained, notwithstanding that Mangion v James Hardie & Co Pty Limited (1990) 20 NSWLR 100 is a long standing decision of this Court, an examination of the provisions of the Dust Diseases Tribunal Act 1989, s 11 leads to the inevitable conclusion that the decision in that case was plainly wrong. I agree with the reasons of the members of this Court as to its proper construction.

27 McCOLL JA: Jessie Winch, the respondent, brought proceedings in the Dust Diseases Tribunal (the "Tribunal") claiming compensation from the Trustees of the Sydney Grammar School, the applicants, for psychiatric illness she alleged she suffered as a result of her father dying from mesothelioma. She alleged her father had been exposed to asbestos dust and fibre while employed by the applicants as an art teacher. The applicants moved the Tribunal for an order that the proceedings be dismissed for want of jurisdiction. His Honour Judge Kearns dismissed the application: Winch v Amaca Pty Ltd (discontinued 22.09.2011) and the Trustees of the Sydney Grammar School [2011] NSWDDT 8; (2011) 10 DDCR 56.

28 The critical issue is whether the Tribunal had jurisdiction to deal with the respondent's claim for psychiatric illness. The primary judge held that it did, in part because he was bound to do so by virtue of this Court's decision in Mangion v James Hardie & Co Pty Ltd (1990) 20 NSWLR 100 ("Mangion").

29 The applicants seek leave to appeal from the primary judge's decision. Full argument was heard on the application for leave to appeal as if it were the appeal, on the basis that the appeal could be disposed of without further argument if leave to appeal were granted. In my view, as shall become apparent from the reasons which follow, the matter involves an issue of principle which warrants granting leave to appeal. I shall refer to the applicants as the appellants henceforth.

30 This matter was listed before a five judge bench because the appellants wish to challenge this Court's decision in Mangion in which, relevantly, the Court held that the Tribunal had jurisdiction in proceedings in respect of the death of a person caused by a dust-related condition where a claim for nervous shock was brought pursuant to s 3 of the Law Reform (Miscellaneous Provisions) Act 1944 (the "1944 Act"). In so holding, the Court upheld an appeal from a decision to the contrary of O'Meally J: Grech v James Hardie & Co Pty Ltd & Others [1989] NSWDDT 1; (1989) 5 NSWCCR 274 ("Grech"). For the reasons which follow, I am of the view that Mangion was wrongly decided in this respect and should be over-ruled. Even if that is not correct, when s 11(1) is construed in the Dust Diseases Tribunal Act 1989 (the "Tribunal Act"), I would conclude the jurisdiction does not extend to the respondent's claim for damages for psychiatric illness. The appeal should be allowed with costs.

Statement of the case

31 The respondent is the daughter of John Harley Winch. Mr Winch worked as an art teacher at Sydney Grammar School in the 1970s, during which time he was exposed to asbestos. In late 2006 he was diagnosed with mesothelioma from which he died on 28 March 2007. Before his death, Mr Winch commenced proceedings against the appellants for damages, claiming that he had been exposed to asbestos during his employment with it. The proceedings were continued after his death by his widow pursuant to Part 2 of the 1944 Act and in due course settled.

32 On 24 March 2010 the respondent filed a statement of claim in the Tribunal commencing proceedings against, relevantly, the appellants.

33 Paragraph 2 of the statement of claim pleaded:

"The plaintiff is 'a person claiming through' the deceased, damages 'in respect of' his death, within the meaning of s 11(1)(c) of the Dust Diseases Tribunal Act 1989."

34 After pleading the facts of Mr Winch's employment at the school and exposure to and inhalation of asbestos dust and fibre during the course of his employment, the statement of claim continued:

"9. The cause of the deceased's death was the negligence of the defendants and each of them.

10. As a consequence of the deceased's death, the plaintiff has suffered and continues to suffer a recognised psychiatric illness.

11. The cause of the plaintiff's psychiatric illness was the negligence of the defendants and each of them."

35 The extensive particulars of negligence may be broadly described as alleging that the appellants failed to provide Mr Winch with a safe place or system of work because he was exposed to asbestos dust and fibre without any, or any effective, protection, warning or other measures appropriate having regard to the risks associated with working with products containing asbestos.

36 On 13 September 2011 the appellants filed a motion seeking an order that the proceedings be dismissed for want of jurisdiction and alternatively directions for the further conduct of the proceedings on the footing that the Claims Resolution Process did not apply to the proceedings. As I have said, the primary judge dismissed the motion.

37 It was common ground before the Tribunal and on appeal that the psychiatric illness condition the subject of the respondent's proceedings is not a "dust related condition" within the meaning of the Tribunal Act, but that the mesothelioma from which Mr Winch suffered was did fall within the statutory language.

38 The primary judge noted (at [1]), that although some of the facts may be contentious, they might be taken to be established for the purposes of the application. The appellants did not contest that proposition on appeal.

Legislative framework

39 The respondent commenced her proceedings in the Tribunal seeking to invoke the jurisdiction conferred by the Tribunal Act.

40 In the Second Reading Speech to the Bill which became the Tribunal Act, the Attorney General, the Hon Mr John Dowd said (Second Reading Speech, New South Wales, Legislative Assembly, Parliamentary Debates (Hansard), 3 May 1989 at 7398):

"The principal bill wilI create a tribunal, to be called the Dust Diseases Tribunal, with jurisdiction to hear claims in tort for negligence and breach of statutory duty relating to death or personal injury attributable to specified dust diseases and other dust-related conditions. Honourable members will be aware of the considerable delays that exist in the common law jurisdictions of both the Supreme Court and the District Court, which this Government inherited. Delays, of course, are particularly critical for plaintiffs with dust diseases, such as mesothelioma, which have a long latency period but, once diagnosed, result in rapid deterioration and usually lead to death within 12 to 18 months. The Government is committed to these claims being dealt with expeditiously by the creation of a separate tribunal that will provide a fast-track mechanism ... Clause 11 provides for claims for damages arising from dust diseases and other dust-related conditions to be made to, and to be dealt with, by the tribunal. It provides also for claims arising out of the death of such persons to be made to, and to be dealt with, by the tribunal ... ." (Emphasis added)

41 The Tribunal is a court of record: s 4(2). Its primary jurisdiction is set out in s 10 of the Tribunal Act which relevantly provides:

"(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.

(2) The Tribunal has such other jurisdiction as may be conferred on it by or under any other Act.

...

(4) In any proceedings brought under section 11 or transferred under section 12, the Tribunal has the same power to make decisions as the Supreme Court would, but for this section, have had in relation to similar proceedings brought in the Supreme Court.

(5) Subject to sections 13 (6) and 14, a decision of the Tribunal has the same effect as, and may be enforced in the same way as, a decision of the Supreme Court."

42 Section 11 provides:

11 Claims for damages for dust diseases etc to be brought under this Act

(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.

Note: This subsection does not prevent those proceedings

(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 1897." (Emphasis added)

43 At the time Grech was decided the provisions italicised in s 11 were not in force. Sub-section (5) was added by Schedule 1 of the Statute Law (Miscellaneous Provisions) Act (No 3) 1989 (the "1989 Act"). The Bill which became the 1989 Act passed through both Houses of Parliament on 23 November 1989. It commenced operation on the date of assent, 21 December 1989: s 2. It was accompanied by an Explanatory Note, which did not form part of the Act, but stated:

"Explanatory note

The proposed amendment makes it clear that an action for the benefit of a relative of a deceased person seeking damages in respect of a dust-related condition suffered by the deceased person must be brought under the Act and not the Compensation to Relatives Act 1897."

44 In the Second Reading Speech to the Bill which became the 1989 Act, the Attorney General, the Hon Mr John Dowd said (Second Reading Speech, New South Wales, Legislative Assembly, Parliamentary Debates (Hansard), 23 November 1989 at 13379):

"The amendment to the Dust Diseases Tribunal Act will ensure that disease [sic, proceedings] under the Compensation to Relatives Act with respect to dust or dust-related proceedings fall[s] within the jurisdiction of the Tribunal which has now been in operation for some weeks ..."

45 Sub-section (1A) was added by the Dust Diseases Tribunal Amendment (Claims Resolution) Act 2005, Sch 1 [2] (the "2005 Act"). In the Second Reading Speech to the Bill which became the 2005 Act, the Attorney General, the Hon Mr Bob Debus, relevantly said (Second Reading Speech, New South Wales, Legislative Assembly, Parliamentary Debates (Hansard), 5 May 2005 at 15804):

"The bill also amends the Act to clarify the extent of the jurisdiction of the Dust Diseases Tribunal by providing that the tribunal's jurisdiction to determine claims extends to claims for contribution between liable tortfeasors that are brought separately from the claimant's claim."

46 In Laminex (Australia) Pty Ltd t/as Laminex Industries v Coutts [2006] NSWCA 186; (2006) 3 DDCR 728 ("Laminex"), Giles JA suggested that s 11(1A) may have changed the outcome in Wallaby Grip (BAE) Pty Ltd (in liquidation) v Eraring Energy [2004] NSWCA 269; (2004) 60 NSWLR 701 ("Wallaby Grip") in which the Court held that the "proceedings before the Tribunal" were those capable of being brought under s 11(1), and not claims which could be included within the proceedings as ancillary or related matters pursuant to s 11(4). The ancillary or related claim in question was a defendant's claim for statutory contribution.

47 Section 3 contains the following relevant definitions

" 'ancillary or related matter', in relation to any proceedings, includes any claim relating to the subject-matter of the proceedings that a defendant in the proceedings has against another person, whether that other person is a party to the proceedings or not.

'dust-related condition' means:

(a) a disease specified in Schedule 1, or

(b) any other pathological condition of the lungs, pleura or peritoneum that is attributable to dust."

48 Section 12 requires proceedings of the kind referred to in s 11(1) which are brought or pending in either the Supreme or District Courts to be transferred to the Tribunal, together with any ancillary or related matters.

49 Other provisions of the Tribunal Act enacted after Mangion was decided confer significant benefits on plaintiffs in proceedings before the Tribunal and cast light on its jurisdiction.

50 Section 11A, introduced in 1995, empowers the Tribunal to make an award of damages in stages in:

"... proceedings of the kind referred to in section 11 (1) that are brought after the commencement of this section and in which there is proved or admitted to be a chance that at some definite or indefinite time in the future the person who is suffering from the dust-related condition in respect of which the proceedings are brought ( 'the injured person') will, as a result or partly as a result of the breach of duty giving rise to the cause of action, develop another dust-related condition ..."

51 Section 11A was described as unique to the Tribunal in BHP Billiton Ltd v Schultz [2004] HCA 61; (2004) 221 CLR 400 ("BHP Billiton Ltd v Schultz") (at [6]) per Gleeson CJ, McHugh and Heydon JJ. It means the Tribunal does not have to calculate damages on a once-only basis and, as was explained in the Second Reading Speech, deals with the situation which may be envisaged with, for example, "asbestosis, which may or may not progress to mesothelioma, with the probability often impossible to evaluate": Courts Legislation Amendment Bill, Second Reading Speech, Parliamentary Debates, Hansard, Legislative Council, 31 May 1995.

52 Sections 12A, 12B, 12C, 12D, 25A and 25B were inserted into the Tribunal Act by the Workers Compensation Legislation Amendment (Dust Diseases and Other Matters) Act 1998 (the "1998 Act"). The amendment to add subsection (3) to s 25 was made by the Courts Legislation Amendment Act 1995.

53 The mischief to which the provisions were addressed was identified in the Second Reading Speech of the Attorney General, the Hon Jeff Shaw QC, as follows (New South Wales Legislative Council, Parliamentary Debates (Hansard), 17 November 1998, at 9973 - 9974):

"The main purposes of this bill are to increase the fairness of workers compensation and common law provisions relating to dust diseases, to make procedural changes to enable more efficient disposal of proceedings in the Dust Diseases Tribunal and facilitate the settlement of claims, and to make other miscellaneous revisions. Dust diseases, to which this legislation relates, are defined to include conditions such as asbestosis, mesothelioma and silicosis. While asbestos is no longer mined or in general use in New South Wales, its harmful effects on individuals, families and society continue. Many of the current cases of asbestos-related disease arise from exposure during the 1950s, 1960s and 1970s when few, if any, adequate precautions were taken to protect workers and others....

It is not uncommon for workers and other persons suffering from the most serious type of dust disease to have very limited life expectancy. Consequently, claimants are often under considerable pressure to try to finalise their general damages claim before death, for the benefit of their families. This has meant that in some cases hearings have been held in harrowing circumstances when the claimant is on the verge of death. Having regard to the special nature of dust diseases, the bill provides that where the claimant dies before completion of the Tribunal proceedings the claimant's estate will still be able to pursue recovery of the outstanding general damages. This is intended to avoid the arbitrariness and added distress involved in the present situation.

Another important proposal in the bill relates to the time allowed for bringing of common law claims for dust diseases. The existing provisions of the Limitation Act, which lay down a basic three-year limit for claims that runs from time of injury, do not easily fit the reality of gradual-onset dust diseases. Cases of dust disease may have a latency period of 30 years or more.

The current Act allows discretion to extend the three-year and related time limit provisions based on factors such as the claimants having been unaware of the disease or its cause or extent. However, application of such provisions takes time and involves additional expense for claimants who may have a short life expectancy. In recognition of the particular circumstances applicable to dust diseases, it is proposed to minimise such technical legal hurdles by providing that those current provisions do not apply in these cases. In consultation some organisations have raised a concern that changes, such as that proposed to limitation provisions, could increase the case load of the Dust Diseases Tribunal by encouraging forum shopping from interstate or overseas.

That concern is proposed to be addressed more widely in other legislation taking account of comments by the Chief Justice and the President of the Court of Appeal in the recent judgment in James Hardie v Grigor [(1998) 45 NSWLR 20]."

54 Section 12A relevantly provides:

"12A No limitation period

(1) The purpose of this section is to enable proceedings to be brought before the Tribunal in relation to dust-related conditions at any time.

(2) Nothing in the Limitation Act 1969 or any other statute of limitations operates to prevent the bringing or maintenance of proceedings before the Tribunal in relation to dust-related conditions.

3) Without limiting subsection (2):

(a) sections 14, 18A, 60C and 60G of, Division 6 of Part 2 of, and Schedule 5 to, the Limitation Act 1969 do not prevent the bringing or maintenance of any such proceedings before the Tribunal, and

(b) any such proceedings may be brought or maintained before the Tribunal even though a limitation period has already expired under that Act, and

(c) any such proceedings may be brought or maintained before the Tribunal as if Division 1 of Part 4 of that Act had never been in force."

55 Section 12B provides:

"12B Damages for non-economic loss after death of plaintiff

(1) The purpose of this section is to enable the estate of a person whose death has been caused by a dust-related condition to recover damages for the person's pain or suffering, or for any bodily or mental harm suffered by the person, or for curtailment of the person's expectation of life, provided proceedings commenced by the person were pending before the Tribunal at the person's death.

(2) Section 2(2)(d) of the Law Reform (Miscellaneous Provisions) Act 1944 does not apply in relation to proceedings commenced by a person before his or her death and pending before the Tribunal at his or her death, where the cause of action is for damages in respect of a dust-related condition."

56 Section 12C ensures that "[f]or the avoidance of doubt", settlement with "one or more joint tortfeasors in or in relation to proceedings before the Tribunal and who are liable in respect of damage as a result of a dust-related condition" shall not bar recovery against one or more other joint tortfeasors (whether or not they are defendants in the proceedings), unless the terms of the settlement otherwise provide. The common law vice to which that provision was directed was recently considered in Newcrest Mining Limited v Thornton [2012] HCA 60; (2012) 293 ALR 493: French CJ (at [18] - [22]); Heydon J (at [45]); Crennan and Kiefel JJ (at [76].

57 Section 12D applies to "proceedings before the Tribunal ... for damages in relation to dust-related conditions" and provides that "[i]n determining damages for non-economic loss in any such proceedings, no deduction is to be made for any amount of compensation already paid or payable, or payable in the future, under the Workers' Compensation (Dust Diseases) Act 1942".

58 Other provisions of the Tribunal Act facilitate, by leave, the admission of evidence in current proceedings of "[h]istorical evidence and general medical evidence concerning dust exposure and dust diseases" whether or not the proceedings are between the same parties (s 25(3)), envisage the use of "[m]aterial obtained for the purposes of proceedings before the Tribunal by discovery or interrogatories ... in other proceedings before the Tribunal, whether or not the proceedings are between the same parties" (s 25A) and prohibit the relitigation or rearguing of "[i]ssues of a general nature" already determined in proceedings before the Tribunal (s 25B) (an expression which is not defined and whose scope has not been the subject of authoritative determination: see the discussion by Curtis J in Brambles Australia Ltd v British and American Tobacco Australia Services Ltd; Re Mowbray (No 6) [2006] NSWDDT 7; (2006) 3 DDCR 495 (at [11] ff) but, semble, would include matters such as causation: see James Hardie & Coy Pty Ltd v Barry [2000] NSWCA 353; (2000) 50 NSWLR 357 (at [12]) per Spigelman CJ). None of these provisions were in force when Mangion was decided.

59 Finally I note that Parts 3 - 9 of the Civil Procedure Act 2005 and the Uniform Civil Procedure Rules 2005 ("UCPR") apply to proceedings in the Dust Diseases Tribunal: s 4, Civil Procedure Act; UCPR r 1.5.

Negligently inflicted psychiatric harm

60 The expression "nervous shock" has been described as "apt to mislead" and as "a common lawyer's shorthand for the categories of psychiatric harm which are compensable under the tort of negligence": Tame v State of New South Wales; Annetts v Australian Stations Pty Ltd [2002] HCA 35; (2002) 211 CLR 317 ("Tame") (at [204]) per Gummow and Kirby JJ. It went "out of fashion" in the United Kingdom (see Attia v British Gas plc [1988] QB 304 (at 317) per Bingham LJ) and doubts about the use of the expression in Australia were referred to in Mount Isa Mines Ltd v Pusey [1970] HCA 60; (1970) 125 CLR 383 (at 394) per Windeyer J; see also Jaensch v Coffey [1984] HCA 52; (1984) 155 CLR 549 (at 552) per Gibbs CJ;(at 559 - 560) per Brennan J; (at 587) per Deane J. As is apparent from most of the judgments in Tame, the term "recognisable psychiatric illness" is now more commonly used to describe the compensable disability. It expresses the common lawyer's (belated) adoption of medical parlance: Mount Isa Mines Ltd v Pusey (at 394).

61 However, at the time Mangion was decided, such claims were governed by Part 3, s 3 of the 1944 Act which provided:

"3 Personal injury arising from mental or nervous shock

(1) In any action for injury to the person caused after the commencement of this Act, the plaintiff shall not be debarred from recovering damages merely because the injury complained of arose wholly or in part from mental or nervous shock ..."

62 Mangion was written by reference to the term "nervous shock" in the 1944 Act. I shall, accordingly, use that expression in these reasons when appropriate to discuss that decision. It should be understood, however, to be intended to be synonymous with the contemporary expression of "recognisable psychiatric illness".

63 At the time the respondent brought her proceedings, Part 3 of the Civil Liability Act 2002 dealt with any claim for damages for mental harm resulting from negligence, regardless of whether the claim was brought in tort, in contract, under statute or otherwise: s 28(1). Part 3 of the Civil Liability Act was inserted by the Civil Liability Amendment (Personal Responsibility) Act 2002 (the "Personal Responsibility Act") and commenced on 6 December 2002. The Personal Responsibility Act repealed Part 3 of the 1944 Act. However, subject to exceptions not presently relevant, the Civil Liability Act does not apply to civil liability in proceedings of the kind referred to in s 11 of the Tribunal Act: s 28(3), s 3B(1)(b), Civil Liability Act.

64 If, accordingly, s 11 confers jurisdiction on the Tribunal to entertain the respondent's claim for recognisable psychiatric illness then, it seems, that claim will have to be decided in accordance with the common law principles governing such an action as expounded in Tame. That case held that liability for negligently inflicted psychiatric injury turns on whether the defendant ought reasonably to have foreseen the risk of his or her negligent act or omission leading to the plaintiff suffering a recognisable psychiatric injury and that risk is not far-fetched or fanciful: Tame (at [18]) per Gleeson CJ; (at [66]) per Gaudron J; (at [200] - [201]) per Gummow and Kirby JJ; (at [267]) per Hayne J; see also Koehler v Cerebos (Australia) Ltd [2005] HCA 15; (2005) 222 CLR 44 (at [33]) per McHugh, Gummow, Hayne and Heydon JJ.

65 The negligent act or omission relevant to this inquiry in this case will at least include making good the particulars of negligence to which I have referred which revolve around analysing the use of asbestos in Mr Winch's workplace. The foreseeability issue will, again at least, include the respondent establishing that the appellants ought reasonably to have foreseen that if Mr Winch died as a result of his exposure to asbestos, there was a risk that a person in the respondent's position may suffer a recognisable psychiatric injury.

Mangion - O'Meally J's decision

66 Mangion arose out of eight actions commenced by plaintiffs in the Supreme Court seeking to recover damages in consequence of the death of their husbands by reason of a dust disease. Each sued under the Compensation to Relatives Act 1897 ("Compensation to Relatives Act") and one, Grace Mangion, claimed damages for nervous shock sustained as a result of her husband's death pursuant to the 1944 Act. The actions were on foot when the Tribunal Act commenced operation. The Registrar of the Common Law Division in which the proceedings were pending transferred them to the Dust Diseases Tribunal pursuant to s 12(1) of the Tribunal Act.

67 O'Meally J (at 277) determined a preliminary question as to the Tribunal's jurisdiction to hear and determine the actions: Grech.

68 One of the plaintiffs and three of the defendants, James Hardie & Company Pty Ltd, Seltsam Ltd and Alcan Australia Ltd contended that the words "a person claiming through that person" in s 11(1)(c) of the Tribunal Act were sufficient to invest the Tribunal with jurisdiction to deal both with claims under the Compensation to Relatives Act and s 3 of the 1944 Act enabling recovery of damages for injury arising from mental or nervous shock.

69 O'Meally J rejected (at 279) a submission that the Tribunal Act should be characterised as remedial hence warranting a liberal interpretation because he considered the Tribunal Act did not contain any "new entitlement or redress", but only changed procedures and not substantive rights.

70 His Honour held that the Tribunal did not have jurisdiction over the claims for the following reasons. First, he held (at 279) that an action for nervous shock was an action personal to the plaintiff and was not an action made by a person suffering a dust disease, nor one by "a person claiming through that person" as required by s 11(1)(c). Secondly, in his Honour's view, an action based upon the Compensation to Relatives Act was "not the cause of action of the person who has died" so that the cause of action created by the Compensation to Relatives Act was not an action brought by "a person claiming through" a person who has died of a dust disease. In his Honour's view "[t]he reference to 'that person' in s 11(1)(c) was a reference to a person who was suffering from a dust-related condition". He remarked (at 279 - 280):

"The word 'claiming' in the phrase 'claiming through' in s 11(1)(c) does not, in my opinion, mean claiming as a result of a 'dust-related condition or death'. The whole phrase 'a person claiming through that person' should be considered and when considered limits claims to those brought in a representative capacity."

71 In this respect, his Honour appears to have been influenced by Kelly v Rogers [1892] 1 QB 910 ("Kelly v Rogers") and Piercy v Young [1880] 14 Ch D 200, which, His Honour observed (at 278), gave the phrase "claiming through" a narrow interpretation.

72 Thirdly, O'Meally J referred (at 280) to the principle "that the jurisdiction of a superior court is not to be ousted other than by express words in, or by obvious inference from, an Act of Parliament" and concluded that s 11 and s 12 of the Tribunal Act ousted the jurisdiction of the Supreme Court to hear and determine claims for damages by persons or the estates of persons suffering or who had suffered from specified dust-related conditions, but did not oust that Court's jurisdiction to hear and determine actions for damages under the Compensation to Relatives Act or for nervous shock.

73 Accordingly, his Honour concluded (at 281 - 282) that the Tribunal did not have jurisdiction to hear and determine any actions for damages under the Compensation to Relatives Act or to hear and determine actions for damages for nervous shock and remitted the proceedings to the Supreme Court.

Mangion - Court of Appeal decision

74 Once the proceedings were "returned" to the Supreme Court, three of the actions came before Wood J who ordered that the questions of jurisdiction be decided separately as preliminary questions of law pursuant to Supreme Court Rules 1970, Pt 31, r 2, and, invoking Pt 12, r 2(1)(a) of those Rules, ordered that the proceedings be removed into the Court of Appeal: Mangion (at 102).

75 Two questions of law were identified for the Court of Appeal's consideration, being (Mangion at 102):

"(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 the proceedings are brought for damages pursuant to the Law Reform (Miscellaneous Provisions) Act 1944, s 3, for nervous shock?"

76 Samuels AP (with whom Clarke JA agreed) approached the separate questions on the basis that the issues turned on the words "claiming through" in s 11(1)(c): Mangion at 104.

77 His Honour had no difficulty finding (at 104) that "[a]n action under the Compensation to Relatives Act is a derivative action, dependent on or secondary to rights of action vested in the deceased immediately before his or her death". Accordingly, accepting that "the Macquarie Dictionary defines 'through' to include 'by the means or instrumentality of' and 'by reason of or in consequence of' ", his Honour concluded that "it is clear that X, asserting rights under the Compensation to Relatives Act, claims 'through' the person whose death terminated the right to support which the claimant seeks to replace by an award of damages ...": Mangion at 104.

78 His Honour found support for that conclusion in the following passage from the joint judgment of Brennan and Dawson JJ in Tanning Research Laboratories Inc v O'Brien [1990] HCA 8; (1990) 169 CLR 332 (at 342) ("Tanning Research"):

"Next, the prepositions 'through' and 'under' convey the notion of a derivative cause of action or ground of defence, that is to say, a cause of action or ground of defence derived from the party. In other words, an essential element of the cause of action or defence must be or must have been vested in or exercisable by the party before the person claiming through or under the party can rely on the cause of action or ground of defence." (Emphasis added)

79 His Honour did not find the answer so "readily compelled" in the case of an action for damages for nervous shock under s 3 and s 4 of the 1944 Act which he observed "is not derived from any cause of action vested in the person whose death (for example) occasioned the claimant's injury by nervous shock ... [and] does not depend upon any existing liability to the original victim, whose contributory negligence, or failure for any reason in an action against the defendant, is no answer to the claimant's case [and] ... merely required ... 'that the act, neglect or default that caused death, injury or peril was in some sense wrongful'": Mangion at 104 - 105. His Honour referred for the last proposition to Scala v Mammolitti (1965) 114 CLR 153 (at 162) per Windeyer J.

80 Samuels AP then considered the Tribunal Act, having regard to the requirement (s 33, Interpretation Act 1987) that he should prefer a construction that promoted "the purpose or object underlying the Act". He stated (at 105):

"It is manifest from the terms of s 11 and s 12 of the Act that its purpose was to assign to a specified tribunal claims for damages for negligence or breach of statutory duty in respect of injury or death attributable to a dust-related condition. Such proceedings may not be brought before any other court or tribunal, and, if pending in the Supreme Court on the commencement of s 12, the registrar of the relevant division must transfer the proceedings to the Tribunal. Section 11(3) of the Act is not easy to interpret, but it does at least indicate that proceedings for a dust-related condition may carry with them into the Tribunal claims in respect of other matters which are not dust-related. Section 11(4) confers on the Tribunal jurisdiction to deal with matters ancillary or related to the proceedings contemplated by s 11(1), and presumably includes, for example, questions concerning apportionment and the liability of insurers: see the definition in s 3(1).

The object of the Act being to assign to the Tribunal all proceedings in respect of injury or death caused by dust-related conditions, it is necessary to give the words 'claiming through' a sufficiently liberal construction to prevent the frustration of the statutory purpose.

It seems to be a reasonable view of the language used in the context of this Act to regard, for example, a claim by a widow for damages for nervous shock sustained upon the death of her husband from a dust-related condition attributable to his employer's breach of duty as made 'through' the husband, in the sense of in consequence of his dust-related death.

If 'through', and thus the provisions to which the word is central, is regarded as ambiguous or obscure, so as to authorise consideration of extrinsic material by dint of the Interpretation Act, s 34(1)(b)(i), the Attorney-General's Second Reading Speech offers some assistance. Both he, and the Explanatory Note to the Bill, make clear that s 11 was intended to provide that claims arising out of the death of persons affected by dust-related conditions should be dealt with by the Tribunal." (Emphasis added)

I note that the enactment of sub-section (5) does not appear to have been drawn to the Court of Appeal's attention as it was not included when s 11 was quoted: see Mangion (at 103).

81 Samuels AP found support for his conclusion in the passage I have emphasised in the Attorney General's Second Reading Speech (see [40] above) to which he had regard pursuant to s 34(1)(b)(i) of the Interpretation Act. His Honour did not think "that it [could] be doubted that a claim for damages for nervous shock under the 1944 Act is a claim which conforms to that prescription".

82 Finally, Samuels AP adopted (at 106) the approach Mason and Wilson JJ applied in Tanning Research in dealing with a submission about the construction of art IV of the Hague Rules "... we think that such an extraordinary result has only to be stated to suggest that the argument is untenable': Shipping Corporation of India Ltd v Gamlen Chemical Co (A/asia) Pty Ltd [1980] HCA 51; (1980) 147 CLR 142 (at 164). He concluded:

"If one makes the not unreasonable assumption that in the present state of our society most dust-affected workers are likely to be males, proceedings by widows in respect of their husbands' deaths caused by dust-related diseases will ordinarily consist of a claim under the Compensation to Relatives Act with which, less commonly, may be linked, in the same statement of claim, a claim for nervous shock. It would indeed be extraordinary if these two claims had to be decided by different tribunals. In my opinion the Tribunal has jurisdiction to deal with both."

83 Like Samuels AP, Mahoney JA had little difficulty concluding that the Compensation to Relatives Act proceedings were within the Tribunal's jurisdiction. He took into account in this respect that the "objective sought to be achieved by the Dust Diseases Tribunal Act was, or included, that where a person is liable for damages because of his liability for a dust-related condition, all aspects of his liability should be determined by one Tribunal", that the legislature intended to avoid multiple litigation in different jurisdictions in dust-related condition cases and, also, the possibility of inconsistent decisions in different courts or tribunals in respect of claims based upon a dust-related condition: Mangion (at 108 - 109).

84 Mahoney JA recognised (at 109) that s 11(1) was the central provision of this part of the Tribunal Act and that the essential question was to determine what proceedings it specified. He remarked that its structure "provides that if the three conditions specified in pars(a), (b) and (c) are satisfied, then the proceedings which it specifies may be brought before the Tribunal and no other court or tribunal."

85 Unlike Samuels AP, Mahoney JA (at 109) focused on the words in the final clause of s 11(1), "proceedings for damages in respect of that dust-related condition or death" and said:

"Therefore, the proceedings for damages which may come before the Tribunal are proceedings having to that dust-related condition or death the relationship of being 'in respect of' it."

86 Mahoney JA referred to statements in Genders v Government Insurance Office of New South Wales (1959) 102 CLR 363 (at 387); McDowell v Baker (1979) 144 CLR 413 (at 415) to the effect that the words "in respect of" "denote a relationship which is wide in its ambit". Giving those words their ordinary meaning in s 11(1), his Honour concluded (at 109 - 110) that a Compensation to Relatives Act claim was one "in respect of" a dust-related condition or death. While accepting that it was "at least arguable" that "the generality of 'in respect of' is to be conditioned" he concluded, "it is to be conditioned by reference to the objective which the legislation sought to achieve and the means it chose to achieve it". In his view (at 110):

"[T]he kind of 'proceeding for damages' that the legislature envisaged as described by the term 'in respect of' is a proceeding deriving from the kind of situation adverted to in particular in par (b), viz, the situation where the condition or death of the person suffering from a dust related condition is attributable to a breach of duty owed to him by another."

87 Mahoney JA rejected (at 110) the respondent's submission that the words "proceedings for damages in respect of that dust-related condition or death" should be read down to limit the proceedings to those brought by a person affected by the dust-related condition or "a person claiming through that person". In his view, there was no "warrant in the subsection for the implication of such a restriction upon the generality of the words". He explained (at 110 - 111):

"The argument suggests, I think, that the necessity for the implication arises because of par (c) and the purpose of it. I do not think that that is correct. Stated broadly - and therefore without the qualifications which necessarily must be made - the purpose of pars (a), (b) and (c) is to ensure that, where the person affected by a dust-related condition or a person claiming through him would have been entitled to bring an action for damages for that condition and so must bring the proceedings before the Tribunal, all other proceedings for damages 'in respect of' that condition must be brought before the Tribunal. The restriction imposed by s 11(1) upon other courts and tribunals applies only where the person afflicted by the dust-related condition or 'a person claiming through that person' would have been entitled to bring an action for damages in an ordinary court because of the condition.

Paragraphs (a), (b) and (c) perform a function having some analogy to the function performed by, for example, the Compensation to Relatives Act, s 3(1). Section 3(1), as it operated in 1897, allowed a claim by relatives under s 4(1) to be made only if the person who has died by reason of the defendant's wrongful act would (if death had not ensued) have been entitled to maintain an action and recover damages from the defendant. The relatives may sue only if the deceased could have sued.

The purpose of pars (a), (b) and (c) is to limit the operation of the restrictions on jurisdiction imposed by s 11(1) to dust-related conditions and to limit them further to cases in which a right of action for damages in respect of the condition or death from it was vested in the person affected by the condition 'or a person claiming through that person'. Section 11(1) operates only where, in this sense, the person primarily affected by the condition or his estate could have sued for it.

On this construction of par (c) it is not necessary to pursue in detail the meaning of the words 'a person claiming through that person'. But I am inclined to the view that the words refer essentially to the claim which, if the person primarily affected has died, his legal personal representative will have. Since the Law Reform (Miscellaneous Provisions) Act 1944, where a person's condition is attributable to the breach of the duty owed to him by another and he dies, all causes of action vested in him survive for the benefit of his estate (s 2(1)). His legal personal representative is 'a person claiming through that person' in respect of that cause of action. The purpose of pars (a), (b) and (c) is to ensure that, where the person primarily affected by the condition or, if he is dead, his legal personal representative, has the relevant cause of action, then all proceedings for damages in respect of the condition are to be brought before the Tribunal."

88 Mahoney JA then turned to the nervous shock issue. He observed (at 112), that by virtue of his reasons:

"...[A] proceeding for damages by a widow because of the nervous trauma suffered by her consequent upon her husband's dust-related condition or death is within the restrictions imposed by s 11(1) only if it is a proceeding 'in respect of' his dust-related condition or death."

89 Having observed that a nervous shock action might derive from statute pursuant to the 1944 Act or from the common law, Mahoney JA noted that if the objective of the Tribunal Act was to prevent a multiplicity of proceedings, then "the bringing of a nervous shock claim before the Tribunal would not - at least, it might not - further that objective". However, he continued, "if the objective of the Act be seen as including the avoidance of inconsistent decisions concerning a dust-related condition, that would be furthered by holding the present kind of claim to be one 'in respect of' that condition or death from it." He concluded (at 112) that while he "entertain[ed] doubts", he did not dissent from Samuels AP and Clarke JA's conclusion "that s 11(1) extends to this class of case".

Primary judgment

90 The appellants contended before the primary judge that the respondent's claim was not within the Tribunal's jurisdiction because "[she] is not suffering from a dust-related condition (s 11(1)(a)) and nor is she a person claiming through a person suffering from a dust-related condition (s 11(1)(c))": primary judgment (at [4]). The primary judge accepted the first part of this submission, but held that Mangion mandated he reject the second. He concluded (at [6] - [9]) that Mangion was authority for the proposition that the Tribunal had jurisdiction to deal with a claim for nervous shock "emanating from the illness or death of a person with a dust-related condition", even where that claim was advanced by a person not claiming under the Compensation to Relatives Act 1897.

91 The primary judge also rejected (at [10]) the appellants' submission that Mangion was no longer binding authority having regard to the "later passing" of s 11(5) of the Tribunal Act with its express reference to Compensation to Relatives Act claims, the structure of the Tribunal's claims resolution process and anomalies the appellants contended including nervous shock within the Tribunal's jurisdiction would produce.

92 The primary judge observed pithily that the answer to the appellants' submission concerning the effect of the introduction of s 11(5) was that:

"[13] ... [Section] 11, 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.

93 His Honour was also persuaded (at [11]) to his conclusion by the fact that the s 11(5) amendment had not been considered to have affected the meaning of s 11(1)(c) in Seltsam Pty Ltd v Energy Australia [1999] NSWCA 89; (1999) 17 NSWCCR 720 ("Seltsam") and Laminex and by the fact that the Tribunal Act had not been amended to address nervous shock claims despite the decision in Mangion.

94 Accordingly his Honour concluded (at [15]) that "Mangion stands and the Tribunal has jurisdiction to hear the plaintiff's claim."

Appellants' submissions

95 Mr T G R Parker of Senior Counsel, who appeared for the appellants on appeal and before the Tribunal, advanced two general submissions. The first was that because the respondent's psychiatric illness was not a "dust-related condition", although Mr Winch's mesothelioma was, the Tribunal would have jurisdiction over the respondent's claim only if she was a person "claiming through" Mr Winch and her proceedings could be characterised as being "for damages in respect of" Mr Winch's mesothelioma. He contended that neither of these conditions was satisfied. The second was that the decision in Mangion that a nervous shock claim was within the Tribunal's exclusive jurisdiction under s 11(1) was wrong and should be overruled.

96 First, Mr Parker argued that insofar as Mangion held that a person bringing nervous shock proceedings, whose condition was alleged to been caused by awareness another person had been injured or died as a result of the person suffering a dust-related condition, it was clearly incorrect. He argued that such a nervous shock claim was independent of any cause of action the injured or deceased person might have so that the plaintiff in such a case could not be said to be "claiming through" the injured or deceased person.

97 Secondly, Mr Parker submitted that the respondent's nervous shock claim could not be characterised as a claim made through Mr Winch nor constituted proceedings for damages "in respect of" his dust-related condition. It was not a claim through Mr Winch because the nervous shock claim was an independent cause of action not derived from, or dependent on, there having been a breach of duty to Mr Winch in respect of his condition. Rather, the respondent complained of a breach of duty she alleged the appellants owed her directly. Further, the damages she sought to recover would be assessed by reference to her psychiatric condition and did not depend in any way upon any assessment of damages for Mr Winch's dust-related condition.

98 Thirdly, Mr Parker contended that insofar as Samuels AP's reasons in Mangion (at 106) rested on his concern about the "practical problem" of a plaintiff having to bring a Compensation to Relatives Act and nervous shock claim in two jurisdictions, that issue was best addressed by including those claims in proceedings properly brought under s 11(1) or s 11(1A) via the route afforded by s 11(3) and s 11(4) rather than by stretching the meaning of "claiming through" in s 11(1). Thus Mr Parker submitted that once Samuels AP held that Ms Mangion's Compensation to Relatives Act claim was within s 11(1), her nervous shock claim would have fallen within the "pendent" jurisdiction conferred by either s 11(3) or s11(4). However he argued that route was not available to the respondent as Mr Winch's proceedings were no longer on foot having been settled some years prior to the commencement of her nervous shock proceedings. Accordingly there were no principal proceedings in which her claim could be "included": see s 11(3) and s 11(4).

Respondent's submissions

99 Mr P Semmler of Queens Counsel, who appeared for the respondent with Mr S Tzouganatos on appeal and below, first submitted that the Tribunal had jurisdiction over the respondent's claim because the conditions in s 11(1)(a), (b) and (c) were satisfied. Section 11(1)(a) was satisfied because immediately before his death Mr Winch was suffering from the dust-related condition of mesothelioma. Section 11(1)(b) was satisfied because the respondent alleged that Mr Winch's mesothelioma was caused by, or attributable to, the negligence of the appellants in allowing him to be exposed to asbestos dust in the course of his employment. Section 11(1)(c) was satisfied because the respondent was a person who, but for the Tribunal Act, was entitled to bring an action for "damages 'in respect of'" Mr Winch's death. The last step in Mr Semmler's argument was based on Mangion (at 105 - 107) per Samuels AP and (at 112 - 113) per Mahoney JA.

100 Secondly, Mr Semmler submitted that the Court should prefer a construction of s 11 which advanced the legislature's manifest intention that the Tribunal should have exclusive jurisdiction in claims arising from dust-related conditions as explained in Mangion (at 105) and Laminex (at [57]).

101 Thirdly, Mr Semmler accepted that the respondent's nervous shock claim was not strictly a derivative claim. However, he relied upon Mangion (at 105) as supporting the proposition that a claim for nervous shock sustained by reason of knowledge of a person's death from a dust-related condition attributable to an employer's breach of duty should be regarded as a claim made "through" the deceased "in the sense of in consequence of his dust-related death". He also argued that the claim could be seen to be made "through" Mr Winch because the respondent's psychiatric condition only developed as a result of her father suffering from, and dying because of, mesothelioma. In other words, the genesis of both Mr Winch's and the respondent's claims was his dust-related condition, caused by the appellant's breach of the duty of care it owed to him.

102 Fourthly, Mr Semmler adopted Samuels AP's statement in Mangion (at 106) that to adopt a narrow construction of the words "claiming through" in s 11(1)(c) so as to exclude claims for psychiatric injury consequent upon a dust-related suffering and death would be "manifestly absurd or unreasonable". He also argued that such a construction could give rise to inconsistent decisions if nervous shock proceedings had to be brought in two separate forums.

103 Fifthly, Mr Semmler adopted Mahoney JA's reasoning concerning the words "in respect of ... dust-related condition or death" in the final paragraph of s11(1) to the effect that, although it was correct that the damages the respondent sought would be assessed by reference to her psychiatric condition, her action for damages was "unquestionably 'in respect of' Mr Winch's dust-related condition because it only arose because he developed and died from that condition. He submitted that Mr Winch's dust-related condition and its consequences were "necessary components of [the respondent's] cause of action".

104 Sixthly, Mr Semmler argued that the enactment of s 11(5) both confirmed the effect of Mangion and, by the use of the word "includes", indicated that other persons, including on the authority of Mangion persons claiming for nervous shock, may be regarded as "claiming through" the person with the dust-related condition.

105 Seventhly, Mr Semmler argued that Mr Parker's submission that Mangion could have been decided on the basis that, having regard to her Compensation to Relatives Act proceedings, Mrs Mangion's nervous shock claim could be brought in the Tribunal's "pendent" jurisdiction conferred by s 11(3) and s 11(4), was misconceived. He contended that the Tribunal's s 11(3) jurisdiction depended on the cause of action sought to be included by virtue of s 11(3) also giving rise to a claim. That requirement could not be satisfied even in the case of a claim for psychiatric illness consequent upon a relative suffering and/or dying from a dust-related condition because the causes of action differed. He also argued, by reference to the definition of "ancillary or related matter" in s 3 of the Tribunal Act, that s 11(4) was intended to embrace matters such as apportionment and insurer's liability. He further argued that it would be unreasonable and capricious if a claim for psychiatric injury could only be brought before the Tribunal if, by chance, there was another ancillary or related proceeding which itself attracted the Tribunal's jurisdiction.

106 Finally, Mr Semmler emphasised the undesirability of s 11 being construed in a manner which would deprive a plaintiff of the benefit of the Tribunal's specialised knowledge of dust-related conditions as well as of provisions such as s 25(3), s 25A and s 25B of the Tribunal Act enacted to assist in the determination of dust-related claims. He argued that the Court should not take the exceptional step of overruling Mangion, submitting it had not been shown to be "clearly wrong" and there were no compelling reasons to depart from it. He relied on the fact that Mangion was a long-standing decision which had been applied to confirm the Tribunal's jurisdiction to hear psychiatric illness injury claims arising out of deaths from dust-related conditions. He also relied on the fact Mangion was referred to with approval in Seltsam (at [18] - [19]) and was not questioned by the Court in Laminex.

Post-Mangion jurisprudence

107 There have been a number of decisions in this Court concerning the Tribunal's jurisdiction since Mangion. Not all refer to Mangion and none concerned the central issue which arises on the appeal. However they inform the Court's approach to the construction of the Tribunal Act.

108 Three decisions concerned the ambit of the Tribunal's jurisdiction to hear proceedings brought by either a plaintiff who had suffered from a dust-related condition or his executor: Anderson v Kaufman (1991) 7 NSWCCR 198 ("Anderson"), Amaca Pty Ltd v Cremer [2006] NSWCA 164; (2006) 66 NSWLR 400 ("Cremer") and Laminex. The others concerned the Tribunal's jurisdiction to entertain a cross-claim either after judgment or settlement in favour of the plaintiff or the defendant: Seltsam; Wallaby Grip; CSR Ltd v Amaca Pty Ltd [2008] NSWCA 329; (2008) 9 DDCR 182 ("CSR"); Allianz Australia Insurance Ltd v Bluescope Steel Ltd [2012] NSWCA 240 ("Bluescope Steel").

109 In Anderson the Court (Mahoney, Priestley and Clarke JJA) held that the Tribunal had jurisdiction to determine professional negligence proceedings brought by a plaintiff who sued his former doctor alleging that he developed advanced mesothelioma in consequence of the latter's negligence in failing to diagnose and treat a pulmonary condition caused by asbestos exposure. He pleaded in paragraph 7 of his statement of claim that "[a]s a result of the negligence of the defendant [he] developed an advanced mesothelioma." The critical issues were whether the pleading alleged that his advanced mesothelioma was "attributable or partly attributable to a breach of duty" within the meaning of s 11(1)(b) and whether his claim was an action for damages "'in respect of' that dust related condition": Anderson (at 206 - 207).

110 Clarke JA delivered the leading judgment with which Mahoney JA agreed as well as adding some observations.

111 Clarke JA considered (at 206) Samuels AP's and Mahoney JA's comments in Mangion in respect of the purpose of the Tribunal Act, noting, in particular, Samuels AP's statement that because "[t]he object of the Act [was] to assign to the Tribunal all proceedings in respect of injury or death caused by dust related conditions ... it [was] necessary to give the words 'claim through' a sufficiently liberal construction to prevent the frustration of the statutory purposes."

112 Clarke JA had no difficulty disposing of the first issue in the plaintiff's favour, holding (at 207) that he was "unable to accept that 'attributed to' has some specific and limited meaning which distinguishes it from the concept of 'caused by' or 'resulted from'."

113 Clarke JA also disposed of the second issue succinctly saying (at 207 - 208):

"The other question is whether the appellant's claim for damages is 'in respect of his dust-related condition'. In terms it must be. It is a claim for damages for the very condition which is dust-related and I do not think it matters in this context ... whether the claim is brought against an employer, public authority or medical practitioner provided that the claim meets the requirements of s 11(1)(a) and s 11(1)(b)." (Emphasis added)

114 Clarke JA (at 208) acknowledged the force of Mahoney JA's comments in Mangion that "some restriction ought to be placed on the generality of the phrase 'in respect of'" but did not think any greater restriction than that to which his Honour had referred should be imposed. In his view, once the plaintiff had satisfied s 11(1)(b), it seemed to him "to follow that the claim is properly described as one in respect of his dust related condition": Anderson (at 208). He rejected the respondent's argument that the phrase "attributable to" in s 11(1)(b) "conveyed the notion that the only claims brought within the jurisdiction of the Tribunal were those brought against the party responsible for exposing the suffering person to the dust-related condition", observing (at 208):

"That limitation or qualification does not appear in the Statute, which describes the conditions upon which jurisdiction is invested in the Tribunal, in terms quite inconsistent with the notion. For myself I am unable to see how the phrase 'attributable to' which it must be recognised could apply more widely than is suggested by the submission, can lead to a reading down of the subsection in such a dramatic fashion."

115 In his additional observations, Mahoney JA also dealt with the pleading issue, holding (at 202) that facts to bring the case within s 11(1)(b) had been sufficiently pleaded.

116 As to the second issue, Mahoney JA referred (at 202) to his statement in Mangion (at 109 - 110) concerning "the obvious width of the words 'in respect of' and ... the necessity of considering in due course whether the words are to be given their widest meaning or whether they are to be limited in some way." He observed (at 202 - 203) that it was not necessary at that time "to attempt to define precisely such limits as may be appropriate to be applied to the words". He added (at 203):

"It may be that the proceedings in question must be shown to be proceedings for those damages or losses that come from the dust related condition in question. Such an understanding of the words would mean that the kind of defamation proceeding to which I refer in Mangion's case would be outside the section: those damages would come not from the condition but from the publication of the allegations to which I there refer. However, such a definition, if treated as exhaustive, might not be a satisfactory definition so as to accommodate proceedings such as proceedings under the Compensation to Relatives Act or nervous shock cases of the kind which, in the Mangion case, were held to be within s 11." (Emphasis added)

117 His Honour found (at 203) that it was sufficient for the purpose of the case to hold that "where there is a claim for damages and those damages are as the present damages are, alleged to have been caused by the dust-related condition in question, the proceedings are within the section."

118 Seltsam concerned the jurisdiction of the Tribunal to entertain a cross-claim filed by a defendant after judgment in favour of the plaintiff. On 15 January 1997 the plaintiff commenced proceedings against Energy Australia, his previous employer, alleging its negligence in exposing him to asbestos insulation material had led to him contracting mesothelioma. The parties settled the case on 17 January 1997 and handed up to the trial judge, O'Meally J, terms of settlement, short minutes of orders and an order for judgment for a money sum to be paid to the plaintiff. O'Meally J granted the defendant leave to proceed with "any cross-claim" within 28 days: Clark v Seltsam Pty Ltd [1999] NSWDDT 2; (1999) 18 NSWCCR 587. The plaintiff died on 22 January 1997.

119 The defendant did not file the cross-claim within 28 days, but obtained an extension of time to do so. It then filed a cross-claim against a number of parties being the manufacturers and suppliers of the asbestos products to which the plaintiff had been exposed claiming indemnity or contribution from them in respect of the damages it had paid to the plaintiff. The cross-defendants ("the claimants") filed notices of motion seeking to strike out the cross-claim. Maguire J dismissed the motions.

120 The claimants appealed. Giles JA (with whom Priestley JA agreed) dismissed the appeal. Fitzgerald JA dissented.

121 Giles JA noted (at [28]), in substance, that it was not contested that "the cross-claim was not 'proceedings for damages' within s 11(1)", a conclusion the claimants based on Unsworth v Commissioner for Railways (1958) 101 CLR 73 ("Unsworth") (at 91). Accordingly, the claimants contended, the only other source of jurisdiction was s 11(4) of the Tribunal Act. They argued the order made granting an extension of time for the filing of the cross-claim expired as soon as judgment was entered in favour of the plaintiff, so that that there were no "proceedings to be brought" within the meaning of s 11(4) in which the cross-claims could be "included": see Seltsam (at [28]). As I have said, s 11(1A) had not been enacted when Seltsam was decided.

122 Giles JA made extensive reference (at [18] - [19]) to passages from Samuels AP and Mahoney JA's judgments in Mangion (at 105 and 108 - 109 respectively) in which their Honours discussed the purpose or objects underlying the Tribunal Act. His Honour then observed:

"19 As Samuels AP was prepared to recognise, a cross-claim by a defendant claiming indemnity or contribution from a co-defendant or a third party pursuant to s 5(1)(c) of the LR Act is an 'ancillary or related matter' for the purposes of s 11(4). That is dictated by the definition in s 3(1), and the defined phrase also encompasses a cross-claim by a defendant against a third party other than for indemnity or contribution, such as against an insurer under a contract of insurance, provided that the claim relates to the subject-matter of the proceedings. The provisions of the Act, and the considerations referred to in Mangion v James Hardie & Co Pty Ltd, show that the jurisdiction of the Tribunal was conferred as part of a scheme whereby it should have exclusive jurisdiction, including by compulsory transfer of proceedings in the Supreme Court and the District Court and a wide notion of ancillary or related matters, in relation to claims in respect of dust-related conditions and claims to which such claims give rise. The Tribunal was established as a specialist tribunal (see in particular s 25(3) of the Act), and so far as the provisions of the Act permit all aspects of liability in respect of dust-related conditions are committed to it with a view to avoidance of multiplicity of litigation and enhanced consistency of decision-making." (Emphasis added)

123 Giles JA noted (at [21]) that by force of r 2 of the Dust Diseases Tribunal Rules the rules of the Supreme Court in relation to filing cross-claims applied with necessary modification to proceedings before the Tribunal and matters in respect of which the Tribunal had jurisdiction. Accordingly, by the combined operation of Pt 6 r 10(1), Pt 15 r 3(1), and Pt 7 r 5(1) of the Supreme Court Rules a cross-claimant could file a cross-claim within 28 days after service of a statement of claim upon it: Seltsam (at [22]). Further, Pt 2 r 3 of the Supreme Court Rules gave the Tribunal power to extend or abridge any time fixed by the rules or by any judgment or order (Seltsam (at [23]), a power his Honour noted (at [39]) that Wilson J had described in FAI General Insurance Company Ltd v Southern Cross Exploration NL [1988] HCA 13; (1988) 165 CLR 268 ("FAI General Insurance") (at 283 - 284) as "a remedial provision which confers on a court a broad power to relieve against injustice".

124 Giles JA rejected (at [33]) the claimants' argument that the words "to be brought" in s 11(4) meant "to be heard" or "to be determined", so that the condition could not be fulfilled following the entry of judgment. He held that the phrase did not have that meaning on an ordinary reading, was inconsistent contextually with the reference to proceedings brought as distinct from transferred in s 10(4) or with the reference to proceedings brought as distinct from entertained in s 11(1). In his Honour's view "[t]he phrase must be read as part of the wider phrase in s 11(4), 'a matter that is the subject of proceedings to be brought', with the function of identifying the matter as that which is embodied in the proceedings when brought but not of imposing the impossibility of including an ancillary or related matter in proceedings still to be commenced". Accordingly, the first opponent's cross-claim was a matter that was ancillary or related to a matter so identified.

125 Giles JA held (at [41]) that "judgment in favour of the plaintiff in proceedings in the Tribunal does not mean that the proceedings are at an end so that a cross-claim can not be included in the proceedings within the meaning of s 11(4)." Rather in his Honour's view, "the proceedings remain[ed] on foot so as to enable the defendant to give effect to its entitlement to file a cross-claim within 28 days from the service of the statement of claim upon it, that being an entitlement in accordance with the Tribunal's rules and procedures" and the time within which the defendant could exercise that entitlement could be "enlarged" pursuant to Part 2 r 3 of the Supreme Court Rules. If it was enlarged, "the proceedings remain[ed] on foot so as to permit the defendant to exercise its entitlement within the enlarged time". In his Honour's opinion (at [50]):

"[T]he objective that all aspects of liability in respect of dust-related conditions are committed to the Tribunal with a view to avoidance of multiplicity of litigation and enhanced consistency of decision making suggests that the provisions of the Act should be construed in the way I have indicated. Cross-claims such as the first opponent's cross-claim raise questions of liability in respect of dust-related conditions encompassed by the objective." (Emphasis added)

126 Fitzgerald JA held (at [61]) that s 11(4) of the Tribunal Act only permitted the institution of an "ancillary or related matter", including a cross-claim under s 5(1)(c) of the Law Reform (Miscellaneous Provisions) Act 1946, "when there was an extant proceeding under s 11(1) of the ... Tribunal Act in the Tribunal to which the cross-claim can be 'ancillary or related'". In language reminiscent of O'Meally J's judgment in Mangion, he remarked:

"Absent such a proceeding under subs 11(1) to which an 'ancillary or related matter' may be appended, the legislature has understandably not sought to oust the jurisdiction of the Supreme Court and other courts which can broadly be described as courts of general jurisdiction. There was no reason to do so in order to achieve the primary statutory purpose of ensuring a prompt determination of claims for dust-related injuries by a specialist tribunal. Dust Diseases Tribunal Act subs 25(3)."

127 Giles JA's reasoning in Seltsam was applied in Bluescope Steel (at [53], [55] - [58]) per Beazley JA (Macfarlan JA agreeing); (at [81] - [87]) per Barrett JA.

128 Wallaby Grip concerned the question whether a cross-claim for contribution filed by a defendant to proceedings in the Tribunal more than two years after it settled a claim with the plaintiff constituted "proceedings" within the meaning of s 12A of the Tribunal Act (see [54] above) and, accordingly, was not subject to the limitation period of "two years running from the date on which the cause of action for contribution first accrues to the plaintiff or to a person through whom the plaintiff claims" prescribed by s 26 of the Limitation Act 1969.

129 Mason P (Sheller and Ipp JJA agreeing) noted (at [22]) that s 12A (as well as ss 12B - D) was inserted into the Tribunal Act by the 1998 Act. His Honour set out (at [23]) part of the passage from the Second Reading Speech of the Attorney General (see [53] above) while noting (at [24]) "the need for caution against construing a Minister's speech as a direct aid to construction". However he observed (at [24]) that "[t]he entire focus of this and all other parts of the second reading speech was concern for the victim and avoidance of the toils and delays associated with contested proceedings to extend limitation provisions applicable to plaintiffs suing for damages."

130 In his Honour's view (at [25]), the mischief identified in the Second Reading Speech and the "narrower scope of s 12A" were signalled by s 12A(1) (see [54] above). He continued:

"In my opinion, the only persons capable of bringing proceedings before the Tribunal in relation to dust-related conditions are persons elsewhere identified in the Act as entitled to institute proceedings 'before the Tribunal'. This is a reference to persons entitled to commence proceedings that 'may be brought before the Tribunal' pursuant to s 11(1) or whose proceedings pending in the Supreme Court or the District Court at the commencement of s 12 of the DDT Act were required to be transferred to the Tribunal pursuant to that section. These persons are 'victims', as I have identified them." (Emphasis in original)

131 His Honour added (at [26]) that "while s 11(4) recognise[d] that 'ancillary or related matters' are part of proceedings falling within the jurisdiction of the Tribunal and subject to the powers and procedures of the Tribunal [and] ... [t]he subsection permit[ted] such ancillary or related matters to be 'included in those proceedings', ... [it did] not treat them as the proceedings themselves or the basis for commencing the same in the Tribunal." His Honour was reinforced in this view (at [28]) by the provisions mentioned in s 12A(3) each of which "apply and apply only to plaintiffs suing for damages".

132 Mason P held (at [29]) that "proceedings before the Tribunal" within the meaning of s 12A(2) are proceedings "capable of being brought by victims", but did not include "claims raising ancillary or related matters ... capable of being included in such proceedings in the Tribunal, but which [could not] be made the trigger or basis for commencing such proceedings". Accordingly, the respondent's cross-claim for contribution was subject to the limitation period in s 26 of the Limitation Act.

133 Finally, while Mason P accepted (at [30]) that authorities in different statutory contexts spoke of the broad scope of the words "in relation to" (s 12A(2)) and supported the proposition that the respondent's cause of action for statutory contribution was "undoubtedly one that relates to dust-related conditions in certain respects", neither the text or the context supported the respondent's case: see [31] and [33].

134 In Cremer the Court of Appeal (McColl JA and Brereton J; Basten JA dissenting) held that s 12B of the Tribunal Act applied to proceedings commenced by a plaintiff (since deceased) against a particular defendant and pending at the time of the plaintiff's death. The effect of that decision was that the deceased's estate could not recover damages in respect of her pain or suffering, bodily or mental harm or for curtailment of her expectation of life from Amaca Pty Ltd, which was joined as a party to the Tribunal proceedings after her death. The case was determined principally on the language of s 12B. It does not appear the Court was referred to Mangion, but it is not apparent the outcome would have been different if it had been. Neither party suggested it cast any light on the resolution of this appeal.

135 Mangion was considered in Laminex. In that case, the plaintiff had inhaled substantial quantities of wood dust, most commonly from working with medium density fibre board, in the course of his employment as a cabinet-maker and shopfitter. In 1999 he was diagnosed with ethmoid cancer, which was not a dust-related condition within the meaning of the Tribunal Act: Laminex (at [22]). Following the diagnosis, he had a large tumour between his eyes surgically removed, resulting in the loss of one eye and much of his sinus tissue. After the operation and the loss of his sinus tissue, he suffered a period of atelectasis and chronic lung irritation. In May 2000 he brought proceedings in the Tribunal against CSR Ltd (a manufacturer and distributor of medium density fibre board) and J Odlin (International) Pty Ltd, by whom he had been employed for many years in his shopfitting work: Laminex (at [5]). He alleged that the defendants were negligent in exposing him to wood dust which caused the ethmoid cancer and which in turn led to him suffering from the dust-related conditions. Other defendants who had manufactured and distributed medium density fibre board (or their insurers) were subsequently joined.

136 The defendants challenged the Tribunal's jurisdiction, contending that the plaintiff did "not suffer from and has not suffered from a 'dust-related condition'" because although his atelectasis and chronic lung irritation were pathological conditions of the lung, they were not "attributable to dust" (s 3, Tribunal Act) but, rather, were indirect and remote consequences of exposure to dust, and were properly to be seen as attributable to the surgery: Laminex (at [28]). They also contended that the proceedings were not "for damages in respect of that dust-related condition" within the meaning of s 11(1) of the Tribunal Act because the atelectasis and chronic lung irritation were "merely consequential effects on the respondent's lungs of his primary condition, the ethmoid cancer, which was not a dust-related condition": Laminex (at [35]). Duck J held that the Tribunal had jurisdiction. The defendants appealed. The Court dismissed the appeal.

137 Giles JA (with whom Hodgson and Bryson JJA agreed) rejected the first argument holding (at [33]) that "the context in which ["attributable to" appeared in the definition of "dust-related condition"] as part of the definition of the condition for which a claim might be brought under the Act, did not call for a more confined notion of causation that [sic, than] suffice[d] for liability for the consequences of a tortious act", which could include the consequences of medical treatment.

138 It is Giles JA's resolution of the second issue which is most relevant to this appeal. That argument turned in part on the defendants' contention that (Laminex (at [35]):

"[The plaintiff's] causes of action were complete when [he] first suffered damage, which was at the latest when it was found that he had ethmoid cancer in early 1999. Any further damage [he] thereafter suffered ... was compensable as part of the same cause of action. [He] could bring proceedings for damages in respect of his condition of ethmoid cancer, which was not a dust-related condition, but he could not bring separate proceedings for damages in respect of the dust-related conditions of atelectasis and chronic lung irritation: they were no more than consequential disabilities compensable within the cause of action which was complete at a time prior to their emergence. The proceedings were therefore not for damages in respect of those conditions."

139 Giles JA accepted (at [36]) that the Tribunal Act did not create new causes of action, but, rather, "a specialist tribunal to hear proceedings for damages of specified kinds which would otherwise be heard in the Supreme Court or the District Court". He observed (at [37]) that "the Tribunal's jurisdiction is not described in terms of causes of action [but] ... in terms of a set of conditions in s 11(1)(a), (b) and (c) concerned with suffering a dust-related condition and entitlement to bring an action for recovery of damages in respect of that condition or related death, and the statement that proceedings for damages in respect of the dust-related condition or death may be brought". He held (at [40], see also [38]) that:

"[T]he criterion for the Tribunal's jurisdiction is not whether the person's cause of action when first accruing was a cause of action to recover damages for a dust-related condition. It is sufficient that on the cause of action the person claims or comes to claim damages in respect of the dust-related condition, even though the person's claimed entitlement on the cause of action is also to damages in respect of other matters."

140 The defendants had relied on Mahoney JA's observations in Mangion (at 110) that it was "arguable that some restriction is to be placed upon the generality of the words 'in respect of' in [s 11(1)]" and his suggestion that it was questionable whether defamation proceedings founded on a statement that the plaintiff had caused the death of the relevant deceased by a dust-related condition which it deliberately induced would be within the jurisdiction of the Tribunal, even though such a proceeding "would, in the widest meaning of the phrase, be a proceeding for damages in respect of the dust-related condition or death of that person".

141 Giles JA acknowledged (Laminex at [44]) that the "example of the defamation proceedings is distant from the present case", noting that:

"They would be brought on a different cause of action, whereas in the present case the respondent's claim is within the kind of proceedings considered to be within the scope of 'in respect of', namely, that the condition of the person suffering from a dust-related condition is attributable to a breach of duty owed to him by another. No doubt a de minimis principle will apply, so that an insignificant claim will not mean that proceedings are for damages in respect of a dust-related condition. That can not be said of the respondent's claim." (Emphasis added)

142 Giles JA acknowledged (at [59]) that the appeal had to be determined by reference to the language of the Act, but clearly drew support for his conclusion from the fact (at [57]) that the "legislature intended that the Tribunal should have exclusive jurisdiction in relation to the suffering of dust-related conditions [which] it described ... through ss 10 and 11 of the Act" as well as (at [58]) from Callinan J's statement in BHP Billiton Ltd v Schultz (at [241]) that:

"No doubt for reasons thought to be good and valid by the legislature of New South Wales, the regime is one established for the benefit of sufferers of dust-related diseases. It is not a regime in which, as a practical matter, defendants are likely to have the same rights both procedurally and substantively, as plaintiffs, and as they would have in the ordinary course in proceedings in the Supreme Courts of the States."

143 CSR relevantly considered the question whether the Tribunal had jurisdiction to entertain a cross-claim brought by James Hardie against CSR. After the death of her husband the plaintiff continued proceedings he had brought in the Tribunal against James Hardie. She was unable to prove that her husband had been exposed to enough asbestos to cause asbestosis and the proceedings were decided in James Hardie's favour. James Hardie cross-claimed against CSR in the Tribunal seeking contribution to the costs of the proceedings. CSR argued that the Tribunal should find that the deceased did not suffer from an asbestos related condition and that the DDT therefore did not have jurisdiction to entertain the cross-claim against CSR. O'Meally P rejected that argument.

144 In this Court, Beazley JA (with whom Giles JA and Young CJ in Eq agreed) found (at [76]) that even though the plaintiff had been unable to establish that her husband had suffered from a dust related condition, the proceedings fell within s 11 of the Tribunal Act because "[t]hey were made in respect of allegations that her husband suffered from a dust-related condition". Her Honour held (at [78]) that since the Tribunal's jurisdiction was "properly engaged in respect of the [first] matter, it extended to hearing the cross-claims". She referred to s 11(1A) and s 11(4) of the Tribunal Act as supporting that conclusion and also to, inter alia, the passage in Mangion (at 105) set out at [80] above.

145 The most recent authority in which Mangion has been cited is Bluescope Steel. In 2007 the executor of the deceased plaintiff, Mr Jackson, settled an action before the Tribunal on the basis of judgment in favour of the estate against Bluescope Steel Ltd ("Bluescope"). In 2011 Bluescope obtained an extension of time to file a cross-claim against Allianz Australia Insurance Ltd ("Allianz") seeking indemnity for the judgment monies and costs paid to the estate. Allianz contended the Tribunal had no jurisdiction to entertain the cross-claim as there were no extant proceedings before the Tribunal at the time that the cross-claim was brought: Bluescope Steel (at [11]). It failed in that argument before the Tribunal and on appeal.

146 Beazley JA (with whom Macfarlan JA agreed) (at [11]) and Barrett JA (at [78]) referred to Mangion merely for the proposition that Bluescope's claim for indemnity fell within s 11(4).

147 Beazley JA held (at [57]) that "[t]here is nothing in the express words of s 11(4) that requires that the subs (1) (or (1A)) proceedings be on foot" so as to support a s 11(4) matter being included in proceedings brought under s 11(1) or s 11(1A). Rather, "[w]hat must exist is the relevant connection with proceedings referred to in subs (1) or (1A)". Thus, in her Honour's view (at [58], [60]), (referring to FAI General Insurance (at 283 - 284) per Wilson J (Deane, Dawson and Brennan JJ agreeing) and Gaudron J (at 289, 290)), the Tribunal still had power, notwithstanding the conclusion of the estate's proceeding, to extend time in relation to a cross-claim that had the relevant connection.

148 Barrett JA observed (at [72] - [73]) that because the Tribunal is a statutory court, "it is inaccurate to refer to it having 'inherent jurisdiction', although it does possess powers incidental and necessary to the performance of its statutory functions and the exercise of its statutory powers" so that "any power of the Tribunal to entertain and determine the subject matter of Bluescope's claim against Allianz (as insurer) in respect of the liability of Bluescope arising from the Jackson proceedings must derive expressly or as a matter of necessary implication from a statute or statutory rule applying to the Tribunal." In his Honour's view (at [84]) the issue was governed by the decision in Seltsam.

149 This analysis of the post-Mangion jurisprudence demonstrates that each case in which the Tribunal was found to have jurisdiction involved as a central part of either the plaintiff's claim (and hence of a s 11(1)(b) allegation) or that of a party seeking contribution, a person suffering from a dust-related condition. None considered the meaning of the words "claiming though". To the extent that the purpose of the Tribunal Act was discussed, Giles JA in Seltsam (at [19], [50]) interpreted it as committing all aspects of liability in respect of dust-related conditions to the Tribunal's jurisdiction with a view to avoidance of multiplicity of litigation and enhanced consistency of decision-making, but with characteristic caution recognised that that was so "so far as the provisions of the Act permit".

Consideration

150 A party who is dissatisfied with a decision of the Tribunal in point of law may appeal to the Supreme Court: s 32, Tribunal Act. There was no dispute that, if the primary judge had erred in determining that the Tribunal had jurisdiction to hear the respondent's proceedings, he had erred in point of law: Vetter v Lake Macquarie City Council [2001] HCA 12; (2001) 202 CLR 439 (at [24] - [27]) per Gleeson CJ, Gummow and Callinan JJ.

151 The Tribunal is one of those bodies such as those to which Mahoney JA referred in New South Wales Bar Association v Muirhead (1988) 14 NSWLR 173 (at 208) which are "called tribunals or commissions [but] are courts". As a statutory court, the Tribunal "'has powers expressly or by implication conferred by the legislation which governs it' [which] ... is a matter of statutory construction'; [and] 'such powers as are incidental and necessary to the exercise of the jurisdiction or the powers so conferred'": DJL v Central Authority [2000] HCA 17; (2000) 201 CLR 226 (at [25]) per Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ.

152 It is inappropriate in determining the ambit of the Tribunal's jurisdiction to read s 11 by making implications or imposing limitations which are not found in the express words: Owners of the Ship, Shin Kobe Maru v Empire Shipping Co Inc [1994] HCA 54; (1994) 181 CLR 404 (at 421) (the "Shin Kobe Maru") per Mason CJ, Brennan, Deane, Dawson, Toohey, Gaudron and McHugh JJ. Gaudron J expressed the range of matters to be taken into account slightly more widely in Emanuele v Australian Securities Commission [1997] HCA 20; (1997) 188 CLR 114 (at 136 - 137) (albeit also by reference to the Shin Kobe Maru) when she said that "a provision conferring power on a court ... is not to be construed as subject to implications or limitations unless clearly required by its terms, its context or its subject matter". Her Honour's statement was referred to with approval in Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72 (at [21]) per Gaudron and Gummow JJ. In terms of the range of considerations relevant to matters of statutory construction, it is consistent with Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41; (2009) 239 CLR 27 (at [47]) per Hayne, Heydon, Crennan and Kiefel JJ; see also Zheng v Cai [2009] HCA 52; (2009) 239 CLR 446 (at [27] - [28]).

153 I do not understand those propositions to detract from the central requirement that, as in all matters of statutory interpretation, the duty of the Court is to construe s 11 so that it is consistent with the language and purpose of all the provisions of the Tribunal Act, to give the words of s 11 the meaning that the legislature is taken to have intended them to have and to consider the context of the words in s 11 to determine whether, having regard to the purpose of the Tribunal Act or canons of construction, the words of s 11 should be read in a way that does not correspond with its literal or grammatical meaning: Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 (at [69], [78]) per McHugh, Gummow, Kirby and Hayne JJ; see also Certain Lloyd's Underwriters Subscribing to Contract No IH00AAQS v Cross; Certain Lloyd's Underwriters Subscribing to Contract No IH00AAQS v Thelander [2012] HCA 56; (2012) 293 ALR 412 ("Certain Lloyd's Underwriters") (at [23] - [26]) per French CJ and Hayne J; (at [68] - [70]) per Crennan and Bell JJ; (at [88] - [89]) per Kiefel J.

154 The Court is expressly required to read s 11 in a way that would promote the purpose or object underlying the Tribunal Act: s 33, Interpretation Act 1987. However that requirement does not entitle the Court to make a priori assumptions about the ambit of the section and consider its purpose in that light. The focus must be on the words of s 11, where "the intended reach of the legislation is to be discerned": Minister for Employment and Workplace Relations v Gribbles Radiology Pty Ltd [2005] HCA 9; (2005) 222 CLR 194 (at [21]) per Gleeson CJ, Hayne, Callinan and Heydon JJ; see also Australian Education Union v Department of Education and Children's Services [2012] HCA 3; (2012) 86 ALJR 217 (at [28]) per French CJ, Hayne, Kiefel and Bell JJ; Certain Lloyd's Underwriters (at [26]) per French CJ and Hayne J.

155 One of the matters to which Mr Parker referred in his written submissions was the amendment to s 11 of the Tribunal Act by the inclusion of sub-section (5). He submitted that this confirmed the construction of that provision insofar as Compensation to Relatives actions were concerned, but said nothing about nervous shock claims. The respondent's written submissions also contended the amendment confirmed the effect of Mangion. It is not entirely clear whether either parties' submissions recognise that the sub-section was included in s 11 on 21 December 1989, after O'Meally J had held that s 11 did not extend to such claims, but before the Court of Appeal decision to the contrary.

156 The appellants appear to have placed greater reliance on the introduction of sub-section (5) before the primary judge (see [91] above). However in his oral submissions Mr Parker said that none of the amendments to s 11 of the Tribunal Act (that is to say the inclusion of sub-sections (1A) and (5)) affected the appellant's case.

157 It might be accepted that an amending Act may be taken into account in the interpretation of the prior legislation, at least to avoid a result that would render the amending legislation unnecessary or futile: Grain Elevators Board (Vic) v Dunmunkle Corporation [1946] HCA 13; (1946) 73 CLR 70 (at 86) per Dixon J. However a cautious approach should be adopted to ensure the words in the later statute have not been inserted to remove possible doubts: Allina Pty Ltd v Commissioner of Taxation (1991) 28 FCR 203 (at 212) per Lockhart, Burchett and Gummow JJ. That may well have been the case with the introduction of sub-section (5) prior to the decision in Mangion in the Court allaying any doubts flowing from O'Meally J's decision. Counsel did not, however, draw attention to any authority for the proposition that the fact nervous shock claims were not expressly referred to in an amendment was a matter to be taken into account in interpreting s 11. As Gummow J said in Interlego AG and Lego Australia Pty Ltd v Croner Trading Pty Ltd [1992] FCA 624; (1992) 39 FCR 348 (at 382), taking an amendment into account in determining the scope of the prior legislation is a curious way of revealing parliamentary intention at the time of passing the earlier provision.

158 It is, however, relevant to one of the questions in the appeal, namely whether Mangion was wrongly decided insofar as nervous shock claims are concerned, to recognise that none of s 11A, s 12A - s 12D, s 25(3), s 25A or s 25B had been enacted when it was determined. Those provisions, however, provide relevant context for the purposes of this Court determining whether s 11(1) extends to the respondent's proceedings. As Gageler J recently observed, "where a statute is amended, the statute and the amending statute are 'to be read together as a combined statement of the will of the legislature'": Commissioner of Police v Eaton [2013] HCA 2 (at [97]).

Relational terms

159 In The Queen v Khazaal [2012] HCA 26; (2012) 86 ALJR 884 ("Khazaal") (at [31]) French CJ observed of what he described as "relational terms":

"Relational terms such as 'connected with' appear in a variety of statutory settings. Other examples are: 'in relation to'; 'in respect of'; 'in connection with'; and 'in'. They may refer to a relationship between two subjects which may be the same or different and may encompass activities, events, persons or things. They may denote relationships which are causal or temporal or relationships of similarity or difference. The task of construing such terms does not involve the resolution of ambiguity. They are ambulatory words and may be designed to cover a variety of subjects and a variety of relationships between those subjects. The nature and breadth of the relationships they cover will depend upon their statutory context and purpose. Generally speaking it is not desirable, in construing relational terms, to go further than is necessary to determine their application in a particular case or class of cases. A more comprehensive approach may be confounded by subsequent cases." (Emphasis added)

160 French CJ spoke in a similar vein in Kostas v HIA Insurance Services Pty Ltd t/as Home Owners Warranty [2010] HCA 32; (2010) 241 CLR 390 ("Kostas") (at [24]), of the words "with respect to" in s 67(1) of the Consumer, Trader and Tenancy Tribunal Act 2001. Such words, he said were "to be read and applied having regard to their legislative context ...[and] [l]ike the terms 'in relation to' or 'in connection with' ... constitute a 'prepositional phrase' of indefinite content".

161 "Claiming through" is clearly capable of falling within the genus of relational terms. It is used to identify the relationship that identifies a person, other than the primary victim, whose claim may be within the Tribunal's s 11 jurisdiction.

162 While accepting the wisdom of French CJ's injunction that the nature and breadth of the two critical relational terms in s 11 ("claiming through" and "in respect of") depends on their context, some light may be cast on their interpretation by reference to authorities on which the appellants, in particular, relied, some of which were referred to in Mangion.

(a) claiming through

163 The principal authority on the phrase "claiming through" to which the appellants referred was Tanning Research, which Samuels AP quoted in Mangion. Tanning Research concerned the question whether the liquidator of a company, who rejected a proof of debt lodged by a foreign company claiming the price of goods sold under an agreement with the company being wound up which contained an arbitration clause, claimed "through or under" the company for the purposes of s 7(4) of the Arbitration (Foreign Awards and Agreements) Act 1974 (Cth) and hence was entitled to obtain a stay under s 7(2) of that Act of Supreme Court proceedings challenging that rejection. Brennan and Dawson JJ (with whom Toohey J agreed) held (at 342) that the meaning of the phrase "must be ascertained not by reference to authority but by reference to the text and context of s 7(4)". That being said, their Honours' reasons, as Samuels AP recognised, warrant consideration.

164 Critically, in my view, after the passage Samuels AP quoted (see [78] above) in which Brennan and Dawson JJ explained that "the prepositions 'through' and 'under' convey the notion of a derivative cause of action or ground of defence", their Honours said (at 342 - 343):

"A liquidator may be a person claiming through or under a company because the causes of action or grounds of defence on which he relies are vested in or exercisable by the company; a trustee in bankruptcy may be such a person because the causes of action or grounds of defence on which he relies were vested in or exercisable by the bankrupt.

A liquidator who defends his rejection of a proof of debt on the ground that, under the general law, the liability to which the proof relates is not enforceable against the company takes his stand on a ground which is available to the company. A liquidator who resists a claim made by a creditor against the assets available for distribution on the ground that there is no liability under the general law thus stands in the same position vis-à-vis the creditor as does the company. ... But it is otherwise if the liquidator supports his rejection of a proof of debt in reliance on a ground which allows him, and him alone, to go behind the judgment, account stated, covenant or estoppel on which the company's liability is founded. The entitlement of a liquidator to go behind a judgment, account stated, covenant or estoppel is unaffected, either substantially or procedurally, by the existence of an international arbitration agreement binding on the company ..." (Emphasis added)

See also Deane and Gaudron JJ (at 353).

165 The notion that the phrase "claiming though" or its analogues conveys some notion of derivation from a principal claim or title can be seen in other cases.

166 In Kelly v Rogers, one of the decisions to which O'Meally J referred, the Court of Appeal (Lord Esher MR, Fry and Lopes LJJ) held that there had been no breach of a covenant for quiet enjoyment of the demised premises in terms "without any interruption from or by him, the said lessor ... or any person or persons whomsoever lawfully claiming by, through, or under him". The owners of the reversion upon the original lease recovered possession of the premises under a condition of re-entry contained in that lease for non-payment of rent and breach of covenant. However they did not breach the covenant by the lessor for quiet enjoyment because their interruption was that of the superior landlord (Lord Esher (at 912); Lopes LJ (at 913)) or under a superior title (Fry LJ (at 912), rather than "through" or "under" the lessor.

167 In Nominal Defendant (Qld) v Taylor [1982] HCA 38; (1982) 154 CLR 106 the High Court (Mason, Wilson and Brennan JJ; Murphy J dissenting; Aickin J died before judgment was delivered) held that a claim against the Nominal Defendant brought by the children of the deceased passenger/owner of the vehicle in which he died for loss of support under s 12 and s 13 of the Common Law Practice Act 1867-1978 (Qld), was not a "claim for damages in respect of accidental bodily injury (fatal or non-fatal) to any person caused in Queensland ... through ... an uninsured motor vehicle for which the owner of such uninsured vehicle would be legally liable" (s 4F(2) Motor Vehicles Insurance Act 1936-1979 (Qld)). (Emphasis added). Section 12 of the Common Law Practice Act allowed the dependants of a deceased person to bring an action against a wrongdoer when it could be shown that the death was caused by a wrongful act such as would have enabled "the party injured to maintain an action and recover damages".

168 Mason and Brennan JJ held (at 109 - 110) that the cause of action created by s 12 was "quite separate and independent from the cause of action which the deceased would have had if he had lived ... [and was] not one which he could have brought had he survived, for it is his death that is the cause of action". Accordingly their Honours concluded "there is nothing in the suggestion made by the appellant that the respondents here are claiming through the deceased".

169 Finkelstein J considered Mangion in BHPB Freight Pty Ltd v Cosco Oceania Chartering Pty Ltd [2008] FCA 551; (2008) 168 FCR 169, in the course of determining whether Cosco, which was not a party to an arbitration agreement between BHPB Freight and a third party, could apply for a stay of proceedings pending in the Federal Court in reliance on s 7(2) of the International Arbitration Act 1974 (Cth). Section 7(4) provided that "[f]or the purposes of subsections (2) and (3), a reference to a party includes a reference to a person claiming through or under a party."

170 Finkelstein J referred (at [12] - [14]) to the passage from Tanning Research (at 342) set out above (at [78]) and to Samuels AP's elaboration of the meaning of a "derivative action" in Mangion: (see [77] - [78] above). His Honour observed that it followed that "while the relationship between the claimant [for the stay] and the party to the arbitration agreement 'must be an essential ingredient of the claim', that relationship must be relevant to the grounds advanced in support of the claim". After referring to a number of other authorities, his Honour concluded (at [15]) that:

"[T]hese cases show that there are two somewhat overlapping criteria that must be met to trigger the operation of s 7(4). The first is that there is a relationship of sufficient proximity between the party to the arbitration agreement and the person claiming to prosecute or defend an action through or under that party. The second is that the claim or defence is derived from the party to the arbitration agreement." (Emphasis added)

As Cosco could not satisfy either of these criteria, it was not entitled to apply for a stay.

(b) in respect of

171 Among the authorities to which French CJ referred in both Kostas and Khazaal was Workers' Compensation Board (Q) v Technical Products Pty Ltd [1988] HCA 49; (1988) 165 CLR 642 ("Technical Products") (at 653 - 655) per Deane, Dawson and Toohey JJ. The appellants relied on Technical Products as illustrating the limit of the prepositional phrase "in respect of".

172 In Technical Products, the plaintiff's husband was seriously injured in the course of his employment with Technical Products Pty Ltd. She alleged that as a consequence she suffered nervous shock and resulting psychiatric illness. She sued Technical Products for damages. It joined the Workers' Compensation Board of Queensland as a third party claiming indemnity from it. The Board demurred to the plaintiff's statement of claim on the ground that she had no entitlement under the Workers' Compensation Act 1916 (Qld) (the "WCA"). The Full Court of the Supreme Court of Queensland overruled the demurrer. The Board appealed to the High Court arguing that as the plaintiff sued for damages in respect of her own injury and not in respect of that suffered by her husband, she had no cause of action against it. Technical Products contended that the plaintiff's damages were prima facie in respect of her husband's injury because of the width of the meaning of the phrase "in respect of" in s 8(1) of the WCA. That provision required Technical Products to be insured by the Board "against all sums for which, in respect of injury to any worker employed by him, he may become legally liable by way of ... damages arising under circumstances creating also, independently of this Act, a legal liability in the employer to pay damages in respect of that injury."

173 The High Court (Wilson, Deane, Dawson, Toohey and Gaudron JJ) unanimously allowed the appeal, holding that "damages in respect of that injury" in s 8(1) meant damages in respect of an injury to a worker, assessed by reference to his injury and did not extend to damages for nervous shock to a person other than a worker where they would not be payable to or for the worker and would be assessed, not by the injury to the worker, but by its effect on another.

174 All members of the Court recognised that the words "in respect of" are capable of having a wide meaning, but said their meaning had to be determined by the context in which they appeared: Wilson and Gaudron JJ (at 646 - 657); Deane, Dawson, Toohey JJ (at 653 - 655).

175 It is unnecessary to explore in detail the contextual considerations peculiar to the WCA which led the Court to its conclusion. It is sufficient to note that the fact the object of the Act was to provide benefits to injured workers and their dependants in respect of injury suffered by the worker in the course of his employment was critical to the decision. The influence of this can be seen in Wilson and Gaudron JJ's statement (at 646) that "the primary meaning of the phrase ['damages in respect of that injury'] would describe the damages flowing directly to the worker or his dependants from the injury which he had suffered in the course of his employment". Further, Deane, Dawson and Toohey JJ (at 657) concluded that "the use of the phrase 'in respect of' does not, of itself, extend the meaning of an expression such as 'damages in respect of injury to any worker' so as to include damages payable to a person other than the worker." Finally, all members of the Court took into account the fact that any damages awarded in respect of the plaintiff's nervous shock claim would not be quantified by reference to the injury suffered by the worker, but by "[a]nother injury ... the nervous shock and psychiatric illness which she has suffered": Wilson and Gaudron JJ (at 646); see also Deane, Dawson and Toohey JJ (at 655 - 656).

176 Mr Parker relied upon the latter proposition, in particular, to emphasise that any damages the respondent might recover would be assessed by reference to such nervous shock injury as she might establish and that that had nothing to do with the damages which could have been recovered by Mr Winch in respect of his asbestos-related injury.

177 Mr Parker also relied on Unsworth where the question arose as to whether a claim for contribution by a joint tortfeasor was an "action ... to recover damages or compensation in respect of personal injury" within the meaning of s 121 of The Railways Acts 1914 to 1955 (Qld). Fullagar and Taylor JJ held that it was not. McTiernan ACJ (see 81 - 82) did not find it necessary to consider the issue. Fullagar J (at 86) was of the view that the proceedings to which s 121 referred were "proceedings taken to enforce liability for acts or omissions which are wrongful as against the person taking those proceedings [and that] [p]roceedings to obtain contribution in pursuance of the new statutory right given by The Law Reform Act are not such proceedings". Taylor J (at 91) held that the contribution claim was not within the statutory language because it was "of an entirely different character [and was] ... in effect a claim for a partial indemnity". While his Honour accepted that in the contribution claim the claimant had to establish that the person against whom the claim was made was "a person 'who is, or would if sued have been, liable in respect of the same damage'", in his view, "it [was] in no sense an action to recover damages in respect of personal injury".

178 Mr Parker submitted that Unsworth strongly supported the appellant's case because the contribution claim did not fall within s 121, even though it depended upon there having been a liability in respect of the personal injury to the plaintiff which gave rise to the claim which he emphasised was not a feature of the respondent's nervous shock claim.

Conclusion

179 The Tribunal Act did not create new causes of action. It created a specialist tribunal to deal with a certain type of claim for damages whose exclusive jurisdiction replaced that formerly exercised by the Supreme Court or the District Court: Goliath Portland Cement Co Ltd v Bengtell (1994) 33 NSWLR 414 (at 417) per Gleeson CJ. Its "jurisdiction is ... described in terms of a set of conditions in s 11(1)(a), (b) and (c) concerned with suffering a dust-related condition and entitlement to bring an action for recovery of damages in respect of that condition or related death, and the statement that proceedings for damages in respect of the dust-related condition or death may be brought": Laminex (at [37]) per Giles JA (Hodgson and Bryson JJA agreeing).

180 In my view neither the language, context nor purpose of s 11(1) extends the Tribunal's jurisdiction to claims such as the respondent's.

181 The first requirement for jurisdiction is "a person" who "is suffering, or has suffered, from a dust-related condition or a person who has died [who] was, immediately before death, suffering from a dust-related condition": s 11(1)(a). The indefinite article is used before "person" (who might conveniently be described as the "primary victim") and "dust-related condition".

182 Section 11(1)(b), which is cumulative on s 11(1)(a), requires an allegation "that the dust-related condition was attributable or partly attributable to a breach of a duty owed to the person by another person" (emphasis added). The definite article as used before "dust-related condition" and "person" ties those words back to the condition and the primary victim referred to in s 11(1)(a). It suggests that a precondition of the Tribunal's jurisdiction is that there be an allegation of breach of duty to the primary victim which caused, or was a cause of, that person's dust-related condition: see Laminex (at [21]).

183 Section 11(1)(c), which is cumulative on the preceding subsections, identifies the third prerequisite of jurisdiction. Again, its focus is first on the primary victim, but it also extends the scope of s 11(1) to include "a person claiming through" the primary victim. However, both persons must, but for the Tribunal Act, "have been entitled to bring an action for the recovery of damages in respect of that dust-related condition or death". In other words, as Bathurst CJ said in the course of argument, the opening part of s 11(1)(c) identifies the plaintiff, whereas the latter part of it identifies the cause of action and the words "claiming through that person" does not expand the cause of action falling within s 11(1).

184 If those three conditions are satisfied, "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". The phrase "that dust-related condition or death" where it appears both in subsection (1)(c) and the final clause of s 11(1) again ties the condition or death which may be the subject of Tribunal proceedings to the preceding subsections (a) and (b).

185 The language of s 11(3) is also significant in the sense that it refers to "the cause of action giving rise to proceedings to be brought under subsection (1)". That is a textual indication that the elements of the cause of action of proceedings encompassed by s 11(1) are identified in that provision. It is arguable that s 11(3) would enable proceedings such as the respondent's to be included in s 11(1) or (1A) proceedings extant before the Tribunal. The precondition of s 11(3) inclusion is that the s 11(1) or (1A) cause of action "also gives rise to a claim in respect of some other matter". However the "person" whose proceedings may be included by reference to s 11(3) is not tied back to the persons identified in s 11(1), not least because the included matter does not have to "relate to a dust-related condition from which a person is suffering or has suffered" - critical words which inform the s 11(1) jurisdiction. If s 11(3) was the vehicle by which claims such as the respondent's could be heard in the Tribunal, they would not be characterised as s 11(1) proceedings so as to receive the benefit of provisions such as s 12A: see Wallaby Grip (at [26] and [29]).

186 Subsection 11(4) has been described as conferring "in the nature of a pendant or ancillary jurisdiction in respect of claims arising out of the same cause of action as gave rise to the claim for damages for a dust-related condition": BHP Billiton Ltd v Schultz (at [230]) per Callinan J. That statement is borne out by the non-exhaustive definition of "ancillary or related matter" in s 3 of the Tribunal Act (see [47] above). It is also arguable for the reasons stated in the plurality's reasons (at [22] - [23]) that the respondent's proceedings would constitute a "matter" within the meaning of s 11(4) and be included in s 11(1) proceedings via that route.

187 It may be that had Samuels AP appreciated that Mrs Mangion's nervous shock claim could have been included in her Compensation to Relatives Act claim, whether via the s 11(3) or s 11(4) route, he would not have been so affronted (see [82] above) by the conclusion that the proceedings did not fall within s 11(1).

188 Both subsection (3) and (4), in my view, emphasise the legislative intention that the Tribunal's jurisdiction be focused on proceedings at the heart of which lie the s 11(1) cause of action.

189 Finally, s 11(5) must be taken into account. Having regard to the fact it was enacted immediately after the decision in Grech, I would regard it as having been inserted to avoid doubt. The fact that the subsection is not exhaustive indicates a proper legislative concern not to confine the language of s 11(1)(c), but does not otherwise affect the interpretation of the provision. In other words, in my view, s 11(5) is not informative, of itself, as to whether or not the respondent's proceedings are within the Tribunal's jurisdiction.

190 The fundamental structure of s 11 is to focus on the primary victim and to confer jurisdiction on the Tribunal in respect of that person's proceedings for damages in respect of "that dust-related condition or death". The secondary focus of the provision is on "a person claiming through" the primary victim. The necessity for such an expanded operation of s 11 is immediately apparent from the reference to the "death" of the primary victim.

191 However the words "claiming through" must be read harmoniously with the words "in respect of". Those words indicate, in my view, that the action of the person "claiming though" the primary victim must depend on and/or be derived from the primary victim's cause of action. That is because the words "in respect of" are used twice, on both occasions to focus on that person's claim being "for the recovery of damages in respect of that dust-related condition or death".

192 It is at this point that I discern error in the reasoning in Mangion. Samuels AP (at 105) focussed only on the words "claiming through" in the context of the object he discerned from the s 11 and s 12 of the Tribunal Act "to assign to a specified tribunal claims for damages for negligence or breach of statutory duty in respect of injury or death attributable to a dust-related condition". But, with respect, as his Honour had already explained, nervous shock claims could not be so described. Such claims are not "for the recovery of damages in respect of that dust-related condition or death".

193 It is apparent that the words "in respect of" in s 11(1)(c) and the final clause of s 11(1) do not confine the damages which may be claimed to those the primary victim might, or might but for death, have claimed. They clearly do encompass such cases: the estate pursuing, pursuant to s 2 of the 1944 Act, any cause of action vested in the deceased who suffered from a dust-related condition attributable or partly attributable to a breach of a duty owed to the person by another person is clearly made by a person "claiming through [the deceased] ... for damages in respect of that dust-related condition or death". That is apparent not only from the language of s 11(1), but also from the recognition in s 12B of the Tribunal Act of the fact that estate proceedings are within the Tribunal's jurisdiction.

194 However Compensation to Relatives Act claims are not claims the primary victim might, or might but for death, have made. Damages in such cases are calculated by reference to the pecuniary benefit that could reasonably have been expected to accrue to the claimant from the continuance of the life had death not occurred: De Sales v Ingrilli [2002] HCA 52; (2002) 212 CLR 338 (at [11]) per Gleeson CJ; generally (at [91] - [103]) per McHugh J; (at [128]) per Kirby J. Such claims are, however, "a derivative action, dependent on or secondary to rights of action vested in the deceased immediately before his or her death" as Samuels AP explained in Mangion (at 104) so that they are made by persons "claiming through" the primary victim. This is because the court's jurisdiction to entertain such a claim depends upon the plaintiff establishing that "the death of a person is caused by a wrongful act, neglect, or default, and the act, neglect, or default is such as would (if death had not ensued) have entitled the party injured to maintain an action and recover damages in respect thereof ... " and the defendant to such proceedings is "the person who would have been liable if death had not ensued": s 3, Compensation to Relatives Act.

195 Claims for nervous shock do not fall into either of the preceding categories. They are not proceedings the primary victim might have brought, nor are they dependent on a right of action vested in that person, as Samuels AP recognised in Mangion (at 104 - 105). Such a claim may be made even though there has been no breach of a duty of care to the deceased. Thus while the respondent's statement of claim pleads that Mr Winch's death was caused by a dust-related condition attributable to the appellant's negligence, such a breach is not an element of her cause of action. As Barwick CJ explained in Curran v Young [1965] HCA 14; (1965) 112 CLR 99 (at 100 - 101), albeit in the context of a husband's claim for loss of consortium:

"The action of the husband of its very nature is quite independent of that of the wife and is in no sense dependent on her ability to obtain a verdict for herself against the defendant. Although the husband's action may be grounded upon the same act of the defendant as would be an action by the wife for her own injury, the damage is entirely different. He sues, not for the injury to her, but for the damage suffered by himself by the wrongful act of the defendant, albeit because she was injured thereby."

See also McTiernan J at (103); Kitto J (at 104 - 105).

196 In Mangion, Samuels AP (at 105) found support for the conclusion that a nervous shock claim brought by a widow was made by a person "claiming through" the primary victim in what he identified as the object of the Act being to assign to the Tribunal all proceedings in respect of injury or death caused by dust-related conditions. He also had regard to the Second Reading Speech. As will be apparent I respectfully disagree with his Honour's conclusion based on the language of s 11(1). Nor do I understand the Second Reading Speech as broadly as did his Honour. Rather, in my view, it is apparent that the mischief to which the Tribunal Act was directed was the rapid demise of those with dust diseases. Establishing the Tribunal was intended to provide a fast-track mechanism to address that mischief: see [40] above. No doubt it was thought that the Tribunal would develop a core expertise in such diseases and their causation which would facilitate that rapid disposal. However, with respect to Samuels AP, the reasons the Attorney General identified for establishing the Tribunal did not apply to nervous shock claims. There was no apparent reason why such claims could not proceed in the ordinary course in either the Supreme Court or the District Court.

197 Nor, in my view, with respect, did Mahoney JA's approach (recognising that his Honour was, in any event, doubtful about his conclusion) support his conclusion in Mangion concerning nervous shock claims. First, as will be apparent, unlike his Honour, in my view the requirement that the s 11(1) proceedings be "in respect of that dust-related condition or death" as it appears in sub-section (1)(c) and the repetition of that phrase in the final clause indicates that the proceedings assigend to the Tribunal by the operation of s 11(1) must be brought by a person identified in s 11(1)(c). Viewed in context, I do not read the same words appearing twice in s 11(1) to have been intended to have the differential operation his Honour identified. Rather, in my view, recognition that s 11(1)(a) - (c) describe the prerequisites for the Tribunal's exclusive jurisdiction reflect a hierarchy of s 11(1) which best gives effect to its purpose and language: Project Blue Sky Inc v Australian Broadcasting Authority (at [70]). Secondly, his Honour's construction failed to appreciate that the large work he construed the final phrase of s 11(1) to effect could arguably be done under either s 11(3) or s 11(4). Thirdly, I disagree with his Honour's reliance on the assumed objective of the Tribunal Act insofar as, in my view, in ascribing an expansive operation to the final phrase of s 11(1), his Honour has placed too much weight on that objective at the expense of the text: cf Certain Lloyd's Underwriters (at [25] - [26]) per French CJ and Hayne J; (at [89]) per Kiefel J.

198 In my view, the conclusion that a nervous shock claim did not fall within the Tribunal's s 11(1) jurisdiction is one the Court should have reached in Mangion. Substantive and procedural amendments to the Tribunal Act since Mangion was decided reinforce that conclusion, highlighting the focus on the primary victim and the facilitation of the enforcement of that person's substantive rights. Those amendments enact "a very special and largely unique regime for the assessment and recovery of damages ... for the benefit of sufferers of dust-related diseases": BHP Billiton Ltd v Schultz (at [231], [239] and [241]) per Callinan J; see also Kirby J (at [148]).

199 I have already referred to the unique nature of s 11A: see [51] above. It is expressly confined to "proceedings of the kind referred to in s 11(1) ... " and thus excludes proceedings included via the s 11(3) and s 11(4) route.

200 Section 12A and s 12B respectively preclude limitations provisions from operating in respect of proceedings in relation to dust-related conditions and enable the estates of persons whose death was caused by a dust-related condition to include damages for non-economic loss as long as the proceedings were pending before the Tribunal at the time of death. Section 12A only applies to proceedings which fall within s 11(1): Wallaby Grip (see [128] - [133] above). And s 12B in terms applies only to a survivor action which, as will be apparent from the previous discussion, falls within s 11(1) because it is made by "a person claiming through" the primary victim.

201 It might readily be understood that the legislature intended that the rapid and just resolution of the claims of those suffering from dust-related conditions would be facilitated by these substantive amendments. As much is apparent from the nature of these provisions, as well as from the Second Reading Speeches to the Courts Legislation Amendment Bill and the 1998 Act (see [51] and [53] above). Equally, too, it can be understood that the legislature intended that the claims derived from the primary victim's claim in the sense explained in Tanning Research should also benefit from having their claims heard by a specialist tribunal. However, in my view, the same cannot be said of a person such as the respondent whose cause of action is independent of Mr Winch's. There is no apparent reason why such a person should have the benefit of the substantive advantages the legislature has bestowed upon those whose claims fall within s 11(1). However proceedings included in s 11(1) proceedings via either the s 11(3) or s 11(4) route would have the benefit of the procedural advantages conferred by s 25(3), s 25A and s 25B which represent "statutory modification of the adversary system": James Hardie & Coy Pty Ltd v Barry (at [20])) per Spigelman CJ; see also BHP Billiton Ltd v Schultz (at [239]) per Callinan J. Such a scheme represents a balance which gives pre-eminence to the rights of primary victims and those of persons "claiming through" them, but recognises the utility of the procedural provisions reflecting the special nature of actions concerning dust diseases apply to all proceedings before the Tribunal.

202 For the foregoing reasons, in my view, the respondent cannot be said to be "claiming though" Mr Winch. Nor can her proceedings be described as "proceedings for damages in respect of that dust-related condition or death".

203 This conclusion is primarily based on the textual considerations in s 11 of the Tribunal Act. Those textual considerations, which clearly troubled the Court in Mangion, should have led their Honours to conclude that claims for nervous shock brought pursuant to s 3 of the 1944 Act were not proceedings "in respect of the death of a person caused by a dust-related condition". In my view, Mangion was plainly or clearly wrong and should be overruled: Gett v Tabet [2009] NSWCA 76; (2009) 254 ALR 504 (at [294] - [295]).

204 Further, even if Mangion could be said to have been arguably correct having regard to the form the Tribunal Act took at the time it was decided, when s 11 is construed in the Tribunal Act as presently enacted, I would conclude the Tribunal's jurisdiction does not extend to the respondent's claim for damages for psychiatric illness

Orders

205 I propose the following orders:

1. Grant leave to appeal.

2. Direct the appellants to file a notice of appeal in the form of the draft in the White Book within seven days.

3. Appeal allowed.

4. Dismiss the proceedings in the Dust Diseases Tribunal.

5. Respondent to pay the appellants' costs of the proceedings in the Dust Diseases Tribunal, including the costs of the appellants' notice of motion filed on 13 September 2011.

6. Respondent to pay the appellants' costs of the application for leave to appeal and of the appeal.

7. Respondents to have a certificate under the Suitors' Fund Act 1951 if otherwise qualified.

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Amendments

19 March 2013 - Certificate of Suitors' Fund Act 1951 approved
Amended paragraphs: Decision: No 7 added; Paragraph 203, No 7 added

09 April 2013 - corrected paragraph numbering
Amended paragraphs: 110 - 202

04 June 2013 - reference corrected
Amended paragraphs: 183

04 June 2013 - Insert new paragraph numbers 46, 47, 51
Amended paragraphs: 45, 46, 50

04 June 2013 - Deleted reference to the 1998 Act
Amended paragraphs: 58

04 June 2013 - Paragraph cross-references updated
Amended paragraphs: 13, 128, 129, 130, 144, 156, 164, 170, 186, 187, 199, 200, 201

04 June 2013 - Replace 25C with 25A
Amended paragraphs: [158]

04 June 2013 - Amended to reflect addition of subsection (3) to s 25 by the Courts Legislation Amendment Act 1995
Amended paragraphs: 52

Decision last updated: 31 July 2013