New South Wales Repealed Regulations

This legislation has been repealed.

DUST DISEASES TRIBUNAL REGULATION 2001 - REG 47

47 Selection of SCM

(1) The defendants can agree on the selection of an SCM for the claim and for that purpose they can select one of the defendants or some other person (such as a claims management company).

(2) Failing agreement between defendants on the selection of an SCM for a claim, the first defendant must notify the Registrar (before the end of the period within which the defendants are required to reach agreement on apportionment) that the defendants have not agreed on the selection of an SCM.

(3) The selection of an SCM is then to be made by:

(a) the Registrar if the defendants have agreed (within the required period under the claims resolution process) on the apportionment of liability between them, or

(b) the Contributions Assessor when determining the apportionment of liability between the defendants if the defendants have not agreed within the required period on that apportionment.

(4) The procedure for the selection of an SCM by the Registrar or a Contributions Assessor is as follows if there is no primary defendant:

(a) the selection of an SCM is to be made by selecting a defendant at random from among those defendants who each have an apportioned share of at least 15% or, if only one of the defendants has an apportioned share of at least 15%, by selecting that defendant,

(b) if none of the defendants has an apportioned share of at least 15%, the selection of an SCM is to be made by selecting a defendant at random from among all of the defendants.

(5) The procedure for the selection of an SCM by the Registrar or a Contributions Assessor is as follows if there is a primary defendant:

(a) if no other defendant has an apportioned share of at least 15%, the primary defendant is selected as the SCM,

(b) if one or more of the other defendants has an apportioned share of at least 15%, the primary defendant becomes the first possible SCM and a second possible SCM is to be chosen,

(c) the second possible SCM is to be chosen by selecting a defendant at random from among the group of defendants comprising the primary defendant and such of the other defendants as each have an apportioned share of at least 15%,

(d) if the same defendant is both the first and second possible SCMs, that defendant is to be selected as the SCM for the claim,

(e) if the first and second possible SCMs are different defendants, the defendant who is first possible SCM is to be selected as the SCM but the selection of the defendant does not operate unless the defendant accepts selection by notifying each of the other defendants in writing within 2 business days after selection that the defendant will act as the SCM,

(f) if the first possible SCM does not accept selection as the SCM, the defendant who is second possible SCM is to be selected as the SCM.

(6) The defendant who is finally selected under this clause as the SCM for a claim must act as the SCM for the claim.

(7) The person selected as the SCM for a claim must notify the plaintiff and each defendant in writing as soon as practicable after selection that the person will act as the SCM. Notification is required only to the plaintiff if the primary defendant has already notified each of the other defendants (as provided for by the SCM selection process) that the defendant will act as the SCM.

(8) For the purposes of determining a defendant's apportioned share for a claim in connection with the operation of this clause, the defendant may choose to have included in the defendant's share of responsibility any responsibility in connection with the claim of a related body corporate of the defendant (within the meaning of the Corporations Act 2001 of the Commonwealth).

(9) In this clause:
"apportioned share" for a claim means the proportion of the claim for which a defendant is responsible, determined on the basis of the apportionment of liability agreed to by the defendants or determined by the Contributions Assessor, whichever is applicable in the particular case.
"primary defendant" for a claim means:

(a) the defendant whose apportioned share for the claim is more than 50%, or

(b) if there is no such defendant--the defendant with the largest apportioned share for the claim, being a share of responsibility that is at least 20 percentage points greater than that of the defendant with the next largest apportioned share for the claim.