Please note: This is an extract from Hansard only. Hansard extracts are reproduced with permission from the Parliament of Tasmania.

LIMITATION AMENDMENT BILL 2004 (No. 80)

Second Reading

[11.47 a.m.]

Mrs JACKSON (Denison - Minister for Justice and Industrial Relations - 2R) - Mr Speaker, I move -

That the bill be now read the second time.

Limitation periods set a time limit for the beginning of legal proceedings. There are two main reasons for having any limitation period in respect of common law claims for damages for personal injury.

Firstly, relevant evidence may be lost with the passage of time and, secondly, it is in the public interest for disputes to be settled as quickly as possible. However, setting the exact length of a limitation period for personal injury must balance the interests of plaintiffs and defendants.

As far as a potential defendant is concerned, it is desirable at some point to be able to arrange his or her affairs and utilise his or her resources knowing that a claim can no longer be made. So far as a plaintiff is concerned, it is important that limitation periods be flexible enough to take account of a disease or injury which may not be discovered until years after the event which caused it.

Currently, Tasmania has the most restrictive limitation provisions for personal injury claims in the country, which heavily favour potential defendants at the expense of a would-be plaintiff. Under the current act, an action for damages for personal injury arising from negligence, nuisance or breach of duty must be brought within a period of three years from the date on which the cause of action accrued. This means three years from the date that the plaintiff suffers an injury as a result of the defendant's negligence. For example, the day that an asbestos fibre causes damage to your lung is the date that the limitation period begins, even though you may suffer no symptoms for another 20 or 30 years.

The current act does provide for an extension for a further three years at the discretion of a judge but there is no provision for extension beyond six years in total. For the person who has inhaled asbestos fibre and developed asbestosis, this six-year maximum is decades too soon for them to have any chance of suing the person or persons responsible, no matter how negligent the defendant may have been.

Consideration had been given in our first term in government to changing the limitation period to one based on the date a plaintiff discovered that he or she had suffered an injury or disease. However, the last election intervened, and soon after it was held the Federal Government appointed an expert panel to inquire into the law of negligence generally, including the issue of limitation periods and the plethora of different limitation regimes around Australia.

In September 2002, the final report of the review of the law of negligence - the Ipp Report - was submitted to the Federal Government. The Ipp Report recommended that the limitation period for personal injuries commence on the date of discoverability, which is the date when the plaintiff knew or ought to have known that personal injury had occurred and that the injury was attributable to the conduct of the defendant.

This bill is based on the Ipp Report recommendations, which have already been adopted by NSW and Victoria. Even before the Ipp recommendations, all other States and Territories had provided for some form of discovery-based limitation period for latent diseases.

The Limitation Amendment Bill provides for a limitation period to expire either three years from the date of discoverability - the 'post-discoverability period' - or 12 years after the events on which the claim is based - the 'long-stop period' - whichever is the earliest.

The reason for the long-stop period is recognition of the potential for unfairness where an injury is not discovered until many years after a damage-causing event. Witnesses may die or be difficult to find, memory may be impaired and records may be destroyed, all of which may prejudice a fair trial.

However, to provide for latent injuries and diseases, such as those caused by asbestos which take longer than 12 years to become symptomatic, the bill provides that the court is to have a discretion, having regard to the justice of the case and other specific matters, to extend the long-stop period to the expiry of a period of three years from the date of discoverability.

In other words, where the long-stop period expires first, the court can extend the long-stop period so that it expires at the same time as the discoverability period, thus allowing a plaintiff to bring a claim after discovering that they have a latent condition connected with the defendant's conduct.

The court thus acts as gatekeeper and decides whether it is in the interests of justice for a claim to be brought after the 12-year long-stop period has expired. The specific matters that the court has to have regard to when making this decision are whether the passage of time would prejudice a fair trial, the nature and extent of the plaintiff's loss, and the nature of the defendant's conduct.

This bill also follows a recommendation of the Ipp Report in relation to another set of issues. The Limitation Act 1974 currently allows for an extension of time if a person was under a legal disability - which includes being under the age of 18 - at the time a cause of action accrued. The extension is for a period of six years after the person ceases to be under a disability, but the extension does not apply if the person under the disability was in the custody of a parent, which includes a guardian, at the time the right of action accrued. This is obviously based on the assumption that a child's parent or guardian will generally take all action necessary to seek recovery of damages on behalf of the child.

However, there are unfortunate occasions, such as some sexual abuse cases, where the person causing injury to the child is the parent, or someone in a close relationship with the parent, and either the parent is unwilling to initiate proceedings or the child does not report the abuse. This bill therefore provides for special rules where the potential defendant is either a parent or someone in a close relationship with a parent. A close relationship is defined as a relationship such that the parent or guardian might be influenced by the potential defendant not to bring a claim on behalf of the child against the potential defendant, or the child might be unwilling to disclose to the parent or guardian the conduct or events on which the claim would be based.

In such a case the three-year limitation period will commence when the plaintiff turns 25, which should give the plaintiff a reasonable time to be free of the influence of the parent or guardian before having to commence proceedings. All of the changes to limitation periods will only apply to causes of action arising after this amending bill comes into force.

However, in recognition of the ongoing potential for injustice to a person with a disease that takes years to manifest, the bill will allow a person who is out of time under the old limitation period before discovering he or she has a disease, the opportunity to apply to the court to extend the limitation period to three years from the date of discoverability. Again the court will act as gatekeeper in determining whether it is in the interests of justice to allow the time to be so extended.

Further, in recognition of the fact that Tasmania lags at least 20 years behind other States in introducing a flexible limitation period, the bill contains a special provision for sufferers of latent diseases. This provision allows a person with a latent disease, who was out of time under the old act before realising he or she was suffering from a disease but who has known that they are suffering from the disease for two years or more, the ability to apply to a court to extend the time to one year from the date of commencement of this bill.

The combination of these two provisions will allow all persons with a latent disease the opportunity to seek damages, if the court is of the opinion that it is in the interests of justice for this to happen.

While it is generally undesirable for legislation to have retrospective application, I believe that all fair-minded Tasmanians will agree that this is a special case where limited retrospectivity goes some way to redressing past injustices inflicted on sufferers of latent diseases by Tasmania's previously over-restrictive limitation period for personal injuries.

Finally, to ensure that workers are in an equal position to other members of the Tasmanian public, section 135 of the Workers Rehabilitation and Compensation Act 1988 is repealed. That section imposes a time limit, similar to the existing Limitation Act provisions, on the bringing of common law claims in a case where workers compensation had been accepted. The repeal of section 135 means that workers' common law claims will be governed by the amended general limitation provisions, and not by a specific, narrow provision in the Workers Rehabilitation and Compensation Act. This bill places plaintiffs in Tasmania on an equal footing with plaintiffs in other States. It balances the interests of plaintiff and defendant.

Mr Deputy Speaker, I commend the bill to the House.

[11.56 a.m.]

Mr ROCKLIFF (Braddon) - Mr Deputy Speaker, Mr Hodgman has kindly granted me carriage of this bill, given my interest for some time in this particular matter. I see this bill as a very important step forward for asbestos victims in particular. I know the bill is more wide-ranging, however most of my contribution will be focused on the victims of asbestos-related diseases. I, and indeed all my colleagues on this side of the House, feel very strongly about the need to end the discrimination that currently exists in Tasmania for workers who, at some time in their working lives, were negligently exposed to asbestos, and subsequent to that wish to have the right to seek compensation for that negligence. This bill is indeed intended to address this very important issue.

In March 2003, some 20 months ago, Mr Lawrie Appleby handed me a submission from Asbestos Disease Tasmania. I believe he handed a submission to all members of Parliament calling for an amendment to the Limitation Act 1974 to end the discrimination. Since that time I have been privileged to take up this particular issue, both inside and outside the House, in an effort to see that Mr Appleby's desire for amendments to the Limitation Act 1974 indeed comes to fruition.

I also tabled a petition of 1 794 signatures in August this year calling on the Government to urgently act on this particular issue. This was all aimed at highlighting the fact that in Tasmania we have currently an unjust and unfair law that prevents any person suffering from asbestos disease from bringing a claim for compensation merely because of the time it takes, as the minister has outlined in her speech, for symptoms of asbestos disease to appear. Of all the State and Territories of Australia, only Tasmania has allowed this situation to continue. We recognise the fact that this bill will go a significant way to addressing this injustice.

Asbestos conditions include such diseases as mesothelioma, lung cancer and asbestosis, and these conditions usually have a long latency period between the date the worker was exposed and the date the condition develops. For example, the latency period for mesothelioma is approximately 35 years, and this quite rightly can be very frightening for victims and their families. As Laurie Appleby from the organisation Asbestos Disease Tasmania has stated publicly, and I quote:

'Every morning I wake up and I know I have a time bomb inside me. I have been exposed to asbestos and it scares the hell out of me what might happen.'

I rang Lawrie yesterday when I saw the Limitation Bill on the Notice Paper, to inform him that it might be debated either yesterday or certainly today. Mr Appleby is on the west coast doing some training courses for workers down there and was unable to be present in the Chamber, which is most unfortunate because he did have a desire to watch this debate take place. I asked Lawrie if he would mind my reading a statement that he gave me a number of months ago with respect to how he believes he contracted the condition of asbestosis-related illness, and he has given me permission to read that statement, which I will read into Hansard now. This is from Lawrie Appleby, president of Asbestos Disease Tasmania:

'I am a 54-year-old man born on 1 October 1949. I was born in Latrobe, Tasmania. I have two brothers and a half sister, all of whom are alive and well.

My father was a farmer, and he died on 19 September 2001 of emphysema at age 80. My mother died on 28 July 1966, when I was 16 years of age, of a stroke.

I was not exposed to asbestos at all when I was growing up. I went to school in Sheffield until I was 15 years of age and then I went to work at the Goliath Portland Cement Company in Railton. I worked there for 18 months as a mail boy and I do not think I had much exposure to asbestos then. I went home for 18 months after my mother died to work on the farm, and then returned to Goliath in 1969. It was from then until I left Goliath in 1979 that I was extensively exposed to asbestos dust.

I was exposed to asbestos at Goliath in a number of ways. I had regular direct contact with raw asbestos by way of unloading bags of raw asbestos that were delivered to the company to be mixed up to make asbestos cement products. The unloading of bags was a very dusty activity and, as the bags were only made of hessian, the asbestos dust could easily escape from the hessian bags. There was a constant haze of dust during the unloading and stacking of the bags. I remember unloading all types of asbestos that came into the factory in this way.

I was also exposed to asbestos from the actual use and application of asbestos products. I was part of a roofing gang that went all over Tasmania for Goliath fitting asbestos cement products, especially roofs, but also simple wall sheeting. We did all sorts of jobs, from single domestic jobs to large commercial jobs. I was exposed to dust during this time from handling, cutting and affixing the sheets. I remember a particularly big job we did on the Wesley Vale Paper Mill, where Goliath did all the cladding and I was exposed to and inhaled a lot of dust on that job.

While I was at Goliath I did a rigging course at Burnie TAFE College. I was exposed to a lot of asbestos dust doing rigging maintenance work within the asbestos factory, where accumulated asbestos dust on the rafters was disturbed as this work included hanging slings, chain blocks et cetera from the rafters. This work occurred during general maintenance and shutdown maintenance of the factory.

It was a daily job to empty a bag containing asbestos dust from the factory collected by an exhaust fan over the sanding machine which was used to trim and sand the edges of the asbestos sheeting. This bag was about two metres in diameter. When the cement plant was running, this bag was picked up by the mobile crane, and the contents emptied into the raw mill, which in turn went into the process of making cement. When the plant was shut down the bag of dust was emptied out on the top of the dump. The bag was beaten with sticks to encourage the dust to leave the bag. The dump was situated between the cement works and the town of Railton. The dust could easily have been blown over the town on windy days.

At the northern side of the asbestos factory was a settling pond which collected the asbestos run-off from inside the factory. The contents of this settling pond were cleaned out and carted to a dump on an annual basis.

The trucks containing this asbestos sludge drove past the front office, spilling some of the wet asbestos sludge waste on the road. This sludge dried out on the concrete roadway, creating dust containing asbestos. This practice continued until the office staff complained. Then the trucks were driven through the middle of the plant, spilling the asbestos on the way to the dump.

After Goliath I worked with Skilled Engineering and spent 18 years with that company, firstly being assigned to jobs as an individual and then from 1993 onwards with my own business. I was essentially doing rigging work in that employment. I do not recall any exposure to asbestos dust at all during that time. From 1980 I was also involved in part-time night courses instructing rigging and scaffolding with TAFE. From 1995, Workplace Standards was privatised and I took on the role as a national assessor.

I have noticed shortness of breath for some years and I had to withdraw from my rigging and scaffolding work due to this shortness of breath. I also have a 120-acre beef cattle farm at Beulah which is becoming harder and harder to manage. I am unable to walk into the wind as the wind takes my breath away making it hard to breathe. Walking up hills or stairways I have to take it slowly otherwise I run out of breath very easily.

I think the first time I was identified as having asbestos disease was in 1994 when I had a chest x-ray. It was not however until 1996 that I saw Dr Payne at a hospital in Melbourne where he advised me that the shortness of breath I was experiencing was definitely caused by asbestos. This diagnosis caused much anxiety to both my family and myself for many years and still continues today. I have tried to seek legal advice concerning my compensation entitlements but I have been advised that it is not worthwhile for me to bring a claim at this point in time.'

That ends the moving statement from Mr Lawrie Appleby, so you can appreciate his passion for setting up the Asbestos Disease Tasmania Incorporated in order to lobby the Government on this very important issue.

I congratulate Lawrie on the work that he has done and also of course his wife Gill, who has been by his side for a number of years and who has done a lot of work in assisting Lawrie with Asbestos Disease Tasmania Incorporated.

Mr Michael Hodgman - Hear, hear.

Mr ROCKLIFF - A common link of all asbestos-related illnesses is the latency, which the minister has referred to. Symptoms might not appear until many years after the individual has been exposed to the asbestos that caused the symptoms. Essentially this is the problem with the current Limitation Act, which effectively discriminates against victims by preventing them from taking legal action for negligent exposure to asbestos. Workers in Tasmania who may well have worked long and hard for all their working lives and who may have been negligently exposed to asbestos have to date been unable to seek compensation - not one cent. This bill will at least allow workers the right to seek compensation.

There has been much publicity in recent months, particularly with respect to the asbestos issue and particularly over the James Hardie case in New South Wales. I have described before and will continue to describe as one of the most disgraceful acts in Australian corporate history that company's negligence in not providing the funds to compensate their former workers. Some of them have only a few months to live and they naturally wish to have financial security for their family when they are gone.

James Hardie deserved all that bad publicity because they simply failed in their duty of care. I am pleased that this Government, albeit belatedly, has now recognised its duty of care to the workers of this State and has acted on this very important humanitarian issue to seek to end the discrimination against Tasmanian workers suffering from asbestos-related illnesses and finally addressing the inequity of the Limitation Act 1974.

It should be noted, however, that this bill is more wide-ranging than just the issue of asbestosis. The minister has explained extremely well in her second reading speech what this bill will do, and at this point I thank the minister for offering myself and the shadow attorney-general the briefing yesterday. I do appreciate the opportunity for that briefing and I also appreciate the fact that this legislation was quite difficult to draft because of the many wide-ranging aspects that it had to cover.

While we accept this bill and are very pleased to see it here today, I will be flagging a couple of minor amendments to the legislation, which we believe will strengthen it.

Mrs Jackson - Do you have those?

Mr ROCKLIFF - Yes. I am happy to circulate them now, Minister, if you like.

Asbestos Disease Tasmania, while they have welcomed the particular legislation before us today, have expressed some concerns to us and I believe other members of parliament. They are concerned that the courts virtually decide at their discretion whether or not the plaintiff has a case against the defendant. They argue that this is an additional burden on the plaintiff as they already have to contend with a court process at the same time as contending with this terrible disease. They also see this as an additional expense.

The State Opposition share their concern. However, the State Government made the case in the briefing yesterday that this mechanism also acts as a protection for the plaintiff as it potentially saves them from a costly process in seeking compensation in the future when they might not even have a case at all. So at this point the Opposition have decided to accept the Government in good faith on this particular issue, that this legislation indeed will cover all aspects of the right to seek compensation and that having to make an application to the court will not work against the plaintiffs.

However, I wish to place it clearly on record that if in practice this process does discriminate against victims, we will again pressure the Government for more changes. I put the Government on notice today in relation to this matter that the State Liberals will be monitoring the situation very closely.

While the State Liberals believe that this bill is an important step forward for long-suffering victims, we believe that it can be strengthened in some ways. We believe it can be strengthened by providing more balance in respect to the plaintiff. I have circulated amendments to clause 8, new section 38A(2)(b), which delete paragraph (b). I will speak more at length on this during the debate in Committee. Section 38A(2) reads:

(2) 'A judge may extend the period of limitation specified in subsection (1) having regard to -

(a) the justice of the case; and

(b) the consequences to the defendant of the defendant's reliance on the period of limitation specified in 5(1); and

(c) the matters mentioned in 5A(5)(a), (b) and (c).'

Asbestos Disease Tasmania in their submission believed that 38A(2)(b) perpetuates the discrimination under the existing legislation by allowing the court to consider, and I quote:

'the consequences ... of the defendant's reliance on the limitation period specified in 5(1);'

We do have some sympathy with Asbestos Disease Tasmania here; it is too pro-defendant and at 38A(2)(a) the justice of the case should cover both plaintiff and defendant. In there we have 'the justice of the case' and that does not stipulate whether it is justice for the asbestos victim or justice for the company that they may well be seeking compensation from. It is that weighing of justice and we believe that paragraph (a) allows and supports both plaintiff and defendant and that paragraph (b) perpetuates discrimination by allowing the defendant greater opportunity with reflection on the previous law. That is one particular amendment we will be moving.

We would also be moving an amendment to new section 38(3) to extend the limitation specified in section 5(1) from 12 months to three years. This just allows an extra two years for people such as Lawrie Appleby to gather their resources and then proceed to court. It also allows those people whose date of discoverability was prior to the commencement date more time than the legislation that is now in place. We feel that is important because after the commencement date of the bill 12 months can pass very quickly. Time flies and it is a big decision for a person suffering from asbestos-related illness to proceed to court in the first place. They have to consult with their family, friends and they have to gather resources for what the initial process may well cost. Also one year is not long enough, we believe, for people to understand that this legislation is indeed in place. We believe that an extra two years will give the Government and Asbestos Disease Tasmania or whoever more time to notify those who feel they may want to go and seek compensation and more time for those people to do that. We think that is a very fair amendment.

Also, the State Liberals will move a further amendment to section 38A(3)(c), which 'proposes to rely on a date of discoverability which occurred more than two years before the commencement day'. Our amendment would delete the words 'more than two years'. You could use the same argument as before and it provides that three-year time period consistently across the board.

We will be moving our amendments and we hope that we have the support of the Government and the Greens. We believe that it strengthens already good legislation because it is a huge improvement on the previous legislation. We would like to strengthen that further and actually put more balance into the legislation to ensure that the plaintiff does indeed have a fair process to follow. We will be keeping a very close eye on the outcomes of this legislation to ensure that what it intends to do actually occurs and we believe victims of asbestos-related illnesses, and other victims in areas which this legislation covers, deserve nothing less.

We are pleased the Government has finally addressed this issue and we look forward to debating our amendments in Committee. Largely we believe that this is good legislation and we hope that it addresses the injustice that has existed in this State for many years.

[12.19 p.m.]

Mr McKIM (Franklin) - Mr Deputy Speaker, the Greens agree substantially with the position that has been put by both the Government and the Liberal Opposition in relation to this bill. It is a good bill. I guess we could say better late than never, because it has been some time coming. Members would be aware that without the passage of this bill Tasmania currently has the most restrictive provisions in relation to people who are suffering long-onset conditions who may wish to take the matter to court and bring on a claim for compensation. I would like to join with Mr Rockliff, who, I have acknowledged in the past, has worked very hard on this issue. I congratulate him again, but I guess I should first congratulate Lawrie Appleby, whom I have met within the last three or four months, and his wife Gill. I found they presented a very moving case for a relaxation of the restrictive provisions of the Limitation Act; not only a moving case, but a very sensible one. Like Mr Rockliff, I am proud that the Greens in a very minor way were able to support the Applebys and all other Tasmanians who are suffering from long-onset conditions because, as Mr Rockliff rightly points out, this bill will certainly aid in the provision of justice for sufferers of dust-related or asbestos-related diseases. Further, as the Attorney pointed out in her second reading speech, it will also apply to other Tasmanians who may be disadvantaged by the current limitation provisions including, for example, people who have suffered abuse as a child. It is very important that, as public policy-makers, we act in the best way we can to give those people the best possible access to justice. It is a shame that Mr Appleby was unable to be in the Parliament today, because I know how hard he has worked on this and I am sure he would have liked to be here. I guess we all have to put the food on the table, and Mr Appleby no doubt is no different from the rest of us.

As an overview, the Greens completely support the rights of all people suffering from long-onset conditions, such as asbestos-related conditions and diseases, to bring on a claim for compensation.

When I was considering this matter in relation to compensation, my mind turned to an issue that has been running in the media in the last few days in relation to the requirement that a person who receives a compensation payment for over $5 000 will be required to reimburse to the Federal Government any Medicare payments they may have had in relation to their problem. This matter arose because of a communication Mr Steve Fisher had from the Health Insurance Commission. I have to say that I suspect the current rulings from the Health Insurance Commission would potentially adversely impact on people who receive compensation for long-onset diseases or for any abuse they suffered when they were children. Now as a broad, almost philosophical, principle here, the Greens believe that if there has been abuse or if there has been negligence in the workplace, the person who is responsible for the abuse or negligence ought to cover the reasonable medical and counselling costs of people who were adversely affected, on top of other costs such as pain and suffering. Now it is quite unconscionable to think that Mr Fisher or anybody else may receive a compensation payment for the abuse that he suffered, or that somebody else may get a compensation payment due to the negligence of their employer in exposing them to asbestos, but then they have to give a lot of it back to the Federal Government to cover their Medicare expenses.

Mrs Jackson - That's always been the case.

Mr McKIM - I know it has always been the case, but that does not make it right.

Mrs Jackson - I suppose if you had added it to the costing, that is another matter.

Mr McKIM - As I said, in my view there is no philosophical reason why the taxpayer at the end of the day ought to pick up the bill for negligence of a corporation, an employer or, in Mr Fisher's case, an institution such as the church in allowing abuse to take place. There is no philosophical reason why the taxpayer ought to pick up that tab but there is a necessity for those institutions to be required to cover any reasonable medical or counselling expenses on top of the compensation they pay for any other reason.

Mr Deputy Speaker, the Greens considered strongly the New South Wales model in relation to relaxing the restrictive limitation provisions in this State. We received a briefing yesterday from Emma Gunn who is here as one of the Attorney's advisers and I thank both Emma and the Attorney for providing that briefing -

Mrs Jackson - And Yvette.

Mr McKIM - Yvette Cehtel was not there. I had a few briefings yesterday but Yvette was not there. I did actually have another briefing from Lisa Hutton from the Justice department on another matter, Attorney.

Mrs Jackson - You're doing well.

Mr McKIM - I am. I hope I have a good relationship with a number of people in your office and in the Justice department. I thank Emma for taking the time to brief me and she made, I thought, a very good point when I raised the issue of the New South Wales model and that is that it specifically applies to dust-related diseases. You are faced with a difficult choice when you consider what model you are going to adopt in this situation because you either have to specify a particular condition and exempt that condition from the provisions of the Limitation Act entirely or you are required to not exempt from the Limitation Act entirely and instead take the model that the Attorney is presenting to the House today where the conditions are not specified so tightly or in fact at all but the Limitations Act is not completely relaxed.

I was certainly moved by the arguments that were put to me yesterday in relation to that. So we will not be seeking to move amendments that will take Tasmania down the line of the New South Wales model. I was convinced because we know that there are other issues such as child abuse and such as the road workers of Tasmania which has currently been in the media. They cannot be and are not left out of the bill, as I understand it. They will be able to access justice under the provisions of the Limitation Act once the bill that we are currently debating has been passed through the Parliament and receives assent.

Mr Rockliff made some comments in relation to long-stop provisions and, like him, we are inclined to take the Government at their word on this. We join with Mr Rockliff in stating very clearly that plaintiffs must not be prejudiced against in any potential legal action which may be taken and we will join with the Liberal Party in scrutinising the situation and, if necessary, join again with the Liberal Party in pressuring the Government if it does transpire that there is some prejudice against the plaintiff for any reason.

Mr Rockliff has flagged amendments and I thank him for providing those to me. He provided them to me just prior to his second reading speech so I have not had a long time to study the amendments but I listened very carefully to what Mr Rockliff said. The Greens, as we always do when either the Liberal Party or the Government propose amendments, will analyse these matters on a case-by-case basis and make the decision that we think is in the best interests of Tasmania, Tasmanian communities and the Tasmanian environment and economy.

As I said, I listened very carefully to Mr Rockliff. He has stated that he will make further representations in relation to his amendments once we go into Committee but I would have to say on first blush the Greens would be inclined to support the amendments moved by Mr Rockliff. As I said, I will make sure I am listening very carefully to the arguments, as I always do whenever amendments are moved in this House. I will listen carefully to any arguments that may be presented by the Attorney and we will make what we consider to be the best decision in relation to justice, the rights of individuals and the broader responsibility that sits on the shoulders of every public policymaker in this State, and that is the greater good for the greater number.

I will participate in the debate in Committee and I look forward to it. I am sure it will be interesting and educative for all of us. The Greens believe that this bill is certainly going to improve substantially the current position in this State and we will be supporting it.

[12.31 p.m.]

Mr MICHAEL HODGMAN (Denison) - It was not a difficult decision for me, as Her Majesty's shadow attorney-general for the State of Tasmania, to suggest that my colleague, Mr Jeremy Rockliff, MHA for Braddon and future senior minister in a State Liberal government, should lead for the Opposition on this matter. I place on record my admiration of Mr Rockliff's actions on behalf of all those who suffer from asbestos-related disease in this State. In particular, I salute Lawrie Appleby and his wife, Gill, for the campaign which they have initiated and which has been so strongly carried forward by Jeremy Rockliff and I might say by a number of other members of the State Parliamentary Liberal Party and indeed the Liberal Party of Australia, Tasmania Division. I am saddened that Mr Lawrie Appleby is not able to be with us today because I think he would have felt justifiably proud that, as a result of his efforts on behalf of Asbestos Disease Tasmania Inc. and all those who suffer from this terrible disease and from related diseases, the democratic process has worked, albeit slowly, and that at least now something is happening.

I commend the Attorney-General and the Lennon Labor Government for acting on this matter and bringing forward the bill and for the briefing given yesterday by Emma Gunn and Yvette Cehtel from the Attorney's office, which was most valuable. I have been engaged in a number of discussions in relation to this legislation and I gave very careful consideration as to whether or not we should move to the New South Wales position, which is that there is no effective limitation period whatsoever. I am convinced that the New South Wales situation is not appropriate for implementation in the State of Tasmania. It would mean the establishment of yet another judicial or quasi-judicial body to deal with claims equivalent to the Dust Control Commission in New South Wales. In the circumstances I am persuaded not to move down the line to the New South Wales system and, quite frankly, I do not think a small State like Tasmania could move in that direction.

It is always difficult to justify an argument on the basis of how many people it is likely to affect, but for the record, having discussed this matter with the Australian Insurance Council - whose very distinguished representatives came to Parliament House and met with me recently - and a number in the legal profession, it seems that the number of potential plaintiffs in relation to asbestos-related disease is probably less than 30. But, as the Attorney and Mr Rockliff have pointed out to the House, this bill goes beyond the asbestos situation and may well include other areas. In other words, we are enacting what is effectively general legislation, although it will have a fairly limited application. As the bill is presently before the House, there is, of course, that 12-month period of opportunity in which the application has to be made to a Justice of the Supreme Court of Tasmania for an extension of time to commence proceedings and I will be strongly supporting the amendment proposed by Mr Rockliff that that period in fact be extended to three years, which is a slightly more reasonable period of time, bearing in mind that at the end of that three years that is it.

I am very conscious of the fact, and I say without any acrimony, Attorney, that currently legal aid for civil matters involving civil Supreme Court proceedings in the State of Tasmania is not generally available. There is some assistance but basically unless you can get a firm of solicitors who are prepared to act on a contingency fee basis, most plaintiffs will be faced with a situation of having to raise the funds to bring their own action.

We are aware of a recent decision in the Supreme Court of Tasmania where a person in the north of the State brought proceedings against the Government of the State of Tasmania and has lost in that case and the order for costs made consequent upon the dismissal of the plaintiff's claim will be very substantial indeed and indeed could cause that person to lose his home or indeed to lose everything. So, in one sense, I believe that the arguments advanced as to why there should be an application before a judge for extension of time to commence proceedings is appropriate in that it will enable a preliminary vetting of the potential claim, the likely witnesses to be called for the plaintiff, for the defendant, the availability of records and the like. In other words, it is a judicial vetting or, as the bill refers to, a gatekeeper role.

It has not been emphasised, with respect, by the Attorney-General, but I think it must be emphasised by myself as Her Majesty's shadow attorney-general, that the granting of the extension of time to commence proceedings does not mean that the plaintiff will ultimately win. What it does mean is that there is sufficient material for it to be said that the plaintiff has an arguable case and so proceedings will be permitted. But plaintiffs and workers should clearly understand, Madam Deputy Speaker, that if at the commencement of the proceedings the application for extension of time to commence proceedings is granted it does not mean ipso facto and automatically that at the end of the day they will win.

I think people have to understand that the law in civil proceedings is, rightly or wrongly, that the winner has his, her or its costs paid by the loser. That is the usual rule. It is said costs follow the event and yesterday his Honour the Chief Justice of Tasmania gave judgment in the case of the State of Tasmania against Leighton Constructions in which he has ordered that the State of Tasmania pay to the defendant $1.8 million and another $100 000 for other matters. There will be a further determination of quantum and there will probably be an order for costs. In that case, which is the longest running civil Supreme Court action in the history of Tasmania, the costs could well run into millions of dollars and it is not inconceivable that the costs could exceed the total amount of the damages and other payments ordered to be paid.

Once proceedings have commenced, the Supreme Court of Tasmania will then very carefully, through the interlocutory process, monitor how the case is going and if a light starts flashing that the plaintiff's case is not likely to succeed or that it would be unfair in light of the situation which is emerging to permit it to go further, then it may well be that proceedings will be stopped at this stage. My view is there could be nothing worse than for somebody who is suffering from a potentially or actually fatal disease to go down the long line of litigation and then lose. I am aware, as all of us are aware, of the tragic case in the Supreme Court of Victoria where a lady suffering from the effects of lung cancer as a result of many years of heavy smoking brought proceedings, got a judgment in the first instance - when still alive - for the sum of $800 000 and then to her horror, and no doubt the horror of her family, saw that decision overturned in the full court of the Supreme Court of Victoria and that overturning confirmed in the High Court of Australia. Now of course there is an enormous bill for legal costs being pursued in relation to that deceased plaintiff's family.

I place on record that I am still not 100 per cent certain that this bill is the complete answer. I am pleased that the Leader of Her Majesty's Opposition and the next Premier of Tasmania, the honourable Rene Hidding, is in the Chamber because, as I said to him yesterday, it is clear to me beyond any shadow of a doubt that when you become Premier, sir, which will be in July 2006, you will be looking at the Sullivans Cove Waterfront Authority Bill -

Mr Hidding - Cleaning it up.

Mr MICHAEL HODGMAN - Indeed, cleaning it up - and I also think it is quite on the cards that you will be looking at this Limitation Amendment Bill 2004. The amendments to be moved by a future minister in a State Liberal Government, Mr Jeremy Rockliff MHA, certainly improve the legislation and in the good spirit of cooperation we have had on this matter, Attorney, I appeal to you on behalf of the Government to accept Mr Rockliff's amendments.

This is an appeal from Her Majesty's loyal Opposition to you, having had the benefit of the briefing which you provided. I believe it would be fair for you to accept these amendments and I believe you could do so without in any way, shape or form being seen to be irresponsible. They are basically consistent with the Ipp Report recommendations which are now being applied nationally. I am grateful to have a copy of the section of the Ipp Report dealing with limitation of actions. I have read that pretty carefully and it seems to me that Mr Rockliff's amendments are spot on. So I hope you do not rise in your place in a few minutes and say, 'No, we can't go along with this', when if you look at the panel's view as stated in the Ipp Report in this section, which is chapter 6 dealing with limitation of actions, Mr Rockliff is spot on. That is why I have no hesitation in supporting his amendments.

So, Attorney, in the spirit of new found, albeit I suspect temporary, cooperation I appeal to you to accept the amendments. It would be a great thing if this bill could go to the Legislative Council with the amendments moved by Mr Jeremy Rockliff MHA, member for Braddon and future minister in the Hidding Liberal Government, and if they could go with the support of the entire Chamber. It would be a really good move and I know it would give immense pleasure to Mr Appleby and everybody at Asbestos Disease Tasmania Incorporated, who are really looking for something along these lines and would be grateful if this could be done. I think that Mr Appleby and his organisation have accepted that we cannot move to the New South Wales model and there are good reasons for that, but having said that they would be absolutely delighted if the Government could be big-spirited on this matter.

It is not as though, Attorney, we are opening floodgates for thousands and thousands of cases. It may be we are permitting 30 or 40, 50 at most, to at least approach the courts to seek the opportunity of an extension of time. Let us be quite frank, Attorney; I suffer from chronic terminal emphysema, now colloquially called COPD. It is terminal and these people are suffering from a terminal lung condition. Many of them, Attorney, will die before they even get to the court and, Attorney, even when the law is passed some will be told, sadly, 'We don't think you can prove negligence'. You can prove a link or a nexus between your employment and your condition but unless you can prove negligence, Attorney, they do not get to first base in the Supreme Court of Tasmania.

I urge you to accept the amendments which will be moved by Mr Rockliff and I conclude my comments on this bill.

[12.46 p.m.]

Mrs JACKSON (Denison - Minister for Justice and Industrial Relations) - I thank both the Liberal Party and the Greens for supporting this legislation. The Government will accept these amendments. I have advice that they not going to affect -

Mr Michael Hodgman - Thank you.

Mr McKim - Well done, Jeremy.

Mrs JACKSON - Yes, well done. I just want to put the following on the record. We do recognise the point of view of the insurance industry - who came to see me as well - that they are very much opposed to any form of retrospectivity, so as a government we have to be as responsible as we can. I find it interesting because normally the Liberal Party of Australia would very much be supporting the insurance industry, but you have obviously talked to them about this and they do not have any more of a problem with this than they do with the general principle of retrospectivity.

We put it in at 12 months because retrospectivity is a very large step. We felt that was going a fairly long way. It was thought that 12 months was fair for people and was a finite period to see how many cases were out there and whether they are the numbers you are talking about. What your amendment will do is allow that to occur for three years. I suppose in effect what it will mean is that the unknown will extend for another two years. Probably two years would have been better but I am not going to stand here and quibble over one, two or three years. If we had put two years that might have satisfied you but, as I say, three years will merely mean that people will not know for three years how many of those people are out there.

Obviously, all of us here, if we could, would make sure these people were covered. Personally, I would like to assist every one of these people if I could and I wish them all the best in the court process.

There was huge support for this in Cabinet and the Caucus because I do not think anybody anywhere would feel anything but great compassion for these people. I would also like to put on the record the work done by Mr Appleby. He has been responsible for this so it is a tribute to him and the people who have supported him to get this legislation so far.

It also came out of the Ipp Report - that is where the move came from - and it was the trade-off that we were given from accepting some of those other more onerous parts of the Ipp Report that we were convinced were needed to be done to save industry, business and recreation - and everything in Australia as we know it for that matter - if we had not passed that legislation. Mind you, we are still waiting to see some of the benefits of that. We were discussing recently at an attorneys-general meeting that we are still waiting to see some of the benefits. I do not think anyone could pinpoint where the premiums have actually gone down. I think we probably can accept there are some more players in the field but we really were forced to make those changes and to take rights away from people. Let us not equivocate about it, that is what that was. However, this is a trade-off as part of that package and in Tasmania, I believe, we now have fairer legislation as far as limitations go and we are now similar to other States.

Our Limitation Act did limit actions that could be taken here in Tasmania. One of the main ones concerns the young people for whom, up until now, it was up to the guardian or the parent of the child to take action. For example, if you were born with a birth defect and your parents did not take action within the time limit, then you lost that ability to do that. I do not know of cases but I was told it is possible. You can see how it would be possible that first of all some parents might not wish to admit that there is something wrong with their child and therefore just leave it. Then it is too late for the child to have that benefit. Perhaps some parents leave it because the situation or the condition of the child can deteriorate over time. We know of many diseases that children are born with that lead to death or early death. They are degenerative diseases so the parents leave it thinking to wait and see how bad it gets because obviously the worse it gets then the more damage. Those situations will not have to exist any more and the child itself can bring those actions three years after it is 25. It is much fairer legislation and gives people more rights than they had in the past. We will accept your amendments.

I also have two amendments. I said in my second reading speech that we would amend the Workers Rehabilitation and Compensation Act to make it compatible with this. Secondly, we will delete the proposed definition of date of discoverability by leaving out 'but for the incapacity caused by relevant personal injury'. It was something that was raised by the Plaintiff Lawyers Association and we received further advice from the Solicitor-General. He said that would be the wise thing to do because the way it was drafted could be interpreted in ways we did not wish it to be.

Bill read the second time.