ATTACHMENT C SETTLEMENT PROTOCOL BETWEEN PLAINTIFF'S AND STEVEDORING INDUSTRY FINANCE COMMITTEE (SIFC)

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1 ATTACHMENT C SETTLEMENT PROTOCOL BETWEEN PLAINTIFF'S AND STEVEDORING INDUSTRY FINANCE COMMITTEE (SIFC) Introduction 1. SIFC is committed to attempting to settle claims with plaintiffs with bona fide claims. 2. In doing so, it seeks to act at all times with full and proper regard to: its responsibilities under statute; the case law - including Crimmins (High Court and Victorian Court of Appeal) and Gibson (NSW Court of Appeal); and its responsibilities under the Commonwealth Attorney-General's Legal Services directions (including the model litigant rules). 3. SIFC's preference is to seek to resolve contributor claims at the same time as plaintiff claims where possible and appropriate. Process 4. It is envisaged the following process would apply in relation to the negotiation of timely settlements: (c) (d) the Plaintiff will provide details of the claim to SIFC (see 5-8. below); settlement discussions would then occur (both parties to approach these in good faith). Generally, these will be part of a block of settlements; if agreement on a settlement amount can be reached, the parties would execute terms of settlement which may include an interview/affidavit/statutory declaration process which should be concluded prior to the Plaintiff receiving his/her settlement monies. Both parties are to approach the interview process in good faith with the aim being to complete that process within 28 days of the date on which terms of settlement signed for the plaintiff are delivered to SIFC s solicitors; The Plaintiff s solicitors will draft Terms of settlement (in accordance with the attached Standard Terms of Settlement) once the settlement amount has been agreed. Terms of settlement signed for the plaintiff will be delivered to the

2 solicitors for SIFC as soon as practicable after the settlement amount has been agreed. 2.

3 Details of claim 5. The Plaintiff will (to the best of his recollection) provide to SIFC's solicitors an affidavit or statutory declaration (depending on whether or not proceedings have issued at that stage) setting out the following information: (c) (d) (e) (f) (g) (h) (i) gang and medal number of the waterside worker; description or the designated number of the wharf or wharves at which the waterside worker unloaded asbestos cargo and at which he regularly worked; only in relation to lung cancer cases, smoking history of the worker including, with respect to each brand of cigarette smoked, the daily consumption of each such brand, any change in the daily consumption of each such brand, the period of daily consumption of each such brand. The age the worker commenced and ceased smoking. The worker's knowledge of dangers and health risks of smoking and sources of that knowledge. The dates of any attempts to cease smoking. Details of any consultation and treatment for any smoking related condition; identity of asbestos suppliers; identity of asbestos consignees; identity of employers, including shipping lines which tended to bring asbestos cargoes into the Port; particular docks where asbestos cargoes tended to be unloaded; names of specific ships from which asbestos cargo was unloaded; specific stevedore companies which employed the plaintiff on occasions when asbestos cargo was unloaded; stevedore companies which tended to unload shipping lines which tended to bring asbestos cargoes into the Port; description of the asbestos fibres/dust and its packaging; any fact which would link either CSR or James Hardie to the plaintiff's handling of asbestos cargoes at the Port; the name of any carrier which removed the asbestos cargoes from the Port storage sheds once it had been unloaded 6. Where the plaintiff is the widow of, or representative of the estate of a deceased waterside worker the plaintiff shall provide by statutory declaration or affidavit evidence relevant to items 5 (j) to the extent she or he is able. 3.

4 7. Where the claim is one for which SIFC indicates in writing that a limitation defence is relied upon Slater & Gordon will provide in writing a full explanation of why the claim was not brought within time and details of factors said to justify the extension of time. (This will allow SIFC to provide appropriate advice to the Attorney General at an early stage on whether or not the limitation period objection can be appropriately waived). SIFC agrees that where a limitation defence is asserted it is taken to have been tolled for the duration of time during which the plaintiff s claim is the subject of discussions pursuant to this protocol. 8. To the extent necessary and relevant to the plaintiff s claim Slater & Gordon will provide: - all medical reports and material on which the Plaintiff relies, including; treating doctor reports, x-rays, scans, pathology reports and other usual medical material relevant to the waterside workers condition; - consent to further medical examinations by SIFC nominated doctors, if so requested in writing by SIFC; - details and evidence in support of any claim for lost earning capacity asserted by the Plaintiff; - supporting evidence for other claimed losses. Interview 9. Where SIFC resolves to conduct an interview with a plaintiff, it shall be conducted as follows: SIFC s solicitors shall notify Slater & Gordon within a reasonable time after the delivery of signed terms of settlement of the proposed date and time of the interview. The interview will be conducted within a reasonable time of the date that signed terms of settlement are delivered to SIFC s solicitors. the interview will occur at BDW's offices, unless otherwise agreed. For clarity, if the Plaintiff is incapacitated then SIFC would seek to accommodate the Plaintiff's convenience; c) the interview will occur in the presence of a legal representative of the Plaintiff, if he/she so chooses. SIFC will pay for the Plaintiff's solicitor to be in attendance at such interview but any legal costs the plaintiff otherwise incurs will be at the Plaintiff's expense; 4.

5 (d) (e) the substance of the interview is limited, other than by agreement, to matters listed in or through chain of inquiry relevant to the matters described in paragraph 5 of the settlement protocol or about which SIFC needs evidence from the Plaintiff to enable it to prosecute its contribution claims; any document which SIFC requires the plaintiff to execute subsequent to interview will be provided to Slater & Gordon within 7 days of the interview. Other Matters 10. The attached terms of settlement, are intended to be used unless varied by prior written agreement between the parties. 11. The signing of the terms of settlement by a party's Counsel or Solicitor is to bind their respective clients as if each respective client had signed the terms personally. 12. For the purpose of this settlement protocol and the terms of settlement, "plaintiff or Plaintiff" includes claimants who have not yet commenced litigation and "affidavit" includes an affidavit, statutory declaration and/or video taped evidence. For clarity, it is envisaged that SIFC will be able to elect which mode of evidence it requires from the Plaintiff. Requests in relation to the mode of evidence will be approached in good faith recognising that, in some circumstances, it may be prudent for SIFC for the purpose of contribution claims to have both video evidence and some form of sworn documentary evidence from the Plaintiff. 13. Information provided in the course of the process governed by this protocol are provided strictly without prejudice to the rights of the parties in any concurrent or subsequent litigation. 5.

6 1. Subject to terms 3 to 13 below: STANDARD TERMS OF SETTLEMENT SIFC agrees to pay $ to the Plaintiff ("the settlement amount"); (c) If there is a valid HIC notice available on the date that the settlement amount is agreed by the parties, then payment of the settlement amount will be made less the amount due under that notice to HIC. The payment to HIC will be made by SIFC within 28 days of the date of delivery of terms of settlement to SIFC s solicitors signed for the Plaintiff. If HIC has been notified and if there is no valid HIC notice available on the date that the settlement amount is agreed then SIFC will pay 90% of the settlement amount to the plaintiff, and the remainder to HIC within 28 days of the date of delivery of terms of settlement to SIFC s solicitors signed for the Plaintiff 2. The Plaintiff is entitled to interest at Supreme Court rates on any late payment by SIFC, but only in respect of such amount that is overdue and only for the period it is overdue. 3. The Plaintiff for himself/herself and for members of his/her family and his/her solicitors undertakes that there will be no disclosure of the amount agreed to be paid pursuant to the terms of settlement to any person other than to members of his/her family, or as required by law, and in particular, without limiting the generality of the foregoing, not to disclose the amount agreed to be paid pursuant to the terms of settlement either directly or indirectly to the media, press, radio or television. 4. The settlement amount is inclusive of the Plaintiff's costs and disbursements. 5. The Plaintiff agrees to be interviewed by SIFC's solicitors, if so requested, as soon as mutually convenient hereafter on the basis set forth in the Settlement protocol: 6. The settlement amount will be paid to Slater & Gordon on behalf of the Plaintiff: Either within seven (7) days of completion of the interview process, including the swearing of any affidavit SIFC requests of the Plaintiff and delivery of the same to SIFC's solicitors; or within 14 days of the interview where no affidavit has been requested by SIFC or provided to Slater & Gordon in accordance with paragraph 9(e) of the protocol; or 6.

7 (c) (d) within 28 of delivery to SIFC s solicitors of terms of settlement signed by or on behalf of the plaintiff where SIFC have not requested an interview with the plaintiff in accordance with paragraph 9 of the protocol; and not longer than 42 days from the date on which terms of settlement signed for the plaintiff are delivered to SIFC s solicitors. 7. In the event the plaintiff dies before the interview or affidavit process is complete the settlement amount will be paid to Slater & Gordon on behalf of the plaintiff within seven (7) days of receipt of any draft affidavit and file records relevant to the Plaintiff's claim; 8. The payment of any moneys by SIFC under these terms of settlement is made without admission of liability.9. The Plaintiff agrees not to enter into any agreement with any third party that will prejudice, extinguish or reduce any right SIFC has to claim contribution or indemnity from any such third party.10. The Plaintiff agrees to sign a release (in terms agreed by the parties) if so provided by SIFC within 7 days of delivery of terms signed for the plaintiff. 11. The Plaintiff will bear, where applicable, repayment of Department of Veteran Affairs, HIC, DSS (or its equivalent) and private health insurance. 12. These terms of settlement bind the Plaintiff, his or her executors and estate, and his or her agents and assigns. 13. [optional deceased claim only] The settlement amount contains no allowance for past medical expenses incurred by the deceased in relation to the compensable injury Plaintiff by his/her legal representative representatives SIFC by its legal Dated Dated 7.