Cosgrove Clayton: Weathertight Homes Resolution Services(Remedies) Amendment Bill — First Reading 
Cosgrove Clayton: Weathertight Homes Resolution Services(Remedies) Amendment Bill — First Reading 
[Volume:639;Page:9706] 
Hon CLAYTON COSGROVE (Minister for Building and Construction) 
: 
 I move  
That the Weathertight Homes Resolution Services (Remedies) Amendment Bill be now read a first time. 
 After the bill has been read a first time I intend to move that it be considered by the Social Services Committee. I also intend to move that the Social Services Committee be instructed to report back to the House by 18 June 2007 rather than within the default period of 6 months and that the committee have the authority to meet at any time while the House is sitting except during questions for oral answer during any evening on a day on which there has been a sitting of the House and on a Friday in a week in which there has been a sitting of the House despite Standing Orders 192 and 195(1)(b) and (c). This is because the legislation needs to be enacted as swiftly as possible so that certainty can be restored to claimants that their Weathertight Homes Resolution Service claims can be resolved in one specialist jurisdiction as intended by Parliament. 
This bill amends the Weathertight Homes Resolution Services Act 2006 to make it clear that the remedies that may be claimed under the Act and ordered under the Weathertight Homes Tribunal have one purpose—that being to place it beyond doubt that the tribunal is able to award general damages including those for mental stress or anxiety. The process set down by the Weathertight Homes Resolution Services Act 2006 acts as a one-stop shop dispute resolution process and as a specialist alternative to the courts.  
 General damages have been awarded in 21 percent of the settlements to date. In two District Court appeals under the Weathertight Homes Resolution Services Act 2002 the relevant section section 42(1) has been interpreted to include the ability to award general damages including those for mental stress and anxiety. However a recent High Court decision—the Hartley decision issued on 29 March 2007—held that general damages could not be awarded under the Weathertight Homes Resolution Service legislation as compensation for any mental anxiety or stress. The judgment sets a precedent that affects existing adjudications started but not yet finished under the Weathertight Homes Resolution Services Act 2002 and decisions made from now on by the Weathertight Homes Tribunal under the Weathertight Homes Resolution Services Act 2006. Existing settlements are not affected. 
The decision is likely to deter people from using the Weathertight Homes Resolution Service process and force them to pursue their leaky building claim in the general courts if they wish to claim for general damages. The precedent the High Court has now set for Weathertight Homes Resolution Service claims has caused concern among claimants who have found themselves faced with either having to abandon the Weathertight Homes Resolution Service process and go to court for the entirety of their claim or having to go to court for general damages relating to mental anxiety or stress. Being able to claim compensation for mental anxiety or stress is an important principle of justice for Weathertight Homes Resolution Service claimants. Even though such damages are not always awarded and the amounts awarded are just under $10000 on average claimants have valued the fact that their claims for such damages could be considered in adjudication. 
This Parliament unanimously supported the new Weathertight Homes Resolution Services Act late last year. The new Act simply carried over the provisions of the old Act which were understood to provide the ability to award general damages for mental anxiety and stress—a view that had been confirmed by two District Court appeal decisions in 2005. The process was working well in this regard. Without further legislative clarification however the High Court’s decision is the authoritative interpretation. 
This amendment bill puts the intentions of Parliament and the Government beyond doubt and asserts the supremacy of Parliament so that leaky home claimants can get on with settling their claims. The amendment bill specifically confirms and clarifies that the Weathertight Homes Tribunal can make any order that a court of competent jurisdiction could make in relation to a claim in accordance with the principles of law but it does not give the tribunal any wider powers than the court in relation to remedies. This change will reinforce claimants’ confidence that their Weathertight Homes Resolution Service claims can be resolved in one specialist jurisdiction without the need also to go through mainstream courts to seek general damages. 
I want to thank John Gray of the Leaky Homes Action Group for the helpful focus he has provided on this matter as the leader of the major homeowner interest group. I also wish to acknowledge the individual homeowners not all of whom are current claimants who have written to me with well-reasoned pleas for an amendment such as this to be made. I also want to thank the Government support parties who in recognising the distress the High Court decision has caused to claimants are supporting this bill. I commend the bill to the House.