The Medical Research and Compensation Foundation, the compensation fuondation set up by building products maker James Hardie, says it had to reject a last-minute transfer of money that could keep it operational.
The MRCF says if it accepted the funds, it would lose the ability to sue James Hardie sometme in the future.
The decision means some victims of James Hardie asbestos products could face reduced payments, while future victims could miss out altogether.
The foundation says it will ask the New South Wales Supreme Court to immediately appoint a provisional liquidator, with a hearing set down for Thursday of next week.
The move comes despite a last-minute transfer of A$31.5 million to the foundation, with another A$57 million to come next Tuesday – enough money to allow the foundation to pay claims for up to two years.
But MRCF managing director Dennis Cooper, says the money can not be accepted
“By accepting this particular amount of money we would forego our cause of legal action against the James Hardie entities,” he said.
Without the money the foundation has only enough funds to pay out notified claims until April next year, despite a potential bill of A$1.5 billion.
Unless James Hardie offers enough money or signs an agreement on long-term compensation for victims, the fund will have to wind up its operations.
Both James Hardie and the unions say that is not likely until Christmas.
New South Wales Premier Bob Carr says if a provisional liquidator is appointed to the foundation, victims could lose the right to claim compensation.
Victims with current claims also might not receive full compensation.
Mr Cooper says provisional liquidation is the only responsible option, even though he concedes it may mean future claimants no longer receive 100 cents in the dollar.
“The very difficult decision that requires to be made is that you’ve got victims today and you’ve got victims tomorrow,” he said.
“The issue of should one preference today’s versus tomorrow’s victims – it’s a vexed question and it’s a question that the provisional liquidator will have to resolve.”
Mr Carr has criticised James Hardie, saying it’s time for for the company to stop hiding behind corporate and legal structures to protect itself from asbestos liabilities.
“The practical effect is that people diagnosed today or tomorrow with mesothelioma won’t be able – even after they win their case before the Dust Diseases Tribunal – to get a cent in the compensation they need to hold their lives and their families together,” he said.
“That’s why James Hardie needs finally to resolve this.”