In the Matter of Richards Contracting Co Management Pty Ltd

BATHURST CJ: By an amended originating process the plaintiff, Petar Zeko (the plaintiff), sought an order pursuant to s 459(6) of the Companies (New South Wales) Code 1981 (NSW) (the Code) that Richards Contracting Co (Management) Pty Ltd (the Company) be reinstated. In addition, or perhaps more accurately as a preliminary step towards the making of that order, an order was sought under s 539(4)(d) of the Code extending the time for the making of the application. Ancillary orders were also sought for the winding-up of the Company and the appointment of a Mr Christopher Darin as liquidator.

Because of the judicial uncertainty which currently surrounds the question of the power to make the orders sought by the plaintiff, the proceedings were referred to the Court of Appeal and a bench of five was constituted.

In summary, the application was made to enable the plaintiff to prosecute proceedings in the Dust Diseases Tribunal of New South Wales (the Dust Diseases Tribunal) against the Company alleging that, whilst in the employ of the Company and in the employ of various other employers, he was exposed to and inhaled silica dust which, among other things, caused injury to both his lungs and silicosis. The plaintiff alleges that these injuries, and the loss and damage he has suffered as a result, were caused by the negligence and breach of statutory duty by the Company and the various other employers by whom he was employed between March 1975 and February 1993. The plaintiff alleges that he was employed by the Company between March 1975 and April 1976, and between August 1979 and February 1981.

The Company was deregistered pursuant to the provisions of s 459 of the Code on 29 May 1984. In an affidavit filed on 4 May 2020, the solicitor for the plaintiff deposed that in 1975 and 1976 an insurance contract existed between the Company and a licensed workers’ compensation insurer, namely, Associated General Contractors Insurance and Co Ltd (AGCI), which indemnified the Company against liability for damages in respect of any claim for damages arising independently of the Workers’ Compensation Act 1926 (NSW) (the 1926 Act).

The policy was not in evidence, but it was not in issue that any such policy would have been issued in accordance with the terms of s 18(3) of the 1926 Act and the Workers’ Compensation Regulations 1926 (NSW), and would have contained the following provisions:

It was also common ground that AGCI became insolvent and has been dissolved. The plaintiff’s solicitor deposes that AGCI was insolvent since the 1980’s.

Division 7 of Pt 7 of the Workers Compensation Act 1987 (NSW) (the 1987 Act) makes provision for an Insurers’ Guarantee Fund (IGF) to deal with claims for indemnity against insolvent insurers, including those insurers which have been dissolved. It was also common ground that the relevant provisions are those which are currently contained in the 1987 Act. The IGF is currently administered by the State Insurance Regulatory Authority (SIRA).

The plaintiff accepted that he has no prospect of obtaining the proceeds of any verdict from the Company or AGCI. His object in reinstating the Company is to obtain a judgment against it, and then seek to recover the proceeds from the IGF. In that context, the plaintiff has joined SIRA in the proceedings in the Dust Diseases Tribunal.

SIRA has denied that the plaintiff is entitled to sue it directly. Its position was summarised in a letter from its solicitors to the plaintiff’s solicitors dated 24 October 2019. That letter, so far as relevant, contained the following comments:

In bringing the present proceedings the plaintiff effectively accepted SIRA’s position, the approach of SIRA forming the basis for the application. However, during the course of the proceedings, the question of whether SIRA could be sued directly by the plaintiff was raised. As a result, SIRA was joined as a party to the application and written submissions directed to this issue were filed.

There are three other matters which should be raised by way of background. The first is that the plaintiff has sworn an affidavit in effect verifying the allegations made in the Statement of Claim in the Dust Diseases Tribunal. The evidence was not challenged and, if ultimately made out in the Dust Diseases Tribunal proceedings, would show that the plaintiff has at least significant prospects of success in those proceedings.

The second matter is that on 17 October 2005 the Dust Diseases Tribunal Medical Authority certified that the plaintiff was 20 per cent disabled due to silicosis. Thus, at least by that date the injury and loss and damage as a consequence of the alleged negligence and breach of statutory duty had emerged.

The third matter is that in written submissions filed on behalf of SIRA it was accepted that AGCI insured the Company in respect of the first alleged period of employment, but it was submitted that it was not in a position to make such an admission in respect of the second period.

ASIC was correctly joined as a second defendant to the application. ASIC has not appeared in the proceedings but on 7 May 2020 it indicated that it did not oppose reinstatement if the following conditions were satisfied:

I am satisfied that the evidence indicates these conditions can be complied with.

Because of the absence of a contradictor, the Court appointed an amicus curiae to assist it in what is undoubtedly a complex matter. On behalf of all members of the bench, can I convey the Court’s appreciation for the considerable assistance provided both in writing and orally.

Whilst I have concluded that the provisions of Div 7 of Pt 7 of the 1987 Act do not permit a claim to be made against SIRA in the absence of a finding of liability against the employer, SIRA remains a proper party in the Dust Diseases Tribunal proceedings.

I have also concluded that as the plaintiff had an accrued right to seek reinstatement of the Company at the time of the repeal of the Code by virtue of s 30(1)(c) of the Interpretation Act 1987 (NSW), the Court retains the power to order the Company’s reinstatement.

It is convenient to deal with this issue at the outset because if the plaintiff is entitled to proceed directly against SIRA in proceedings to which the Company is not a party, there would be no need for the Company to be reinstated in order for the claim to be maintained.

SIRA contends that any liability it may have under Div 7 of Pt 7 of the 1987 Act only arises once the plaintiff has established a claim against the Company to which the policy issued by AGCI would have responded.

By contrast, the plaintiff supported by the Amicus contends that in the present case the provisions of Div 7 of Pt 7 of the 1987 Act, in particular s 236(2), enables the plaintiff to have direct recourse against SIRA as manager of the IGF.

Prior to dealing with Div 7 of Pt 7 of the 1987 Act, it is convenient first to deal with the legislation and authorities relied on by SIRA in support of its contention.

As SIRA points out, the policy in question was issued pursuant to the provisions of s 18 of the 1926 Act. Section 18(1) of the 1926 Act obliged an employer to obtain from an insurer licensed under the Act a policy of insurance or indemnity for the full amount of his liability under the Act to all workers employed by him. Section 18(3)(a), so far as relevant, was in the following terms:

Similar provisions are contained in Div 1 of Pt 7 of the 1987 Act (see in particular s 155 and s 159 of the 1987 Act).

Notwithstanding the provision in the policy that the insurer is directly liable to the worker to pay compensation for which the insured employer is liable and indemnified under the policy, it has been consistently held that such liability would only arise once the liability of the insured employer had been established. Thus, in Devine v Devine (1928) 28 SR (NSW) 503, Ferguson J delivering the judgment of the Court described the operation of a similarly worded policy in the following terms (at 508-509):

A similar conclusion was reached by the Full Court in McNellee v Co-operative Insurance Co of Australia Ltd (1964) 64 SR (NSW) 295. In that case Herron CJ made the following remarks (at 299):

The cases are consistent with the construction that has been consistently given to the language of liability insurance policies, namely that no money becomes payable by a liability insurer to an insured unless and until the insured’s liability to a third party is ascertained or determined by a judgment, award or settlement: Teal Assurance Co Ltd v WR Berkley Insurance (Europe) Ltd [2013] UKSC 57 at [2]; Bradley v Eagle Star Insurance Co Ltd [1989] AC 957 at 966; Orica Ltd v CGU Insurance Ltd (2003) 59 NSWLR 14; [2003] NSWCA 331 at [15].

However, the cases referred to in [25]-[26] above were decided prior to the introduction into the 1926 Act of equivalent provisions to Div 7 of Pt 7 of the 1987 Act. These provisions were introduced into the 1926 Act by the Workers’ Compensation (Amendment) Act 1985 (NSW), Sch 5. For present purposes there is no material difference between the provisions so introduced (ss 30O-30ZC) and the provisions of Div 7 of Pt 7 of the 1987 Act.

The predecessor to Div 7 of Pt 7 was introduced into the 1926 Act in 1985 as part of a suite of amendments to that Act. The Explanatory Note to the Bill which introduced the amendment described the object of the introduction of the provisions in the following terms:

There was no discussion of the purpose of these amendments in the Second Reading Speech.

So far as the particular provisions of Div 7 of Pt 7 are concerned, s 226 of the 1987 Act empowers the Minister to declare an insurer to which a liquidator or provisional liquidator has been appointed, or which has been dissolved, an insolvent insurer for the purpose of the Division. It is not in dispute that a declaration under the section has been made in respect of AGCI.

Section 227 provided for the establishment of the IGF, whilst s 228 provides for the manner of its funding by licensed insurers. Sections 229 and 230 oblige the liquidator of an insolvent insurer to notify the Authority (presently SIRA) of any claims and, upon request, to supply all documents relevant to such claim.

Section 231 is a complex provision apparently designed to effectively empower the Authority to finalise on behalf of both the worker and the employer any claims either of them may have against an insolvent insurer. It is in the following terms:

It is to be noted that s 231 does not vest any right or obligation of the insolvent insurer in the Authority. Rather, such rights and obligations are vested in the employer (s 231(5)). However, s 231(1) appoints the Authority agent of the employer under a policy issued by an insolvent insurer, whilst s 231(7) prevents the worker or employer from exercising any right vested in them without the consent of the Authority. What is of some importance is that the section does not provide for the Authority to stand in the shoes of the insolvent insurer or directly assume the rights or obligations of the insurer.

Section 232 deals with payment out of the IGF to the employer or liquidator of an insolvent insurer if either of them have met their obligation under a policy. It is in the following terms:

In ICI Australia Operations Pty Ltd (now known as Orica Australia Pty Ltd) v WorkCover Authority of New South Wales (2004) 60 NSWLR 18; [2004] NSWCA 55 (“ICI”) McColl JA explained the interaction between s 231 and s 232 in the following terms (Mason P and Meagher JA agreeing):

It is to be noted that notwithstanding McColl JA considered that the Authority had a discretion whether to make a payment under s 231 and s 232, her Honour stated at [320] that if the Authority determined pursuant to s 231(2) to satisfy any claim against which the employer was indemnified, it could not satisfy the claim by paying less than 100 per cent of it.

Section 236 is the critical section. It provides as follows:

On one view the section is relatively straightforward. Section 236(1) preserves the right to compensation in respect of policies issued by an insolvent insurer and provides that such payments shall continue to be made out of the IGF. Section 236(2) grants an entitlement to payment out of the IGF of any amount a person would have been entitled to in respect to the policy but for the dissolution of the insurer, whilst s 236(3) entitles such a person to make a claim against the Authority as manager of the IGF in respect of such entitlement.

However, in ICI, McColl JA rejected the proposition that s 236(2) imposed an obligation on the Authority to make a payment out of the IGF. Her Honour’s reasoning was to the following effect:

Uninstructed by authority there is force in the argument that s 236 imposes an obligation on the Authority to pay to a person who had a claim against a dissolved insurer under a policy issued pursuant to the Workers Compensation Act the amount to which he or she would be entitled, as distinct from conferring on the Authority a discretion to make such a payment.

The section, like any piece of legislation, is to be construed having regard to its text, context and purpose: Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27; [2009] HCA 41 at 47; Federal Commissioner of Taxation v Consolidated Media Holdings Ltd (2012) 250 CLR 503; [2012] HCA 55 at [39]; Thiess v Collector of Customs (2014) 250 CLR 664; [2014] HCA 12 at [22]-[23]; SZTAL v Minister for Immigration and Border Protection (2017) 262 CLR 362; [2017] HCA 34 at [14].

The words of s 236(1) and s 236(2) are relatively plain. In particular, s 236(2) confers an entitlement to payment. Unlike s 231 and s 232, the text does not envisage the Authority having a discretion to make the payment. In context, it is also necessary to read s 236(1) and s 236(2) harmoniously. Each confer an entitlement to payment. It would be unusual to construe s 236(1) as conferring an entitlement by providing that the amount payable by the insurer in respect of workers compensation should continue to be paid out of the IGF, whilst construing s 236(2) as conferring only a right to a discretionary payment.

Further, unlike s 231 and s 232, there is nothing in the words of s 236 to indicate the entitlement is in any way discretionary.

Finally, the purpose of s 236 self-evidently includes the protection of workers against the loss of their entitlement under a statutory insurance policy due to the dissolution of the insurer. That purpose is best achieved by giving effect to the words of the section, as distinct from construing it as limited to a discretionary payment.

The most powerful support for the conclusion reached in ICI is the provision in s 236(4) enabling the Authority to finalise the claim in the same fashion as a claim against an insolvent insurer which had not been dissolved. However, irrespective of whether s 231 confers a discretion in respect to the claims of a worker against an insolvent insurer, in the context of s 236, s 236(4) can be seen as the mechanism for satisfying a claim under s 236(2) without importing a discretion to meet such an entitlement under that subsection.

Finally I should indicate that, contrary to the view of Curtis DCJ in ICI at first instance (ICI Australia Operations Pty Ltd v Workcover Authority of New South Wales [2002] NSWDDT 9) that s 236 only applied to statutory compensation, I am of the view that it extends to an entitlement under the statutory policy. The wording of s 236(2) is not limited in the manner suggested by Curtis DCJ, and if his conclusion was correct s 236(2) would be rendered largely otiose having regard to the provisions of s 236(1). This approach is consistent with what was said by Basten JA in University of New South Wales v AAI Ltd (2014) 87 NSWLR 214; [2014] NSWCA 153 at [20].

The argument in these proceedings did not deal with ICI and in those circumstances, it would not be appropriate to reconsider the decision. However, the construction placed on s 236(2) and s 236(3) in ICI, suggesting that payments are discretionary, is of relevance in considering whether SIRA can be sued directly.

In the present case, the policy, the relevant portions of which I have set out at [5] above, provides that the insurer is directly liable to the worker for compensation or any amount for which the employer was liable and in respect to which the employer was indemnified under the policy. It also provides that the insurer is bound by any judgment against the employer in respect of his liability. It seems to me that to establish an entitlement for the purpose of s 236(2), it is first necessary to establish the liability of the insured employer. This is because that liability is a precondition to the liability of the insurer, and hence the entitlement to make a claim under s 236(2).

I do not think the provisions of s 236(3) affect the position. This is because a precondition to the making of a claim under s 236(3) is an entitlement under s 236(2). Such an entitlement does not arise until the liability of the insurer has been established. This approach is consistent with the authorities to which I have referred at [25]-[27] above.

I would have come to that conclusion irrespective of whether s 236(2) imposed a liability on the Authority to meet the liability of the dissolved insurer, or whether, as seems to have been decided in ICI, the Authority has a discretion to make such a payment. However, if the Authority has a discretionary power to make the payment as distinct from an obligation to do so, that lends further support to the proposition that an entitlement against the insurer must be established before a claim to such a discretionary entitlement can be made. It follows that it is necessary to establish liability against the employer as a precondition to making a claim under s 236.

However, that does not mean that SIRA is not a proper party to the proceedings. If the plaintiff makes good his claim against the Company and the insurer, he has a right under s 236. It is appropriate that this right be established in proceedings where SIRA is a party and thus, to the extent possible, the plaintiff’s right against the IGF be established in those proceedings: CGU Insurance Ltd v Blakeley (2016) 259 CLR 339; [2016] HCA 2 at [65]-[67].

It was also suggested by the Amicus that SIRA may be joined pursuant to s 4 of the Civil Liability (Third Party Claims Against Insurers) Act 2017 (NSW). That provision is in the following terms:

Whilst I agree with the Amicus that it could apply to a worker’s compensation policy, the difficulty is that for the reason which I have given SIRA cannot properly be described as an insurer. SIRA’s liability does not arise pursuant to the contract of insurance, but rather from the terms of s 236.

In these circumstances, it is necessary to consider whether the Court has power to reinstate the Company.

The Company was deregistered under the provisions of s 459 of the Code, which gave the Commission the power to deregister defunct companies. It is unnecessary to set out the means by which deregistration occurs, but it should be noted that s 459(2) of the Code provided that the effect of deregistration is that the company was dissolved.

Section 459(6) empowered the Court to order reinstatement. It is in the following terms:

It is to be noted that the effect of reinstatement is to deem the Company to continue in existence as if the registration had not been cancelled.

The Code came into force by virtue of the provisions of the Companies (Application of Laws) Act 1981 (Cth) as applicable as a law of New South Wales by the operation of the Companies (Application of Laws) Act 1981 (NSW) (Companies (Application of Laws) Act).

On 1 January 1991, the Corporations (New South Wales) Act 1990 (NSW) came into force. Section 7 of that Act provides that the Corporations Law set out in s 82 of the Corporations Act 1989 (Cth) applies as a law of New South Wales and, so applying, be referred to as the Corporations Law of New South Wales (the Corporations Law). Section 85 of that Act contains the following provision:

Co-operative scheme laws are defined in s 84 to include the Companies (Application of Laws) Act and the Code.

Section 574(3) of the Corporations Law as originally enacted contained the following provision:

It can be seen that that section was limited to the reinstatement of a company. As McLelland J explained in National Australia Bank Ltd v Australian Securities Commission (1991) 9 ACLC 1093, a company dissolved before the commencement of the operation of the Corporations Law was not a company falling within the definition of “company” in the Corporations Law because it was not incorporated under that law. Nor could the company be taken to be incorporated by the operation of s 150 of the Corporations Law, since it was not immediately before the commencement of Div 2 of Pt 2.2 of the Corporations Law, incorporated, or taken to be incorporated, under a previous law within the meaning of s 126 of the Corporations Law: see also City West Water Ltd v Mr D Investments Pty Ltd [2002] VSC 553; (2002) 43 ACSR 622 (“City West Water”) at [4]-[5]. It was not disputed at the hearing that these cases were correctly decided.

Section 574 of the Corporations Law was repealed and replaced by s 601AH by the Company Law Review Act 1998 (Cth). That section, so far as relevant, was in the following terms:

A relevantly identical provision now appears in the Corporations Act 2001 (Cth) (Corporations Act) (that is, s 601AH of the Corporations Act – ASIC being substituted for ASC).

The Company Law Review Act 1998 (Cth) also inserted Ch 11 into the Corporations Law, entitled “Application and transitional provisions”. Of relevance are the following sections:

In considering the issues raised in the present proceedings, courts in earlier cases have considered the following transitional provisions in the Corporations Act:

Finally, it should be noted that although s 85 of the Corporations (New South Wales) Act has not been repealed, the Companies (Application of Laws) Act which established the Code in New South Wales was repealed by the Statute Law (Miscellaneous Provisions) Act 2008 (NSW) as redundant on 1 July 2008 (s 4 and Sch 4 of that Act). The Statute Law (Miscellaneous Provisions) Act also repealed the Companies Act 1961 (NSW).

In two early decisions on this issue, two judges of this Court held that the provisions of s 601AH of the Corporations Act empowered them to reinstate companies deregistered under either the Code or the Companies Act.

In Shaw v Goodsmith Industries Pty Ltd [2002] NSWSC 406; (2002) 41 ACSR 556 (“Shaw”), the plaintiffs sought reinstatement of the defendant which had been deregistered under s 459 of the Code. Barrett J (as his Honour then was) concluded that he had power to order reinstatement. His Honour concluded that the effect of s 1408(1) of the Corporations Act was to preserve the operation of s 1362CH of the Corporations Law which he stated provided not only ASIC with power to reinstate, but gave the Court power to do so under s 601AH of the Corporations Act. His Honour concluded in those circumstances that he had power to reinstate the company by virtue of the provisions of s 601AH of the Corporations Act in combination with s 1362CH of the Corporations Law.

Austin J in Parker v Australian Asbestos Pty Ltd [2002] NSWSC 520; (2000) 42 ACSR 138 reached a similar conclusion, although his Honour relied on s 1400 of the Corporations Act rather than s 1408.

However, in City West Water, Senior Master Mahoney declined to follow these cases. His Honour concluded, contrary to Barrett J’s view in Shaw, that s 1362CH of the Corporations Law only applied to the power of ASIC to reinstate companies, and (with respect, correctly) that the effect of s 1362CA of the Corporations Law was that s 1362CH only applied to companies incorporated before 1 January 1991 and in existence immediately prior to that date. However, Senior Master Mahoney concluded that the Court had power to reinstate such companies under s 459(6) of the Code by virtue of the provisions of the Victorian equivalent of s 85 of the Corporations (New South Wales) Act.

The conclusions reached by Senior Master Mahoney were accepted as correct in subsequent decisions of this Court (see, eg, Lunn v Cardiff Coal Co (No 3) [2003] NSWSC 789; (2003) 47 ACSR 79 at [41]; Baird v WJT Howes Investments Pty Ltd [2008] NSWSC 1232; (2008) 68 ACSR 485 at [8]-[11]). However, doubts as to whether the Court had power to reinstate such companies under s 459(6) of the Code after the repeal of the Companies (Application of Laws) Act in 2008 (see [68] above) were raised by Barrett J in Tan v Australian Securities and Investments Commission [2011] NSWSC 58 at [6].

In In the matter of Rocha Pty Ltd [2016] NSWSC 899; (2016) 114 ACSR 89 (“Re Rocha”), an order was sought declaring that the dissolution of the company under s 308(4) of the Companies Act was void. The application was made under s 307 of the Companies Act. It had been held that the Court had power to make such an order. The basis on which the power had been held to exist was summarised by Brereton J (as his Honour then was) in the following terms:

However, Brereton J held that the approach was not available following the repeal of the co-operative scheme laws. His Honour’s reasoning was to the following effect.

In In the matter of Jury & Spiers Pty Ltd [2016] NSWSC 900; (2016) 114 ACSR 336, Brereton J concluded that the same result would follow in respect of an application under s 459(6) of the Code, although in that case where the application was brought under s 459(6) of the Companies (South Australia) Code 1981 (SA), a jurisdiction where the co-operative scheme laws had not been repealed, s 459(6) could still be relied upon (at [19]-[21]).

In In the matter of Rocha Pty Ltd (No 2) [2016] NSWSC 1172; (2016) 312 FLR 309 (“Re Rocha (No 2)”), Brereton J rejected the proposition that the plaintiff had an accrued right to have the dissolution declared void, which was preserved by s 30(1)(c) of the Interpretation Act. His Honour stated that such a right needed to be an accrued right or entitlement defined by reference to past facts, not merely a right to apply for the favourable exercise of a discretion. His Honour concluded that the plaintiff in that case had only the procedural right to make an application, a right which was not specific to him but one which he shared with the liquidator and all members of the class of “any other person who appears to the court to be interested”: Re Rocha (No 2) at [30]. His Honour stated this was mere locus standi, not an accrued right: Re Rocha (No 2) at [30].

Initially, I was attracted to the proposition that s 85 of the Corporations (New South Wales) Act of its own force could render the co-operative scheme laws applicable notwithstanding their subsequent repeal. However, on reflection I think that that is incorrect for two reasons.

First, as Brereton J pointed out in Re Rocha, s 85 of the Corporations (New South Wales) Act is not a deeming provision. Rather, it simply states that the co-operative scheme laws, which was not repealed at the time s 85 was passed, would apply of its own force in respect to the matters referred to in ss 85(1)(a) and 85(1)(b) of the Corporations (New South Wales) Act. Those sections cannot apply of their own force once they have been repealed.

Second, it must be remembered that s 30(1)(c) of the Interpretation Act preserves any rights which had accrued under a repealed Act. Section 30(1) is in the following terms:

Section 30(1) is consistent with the position at common law. The position was summarised by Dixon J in Kraljevich v Lake View and Star Limited (1945) 70 CLR 647; [1945] HCA 29 as follows (at 652):

Once it is recognised that accrued rights which had arisen as a result of the operation of the repealed co-operative scheme laws would be preserved, there is no need to give a strained construction to s 85 of the Corporations (New South Wales) Act to preserve those rights.

In the present case, both senior counsel for the plaintiff and the Amicus, Mr Redwood SC, placed particular reliance on s 30(1)(c) of the Interpretation Act, contending that the plaintiff had an accrued right to have the Company reinstated at the time of the repeal of the co-operative scheme laws, and that that right was preserved by s 30(1)(c).

It is well established that the operation of s 30(1)(c) of the Interpretation Act or equivalent provisions cannot be considered without a clear understanding of the nature of the rights said to have arisen under a particular statute: Esber v Commonwealth (1992) 174 CLR 430; [1992] HCA 20 (“Esber”) at 439; Resort Management Services Ltd v Noosa Shire Council [1997] 2 Qd R 291 (“Resort Management Services”) at 295; Australand Corporation (Qld) Pty Ltd v Johnson [2008] 1 Qd R 203; [2007] QCA 302 (“Australand”) at [111]; Barminco Investments Pty Ltd v O’Brien [2006] WASCA 88 (“Barminco”) at [19].

In the present case, senior counsel for the plaintiff described the right as a right to make an application to seek reinstatement under the Code. He submitted that it was not an abstract right, but a right attached to the right to enforce a common law claim for damages. He accepted that the right was further qualified by the need to have recourse to s 539(4)(d) of the Code to extend the time for the bringing an application under s 459(6) of the Code.

In that context, senior counsel for the plaintiff relied upon what was said by Pullin JA in Barminco at [76] to the following effect:

Although it is correct to say that the question of whether a right exists is not to be construed narrowly, the expression “right accrued” does not extend to a right to take advantage of a statute available to all members of the public or a class of such members. In Abbott v Minister for Lands [1895] AC 425 (“Abbott”), Lord Herschell LC stated the principle in the following terms:

Similarly, in Mathieson v Burton (1971) 124 CLR 1; [1971] HCA 4, Gibbs J stated at 23 that the relevant section, a predecessor to s 30 of the Interpretation Act, does not preserve a power to take advantage of an enactment, and does not apply where there is merely a hope or expectation that a right might be created. However, his Honour stated that the section protects anything that may truly be described as a right, although the right may be fairly called inchoate or contingent.

In dealing with the question of what might be described as accrued rights compared to a power to take advantage of an enactment, courts have drawn a distinction between circumstances where an application has been made under such an enactment but not determined prior to its repeal. In Esber, the appellant had lodged an application for a review of a decision of the relevant Authority in respect of an application brought by him for redemption of his worker’s compensation payments. Prior to that review being concluded, the relevant Act was amended substantially, limiting the right to redemption. The majority of the High Court held that the appellant had an accrued right at the time of the amendment to have the application determined under the pre-existing law. The plurality made the following remarks (at 440-441):

In Colley v Futurebrand FHA Pty Ltd (2005) 63 NSWLR 291; [2005] NSWCA 223 (“Colley”), a decision on which Brereton J placed considerable reliance in Re Rocha (No 2), Handley JA drew a similar distinction. In determining the claimant’s right to approach the Industrial Relations Commission to seek orders granting relief for unfair contracts in circumstances where, prior to any application having been made, the relevant Act was amended to deny the Industrial Relations Commission jurisdiction in respect of the type of contracts complained of, his Honour made the following remarks at [30]-[31]:

However, these cases do not support the proposition that in every case where satisfaction of a right depends on the making of a court order, the right cannot be said to be an accrued right for the purpose of s 30(1)(c) of the Interpretation Act. Nor does it matter that the right is inchoate or contingent. Thus, in In the matter of Convex Ltd’s Patent [1980] RPC 423, the applicant’s patent under the Patents Act 1949 (UK) (the 1949 Act) had lapsed a few weeks before the Patents Act 1977 (UK) came into force in its place. Given that the patent could only be extended under the 1949 Act and the application was not made until after its repeal, it was contended that there was no accrued right and no power to extend. The argument was rejected. Buckley LJ made the following comments:

That case bears some similarity to the present case as the relevant legislation had been repealed prior to the application for reinstatement being made.

In Chief Adjudication Officer v Maguire [1999] 1 WLR 1778, Simon Brown LJ considered the authorities and summarised the position in the following terms (at 1787 and 1788):

The question has been more recently considered by a number of intermediate appellate courts in this country. In Resort Management Services, it was contended that a right to claim compensation under the provision of the Local Government Act 1936 (Qld) for injurious affectation in respect of which the respondent had not made a claim prior to the repeal of the section was an accrued right. Justice of Appeal McPherson made the following remarks (at 298):

Justice Fryberg referred with approval to the following statement by Sugarman P in Boyce v Hughes (1970) 72 SR (NSW) 54; [1970] 1 NSWR 75 at 57:

In Barminco, the respondent suffered a disability at a time when the relevant provisions of the Workers’ Compensation and Rehabilitation Act 1981 (WA) provided that the worker’s right to recover common law damages was conditional on leave being given to commence proceedings which could only be given if the degree of disability was likely to be 30 per cent or more. Prior to the respondent commencing proceedings or seeking leave to do so, the Workers’ Compensation and Rehabilitation Amendment Act 1999 (WA) (the Amending Act) imposed a different regime with different restrictions. The Amending Act stated it did not affect proceedings in respect of claims for damages which had been commenced, or in respect of which leave had been given prior to its repeal. Notwithstanding that no application for leave to bring proceedings had been made, it was held that the respondent had an accrued right under the earlier provision. After reviewing the authorities, Steytler P, with whom McLure JA agreed, made the following remarks (at [32]):

His Honour did not deal directly with the need to obtain leave.

After making the remarks to which I have referred at [86] above, Pullin JA made the following comments:

However, in Australand, Keane JA (as his Honour then was) took what on one view was a somewhat narrower approach to the question. The respondent in that case sought to avoid contracts pursuant to s 1073(2) of the Corporations Law (Cth) on the basis that the contracts concerned the issue of prescribed interests in contravention of the legislation. Section 1073(2) provided that such contracts were voidable by notice in writing by the person who accepted the offer. The Act conferring the right was repealed prior to the notice being given, and its replacement Act, the Managed Investments Act 1998 (Cth), contained certain limitations on the right of avoidance. The Court held that the power conferred on the appellants by the old law did not survive the repeal. The Court held that the right of avoidance did not accrue when the contract for subscription was made in contravention of the old law, but only upon the giving of notice, which did not occur until after the repeal. In the course of his judgment, Keane JA made the following remarks:

Justice of Appeal Keane made the following comments at [119] in respect of that portion of the judgment of Pullin JA in Barminco to which I have referred at [86] above:

What was said by Keane JA in the passage which I have cited at [99] and [100] above, particularly at [110], would tend to suggest that a “right” of the nature of that under consideration in the present case where there is no correlative liability is not an accrued right within the meaning of s 30(1)(c) of the Interpretation Act and did not survive the repeal of the statute. However, as his Honour emphasised, it is necessary to clearly understand the rights which are said to have had accrued. Further, his Honour to some extent qualified his earlier remarks in the following passage (at [122]):

Thus, in the present case, in contrast to the position in Australand, the right to seek reinstatement arose immediately on deregistration or at the latest, when the plaintiff’s claim against the Company had crystallised, which occurred prior to the repeal of the legislation. Whilst there is no correlative liability, the interests of the Company are affected by the exercise of the right as it becomes subject to pre-existing liabilities of the nature of that alleged by the plaintiff.

It seems to me in the present case that the right asserted by the plaintiff is more than a right to approach the Court for the exercise of a discretion in his favour.

In the present case, the effect of the repeal of the Companies (Application of Laws) Act on 1 July 2008 was to deprive the plaintiff of an accrued cause of action against the Company. The plaintiff had suffered damage by at least 2005 because, by October 2005, he had been certified by the Medical Authority appointed under the Workers’ Compensation (Dust Diseases) Act 1942 (NSW) as having contracted silicosis and as having a “dust disease” within the meaning of that Act: see [12] above. The position may be contrasted with cases such as Abbott where the asserted right to take advantage of an enactment was available to all members of the community or a class, nor is it a case such as Australand where the precondition to the accrual of the right was the giving of a notice.

Nor do I think the fact that the Court has to conclude that it is just to order reinstatement alters the position. The determination of whether or not the reinstatement is just requires an evaluative consideration, taking into account matters including the circumstance in which the Company was deregistered, the purpose of the reinstatement, the Company’s solvency, whether any person is likely to be prejudiced, and the public interest generally: see Australian Competition and Consumer Commission v Australian Securities and Investments Commission [2000] NSWSC 316; (2000) 174 ALR 688 at [27]; WorkCover Authority of New South Wales v Picton Truck and Trailer Repairs Pty Ltd [2004] NSWCA 371; (2004) 51 ACSR 102 (“WorkCover Authority (NSW)”) at [25]; In the matter of Likehart Pty Ltd [2017] NSWSC 884 at [21].

Notwithstanding the breadth of the matters which can be taken into account in determining whether the reinstatement is just, it does not seem to me that the case falls in the same class of case as the rights asserted in Colley where the relevant provision conferred no right to a quantifiable order: see Colley at [30]. In the present case, the order is clearly quantifiable, namely, an order reinstating the Company. It should also be noted in Colley that although Giles JA agreed with Handley JA, Mason P at [3] stated that, in his view, discussion of the nature of the power exercised under the relevant provision was inconclusive on the retrospectivity issue.

I do not think the possibility that the Court retains some residual discretion to refuse an order, notwithstanding that the applicant is a person aggrieved and it is just to make the order, affects the position. It is difficult to see how such a discretion could properly be exercised once it was concluded that the applicant was a person aggrieved and it was just to order reinstatement. In WorkCover Authority (NSW), Sheller JA, with whom the other members of the Court agreed, stated that once the circumstances referred to in the later equivalent of s 459(6) of the Code were shown to exist, there was no room for the Court to further exercise a discretion: at [21]-[25]; cf AMP General Insurance Ltd v Victoria WorkCover Authority (2006) 15 VR 175; [2006] VSCA 236 at [19]-[22]. Although it is unnecessary to decide the question, I incline to the view expressed by Sheller JA in WorkCover Authority (NSW), at least in circumstances where reliance is placed solely on the ground that it is just to order reinstatement, as distinct from the ground that the Company was engaging in a business at the time of dissolution.

Nor do I think that s 459(6) of the Code can properly be described as purely procedural. The effect of the order is to reinstate the Company, which then assumes its pre-existing rights and liabilities. That does not seem to me to fall within the rubric of a procedural provision.

In these circumstances, I am of the view that at the time of the repeal of the Companies (Application of Laws) Act on 1 July 2008, the plaintiff had an accrued right as a person aggrieved to seek reinstatement of the Company in aid of his common law claim.

The conclusion which I have reached may be seen to conflict with the decision of Brereton J in Re Rocha (No 2). However, there are important differences in the legislation. In Re Rocha (No 2), Rocha Pty Ltd was dissolved under the provisions of s 307 of the Companies Act. That section empowered the Court in respect of a company which had been dissolved to order the dissolution be declared void on an application made within two years following dissolution by a liquidator or any person who appears to the Court to be interested. That section, unlike s 459(6) of the Code, was not dealing with the reinstatement of companies removed from the register for not carrying on a business or not being in operation. That was dealt with in the Companies Act by s 308(6). Section 308(6) of that Act gave the right to a person who feels aggrieved to apply for reinstatement within 15 years. Section 459(6) of the Code, by contrast, uses the expression a person “aggrieved” as distinct from a person who “feels aggrieved” (see Companies Act s 308(5).

It is not necessary to decide whether a person aggrieved constitutes a narrower class than a person who feels aggrieved. What is clear is that s 459(6) of the Code, in contrast to s 307 in the Companies Act, limits the class of applicants to those whose legal rights and interests have been affected, rather than to a person who appears to the Court to be interested. Unlike the plaintiff in Re Rocha (No 2), the plaintiff in the present case has more than mere locus standi as a person interested to make the application: see Re Rocha (No 2) at [25].

There remains the question of whether the Court has power to extend the period of 15 years prescribed by s 459(6) of the Code to enable the application to be brought. The plaintiff relies on s 539(4)(d) of the Code to extend the 15 year period. Section 539(4)(d) is in the following terms:

Up to the time the co-operative scheme laws were repealed, the plaintiff would have had the right to apply for an extension of time to make the application. The question is whether the Court has power to make such an order in aid of the plaintiff’s accrued right under s 459(6) of the Code following the repeal of this section.

It seems to me that once it is established that the plaintiff had the accrued right to seek reinstatement, the means of enforcing that right, including the making of an application to extend the time, is also saved. Thus, s 539(4)(d) of the Code falls within the framework of the right to be enforced and is saved at least to the extent it is necessary for that purpose. The procedure is sufficiently directly connected with the accrued right to be saved by necessary implication, if that result is not in fact achieved by the closing words of s 30(1) of the Interpretation Act. This approach is consistent with what was said by Kaye J in Sutton v Bradshaw [1988] VR 920. In dealing with the question of whether evidentiary and procedural provisions were saved to enforce an accrued right in that case, his Honour made the following remarks at 925 (Gray J agreeing):

In my opinion, an order should be made pursuant to s 539(4)(d) of the Code extending the time for making an application under s 459(6) of the Code for the reinstatement of the Company up to and including 5 May 2020, and an order that the Company be reinstated pursuant to the provisions of s 459(6) of the Code.

As indicated, the plaintiff has established that he is a person aggrieved. Further, I am satisfied that no substantial injustice is likely to be caused by the making of an order for the purpose of s 539(6) of the Code and it is just to make it.

In that regard, it is to be noted that the evidence established that neither ASIC nor the previous directors of the Company opposed the making of the order. Nor is it opposed by SIRA, which has encouraged the making of the application (see the letter from its solicitors of 24 October 2019 to which I have referred at [9] above). Further, it seems to me in the public interest that an order which gives effect to a worker’s statutory rights is made.

It is also appropriate that an order be made for the winding-up of the Company and that Mr Christopher Darin be appointed liquidator. It seems to me that the appropriate source of the power to wind-up the Company is not to be found in s 459(6) of the Code, but rather in s 461(1)(k) of the Corporations Act as the effect of reinstatement is that the Company is deemed to have continued in existence, and the provisions of the Corporations Act in those circumstances would apply to it.

In an affidavit filed in support of the application, it was sought that the order be made nunc pro tunc from 19 December 2014, the date of the commencement of the Dust Diseases Tribunal proceedings, to ensure the proceedings were effectively commenced against the Company. No argument was addressed as to the power to make such an order. Such orders are commonly made (see, eg, In the matter of Austral Bronze Pty Ltd; In the matter of John Darlington Pty Ltd; In the matter of John Darlington Pty Ltd (No 2) [2020] NSWSC 1633), and there is no apparent reason why such an order should not be made in the present case.

No party has sought any order for costs.

In the result, I would make the following orders:

BELL P: I agree with the reasons of the Chief Justice.

MEAGHER JA: I agree with Bathurst CJ.

PAYNE JA: I agree with Bathurst CJ.

EMMETT AJA: These proceedings are concerned with the reinstatement of the registration of Richards Contracting Co (Management) Pty Ltd (the Company). The registration of the Company was cancelled under s 459(6) of the Companies (New South Wales) Code 1981 (NSW) (the Code) on 29 May 1984. The plaintiff, Mr Petar Zeko, seeks reinstatement of the registration in order to pursue proceedings (the Proceedings) that he has commenced in the Dust Diseases Tribunal of New South Wales (the Tribunal) for recovery of damages from the Company. He claims that he suffered by being exposed to and inhaling silica dust while being employed by the Company between March 1975 and April 1976 and between August 1979 and February 1981.

By statement of claim filed in the Tribunal on 30 September 2019, Mr Zeko commenced the Proceedings against the Company and four other defendants. However, since the registration of the Company has been cancelled, the Company has been dissolved by the operation of s 459(4) of the Code. Accordingly, he cannot proceed against the Company for recovery of damages.

While the Company had no assets at the time of the cancellation of its registration, it had the benefit of a policy of insurance that indemnified it in respect of a claim such as that now being made by Mr Zeko. However, the insurer has itself been dissolved. Nevertheless, there is a mechanism for any entitlement of Mr Zeko to damages to be paid by the State Insurance Regulatory Authority (SIRA), which administers the “Insurers’ Guarantee Fund”, established under s 227 of the Workers Compensation Act 1987 (NSW) (the Compensation Act). The SIRA cannot be sued in its own right but will be liable to pay any damages awarded against the Company, assuming the registration of the Company is reinstated.

Section 459(1) of the Code provided, relevantly, that, where the Corporate Affairs Commission (the Commission) had reasonable cause to believe that a company was not carrying on business or was not in operation, the Commission could send to the company a letter to that effect and stating that, if an answer showing cause to the contrary was not received within one month, a notice would be published in the Gazette with a view to cancelling the registration of the company. Under s 459(2), unless the Commission received an answer within one month, it may publish in the Gazette and send to the company a notice that, at the expiration of three months from the date of that notice, the registration of the company would, unless cause was shown to the contrary, be cancelled and the company would be dissolved. Under s 459(4), at the time of the expiration mentioned in the notice sent under s 459(2), the Commission may, unless cause to the contrary was previously shown, cancel the registration of the company by notice in writing published in the Gazette and, on the publication of that notice, the company was dissolved. The Company was dissolved pursuant to those provisions.

Section 459(6) relevantly provided that, if a person was aggrieved by the cancellation of the registration of a company, the Court, on an application made by that person, at any time within 15 years after the cancellation, could, if otherwise satisfied that it was just that the registration of the company be reinstated, order the reinstatement of the registration of the company. Upon an office copy of that order being lodged with the Commission, the company would be deemed to have been continued in existence as if its registration had not been cancelled.

However, the Companies (Application of Laws) Act 1981 (NSW), which applied the Code in New South Wales, was repealed by the operation of s 4 and Sch 4 of the Statute Law (Miscellaneous Provisions) Act 2008 (NSW) (the 2008 Repealing Act). The question raised in the proceedings is whether s 459(6) of the Code has been impliedly saved, notwithstanding its repeal by the 2008 Repealing Act. Alternatively, Mr Zeko contends, his entitlement as an aggrieved person under s 459(6) of the Code was a right or privilege acquired, accrued or incurred under the Code, such that, by the operation of s 30(1)(c) of the Interpretation Act 1987 (NSW) (the Interpretation Act), the repeal of the Code did not affect that right or privilege. The question is whether there is an implied saving or whether s 30(1)(c) of the Interpretation Act operates.

The course of the replacement of the Code by the Corporations (New South Wales) Act 1990 (NSW) (which applied s 82 of the Corporations Act 1989 (Cth)) (the Corporations Law) and the replacement of the Corporations Law by the Corporations Act 2001 (Cth) (the Corporations Act) and the transitional provisions in relation to those replacements are complex. The registration of a company registered or deemed to be registered under the Code was continued following the enactment of the Corporations Law. Similarly, the registration of a company registered or deemed to be registered under the Corporations Law was deemed to be continued under the Corporations Act. That may have a bearing on the question of whether the repeal of the Code, and, in particular, the repeal of s 459, extinguished any entitlement of Mr Zeko to seek the reinstatement of the registration of the Company.

There is no dispute that Mr Zeko is aggrieved by the cancellation of the registration of the Company. The question is whether, in relation to the Interpretation Act, he had a right or privilege that he had acquired or accrued under the Code. His right to sue the Company was not something that he acquired or accrued under the Code. That right arose under the general law if, as he alleges, the Company was in breach of a duty of care owed to him, the breach of which caused the injury from which he now suffers. Mr Zeko contends, nevertheless, that his entitlement under s 459 to apply for reinstatement of registration is a right or privilege that accrued to him under the Code and that was not affected by the repeal of the Code.

The transitional provisions relating to the replacement of the Code by the Corporations Law are similar to those relating to the replacement of the Corporations Law by the Corporations Act (Div 2 of Pt 10.1), the Corporations Law continued the registration of a company registered or deemed to be registered under the Code. It would be curious that an entitlement to apply for reinstatement of, say, the registration of a company, the registration of which had been cancelled only days before the commencement of the Corporations Law, would be abruptly terminated. In so far as neither the Corporations Law nor the Corporations Act conferred an entitlement to apply for the reinstatement of the registration of the Company, the registration of which had been cancelled under the Code, there is every reason to conclude that the ultimate repeal of the Code was not intended to extinguish that right conferred by the Code.

I have had the advantage of reading in draft form the reasons of the Chief Justice. I agree with his Honour for the reasons given, that, at the time of the repeal of the Code, Mr Zeko was a person aggrieved in so far as he had an accrued right to seek reinstatement of the registration of the Company in aid of his claim for damages at common law. The effect of the cancellation was to deprive Mr Zeko of his accrued cause of action against the Company. Up to the time of the repeal of the Code, Mr Zeko would have had the right to apply for an extension of time to make an application for reinstatement. That right is more than a mere right to approach the Court for the exercise of a discretion in his favour.

I also agree with the Chief Justice that, once it is established Mr Zeko had the accrued right to seek reinstatement of the registration of the Company, the means of enforcing that right, including the making of an application to extend the period of 15 years prescribed by s 459(6), was also saved. Section 539(4)(b) of the Code relevantly provided that the Court may, on application by any interested person, make an order extending the period for instituting or taking any proceeding under the Code (including an order extending a period where the period concerned expired before the application for the order was made) and may make such consequential or ancillary orders as the Court thinks fit. Section 539(4)(d) falls within the framework of the right to apply under s 459(6) and was saved at least to the extent that is necessary for that purpose. The procedure is sufficiently directly connected with the accrued right to be saved by necessary implication if not by s 30(1) of the Interpretation Act.

I agree with the Chief Justice that an order should be made pursuant to s 539(4)(d) extending, up to and including 5 May 2020, the time for making an application, under s 459(6) of the Code, for the reinstatement of the registration of the Company and that an order should be made that the Company be reinstated pursuant to s 459(6). It is also appropriate that an order be made for the winding-up of the Company and that a liquidator be appointed.