In the matter of Skenews Pty Limited

1. [1]

   The plaintiff, Mr Polewski, has sued his former employer, Skenews Pty Limited (formerly known as Skilled Engineering (Contract Labour) Pty Ltd), in the Dust Diseases Tribunal of New South Wales. He contends in those proceedings that he was exposed to asbestos during the course of his employment, which was from 20 August 1975 to 10 September 1977. He claims to suffer from mesothelioma as a result of that exposure and has a limited life expectancy.

2. [2]

   Skenews was deregistered on 27 February 1981 pursuant to s 308 of the Companies Act 1961 (NSW). In the proceedings in this Court, Mr Polewski seeks orders that Skenews be reinstated. The reinstatement is sought to serve the limited purpose of permitting him to pursue the proceedings in the Dust Diseases Tribunal in order to seek to secure some recovery from Skenews’ former workers compensation insurer.

3. [3]

   The Australian Securities and Investments Commission does not oppose the orders for reinstatement and did not appear at the hearing.

The legislative basis for the application

1. [4]

   The application is made under the Companies Act 1961. Section 601AH of the Corporations Act 2001 (Cth) is the current law providing for reinstatement, but it does not confer power to reinstate companies that were deregistered under the Companies Act 1961: see In the matter of Richards Contracting Co Management Pty Ltd (2021) 104 NSWLR 385; [2021] NSWCA 34 at [73] (per Bathurst CJ; Bell P, Meagher JA, Payne JA and Emmett AJA agreeing). This gives rise to some complexities.

2. [5]

   Mr Polewski relies in the alternative on s 307 and s 308 of the Companies Act 1961. At the time of repeal on 1 July 2008, s 307(1) provided:

3. [6]

   At the time of repeal, section 308(1)-(5) provided:

4. [7]

   Mr Polewski seeks an order under s 308(5) that the name of Skenews be restored to the register.

5. [8]

   In order to secure relief under either s 307 or s 308, Mr Polewski needs to establish that at the time of the repeal of the Companies Act 1961, his right to seek relief had accrued. That would engage s 30(1)(c) of the Interpretation Act 1987 (NSW), which provides as follows:

6. [9]

   In either case, Mr Polewski also requires an order under s 366(4) of the Companies Act 1961 to enlarge the time for the making of an application. That section provides:

7. [10]

   The question of whether Mr Polewski had accrued rights under either or both s 307(1) and s 308(5) is not straightforward.

Relief under s 307 of the Companies Act 1961

1. [11]

   Mr Polewski’s claim for relief under s 307(1) appears to be inconsistent with the decisions of Brereton J in In the matter of Rocha Pty Ltd (Deregistered) [2016] NSWSC 899; 114 ACSR 89 and In the matter of Rocha Pty Ltd (No 2) [2016] NSWSC 1172; 312 FLR 309. Those proceedings concerned a company that had been dissolved pursuant to s 308(4) of the Companies Act 1961. An application was made by Mr Amar, who had held 5 of the 6 issued shares and had been a director of the company. At the time the company was dissolved, it was the owner of real property in Hamilton. That property vested in the NSW Corporate Affairs Commission upon deregistration of the company and subsequently vested in ASIC. Mr Amar sought relief under s 307 for a declaration that the dissolution be declared void and for the Hamilton property to revest in the company. Brereton J dismissed the application.

2. [12]

   In Rocha (No 2), Brereton J gave close consideration to whether Mr Amar had an accrued right under s 307 at the time of the repeal of the Companies Act 1961 that had been preserved by s 30(1)(c) of the Interpretation Act. Key parts of his Honour’s conclusion are as follows (footnotes omitted):

3. [13]

   Mr Polewski also submitted that the reasoning of the Court of Appeal in Richards is in “direct opposition” to the key reasoning of Brereton J in Rocha (No 2). I took this as a submission that Rocha (No 2) has been relevantly overruled. It was also submitted that Rocha (No 2) can be distinguished.

4. [14]

   Richards was a case concerning an application under s 459(6) of the Companies (New South Wales) Code 1981 (NSW). That application (like the current application) was made to enable the plaintiff to prosecute proceedings in the Dust Diseases Tribunal. Section 459(6) of the Code relevantly provided:

5. [15]

   Key parts of the reasoning of Bathurst CJ in Richards are in the following paragraphs:

6. [16]

   Bathurst CJ then addressed the decision in Rocha (No 2) in the following terms:

7. [17]

   Richards and Rocha (No 2) could, potentially, be distinguished on 2 bases. One basis is that the language of s 459(6) of the Code is materially different to that of s 307 of the Companies Act 1961, with the consequence that a person who could make an application under s 459(6) accrued a right that could be preserved by s 30(1)(c) of the Interpretation Act, while a person who could make an application under s 307 merely has standing and accrues no right that could be similarly preserved. A different basis to distinguish the cases is that the plaintiff in Richards had an underlying common law right to damages, unlike the plaintiff in Rocha (No 2), and that underlying common law right was the thing that meant that the plaintiff had an accrued a right to reinstatement, because the right to reinstatement was an aid to the common law right.

8. [18]

   The distinction may be critical in this case. That is because if the difference lies in the language and character of s 459(6) and s 307, then Mr Polewski has no accrued right, because s 307 was not a source of any relevant rights. But if the difference lies in the existence of an accrued common law right that may be aided by reinstatement, then Mr Polewski may have had an accrued right to relief under s 307 when the section was repealed.

9. [19]

   It is difficult to read the Chief Justice’s reasons in Richards other than distinguishing Rocha (No 2) on the basis of differences in the language in s 459(6) of the Code compared with s 307 of the Companies Act 1961. His Honour expressly referred to “important differences in the legislation” (at [110]) and addressed the contrast (at [110] and [111]). In Richards, the plaintiff was “aggrieved” within the meaning of s 459(6) of the Code because the cancellation of the company’s registration affected his legal right to pursue his accrued common law claim for damages. That placed him in the limited class of applicants who could seek relief under s 459(6) of the Code. The question of whether a person is “aggrieved” does not arise in the application of s 307 of the Companies Act 1961. A person’s rights under s 307 are not different depending on whether the person is “aggrieved”.

10. [20]

    There cannot be any doubt that the language of s 459(6), and in particular the words “If a person is aggrieved”, were significant to the result in Richards. While I am bound by Richards, I recognise that there may be an argument that the distinction in the concepts of a person who is “aggrieved” within the meaning of s 459(6) of the Code and a person who is “interested” within the meaning of s 307 of the Companies Act 1961 may be slender to the point of insignificance.

11. [21]

    In 1985, the Australian Law Reform Commission published its report on “Standing in Public Interest Litigation”. The report includes a section that considers formulas used in legislation to confer standing. At [140], the report considered the formula “person aggrieved”. It noted that the statutory language was once read narrowly, but that “a distinctly more liberal approach is now taken”. The report referred to Attorney-General of the Gambia v N'Jie [1961] AC 617 as the source of the more liberal approach, reflected in the proposition that a person is aggrieved if they have a genuine grievance because an order has been made which prejudicially affects their interests. It must also be recognised that the concept of a “person aggrieved” appears in many statutory contexts, and it is always important to address the language in context of the statute under consideration: see Argos Pty Ltd v Corbell, Minister for the Environment and Sustainable Development (2014) 254 CLR 394; [2014] HCA 50, including at [59] per Hayne and Bell JJ.

12. [22]

    The ALRC report also considered contexts where the formula “person interested” is used. One context where this language was used was in the Conciliation and Arbitration Act 1904 (Cth) (repealed). Section 143(1) of that Act provided that: “any organisation or person interested… may apply to the court for an order directing the cancellation of the registration of an organisation”. In Metropolitan Coal Co of Sydney Ltd v Australian Coal & Shale Employees Federation (1917) 24 CLR 85; [1917] HCA 64, Barton J observed that the term “persons interested” (at 91-92):

13. [23]

    If in order to be a person “interested” under s 307, the person had to demonstrate “a direct and absolute pecuniary or proprietary interest” in the dissolution, such a person would also likely be a person “aggrieved” by the dissolution.

14. [24]

    In The Bell Group Ltd (In Liq) v Australian Securities and Investments Commission [2018] FCA 884; 128 ACSR 247, McKerracher J made the following observations (at [50]):

15. [25]

    Where the line is to be drawn between a person who is “aggrieved” and one who is merely “interested” is difficult to say. However, I do not have to resolve this question. I accept that there is an argument that Rocha (No 2) is hard to reconcile with Richards. However, in circumstances where the Court of Appeal in Richards distinguished Rocha (No 2) and did not expressly overrule it, I consider that I should follow Rocha (No 2). That decision, as explained in Richards, compels the conclusion that a person who could have made a claim under s 307 of the Companies Act 1961, because they appeared to the Court “to be interested”, did not secure an accrued right that was preserved by s 30(1)(c) of the Interpretation Act. The fact that the person’s interest is engaged because the dissolution affected their common law rights does not change things. The relevant point is that s 307 only confers a procedural right to make an application: it confers standing, not an accrued right.

16. [26]

    The result is that Mr Polewski has no right to seek relief under s 307 of the Companies Act 1961.

Relief under s 308 of the Companies Act 1961

1. [27]

   The decision in Richards provides more assistance to Mr Polewski in his alternative claim for relief under s 308 of the Companies Act 1961. The decision in Richards, however, it not necessarily determinative. As I have noted, a difference in the language used in s 459(6) of the Code and s 308(5) of the Companies Act 1961, is that s 459(6) uses the words “If a person is aggrieved…”, whereas s 308(5) uses the words “If any person feels aggrieved…”

2. [28]

   In Richards, Bathurst CJ stated that it was not necessary to decide whether a person aggrieved constitutes a narrower class than a person who feels aggrieved (at [111], see above). Given that Mr Polewski’s application is made under s 308, it is necessary for me to consider whether the difference in language means that a different result follows.

3. [29]

   In theory at least, the words “a person [who] is aggrieved” could be both wider and narrower than the words “any person who feels aggrieved”. That is because a person potentially could feel aggrieved but not be aggrieved in fact. Conversely a person could be aggrieved in fact but have no knowledge of that fact, and so not feel aggrieved.

4. [30]

   The phrase “person feels aggrieved” (or similar) has been used various statutes in diverse circumstances. In National Trust of Australia (Vic) v Australian Temperance and General Mutual Life Assurance Society Ltd [1976] VR 592, the Full Court made the following observations at 604:

5. [31]

   The decision in National Trust of Australia (Vic) v Australian Temperance and General Mutual Life Assurance Society Ltd was considered in the context of an application under s 308(5) by Needham J in Re Prosperine and the Companies Act [1980] 1 NSWLR 745. His Honour observed (at 12]):

6. [32]

   In the ALRC’s report on Standing in Public Interest Litigation, it was stated that provisions that confer “standing on a ‘person who feels aggrieved’, are usually treated as interchangeable with ‘person aggrieved’” (at [140]).

7. [33]

   This is consistent with the decision in Day v Hunter [1964] VR 845. Herring CJ, Sholl and Adam JJ considered s 155(1) of the Justices Act 1958 (Vic), which provided that: "Where any person who feels aggrieved by the summary conviction or by any order of any court of petty sessions…” Their Honours noted that these words were “clearly intended to exclude from the operation of the section the common informer and other busybodies, who have no real or direct interest in the proceedings in which the decision sought to be reviewed was given, and to prevent them from intermeddling officiously therein” (at 847). This clear statutory intention would not be fulfilled if the use of the word “feels” directed attention to a person’s subjective state of mind, rather than to the objective establishment of grievance.

8. [34]

   The decision of Neeham J in Re Formcrete Services Pty Ltd (1976) 2 ACLR 46 is another case where no relevant distinction was drawn between a person who feels aggrieved and a person who is aggrieved (at 48).

9. [35]

   Some further support comes from Maurice v London County Council [1964] 2 QB 362. The Court in that case was concerned with statutory language expressed in terms of a person “who may deem himself aggrieved”, which is similar to “feels aggrieved”. Lord Denning MR stated that he regarded the words “person who shall deem himself aggrieved” as being the same as the words “person aggrieved” (at 378). Pearson LJ observed that: “Evidently the word “deem” is used because, when she launches her appeal, she can only have an opinion that she is aggrieved” (at 381). His Lordship went on to observe, in effect, that in order to succeed, the appellant had to show that she was aggrieved; that is, the opinion was shown to be true in an objective sense and not merely in a subjective way.

10. [36]

    I doubt whether persons who are aggrieved constitutes a narrower or wider class than persons who feel aggrieved. I consider that the concepts are the same, with legislatures now preferring the tighter language of “person aggrieved” but relevantly to no different effect.

11. [37]

    For present purposes, it is sufficient for me to conclude that the difference in language between s 308(5) of the Companies Act 1961 and s 459(6) of the Code does not mean that the conclusions drawn in Richards concerning s 459(6) do not apply with equal force to s 308(5).

12. [38]

    It follows that if Mr Polewski had a right to seek reinstatement of Skenews when the Companies Act 1961 was repealed in 2008, that was an accrued right that was preserved by s 30(1)(c) of the Interpretation Act.

13. [39]

    In Richards, Bathurst CJ held that the plaintiff’s right to seek reinstatement arose immediately on deregistration, or at the latest, when the plaintiff’s claim against the company had crystallised (at [102], see above). In Richards, both of those things occurred prior to the repeal of the Code. Bathurst CJ concluded that the plaintiff had suffered damage by at least 2005 because in October 2005, he had been certified as having contracted silicosis and as having a dust disease within the meaning of the relevant Act (at [104]). The Code was repealed on 1 July 2008.

14. [40]

    In this case, Mr Polewski first became aware that he was suffering from a dust disease around August 2025. This was long after the Companies Act 1961 was repealed. Thus, in Mr Polewski’s case, unlike in Richards, there may be an issue about whether a right to reinstatement had not arisen at the time of repeal because Mr Polewski was unaware, at the time of repeal, that he had suffered any damage.

15. [41]

    In Alcan Gove Pty Ltd v Zabic (2015) 257 CLR 1; [2015] HCA 33, the High Court considered the time when a cause of action in negligence for damages for mesothelioma accrued. The Court observed (footnotes omitted):

16. [42]

    Having regard to the decision in Alcan Gove v Zabic, in the present case, I can comfortably conclude that Mr Polewski had suffered damage (even if he did not know it) at the time Skenews was deregistered in 1981, and in any event, at a time before the Companies Act 1961 was repealed on 1 July 2008.

17. [43]

    A question could arise as to whether Mr Polewski was aggrieved on 1 July 2008 in circumstances where there were no symptoms of any dust disease. A more acute, but more relevant, question might be whether he could have felt aggrieved.

18. [44]

    I accept that at the time of the repeal, Mr Polewski was, objectively, aggrieved because the deregistration affected his right to seek relief from Skenews (or its insurer) in respect of his common law claim for damages. By the time of repeal, he had suffered damage, even if he did not know it. At that time, the deregistration of Skenews affected his right to sue a past employer for wrongs suffered when he was an employee, including because he had been exposed to dust. Nor would it matter whether he was aware or not that Skenews had been removed from the register. In Richards, there was no inquiry into whether the plaintiff was aware on 1 July 2008 that the company had been deregistered. It did not matter in that case that the plaintiff may have been unaware at the time of repeal of the matter that occasioned grievance, being the deregistration of the company that wronged him.

19. [45]

    I also accept that as at 1 July 2008, Mr Polewski could properly have felt aggrieved, within the meaning of s 308(5) of the Companies Act 1961, by the name of Skenews having been struck off the register. I am prepared to infer, for the purposes of this application, that as at 1 July 2008, Mr Polewski was aware that he had worked as an employee of Skenews as a fitter, including at an asbestos mine, and that he had been exposed to and inhaled asbestos dust and fibre. He was at risk of mesothelioma. In any event, for reasons I have addressed, I consider that the issue is properly framed in terms of whether Mr Polewski was aggrieved, and that question invites an objective inquiry. It is sufficient that, as at 1 July 2008, his ability to enforce his common law rights against Skenews had been damaged or destroyed by the deregistration.

20. [46]

    Accordingly, Mr Polewski had an accrued right to seek reinstatement of Skenews under s 308(5) at the time of repeal. He retains that right.

21. [47]

    Section 308(5) of the Companies Act 1961 confers power on the Court to order that the name of a company be restored to the register on an application made within 15 years of the date that the company’s name was struck from the register. In this case, that time expired in February 1996. As I have noted, s 366(4) confers power on the Court to enlarge that time. Having established an accrued right to seek reinstatement, the means of enforcing that right, including by an application to extend time, is also saved: Richards at [114].

22. [48]

    In my view, an order should be made under s 366(4) of the Companies Act 1961 extending the time for the making of an application under s 308(5) for the reinstatement of Skenews up to 5 February 2026 (being the date these proceedings were commenced). There should also be an order that Skenews be reinstated pursuant to s 308(5).

23. [49]

    I take into account:

24. [50]

    It is appropriate that an order be made to wind up Skenews. That will enable the object of the application by Mr Polewski to be achieved but without creating unnecessary burdens on anyone. Mr Andrew Juzva has consented to be appointed as liquidator.

25. [51]

    It is also appropriate that I make orders dispensing with the notification and advertising requirements as well as the requirement to submit a report as to affairs pursuant to s 467(3) of the Corporations Act. In the circumstances of this case, those requirements would serve no useful purpose and would merely involve wasted expenditure: see Bell Group v ASIC at [95] and Re HIH Insurance Limited (in liquidation) [2020] NSWSC 803 at [38]-[44].

26. [52]

    I will also make other ancillary orders, consistently with what was done in Shaw v Goodsmith Industries Pty Ltd (formerly Newbold General Refractories Ltd) [2002] NSWSC 406; 41 ACSR 556, In the matter of Austral Bronze Pty Limited; In the matter of John Darlington Pty Ltd; In the matter of John Darlington Pty Ltd (No 2) [2020] NSWSC 1663; 149 ACSR 221 and Richards.

Orders

1. [53]

   I make orders as follows:

   1. (1)

      Order pursuant to s 366(4) of the Companies Act 1961 (NSW) that the time for the plaintiff to make any application under s 308(5) of the Companies Act 1961 (NSW) for the reinstatement of Skenews Pty Limited (formerly Skilled Engineering (Contract Labour) Pty Limited) ACN 001 258 760 be extended up to and including 5 February 2026.

   2. (2)

      Order that the second defendant (Australian Securities and Investments Commission) reinstate the registration of Skenews Pty Limited (formerly Skilled Engineering (Contract Labour) Pty Limited) ACN 001 258 760 pursuant to section 308(5) of the Companies Act 1961 (NSW).

   3. (3)

      Order pursuant to s 467(3) of the Corporations Act 2001 (Cth) that all notification and advertising requirements relating to an application for the winding up of Skenews Pty Limited (formerly Skilled Engineering (Contract Labour) Pty Limited) ACN 001 258 760 are dispensed with.

   4. (4)

      Order that Skenews Pty Limited (formerly Skilled Engineering (Contract Labour) Pty Limited) ACN 001 258 760 be wound-up pursuant to s 461(1)(k) of the Corporations Act 2001 (Cth) and that Mr Andrew Juzva of GS Andrews Advisory be appointed liquidator.

   5. (5)

      Order pursuant to s 467(3) of the Corporations Act 2001 (Cth) that the requirements of s 475 of the Corporations Act 2001 (Cth) and r 70-40 of the Insolvency Practice Rules (Corporations) 2016 (Cth) ordinarily applicable upon the making of winding up orders be dispensed with in the case of Skenews Pty Limited (formerly Skilled Engineering (Contract Labour) Pty Limited) ACN 001 258 760.

   6. (6)

      Order that the plaintiff has leave nunc pro tunc to proceed with the Dust Diseases Tribunal of New South Wales proceeding number 2025/340366 at Sydney against Skenews Pty Limited (formerly Skilled Engineering (Contract Labour) Pty Limited) ACN 001 258 760 and be effective from 4 September 2025.

   7. (7)

      Order that no step to enforce any judgment or verdict obtained in the Dust Disease Tribunal of New South Wales in the proceedings 2025/340366 shall be taken by the plaintiff as against the first defendant, otherwise than by resort to the proceeds of insurance, without the further leave of the Court.

   8. (8)

      Order that the costs of this application and these proceedings be costs in the proceedings 2025/340366 in the Dust Diseases Tribunal of New South Wales.