In the matter of Austral Bronze Pty Limited;; In the matter of John Darlington Pty Limited;; In the matter of John Darlington Pty Limited (No 2)

1. [1]

   The legal personal representatives of the Estates of two employees who commenced proceedings in the Dust Diseases Tribunal of New South Wales (the claimants) seek orders under section 601AH of the Corporations Act 2001 (Cth) to reinstate the registration of two employer companies – Austral Bronze Co Pty Limited and John Darlington Pty Limited – together with ancillary orders to validate the commencement of the Tribunal proceedings nunc pro tunc. (Nunc pro tunc means “now for then”, when an order is to be effective from an earlier date than when the order is entered.) The reinstatements and, more particularly, the ancillary orders are opposed by the companies’ insurer, Allianz Australia Insurance Limited.

2. [2]

   The significance of the ancillary orders sought is that, when the Tribunal proceedings were commenced, the employer companies named as defendants were (and are) deregistered. The employees died shortly after commencement of the proceedings and, save for the potential operation of section 12B(2) of the Dust Diseases Tribunal Act 1989 (NSW), their entitlement to claim general damages died with them. If the companies are reinstated with the ancillary orders sought, the claimants may be entitled to claim general damages. The parties agreed that claims for general damages typically constitute around 60% to 70% of the value of a claim in the Tribunal, with general damages in mesothelioma cases usually in the order of $350,000 to $400,000.

3. [3]

   Of course, it is not necessary to reinstate a company if all that is sought to be achieved by reinstatement is to access the company’s insurance policy. Section 601AG of the Corporations Act provides:

4. [4]

   But proceeding down this path will not enable the claimants to seek general damages and, thus, the applications for reinstatement have been brought. The questions to be determined are:

5. [5]

   The claimants read affidavits by their solicitor, Joanne Wade, who described the circumstances in which the Tribunal proceedings were commenced and the nature of the claims. Ms Wade proffered an undertaking that the claimants will not attempt to execute any judgment obtained in the Tribunal against the company itself but will only seek to execute any judgment against the insurer. Ms Wade also added that discovery and interrogatories are important forensic tools in Tribunal proceedings which are not available when proceedings are brought against insurers directly rather than against the employer company. The insurer read affidavits by its solicitor, Nicholas Prentice. There was no cross-examination.

6. [6]

   The Australian Securities and Investments Commission (ASIC) does not oppose the reinstatement of either company as long as a liquidator is appointed to each company. David Mansfield of Deloitte has consented to be appointed liquidator to each company.

Mr Fletcher and Austral Bronze

1. [7]

   Austral Bronze Co Pty Limited was incorporated in 1920. Barry Fletcher was employed by the company from 1960 to 1963. Allianz was the company’s indemnity insurer at all relevant times. In 1996, Peter McGee was appointed as liquidator to Austral Bronze and, on 26 September 1997, the company was deregistered under section 509 of the Corporations Law, which provided for a company to be dissolved on the conclusion of a voluntary winding up.

2. [8]

   In September 2019, Barry Fletcher was diagnosed with mesothelioma. On 20 December 2019, Mr Fletcher and his de facto wife, Kathleen Comerford, called a solicitor, Breanna Goodlock, who obtained an employment history from Mr Fletcher, including that he had been exposed to asbestos while working for Austral Bronze. Later that day, Ms Wade filed a statement of claim in the Tribunal against first defendant, described as “Austral Bronze Co Pty Ltd (Deregistered on 26 September 1997)”, and another defendant, Wallaby Grip Limited. Given Mr Fletcher’s parlous condition, Ms Wade was anxious to commence proceedings in order to preserve the entitlements of Mr Fletcher and his Estate to non-economic loss pursuant to section 12B of the Dust Diseases Tribunal Act. Although the proceedings nominated a company that had been deregistered, Ms Wade believed that the proceedings could subsequently be regularised by the reinstatement of the company in order to allow the claim against the company to proceed.

3. [9]

   On 21 December 2019, Ms Wade met with Mr Fletcher and prepared a handwritten statement, which he signed. An amended statement of claim was filed that day to include a claim for damages under section 15B of the Civil Liability Act 2002 (NSW) in respect of the loss of his ability to care for his disabled daughter. On 28 December 2019, Mr Fletcher passed away. Ms Comerford has since been appointed as legal personal representative of the Estate in the Tribunal proceedings, and an amended statement of claim has been filed accordingly.

4. [10]

   At the time of Mr Fletcher’s death, Ms Wade was not aware of the identity of the relevant insurer for Austral Bronze, nor was Mr Fletcher able to assist her in that regard. In January 2020, Ms Wade made further enquiries in respect of the insurer and Allianz confirmed that it was the relevant insurer. Allianz admits that it is obliged to indemnify Austral Bronze in respect of the claim by Ms Comerford.

Mr Viksne and John Darlington

1. [11]

   From 1969 to about 1979, John Viksne worked for Millard Caravans Pty Limited (later called John Darlington Pty Limited) until his employment was transferred to Viscount Caravans Pty Ltd. AAI Limited was the indemnity insurer for Viscount Caravans. In 2013, David Mansfield was appointed as liquidator to Viscount Caravans and, on 10 November 2013, the company was deregistered. Allianz was the indemnity insurer for John Darlington until 30 June 1979. On 20 May 2015, John Darlington was deregistered.

2. [12]

   In July 2019, Mr Viksne was diagnosed with mesothelioma. On 17 July 2019, Mr Viksne’s wife, Beverley Viksne, called Ms Wade and said that her husband’s doctor had told her yesterday that Mr Viksne was suffering from mesothelioma and his condition was palliative. Mr Viksne was an inpatient at Liverpool Hospital. Mrs Viksne advised, “He was exposed to asbestos and inhaled asbestos during his working life for a number of his employers, as well as during a home renovation”. Ms Goodlock was dispatched to Liverpool Hospital to gain further instructions but, due to Mr Viksne’s deteriorating condition, Ms Goodlock was unable to speak to Mr and Mrs Viksne.

3. [13]

   Ms Wade formed the view that proceedings should be commenced by Mr Viksne in the Tribunal without delay in order to preserve the right of Mr Viksne and his Estate to claim general damages. A statement of claim was filed that day against “John Darlington Pty Limited (Deregistered on 20 May 2015)”, “Viscount Caravans Pty Limited (Deregistered on 26 July 1996)” and Amaca Pty Limited. Although the proceedings nominated two companies that had been deregistered, Ms Wade believed that this could be subsequently regularised by the reinstatement of the companies in question.

4. [14]

   The next day, 18 July 2019, Mr Viksne passed away. On 19 July 2019, Ms Wade was informed of Mr Viksne’s death. At that stage, Ms Wade did not know who the employers’ indemnity insurer was for either John Darlington or Viscount Caravans, there being no central register to allow her to search for the companies’ insurer. Mrs Viksne was not able to provide Ms Wade with any details in this regard. In August 2019, Ms Wade began to make enquiries of the State Insurance Regulatory Authority of New South Wales, Allianz and other insurance companies to ascertain who were the insurers on risk during the period of Mr Viksne’s employment with John Darlington or Viscount Caravans. On 3 August 2019, AAI’s solicitor advised that its legacy company, GIO General Limited, insured Viscount Caravans as at 31 December 1984 and, on 9 December 2019, Allianz confirmed that Allianz was the relevant insurer of John Darlington up to 30 June 1979. Allianz admits that it is obliged to indemnify John Darlington, at least until 30 June 1979, in respect of the claim against the company by Mrs Viksne.

5. [15]

   On 16 December 2019, Mrs Viksne was appointed by the Tribunal as the legal personal representative of her husband’s Estate and an amended statement of claim was filed accordingly. On 13 January 2020, Mrs Viksne filed a motion in the Tribunal proceedings seeking leave under sections 4 and 5 of the Civil Liability (Third Party Claims Against Insurers Act 2017 (NSW) to commence and continue proceedings against Allianz and AAI directly. A proposed second amended statement of claim was proffered, replacing the John Darlington with Allianz and Viscount Caravans with AAI. Allianz consents to the orders sought by the motion, that is, for Mrs Viksne to sue Allianz directly. However, Mrs Viksne decided not to move on the motion but, instead, to have the companies reinstated.

These proceedings

1. [16]

   In February 2020, the plaintiffs’ solicitors sent letters to the directors of Austral Bronze and John Darlington at the time when the companies were deregistered, advising that the plaintiffs intended to reinstate the companies. None of the directors replied. In March 2020, Ms Comerford commenced proceedings seeking to reinstate Austral Bronze; Mrs Viksne commenced proceedings seeking to reinstate John Darlington and Viscount Caravans.

2. [17]

   In respect of Viscount Caravans, AAI did not oppose the orders sought and, on 8 May 2020, Black J made the orders for reinstatement unopposed, including:

3. [18]

   Allianz opposes the orders sought in respect of Austral Bronze and John Darlington. Allianz was granted leave to be heard in the proceedings as an interested person. In April 2020, Allianz also commenced proceedings seeking declarations that each of the Tribunal proceedings “were not section 12B(2) proceedings” against the companies prior to the death of Mr Fletcher or Mr Viksne respectively. Further, a declaration is sought that the reinstatement of the companies “does not retroactively convert” the Tribunal proceedings into section 12B(2) proceedings against the companies prior to the death of Mr Fletcher or Mr Viksne.

Companies deregistered before section 601AH and the Corporations Act 2001

1. [19]

   As mentioned, Austral Bronze was dissolved on 26 September 1997 under section 509 of the Corporations Law. John Darlington was deregistered on 20 May 2015 under the Corporations Act 2001. Whilst the claimants’ submissions did not address this, the insurer submitted that the Court's power in relation to Austral Bronze was derived from section 1408(1) of the Corporations Act, the effect of which was to cause former section 1362CH of the Corporations Law to have effect as part of the Corporations Act 2001: Shaw v Goodsmith Industries Pty Ltd (2002) 41 ACSR 556; [2002] NSWSC 406 at [8]. The insurer submitted that the difference in the source of power in respect of Austral Bronze and John Darlington did not matter in the resolution of the questions presented in these proceedings. The insurer’s concession is correct but perhaps for a different reason than given.

2. [20]

   Many cases on this complicated subject concern companies which were deregistered under:

3. [21]

   Whilst the case law has taken some twists and turns, for companies deregistered before the Corporations Law, the courts have proceeded on the basis that section 601AH of the Corporations Act 2001 does not apply. Such dissolved companies may be reinstated under the legislation under which they were dissolved, the operation of which in some respects survived the successor legislation: Jury & Spiers at [11]. Significant disquiet has been expressed by Barrett J in Tan v ASIC and Brereton J in Re Rocha and Jury & Spiers about continuing to resort to superseded legislation which has itself since been repealed. Their Honours both called for legislative reform, which has not occurred. The correctness of these authorities was referred by Black J to the Court of Appeal, heard by five justices on 12 November 2020 in In the matter of Richards Contracting Co Pty Ltd (2020/133642) and stands reserved.

4. [22]

   This case is potentially simpler as Austral Bronze was deregistered under the Corporations Law, as was Danich Pty Ltd Re Cenco Holdings Pty Ltd (2005) 53 ACSR 484; [2005] NSWSC 293. Cases considering the availability of the section 601AH jurisdiction in relation to companies deregistered under the companies’ codes have been said to be of no real assistance here: Danich Re Cenco Holdings at [9].

5. [23]

   The Corporations Law commenced on 1 January 1991. Austral Bronze was deregistered in 1997. At that time, section 509(1) of the Corporations Law provided that, as soon as the affairs of a company in voluntary liquidation had been fully wound up, the liquidator would prepare an account showing how the winding up had been conducted and the company’s property disposed of. The liquidator was to lay the account before a general meeting of the company or, in the case of a creditor’s voluntary winding up, a meeting of creditors. After the meeting, the liquidator was required to lodge a return of the holding of the meeting and a copy of the account: section 509(3). Three months after lodging the return, the company was dissolved: section 509(5).

6. [24]

   The Court had power to declare the dissolution of a company void under section 571(1), which provided: (emphasis added)

7. [25]

   The Australian Securities Commission (ASC) had power to deregister a defunct company under section 574(1), either on its own volition (section 572) or on the application of the company, a member of the company or any other interested person (section 573). As to reinstatement, section 574 provided:

8. [26]

   As Austral Bronze was dissolved under section 509, the Court had power to declare the dissolution void under section 571(1). As far as can be told, Austral Bronze was not deregistered by the ASC, nor was its registration cancelled as a result of any error on the part of the ASC, and thus the ASC did not have power to reinstate its registration under section 574(2). The Court, however, had power to reinstate the registration of the company under section 574(3) and make ancillary orders under section 574(5).

9. [27]

   On 1 July 1998, the Company Law Review Act 1998 (Cth) repealed sections 571 and 574 of the Corporations Law and added section 601AH:

10. [28]

    Two differences between section 601AH and the former section 574 will be immediately noted: first, the ASC’s power to reinstate the registration of a company was expanded beyond correcting its own errors; second, rather than the Court ordering the reinstatement of the registration of the company, the Court may now “make an order that the ASC reinstate the registration”. As the Explanatory Memorandum to the Company Law Review Bill 1997 explained:

11. [29]

    Thus, the Explanatory Memorandum indicated that the intention of the legislature was to expand the ASC’s power to reinstate the registration of companies, and to empower the ASC to use its expanded power in respect of companies which had been deregistered before such powers had been conferred. That is, the ASC’s new powers had retrospective effect. So far as the Court’s powers were concerned, the Explanatory Memorandum indicated that such powers continued unabated or “preserved”.

12. [30]

    The Company Law Review Act 1998 also added Part 11.1, “Introduction of the Corporations Law” to the Corporations Law. In Part 11.1, section 1362CA provided:

13. [31]

    Austral Bronze was incorporated before 1 January 1991. It was incorporated in New South Wales in 1920, which must mean that its existence as a legal entity was created by the Companies Act 1899 (NSW): Shaw v Goodsmith Industries at [3] per Barrett J. Chapter 2 of the Corporations Law, as at 1 January 1991, entitled “Constitution of Companies”, concerned the registration of corporations. Thus, it is tolerably clear that Austral Bronze was an “Existing company” to which Part 11.1 of the Corporations Law applied.

14. [32]

    Also in Part 11.1, section 1362CH of the Corporations Law provided:

15. [33]

    “Commencement” here meant (section 9, Corporations Law): (emphasis added)

16. [34]

    Austral Bronze was deregistered before “commencement”. Thus, ASIC’s powers under section 601AH of the Corporations Act 2001 extended to reinstatement of Austral Bronze under the Corporations Law. The power sought to be exercised here, however, is not ASIC’s power to reinstate a company but the Court’s power to order ASIC to do so. Of this, Barrett J observed in Shaw v Goodsmith Industries, at [9]-[11]:

17. [35]

    In evidence in Shaw v Goodsmith Industries was a letter from ASIC stating that it would not oppose the application if certain conditions were satisfied, including a condition that the orders sought were couched in terms of section 601AH(2), requiring ASIC to reinstate the registration of the company. Barrett J inferred that ASIC was willing to exercise the power of reinstatement in relation to the company if the conditions envisaged by section 601AH(2) were satisfied.

18. [36]

    Mahony SM strongly disagreed with Barrett J’s analysis in City West Water v Mr D Investments, at [18]-[23]:

19. [37]

    After extracting the portions of the Explanatory Memorandum already set out in this judgment at [28], Mahony SM continued at [23]:

20. [38]

    In Baird v W J T Howes Investments, Barrett J said, at [8]:

21. [39]

    The “observation made at paragraph [27] of the judgment in City West Water” concerned the meaning of “commencement”, referred to at [33] of this judgment. Barrett J did not, in Baird v W J T Howes Investments, refer specifically to Mahony SM’s analysis of what was meant by “ASIC’s powers” but appears to have accepted that analysis as correct. This particular point of difference between Barrett J in Shaw v Goodsmith Industries and Mahony SM in City West Water v Mr D Investments does not appear to have been further considered in subsequent authorities.

22. [40]

    In one sense, these cases may be distinguished as none of the companies in question had been deregistered under the Corporations Law: in Shaw v Goodsmith Industries and Baird v W J T Howes Investments, the company was deregistered under the Companies (New South Wales) Code); in City West Water, the company had been deregistered by the National Companies and Securities Commission under the Companies (Victoria) Code). But the reasoning was nonetheless central to their Honours’ decisions and, as important jurists on matters of corporations law, cannot be overlooked.

23. [41]

    At first blush, the reference in section 1362CH to “ASIC’s powers” was a reference to its powers under section 601AH(1). The headings in section 601AH delineated between reinstatement by ASIC and reinstatement by the Court. The powers conferred on ASIC by section 601AH(1) were an expansion of its previous powers. Section 1362CH made plain that the expansion had retrospective effect, it being necessary for legislation to make the retrospective quality of amending legislation plain: Reg Bartley, The Modern Approach to Statutory Construction (2000, National Library of Australia, 1st edition) at 279 citing Smith v The Queen (1994) 181 CLR 338; (1994) 69 ALJR 24; [1994] HCA 60 per Mason CJ, Dawson, Gaudron and McHugh JJ; section 7(2), Acts Interpretation Act 1901 (Cth). If this is correct – and City West Water and Baird v W J T House Investments suggest that it is – then the Court’s power to reinstate Austral Bronze may depend upon its power to do so under former section 574(3) of the Corporations Law. That power was subject to any application for reinstatement being made within 15 years of cancellation, that is, by 26 September 2012. The Court’s power to declare dissolution of the company void under section 571(1) is, however, not subject to any limitation period.

24. [42]

    The Company Law Review Act 1998 also added Part 11.2, Division 10, “Changes resulting from the Company Law Review Act 1998”, to the Corporations Law, including section 1439 which provided:

25. [43]

    The heading to section 1439 suggests that any application to which the section applies must be made before commencement, noting that headings form part of the legislation and may assist in construing the section, although must give way to clear and unambiguous operative words: section 13(2)(d), Acts Interpretation Act 1901 (Cth); Perry Herzfeld and Thomas Prince, Interpretation, (2020, Thomson Reuters, 2nd edition) at [5.110]. Such a construction is also consistent with the fact that, after “commencement”, section 571 and 574 were repealed and thus, presumably, no fresh applications could be made under those sections.

26. [44]

    I do not divine any intention by Parliament – from the amendments made by the Company Law Review Act nor the Explanatory Memorandum – to limit the Court’s power under section 601AH to only reinstate companies deregistered after 1 July 1998. (The definition of “company” does not assist in ascertaining the Court’s power to reinstate companies deregistered before commencement of section 601AH.) The Explanatory Memorandum suggested that the Court’s power was “preserved”, with the only material change being to abolish the 15 year limitation period. The Court’s power to reinstate the company under section 601AH remained couched in similar language to former sections 571 and 574(3). The transitional provision – section 1439 – provided that applications made under provisions of the old Law would be determined under the new Law. The Company Law Review Act repealed sections 571 and 574 such that, unless an application to reinstate companies deregistered before 1 July 1998 was made under the new section 601AH then, on the face of it, the Court had no power to reinstate such companies at all. That would lead to absurd consequences absent Barrett J’s construction of section 1362CH in Shaw v Goodsmith Industries at [9]-[11], which I consider is to be preferred to that of Mahony SM in City West Water at [18]-[23], as giving effect to Parliament’s purpose.

27. [45]

    The Corporations Law was replaced by the Corporations Act 2001 on 15 July 2001. (The Company Law Review Act 1998 was itself repealed on 10 March 2016 by the Amending Acts 1990 to 1999 Repeal Act 2016 (Item 741, Schedule 1). Subsections 601AH of the Corporations Act is in relevantly the same terms as its Corporations Law predecessor. Section 601AH now provides for the reinstatement of the registration of a "company", defined in section 9 of the Corporations Act to mean “a company registered under this Act”. Because Austral Bronze was not registered under the Corporations Act, it is not a "company" within the meaning of section 9: Re Rocha Pty Ltd (Deregistered) at [18] per Brereton J.

28. [46]

    Part 10.1 of the Corporations Act 2001 contains transitional provisions from “the old corporations legislation” which, in respect of New South Wales means, the Corporations Law set out in the Corporations Act 1989 (NSW): section 137(1). The object of Part 10.1 is set out section 1370:

29. [47]

    Section 1408 of the Corporations Act 2001 provides:

30. [48]

    Thus, as Barrett J explained in Shaw v Goodsmith Industries in respect of section 1362CH, at [8]:

31. [49]

    Barrett J’s analysis in respect of the preservation of section 1362CH was not the subject of criticism in City West Water and was obviously correct. Thus, the insurer’s concession that the Court has power to reinstate Austral Bronze was correctly made, but perhaps for a different reason than given.

General damages in the Dust Diseases Tribunal

1. [50]

   On the death of Mr Fletcher and Mr Viksne, all causes of action vested in them survived for the benefit of their Estates under section 2(1) of the Law Reform (Miscellaneous Provisions) Act 1944 (NSW). However, section 2(1) is subject to a limitation in section 2(2)(d): (emphasis added)

2. [51]

   In 1998, section 12B was added to the Dust Diseases Tribunal Act: (emphasis added)

3. [52]

   Section 2 of the Law Reform (Miscellaneous Provisions) Act 1944 was also amended by adding sub-section 7:

4. [53]

   The purpose of section 12B was explained in the Second Reading Speech, extracted in Amaca Pty Limited v Cremer (2006) 66 NSWLR 400; [2006] NSWCA 164 at [35]:

5. [54]

   As such, exemption from the operation of section 2(2)(d) of the Law Reform (Miscellaneous Provisions) Act 1944 is critically dependent upon proceedings having been commenced in the Tribunal and pending before the Tribunal before the claimant’s death. Thus, in Amaca v Cremer, the Court of Appeal held that section 12B of the Dust Diseases Tribunal Act does not operate to preserve general damages for the benefit of an Estate if, although proceedings were commenced before the plaintiff’s death, the relevant defendant was only joined as a party after the plaintiff’s death. More specifically, McColl JA held that "proceedings" when used in section 12B “refers to the invocation of the Tribunal's jurisdiction to enforce the cause of action to recover damages in relation to the breach of duty referred to in s11(1)(b) against the person said to have breached that duty": at [77]. At [80]: (emphasis added)

6. [55]

   Further, at [90]:

7. [56]

   Whilst McColl JA considered that there could be no doubt that section 12B was intended to be given ample operation, the legislature applied a limitation on the section 12B exemption from section 2(2)(d) of the Law Reform (Miscellaneous Provisions) Act 1944 which must be reflected in its interpretation, consistent with the Second Reading Speech where the Bill was described as providing improvements “designed to be fair and reasonable to all parties affected”: at [91]-[94].

8. [57]

   Similarly, Brereton J noted that “generally speaking, a proceeding means the invocation of jurisdiction by an initiating process”: at [164]. His Honour considered that section 12B does not create a remedy but merely qualifies the removal of a remedy in certain cases: at [179]. Further, at [181]-[182]:

9. [58]

   Basten JA (in dissent) agreed with this remark, stating (at [127]) that "no proceedings can be brought without the identification of a proper defendant: the jurisdiction can only be invoked by making a non-colourable claim against a specific defendant". (A claim is colourable where it is made for the improper purpose of fabricating jurisdiction: Qantas Airways Limited v Lustig (2015) 323 ALR 374; [2015] FCA 253 at [88] per Perry J.) The word "proceeding" and the phrase "cause of action" in section 12B(2) imply that that which must be "pending before the Tribunal at his or her death" is "a cause of action against a particular person": at [196] per Brereton J.

“proceedings commenced … and pending”

1. [59]

   The first question is whether the Tribunal proceedings were “commenced … and pending before the Tribunal” within the meaning of section 12B(2) of the Dust Diseases Tribunal Act 1989 when Mr Fletcher and Mr Viskne died, given that, although Austral Bronze and John Darlington were named as defendants, the companies did not then exist. As section 601AD(1) of the Corporations Act 2001 provides:

2. [60]

   The insurer submitted (and the claimants did not seriously contend otherwise) that, as Mr Fletcher and Mr Viskne commenced proceedings in the Tribunal against deregistered companies, the proceedings were a nullity and thus not pending at the time of their deaths. For proceedings to be commenced effectively against a party, the party must be in existence at the time of commencement: Immer v Girotto Precast Pty Ltd [2009] NSWSC 1019 at [6] per Rothman J. Proceedings against a deregistered company are a nullity: Deveigne v Askar (2007) 69 NSWLR 327; [2007] NSWCA 45 at [113], [124] per McColl JA citing International Bulk Shipping & Services Ltd v Minerals & Metals Trading Corporation of India [1996] 2 Ll R 474 at 478-480 per Evans LJ, Lazard Bros & Co v Midland Bank Ltd [1932] All ER Rep 571; [1933] AC 289 at 296-7 per Lord Wright, Re Pritchard (dec'd); Prichard v Deacon [1963] 1 All ER 873; [1963] Ch 502 at 516 per Lord Denning, Prior v Hannaford [1970] VR 772 at 778 and MacFoy v United Africa Co Ltd [1961] 3 All ER 1169; [1962] AC 152 at 160 per Lord Denning.

3. [61]

   The insurer submitted that proceedings must be regularly commenced to invoke the Tribunal's jurisdiction over the particular party against whom the remedy is claimed. The proceedings in the Tribunal were not "commenced against" the deregistered companies merely by naming those companies in the statement of claim. Thus, there were no "proceedings" on foot at the time of the death of Mr Fletcher and Mr Viskne, such that section 12B of the Dust Diseases Tribunal Act did not dis-apply section 2(2)(d) of the Law Reform (Miscellaneous Provisions) Act 1944. I accept that submission.

4. [62]

   For completeness, a legal proceeding is “pending” as soon as commenced and until it is concluded: Stroud’s Judicial Dictionary (2016, revised online 31 July 2019, Thomas Reuters, 9th edition). Thus, “proceedings pending” in the Compensation Court meant proceedings which had been commenced but not determined: Norcal Pty Limited v D’Amato (1988) 15 NSWLR 376 at 386 per Mahoney JA. “Pending proceedings” under the Family Law Act 1975 (Cth) meant uncompleted proceedings: In the marriage of Smith (1979) 35 FLR 12; (1979) 5 Fam LR 169 at 178 per Lindenmayer J. Under the Rules of the Supreme Court of England and Wales, an action is “pending” if the writ has been issued, irrespective of whether it has been served: Arab Monetary Fund v Hashim (No 4) [1992] 4 All ER 860; [1992] 1 WLR 1176 at 1180 per Nourse LJ with whom Woolf and Fox LJJ agreed. In United Kingdom immigration legislation, “pending” means no more than “until”, such that a person may be detained “pending” removal so long as the Secretary of State remains intent upon removing the person and there is some prospect of achieving this: R (Khadir) v Secretary of State for the Home Department [2005] UKHL 39; [2006] 1 AC 207 at [32] per Lord Brown.

Does reinstatement retrospectively validate the Tribunal proceedings?

1. [63]

   The second question is whether reinstating these companies, without more, has the consequence that the Tribunal proceedings were “commenced … and pending” at the time of Mr Fletcher and Mr Viskne’s deaths. Section 601AH(5) of the Corporations Act provides: (emphasis added)

2. [64]

   It might be thought that the clear language of the first sentence of section 601AH(5) has the result that, on reinstatement, the Tribunal proceedings were thereby in fact “commenced” as the companies should be taken to have been in existence at the time. But section 601AH(5) has been described as providing “only a limited measure of retrospectivity”: White v Baycorp Advantage Business Information Services Limited (2006) 200 FLR 125; [2006] NSWSC 441 at [115]. As White J observed in Foxman v Credex National Australian Trade Exchange Pty Limited (in liq) (2007) 65 ACSR 476; [2007] NSWSC 1422, the first sentence of section 601AH(5) is qualified by the following sentences: at [41], [60].

3. [65]

   Some examples illustrate how this “limited measure of retrospectivity” works. In White v Baycorp Advantage, the plaintiffs sought to correct inaccurate entries by a credit rating information bureau in respect of default under a contract with Capital Corporate Finance Limited. At the time of default, Capital Corporate Finance was deregistered (although re-registered by ASIC soon afterwards) and the default notice was in fact issued by its parent company. Section 601AH(5) did not have the result that the default notice was valid when issued. Campbell J held at [115]: (emphasis added)

4. [66]

   Perhaps closer to the facts at hands – where something is sought to be done to rather than by a deregistered company – is CGU Workers Compensation (NSW) Limited v Rockwall Interiors Pty Limited (2006) 201 FLR 296; [2006] NSWSC 690, where a workers compensation insurer sought to reinstate and wind up three companies, having served a statutory demand on the former registered office of the companies whilst the companies were deregistered. Barrett J reinstated the companies but observed that the companies could not be said to have been served with a statutory demand whilst deregistered. A demand could not be a statutory demand under section 459E of the Corporations Act unless served on a company, and delivery to the former registered office of a non-existent company could not be served on a company: at [16]. Following White v Baycorp, Barrett J observed at [17] and [19]:

5. [67]

   Similarly in Oates v Consolidated Capital Services Pty Limited [2007] NSWSC 680, White J held that service of court documents on the former registered office of a deregistered company did not become effective service on reinstatement of the company. At [35]:

6. [68]

   Thus acts purported to be done on behalf of a deregistered company, or active steps taken in relation to a deregistered company such as service of documents, are not automatically retrospectively validated on reinstatement of the company. As Lindgren J observed in Re Stork ICM Australia Pty Ltd (Deregistered) (2010) 77 ACSR 517; [2010] FCA 53, “The[se] cases recognise that the mere retrospective effect of a reinstatement, without more, does not supply the additional facts necessary to make for a positive answer to such questions” as whether particular acts, conduct, states of mind or omissions are to be attributed to the deregistered company, or particular acts purportedly directed against it are to be treated as effective, in each case as at a time during the period of the deregistration: at [29]. Of course, as White J explained in Foxman v Credex, the limited retrospective validity conferred by section 601AH(5) might be cured by an ancillary order: at [65].

Ancillary orders

1. [69]

   Subsections 601AH(3) of the Corporations Act 2001 provides:

2. [70]

   As to the breadth of the Court’s power to make ancillary orders, judicial observations have varied, generally commensurate with the facts to hand. In Pagnon v Workcover Queensland [2001] 2 Qd R 492; [2000] QCA 421, the Court’s power under section 601AH(3)(b) was considered to be “very wide” while in CGU v Rockwall Interiors Barrett J considered, “the s 601AH(3) jurisdiction should, in my opinion, be used principally to remove anomalies or impediments”: at [18]. CGU v Rockwall Interiors was followed in Re Bele & Co Pty Ltd [2017] NSWSC 1824, where Black J considered the power to make such orders was incidental to the power to reinstate a company and not independent of it: at [6].

3. [71]

   In Re Regional Planners Developments Co Pty Limited (2015) 110 ACSR 457; [2015] NSWSC 1996, however, Brereton J observed the differences between section 601AH and its statutory predecessors. At [24]:

4. [72]

   Such an approach was followed by McKerracher J in Bell Group Ltd (in liq) v ASIC (2018) 358 ALR 624; (2018) 128 ACSR 247; [2018] FCA 884, when asked to reinstate 16 companies related to The Bell Group Ltd for the purpose of receiving distributions from a $1.7 billion settlement fund after legal proceedings concerning The Bell Group were concluded in 2013, and to do so in a tax effective manner by forming a tax consolidated group under the Income Tax Assessment Act 1997 (Cth). Ancillary orders were sought, “to achieve the effect that the shares held by a number of the Deregistered Companies be deemed and taken at all times from the date of dissolution of those companies to have been beneficially owned by the companies”: at [32]. As to the scope of the power conferred by section 601AH(3)(d), McKerracher J noted at [110]:

5. [73]

   His Honour noted that there was no suggestion in the statute that an order could only be made where it was justified by exceptional circumstances, rather, “The power to make the orders is cast in very broad terms”: [129]. At [136]:

6. [74]

   His Honour considered the section clearly permitted an ancillary order which had significant, not merely incidental, retrospective consequences: [137]. McKerracher J did not consider that Barrett J’s observation in CGU v Rockwall detracted from the approach to be taken, at [141]: (emphasis original)

7. [75]

   His Honour noted that The Bell Group’s objectives were on their face entirely lawful and reasonable. The Commissioner of Taxation still had ample opportunity to oppose the tax consequences of the ancillary orders in other administrative or judicial proceedings if the Commissioner chose to do so; the ancillary orders simply allowed The Bell Group to contend for such consequences. However, his Honour considered that it was desirable to grant no more than the minimum relief necessary to do justice and to do so solely for the stated purpose in the way described by Bell Group Ltd (in liq) v ASIC: at [147].

8. [76]

   Of course, no judicial statement can be considered definitive nor more significant than the words of the statute, which empowers the Court to “validate anything done” and “make any other order it considers appropriate”. As I observed in Re ACN 063 346 708 (formerly known as South Passage Pty Ltd) [2018] NSWSC 1709 at [34], Notes form part of the Corporations Act and have the same status as the provisions of the Act: section 13, Acts Interpretation Act. According to the Note to section 601AH(3), an example of an order which may be made on reinstatement includes directing ASIC to transfer property vested in ASIC under subsection 601AD(2) to someone other than the reinstated company. As a starting point, this suggests that ancillary orders may be substantive in nature.

9. [77]

   As to the considerations indicating whether an order should be made under section 601AH(3), and the extent of any such order, four themes emerge from the case law. First, ancillary orders may be made to suspend the limitation period in respect of claims against the company but perhaps not to avoid limitation periods which may apply to a claim to be brought by the company. In Pagnon v Workcover Queensland, the Court’s power under section 601AH(3)(b) was considered to extend to an order that the time between dissolution of the company and its reinstatement not be counted against the plaintiff for the purpose of statutes of limitation: McPherson JA at [15], with whom Thomas JA and Muir J agreed. This, or course, is nothing new. In the classic case of Re Donald Kenyon Limited [1956] 3 All ER 596; [1956] 1 WLR 1397, an order was made that a limitation period did not run during the period of the company’s dissolution so that creditors were not statute barred in pursuing debts owed by the company: at 725. See also Re Regional Planners Developments Co per Brereton J at [25]-[28].

10. [78]

    As to a case where it was proposed that the company, when reinstated, would bring a statute barred claim, in Chalker v Clark [2008] VSCA 92 the applicant sought to reinstate a company so that he could endeavour to persuade a liquidator appointed to the company to assign the company’s chose in action to him to pursue. The evidence indicated that it was most unlikely that the liquidator would assign the chose in action to the applicant. Further, the proposed proceedings which the applicant wished to bring on behalf of the company were clearly statute barred. The Court considered that it would not be “just” to reinstate a company as a device to escape a limitations period with the benefit of an ancillary order: at [37] per Osborn AJA, at [45] per Maxwell P. It is also apparent that the Court of Appeal considered the applicant to be dubious and the cause of action to be hopeless.

11. [79]

    Second, ancillary orders may not be made where, to do so, would cause prejudice to the reinstated company on account of its failure to do something which it could not have done whilst deregistered (CGU v Rockwall Interiors at [19]) but may be made where the absence of an ancillary order will cause prejudice to the company or third parties for what the company was purportedly doing during that period. For example, in Foxman v Credex, a liquidator sought to examine persons in connection with actions purportedly taken on behalf of a company during its period of deregistration. White J observed at [64]:

12. [80]

    Third, ancillary orders will likely not be made where to make the orders sought would require the Court to determine contentious matters between the applicant and the company but may be made where such orders are not in dispute or have already been determined in other court proceedings. An example of the former category is Re Bele & Co, where a creditor sought reinstatement of the company and an order that ASIC pay $193,000 to the creditor, being funds which ASIC held under section 601AD. Black J considered that section 601AH(3)(d) did not allow the Court, in effect, to determine a claim between a creditor and a deregistered company without the attendance of the deregistered company and in a manner that would not bind it, and then make an order for ASIC to make a payment consequential upon its determination of that claim.

13. [81]

    Similarly, in Randall v City of Canada Bay Council (No 4) [2015] NSWSC 1759, judgment was entered against a company in favour of the local council for some $1.6 million in unpaid rent. A liquidator was appointed to the company and it was deregistered. A shareholder and director of the company, appearing in person, sought to reinstate the company so that the judgment and orders (made against it by the Court of Appeal, no less) could be set aside. The applicant also sought ancillary orders that judgment be entered in favour of the company against the council for some $9 million, and judgment be entered in the applicant’s favour against the company for some $550,000, said to be unpaid director’s fees. After concluding that the application to set aside the judgment debt was hopeless, Kunc J also considered that the ancillary orders sought went well beyond the power conferred by section 601AH: at [200].

14. [82]

    An example of the latter category is Re South Passage, where final orders had been made in separate proceedings such that the applicant, Stuart Chase, was entitled to be recorded as the beneficial owner of the whole of the share capital of South Passage. The incumbent shareholder, his sister Karen Chase, had sought to frustrate the processes of the Court by de-registering the company and evading service. I did not consider that section 601AH(5) confined the Court’s power in section 601AH(3)(d) such that the Court may not make orders modifying the effect of reinstatement but, rather, gave the Court the power to alter the ordinary incidents of reinstatement in appropriate circumstances: at [51]. Thus, to prevent Karen Chase being automatically reinstated as sole director on reinstatement of the company, I made ancillary orders changing the name of the company (an unrelated party had registered a company in the original name in the meantime); ordered ASIC to record Stuart Chase as the sole shareholder and director of the company, changed the registered office to the address of Stuart Chase rather than his sister, and repealed the constitution of the company (which Stuart Chase could not locate and the provisions of which were unknown).

15. [83]

    Similarly, in In the matter of Garfox 86 Pty Limited [2019] NSWSC 442, a company owned a $1 million apartment and, whilst deregistered, a shareholder sold 50% of the shares for $500,000 and resigned as a director, replaced by the purchaser. Vendor and purchaser were unaware that the company was deregistered at the time. There was no factual dispute. Ancillary orders were made so that, on reinstatement, the change in shareholders and directors was recorded on ASIC’s register.

16. [84]

    Finally, in In the matter of McDonagh Management Pty Limited (2019) 139 ACSR 447; [2019] NSWSC 1099, mischievous defendants in separate proceedings had enlisted the assistance of a criminal and a questionable accountant who, misusing the corporate key issued by ASIC, twice changed the ASIC register so that Ms McDonagh ceased to be a director and sole shareholder of the company. So re-constituted, the company purported to settle the proceedings which Ms McDonagh was bringing against the defendants, on absurd terms. On reinstating the company, ancillary orders were made to validate anything done by the company in the proceedings during its period of deregistration; to withdraw fraudulent forms lodged with ASIC from its register; to correctly record Ms McDonagh as sole officeholder and shareholder of the company; and to change the registered office of the company to that of Ms McDonagh. Further, an order was also made for ASIC to cancel the corporate key issued in respect of the company, to issue a new corporate key to Ms McDonagh and to restrain ASIC from registering any documents in respect of the company until the corporate key had been changed. Acknowledging that the ancillary orders were ‘novel’, liberty was granted to ASIC to make submissions in respect of the orders, which ASIC did not exercise: at [50].

17. [85]

    Fourth, the courts are mindful as to whether the ancillary orders sought are futile or sought in aid of an unmeritorious claim: Chalker v Clark; Randall v City of Canada Bay Council; Bell Group Ltd (in liq) v ASIC. That is, whether the ancillary orders are “just” or necessary to ameliorate the aggrievement of the applicant remains the touchstone.

Can ancillary order validate legal proceedings nunc pro tunc?

1. [86]

   In these proceedings, the claimants favoured a broad approach to the power to make ancillary orders, submitting that section 601AH(3), in its terms, gives the Court power to validate the commencement of proceedings. Consistent with the approach taken by the High Court in Beck v Weinstock (2013) 251 CLR 425; [2013] HCA 15 in respect of the Court’s power under section 1322(4) of the Corporations Act, the Court should not construe provisions conferring jurisdiction by imposing limitations not found in the express terms of the legislation. It was said that the approach taken in Bell Group Ltd (in liq) v ASIC, Re South Passage and In the matter of Garfox 86 was correct. Decisions under the earlier section 571 and section 574 of the Corporations Act 1989 (Cth) were said to relate to different provisions and were of little assistance to the Court’s power under section 601AH.

2. [87]

   The insurer submitted that, although section 601AH(3) furnishes a "wide" power, it was not without limitation but incidental to the Court's power to reinstate a deregistered company and should "be used principally to remove anomalies or impediments: CGU v Rockwall Interiors at [18] per Barrett J; Re Bele & Co at [6] per Black J; Re Stork ICM Australia at [27] per Lindgren J. The insurer submitted that section 601AH(3) cannot be used as a device for circumventing a limitation period: Chalker v Clark at [37] per Osborn AJA, at [45]-[46] per Maxwell P. The insurer submitted that the same reasoning should apply to prevent using section 601AH(3) to circumvent the combined operation of section 2(2)(d) of the Law Reform (Miscellaneous Provisions) Act 1944 (NSW) and section 12B of the Dust Diseases Tribunal Act. The insurer submitted section 601AH(3) could not, or should not, be used to validate purported service on the deregistered companies: CGU v Rockwall Interiors. By parity of reasoning, it was submitted that section 601AH(3) cannot be used to validate service on a deregistered company of a statement of claim against that company in the Tribunal.

3. [88]

   The insurer submitted that section 601AH(3) cannot be used retrospectively to validate proceedings which were a "nullity" when commenced, relying on Morris v Harris [1926] All ER 15; [1927] AC 252 at 259 per Lord Sumner; Re Kilkenny Engineering Pty Ltd (in liq) (1976) 1 ACLR 285; (1976) 13 SASR 258 at 266-267 per Wells J; Solla v Scott (1982) 7 ACLR 323; [1982] 2 NSWLR 832 at 833-4 per McLelland J; Bianchi v Crewe & Sons Pty Ltd (1996) 135 FLR 15; (1996) 22 ACSR 152 at 153 per Rowland J, at 158 per Franklyn J. It was submitted that there was no reason to think that section 601AH(3) was intended to change this principle.

4. [89]

   It will be immediately observed that each of these authorities concerned the statutory predecessors of section 601AH(3) and, in particular, section 571(1) of the Corporations Law or its earlier forms, either here or in the United Kingdom. The cited passages of Morris v Harris and Re Kilkenny Engineering focus and turn on the specific language of that provision. McLelland J considered himself bound to follow Morris v Harris in Solla v Scott. In Bianchi v Crewe, the company was dissolved in April 1994, a former employee commenced proceedings against the company for a workplace injury in September 1994 and, in October 1994, the worker obtained an order from a District Court Judge under section 571(1) declaring the dissolution void and granting leave to commence an action for damages against the company, with any such writ to be served within 14 days. The Full Court of the Supreme Court of Western Australia held that the order under section 571(1) did not have the effect of validating the workers’ compensation proceedings already on foot when the order was made. Rowland J observed (at 153):

5. [90]

   Franklyn J agreed that the writ issued in September 1994 “had purported to commence proceedings against a company which no longer existed in law. It thus had no legal effect whatever when issued”: at 155. Nor did the order purport to validate those proceedings; “Whether it could have done so in any event is another question”: at 155. Further, at 158:

6. [91]

   Rowland and Franklyn JJ did not hold that an order could not have been made under section 571 to validate the proceedings already on foot (although obiter Franklyn J doubted that section 571 ventured so far) but simply that the order made by the District Court Judge did not purport to do so, and thus did not validate otherwise invalid proceedings. As Brereton J observed in Re Regional Planners Developments Co, the statutory language of section 601AH(3) is noticeably different: see [71] of this judgment. The courts have dealt with a similar situation under section 601AH by recognising the limited retrospectivity of section 601AH(5) but making ancillary orders, where appropriate, to validate proceedings that would otherwise be considered a nullity. Bianchi v Crewe does not preclude such a course.

7. [92]

   Section 601AH(3)(c) clearly states that “the Court may validate anything done during the period beginning when the company was deregistered and ending when the company’s registration was reinstated”. Validating the commencement of legal proceedings purportedly against a company at a time when the company was deregistered falls squarely within this language. There is no reason to curtail the statutory power by reference to case law in respect of a different, and more limited, statutory power. It may, of course, not be appropriate in the exercise of the Court’s discretion to validate the commencement of legal proceedings nunc pro tunc, but nor is the Court precluded from doing so by reference to the statutory language.

Exceeding federal jurisdiction?

1. [93]

   In its reply submissions, the insurer submitted that the orders sought by the claimants exceeded the federal jurisdiction vested in this Court by section 1337B(2) of the Corporations Act 2001. Section 601AH(3) is a power, not a source of jurisdiction: Rizeq v Western Australia (2017) 262 CLR 1; [2017] HCA 23 at [11] per Kiefel CJ. Section 601AH(3) cannot be exercised in respect of a "matter" over which the Court has no jurisdiction: CGU Insurance Ltd v Blakeley (2016) 259 CLR 339; [2016] HCA 2 at [12] per French CJ, Kiefel, Bell and Keane JJ. Given section 10(1) of the Dust Diseases Tribunal Act, the insurer submitted that the "proceedings" commenced in the Tribunal, to the extent they have any existence, fall within the "exclusive jurisdiction" of the Tribunal. Section 10(1) of the Dust Diseases Tribunal Act is a law which defines "the circumstances in which a proceeding may, or may not, be brought in a court": Rizeq v Western Australia at [22] per Kiefel CJ. Accordingly, insofar as there is any "matter" comprising the Tribunal proceedings, section 10(1) of the Dust Diseases Tribunal Act would be "picked up" and applied in federal jurisdiction as a law of the Commonwealth by force of section 79 of the Judiciary Act, there being no provision of the Corporations Act which “otherwise provides”. It was said to follow that this Court's jurisdiction does not extend to any purported "proceedings" which may exist in the Tribunal, and section 601AH(3) cannot be exercised so as to "cure" or validate such proceedings.

2. [94]

   Further, the insurer submitted this Court should not undermine the processes of the Federal Court: Wigmans v AMP Ltd [2018] NSWSC 1118 at [18] per Ward CJ in Eq; Wileypark Pty Ltd v AMP Ltd (2018) 359 ALR 43; [2018] FCAFC 143 at [11] per Allsop CJ; Re Wakim; Ex parte McNally (1999) 198 CLR 511; [1999] HCA 27 at [108] per Gummow and Hayne JJ. Whilst I accept this principle without demur, it does not apply here where there are no Federal Court proceedings on foot, nor any conflicting Federal Court case law to contend with.

3. [95]

   The insurer submitted that an order of the kind sought by the claimants, in federal jurisdiction, amounted to an inference with the integrity or processes of the exclusive State jurisdiction of the Tribunal, in defiance of section 10 of the Dust Diseases Tribunal Act. An order of that kind should not be made under section 601AH(3) of the Corporations Act 2001. An order which was directed to the validity of "proceedings" purportedly commenced in the Tribunal and avowedly designed to engage section 12B of the Dust Diseases Tribunal Act would amount to the exercise by this Court of jurisdiction which is, by section 10 of the Dust Diseases Tribunal Act, was "exclusive" to the Tribunal or which would interfere with the processes of the Tribunal. Such an order would be outside the federal jurisdiction of this Court or, if it is within jurisdiction, should not be made on the basis of comity. Section 601AH(3) should not be construed as empowering the Court to change the operation of State law, revive extinguished liabilities, or control the procedure of a State tribunal exercising an "exclusive" jurisdiction.

4. [96]

   The insurer submitted that section 601AH(3) should not be used in a manner which, in its interaction with State laws, would exceed Commonwealth jurisdiction, citing Smith v Australian Securities and Investments Commission [2018] NSWSC 1695 at [21] per Parker J. I note there, his Honour observed, “There may be an interesting question as to whether there are any limits to orders being made by a court exercising federal jurisdiction under the Corporations Act, which would alter the effect of the Limitation Act (and in particular s 63) for the purposes of State law generally”, but did not consider it necessary to consider this further.

5. [97]

   The insurer submitted that section 601AH had to be read with section 5E of the Corporations Act which was said to dictate the approach to be taken to the construction of the Corporations Act generally. In considering the question of jurisdiction to make an order under section 601AH(3) to effectively circumscribe section 2(2)(d) of the Law Reform (Miscellaneous Provisions) Act 1944 and section 12B of the Dust Diseases Tribunal Act, it should be borne in mind that those provisions were not intended to be excluded or limited in their operation by the Corporations Act. The Court has to “pick up” section 12B of the Dust Diseases Tribunal Act and construe the power under section 601AH(3) in a way that does not exclude or limit the operation of the state law. When asked by the claimants to deploy federal jurisdiction and to exercise a discretion under federal legislation to constrict the operation of section 2(2)(d) of the Law Reform (Miscellaneous Provisions) Act 1944 and section 12B of the Dust Diseases Tribunal Act, the Court would be careful not to construe section 601AH(3) in a way that offended section 5E nor the state law. It was submitted that the claimants were asking the Court, in exercise of federal jurisdiction, to subvert the will of the New South Wales Parliament.

6. [98]

   The claimants submitted that sections 10 to 12 of the Dust Diseases Tribunal Act do not seek to, or limit, the Court’s power under section 601AH of the Corporations Act 2001, as the legislation is directed to different subjects being, in the case of the Dust Diseases Tribunal Act, determining who was entitled to commence proceedings and in what circumstances and, in the case of the Corporations Act 2001, whether a company should be reinstated and on what terms.

Exclusive jurisdiction of the Tribunal

1. [99]

   It is necessary to understand something of the Tribunal’s jurisdiction and procedures. In 1989, the Tribunal was established by the Dust Diseases Tribunal Act. It was created as a tribunal separate from the common law jurisdictions of both the Supreme and District Courts to ensure dust diseases claims were dealt with “expeditiously … [by] a fast-track mechanism”: Amaca v Cremer at [28], quoting the Second Reading Speech, Parliamentary Debates (Hansard), New South Wales Legislative Assembly, 3 May 1989 at 7398.

2. [100]

   Section 10 of the Dust Diseases Tribunal Act provides: (emphasis added)

3. [101]

   Section 11 provides:

4. [102]

   Section 12 provides that, on commencement of the Dust Diseases Tribunal Act, “proceedings of the kind referred to in section 11(1)” brought or pending in the Supreme Court or District Court “must” be transferred to the Tribunal together with any ancillary or related matters. As Gleeson CJ observed in Goliath Portland Cement Co Limited v Bengtell (1994) 33 NSWLR 414 at 417 (followed by Gummow J in BHP Billiton Limited v Schultz (2004) 221 CLR 400; [2004] HCA 61 at [38]):

5. [103]

   Thus, proceedings for damages in respect of dust diseases must be brought in the Tribunal whilst related or ancillary claims may be brought in the Tribunal but may also be prosecuted elsewhere. The Tribunal has exclusive jurisdiction to “hear and determine” proceedings for damages. In the absence of a delimiting context, the words “hear and determine” mean that the Court is to hear and determine the matter following its ordinary procedure; “to hear” a matter includes all its necessary antecedents and proper consequences: Green v Penzance (Lord) (1881) 6 AC 657; Bond v Murdoch (1921) 17 Tas LR 84 at 89. “Determining” proceedings connotes the end of the process, that which the Court eventually decides: R v Young (Trevor) [2003] EWCA Crim 3481; [2004] 1 WLR 1587 at 1601. In the life cycle of legal proceedings, “hear and determine” appears to focus on the resolution and conclusion of proceedings brought in the Tribunal rather than, perhaps, procedural matters in respect of an initiating process.

Federal jurisdiction and the Corporations Act 2001

1. [104]

   Part 9.6A, Division 1 of the Corporations Act concerns the jurisdiction of courts in respect of civil matters arising under the Corporations legislation: section 1337A(1)(a). Division 1 operates to the exclusion of the Jurisdiction of Court (Cross-vesting) Act 1987 (Cth) and section 39B of the Judiciary Act, which confers jurisdiction in respect of specified matters on the Federal Court of Australia: section 1337A(2), Corporations Act. Section 1337A does not limit the operation of other provisions of the Judiciary Act, in particular, section 39(2), which invests federal jurisdiction in the courts of the States with respect to civil matters arising under the Corporations Act: section 1337A(3), (4). Section 1337A(5) provides:

2. [105]

   The Division thus recognises the concurrent operation of section 79 of the Judiciary Act: Gordon v Tolcher in his capacity as liquidator of Senafield Pty Limited (in liq) (2006) 231 CLR 332; [2006] HCA 62 at [29] per Gleeson CJ, Gummow, Hayne, Callinan and Heydon JJ.

3. [106]

   By section 1337B, jurisdiction with respect to civil matters arising under the Corporations legislation is conferred on the Federal Court of Australia (section 1337B(1)) and the Supreme Court of each State and Territory (section 1337B(1) and (2)). Section 1337B(5) provides:

4. [107]

   Section 1337B(5) has not been the subject of judicial consideration but suggests – as it states – that jurisdiction conferred on this Court with respect to civil matters arising under the Corporations Act is not limited by any limits to which any other jurisdiction of this Court may be subject. This has potential implications for limits imposed on this Court’s jurisdiction by sections 10 to 12 of the Dust Diseases Tribunal Act.

5. [108]

   Federal jurisdiction is thereby conferred on State courts to adjudicate matters arising under the Corporations Act: Gordon v Tolcher in his capacity as liquidator of Senafield Pty Limited (in liq) at [3], [32] per Gleeson CJ, Gummow, Hayne, Callinan and Heydon JJ; Litmus Australia Pty Limited (in liq) v Canty (2006) 57 ACSR 71; [2006] NSWSC 196 at [35] per Barrett J.

6. [109]

   As Kiefel CJ explained in Rizeq v Western Australia, the investment of “federal jurisdiction” is not a direction as to the law to be applied but simply means that authority is given to a court to hear and determine a matter; federal jurisdiction is to be distinguished from the law that that court applies in the exercise of that jurisdiction: at [7]-[9]. In Anderson v Erik Anderson Radio & TV Pty Limited [1965] HCA 61; (1965) 114 CLR 20, Kitto J observed at 30:

7. [110]

   As to the law to be applied when exercising federal jurisdiction, section 79(1) of the Judiciary Act provides: (emphasis added)

8. [111]

   The provision does “not purport to do more than pick up State laws with their meaning unchanged”: Pedersen v Young [1964] ALR 798; (1964) 110 CLR 162 per Kitto J at 165. In Solomons v District Court of New South Wales (2002) 211 CLR 119; [2002] HCA 47, Gleeson CJ, Gaudron, Gummow, Hayne and Callinan JJ explained at [23]:

9. [112]

   As Kiefel CJ explained in Rizeq v Western Australia at [16]-[17]:

10. [113]

    The Chief Justice noted that section 79(1) is not directed to the rights and duties of persons but to courts exercising federal jurisdiction; its purpose is to fill a gap in the laws which will regulate matters coming before those courts and to provide those courts with powers necessary for the hearing or determination of those matters: at [20]. “The examples given in s 79(1) of laws relating to procedure and evidence are, clearly enough, laws necessary for the hearing of a matter” and have been held to apply to laws which provide that contribution may be sought by a tortfeasor and to statutes of limitations: at [21]-[22]. At [22]:

11. [114]

    In Rizeq v Western Australia, the majority (Bell, Gageler, Keane, Nettle and Gordon JJ) noted “s 79 goes no further than is reasonably necessary “to facilitate the particular exercise of federal jurisdiction by the application of a coherent body of law, elements in which may comprise the laws of the State or Territory in which the jurisdiction is being exercised, together with the laws of the Commonwealth, but subject always to the overriding effect of the Constitution itself”, citing Northern Territory v GPAO (1999) 196 CLR 553 at 588 [80]. The majority concluded at [103]:

12. [115]

    The question is whether – in these proceedings – provisions of the Dust Diseases Tribunal Act are “picked up” by section 79 of the Judiciary Act. Following the steps laid out in Solomons v District Court of New South Wales, the Court presently exercising federal jurisdiction is the Supreme Court of New South Wales. Section 79 is addressed to this Court. What gap exists by any absence of Commonwealth laws, in particular, the Corporations Act which requires this Court to “pick up” state law in order to have the power necessary to hear and determine the applications to reinstate Austral Bronze and John Darlington? Section 601AH appears to provide the Court with all necessary power – if it is considered appropriate to exercise such power – to reinstate the companies and make the ancillary orders sought.

13. [116]

    Even if there was a gap, it is not clear why the cited provisions of the Dust Diseases Tribunal Act would be “picked up” in these proceedings. As mentioned at [103], the Tribunal has exclusive jurisdiction to hear and determine proceedings for damages, whilst related or ancillary claims may be brought in the Tribunal but may also be prosecuted elsewhere. The application presently before the Court is not a proceeding for damages but for related or ancillary relief. Section 79(1) of the Judiciary Act “picks up” State laws “in all cases to which they are applicable”. The cited provisions of the Dust Diseases Tribunal Act are not applicable here, where the exclusive jurisdiction of the Tribunal is not sought to be exercised by this Court.

14. [117]

    Further, as noted at [107], section 1377B(5) of the Corporations Act provides that the federal jurisdiction conferred on this Court is not limited by any limits to which any other jurisdiction of the Court may be subject. Thus, to the extent that the cited provisions of the Dust Diseases Tribunal Act limit this Court’s jurisdiction, at least, for proceedings for damages, it does not limit this Court’s jurisdiction with respect to civil matters arising under the Corporations Act.

15. [118]

    Contrary to the insurer’s submission, the Court’s federal jurisdiction in this matter does not extend to the Tribunal proceedings. It does, however, extend to the claimants application under the Corporations Act in this Court to reinstate two companies. Having federal jurisdiction, the Court’s power extends to the matters described in section 601AH(3) of the Corporations Act 2001.

Concurrent or conflicting State law?

1. [119]

   The Corporations Act is the product of the referral of legislative power by State Parliaments together with the legislative power of the Commonwealth Parliament: section 3(1), Corporations Act; section 51(xxxvii) of the Constitution. The bespoke architecture of the Corporations Act reflects its multiple sources of law-making power. Whilst, ordinarily, Commonwealth legislation would prevail over State legislation in the event of inconsistency (section 109, the Constitution), Part 1.1A of the Corporations Act, “Interaction between Corporations Legislation and State and Territory laws”, provides mechanisms to resolve potential inconsistencies by allowing the concurrent operation of State laws and the Corporations Act where not directly inconsistent; allowing State laws to declare a matter to be an excluded matter, thus narrowing the operation of the Corporations Act to allow the relevant State law to operate; or, in the event of direct inconsistency, for State legislation to prevail.

2. [120]

   As to the concurrent operation of State laws and the Corporations Act, section 5E of the Corporations Act provides: (emphasis added)

3. [121]

   Section 5F of the Corporations Act provides that, where State law declares a matter to be an excluded matter for the purposes of section 5F, then the specified provisions of the Corporations Act will not apply in that State. The Dust Diseases Tribunal Act has availed itself of this opportunity in section 10(6) as follows:

4. [122]

   The Dust Diseases Tribunal Act has not sought to declare proceedings seeking general damages under section 12B of the Dust Diseases Tribunal Act to be excluded matters for the purposes of section 601AH of the Corporations Act, or to restrict the Court’s power to make ancillary orders, including to validate proceedings commenced against a deregistered company nunc pro tunc. Where applications to reinstate companies are frequently brought by claimants seeking damages for dust diseases, and given that section 601AH of the Corporations Act and section 12B of the Dust Diseases Tribunal Act were both enacted in 1998, that is, 22 years ago, it is reasonable to conclude that the New South Wales Parliament has not considered it necessary to limit ancillary orders which may be made under section 601AH(3) in the circumstances presently to hand.

5. [123]

   Section 5G of the Corporations Act contains detailed provisions to avoid direct inconsistency between a State law and the Corporations legislation, including section 5G(11), which provides:

6. [124]

   Direct inconsistency may arise if the state law would alter, impair or detract from the operation of a law of the Commonwealth Parliament or the Commonwealth and the State laws make a contradictory provision upon the same topic, making it impossible for both laws to be obeyed: R. P. Austin, Austin & Black’s Annotations to the Corporations Act (LexisNexis, looseleaf) at [1.5E] and the numerous authorities there cited. The insurer did not suggest that section 12B of the Dust Diseases Tribunal Act was directly inconsistent with section 601AH(3) of the Corporations Act.

7. [125]

   By reason of section 5E of the Corporations Act, the Dust Diseases Tribunal Act and section 601AH of the Corporations Act operate concurrently. The Dust Diseases Tribunal Act requires that proceedings for damages for dust diseases be brought in that Tribunal, and limits a claimant’s ability to sue for general damages to proceedings commenced against the defendant from who general damages is sought before the claimant dies. Where the defendant is a deregistered company, the Corporations Act empowers this Court to reinstate the registration of the company and, in an appropriate case, to validate the commencement of proceedings against that company nunc pro tunc. Each provision is directed to a different subject matter. The fact that making an ancillary order under section 601AH(3) may have ramifications for proceedings in the Tribunal is a relevant consideration to whether the Court should make such an order but does not, of itself, circumscribe the Court’s power to make such an order by reason of section 5E of the Corporations Act.

Should orders be made in this case?

1. [126]

   Finally, the question is whether such orders should be made in this case. Subsection 601AH(2) of the Corporations Act provides:

2. [127]

   As Gleeson JA explained in Re European Metal Recyclers Pty Ltd (in liquidation) (deregistered) [2018] NSWSC 946 at [17]-[18], the expression “aggrieved person” is of wide import and should be construed liberally and includes a person who has been damaged in the legal sense. As Brereton J observed in Re Regional Planners Developments Co, a person is aggrieved by the deregistration of a company if they are thereby precluded from suing the company and it may be just for the company’s registration to be reinstated for the purpose of enabling the applicant to pursue its remedies: at [11]. Similarly, in Pilarinos v Australian Securities and Investments Commission (2006) 24 ACLC 775; [2006] VSC 301 at [103], Gillard J observed:

3. [128]

   The insurer accepted that, if I concluded that the Court had both federal jurisdiction and power under section 601AH(3) – construed in light of section 5E – to make an ancillary order in the terms sought, then the claimants were “aggrieved”. I have so concluded.

4. [129]

   The second matter to consider is whether it is “just” that the company’s registration be reinstated. His Honour Austin J succinctly explained this requirement in Australian Competition and Consumer Commission v Australian Securities and Investments Commission (2000) 34 ACSR 232; [2000] NSWSC 316 at [27]:

5. [130]

   It is not “just” to resurrect a company which will then be devoid of proper governance and it is for this reason that applicants seeking reinstatement of companies often seek the appointment of a liquidator in conjunction with reinstatement: see, for example, CGU v Rockwall Interiors at [9] per Barrett J.

6. [131]

   The claimants submitted that it was “just” that the companies' registrations be reinstated. The causes of action against Austral Bronze and John Darlington were not known at the time of deregistration, as the employees were diagnosed with mesothelioma years later. The claimants would still need to establish the liability of the companies in the Tribunal in order to warrant the Tribunal awarding damages including general damages. The claimants were not seeking to alter the operation of State legislation nor fabricate jurisdiction; rather, there was a jurisdiction which the claimants wished to take advantage of. The Court should exercise its discretion to make the order having regard to the circumstances in which the company was deregistered, the purpose in seeking reinstatement, whether any person is likely to be prejudiced by reinstatement, and the public interest generally: Deputy Commissioner of Taxation; Re James Hardie Australia Finance Pty Ltd (Deregistered) (2008) 170 FCR 545; [2008] FCA 1181 at [13] per Lindgren J; Re ERB International Pty Ltd (deregistered) (2014) 98 ACSR 124; [2014] NSWSC 200 at [5] per Brereton J.

7. [132]

   The claimants submitted that this would be in the public interest. Mr Mansfield as liquidator would provide stewardship for the companies: Ramantanis v G & M Excavations (2004) 22 ACLC 22; [2003] NSWSC 1250 at [8]; section 601AH(3)(b), Corporations Act. The undertaking to enforce any judgment against the insurer would protect former directors from any prejudice. The claimants submitted that their objectives in seeking the orders for reinstatement of the deregistered companies, including ancillary orders, were "entirely lawful and reasonable": Bell Group Ltd (in liq) v ASIC at [146]. They wish to pursue a claim for general damages on behalf of the Estate of their deceased partners. The granting of the relief sought by the claimants was consistent with and achieved "the primary purpose of treating a company upon reinstatement as though it had continued in existence from the date of deregistration, that is to say, the 'as you were' position": Bell Group Ltd (in liq) v ASIC at [136]. I accept this submission.

8. [133]

   The insurer submits that it would not be "just" to reinstate the companies because the applications are a device to seek to outflank the operation of section 2(2)(d) of the Law Reform (Miscellaneous Provisions) Act 1944 and section 12B of the Dust Diseases Tribunal Act and claim general damages. Beyond that, the reinstatements had no utility. The insurer submitted that the reasoning in Amaca v Cremer applied by analogy. It would be inappropriate to use a reinstatement application to "revive - akin to extension of a limitation period - an exposure to liability (for general damages) which had been extinguished by the death of the deceased”: Amaca v Cremer at [183] per Brereton J (speaking there of joinder of a defendant).

9. [134]

   The insurer submitted that it would not be an appropriate exercise of the power conferred by section 601AH of the Corporations Act to reinstate a company as a technical device intended to “retrospectively validate proceedings that have been a nullity since their inception"; relying on Stergiou v Citibank Savings Ltd [2005] ACTCA 15 at [50].

10. [135]

    Stergiou v Citibank is an interesting case. Mr and Mrs Stergiou had a home loan with Citibank Savings. In 1992, the bank sought to repossess their home. After four years of litigation, the bank succeeded on appeal. The bank assigned the loan to another Citibank entity and was deregistered but, unfortunately, the bank’s solicitors were not informed of this fact. Litigation ensued between the bank and Mr and Mrs Stergiou for a further nine years. Mr Stergiou appeared in person “and his face quickly became familiar to counsel who frequented the Friday motions list. He sometimes made apparently wild allegations against bank officers, lawyers and other people. He seemed convinced of the truth of such allegations, despite the absence of any evidence to support them …”: at [11].

11. [136]

    At the hearing of yet another appeal by Mr and Mrs Stergiou – when they had not made any payments to the bank for over 12 years and thus the appeal seemed doomed – Mr Stergiou handed up a company extract revealing that the bank was deregistered. A motion was filed by the non-existent bank and its assignee seeking to reinstate the bank and join its assignee as a plaintiff. No ancillary orders were sought. Crispin P declined to make the orders sought. At [28]-[31]:

12. [137]

    A number of the procedural matters raised by Crispin P do not apply here, where the application to reinstate the companies is not brought by the companies themselves but by the claimants. The orders for reinstatement are not sought in the Tribunal proceedings, which might be described as a nullity, but in separate proceedings in the Corporations List properly commenced. Nor was the lack of utility in reinstating the bank – which had no standing to continue the doomed proceedings – necessarily present here. Like any case, Crispin P’s conclusion is explicable by reference to the facts before him, in that case being an infamous piece of litigation coming to an unexpected but welcome end. It was not a statement of principle applicable in all cases. The question remains whether it is “just” in the circumstances of a particular case to reinstate a company on the terms sought.

13. [138]

    By reason of their deregistration, Austral Bronze and John Darlington could not be validly named in the statements of claim. This was the inevitable incident of their deregistration, and something which this Court can cure. Validating the commencement of the Tribunal proceedings nunc pro tunc would enable claims to be brought against the companies, akin to ancillary orders suspending the limitation period in respect of claims against a company: Pagnon v Workcover Queensland; Re Regional Planners Developments Co. The prejudice which may be caused to the reinstated companies on account of their inability to do something whilst deregistered is not apparent where the claimants have given an undertaking not to enforce any judgment obtained in the Tribunal against the companies but only against the insurer. Such an order does not require the Court to determine contentious matters between the claimants and the companies; such matters remain to be determined by the Tribunal. There is no suggestion that the claimants’ claims in the Tribunal are unmeritorious nor futile. For the reasons advanced by the claimants, I consider it “just” that the companies’ registrations be reinstated with the ancillary orders sought.

14. [139]

    As to the insurer’s claim for declaratory relief, before making reinstatement orders and ancillary orders, the Tribunal proceedings were not “commenced … and pending before the Tribunal” within the meaning of section 12B(2) of the Dust Diseases Tribunal Act when Mr Fletcher and Mr Viskne died. However, the effect of the ancillary orders is that the Tribunal Proceedings were “commenced … and pending before the Tribunal” within the meaning of section 12B(2) when they died. I otherwise decline to make the declarations sought.

Orders

1. [140]

   For these reasons, I make the following orders:

   1. (1)

      Order pursuant to section 601AH(2) of the Corporations Act 2001 (Cth), that the Australian Securities and Investments Commission forthwith reinstate the registration of Austral Bronze Co Pty Ltd ACN 000 010 211.

   2. (2)

      Order that immediately upon the reinstatement of its registration, Austral Bronze Co Pty Ltd be wound up and David Ian Mansfield of Deloitte Financial Advisory Pty Ltd, Eclipse Tower, 60 Station Street, Parramatta NSW 2150, appointed liquidator of Austral Bronze Co Pty Ltd.

   3. (3)

      Order, pursuant to section 601AH(3)(c) and (d) of the Corporations Act 2001 (Cth) that Dust Diseases Tribunal proceedings 462 of 2019 were validly commenced and pending as against Austral Bronze Co Pty Ltd as at the Late Barry Fletcher’s death on 28 December 2019.

   4. (4)

      Order that no step to enforce any judgment or verdict obtained in those proceedings 462 of 2019 shall be taken by the plaintiff as against Austral Bronze Co Pty Ltd otherwise than by resort to proceeds of insurance, without the further leave of the Court.

   5. (5)

      Costs of this application and these proceedings be costs in proceeding number 462 of 2019 in the Dust Diseases Tribunal of New South Wales.