Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Allianz Australia Insurance Ltd v Viksne [2021] NSWCA 268 Hearing dates: 28 June 2021 Date of orders: 4 November 2021 Decision date: 04 November 2021 Before: Meagher JA at [1]; White JA at [55]; Simpson AJA at [61] Decision: Proceeding 2020/355112 (1) Set aside order 3 made by the primary judge. (2) Dismiss the appeal. (3) Order appellant pay respondent's costs of the appeal. Proceeding 2020/355127 (1) Set aside order 3 made by the primary judge. (2) Dismiss the appeal. (3) Order appellant pay respondent's costs of the appeal. Proceeding 2020/355132 (1) Dismiss the appeal. (2) Order appellant pay respondents' costs of the appeal. In each of proceedings 2021/84671, 2021/84672, 2021/84675 (1) Dismiss the summons seeking leave to appeal. Catchwords: DUST DISEASES — damages for non-economic loss — where proceedings commenced before plaintiff's death — where deregistered company named as defendant — whether subsequent reinstatement of registration has consequence that proceedings deemed to have been validly commenced and pending at time of death for purposes of operation of Dust Diseases Tribunal Act 1989 (NSW), s 12B CORPORATIONS — deregistration — order for reinstatement of registration under Corporations Act 2001 (Cth), s 601AH(2) — where deregistered company named as defendant in initiating process — whether by operation of s 601AH(5) subsequent reinstatement of registration validates commencement of proceedings Legislation Cited: Companies Act 1936 (NSW), s 323(6) Companies Act 1948, 11 & 12 Geo 6, c 38, s 353 Companies Act 1961 (NSW) Companies Act 2006 (UK), s 1032(1) Company Law Review Act 1998 (Cth) Corporations Act 2001 (Cth), ss 5E, 5F, 124, 601AD, 601AH, 1408 Corporations Law, ss 574, 1362CH Dust Diseases Tribunal Act 1989 (NSW), ss 12A, 12B Law Reform (Miscellaneous Provisions) Act 1944 (NSW), s 2(2)(d) Trade Practices Act 1974 (Cth) Uniform Civil Procedure Rules 2005 (NSW), rr 1.5, 6.2(1), 6.28, Sch 1 Cases Cited: Allesch v Maunz (2000) 203 CLR 172; [2000] HCA 40 Amaca v Cremer (2006) 66 NSWLR 400; [2006] NSWCA 164 Beck v Weinstock (2013) 251 CLR 425; [2013] HCA 15 CGU Workers Compensation (NSW) Ltd v Rockwall Interiors Pty Ltd [2006] NSWSC 690; (2006) 201 FLR 296 Choy v Tiaro Coal Ltd (In Liq) (2018) 98 NSWLR 493; [2018] NSWCA 205 Deputy Commissioner of Taxation v Action Workwear Pty Ltd (deregistered) (1996) 20 ACSR 712 Deveigne v Askar (2007) 69 NSWLR 327; [2007] NSWCA 45 Dickson v The Queen (2010) 241 CLR 491; [2010] HCA 30 Foxman v Credex National Australian Trade Exchange Pty Ltd (in liq) [2007] NSWSC 1422; (2007) 65 ASCR 476 GIO General Ltd (Agent for NSW Workcover Scheme) v Sabko Pty Ltd (2007) 70 NSWLR 743; [2007] NSWSC 251 Jemena Asset Management (3) Pty Ltd v Coinvest Ltd (2011) 244 CLR 508; [2011] HCA 33 Joddrell v Peaktone Ltd [2013] 1 WLR 784 Macquarie Bank Ltd v Fociri Pty Ltd (1992) 27 NSWLR 203 Momcilovic v The Queen (2011) 245 CLR 1; [2011] HCA 34 Oates v Consolidated Capital Services Pty Ltd [2007] NSWSC 680 Queen v Credit Tribunal; ex parte General Motors Acceptance Corp (1977) 137 CLR 545; [1977] HCA 34 Re Richards Contracting Co Management Pty Ltd (2021) 104 NSWLR 385; [2021] NSWCA 34 Re Stork ICM Australia Pty Ltd [2010] FCA 53; (2010) 77 ACSR 517 Shaw v Goodsmith Industries Pty Ltd [2002] NSWSC 406; (2002) 41 ACSR 556 Tyman's Ltd v Craven [1952] 2 QB 100 Video Excellence Pty Ltd v Cincotta (1998) 44 NSWLR 742 White v Baycorp Advantage Business Information Services Ltd [2006] NSWSC 441; (2006) 200 FLR 125 Texts Cited: Spencer, Bower and Handley, Res Judicata, (4th ed, 2009, LexisNexis) Category: Principal judgment Parties: Proceeding 2020/355112 Allianz Australia Insurance Ltd (appellant) Beverley Viksne (first respondent) Australian Securities and Investments Commission (second respondent) Proceeding 2020/355127 Allianz Australia Insurance Ltd (appellant) Kathleen Comerford (first respondent) Australian Securities and Investments Commission (second respondent) Proceeding 2020/355132 Allianz Australia Insurance Ltd (appellant) Beverley Viksne (first respondent) Kathleen Comerford (second respondent) Representation: Counsel: D Hooke SC and S Hartford Davis (Allianz Australia Insurance Ltd) A Cheshire SC and S Tzouganatos (Beverley Viksne and Kathleen Comerford) Solicitors: Rankin Ellison Lawyers (Allianz Australia Insurance Ltd) Slater & Gordon Lawyers (Beverley Viksne and Kathleen Comerford) File Number(s): 2020/355112; 2020/355127; 2020/355132; 2021/84671; 2021/84672; 2021/84675 Publication restriction: N/A Decision under appeal Court or tribunal: New South Wales Supreme Court Jurisdiction: Equity Division Citation: [2020] NSWSC 1633 Date of Decision: 17 November 2020 Before: Rees J File Number(s): 2020/86229; 2020/86263; 2020/117824 [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] HEADNOTE [This headnote is not to be read as part of the judgment] Prior to their respective deaths from mesothelioma, Mr Viksne and Mr Fletcher commenced separate proceedings in the Dust Diseases Tribunal. Each proceeding named as a defendant a company which was a former employer, and alleged exposure to asbestos fibres during the course of his employment. At the time the initiating process was filed in the Tribunal, each of those companies was deregistered. Following their deaths, proceedings were commenced under Corporations Act 2001 (Cth), s 601AH(2) by the representatives of their estates to have those companies reinstated. The combined effect of Law Reform (Miscellaneous Provisions) Act 1944 (NSW), ss 2(1) and (2)(d) is that a cause of action subsisting at a person's death will continue to exist for the benefit of their estate. However where the death is caused by an act or omission that gives rise to the cause of action, damages are not recoverable for non-economic loss. Dust Diseases Tribunal Act 1989 (NSW), s 12B permits the recovery of damages for non-economic loss where proceedings were commenced in the Tribunal before a person's death, and were pending at the time of their death. The reinstatement applications made by the personal representatives were heard by the primary judge (Rees J). Her Honour made an order that the registration of each company be reinstated, and made a further order under s 601AH(3) that the proceedings against those companies were validly commenced and pending as at the time of each plaintiff's death. The employers' indemnity insurer, Allianz, was given leave to be heard in opposing the reinstatement applications and has brought the appeals to this Court from those orders. The issues in the appeal were: Whether the effect of reinstatement of the registration of each company would be to validate the Tribunal proceedings that were commenced against the deregistered companies. Whether s 601AH(3) confers power to make an order retrospectively validating the commencement of proceedings against a company during the period of its deregistration. Whether in all the circumstances it was just to order the reinstatement of the registration of the companies. The Court (Meagher JA, White JA and Simpson AJA agreeing) held, dismissing the appeal: As to issue (i) Section 601AH(5) provides that if a company is reinstated, it is deemed to have "continued in existence" as if it had not been deregistered. That statutory fiction is to be applied in determining rights or liabilities defined by reference to past events. The reinstatement has the effect that the companies are taken to have been in existence at the time the proceedings were commenced, thus engaging s 12B: at [20]-[36] (Meagher JA); [58], [60] (White JA); [61] (Simpson AJA). Tyman's Ltd v Craven [1952] 2 QB 100; Video Excellence Pty Ltd v Cincotta (1998) 44 NSWLR 742; Foxman v Credex National Australian Trade Exchange Pty Ltd (in liq) [2007] NSWSC 1422; (2007) 67 ACSR 476; Joddrell v Peaktone Ltd [2013] 1 WLR 784 Section 5E of the Corporations Act provides that the Act is not intended to exclude or limit the concurrent operation of any law of a State or Territory. That provision is a drafting device which conveys the notion that a federal law is to be construed as not excluding the operation of State laws in specified respects. Section 5E(1) itself says nothing as to the intended effect or operation of s 601AH: at [37]-[41] (Meagher JA); [56] (White JA); [61] (Simpson AJA). Queen v Credit Tribunal; ex parte General Motors Acceptance Corp (1977) 137 CLR 545; [1977] HCA 34 applied. As to issue (ii) Section 601AH(3) confers a power to make an order "validating anything done" during the period the company was deregistered. Subject to the application of s 601AH(5), the act of filing the two statements of claim in the registry of the Tribunal was a thing done that was capable of being validated under s 601AH(3), irrespective of whether the filing of process had any immediate legal effect or consequence for the non-existent companies. Because s 601AH(5) had that effect, there was no need for the primary judge to make a validating order under s 601AH(3). It is not necessary to decide whether in those circumstances a validating order could also have been made: at [43]-[45] (Meagher JA), [60] (White JA); [61] (Simpson AJA). As to issue (iii) The primary judge did not make an error in the House v The King sense in concluding that it was "just" that the companies be reinstated. The primary judge correctly understood the effect that a reinstatement order would have on the company and the operation of s 12B of the Dust Diseases Tribunal Act: at [46]-[53] (Meagher JA); [57] (White JA); [61] (Simpson AJA). Judgment 1. MEAGHER JA: This appeal concerns the application of Dust Diseases Tribunal Act 1989 (NSW), s 12B in circumstances where proceedings (there are two) were commenced in the Dust Diseases Tribunal before each plaintiff's death and against named defendants which in each case included a company that had been deregistered by the time the proceedings were commenced. Those proceedings were for damages for mesothelioma caused by exposure to asbestos fibres. Applications for reinstatement of the registration of each company were subsequently made under Corporations Act 2001 (Cth), s 601AH(2). The principal question in those applications was whether, if a reinstatement order was made, s 12B(2) would be engaged thereby permitting the survival actions then made to include damages for non-economic loss (such a claim otherwise being excluded by the Law Reform (Miscellaneous Provisions) Act 1944 (NSW), s 2(2)(d)). 2. The primary judge (Rees J) held that the reinstatement orders sought should be made in respect of each company, but that it was necessary also to make an order under s 601AH(3) to validate the commencement of the proceedings in the Dust Diseases Tribunal: In the matter of Austral Bronze Pty Ltd; In the matter of John Darlington Pty Ltd (No 2) [2020] NSWSC 1633. Before this Court the respondents, representing the estates of each of the original plaintiffs, contend that it was not necessary to make such an order because the deeming effect of s 601AH(5) – that upon reinstatement each company was taken to have continued in existence as if it had not been deregistered – was that each proceeding was commenced against an entity which at all relevant times had the "legal capacity and powers of an individual" (Corporations Act 2001, s 124). The appellant, Allianz, contends that the primary judge erred in making the order for reinstatement and in holding that the power conferred by s 601AH(3) extended to making an order validating the commencement of the legal proceedings against each company. 3. For the reasons which follow the primary judge did not err in ordering the reinstatement of the registration of the two companies. However the legal consequence of reinstatement will be that the relevant proceedings were validly commenced. It follows that it was not necessary for the primary judge to make an order to that effect under s 601AH(3). The relevant facts and ss 12B and 2(2)(d) 1. Claims for damages for dust-related conditions must be brought in the Dust Diseases Tribunal. Section 12A provides that no limitation period applies to such claims. Dust-related conditions include mesothelioma. Section 12B provides: 12B Damages for non-economic loss after death of plaintiff (1) The purpose of this section is to enable the estate of a person whose death has been caused by a dust-related condition to recover damages for the person's pain or suffering, or for any bodily or mental harm suffered by the person, or for curtailment of the person's expectation of life, provided proceedings commenced by the person were pending before the Tribunal at the person's death. (2) Section 2(2)(d) of the Law Reform (Miscellaneous Provisions) Act 1944 does not apply in relation to proceedings commenced by a person before his or her death and pending before the Tribunal at his or her death, where the cause of action is for damages in respect of a dust-related condition. 1. Section 2(1) of the 1944 Act provides for the survival of causes of action subsisting at the time of a person's death for the benefit of that person's estate. Subsection 2(2)(d) provides that the damages recoverable for the benefit of an estate where the death has been caused by the act or omission which gives rise to the cause of action do not include: "… any damages for the pain or suffering of that person or for any bodily or mental harm suffered by the person or for the curtailment of the person's expectation of life." 1. Where, as here, the proceedings in the Tribunal are commenced against more than one party, s 12B(2) only disapplies s 2(2)(d) to causes of action for damages where the proceeding for that cause of action was commenced before the plaintiff's death and was pending at his or her death: Amaca v Cremer (2006) 66 NSWLR 400; [2006] NSWCA 164 (McColl JA at [69], [70], [80]; Brereton J at [202]; cf Basten JA dissenting at [121]). Thus where there are multiple defendants s 12B(2) only applies to the defendants against whom there are causes of action which satisfy that subsection, and then only in respect of those causes of action. 2. It is not controversial that symptoms of mesothelioma may, and usually do, develop tens of years after a person's exposure to asbestos fibres; and at a time when the corporate employer or product supplier potentially liable may have been deregistered, and accordingly have ceased to exist. So it was for each plaintiff in this case. 3. John Viksne worked for Millard Caravans Pty Ltd (later John Darlington Pty Ltd) between 1969 and 1979. During the course of that employment he was exposed to asbestos fibres. On 20 May 2015, John Darlington was deregistered. In July 2019, Mr Viksne was diagnosed with mesothelioma. At that time he consulted a solicitor who on 17 July 2019 caused a statement of claim to be filed in the Tribunal against "John Darlington Pty Ltd (deregistered on 20 May 2015)". The remaining defendants were "Viscount Caravans Pty Ltd (deregistered on 26 July 1996)" and Amaca Pty Ltd. On 18 July 2019, Mr Viksne died. The subsequent reinstatement of the registration of Viscount Caravans was not opposed: see Judgment [17]. 4. Barry Fletcher's position is relevantly the same. Between 1960 and 1963 he was employed by Austral Bronze Co Pty Ltd and exposed to asbestos fibres. That company was deregistered on 26 September 1997. In September 2019, Mr Fletcher was diagnosed with mesothelioma. In December he consulted the same solicitor as Mr Viksne and on 20 December 2019 a statement of claim was filed in the Tribunal against "Austral Bronze Co Pty Ltd (deregistered on 26 September 1997)" and Wallaby Grip Ltd as second defendant. Mr Fletcher died on 28 December 2019. 5. The primary judge found that the solicitor acting for each of Mr Viksne and Mr Fletcher determined upon receipt of instructions to commence proceedings as soon as possible. That solicitor did so in order to preserve their entitlements, and those of their estates, to claim non-economic loss believing that as the proceedings had nominated the deregistered companies, they could subsequently be regularised by the reinstatement of the companies so as to allow the claims against them to proceed (Judgment [8], [13]). 6. Following Mr Viksne's death, an amended statement of claim was filed naming his widow and legal personal representative, Beverley Viksne, as plaintiff. In March 2020 Mr Fletcher's former partner and legal personal representative, Kathleen Comerford, was similarly substituted as plaintiff in the proceeding commenced by him. 7. Ms Viksne and Ms Comerford separately brought proceedings against Australian Securities and Investments Commission (ASIC) seeking orders for the reinstatement of the registration of John Darlington and Austral Bronze. Allianz, the employers' indemnity insurer for each company, was given leave to be heard in response to each of those applications. It also commenced separate proceedings seeking declarations that the reinstatement of each of the companies would not have the consequence that s 2(2)(d) of the 1944 Act would be disapplied so as to permit the recovery of damages for non-economic loss for the benefit of each estate. The applications for reinstatement 1. The applications for reinstatement were made under s 601AH of the Corporations Act 2001. That section relevantly provides: 601AH Reinstatement Reinstatement by ASIC (1) ASIC may reinstate the registration of a company if ASIC is satisfied that the company should not have been deregistered. … Reinstatement by Court (2) The Court may make an order that ASIC reinstate the registration of a company if: (a) an application for reinstatement is made to the Court by: (i) a person aggrieved by the deregistration; or (ii) a former liquidator of the company; and (b) the Court is satisfied that it is just that the company's registration be reinstated. (3) If: (a) ASIC reinstates the registration of a company under subsection (1) or (1A); or (b) the Court makes an order under subsection (2); the Court may: (c) validate anything done during the period: (i) beginning when the company was deregistered; and (ii) ending when the company's registration was reinstated; and (d) make any other order it considers appropriate. Note: For example, the Court may direct ASIC to transfer to another person property vested in ASIC under subsection 601AD(2). … Effect of reinstatement (5) If a company is reinstated, the company is taken to have continued in existence as if it had not been deregistered. A person who was a director of the company immediately before deregistration becomes a director again as from the time when ASIC or the Court reinstates the company. Any property of the company that is still vested in the Commonwealth or ASIC revests in the company. If the company held particular property subject to a security or other interest or claim, the company takes the property subject to that interest or claim. 1. John Darlington was deregistered on 20 May 2015. Accordingly the court's power to reinstate under Corporations Act 2001, Pt 5A.1 was engaged. That power was limited to the reinstatement of a "company", which is defined as a company registered under the Corporations Act 2001 (s 9). Although John Darlington was first registered under the Companies Act 1961 (NSW), a string of transitional provisions have the effect that it is to be treated as if it was registered under the Corporations Act 2001 (see Beck v Weinstock (2013) 251 CLR 425 at [47], [59] fn 93; [2013] HCA 15). Accordingly it was a "company" to which s 601AH applied. 2. The position with respect to Austral Bronze is more complicated and dealt with by the primary judge at Judgment [19]-[49]. Section 1408 of the Corporations Act 2001 preserved the operation of certain transitional provisions in the Corporations Law, including s 1362CH, as if they were part of the Corporations Act 2001 (see Shaw v Goodsmith Industries Pty Ltd [2002] NSWSC 406; (2002) 41 ACSR 556 at [8]). The primary judge concluded that notwithstanding the reference to "ASIC's powers" in s 1362CH, that section preserved and continued the part of s 601AH which contemplates action by ASIC to reinstate in accordance with an order made by the Court (s 601AH(2)). The correctness or otherwise of that conclusion was not contested, Allianz conceding that the Court also had power to reinstate Austral Bronze under s 601AH(2) (Judgment [49], cf Re Richards Contracting Co Management Pty Ltd (2021) 104 NSWLR 385; [2021] NSWCA 34 at [69]-[73]). This conclusion is not challenged on appeal. The grounds of appeal and notice of contention 1. In each application orders were made that ASIC reinstate the registration of each company; that upon reinstatement each company be wound up; that pursuant to ss 601AH(3)(c) and (d) the Dust Diseases Tribunal proceedings were validly commenced and pending as against each company as at the original plaintiff's date of death; and that without the further leave of the Court no step be taken to enforce any judgment or verdict as against the company otherwise than by resort to proceeds of insurance (Judgment [140]). 2. By its amended notices of appeal from those orders and by its notice of appeal in its declaratory proceedings, Allianz contends that the primary judge erred in two respects: first, in holding that the power conferred by s 601AH(3) extended to making orders retrospectively validating legal proceedings purportedly commenced against a deregistered company (appeal ground 1); and secondly, in finding that in all the circumstances it was "just" under s 601AH(2)(b) to order each company's registration be reinstated (appeal ground 2). Although Allianz was not a party to either of the application proceedings, no objection is made to its standing to bring appeals from the orders made in those proceedings. 3. By their notices of contention the respondents support the primary judge's orders on two grounds: first, that irrespective of the issue of the validation of the proceedings brought in the Tribunal, it was in all the circumstances "just" to order the reinstatement of each company pursuant to s 601AH(2) (contention ground 1); and secondly, that as provided by s 601AH(5) the effect of the reinstatement of registration of each company will be that the proceedings in the Tribunal were validly commenced as against each company (contention ground 2). 4. It is convenient in addressing the questions raised by these grounds of appeal and contention to start with contention ground 2 which assumes a reinstatement order is made and addresses the application of s 601AH(5) in that event. If that ground is upheld it becomes unnecessary to address appeal ground 1. There then remain appeal ground 2 and contention ground 1 which focus on whether it was "just" to make the orders for reinstatement. As will become apparent there is some overlap in the arguments made by Allianz in support of its position with respect to each of these questions. Whether effect of reinstatement is to validate proceedings commenced against the unregistered companies (contention ground 2) 1. At the times Mr Viksne and Mr Fletcher died, each had caused a statement of claim to be filed in the Tribunal which named one or other of the companies as a defendant. Uniform Civil Procedure Rules 2005 (NSW), r 6.2(1) applied (UCPR, r 1.5 and Sch 1) and provided that those proceedings were commenced by the filing of a statement of claim, and before service has been or has to be effected (see Choy v Tiaro Coal Ltd (In Liq) (2018) 98 NSWLR 493; [2018] NSWCA 205 at [23]). 2. The primary judge concluded, looking at the position at the time each of Mr Viksne and Mr Fletcher died, and putting to one side the effect of reinstatement, that no proceeding had been commenced against either of John Darlington or Austral Bronze because at that time neither of those companies existed (Corporations Act 2001, s 601AD(1)). Her Honour's conclusion that the filing of the statements of claim was not effective to commence a proceeding against either company is not inconsistent with the further observations of Hodgson JA and Giles JA in Deveigne v Askar (2007) 69 NSWLR 327; [2007] NSWCA 45 at [2] and [8] concerning whether the proceedings should themselves be described as a "nullity". The question here is not whether the filing of the initiating process had any legal effect in engaging the Court's jurisdiction but rather whether doing so was effective to commence proceedings against the non-existent companies. The answer to that question must be no, as her Honour held (Judgment [4(b)], [59]-[62]). 3. The primary judge then considered whether reinstatement of the companies "without more" would have the consequence that the Tribunal proceedings were "commenced … and pending" at the time of Mr Viksne's and Mr Fletcher's deaths. Her Honour answered that question in the negative (Judgment [4(c)], [64]-[68]). 4. In so concluding her Honour referred to Campbell J's (as his Honour then was) observation in White v Baycorp Advantage Business Information Services Ltd [2006] NSWSC 441; (2006) 200 FLR 125 at [115] that s 601AH(5) provides "only a limited measure of retrospectivity". That assessment, as his Honour explained, was made taking account of the provisions of s 601AH(5) with respect to directors of the company, who cease to be directors during the period of deregistration, and its property, which is vested in the Commonwealth or ASIC during the period of deregistration. As Campbell J noted, the absence of directors capable of acting on behalf of the deregistered company and the loss of contractual and other property rights was likely to limit the respects in which the mere continuance in existence of the company could result in legal consequences being attributed to conduct of third parties directed to the company, or to conduct purportedly undertaken on its behalf, whilst deregistered. 5. In her following analysis, the primary judge also referred to the decisions in CGU Workers Compensation (NSW) Ltd v Rockwall Interiors Pty Ltd [2006] NSWSC 690; (2006) 201 FLR 296 (Barrett J), Oates v Consolidated Capital Services Pty Ltd [2007] NSWSC 680 (White J, as his Honour then was), Foxman v Credex National Australian Trade Exchange Pty Ltd (in liq) [2007] NSWSC 1422; (2007) 65 ASCR 476 (White J), and Re Stork ICM Australia Pty Ltd [2010] FCA 53; (2010) 77 ACSR 517 (Lindgren J). Each concerned the application of s 601AH(5). As Lindgren J observed at [29] in Re Stork ICM (in the passage cited by the primary judge at Judgment [68]): The relevant issue addressed in these cases was whether particular acts, conduct, states of mind or omissions were to be attributed to the deregistered company, or particular acts purportedly directed against it were to be treated as effective, in each case as at a time during the period of the deregistration. The 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. 1. In Re Stork ICM, as also in GIO General Ltd (Agent for NSW Workcover Scheme) v Sabko Pty Ltd (2007) 70 NSWLR 743; [2007] NSWSC 251 (Austin J), "all of the circumstances giving rise to the liability in question had occurred prior to deregistration and all that remained for the liability to be enlivened was the effluxion of time" (Lindgren J at [30]). On that basis White v Baycorp and CGU v Rockwall were to be distinguished. In the former, certain notices were purportedly given on behalf of the deregistered company (White v Baycorp at [123]) and in the latter, a statutory demand was purportedly served on the deregistered company and not complied with (CGU v Rockwall at [16]-[17]). Oates v Consolidated Capital proceeded on the same basis. There the absence of a registered office during the period of deregistration meant that service could not become effective on reinstatement (at [34]-[36]). However as White J noted at [37], the deeming of CCL Australia's continued existence would mean that the originating process filed by Mr Oates and naming CCL Australia as a defendant would be validated. 2. There are two appellate decisions which are wholly consistent with the conclusion for which the respondents contend. The first is the decision of this Court in Video Excellence Pty Ltd v Cincotta (1998) 44 NSWLR 742. Video Excellence commenced proceedings against Mr Cincotta in the Supreme Court at a time after it had been deregistered. The proceedings were transferred to the District Court and, on Mr Cincotta becoming aware of the fact of its deregistration, a motion was filed seeking an order that the proceedings be dismissed or struck out. The District Court made an order dismissing the proceedings with costs. At that time an application had been made for reinstatement of the company's registration. However the Court determined to dismiss the proceedings rather than to adjourn them. The company was then reinstated. An application for leave to appeal was filed. Leave was granted and the appeal allowed. The appeal was by way of rehearing (Supreme Court Act 1970 (NSW), s 75A) and was to be determined by reference to the facts and law at the time of the hearing of the appeal (Allesch v Maunz (2000) 203 CLR 172; [2000] HCA 40 at [23]). The relevant deeming provision was Corporations Law, s 574(2) which provided that on reinstatement "the company shall be deemed to have continued in existence as if its registration had not been cancelled". 3. This Court (Spigelman CJ, Priestley and Sheller JJA agreeing) held that by reason of that provision "the claimant/plaintiff is deemed never to have lost its separate legal personality. It has such personality now. It is, and was, entitled to pursue the proceedings in this Court" (at 745). 4. It may be accepted that s 574(2) and (4) were not subject to the qualifications in s 601AH(5). However those limitations do not prevent the deemed fact as to the continued existence of the company, including at the time the proceeding was commenced, validating its commencement. There was only one fact (in addition to the filing of process in the Tribunal) necessary to produce that consequence, namely the company's existence as a separate legal personality at that time. 5. The second decision is that of the English Court of Appeal in Joddrell v Peaktone Ltd [2013] 1 WLR 784. Mr Joddrell brought a claim for damages for personal injury against the company. At the time proceedings were commenced the company had been dissolved. On Mr Joddrell's application an order was made that it be restored to the register. The reinstated company, Peaktone, then sought an order striking the action out on the ground that it was an abuse of process. That application was upheld. Mr Joddrell's appeal from that decision was allowed and that order set aside. Peaktone then appealed. Its argument proceeded as follows. First, the proceedings when commenced were a nullity. Secondly, the order restoring Peaktone to the register did not retrospectively validate that nullity because Companies Act 2006 (UK), s 1032(1) could not have that consequence. 6. In his judgment (with which Everton and Lewison LJJ agreed), Munby LJ commenced (at [11]ff) with a summary of the successive English Companies Acts which had "distinguished between two different routes to a judicial restoration of a dissolved or struck off company". The first provided for the restoration of the company to the register with the effect of such an order being that the company was "deemed to have continued in existence as if its name had not been struck off". The second conferred on the Court a general power to make an order "declaring the dissolution to have been void" and provided that thereupon "such proceedings may be taken as might have been taken if the company had not been dissolved". This second route did not include a "deeming" provision. In the United Kingdom those two separate procedures were replaced by the single procedure contained in Companies Act (UK) 2006, ss 1029-1032. As White J noted in Foxman v Credex at [45], before the amendments made by the Company Law Review Act 1998 (Cth), s 574 of the Corporations Law corresponded with the first of the routes described above and s 571 with the second. That Act replaced those provisions with provisions equivalent to s 601AH. 7. Section 1032(1) provided that the "general effect" of an order for restoration was that "the company is deemed to have continued in existence as if it had not been dissolved or struck off the register". The equivalent language in Companies Act 1948, 11 & 12 Geo 6, c 38, s 353 ("… the company shall be deemed to have continued in existence as if its name had not been struck off") had been construed by the Court of Appeal in Tyman's Ltd v Craven [1952] 2 QB 100. The majority (Evershed MR and Hodson LJ) regarded that language as requiring that the company be put in the same position it would have been in had its name not been struck off (at 120, 126). Lord Justice Jenkins, dissenting, considered that the deeming provision had a narrower operation and did no more than "restore and preserve … the corporate existence and identity of the company" (at 116). 8. In Joddrell v Peaktone Munby LJ treated the majority view in Tyman's Ltd v Craven as also describing the meaning and effect of s 1032(1), concluding that "true it is that in Tyman's Ltd v Craven the company was the plaintiff whereas in the present case Peaktone is the defendant, but that in my judgment cannot make any difference. In each situation the purported proceedings are a nullity. The proceedings are a nullity because there is no lis; one of the parties does not exist. It cannot matter which side of the record is subject to this vitiating feature". That feature was cured by the deeming of the company to have continued in existence. Accordingly "the effect of s 1032(1) is retrospectively to validate an action purportedly commenced by or against a company during the period of its dissolution" (at [49]). 9. Allianz takes issue with the respondents' contention that reinstatement would validate the commencement of the proceedings in the Tribunal against the companies. First, it is suggested that as "a matter of reality the company can only be 'taken' to have continued in existence as at the point of reinstatement". Whilst what is said to follow is not spelt out, the effect of this submission is to deny the retrospective operation of s 601AH(5). 10. That provision, by its use of the expression "is taken to have", deems the reinstated company to have "continued in existence", contrary to the fact. It thereby creates a statutory fiction which countermands the otherwise unqualified application of s 601AD(1). That fiction is to be applied when relevant in determining rights or liabilities defined by reference to past events, as explained by Gleeson CJ in Macquarie Bank Ltd v Fociri Pty Ltd (1992) 27 NSWLR 203 at 207-208. Those findings as to past events are to be made on the basis of material available at the time of the hearing in which the determination is to be made. Thus in Video Excellence v Cincotta, at the time the defendant's motion to dismiss or strike out the statement of claim was heard in the District Court, there had been no order for the reinstatement of the plaintiff. As Spigelman CJ observed (at 745) at "the time that the matter was before his Honour the plaintiff did not exist and, at the very least, it was appropriate for the Court to take no further steps". The outcome of the appeal by way of rehearing depended on the facts, deemed or otherwise, as then applied in respect of the relevant events. 11. There has not been any determination in the Dust Diseases Tribunal of the question as to the possible application of s 12B(2). A question in the reinstatement proceedings was whether the making of an order for reinstatement would, either alone or with a further order under s 601AH(3), validate the commencement of the proceedings in the Tribunal. The answer to that question was relevant to the utility of making a reinstatement order under s 601AH(2) and to the need to make any ancillary order under s 601AH(3). If such a determination could have been made and had been made by the Tribunal, an additional question may have arisen as to whether there was any res judicata preventing the respondents from now relying on the operation of the deeming provision. See Spencer, Bower and Handley, Res Judicata, (4th ed, 2009, LexisNexis) at para 17.25. 12. Secondly, Allianz also relies on the authorities to which reference has already been made (see [23]-[25]). It is suggested that s 601AH(5) "cannot in a retrospective way, give efficacy to active steps taken in relation to a company which, because of the company's non-existence, were, when taken, simply devoid of legal effect". The quote is from CGU v Rockwell at [17]. That statement of Barrett J must be understood in the context of his Honour's adoption of the analysis of Campbell J in White v Baycorp. That analysis (especially at [123]) accepted that there may be cases in which the deemed fact of the company's continued existence will be sufficient to validate something done during the period the company was deregistered. The present is such a case. Deputy Commissioner of Taxation v Action Workwear Pty Ltd (deregistered) (1996) 20 ACSR 712, which is also relied on by Allianz, was not. There the issue was whether, by reference to the operation of Corporations Law, s 574(4), the effect of reinstatement would be that a statutory demand, relied on in a winding up application, had been validly served. Senior Master Mahony held that it would not, "the situation being considered … involving the acts of a third party and omissions to act by those who might purport to act in the name of the company" (at 726). 13. Allianz also contends that the retrospective deeming in s 601AH(5) does not apply where the reinstatement occurs after the death of the plaintiff, by which time s 12B(2) will already have been engaged. That is said to be the consequence of s 5E(1) of the Corporations Act 2001, which in turn is said to require two things, namely that s 601AH(5) be construed as not displacing the operation of s 12B before reinstatement; and that s 601AH(3) be construed as not conferring a power to make an order which has that effect. 14. Section 5E(1) provides: Part 1.1A – Interaction between Corporations legislation and State and Territories laws … 5E Concurrent operation intended (1) The Corporations legislation is not intended to exclude or limit the concurrent operation of any law of a State or Territory. The immediately following s 5F provides for State laws to exclude particular matters from the operation of specified provisions of the Corporations Act 2001. As the primary judge observed at Judgment [121], the Dust Diseases Tribunal Act identifies specific matters as excluded matters in relation to the application of specific provisions of the Corporations Act 2001. Those matters do not include s 12B(2) and the operation of ss 601AH(3) or (5). 1. At the same time it is not otherwise contended by Allianz that there is or would be any "direct inconsistency" between these provisions, or any "indirect inconsistency" and "covering the field", which might in either case engage the application of s 109 of the Constitution. It is sufficient to note that the relevant principles associated with each of these expressions are stated in Dickson v The Queen (2010) 241 CLR 491; [2010] HCA 30 at [13]-[14] and Jemena Asset Management (3) Pty Ltd v Coinvest Ltd (2011) 244 CLR 508; [2011] HCA 33 at [39]-[42]. 2. Allianz's submission based on the language of s 5E(1) is misconceived. As Gummow J described the position in Momcilovic v The Queen (2011) 245 CLR 1; [2011] HCA 34 at [269], in legislation dealing with subject matter upon which the Commonwealth and the States have power to legislate, the language of s 5E(1) is a "drafting device" used by the Parliament to convey the notion that "a federal law is to be construed so as to accommodate or not exclude the operation of State laws in specified respects". As his Honour then observed at [271], the same language was used in s 75(1) of the Trade Practices Act 1974 (Cth). In the Queen v Credit Tribunal; ex parte General Motors Acceptance Corp (1977) 137 CLR 545; [1977] HCA 34, Mason J (with whom Barwick CJ, Gibbs, Stephen and Jacobs JJ agreed) said of that provision (at 564): It is against this background of settled constitutional interpretation that s 75 is to be construed. In light of what has already been said, the terms of s 75(1) are open to the objection that they refer to the concurrent operation of State laws; they do not speak of the extent of the intended operation of the Commonwealth law. None the less, there is to be gathered from the sub-section a very clear expression of intention that the Trade Practices Act is not an exhaustive enactment on the topics with which it deals and that it is not intended to operate to the exclusion of State laws on those topics. 1. Accordingly s 5E(1) says nothing as to the intended effect or operation of s 601AH. In its terms that section provides for the reinstatement of the registration of a company which has been deregistered, and that the effect of such reinstatement is that the company is taken to have continued in existence as if it had not been deregistered. There is no limiting qualification as to the companies to which, or circumstances in which, the deeming provision is to apply. A similar deeming provision was first introduced in New South Wales by the Companies Act 1936 (NSW), s 323(6). Section 12B was introduced into the Dust Diseases Tribunal Act in 1998 by which time it was well understood that claims in the Tribunal's exclusive jurisdiction may have to be pursued against corporate defendants which had been deregistered and required reinstatement. 2. For these reasons contention ground 2 should be upheld. It was unnecessary for the primary judge to make any ancillary order under s 601AH(3). It follows that appeal ground 1 does not arise. I will nevertheless address it shortly. Did s 601AH(3) confer power to make orders retrospectively validating the commencement of legal proceedings (appeal ground 1) 1. The conferral of a power to "validate anything done" during the period the company was deregistered assumes that what was done would not otherwise be rendered valid by reason of the order for reinstatement. However s 601AH(3) also confers a power to make "any other order" the court considers appropriate. That power would extend to the making of a declaration as to the effect of the deemed continued existence of the company. However an order in those terms is not sought and there would be little utility in making that order where the companies to be reinstated are not parties to the proceedings in this Court. 2. Had the reinstatement not had that consequence, I would have rejected Allianz's submission that the power conferred by s 601AH(3) was not wide enough to validate the commencement of the proceedings. Allianz's argument characterises the commencement of proceedings against a non-existent company as a "legal non-act" or a "nullity". It then points out that the power conferred is to make an order that validates "anything done" in the period in which the company was deregistered. It is said that because commencing proceedings against a non-existent entity has no legal effect or consequence there is nothing relevantly "done" which may be validated. This argument treats the words "anything done" as limited to something that has a legal effect, but for that purpose does not treat the act of filing an initiating process naming a non-existent defendant as having any legal effect by engaging or purporting to engage the court's jurisdiction. The language of s 601AH(3) does not justify reading the words "anything done" as so limited or as not including, in this case, the act of filing the two statements of claim in the registry of the Tribunal. On any view that describes something that was done, and irrespective of whether it had any immediate legal effect or consequence for the non-existent companies. 3. The remaining two arguments made by Allianz have no merit. As to the first, the fact that the statements of claim were not served or purportedly served is not relevant to the validity of the commencement of proceedings and the order made by the primary judge does not purport to validate any service. Secondly, the order made did not in terms or in effect grant the "retroactive" joinder of the reinstated companies as parties. Accordingly no question as to the application of UCPR, r 6.28 arises. Whether error in finding in all circumstances "just" that companies be reinstated (appeal ground 2 and contention ground 1) 1. Section 601AH(2) provides that a reinstatement order may be made if an application is made by a person "aggrieved" and the court is satisfied that it is just that the company's registration be reinstated. 2. Mr Viksne and Mr Fletcher were precluded by the deregistration of the companies from bringing proceedings against them. The respondents were also precluded by their deregistration from bringing any proceedings. The primary judge held that in those circumstances the respondents were "aggrieved" because each may be entitled to have the company's registration reinstated so as to enable the pursuit of claims on behalf of the two estates, including for non-economic loss (Judgment [127], [128]). In her Honour's analysis that was because the Court had power to make an order for reinstatement and a validating order under s 601AH(3). On the analysis which I prefer, the respondents' position is the same except that reinstatement will necessarily validate the commencement of the proceedings. 3. The respondents submitted that the making of the reinstatement and validating orders was just because it enabled them to pursue claims which could have been pursued if the companies had not been deregistered. In response Allianz submitted that it would not be "just" to reinstate the companies, describing the applications to do so as a "device to seek to outflank the operation of s 2(2)(d) and s 12B(2)". 4. The primary judge approached the question whether it was "just" to make the orders sought as follows (Judgment [131], [132], [138]). The plaintiffs' inability to commence proceedings against the companies before their deaths was the "inevitable incident" of their deregistration and something which the Court could cure by making an order for reinstatement. That was consistent with the object of the legislation being to treat each company as if it had continued in existence. Each when reinstated would be wound up and there would be no prejudice to the company or its former directors because any judgment would only be enforced against its insurer. 5. Her Honour described the outcome of the making of a validating order as "akin to ancillary orders suspending the limitation period in respect of claims" (Judgment [138]). That comparison focuses on the outcome of such an order, although it would only thereby permit an additional head of damage to be claimed, rather than a cause of action to be pursued. It does not take the analysis supporting the conclusion that the reinstatement was "just" very far. The real point was that by reason of the deregistration the original plaintiffs were precluded from prosecuting substantial claims against the companies before their deaths, in which event s 2(2)(d) was not disapplied. The respondents representing their estates were similarly aggrieved and could achieve the same outcome by reason of the deeming provision. In circumstances where there was no prejudice to the companies, it was "just" that the companies be reinstated "with the ancillary orders sought". 6. Allianz's argument in support of appeal ground 2 focuses on her Honour's description of the validating order as "akin to ancillary orders suspending the limitation period in respect of claims against a company". That description is said to reveal a misunderstanding of the operation of ss 12B and 2(2)(d). Analysing those provisions and their concurrent application, it is suggested that at the times of death of each plaintiff s 12B did not enliven any right to claim damages for non-economic loss which inured for the benefit of each plaintiff's estate. The result is said to be that the effect of the proposed validating order was to create "in the hands of the legal personal representatives a new right to statutory damages under s 12B". 7. This analysis does not acknowledge the potential operation of s 601AH upon s 12B. The entitlement to make an application for the reinstatement of the registration of the companies was available to the original plaintiffs and to the respondents, in each case as persons aggrieved. The outcome which Allianz resists is the operation of s 12B taking account of the deemed effect of reinstatement. 8. Allianz's argument does not identify any misunderstanding of the primary judge as to the concurrent operation of s 601AH(5) and s 12B. Accordingly there was no House v The King error in her Honour's conclusion that it was "just" that a reinstatement order should be made. Ground of appeal 2 should be dismissed, making it unnecessary to separately address contention ground 1. Conclusion 1. Because reinstatement would have the effect of validating the commencement of each proceeding in the Dust Diseases Tribunal, there was no basis for the making of order 3 in proceeding 2020/86263 and in proceeding 2020/86229. Accordingly in the appeals in proceedings 2020/355112 and 2020/355127 orders should be made setting aside order 3, and otherwise dismissing those appeals with costs. The remaining appeal proceeding 2020/355132 should be dismissed with costs. Allianz also filed summonses seeking leave to appeal in the terms of the appeals which have been addressed. Each of those summonses should also be dismissed. 2. WHITE JA: The circumstances giving rise to this appeal are described in the reasons of Meagher JA which I have had the advantage of reading in draft. 3. For the reasons given by the primary judge (at [125]) and by Meagher JA (at [40]-[41]), s 12B of the Dust Diseases Tribunal Act 1989 (NSW) and s 601AH of the Corporations Act 2001 (Cth) have a concurrent operation. 4. For the reasons given by Meagher JA the primary judge was correct to conclude that it was just that the named defendants be reinstated. 5. It is unnecessary and would be inappropriate to attempt any full explication of the operation of s 601AH(5). In this case it is enough to say that the effect of s 601AH(5) is at least to restore the reinstated companies retrospectively to their former corporate status as the same companies that had previously been dissolved (Tyman's Ltd v Craven [1952] 2 QB 100 at 116; Foxman v Credex National Australian Trade Exchange Pty Ltd (in liq) [2007] NSWSC 1422; (2007) 67 ACSR 476 at [45]-[54]). That is sufficient to enable the respondents to engage s 12B(2) of the Dust Diseases Tribunal Act through the retrospective deeming of the companies to have been in existence when the proceedings naming them as defendants were filed. 6. Contrary to the appellant's submissions, the appeal does not turn on the scope of the court's power under s 601AH(3) to validate anything done during the period of deregistration, or to make any other appropriate order. I agree with Meagher JA (at [42]) that there was no need for the primary judge to have made a validating order under s 601AH(3). 7. For these reasons and the reasons of Meagher JA with which I agree, the appeal should be dismissed with costs. 8. SIMPSON AJA: I agree with the orders proposed by Meagher JA for the reasons given by his Honour. I also agree with the additional observations of White JA. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 04 November 2021