MERCANTILE MUTUAL INSURANCE (AUST) LTD v MOULDING and ANOR (No 3) [1997] NSWCA 201

MERCANTILE MUTUAL INSURANCE (AUST) LTD v MOULDING and ANOR (No 3)

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

PRIESTLEY and POWELL JJA and CLARKE AJA 5 June 1997, 22 July 1997

[1997] NSWCA 201

Statutes — Interpretation — Particular words and phrases — "determined by a court before that commencement". Statutes — Interpretation — Retrospective operation — Amending Act — Amendment not to apply retrospectively unless "liability was the subject of... proceedings that have been determined by a court before" commencement of amendment. Words and Phrases — "determined by a court..."

Priestley JA I agree with Powell JA

Powell JA In pursuance of the leave in that behalf reserved to the Claimant/Appellant ("the Appellant') in April 1996 at the time when this Court delivered the second of its Judgments in this appeal, the Appellant has moved the Court for leave further to amend its Amended Notice of Appeal so as to raise an additional ground of appeal in the following terms, or to the like effect:

"6. Since the Court of Appeal has increased the Judgment of Sackville AJ and has applied the provisions of s79(3) MAA as it was at the date of the appeal, the Appellant/Defendant is entitled as against the Second Respondent to rely upon the provisions of the Workers Compensation Legislation Amendment Act 1995 and recover contribution from the Second Respondent under the doctrine of double insurance."

and for leave to advance submissions in support of that additional ground of appeal.

Although the Opponent/Second Respondent ("the Second Respondent') opposed the grant to the Appellant of leave further to amend its Amended Notice of Appeal in the way recorded above, Mr J J Steele QC who appeared with Mr P R Arden on the hearing of the application for the Second Respondent did not raise any objection to the Court dealing with the two aspects of the application together, and the application accordingly proceeded on that basis.