AMP General Insurance Ltd v Victorian WorkCover Authority & Ors [2006] VSCA 236

1 On 25 October 1989, a worker suffered injuries from a fall at a domestic building site in East Malvern. The Victorian WorkCover Authority has paid the worker statutory compensation since he was injured. The Authority alleges that his injuries were caused by the negligence of Jara Constructions Pty Ltd ("the company"), which it says was the principal contractor at the site. AMP General Insurance Limited ("AMP") was the public liability insurer of the company.

2 The Authority wishes to enforce against the company its statutory right of indemnity under s.138 of the Accident Compensation Act 1985. The company was deregistered on 11 September 1998, so the Authority applied to the Court under s.601AH(2) of the Corporations Act 2001 for an order reinstating the company.

3 The application for reinstatement was not opposed by the Australian Securities and Investments Commission and on 5 July 2006, Master Efthim ordered that the company be reinstated. AMP, though not a party to the original application, filed a notice of appeal from the Master's decision. No issue was raised about the standing of AMP to appeal, but on 24 August 2006, the appeal was dismissed.

4 The matter came on in this Court on 5 October 2006, as an application for leave to appeal. Although it was the view of both parties that no leave was required, AMP nevertheless sought leave out of an abundance of caution. We deal with the question of leave later.

5 AMP also sought an order that the appeal not be taken to have been abandoned. The deemed abandonment occurred because of AMP's failure to file within the prescribed time the Note of Proposed Contents of Appeal Book: r.64.16(1). The Authority would not consent to the reinstatement of the appeal, because it maintained that the appeal was manifestly hopeless.

6 In the course of argument on these interlocutory issues, the Court proposed - and the parties agreed - that the appeal itself could be heard the following day (6 October). This course was followed and the hearing of the appeal took only half a day. The parties and their legal representatives are to be commended for their readiness to change course at short notice. The speedy disposition of the appeal in circumstances such as this has obvious advantages both for the parties and for the Court.

7 To enable that course to be followed, the President determined under s.11(1A) of the Supreme Court Act 1986 that the Court be constituted for this appeal by two Judges of Appeal.

Whether leave to appeal is required

8 It is a matter of concern that the question of whether an order is final or interlocutory - that being the criterion under s.17A(4) of the Supreme Court Act for determining whether leave to appeal is required - continues to be productive of such uncertainty. It is most unfortunate that a party in AMP's position feels compelled to make a precautionary application for leave to appeal, even though its own assessment is that leave is not required. As the long list of cases set out in Williams - Civil Procedure demonstrates, the distinction has proved to be notoriously difficult to apply over many years.

9 There must, of course, continue to be a class of orders - those traditionally characterised as "interlocutory" - which are only appellable by leave. Both the workload of the Court of Appeal, and the importance of minimising interlocutory appeals, require that this be so. But the continuation of the uncertainty, reflected in other applications before the Court in recent weeks, suggests that it may be time to explore a different approach to classification. The Civil Justice Review, presently being undertaken by the Victorian Law Reform Commission, provides an opportunity to consider the possibilities for reform.

10 Leave to appeal is required if the appeal is from "a judgment or order in an interlocutory application".[1] AMP contends - and the Authority does not dispute - that the order of the Judge below is a final order because it finally determines the rights of the parties in relation to the reinstatement proceeding. The reinstatement proceeding is a self-contained proceeding provided for by the Corporations Act, with its own originating process.

11 Were the reinstatement proceeding to be viewed in isolation, the order reinstating the company would have to be regarded as a final order. The question is whether its character changes in circumstances where the reinstatement proceeding is no more than a necessary preliminary to the prosecution of a principal proceeding. That is often - though not uniformly - the case with reinstatement applications.

12 In Dodoro v Knighting,[2] Callaway JA (with whom the other members of the Court agreed on this point) identified, as one of three kinds of interlocutory orders, an order which does not determine the rights of a party in a principal cause. His Honour said:

"[A]n order may be interlocutory because, whether or not a fresh application might be made, it does not determine the rights of the parties in a principal cause. In Brincat v R an order was made in the Supreme Court of Victoria in aid of criminal proceedings in Western Australia. In X v Director of Public Prosecutions an order was made in the Supreme Court under ss 9H and 9I of the Evidence Act 1958 for a witness to give evidence in a committal proceeding by video link from Canberra. In Hornsby v Kaschke an order was made in the Supreme Court quashing an order in the Magistrates' Court in relation to pre-trial disclosure. In Kasssionis v Magistrates' Court of Victoria an order was made in the Supreme Court refusing relief in the nature of certiorari and prohibition in relation to orders and rulings made on a contested mention in the Magistrates' Court. In all those cases the order made in the Supreme Court was interlocutory because the principal cause lay elsewhere."[3]

13 On balance, however, we think that the reinstatement order is a final order in the (separate) reinstatement proceeding. By that order, the Court disposes of the reinstatement proceeding, giving the applicant all of the relief it seeks in that proceeding. Although the purpose which motivates the application in a case such as this is to enable other litigation to be pursued, the fact is that the order of reinstatement is not so limited. The order is effective for all purposes. The company is back on the register, and it is again subject to all of the compliance obligations which go with registration. Unlike the examples discussed in Dodoro v Knighting,[4] the order cannot therefore be characterised as merely ancillary to "a principal cause."

14 Moreover, there are circumstances in which the purpose of reinstatement is unconnected with litigation. It would be quite unsatisfactory for the character of the reinstatement order to vary (for appeal purposes) according to whether there was, or was not, a connection with other litigation. For that additional reason, the only proper conclusion is that the reinstatement order is not interlocutory and, accordingly, that leave to appeal is not required.

15 In relation to the other order sought in the amended summons, we would make the order that the appeal not be taken to be abandoned pursuant to r.64.16(2). The failure to comply with the requirement to file a notice of proposed contents of the appeal book in the time specified under r.64.08 was due to an oversight by the solicitor for AMP. Although, as will be seen below, we would dismiss the appeal, this is not the extreme case where the appeal is so devoid of merit that the interests of justice are served by the appeal being taken to have been abandoned.[5] No prejudice was caused to the respondent by the failure to comply with the rules.

The nature of the appeal

16 The reinstatement power is conferred by s.601AH(2), which provides:

"A court may make an order... if -

(a) ...

(b) the Court is satisfied that it is just that the company's registration be reinstated."

17 The power is discretionary, but is not capable of exercise unless the two conditions precedent to its exercise are satisfied. [6] The relevant condition for present purposes is that the Court is satisfied that reinstatement of the company is just.

18 Two questions arise about the application of s 601AH(2). The first question is whether the court has a residual discretion to refuse reinstatement, even if the conditions in the section (in this case, the condition that reinstatement be just) are satisfied. The second question is whether a decision to order reinstatement is a purely discretionary one, so that the scope for appellate intervention is limited by the principle in House v R,[7] or the appellate court's task is to determine for itself whether reinstatement was just, according to the normal process of appellate review.

Does the court have a residual discretion to refuse reinstatement?

19 In WorkCover Authority (NSW) v Picton Truck and Trailer Repairs Pty Ltd,[8] the New South Wales Court of Appeal considered whether, if the conditions were satisfied, there was any discretion in the Court nevertheless to refuse reinstatement. Sheller JA said:

"... [A]rguably where the word 'may' is used to invest a court with power as in s.601AH(2) and indicates the circumstances in which the power is to be exercised, if the circumstances are shown to exist there remains no room for the Court to refuse to exercise the power at its discretion."[9]

20 In Commissioner of State Revenue v Royal Insurance,[10] Brennan J considered the effect of provisions which gave the Commissioner a discretion to refund overpaid tax, if certain conditions were satisfied. He said:

"The Commissioner is a public officer vested with a power to be exercised for the purpose, inter alia, of discharging her liabilities. When the power exists and the circumstances call for the fulfilment of a purpose for which the power is conferred, but the repository of the power declines to exercise the power, mandamus is the appropriate remedy even though the repository has an unfettered discretion in other circumstances to exercise or to refrain from exercising the power. Mandamus will go where there is a duty to pay money. In this case, there is no residual discretion in the Commissioner to refrain from making a refund in exercise of her powers under s.111(1) once she finds that there has been an overpayment and there is a legal liability to refund the amount found to have been overpaid."[11]

21 It is not necessary to decide the question in the present case_,_ though we are inclined to agree with the view of the Judge below that :

"Notwithstanding the doubts expressed by the New South Wales Court of Appeal in Picton, it seems to me that there must accordingly be a residual discretion in relation to the making of an order, although it is difficult to imagine circumstances where that discretion would be exercised so as not to make an order where an aggrieved person had applied and the Court was satisfied that reinstatement was just."[12]

Is the decision to order reinstatement purely discretionary?

22 At the commencement of the hearing, AMP accepted that the decision to order reinstatement was purely discretionary, so that scope for appellate intervention was limited by the principle in House v R.[13] At the conclusion of the appeal, however, AMP sought and was granted leave to amend its notice of appeal so as to include an alternative ground, inviting this Court to decide the question for itself. The new ground states:

"The Judge erred in finding that the reinstatement would be just".

23 Counsel for AMP relied on what was said by Samuels JA in Beneficial Finance Corporation Limited v Karavas.[14] The New South Wales Court of Appeal was there concerned with an appeal from a trial judge's conclusion that a contract was "unjust" within the meaning of the Contracts Review Act 1980 (NSW). In the view of Samuels JA, the finding that in the particular circumstances of the case the contract was unjust -

"is no more discretionary in character than a finding that an act or omission was negligent, a conclusion about which different minds may also take different views. But the fact that it may be difficult to determine a factual conclusion does not mean that it is to be perceived as inhabiting an area in which the fullest reign is to be given to the predilections of individual judges without the wholesome restraint of uniformity which the attentions of an appellate court are designed to provide."[15]

24 Kirby P expressed agreement with this analysis, but did not decide the question. His Honour proceeded on the assumption that the conclusion was open to ordinary appellate review but said that, because of "the very open-ended and evaluative nature of the statutory criterion", there was a reason for appellate restraint. That restraint -

"derives from a modest appreciation of the fact that opinions of what constitutes injustice will vary from one judicial decision-maker to another. So long as there is an adequate basis for the opinion to be reached, conscientiously and honestly in a particular case, the appellate court should approach with caution the substitution of its opinion for that of the trial judge."[16]

25 In Norbis v Norbis,[17] the High Court was concerned with that part of the Family Law Act 1975 which gives the Family Court the power to make orders for the distribution of property according to what is "just and equitable". Mason and Deane JJ said that such an order was discretionary -

"because it depends on the application of a very general standard - what is 'just and equitable' - which calls for an overall assessment in the light of the factors mentioned in [the Act], each of which in turn calls for an assessment of circumstances. Because these assessments call for value judgments in respect of which there is room for reasonable differences of opinion, no particular opinion being uniquely right, the making of the order involves the exercise of a judicial discretion. The contrast is with an order the making of which is dictated by the application of a fixed rule to the facts on which its operation depends."[18]

26 Counsel for the Authority referred to the decision of Goldberg J in Promnitz v Australian Securities and Investments Commission,[19] where his Honour said:

"The requirement that the Court be satisfied that it is just that the company's registration be reinstated is not constrained by any particular criterion. However, the cases make it clear that there are a number of matters which ought to be taken into account, namely the circumstances in which the company came to be deregistered, the future activities of the company if an order be made and also whether any particular person is likely to be prejudiced by the reinstatement."[20]

27 In our view, the decision to order reinstatement is properly characterised as a discretionary decision of the kind described in Norbis v Norbis. The decision has all of the features there referred to. The decision depends on the application of a very general standard - what is "just". The standard is so general, indeed, that it might be thought to do no more than make explicit the duty implicitly imposed on every decision-maker - to consider and weigh, fairly and rationally, all the relevant considerations. What is "just" is a value judgment, and there is room for reasonable differences of opinion, no particular opinion being uniquely right.

28 Accordingly, it is not for this Court to decide for itself whether reinstatement is just. Rather, we must consider whether AMP has shown the discretion to have miscarried, in accordance with the well-established principles for appellate review of discretionary decisions.[21]

Did the discretion miscarry?

29 AMP's attack on the decision of the primary judge concentrated on the prejudice likely to be caused to AMP on account of the "extraordinary, unexplained delay" by the Authority in seeking to enforce its rights. The essential complaint is that the judge failed to give any, or any sufficient, consideration to this question of prejudice.

30 As already noted, the workplace accident occurred in October 1989. In 1995, the Authority commenced a proceeding against the company seeking an indemnity under s.138. The company filed a defence to that proceeding. On 1 November 1996, a new case management system commenced operation in the Supreme Court which provided, in part, that any proceeding commenced by writ filed before 1 November 1996 would stand dismissed on 1 July 1997 unless the proceeding had been set down for trial or had been admitted to one of a specified number of lists. On 1 July 1997, no such step having been taken, the Authority's proceeding against Jara stood dismissed.

31 The Authority did not move to reinstate the proceeding against the company. No further step appears to have been taken until March 2005, almost seven years later, when the Authority commenced a proceeding against AMP as defendant, seeking recovery directly from AMP under s.601AG of the Corporations Act 2001. When AMP's solicitors raised a number of legal objections to that proceeding, the Authority evidently decided that it should seek to have the company reinstated, so that proceedings could once again be brought directly against the company. Hence the reinstatement application.

• the Authority could have commenced a proceeding against the company under s.138 in 1989, as soon as it commenced making payments to the worker. In that proceeding the Authority could have sought indemnity in respect of all payments already made, and a declaration in relation to future payments of compensation;

• the Authority's delay in seeking to enforce its rights against the company, and in particular its failure to prosecute the 1995 proceeding, was so extraordinary as to require an explanation. Yet none had been provided;

• should the Authority now be permitted to proceed against the company, the trial might not take place until 2009 which would be 20 years after the accident. There is a substantial risk that a fair trial may not take place.

33 AMP argues that the recollections of witnesses will clearly be worse in 2009 than they were 12 years ago when the 1995 proceeding was commenced. Particular reliance is placed on the following passage from the judgment of McHugh J in Brisbane South Regional Health Authority v Taylor:[22]

"The enactment of time limitations has been driven by the general perception that '[w]here there is delay the whole quality of justice deteriorates'.[23] Sometimes the deterioration in quality is palpable, as in the case where a crucial witness is dead or an important document has been destroyed. But sometimes, perhaps more often than we realise, the deterioration in quality is not recognisable even by the parties. Prejudice may exist without the parties or anybody else realising that it exists. As the United States Supreme Court pointed out in Barker v Wingo,[24] 'what has been forgotten can rarely be shown'. So, it must often happen that important, perhaps decisive, evidence has disappeared without anybody now 'knowing' that it ever existed. Similarly, it must often happen that time will diminish the significance of a known fact or circumstance because its relationship to the cause of action is no longer as apparent as it was when the cause of action arose. A verdict may appear well based on the evidence given in the proceedings, but, if the tribunal of fact had all the evidence concerning the matter, an opposite result may have ensued. The longer the delay in commencing proceedings, the more likely it is that the case will be decided on less evidence than was available to the parties at the time that the cause of action arose."

34 The Judge below clearly understood the submission which AMP was making. He said:

"Counsel for AMP placed particular emphasis upon the fact that WorkCover was seeking to litigate causes of action which would require enquiry into an accident which occurred almost 17 years ago. It was submitted on behalf of AMP that WorkCover's approach to the matter involved unexplained and inexcusable delay and that there was a consequent risk that there could not be a fair trial of the issues. It was submitted that a consequence of reinstatement would be to create new liabilities which did not previously exist."[25]

"AMP did not contend that it had a defence to the prospective action which was bound to succeed, but rather contended that it was not just to reinstate a company for the purpose of instituting a proceeding in circumstances where the defendant would be or may well be prejudiced by the applicant's own inexcusable delay."[26]

"In substance the issue argued before me was whether or not it was just to reinstate the company, notwithstanding that WorkCover was aggrieved by its deregistration, because of WorkCover's inexcusable and unexplained delay in pursuing its remedies."[27]

35 The conclusion which his Honour reached was as follows:

"The application for reinstatement is not the appropriate venue to deal with such matters, other than in the clearest of clear cases. If it were clear that the prospective action would be stayed as an abuse of process, then the reinstatement would be futile and the Court would not order it, either because it was not just to do so or in the exercise of the Court's residual discretion. That is not the position I am in. It is not clear to me that the prospective proceeding will be stayed as an abuse of process. I accept the submissions of WorkCover's counsel in that regard."[28]

36 His Honour concluded that it was just to reinstate the company, stating his reasons as follows:

"(a) WorkCover asserts a statutory right of recovery which, if otherwise well-founded, will be frustrated by a deregistration which occurred by virtue of circumstances entirely unrelated to any issues relevant to the pursuit of that statutory right.

(b) If WorkCover's delay and other conduct means that the proceeding which it intends to take against Jara, by joining it as a defendant to the existing proceeding or otherwise, would amount to an abuse of process or inflict such unnecessary injustice as would require that the proceeding be stopped, then an appropriate application seeking that relief can be made in the proceeding on the basis of material properly directed to that issue. That is the appropriate venue for such matters to be addressed and determined."[29]

37 In our view, the attack on his Honour's exercise of discretion must fail. This is not a case where it can be said that the primary judge "failed to take into account a relevant consideration", in the sense in which that category of discretionary error is defined. The relevant consideration was the (risk of) prejudice to AMP flowing from the reinstatement of the company, namely, that as the company's insurer AMP would be in the position of having to litigate (through exercise of its right of subrogation) a proceeding about a workplace accident which occurred very many years ago.

38 As appears from the passages we have set out, his Honour recognised the relevance of the issue - indeed, he described it as the issue for decision. AMP's real complaint concerns his Honour's refusal to undertake the kind of assessment of the risk of prejudice which would take place on an application to dismiss the proceeding for want of prosecution or otherwise as an abuse of process.

39 One of AMP's subsidiary objections was that his Honour erred in treating abuse of process, rather than want of prosecution, as the appropriate "analogue". This was said to be significant because - so the argument went - the discretion to dismiss for want of prosecution was enlivened merely by showing that there is a risk that a fair trial may not be had, whereas abuse of process could only be demonstrated where the applicant can show that a fair trial is not possible.

40 This submission must be rejected on both grounds. First, as the decision of this Court in Bishopsgate Insurance Australia Limited v Deloitte Haskins & Sells[30] demonstrates, the inherent power to stay or dismiss for want of prosecution is but one aspect of "the incidental powers which all courts have to prevent abuses of process."[31] Exactly the same point was made by the High Court majority in Batistatos v Roads and Traffic Authority (NSW).[32] Secondly, and consequently, no different test is applicable. Whether the complaint advanced by the defendant relies on the general principles of abuse of process or the more specific category of want of prosecution, the criterion is the same. Is there a substantial risk that the defendant will be unable to obtain a fair trial in the circumstances of the case? For want of prosecution, the defendant will need to show that the plaintiff's delay was "inordinate and inexcusable".[33]

41 Obviously, the delay of 17 years between the accident and now raises very real questions about whether a fair trial will be possible. His Honour's conclusion was, however, that this substantial lapse of time did not make it clear beyond argument that a fair trial was impossible. He concluded that further investigation of that question would be required and that the appropriate forum for that investigation was in the proposed proceeding against the company.

42 In our view, that conclusion was well open to his Honour in the making of this discretionary decision. Indeed, we would respectfully express our agreement with it. (That is, if we had had to decide the matter for ourselves, we would have come to the same conclusion). His Honour's approach reflected that of Gillard J in Pilarinos v Australian Securities and Investments Commission.[34] In that case, a putative defendant appealed against the reinstatement of a company, arguing that it was not just to order reinstatement because the proposed proceeding was bound to fail, and hence reinstatement was futile. Gillard J said:

"I think it would be appropriate, also, as a general guideline, that if a judge formed the view on the material that it was proposed to sue the company, and the cause of action was hopeless, it may be appropriate to require notice to be given to the potential litigant. Examples of this would be where there is a clear defence, such as a limitation defence or some statutory defence. However, it would only be in the clearest of clear cases that that should happen. I reiterate that the proper venue for the cause of action to be heard and determined is a court or statutory tribunal. The parties will then have every opportunity to fight the case in a proper setting, to have the advantage of discovery, to test the other party's case, and to properly present their cases."[35]

43 As the Judge below noted, no argument was advanced by AMP that the Authority's claim against the company was doomed to fail, such that reinstatement was futile. Rather, its argument was that the lapse of time meant that it was inevitable that no fair trial could be had, such that it could not possibly be "just" to reinstate the company.

44 Were it possible to say with certainty even before the company was joined to the proceeding that a fair trial was impossible, then it might be that the only conclusion reasonably open was that reinstatement was not just. But it would be a rare case where a conclusion of that kind could be reached with confidence before the proceeding had even begun.

45 In our view, it will almost always be the appropriate course for the question of prejudice to a party to a proceeding to be assessed by the Judge (or Master) who has the management of that proceeding. Moreover, that assessment can really only be made after joinder of issue in the proceeding, at which point the Court can ascertain precisely what is in contest between the parties, who the witnesses will be, and how much reliance is to be placed on oral evidence on the one hand and documentary evidence on the other.

46 The forum of an application for reinstatement of a company is singularly inappropriate for such an investigation. The order for reinstatement is, in effect, purely administrative, albeit made in the exercise of a discretionary power. In all but the rare case to which we have referred, it is not for the Court dealing with the reinstatement question to deal with, and weigh up, the various considerations bearing upon abuse of process/want of prosecution. As already noted, that assessment involves examining not only the risk of prejudice to the defendant but the plaintiff's explanation for the delay.

47 For these reasons, in our view, the appeal must be dismissed. There was no error in the exercise of his Honour's discretion.

[1] Supreme Court Act 1986 s.17A(4)(b).

[2] [2004] VSCA 217; (2004) 10 VR 277.

[3] At 282 (footnotes omitted).

[4] Ibid.

[5] See, eg, Donis v Donis (Unreported, Victorian Court of Appeal, Maxwell P and Bongiorno AJA, 16 June 2006).

[6] Finance Facilities Pty Ltd v Federal Commissioner of Taxation [1971] HCA 12; (1971) 127 CLR 106 at 134 per Windeyer J.

[7] [1936] HCA 40; (1936) 55 CLR 499.

[8] [2004] NSWCA 371; (2004) 51 ACSR 102.

[9] At 109 [24]. His Honour referred to Liddell v Lembke (1994) 127 ALR 342 at 359 and 367.

[10] [1994] HCA 61; (1994) 182 CLR 51.

[11] At 88 (footnotes omitted).

[12] [2006] VSC 312 at [21].

[13] [1936] HCA 40; (1936) 55 CLR 499.

[14] (1991) 23 NSWLR 256.

[15] At 270.

[16] At 263.

[17] [1986] HCA 17; (1986) 161 CLR 513.

[18] At 518.

[19] [2004] FCA 22; (2004) 22 ACLC 108.

[20] At 111 [19].

[21] House v R [1936] HCA 40; (1936) 55 CLR 499 at 504-5.

[22] [1996] HCA 25; (1996) 186 CLR 541 at 551.

[23] R v Lawrence [1982] AC 510 at 517, per Lord Hailsham of St Marylebone LC.

[24] [1972] USSC 146; (1972) 407 US 514 at 532.

[25] [2006] VSC 312 at [15].

[26] At [28].

[27] At [22].

[28] At [29].

[29] At [31].

[30] [1999] 3 VR 863.

[31] At 873 [26] per Tadgell and Ormiston JJ.

[32] [2006] HCA 27; (2006) 80 ALJR 1100 at 1105 [5]- [6] and 1113 at [49] per Gleeson CJ, Gummow, Hayne and Crennan JJ.

[33] Bishopsgate (supra) at 871 [21] per Tadgell and Ormiston JJ.

[34] [2006] VSC 301.

[35] At [29].