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[1962] HCA 13
High Court of Australia
1962-07-01
Windeyer JJ, Collins JJ
Original judgment source is linked above.
High Court of Australia Dixon C.J. McTiernan, Kitto, Taylor and Windeyer JJ. Australian Iron & Steel Ltd v Hoogland [1962] HCA 13
This appeal, which comes from a unanimous judgment of the Full Court of the Supreme Court (Herron, Sugerman and Collins JJ.), raises a question as to the application of the provisions of the Workers' Compensation Acts N.S.W. which this Court dealt with in Chang Jeeng v. Nuffield (Australia) Pty. Ltd. [1] . The question is not covered by this Court's decision.
In that case Chang Jeeng had on 1st May 1953 received a first payment of worker's compensation in respect of an injury sustained in the previous month in the employment of Nuffield (Australia) Pty. Ltd. As its text stood at that date s. 63 (3) of the Workers' Compensation Act 1926, as amended, of New South Wales, said that any proceeding against an employer independently of the Act in respect of an injury should not be maintainable unless instituted within one year of the date of such a payment. The provision called the period of one year from the first payment of compensation the "prescribed period". A proviso followed enabling a judge of the Supreme Court to extend the prescribed period upon an application made within the prescribed period or within twelve months thereafter. Before the prescribed period of twelve months expired s. 63 (3) was amended by s. 7 (1) (c) (ii) of No. 21 of 1953 N.S.W. which came into operation on 20th November 1953. The amendment simply substituted three years for one year as the prescribed period. Chang Jeeng did not sue within one year from the date of the first payment nor apply for an extension within twelve months of the expiry of that year. But he did apply on 12th December 1956 for an extension of the prescribed period. That date was of course more than three years from the first payment but it was within the twelve months that followed the expiry of the three years. A majority of the Court held that the Act as amended governed the case and that the application had been made within the time allowed by the amended Act. Consequently it was within the power of a judge to enlarge the time for instituting an action against the employer. In the case we now have before us, the first payment received by the injured man, Hoogland, was made to him on 16th October 1952 and accordingly the prescribed period of one year ended on 16th October 1953: he had not before that date sued Australian Iron & Steel Ltd., his employers. The amendment increasing the prescribed period to three years came into force, as already stated, on 20th November 1953. Three years from the receipt by Hoogland of the first payment expired on 16th October 1955 but he did not sue before that date nor apply for an extension of the prescribed period. In fact he did not apply for an extension until 7th September 1956, that is to say, long after the limitation of one year for such an application had expired, if the year were reckoned from the end of a prescribed period of one year, but more than six weeks before it expired if it were reckoned from the end of a prescribed period of three years. So the difference between the two cases consisted in the fact that when the amendment came into force no limitation on Chang Jeeng's absolute right to sue had expired, whereas the limitation on Hoogland's absolute or unconditional right to sue had expired, and he therefore stood in the position at that time of being under the necessity of obtaining an extension of the prescribed period from a judge before he could sue. But the time for his applying for such an extension had not expired. The question in the present case, strictly stated, is whether Hoogland's right to apply for an extension is competent under the amended provision if made (as it was in fact) before the expiration of a time consisting of a prescribed period of three years from the first payment and another twelve months after its expiration. But while in strictness this is the question, it is pointed out for the Australian Iron & Steel Ltd., that the form of the enactment is such that that question cannot be treated simply as if nothing were involved but the enlargement by an amendment of a limitation of time for making an application against which time had not run out at the date of enlargement. In fact it is not the period of time for making an application for an extension that is enlarged by the amendment. It is the fixed, but antecedent, period for suing that is enlarged from one year to three years. In Chang Jeeng's Case [1] when the period was enlarged it was open to him to sue; in the present case it was not open to Hoogland to sue, unless he applied for and obtained an extension of time. Chang Jeeng's right to sue was not yet affected by the time bar and when the time of the bar was lengthened, so the majority held, there was no reason why the lengthened time should not apply to his case. Indeed, as the majority considered, there was nothing to keep the shorter time in operation for the purpose of his case, so that the limitation of three years applied: otherwise there was none. The view which commended itself to Kitto J. in Chang Jeeng's Case [1] that s. 8 (a) of the Interpretation Act of 1897 N.S.W. applied was not adopted by the other judges forming the Court that decided that case. In the present case, Hoogland first received a payment of compensation one year and five weeks before the 20th November 1953, when the amendment came into operation. His case is therefore not that put by Menzies J. in Chang Jeeng's Case [2] in this passage from his Honour's judgment [3] : "If, however, it were sought to apply the sub-section, as amended, to a case where the first payment of compensation had been received more than two years before the 20th November, then it would be sought to use the amendment to revive an action completely barred. As at present advised, I think the sub-section, as amended, should not be given such an operation: Maxwell v. Murphy [4] ." His Honour there expresses a view to which I am prepared unreservedly to subscribe. The passage is immediately preceded by a general statement of the view which his Honour took of the amended provision: namely, that he would treat the legal consequences of the operation of the unamended provision as unaffected, leaving the amended provision to apply to the extent to which a worker's action had not been finally barred. Hoogland's action of course had not been finally barred when the amendment came into operation: it had been barred conditionally, that is, subject to applying for and obtaining an extension of time. The difficult question is whether, because the fixed period of one year had expired and the absolute right to sue had been barred in the sense that it became subject to a condition that leave must be obtained before the expiration of the additional year, an amendment which simply enlarged the fixed period could comprehend or apply to the case. It is said for the appellant that if par. (a) of s. 8 of the Interpretation Act of 1897 N.S.W. does not apply, at least par. (b) should apply and that one or the other preserves the "legal situation" in which Hoogland stood, namely, that his right of action was conditionally barred and that he had until 16th October 1954 to apply to extend the prescribed period of twelve months. Perhaps that would do so, if s. 63 (3) were simply repealed or if it were to be held that the substitution of three years is, by legislative intention real or imputed, incapable of operating on a case in which on 20th November 1953 the prescribed period had already passed. But the question is whether such an intention is to be found, whether as expressed or to be implied or to be imputed. In Maxwell v. Murphy [1] the statute had conferred a new right in terms of remedy and at the same time limited the remedy in terms of time. I thought the extinction of the remedy in that case spelled the extinction of the right. "To say that notionally the right to damages continued to exist and only the manner of enforcing the right had been destroyed appears to me to ignore the fact that the right to damages could not be separated from the right to recover them. There are rights in English Law which have an existence and a purpose although the remedy be suspended or wanting. But the right here in question is not one of them. If the amending statute received the operation for which the appellant contends, it would impose anew a liability that had ceased to exist. The presumptive interpretation is against such an operation." [2] . But notwithstanding the very close reasoning contained in the judgment of Kitto J. in Chang Jeeng's Case [3] I retain the opinion that s. 63 (3) is a provision controlling the exercise of a common law right of action and that the substantive right from which the controlled right of action springs continues to subsist. On the whole I think that the correct view to apply is that until the substantive right is completely lost by the final extinguishment of all remedy its subsistence should be recognized and the enlargement of the period of limitation upon the remedy treated as applicable to it. The consequence of course is that the limitation of time of twelve months for making an application for extension is carried forward so that it commences to run at the end of three years from the first payment of compensation. Accordingly the appeal should be dismissed.
In my opinion the decision of the Full Court of the Supreme Court of New South Wales in this matter is right.
The appellant and respondent were respectively employer and worker within the meaning of the Workers' Compensation Act, 1926-1951 N.S.W.. The respondent suffered an injury in circumstances entitling him to receive compensation under the Act and the appellant made payments of compensation partly discharging its liability under the Act.
The Act by s. 63 expressly retains the employer's liability to pay damages in respect of injury which is compensable according to the Act and gives the worker the right to proceed under the Act and independently of it, but if damages are recovered by a judgment, the worker is not entitled to receive further compensation than that paid before the action. The right of action is subject to the appropriate limitation of time under the general law but in case of the receipt of compensation under the Act, a limitation is provided by s. 63. This limitation is called the "prescribed period". It includes a period of three years to be calculated from the receipt of payment of compensation: if there have been a number of payments, the date of the first is taken. The period of three years may be prolonged in certain circumstances without judicial order to make up a "prescribed period". A proviso in s. 63 gives the worker an additional right to apply within the "prescribed period" or after it expires for an extension of time within which to sue independently of the Act, but he is required to make the application not later than one year from the expiration of the "prescribed period". When the injury in this case occurred the Act was the Workers' Compensation Act, 1926-1951 N.S.W. and the payment of compensation was made under that Act. The respondent allowed the "prescribed period", which included only one year from the first receipt of compensation, to elapse and he did not apply within the following twelve months for an extension of time within which to sue. By s. 7 (1) (c) (ii) of the Workers' Compensation (Amendment) Act, 1953 N.S.W. the period of twelve months included in the "prescribed period" was altered to three years. That Act did not in any way deal with the worker's right under the proviso, that is to apply to a judge within twelve months from the expiration of the "prescribed period" to extend it. When the present application was made the "prescribed period" under s. 63 of the Workers' Compensation Act, 1926-1954 N.S.W. had expired but twelve months from the expiration of such period had not elapsed. The question in the appeal is whether the "prescribed period" mentioned in s. 63 of the Workers' Compensation Act, 1926-1951 N.S.W. or that mentioned in this section in the Workers' Compensation Act, 1926-1954 applies in relation to the action for damages which the respondent desires to bring. The argument on the question extended to principles governing the retroactive operation of statutes and the effect of savings made by the Interpretation Act of New South Wales upon the repeal of a statute. This argument took place on s. 7 (1) (c) (ii) of the Workers' Compensation (Amendment) Act, 1953. The words of this provision are: "7 (1) The Principal Act is further amended - (c) (ii) by omitting from paragraph (a) of subsection three of the same section the words "twelve months" where firstly, secondly and thirdly occurring and by inserting in lieu thereof the words "three years" ". The Workers' Compensation Act, 1926, as amended by subsequent Acts, is the "Principal Act" s. 1 (1): and the words "the same section" refer to s. 63 of that Act. There is difficulty in ascribing to s. 7 (1) (c) (ii) the character of a repealing statute. The argument which I have mentioned raises a number of problems which in my view it is not necessary to attempt to solve in this case. Mr. McGregor advanced a clear short argument upon the words of s. 63 of the Workers' Compensation Act, 1926-1954 which he urged demonstrate that an injury comes within the intended operation of that section if payment of workers' compensation in respect of the injury was received by the worker after the date of the signifying of royal assent to the Industrial Arbitration and Workers' Compensation (Amendment) Act, 1938. Section 63 (1) clearly extends to such an injury. Section 63 (2) extends to any injury within the scope of sub-s. (1) and includes any such injury in respect of which compensation has been paid to the worker before he has obtained a judgment for damages. Section 63 (3) (a) applies to injuries in respect of which a worker has been paid compensation under the Act but in respect of which he has not yet brought a common law action. It is concerned with imposing a limitation of time to such an action. This provision of sub-s. (3) begins with the words: "Where any payment by way of compensation under this Act in respect of the injury is received by the worker after the date upon which the assent of His Majesty to the Industrial Arbitration and Workers' Compensation (Amendment) Act, 1938, is signified". The proviso under which the present application is made is part of sub-s. (3) (a). Section 63 (3) (b) must be quoted. Its words are: "This sub-section shall apply to and in respect of any case where the injury was received before the date upon which such assent is signified, as well as to and in respect of any case where the injury is received after such date". The relevant facts for the purposes of s. 63 (3) (a) are the occurrence of the injury and the payment of workers' compensation. These facts occurred, it is true, before s. 7 (1) (c) (ii) was enacted, but nevertheless the case falls not only within the introductory words of s. 63 (3) (a) of the Workers' Compensation Act, 1926-1954, but also within the words of s. 63 (3) (b) of that Act. It is clear from the introductory words, and s. 63 (3) (b), that s. 63 (3) (a) is intended to operate retrospectively. Having regard to what has been expressly enacted by the words of these provisions, which have been quoted, it does not seem to me to be possible to imply any limitation upon the operation of s. 63 as a whole or of s. 63 (3) (a) in particular limiting their operation to injuries or payment of workers' compensation occurring after the Workers' Compensation (Amendment) Act, 1953 came into force.
The merits of the order are not in dispute. The order extended the prescribed period mentioned in s. 63 (3) (a) of the Workers' Compensation Act until 21st November 1957. In my opinion, the order is authorized by the Workers' Compensation Act, 1926-1954. It appears that the respondent issued the writ beginning proceedings independently of the Act pursuant to s. 63 on 4th October 1957. The appeal should be dismissed.
On 16th October 1952 the respondent received from the appellant, his employer, a first payment of compensation under the Workers' Compensation Act, 1926-1951 N.S.W. in respect of an injury he had received a month before. By virtue of s. 63 (3) (a) of the Act (as it then stood) the receipt of this first payment of compensation set running a period of twelve months (called the prescribed period) after which no proceedings by the respondent against the appellant independently of the Act in respect of the injury would be maintainable unless a judge of the Supreme Court in the exercise of a discretion should make an order extending the prescribed period upon an application made within the prescribed period or at any time within twelve months thereafter. The discretion was exercisable by the judge if satisfied that sufficient cause had been shown or that, having regard to all the circumstances of the case, it would be reasonable to grant the extension.
The first period of twelve months (the prescribed period) expired without any proceedings having been commenced against the appellant in respect of the injury. The second period of twelve months expired without any such proceedings having been commenced and without any application for an extension having been made. But during the second period, namely on 20th November 1953, an amending Act came into force which omitted the words "twelve months" in the description of the prescribed period and substituted "three years". The amending Act said nothing as to whether the amendment should affect a case like the present, where the prescribed period had already expired but the period for applying for an extension had not expired. The question to be decided is whether it did affect such a case; for the respondent applied for an extension on 7th September 1956, and it was granted to him by an order which the Supreme Court upheld by the order now under appeal, the view being taken that the prescribed period in this case endured until 16th October 1955, and that accordingly the application was made within twelve months thereafter.
In my opinion the answer that should be given is that the amending Act did not affect a case such as this. The respondent's right of action independently of the Act became barred on 16th October 1953. True it is that if, in the interval between that date and the commencement of the amending Act, an application for an extension had been made to a judge and the evidence had satisfied him that sufficient cause had been shown or that an extension would be reasonable, the judge would have had a discretionary power to grant an extension. But at the commencement of the amending Act no extension had been granted. It may be assumed that the barring of the respondent's common law right of action remained defeasible by the grant of an extension at any time before 16th October 1954. But the fact remains that subject to the possibility of such an extension the right of action was barred; and as no such extension ever was granted the possibility has no legal significance. If the respondent had sued the appellant the day after the amending Act came into force, the appellant would have had, by virtue of s. 63 (3) (a), a defence to which the possibility of future extension would not have been a good reply. The case is therefore one in which an amending Act could not apply without depriving a person, the appellant, of an accrued immunity or defence, that is to say without affecting a previous operation of the former provision, contrary (I would hold) to s. 8 (a) of the Interpretation Act of 1897 N.S.W..
It is said that the amending Act, in so far as it affects s. 63 (3) (a), is a merely procedural enactment, and therefore is to be applied in all proceedings after its commencement, notwithstanding the presumption against the retrospective operation of statutes. In my opinion, it is not truly procedural at all, but is an amendment of a provision which operates to destroy a liability and not merely to deny the procedure of the Courts for the enforcement of a liability which nevertheless continues to subsist. It could not apply in a case such as the present without imposing anew a liability that had ceased to exist. The presumptive interpretation, even apart from s. 8 (a) of the Interpretation Act, is against such an operation: Maxwell v. Murphy [1] ; Chang Jeeng v. Nuffield (Australia) Pty. Ltd. [2] .
In my opinion the appeal should be allowed and the orders made in the Supreme Court should be reversed.
On 7th September 1956 the respondent, pursuant to the proviso to s. 63 of the Workers' Compensation Act, 1926-1954, made application to the Supreme Court of New South Wales for an extension of the "prescribed period" within which he might bring an action against the appellant, as his employer, to recover damages for personal injuries which, it was alleged, had resulted from the latter's negligence. The respondent had sustained his injuries on 10th September 1952 and had received payments of compensation under the Act. The first of these payments was received on 16th October 1952 so that a period of nearly four years elapsed thereafter before his application for an extension of the prescribed period was made. In these circumstances, the appellant contends that there is no statutory authority to extend the period for upon the Act as it stood when the respondent was injured and first received a payment of compensation an action for negligence against his employer in respect of the same injury was not maintainable unless brought within twelve months after the date of the first receipt of compensation or, it should be added, within such extended period as might be specified upon an application made "within twelve months thereafter". The Act, it should be observed, remained in the same form until 20th November 1953. But on that date the Workers' Compensation (Amendment) Act, 1953, came into force and by this Act s. 63 (3) (a) of the principal Act was amended by the omission of the words "twelve months" where firstly, secondly and thirdly occurring and by inserting in lieu thereafter the words "three years". The effect of this amendment was that the prescribed period for the purposes of the sub-section became three years whilst the subsequent period thereafter within which an application for an extension might be made remained twelve months. It will be seen, therefore, that the respondent's application for an extension, made, as it was, on 7th September 1956, was made after the expiration of a period of three years from the date of his first receipt of compensation but within twelve months after the expiration of that period. The question, of course, is whether his right to make an application for an extension of time falls to be determined by reference to the section as it stood before the amending Act of 1953 or whether the periods prescribed by the amending Act are applicable to his case. The Full Court of the Supreme Court was of the opinion that the section as amended applied and this appeal is brought from the order of that Court.
This is not the first time that difficulties of this character have arisen in relation to the various amendments which have been made to s. 63 (3). Prior to 1938 the Act provided that nothing therein contained should affect any civil liability of the employer where the injury was caused by the personal negligence or wilful act of the employer or of some person for whose act or default the employer was responsible (s. 63 (1)). But sub-s. (2) of that section provided that in any such case the worker might, at his option, proceed under the Act or independently of the Act but should not be entitled to compensation under the Act if he had obtained judgment against his employer independently of the Act. Then, by Act No. 36 of 1938 s. 63 was amended and sub-s. (3) thereof first made its appearance. It was in the following terms: "(a) Where any payment by way of compensation under this Act in respect of the injury is received by the worker after the date upon which the assent of His Majesty to the Industrial Arbitration and Workers' Compensation (Amendment) Act, 1938, is signified, no proceedings against the employer, independently of this Act, in respect of the injury, shall be maintainable by any person whomsoever unless such proceedings are instituted within six months after the date upon which such payment was so received by the worker, or where more payments than one have been so received by the worker, unless such proceedings are instituted within six months after the date upon which the first of such payments was so received by the worker. But where such proceedings are proceedings which, by reason of the provisions of any other Act, cannot be instituted until the expiration of a specified period after notice in writing has been served on or delivered or given to the employer, the period of six months referred to in the foregoing provisions of this paragraph shall be increased by such specified period. The period within which proceedings are to be instituted as prescribed in the foregoing provisions of this paragraph, is in this paragraph referred to as the "prescribed period": Provided that where an application is made to a judge of the Supreme Court in accordance with rules of court for an extension of the prescribed period the judge may, if he is satisfied that sufficient cause has been shown, or that having regard to all the circumstances of the case, it would be reasonable so to do, make an order for extension of the prescribed period for such further period and subject to such terms and conditions (if any) as may be set out in the order. Such application for extension may be made either within the prescribed period or at any time within six months thereafter. (b) This subsection shall apply to and in respect of any case where the injury was received before the date upon which such assent is signified, as well as to and in respect of any case where the injury is received after such date. (c) Nothing in this subsection shall affect the operation of section 63A of this Act." This Act also introduced into the principal Act s. 63A the purpose of which was to require any applicant for the determination of any question relating to the liability of his employer to pay compensation to file a written notice of election in the form prescribed. Such a notice was said to constitute a final election by the applicant and this was a valid defence to any legal proceedings against the employer other than proceedings under the Act. Subsequently, in 1942 (Act No. 13 of 1942), sub-s. (3) (a) was amended by the omission of the words "six months" wherever occuring and the insertion in lieu thereof of the words "twelve months". The section was also amended by the addition of a provision which gave a right of appeal to the Full Court from an order of a judge extending or refusing to extend the prescribed period. Sub-section (3) remained in this form until 1953 when the section was further amended in the manner already set out.
The problem with which the Supreme Court was concerned in Coleman v. Shell Company of Australia [1] arose after the 1942 amendment when the injured worker, on 25th September 1942, commenced an action for damages against his employer. He had been injured on 26th September 1941, he had received his first payment of compensation shortly after that date and the 1942 amending Act had come into operation on 1st July 1942. In these circumstances the employer pleaded that the action was instituted more than six months after the worker's first receipt of compensation under the Act and before any application had been made to a judge for an extension of that period. This was held to be no answer to the worker's claim because, even if the provision under consideration should be regarded as having a retrospective operation, it was of a procedural character only and the action had been brought within twelve months after the first receipt of compensation as prescribed by the Act as amended on 1st July 1942. The decision may be open to criticism on the ground that the provisions of the sub-section were not merely procedural, but it has stood for nearly twenty years and, what is, perhaps, much more important, its effect must have been known and appreciated when the amending Act of 1953 was enacted. In those circumstances it should not be disturbed unless it is seen to be plainly wrong and so long as it stands it is an authority which, to my mind, carries the respondent the whole way in this case. If his rights are to be determined by reference to the amending Act of 1953 it is of no consequence that more than three years elapsed before he made an application for an extension of that prescribed period; it is sufficient that his application was made, as it was, within twelve months thereafter.
Chang v. Nuffield (Australia) Pty. Ltd. [1] was decided after the enactment of the 1953 amending Act. There it appeared that the worker had been injured in April 1953 and that he had received his first payment of compensation on 1st May 1953, that is, a little more than six months before the amending Act of that year came into operation. But nothing was done until 12th December 1956 (i.e. three and one-half years after the first receipt of compensation) when the worker applied, successfully, for an extension of the prescribed period. But on appeal to the Full Court of the Supreme Court it was held by a majority of that Court that the amendments introduced by the 1953 Act applied only to cases where the first receipt of compensation by the worker took place after the commencement of that Act, i.e. 20th November 1953. Consequently, it was held, the worker's right fell to be determined by the Act as it stood immediately prior to the 1953 Act and, that being so, his application was out of time. That is to say, it was made after the expiration of twelve months from the expiration of the prescribed period of twelve months. This decision was clearly inconsistent with the decision in Coleman's Case [2] and on appeal it was reversed by this Court [3] but on the simple ground that when the 1953 Act came into operation the previously prescribed period of twelve months had not elapsed, the worker's right had not become barred and no question arose of so construing the provision as amended as to abrogate any previously acquired right or immunity.
In a large measure the broad ground upon which the Supreme Court decided Chang's Case [1] had already been acted upon by the same Court in Russell v. Darling Island Stevedoring & Lighterage Co. Ltd. [4] . There the worker first received compensation on 24th January 1952, i.e. nearly two years before the 1953 amending Act came into operation, and he did not commence his action until 25th October 1954, i.e. within three years but more than two years after his first receipt of compensation. In these circumstances the Full Court held that the worker was out of time because the section as amended in 1953 was applicable only to cases where the first payment was received after the date of the amendment. Accordingly, it was thought, the Act in its unamended form continued to govern the rights of parties where the first payment of compensation was made before that date. This general proposition is not only inconsistent with the decision in Coleman's Case [1] but also with the decision of this Court in Chang's Case [2] and Russell's Case [3] was the subject of some particular criticism by Menzies J. in the latter case [4] .
It will be seen from what has been said that this Court has held that the operation of the section as it was amended in 1953 is not limited to cases where the first payment of compensation was received after 20th November 1953. But this was held in a case where the earlier prescribed period had not elapsed when the 1953 amending Act came into operation. Coleman's Case [1] however, goes a little further for the prescribed period before the 1st July 1942 was six months and the worker in that case had received his first payment of compensation more than six months previously. But, as in the present case, the period thereafter within which an application for an extension might have been made had not expired. The question is, of course, whether the factual distinction between such cases and cases such as Chang's Case [2] is productive of a different legal result. My own view, quite apart from the fact that Coleman's Case [1] was decided nearly twenty years ago and that the form of the 1953 amendment may well have been determined by its authority, is that there are sound grounds for thinking that, for the purposes of s. 63 (3) (a), as amended in 1953, it is immaterial whether the first receipt of compensation in any particular case was before or after 20th November 1953 or whether either or both periods formerly prescribed for the bringing of an action or for the making of an application for extension had or had not expired. It will be observed that par. (b) of sub-s. (3) provides that the sub-section shall apply to and in respect of any case where the injury was received before or after the date upon which assent was given to the 1938 amending Act as well as to and in respect of any case where the injury is received after such date. This provision was adverted to in Russell's Case [3] and the view was expressed that it had a limited application. "It applied", it was said, "to s. 63 (3) (a) as introduced by the Act of 1938, and to that alone its operation was exhausted when by the Act of 1942, s. 63 (3) (a) was again amended so as to extend the periods of six months to twelve months and it has no application to s. 63 (3) (a) as it now stands" [1] . But with respect to the learned members of the Supreme Court this conclusion cannot be correct for the date of injury is not the critical date for the purposes of the sub-section and it is a simple matter to conceive the case of an injury prior to 22nd December 1938 and a first payment of compensation in respect of a resulting incapacity after 1st July 1942 (cf. Nash v. Sunshine Porcelain Potteries Limited [2] ). The provision, to my mind, was introduced simply to make it clear that the section was not restricted to cases of injury after the 1938 amendment and, for what it was worth, it remained in the Act after the 1942 amendment and, again, after the 1953 amendment. It was, of course, essential for the operation of the sub-section in its original form that the first payment of compensation should have been made after the 1938 amendment for the first paragraph of sub-s. (3) so provides. Expressly it deals with cases "Where any payment by way of compensation under this Act in respect of the injury is received by the worker after the date upon which the assent of His Majesty to the Industrial Arbitration and Workers' Compensation (Amendment) Act, 1938, is signified". With the knowledge now of the date of such assent we may read the opening lines of the section as follows: "Where any payment by way of compensation under this Act in respect of the injury is received by the worker after the 22nd December 1938 ". In my view it is clear that in 1938 the section was intended to deal with every case, without exception, where the first payment of compensation was made after that date and its meaning remained unchanged when the prescribed period was altered in 1942 and, again, in 1953. Accordingly it is no answer to say that the section as amended in the latter year ought to be so construed as not to abrogate acquired rights or immunities for that principle of construction cannot prevail over the words of the sub-section which continues, subject only to a variation of the "prescribed period", to make express provision, without exception, for those cases "Where any payment by way of compensation is received after 22nd December 1938". This is such a case and the appeal should, in my opinion, be dismissed.
This case turns on the effect of an alteration made in the Workers' Compensation Act, 1926-1951 N.S.W., by Act No. 21 of 1953. That Act was assented to on 30th November 1953. It is at that date that we must take our stand when considering the matter. First it is necessary to see what the law was before the amendment took effect.
Before 1953 a worker who was injured as a result of negligence for which his employer was liable might, at his option, proceed either under the Workers' Compensation Act or independently of the Act. This was provided for by s. 63 (2). That sub-section, which was in the Act as it was in 1926, had given rise to much litigation, arising out of the need for an actual election by the worker which the courts had derived from the words "at his option". By Act No. 36 of 1938 the Legislature had taken a hand to remedy the work of the courts. Its method, which evoked the critical observations of Jordan C.J. in Coleman v. Shell Company of Australia [1] , had been to leave sub-s. (2) standing, but to add several new sub-sections to s. 63. One of these was sub-s. (3). In the result, an injured worker who had been paid compensation by his employer under the Act was not, on that account, taken to have elected to have compensation rather than damages. If he had not positively elected (pursuant to s. 63A) to pursue his remedy under the Act rather than at common law, he might still have his action for damages; but, in cases such as this, he must commence it within six months (enlarged by Act No. 13 of 1942 to twelve months) after the date of the first payment of compensation to him. This period the Act called "the prescribed period". But there was a proviso: "Provided that where an application is made to a judge of the Supreme Court in accordance with rules of Court for an extension of the prescribed period the judge may make an order for extension of the prescribed period . Such application for extension may be made either within the prescribed period or at any time within six months (enlarged in 1942 to twelve months) thereafter".
The amendment of s. 63 made in 1953 radically altered the law. Since then an injured worker, instead of having to elect between taking compensation under the Act and pursuing to judgment an action for damages against his employer, has been able to do both. His rights under the Act are cumulative upon, not alternative to, his common law rights: but if he recovers judgment in an action against his employer further payments under the Act cease, and payments already received by him go in satisfaction of the judgment. This result was achieved by substituting a new sub-s. (2) for the existing sub-s. (2) of s. 63 and by repealing s. 63A. But sub-s. (3) of s. 63 was left as it was, except that the prescribed period became three years instead of twelve months. The relevant part of the amending Act is s. 7 (1) (c) (ii) which is as follows: "The Principal Act is further amended by omitting from paragraph (a) of subsection three of the same section (scil. s. 63) the words "twelve months" where firstly, secondly and thirdly occurring and by inserting in lieu thereof the words "three years"."
The result of this is to make three years the prescribed period, but to leave unaltered the proviso by which within the prescribed period, or twelve months thereafter, an application may be made for an extension of the prescribed period.
Statutory provisions imposing time limits on actions take various forms and have different purposes. Some are for preventing stale claims, some for establishing possessory titles, some for the protection of public authorities, some in aid of executors and administrators. Some are incidents of rights created by statutes. Some prevent actions being brought after, some before, a lapse of time. It may be that there is a distinction between Statutes of Limitation, properly so called, which operate to prevent the enforcement of rights of action independently existing, and limitation provisions annexed by a statute to a right newly created by it. In the latter case the limitation does not bar an existing cause of action. It imposes a condition which is of the essence of a new right. The distinction was adverted to in The Crown v. McNeil [1] ; and in Maxwell v. Murphy [2] ; and see Gregory v. Torquay Corporation [3] and Erskine v. Adeane [4] . It seems that, under the common law system of pleading, when a limitation is annexed by a particular statute to a right it creates, the plaintiff should allege in his declaration that the action was brought within time. On the other hand it is for the defendant to plead the Statute of Limitations as a defence to an action on a common law cause of action, as if he does not it is assumed that he intends to waive it: see Chapple v. Durston [5] . However, when issue is joined on a plea of the Statute, the burden of proving that the action is within time is on the plaintiff: see cases referred to by Dixon J., as he then was, in Cohen v. Cohen [6] . And, even when a time limit is imposed by the statute that creates a new cause of action or right, it may be so expressed that it is regarded as having a purely procedural character, as a condition of the remedy rather than an element in the right; and in such cases it can, it seems, be waived, either expressly or in some cases by estoppel: Wright v. John Bagnall & Sons Ltd. [1] ; Lubovsky v. Snelling [2] .
But the abovementioned distinction, whatever may be its importance or validity in other cases, is of no importance for the solution of the question in this case. What we are concerned with here is a limitation upon an ordinary common law cause of action. It is ancillary to provisions for adjusting the results of the co-existence of claims for workers' compensation and actions for damages at common law: but it is a common law action for damages that it bars. That the sub-section does not impose an absolute bar on the expiration of a specified period, but provides for its extension, emphasizes its essentially procedural character. A similar kind of limitation appears in s. 8 of the Maritime Conventions Act 1911 of the United Kingdom, copied in the Navigation Act 1912-1950 Cth s. 396 (3): see The Llandovery Castle [3] .
When time has run against a purely personal action the result, for a plaintiff, is that his remedy is barred but his cause of action is not extinguished; for a defendant, it is that he has, if he chooses to assert it, an immunity which Lord Esher called "his existing right to the benefit of the Statute of Limitations " (Hewett v. Barr [4] ). What then were the rights of the parties in this case immediately before the amending Act was passed? For Hoogland, the prescribed period, then twelve months, within which he could have brought an action as of right had already passed; but he could still apply for an extension of the prescribed period, for twelve months from the end of that period had not yet passed. For the appellant, it could not be subjected to an action unless either it waived the defence that the prescribed period had expired, or that period was extended. So that at the time when the amendment came into force the respondent's cause of action had not been extinguished, his remedy had not been finally barred, the appellant had not gained an absolute immunity from suit, and the respondent still could apply for an extension of time to put his cause of action in suit.
What then was the effect of the amendment? In terms it enlarged the prescribed period and left the proviso unaltered. It is true that enlarging the prescribed period to three years, which was done by omitting some words and substituting others, may be said to mean that the former enactment was repealed and a new enactment substituted. But the repeal and the substitution took place simultaneously. In the result the new section must be read as a whole, for "every Act amending an Act shall be construed with the amended Act and as part thereof, unless the contrary appears in the amending Act": Interpretation Act of 1897 N.S.W., s. 12. And it must be read as if the repealed provision had never existed: Surtees v. Ellison [1] ; Te Kloot v. Te Kloot [2] . The respondent could make his application for extension "either within the prescribed period or at any time within twelve months thereafter". He in fact made it within twelve months after the end of what had then become the prescribed period. It was thus made within time according to the Act as it then stood. It seems to me that no question of the so-called retrospective operation of a statute really arises. The respondent's remedy had not been finally barred before the amending Act came into force. He still had a right to apply for an extension. It was this right that he sought to exercise, relying upon the extra time to do so that the amending Act gave. The provisions of the Interpretation Act of 1897, s. 8, do not in the circumstances help the appellant.
This conclusion is, I consider, in accord with the decisions in Maxwell v. Murphy [3] and Chang Jeeng v. Nuffield (Australia) Pty. Ltd. [4] . The decision in Coleman v. Shell Company of Australia [5] , was in my opinion correct, although the reasoning is not supportable in so far as it conflicts with that in Maxwell v. Murphy [3] .
Australian Iron & Steel Ltd
Hoogland