CORPORATIONS - reinstatement - transitional provisions - company dissolved in 1997 under s509 Corporations Law - s571 and s574 Corporations Law repealed 1 July 1998 when section 601AH enacted - meaning of "ASIC's powers" in s1362CH Corporations Law - operation of s1439 Corporations Law - Shaw v Goodsmith preferred to City West Water - transitional provisions to Corporations Act - s1408 - have power to reinstate company under s601AH Corporations Act.

Companies deregistered before section 601AH and the Corporations Act 2001

1. As mentioned, Austral Bronze was dissolved on 26 September 1997 under section 509 of the Corporations Law. John Darlington was deregistered on 20 May 2015 under the Corporations Act 2001. Whilst the claimants' submissions did not address this, the insurer submitted that the Court's power in relation to Austral Bronze was derived from section 1408(1) of the Corporations Act, the effect of which was to cause former section 1362CH of the Corporations Law to have effect as part of the Corporations Act 2001: Shaw v Goodsmith Industries Pty Ltd (2002) 41 ACSR 556; [2002] NSWSC 406 at [8]. The insurer submitted that the difference in the source of power in respect of Austral Bronze and John Darlington did not matter in the resolution of the questions presented in these proceedings. The insurer's concession is correct but perhaps for a different reason than given.
2. Many cases on this complicated subject concern companies which were deregistered under: 1. the Companies Act 1961 (NSW), see Parker v Australian Asbestos Pty Ltd [2002] NSWSC 520; (2002) 42 ACSR 138 per Austin J; Armitage v HXE Ltd [2010] NSWSC 1109 per White J; John Francis Hall v Australian Securities and Investments Commission [2015] VSC 362 per Sifris J; Re Rocha Pty Ltd (Deregistered) (2016) 114 ACSR 89; [2016] NSWSC 899 per Brereton J; or 2. the Companies Code (which commenced on 1 July 1982 in New South Wales), see Shaw v Goodsmith Industries per Barrett J; City West Water Ltd v Mr D investments Pty Ltd (2002) 43 ACSR 622; [2002] VSC 553; Baird v W J T Howes Investments Pty Ltd (2008) 68 ACSR 485; [2008] NSWSC 1232; Tan v Australian Securities and Investments Commission [2011] NSWSC 58 per Barrett J; Re Jury & Spiers Pty Ltd (2016) 114 ACSR 336; [2016] NSWSC 900 per Brereton J.
3. Whilst the case law has taken some twists and turns, for companies deregistered before the Corporations Law, the courts have proceeded on the basis that section 601AH of the Corporations Act 2001 does not apply. Such dissolved companies may be reinstated under the legislation under which they were dissolved, the operation of which in some respects survived the successor legislation: Jury & Spiers at [11]. Significant disquiet has been expressed by Barrett J in Tan v ASIC and Brereton J in Re Rocha and Jury & Spiers about continuing to resort to superseded legislation which has itself since been repealed. Their Honours both called for legislative reform, which has not occurred. The correctness of these authorities was referred by Black J to the Court of Appeal, heard by five justices on 12 November 2020 in In the matter of Richards Contracting Co Pty Ltd (2020/133642) and stands reserved.
4. This case is potentially simpler as Austral Bronze was deregistered under the Corporations Law, as was Danich Pty Ltd Re Cenco Holdings Pty Ltd (2005) 53 ACSR 484; [2005] NSWSC 293. Cases considering the availability of the section 601AH jurisdiction in relation to companies deregistered under the companies' codes have been said to be of no real assistance here: Danich Re Cenco Holdings at [9].
5. The Corporations Law commenced on 1 January 1991. Austral Bronze was deregistered in 1997. At that time, section 509(1) of the Corporations Law provided that, as soon as the affairs of a company in voluntary liquidation had been fully wound up, the liquidator would prepare an account showing how the winding up had been conducted and the company's property disposed of. The liquidator was to lay the account before a general meeting of the company or, in the case of a creditor's voluntary winding up, a meeting of creditors. After the meeting, the liquidator was required to lodge a return of the holding of the meeting and a copy of the account: section 509(3). Three months after lodging the return, the company was dissolved: section 509(5).
6. The Court had power to declare the dissolution of a company void under section 571(1), which provided: (emphasis added) Power of Court to declare dissolution of company void 571. (1) [Court's powers] Where a company has been dissolved pursuant to subsection … 509(5), the Court may at any time, on application of the liquidator of the company or of any other person who appears to the Court to be interested, make an order declaring the dissolution to have been void, and the Court may by the order give such directions and make such provisions (including directions and provisions relating to the re-transmission of property vested in the Commission under section 576) as seem just for placing the company and all other persons in the same position as nearly as may be as if the company had not been dissolved.
7. The Australian Securities Commission (ASC) had power to deregister a defunct company under section 574(1), either on its own volition (section 572) or on the application of the company, a member of the company or any other interested person (section 573). As to reinstatement, section 574 provided: 574. Power of Commission to deregister defunct company … (2) [Reinstatement where Commission error] If the Commission is satisfied that the registration of a company was cancelled as the result of an error on the part of the Commission, the Commission may reinstate the registration of the company, and thereupon the company shall be deemed to have continued in existence as if its registration had not been cancelled. (3) [Court may order reinstatement] If a person is aggrieved by the cancellation of the registration of a company, the Court, on an application made by the person at any time within 15 years after the cancellation, may, if satisfied that the company was, at the time of the cancellation, carrying on business or in operation or otherwise satisfied that it is just that the registration of the company be reinstated, order the reinstatement of the registration of the company. (4) [Effect of order] On the lodging of an office copy of an order under subsection (3), the company shall be deemed to have continued in existence as if its registration had not been cancelled. (5) [Court may give directions etc] The Court may, in an order under subsection (3), give such directions and make such provisions (including directions and provisions relating to the retransfer of property vested in the Commission under section 576) as seem just for placing the company and all persons in the same position, so far as possible, as if the company's registration had not been cancelled. …
8. As Austral Bronze was dissolved under section 509, the Court had power to declare the dissolution void under section 571(1). As far as can be told, Austral Bronze was not deregistered by the ASC, nor was its registration cancelled as a result of any error on the part of the ASC, and thus the ASC did not have power to reinstate its registration under section 574(2). The Court, however, had power to reinstate the registration of the company under section 574(3) and make ancillary orders under section 574(5).
9. On 1 July 1998, the Company Law Review Act 1998 (Cth) repealed sections 571 and 574 of the Corporations Law and added section 601AH: 601AH Reinstatement Reinstatement by ASC (1) The ASC may reinstate the registration of a company if the ASC is satisfied that the company should not have been deregistered. Reinstatement by Court (2) The Court may make an order that the ASC 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 the Court makes an order under subsection (2), it may: (a) validate anything done between the deregistration of the company and its reinstatement; and (b) make any other order it considers appropriate. Note: For example, the Court may direct the ASC to transfer to another person property vested in the ASC 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. …
10. Two differences between section 601AH and the former section 574 will be immediately noted: first, the ASC's power to reinstate the registration of a company was expanded beyond correcting its own errors; second, rather than the Court ordering the reinstatement of the registration of the company, the Court may now "make an order that the ASC reinstate the registration". As the Explanatory Memorandum to the Company Law Review Bill 1997 explained: Reinstatement 15.24 Currently, the ASC may only reinstate a deregistered company if it was deregistered as the result of an error on the part of the ASC. Other applications for reinstatement must proceed by application to the Court (current s 574). 15.25 The Bill provides the ASC with clear powers to reinstate a company which has been deregistered when it should not have been, for example, in a situation where the company is still carrying on business. This avoids the cost of a court application for reinstatement (Bill s 601AH(1)). The ASC's power to reinstate companies extends to the reinstatement of the registration of a body corporate which was deregistered before the new rules commence (Bill s 1362CH). … 15.26 It is envisaged that the ASC will only exercise its reinstatement power where no dealings with the property of a deregistered company which give rise to third party rights have been carried out during the intervening period. If third parties have become involved, it is expected that reinstatement will generally need to proceed through the Court. 15.27 The Court's reinstatement power is preserved under the Bill (Bill s 601AH(2)). If the Court exercises its reinstatement power under subsection 601AH(2) of the Bill, it may also validate anything done between the deregistration of the company and its reinstatement and make any order that it considers just in the circumstances (Bill s 601AH(3)). The 15 year time limit on reinstatement applications is abolished. … … 15.29 Under the Bill, a reinstated company is taken to have continued in existence as if it had not been deregistered. Any third party rights which may have accrued during the period of deregistration will therefore be enforceable. … (Bill s 601AH(5)).
11. Thus, the Explanatory Memorandum indicated that the intention of the legislature was to expand the ASC's power to reinstate the registration of companies, and to empower the ASC to use its expanded power in respect of companies which had been deregistered before such powers had been conferred. That is, the ASC's new powers had retrospective effect. So far as the Court's powers were concerned, the Explanatory Memorandum indicated that such powers continued unabated or "preserved".
12. The Company Law Review Act 1998 also added Part 11.1, "Introduction of the Corporations Law" to the Corporations Law. In Part 11.1, section 1362CA provided: 1362CA Existing company This Part applies to a body corporate that was incorporated, immediately before Division 2 of Part 2.2 commenced (1 January 1991), under a previous law of this jurisdiction that corresponded to Chapter 2 (as in force immediately after that Division commenced).
13. Austral Bronze was incorporated before 1 January 1991. It was incorporated in New South Wales in 1920, which must mean that its existence as a legal entity was created by the Companies Act 1899 (NSW): Shaw v Goodsmith Industries at [3] per Barrett J. Chapter 2 of the Corporations Law, as at 1 January 1991, entitled "Constitution of Companies", concerned the registration of corporations. Thus, it is tolerably clear that Austral Bronze was an "Existing company" to which Part 11.1 of the Corporations Law applied.
14. Also in Part 11.1, section 1362CH of the Corporations Law provided: 1362CH Reinstatement of companies deregistered before commencement ASIC's powers under section 601AH extend to the reinstatement of the registration of a body corporate that: (a) was at some time before commencement incorporated or taken to be incorporated under a previous law of this jurisdiction corresponding to Chapter 2 of the old law; and (b) was deregistered before commencement. Section 601AH applies to the reinstatement with any modifications that the circumstances require.
15. "Commencement" here meant (section 9, Corporations Law): (emphasis added) In relation to this Law or a provision of this Law - the time at which the Law or provision came into operation … As the provision - section 601AH - came into operation on 1 July 1998, then "commencement" in section 1362CH is 1 July 1998 (and, in this respect, Shaw v Goodsmith Industries was incorrect at [5], as was Parker v Australian Asbestos at [13] and Danich Re Cenco Holdings at [10], observed in City West Water v Mr D investments and accepted by Barrett J in Baird v W J T Howes Investments at [7]).
16. Austral Bronze was deregistered before "commencement". Thus, ASIC's powers under section 601AH of the Corporations Act 2001 extended to reinstatement of Austral Bronze under the Corporations Law. The power sought to be exercised here, however, is not ASIC's power to reinstate a company but the Court's power to order ASIC to do so. Of this, Barrett J observed in Shaw v Goodsmith Industries, at [9]-[11]: 9 Section 1362CH is a provision about ASIC's powers. … Nothing explicit is said about continuation of the jurisdiction of the court under s.601AH but it seems to me to be clear that preservation of that jurisdiction is implied. 10 The view I have just expressed proceeds from recognition that the power to reinstate, like the power to register in the first place, is a power confided exclusively to ASIC. Only ASIC has the capacity to register or to reinstate. In some instances, the power will be exercised as a result of ASIC's own decision that all necessary steps have been taken to warrant exercise of the power. In other cases, ASIC will exercise its power because of some more direct legal requirement to exercise it, such as a court order. But whether there is a court order or not, the conclusive step can only ever be taken by ASIC which, in taking that step, is never a free agent and must conform to the applicable legal constraints. Whenever it takes the step, it exercises a power. 11 It follows from this that I regard as preserved and continued by s.1362CH not only so much of s.601AH as contemplates action by ASIC according to its own decision independently made (that is, s.601AH(1)), but also the part of the section which contemplates action by ASIC to reinstate upon order made by the court (s.601AH(2)). When ASIC effects a reinstatement following the making of an order by the court it still exercises a power of reinstatement, albeit in circumstances where it makes no independent decision beyond the decision to comply with the order. Preservation by s.1362CH, in relation to the particular class of bodies, of "ASIC's powers under section 601AH" thus includes preservation of the power to reinstate in the particular situation envisaged by s.601AH(2) and accordingly extends to preserve the elements necessary to the existence and exercise of the power, including the jurisdiction of the court to make orders of the kind upon which exercise of that aspects of ASIC's powers is dependent.
17. In evidence in Shaw v Goodsmith Industries was a letter from ASIC stating that it would not oppose the application if certain conditions were satisfied, including a condition that the orders sought were couched in terms of section 601AH(2), requiring ASIC to reinstate the registration of the company. Barrett J inferred that ASIC was willing to exercise the power of reinstatement in relation to the company if the conditions envisaged by section 601AH(2) were satisfied.
18. Mahony SM strongly disagreed with Barrett J's analysis in City West Water v Mr D Investments, at [18]-[23]: 18 Assuming for the moment that, on the proper construction of s 1362CH, the act of ASIC in reinstating the registration of a company in compliance with an order of the Court is the ''exercise'' of a power within the section, it has to be said that it is not apparent how that would alter or affect the source of the jurisdiction of the Court to have made the order. 19 With respect, however, the act of ASIC in reinstating a company's registration in compliance with an order of the Court may more aptly be described as the exercise of a ''function'' rather than of a ''power''. It is in that sense of ''function'' that it may be said that only ASIC may ''register or reinstate''. To comply with a mandatory order of a court is not to exercise a power, but to perform an obligation. The order does not reserve to ASIC a discretion whether to comply with it. That being so, it is difficult to characterise observance of the imperative to comply with the order as the exercise of a ''power''. It has not been possible for me to conceive of circumstances where ASIC might exercise a discretion against reinstatement where the Court has ordered it to reinstate the registration of a company; where the order has been authenticated (and the capacity to recall and vacate it consequently has disappeared); where there has been no stay ordered with respect to the operation of the order; and where a copy of the order, as authenticated, is duly lodged, with a duly completed Form 105, and any pre-condition to reinstatement stipulated in the order, for example, payment of ASIC's costs, has been satisfied. 20 The concept of the Court's making an order against ASIC for the reinstatement of the registration of a company was created when s 601AH(2) was inserted in the Corporations Law by the Company Law Review Act, that is, at the same time as s 1362CH was inserted. In previous legislation (see, for example, s 574(4) of the Corporations Law, s 459(6) of the Code (set forth at [3]), and s 308(5) of the Uniform Companies Act 1961 (NSW)), an order for reinstatement (or, in the case of the Companies Act, restoration of the company's name to the register) resulted, upon the lodgment of an office copy of the order, in the company's being deemed by force of the legislation always to have been in existence. In other words, the order, the lodgment of the office copy of the order and the legislation combined to produce that effect. No order was made that the relevant commission or the Commissioner for Corporate Affairs or the Registrar of Companies perform any act. If it were intended, then, that ''ASIC's powers'' extended to a ''power'', as distinct from an ''obligation'', to reinstate after ordered by the Court to reinstate, one would have expected this to be set forth explicitly in the section which provided for the order against ASIC, s 601AH(2), and not left to be inferred from a section the effect of which with respect to ''ASIC's powers'' apparently was confined to a retrospective extension of powers explicitly conferred on ASIC by s 601AH. 21 In the passage from his judgment in Shaw which I have quoted at [17], Barrett J referred to s 601AH(1) as that under which ASIC may reinstate a company ''according to its own decision independently made''. It will be recalled that subs (1) expressly provides for ASIC's power to reinstate the registration of companies in cases where it is satisfied that deregistration ought not to have been effected. In preceding legislation, ASIC's power itself to reinstate was limited to cases of error by the relevant commission in effecting the deregistration or equivalent. As will be seen, the extension of powers conferred by s 601AH(1) and, retrospectively, by s 1362CH, was directed inter alia to cases where it could be established that a basis for administrative deregistration, for example, that the company had ceased carrying on business, was not correct. The advantage of such an extension of ASIC's powers is that there would be, in such cases, no longer a need to resort to the Court under s 601AH(2). It is to subs (1), then, that one would expect the reference in s 1362CH to ''ASIC's powers'' to relate. That this was its purpose, and limitation, is confirmed by the relevant paragraphs of the explanatory memorandum circulated with the Company Law Review Bill 1997 (the Bill for the Company Law Review Act) …
19. After extracting the portions of the Explanatory Memorandum already set out in this judgment at [28], Mahony SM continued at [23]: There are a number of further observations which could be made about this extract from the Explanatory Memorandum but I make only one: The ''envisaged'' limitation on ASIC's powers in par 15.26 and the expectation of resort to the Court in the circumstances par 15.26 concerns, appear further to point to a clear understanding of those responsible for drafting the [Company Law Review Act 1998] that provisions about ''ASIC's powers'' in s 601AH(1) were not provisions about the power of the Court under s 601AH(2). Mahony SM proceeded to conclude that the Court's jurisdiction to reinstate the registration of the company was still to be found in the Companies (Victoria) Code: at [28].
20. In Baird v W J T Howes Investments, Barrett J said, at [8]: I am satisfied that the reasoning and conclusions of Senior Master Mahony in the City West Water Ltd case are correct and must prevail to the exclusion of my own decision, in this respect, in Shaw v Goodsmith Industries Pty Ltd and also, to the extent of inconsistency, that of Austin J in Parker v Australian Asbestos Pty Ltd. Particularly compelling is the observation made at paragraph [27] of the judgment in City West Water Ltd.
21. The "observation made at paragraph [27] of the judgment in City West Water" concerned the meaning of "commencement", referred to at [33] of this judgment. Barrett J did not, in Baird v W J T Howes Investments, refer specifically to Mahony SM's analysis of what was meant by "ASIC's powers" but appears to have accepted that analysis as correct. This particular point of difference between Barrett J in Shaw v Goodsmith Industries and Mahony SM in City West Water v Mr D Investments does not appear to have been further considered in subsequent authorities.
22. In one sense, these cases may be distinguished as none of the companies in question had been deregistered under the Corporations Law: in Shaw v Goodsmith Industries and Baird v W J T Howes Investments, the company was deregistered under the Companies (New South Wales) Code); in City West Water, the company had been deregistered by the National Companies and Securities Commission under the Companies (Victoria) Code). But the reasoning was nonetheless central to their Honours' decisions and, as important jurists on matters of corporations law, cannot be overlooked.
23. At first blush, the reference in section 1362CH to "ASIC's powers" was a reference to its powers under section 601AH(1). The headings in section 601AH delineated between reinstatement by ASIC and reinstatement by the Court. The powers conferred on ASIC by section 601AH(1) were an expansion of its previous powers. Section 1362CH made plain that the expansion had retrospective effect, it being necessary for legislation to make the retrospective quality of amending legislation plain: Reg Bartley, The Modern Approach to Statutory Construction (2000, National Library of Australia, 1st edition) at 279 citing Smith v The Queen (1994) 181 CLR 338; (1994) 69 ALJR 24; [1994] HCA 60 per Mason CJ, Dawson, Gaudron and McHugh JJ; section 7(2), Acts Interpretation Act 1901 (Cth). If this is correct - and City West Water and Baird v W J T House Investments suggest that it is - then the Court's power to reinstate Austral Bronze may depend upon its power to do so under former section 574(3) of the Corporations Law. That power was subject to any application for reinstatement being made within 15 years of cancellation, that is, by 26 September 2012. The Court's power to declare dissolution of the company void under section 571(1) is, however, not subject to any limitation period.
24. The Company Law Review Act 1998 also added Part 11.2, Division 10, "Changes resulting from the Company Law Review Act 1998", to the Corporations Law, including section 1439 which provided: 1439 Deregistration - reinstatement of registration where application under section 571 or subsection 574(3) made before commencement An application made under section 571 or subsection 574(3) of the old Law that has not been determined by commencement has effect after commencement as if it were an application for an order for reinstatement of the registration of the company under section 601AH of the new Law. In this provision, "commencement" meant the commencement of section 3 of the Company Law Review Act 1998 (that is, 1 July 1998); "new Law" meant the Corporations Law in force after commencement; and, "old Law" meant the Corporations Law in force immediately before commencement: section 1412, Corporations Law.
25. The heading to section 1439 suggests that any application to which the section applies must be made before commencement, noting that headings form part of the legislation and may assist in construing the section, although must give way to clear and unambiguous operative words: section 13(2)(d), Acts Interpretation Act 1901 (Cth); Perry Herzfeld and Thomas Prince, Interpretation, (2020, Thomson Reuters, 2nd edition) at [5.110]. Such a construction is also consistent with the fact that, after "commencement", section 571 and 574 were repealed and thus, presumably, no fresh applications could be made under those sections.
26. I do not divine any intention by Parliament - from the amendments made by the Company Law Review Act nor the Explanatory Memorandum - to limit the Court's power under section 601AH to only reinstate companies deregistered after 1 July 1998. (The definition of "company" does not assist in ascertaining the Court's power to reinstate companies deregistered before commencement of section 601AH.) The Explanatory Memorandum suggested that the Court's power was "preserved", with the only material change being to abolish the 15 year limitation period. The Court's power to reinstate the company under section 601AH remained couched in similar language to former sections 571 and 574(3). The transitional provision - section 1439 - provided that applications made under provisions of the old Law would be determined under the new Law. The Company Law Review Act repealed sections 571 and 574 such that, unless an application to reinstate companies deregistered before 1 July 1998 was made under the new section 601AH then, on the face of it, the Court had no power to reinstate such companies at all. That would lead to absurd consequences absent Barrett J's construction of section 1362CH in Shaw v Goodsmith Industries at [9]-[11], which I consider is to be preferred to that of Mahony SM in City West Water at [18]-[23], as giving effect to Parliament's purpose.
27. The Corporations Law was replaced by the Corporations Act 2001 on 15 July 2001. (The Company Law Review Act 1998 was itself repealed on 10 March 2016 by the Amending Acts 1990 to 1999 Repeal Act 2016 (Item 741, Schedule 1). Subsections 601AH of the Corporations Act is in relevantly the same terms as its Corporations Law predecessor. Section 601AH now provides for the reinstatement of the registration of a "company", defined in section 9 of the Corporations Act to mean "a company registered under this Act". Because Austral Bronze was not registered under the Corporations Act, it is not a "company" within the meaning of section 9: Re Rocha Pty Ltd (Deregistered) at [18] per Brereton J.
28. Part 10.1 of the Corporations Act 2001 contains transitional provisions from "the old corporations legislation" which, in respect of New South Wales means, the Corporations Law set out in the Corporations Act 1989 (NSW): section 137(1). The object of Part 10.1 is set out section 1370: 1370 Object of Part (1) … the object of this Part is to provide for a smooth transition from the regime provided for in the old corporations legislation of the States and Territories in this jurisdiction to the regime provided for in the new corporations legislation, so that individuals, bodies corporate and other bodies are, to the greatest extent possible, put in the same position immediately after the commencement as they would have been if: (a) that old corporations legislation had, from time to time when it was in force, been valid Commonwealth legislation applying throughout those States and Territories; and (b) the new corporations legislation (to the extent it contains provisions that correspond to provisions of the old corporations legislation as in force immediately before the commencement) were a continuation of that old corporations legislation as so applying. … (2) In resolving any ambiguity as to the meaning of any of the other provisions of this Part, an interpretation that is consistent with the object of this Part is to be preferred to an interpretation that is not consistent with that object. …
29. Section 1408 of the Corporations Act 2001 provides: 1408 Old transitional provisions continue to have their effect (1) … this Act has the same effect, after the commencement, as it would have if: (a) the transitional provisions (see subsections (6) and (7)) of the old Corporations Laws of the States and Territories in this jurisdiction (as in force from time to time before the commencement) had been part of this Act; and (b) those transitional provisions produced the same results or effects (to the greatest extent possible) for the purposes of this Act as they produced for the purposes of those old Corporations Laws. … (4) For the purpose of determining whether the new corporations legislation includes a provision that corresponds to a provision of the old corporations legislation of a State or Territory, and for the purpose of any reference in this part to a corresponding provision of the new corporations legislation, this Act is taken to include the transitional provisions of the old corporations legislation of the States and Territories, as they have effect because of subsections (1) and (2). … (6) Subject to subsection (7), for the purposes of this section, a transitional provision is any of the provisions of the old Corporations Laws of the States and Territories in this jurisdiction listed in the following table. In Part 10.1, "commencement" means the commencement of the Corporations Act: section 1371(1). The table following section 1408(6) itemises transitional provisions of the old Corporations Law, including Chapter 11, which contains both section 1362CH and section 1439.
30. Thus, as Barrett J explained in Shaw v Goodsmith Industries in respect of section 1362CH, at [8]: The effect of s.1408(1) of the Corporations Act 2001 is therefore to cause s.1362CH of the Corporations Law to have, in the context of the Corporations Act itself, the force and effect as it had while the Corporations Law was in force generally such force and effect being the same as if created by the Corporations Act. Section 1362CH can therefore be used today in the same way as it could be used before the advent of the Corporations Act, but so that the results are recognised as results produced by the Corporations Act rather than the Corporations Law. It thus represents an appropriate source of jurisdiction in the present case.
31. Barrett J's analysis in respect of the preservation of section 1362CH was not the subject of criticism in City West Water and was obviously correct. Thus, the insurer's concession that the Court has power to reinstate Austral Bronze was correctly made, but perhaps for a different reason than given.

General damages in the Dust Diseases Tribunal

1. On the death of Mr Fletcher and Mr Viksne, all causes of action vested in them survived for the benefit of their Estates under section 2(1) of the Law Reform (Miscellaneous Provisions) Act 1944 (NSW). However, section 2(1) is subject to a limitation in section 2(2)(d): (emphasis added) 2 Effect of death on certain causes of action … (2) Where a cause of action survives as aforesaid for the benefit of the estate of a deceased person, the damages recoverable for the benefit of the estate of that person: ... (d) where the death of that person has been caused by the act or omission which gives rise to the cause of action, shall 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. This section is intended to address "a particular, perceived problem: that the recovery by the estate of damages for heads of loss it had not, or would not, suffer was contrary to the rationale of compensatory damages": WorkCover Queensland v Amaca Pty Ltd (2010) 241 CLR 420; [2010] HCA 34 at [47].
2. In 1998, section 12B was added to the Dust Diseases Tribunal Act: (emphasis added) 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.
3. Section 2 of the Law Reform (Miscellaneous Provisions) Act 1944 was also amended by adding sub-section 7: This section has effect subject to section 12B of the Dust Diseases Tribunal Act 1989.
4. The purpose of section 12B was explained in the Second Reading Speech, extracted in Amaca Pty Limited v Cremer (2006) 66 NSWLR 400; [2006] NSWCA 164 at [35]: It is not uncommon for workers and other persons suffering from the most serious type of dust disease to have very limited life expectancy. Consequently, claimants are often under considerable pressure to try to finalise their general damages claim before death, for the benefit of their families. This has meant that in some cases hearings have been held in harrowing circumstances when the claimant is on the verge of death. Having regard to the special nature of dust diseases, the Bill provides that where the claimant dies before completion of the Tribunal proceedings the claimant's estate will still be able to pursue recovery of the outstanding general damages. This is intended to avoid the arbitrariness and added distress involved in the present situation.
5. As such, exemption from the operation of section 2(2)(d) of the Law Reform (Miscellaneous Provisions) Act 1944 is critically dependent upon proceedings having been commenced in the Tribunal and pending before the Tribunal before the claimant's death. Thus, in Amaca v Cremer, the Court of Appeal held that section 12B of the Dust Diseases Tribunal Act does not operate to preserve general damages for the benefit of an Estate if, although proceedings were commenced before the plaintiff's death, the relevant defendant was only joined as a party after the plaintiff's death. More specifically, McColl JA held that "proceedings" when used in section 12B "refers to the invocation of the Tribunal's jurisdiction to enforce the cause of action to recover damages in relation to the breach of duty referred to in s11(1)(b) against the person said to have breached that duty": at [77]. At [80]: (emphasis added) Accordingly, in my view, s 12B applies to proceedings in relation to a cause of action for damages in respect of a dust-related condition commenced against a particular defendant by the deceased and pending before the Tribunal at his or her death.
6. Further, at [90]: When the legislature decided to exempt dust-related conditions from the subs 2(2)(d) limitation, it did so by reference to whether proceedings had been commenced prior to death. This was not an arbitrary date but, rather, one apparently selected on the premise that, but for the precipitate demise which often followed diagnosis of dust-related conditions, the deceased would in most cases be able to see such proceedings to fruition and to recover damages to the fullest extent, including, of course, recovering damages for non-pecuniary losses.
7. Whilst McColl JA considered that there could be no doubt that section 12B was intended to be given ample operation, the legislature applied a limitation on the section 12B exemption from section 2(2)(d) of the Law Reform (Miscellaneous Provisions) Act 1944 which must be reflected in its interpretation, consistent with the Second Reading Speech where the Bill was described as providing improvements "designed to be fair and reasonable to all parties affected": at [91]-[94].
8. Similarly, Brereton J noted that "generally speaking, a proceeding means the invocation of jurisdiction by an initiating process": at [164]. His Honour considered that section 12B does not create a remedy but merely qualifies the removal of a remedy in certain cases: at [179]. Further, at [181]-[182]: 181 … However, the legislature has chosen to leave the recoverability of general damages in dust claims after death not at large, but contingent on the commencement before death of proceedings for damages in respect of a dust-related condition. The same restriction does not apply in respect of damages for economic loss. That distinction is readily understandable: damages for economic loss compensate for losses to the deceased's estate, so that the deceased's successors as well as the deceased suffer the loss; whereas damages for non-economic loss compensate for losses personal to the deceased which are not suffered by the estate. That rational distinction is removed by s 12B, in limited circumstances - not for the purpose of allowing general damages to be recoverable generally in dust claims after death, but rather to relieve what would otherwise be the pressure for rapid finalisation of claims imposed in respect of claims brought before death if general damages were recoverable only if the proceedings were completed before death. 182 To bring proceedings at all requires the identification of a proper defendant - it would be an abuse of process to bring proceedings against a defendant whom there was no reason to suppose was liable to the plaintiff simply for the sake of commencing proceedings.
9. Basten JA (in dissent) agreed with this remark, stating (at [127]) that "no proceedings can be brought without the identification of a proper defendant: the jurisdiction can only be invoked by making a non-colourable claim against a specific defendant". (A claim is colourable where it is made for the improper purpose of fabricating jurisdiction: Qantas Airways Limited v Lustig (2015) 323 ALR 374; [2015] FCA 253 at [88] per Perry J.) The word "proceeding" and the phrase "cause of action" in section 12B(2) imply that that which must be "pending before the Tribunal at his or her death" is "a cause of action against a particular person": at [196] per Brereton J.

"proceedings commenced … and pending"

1. The first question is whether the Tribunal proceedings were "commenced … and pending before the Tribunal" within the meaning of section 12B(2) of the Dust Diseases Tribunal Act 1989 when Mr Fletcher and Mr Viskne died, given that, although Austral Bronze and John Darlington were named as defendants, the companies did not then exist. As section 601AD(1) of the Corporations Act 2001 provides: 601AD Effect of deregistration Company ceases to exist (1) A company ceases to exist on deregistration.
2. The insurer submitted (and the claimants did not seriously contend otherwise) that, as Mr Fletcher and Mr Viskne commenced proceedings in the Tribunal against deregistered companies, the proceedings were a nullity and thus not pending at the time of their deaths. For proceedings to be commenced effectively against a party, the party must be in existence at the time of commencement: Immer v Girotto Precast Pty Ltd [2009] NSWSC 1019 at [6] per Rothman J. Proceedings against a deregistered company are a nullity: Deveigne v Askar (2007) 69 NSWLR 327; [2007] NSWCA 45 at [113], [124] per McColl JA citing International Bulk Shipping & Services Ltd v Minerals & Metals Trading Corporation of India [1996] 2 Ll R 474 at 478-480 per Evans LJ, Lazard Bros & Co v Midland Bank Ltd [1932] All ER Rep 571; [1933] AC 289 at 296-7 per Lord Wright, Re Pritchard (dec'd); Prichard v Deacon [1963] 1 All ER 873; [1963] Ch 502 at 516 per Lord Denning, Prior v Hannaford [1970] VR 772 at 778 and MacFoy v United Africa Co Ltd [1961] 3 All ER 1169; [1962] AC 152 at 160 per Lord Denning.
3. The insurer submitted that proceedings must be regularly commenced to invoke the Tribunal's jurisdiction over the particular party against whom the remedy is claimed. The proceedings in the Tribunal were not "commenced against" the deregistered companies merely by naming those companies in the statement of claim. Thus, there were no "proceedings" on foot at the time of the death of Mr Fletcher and Mr Viskne, such that section 12B of the Dust Diseases Tribunal Act did not dis-apply section 2(2)(d) of the Law Reform (Miscellaneous Provisions) Act 1944. I accept that submission.
4. For completeness, a legal proceeding is "pending" as soon as commenced and until it is concluded: Stroud's Judicial Dictionary (2016, revised online 31 July 2019, Thomas Reuters, 9th edition). Thus, "proceedings pending" in the Compensation Court meant proceedings which had been commenced but not determined: Norcal Pty Limited v D'Amato (1988) 15 NSWLR 376 at 386 per Mahoney JA. "Pending proceedings" under the Family Law Act 1975 (Cth) meant uncompleted proceedings: In the marriage of Smith (1979) 35 FLR 12; (1979) 5 Fam LR 169 at 178 per Lindenmayer J. Under the Rules of the Supreme Court of England and Wales, an action is "pending" if the writ has been issued, irrespective of whether it has been served: Arab Monetary Fund v Hashim (No 4) [1992] 4 All ER 860; [1992] 1 WLR 1176 at 1180 per Nourse LJ with whom Woolf and Fox LJJ agreed. In United Kingdom immigration legislation, "pending" means no more than "until", such that a person may be detained "pending" removal so long as the Secretary of State remains intent upon removing the person and there is some prospect of achieving this: R (Khadir) v Secretary of State for the Home Department [2005] UKHL 39; [2006] 1 AC 207 at [32] per Lord Brown.

Does reinstatement retrospectively validate the Tribunal proceedings?

1. The second question is whether reinstating these companies, without more, has the consequence that the Tribunal proceedings were "commenced … and pending" at the time of Mr Fletcher and Mr Viskne's deaths. Section 601AH(5) of the Corporations Act provides: (emphasis added) 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.
2. It might be thought that the clear language of the first sentence of section 601AH(5) has the result that, on reinstatement, the Tribunal proceedings were thereby in fact "commenced" as the companies should be taken to have been in existence at the time. But section 601AH(5) has been described as providing "only a limited measure of retrospectivity": White v Baycorp Advantage Business Information Services Limited (2006) 200 FLR 125; [2006] NSWSC 441 at [115]. As White J observed in Foxman v Credex National Australian Trade Exchange Pty Limited (in liq) (2007) 65 ACSR 476; [2007] NSWSC 1422, the first sentence of section 601AH(5) is qualified by the following sentences: at [41], [60].
3. Some examples illustrate how this "limited measure of retrospectivity" works. In White v Baycorp Advantage, the plaintiffs sought to correct inaccurate entries by a credit rating information bureau in respect of default under a contract with Capital Corporate Finance Limited. At the time of default, Capital Corporate Finance was deregistered (although re-registered by ASIC soon afterwards) and the default notice was in fact issued by its parent company. Section 601AH(5) did not have the result that the default notice was valid when issued. Campbell J held at [115]: (emphasis added) Approaching the matter purely as one of statutory construction, the effect of s 601AH(5) is that, now, the statute requires everyone to treat Capital Corporate as though it had never been deregistered. However, that does not mean that anything which purported to be done on behalf of Capital Corporate during the period of its deregistration is thereby regarded as valid. If a director had purported to act on behalf of a deregistered company during the period of deregistration, mere reinstatement would not validate his action, because s 601AH(5) provides only a limited measure of retrospectivity, so that the director regains his office only from the time of reinstatement. Similarly, s 601AH(5) provides only a limited measure of retrospectivity concerning title to the property of the company, so that the property revests in it only from the time of reinstatement. Thus, notwithstanding the reinstatement, any contractual power which Capital Corporate had prior to the deregistration is still regarded, even after the deregistration, as having been vested in ASIC during the period of deregistration. If the contractual power was vested in ASIC, Capital Finance could not have had authority to exercise that contractual power. See also [123] and [127].
4. Perhaps closer to the facts at hands - where something is sought to be done to rather than by a deregistered company - is CGU Workers Compensation (NSW) Limited v Rockwall Interiors Pty Limited (2006) 201 FLR 296; [2006] NSWSC 690, where a workers compensation insurer sought to reinstate and wind up three companies, having served a statutory demand on the former registered office of the companies whilst the companies were deregistered. Barrett J reinstated the companies but observed that the companies could not be said to have been served with a statutory demand whilst deregistered. A demand could not be a statutory demand under section 459E of the Corporations Act unless served on a company, and delivery to the former registered office of a non-existent company could not be served on a company: at [16]. Following White v Baycorp, Barrett J observed at [17] and [19]: 17 … Section 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. 19 … s 601AH(5) would not, in general, be appropriately used to visit adverse effects upon the company by reason of the inactivity necessarily stemming from its non-existence. For the company not to act after it ceases to exist is a perfectly natural and expected result of its not existing…
5. Similarly in Oates v Consolidated Capital Services Pty Limited [2007] NSWSC 680, White J held that service of court documents on the former registered office of a deregistered company did not become effective service on reinstatement of the company. At [35]: Whilst, on the making of the order for reinstatement, the company will be taken to have continued in existence, I do not accept that it is to be taken to have continued to have a registered office, when in fact it did not, and when there was no-one who could have acted for it or have received documents on its behalf… Likewise, in Immer v Girotto Precast, Rothman J observed that reinstatement of the company would not, without further steps being taken, render service of the proceedings on the deregistered company valid or efficacious: at [12].
6. Thus acts purported to be done on behalf of a deregistered company, or active steps taken in relation to a deregistered company such as service of documents, are not automatically retrospectively validated on reinstatement of the company. As Lindgren J observed in Re Stork ICM Australia Pty Ltd (Deregistered) (2010) 77 ACSR 517; [2010] FCA 53, "The[se] cases recognise that the mere retrospective effect of a reinstatement, without more, does not supply the additional facts necessary to make for a positive answer to such questions" as whether particular acts, conduct, states of mind or omissions are to be attributed to the deregistered company, or particular acts purportedly directed against it are to be treated as effective, in each case as at a time during the period of the deregistration: at [29]. Of course, as White J explained in Foxman v Credex, the limited retrospective validity conferred by section 601AH(5) might be cured by an ancillary order: at [65].

Ancillary orders

1. Subsections 601AH(3) of the Corporations Act 2001 provides: (3) If: … (b) the Court makes an order [for reinstatement] 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). Section 601AD provides that, on deregistration, a company ceases to exist and all property that the company held on trust immediately before deregistration vests in the Commonwealth and other property vests in ASIC.
2. As to the breadth of the Court's power to make ancillary orders, judicial observations have varied, generally commensurate with the facts to hand. In Pagnon v Workcover Queensland [2001] 2 Qd R 492; [2000] QCA 421, the Court's power under section 601AH(3)(b) was considered to be "very wide" while in CGU v Rockwall Interiors Barrett J considered, "the s 601AH(3) jurisdiction should, in my opinion, be used principally to remove anomalies or impediments": at [18]. CGU v Rockwall Interiors was followed in Re Bele & Co Pty Ltd [2017] NSWSC 1824, where Black J considered the power to make such orders was incidental to the power to reinstate a company and not independent of it: at [6].
3. In Re Regional Planners Developments Co Pty Limited (2015) 110 ACSR 457; [2015] NSWSC 1996, however, Brereton J observed the differences between section 601AH and its statutory predecessors. At [24]: The re-enacted section no longer contains the limitation that appeared in its predecessors to the effect that the order be made for the purpose of placing the company and all other persons in the same position as nearly as may be as if the name of the company had not been struck off. That indicates an intention to remove what was seen in some of the cases as a constraint on the types of orders that could be made [see in that respect, in particular, Re Hunting[d]on Poultry Ltd [1969] 1 All ER 328; (at 330-331); Deputy Commissioner of Taxation v Action Workwear Pty Ltd (deregistered) (1996) 20 ACSR 712, 722-723]. Parliament, by re-enacting the section, should be taken to have intended to confirm the way in which it had been interpreted to that point, and to reduce the constraints which had been applied to its application. …
4. Such an approach was followed by McKerracher J in Bell Group Ltd (in liq) v ASIC (2018) 358 ALR 624; (2018) 128 ACSR 247; [2018] FCA 884, when asked to reinstate 16 companies related to The Bell Group Ltd for the purpose of receiving distributions from a $1.7 billion settlement fund after legal proceedings concerning The Bell Group were concluded in 2013, and to do so in a tax effective manner by forming a tax consolidated group under the Income Tax Assessment Act 1997 (Cth). Ancillary orders were sought, "to achieve the effect that the shares held by a number of the Deregistered Companies be deemed and taken at all times from the date of dissolution of those companies to have been beneficially owned by the companies": at [32]. As to the scope of the power conferred by section 601AH(3)(d), McKerracher J noted at [110]: Both the plaintiffs and the Commissioner have argued the matter partly by reference to the legislative history and partly by reference to various cases. On one view of the matter, however, one would enquire simply as to why the text should not be given its plain meaning. It seems to me that is an appropriate starting point, recognising, of course, that the apparently wide discretion should always be directed to ordering what is 'just' or to doing justice to all persons affected by the making of the order(s).
5. His Honour noted that there was no suggestion in the statute that an order could only be made where it was justified by exceptional circumstances, rather, "The power to make the orders is cast in very broad terms": [129]. At [136]: In my view, there is no reason to limit the power in s 601AH(3)(d) of the Corporations Act in the manner contended for by the Commissioner. Although the parties referred to extrinsic materials, there is nothing in them which supports a suggestion that there was a legislative intention to diminish or limit the purpose of the power. The power has always existed to achieve the primary purpose of treating a company upon reinstatement as though it had continued in existence from the date of deregistration, that is to say, the 'as you were' position.
6. His Honour considered the section clearly permitted an ancillary order which had significant, not merely incidental, retrospective consequences: [137]. McKerracher J did not consider that Barrett J's observation in CGU v Rockwall detracted from the approach to be taken, at [141]: (emphasis original) …This observation was not central to his Honour's reasoning in the case, but in any event, it is clear that his honour does not say it should only be used to remove anomalies or impediments or only for small anomalies. The section itself certainly does not suggest that it be used merely to remove anomalies or impediments, nor does his Honour suggest so. Where his Honour says 'principally', I would take that to mean 'usually'. It may be common for the subsection to be used for such purpose, but there is no reason to think it is exclusively so confined.
7. His Honour noted that The Bell Group's objectives were on their face entirely lawful and reasonable. The Commissioner of Taxation still had ample opportunity to oppose the tax consequences of the ancillary orders in other administrative or judicial proceedings if the Commissioner chose to do so; the ancillary orders simply allowed The Bell Group to contend for such consequences. However, his Honour considered that it was desirable to grant no more than the minimum relief necessary to do justice and to do so solely for the stated purpose in the way described by Bell Group Ltd (in liq) v ASIC: at [147].
8. Of course, no judicial statement can be considered definitive nor more significant than the words of the statute, which empowers the Court to "validate anything done" and "make any other order it considers appropriate". As I observed in Re ACN 063 346 708 (formerly known as South Passage Pty Ltd) [2018] NSWSC 1709 at [34], Notes form part of the Corporations Act and have the same status as the provisions of the Act: section 13, Acts Interpretation Act. According to the Note to section 601AH(3), an example of an order which may be made on reinstatement includes directing ASIC to transfer property vested in ASIC under subsection 601AD(2) to someone other than the reinstated company. As a starting point, this suggests that ancillary orders may be substantive in nature.
9. As to the considerations indicating whether an order should be made under section 601AH(3), and the extent of any such order, four themes emerge from the case law. First, ancillary orders may be made to suspend the limitation period in respect of claims against the company but perhaps not to avoid limitation periods which may apply to a claim to be brought by the company. In Pagnon v Workcover Queensland, the Court's power under section 601AH(3)(b) was considered to extend to an order that the time between dissolution of the company and its reinstatement not be counted against the plaintiff for the purpose of statutes of limitation: McPherson JA at [15], with whom Thomas JA and Muir J agreed. This, or course, is nothing new. In the classic case of Re Donald Kenyon Limited [1956] 3 All ER 596; [1956] 1 WLR 1397, an order was made that a limitation period did not run during the period of the company's dissolution so that creditors were not statute barred in pursuing debts owed by the company: at 725. See also Re Regional Planners Developments Co per Brereton J at [25]-[28].
10. As to a case where it was proposed that the company, when reinstated, would bring a statute barred claim, in Chalker v Clark [2008] VSCA 92 the applicant sought to reinstate a company so that he could endeavour to persuade a liquidator appointed to the company to assign the company's chose in action to him to pursue. The evidence indicated that it was most unlikely that the liquidator would assign the chose in action to the applicant. Further, the proposed proceedings which the applicant wished to bring on behalf of the company were clearly statute barred. The Court considered that it would not be "just" to reinstate a company as a device to escape a limitations period with the benefit of an ancillary order: at [37] per Osborn AJA, at [45] per Maxwell P. It is also apparent that the Court of Appeal considered the applicant to be dubious and the cause of action to be hopeless.
11. Second, ancillary orders may not be made where, to do so, would cause prejudice to the reinstated company on account of its failure to do something which it could not have done whilst deregistered (CGU v Rockwall Interiors at [19]) but may be made where the absence of an ancillary order will cause prejudice to the company or third parties for what the company was purportedly doing during that period. For example, in Foxman v Credex, a liquidator sought to examine persons in connection with actions purportedly taken on behalf of a company during its period of deregistration. White J observed at [64]: … Where, to all appearances, the company has continued to carry on business and third parties would be prejudiced if they were not able to prove in a liquidation for claims apparently arising against the company during the period of deregistration, or if the company could not recover debts apparently incurred during the period of deregistration, then it may well be appropriate to make an order pursuant to s 601AH(3)(b) that the company be taken to have such rights and be subject to such liabilities as it would have had had it not ceased to exist on its deregistration.
12. Third, ancillary orders will likely not be made where to make the orders sought would require the Court to determine contentious matters between the applicant and the company but may be made where such orders are not in dispute or have already been determined in other court proceedings. An example of the former category is Re Bele & Co, where a creditor sought reinstatement of the company and an order that ASIC pay $193,000 to the creditor, being funds which ASIC held under section 601AD. Black J considered that section 601AH(3)(d) did not allow the Court, in effect, to determine a claim between a creditor and a deregistered company without the attendance of the deregistered company and in a manner that would not bind it, and then make an order for ASIC to make a payment consequential upon its determination of that claim.
13. Similarly, in Randall v City of Canada Bay Council (No 4) [2015] NSWSC 1759, judgment was entered against a company in favour of the local council for some $1.6 million in unpaid rent. A liquidator was appointed to the company and it was deregistered. A shareholder and director of the company, appearing in person, sought to reinstate the company so that the judgment and orders (made against it by the Court of Appeal, no less) could be set aside. The applicant also sought ancillary orders that judgment be entered in favour of the company against the council for some $9 million, and judgment be entered in the applicant's favour against the company for some $550,000, said to be unpaid director's fees. After concluding that the application to set aside the judgment debt was hopeless, Kunc J also considered that the ancillary orders sought went well beyond the power conferred by section 601AH: at [200].
14. An example of the latter category is Re South Passage, where final orders had been made in separate proceedings such that the applicant, Stuart Chase, was entitled to be recorded as the beneficial owner of the whole of the share capital of South Passage. The incumbent shareholder, his sister Karen Chase, had sought to frustrate the processes of the Court by de-registering the company and evading service. I did not consider that section 601AH(5) confined the Court's power in section 601AH(3)(d) such that the Court may not make orders modifying the effect of reinstatement but, rather, gave the Court the power to alter the ordinary incidents of reinstatement in appropriate circumstances: at [51]. Thus, to prevent Karen Chase being automatically reinstated as sole director on reinstatement of the company, I made ancillary orders changing the name of the company (an unrelated party had registered a company in the original name in the meantime); ordered ASIC to record Stuart Chase as the sole shareholder and director of the company, changed the registered office to the address of Stuart Chase rather than his sister, and repealed the constitution of the company (which Stuart Chase could not locate and the provisions of which were unknown).
15. Similarly, in In the matter of Garfox 86 Pty Limited [2019] NSWSC 442, a company owned a $1 million apartment and, whilst deregistered, a shareholder sold 50% of the shares for $500,000 and resigned as a director, replaced by the purchaser. Vendor and purchaser were unaware that the company was deregistered at the time. There was no factual dispute. Ancillary orders were made so that, on reinstatement, the change in shareholders and directors was recorded on ASIC's register.
16. Finally, in In the matter of McDonagh Management Pty Limited (2019) 139 ACSR 447; [2019] NSWSC 1099, mischievous defendants in separate proceedings had enlisted the assistance of a criminal and a questionable accountant who, misusing the corporate key issued by ASIC, twice changed the ASIC register so that Ms McDonagh ceased to be a director and sole shareholder of the company. So re-constituted, the company purported to settle the proceedings which Ms McDonagh was bringing against the defendants, on absurd terms. On reinstating the company, ancillary orders were made to validate anything done by the company in the proceedings during its period of deregistration; to withdraw fraudulent forms lodged with ASIC from its register; to correctly record Ms McDonagh as sole officeholder and shareholder of the company; and to change the registered office of the company to that of Ms McDonagh. Further, an order was also made for ASIC to cancel the corporate key issued in respect of the company, to issue a new corporate key to Ms McDonagh and to restrain ASIC from registering any documents in respect of the company until the corporate key had been changed. Acknowledging that the ancillary orders were 'novel', liberty was granted to ASIC to make submissions in respect of the orders, which ASIC did not exercise: at [50].
17. Fourth, the courts are mindful as to whether the ancillary orders sought are futile or sought in aid of an unmeritorious claim: Chalker v Clark; Randall v City of Canada Bay Council; Bell Group Ltd (in liq) v ASIC. That is, whether the ancillary orders are "just" or necessary to ameliorate the aggrievement of the applicant remains the touchstone.

Can ancillary order validate legal proceedings nunc pro tunc?

1. In these proceedings, the claimants favoured a broad approach to the power to make ancillary orders, submitting that section 601AH(3), in its terms, gives the Court power to validate the commencement of proceedings. Consistent with the approach taken by the High Court in Beck v Weinstock (2013) 251 CLR 425; [2013] HCA 15 in respect of the Court's power under section 1322(4) of the Corporations Act, the Court should not construe provisions conferring jurisdiction by imposing limitations not found in the express terms of the legislation. It was said that the approach taken in Bell Group Ltd (in liq) v ASIC, Re South Passage and In the matter of Garfox 86 was correct. Decisions under the earlier section 571 and section 574 of the Corporations Act 1989 (Cth) were said to relate to different provisions and were of little assistance to the Court's power under section 601AH.
2. The insurer submitted that, although section 601AH(3) furnishes a "wide" power, it was not without limitation but incidental to the Court's power to reinstate a deregistered company and should "be used principally to remove anomalies or impediments: CGU v Rockwall Interiors at [18] per Barrett J; Re Bele & Co at [6] per Black J; Re Stork ICM Australia at [27] per Lindgren J. The insurer submitted that section 601AH(3) cannot be used as a device for circumventing a limitation period: Chalker v Clark at [37] per Osborn AJA, at [45]-[46] per Maxwell P. The insurer submitted that the same reasoning should apply to prevent using section 601AH(3) to circumvent the combined operation of section 2(2)(d) of the Law Reform (Miscellaneous Provisions) Act 1944 (NSW) and section 12B of the Dust Diseases Tribunal Act. The insurer submitted section 601AH(3) could not, or should not, be used to validate purported service on the deregistered companies: CGU v Rockwall Interiors. By parity of reasoning, it was submitted that section 601AH(3) cannot be used to validate service on a deregistered company of a statement of claim against that company in the Tribunal.
3. The insurer submitted that section 601AH(3) cannot be used retrospectively to validate proceedings which were a "nullity" when commenced, relying on Morris v Harris [1926] All ER 15; [1927] AC 252 at 259 per Lord Sumner; Re Kilkenny Engineering Pty Ltd (in liq) (1976) 1 ACLR 285; (1976) 13 SASR 258 at 266-267 per Wells J; Solla v Scott (1982) 7 ACLR 323; [1982] 2 NSWLR 832 at 833-4 per McLelland J; Bianchi v Crewe & Sons Pty Ltd (1996) 135 FLR 15; (1996) 22 ACSR 152 at 153 per Rowland J, at 158 per Franklyn J. It was submitted that there was no reason to think that section 601AH(3) was intended to change this principle.
4. It will be immediately observed that each of these authorities concerned the statutory predecessors of section 601AH(3) and, in particular, section 571(1) of the Corporations Law or its earlier forms, either here or in the United Kingdom. The cited passages of Morris v Harris and Re Kilkenny Engineering focus and turn on the specific language of that provision. McLelland J considered himself bound to follow Morris v Harris in Solla v Scott. In Bianchi v Crewe, the company was dissolved in April 1994, a former employee commenced proceedings against the company for a workplace injury in September 1994 and, in October 1994, the worker obtained an order from a District Court Judge under section 571(1) declaring the dissolution void and granting leave to commence an action for damages against the company, with any such writ to be served within 14 days. The Full Court of the Supreme Court of Western Australia held that the order under section 571(1) did not have the effect of validating the workers' compensation proceedings already on foot when the order was made. Rowland J observed (at 153): ... the writ … which was issued after the date of dissolution and before the order declaring the dissolution void, was a nullity. The provision in s 571(1) of the Corporations Law which empowers the court to give consequential directions … is, it seems to me, facultative only so as to obtain a vesting order back to the company of property which, on dissolution, became vested in the Commission. It does not on the authorities, in my view, reinstate a process which at the time it was issued, was a nullity.
5. Franklyn J agreed that the writ issued in September 1994 "had purported to commence proceedings against a company which no longer existed in law. It thus had no legal effect whatever when issued": at 155. Nor did the order purport to validate those proceedings; "Whether it could have done so in any event is another question": at 155. Further, at 158: The order … made pursuant to the power conferred by subs 571(1) [did] not purport and cannot, in my view, operate to validate or render effective any invalid or ineffective act of another person in respect of the company, whether done prior to dissolution or during the period of dissolution ... The writ issued on 26 September 1994 was issued in respect of a dissolved company and so one which no longer existed. Its issuance was a totally ineffective act. It was also an act in contravention of subs 500(2). That was its status and, in my view, remains its status. To give it validity could not be a result which would relevantly 'seem just'…
6. Rowland and Franklyn JJ did not hold that an order could not have been made under section 571 to validate the proceedings already on foot (although obiter Franklyn J doubted that section 571 ventured so far) but simply that the order made by the District Court Judge did not purport to do so, and thus did not validate otherwise invalid proceedings. As Brereton J observed in Re Regional Planners Developments Co, the statutory language of section 601AH(3) is noticeably different: see [71] of this judgment. The courts have dealt with a similar situation under section 601AH by recognising the limited retrospectivity of section 601AH(5) but making ancillary orders, where appropriate, to validate proceedings that would otherwise be considered a nullity. Bianchi v Crewe does not preclude such a course.
7. Section 601AH(3)(c) clearly states that "the Court may validate anything done during the period beginning when the company was deregistered and ending when the company's registration was reinstated". Validating the commencement of legal proceedings purportedly against a company at a time when the company was deregistered falls squarely within this language. There is no reason to curtail the statutory power by reference to case law in respect of a different, and more limited, statutory power. It may, of course, not be appropriate in the exercise of the Court's discretion to validate the commencement of legal proceedings nunc pro tunc, but nor is the Court precluded from doing so by reference to the statutory language.

Exceeding federal jurisdiction?

1. In its reply submissions, the insurer submitted that the orders sought by the claimants exceeded the federal jurisdiction vested in this Court by section 1337B(2) of the Corporations Act 2001. Section 601AH(3) is a power, not a source of jurisdiction: Rizeq v Western Australia (2017) 262 CLR 1; [2017] HCA 23 at [11] per Kiefel CJ. Section 601AH(3) cannot be exercised in respect of a "matter" over which the Court has no jurisdiction: CGU Insurance Ltd v Blakeley (2016) 259 CLR 339; [2016] HCA 2 at [12] per French CJ, Kiefel, Bell and Keane JJ. Given section 10(1) of the Dust Diseases Tribunal Act, the insurer submitted that the "proceedings" commenced in the Tribunal, to the extent they have any existence, fall within the "exclusive jurisdiction" of the Tribunal. Section 10(1) of the Dust Diseases Tribunal Act is a law which defines "the circumstances in which a proceeding may, or may not, be brought in a court": Rizeq v Western Australia at [22] per Kiefel CJ. Accordingly, insofar as there is any "matter" comprising the Tribunal proceedings, section 10(1) of the Dust Diseases Tribunal Act would be "picked up" and applied in federal jurisdiction as a law of the Commonwealth by force of section 79 of the Judiciary Act, there being no provision of the Corporations Act which "otherwise provides". It was said to follow that this Court's jurisdiction does not extend to any purported "proceedings" which may exist in the Tribunal, and section 601AH(3) cannot be exercised so as to "cure" or validate such proceedings.
2. Further, the insurer submitted this Court should not undermine the processes of the Federal Court: Wigmans v AMP Ltd [2018] NSWSC 1118 at [18] per Ward CJ in Eq; Wileypark Pty Ltd v AMP Ltd (2018) 359 ALR 43; [2018] FCAFC 143 at [11] per Allsop CJ; Re Wakim; Ex parte McNally (1999) 198 CLR 511; [1999] HCA 27 at [108] per Gummow and Hayne JJ. Whilst I accept this principle without demur, it does not apply here where there are no Federal Court proceedings on foot, nor any conflicting Federal Court case law to contend with.
3. The insurer submitted that an order of the kind sought by the claimants, in federal jurisdiction, amounted to an inference with the integrity or processes of the exclusive State jurisdiction of the Tribunal, in defiance of section 10 of the Dust Diseases Tribunal Act. An order of that kind should not be made under section 601AH(3) of the Corporations Act 2001. An order which was directed to the validity of "proceedings" purportedly commenced in the Tribunal and avowedly designed to engage section 12B of the Dust Diseases Tribunal Act would amount to the exercise by this Court of jurisdiction which is, by section 10 of the Dust Diseases Tribunal Act, was "exclusive" to the Tribunal or which would interfere with the processes of the Tribunal. Such an order would be outside the federal jurisdiction of this Court or, if it is within jurisdiction, should not be made on the basis of comity. Section 601AH(3) should not be construed as empowering the Court to change the operation of State law, revive extinguished liabilities, or control the procedure of a State tribunal exercising an "exclusive" jurisdiction.
4. The insurer submitted that section 601AH(3) should not be used in a manner which, in its interaction with State laws, would exceed Commonwealth jurisdiction, citing Smith v Australian Securities and Investments Commission [2018] NSWSC 1695 at [21] per Parker J. I note there, his Honour observed, "There may be an interesting question as to whether there are any limits to orders being made by a court exercising federal jurisdiction under the Corporations Act, which would alter the effect of the Limitation Act (and in particular s 63) for the purposes of State law generally", but did not consider it necessary to consider this further.
5. The insurer submitted that section 601AH had to be read with section 5E of the Corporations Act which was said to dictate the approach to be taken to the construction of the Corporations Act generally. In considering the question of jurisdiction to make an order under section 601AH(3) to effectively circumscribe section 2(2)(d) of the Law Reform (Miscellaneous Provisions) Act 1944 and section 12B of the Dust Diseases Tribunal Act, it should be borne in mind that those provisions were not intended to be excluded or limited in their operation by the Corporations Act. The Court has to "pick up" section 12B of the Dust Diseases Tribunal Act and construe the power under section 601AH(3) in a way that does not exclude or limit the operation of the state law. When asked by the claimants to deploy federal jurisdiction and to exercise a discretion under federal legislation to constrict the operation of section 2(2)(d) of the Law Reform (Miscellaneous Provisions) Act 1944 and section 12B of the Dust Diseases Tribunal Act, the Court would be careful not to construe section 601AH(3) in a way that offended section 5E nor the state law. It was submitted that the claimants were asking the Court, in exercise of federal jurisdiction, to subvert the will of the New South Wales Parliament.
6. The claimants submitted that sections 10 to 12 of the Dust Diseases Tribunal Act do not seek to, or limit, the Court's power under section 601AH of the Corporations Act 2001, as the legislation is directed to different subjects being, in the case of the Dust Diseases Tribunal Act, determining who was entitled to commence proceedings and in what circumstances and, in the case of the Corporations Act 2001, whether a company should be reinstated and on what terms.

Exclusive jurisdiction of the Tribunal

1. It is necessary to understand something of the Tribunal's jurisdiction and procedures. In 1989, the Tribunal was established by the Dust Diseases Tribunal Act. It was created as a tribunal separate from the common law jurisdictions of both the Supreme and District Courts to ensure dust diseases claims were dealt with "expeditiously … [by] a fast-track mechanism": Amaca v Cremer at [28], quoting the Second Reading Speech, Parliamentary Debates (Hansard), New South Wales Legislative Assembly, 3 May 1989 at 7398.
2. Section 10 of the Dust Diseases Tribunal Act provides: (emphasis added) Jurisdiction and functions of the Tribunal (1) The Tribunal has … exclusive jurisdiction to hear and determine proceedings referred to in sections 11 and 12. … (4) In any proceedings brought under section 11 or transferred under section 12, the Tribunal has the same power to make decisions as the Supreme Court would, but for this section, have had in relation to similar proceedings brought in the Supreme Court.
3. Section 11 provides: 11 Claims for damages for dust diseases etc to be brought under this Act (1) … proceedings for damages in respect of [a] dust-related condition or death may be brought before the Tribunal and may not be brought or entertained before any other court or tribunal. (1A) Proceedings by any tort-feasor liable in respect of damages referred to in subsection (1) to recover contribution from any other tort-feasor liable in respect of that damage may be brought before the Tribunal. Note - This subsection does not prevent those proceedings being brought in another court. … (3) If the cause of action giving rise to proceedings to be brought under subsection (1) or (1A) also gives rise to a claim in respect of some other matter, the claim may be included in those proceedings even though it does not relate to a dust-related condition from which a person is suffering or has suffered. (4) Any matter that is ancillary or related to a matter that is the subject of proceedings to be brought under subsection (1) or (1A) may also be included in those proceedings. …
4. Section 12 provides that, on commencement of the Dust Diseases Tribunal Act, "proceedings of the kind referred to in section 11(1)" brought or pending in the Supreme Court or District Court "must" be transferred to the Tribunal together with any ancillary or related matters. As Gleeson CJ observed in Goliath Portland Cement Co Limited v Bengtell (1994) 33 NSWLR 414 at 417 (followed by Gummow J in BHP Billiton Limited v Schultz (2004) 221 CLR 400; [2004] HCA 61 at [38]): The scheme of the legislation is to create a specialist tribunal to deal with a certain type of claim for damages, to constitute that tribunal a court of record, and to give it the exclusive jurisdiction to hear and determine claims of the special kind. Such proceedings would otherwise be heard in the Supreme Court or the District Court. In that respect, the Tribunal's jurisdictions replaces that formerly exercised by those courts.
5. Thus, proceedings for damages in respect of dust diseases must be brought in the Tribunal whilst related or ancillary claims may be brought in the Tribunal but may also be prosecuted elsewhere. The Tribunal has exclusive jurisdiction to "hear and determine" proceedings for damages. In the absence of a delimiting context, the words "hear and determine" mean that the Court is to hear and determine the matter following its ordinary procedure; "to hear" a matter includes all its necessary antecedents and proper consequences: Green v Penzance (Lord) (1881) 6 AC 657; Bond v Murdoch (1921) 17 Tas LR 84 at 89. "Determining" proceedings connotes the end of the process, that which the Court eventually decides: R v Young (Trevor) [2003] EWCA Crim 3481; [2004] 1 WLR 1587 at 1601. In the life cycle of legal proceedings, "hear and determine" appears to focus on the resolution and conclusion of proceedings brought in the Tribunal rather than, perhaps, procedural matters in respect of an initiating process.

Federal jurisdiction and the Corporations Act 2001

1. Part 9.6A, Division 1 of the Corporations Act concerns the jurisdiction of courts in respect of civil matters arising under the Corporations legislation: section 1337A(1)(a). Division 1 operates to the exclusion of the Jurisdiction of Court (Cross-vesting) Act 1987 (Cth) and section 39B of the Judiciary Act, which confers jurisdiction in respect of specified matters on the Federal Court of Australia: section 1337A(2), Corporations Act. Section 1337A does not limit the operation of other provisions of the Judiciary Act, in particular, section 39(2), which invests federal jurisdiction in the courts of the States with respect to civil matters arising under the Corporations Act: section 1337A(3), (4). Section 1337A(5) provides: 1337A Operation of Division … (5) Nothing in this Division affects any other jurisdiction of any court.
2. The Division thus recognises the concurrent operation of section 79 of the Judiciary Act: Gordon v Tolcher in his capacity as liquidator of Senafield Pty Limited (in liq) (2006) 231 CLR 332; [2006] HCA 62 at [29] per Gleeson CJ, Gummow, Hayne, Callinan and Heydon JJ.
3. By section 1337B, jurisdiction with respect to civil matters arising under the Corporations legislation is conferred on the Federal Court of Australia (section 1337B(1)) and the Supreme Court of each State and Territory (section 1337B(1) and (2)). Section 1337B(5) provides: 1337B Jurisdiction of Federal Court and State and Territory Supreme Courts … (5) The jurisdiction conferred on a Supreme Court by subsection (2) … is not limited by any limits to which any other jurisdiction of that Supreme Court may be subject.
4. Section 1337B(5) has not been the subject of judicial consideration but suggests - as it states - that jurisdiction conferred on this Court with respect to civil matters arising under the Corporations Act is not limited by any limits to which any other jurisdiction of this Court may be subject. This has potential implications for limits imposed on this Court's jurisdiction by sections 10 to 12 of the Dust Diseases Tribunal Act.
5. Federal jurisdiction is thereby conferred on State courts to adjudicate matters arising under the Corporations Act: Gordon v Tolcher in his capacity as liquidator of Senafield Pty Limited (in liq) at [3], [32] per Gleeson CJ, Gummow, Hayne, Callinan and Heydon JJ; Litmus Australia Pty Limited (in liq) v Canty (2006) 57 ACSR 71; [2006] NSWSC 196 at [35] per Barrett J.
6. As Kiefel CJ explained in Rizeq v Western Australia, the investment of "federal jurisdiction" is not a direction as to the law to be applied but simply means that authority is given to a court to hear and determine a matter; federal jurisdiction is to be distinguished from the law that that court applies in the exercise of that jurisdiction: at [7]-[9]. In Anderson v Erik Anderson Radio & TV Pty Limited [1965] HCA 61; (1965) 114 CLR 20, Kitto J observed at 30: [A]ll that is meant by saying that a court has federal jurisdiction in a particular matter is that the court's authority to adjudicate upon the matter is a part of the judicial power of the federation. To confer federal jurisdiction in a class of matters upon a State court is therefore not, if no more be added, to change the law which the court is to enforce in adjudicating upon such matters; it is merely to provide a different basis of authority to enforce the same law.
7. As to the law to be applied when exercising federal jurisdiction, section 79(1) of the Judiciary Act provides: (emphasis added) 79 State or Territory laws to govern where applicable (1) The laws of each State or Territory, including the laws relating to procedure, evidence, and the competency of witnesses, shall, except as otherwise provided by the Constitution or the laws of the Commonwealth, be binding on all Courts exercising federal jurisdiction in that State or Territory in all cases to which they are applicable.
8. The provision does "not purport to do more than pick up State laws with their meaning unchanged": Pedersen v Young [1964] ALR 798; (1964) 110 CLR 162 per Kitto J at 165. In Solomons v District Court of New South Wales (2002) 211 CLR 119; [2002] HCA 47, Gleeson CJ, Gaudron, Gummow, Hayne and Callinan JJ explained at [23]: … First, the section operates only where there is already a court "exercising federal jurisdiction", "exercising" being used in the present continuous tense. Secondly, s79 is addressed to those courts; the laws in question "shall ... be binding" upon them. The section is not, for example, directed to the rights and liabilities of those engaged in non-curial procedures under State laws. Thirdly, the compulsive effect of the laws in question is limited to those "cases to which they are applicable". To that it may be added, fourthly, the binding operation of the State laws is "except as otherwise provided by the Constitution". Thus, section 79 was not addressed to officers of the executive governments of the states but to courts: at [25].
9. As Kiefel CJ explained in Rizeq v Western Australia at [16]-[17]: [16] Section 79 fills the gap created by any absence of Commonwealth laws which provide a court with powers necessary for the hearing and determination of a matter and the presence of State laws of this kind which cannot operate of their own force in federal jurisdiction. It operates by "picking up" State laws and applying them as Commonwealth law. [17] In Commissioner of Stamp Duties (NSW) v Owens (No 2) (1953) 88 CLR 168, the Court said (at 170) that when federal jurisdiction is exercised, the purpose of s 79 is to "adopt the law of the State … as the law by which … the rights of the parties to the lis are to be ascertained and matters of procedure are to be regulated". It may be observed that the Court did not say that the law to be adopted is that which provides for the rights or liabilities of the parties to proceedings. It is important to an understanding of s 79 that, as that provision fills the gap created by a lack of Commonwealth law governing when and how a court exercising federal jurisdiction is to hear and determine a matter, its terms and its purpose are directed to courts.
10. The Chief Justice noted that section 79(1) is not directed to the rights and duties of persons but to courts exercising federal jurisdiction; its purpose is to fill a gap in the laws which will regulate matters coming before those courts and to provide those courts with powers necessary for the hearing or determination of those matters: at [20]. "The examples given in s 79(1) of laws relating to procedure and evidence are, clearly enough, laws necessary for the hearing of a matter" and have been held to apply to laws which provide that contribution may be sought by a tortfeasor and to statutes of limitations: at [21]-[22]. At [22]: …State laws of this kind are also to be understood by reference to the purpose of s 79 … They may be understood as laws which define the circumstances in which a proceeding may, or may not, be brought in a court and which permit a court to determine that matter. Without s 79 they could not apply to courts exercising federal jurisdiction.
11. In Rizeq v Western Australia, the majority (Bell, Gageler, Keane, Nettle and Gordon JJ) noted "s 79 goes no further than is reasonably necessary "to facilitate the particular exercise of federal jurisdiction by the application of a coherent body of law, elements in which may comprise the laws of the State or Territory in which the jurisdiction is being exercised, together with the laws of the Commonwealth, but subject always to the overriding effect of the Constitution itself", citing Northern Territory v GPAO (1999) 196 CLR 553 at 588 [80]. The majority concluded at [103]: Within the limits of State legislative capacity, State laws apply in federal jurisdiction as valid State laws unless and to the extent that they are rendered invalid by reason of inconsistency with Commonwealth laws. What State laws relevantly cannot do within the limits of State legislative capacity is govern the exercise by a court of federal jurisdiction. A State law can determine neither the powers that a court has in the exercise of federal jurisdiction nor how or in what circumstances those powers are to be exercised. A State law cannot in that sense "bind" a court in the exercise of federal jurisdiction, and that is the sense in which that word is used in s 79 of the Judiciary Act. The operation of s 79 is limited to making the text of the State laws of that nature apply as Commonwealth law to bind a court in the exercise of federal jurisdiction.
12. The question is whether - in these proceedings - provisions of the Dust Diseases Tribunal Act are "picked up" by section 79 of the Judiciary Act. Following the steps laid out in Solomons v District Court of New South Wales, the Court presently exercising federal jurisdiction is the Supreme Court of New South Wales. Section 79 is addressed to this Court. What gap exists by any absence of Commonwealth laws, in particular, the Corporations Act which requires this Court to "pick up" state law in order to have the power necessary to hear and determine the applications to reinstate Austral Bronze and John Darlington? Section 601AH appears to provide the Court with all necessary power - if it is considered appropriate to exercise such power - to reinstate the companies and make the ancillary orders sought.
13. Even if there was a gap, it is not clear why the cited provisions of the Dust Diseases Tribunal Act would be "picked up" in these proceedings. As mentioned at [103], the Tribunal has exclusive jurisdiction to hear and determine proceedings for damages, whilst related or ancillary claims may be brought in the Tribunal but may also be prosecuted elsewhere. The application presently before the Court is not a proceeding for damages but for related or ancillary relief. Section 79(1) of the Judiciary Act "picks up" State laws "in all cases to which they are applicable". The cited provisions of the Dust Diseases Tribunal Act are not applicable here, where the exclusive jurisdiction of the Tribunal is not sought to be exercised by this Court.
14. Further, as noted at [107], section 1377B(5) of the Corporations Act provides that the federal jurisdiction conferred on this Court is not limited by any limits to which any other jurisdiction of the Court may be subject. Thus, to the extent that the cited provisions of the Dust Diseases Tribunal Act limit this Court's jurisdiction, at least, for proceedings for damages, it does not limit this Court's jurisdiction with respect to civil matters arising under the Corporations Act.
15. Contrary to the insurer's submission, the Court's federal jurisdiction in this matter does not extend to the Tribunal proceedings. It does, however, extend to the claimants application under the Corporations Act in this Court to reinstate two companies. Having federal jurisdiction, the Court's power extends to the matters described in section 601AH(3) of the Corporations Act 2001.

Concurrent or conflicting State law?

1. The Corporations Act is the product of the referral of legislative power by State Parliaments together with the legislative power of the Commonwealth Parliament: section 3(1), Corporations Act; section 51(xxxvii) of the Constitution. The bespoke architecture of the Corporations Act reflects its multiple sources of law-making power. Whilst, ordinarily, Commonwealth legislation would prevail over State legislation in the event of inconsistency (section 109, the Constitution), Part 1.1A of the Corporations Act, "Interaction between Corporations Legislation and State and Territory laws", provides mechanisms to resolve potential inconsistencies by allowing the concurrent operation of State laws and the Corporations Act where not directly inconsistent; allowing State laws to declare a matter to be an excluded matter, thus narrowing the operation of the Corporations Act to allow the relevant State law to operate; or, in the event of direct inconsistency, for State legislation to prevail.
2. As to the concurrent operation of State laws and the Corporations Act, section 5E of the Corporations Act provides: (emphasis added) 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. (2) Without limiting subsection (1), the Corporations legislation is not intended to exclude or limit the concurrent operation of a law of a State or Territory that: (a) imposes additional obligations or liabilities (whether criminal or civil) on: (i) a director or other officer of a company or other corporation; or (ii) a company or other body … … (4) This section does not apply to the law of the State or Territory if there is a direct inconsistency between the Corporations legislation and that law. …
3. Section 5F of the Corporations Act provides that, where State law declares a matter to be an excluded matter for the purposes of section 5F, then the specified provisions of the Corporations Act will not apply in that State. The Dust Diseases Tribunal Act has availed itself of this opportunity in section 10(6) as follows: 10 Jurisdiction and functions of the Tribunal … (6) The following matters are declared to be excluded matters for the purposes of section 5F of the Corporations Act 2001 of the Commonwealth in relation to the provisions of sections 471B and 500 (2) of that Act: (a) proceedings under section 11 of this Act, (b) proceedings transferred under section 12 of this Act, being proceedings that, but for this subsection, could not be commenced or proceeded with without the leave of the Court referred to in section 471B or 500(2) of the Corporations Act 2001 of the Commonwealth. See also section 10(7), Dust Diseases Tribunal Act. The Dust Diseases Tribunal Act thereby alters the operation of the Corporations Act in respect of Tribunal proceedings such that a person can bring proceedings against, and enforce judgment against, a company in external administration without first obtaining the leave of the Supreme Court or Federal Court of Australia.
4. The Dust Diseases Tribunal Act has not sought to declare proceedings seeking general damages under section 12B of the Dust Diseases Tribunal Act to be excluded matters for the purposes of section 601AH of the Corporations Act, or to restrict the Court's power to make ancillary orders, including to validate proceedings commenced against a deregistered company nunc pro tunc. Where applications to reinstate companies are frequently brought by claimants seeking damages for dust diseases, and given that section 601AH of the Corporations Act and section 12B of the Dust Diseases Tribunal Act were both enacted in 1998, that is, 22 years ago, it is reasonable to conclude that the New South Wales Parliament has not considered it necessary to limit ancillary orders which may be made under section 601AH(3) in the circumstances presently to hand.
5. Section 5G of the Corporations Act contains detailed provisions to avoid direct inconsistency between a State law and the Corporations legislation, including section 5G(11), which provides: 5G Avoiding direct inconsistency arising between the Corporations legislation and State and Territory laws … Other cases (11) A provision of the Corporations legislation does not operate in a State or Territory to the extent necessary to ensure that no inconsistency arises between: (a) the provision of the Corporations legislation; and (b) a provision of a law of the State or Territory that would, but for this subsection, be inconsistent with the provision of the Corporations legislation.
6. Direct inconsistency may arise if the state law would alter, impair or detract from the operation of a law of the Commonwealth Parliament or the Commonwealth and the State laws make a contradictory provision upon the same topic, making it impossible for both laws to be obeyed: R. P. Austin, Austin & Black's Annotations to the Corporations Act (LexisNexis, looseleaf) at [1.5E] and the numerous authorities there cited. The insurer did not suggest that section 12B of the Dust Diseases Tribunal Act was directly inconsistent with section 601AH(3) of the Corporations Act.
7. By reason of section 5E of the Corporations Act, the Dust Diseases Tribunal Act and section 601AH of the Corporations Act operate concurrently. The Dust Diseases Tribunal Act requires that proceedings for damages for dust diseases be brought in that Tribunal, and limits a claimant's ability to sue for general damages to proceedings commenced against the defendant from who general damages is sought before the claimant dies. Where the defendant is a deregistered company, the Corporations Act empowers this Court to reinstate the registration of the company and, in an appropriate case, to validate the commencement of proceedings against that company nunc pro tunc. Each provision is directed to a different subject matter. The fact that making an ancillary order under section 601AH(3) may have ramifications for proceedings in the Tribunal is a relevant consideration to whether the Court should make such an order but does not, of itself, circumscribe the Court's power to make such an order by reason of section 5E of the Corporations Act.

Should orders be made in this case?

1. Finally, the question is whether such orders should be made in this case. Subsection 601AH(2) of the Corporations Act provides: 601AH Reinstatement Reinstatement by ASIC … (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.
2. As Gleeson JA explained in Re European Metal Recyclers Pty Ltd (in liquidation) (deregistered) [2018] NSWSC 946 at [17]-[18], the expression "aggrieved person" is of wide import and should be construed liberally and includes a person who has been damaged in the legal sense. As Brereton J observed in Re Regional Planners Developments Co, a person is aggrieved by the deregistration of a company if they are thereby precluded from suing the company and it may be just for the company's registration to be reinstated for the purpose of enabling the applicant to pursue its remedies: at [11]. Similarly, in Pilarinos v Australian Securities and Investments Commission (2006) 24 ACLC 775; [2006] VSC 301 at [103], Gillard J observed: … in my view, it follows, once the Court comes to the view that the first and third plaintiffs are persons aggrieved by the deregistration, in that there is a valuable right which each wishes to establish in a court or tribunal, that in the circumstances it would be just that the company's registration be reinstated.
3. The insurer accepted that, if I concluded that the Court had both federal jurisdiction and power under section 601AH(3) - construed in light of section 5E - to make an ancillary order in the terms sought, then the claimants were "aggrieved". I have so concluded.
4. The second matter to consider is whether it is "just" that the company's registration be reinstated. His Honour Austin J succinctly explained this requirement in Australian Competition and Consumer Commission v Australian Securities and Investments Commission (2000) 34 ACSR 232; [2000] NSWSC 316 at [27]: The wording of the section is very broad, and the cases confirm that it gives the court a wide discretion. The court takes into account the circumstances in which the company came to be dissolved, whether, if the order were made, good use could be made of it, and whether any person is likely to be prejudiced by the reinstatement: Re Kilkenny Engineering Pty Ltd (in liq) (1976) 1 ACLR 285; Drysdale v Australian Securities Commission (1992) 10 ACLC 1427; Re Steelmaster Pty Ltd (in liq) (1992) 6 ACSR 494.
5. It is not "just" to resurrect a company which will then be devoid of proper governance and it is for this reason that applicants seeking reinstatement of companies often seek the appointment of a liquidator in conjunction with reinstatement: see, for example, CGU v Rockwall Interiors at [9] per Barrett J.
6. The claimants submitted that it was "just" that the companies' registrations be reinstated. The causes of action against Austral Bronze and John Darlington were not known at the time of deregistration, as the employees were diagnosed with mesothelioma years later. The claimants would still need to establish the liability of the companies in the Tribunal in order to warrant the Tribunal awarding damages including general damages. The claimants were not seeking to alter the operation of State legislation nor fabricate jurisdiction; rather, there was a jurisdiction which the claimants wished to take advantage of. The Court should exercise its discretion to make the order having regard to the circumstances in which the company was deregistered, the purpose in seeking reinstatement, whether any person is likely to be prejudiced by reinstatement, and the public interest generally: Deputy Commissioner of Taxation; Re James Hardie Australia Finance Pty Ltd (Deregistered) (2008) 170 FCR 545; [2008] FCA 1181 at [13] per Lindgren J; Re ERB International Pty Ltd (deregistered) (2014) 98 ACSR 124; [2014] NSWSC 200 at [5] per Brereton J.
7. The claimants submitted that this would be in the public interest. Mr Mansfield as liquidator would provide stewardship for the companies: Ramantanis v G & M Excavations (2004) 22 ACLC 22; [2003] NSWSC 1250 at [8]; section 601AH(3)(b), Corporations Act. The undertaking to enforce any judgment against the insurer would protect former directors from any prejudice. The claimants submitted that their objectives in seeking the orders for reinstatement of the deregistered companies, including ancillary orders, were "entirely lawful and reasonable": Bell Group Ltd (in liq) v ASIC at [146]. They wish to pursue a claim for general damages on behalf of the Estate of their deceased partners. The granting of the relief sought by the claimants was consistent with and achieved "the primary purpose of treating a company upon reinstatement as though it had continued in existence from the date of deregistration, that is to say, the 'as you were' position": Bell Group Ltd (in liq) v ASIC at [136]. I accept this submission.
8. The insurer submits that it would not be "just" to reinstate the companies because the applications are a device to seek to outflank the operation of section 2(2)(d) of the Law Reform (Miscellaneous Provisions) Act 1944 and section 12B of the Dust Diseases Tribunal Act and claim general damages. Beyond that, the reinstatements had no utility. The insurer submitted that the reasoning in Amaca v Cremer applied by analogy. It would be inappropriate to use a reinstatement application to "revive - akin to extension of a limitation period - an exposure to liability (for general damages) which had been extinguished by the death of the deceased": Amaca v Cremer at [183] per Brereton J (speaking there of joinder of a defendant).
9. The insurer submitted that it would not be an appropriate exercise of the power conferred by section 601AH of the Corporations Act to reinstate a company as a technical device intended to "retrospectively validate proceedings that have been a nullity since their inception"; relying on Stergiou v Citibank Savings Ltd [2005] ACTCA 15 at [50].
10. Stergiou v Citibank is an interesting case. Mr and Mrs Stergiou had a home loan with Citibank Savings. In 1992, the bank sought to repossess their home. After four years of litigation, the bank succeeded on appeal. The bank assigned the loan to another Citibank entity and was deregistered but, unfortunately, the bank's solicitors were not informed of this fact. Litigation ensued between the bank and Mr and Mrs Stergiou for a further nine years. Mr Stergiou appeared in person "and his face quickly became familiar to counsel who frequented the Friday motions list. He sometimes made apparently wild allegations against bank officers, lawyers and other people. He seemed convinced of the truth of such allegations, despite the absence of any evidence to support them …": at [11].
11. At the hearing of yet another appeal by Mr and Mrs Stergiou - when they had not made any payments to the bank for over 12 years and thus the appeal seemed doomed - Mr Stergiou handed up a company extract revealing that the bank was deregistered. A motion was filed by the non-existent bank and its assignee seeking to reinstate the bank and join its assignee as a plaintiff. No ancillary orders were sought. Crispin P declined to make the orders sought. At [28]-[31]: 28 Second, the application is made by two companies, one that is unregistered, and hence has no standing to make any such application, and the other that is not a party to the proceedings. 29 Third, I am unable to accept that it would be an appropriate exercise of the power conferred by s 601AH of the Corporations Act (2001) (Cth) to reinstate a company, not for the purpose of asserting any rights of or against it, but merely as a technical device intended to retrospectively validate proceedings that have been a nullity since their inception. Even if so validated, the proceedings could ultimately have no effect on the rights or obligations of the reinstated company because it had divested itself of any rights under the mortgage. 30 Fourth, even if the proceedings could be retrospectively validated, the [Stergios] would not only be entitled to succeed in their appeal but to an order for summary judgment. The proceedings were founded upon the service of a s 93 notice invalidly issued by a deregistered company demanding payment of a debt which had not been owed to it. 31 Fifth, I am unable to see anything in s 601AH that suggests that the power thereby conferred was intended to permit the retrospective validation of orders made in proceedings that were a nullity at a time when the orders were made.
12. A number of the procedural matters raised by Crispin P do not apply here, where the application to reinstate the companies is not brought by the companies themselves but by the claimants. The orders for reinstatement are not sought in the Tribunal proceedings, which might be described as a nullity, but in separate proceedings in the Corporations List properly commenced. Nor was the lack of utility in reinstating the bank - which had no standing to continue the doomed proceedings - necessarily present here. Like any case, Crispin P's conclusion is explicable by reference to the facts before him, in that case being an infamous piece of litigation coming to an unexpected but welcome end. It was not a statement of principle applicable in all cases. The question remains whether it is "just" in the circumstances of a particular case to reinstate a company on the terms sought.
13. By reason of their deregistration, Austral Bronze and John Darlington could not be validly named in the statements of claim. This was the inevitable incident of their deregistration, and something which this Court can cure. Validating the commencement of the Tribunal proceedings nunc pro tunc would enable claims to be brought against the companies, akin to ancillary orders suspending the limitation period in respect of claims against a company: Pagnon v Workcover Queensland; Re Regional Planners Developments Co. The prejudice which may be caused to the reinstated companies on account of their inability to do something whilst deregistered is not apparent where the claimants have given an undertaking not to enforce any judgment obtained in the Tribunal against the companies but only against the insurer. Such an order does not require the Court to determine contentious matters between the claimants and the companies; such matters remain to be determined by the Tribunal. There is no suggestion that the claimants' claims in the Tribunal are unmeritorious nor futile. For the reasons advanced by the claimants, I consider it "just" that the companies' registrations be reinstated with the ancillary orders sought.
14. As to the insurer's claim for declaratory relief, before making reinstatement orders and ancillary orders, the Tribunal proceedings were not "commenced … and pending before the Tribunal" within the meaning of section 12B(2) of the Dust Diseases Tribunal Act when Mr Fletcher and Mr Viskne died. However, the effect of the ancillary orders is that the Tribunal Proceedings were "commenced … and pending before the Tribunal" within the meaning of section 12B(2) when they died. I otherwise decline to make the declarations sought.

Orders

1. For these reasons, I make the following orders: In proceedings 2020/86229: 1. Order pursuant to section 601AH(2) of the Corporations Act 2001 (Cth), that the Australian Securities and Investments Commission forthwith reinstate the registration of Austral Bronze Co Pty Ltd ACN 000 010 211. 2. Order that immediately upon the reinstatement of its registration, Austral Bronze Co Pty Ltd be wound up and David Ian Mansfield of Deloitte Financial Advisory Pty Ltd, Eclipse Tower, 60 Station Street, Parramatta NSW 2150, appointed liquidator of Austral Bronze Co Pty Ltd. 3. Order, pursuant to section 601AH(3)(c) and (d) of the Corporations Act 2001 (Cth) that Dust Diseases Tribunal proceedings 462 of 2019 were validly commenced and pending as against Austral Bronze Co Pty Ltd as at the Late Barry Fletcher's death on 28 December 2019. 4. Order that no step to enforce any judgment or verdict obtained in those proceedings 462 of 2019 shall be taken by the plaintiff as against Austral Bronze Co Pty Ltd otherwise than by resort to proceeds of insurance, without the further leave of the Court. 5. Costs of this application and these proceedings be costs in proceeding number 462 of 2019 in the Dust Diseases Tribunal of New South Wales. In proceedings 2020/86263: (1) Order pursuant to section 601AH(2) of the Corporations Act 2001 (Cth), that the Australian Securities and Investments Commission forthwith reinstate the registration of John Darlington Pty Ltd ACN 001 114 227. (2) Order that immediately upon the reinstatement of its registration, John Darlington Pty Ltd be wound up and David Ian Mansfield of Deloitte Financial Advisory Pty Ltd, Eclipse Tower, 60 Station Street, Parramatta NSW 2150, appointed liquidator of John Darlington Pty Ltd. (3) Order, pursuant to section 601AH(3)(c) and (d) of the Corporations Act 2001 (Cth) that Dust Diseases Tribunal proceedings 257 of 2019 were validly commenced and pending as against John Darlington Pty Ltd as at the Late John Viksne's death on 18 July 2019. (4) Order that no step to enforce any judgment or verdict obtained in those proceedings 257 of 2019 shall be taken by the plaintiff as against John Darlington Pty Ltd otherwise than by resort to proceeds of insurance, without the further leave of the Court. (5) Costs of this application and these proceedings be costs in proceeding number 257 of 2019 in the Dust Diseases Tribunal of New South Wales. In proceedings 2020/117824: (1) Dismiss the proceedings. (2) Order the plaintiff to pay the defendants' costs of these proceedings.

Amendments 28 January 2021 - Correction to appearances on coversheet 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: 28 January 2021