LAY v EMPLOYERS MUTUAL LTD

Acts Interpretation Act 1901 (Cth) - s.8 Commonwealth of Australia Constitution Act - s.77(iii) Corporations Act 2001 (Cth) - s.601AH Dust Diseases Tribunal Act 1989 - ss.3(1), 32(1) Interpretation Act 1984 (WA) Interpretation Act 1987 (NSW) - s.30(1)(c) Judiciary Act 1903 (Cth) - s.78B Law Reform (Miscellaneous Provisions) Act 1946 - s.6 Limitation Act (1939) (UK) - s.26 LEGISLATION CITED: Miscellaneous Acts (Workers Compensation) Amendment Act 1987 Supreme Court Act 1970 - ss.19(1), 48(1)(a), 48(2)(f), 75A, 81 Supreme Court Rules 1970 - Pt 40 r3(1) & (3), Pt 51 r6(1), Pt 51 r5(1), Pt 51 r2(1) Workers Compensation Act 1926 - ss. 18(6A) & (6B) Workers Compensation Act 1987 - ss.281, 151AB Workers Compensation Legislation Amendment (Dust Diseases and Other Matters) Act 1998 Workers Compensation Legislation Amendment Act 2004 [No.56] - Sch.1[4] & [6], Sch.6 Workers Compensation Regulations 1926 Workers' Compensation (Dust Diseases) Amendment Act 1967

Allesch v Maunz (2000) 203 CLR 172 at 180 Amaca Pty Ltd v. Karakasch [2004] NSWCA 79, 1 DDCR 367 Attorney General v Vernazza [1960] AC 965 Australian Building Construction Employees And Builders Labourers Federation v The Commonwealth of Australia (1986) 161 CLR 88 Azzopardi v. Tasman UEB Industries Ltd (1985) 4 NSWLR 139 Baker v The Queen (2004) HCA 45, 78 ALJR 1483 Building Construction Employees and Builders' Labourers Federal v Minister for Industrial Relations (1986) 7 NSWLR 372 Calder v Bull (1799) 3 Dallas 386 Cartledge v E Jopling & Sons Ltd [1963] AC 758 Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission & Ors (2000) 203 CLR 194 Continental Liqueurs Pty Ltd v G.F. Heublein & Bro. Inc. (1960) 103 CLR 422 Director of Public Works v Ho Po Sang [1961] AC 901 Dosett v TKJ Nominees Pty Ltd (2003) 218 CLR 1 Esber v Commonwealth (1992) 174 CLR 430 Fardon v Attorney General (Queensland) 2004 HCA 46: 78 ALJR 1519 CASES CITED: Free Lanka Insurance Co. Ltd v Ranasinghe [1964] AC 541 at 552 G.F. Heublein & Bro. Incorporated v Continental Liqueurs Pty Ltd (1962) 109 CLR 153 H A Bachrach Pty Ltd v The State of Queensland (1998) 195 CLR 547 Kable v Director of Public Prosecution (NSW) (1997) 189 CLR 51 Lay v Employer Mutual Limited (2004) 1 DDCR 414 Liyanage v The Queen [1967] AC 259 Morris v Public Transport Commission of NSW (unreported 28 May 1984) NSW Aboriginal Land Council v Minister Administering the Crown Lands Act [The Winbar Claim No. 3] (1988) 14 NSWLR 685 Orica Ltd v CGU Insurance Ltd [2003] NSWCA 331, 59 NSWLR 14 Plaut v Spendthrift Farm Inc. (1995) 514 US 211 Powercoal Pty Ltd & Anor v Industrial Relations Commission of New South Wales and Morrison (2005) NSWCA 345 R v Humby; ex parte Rooney (1973) 129 CLR 231 Scarcella v Lettice (2000) 51 NSWLR 302 State Mines Control Authority v Government Insurance Office of New South Wales (1964) 65 SR (NSW) 258 State Rail Authority (NSW) v FT Eastment & Sons Pty Ltd & Anor re Lecopoulos (2004) 1DDCR 470 Victorian Stevedoring and General Contracting Co. Pty Ltd & Anor v Dignan (1931) 46 CLR 73

Audrey Lay - Appellant PARTIES: Employers Mutual Limited - Respondent

Appellant - M. Joseph SC & M. Cahill COUNSEL: Respondent - G. Little SC & D. Morgan

Appellant - Taylor & Scott SOLICITORS: Respondent - Leigh Virtue & Associates

LOWER COURT JURISDICTION: Dust Diseases Tribunal of NSW

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

40286/2004 SANTOW JA McCOLL JA BRYSON JA

19 December 2005 AUDREY LAY v EMPLOYERS MUTUAL LIMITED

Judgment 1 SANTOW JA: I agree with Bryson JA. 2 McCOLL JA: I have had the privilege of reading Bryson JA's reasons in draft. I agree with his Honour's reasons and the orders he proposes. 3 BRYSON JA: The appellant appeals against the decision of His Honour Judge Duck in the Dust Diseases Tribunal of New South Wales in proceedings commenced in December 2002 by the appellant's late husband Albert Lay and continued by her as his legal personal representative after his death. Mr Lay was diagnosed with lung cancer in May 2002 and died in February 2004. Mr Lay claimed that York & Kerr Pty Ltd, which employed him as a truck driver from about 1960 until November 1967, was liable to him for damages for negligence arising out of his work loading bags containing asbestos onto York & Kerr's trucks from various wharves in and around the Port of Sydney and delivering them to premises at Grand Avenue Camellia where James Hardie & Co Pty Ltd then conducted business. Mr Lay alleged that he was exposed to asbestos dust and fibre and inhaled them in the course of his employment, and that in consequence he suffered asbestos-related pleural disease and developed bilateral carcinoma of the lungs. From the nature of that disease it can be taken that it was not known and it was not reasonably ascertainable that Mr Lay suffered from the disease, or would ever suffer from it, until a short time before the disease was diagnosed. 4 York & Kerr Pty Ltd went into liquidation on 5 August 1975 and was later deregistered and went out of existence. There has not or there has not yet been a reinstatement of the registration of York & Kerr under s.601AH of the Corporations Act 2001. I find this surprising, as its continued corporate existence at the time when Mr Lay became ill (which would be re-established by reinstatement) may be important for overall determination of rights derived through York & Kerr. When the proceedings were commenced York & Kerr was named as the first defendant and Amaca Pty Ltd, the present name of the company formerly named James Hardie & Co Pty Ltd, was the second defendant. Although at first Amaca was named as second respondent in the Notice of Appeal, reference to Amaca was omitted when the Notice of Appeal was amended. Employers Mutual Ltd became and is the sole respondent in the appeal. 5 The joinder of York & Kerr as first defendant in the Tribunal was ineffectual, and Employers Mutual Limited, which had been the insurer of York & Kerr under the Workers Compensation Act 1926 throughout the period of his employment and (relevantly) when his employment ended, was substituted as the first defendant. By amendment new para 1A of the Statement of Claim alleged that a contract of insurance indemnified York & Kerr against liability for damages; the contract of insurance is the policy which insured York & Kerr against liability under the Workers Compensation Act 1926. Insurance against liability to pay Workers Compensation was compulsory for many years and from 1953 onwards it was compulsory that such insurance should extend to liability for damages at Common Law. Paragraph 1A concluded "The plaintiff seeks relief pursuant to s.6 generally and s.6(4) specifically of the Law Reform (Miscellaneous Provisions) Act 1946 that the First Defendant indemnify in respect of all liability to pay damages that may be attributed to 'York & Kerr' in respect of any damages accruing to the Plaintiff as a result of the negligent acts of York & Kerr." 6 For reasons which will appear later it is important to establish whether this appeal was commenced within the time allowed for appeals from the Dust Diseases Tribunal. On 15 and 16 March 2004 Judge Duck heard a motion by Employers Mutual for an order dismissing it from the proceedings; in effect, for summary disposal of the claim against it, on the ground that the policy of insurance on foot when Mr Lay was last exposed to asbestos fibre did not respond to Mr Lay's claim. Amaca Pty Ltd had no interest in and took no part in this motion. Judge Duck gave judgment on 16 March 2004, reported (2004) 1 Dust Diseases and Compensation Reports 414. The extempore judgment concluded (p 425 [33]) "I find that the policy does not respond to the circumstances disclosed in the pleadings in the case. I invite learned counsel to prepare short minutes of order to give effect to that finding." Short Minutes of Order were adopted and on 2 April 2004 became an order of the Dust Diseases Tribunal in these terms: The Court orders:

1. That verdict and judgment be entered in favour of the First Defendant. 2. That the Plaintiff pay the First Defendants costs of these proceedings.

This document (at Red 24) bears the impression of the Court's seal and a record that it was filed on 2 April 2004. 7 Appeals from the Dust Diseases Tribunal to the Supreme Court are assigned to the Court of Appeal: see s.48(1)(a)(iia) and 48(2)(f) of the Supreme Court Act 1970. The right of appeal was conferred by s.32(1) of the Dust Diseases Tribunal Act 1989 in these terms: 32 Appeal to Supreme Court (1) A party who is dissatisfied with a decision of the Tribunal in point of law or on a question as to the admission or rejection of evidence may appeal to the Supreme Court.

This is a right of appeal against a decision of the Tribunal. Section 3(1) of the Dust Diseases Tribunal Act gives this definition: decision includes judgment, order and ruling. 8 Part 51 r 6(1) of the Supreme Court Rules 1970 states how and when an appeal is instituted: [51.6] Institution and discontinuance of appeal (1) An appeal to the Court of Appeal shall be instituted by filing in the registry of the Court of Appeal and serving on each necessary party: (a) where the appeal is instituted pursuant to leave to appeal - a notice of appeal with appointment in Form 60; or (b) otherwise: (i) a notice of appeal without appointment in Form 60A; or (ii) a notice of appeal with appointment in Form 60; 9 The time for appeal is established by Pt.51 r.5(1) of the Rules of Court in these terms:- [51.5] Time for appeal (1) Subject to subrule (2), an appeal must be instituted within 28 days after the material date or within such extended time as the court below or the Court of Appeal may fix.

The definition of "material date" in Pt.51 r.2(1) is:- material date , in relation to an appeal or an application for leave to appeal, means: (a) in the case of a judgment given in proceedings in the Court, the date on which the judgment is given; (b) in the case of any other judgment in proceedings in the Court, the date of entry; (c) in the case of an order in proceedings in the Court, the date on which the order is made; (d) in the case of a verdict in proceedings in the Court, the date on which the verdict is given; and (e) in the case of any other decision, whether in proceedings in the Court or not, the date on which the decision is pronounced or given;

The references to " the Court" are references to the Supreme Court; see s.19(1) of the Supreme Court Act. The material date for an appeal from the Dust Diseases Tribunal is established by applying subpara(e) of the definition. 10 The Supreme Court Rules 1970 applied to proceedings in the Tribunal in 2004 and Pt 40 r 3(1) and (3) provided: [40.3] Date of effect (1) A judgment shall take effect - (a) where it is given in Court - as of the date on which it is given; (b) otherwise - as of the date of entry. … (3) Subject to subrule (1) an order shall take effect as of the date on which it is made.

This rule establishes when the order of 2 April 2004 took effect: but that is not what para (e) of the definition of "material date" turns on: the question is, when was the decision pronounced or given? 11 Counsel for Employers Mutual contended that the material date was 16 March 2004, when Judge Duck delivered his extempore judgment. Counsel for the appellant contended that the material date was 2 April 2004, when the Short Minutes of Order were adopted and the Order was entered. If the material date was 16 March 2004 time for appeal ran for 28 days from and including 17 March 2004 until and including 13 April, and the Notice of Appeal without Appointment filed on 14 April 2004 was one day late. The Notice of Appeal without Appointment said in terms that the proceedings appealed from were decided on 16 March 2004; however the Notice of Appeal with Appointment which was filed on 13 July 2004 opened with the words: "The proceedings appealed from were heard on 15 March 2003 and decided on 2 April, 2004." 12 The application which Judge Duck heard was a motion by Employers Mutual seeking an order dismissing it from the proceedings. The determination which Judge Duck made on 16 March 2004 appears from para.33 of his reasons which I set out earlier: His Honour decided that the policy did not respond to the circumstances disclosed in the pleadings in the case. However on that day the Trial Judge did not make any order which gave effect to that finding about the policy. The Trial Judge invited counsel to prepare Short Minutes of an order to give effect to that finding. The words used by His Honour in extending this invitation show that it was not His Honour's intention then and there to give effect to the finding, but that it was His Honour's intention to take the course which was later taken, to see Short Minutes of an Order and to decide whether to adopt them. Until that happened and Judge Duck had seen the Short Minutes and decided what it was appropriate to include in the order, the application remained before him and had not been disposed of. Upon this material I find that within the meaning of para (e) of the definition of "material date", the date on which Judge Duck's decision was pronounced or given was 2 April 2004. As a consequence the appeal was instituted within the time prescribed by Pt.51 r.5(1). Alternatively I would hold that the order of 2 April 2004 was an appealable decision even if what happened on 16 March 2004 was also an appealable decision. 13 It was assumed for the purposes of argument before Judge Duck that the matters pleaded in the Amended Statement of Claim by the appellant may be accepted as fact; and His Honour stated some further facts which assisted understanding and were agreed for the purposes of the motion, although his Honour noted that they were not admitted by both defendants. It was not disputed that a policy under the Workers Compensation Act 1926 issued by Employers Mutual held York & Kerr indemnified against claims by workers at the time when Mr Lay's employment ceased in November 1967; the policy was issued under the Workers Compensation Act 1926 and was in the form of the Employer's Indemnity Policy in Division 1 Appendix 1 of the Workers Compensation Regulations 1926. That form of policy contained recitals including one to the effect that:

… by virtue of the Workers' Compensation Act 1926 as amended … it is provided that every employer shall obtain [a policy] from an Insurer licensed … a policy of insurance or indemnity for the full amount of his liability under the Act to all workers employed by him and for an amount … in respect of his liability independently of the Act for any injury to any such worker …

The words of insurance are to the effect that if between stated days and times: … the Employer shall be liable to pay compensation under the Act to or in respect of any person who is … a worker of such Employer or to pay any other amount … in respect of his liability independently of the Act for any injury to any such person, THEN the Insurer will indemnify the Employer against all such sums for which the Employer shall be so liable; …

The provisions of the policy before the conditions conclude: Provided lastly that this Policy shall be subject to the Act and the Rules and Regulations made thereunder, all of which shall be deemed to be incorporated in and form part of this Policy. 14 The decision of the Supreme Court in Banco in State Mines Control Authority v Government Insurance Office of New South Wales (1964) 65 SR (NSW) 258 related to an employer's entitlement under the policy to indemnity against a worker's entitlement to compensation (and not to common law damages). The worker was employed as a coal miner during 1932 and again in 1944; he then left the industry. Due to inhalation of dust he developed pneumoconiosis and emphysema, which according to the legislation were treated as an injury which occurred on 29 October 1957. It was held that according to the terms of the policy two conditions must exist if the employer were to be entitled to indemnity: the liability to pay compensation must arise within the period stipulated in the policy, and at the date the liability arose the person to whom compensation was payable must be a worker or a deemed worker of the insured employer. This decision was followed by amending legislation in 1964 which inserted s.18(6A) dealing with compensation, and by the Workers' Compensation (Dust Diseases) Amendment Act 1967 which inserted subs.(6B) dealing with common law damages. Subsection 18 (6B) followed generally the method by which section 18 (6A) dealt with the deficiency in insurance against compensation liability exposed by State Mines Control Authority. Subsection 18(6B) continued in effect, with a minor amendment not presently important, until the Workers Compensation Act 1926 was repealed by s.281 of the Workers Compensation Act 1987. Legislation related to the repeal did not deal with insurance problems of diseases contracted by gradual processes which were proceeding but had not manifested themselves by the time of the repeal. 15 Subsection 18 (6B) was in the following form (after the irrelevant amendment which I mentioned earlier): (6B) For the purposes of any policy of insurance or indemnity obtained by an employer after the commencement of Part III of the Workers' Compensation (Dust Diseases) Amendment Act, 1967, or obtained by him before and being maintained in force after such commencement, the liability of the employer, independently of this Act, for an injury, being an occupational disease, to a worker shall be deemed to have arisen when the worker was last employed by the employer in an employment to the nature of which the disease was due. In this paragraph "occupational disease" means a disease which is of such a nature as to be contracted by a gradual process, and includes the condition known as boilermaker's deafness, or any deafness of the like origin, and total or partial loss of sight which is of gradual onset. 16 Mr Lay's illness was an "occupational disease" within the definition in s.18 (6B), as it was contacted by a gradual process commencing with inhalation of asbestos dust during his employment which ended in November 1967; yet it did not manifest itself as an observable illness which could be diagnosed until 2002. When the repeal took effect in 1987 it was not known and could not be known that many years later Mr. Lay would become ill and would claim that he was entitled to damages as a result of negligence of his past employer. 17 Subsection 18(6B) did not alter the time of accrual of a cause of action for the purposes of determining a worker's entitlement to recover damages from his employer. For the purposes of the employer's entitlement to indemnity under the policy, s.18(6B) created a deemed state of facts, different to the real state of facts, about the time at which the employer became liable. The effects of amendments and the 1987 repeal on indemnity limits and other entitlements under policies were considered in Orica Ltd v CGU Insurance Ltd [2003] NSWCA 331, 59 NSWLR 14 in which there were differences of view on several important aspects. Section 18(6B) was not relevant to and was not considered in Orica. It seems and I tentatively assume for the purpose of these reasons that s.18(6B) and the deemed state of facts which it creates operated, at least while s.18(6B) was unrepealed, derivatively for the purposes of s.6 of the Law Reform (Miscellaneous Provisions) Act 1946 on the contract of insurance which s.6 brings under consideration. The assumption is tentative because it may be affected by the amendment of s.6(8) made by the Miscellaneous Acts (Workers Compensation) Amendment Act 1987, and by the introduction of new s.6(9) by the Workers Compensation Legislation Amendment (Dust Diseases and Other Matters) Act 1998. The issues on the appeal did not require this assumption to be closely examined. There was no address in this appeal to the effect of changes in the indemnity limit in the policy from time to time. 18 There is no altogether concrete rule by which to ascertain when a cause of action accrues where negligence causes a disease by a gradual process. In Mr Lay's case the gradual process began at some time during his employment up to November 1967 with the inhalation of asbestos fibres. However it is in the nature of asbestos-related diseases that the process may take decades to develop to a point where the injured person is conscious of any illness or disability, or where his illness is ascertainable by medical science. There was an injury within the meaning of Workers Compensation legislation when the process began with inhalation of fibres, but that is not the view that has been taken for Common Law remedies. It would also be unjust to adopt too early an accrual date so as to entitle the person to sue for damages based on susceptibility to adverse outcomes before any adverse outcome had emerged and before it could be known whether one ever would. The matter was explained in this way in Cartledge v E Jopling & Sons Ltd [1963] AC 758 at 771-772 in an obiter dictum by Lord Reid: It is now too late for the courts to question or modify the rules that a cause of action accrues as soon as a wrongful act has caused personal injury beyond what can be regarded as negligible, even when that injury is unknown to and cannot be discovered by the sufferer; and that further injury arising from the same act at a later date does not give rise to a further cause of action. It appears to me to be unreasonable and unjustifiable in principle that a cause of action should be held to accrue before it is possible to discover any injury and therefore before it is possible to raise any action. If this were a matter governed by the common law I would hold that a cause of action ought not to be held to accrue until either the injured person has discovered the injury or it would be possible for him to discover it if he took such steps as were reasonable in the circumstances. The common law ought never to produce a wholly unreasonable result, nor ought existing authorities to be read so literally as to produce such a result in circumstances never contemplated when they were decided. 19 Cartledge v E Jopling & Sons Ltd was not decided on the common law to which Lord Reid's dictum relates, but on the construction of s.26 of the Limitation Act (1939) (UK) which was open to the criticism which Lord Reid gave it for fixing the time of accrual too early. This criticism was also voiced in other speeches in the House of Lords in that case. A cause of action in negligence is complete when there is actual loss or damage; see Scarcella v Lettice (2000) 51 NSWLR 302 at 306 [13] and [14] (Handley JA). See too Orica Ltd v CGU Insurance Ltd (2003) 59 NSWLR 14 at 22 [25] and [32] (Spigelman CJ) and 28-29 [71] to [75] (Mason P). In relation to lung cancer it hardly seems possible that a cause of action would accrue as the disease became measurable or ascertainable without the sufferer then being aware of disease. 20 Whether the employer had an accrued liability for common law damages against which the employer would need indemnity under the policy, and when that occurred are determined according to the common law and not according to legislative provisions establishing when an injury occurs within the meaning of the Workers Compensation Act 1926. If there is a liability for common law damages s.18(6B) attributes the time when that liability is deemed to have arisen to an earlier time for the purposes stated in s.18(6B), that is the purposes of the policy of insurance referred to. This process of attribution has no effect on the process of establishing whether the employer has a liability for common law damages. 21 As York & Kerr went into liquidation about 30 years ago it is obvious that it is only if a remedy can be obtained against the insurer that there can be any effectual recovery of damages for Mr Lay's injury and death. The state of the law and the operation of the compulsory policy established by State Mines Control Authority v Government Insurance Office of New South Wales and Orica prevent such recovery unless, notwithstanding the repeal of the Workers Compensation Act 1926, a remedy by reference to s.18(6B) of that Act is available. 22 There were two principal grounds upon which Judge Duck was asked to find that the provisions of s.18(6B) have some relevant operation notwithstanding repeal. One submission (at 1 DDCR 419 [15] to 420 [17]) was to the effect that the provisions of s.18(6B) were incorporated into the policy by the Proviso. Judge Duck rejected this submission on grounds to the effect that s.18(6B) makes no addition to the terms of the statutory policy, and it is the policy which gives rise to the employer's right of indemnity. Judge Duck's opinion was reinforced by a reference to para.[11] in the judgment of Spigelman CJ in Orica Ltd v. CGU Insurance Limited (2003) 59 NSWLR 14 at 19-20. While for reasons to which I will come it does not appear to me to be necessary to act on this conclusion, it is my view that Judge Duck's ruling was correct for the reasons given: s.18(6B) does not alter the terms of the policy but, in the stated circumstances, requires some facts (which were not the true facts) to be deemed to have existed; if those facts are deemed to have existed, the consequence is that an injury is, for the purpose of rights under the policy, treated as having occurred earlier than it occurred in fact. This legislated treatment of the facts did nothing to the terms of the policy, and when s.18(6B) was repealed, there was no longer any requirement that the facts be treated as that subsection required. 23 Before Judge Duck it was also contended that s.18(6B) created a contingent right of the employer to be indemnified under the policy in the event that he subsequently received a claim against him; and that notwithstanding repeal that right continued under the operation of Interpretation Act 1987 (NSW) s.30 particularly subs.(1)(c) which provides:- 30(1) The amendment or repeal of an Act or statutory rule does not:

(c) affect any right, privilege, obligation or liability acquired, accrued or incurred under the Act or statutory rule, or …

As this argument was presented again in the Court of Appeal it was developed to the effect that at the time of repeal in 1987 the worker Mr Lay had a contingent right to a charge over the policy created by s.6 of the Law Reform (Miscellaneous Provisions) Act 1946 by a chain of facts and entitlements traced through a contingent right to recover damages from York & Kerr and York & Kerr's entitlements under the policy. It was said that Mr Lay's contingent right was saved by s.30 of the Interpretation Act notwithstanding the repeal. Judge Duck did not uphold this argument, or the part of it which appears to have been put to him; his Honour said (see [23]) to the effect that he did not know what right was said to have accrued prior to the repeal of s.18(6B). His Honour also considered and rejected an argument based on the then form of s.151(AB) of the Workers Compensation Act 1987; this argument was not put to the Court of Appeal again. 24 A closely similar but not identical issue came before Judge Curtis in State Rail Authority (NSW) v FT Eastment & Sons Pty Ltd & Anor re Lecopoulos (2004) 1DDCR 470, decided on 7 May 2004. In that case the worker was employed by one employer at times between 1962 and 1975 and by the second employer between 1975 and 1989, and in 2001 contracted mesothelioma as a result of the inhalation of asbestos fibres in the course of those employments. It will be seen that the second employment continued after the repeal in 1987 and s.18(6B) could not operate on the second employer's policy to produce a deemed date prior to repeal when the liability of the second employer arose: and the ruling now significant relates to the first employer. Judge Curtis decided a question arising between the employers about apportionment of liability and access to insurance moneys on the basis that s.18(6B) continued to apply for the purpose of remedies under insurance notwithstanding its repeal. Judge Curtis declined to follow the decision of Judge Duck in Lay v Employers Mutual Limited and said (p476) [27]: I find that the liability of [the insurer] preserved by s.30(1)(c) of the Interpretation Act 1987 consisted of the liability pursuant to the terms of the policy and the statutory law prior to the repeal of the Workers' Compensation Act 1926 to indemnify [the first employer] upon the contingency that [the worker] contracted mesothelioma as a result of breaches of duty by [the first employer] during the period of cover by [the insurer]. 25 Judge Curtis referred to the judgment of Mason CJ, Deane, Toohey and Gaudron JJ in Esber v Commonwealth (1992) 174 CLR 430 at 440, where their Honours dealt with s.8 of the Acts Interpretation Act 1901 (Cth) which corresponds closely with s.30 of the Interpretation Act, and said: "Section 8 … protects anything that may truly be described as a right, 'although that right might fairly be called inchoate or contingent'." Judge Curtis also relied on a number of considerations relating specifically to the construction and application of Workers Compensation Legislation. 26 I incline to the view that Judge Duck reached the correct conclusion on the then state of the law about the effect of the repeal and the operation of the policy with s.18(6B). 27 The rights preserved by s.30(1)(c), and by the general rule of the common law which this provision reinforces (see Continental Liqueurs Pty Ltd v G.F. Heublein & Bro. Inc. (1960) 103 CLR 422 at 427 (Kitto J.) are not narrowly confined. Observations in Esber v The Commonwealth (1992) 174 CLR 430 and authorities there cited show that a right may nonetheless be a right for this purpose because it is conditional (NSW Aboriginal Land Council v Minister Administering the Crown Lands Act [The Winbar Claim No. 3] (1988) 14 NSWLR 685 at 694) and it may consist of a right to have a decision reconsidered and determined in an application to review that decision which had been lodged before the repeal (Esber's case itself). In Esber their Honours took the phrase "although that right may fairly be called inchoate or conditional" from the opinion of the Privy Council in Free Lanka Insurance Co. Ltd v Ranasinghe [1964] AC 541 at 552. Their Lordships there said: The distinction between what is and what is not 'a right' must often be one of great fineness … the respondent had, as against the appellants, something more than a mere hope or expectation … he had in truth a right … although that right might fairly be called inchoate or contingent. In Director of Public Works v Ho Po Sang ([1961] AC 901) the Board was concerned with an analogous problem … Their Lordships are well content to accept and adopt the language used … in that case (at 992): It may be … that … a right has been given but that, in respect to it some investigation or legal proceeding is necessary. The right is then unaffected or preserved. It will be preserved even if a process of quantification is necessary. But there is a manifest distinction between an investigation in respect of a right and an investigation which is to decide whether some right should or should not be given. 28 Free Lanka is itself a striking example of the preservation of a right although some circumstances necessary for its enforcement had not occurred at the time of repeal. Continental Liqueurs and Director of Public Works v Ho Po Sang are also striking and similar instances relating to applications pending but undetermined at the time of repeal; with different outcomes. The decision of Kitto J was reversed on appeal, on the ground of the operation of special transitional provisions: G.F. Heublein & Bro. Incorporated v Continental Liqueurs Pty Ltd (1962) 109 CLR 153. See too Dossett v TKJ Nominees Pty Ltd (2003) 218 CLR 1, where transitional provisions in the Interpretation Act 1984 (WA) took a somewhat different form to those in force in New South Wales. 29 Mr Lay's position in 1987 could be described in terms of a right to a charge over the proceeds of York & Kerr's policy contingent on the happening of a number of events or fulfilment of conditions: contingent on the gradual onset of his disease reaching the point where he became ill and had a cause of action against York & Kerr, and then by reference to s.18 (6B) where York & Kerr and derivatively Mr Lay became entitled to recourse to the policy on the deemed basis that the liability arose in November 1967. The disease may never have reached the stage where Mr Lay became ill: his life may have been overtaken by some other event. In my opinion the chain of possibilities leading to fulfilment of the conditions is so attenuated that he should not be regarded as having had a right within the meaning of s.30(1)(c) in 1987. 30 Whether or not it is just that the insurer should hold York & Kerr indemnified after the insurer received premiums while s.18(6B) was in force and was part of the legislation incorporated by the Proviso, and whether there would be an unintended windfall if the insurer is not liable, which are questions considered by Judge Curtis, are questions which depend on the meaning and terms of the policy taken with the legislation. 31 Disposition of this appeal does not turn on the opinion of the Court of Appeal on the effect of the repeal of s.18(6B) because of a further legislative change which took effect after the decisions of Judge Duck and Judge Curtis. The Workers Compensation Legislation Amendment Act 2004 [No.56], by Sch.1[4] and [6] which, under s.2(2), commenced on 3 June 2004, amended s.151AB, which Judge Duck had considered, by omitting subss. (1) and (2) and substituting new subsections. The amending legislation also inserted new s.151AAA, which does not apply to the facts as alleged in the Statement of Claim. I set out part of substituted s.151AB(1): (1) If an employer is liable independently of this Act for damages for an occupational disease contracted by a worker, the following provisions have effect for the purposes of any policy of insurance obtained by the employer: (a) the liability is taken to have arisen when the worker was last employed by the employer in employment to the nature of which the disease was due, subject to paragraph (b),

I omit provisions which deal with employment before and after the commencement of the Workers Compensation Act 1987 and with entitlements where two insurers are liable under policies of insurance to indemnify the employer or pay damages to the worker; there were such circumstances in Lecopoulos Case , but not in the present case. 32 Schedule 6 of the Workers Compensation Legislation Amendment Act 2004 contained savings, transitional and other provisions in Pt.18H including the following: Provisions consequent on enactment of 2004 amending Act:- 4. Pre-1995 insurance cover and occupational diseases (1) The amendments made by the 2004 amending Act that insert section 151AAA and amend section 151AB are for the removal of doubt and accordingly extend to liabilities arising before the commencement of the amendments, but not so as to affect any decision of a court, or any compromise or settlement, made before the commencement of the amendments, subject to subclause (2). (2) For the purposes of the making and determination of any appeal (including providing grounds for appeal) against a decision of the court made before the commencement of the amendments referred to in subclause (1), being an appeal pending on or made after that commencement, those amendments extend to liabilities that are the subject of any such decision. 33 I earlier stated my opinion that the appeal was commenced in time. I turn to address the situation if it was not. During the period up to and including 3 June 2004 no application was made by either party for any order dealing with the time of filing Notice of Appeal. The appellant obtained leave of the Registrar on 25 November 2004 to file an Amended Notice of Appeal, and the Amended Notice of Appeal filed on 9 December 2004 claimed among other orders, leave to appeal out of time, if leave were necessary, which the appellant did not concede. An affidavit in support of that application was filed. When the appeal came on for hearing the appellant's Senior Counsel while contending that the Notice of Appeal was filed in time applied alternatively for an extension of time for one day if the Court should be of the view that that were necessary. Reliance on the point by the first respondent took the form of contending, in written submissions lodged on 22 September 2005 and in oral argument at the hearing, that leave to extend time ought not to be granted. The first respondent did not at any time apply to the Court by Notice of Motion or otherwise to dismiss the appeal as incompetent. 34 The Court of Appeal held in Morris v. Public Transport Commission of New South Wales (unreported 28 May 1984) that the consequence of an appeal being filed out of time was that the Notice of Appeal was an irregularity and not a nullity; the irregularity could be dealt with in accordance with s.81 of the Supreme Court Act 1970, but except as a consequence of some step taken or order made under s.81, the appeal could not be disregarded or treated as if no Notice of Appeal had been filed at all. In that case the Court of Appeal extended time for filing Notice of Appeal to include the date of filing. Moffitt P said: …the 'failure' to comply with [that rule ie Pt.51 r.4(1)] is required by s.81(1)(a) to be "treated [as] an irregularity". The failure to comply with that rule as to time did not "nullify" the step taken to appeal by filing the notice. Since the notice was filed a day out of time there has been an appeal on foot, but there was an irregularity in its institution in that the rule as to time was not complied with as to one day. Even if the order now sought [an application for an order that time the filing of a Notice of Appeal be extended] were not made, the appeal would be on foot and the claimant would be entitled to have it proceed to hearing, subject to any order that the opponent is entitled to and obtains to have the irregularity corrected or the proceedings dismissed by reason of it.

Glass JA agreed and Mahoney JA reached the same conclusion. 35 Even if contrary to my finding the time for appeal ran from 16 March and the Notice of Appeal without appointment was lodged one day late I would hold that the appeal was, within the meaning of cl.4(2) of schedule 6 Pt.18H to the Workers Compensation Act 1987, "an appeal pending on … that commencement …," that is, pending on 3 June 2004. The appeal was, in the word used in Pt 51 r 6(1), instituted when Notice of Appeal without Appointment was filed on 14 April 2004, and was pending from then on. 36 If the substituted s.151AB(1)(a) ought to be applied in deciding the appeal the basis on which Judge Duck disposed of the Notice of Motion is not applicable, the Notice of Motion should be dismissed, and the proceedings against both defendants should be allowed to continue in the ordinary course. Two substantial reasons were offered by Senior Counsel for Employers Mutual why the appeal should not be disposed of on that basis. One was to the effect that the right of appeal conferred by s.32(1) is limited to the matter referred to, that is, to dissatisfaction with the decision of the Dust Diseases Tribunal in point of law; and it was contended that the Court of Appeal is limited to disposition of the appeal in accordance with the law at the time of disposition by Judge Duck. 37 Appeals exist when and as rights of appeal are created by statute. Rights of Appeal and powers of appellate courts take various forms, according to the terms of legislation creating rights of appeal. See Allesch v Maunz (2000) 203 CLR 172 at 180 [22] and [23] [2000] HCA 40 and Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission & Ors (2000) 203 CLR 194 at 202-204 [11] to [14] [2004] HCA 47. In the strictest sense of references to an appeal, the issue on appeal is whether the judgment given below was correct, and later change in the law is not relevant. Legislation creating a right of appeal may indicate an intention to confine the issue on appeal in this strict way, and may well be so construed if the right of appeal is granted in terms which limit the matter which may be under consideration severely, for example by prescribing that an appeal lies on a question of law only. Whether the Court of Appeal is limited to considering whether a decision under appeal was correct according to the law in the state it was at the time of the decision under appeal, or whether the Court of Appeal may or must have regard to alterations in the state of the law which were made after the decision under appeal was given, depends on legislative intention. Where an appeal is by way of rehearing, as under s.75A of the Supreme Court Act 1970, it is well established that the Court is to have regard to the state of law at the time of the rehearing (see Coal and Allied at [14] citing Victorian Stevedoring and General Contracting Co v Dignan (1931) 46 CLR 73 at 106-108 (Dixon J). Section 32(1) of the Dust Diseases Tribunal Act does not authorise an appeal by way of rehearing. It restricts consideration to errors of law: see Amaca Pty Ltd v. Karakasch [2004] NSWCA 79, 1 DDCR 367 at [9] and [15] (Cripps AJA) citing Azzopardi v. Tasman UEB Industries Ltd (1985) 4 NSWLR 139 (Glass JA). It may well restrict the Court of Appeal to the state of the law at the time of the decision under appeal. Legislation which alters the state of the law is a possible source of authorisation for determination of pending appeals in accordance with the amending legislation. 38 In my opinion the terms of cl.4(2) of Pt.18H show legislative intention that the amendment to s.151AB is to be applied in determining appeals of the kinds referred to. I see this conclusion as required by the declaration in cl.4(1) that the amendments were for the removal of doubt, the provision that, according to the object of removal of doubt, the amendments extend to liabilities arising before the commencement of the amendments, and the provision that for the purposes of the making and determination of any appeal of the kinds referred to the amendments extend to liabilities the subject of any decision of the Court made before the commencement of the amendments. Whatever otherwise would be the position about acting on any change in the law which occurred while an appeal under s.32(1) was pending, the provisions of cl 4 express the legislative intention that the resolution of doubt which the amendments effect should govern the Court's decisions on pending appeals. 39 There cannot be any difficulty in recognising the source of doubt in the difference of views and the strong dissent in Orica, and further in the divergent opinions of Judge Duck and Judge Curtis in the Dust Diseases Tribunal. In the Second Reading Speech in the Legislative Assembly on 3 June 2004 the Parliamentary Secretary said, among other things:- In Orica, the Court held that common law liability would arise only at the time a worker has suffered damage. However, in the case of dust diseases, damage may occur many years after the injury was initially sustained. … The amendments ensure that insurers are required to identify employers where an insurance policy covered a relevant period when a worker was at risk of sustaining injury. The amendments ensure that statutory workers compensation policies respond to claims for disease and injury with long latency periods, such as dust diseases. … The amendments merely address an anomaly in statutory workers compensation policies and legislation that led to the decision in Orica. 40 In my opinion the statement in cl. 4(1) that the amendment was made to resolve doubt should be accepted, and can readily be accepted in view of this history. The operation of the legislation in resolving a doubt which, it must be said, truly existed has a qualifying effect on observations and arguments which proceed from a base that the legislation has removed or taken away rights which existed before the amendments. 41 Counsel contended to the effect that the decision of Judge Curtis did not show the existence of doubt because that decision was not in accordance with the law stated by the Court of Appeal in Orica, which bound Judge Curtis. I do not accept this contention; the operation of s.18(6B) was not considered in Orica, and it should not be said that Judge Curtis's decision (whether or not the decision was correct) departed from the authority of Orica. 42 It was contended that having regard to the retrospective operation of the amendment a strict view should be taken of the reference to an "appeal pending", and that an appeal which was irregularly commenced in that it was commenced out of time should not be understood to be within the terms of the legislation. 43 Counsel for the Attorney General contended to the effect that the operation of the amendments should be understood in the wider context than the state of the laws as it existed immediately before the operation of the amendments; counsel put forward a context including the operation of section 18 (6B) of the Workers Compensation Act 1926 while it was in effect, and the effect of its repeal on the rights of persons who had the advantage of s.18(6B); counsel said to the effect that the repeal of section 18(6B) was an accidental repeal and that it cut a number of people out from their rights; and this legislative denial of rights in 1987 was reversed and the rights were reinstated by the amendment. I do not adopt this analysis; nor do I reject it; I do not think it is necessary to rely on it. 44 It is not my concern whether the retrospectivity of the 2004 Amendments restores rights which had previously existed, or whether the legislation fulfils some concept of legitimacy. The intended retrospective operation is expressed clearly, and the legislation has effect notwithstanding its effect on rights or immunities which would otherwise exist. Counsel were not able to refer the Court to any judicial consideration of the expression "appeal pending" or closely related expressions in legislation. In my opinion the question whether the present appeal was an "appeal pending" within the meaning of the Amending Act is essentially a question of fact to be decided on consideration of the facts and events relating to the initiation of the appeal and of events in the appeal up to 3 June 2004. 45 Senior counsel for the respondent also relied on submissions relating to the Kable doctrine. In its Notice of Contention the respondent raised several contentions relating to the validity of the amendment of s.151AB of the Workers Compensation Act 1987 and the insertion of Pt.18H Cl.4 by the Workers Compensation Legislation Amendment Act 2004. The respondent relied on the Kable doctrine (see Kable v Director of Public Prosecution (NSW) (1997) 189 CLR 51) and contended that the amendments were invalid as being inconsistent with the exercise by the Supreme Court of New South Wales of Federal judicial power. The submissions were to the effect that the amendments are invalid because they confer upon a State Court which exercises federal jurisdiction a function which substantially impairs its institutional integrity, or impairs the integrity of the judicial process or the independence of the Court. It became necessary to comply with s.78B of the Judiciary Act 1903 (Cth) and the respondent gave notices to Attorneys General of the Commonwealth and all the States; the Attorney General of the State of New South Wales intervened in the proceedings and his counsel made oral and written submissions in support of the intervention. Other Attorneys General did not intervene. 46 Senior Counsel for the respondent observed to the effect that the provisions made by cl.4(1) and (2) are on their face glaringly inconsistent; it could be said first that the integrity of the judicial system is maintained because the prior decision is not affected by the legislation; but then subcl.(2) provides grounds for appeal and the legislature tells the court what the result of the appeal is to be. It was contended that it transgresses on the judicial power that the legislation extends the ambit of matters which may be considered on appeal; transgresses on or usurps the judicial power so that the court is directed on the result regardless of whether any error is identified in the original judgment. 47 State legislative power is restricted so that laws which impinge upon the institutional integrity of a State court are invalid because the Courts of a State potentially are the repositories of Federal jurisdiction, which may be and extensively has been invested in State courts under s.77(iii) of the Constitution. It has become accepted that if a Federal law would not have been invalid for infringing Ch III, a State Law in the same terms does not infringe the Kable doctrine; see Baker v The Queen (2004) HCA 45, 78 ALJR 1483 at [51]. The operation of constitutional incompatibility and of the law in Kable were recently considered by the Court of Appeal in Powercoal Pty Ltd & Anor v Industrial Relations Commission of New South Wales and Morrison (2005) NSWCA 345 by Spigelman CJ at [38-48]. Statements in Fardon v Attorney General (Queensland) 2004 HCA 46: 78 ALJR 1519 which expressed invalidating impeachments of institutional integrity were collected by Spigelman CJ at [42]: 42 In Fardon all members of the majority framed, at least in part, the restriction on State legislative power in terms of laws which would impinge upon the "institutional integrity" of the State court: "substantially impairs" ([15] per Gleeson CJ and see [23]); "compromises" ([37] per McHugh J); "repugnancy to or incompatibility with" ([101] per Gummow J); "not compromised" ([219] per Callinan and Heydon JJ). Indeed, Gummow J described "institutional integrity" as the "touch stone" (at [102]). 48 Spigelman CJ set out passages from the judgment of McHugh J and the judgment of Callinan and Heydon JJ which show the relatively narrow limits of the operation of the doctrine in Kable, including a passage from the judgment of Callinan and Heydon JJ at [219] which shows that the restrictions on State legislative power do not reproduce the requirements of Ch III of the Constitution. These passages were:- McHugh J: "[41] The bare fact that particular State legislation invests a State court with powers that are or jurisdiction that is repugnant to the traditional judicial process will seldom, if ever, compromise the institutional integrity of that court to the extent that it affects that court's capacity to exercise federal jurisdiction impartially and according to federal law. State legislation may alter the burden of proof and the rules of evidence and procedure in civil and criminal courts in ways that are repugnant to the traditional judicial process without compromising the institutional integrity of the courts that must administer that legislation. State legislation may require State courts to exercise powers and take away substantive rights on grounds that judges think are foolish, unwise or even patently unjust. Nevertheless, it does not follow that, because State legislation requires State courts to make orders that could not be countenanced in a society with a Bill of Rights, the institutional integrity of those courts is compromised."

McHugh J at [43]: "[43] Kable is a decision of very limited application. That is not surprising. One would not expect the States to legislate, whether by accident or design, in a manner that would compromise the institutional integrity of their courts. Kable was the result of legislation that was almost unique in the history of Australia. More importantly, however, the background to and provisions of the Community Protection Act pointed to a legislative scheme enacted solely for the purpose of ensuring that Mr Kable, alone of all people in New South Wales, would be kept in prison after his term of imprisonment had expired. The terms, background and parliamentary history of the legislation gave rise to the perception that the Supreme Court of that State might be acting in conjunction with the New South Wales Parliament and the executive government to keep Mr Kable in prison. The combination of circumstances which gave rise to the perception in Kable is unlikely to be repeated. The Kable principle, if required to be applied in future, is more likely to be applied in respect of the terms, conditions and manner of appointment of State judges or in circumstances where State judges are used to carry out non-judicial functions, rather than in the context of Kable -type legislation."

Callinan and Heydon JJ stated at [219]: "[219]… It is necessary to keep in mind the issues with which Kable was concerned and the true nature of the decision which the court made there. Despite the differing formulations of the justices in the majority, the primary issue remained whether the process which the legislation required the Supreme Court of New South Wales to undertake, was so far removed from a truly judicial process that the Court, by undertaking it, would be so tainted or polluted that it would no longer be a suitable receptacle for the exercise of federal judicial power under Ch III of the Constitution. This court did not in Kable hold however that in all respects, a Supreme Court of a State was the same, and subject to the same constraints, as a federal court established under Ch III of the Constitution. Federal judicial power is not identical with State judicial power. Although the test, whether, if the State enactment were a federal enactment, it would infringe Ch III of the Constitution, is a useful one, it is not the exclusive test of validity. It is possible that a State legislative conferral of power which, if it were federal legislation, would infringe Ch III of the Constitution, may nonetheless be valid. Not everything by way of decision-making denied to a federal judge is denied to a judge of a State. So long as the State court, in applying legislation, is not called upon to act and decide, effectively as the alter ego of the legislature or the executive, so long as it is to undertake a genuine adjudicative process and so long as its integrity and independence as a court are not compromised, then the legislation in question will not infringe Ch III of the Constitution." 49 On behalf of the respondent it was contended that cl.4(2), the transitional provision, is invalid. It was contended that cl 4(2) requires the Court to act in a manner inconsistent with judicial process, that it provides a process far removed from the ordinary incidents of judicial process, that it diminishes compromises or jeopardises the integrity of the judicial process and the integrity of the Courts, and diminishes public confidence in judicial process; and it was said that members of the public might reasonably see the transitional provisions as making the Court a party to and responsible for implementing a political decision outside the ordinary processes of the law. Central to the submission was the impact of cl.4(2) on the process of determination of an appeal against a decision of a lower court, when cl.4(1) established that the decision of the lower court was not to be affected by the amendment to s.151AB and by its retrospectivity. 50 Legislation which affects contractual rights and operates retrospectively is passed from time to time, has been known for centuries and from time to time comes before courts for enforcement; enforcing retrospective legislation is not a frequent or familiar judicial duty but it occurs from time to time and is not repugnant to the judicial process. It also happens from time to time that legislation impacts on pending litigation, including pending appeals and alters the effect of judicial orders which have been made. In the constitutional law of New South Wales there is no legislated separation of the judicial power from other powers, and except in the application of the Kable doctrine and implications derived from Ch III of the Commonwealth Constitution the legislature of New South Wales is empowered to make laws which have direct impacts on judicial orders and judicial proceedings. The Dust Diseases Tribunal and the Court of Appeal are not exercising federal jurisdiction in these proceedings. 51 Clause 4(2) has an impact on the judicial process which goes well beyond the impact of enacting amending legislation with retrospective effect. Clause 4(2) not only states how the law operates retrospectively: it alters the appellate process and provides a rule for determination of appeals which is different to the rule for determination of appeals which applied when this appeal was commenced, and seems to show that the decision under appeal is not to be treated as incorrect, yet that it may be set aside by applying a legal rule different to the rule under which that decision was made. 52 The interaction between what cl.4(2) legislates for and the constitutional separation of powers in Ch III of the Constitution is very different to the interaction which gave rise to invalidity in Kable's case and brought the validity of legislation under consideration in Fardon's case. The ad hominem character and severe nature of the operation of the legislation under consideration of Kable, together with the limited nature of the power conferred on the Supreme Court by that legislation, should be steadily kept in view for their highly unusual nature, indeed exceptionality, when seeking to understand what is referred to by references to institutional integrity, to institutional integrity's being substantially impaired or compromised, or to legislation being repugnant to or incompatible with institutional integrity. It is in no way outside traditional judicial functions and methods that a court should give effect to retrospective legislation, or that a court hearing an appeal should give effect to a legislative change which came into effect after the decision under appeal. The law about the powers of the Court of Appeal may be altered with retrospective effect, just as other legal rules may be altered with retrospective effect. Although according to the terms of the legislation which created them, the powers of the Court on appeal do not always authorise the appellate court to give effect to changes made in the law after the decision on appeal, it is well established and familiar that legislation may authorise that; and s.75A of the Supreme Court Act 1970 does so, in appeals by way of rehearing to which that section applies; see Victorian Stevedoring and General Contracting Co. Pty Ltd & Anor v Dignan (1931) 46 CLR 73 at 107-108 where Dixon J. expressly referred to the manner in which a retrospective change in the law is given effect in an appeal by way of a rehearing. A legislative change while an appeal was pending was given effect by the House of Lords in Attorney General v Vernazza [1960] AC 965. The Court's institutional integrity would not be compromised, in appearance or in substance, by its giving effect to a legislative change; quite the reverse, its institutional integrity would be compromised in appearance and in actuality if the Court did not do so. 53 Submissions in the present case brought under consideration a different kind of infringement of a constitutional entrenchment of the separation of judicial powers, where the legislature exercises judicial powers itself or interferes so closely and directly in the exercise of judicial power that the legislature exercises the power itself. In Liyanage v The Queen [1967] AC 259 the Privy Council said, of provisions in constitutional documents relating to Ceylon (now Sri Lanka) at 287: "These provisions manifest an intention to secure in the judiciary a freedom from political, legislative and executive control", and also said (at 289) "In so far as any Act passed without recourse to s.29(4) of the Constitution [which related to amendments] purports to usurp or infringe the judicial power it is ultra vires". The Privy Council held invalid legislation which interfered in judicial process in several ways including authorising a Minister of the Crown to nominate the judges who were to hear proceedings of a particular kind. Their Lordships said: [at 289] "But such a lack of generality in criminal legislation need not, of itself, involve the judicial function, and their Lordships are not prepared to hold that every enactment in this field which can be described as ad hominem and ex post facto must inevitably usurp or infringe the judicial power." Their Lordships said of one of the Acts held to be invalid (at 290): "The first Act was wholly bad in that it was a special direction to the judiciary as to the trial of particular prisoners who were identifiable (in view of the White Paper) and charged with particular offences on a particular occasion. The pith and substance of both Acts was a legislative plan ex post facto to secure the conviction and enhance the punishment of those particular individuals". Their Lordships adopted a summary of the Act which bore this out. Their Lordships referred (at 291) to authority in the United States which could well be the deepest origin of doctrine in this area: "One might fairly apply to these Acts the words of Chase J, in the Supreme Court of the United States in Calder v Bull (1799) 3 Dallas 386: 'These Acts were legislative judgments; and an exercise of judicial power.'" 54 Counsel for the Attorney General referred us to a recent application by the Supreme Court of the United States of these principles: Plaut v Spendthrift Farm Inc. (1995) 514 US 211 which held invalid legislation by which Congress enacted that lawsuits of a certain kind which had been dismissed as time-barred were to be reinstated on motion made within a limited time. 55 In Building Construction Employees and Builders' Labourers Federal v Minister for Industrial Relations (1986) 7 NSWLR 372 State legislation, summarised by Street CJ at 377, of its own force cancelled registration of a State union, validated a ministerial certificate and declared that these provisions have effect notwithstanding any pending proceedings; there were pending proceedings and the legislation went on to provide for the burden of the costs of those proceedings which the court might otherwise have provided. The Court distinguished Liyanage v The Queen and held that the legislation was valid; the Court did not at that time have the benefit of the decision in Kable and did not consider whether Ch III of the Constitution had implications for disposition of the case before it. 56 In Australian Building Construction Employees And Builders Labourers Federation v The Commonwealth of Australia (1986) 161 CLR 88 at 96 (the BLF case) the High Court said: It is well established that Parliament may legislate so as to affect and alter rights in issue in pending litigation without interfering with the exercise of judicial power in a way that is inconsistent with the Constitution. "Chapter III contains no prohibition, express or implied, that rights in issue in legal proceedings shall not be the subject of legislative declaration or action." ( Reg v. Humby; Ex parte Rooney (1973) 129 C.L.R. 231, at p.250.) So, in Nelungaloo Pty. Ltd. v. The Commonwealth (1948) 75 C.L.R. 495, esp. at pp.503-504, 579-580, the validity of the Wheat Industry Stabilization Act (No.2) 1946 (Cth) was upheld, notwithstanding that the Act validated an order for the acquisition of wheat, the validity of which was in issue in the proceedings. It is otherwise when the legislation in question interferes with the judicial process itself, rather than with the substantive rights which are at issue in the proceedings. Liyanage v. The Queen [1967] 1 A.C. 259 was such a case where the legislation attempted to circumscribe the judicial process on the trial of particular prisoners charged with particular offences on a particular occasion and to affect the way in which judicial discretion as to sentence was to be exercised so as to enhance the punishment of those prisoners. 57 These observations were obiter dicta and the legislation under consideration did not deal with any aspect of the judicial process; it simply deregistered the Builders Labourers Federation. Deregistration could also have been brought about by judicial order, but no proceedings for such an order were involved in the litigation. 58 H A Bachrach Pty Ltd v The State of Queensland (1998) 195 CLR 547 brought together consideration of the Kable doctrine and of State legislation which came into effect pending an appeal against a decision of a court to approve rezoning to permit a shopping centre development; the legislation permitted the development, thus pre-empting all consideration of the appeal. Bachrach is not a case relating to a direct legislative intervention in the judicial process, of the kind which occurred in Plaut v Spendthrift Farm Inc. In their joint judgment the High Court made the important observation (at 561-2): However, Kable took as a starting point the principles applicable to courts created by the Parliament under s 71 and to the exercise by them of the judicial power of the Commonwealth under Ch III. If the law in question here had been a law of the Commonwealth and it would not have offended those principles, then an occasion for the application of Kable does not arise.

Their Honours approved a passage from the BLF case including the passage I have set out above; and also approved the passage to which the court in the BLF case had referred as follows: ( at 536) "However, as Mason J pointed out in R v Humby ; ex parte Rooney (1973) 129 CLR 231 at 250 the circumstance that a statute affects rights in issue in pending litigation does not necessarily involve an invasion of judicial power." 59 The limitations which a constitutional separation of the judicial power impose on legislative exercise of judicial power are not part of constitutional law of New South Wales, and in my opinion they are not part of the Kable doctrine, which relates to the different subject of the suitability of courts to exercise federal jurisdiction, not the unsuitability of legislatures for the exercise of the judicial power. In the law of New South Wales there is no constitutional entrenchment of the separation of judicial power, and there is no corresponding limitation on the validity of legislation by which the legislature prescribes, even in relation to particular identified proceedings, what order the Court is to make or what effect its order is to have; or substitutes a rule made by the legislature for a court order. Unless a limitation on legislative power is found to arise from Ch III of the Constitution in accordance with the Kable doctrine, there is no such limitation. 60 In my opinion clause 4(2) is not an exercise by the legislature of any part of the judicial power because it does not directly take some step in the proceedings which it would otherwise be for the court to take, and it does not compel the court to act in a particular way or to make a particular order. It is still for the court to consider the litigation and reach its own decision on the appeal in the application of the law, including the amendment. The amendment left relatively little room for decision; it did not pre-empt decision or substitute a judgment of the legislature for that of the court. There are no analogies with the intervention made by Congress in Plaut v Spendthrift Farms Inc. To my mind it is clear that retrospective legislation affecting and it may be dominating the disposition of an appeal does not compromise the institutional integrity of the Court or otherwise involve the Kable doctrine. Giving effect to retrospective legislation is not an everyday function of courts, but it is a long has been an ordinary function of courts. The respondent's contentions should not be accepted. 61 In my opinion the appeal should be allowed with costs, the orders of Judge Duck of 2 April 2004 should be set aside and in lieu thereof it should be ordered that the Notice of Motion before Judge Duck be dismissed with costs. The proceedings before the Dust Diseases Tribunal should then resume their course without interlocutory disposition.

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