NATURE OF JURISDICTION: DUST DISEASES TRIBUNAL - ARMITAGE J

PARTIES: MEGGITT OVERSEAS LTD & ORS V NED GRDOVIC

CATCHWORDS: Practice and procedure - adjournments - relevant considerations - announcement by Minister of proposed legislative changes - whether prospect of legislative amendment a relevant consideration

Practice and procedure - adjournments - relevant considerations - announcement by Minister of proposed legislative changes - whether prospect of legislative amendment a relevant consideration

In 1995 Mr Grdovic ("the plaintiff") filed a statement of claim in the Dust Diseases Tribunal, claiming damages for negligence and breach of statutory duty. On 8 December 1997 the action was set down for hearing on 11 and 12 June 1998. On 26 May 1998 the plaintiff moved the Tribunal by Notice of Motion seeking an order that the hearing dates on 11 and 12 June be vacated and consequential orders. The reason stated in the supporting affidavit was that the plaintiff wished to take advantage of certain proposed legislative changes announced by the Minister for Industrial Relations in a fax sent by the Minister on 15 May to the President of the New South Wales Bar Association. On 26 May 1998 Armitage J held that the adjournment should be granted in order for the legislation proposed by the Minister to apply to the present case.

It is improper to grant a contested adjournment of legal proceedings for the purpose of enabling one party to take advantage of a proposed amendment of the enacted law. An announcement made by a minister regarding the Cabinet's decision to introduce particular legislation does not qualify in any way the judicial branch's obligation to uphold the existing law.

R v Brown (1989) 17 NSWLR 472; A v Hayden [1984] HCA 67; (1984) 156 CLR 532; Fitzgerald v Muldoon [1976] 2 NZLR 615; P v P [1994] HCA 20; (1994) 181 CLR 583; Ramsay v Aberfoyle Manufacturing Co (Australia) Pty Limited [1935] HCA 75; (1935) 54 CLR 230; Willow Wren Canal Carrying Co Limited v British Transport Commission [1956] 1 All ER 567; Sydney City Council v Ke-Su Investments Pty Limited (1985) 1 NSWLR 246; R v Whiteway; Ex parte Stevenson [1961] VicRp 26; [1961] VR 168, followed. Re Minister for Minerals and Energy; Ex parte Wingate Holdings Pty Limited [1987] WAR 190, not followed. Sparkes v Harland [1997] 1 WLR 143; Stubbings v Webb [1993] AC 498, distinguished.

4. Respondent to pay the claimant's costs of the summons and of the appeal on the basis of a single set of costs and to have a certificate under the Suitors Fund Act if applicable.

MASON P: The power to adjourn proceedings is discretionary and an appeal court is reluctant to disturb it. A decision to grant or refuse an adjournment will be interfered with by the Court of Appeal only in exceptional cases and then only where the discretion has been exercised on a wrong principle or resulted in a serious injustice: see generally GSA Industries Pty Limited v NT Gas Limited (1990) 24 NSWLR 710.

However, I am clearly satisfied that this is a proper case to grant leave to appeal and to allow the appeal challenging Armitage J's order that the hearing dates of an action in the Dust Diseases Tribunal should be vacated.

In 1995 Mr Grdovic, whom I shall call the plaintiff, filed a statement of claim in the Dust Diseases Tribunal. He sued seven defendants claiming damages for negligence and breach of statutory duty. Some defendants were sued as employers, others as manufacturers or distributors of insulation products, and one as an occupier. The plaintiff is aged seventy-one and claims damages to compensate for pulmonary asbestosis, pleural thickening and calcified pleural plaques, asbestos-related pleural diseases, anxiety and depression, and loss of expectation of life. Aggravated and exemplary damages are also claimed against the seventh defendant, James Hardie & Co Pty Limited.

On 8 December 1997 the action was set down for hearing on 11 and 12 June 1998. On 22 December 1997 the Court of Appeal handed down its decision in James Hardie & Co Pty Limited v Newton (1997) 42 NSWLR 729. The Court held that pension payments received pursuant to s8(2)(a) of the Workers' Compensation (Dust Diseases) Act 1942 for disability from a dust disease are deductible from common law damages for that dust disease whether or not the plaintiff makes any claim for economic loss in the action for damages.

Stein JA gave the principal judgment and it is significant to the present matter to observe that he emphasised (at 736) that the conclusion was based upon a legislative indication - found in the Workers' Compensation (Dust Diseases) Act 1942 properly construed - that weekly pension benefits should be taken into account in the assessment of common law damages. We were informed that the Court of Appeal decision rejected the view taken by the Dust Diseases Tribunal in numerous cases heard since 1989.

On 26 May 1998 the plaintiff moved the Tribunal by Notice of Motion seeking an order that the hearing dates on 11 and 12 June be vacated and consequential orders. The reason stated in the supporting affidavit was that the plaintiff wished to take advantage of certain proposed legislative changes announced by the Minister for Industrial Relations. In a fax sent by the Minister on 15 May to the President of the New South Wales Bar Association, the Minister foreshadowed a number of proposed amendments dealing with dust diseases. The document is entitled "Summary of Dust Diseases Package of Reforms." Relevantly, it states:

"G. Remove an unfair anomaly involving deduction of workers' compensation from damages for dust diseases.

This returns the status quo following a decision James Hardie v Newton. The Newton decision provides for weekly compensation entitlements from the DDB to be offset against general damages awards (pain and suffering) in the DDT. The worker was claiming damages for pain and suffering, not economic loss, and this decision is considered to be most unfair."

The Summary does not contain a draft Bill. It does not indicate when such Bill will be introduced into Parliament. And it does not disclose the Government's intentions, if any, as to the retrospectivity of the proposed amendments.

Paragraphs 10 and 11 of the supporting affidavit stated that on no view of the case would the matter conclude in the two days allocated; and that given the proposed legislative amendments, the plaintiff would be seriously prejudiced in the event that this application was not granted in circumstances where the defendants would suffer no prejudice.

The matter was heard and determined by Armitage J on 26 May 1998. His Honour held that:

"This case is one where an adjournment should be granted in order for the legislation proposed in the Attorney's summary to apply to the present case.... If the Parliament, by what it presumably would see as remedial legislation, seeks to clarify the rights of parties in litigation of this type, and to simplify the procedures involved so as to reduce cost and delay, this seems to me to be a powerful policy consideration for me to consider, and whilst these considerations should not dictate the result of the present application they are to my mind relevant ones indicating the desirability of allowing the amending legislation to apply to the present case. In all of the circumstances, as I have said, I do not consider myself bound as a matter of law to refuse an adjournment in these circumstances."

In my view, the discretion miscarried. The learned judge erred in taking into account the prospect of legislative amendment as a controlling factor in the decision granting the adjournment. The error was compounded by the apparent intent that the hearing date will, as presently advised, be deferred until the amending legislation is passed and the plaintiff becomes thereby entitled to take advantage of it.

In R v Brown (1989) 17 NSWLR 472 the Court of Criminal Appeal constituted by Gleeson CJ, Newman J and Loveday J discussed the principles relating to the stay of criminal proceedings for abuse of process. The court said (at 479):

"We should take this opportunity to dispose of one suggestion that was canvassed in argument as a possible course that a trial judge might take if he were to disapprove of a decision by a prosecutor to charge an accused person with a lesser offence in circumstances such as those which arose in the present case. It was suggested that the judge might simply decline to deal with the matter by standing it out of his list, thereby in effect doing nothing. We would regard such a course as quite inappropriate. Judges do not have a discretion as to whether they will deal with matters which regularly come into their lists for determination. Subject to the pressure of business and availability of time, their duty is to decide matters that come before them. Judicial distaste for the nature of the matter that arises for decision or the procedural course that has been adopted by parties is not a reason for declining to deal with a matter."

In discussing Newton's case I emphasised that the decision turned upon the intention of Parliament expressed in the Workers' Compensation (Dust Diseases) Act 1942 as discerned by the Court of Appeal. The rule of law in a democratic society demands that such intention should be respected and followed in all cases, subject only to any question of constitutional validity. This obligation of fidelity is underscored in the present case by the duty of the Dust Diseases Tribunal to respect and follow the interpretation of the legislation expounded by the Court of Appeal.

Since it is the task of the executive branch to give effect to Parliament's intention expressed in legislation and the sworn duty of the judicial branch to uphold the law in decision making, it is to me self-evident that neither may disregard an enactment so long as it stands. In A v Hayden [1984] HCA 67; (1984) 156 CLR 532 at 580-1 (omitting references and citations), Brennan J said:

"The incapacity of the executive government to dispense its servants from obedience to laws made by Parliament is the cornerstone of a Parliamentary democracy. A prerogative to dispense from laws was exercised by medieval kings, but it was a prerogative `replete with absurdity, and might be converted to the most dangerous purposes'.... James II was the last king to exercise the prerogative dispensing power ... and the reaction to his doing so found expression in the Declaration of Right. It was there declared that the pretended power of dispensing with laws or the execution of laws by regal authority as it hath been assumed and exercised of late is illegal. By the Bill of Rights, the power to dispense from any statute was abolished. Whatever vestige of the dispensing power then remained, it is no more. The principle as expressed in the Act of Settlement is that all officers and ministers ought to serve the Crown according to the laws. It was expressed more appropriately for the present case by Griffith CJ in Clough v Leahy.

`If an act is unlawful, forbidden by law, a person who does it can claim no protection by saying that he acted under the authority of the Crown.'

This is no obsolete rule. The principle is fundamental to our law though it seems sometimes to be forgotten when executive governments or their agencies are fettered or frustrated by laws which affect the fulfilment of their policies. Then it seems desirable to the courts `that sometimes people be reminded of this and of the fate of James II, as Lord Justice Scrutton reminded the London County Council in The King v London County Council; Ex parte Entertainments Protection Association: per Windeyer J in Cam and Sons Pty Limited v Ramsay."

A compelling instance of the force of these high constitutional principles is found in Fitzgerald v Muldoon [1976] 2 NZLR 615. There the plaintiff, who was employed by the Education Department, sought a declaration against the Prime Minister of the day that a press statement made by the latter on 15 December 1975 announcing the abolition of the superannuation scheme established pursuant to the New Zealand Superannuation Act 1974 was illegal. Similar declarations and injunctions were sought against the Attorney General for alleged failure of the Crown to make contributions under the legislative scheme and against the Attorney General for alleged failure of the Crown to make contributions, and against the Controller and Auditor General relating to the alleged failures of the Superannuation Board. Wild CJ held that on the proven facts the Prime Minister had not given instructions to the Superannuation Board but that those bodies had acted on the Prime Minister's announcement.

I should say that the announcement was made shortly after the Prime Minister had come to power following an election campaign in which the proposed amendments to the law were an issue.

The Chief Justice granted a declaration that the Prime Minister's public announcement was illegal as being in breach of section 1 of the Bill of Rights. See also Yip Chiu-Cheung v The Queen [1994] UKPC 2; [1995] AC 111.

I hasten to add that there is no suggestion of any breach of these principles in the Minister's announcement. It is an undoubted function of the Executive to bring proposed legislation into Parliament. It serves the public interest in democratic governance and effective law making that a minister may announce the Cabinet's decision to introduce particular legislation. And there is no presently relevant limitation upon such legislation being retrospective in operation in the sense that the foreshadowed amendment may not, if passed, seek to touch pending proceedings.

Does such announcement qualify in any way the judicial branch's obligation to uphold the existing - I emphasise the word "existing" - law? And does it enliven a power to grant a contested adjournment of proceedings fixed for hearing so as to enable one party to gain the benefit of proposed legislation to the detriment of another party? The answer to each question must be a categorical "no."

In P v P [1994] HCA 20; (1994) 181 CLR 583 at 620 Brennan J said:

"In principle, no prerogative power could be exercised contrary to statute and the historical transmogrification of the parens patriae power into a curial jurisdiction is no exception. In Re W Lord Scarman declared one of the basic rules of our law to be `the obedience of our courts to the enacted will of parliament.' If it be right to say, as the majority judgment in Marion's case said, that the welfare jurisdiction vested in the Family Court is "similar to the parens patriae jurisdiction" it would not confer on the court the power to make an order authorising the sterilisation of a child in New South Wales contrary to the provisions of section 35(1) [of the Guardianship Act.]

´A court of law' said Earl Loreburn, LC, ´has no power to grant a dispensation from obedience to an Act of Parliament.'"

The majority of the High Court in P v P did not share Brennan J's views on the scope of the Family Court's enacted jurisdiction, but this did not represent any disagreement with the statement of principle in the passage I have quoted from Brennan J's judgment. That statement simply applies to the judicial branch the principles affecting the executive branch expounded in cases such as A v Hayden and Fitzgerald v Muldoon.

These basal principles have been applied in a line of cases denying that it is proper to grant a contested adjournment of legal proceedings for the purpose of enabling one party to take advantage of a proposed amendment of the enacted law. In Ramsay v Aberfoyle Manufacturing Co (Australia) Pty Limited [1935] HCA 75; (1935) 54 CLR 230 at 253 Starke J said:

"Courts of law can only act upon the law as it is and have no right to and cannot speculate upon alterations in the law that may be made in the future."

In Willow Wren Canal Carrying Co Limited v British Transport Commission [1956] 1 All ER 567 Upjohn J refused an application to stay an action until a Bill which was then before Parliament and which in its then form would relieve the defendants of their statutory obligations, might become law. At 569 his Lordship said:

"It is argued that the proper course therefore is to let this action be stayed until the fate of the Bill is known. A preliminary objection is taken to that which seems to me to be fatal to the application and it is this. Sitting in this Court it is my duty to see that litigants have their cases tried as they are entitled to and I cannot take into account the possible effect of some Bill now before Parliament which, if passed into law in its present form, may have some effect on the rights of the parties. That seems to me to be a correct formulation of the law. This Court is not concerned with what Parliament may think it wise to do in relation to the rights of the parties, but the plaintiff is entitled to come to this Court and say in the normal course of events my action will very soon be ripe for hearing. I desire that the court should hear it. If subsequently to that Parliament in its wisdom thinks it right by some enactment to effect the rights of the parties, even to the extent of modifying or abrogating the effects of any judgment which the plaintiffs may be fortunate enough to obtain, no one doubts the right and power of Parliament to do so. It is plain however that it is not right for this Court either now or at the hearing to take into account the possible effect of a Bill which is at present before Parliament and which, so far as this Court is concerned, may never become law or, if passed into law, may contain provisions which ultimately do not affect the rights of the parties before the court. In other words, it is a matter of speculation on which this Court will not embark whether a Bill at present before Parliament will be passed into law in its present form."

See also the discussion in the joint judgment of Lockhart J and Gummow J in Attorney General (NT) v Minister for Aboriginal Affairs (1987) 73 ALR 33 at 50-3.

These principles led Woolf LJ and Saville J sitting as the Queen's Bench Division to quash an adjournment decision by an inferior court in R v Walsall Justices; Ex parte W [1990] 1 QB 253. They were applied by the Full Court of the Supreme Court of Queensland in refusing to have any regard to proposed legislation in Deputy Commissioner for Taxation v Moore Bank Pty Limited [1987] Qd R 414 at 417. They were applied by Gray J when he refused an application to fix an early trial date in order to avoid the impact of anticipated legislation in Jupp v Computer Power Group Ltd (1994) 122 ALR 711. And most significantly there is the decision of this Court in Sydney City Council v Ke-Su Investments Pty Limited (1985) 1 NSWLR 246. There the Court of Appeal by majority refused an adjournment application based upon the "prospect of a legislative change in the situation." McHugh JA said at 258:

"Thirdly, as a general rule it is not a proper exercise of the discretion to grant an adjournment on the ground that it is believed that the law may or will be changed in the near or remote future. As Dean J pointed out in R v Whiteway; Ex parte Stevenson [1961] VicRp 25; [1961] VR 161 at 171, ´I think it was the duty of the court when the applications came on for hearing to deal with them in accordance with the law as it then stood. It would be a cause of injustice if courts could adjourn cases because they had some real or imagined belief that the law might be amended.' His Honour continued, ´In that case the adjournment was opposed but the principle is of general application.'"

A decision looking partly in the opposite direction is Re Minister for Minerals and Energy; Ex parte Wingate Holdings Pty Limited [1987] WAR 190. There the Full Court of the Supreme Court of Western Australia granted a contested adjournment application of the hearing of the return of an order nisi for a writ of certiorari brought to quash certain ministerial decisions. The adjournment was sought on the basis that the minister had announced his intention to introduce a Bill validating the impugned decisions upon the opening of Parliament. The application was made in February 1986. Parliament did not resume until 22 May 1986 and the court was informed that the Bill would not be opposed and should become law prior to 1 June 1986. The majority of the court granted the adjournment.

Wallace J regarded the case as one where the legislation was a clear probability and he noted that the respondent would suffer no prejudice in consequence of the adjournment. He observed (at 195-6) that as a general rule it is not a proper exercise of the discretion to grant an adjournment on the ground that it is believed that the law may or will be changed in the near or remote future. His Honour cited Whiteway's case. Nevertheless he distinguished the application before him on the ground that that case was not one where in the normal course of events the action would be ready for hearing. The order made for it to be heard in March was ex parte and made at a time when the minister supported by the Cabinet had made his actions known. He said that it was not a case of indefinite deferral of the respondent's application nor one where one can clearly say the law might be amended. Rather the case made out was one that the Court would be asked to deliberate upon a point which in all probability will become moot. His Honour said that the court's time was far too valuable. Finally he noted that it was not a case where the adjournment sought would prejudice the respondent other than as to costs.

Olney J was of a similar view. He held that the only injustice which could be identified as arising from the proposed adjournment was that the party opposing the adjournment may as a result of the legislation be deprived of the opportunity of establishing the merit of its case and thus be deprived of the opportunity of obtaining an appropriate order for costs. His Honour distinguished Willow Wren on two bases: first, because the hearing of the return of the order nisi had been accelerated and the proceedings had not followed the ordinary course; secondly, because there was no real doubt that the foreshadowed legislation would be passed and passed in terms which would unquestionably terminate the dispute adversely to the applicant for the order nisi. His Honour continued (at 197-8):

"In a matter such as this I would hesitate to accept the view of a judge, however eminent, of another albeit similar political system as having any real weight in the determination of an issue which is peculiar to this State. The Sydney City Council case is readily distinguishable on the ground that it involved a situation in which the anticipated legislation had not been formulated."

I am not sure what aspects of the political system in Western Australia were being referred to by Olney J, but it is not part of the constitutional or political history of the New South Wales Parliament that it is the tool of the Executive. In any event, the present case falls clearly outside the matters which were relied upon by Olney J in declining to follow Willow Wren and Ke-Su.

The third judgment in that case was given by Burt CJ. The Chief Justice dissented and refused the adjournment, citing Willow Wren, Whiteway and Sydney City Council. He held (at 194) that:

"As a matter of principle the submission made by Wingate in its opposition to the adjournment should be accepted. The courts are charged with the high responsibility of administering justice according to the law as it is. A party invoking the jurisdiction of the court must be permitted to seek his justice upon that basis and the court cannot deny him that right because of a reasonable expectation that at some future date the law will be changed and with that change that his rights according to law will be changed. It may well be that his victory, should he enjoy one, will be pyrrhic. If it is, then so be it. That is a matter for him."

I respectfully agree. I am strengthened in this view by the other authorities which I have already discussed and by the editor's note appearing in [1987] WAR 190. There it is stated that on 21 March 1986 the High Court of Australia (Wilson, Brennan and Dawson JJ) by majority refused an application for special leave to appeal. The majority (Wilson and Dawson JJ) observed that in refusing special leave they were not to be taken as endorsing the course taken by the Full Court. Brennan J would have granted special leave.

Two situations should be distinguished from the one at hand. First, I would distinguish cases where an adjournment is sought to enable a proposition established in a decided case to be tested in an appeal brought by the parties to that case. Such a situation has been correctly viewed differently from the case at hand: see Re Yates' Settlement Trusts [1954] 1 All ER 619, R v Whiteway [1961] VicRp 26; [1961] VR 168 at 171, Thornton v Repatriation Commission (1981) 35 ALR 485. The reason why a pending appeal is different from a proposal for legislative amendment is that there is a level of certainty that the point will be addressed and knowledge that if and when it is the decision of the court higher in the appellate chain will declare the law on the relevant topic with retrospective effect. See Ha v State of New South Wales [1997] HCA 34; (1997) 71 ALJR 1080 where the High Court said that it is no part of the judicial function to overrule prospectively.

It may also be necessary to distinguish a second situation, namely where the court is dealing with an application for a discretionary remedy such as a prerogative remedy or an injunction. In such cases it may be proper to refuse such relief on the ground of futility and on that basis it may be proper to have regard to imminent legislative changes in that regard: see Re Minister for Communications; Ex parte NBN Limited (1986) 14 FCR 344 at 349. Compare also Ex parte Wallace and Co (1892) 13 NSWLR 1 and Hill v C A Parsons and Co Limited (1972) Ch 305. Once again I note that possibility without endorsing it.

In my view, Sparkes v Harland [1997] 1 WLR 143 which was relied upon by Armitage J is distinguishable. That case involved an application to strike out a statute barred action as an abuse of process. On the present state of the law in England, the defendant's pleading raising the statute of limitations was held to be unanswerable. There was an indistinguishable House of Lords decision in Stubbings v Webb [1993] AC 498. However, the unsuccessful plaintiff in Stubbings had applied to the European Commission and Court of Human Rights. The Commission had held the case to be admissible as disclosing a breach of Article 14 of the Convention for the Protection of Human Rights and Fundamental Freedoms. (The European Court of Human Rights was later to hold that there had been no violation; see Stubbings v United Kingdom).

In Sparkes Sedley J noted that if the Court of Human Rights took the same view as the Commission, the United Kingdom government would come under a treaty obligation to secure by a change in the law the right to proceed with her action which the judgment of the House of Lords had denied the plaintiff in Stubbings v Webb. Such change in the law would have to be retroactive and would therefore be likely to benefit Ms Sparkes as fully as the plaintiff in Stubbings v Webb.

In these circumstances the plaintiff argued that it was appropriate to stay the proceedings in Sparkes as distinct from striking out the statement of claim. Sedley J held that the decision in Stubbings v Webb did not bind him to dismiss the action without more. (I interpose to say that this approach is consonant with Australian cases which have declined to strike out as frivolous proceedings launched in order to provide a vehicle for challenging a decision of an appellate court that is presently binding but could be reconsidered by that appellate court; see Hospitals Contribution Fund of Australia v Hunt (1982) 44 ALR 365, Deputy Commissioner of Taxation v Truhold Benefit Pty Limited [1985] 2 Qd R 88.)

Having decided to refuse to dismiss the action, Sedley J might conceivably have left it to come on for trial in the ordinary course. However, he was invited by the plaintiff - and I emphasise the plaintiff - to order a stay. Distinguishing Willow Wren his Lordship said at 147:

"The case is in my judgment distinguishable upon a radical ground from the present case. Upjohn J was concerned with the choice between staying an action and letting it go to trial. There was every reason to refuse a stay and to have the action tried expeditiously. The present case is concerned with a choice between staying the action and dismissing it altogether. This is an entirely different choice and one which it seems to me that the pendency of Stubbings v United Kingdom in the European Court of Human Rights has much relevance."

The later dictum (at 147) upon which Armitage J relied was to the following effect. His Lordship said:

"There is in my judgment no rule of law that impending legislative change is never a material consideration in the exercise of the court's powers and discretions. Everything it seems to me turns upon the subject matter and the relevance of the pending legislation or possibility of change to the issues which the court has before it."

Perhaps this statement is unexceptionable having regard to the way it is expressed. I will leave that matter open. But the passage cannot be inverted into a statement to the effect that it is proper to take into account impending legislative change in support of a contested adjournment.

I return to the decision under review. In my view, Armitage J erred in granting the contested adjournment of the fixed hearing date on the basis that he did. It is clear that his reason was to enable one party to the litigation to be in a position to take advantage of a legislative change, substantive and not procedural in nature that would accrue to that party's benefit. In so doing, his Honour contravened the principles which I have endeavoured to state.

I note that paragraph 9 of the affidavit that was read below stated that a number of applications to vacate hearings had been made before the Dust Diseases Tribunal on behalf of plaintiffs. I infer that these were applications on a similar basis to that made by the present plaintiff. The paragraph stated that all of these applications had been granted. Because the circumstances under which these orders were made are not before us, I shall refrain from further comment about what this paragraph reveals. Mr Letcher QC informed us that it was his understanding that some of these adjournment applications had been consented to, others had been opposed. I content myself with stating that para 9 provides no basis for the adjournment in the present case. I hasten to add that no one has suggested otherwise and that the judgment under appeal proceeds on other grounds.

In his written and oral submissions, Mr Letcher urged the court to distinguish cases such as Whiteway, Willow Wren and Ke-Su on the basis that the foreshadowed legislation in the present case is proposed to restore rights to litigants. We were reminded that the subject matter of the legislative scheme is beneficial legislation. It was also submitted that the cases I have just mentioned all involved breaches of the criminal law or illegality in the sense that would attract administrative law review. I do not see this as a relevant point of distinction.

As regards the submission based upon the substantive aspect of the proposed legislation, I cannot accept it. It is well-established that legislation such as Workers' Compensation legislation is appropriately to be construed as beneficial legislation. The question of the substantive merit of the proposed legislation is in my view entirely irrelevant to the rule of law based principles which I have endeavoured to state.

In Vestey v Inland Revenue Commissioners Number 2 [1979] 1 Ch 198 Walton J cited with approval the words of Friedman CJM in the Court of Appeal in Manitoba in The Queen v Katagaz (1978) 1 WWR 282 at 287. That was a case which in terms decided that the Crown may not dispense with law by executive action where, after dealing with cases of prosecution for infraction of the criminal law which in individual cases there was undoubtedly an element of discretion. The Chief Justice said:

"But in all these instances the prosecutorial discretion is exercised in relation to a specific case. It is the particular facts of a given case that call that discretion into play, but that is a far different thing from the granting of a blanket dispensation in favour of a particular group or race. Today the dispensing power may be exercised in favour of Indians. Tomorrow it may be exercised in favour of Protestants and the next day in favour of Jews. Our laws cannot be so treated. The Crown may not by executive action dispense with laws. The matter is as simple as that and nearly three centuries of legal and constitutional history stand as the foundation for that principle."

If a court were to exercise a discretion to adjourn pending litigation by reference to the substantive benefits foreshadowed by proposed legislation, it would inevitably be drawn into the type of considerations referred to in the passage I have just quoted.

What should now be done? In my view, the proper vindication of the rule of law and of the claimants' rights requires that the orders made by Armitage J should be set aside. It may be that the vacated hearing dates have been allocated to other litigants. If this is so and if another judge cannot be found, then it will be open to a judge with management of the Dust Diseases Tribunal's list to make whatever order is appropriate consonant with the reasons of this Court.

I have not overlooked the evidence indicating that the trial is now likely to take more than the two days allocated, but this was not the basis of the adjournment order. If this factor were to be advanced before the Tribunal as the basis of some fresh adjournment, and I am not to be taken as inviting this, then the Tribunal can be relied upon to give it proper weight in deciding whether to start the case in the two days previously allocated or whether to fix hearing dates that can ensure that as far as humanly possible the case will proceed to completion in a single block of time.

4. Respondent to pay the claimants' costs of the summons and of the appeal on the basis of a single set of costs and to have a certificate under the Suitors Fund Act if applicable.

MASON P: The orders of the Court will be as proposed. I will direct the orders be entered tomorrow.