(ii) a provision of a previous law of the Territory with which sub-section 418(1) corresponds; (iii) a provision of a law of a participating State or participating Territory that corresponds with sub-section 418(1); or (iv) a provision of a previous law of a participating State or participating Territory with which a provision of the kind referred to in sub paragraph (iii) corresponds, reported or lodged a report with respect to, a matter relating to the ability of the company to pay its unsecured creditors." 14. By s. 562A(1)(c)- "A person may be taken to be a relevant person in relation to a company that is or was a 'relevant company' if and only if, the person was a director of the company at any time during the period of 12 months ending on the date of the commencement of the winding up of the company." 15. Prior to the enactment of s. 562A, s. 562 was in force as part of the Companies Code in all States and the Australian Capital Territory but not in the Northern Territory. S. 562 sets out various circumstances in which the Court may disqualify a person from acting as director or promoter of or from being in any way (whether directly or indirectly) concerned in or taking part in the management of a corporation for a period not exceeding 5 years. That in turn stems from s. 374H of the 1961 uniform companies enactments. That section was never enacted in the earlier Northern Territory legislation and therefore only came into force per s. 562 in the Northern Territory on 1 July 1986. However, s. 562 is expressly stated to have retrospective operation. See s. 562(3)(b). 16. Both s. 374H and its successor s. 562 required the Commission to satisfy the Court as to certain matters before an order prohibiting a person from acting as director etc. could be made. The significant change wrought by s. 562A was that in the circumstances set out in that section it is not necessary for the Commission to apply to the Court for such a prohibition. The Commission, upon serving the appropriate notices, and giving the person concerned an opportunity to be heard, and unless satisfied it is not appropriate to do so, may of its own motion prohibit a person from acting as director etc. for a period not exceeding 5 years, except with leave of the Court. This section is not expressly stated to have retrospective operation but some of the provisions (e.g s. 562A(1)(b) (ii) and (iv)) are only consistent with an intention that events occurring before the enactment of the section can be relied upon to determine whether a company is a "relevant company". Those sub-sections expressly refer to "a previous law". 17. Furthermore s. 562A(1)(b) provides that a company shall be taken to be a relevant company at a particular time if, and only if, within the period of 7 years ending at that time a liquidator has (under certain provisions subsequently discussed) "reported or lodged a report with respect to a matter relating to the ability of the company to pay its unsecured creditors". Such phraseology may, and indeed until the section has been in force for over 7 years, often necessarily will, import events happening before the commencement of the section. 18. In Maxwell v Murphy [1957] HCA 7; (1957) 96 CLR 261 at 267 Dixon C.J. said:- "The general rule of the common law is that a statute changing the law ought not, unless the intention appears with reasonable certainty, to be understood as applying to facts or events that have already occurred in such a way as to confer or impose or otherwise affect rights or liabilities which the law had defined by reference to the past events. But, given rights and liabilities fixed by reference to past facts, matters or events, the law appointing or regulating the manner in which they are to be enforced or their enjoyment is to be secured by judicial remedy is not within the application of such a presumption. Changes made in practice and procedure are applied to proceedings to enforce rights and liabilities, or for that matter to vindicate an immunity or privilege, notwithstanding that before the change in the law was made the accrual or establishment of the rights, liabilities, immunity or privilege was complete and rested on events or transactions that were otherwise past and closed.". 19. In the present case the question is whether the provisions of s. 562A, or those parts of it relevant to the present enquiry, come outside the general rule stated above. 20. Section 562A has been carefully considered by the Supreme Court of Victoria (O'Bryan J.) in Nicholas v Commissioner for Corporate Affairs (Victoria) (1986) 10 ACLR 792; and on appeal to the Full Court, affirming His Honour's decision at [1988] VicRp 40; 11 ACLR 801. 21. O'Bryan J., after reviewing the authorities said this at 10 ACLR 799:- "Section 562A is concerned with a person's fitness to be a director or promoter of a corporation or to be in any way, directly or indirectly, concerned in or taking part in the management of a corporation; sub-s (3). This concern is for the present and future protection of the public, to protect the public from persons whose past conduct in relation to a dissolved company has been reported on adversely by the liquidator. The amending section is clearly concerned with present fitness. To determine present fitness necessarily requires one to have regard to past facts. Not surprisingly, therefore, the legislature has prescribed past facts as relevant criteria. A corporation that has been dissolved is affected by the section. A relevant company is one in respect of which a liquidator has reported or lodged a report etc pursuant to s.418(1). A relevant person is a person who was a director at any time within 12 months of the winding up. The words underlined mean, prima facie, that past events are relevant to the operation of sub-s (3). The new offences created by sub-ss (5) and (6) apply only if a person contravenes a notice served under sub-s (3) or a notice served under a provision of a law that corresponds with sub-s (3). Sub-section (3) does not of itself impose a penalty for past conduct, but operates to disqualify as presently unfit from being a director etc persons whose past history make them unsuitable in the public interest. In this respect s562A operates prospectively." 22. On appeal the Full Court agreed with the reasoning of O'Bryan J. I would respectfully refer to and adopt the reasoning of O'Bryan J. and the Full Court on this point and in particular refer to the observations of Fullagar J. at 11 ACLR 811-812:- "But the point to be made, which is I think of fundamental importance in the present case, is that the so-called rule against retrospectivity is neither more nor less than a rule of construction, with its fundamental concomitant that the doctrine can have no application at all where the words used are such that they simply do not admit of a construction which will avoid 'retrospectivity'. In all the decided cases which have been brought to our attention in the present case, where the question arose whether the statute was to be permitted to have a retrospective effect, the statute was couched in language which was readily susceptible of a construction which avoided retrospectivity. In my opinion the statute in the present case is couched in language which is not readily susceptible of the last-mentioned construction, with the result that the "rule against retrospectivity" has no application". 23. That, however, does not conclude the matter in this case, because it must be shown that the companies in question here are relevant companies and the plaintiffs relevant persons. This becomes a matter of some difficulty in the Northern Territory where the earlier Territory legislation did not stem from the 1961 Uniform Companies Actwhich had been adopted in the other States and the Australian Capital Territory. For, while s. 562A allows events to be considered which have taken place before the date of the enactment of the section, those events can be only those which can be fitted into the framework of one or more of the sub-paragraphs (i) to (iv) of sub-section 1(b). 24. Do any of those sub-sections apply here? Obviously not sub-paragraph 1(b)(i) because there is no evidence that the liquidator of the companies under consideration has made any report under sub-section 418(1). Nor presumably could he have done so since a winding up commenced before July 1 1986 continues under the provisions of the N.T. Companies Act. See s. 35(1) of the N.T. Companies (Application of Laws) Act No. 13 of 1986 (previously quoted). It is no doubt for this reason that the Notice served on the plaintiffs refers to s. 306(3) of the Territory Companies Act 1978 as an alternative. 25. Sub-paragraph (ii) refers to "a provision of a previous law of the Territory with which sub-section 418(1) corresponds". "The Territory" is defined in the Commonwealth Companies and Securities (Interpretation andMiscellaneous Provisions) Act 1980 which I will call "the Commonwealth Act") as, "the Territory accepted by the Commonwealth pursuant to the Seat of Government AcceptanceAct 1909 and described in the Second Schedule to that Act and includes the Jervis Bay Territory". This is distinct from the definition of "Territory" which is defined as "a Territory referred to in s. 122 of the Constitution". Hence the Territory does not there mean the Northern Territory. 26. If those interpretations remained, sub-paragraph (ii) would not apply here, since the only report upon which the defendant relies was one made under a previous law of the Northern Territory;

• certainly not under a previous law of the Australian Capital Territory. But the matter does not end there because the Northern Territory Companies and Securities (Interpretation and Miscellaneous Provisions) (Applications of Laws Act) 1986 specifically affects the above definitions. (I will refer to that Act as "the Territory Act").

27. By s. 8 of the Territory Act, "the provisions of the Commonwealth Act (other than sections 1, 2, 3, 4 and 5) apply - (a) as if amended as set out in Schedule 1; and (b) subject to and in accordance with this Act, as laws of the Territory". Section 3 of the Territory Act defines "Commonwealth Act" as meaning the Companies and Securities (Interpretation and Miscellaneous Provisions) Act 1980 of the Commonwealth as amended and in force for the time being."
28. Schedule 1 of the Territory Act provides that "the provisions of the Commonwealth Act apply as if - ...
29. In s. 9 of the Commonwealth Act ... (ZE) for the definition of "the Territory" or"the Australian Capital Territory" there were substituted the following: "the Australian Capital Territory" means the Territory accepted by the Commonwealth pursuant to the Seat of Government Acceptance Act 1909 of the Commonwealth and described in the Second Schedule to that Act, and includes the Jervis Bay Territory; "the Territory" means the Northern Territory of Australia;"
30. By s. 5 of the Northern Territory Companies (Application of Laws) Act "the Companies and Securities (Interpretation and Miscellaneous Provisions) (Application of Laws) Act 1981 applies to the; Companies (Northern Territory) Code." See also s. 6.
31. I interpolate here that the reference to "Code" rather than "Act" does not in these circumstances have any significance to the application of the legislation - see the remarks of Martin J. already quoted, and in the definition of "Code" in the Northern Territory Companies and Securities (Interpretation and Miscellaneous Provisions) (Application of Laws) Act 1986: "Code" is therein defined as, the provisions of an Act passed by the Parliament of the Commonwealth pursuant to the Agreement as in force for the time being, being provisions applying, by reason of an Act passed by the Legislative Assembly pursuant to the Agreement, as laws of the Territory" (Emphasis added).
32. By this rather circuitous route one now comes back to sub-paragraph (ii) of s. 562A(1)(b) of the Code and the expression "a provision of a previous law of the Territory with which sub-section 418(1) corresponds" can be read as referring to a previous law of the Northern Territory. The exercise then becomes simply to determine whether s. 306(3) of the Northern Territory Companies Act 1978 corresponds with s. 418(1) of the Code.
33. For completeness however, and lest I should be wrong in my interpretation of sub-paragraph (ii), I have examined sub-paragraphs (iii) and (iv); and I come to the conclusion that, although sub-paragraph (iii) would not apply here, sub-paragraph (iv) does; so that either under sub-paragraph (ii) or sub-paragraph (iv) the same exercise may be undertaken.

• (i) may have misapplied or retained, or may have become liable or accountable for, any money or property of the company; or (ii) may have been guilty of any negligence, default, breach of duty or breach of trust in relation to the company; or (c) the company may be unable to pay its unsecured creditors more than 50 cents in the dollar, the liquidator shall
• (d) forthwith lodge with the Commission a report with respect to the matter and state in the report whether he proposes to make an application for an examination or order under section 541; and (e) furnish the Commission with such information, and give to it such access to and facilities for inspecting and taking copies of any documents, as the Commission requires."

38. There are provisions in the earlier Northern Territory Act which bear similarities to s. 418(1). They are s. 306(2) and (3) of that Act. As previously mentioned, the Notices issued by the Commissioner for Corporate Affairs refer specifically to s. 306(3) of the Northern Territory Act. The Notices claim that the companies are "relevant companies in that under s. 418(1) of the Companies (N.T.) Code (or s.306(3) of the Companies Act 1978 as the case may be)", a liquidator has reported within a 7 years period ... that the companies may be unable to pay their unsecured creditors more than 50 cents in the dollar."
39. Sub-sections (2) and (3) of s. 306 of the 1978 Act read as follows:- "(2) If it appears to the liquidator, in the course of a voluntary winding up, that any past or present officer, or any member of the company has been guilty of an offence in relation to the company for which he is criminally liable, he shall forthwith report the matter to the Attorney-General and shall, in respect of information or documents in his possession or under his control which relate to the matter in question, furnish the Attorney-General with such information, and give to him such access to an facilities for inspecting and taking copies of any documents, as he may require. (3) If it appears to the liquidator, in the course of a winding up, that the company which is being would up will be unable to pay its unsecured creditors more than 50 cents in the dollar, the liquidator shall forthwith report the matter in writing to the Registrar and shall furnish the Registrar with such information, and give to him such access to and facilities for inspecting and taking copies of any document, as the Registrar may require."
40. Now there are some obvious differences between those sub-sections and s. 418(1) of the Code. Both s. 306(2) of the Act and s. 418(1)(a) of the Code impose upon a liquidator a duty to report if any past or present officer or member of the company has been guilty of an offence. S. 306(2) restricts that to the case of a voluntary winding up, whereas s. 418(1) speaks of windings up generally. Under s. 306(2) the liquidator must report to the Attorney-General. Under s. 418(1) he must report to the Commission. S. 306(2) casts on the liquidator a duty to report if any officer or member of a company is suspected of a criminal offence in relation to the company. S. 418(1) extends the class to contributories of the company. S. 306(2) speaks of "an offence in relation to the company for which (a person) is criminally liable". S. 418(1) refers to "an offence under any law of the Commonwealth or of a State or Territory in relation to the company."
41. Turning to a comparison between s. 306(3) and s. 418(1) the former sub-section casts on the liquidator a duty to report if it appears a company being wound up willbe unable to pay its unsecured creditors more than 50 cents in the dollar. S. 418(1)(c) casts that duty upon the liquidator if it appears that the company being wound up maybe unable to pay its unsecured creditors more than 50 cents in the dollar.

In Sackville-West v Viscount Holmesdale (1870) LR 4 HL 543 the House of Lords was called upon to construe in a will certain expressions such as "to correspond as far as may be practicable" and "to correspond as nearly as may be". Lord Cairns at p 576 said: " 'To correspond' does not usually or properly mean 'to be identical with', but 'to harmonize with' or 'to be suitable to' ". 46. In this he was in disagreement with Lord Hatherly L.C. who said, at p 557:- "I cannot admit that the proper meaning of 'corresponding' is 'harmonizing with', or 'being suitable to'. I think such meaning is secondary only. A foot-mark 'corresponds' with the foot when it has been made by it. A copy of an instrument corresponds with the original when the wording and paging, and, if possible, the handwriting agree." 47. His was the dissenting judgment, and though it can at once be acknowledged that the word may well in some contexts have the exactitude which he suggests, I would be more inclined to the broader interpretation espoused by Lord Cairns, and (although this is no doubt somewhat subjective) I am confident that in common parlance the word is used more generally in what Lord Hatherly refers to as its secondary meaning. Furthermore, if the intent of s. 562A(1)(b) was to confine that sub-section to exact counterparts of s. 418(1), it would have been a simple exercise to use an expression such as "sub-section 418(1) or a provision in the same terms", and this has not been done. 48. In the context of s. 562A one must, I think, read it in the broader sense. 49. This is also more consistent with the obvious policy of s. 592A which is concerned with "past history as an indication of present fitness" (per Fullagar J. in Nicholas v Commissioner for Corporate Affairs [1988] VicRp 40; (1987) 11 ACLR 801 at p 812). It becomes a relevant matter that a company has been the subject of a report by a liquidator in circumstances similar to those set out in s. 418(1); since the concern is for "the present and future protection of the public" (per O'Bryan J. at first instance in Nicholas v Commissioner for Corporate Affairs 10 ACLR 792 at 799). 50. In my view and despite the differences I have noted between s. 306(2) and (3) of the earlier Northern Territory Act and s. 418 (1) of the Code in general terms these provisions in the Act and the Code clearly correspond. Most of the differences are no more than necessary changes to bring the earlier sub-sections into line with the provisions of the Code without in any way destroying the general intent. Thus, for instance, the requirement that the liquidator should report to the Attorney-General or the Registrar has been replaced with a requirement that the liquidator should report to the Commission. That in no way alters the objectives in either legislation. Nor do the other differences affect the general thrust of the legislation. At most s. 418(1) does no more than give the liquidator somewhat wider powers than he had under s. 306(2) and (3); but to the same ends. 51. In my view therefore the companies in the present case are "relevant companies"; and, since each plaintiff was a director of the relevant companies at a time during the period of 12 months ending on the date of the commencement of the winding up of the companies, he or she is therefore a "relevant person". The Commission therefore is properly empowered to act under s. 562(A)(2) and serve on each of them, as it has done, a notice to show cause why a notice under sub-section (3) should not be served on them. 52. The provisions of s. 562A do not contradict or cut across the provisions of s. 35 of the Northern Territory Companies (Application of Laws) Act (previously referred to). The companies concerned can continue to be wound up under the earlier Act without s. 562A affecting that process in any way. 53. Mr Stirk has valiantly tried to distinguish Nicholas v Commissioner for Corporate Affairs by submitting that the words "the commencement of the winding up of the company" in s. 562A(1)(c) must refer to the commencement of a winding up which took place under the Code. He submits that that point was not decided in the above case and, indeed, he contends that certain remarks of Fullagar J. support his argument. The passage he relies on appears at 11 ACLR p 815 and it is this:- "These considerations were in the course of argument put to Mr Beaumont and, in the course of his reply, he further contended that, in s562A(2), the requirement that the person served 'is' a relevant person must be construed as if the person is required to achieve the status of a relevant person on or after commencement of the new section. But this contention, which I would accept as literally correct, does not extricate his client from his difficulty because, by s562A(1)(c), he becomes a relevant person on or after commencement of the new section by reason of having been a director of a company 'at any time during the period of 12 months ending on the date of the commencement of the winding up of the company', that is to say, by reason of events described in such a way that they do not admit of a construction which excludes the happening of past events as criteria of the section's

operation." 54. Mr Stirk refers to the submission that "the requirement that the person served "is" a relevant person must be construed as if the person is required to achieve the status of a relevant person on or after the commencement of the new section". Mr Stirk relies strongly on the comment of Fullagar J. that this was "literally correct". Therefore, Mr Stirk argues, the plaintiffs in this case are not relevant persons because the winding up of the companies did not take place on or after the commencement of the new section. 55. But this seems to ignore entirely the tenour of His Honour's reasoning in the later part of the passage quoted. What His Honour was saying (as I understand him) was that by reason of the happening of past events (which come within the ambit of the section) a person can be a relevant person for the purposes of the section. True, that cannot take place before the commencement of the Code. But once the Code comes into operation and if that person fits within the description, albeit by reason of past events, then he "is" a relevant person. 56. With all respect to Mr Stirk's considerable ingenuity it seems to me that His Honour was saying exactly the opposite to that for which Mr Stirk contends. 57. Mr Stirk has also relied on the case of Russell Halpern Nominees Pty Ltd v Martin (1986) 10 ACLR 539. There the Full Court of Western Australia had to interpret s. 556(1) of the (W.A.) Companies Code which rendered a director liable for debts incurred by a company when there were reasonable grounds to expect that the company would not be able to pay its debts as and when they became due. One of the submissions made was that under that provision a debt falling due before 1 July 1982 (being the date the Code came into operation in Western Australia) was governed by the operation of s. 556(1) operating retrospectively and a director would therefore be liable. That argument was rejected. Burt C.J. said:- "It is then said that so much of that debt as became payable before the Code came into operation can now be recovered by the appellant under sec. 556(1) of it because that section has a retrospective operation. This is said to be so because the debt owing at that time could have been recovered under sec. 374C of the Companies Act and that being so, sec. 556(1) of the Code should be regarded as a procedural provision. That submission cannot sustain any serious consideration. The right of recovery created by sec. 556(1) of the Code has no counterpart in the Companies Act. It is entirely new and there can be no basis for holding that the Code provision applies to debts incurred before the Code came into operation." 58. That, in my view, was a very different situation to the present one where s. 562A(I)(b) is applicable where the appropriate correspondence between s. 418(1) and other legislation can be shown and which clearly has retrospective operation. 59. For these reasons the Summons will be dismissed, the plaintiffs to pay the defendant's costs to be taxed in default of agreement.