State of Victoria v Robertson & Anor [2000] VSCA 113

Court of Appeal (Vic)|2000-06-23|Before: CALLAWAY, BATT and BUCHANAN, JJ.A.

ACCIDENT COMPENSATION - Common law proceeding commenced after 11 November 1997 - Subsequently enacted amendment prohibiting commencement unless additional steps taken - Amendment "deemed to have come into operation on 12 November 1997" - No room for presumption against retrospectivity - Amendment applicable to existing proceeding - Proceeding incompetent - Accident Compensation Act 1985, ss.135A(2DE), (6A), (18A) and (18B) and 138A; Accident Compensation (Amendment) Act 1996, s.32(2); Accident Compensation (Miscellaneous Amendment) Act 1997, s.2(2); Interpretation of Legislation Act , and (1) and (3).

I agree with Batt, J.A. that the words of s.2(2) of the Accident Compensation (Miscellaneous Amendment) Act 1997 mean what they say: the amendments made, by s.47, to s.135A of the Principal Act are deemed to have come into operation on 12th November 1997. Accordingly the law on that date must be taken to have included a provision that a worker "must not commence proceedings" unless certain conditions are satisfied. It is not as if an obligation were imposed on the worker to satisfy those conditions, as one of the parties submitted. Their satisfaction was simply a condition precedent to the valid institution of proceedings. As they were not satisfied, the proceedings in fact instituted must now be taken to have been invalid.

It is unnecessary to consider what the position would have been in the absence of sub-s.(6A), which was inserted in s.135A at the same time. Although it confers a discretion on the Authority[1], that provision provided a remedy against the apparent injustice of which the first respondent complains. It may be, however, that the result would be the same even in the absence of sub-s.(6A). As counsel for the appellant pointed out, Parliament retrospectively abolished common law rights arising on or after 12th November 1997. It would not have availed a worker injured on or after that date to have commenced proceedings before the 1997 Act received the Royal Assent.

There is, without disrespect to counsel's arguments, nothing in the contentions sought to be built on sub-ss.(18A) and (18B) and on s.32(2) of the Accident Compensation (Amendment) Act 1996. The argument from inconvenience, having regard to the date of the Royal Assent, cannot prevail against the clear intendment of the statute.

I agree, too, in the orders that Batt, J.A. proposes.

This is an appeal, by leave granted on 17 December 1999, by the State of Victoria, the second-named defendant below, from an order of a judge of the County Court made on 9 November 1999 dismissing its application for an order pursuant to Rule 23.01(1)(a) of the County Court Rules that the proceeding brought in the County Court at Bairnsdale against it and the second-named respondent, W.B. & E. Robertson Pty. Ltd., the first defendant below, by the first respondent, Elaine Lorraine Frances Robertson, as plaintiff, be dismissed on the ground that no cause of action was disclosed. I shall for convenience mostly refer to the parties by their descriptions below.

In the proceeding the plaintiff alleges that she suffered injury on or about 1 January 1996 when she fell down a flight of stairs in the course of her employment as a cleaner with the first defendant at school premises at Orbost occupied by the second defendant. She alleges that her fall was caused by negligence for which one or other of the defendants was responsible and additionally, in the case of the second defendant, by its failure to satisfy the standard of care specified for occupiers by s.14B(3) of the Wrongs Act 1958.[2]

On 12 November 1997 the Treasurer made in the Legislative Assembly the Second Reading Speech in support of the Accident Compensation (Miscellaneous Amendment) Bill, the principal purpose of which was, by proposed s.134A of the Accident Compensation Act 1985 ("the Act"), to abolish the entitlement of workers injured on or after that date to recover damages of any kind in proceedings at common law.[3] With respect to workers injured before that date the Bill, by proposed s.135AC of the Act, provided a terminal date of 31 December 2000 or, if later, the expiration of three years after the incapacity arising from the injury became known, for the bringing of common law proceedings for the recovery of damages and, in addition, by proposed amendments to s.135A of the Act, imposed additional pre-requisites to the bringing of any such proceeding. It is with certain of those amendments that this appeal is concerned.

On 17 November 1995 a determination was made on behalf of the Victorian WorkCover Authority, pursuant to s.135A(3) of the Act, that the plaintiff's degree of impairment was 30 per cent or more. She was accordingly deemed to have a "serious injury". On the law as it stood at that date that was all that was required by s.135A as a pre-requisite to a worker's bringing proceedings for the recovery of damages at common law[4]. On 12 December 1997 the plaintiff commenced such a proceeding in the County Court against the first defendant alone, being the proceeding already mentioned.

On 23 December 1997 the Accident Compensation (Miscellaneous Amendment) Act 1997 ("the amending Act") received the Royal Assent as Act No.107 of 1997. We were informed that, so far as material, it is in the same form as the Bill. Three amendments to s.135A and one other amendment require to be set out. By s.47(5) it introduced into s.135A of the Act a new sub-s.(2DE), which provides:

"(2DE) The worker must not commence proceedings in accordance with this section, other than ... the commencement of [sic] of proceedings with the consent of the Authority under subsection (6A), unless ..."

various conferences have been held and offers made. Secondly, by s.47(8) the amending Act inserted in s.135A a new sub-s.(6A), which provides:

"(6A) If, on the application of a worker, the Authority is satisfied that - (a) the worker is unable to commence proceedings in accordance with this section because of the operation of subsection (2DE) ...; and (b) the failure to comply with subsection (2DE) ... was not due to any fault or omission of the worker or the worker's legal representative - the Authority may consent to the commencement of the proceedings ..."

Thirdly, by s.47(11) the amending Act inserted new sub-ss.(18A) and (18B). They provide:

"(18A) If - (a) a written application for a determination under sub-section (3) was made before 12 November 1997 by a worker to the Authority, an authorised insurer or self-insurer; and (b) the advice of the Authority, authorised insurer or self-insurer was not given before that date; and (c) the period of 60 days after the application was received by the Authority, authorised insurer or self-insurer expires on or after that date - the Authority, authorised insurer or self-insurer must advise the worker in accordance with sub-sections (2D) and (2DA) within 120 days after receiving from the worker - (d) a copy of all medical reports; and (e) affidavits attesting to such other material - existing when the worker gives copies of any such reports and affidavits to the Authority and of which the worker or his or her legal representative is aware and on which the worker intends to rely, or the substance of which the worker intends to adduce in evidence, in proceedings in accordance with this section or in any related proceedings. (18B) If sub-section (18A) applies to an application, this section, as amended by section 47 of the Accident Compensation (Miscellaneous Amendment) Act 1997, applies, subject to sub-section (18A), as if the application had been made under this section as so amended."

Until the enactment of the amending Act a worker applying for a determination of the degree of impairment did not need to furnish medical reports and affidavits (as now required by sub-s.(2BA), inserted by the amending Act) and the Authority, authorised insurer or self-insurer had, under sub-s.(2B), 60 days from receipt of a written application for a determination in which to make it, instead of 120 days (which sub-s.(2B) was amended to afford).

Section 51 of the amending Act inserted after s.138 a new s.138A, which provides:

"138A. Substantive law For the avoidance of doubt, it is hereby declared that all the provisions of this Division contain matters that are substantive law and are not procedural in nature."[5]

By s.2(2) of the amending Act ss.47 and 51, amongst others, "are deemed to have come into operation on 12 November 1997".

The plaintiff on 26 February 1999 obtained leave to add the second defendant as a defendant to the County Court proceeding and on 12 March 1999 served an amended statement of claim containing allegations against it.[6]

None of the procedures required by s.135A(2DE) has been undertaken. The first defendant initially pleaded in paragraph 9 of its defence that by virtue of that provision the plaintiff had no entitlement to bring the County Court proceeding. Although at a later stage the solicitors for the first defendant seemed to suggest that the Authority had exercised powers under s.135A(6A) to allow the plaintiff to continue with her proceeding, by the time the hearing of the second defendant's application was completed the solicitors had clarified the position: consent had not in fact been granted under s.135A(6A), though the Authority did not intend to raise any issue as to the validity of the County Court proceeding and in fact the first defendant would seek leave, as they said, to have the paragraph "struck out". As part of the order appealed from, that paragraph was struck out.

It was common ground that sub-ss.(18A) and (18B) of s.135A were not applicable in this case: paragraph (b) of sub-s.(18A) was not satisfied since the determination was not made until 17 November 1997. The plaintiff and the first defendant in addition contended that the evidence did not show that paragraphs (a) and (c) were satisfied. It is unnecessary to consider that contention.

There were two other matters of common ground before us, though not, it would seem, below. First, a plaintiff who has satisfied the pre-requisite or pre-requisites under s.135A to the bringing of common law proceedings against a defendant does not need to satisfy the pre-requisite or pre-requisites again before being entitled to an order adding another defendant. Secondly, where a worker suffers injury on or after 1 December 1992 arising out of, or in the course of, or due to the nature of, employment, the worker cannot maintain proceedings against a person who was not his or her employer to recover damages in respect of that injury unless the pre-requisite or pre-requisites required by s.135A have first been satisfied, and this is so even if the non-employer defendant is the only defendant. This is because, since the injury in fact arises out of or in the course of, or is due to the nature of, employment, proceedings in respect of it for the recovery of damages, whether for pecuniary or non-pecuniary loss, against whomsoever they may be brought, are prohibited by s.135A(1)(a) and (b) except, so far as relevant, as permitted by and in accordance with s.135A: cf. Farrar v. Western Metropolitan College of TAFE[7] and Kidman v. Sefa[8]. Accordingly, the second defendant, although it was not the plaintiff's employer, has an interest in any pre-requisite under s.135A to common law proceedings and is entitled to complain of any non-compliance.[9]

In dismissing the second defendant's application the County Court judge held in substance that s.135A(2DE) did not apply to a proceeding already commenced when the amending Act received the Royal Assent. She treated the amendments as being procedural in nature and as not rendering unlawful that which was previously lawful. She took the view that the fact that the amending Act did not refer to proceedings already on foot meant that sub-s.(6A) had no application to them and that the legislature did not intend that they should be subject to compliance with sub-s.(2DE). Her Honour was confirmed in that view because, since the "response date"[10] would have expired before the amending Act received the Royal Assent, the plaintiff could not comply with the provisions of sub-s.(2DE). Whilst acknowledging that the time-table would have been very tight, I may say at this point that I do not agree that compliance was an impossibility; for the 21 days after the response date in which to begin a conference did not in this case expire until 5 January 1998. Even where a "favourable" determination under sub-s.(3) was made on 12 November 1997 itself, the period would not have expired until 30 December 1997.

The question for decision, as counsel for the appellant said, is whether s.47 of the amending Act, deemed to have come into operation on 12 November 1997, was retroactive in operation so that the writ filed must be regarded as incompetent even though it was originally properly filed in accordance with the Act before its amendment by the amending Act. In my opinion, for the reasons which follow, that question must be answered affirmatively.

The rule at common law, no doubt, is that a statute ought not to be given a retrospective operation where to do so would affect an existing right or obligation unless the language of the statute expressly or by necessary implication requires such construction, though there is no presumption against retrospectivity in the case of statutes which affect mere matters of procedure: Rodway v. The Queen[11]. But on the natural and ordinary meaning of s.2(2) of the amending Act it is clear that s.47, not to mention s.51, operates retrospectively from 12 November 1997, and does so in the stricter sense of that word stated by Buckley, L.J. in West v. Gwynne[12] and adopted by Jordan, C.J. (with whom Davidson and Halse Rogers, JJ. agreed) in Coleman v. The Shell Company of Australia Ltd.[13] in a passage which was in turn approved by McHugh and Gummow, JJ. in The Commonwealth v. SCI Operations Pty. Ltd.[14], in that it provided that "as at a past date the law shall be taken to have been that which it was not". In other words, retrospective effect has been achieved, not by what Brooking, J. in R. v. Marshall; ex parte Baranor Nominees Pty. Ltd.[15] called "internal regulation", but, to use his Honour's words, "by providing that ... some section[s] of [the Act] should be deemed to have come into operation on a day already past". Many examples of that method of drafting can be found in the legislation of the Parliaments of the Commonwealth and the Australian States, particularly in the last few decades, notably in the fields of customs tariffs[16], other revenue laws and remedial laws. As an example may be mentioned s.2(4) of the Taxation Acts Amendment Act 1987 of Victoria, providing that a certain section of it was "deemed to have come into operation on 30 June 1985", which was considered by the High Court in Commissioner of State Revenue (Vict.) v. Royal Insurance Australia Ltd.[17]. There Brennan, J. (with whom Toohey and McHugh, JJ. agreed) pointed out[18] that if the amendment was to be effective retrospectively the rights and liabilities of the Commissioner and those who overpaid money must be so altered as to place them in the same position as they would have been in had the duty abolished by the 1987 amendment not existed during the period of the retrospective operation of that amendment.[19] Kidman, discussed later, and Millner v. Raith[20] furnish examples in the criminal field, with conduct lawful at the date it was engaged in later becoming a crime by virtue of an Act deemed to commence on or before that date.

Whilst s.2(2) clearly, in my opinion, is the critical provision, I would acknowledge that its meaning and effect must be determined by reference not only to its text but also to its context, in which I would include the amendments made by the amending Act. To my mind, that context only serves to confirm the natural and ordinary meaning of s.2(2). I mention at this stage three contextual indications. First, there are in the amendments made by the amending Act to Division 9 of Part 4 of the Act at least six references to the date 12 November 1997. This re-enforces the notion that that date is pivotal in the operation of the amendments. Secondly, the new s.138A, providing in substance that all the provisions of the Division are substantive rather than procedural, supports the view that the Legislature did intend to make changes that were significant and such as might include retrospective changes. In so far as the insertion of sub-s.(2DE) might be said to have taken away a "vested right" of the plaintiff, s.138A tends to show that that was intended. Thirdly, the amendments to s.135A were made in the context of the enactment of the prohibitory and clearly retrospective s.134A. It could not be suggested that a worker injured on or after 12 November 1997 who before 23 December 1997 had commenced proceedings for recovery of damages could continue them. Why, then, should the lesser restrictions of the amended s.135A have qualifications read into them? As will appear when I consider certain contextual arguments of the respondents, the enactment and terms of the new sub-ss.(18A) and (18B) of s.135A lend additional contextual support to the conclusion I have expressed.

In my view, in short, the intention that the amendments made by s.47 of the amending Act should operate retrospectively is manifested with quite sufficient clarity. There simply is no room for the application of the presumption against giving the legislation a retrospective construction.[21] In Kidman the High Court held valid an amendment made in 1915 to the Crimes Act 1914 (Cth.) creating and penalising the statutory offence of conspiring to defraud the Commonwealth, where the amendment was deemed to have come into force from the date of commencement of the 1914 Act. No question of validity arises here[22], but the words of Higgins, J.[23] are applicable. His Honour said:

"There is no doubt that the Act of 1915 was meant to be retrospective; and therefore the numerous cases which lay down the principle of construction against retrospective or retroactive operation are inapplicable."

Likewise, any possible operation of s.14(2) of the Interpretation of Legislation Act 1984 is excluded since it is expressed to operate "unless the contrary intention expressly appears" and that intention does appear here.

As appears from what follows in this paragraph, it is no objection, if it be the case, that an amendment affects pending proceedings. Contrary to her Honour's view, a retrospective amendment does not have to refer expressly to pending actions in order to affect them: it is sufficient if the necessary intendment of the Act is to affect them: Bawn Pty. Ltd. v. Metropolitan Meat Industry Board[24], applying Hutchinson v. Jauncey[25], which the Privy Council expressly approved in Zainal bin Hashim v. Government of Malaysia[26] and applied[27] even where the action started had got to the stage of judgment being given and under appeal when the amendment was made. The Privy Council in that case expressed the view[28] that for pending actions to be affected by retrospective legislation the language of the enactment must be such that no other conclusion is possible than that that was the intention of the legislature. Here the necessary intendment of s.2(2) of the amending Act and the amendments to s.135A is that sub-s.(2DE) applies to proceedings pending as at 23 December 1997. No other conclusion is open.[29]

Mere considerations of injustice or inconvenience that might flow from the amendments if retrospective, and particularly if applying to proceedings pending on 23 December 1997, must be immaterial in the face of the clear intendment of the amending Act. But any injustice or inconvenience should, to a considerable extent, be mitigated by the fact that, once the very well publicised amendments had come into force, it was open to the plaintiff (and indeed any other plaintiff worker injured on or after 1 December 1992 and before 12 November 1997)[30] to discontinue the proceeding and, armed with the determination under s.135A(3) (or equivalent), to enter upon the procedure of conference and offers ordained by sub-s.(2DE). Moreover, if in the circumstances in which the plaintiff (or any other such plaintiff) found himself or herself, the plaintiff was unable to commence new proceedings because of the operation of sub-s.(2DE) where non-compliance with it was not due to fault or omission of the plaintiff or the plaintiff's legal representative, the Authority's consent to the commencement of proceedings notwithstanding non-compliance with sub-s.(2DE) could be sought under sub-s.(6A). That sub-section thus may be seen as a form of transitional provision. Sub-section (2DE), in referring to sub-s.(6A), itself suggests this. It is true that, on the footing on which the appeal was argued[31], the Authority has a discretion to grant or withhold consent. But there may well be circumstances in which the discretion could be exercised only favourably to the worker, so that a decision refusing consent may be able to be successfully reviewed as a matter of administrative law.[32] But, even if that were not so, it would simply reduce the mitigatory effect of sub-s.(6A) upon the clearly intended retrospective operation of sub-s.(2DE).

In coming to the conclusion which I have stated above I have taken into account the various arguments advanced by the respondents in support of the judgment below. But I must now discuss them briefly. The principal argument, as it seemed to me, was that, whatever may have been the position if it had not been enacted, sub-s.(18B) of s.135A implies that, but for sub-ss.(18A) and (18B), the amended provisions of s.135A would not have applied to (as I understood the argument) steps taken before 23 December 1997, and if, as here, the cumulative requirements of sub-s.(18A) were not satisfied, the amended provisions did not apply. I do not accept that sub-s.(18B) warrants that implication. Given the terms of s.2(2) of the amending Act, the suggested implication, if sound, would constitute a remarkable instance of the tail wagging the dog. For sub-ss.(18A) and (18B) are ancillary, and therefore subordinate, provisions. The former is a transitional provision concerned with a pending properly-made application for determination of the degree of impairment the time for determining which under the pre-existing law had not expired at 12 November 1997. It adapts the law previously applicable to such an application to the law as amended. Sub-section (18B) complements that by making the section as amended apply, subject to sub-s.(18A), to the application and, as I read sub-s.(18B), to all that may follow it as if the application had been made under the section as amended. The two sub-sections in question, then, clarify how a particular pending matter is to be dealt with. But, far from founding the implication suggested, they carry the retrospectivity of the amendments back beyond 12 November 1997 by making them apply, with some modification, to something that had been done before that date. They furnish indeed an example of retrospectivity by "internal regulation", mentioned in R. v. Marshall.

The first defendant relied on s.32(2) of the Accident Compensation (Amendment) Act 1996, by which s.135A as amended by that section "applies in respect of any proceedings brought on or after the commencement" of the section. This, it was said, preserved s.135A before its amendment by the amending Act for the benefit of the plaintiff. The submission flies in the face of the theory of legislation. It proves too much. It would set at nought not only all later amendments to s.135A but the new s.134A abolishing common law rights of action in respect of injuries suffered after 12 November 1997. (An attempt was made to distinguish s.134A from s.135A as amended by the amending Act on the basis of the existence in the former of the expression "in proceedings commenced". But, whilst that expression might bear on the question whether amendments affected pending proceedings, it did not meet the criticism of the argument based on s.32(2) of the 1996 Act. If anything, it showed the invalidity of the argument.) The plain fact is that s.32(2) was by implication partially repealed: it did not apply to proceedings brought after the date of later amendments to s.135A. The citation for the first defendant of a similar provision (s.11(5)) in the later-enacted and relevantly later-commencing Accident Compensation (Further Amendment) Act 1996 seemed to be an acknowledgment of this. Section s.32(2) of the earlier 1996 Act was impliedly repealed in part by s.11(5) of the later 1996 Act and was otherwise impliedly repealed in part by the amendments made by the amending Act. The object of ss.32(2) and 11(5) was to ensure that proceedings commenced before the amendments with which they were associated were not affected by those amendments.

Then the "general proposition" referred to by Bowen, L.J. in Reid v. Reid[33] and cited in a number of textbooks on statutory interpretation, "that you ought not to give a larger retrospective power to a section, even in an Act which is to some extent intended to be retrospective, than you can plainly see the Legislature meant", was invoked. It was also said that a qualification relating to existing proceedings should be read into s.2(2) of the amending Act. Reliance, too, was placed upon the statement by Williams, J. in Jackson v. Woolley [34] that it would require "words of no ordinary strength" to take away a vested right of action. What I have said earlier, I believe, sufficiently answers these arguments: the conclusion that s.135A(2DE) applied to the plaintiff's proceeding is inescapable. I would only add that, assuming that the plaintiff had, immediately before 23 December 1997, a vested right of action, s.2(2) of the amending Act, supplemented, if need be, by the other considerations to which I have earlier referred, furnishes the necessary "words of no ordinary strength" to take away that vested right. Finally, it was said that the Authority's power under s.135A(6A) was entirely discretionary and its exercise very difficult to challenge. As I have stated earlier, if those points be correct, they do not render sub-s.(2DE) inapplicable to the plaintiff's proceeding, but simply reduce its mitigatory effect. My conclusion does not depend upon the existence of sub-s.(6A).

The result of the 1997 legislation is that, when considered at any time on or after 23 December 1997, the plaintiff's proceeding is seen to have been commenced in breach of the qualified prohibition against commencement contained in s.135A(2DE) from 12 November 1997. This means that the common law cause of action which arose upon the making of the determination on 17 November 1997 was extinguished on 23 December 1997: Swannell v. Farmer[35]. The second defendant's summons sought the dismissal of the proceeding as against it. There was no opposition to relief in that form if the second defendant's argument on statutory construction succeeded, as it has. Accordingly, I would substitute an order granting that relief.

I record that Mr. Corrigan for the second defendant distinctly, and in my view correctly, refrained from submitting that s.135A(2DE) applied to the proceeding for the recovery of damages of a worker injured on or after 1 December 1992 who, after obtaining an appropriate determination under sub-s.(3), had commenced the proceeding before 12 November 1997.

For the foregoing reasons I would allow the appeal, set aside the order below and in lieu thereof order that the proceeding be dismissed as against the second defendant.

In my opinion the appeal should be allowed for the reasons stated by Batt, J.A., and orders made as his Honour proposes.

[1] Section 45(1) and (3) of the Interpretation of Legislation Act 1984 probably excludes a Finance Facilities construction (Finance Facilities Pty. Ltd. v. Federal Commissioner of Taxation [1971] HCA 12; (1971) 127 C.L.R. 106) of sub-s.(6A) but not the argument that the discretion could often be exercised only in one way.

[2] As to such a claim against an occupier, see Secretary to the Department of Natural Resources & Energy v. Megan Elizabeth Harper [2000] VSCA 36 at para.39.

[3] Section 135A of the Act at that date applied to injuries suffered on or after 1 December 1992: sub-s.(2)(a). The Bill proposed to amend it consequentially so as in sub-s.(1) to restrict such application to injuries suffered before 12 November 1997.

[4] But it was necessary to show therein that the employment was a significant contributing factor to the injury.

[6] By Rule 9.11(3)(a) the proceeding against a new defendant commences upon the amendment of the filed originating process within 10 days. It appears that the writ was not amended, but no point was taken about this irregularity.

[9] Sub-section (2DE) does not require any participation by or even dealing with a non-employer.

[10] Defined in sub-s.(19), as amended, as the date 28 days after the "determination date", which in turn is likewise defined as the date on which the injury is, relevantly, determined to be serious.

[14] [1998] HCA 20; (1998) 192 C.L.R. 285 at 309. See also The King v. Kidman (1915) 20 C.L.R. 424 at 443, per Isaacs, J.

[16] An early and instructive case is Jamieson v. Attorney-General (1833) 1 Alcock & Nap.375.

[19] See also University of Wollongong v. Metwally [1984] HCA 74; (1984) 158 C.L.R. 447 at 478 and SCI Operations at 323, and, for a retrospective validating Act, Taylor v. Anstis [1940] VicLawRp 49; [1940] V.L.R. 300 ("is and always has been validly constituted").

[21] Cf. Polyukhovich v. The Commonwealth [War Crimes Act Case] [1991] HCA 32; (1991) 172 C.L.R. 501 at 643 (where the legislation was of an "internal regulation" kind).

[22] Cf. Kidman at 448 and 463 as to State legislation.

[23] at 448. Similarly, Pearce & Geddes, Statutory Interpretation in Australia, 4th edn., para.[10.2].

[24] (1970) 72 S.R.(N.S.W.) 466, C.A., where there is a detailed review of the cases. The principle was accepted in Skorpos v. Development Assessment Commission (1995) 64 S.A.S.R. 51; District Council of Angaston v. Hamilton (1995) 64 S.A.S.R. 110; and Continental Liqueurs Pty. Ltd. v. G.F. Heublein & Bro. Inc. [1960] HCA 37; (1960) 103 C.L.R. 422 at 426-7, but treated as exceptional and held not to be satisfied. The decision of Kitto, J. on the point in the latter case was reversed in G.F. Heublein & Bro. Inc. v. Continental Liqueurs Pty. Ltd. [1962] HCA 66; (1962) 109 C.L.R. 153 at 159-162 on the ground that the new Act's saving provisions, which did not apply to the existing proceeding, were exhaustive.

[25] [1950] 1 K.B. 574 at 579, where Evershed, M.R. doubted the statement of Jessel, M.R. in In re Joseph Suche & Co. Ld. (1875) 1 Ch.D. 48 at 50 that an express statement of application to pending actions was required.

[28] applied in United Malayan Banking Corporation Berhad v. Pemungut Hasil Tanah [1985] A.C. 180 at 188.

[29] It is for this reason that it is not possible to apply to the plaintiff's action by analogy the principle enunciated by the Privy Council in Colonial Sugar Refining Co. Ltd. v. Irving [1905] A.C. 369 in relation to a right of appeal in a pending action, namely, that in the absence of express enactment or necessary intendment a statute abolishing the appeal or transferring it to a new tribunal does not deal with a mere matter of procedure and is therefore not retrospective.

[30] Each such person had, at the least, nearly another year before the period of limitation expired: Limitation of Actions Act 1958 s.5(1A).

[31] Compare s.45(1) and (3) of the Interpretation of Legislation Act 1984 and contrast Finance Facilities Pty. Ltd. v. Federal Commissioner of Taxation [1971] HCA 12; (1971) 127 C.L.R. 106 and like cases concerned with provisions to the effect that if a functionary is satisfied of some matter the functionary "may" take a certain step, in particular Commissioner of State Revenue (Vict.) v. Royal Insurance Australia Ltd.

[32] The Act by s.39(1) gives the County Court exclusive jurisdiction to determine any question arising out of a decision of the Authority. But sub-s.(1A), inserted by the amending Act with effect from 12 November 1997, provides that sub-s.(1) does not apply in respect of a decision of the Authority under s.135A(6A). It is unnecessary to decide whether the Supreme Court or the County Court or neither would have jurisdiction to entertain an application to review a decision under s.135A(6A). See also ss.62 and 63 of the amending Act.

[35] [1998] VSCA 104; [1999] 1 V.R. 299; special leave refused 10 May, 1999.

At a glance

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Judgment (72 paragraphs)

Parties