'Attributable'. That means capable of being attributed. 'Attribute' has a number of cognate meanings; you can attribute a quality to a person or thing, you can attribute a product to a source or author, you can attribute an effect to a cause. The central element is connection of some kind.
34 Donaldson MR then proceeded:
Suffice it to say that these are plain English words involving some causal connection between the loss of employment and that to which the loss is said to be attributable. However, this connection need not be that of a sole dominant direct or proximate cause and effect. A contributory causal connection is quite sufficient.
35 The other case referred to by Mr White was the judgment of the High Court of Australia in Roncevich v Repatriation Commission (2005) 222 CLR 115, in which, in a joint judgment of McHugh, Gummow, Callinan and Heydon JJ, it was said (at 27) with reference inter alia, to Walsh v Rother District Council:
The use disjunctively in s 70(5) of the expressions 'arose out of' and 'attributable' manifest a legislative intention to give 'defence cause' a broad meaning and certainly one not necessarily to be circumscribed by considerations such as whether the relevant act of the appellant was one that he was obliged to do as a soldier. A causal link alone or a causal connection is capable of satisfying a test of attributability without any qualifications conveyed by such terms as 'sole', 'dominant', 'direct' or 'proximate'.
36 Each of those cases depended on the statutory context in which the term "attributable" was used. The statutory context here is informed, in the case of ambiguity, by the extraneous material to which I have referred. That extraneous material - together with identification of the mischief intended to be remedied, both by the 1995 amendments and by the 1992 amendments - facilitates a conclusion that Parliament intended, by the concept of amounts "attributable to" particular days, amounts that accrued on or in respect of those days.
37 As Beach J pointed out in International Harvester, retrenchment pay does not accrue or arise over a period. It accrues or arises upon a particular event. That event is the fact which triggers the entitlement to retrenchment pay - not the original entry into the service from which the entitlement potentially arises, but may never arise if the applicable circumstances triggering the entitlement do not occur.
38 In this case, Mr Sturesteps had no entitlement to retrenchment pay until he was actually retrenched. The 1999 Employment Agreement gave him no more than a potential entitlement to retrenchment pay, which it had not accrued before he became a director, did not accrue while he was a director, and accrued or arose only when his employment was terminated, after he ceased to be a director.
39 The date upon which it accrued or arose - or in the language of the legislation, the date to which it was attributable - was not a non priority day. In my view, none of the clause 17.1 payment was attributable to a non priority day. It was attributable to the fact and date of his termination, which did not occur on a non priority day but occurred after he had ceased to be a director.
40 I do not consider that this conclusion undermines or is inconsistent with the basic policy of the 1985 amendments and the exclusion from priority claims of employees while they are directors. As I have sought to illustrate, the prime policy reflected in those amendments was to ensure that directors were disincentivised from continuing the trading of insolvent companies. Once a director ceases to be a director, there is no further need for the application of such a policy to a person who remains an employee.
41 Accordingly, my conclusion is that none of the clause 17.1 payment is attributable to a non priority day. The whole of it is entitled to priority under s 556(1)(h).
Interest
42 I turn then to the second issue, which is whether interest should be included in the amounts to which I have held Mr Sturesteps is entitled to receive.
43 Corporations Act 2001, s 563B, relevantly provides as follows:
563B Interest on debts and claims from relevant date to date of payment
(1) If, in the winding up of a company, the liquidator pays an amount in respect of an admitted debt or claim, there is also payable to the debtor or claimant, as a debt payable in the winding up, interest, at the prescribed rate, on the amount of the payment in respect of the period starting on the relevant date and ending on the day on which the payment is made.
(2) Subject to subsection (3), payment of the interest is to be postponed until all other debts and claims in the winding up have been satisfied, other than debts owed to members of the company as members of the company (whether by way of dividends, profits or otherwise).
44 Section 563B largely reflects the scheme that debts and liabilities are to be admitted at the value which they have at the relevant date (typically, the commencement of the winding-up), that all bear interest once all are satisfied in full, but if not satisfied in full do not bear interest. Under that scheme there is no room for interest pursuant to section 563B in respect of the Mr Sturesteps' claim. Mr Sturesteps accepts that section 563B governs any claim for interest against C & G, but puts his claim as against its liquidators, the first and second defendants, personally, on the basis that they ought to have paid him earlier and that their wrongful rejection of its claim has kept him out of funds in the meantime, all the moreso in the context that other priority creditors, in particular former employees of C & G, were paid their entitlements promptly following termination of their employment.
45 I am inclined to accept, without presently having to decide, that upon an inquiry under Corporations Act, s 536, into the conduct of a liquidator, the court could make an order in the nature of interest to compensate a person aggrieved for having been kept out of funds due to some default of the liquidator. However, there is no such inquiry before the court. These proceedings have not, other than coincidentally, examined the conduct of the liquidators, but merely the correctness of their decision to reject the plaintiff's proof of debt. There has been no need, in these proceedings, for the liquidators to adduce evidence or otherwise take steps, to explain or justify the course of action that they have adopted. It would be quite inappropriate, in that context, to impose any personal liability on them, for what has turned out to be erroneous decision to reject Mr Sturesteps' claim, without prior examination of their conduct in question and upon appropriate notice to them that it was under review.