Transport Accident Commission v Lanson & Anor [2001] VSCA 84

2. I agree with Phillips, J.A. that this appeal should be dismissed and, in the main, for the reasons which his Honour gives.

5. In 1986 the Transport Accident Act (Act No. 1119 of 1986) ("the Act") introduced into this State (in replacement for the Motor Accidents Act 1973) a scheme of "no fault" compensation for persons injured as a consequence of a transport accident and for dependent spouses and children of those who died as a consequence of such an accident. By s.93 the Act also gave a limited right to those who suffered "serious injury" in a transport accident to claim common law damages in respect of that injury; and a limited right to those so entitled to recover damages under Part III of the Wrongs Act 1958 in respect of the death of a person as the result of a transport accident.

8. For the purpose of administering the scheme created by the Act the Transport Accident Commission (TAC) was constituted. The Act imposed an obligation upon the TAC to pay statutory benefits as follows:

(a) Pursuant to ss. 44 and 45, to pay weekly benefits to injured "earners" who, as a result of the transport accident, had totally lost or partially lost their earnings for a period up to 18 months after the transport accident.

(b) Sections 47 and 48 imposed an obligation to pay "impairment benefits" whether by way of "lump sum" or "annuity" to persons injured in a transport accident and who had suffered a degree of impairment of more than 10%. These "impairment benefits" were to be calculated in accordance with formulae set out in the Act.

(c) Additionally the Act obliged the TAC to pay continuing weekly benefits after the period of 18 months following the accident to injured "earners" who, as a result of the accident, had totally lost or partially lost their earning capacity (ss.49 and 50).

(d) Section 51 also imposed a liability upon the TAC to make weekly payments to certain "non-earners" after the initial period of 18 months where such persons had been injured in a transport accident and had, as a consequence, suffered a loss of earning capacity (s.51).

(e) Section 54 further imposed on the TAC an obligation to make weekly payments in accordance with a specified formula to "minors" (defined as persons under 18 years who were "non-earners") who had suffered a "degree of impairment" of more than 10%. Such benefits were payable after the first 18 months following the accident until the minor attained the age of 18 years or ceased to suffer the impairment.

14. In contradistinction to the obligation to pay benefits to injured persons, the Act imposed a liability upon the TAC, pursuant to s.57, to pay a "death benefit", in accordance with a specified formula, to the surviving spouse of an "earner" who had died as the result of a transport accident. Further, by s.58, the Act obliged the TAC to pay to such surviving spouse a weekly payment in accordance with a formula which produced a differing result depending upon whether or not the surviving spouse had "dependent children". An independent obligation was imposed upon the TAC, by s.59 of the Act, to make weekly payments to dependent children of a person whose death resulted from the transport accident where the dependent child had no support from the surviving spouse.

17. The liability of the TAC to make continuing payments to injured persons pursuant to ss. 49, 50 and 51 ceases after "the settlement or award of pecuniary loss damages" in an action brought by the injured person under s.93 of the Act (s.53(2)(a)). Likewise the TAC's liability to continue to make payments under ss. 47, 48 and 54 ceases after "the settlement or award of pain and suffering damages" in an action brought pursuant to s.93 (s.53(2)(b)). Again, where a surviving spouse or dependent child has brought a successful claim for damages under s.93, the TAC's liability to pay a death benefit under s.57, or weekly payments under s.58, or payment to a surviving child under s.59, also ceases.

20. Section 60 of the Act imposes liability on the TAC to pay medical and like benefits. In contrast to the benefits which the TAC is liable to pay under the preceding sections of the Act, the liability under s.60 is expressed to be a liability "to pay ... in respect of a person who is injured or dies as a result of a transport accident".

23. I have set out the scheme of the Act in some detail as it bears upon the proper interpretation of s.104 of the Act which entitles the TAC to an indemnity from a third party in respect of payments made under the Act where the transport accident giving rise to the payments "arose under circumstances which, but for s.93, would have created a legal liability in [that third party] to pay damages ...". It is the extent of the indemnity under s.104 which has been the subject of the arguments on this appeal.

26. Whilst various amendments to the provisions of the Act relating to the TAC's obligation to pay, and the respective beneficiaries' entitlement to receive, benefits payable under the Act have been made between 1986 and the present time, the basic scheme of the Act, and the benefits payable pursuant to it, have remained in substantially the same form. It is the entitlement of the TAC to indemnity pursuant to s.104 which has undergone the significant changes to which Phillips, J.A. has referred in his judgment. I agree with the view expressed by his Honour that, until the amendments were made to s.104 by Act No.34 of 1998, the TAC was not entitled to be indemnified by a "third party" in respect of any "amount of the liability of [it] to make payments" pursuant to ss. 57, 58 or 59 of the Act (all of which can be loosely described as "death benefits" or payments made to dependent persons as the result of the death of a person in a transport accident). There is no doubt that the amendments made to s.104 by Act No.84 of 1994 enlarged the scope of the indemnity to which the TAC was entitled, but in my opinion the entitlement to indemnity was still confined to liability in the TAC to make payments to injured persons as distinct from payments made to dependants of a person who died as a result of a transport accident. This seems to me to follow from the plain words of s.104(1) and (2) as they stood following the 1994 amendment. It was contended by Mr. Uren on behalf of the appellant that sub-s.(3), which was inserted into s.104 by the 1994 amendments, evinced a clear intention on the part of the legislature to extend the TAC's entitlement to indemnity to its liability to make payments under ss. 57, 58 and 59. That sub-section provided that:

"Judgment against or settlement by a third party in an action in respect of an injury or death referred to in sub-section (1) does not eliminate or diminish the right of indemnity given by this section, except to the extent provided in this section."

The difficulty with the submission is that the sub-section does not purport to define the extent of the indemnity provided by the section. Sub-section (1) does that, and it provides that the entitlement of the indemnity is confined to "such proportion of the amount of the liability of the [TAC] to make payments under this Act in respect of an injury as is appropriate to the degree to which the injury was attributable to the act, default or negligence of [the third party]" (emphasis added). Sub-section (2) then sets a ceiling on the third party's liability to indemnify by providing that such liability is not to exceed the amount of damages "which, but for this Act, the person would be liable to pay to the injured person in respect of the injury"(again, emphasis added). In an Act which so clearly distinguishes the liability of the TAC to make payments to persons injured and the liability to make payments to persons as the result of death, it is not possible, in my view, to re-write sub-ss (1) and (2) so as to construe them as meaning that the indemnity entitlement extends to the liability of the TAC to make payments to dependent persons as the result of death. No explanation for the insertion of sub-s. (3) can be found in the second reading speech of the Minister introducing the Transport Accident (General Amendment) Bill (Hansard, Legislative Council, 15 November 1994, p.810). It may be that the sub-section was designed to secure the TAC's right to recover payments made to an injured person who subsequently dies, and which might be irrecoverable, but for the sub-section, in a Wrongs Act claim; for example, an "impairment benefit" paid under s.47 (see s.57(2), s.93 (11A)).

31. It is true, as Mr. Uren contended, that the 1994 amendments to s.104 obviously intended that the TAC's entitlement to indemnity from negligent third parties was to extend to all payments made by it under the Act in respect of injuries. The TAC's entitlement was, to that extent, no longer confined to payments made under ss, 44, 45 and 60 as had been the case since the Act was first introduced in 1986. However, I do not accept the submission that the substitution of the words "payments under this Act" for the previously specified sections, combined with the introduction of sub-s.(3), evinces a clear intention on the part of the Legislature to extend the TAC's indemnity entitlement to "death benefits" as well as "injury benefits". After all, the Act had never before extended such entitlement to the recovery of payments made under ss. 57, 58 or 59 and I agree with Phillips, J.A. that, in the context of an Act which distinguishes with precision between "injury payments" and "death benefits", it is not possible to read the word "injury" where occurring in sub-s.(1) as meaning "injury or death"; nor as I have already said is it possible to construe the words "... liable to pay to the injured person in respect of the injury" as meaning "liable to pay to the dependants of a deceased person in respect of the death".

34. Indeed the amendments made to s.104 by Act No.34 of 1998 demonstrate the extensive amendments which were needed to the section as it stood in 1994 to extend the TAC's indemnity entitlements to "death benefits" as well as "injury benefits". However, by the time that these amendments took effect, namely 19 May 1998, it was some three years after the death of Mrs. Smith; and a death benefit under s.57 had already been paid as had the recurring benefits under s.58. It was not suggested on this appeal that such benefits as had been paid before the amendments could be recovered by the TAC pursuant to the amended section. What is in issue is whether the entitlement to indemnity, as now evinced by s.104, covers such payments to dependants as have been made since the date when the 1998 amendments came into force. The appellant contends that it does, notwithstanding that the transport accident and the death occurred well before such date. It is said that the section operates prospectively from that date and thus extends the entitlement to indemnity to each payment to a dependant made after that date. Accordingly, so it is submitted, no presumption against retrospectivity applies. Reliance was placed upon such cases as Tuckwood v. Rotherham Corporation[1] and Borg Warner (Aust.) Ltd. v. Zupan[2]. The respondents argue, to the contrary of the submissions made on behalf of the appellants, that their liability to indemnify the appellant was fixed as at the date of death and that such liability cannot be enlarged by amendments made to the Act some three years later. They contend that the proper construction of the words in the amending act - namely "If an injury or death arising out of a transport accident ..." is that they refer, at least so far as presently relevant, to deaths arising out of transport accidents which occur after the date of the amendments. Otherwise words such as "whenever occurring" would have to be implied. This construction, they contend, is supported by the fact that the section conditions the appellant's entitlement to indemnity to "such proportion of the amount of the liability of the [TAC] to make payments under this Act in respect of ... the death ..." and that such liability is established at the time when death occurs. The entitlement to indemnity, so the respondents submit, arises not from the making of payments but rather from the establishment of the liability to make them. In any event, they submit, there is nothing in the words of the amending section which clearly evinces an intention that it is intended to have a retrospective operation; a proposition which, they say, is supported by the appellant's concession that it cannot recover payments made between the date of death and the date of the amendments.

37. For the reasons advanced by Phillips, J.A., it is my view that the submissions of the respondent are correct. Like his Honour, I think that there is much force in the respondents' contention that, because the 1998 amendments established for the first time an entitlement in the TAC to an indemnity for payment of "death benefits", and because that entitlement is directly related to a liability to make such payments which can only arise upon the death, the section - properly construed - can only be referring "a death arising out of a transport accident" which occurs after the date of the amending Act. The appellant's argument places heavy emphasis upon the fact that the amended section is concerned with its entitlement to recover benefits paid by it in the future. Counsel's argument assumes, in essence, that - properly construed - the sub-section means:

"If an injury or death arising out of a transport accident whether occurring before or after these amendments in respect of which the [TAC] has made payments under this Act after the date of the amendments ... ."

It is not easy to see why the proper construction of the section should introduce this lack of symmetry. As I understood them, counsel conceded that the section could not be construed so as to give the TAC a right to recover "past payments" of death benefits because, to do so, would be to introduce a degree of retrospectivity into the section which would be avoided by giving the section the construction for which they contend. This argument focuses attention upon the enlarged scope of benefits in respect of which the TAC is entitled to be indemnified, but ignores the corresponding enlargement of liability in the negligent third party to indemnify. For the first time in its 12 year history, the legislation was enlarging the third party's liability to indemnify beyond the scope of payments made to persons who had been injured by extending it to a liability to indemnify against payments made to dependants of persons who had died in transport accidents. Thus, it can be seen that if the words "death arising out of a transport accident" are to be given the construction for which the appellant contends, it will impact upon an existing liability, fixed by reference to past events, by extending it to a liability to indemnify against payments made to different persons and arising from different events. So understood, it would seem to me that ordinary canons of statutory construction would lead to the conclusion that - insofar as the amendments are calculated to impose a liability upon the third party to indemnify the TAC against payments which it is obliged to make to persons in respect of a death arising out of a transport accident - the amendments are not only to be construed as referring to payments made after the date of the amendments but also to deaths arising out of transport accidents occurring after that date[3]. This was the construction which the trial judge placed upon the section as it was amended in 1998. He said:

"In my opinion, in the absence of a provision which would require one to construe s.104(1) other than prospectively, a plain reading of that section, as amended by the 1998 Amendment Act, produces the result that it would apply only to a death arising out of a transport accident occurring on or after 19 May 1998."

After analysis, his Honour concluded that no contrary intention was expressed or clearly evinced in the legislation, and I agree that the appellant's argument before this Court - namely that we should construe the word "death" as meaning "death whenever occurring" so as to rectify a "manifest injustice" - should not be accepted.

44. Nor, in my view, do cases such as Tuckwood v. Rotherham Corporation (supra) and Borg Warner (Aust.) Ltd. v. Zupan (supra) advance the appellant's cause. These cases emphasize that the statutory right in the employer to be so indemnified by the third party tortfeasor arises on the date when the relevant compensation payment is made but they do not deal with a situation where, as here, the death giving rise to the relevant claim occurs before the statutory right to indemnity was conferred.

47. The appellant submits that this Court is bound by its decision in Shire of Corangamite v. Transport Accident Commission[4] to conclude that the TAC is entitled to be indemnified in respect of death benefits paid by it after 19 May 1998, notwithstanding that the death had occurred some three years previously. I do not agree. Corangamite was a case where the Court held that the TAC was entitled to recover from a third party tortfeasor benefits (the scope of which had been enlarged by the 1994 amendments to the statute) paid in respect of injuries for which the tortfeasors underlying liability to indemnify against benefits paid already existed. This case seems to me to be discretely different from Corangamite because, as I have been at pains to point out, there had been no underlying liability in a third party tortfeasor to indemnify against benefits paid as a result of a death arising from a transport accident until the 1998 amendments. Thus it does not necessarily follow, as the appellant contended, that the reasoning process adopted by the Court in Corangamite must necessarily compel us to the conclusion that the word "death" where occurring in the section as amended in 1998 means "death whether occurring

before or after the amendments". Accordingly, I am not persuaded that this appeal raises for our consideration the circumstances in which the Court will, or will not, depart from one of its prior decisions[5]. I do note, however, that the particular issue decided in Corangamite, which is now said to bind us, was decided without the benefit of full argument from counsel[6]. If, and when, that issue is again raised for determination, will be the time to explore the manner in which re-consideration of the issue should occur.

52. On 17 September 1995 Mrs. Smith was driving along the Ovens Valley Highway at about 100 k.p.h., with three of her sons and another young boy as passengers, when the car she was driving collided in the dark with a horse. The horse went through the windscreen and both Mrs. Smith and the horse were killed; the four children were injured. At the time of her death Mrs. Smith was in full-time employment as a teacher at a school in Melbourne and her children, five in all, were dependent upon her and her husband. Their dependency was likely, we were told, to continue for some years. On 25 September 1995 the Transport Accident Commission made a lump sum payment to the surviving spouse under s.57 of the Transport Accident Act 1986 ("the Act") and commenced making periodical payments under s.58. Those payments are continuing. Payments of medical and like benefits under s.60 were also made in respect of the injured children.

55. On 11 November 1997 the Commission commenced a proceeding in the County Court to recover an indemnity under s.104 of the Act in respect of all payments made and to be made by the Commission as and for compensation in respect of the accident. The defendants were alleged to have been negligent in

allowing the horse to stray on to the highway and by the time of the hearing the defendants conceded that negligence and hence their responsibility for the accident. What remained in issue, at least in part, was the right of the Commission to an indemnity under s.104. The defendants did not dispute the Commission's right to such indemnity in respect of the payments made by the Commission for medical and like benefits under s.60. The defendants denied only the Commission's right to any further indemnity, being for payments both by way of lump sum under s.57 and by way of periodical benefits under s.58.

59. On 19 October 1999 the trial judge accepted the defendants' submission that they were not liable under s.104 to indemnify the Commission for payments made by the Commission under s.57 or 58 in consequence of the death of Mrs. Smith. Accordingly, while an order was made for the payment by the defendants under s.104 of the amount of medical and like expenses paid by the Commission under s.60 in respect of the injuries to the four boys (which were agreed at $17,007 to date), an order for an indemnity in respect of any payments occasioned by the death of Mrs. Smith was refused. The Commission now appeals contending that when properly read and construed s.104 entitled it to an indemnity for all payments required of it as a result of the accident on 17 September 1995, including payments made, and to be made, under ss.57 and 58 by reason of Mrs. Smith's death.

Section 104 at the time of the accident

63. The accident occurred after 1 January 1995 the date from which s.104 of the Act was amended by s.42 of the Transport Accident (General Amendment) Act 1994 (Act No.84 of 1994). That Act contained a transition provision, s.11, which was the subject of decision by this Court in Shire of Corangamite v. Transport Accident Commission[7], a section and a decision to which I shall have to make further reference from time to time. But, irrespective of s.11, the amendments made by s.42 of the 1994 Act to s.104 came into force on 1 January 1995 and on any view it is clear that s.104 as then amended applied in respect of transport accidents occurring after that date.

66. Until 1 January 1995 s.104 read as follows (and I italicise expressions which were to be changed by Act No.84 of 1994):

"104. Indemnity by third party (1) If an injury arising out of a transport accident in respect of which the Commission has made payments under section 44, 45 or 60 arose under circumstances which, but for section 93, would have created a legal liability in a person (other than a person who is entitled to be indemnified under section 94) to pay damages in respect of pecuniary loss suffered by reason of the injury before the entitlement of the injured person to compensation under this Act was reviewed under section 46 or by reason of costs or expenses of a kind referred to in section 60, the Commission is entitled to be indemnified by the first-mentioned person for such proportion of the amount of the liability of the Commission to make payments under section 44, 45 or 60 in respect of the injury as is appropriate to the degree to which the injury was attributable to the act, default or negligence of the first-mentioned person. (2) The liability of a person under sub-section (1) shall not exceed the amount of damages referred to in sub-section (1) which, but for this Act, the person would be liable to pay to the injured person in respect of the injury."

70. In this form, although entitling the Commission to indemnity from the person who but for s.93 would have fallen under a legal liability to pay pecuniary damages for loss arising out of a transport accident, s.104 apparently applied only in respect of injury, not death - and then only in relation to payments by the Commission "under section 44, 45 or 60". In passing I note that, although the payments authorised under s.60 largely related to the consequences of injury, the section did (as now) have some application in a case of death; but that did not figure in the argument and so I pass it by. What is more significant for present purposes was the limitation which was found in s.104 until 1 January 1995 by reference to "payments under section 44 [or] 45"; both of these sections dealt with a periodic loss of earnings by one injured in a transport accident (the first with total loss and the second with partial loss). That s.104 had no operation beyond "payments under section 44, 45 or 60" appeared not only in the opening three lines of s.104 but also in the description which followed of the Commission's liability which was the subject matter of the indemnity afforded. Moreover, sub-s.(1) referred five times to "injury" or "the injured person", while sub-s.(2) made a like reference when setting a limit on the liability of a person required to provide indemnity under sub-s.(1): it was not to exceed the amount that such person "would be liable to pay to the injured person in respect of the injury".

73. Thus before 1 January 1995 it can be said with some confidence that s.104 did not encompass the payments by the Commission now in question, being payments in respect of a death resulting from a transport accident. In so far as s.104 extended to the liability of the Commission to make payments under s.60 it related presumably, in the circumstances of this case, only to the payments under s.60 made in respect of the injured children; for, as I apprehend it, the payments made by the Commission under s.60 were made only in respect of the children.

76. As from 1 January 1995, however, important changes were made. The expression "but for section 93" became "regardless of section 93" (reflecting changes made at the same time to that section) and the words I have italicised in the middle of s.104, commencing "before the entitlement" and ending "of a kind referred to in section 60", were deleted. More importantly for present purposes, the expression "under section 44, 45 or 60" (where twice occurring in sub-s.(1)) became "under this Act". However sub-s. (2) remained as it was and the references in both sub-ss.(1) and (2) to "injury" and "the injured person" were not altered, but a new sub-s.(3) was added in these terms:-

"(3) Judgment against or settlement by a third party in an action in respect of an injury or death referred to in sub-section (1) does not eliminate or diminish the right of indemnity given by this section, except to the extent provided in this section."

80. Not surprisingly, the inclusion of the words "or death" in this subsection was relied upon by the Commission to support its argument that under s.104 as amended in 1994 it was entitled to an indemnity from the respondents not only for payments made by the Commission in respect of the injured children but also for payments required of it under ss. 57 and 58 in respect of the death of Mrs. Smith - "death benefits" as they were called in argument, in order to distinguish them from the "injury benefits" required under sections such as ss.44 and 45. The Commission relied principally upon the deliberate extension of s.104 to reach beyond payments "under section 44, 45 or 60" to payments "under this Act", and it called in aid the express reference in the new sub-s.(3) to both injury and death to justify its argument that as from 1 January 1995 s.104 should be read and understood as extending beyond cases of injury to cases of death. This argument was rejected below and I think it should be rejected again; for despite the changes mentioned s.104(1) was still cast in terms only of injury and not of death. In the County Court the judge held that s.104 still had no application to the payment by the Commission of death benefits and I agree.

83. The operation of s.104 as amended in 1994 must depend upon the language used and, unless there be some compelling reason in the context, that language cannot be extended by judicial decision: see, for example, Commissioner for Railways (N.S.W.) v. Agalianos[8], Cooper Brookes (Wollongong) Pty. Ltd. v. F.C.T.[9], K & S Lake City Freighters Pty. Ltd.[10] and Project Blue Sky v. Australian Broadcasting Authority[11]. From its very beginning in 1986 the Transport Accident Act regularly referred to both injury and death when both were meant (for example in ss.1, 3(2) and (3), 36, 37, 41, 60(1) (the introductory paragraph), 64, 93(1) and 135) and distinguished where one was meant but not the other (ss.35(1) and (2), 40, 44-46, 57-59, 60(1)(c) and (d), 69(1) and (2), 93(2) and (8)). Examples abound, for the terms "injury" and "death" occur repeatedly, sometimes in conjunction (so that the two cases are aligned) and sometimes separately (when some difference is intended). As amended in 1994, s.104 still referred only to "injury" in sub-s.(1) and so too, importantly, in sub-s.(2). The express reference to "death" appeared only in sub-s.(3), where it might have been included either by mistake or because it was used only in describing a proceeding in court in which "judgment against or settlement by a third party" was the relevant factor. There are surely circumstances in which judgment or settlement of an action "in respect of ... death" could be relevant to the Commission's claim for indemnity under sub-s.(1) for payments in respect of injury; but if not, then including an express reference to "death" in sub-s.(3) must have been simple error.

86. I say that because if the case of death were to be added to sub-s.(1) by implication, it would be necessary to treat sub-s.(2) too as amended as in fact it was in 1998 (as will be seen shortly). Had sub-s.(2) been so altered in 1994 it might perhaps have been proper for the Court to read sub-s.(1) as if "death" was included with "injury", but sub-s.(2) was not altered in 1994 and I see no reason why sub-s.(3) should require such a major re-writing of both the previous subsections. What would be needed is shown very clearly by the form which s.104 assumed when amended in 1998, and I think it beyond the proper function of this Court to anticipate those amendments and read the section, as amended in 1994, as if it had then been amended as it was in 1998. To justify such a step by way of interpretation the intention of Parliament to that effect, either in the amending statute or in the Act as amended, would have to be very clear, and that is simply not the case here[12].

89. In so concluding I have not overlooked that Act No.84 of 1994 also served to introduce s.93(11A) into the Act. Section 93, of course, was the section which restricted and controlled the bringing of proceedings for damages independently of the Act. Until the 1994 amendments it also provided that upon such an action succeeding an order should be made for payment to the Commission, out of the damages otherwise recovered by the plaintiff, of amounts paid by the Commission under the Act, and in particular under ss. 47 and 48, under ss. 49, 50 and 51, or "in respect of death" as the case may be: see s.93(11). Payments made by the Commission under ss. 44, 45 and 60 were not mentioned in this context; these, it seems, were left to the direct obligation imposed upon the tortfeasor by s.104 to indemnify the Commission, an obligation existing independently of any action brought, though limited expressly (as we have seen) by the degree of fault on the part of the tortfeasor (see s.104(1)) and the amount of damages "which, but for this Act, the [tortfeasor] would be liable to pay to the injured person in respect of the injury": s.104(2).

92. This was all changed by the 1994 amendments which did away with the requirement in s.93(11) for an order in favour of the Commission when an action for damages was brought and succeeded. By s.10 of Act No.84 of 1994, s.93(11) was replaced with new sub-ss.(11) and (11A), the first requiring that the amount of damages otherwise recovered by the plaintiff be reduced in a case of injury by, inter alia, the amount of compensation paid by the Commission under ss. 47 and 48 or under ss. 49, 50 and 51; and the second, s.93(11A), requiring, in a case of death, a like reduction for the amount of compensation paid by the Commission under ss. 57, 58 and 59 "in respect of the [relevant] death". At the same time, albeit by a separate amending provision, the Commission's right of indemnity under s.104 was extended, as already described, to payments made by the Commission "under this Act", an expression which no doubt could have been read as sufficient to encompass all compensation paid by the Commission, including that paid in respect of death, had it not been for such restriction as remained from the several references left in s.104(1) and (2) to "injury" only.

95. Mr. Uren submitted that we should read s.104, as amended in 1994, as if death benefits were included within the indemnity afforded to the Commission because inter alia (he said) s.104 as amended should be read and construed as complementary to s.93 as amended, in particular sub-s.(11A). More fully, the submission was that the reduction in the amount of damages achieved by s.93(11A) should be reflected (as more obviously was the reduction achieved by s.93(11)) in a corresponding increase in the indemnity afforded to the Commission by s.104, thereby requiring that the word "injury" be taken to include death. A number of things may be said of that submission. First, the submission is, in effect, that in s.104(1) the word "injury" should be taken to mean death or injury and, if that was intended, it is difficult to see why Parliament did not say so expressly, when elsewhere the two terms are used when both are intended. That is simply reinforced by the contrast afforded by Parliament's dealing in s.93 with injury and death very plainly in two discrete subsections, while failing in s.104 to mention death at all in either sub-s.(1) or sub-s.(2): the difference between s.93(11A) and s.104(1) is all too evident. Secondly, if it was intended that ss.93 and 104 should correspond in the way suggested by counsel's argument, one would have expected that both sections would be called into play in relation to the same transport accident; yet that was not the provision made by Parliament. In the amending Act of 1994, which received the Royal Assent on 29 November 1994, Parliament included s.11 as an express transition provision, by virtue of which the amendments to s.93 (which were effected by s.10 in Part 2 of the 1994 Act) were to operate only in relation to a transport accident occurring on or after 1 January 1995. No such express provision was made in relation to the amendments to s.104, amendments which were effected by s.42 in Part 3 of the 1994 Act to which s.11 of the Act had no application. (That that was so was confirmed by this Court in Corangamite and that aspect of the case was not called into question on this appeal.)

98. As it turned out, the amendments made to s.104 by the 1994 Act were in fact proclaimed to come into force on 1 January 1995 (see Special Gazette, 13 December 1994), but that was by virtue of Executive decree, not Parliamentary provision (or at least not directly). Parliament, it seems, was not so clear about its own intention as to make the same express provision for the operation of both s.93 as amended and s.104 as amended. Ironically, it was the Commission which (as will be seen) successfully submitted to this Court in Corangamite that s.104 as amended in 1994 applied to injury whenever occurring, and thus irrespective of the date of the transport accident which by virtue of s.11 was critical to the application of the amendments to s.93 - a position which the Commission maintained in argument on this appeal, and indeed sought to extend (by arguing that s.104, when amended in 1998, should be read as extending immediately to a case of death, whether before or after the amendments). To my mind that position, though adopted only argumentatively, simply underlines what is already evident: namely, that the supposed intention of Parliament that ss.93 and 104 should correspond in the manner and to the extent submitted is at best problematic; at worst it is simply speculation. I think it an altogether insufficient basis from which to conclude that the enactment of s.93(11A) demanded that the word "injury" in s.104, which seems so very plain, should be read as meaning death or injury.

101. In substance my conclusion is that the words of s.104 are to that extent intractable[13], not admitting of the construction which the Commission would have us place upon them, even after bringing to account all that was relied upon in support of such a construction. Certainly I find unpersuasive the Commission's reliance upon the reduction achieved by s.93(11A) in the amount of damages to be recovered if an action for damages was open "in accordance with" s.93, if action was so brought and if the action proved successful. In submitting that s.104 as amended in 1994 should be read as including within the indemnity afforded the amount of any death benefits paid by the Commission despite the very clear references in s.104 to "injury" only, the Commission is seeking to have us rewrite the section significantly; for although dressed up as an argument about the meaning of the word "injury" the submission was in truth that, by judicial decision, we should add further words to sub-s.(1) - say, "or death" after "injury". It has been said often enough[14] that it is "a strong thing to read into an Act of Parliament words which are not there" and, while no doubt it can nowadays be done in a proper case (as the Court acknowledged, I think, in Cooper Brookes) , it is a step for which there is no sufficient justification in this instance. After all, the obligation to indemnify is a very substantial one; it can be imposed on the wrongdoer by Parliament but it is not to be imposed (or an existing obligation extended) merely by judicial decision.

104. I would add that even if, by introducing the new sub-s.(11A) to s.93 without making express reference in s.104(1) to a case of death, the 1994 amendments served to create some sort of "gap" in the legislative scheme (as the Commission's argument tended to suggest), in my opinion the court would be going beyond its proper function if it were now to fill that "gap" by reading each reference in s.104 to injury as if it were a reference to death or injury. (In this connection reference may be made to what was said in Marshall v. Watson[15] and Stock v. Frank Jones (Tipton) Ltd.[16], as quoted by Aickin, J. (dissenting) in Cooper Brookes[17]). Why compensation in respect of death was not included within s.104 may be unclear, and one can only speculate as to the reason. But suppose that it was by oversight, that was not such an error as could now be overcome by our "interpreting" what is otherwise very plain language. In my opinion, whether viewed on its own or in context, the reduction achieved by s.93(11A) in the amount of damages recoverable by action "in accordance with" s.93 after the death of someone in a transport accident is not sufficient indication of Parliament's intention about the extent of the indemnity afforded by s.104 to justify what would, in effect, be the rewriting of s.104(1) and (2), given the very clear references to injury only. If the omission of death benefits from the indemnity required by s.104(1) was a mistake - and I do not say that it was - it was to remain an omission until rectified by Parliament, which interestingly enough did not occur until 1998, some three and a half years afterwards. That was a somewhat tardy response if, as the Commission would have it, Parliament's intention always had been to include death benefits within the indemnity required of the tortfeasor by s.104.

107. For these reasons I am clear that in s.104 (1) the word "injury" is not to be taken as meaning death or injury and accordingly I reject the Commission's submission that, under s.104 as it stood at the date of the accident on 17 September 1995, the Commission was entitled to an indemnity under s.104 with respect to payments required of it under s.57 or 58 in consequence of the death of Mrs. Smith.

Section 104 as amended on and from 19 May 1998

111. I turn then to the alternative argument of the Commission, that it was entitled to an indemnity from the respondents under s.104 as it stood after amendment by s.15 of the Transport Accident (Amendment) Act 1998 (No. 34 of 1998), amendments which took effect on 19 May 1998, the date of Royal Assent. It is noteworthy perhaps that the Commission commenced this proceeding in the County Court in November 1997, and so before the enactment of Act No. 34 of 1998, but no point was made of that below or before us. The amending Act of 1998 contained no specific transition provision.

114. By reason of the 1998 amendments, s.104 took this form (and this time I italicise expressions of particular importance):-

"104. Indemnity by third party (1) If an injury or death arising out of a transport accident in respect of which the Commission has made payments under this Act arose under circumstances which, regardless of section 93, would have created a legal liability in a person (other than a person who is entitled to be indemnified under section 94) to pay damages in respect of any loss suffered by reason of the injury or death, the Commission is entitled to be indemnified by the first-mentioned person for such proportion of the amount of the liability of the Commission to make payments under this Act in respect of the injury or death as is appropriate to the degree to which the injury or death was attributable to the act, default or negligence of the first-mentioned person. (2) The liability of a person under sub-section (1) shall not exceed the amount which, but for this Act, the person would be liable to pay- (a) to the injured person in respect of the injury: or (b) in the case of the death of the person, to his or her dependents. (3) Judgment against or settlement by a third party in an action in respect of an injury or death referred to in sub-section (1) does not eliminate or diminish the right of indemnity given by this section, except to the extent provided in this section."

118. Thus in sub-s.(1), the words "or death" were added immediately after the word "injury" on the four occasions on which it appeared, and for "pecuniary loss" the words "any loss" were substituted - the latter change serving in itself to emphasise the very different nature of the compensation afforded to the beneficiaries of death benefits required of the Commission under ss. 57 and 58, the benefits by reference to which the indemnity for the Commission was being extended. In sub-s.(2), substantial surgery was done, a separate paragraph apparently being thought necessary in order to include death as an alternative to injury - again reflecting, I think, the very different nature of death benefits. No change was needed to sub-s.(3) which already, as we have seen, made reference to both injury and death.

121. Below it was argued that once s.104 assumed its 1998 form it plainly embraced the liability of the Commission in respect of death as well as injury and in consequence the respondents were liable to indemnify the Commission for death benefits paid and payable in respect of the death of Mrs. Smith. The judge rejected the argument, holding that, as decided by O'Bryan, J. at first instance in Corangamite[18], to regard s.104 after amendment as operating in respect of an accident occurring before amendment would be to allow it retrospective operation despite the absence of any clear indication that Parliament so intended. No doubt with this result in mind Mr. Uren did not contend before us that the indemnity afforded to the Commission under s.104 as amended in 1998 extended to all payments required of the Commission under ss.57 and 58; he submitted that it extended to payments of that kind only if made, or to be made, by the Commission after 19 May 1998. That, he submitted, avoided any retrospective operation, and he relied upon the decision of the Court of Appeal in Corangamite, the decision of O'Bryan, J. to the contrary having been reversed on appeal on 22 December 1999 (some two months after judgment in the present case was delivered in the County Court).

124. Mr. Uren put an attractively simple argument, on the hypothesis that his first argument in reliance upon the 1994 amendments failed. First, he said, s.104(1) as amended, speaking prospectively as from 19 May 1998, created a right in the Commission, as from that date, to indemnity in respect of payments made by the Commission for death benefits under ss.57 and 58. As the right to indemnity was made expressly to depend upon payment of compensation first being made by the Commission, it followed that s.104(1) was speaking only of payments made by the Commission after the amendments came into force; and, as the right to indemnity did not arise before payment made, the Commission's right to indemnity, and the corresponding liability in the tortfeasor to provide the indemnity, both accrued only on or and after 19 May 1998. In this case, the lump sum payment required under s.57 was made before 19 May 1998 and so the newly extended right to indemnity, and hence the new liability of the respondents, did not attach. In contrast, the payments required from time to time under s.58 were continuing, and so the Commission's right to an indemnity and the tortfeasor's liability to indemnify did attach under s.104 as and when each payment was made on and after 19 May. When the amended section was so read and applied, no retrospectivity was involved - as decided by this Court (Mr Uren submitted) in Corangamite.

127. In developing this argument, Mr. Uren drew upon the authorities which emphasise the statutory origin of such a right to indemnity which, although in part dependent upon the liability of the tortfeasor to pay damages as a result of the tort, is none the less regarded as very different from that liability, whether to the immediate victim of the tort or to the dependants should the victim die. Thus in Tuckwood v. Mayor of Rotherham[19] it was held that the action by the employer to recover from a public authority an indemnity for workers compensation paid by the employer to the worker was not an action in respect of the negligence which had caused the injury to the worker and which led to the claim for indemnity, a conclusion which in that case made inapplicable the time limit on actions for negligence against public authorities. In Tickle Industries Pty. Ltd. v. Hann[20] it was held that the employer's proceeding to recover a like indemnity from the wrongdoer did not fail because the defendant was no longer liable to pay damages to the dependants of the deceased worker because no action had been commenced by them within time. In Borg Warner (Aust.) Ltd. v. Zupan[21], Murphy, J. made the point comprehensively when he said[22]:-

"The Australian cases have stressed that the right of indemnity against the wrongdoer is not an action in negligence, but a cause of action created by statute for an indemnity against the person liable to pay damages. Indeed, the injured workman may have lost his remedy against the third person at the time that the employer's statutory cause of action arises. For the statutory cause of action arises as often as the person liable to pay compensation is called upon to pay compensation and in fact does so: Attorney-General v. Ryan Automobiles Ltd., [1938] 1 All E.R. 361.[23] At that time the workman's entitlement to sue the third party for damages may be gone. He may be dead. A statute of limitations may apply. Nonetheless, the statutory right of indemnity given to the person paying compensation springs up on each payment of compensation, if it can be shown that the injury for which compensation is payable was at the time it happened `caused under circumstances creating a legal liability in' another person `to pay damages in respect thereof'. This means a legal liability arising at the time that the injury was caused to the worker: Tickle Industries v. Hann [1974] HCA 5; (1974), 130 C.L.R. 321; 48 A.L.J.R. 149; Tooth & Co. Ltd. v. Tillyer [1956] HCA 49; (1956), 95 C.L.R. 605; Watson v. Council of the City of Newcastle [1962] HCA 6; (1962), 106 C.L.R. 426, at pp.432-3. These considerations emphasize the fact that the statute gives a new cause of action to the employer, which depends upon the establishment of certain statutory ingredients and which is only derivative in that the injury, when caused, must be caused in circumstances creating a legal liability in some person - to pay damages to the worker in respect thereof."

See also A.C.C. v. Haynes.[24] Much of this no doubt derives from the more general proposition that, at least at common law, the power to enforce an indemnity depends first and foremost upon the payment's being made in respect of which the indemnity is being sought: Halsbury's Laws of England, 4th ed., vol. 20 para 315, Seapeace Ltd. v. Meridian Marine Sales Ltd.[25]; contrast the possibility in equity of anticipatory enforcement, as to which see Abigroup Ltd. v. Abignano[26], and Manufacturers Mutual Ins. Ltd. v. G.I.O[27].

132. On the basis of the foregoing, the argument is compelling that s.104(1) creates a new right in the Commission as and when each payment of compensation is made, so that by seeking now an indemnity only in relation to payments of compensation made on or after 19 May 1998 the Commission is not casting back beyond that date. None the less that may not resolve the present problem; for as Mr. Elliott submitted, there remains the question for what the indemnity is being afforded by the amended section. Counsel relied upon the words used in s.104(1) itself to describe the subject matter of indemnity required of the tortfeasor, pointing out that the section spoke of the indemnity not by reference to payments made by the Commission under the Act but by reference to "the liability of the Commission to make" payments under the Act. Mr. Elliott submitted that, at all events when the liability of the Commission is to make payments under ss.57 and 58 in consequence of death, the liability to make those payments arises in the Commission at the time of that death and not later; and, if the section as amended spoke only prospectively as Mr. Uren contended, then it must be speaking of liability arising in the Commission on or after the relevant amendment to s.104(1) (that is, 19 May 1998) and thus, in the case of payments made by the Commission of death benefits under ss.57 and 58, only when the relevant death occurred after 19 May 1998. To give the section after amendment operation in respect of death before amendment would be to give the section retrospective operation (he said), which was not justified in the absence of any clear indication that that was what Parliament intended - and in this regard Mr. Elliott sought to distinguish the decision in Corangamite on the ground that it related only to payments by the Commission for injury, not death.

135. There is much force, I think, in Mr. Elliott's argument that the liability of the Commission which is mentioned in s.104(1) is a liability which arose, in a case like this, upon the death of the victim of the transport accident. Section 104(1) does indeed relate the indemnity required directly to "the amount of the liability of the Commission to make payments under this Act in respect of the injury or death", a liability which is not unlike that which historically was imposed by workers' compensation legislation (now the Accident Compensation Act 1985) upon the employer (and now the Victorian WorkCover Authority) to pay compensation when a worker was injured or killed in the workplace. In the latter context the courts have had to consider many times what rates of compensation applied, usually after the rates were amended but without the amending statute's providing sufficient guidance about the application of the altered rates. Traditionally, the liability of the employer to pay compensation to a worker for the consequences of compensable injury was said to arise upon the occurrence of the injury, thereby attracting the rates of compensation then fixed. See generally Clement v. D. Davis & Sons Ltd.[28]; Kraljevich v. Lake View and Star Ltd.[29]; Staska v. General Motors Holden's Pty. Ltd.[30] (P.C.) affirming the decision of the High Court[31]; Stevenson v. Buchanan & Brock Pty. Ltd.[32]; Burls v. A.A. Mitchell Pty. Ltd.[33]; Howe v. Simmons Bedding Co. Pty. Ltd.[34]; A.C.C. v. S.I.O.[35]; and TNT Australia Pty. Ltd. v. Horne[36]. Departures from the norm have figured from time to time in the reported cases, where the statute itself has been considered to require it. For example, in Fisher v. Hebburn Ltd.[37] liability was held to arise in the employer only upon incapacity developing from a disease of gradual onset; in Geraldton Building Co. Pty. Ltd. v. May[38], only upon a particular election being made under the statute; and, perhaps more significantly for present purposes, in Ogden Industries Pty. Ltd. v. Lucas[39], only upon death when an injured worker died.

138. In Ogden[40] the High Court held by a majority (of three to two) that when death followed upon injury in compensable circumstances, liability in the employer to pay workers compensation to dependants arose at death and not earlier, thereby attracting the rates of compensation in place at the later time, and the majority view was upheld on appeal to the Privy Council[41]. But whether the liability arose at the point of compensable injury or only when death supervenes, the principle was much the same for present purposes: the liability of the employer to pay compensation arose then and not subsequently when, for instance, the amount had to be determined of the payments to be made. By analogy, given the similarities of the two compensation schemes - the one for workers injured or killed in the workplace and the other for persons injured or killed in transport accidents - I should have thought that the liability of the Commission to make payments by way of compensation under the Transport Accident Act as and when injury or death results from a transport accident is a liability arising when that injury or death occurs, and not, for instance, when the amount of some particular payment to be made falls to be quantified.

141. Given that s.104 expressly refers the indemnity itself to "the liability of the Commission to make payments under this Act" rather than the making of the payments as such, it seems to me that the argument is certainly open that, if s.104 as amended in 1998 is speaking prospectively as Mr. Uren submitted, it is speaking of liability in the Commission arising after 19 May 1998 and thus of death occurring after that date. Mr. Uren was apt to be dismissive of the difference between relating the indemnity directly to payments made by the Commission and relating it to the Commission's liability to make those payments. He submitted that for all practical purposes the one was much the same as the other and that may be so; but we are concerned not with the practical working of the section but with the intention of Parliament so far as that intention can be discovered in the language of the section, which after all was amended without any express provision for its operation in respect of past events. If Mr. Elliott's submission is correct then, simply by reason of the reference to "the liability of the Commission", s.104 as amended can be seen as intended to operate in respect of death benefits only when the relevant death occurred after 19 May 1998 with the result that the Commission was properly denied below the indemnity it was seeking for the payments it made and was continuing to make under s.58.

144. However, while the contention may be accepted readily enough that, in a case of death resulting from a transport accident, liability under the Act arises in the Commission at the time of death, it is another thing whether the reference to that liability, if arising in the past, is enough in itself to deny operation to s.104(1) in order to avoid unjustified retrospectivity. Mr. Elliott's submission to that effect must confront Mr. Uren's submission to the contrary (that the amendments to s.104, in extending the Commission's right of indemnity to death benefits, depend for their operation upon the payment by the Commission of those benefits under the Act so that it is both necessary and sufficient in any given case that such payments have been made after 19 May 1998). Of course both views are aimed at avoiding retrospectivity; for both assert that, given the suggested operation, s.104 as amended can be seen as operating only prospectively on and after 19 May 1998. To my mind the difficulty is that both views are reasonably open on the language of the section and the choice between them would be somewhat arbitrary unless a solution can be found elsewhere. Fortunately there is another solution; as I see it, the key lies not in the liability of the Commission, as suggested by Mr. Elliott, but in the liability of the tortfeasor.

147. Mr. Uren's argument focussed on the right of the Commission under s.104 as amended to the indemnity provided in respect of death benefits, but that, too, seems to me to direct attention away from the real difficulty arising out of the 1998 amendments . It is obvious enough that the purpose of those amendments to s.104 was to include the payment by the Commission of death benefits within the scope of the indemnity afforded under s.104, and Mr. Uren's submission may be accepted that the indemnity under s.104 as then amended extended only in respect of payments made by the Commission on or after 19 May 1998. The right to call for such an indemnity after payment of death benefits was indeed new on 19 May 1998. But what of the liability of the respondents; were they not already liable, at least in some measure, to the Commission under s.104 before 19 May 1998, and was not their liability increased to the very same extent as the Commission's rights were extended by the amendment that came into force on that date? As I see it, the critical question is whether s.104(1), by affording to the Commission for the first time in 1998 a right of indemnity in respect of death benefits paid by it on or after 19 May 1998, was thereby altering a liability in the tortfeasor which was otherwise fixed and determined before that date by reference to events already past and concluded. If so the principles of statutory construction concerning retrospectivity would be called into play.

150. At common law, it was to be presumed in the absence of some clear indication to the contrary that a statute which changes the law was not intended to affect existing rights and duties already defined by reference to past events. Thus in Fisher v. Hebburn Ltd.[42] Kitto and Menzies, JJ. said:-

"As Dixon C.J. expressed it in Maxwell v. Murphy [1957] HCA 7; (1957) 96 C.L.R. 261, at p.267 and again in Chang Jeeng v. Nuffield (Aust.) Pty. Ltd. [1959] HCA 40; (1959) 101 C.L.R. 629, at pp.637, 638 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."

"There can be no doubt that the general rule is that an amending enactment - or, for that matter, any enactment - is prima facie to be construed as having a prospective operation only. That is to say, it is prima facie to be construed as not attaching new legal consequences to facts or events which occurred before its commencement."

And in Mathieson v. Burton[44], Gibbs, J. quoted with approval the following statement by Wright, J. in In re Athlumney, Ex parte Wilson[45]:-

"Perhaps no rule of construction is more firmly established than this - that a retrospective operation is not to be given to a statute so as to impair an existing right or obligation, otherwise than as regards matter of procedure, unless that effect cannot be avoided without doing violence to the language of the enactment. If the enactment is expressed in language which is fairly capable of either interpretation, it ought to be construed as prospective only."

The common law principle is now enshrined in statute. Section 14 of the Interpretation of Legislation Act so far as relevant provides as follows:

"(2) Where an Act or a provision of an Act- (a) is repealed or amended . . . the repeal, amendment, expiry, lapsing or ceasing to have effect of that Act or provision shall not, unless the contrary intention expressly appears - (d) affect the previous operation of that Act or provision or anything duly done or suffered under that Act or provision; (e) affect any right, privilege, obligation or liability acquired, accrued or incurred under that Act or provision . . ."

Here the primary question is whether the amending statute which altered s.104 in 1998 would be given retrospective effect if it were allowed to have effect in respect of a death occurring before 19 May 1998. If yes, the next question would be whether the statute evinces sufficiently clearly an intention that it should be so, or under s.14(2) whether that intention "expressly appears", but I postpone consideration of that.

161. Of course in the most obvious way all statutes speak prospectively, and only prospectively; for necessarily they can have effect only from the moment of commencement. True retrospectivity is seen when a statute changing the law is expressly given effect, once it comes into operation, as from some earlier date (something which unfortunately is increasingly frequent): see for example s.2(3) and (4) of Act No.84 of 1994 and s.2(2) of Act No.34 of 1998. By such a device Parliament is deeming, albeit for the future, the law to have been, as from that earlier date, other than it was at the time.[46] But that is not the present problem; we are concerned with retrospectivity in what Fullagar, J. called in Maxwell v. Murphy[47] its "extended meaning", being that more colloquial sense in which the word is used when a statute, usually an amending statute, is given effect with respect to rights and duties already defined and settled by reference to events which are past, attaching new consequences to those events, albeit for the future but none the less altering or interfering with those rights and duties as previously defined and settled. It is not enough to justify invoking the presumption against retrospectivity to find that new consequences are being attached to past events, for that is commonly the purpose of new legislation: R. v. St Mary Whitechapel[48]; R. v. Secretary of State for Home Department, ex parte Mundowa[49], compare Minister for Immigration v. Petrovski[50]. There must be something more, which will be found in the interference, if such it be, with existing rights and duties - "a right ... or liability, acquired, accrued or incurred" under the statute before its amendment, as it is described in s.14(2).

164. Thus, in West v. Gwynne[51], where new legislation prohibited a lessor from exacting a fine for consenting to assignment or subletting by the lessee, the prohibition was held to apply to existing leases; but the prohibition was itself expressed as applying only if the lease contained no express provision to the contrary, rendering the legislation therefore not a variation of the terms of an existing lease but a regulation of future conduct independently of the lease. In In re a Solicitor's Clerk[52], the legislative provisions concerning disqualification of a professional man for misconduct were applied to one whose misconduct preceded the legislation but that was because the new provisions were concerned not with the imposition of the primary penalty for past wrongdoing but with the present professional requirement that the man be of good character: Bakker v. Stewart[53]. In Bakker the penalties for drink driving were altered between the date of the offence and the date of the hearing and it was held that the new provisions had no application to an offence which pre-dated the alteration.

167. It is convenient here to mention the usual "exception" to the presumption against retrospectivity, that of statutes governing procedure as distinct from substance. Statutes which govern procedure are often said not to operate retrospectively because they deal not with existing rights and liabilities but only with the means of their enforcement. The better view is, I think, that such statutes, dealing with procedure only, serve to regulate the conduct of proceedings as from the date of their commencement (whenever the proceeding was instituted) and so do not purport to have any retrospective operation: Rodway v. R.[54]. No-one, it is said, has a vested interest in procedure remaining unchanged and so an alteration to the way in which a proceeding shall thereafter be conducted does not impinge at all upon existing rights or duties. Doro v. Victorian Railways Commissioners[55] is an example. The statute governing the amount of damages that could be recovered in an action against the Victorian Railways Commissioners for negligence was amended to increase the amount. The amendment came into operation after the cause of action arose but before the action came on for trial. It was held by Adam, J, that the amending Act should be given full effect as it purported only to regulate what could be recovered by way of damages at trial; it did not purport to alter in any way pre-existing rights and liabilities. The amendment was seen as affecting (in the future) what might happen at trial (in the future) and not the underlying (and pre-existing) liability of the Commissioners which remained unchanged. (That is perhaps how, had it not been for the express transition provision in s.11 of the 1994 Act, one would have regarded the new sub-s.(11A) which was added to s.93 in 1994 to exclude from the damages recoverable under Lord Campbell's Act any amount paid by the Commission for death benefits; but that need not be pursued.)

170. On any view, s.104 is no mere matter of procedure; it deals in substantive rights, adding a new right to the armory of the Commission and exposing the tortfeasor to a liability which was new on 19 May 1998. Mr Uren stresses that the right and the corresponding liability are indeed new and that attaching as they do only to payments after 19 May, s.104 cannot be said to be operating retrospectively. But that is surely only part of the picture; the indemnity afforded to the Commission by s.104 cannot be viewed in isolation. The amendment to s.104 effected a change to the existing legislative scheme, a scheme which, as we have seen, went well beyond the provisions of s.104. The scheme as a whole is not unlike that which was first set up years ago in relation to workers compensation. As with workers compensation, the occurrence of injury or death in the prescribed circumstances attracts an entitlement to compensation (see s.35) which must be paid by the Commission according to the Act, sometimes in the form of a lump sum and sometimes by way of weekly payments. Entitlement in the beneficiaries and liability in the Commission to the beneficiaries are alike independent of wrongdoing with the result that there is not always a tortfeasor on whom the injury or death can be blamed. But where there is a tortfeasor, the right of the victim, or should the victim die the dependants, to recover damages for the tort is severely curtailed by s.93 of the Act (as already described) and, to the extent that compensation is paid under the Act, the tortfeasor is now largely absolved from the liability to pay damages, while the Commission, upon making the payments of compensation, gains the right to indemnity from the tortfeasor as provided by s.104. By s.104(2), the liability of the tortfeasor is not to exceed the amount which, but for the Act, the tortfeasor would have been liable to pay by way of damages and, as I apprehend it, sub-s.(3) is to like effect.

173. In summary, then, the Commission has thrust upon it the liability to make payments of compensation and is given the right (to the extent laid down in s.104) to be indemnified by the tortfeasor where one exists. Until 19 May 1998, that indemnity - and hence the liability of the tortfeasor to provide the indemnity - did not extend to death benefits, as I have construed s.104 as amended in 1994. When s.104 was amended as from 19 May 1998 to bring death benefits within the scope of the indemnity, that must have added to the existing liability of the tortfeasor where death occurred before 19 May if s.104 applied as amended. It may be accepted, as Mr. Uren contended, that s.104 extended the Commission's right to indemnity as from 19 May 1998 only in respect of payments of compensation made thereafter, but it is that very addition to what had hitherto been the scope of the indemnity which, to my mind, must add to an existing liability in the tortfeasor if the section as amended were allowed to operate in respect of a death which took place on 17 September 1995.

176. It is implicit in this conclusion that before 19 May 1998 the respondents in this case, as the relevant tortfeasors, were already under a liability in respect of the transport accident that occurred on 17 September 1995 (and more particularly perhaps, in respect of the death of Mrs. Smith), a liability which would only be increased if s.104(1) as amended in 1998 were allowed to operate in respect of that death. It will be recalled that the four boys who were passengers in Mrs. Smith's car on the day of accident were all injured and, by reason of their negligence which is now conceded, the tortfeasors plainly fell under a liability at common law for those injuries. Of course by s.93, the right of the boys to recover damages in any proceedings in respect of their injuries was severely curtailed: recovery of damages was permitted only if the relevant injury was "a serious injury" and then only on terms: see for example sub-ss.(7) and (11) under which amounts paid for compensation were, by and large, to be brought to account in reducing common law damages. In a case of death, a proceeding was still permitted under Part III of the Wrongs Act 1958 but again a general limit was imposed and, after the 1994 amendments, damages were to be reduced by compensation paid under ss.57, 58 and 59. Subject to the limitations imposed by s.93 on the right to recover damages, the tortfeasors were undoubtedly liable, upon the happening of the accident and the infliction of damage, for both the injuries and the death occasioned by their negligence.

179. Nor was the liability of the respondents as tortfeasors only to the immediate victims of their negligence and the dependants of Mrs. Smith. Because of their liability to pay damages, they were necessarily subject to s.104 and the obligation to indemnify the Commission, if and when the Commission made payments to which s.104 related. In respect of the boys who were injured, the liability of the tortfeasors must have arisen almost immediately, even if it depended upon payments first being made by the Commission; for such payments would have been made fairly promptly at least under s.60 for medical and like expenses. Indeed, at all times s.60 extended not only to cases of injury but also to cases of death, so that if any such expenses were incurred in relation to Mrs. Smith - and there were probably the funeral expenses - payment by the Commission must have attracted the obligation to indemnify which was found in s.104(1) as it stood at the time of the accident. Yet, on the construction I have preferred of s.104(1) as it stood in 1995, s.104(1) did not extend to the payment by the Commission of death benefits - and that meant that, although the respondents, if sued as tortfeasors for damages under Lord Campbell's Act, were entitled to have the damages reduced by the amount of compensation paid under ss.57 and 58, they were under no corresponding liability under s.104(1) (as it stood before the 1998 amendments) to indemnify the Commission in relation to those payments.

182. That that should be so might be thought to be a curious result but, as I have said, the language appears to me too plain to admit of a contrary view and, after all, the addition of sub-s.(11A) to s.93 was an amendment made deliberately in 1994, without any corresponding amendment to s.104(1) or (2). Whatever lay behind the lack of correspondence thus brought about, before 1998 the liability of the tortfeasors for payments made by the Commission under ss.57 and 58 was not included within the indemnity required of them under s.104(1). That being the extent of the liability of the respondents as defined by the Act until 19 May 1998, it could only have added to that liability if, by virtue of the amendments made in 1998, the indemnity required of them under s.104 was extended to include payments for death benefits notwithstanding that the death occasioning those benefits occurred before the amendments came into force. It is that extension of an existing liability which would not be justified in the absence of any clear intention on the part of Parliament to make the change.

185. Perhaps I should add this in case it is not already clear. In my opinion Mr. Uren's argument gained little, if anything from his emphasising the conditional nature of the Commission's right to an indemnity under s.104. True it is that the indemnity cannot be enforced before payment is made by the Commission under the Act: s.104(1) expressly stipulates that compensation must first have been paid[56]. Perhaps that does little more than deny any right to equitable relief against the prospective indemnifier before the payment of compensation (as to which see paragraph [37] above) but that need not detain us; for it is not the Commission's right to an indemnity which is ultimately determinative. Rather it is the effect on the indemnifier's liability, as it stood up until 19 May 1998, of the extension of that liability by the amendments which came into force on that day. The liability of the tortfeasor until 19 May 1998 lay, as I have said, in the liability at common law and under the Wrongs Act to pay damages to those injured in the accident and the dependants of Mrs. Smith; it lay also in such liability to the Commission as then existed under s.104. Even if that liability under s.104 was still conditional by 19 May 1998 (which seems to me improbable), it is now established that a right may be sufficiently recognised to warrant protection against legislative change, though the right be still "inchoate or contingent": Colonial Sugar Refining Co. Ltd. v. Irving[57], Free Lanka Insurance Co. v. Ranasinghe[58], Esber v. Commonwealth of Australia[59]; and what is true of a right, must surely be so also in respect of its correlative, the liability. I do not pursue it; for it seems to me that, when the scheme is regarded as a whole, the conclusion cannot be gainsaid that the liability of the respondents flowing from this transport accident, as measured up until 19 May 1998, must have been significantly increased if s.104, as amended in 1998, were now allowed to operate notwithstanding that the relevant death occurred in 1995.

188. The discussion thus far has assumed the absence of any contrary intention, that is, the absence of any clear indication by Parliament that s.104(1) should operate in relation to death occurring before 19 May 1998. As already mentioned, the common law presumption requires that such an intention be clearly evinced, whereas s.14(2) refers to such a contrary intention appearing "expressly"[60]. Either way, no submission was put to us that such an intention could be discerned in the legislation in this case. What was argued was that, if this Court should be of opinion that the Commission was seeking to apply s.104 retrospectively because Mrs. Smith's death occurred before 19 May 1998, the presumption against retrospective operation should be regarded as weaker because, on analysis, it was only just and proper that s.104(1), in extending the right of indemnity to death benefits, should apply in respect of deaths whenever occurring. Again reliance was placed upon the 1994 amendment to s.93 to include the new sub-s.(11A), which reduced the damages recoverable against a tortfeasor under Lord Campbell's Act by the amount of any payments made by the Commission for death benefits; in the absence of any corresponding extension to the indemnity afforded to the Commission under s.104, that was said to have produced a gap in the tortfeasor's liability which was inexplicable and unjustified, deserving to be remedied as an anomaly. Hence, it was suggested, the 1998 amendment to s.104 - and Mr. Uren relied upon what was said by Adam, J. in Doro[61] to the effect that, "where to give retrospective operation to a statute ... is required to rectify a manifest injustice", the presumption against such operation must be the weaker. For reasons already given, I am not persuaded: it seems to me that the amendment to s.93 was made quite deliberately in 1994, whatever the reason behind it, and it is only speculation to suppose that in 1998 Parliament saw the 1994 amendment as opening a "gap" which deserved to be filled. Nor, it must be said, was the filling of the gap, if such it was, "required to rectify a manifest injustice". What Adam, J. said in that regard has no application here.

191. For these reasons, I would conclude that if s.104(1) as amended in 1998 were allowed to apply in a case where the relevant death occurred before 19 May 1998, that would be giving the amended section retrospective operation which would not be justified, there being no clear indication that that was Parliament's intention. That conclusion supposes, however, that we are not constrained by the decision of this Court in Corangamite to decide to the contrary.

195. Mr. Uren relied upon Corangamite as authority directly against the conclusion I have otherwise reached. That case concerned the amendments to s.104 effected by s.42 of Act No.84 of 1994, amendments which, as we have seen, served to include within the indemnity afforded to the Commission payments made by the Commission by way of compensation under s.49 (that is, weekly payments for total loss of earning capacity). The question was whether that extension to the scope of the indemnity, which came into effect on 1 January 1995, had any application to payments made under s.49 to a person who had been injured in a transport accident on 20 March 1990. The Commission contended that s.104 as amended applied as well to accidents before the amendments as to those occurring afterwards. The Shire, which the Commission alleged was liable vicariously as a tortfeasor and so was the one from whom indemnity was being sought under s.104, denied negligence and denied that s.104 as amended in 1994 had any application to accidents occurring before the amendments came into operation, relying in part upon s.11 of the amending Act, a transition provision which, the Shire argued, expressly so provided. Section 11(2) declared that the Act as in force before 1 January 1995 should continue to apply to and in respect of a transport accident occurring before that date. At first instance the Shire was found liable for negligence but succeeded in its argument over s.104, the trial judge basing his conclusion in that regard in part upon s.11(2) and in part upon general principles of statutory construction. His Honour said in the course of his reasons for judgment:

"Courts lean against imposing an increased obligation upon a person by giving amending legislation retrospective operation unless Parliament makes such an intention clear."

The reference to the 1994 amendments "imposing an increased obligation upon a person" is in line with what I have said about the 1998 amendments.

201. From the decision on negligence the Shire appealed, unsuccessfully. From the decision on s.104 the Commission cross-appealed and it succeeded. The Shire's argument based upon s.11(2) was rejected by the Court of Appeal on the ground that s.11, occurring within Part 2 of the 1994 Act had nothing to say about amendments which were to be found in Part 3 (the relevant amendments to s.104 being within Part 3, in s.42). The Shire could therefore gain no support from s.11 and nothing that was put to us on the present appeal impinged in any way upon this Court's decision on the meaning and effect of that section. All that may be put aside.

204. But in Corangamite, once s.11 was left apart, it remained to decide whether, if s.104 as amended in 1994 was allowed to operate in relation to injury occurring before amendment, that would be to accord it retrospective operation. Buchanan, J.A., with whom the other members of the Court agreed, concluded that that would not be so, thereby making the common law presumption against retrospectivity, and s.14(2), simply irrelevant. That was because, in his Honour's view, no matter when the injury occurred the payments in respect of which indemnity was afforded by the amended s.104 were necessarily payments made only after the amendments came into force; before then payments of compensation under s.49 were simply not within the terms of s.104. This was the argument put by Mr. Uren for the Commission in Corangamite and it was much the same as the argument he put to us on this occasion.

207. In the course of his reasons for judgment, Buchanan, J.A. said[62]:

"Further, in my opinion the shire had no existing right within the meaning of s.14(2)(e) of the Interpretation of Legislation Act before the amending Act [of 1994] to be free from an obligation to indemnify the commission against payments for loss of earning capacity [under s.49]. The fact that there existed a limited liability to indemnify the commission [under sections other than s.49] did not carry with it a right to be free in future from a more extensive liability to indemnify the commission. As the Full Court said in Robertson v. City of Nunawading [1973] VicRp 81; [1973] V.R. 819 at 825: `There cannot, in any relevant sense, or perhaps in any sense, be a "right" to exemption or immunity from legislative action. The taking of legislative action in a field where previously there was none cannot be treated as an impairment of a right for the purpose of the principle.'"

211. Robertson, however, was a very different case. In Robertson, new planning restrictions had come into force and, in reliance upon his application for permission to subdivide which had been submitted before the new restrictions came into force, the landowner was contending that he should be entitled to have his application considered free of the new restrictions. That argument was rejected and it was in that context that it was said by the Full Court that there cannot be a "right", deserving of protection, simply to exemption or immunity from legislative action. Indeed the landowner was seeking not to assert a "right" as such, but merely a power, and a continuing power, to take advantage of the law as it used to be notwithstanding the introduction of the altered restrictions; and such a "right" or power is not a "right acquired or accrued" which attracts the common law presumption against retrospectivity or s.14(2) of the Interpretation of Legislation Act. There are many cases to that effect: see, in addition to Robertson, Abbott v. Minister for Lands[63], Heston and Isleworth U.D.C. v. Grout[64], Director of Public Works v. Ho Po Sang[65], Free Lanka Insurance Co. Ltd. v. Ranasinghe[66], Total (Australia) Ltd. v. Registrar of Companies[67], Mathieson v. Burton[68], Saltergate Ins. Co. Ltd. & Companies Act (No.1)[69] and McDonald v. Commissioner of Business Franchises[70].

214. In contrast it is now established that something which is more truly a right in existence may be treated as a "right acquired or accrued" for such purposes, even though the right is still "inchoate or contingent" (as I mentioned above, in paragraph [53]) and perhaps the best example of that is found in Colonial Sugar Refining Co. Ltd. v. Irving[71] where the direct right of appeal to the Privy Council was preserved from abolition by the Judiciary Act 1903 (Cth) even though that Act came into force while the decision below was still pending: see also Hollingsworth v. Commissioner of Police[72]. There are difficulties in the recognition of such "inchoate or contingent rights", especially where the right asserted is to proceed with a hearing, and distinctions are sometimes drawn between a right to no more than an administrative hearing and a right to a judicial determination, or between a right to the exercise of discretion and a right to a ruling independent of discretion (see and compare Continental Liqueurs Pty. Ltd. v. G.F. Heublein & Bro. Inc.[73], Official Assignee v. NZI Life Superannuation Nominees Ltd.[74], Plewa v. Chief Adjudication Officer[75], Esber v Commonwealth[76], Gerrard v. Mayne Nickless[77], Chief Adjudication Officer v. Maguire[78] and the discussion by Kenny, J.A. in Felman v. Law Institute of Victoria[79]); but such difficulties are not presently relevant. I have added the foregoing only in order to emphasise that Robertson has no application here, where the liability of the respondents to the Commission under s.104 was measured by the Act before the 1998 amendments and, even if that liability should itself be treated as conditional upon payment of compensation by the Commission from time to time, it was in my opinion nevertheless such a liability, already in existence, as to warrant protection under s.14(2) and the common law presumption against according retrospectivity without sufficient indication of legislative intent to that effect.

217. What then of Mr. Uren's submission that the decision in Corangamite, that s.104 as amended in 1994 applied to injury both before and after the commencement of the 1994 amendments, was a decision of this Court which, being binding upon us, required us to determine that s.104 as amended in 1998 applied to death both before and after the 1998 amendments came into force? I must say that if all else were equal I would be reluctant to give effect to this submission, given that in Corangamite the question of retrospectivity appears to have been argued only by one side, the Commission. As noted by Buchanan, J.A. in the reasons for judgment[80], counsel for the Shire did not seek to sustain the trial judge's conclusion otherwise than by reference to s.11(2) of the 1994 Act (a point on which he properly failed). The Court therefore had the benefit only of the argument put to us by Mr. Uren, that s.104 as amended was not operating retrospectively if it applied only to payments by the Commission in furtherance of its own liability under the Act, which were made after the amendments to s.104 came into force. No argument was put that s.104 was none the less being given retrospective force by dint of its increasing the pre-existing liability of the wrongdoer to the Commission under s.104.

220. It is perhaps curious that in Corangamite counsel did not seek to sustain the decision at first instance by reference to common law principles of statutory construction or s.14(2) of the Interpretation of Legislation Act. Perhaps - and here I speculate - counsel for the Shire saw the scheme of the Act both before and after the 1994 amendments as standing in the way of any such argument over payments by the Commission under s.49 in particular. It will be recalled (from what I have said in paragraph [25]) that before the 1994 amendments s.93(11) required an order (upon a successful action being brought by the victim for damages) for payment to the Commission out of the damages otherwise recovered by the plaintiff of the amount of any payments made by the Commission under, inter alia, s.49. That scheme was changed by the 1994 amendments: instead of an order for payment to the Commission out of the damages otherwise recovered, those damages were to be reduced by the amount of any payments made by the Commission under, inter alia, s.49 and under s.104(1) the tortfeasor was to indemnify the Commission for the payments so made. Perhaps counsel for the Shire saw the 1994 amendments as amounting to no more than a shift in form, from an order for payment under s.93(11) in favour of the Commission to an obligation to indemnify the Commission directly under s.104(1). If so, that would certainly be a point of distinction here, where the tortfeasor was under no liability after the 1994 amendments for death benefits paid by the Commission, even when damages were recovered by an action "in accordance with" s.93; it will be recalled that that was the result of adding s.93(11A) (which effectively diminished the liability of the tortfeasor in the case of a successful action for damages under s.93) without there being at the same time any corresponding increase in the wrongdoer's liability to indemnify the Commission under s.104 - the increase that was effected only by the 1998 amendments.

223. Mr. Elliott submitted that Corangamite was distinguishable because of what he said were differences between the payments required of the Commission under s.49 of the Act and the payments which were due under s.58. The latter, counsel argued, gave rise to liability in the Commission on the death of the victim; the former were subject to a continuing and changing state of affairs dependent, in part, upon the views of the Commission from time to time. In this regard he referred in particular to ss.49(1) and (4), 53, 55(1), (2) and (4) and 74 to demonstrate what he called "an ongoing process" of assessment and review. Mr Uren denied that there was any such point of distinction between death benefits and injury benefits and I must say that, as at present advised, I am not much persuaded of the difference asserted. I agree with Mr. Elliott that, in the case of death resulting from a transport accident, liability arises in the Commission when death occurs, notwithstanding perhaps the need to determine, from time to time, the amount of periodic payments to be made (as to which see and compare ss.58 and 59) and I am not yet clear why it should be otherwise when injury is the result, not death. I think it better, however, not to decide the matter finally in case it subsequently becomes material in a different context. Instead I simply assume, without deciding, that Corangamite cannot be distinguished on the ground taken by Mr. Elliott.

226. There is, however, another point of distinction, which I think is valid, between the case of injury dealt with in Corangamite and the case of death. It must always be remembered that the common law presumption against retrospectivity is but an aid to construction, as indeed is its statutory counterpart, in s.14(2) of the Interpretation of Legislation Act. In Corangamite the concern was the word "injury" in s.104; did it mean only injury after the commencement of the amendments in question or did it include also injury before then? The answer that it applied to "injury" both before or after the 1994 amendments meant that word did not change in its operation; for it could be said that both before and after the 1994 amendments s.104 applied, inter alia, to "injury" occurring before the 1994 amendments. In other words, the payments by the Commission in respect of injury, and for which the wrongdoer was liable to indemnify the Commission under s.104, may have changed (by addition) but the injury to which that section referred did not. Undoubtedly the liability of the tortfeasor to indemnify the Commission under s.104 for injury benefits was increased by adding in the benefits paid by the commission under more sections (including s.49), but in Corangamite that did not have to be determinative. Moreover, the conclusion that there was no change in the meaning or application of the word "injury" was arguably reinforced if the increase in the tortfeasor's liability under s.104, as amended in 1994, could properly be seen as reflecting the reduction in the wrongdoer's liability effected by the then newly enacted s.93(11) when action "in accordance with" s.93 was successful.

229. Such considerations are altogether absent here. In the case of death the liability of the tortfeasor, when action was brought and succeeded under s.93, was diminished when s.93(11A) was enacted in 1994; under s.104 the tortfeasor's liability to indemnify the Commission existed only in respect of injury benefits (of one type or another) until the 1998 amendments. Section 104, and in particular sub-s.(1), did not extend to a case of death until 1998 and there is no reason then why the word "death" in s.104 should not be taken to mean only death after the amendments came into force. That word was new to s.104(1) in 1998 and the question whether s.104(1) as then amended should have application to death occurring before those amendments is properly referred to the common law presumption against retrospectivity, or its statutory equivalent. Whichever be applied, the decision in Corangamite does not govern: it is distinguishable. Therefore I reject Mr. Uren's submission that the decision in that case compels us to a conclusion other than that expressed in paragraph [55].

233. Accordingly, while I agree with Mr. Uren that s.104 as amended in 1998 operates prospectively and thus only in relation to payments made by the Commission after the 1998 amendments came into operation, I consider that it does not apply in respect of a death occurring before 19 May 1998. To allow it to operate in such a case would be to give it retrospective operation by serving to add significantly to the existing liability of the respondents for the results of the accident

on 17 September 1995, without in my opinion there being anything in the amending Act of 1998, or indeed in the principal Act as amended, to justify concluding that that was Parliament's intention. It is perhaps unfortunate that Parliament did not see fit to make its intention (whatever it was) clear by express enactment: for instance it would have been a very simple matter to provide expressly that s.104 as amended in 1998 should apply irrespective of the date on which either injury or death occurred, and in particular whether before or after the amending Act came into force. But Parliament chose to stay silent; perhaps it was thought too difficult to be clear about the justice of according retrospective operation to s.104 as amended. Be that as it may, we must do the best we can with what we have and in all the circumstances I think that s.104 should be held not to provide indemnity for death benefits paid when death has occurred before 19 May 1998, there being no clear Parliamentary intention to the contrary.

237. Earlier in these reasons I expressed my conclusion that s.104 as it stood at the time of the accident on 17 September 1995 did not require the respondents to indemnify the Commission in respect of the payment by it of death benefits in consequence of the death of Mrs. Smith. That being the only other argument advanced to sustain the Commission's claim, as presently formulated, to an indemnity for the payment of benefits under s.58 of the Act on and after 19 May 1998, it follows that in my opinion the appeal should be dismissed.

242. I have had the considerable advantage of reading the reasons for judgment prepared by Phillips, J.A. I agree that the appeal should be dismissed, substantially for the reasons given by his Honour. I also agree with the reasons for judgment prepared by Winneke, A.C.J. and in particular the observations in [13] as to Corangamite v. Transport Accident Commission.[81]

[1] [1921] 1 K.B. 526.

[2] [1982] VicRp 44; [1982] V.R. 437, particularly per Murphy, J. at 441.

[3] Maxwell v. Murphy [1957] HCA 7; (1957) 96 C.L.R. 261 at 267 per Dixon, C.J.; Fisher v. Hebburn Ltd.[1960] HCA 80; (1960) 105 C.L.R. 188 at 202 per Kitto and Menzies, JJ.

[4] [1993] 3 V.R. 304.

[5] cf. Nguyen v. Nguyen [1990] HCA 9; (1990) 169 C.L.R. 245 at 268-70; R. v. Tait [1996] VicRp 48; [1996] 1 V.R. 662 at 666; Farrar v. Western Metropolitan College of TAFE [1998] VSCA 25; [1999] 1 V.R. 224 at 228-9.

[6] see Shire of Corangamite v. Transport Accident Commission, supra, at 310 per Buchanan, J.A.

[7] [1999] VSCA 220; [1999] 3 V.R. 304.

[8] [1955] HCA 27; (1955) 92 C.L.R. 390.

[9] [1981] HCA 26; (1981) 147 C.L.R. 297 especially at 304-5 per Gibbs, C.J., at 310-2 per Stephen, J., at 319-20 per Mason and Wilson, JJ., and at 336-9 per Aickin, J. (dissenting).

[10] [1985] HCA 48; (1985) 157 C.L.R. 309 especially at 312-3 per Gibbs, C.J., at 315 per Mason, J., at 321 per Deane, J.

[11] [1998] HCA 28; (1998) 194 C.L.R. 355.

[12] Nor was there anything of assistance in the Parliamentary Debates of 1994.

[13] To use the language of Mason and Wilson, JJ. in Cooper Brookes at 320.

[14] Commonly by reference to the speech of Lord Mersey in Thompson v. Goold & Co. [1910] A.C. 409 at 420: see for example Pearce and Geddes, Statutory Interpretation in Australia, 4th ed. 1996, par. 2.16.

[15] [1972] HCA 27; (1972) 124 C.L.R. 640 at 649 per Stephen, J.

[16] [1978] 1 W.L.R. 231 at 234-5, 236, 237, 238, and 238-9.

[19] [1921] 1 K.B. 526.

[20] [1974] HCA 5; (1974) 130 C.L.R. 321.

[21] [1982] VicRp 44; [1982] V.R. 437.

[23] See also [1938] 2 K.B. 16.

[24] [1992] VicRp 50; [1992] 1 V.R. 691. Not dissimilar questions have arisen about the nature of a claim for contribution: see for example Unsworth v. Commissioner for Railways [1958] HCA 41; (1958) 101 C.L.R. 73, Genders v. G.I.O. of N.S.W. [1959] HCA 30; (1959) 102 C.L.R. 363 (considered in State Government Insurance Office (Qld.) v. Crittenden [1966] HCA 56; (1966) 117 C.L.R. 412 and Australian Safeway Stores Pty. Ltd. v. Inc. Nom. Defendant [1980] VicRp 14; [1980] V.R. 118.

[25] Unreported, Federal Court of Australia, 27 February 1997, Lee, J.

[26] [1992] FCA 567; (1992) 39 F.C.R. 74.

[27] (1993) 7 ANZ Ins. Cas. 61-158.

[28] [1927] A.C. 126.

[29] [1945] HCA 29; (1945) 70 C.L.R. 647.

[30] [1972] UKPCHCA 1; (1972) 123 C.L.R. 673.

[31] [1969] HCA 13; (1969) 119 C.L.R. 301.

[32] [1971] VicRp 63; [1971] V.R. 503.

[33] [1979] VicRp 45; [1979] V.R. 417.

[34] [1980] VicRp 22; [1980] V.R. 177.

[35] [1992] VicRp 84; [1992] 2 V.R. 522 at 526 (quoting Tadgell, J.).

[36] (1995) 36 N.S.W.L.R. 630.

[37] [1960] HCA 80; (1960) 105 C.L.R. 188.

[38] [1977] HCA 17; (1977) 136 C.L.R. 379.

[39] [1967] HCA 30; (1967) 116 C.L.R. 537 (H.C.), (1968) 118 C.L.R. 32 (P.C.).

[40] [1967] HCA 30; 116 C.L.R. 537.

[41] [1968] UKPCHCA 1; 118 C.L.R. 32.

[42] [1960] HCA 80; (1960) 105 C.L.R. 188 at 202.

[44] [1971] HCA 4; (1971) 124 C.L.R. 1 at 22.

[45] [1898] 2 Q.B. 547 at 551-2.

[46] West v. Gwynne [1911] 2 Ch. 1 at 11-12 per Buckley, L.J.

[47] 96 C.L.R. at 285. See Victrawl Pty. Ltd. v. Telstra Corporation Ltd. [1995] HCA 51; (1995) 183 C.L.R. 595 at 620-1.

[48] [1848] EngR 746; (1848) 12 Q.B. 120 at 127[1848] EngR 746; , 116 E.R. 811 at 814.

[49] [1992] 3 All E.R. 606 at 613.

[50] [1997] FCA 154; (1997) 73 F.C.R. 303.

[51] [1911] 2 Ch. 1.

[52] [1957] 1 W.L.R. 1219.

[53] [1980] VicRp 2; [1980] V.R. 17 at 21-2.

[54] [1990] HCA 19; (1990) 169 C.L.R. 515 at 518-9.

[55] [1960] VicRp 12; [1960] V.R. 84.

[56] The expression "has paid" probably means "shall have paid": Athlumney [1898] 2 Q.B. at 553 per Wright, J.

[57] [1905] A.C. 369.

[58] [1964] A.C. 541.

[59] [1992] HCA 20; (1992) 174 C.L.R. 430.

[60] As to this word, see J and P Lemming Holdings v. O'Keefe [1984] VicRp 79; [1984] V.R. 1005 at 1011-1013.

[63] [1895] A.C. 425.

[64] [1897] 2 Ch. 306.

[65] [1961] A.C. 901 at 924.

[66] [1964] A.C. 541 at 552.

[67] [1969] VicRp 104; [1969] V.R. 821 at 823.

[68] [1971] HCA 4; (1971) 124 C.L.R. 1 at 23.

[69] [1984] 3 N.S.W.L.R. 384.

[70] [1993] VicRp 95; [1993] 2 V.R. 632 at 649.

[71] [1905] A.C. 369 at 372-3.

[72] (1998) 47 N.S.W.L.R 104 at 116-7.

[73] [1960] HCA 37; (1960) 103 C.L.R. 422 at 426-7.

[74] [1995] 1 N.Z.L.R. 684 at 695.

[75] [1995] 1 A.C. 249.

[76] [1992] HCA 20; (1992) 174 C.L.R. 430.

[77] (1996) 135 A.L.R. 494 at 509-514.

[78] [1999] EWCA Civ 1060; [1999] 1 W.L.R. 1778.

[79] [1998] 4 V.R. 324 at 333-5.

[81] [1993] 3 VR 304.