30 Mr Greenwood, who appeared with Ms Burke for CGU, submitted that the decision in National Mutual does not assist. He submitted that the question of construction with which Glass JA was concerned in that case was the extent of the contractual liability of the insurer to indemnify the insured. In my view, however, it is clear that his Honour's remarks set out above embrace the question whether the statutory description "liability to pay any damages" in s 6(1) of the Law Reform (Miscellaneous Provisions) Act extends to include a tortfeasor's liability to pay a contribution to another tortfeasor: 407G-408A. Accordingly I accept, as submitted by Mr Marshall, that there is a strong analogy between the proposition rejected by the Court of Appeal in National Mutual and the proposition now contended for on behalf of CGU.
The clear words of the section
31 It was further submitted on behalf of CGU that a potential liability to be determined in the future does not fall within the ordinary meaning of the words in s 601AG. CGU contended that the use of the past tense throughout the section indicates that Parliament intended to provide for a limited application of the section, namely, where a liability existed that was determinate or "crystallised".
32 Mr Greenwood submitted, with some force, that alternative words could easily have been used if a more expansive approach was intended. He provided a form of words which he submitted would have been used if the legislature had intended the result contended for by the doctors, as follows (including his emphasis):
"A person may recover from the insurer of a company that is deregistered an amount that was or would have been payable to the company under the insurance contract, if:
(a) the company had a liability to the person or if a liability to the person by the company is established at some time in the future ; and
(b) the insurance contract covered or would have covered that liability immediately before deregistration."
33 In my view, the suggested alternative wording merely serves to highlight the conceptual difficulty that sometimes arises when Parliament creates a statutory cause of action for recovery of an amount from an insurer by a stranger to the contract of insurance. I accept that clearer words might have been used in s 601AG, which might have obviated the present dispute. I do not, however, accept that the section clearly refers only to a liability that was determinate or crystallised immediately before deregistration of the company in question.
34 In my view, the apparent complexity of s 601AG is resolved in the recognition of the following matters. The section is remedial. It creates a new cause of action to recover an amount that was payable to the deregistered company under the relevant insurance contract: Almario at [19]. There is no requirement for leave to bring an action under the section: cf s 6(4) of the Law Reform (Miscellaneous Provisions) Act. In particular, the conditions set out in s 601AG(a) and s 601AG(b) 601AG are not expressed as pre-conditions to the commencement of proceedings to recover an amount under that section. Rather, proof of those matters is expressed as a condition of recovery in accordance with the section.
35 Accepting that a claim for recovery under the section is a discrete statutory cause of action (not a claim for damages), the central inquiry is to understand the content of the elements of such a claim. The first element required to be proved is that the (now deregistered) company "had a liability" to the claimant. Once it is accepted, as recognised by the Court of Appeal in National Mutual, that the liability of one tortfeasor includes his "secondary liability" to contribute to the damages payable by another, it is clear in my view that what is required under s 601AG(a) is to prove, at the time of the hearing, that the deregistered company was a joint tortfeasor immediately before deregistration.
Conclusions as to the separate questions
36 It follows, in my view, that the fact that the plaintiffs had not obtained judgment against the doctors prior to the deregistration of the hospital does not preclude the doctors from recovering on their cross claims against CGU pursuant to s 601AG of the Corporations Act.
37 The second separate question raises the issue whether, in order to satisfy the requirement in s 601AG(a), the doctors must establish that the hospital had a liability to them immediately before deregistration of the hospital. That issue arises because the words "immediately before deregistration" appear only at the conclusion of s 601AG(b), raising an issue as to whether those words also qualify the condition set out in s 601AG(a). Mr Marshall accepted that the decision of the Court of Appeal in Almario determines that question, requiring me to hold that, in order for the doctors to recover pursuant to s 601AG, they must establish that the hospital had a liability to them immediately before deregistration of the hospital.
38 As to the third question, I accept, as submitted by Mr Marshall, that if it is established at a final hearing that the hospital and the doctors are tortfeasors each liable to the plaintiff and are entitled to recover contribution from each other, those findings will establish that the hospital "had a liability" to the doctors immediately before deregistration within the meaning of s 601AG(a).
39 It follows that the separate questions must be answered "No", "Yes" and "Yes" respectively.