Allianz Australia insurance Ltd v Mercer - [2014] TASFC 3

[2014] TASFC 3

COURT: SUPREME COURT OF TASMANIA (FULL COURT)

CITATION: Allianz Australia Insurance Ltd v Mercer [2014] TASFC 3

PARTIES: ALLIANZ AUSTRALIA INSURANCE LTD

(ACN 000 122 850)
v
MERCER, Ivan

FILE NO: 326/2013
JUDGMENT

APPEALED FROM: Mercer v Allianz Australia Insurance Ltd

[2013] TASSC 11; (2013) 273 FLR 459

DELIVERED ON:  9 May 2014
DELIVERED AT:  Hobart
HEARING DATE:  13 November 2013
JUDGMENT OF:  Tennent, Porter and Wood JJ

CATCHWORDS:

Insurance – Claims generally – Claims by third party where insured absent or dead – Where company deregistered – Statutory cause of action against insurer where company had a liability to claimant immediately before deregistration – Applicable limitation period is that relating to cause of action which the claimant had against the company.

Corporations Act 2001 (Cth), s601AG.
Aust Dig Insurance [11]

Limitation of Actions – Limitation of particular actions – Accrual of cause of action and when time begins to run – Other matters – Deregistered company – Statutory cause of action against insurer where company had a liability to claimant immediately before deregistration – Applicable limitation period is that relating to cause of action which the claimant had against the company.

Almario v Allianz Australia Workers Compensation (NSW) Insurance Ltd (2005) 62 NSWLR 148, applied; Kinzettv McCourt (1999) 46 NSWLR 32, considered; Pagnon v WorkCover Queensland [2001] 2 Qd R 492, distinguished.
Aust Dig Limitation of Actions [1035]

REPRESENTATION:

Counsel:
             Appellant:  G Rich SC and F Ashworth
             Respondent:  J Ruskin QC and M Hooper
Solicitors:
             Appellant:  Page Seager
             Respondent:  Phillips Taglieri

Judgment Number: [2014] TASFC 3
Number of paragraphs: 186

Serial No 3/2014
File No 326/2013

ALLIANZ AUSTRALIA INSURANCE LTD v IVAN MERCER

REASONS FOR JUDGMENT FULL COURT

TENNENT J
PORTER J
WOOD J
9 May 2014

Orders of the Court

The appeal is allowed.

The judgment dated 24 July 2013 and the determination of Blow CJ of 12 April 2013 are set aside.

The Court determines that, assuming all the allegations in the statement of claim are proved, and assuming the allegations of fact pleaded in the defence as to the date of discoverability are proved, Mr Mercer is precluded from recovering any damages or monies from Allianz in the action against it.

The issue pleaded in par16 of the appellant's defence dated 20 May 2013 is remitted for determination by a single judge.

There is liberty to apply in relation to order No 4.

Serial No 3/2014
File No 326/2013

ALLIANZ AUSTRALIA INSURANCE LTD v IVAN MERCER

REASONS FOR JUDGMENT FULL COURT

TENNENT J
9 May 2014

I have had the opportunity to read the detailed reasons of Porter J in draft form. I agree with those reasons. I would also allow the appeal. I also agree, for the reasons Porter J has stated, with the manner in which he proposes the matter be disposed of. However, I would hear counsel as to any alternative process they might wish to suggest.
File No 326/2013

ALLIANZ AUSTRALIA INSURANCE LTD v IVAN MERCER

REASONS FOR JUDGMENT FULL COURT

PORTER J

9 May 2014

Introduction

This appeal is about the construction of s601AG of the Corporations Act 2001 (Cth), and its operation in the context of limitation periods. The respondent, Mr Mercer, brought proceedings pursuant to that section against the appellant, Allianz Australia Insurance Ltd. The section is in the following terms:
"Claims against insurers of deregistered company
A person may recover from the insurer of a company that is deregistered an amount that was payable to the company under the insurance contract if:
(a)the company had a liability to the person; and
(b)the insurance contract covered that liability immediately before deregistration."
In March 2008, Mr Mercer was injured in the course of his employment with Windsor Agencies Pty Ltd. On 5 March 2010, acting in accordance with s138AB of the Workers Rehabilitation and Compensation Act 1988 (Tas), he lodged an election to claim damages against his employer, his whole person impairment having been assessed at not less than 30 per cent. Although this does not have particular significance in the case, Mr Mercer's cause of action against Windsor Agencies accrued on that day: Skilled Engineering Ltd v Glaxo Wellcome Australia Pty Ltd (2005) 15 Tas R 88.
On 26 January 2011, Windsor Agencies was deregistered, and on 21 February 2012, Mr Mercer instituted the s601AG proceedings against Allianz.
Section 5A(3) of the Limitation Act 1974 (Tas) (the Limitation Act) provides that an action for damages for negligence, nuisance or breach of duty involving claims for damages for personal injuries, must not be brought after the expiration of one of two periods of limitation, whichever is the earlier. Those periods are:
"(a)3 years commencing on the date of discoverability;
(b)12 years commencing on the date or act or omission which it is alleged resulted in the personal injury or death that is the subject of the action."
The Limitation Act does not contain any provision enabling those limitation periods to be extended, or for leave to be granted for an action to be brought after they have expired[1]. The period of limitation under s5A(3) relevant to this case is three years commencing on the date of discoverability, as referred to in s5A(3)(a).
[1] Section 26 of the Limitation Act provides that if a person proposing to bring an action to which s5A applies is under a disability when the cause of action accrues or as a result of the cause of action accruing, the period of limitation under s5A applies when the person ceases to be under a disability or dies.
In its defence in the action, Allianz pleaded that the date of discoverability was 3 September 2008, and that the plaintiff's claim was statute barred. For Mr Mercer, it was contended that s5A(3) of the Limitation Act did not apply to the s601AG action. The critical fact is that, assuming the date of discoverability was as alleged, at the time of Windsor Agencies' deregistration Mr Mercer was still within the time limited for bringing an action against it. But adopting that time limit, he was "out of time" as against the company when he sued Allianz as the insurer.
Blow CJ made an order for the determination, before the determination of any other issues in the case, of the question whether, assuming all the allegations in the statement of claim were proved, and assuming the allegations of fact pleaded in the defence as to the date of discoverability were proved, Mr Mercer was precluded from recovering any damages or monies from Allianz in the action against it.
Blow CJ also dealt with the preliminary issue and, after hearing argument, determined that if those assumptions were made, Mr Mercer was not precluded from recovering monies from Allianz. Blow CJ went on to try the action. His Honour found that Mr Mercer's injuries were caused by the negligence of a fellow employee for whose actions Windsor Agencies was vicariously responsible, that as a result of Windsor Agencies' deregistration Mr Mercer was able to recover an amount equal to Windsor Agencies' "previous liability" to him, that Mr Mercer contributed to his own injuries, and that the amount recoverable should be reduced by 25 per cent. Judgment was entered against Allianz for the sum of $5,095,516.
The appeal is against that judgment but only concerns the determination of the preliminary issue. For the reasons which follow, I would allow the appeal.

The trial judge's determination

The trial judge published reasons for his determination. The medium neutral citation is [2013] TASSC 11; it is reported in 273 FLR at 459. After setting out the facts and the relevant legislation, his Honour dealt with the nature of an action under s601AG. He noted that the effect of the section was considered in Almario v Allianz Australia Workers Compensation (NSW) Insurance Ltd (2005) 62 NSWLR 148 (Almario), and referred to pars [19] and [20] of the judgment of Ipp JA, with whom Hodgson JA and Hunt AJA agreed.
In summary, what Ipp JA said in the passage referred to was that s601AG created a new cause of action which was not a claim for damages. The two conditions to which the s601AG claim was subject, pars(a) and (b), were expressed in the past tense; the inference being that the time for determining whether the deregistered company had a liability to the person claiming, and whether the insurance contract covered that liability is "immediately before deregistration", that being the phrase qualifying condition (b). In apparent reference to the inference, Ipp JA noted that "This was not disputed".
The trial judge went on to say that this analysis was accepted as correct in Fairwater Pty Ltd v QBE Insurance (Australia) Ltd [2012] WASCA 270. His Honour quoted the following part of the judgment of Pullin JA, with whom Newnes and Murphy JJA agreed:
"3 Section 601AG creates a new cause of action against an insurer to recover an amount that was payable to the deregistered company under an insurance contract …
4 The new cause of action does not arise until the company having the benefit of the insurance is deregistered. Any defences that the insurer may have had at that point to an action on the insurance contract may be pleaded by it in defence to the s 601AG claim and any defence the insured may have had to the claim against the insured may be advanced to show that the insured had no liability to the plaintiff."
The trial judge then held, by applying s79(1)[2] of the Judiciary Act 1903 (Cth), that as there was no applicable Commonwealth limitation legislation, the Tasmanian limitation legislation applied; in particular, s4(1)(d) of the Limitation Act. That provides that an action to recover any sum recoverable by virtue of enactment, other than a penalty or forfeiture of a sum by way of penalty or forfeiture, shall not be brought after the expiration of six years after the date on which the cause of action accrued.
[2] State or Territory laws to govern where applicable
(1) The laws of each State or Territory, including the laws relating to procedure, evidence, and the competency of witnesses, shall, except as otherwise provided by the Constitution or the laws of the Commonwealth, be binding on all Courts exercising federal jurisdiction in that State or Territory in all cases to which they are applicable.
His Honour then noted the arguments put on behalf of Allianz. In essence they were that, assuming the date of discoverability was no later than 3 September 2008, Mr Mercer's cause of action against Windsor Agencies would have become statute barred by virtue of s5A(3)(a) of the Limitation Act on 3 September 2011. (As noted above, the s601AG action was not commenced until 21 February 2012.) For the purposes of determining whether Windsor Agencies "had a liability" to Mr Mercer within the meaning of s601AG(a), Allianz should be treated as if it were Windsor Agencies. It followed that a limitation defence based on s5A(3)(a) could succeed, and that the defence would succeed if it were established that the date of discoverability was more than three years before the issue of the writ.
At the hearing, Allianz relied on Almario, Tzaidas v Child (2009) 74 NSWLR 208, Murdock v Lipman Pty Ltd [2012] NSWSC 983 and Pagnon v WorkCover Queensland [2001] 2 Qd R 492 (Pagnon). The trial judge distinguished the first three cases relied on, and held that an aspect of Pagnon, different to that relied on by Allianz, supported Mr Mercer's arguments. I will later discuss these cases in greater detail.
The concluding paragraphs of the trial judge's reasons are as follows:
"31   When a company is reinstated, it is taken to have continued in existence as if it had not been deregistered: Corporations Act, s601AH(5). In that situation, therefore, the prima facie position is that, for limitation purposes, time is taken to have continued to run during the period of deregistration. However, when a court makes an order for the reinstatement of the registration of a company, s601AH(3)(b) empowers that court to 'make any other order it considers appropriate'. Under that provision, an order can be made for the period of deregistration not to be counted for the purposes of a limitation statute: In re Lindsay Bowman Ltd [1969] 1 WLR 1443; Pagnon v WorkCover Queensland (above) per McPherson JA, with whom Thomas JA and Muir J agreed, at pars[12] – [17]. If the arguments advanced on behalf of the defendant in this case are correct, it would follow that, when a company is deregistered, and the limitation period for proceedings against it subsequently expires without proceedings having been instituted, then, unless there is a statutory discretion to extend time, the claimant would need to apply to a court for the reinstatement of the company and an order under s601AH(3)(b) for the period of deregistration not to be counted for the purposes of the limitation statute. That is exactly the sort of situation that s601AG was intended to avoid. And the interpretation of the section that would best achieve its purpose or object must be preferred to any other interpretation: Acts Interpretation Act 1901 (Cth), s15AA.
32    This case raises the question whether, when the limitation period applicable to a claim against a company expires after deregistration without any statutory discretion to extend time, the liability that the company had constitutes a liability within the meaning of s601AG(a). Adopting a purposive interpretation of that provision must lead to the answer that, in that situation, the liability of the deregistered company constitutes a liability within the meaning of s601AG(a).
33    The only limitation period relevant to this case is that imposed by the Limitation Act, s4(1)(d), which imposes a six-year limitation period commencing upon the date of deregistration. Section 5A(3)(a) of that Act cannot be relied upon by the defendant." [Emphasis added.]

The appeal

There is one ground of appeal. It alleges that the trial judge erred in precluding Allianz from relying on s5A(3) of the Limitation Act in its defence of the proceedings and, in particular, his Honour erred:
(a)in determining that the limitation period set out in s4(1)(d) of the Limitation Act is applicable to actions under s601AG of the Corporations Act;
(b)in determining that the limitation period set out in s5A(3) of the Limitation Act is not applicable to actions for damages in negligence brought under s601AG, where such damages are in respect of personal injuries; and
(c)in holding that Allianz was liable in damages to Mr Mercer in the amount of $5,095,556, or in any amount.

Section 601AG

That s601AG creates a new cause of action which is not a claim for damages but one for an amount that was payable to the deregistered company under the relevant insurance contract is plain on the face of the section and is confirmed by authority: Almario at 152 [19]; Fairwater Pty Ltd v QBE Insurance (Australia) Ltd (above); Tzaidas v Child (above) at 211 [11]; Murdock v Lipman (above) at [60]. In this case, Allianz did not argue to the contrary.
Section 601AG is contained within Ch 5A of the Corporations Act which deals with deregistration and the transfer of registration of companies. More particularly, the section is contained in Pt 5A.1 – "Deregistration". So too is s601AH, which is referred to by the trial judge in the passage from his Honour's reasons which I have set out above. That section makes provision for reinstatement of companies which have been deregistered.
Section 601AG was inserted into the principal Act in 1997. The Explanatory Memorandum to the Bill said of the proposed section:
"Third party rights against insured deregistered companies
15.22 At present, a person wishing to make a claim against a deregistered company may need to apply to a court for the reinstatement of the company in order to bring an action against it. The Bill enables a person to proceed directly against the insurer of a company that is deregistered, without seeking the company's reinstatement (Bill s 601AG). Comparable rights have previously been provided in other legislation, for example, section 6 of the Law Reform (Miscellaneous Provisions) Act 1946 (NSW).
15.23 The Bill enables a third party to recover directly from the insurer of the deregistered company an amount payable under their contract of insurance if 2 pre-conditions are met:
(a) the deregistered company had a liability to the third party;
(b) the insurance contract covered that liability (Bill s 601AG)."
Section 601AH, which was also enacted at the same time, provides by subs(2) that the Court may make an order that ASIC reinstate the registration of a company if an application is made by a person aggrieved by the deregistration or a formal liquidator of the company, and the Court is satisfied that it is just that the company's registration be reinstated. By s601AH(5), a company which is reinstated is taken to have continued in existence as if it had not been deregistered. As the trial judge noted, s601AH(3)(b)[3] empowers a court when making an order for reinstatement of registration, to make any other order it considers appropriate.
[3] Now s601AH(3)(d).
As his Honour also noted, under that provision an order can be made that the period of deregistration not be counted for the purpose of a limitation statute. Where reinstatement is sought to enable a plaintiff to pursue an action which would not be capable of pursuit because of a limitation period which expired after deregistration, it is unlikely that the order would not be made: Pagnon (above) per McPherson JA at 500 [17].
As McPherson JA said in Pagnon (above) at 500 [17], the clear purpose of s601AG is to "'short-cut' the need to reinstate the company, and to do so by enabling the ultimate recipient of the insurance proceeds to sue the insurer direct where the company has been dissolved, without imposing the additional trouble and expense of first applying to have it reinstated." See also Almario at 154 [30] and Sciacca v Langshaw Valuations Pty Ltd [2013] NSWSC 1285 at [27]. In Sciacca, Adamson J referred to the fact that in such circumstances the application for reinstatement would be "for the sole purpose of having the insurer act for the corporate insured by way of subrogation."
The Explanatory Memorandum states that rights comparable to those provided for in the proposed s601AG have previously been provided in other legislation, for example, s6 of the Law Reform (Miscellaneous Provisions) Act 1946 (NSW) (the Law Reform Act). That is a provision which has generated much judicial, extra-judicial and academic discussion: see for instance Bailey v New South Wales Medical Defence Union Ltd (1995) 184 CLR 399 per Gummow and McHugh JJ at 440, Oswald v Bailey (1987) 11 NSWLR 715 per Kirby P. See also Reflections on Section 6, R D Giles J, (1996) 7 ILJ 152 and Abolish Section 6, S W Drummond and P Mann, (1997) 8 ILJ 79.
As s6 has assumed some significance in this case, I will set out the relevant parts of it:
"6    Amount of liability to be charge on insurance moneys payable against that liability
(1)   If any person (hereinafter in this Part referred to as the insured) has, whether before or after the commencement of this Act, entered into a contract of insurance by which the person is indemnified against liability to pay any damages or compensation, the amount of the person’s liability shall on the happening of the event giving rise to the claim for damages or compensation, and notwithstanding that the amount of such liability may not then have been determined, be a charge on all insurance moneys that are or may become payable in respect of that liability.
…
(4)   Every such charge as aforesaid shall be enforceable by way of an action against the insurer in the same way and in the same court as if the action were an action to recover damages or compensation from the insured; and in respect of any such action and of the judgment given therein the parties shall, to the extent of the charge, have the same rights and liabilities, and the court shall have the same powers, as if the action were against the insured:
Provided that, except where the provisions of subsection (2) apply, no such action shall be commenced in any court except with the leave of that court. Leave shall not be granted in any case where the court is satisfied that the insurer is entitled under the terms of the contract of insurance to disclaim liability, and that any proceedings, including arbitration proceedings, necessary to establish that the insurer is so entitled to disclaim, have been taken."

In Kinzettv McCourt (1999) 46 NSWLR 32 (Kinzett), the Court of Appeal of New South Wales confirmed that an action under s6(4) of the Law Reform Act was the exclusive method of enforcing the obligation imposed by the statutory charge created by s6(1), so that a claimant against an insured must prove an action against an insurer under the provision as if it was a claim in contract or tort, or under a statute, as the case required. It was further held that as a consequence, neither the limitation period applicable to the enforcement of a mortgage,[4] nor that which related to money recoverable by virtue of an enactment,[5] were material to the s6 action.
[4] Provided for in s42(4) of the Limitation Act 1969 (NSW); "mortgage" being defined to include a charge.
[5] Provided for in s14(1)(d) of the Limitation Act 1969 (NSW); the equivalent of s4(1)(d) of the Limitation Act (Tas).
Kinzett does not appear to have been specifically referred to the trial judge in this case, although it is referred to in Almario. Allianz relies on the similarity of the remedy provided for in s6 of the Law Reform Act to that provided for by s601AG. As with the other principal authorities relied on, I will later deal with Kinzett in some detail.

The parties' arguments

The essential question is whether the trial judge was correct in holding that Allianz did not have a limitation defence under s5A(3) of the Limitation Act in the s601AG action against it. The question raises some awkward issues about the construction and operation of s601AG. It involves consideration of whether, as Allianz contends, the time limited for bringing a s601AG action is governed by the time limit applicable to the "underlying cause of action" as it was described in argument, that being the one which a plaintiff had against the insured.
The alternative approach for which Mr Mercer contends, and as was held to be the case by the trial judge, is that the time within which a s601AG action may be brought is provided for in s4(1)(d) of the Limitation Act. On that basis, a person would have six years from the date of the company's deregistration in which to bring the action. Mr Mercer argues that the operation of any limitation period in relation to the underlying cause of action is determined in the context of whether the company "had a liability" to the plaintiff within the meaning of s601AG(a). That is assessed at the point in time immediately before deregistration.
The following is not intended to be a complete summary of the parties' detailed and helpful arguments. It is designed to merely identify the parameters of the debate, and to put into some proper context the discussion later undertaken in these reasons.

The appellant

Allianz draws attention to the chapeau of s601AG. It makes the point that it is only "an amount that was payable to the company under an insurance contract" which is recoverable if the two preconditions set out in pars(a) and (b) of the section are met. Where a defendant is shown to have been legally liable for damages, that liability dates from the time the liability was incurred, but under an indemnity policy no amount is ordinarily payable by the insurer until the liability of the insured is established by a judgment, award or agreement: Post Office v Norwich Union Fire Insurance Society Ltd [1967] 2 QB 363; Distillers Co Bio-Chemicals (Aust) Pty Ltd v Ajax Insurance Co Ltd (1974) 130 CLR 1 per Stephen J at 25 – 26.
Allianz points out that s601AG is a "short cut" to avoid seeking reinstatement. A plaintiff can directly sue an insurer and obtain the same amount of money as the insurer would have been obliged to pay to the insured. There is no suggestion that the rights created as between claimant and insurer alter the legal relationship as it was between the insured and the insurer under the insurance contract. The section is a procedural mechanism not designed to alter the substantive operation of an insurance contract.
Allianz argues that the words in the chapeau "an amount that was payable" do not mean an amount which was payable as at the date of deregistration. That is because no amount is payable to an insured until liability has been established by judgment or agreement. The phrase refers to an amount of money that would have been payable under the insurance contract to the company if it were entitled to indemnity under the policy. The past tense is used simply because by the time a plaintiff seeks recourse to s601AG, the company has ceased to exist.
As to the phrase "had a liability" appearing in par(a), Allianz accepts that the relevant point in time is the time of deregistration. It submits however, that "liability" does not mean a determined or established liability, but means a potential or contingent liability in the sense that before the company was deregistered, it had injured someone in such a way that created a right to sue, and it appears that a determined or established liability may result in due course. Ordinarily, if a defendant is shown to be legally liable for damages, the liability dates from when the cause of action accrued: Post Office v Norwich Union Fire Insurance Society Ltd (above); Distillers Co Bio-Chemicals (Aust) Pty Ltd v Ajax Insurance Co Ltd (above).
Allianz argues that a purposive construction of the section requires that s5A(3)(a) of the Limitation Act applies in the present case. It is argued, on the basis of what is said to have been held in Almario, that in general terms the limitation period applicable to the cause of action against a deregistered company (referred to as "the underlying cause of action") applies to the s601AG action.
In Almario the limitation period for the action against the company had expired, with the remedy being extinguished as a result, although the legislation permitted an extension of time. It was held that the insurer could raise the limitation defence in the action against it, but that defence was subject to the plaintiff's right to seek leave to extend time. In this case, the trial judge distinguished Almario on the factual basis that the time for bringing proceedings against the company had not expired at the time of deregistration. Allianz says that Almario was correctly decided, and although in strict terms the decision is limited to its facts, the reasons are persuasive and apply to the present case.
Allianz argues that the purposive construction means that the relevant date for determining the availability of the limitation defence is the date on which the s601AG proceedings are commenced. Otherwise, such an action can be brought many years after the event. Further, it is submitted that Parliament is unlikely to have intended s601AG to operate so as to allow limitation periods to operate cumulatively; inequity is caused by permitting the limitation period under s4(1)(d) of the Limitation Act to "piggyback" on the limitation period under s5A(3) as held by the trial judge.
In that scenario, periods of very nearly three years or 12 years before deregistration, depending on the circumstances, could be added to by a period of six years. Such a construction is contrary to the policy considerations which underpin the limitation of actions: Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 per McHugh J at 551 – 553.
Allianz submits that s601AG incorporates by reference the laws applicable to the determination of the existence and quantum of the underlying liability, including the relevant limitation period. That is not inconsistent with the creation of a new cause of action arising on deregistration. The cause of action against the insurer is dependent upon a separate and distinct cause of action involving a liability as between the claimant and the company. The liability of the deregistered company and the quantum of damage still need to be proved in order for a plaintiff to recover under the section. Those matters must be determined by reference to the law applicable to the underlying cause of action, whether common law, State or Commonwealth law. Accordingly, as s601AG incorporates such laws, it incorporates limitation provisions relevant to the underlying cause of action; in this case s5A(3)(a).
Allianz accepts that the Corporations Act does not provide an applicable limitation period, and that there is no generally applicable Commonwealth limitation legislation. Further, the Limitation Act, by its terms, does not purport to directly apply to Commonwealth laws. However, s4(1)(d) of the Limitation Act can operate as a "surrogate Federal law" by way of s79 of the Judiciary Act. It is necessary to consider whether s601AG, as a law of the Commonwealth, "otherwise provides" within the meaning of the Judiciary Act. Section 601AG has the effect of incorporating, by reference, the laws applicable to the determination of the existence and quantum of the underlying liability upon which the substantive relief under the section depends. That includes the applicable limitation period. On that basis s601AG is an instance of where a law of the Commonwealth has "otherwise provided" so that the relevant State law does not operate. In any event, there is no reason s79 would give preference to s4(1)(d) over s5A(3).
Next, it is said that the section is similar in operation to s6 of the Law Reform Act. The Court in Kinzett expressly rejected the applicability of the limitation period for actions for sums recoverable under an enactment. Allianz submits that the decision in Kinzett should be applied to a s601AG action.
Detailed submissions were made as to the principal authorities to which I have referred, and I will deal with those in due course.

The respondent

Mr Mercer argues that the trial judge's reasons and conclusion are correct. The point is made that the s601AG cause of action is a new one which arises on the deregistration of the company. It is not a claim for damages. The limitation period for proceedings under the section begins to run from the date of deregistration. That is apparent from Almario in which Ipp JA noted that it was so held at first instance and the finding had not been challenged: 151 [15].
From the section's wording, the inference is that the time for determining whether the company had a liability, and whether insurance covered the liability, is immediately before deregistration: Almario at 153 [20]; Fairwater (above) at [4]. This, it is said, stands completely in the way of accepting Allianz's submission that the date for determining the availability of the limitation defence is the date on which the proceedings are commenced.
Mr Mercer submits at the time the new cause of action arose, proceedings against the company would not have been time barred. The three year period in s5A(3)(a) had not expired, assuming the date of discoverability was 3 September 2008. The relevant question was whether the company has a liability immediately before deregistration. That liability did exist because the cause of action against the company was not time barred. He argues that under s601AG, an insurer is only able to raise defences which would have been open to the company immediately before deregistration: Almario at 155 [35]; Fairwater at [4].
As to the applicable time limit, Mr Mercer submits that neither the section itself nor any other Commonwealth law provides a limitation period for the s601AG cause of action. It is correct that the word "liability" in par(a) imports a consideration of any limitation period that applied to the cause of action against the company at the time of deregistration, but that says nothing about whether there is a separate and additional period that precludes an action against the insurer after a period of time even if the limitation period against the company had not expired at the time of deregistration or if no limitation period applied at all.
Allianz' argument that for the purposes of s79 of the Judiciary Act, s601AG "otherwise provides" that the limitation period to be applied to the action against the insurer is that relating to the underlying cause of action, faces "formidable difficulties". It involves the unacceptable implication of words, and overlooks the structure of the section. Section 601AG contemplated two liabilities; the liability referred to in par(a) and that of the insurer to the third party. It is therefore not surprising that there are two limitation periods which operate in relation to those two liabilities. The Commonwealth Parliament saw fit to allow State or Territory legislation to operate as surrogate federal laws on the question of limitation periods. The Limitation Act is picked up in its entirety, without preference between provisions. Both s4(1)(d) and s5A(3)(a) apply to the different causes of action referred to in s601AG.
The s601AG cause of action is one for the recovery of an amount from the insurer which is payable because of the provision, and accordingly one to which s4(1)(d) of the Limitation Act applies. Section 5A(3) of the Limitation Act cannot apply because it is not possible to characterise the s601AG action as an action involving an action for damages for negligence. Section 6 of the Law Reform Act is a provision of quite a different kind from s601AG, and the decision in Kinzett has no application.
Mr Mercer submits that a purposive construction also results in the conclusion that, in respect of the s601AG cause of action, there is a limitation period of six years under s4(1)(d). It begins to run on the date of the deregistration of the company. Such defences as were available to the company at that time are available to the insurer. The engagement of s601AG upon satisfaction that s5A(3)(a) did not bar liability is consistent with, and does not offend, the policy considerations discussed in Brisbane South Regional Health Authority v Taylor (above).
Mr Mercer submits that on the contrary, policy considerations support his argument. The section does not confer greater rights on a claimant, but grants a new cause of action. It is beneficial legislation and should be construed accordingly. There is no substance to the argument that insurers should not be saddled with different liability from that of its deregistered insured; s601AG imposes a new and different liability on insurers. Applying s601AG according to its clear terms, and making it subject to the limitation period under s4(1)(d), does not artificially extend the limitation period. It provides for certainty and permits a plaintiff time to get affairs in order. As the section provides a new cause of action it is unsurprising that the limitation period situation changes if the proposed defendant is deregistered and ceases to exist as a legal entity.
Allianz's interpretation would force the plaintiff to apply for reinstatement of the company. That is exactly what the section seeks to avoid. The effect of s4(1)(d) in combination with s601AG is not to extend any time limits at all, but to impose an additional time limit applicable to the new cause of action. This is distinct from the internal protection afforded by s5A(3), which limits the potential liability of the insurer by reference to the liability of the employer under par(a) as at the date of deregistration.
Detailed submissions were made about the principal authorities.

The authorities

The decision in Almario occupies a prime position in the debate in this case. The decisions in Kinzett and Pagnon predate Almario, and were referred to by Ipp JA in his judgment. I prefer to deal first with the earlier cases, and then examine Almario and the later cases which have referred to it.

Kinzett v McCourt

Allianz relies on the decision in Kinzett which I noted above. It will be recalled that the decision concerns s6 of the Law Reform Act, the relevant parts of which I set out. Allianz submits that, particularly because the Explanatory Memorandum in relation to the proposed s601AG draws an analogy with s6, the approach adopted by the Court in Kinzett should be applied.
Mr Kinzett acquired a motorboat. Shortly after he noticed a hole in it which he took to be repaired. When he was observing the process of repair by welding, there was an explosion which injured him. He initially sued a partnership of two individuals as the suppliers of the boat, and later joined in as third and fourth defendants, the persons responsible for the repair process. Later still, because of uncertainty over the proprietorship of the boat supply business, the plaintiff decided to join in a company which appears to have been the real proprietor of the business, and the insurer of that company. Leave was required to proceed against the company because it was in liquidation. That leave was granted, by which time the six year limitation period for causes of action founded on contract and tort had expired.
Ultimately, two matters came before a judge at first instance. There was a notice of motion seeking an order extending the limitation period to bring proceedings against the company, and a notice of motion for leave to join the insurer as a defendant. It is only the second application which is of relevance to the present case. The primary judge, having dismissed the plaintiff's claim for an extension of time against the company, refused the second application on the basis that the joinder of the insurer would be pointless.
In the appeal, Mr Kinzett argued that the insurer could be joined irrespective of the success in relation to the application concerning the company. In response, the insurer sought to rely on a defence under the Limitation Act 1969 (NSW), but one which was not in any way derivative from the Limitation Act defence available to the company. Section 14(1)(a) and (b) of that Act respectively provided that causes of action founded on contract or tort could not be maintained if brought after the expiration of the limitation period of six years running from the date on which the cause of action first accrued. It will be recalled that s14(1)(d) applies the same limitation period of six years to a cause of action to recover money recoverable by virtue of an enactment, and is effectively in the same terms as s4(1)(d) of the Limitation Act.
The Court was constituted by five judges, with the leading judgment delivered by Spigelman CJ. As to the matters directly relevant to this case, Mason P, Priestley, Meagher and Handley JJA agreed with the Chief Justice. At 42 [51], citing authorities in support, Spigelman CJ said that the starting point for any consideration of the relationship between s6 and the Limitation Act (NSW) is a recognition that s6(4) is intended to be the exclusive method of enforcing the obligation created by the statutory charge. At 43 [54] his Honour noted that the common law presumption that a remedy specified in a statute is intended to be exclusive was expressly applied to s6 of the Law Reform Act in one of the authorities he had cited.[6]
[6] Bailey v New South Wales Medical Defence Union Ltd (1995) 184 CLR 399 at 415, 446.
His Honour continued at 43:
"54Accordingly a claimant on an insured must pursue an action against the insurer 'as if' it were a claim in contract or tort, as the case requires.
55For this reason, the twelve-year limitation period under s 42(4) of the Limitation Act, applicable to enforcement of a mortgage (defined in s 7 of that Act to include a charge), does not apply to the enforcement of a statutory charge under s 6 of the Law Reform (Miscellaneous Provisions) Act .
56For the same reason, s 14(1)(d) which relates to 'money recoverable by virtue of an enactment' is not material: see FAI (NZ) General Insurance v Blundell & Brown Ltd [1994] 1 NZLR 11 at 17.
57In the case of liability insurance, to which s 6(1) refers, s 14(1)(a) and s 14(1)(b) are the material provisions of the Limitation Act .
58The previous case law appears to have proceeded on the unexpressed assumption that the effect of s 14(1)(a) or s 14(1)(b) (that an 'action is not maintainable'), and the effect of s 63 (which extinguishes 'the right and title of the person formerly having the cause of action to the … damages or other money') fall within the respects in which an action for enforcement of the statutory charge under s 6(1) of the Law Reform (Miscellaneous Provisions) Act is assimilated to proceedings between the person claiming on an insured and the insured. This case has proceeded on the same basis.
59In my opinion this approach is correct. The statutory assimilation by s 6(4) of proceedings to enforce the charge with proceedings against an insured is such as to apply both the general law and statute law relevant to proceedings against the insured in contract or tort or under a statute such as the Trade Practices Act 1974 (Cth), to the proceedings against the insurer. The Limitation Act is a statute so made applicable."

His Honour then posed two questions which needed to be addressed in order to determine the interrelationship between s6(4) of the Law Reform Act and ss14(1) and 63 of the Limitation Act (NSW). They were: "When does time commence to run in favour of the insurer? When does time cease to run in favour of the insurer?" After reviewing conflicting lines of authority as to when the time for a s6 action commenced, the conclusions were stated at 52 as follows:
"107This Court should now decide that the statutory remedy under s 6(4) is, subject only to other subsections, assimilated to a cause of action against an insured, so that:
108Section 14(1)(a) and s 14(1)(b) of the Limitation Act applies to the proceedings.
109Time commences to run at the same time as the cause of action in tort or contract accrues to the claimant against the insured.
110Time ceases to run under s 14(1)(a) or s 14(1)(b) when proceedings are brought against the insured or the insurer, whichever comes first.[7]
111The consequence in the present case is that there is no separate Limitation Act defence available to the [insurer]."
[7] Meagher JA dissented on this point, saying that Grimson vAviation & General (Underwriting) Agents Pty Ltd (1991) 25 NSWLR 422 was "still good law", meaning that time commenced to run in favour of the insurer from the date of the event which gave rise to the claim on the insured: see Kinzett at 54 [126].
Mr Mercer relies heavily on the difference in wording between s6 of the Law Reform Act and s601AG. In the case of the former, the statutory cause of action against the insurer arises at the same time as the action against the insured and from the same circumstances. Conversely, the s601AG cause of action is a new cause of action which first arises upon deregistration. Mr Mercer submits, "It is thus not surprising that a distinct limitation period applies to the new cause of action constituted by s601AG."
Primarily, Mr Mercer points to the clear distinction which arises because of the express reference in s6(4) to the action being conducted as if it were an action to recover damages or compensation from the insured, with the insurer having "the same rights and liabilities" as if the action were against the insured. That, it is said, is not the concern of s601AG; the relevant issue is whether the company had a liability at the time of deregistration.
The points of differences in the language and operation between the two provisions must, of course, be accepted. At the same time, s601AG clearly creates a new statutory cause of action encompassing both right and remedy: see the discussion by Barker J in Langridge v Insurance Commission of Western Australia (2003) 27 WAR 504 at 510 – 512 [39] – [48]. The question is whether Parliament's intention behind s601AG, as evident from its language and context, is to bring about the same sort of assimilation of the statutory cause of action to the underlying cause of action, as is achieved by s6 of the Law Reform Act.

Pagnon v WorkCover Queensland

Pagnon concerned the application of the Limitation of Actions Act 1974 (Qld) to an action brought under s186 of the Workers Compensation Act 1990 (Qld). Relevantly, s186(1) provided that where a worker suffered injury in circumstances conferring a right of action for damages against the employer who, being a corporation, had ceased to exist, a person who might have obtained judgment for damages against the employer in respect of the injury may recover by action against the statutory insurer, as if the statutory insurer were the employer, the sum that would have been payable by way of damages had judgment been given against the employer.
Section 186(2) provided that the entitlement to recover from the statutory insurer cannot be exercised by court proceedings unless notice of the claim and a short statement of the grounds thereof were given to the statutory insurer within a time period which the section spelt out.
Section 11 of the Limitation of Actions Act 1974 (Qld) provided that an action for damages for personal injury could not be brought after three years from the date of the cause of action. That time limit had not expired at the time of the company's deregistration but had at the time of the s186(1) action. The issue was whether s11 applied to a claim instituted against the statutory insurer under s186.
The Court of Appeal held that the right conferred was a new cause of action against the statutory insurer as the substituted defendant, "and not simply a continuation of the existing cause of action against the original wrongdoer subject to the unexpired duration of the limitation period fixed by s11 of the Limitation of Actions Act 1974": McPherson JA at 496 [7]; Thomas JA and Muir J agreeing. At 497 [8], McPherson JA said that a plaintiff who sued under s186(1) may still be liable to be defeated by a defence under s11 of the Limitation of Actions Act after the lapse of three years from the date on which the cause of action against the statutory insurer accrued under s186(1).
There was however, a difference of opinion as to when the new cause of action accrued. McPherson and Thomas JJA took the view that it accrued when the procedural pre-conditions were met, whilst Muir J expressly disagreed, saying that the entitlement conferred by s186(1) was the source of the worker's right and cause of action: [2001] 2 Qd R 492 at 501 [22].
The discussion in Pagnon turned to s601AG because of the need to address s186(3) which provided that subs(1) did not confer on a person any right or advantage that a person would not have had if action had been brought against the employer. The Court held that the power to order reinstatement under s601AH, with the accompanying power to direct that the interim time not count for limitation purposes, along with the right of action under s601AG meant that the construction of s186(1) adopted did not offend s186(3): see McPherson JA at 497 [8] – 500 [18]. At 500 [17], his Honour noted that the purpose of s601AG was to "'short-cut' the need to reinstate the company", but did not deal with when the cause of action arose or what time limit may have applied to it. His Honour merely observed that the company concerned "had a liability" to the plaintiff at the time of its deregistration: 500 [16].
Allianz argues that even accepting that s601AG creates a new cause of action separate from, but dependent on the underlying cause of action, that fact without more does not support a conclusion that the limitation period which applies must necessarily be that which applies in respect of actions for sums recoverable under an enactment; in this State, the six year period under s4(1)(d). It argues that Pagnon is not authority for that proposition, and in any event the decision is inconsistent with that in Kinzett. The court in Pagnon did not refer to Kinzett, and to the extent that the two decisions are inconsistent decisions of intermediate courts of appeal, this Court should apply the decision in Kinzett.
In the present case, the trial judge said that Pagnon supports the arguments advanced on behalf of Mr Mercer. "There is no reason to distinguish it. It is authority for the proposition that the limitation period applicable to the plaintiff's claim against his employer does not apply to a separate cause of action against another party for the recovery of monies in respect of that liability pursuant to an enactment." : see [30]. With respect, that statement is only partially correct. What was held was that the same limitation period in relation to an action against the employer applied, but that it commenced when the separate statutory cause of action arose.
Mr Mercer argues that the trial judge was correct to say that there is no basis for distinguishing the present case from Pagnon, and was correct in his statement of the proposition for which Pagnon is authority. It is submitted that s186(1), considered in Pagnon, served the same purpose as s601AG and was held not to be governed by s11 of the Limitation of Actions Act 1974 (Qld). I have already commented on the correctness of that statement. In my opinion, there is nothing in Pagnon which assists Mr Mercer's case.
In the context of the suggested impact of Pagnon, Mr Mercer also relies on Ex parte Workers Compensation Board of Queensland [1983] 1 Qd R 450 and Victorian WorkCover Authority v Manildra Pty Ltd [1999] VSC 220 as support for the trial judge's conclusion that s4(1)(d) of the Limitation Act applied to the s601AG cause of action.
Each of those two cases involved provisions of workers compensation legislation which created a right of indemnity for the recovery from a wrongdoer of compensation payments made. In the case of the Queensland legislation, the right was created only in the Workers Compensation Board. The Victorian legislation gave the right to the WorkCover Authority along with other specified insurers, or the employer. In each case it was held that the statutory right of indemnity was a cause of action governed by limitation periods relating to actions "to recover a sum recoverable by virtue of an enactment". In each case, it was confirmed that a cause of action under the statute arose each time a payment of compensation was made.
Allianz submits that these cases are of no assistance at all. The particular point of distinction is that the provisions create a statutory right of indemnity against the wrongdoer for compensation which has been paid to an injured worker. Allianz argues that it is obvious that the limitation period applicable to the claim of indemnity against the wrongdoer has nothing to do with the limitation period applicable to the injured party's action against the wrongdoer.
Those observations are valid. I think that closer to the point is Gefken v Union Assurance Society of Australia Ltd [1972] ALR 282 in which Forster J considered Ordinances of the Northern Territory relating to actions by dependants against a wrongdoer. Under the Compensation (Fatal Injuries) Ordinance, an action for the benefit of the dependants of the person whose death had been caused by a wrongful act of another, was to be commenced within 12 months after the death of the person injured.
Section 59(3) of the Motor Vehicle Ordinance provided that where as a result of the use of a motor vehicle, liability for the death of, or bodily injury to, any person had been incurred by any person insured against such liability, any person who could have obtained judgment in respect of the death or bodily injury might recover by action against the authorised insurer where the insured person was dead or could not be served with any process.
Forster J held that the right of action under the Motor Vehicle Ordinance against the authorised insurer was not one which existed independently of the right of action against the wrongdoer under the Compensation (Fatal Injuries) Ordinance which was governed by the 12 months' limitation period. It might well be said that his Honour treated the right of action against the authorised insurer as assimilated to the underlying cause of action.

Almario v Allianz Australia Workers Compensation (NSW) Insurance Ltd

Before Almario there does not appear to have been any consideration given to questions of limitation periods in relation to the s601AG. The arguments in this case call for a rather detailed analysis of the judgments. The Court of Appeal had before it two appeals by Mr Almario. He was seeking damages for personal injury allegedly suffered through exposure to toxic substances whilst employed by a company. He stopped working in 1992, and a three year limitation period which applied by virtue of s151D(2) of the Workers Compensation Act 1987 (NSW)[8] expired, at the latest, in December 1995.
[8] 151D Time limit for commencement of court proceedings against employer for damages
(2) A person to whom compensation is payable under this Act is not entitled to commence court proceedings for damages in respect of the injury concerned against the employer liable to pay that compensation more than 3 years after the date on which the injury was received, except with the leave of the court in which the proceedings are to be taken.
In December 1992 the employer company was wound up. Mr Almario instituted proceedings against the company in February 1999 without the leave which was necessary because the company was then in liquidation. Application was later made for leave, but the application was subsequently dismissed by consent.
More relevantly, the company was deregistered in April 1999. In June 2001, Mr Almario commenced proceedings against the company's insurer. The insurer was initially wrongly identified, but that issue was rectified in June 2002. In November 2002, he applied to a District Court judge for an order, pursuant to s151D(2), extending the time for the commencement of s601AG proceedings. That application was dismissed on the basis that s151D(2) referred only to proceedings against "the employer" and the section had no application to a claim against the employer's insurer.
Later, the insurer successfully applied to a different District Court judge to strike out the statement of claim on the ground that the cause of action could not succeed. The judge held that the limitation period for s601AG actions begins to run on the deregistration of the company, and said it was necessary to look at the question of whether, on deregistration, the company "had a liability" as required by s601AG. The judge drew an analogy between s601AG and s6(4) of the Law Reform Act which I have set out above, and agreed with the proposition that the insurer would be entitled to rely on any defence on which the deregistered company might have relied. It was held that the insurer was entitled to rely on the limitation defence, and absent an extension of time, the action could not succeed.
The end result leading to the two appeals before the Court was explained by Ipp JA at 152 [16]:
"Thus, on the findings of Balla DCJ and Walmsley DCJ, Mr Almario fell between two stools. His claim that he was entitled to apply for an order under s 151D(2) extending the three year time period was dismissed on the basis that he could only obtain an extension as against the deregistered company but not the company's insurer. Then, his claim against Allianz, as the insurer, was dismissed on the ground that Allianz was entitled to rely on the time bar under s 151D(2) (even though Mr Almario was held not to be entitled to seek an extension of time under that section). The anomaly of this situation is obvious."
His Honour set out s601AG and the Explanatory Memorandum at 152 – 153 [19] – [20], before expressing his views as to the essential nature of a s601AG action:
"19 Section 601AG creates a new cause of action. The action is not a claim for damages. It is for an amount that was payable to the deregistered company under the relevant insurance contract. A claim in terms of s 601AG is subject to two conditions, namely, proof that the deregistered company 'had a liability' to the person claiming and that the insurance contract covered that liability immediately before deregistration.
20 The two conditions are expressed in the past tense. The inference is that the time for determining whether the deregistered company had a liability to the person claiming, and whether the insurance contract covered that liability, is 'immediately before deregistration' (being the phrase qualifying condition (b)). This was not disputed."
Subsequently, at par[21] and following, his Honour:
·     said that the insurer did not challenge the proposition that if, immediately before the company's deregistration it had a liability to Mr Almario, the insurance contract covered that liability – [21];
· also noted that the insurer focused on the phrase "had a liability" in s601AG(a), and had submitted that, by reason of the expiry of the time period specified in s151D(2), the company had no liability to Mr Almario immediately before its deregistration – [22];
·     observed that the word "liability" was capable of ambiguity stemming from the distinction between statutory time limitations that bar the remedy for an existing cause of action and those that extinguish the cause of action – [23];
·     said that s151D(2) barred an existing cause of action, and "on a strictly textual construction, it affects the remedy available to a person to whom it applies" – [26] (original emphasis);
·     said that it followed, on a strictly textual construction, that the expiry of the three year period in s151D(2) did not extinguish whatever liability the company might have had to Mr Almario for damages caused by its negligence – [29]; and
· went on to say that on this basis, the expiry of the three year period would not prevent Mr Almario from establishing that at the date of the company's deregistration, it had a liability to him within the meaning of s601AG(a). "'Liability' would then include a time barred cause of action" – [29] (original emphasis).
At [30] his Honour then observed that if it were otherwise, and the "liability" excluded the liability in respect of which the remedy was time barred, Mr Almario would only be able to prosecute his claim by having the company reinstated on the register and then applying under s151D(2) for an extension of time within which to bring proceedings against it. His Honour said that this would defeat the legislation policy underlying s601AG, that being, as McPherson JA noted in Pagnon at 500 [17], to obviate the need to reinstate the company.
It is best if I set out in full a number of the paragraphs of his Honour's judgment which follow from that point:
"31The effect of the [first District Court] judgment is that s 151D(2) has no application to an action for relief in terms of s 601AG. If that were to be correct and if liability were to be textually construed (that is, including a liability in respect of which the remedy is time barred), a further anomaly would arise — this time to the disadvantage of the insurer of the deregistered company. The insurer would then lose the protection presently afforded to employers under s 151D(2).
32Take the notional case where a worker is injured through the negligence of his employer but takes no legal proceedings to recover damages. Assume that, say, 20 years later, the employer company is deregistered and the worker then sues the deregistered company's insurer. It would give rise to a serious inequity if, in those circumstances, the insurer would be fixed with liability and not be afforded the protection given to employers by s 151D(2).
33Another potential anomaly concerns the question whether an insurer (not being a joint tortfeasor) is entitled to claim a contribution to whatever amount it may be liable under s 601AG. This is an issue that could well arise should Mr Almario's action proceed.
34In my view, the purpose of the legislature in inserting s 601AG in the Corporations Act is to require the insurer of a deregistered company to stand in the shoes of the company to the extent necessary to allow creditors of the company to recover from the insurer whatever amounts they were entitled, by force of law, to recover from the company had it not been deregistered. This purpose is discernible from the section as a whole and the Explanatory Memorandum. The notion that a person may recover from the insurer of a deregistered company 'an amount that was payable' supports this inference. These words convey the idea of a creditor being entitled to recover that which was payable to him or her. Paragraph (a) of s 601AG is not inconsistent with this idea.
35In accord with such a purpose, an insurer would be able to raise against a claimant under s 601AG whatever defences would have been open to the company — subject to any qualification that might, in law, attach to those defences. So that if a statute caused a creditor's remedy to be time barred, but nevertheless provided that the bar could be relaxed by affording the creditor the opportunity of applying for the time to be extended, any right the insurer would have to rely on the time bar would be subject to the creditor being able to apply (as against the insurer) for an extension of the time period.
36On this basis, it would be open to the insurer, in a claim against it under s 601AG, to raise the defence that the three-year period under s 151D(2) of the Workers Compensation Act had expired. But, as that defence is subject to the right of the person claiming to seek the court's leave to extend the three-year period, that person would have the right to apply to the court for leave to extend the time as against the insurer, as if the insurer was the employer of the person concerned."

There might be an attractive simplicity to the application of s4(1)(d) to the statutory cause of action, with the six year period starting at the time of deregistration, but the attraction is a deceptive one. To apply such a six year limitation period, irrespective of what the claimant's cause of action against the company was, and irrespective of what time had elapsed in respect of any limitation period governing that cause of action, creates unfairness to insurers and to plaintiffs whose causes of action were not limited at all, or limited by a period greater than six years.
That level and extent of unfairness outweighs what unfairness might be done to a claimant having to seek reinstatement and consequential relief. That remains so, even accepting that conceivably there may be a case in which a court sees it appropriate to refuse reinstatement and the appropriate relief as to time.
In conclusion, I proceed on the basis that it is the least disharmonious construction which needs to be adopted. It may well be correct that, as the trial judge said, Almario is not to be taken as authority for the proposition that s601AG treats the insurer as if it were the deregistered company for all purposes and without qualification. However, what was established in Almario, along with the considerations which I have discussed, lead me to hold that s601AG encompasses the assimilation of limitation legislation relevant to the underlying cause of action.
The assimilation of the s601AG cause of action with the underlying cause of action means that there is no need to go beyond the section for limitation of actions provisions. The Limitation Act of this State does not apply because, by virtue of the intended assimilation to the underlying cause of action, the Commonwealth law "otherwise provides" within the meaning of s79 of the Judiciary Act. I am unable to accept that for s601AG to provide otherwise than for the application of State law, it involves an unacceptable implication of words. The operation in that way can be generally implied, without offending principles of construction.
I would hold that s4(1)(d) of the Limitation Act does not apply to a s601AG cause of action. I would also hold that, given that the underlying cause of action is one for damages for personal injuries, s5A(3)(a) of that Act governs Mr Mercer's cause of action under s601AG.

Outcome

I would allow the appeal, set aside the judgment dated 24 July 2013, and the determination of Blow CJ of 12 April 2013. I would make the determination in favour of Allianz and remit the trial of the respondent's action, limited to the issue pleaded in par16 of the appellant's defence. Given that the whole action has now been tried, I would be minded to specifically remit the determination of that issue to the trial judge. Evidence concerning the date of discoverability might have been covered, at least to an extent, by Mr Mercer's evidence and the medical evidence as to the quantum of damages. Further, to do otherwise might result in inconsistent findings about, and based on, credibility. I would hear from the parties about the remitter.
File No 326/2013

ALLIANZ AUSTRALIA INSURANCE LTD v IVAN MERCER

REASONS FOR JUDGMENT FULL COURT

WOOD J
9 May 2014

I have had the advantage of reading the reasons for judgment of Porter J. I agree with those reasons and I would also allow the appeal. I agree with the orders proposed.