Jinling McDonald v Denehurst Limited (Deregistered)

[2021] NSWDDT 4

Dust Diseases Tribunal

New South Wales

Medium Neutral Citation:

Jinling McDonald v Denehurst Limited (Deregistered) & Ors [2021] NSWDDT 4

Hearing dates:

23 July 2021

Date of orders:

6 August 2021

Decision date:

06 August 2021

Before:

Russell SC DCJ

Decision:

(1)   Determine that the answer to the separate question “Does the Dust Diseases Tribunal have jurisdiction to make the orders sought in paragraphs 2 and 3 of the Amended Notice of Motion filed on 5 March 2021?” is “No”.

(2)   Reserve the costs of the motion.

(3)   Grant leave to the parties to approach my Associate to obtain a date for a directions hearing.

Catchwords:

STAUTORY INTERPRETATION – whether the Dust Diseases Tribunal of New South Wales has jurisdiction to order pursuant to s 601AH(2) of the Corporations Act 2001 (Cth) that the Australian Securities Investments Commission reinstate the registration of a deregistered corporation– the difference between a “Court” and a “court” under s 58AA of the Corporations Act – operation of ss 10(6) and 10(7) of the Dust Diseases Tribunal Act 1989 (NSW)

Legislation Cited:

Civil Liability (Claims Against Third Party Insurers) Act 2017 (NSW)

Compensation to Relatives Act 1897 (NSW)

Corporations (Commonwealth Powers) Act 2001 (NSW)

Corporations (Consequential Amendments) Act 2001 (NSW), Schedule 2, cl 2.2

Corporations Act 2001 (Cth), ss 5F, 58AA, 119, 237, 471B, 500(2), 601AD, 601AH (1), 601AH(2)

Dust Diseases Tribunal Act 1989 (NSW) , Parts 2, 3, ss 3, 4, 10, 11, 12, 12B

Family Provision Act 1984 (NSW), s 31

Jurisdiction of Courts (Cross-vesting) Act 1987 (NSW)

Law Reform (Miscellaneous Provisions) Act 1944 (NSW)

Trans-Tasman Proceedings Act 2010 (Cth), s 17

Uniform Civil Procedure Rules 2005 (NSW) r 28.2

Cases Cited:

In the Marriage of JG and RG Smith [1986] HCA 36; (1986) 161 CLR 217

James Hardie & Coy Pty Ltd v Barry [2000] NSWCA 353; (2000) 53 NSWLR 357

Mangion v James Hardie & Co Pty Ltd (1990) 20 NSWLR 100

Re Douglas Webber Events Pty Ltd [2014] NSWSC 1544; (2014) 104 ACSR 250

Texts Cited:

Second Reading Speech (Legislative Council), 26 June 2001

Category:

Procedural rulings

Parties:

Jinling McDonald (Plaintiff)
Denehurst Ltd (Deregistered) (First Defendant)
CBS Drill & Blast Pty Ltd (Second Defendant)
RGC Thalanga Pty Ltd (Third Defendant)
P&H Minepro Australasia Pty Ltd (Fourth Defendant)
Coldwell Drilling Pty Ltd (Fifth Defendant)
DPSA Contracting Pty Ltd (Deregistered) (Seventh Defendant)
Whitehaven Coal Ltd (Eighth Defendant)
Hughes Drilling Pty Ltd (Ninth Defendant)
Maules Creek Coal Pty Ltd (Tenth Defendant)
BJC Drilling Pty Ltd (Deregistered) (Eleventh Defendant)

Representation:

Counsel:
G Little SC (Plaintiff)
M Smith (Second Defendant and Workers Compensation Nominal Insurer)
A Giurtalis (Third, Fourth and Fifth Defendants and WorkCover Queensland)
E Vail solicitor (Eighth, Ninth and Tenth Defendants and Coal Mines Insurance)

Solicitors:
Slater & Gordon (Plaintiff)
Moray & Agnew (Second Defendant and Workers Compensation Nominal Insurer)
DWF Lawyers (Third, Fourth and Fifth Defendants and WorkCover Queensland)
Sparke Helmore (Eighth, Ninth and Tenth Defendants and Coal Mines Insurance)

File Number(s):

DDT 2020/185328

Judgment

Introduction

1. In these proceedings the plaintiff has sought the following orders in pars 2 and 3 of an Amended Notice of Motion filed on 5 March 2021:

“2. Order that pursuant to s 601AH(2) of the Corporations Act 2001 (Cth) that the Australian Securities and Investments Commission forthwith reinstate Denehurst Ltd, BJC Drilling Pty Ltd and DPSA Contracting Pty Ltd to the Register.

3. Declare pursuant to s 601AH(3)(c) and (d) of the Corporations Act 2001 (Cth) that Dust Diseases Tribunal proceedings 2017/315 were validly commenced and pending as against Denehurst Ltd, BJC Drilling Pty Ltd and DPSA Contracting Pty Ltd as at the late Mark William McDonald’s death on 2 November 2017.”

2. On 8 July 2021 the Tribunal made an order pursuant to Rule 28.2 of the Uniform Civil Procedure Rules 2005 (NSW) that there be a separate determination of the following question:

“Does the Dust Diseases Tribunal have jurisdiction to make the orders sought in paragraphs 2 and 3 of the Amended Notice of Motion filed on 5 March 2021?”

Procedural History

3. On 23 October 2017 Mr Mark McDonald filed a Statement of Claim in proceedings DDT 315/2017 (now re-numbered as proceedings DDT 2020/185328).

4. Mr McDonald sued 11 defendants. He sought damages for the diseases of small cell lung cancer and chronic obstructive pulmonary disease (“COPD”) which he alleged had been contracted as a result of exposure to dust during various periods of employment by the defendants.

5. The Statement of Claim pleaded that:

1. Mr McDonald was employed by the first, second, third, fourth, fifth, sixth and seventh defendants as a hard rock driller, operator, supervisor, trainer and assessor.

2. Mr McDonald was employed by the eighth, ninth, tenth and eleventh defendants as a worker in coal mines.

3. During the course of all periods of employment Mr McDonald was exposed to and inhaled various dusts including coal and silica dust.

4. As a consequence of such exposure to dust, Mr McDonald had developed small cell lung cancer and COPD.

6. Three of the companies sued as defendants by Mr McDonald were already deregistered by the time the Statement of Claim was filed on 23 October 2017. Those three companies were the first defendant Denehurst Ltd (“Denehurst”), the seventh defendant DPSA Contracting Pty Ltd (“DPSA”) and the eleventh defendant BJC Drilling Pty Ltd (“BJC Drilling”). Proceedings were later discontinued against the sixth defendant Maxfield Drilling Pty Ltd. The other seven corporate defendants are still registered companies.

7. Mr McDonald did not seek the reinstatement of the three deregistered companies to the register. Nor did he seek an order for a grant of leave to sue the insurers for those deregistered companies.

8. Mr McDonald died on 2 November 2017.

9. The present plaintiff Ms Jinling McDonald is the widow of the late Mr Mark McDonald. Ms McDonald was appointed to represent the estate of her late husband to continue the proceedings seeking damages.

10. Ms McDonald has also commenced separate proceedings claiming damages for herself under the Compensation to Relatives Act 1897 (NSW). The compensation to relatives proceedings are in abeyance pending determination of the separate question in these estate proceedings.

11. If orders as sought in pars 2 and 3 of the Amended Notice of Motion are made, then the estate may be able to recover general damages against the three deregistered companies, if they are restored to the register retrospectively. Ms McDonald does not presently seek any grant of leave under the Civil Liability (Claims Against Third Party Insurers) Act 2017 (NSW), as such an order would add the insurers for the deregistered companies as parties on a date well after the death of Mr Mark McDonald.

12. Ms McDonald could not recover general damages against those insurers, for the benefit of the estate, as they were not parties to the proceedings as at the date of commencement of the proceedings by the late Mr McDonald.

13. Section 12B of the Dust Diseases Tribunal Act 1989 (“the DDT Act”) deals with damages for non-economic loss after the death of the plaintiff. Section 12B provides as follows:

“(1) The purpose of this section is to enable the estate of a person whose death has been caused by a dust-related condition to recover damages for the person’s pain or suffering, or for any bodily or mental harm suffered by the person, or for curtailment of the person’s expectation of life, provided proceedings commenced by the person were pending before the Tribunal at the person’s death.

(2) Section 2 (2) (d) of the Law Reform (Miscellaneous Provisions) Act 1944 does not apply in relation to proceedings commenced by a person before his or her death and pending before the Tribunal at his or her death, where the cause of action is for damages in respect of a dust-related condition.”

(Emphasis added)

Reinstatement of a Deregistered Company

14. Section 601AH of the Corporations Act 2001 (Cth) deals with the reinstatement of deregistered companies

15. A company comes into existence as a body corporate at the beginning of the day on which the company is registered: s 119 Corporations Act.

16. A company ceases to exist on deregistration: s 601AD(1) Corporations Act.

17. Section 601AH(1) of the Corporations Act gives power to the Australian Securities and Investments Commission (“ASIC”) to reinstate the registration of a company if ASIC is satisfied that the company should not have been deregistered.

18. Section 601AH(2) of the Corporations Act provides as follows:

“(2) The Court may make an order that ASIC reinstate the registration of a company if:

(a) an application for reinstatement is made to the Court by:

(i) a person aggrieved by the deregistration; or

(ii) a former liquidator of the company; and

(b) the Court is satisfied that it is just that the company's registration be reinstated.”

19. It is important to note that s 601AH(2) refers to reinstatement by a “Court” rather than by a “court”. Section 58AA of the Corporations Act deals with the meaning of court and Court. The section provides:

“(1) Subject to subsection (2), in this Act:

"court" means any court.

"Court" means any of the following courts:

(a) the Federal Court;

(b) the Supreme Court of a State or Territory;

(c) the Family Court of Australia;

(d) a court to which section 41 of the Family Law Act 1975 applies because of a Proclamation made under subsection 41(2) of that Act.

(2) Except where there is a clear expression of a contrary intention (for example, by use of the expression "the Court"), proceedings in relation to a matter under this Act may, subject to Part 9.6A, be brought in any court.

Note: The matters dealt with in Part 9.6A include the applicability of limits on the jurisdictional competence of courts.”

20. On the hearing of the separate question for determination, the plaintiff submitted that the Dust Diseases Tribunal has jurisdiction to make an order under s 601AH(2) of the Corporations Act that ASIC reinstate the three deregistered defendants. The insurers for those three deregistered companies appeared at the hearing to argue to the contrary.

Active Parties in relation to the Determination of the Separate Question

21. On the hearing of the separate question Mr G Little SC appeared for the plaintiff. There was of course no appearance for the three deregistered companies, as they presently do not exist. Mr M Smith appeared for the Workers Compensation Nominal Insurer (“WCNI”) which is the insurer theoretically on risk for Denehurst. Mr A Giurtalis appeared for WorkCover Queensland, which is the insurer theoretically on risk for BJC Drilling and the insurer theoretically on risk for DPSA in relation to any Queensland exposure. Ms E Vail, solicitor, appeared for Coal Mines Insurance, which is the insurer theoretically on risk for DPSA in relation to any New South Wales exposure.

22. Mr Smith and Mr Giurtalis put submissions in opposition to those of Mr Little SC. Ms Vail indicated that her client adopted the submissions put by Mr Smith and Mr Giurtalis.

The Attitude of ASIC to Reinstatement

23. The plaintiff tendered a letter dated 11 March 2021 from ASIC to her solicitors (PX 2).

24. In relation to DPSA, ASIC indicated that provided that no order for costs was sought against ASIC, it did not oppose the application to reinstate DPSA. ASIC indicated that it would not attend the hearing and that a copy of the letter could be provided to the Tribunal so that it is aware of ASIC’s position.

25. ASIC had a different attitude to the application to reinstate Denehurst and BJC Drilling. The letter said:

“…given Denehurst and BJC Drilling were both under external administration prior to deregistration, the application under s 601AH(2) must seek the appointment of a liquidator over these companies, unless the reinstatement application also seeks an order terminating the liquidation of the company under s 482 of the Act at the same time.

The current Amended Notice of Motion does not seek any additional order appointing a liquidator over Denehurst or BJC Drilling upon their reinstatement, if so ordered. On that basis ASIC is not supportive of an order to reinstate these companies. Should your client decide to proceed without seeking any additional orders, ASIC seeks your confirmation that this letter will be provided to the Court tomorrow so it is aware of ASIC’s position.”

26. The plaintiff has not sought additional orders appointing a liquidator to Denehurst or BJC Drilling. That matter only becomes relevant if this judgment decides that the Tribunal has jurisdiction to make orders for reinstatement.

Jurisdiction of the Dust Diseases Tribunal

27. The Dust Diseases Tribunal is established as a court of record by s 4 of the DDT Act. Part 2 of the DDT Act deals generally with the constitution of the Tribunal, including the appointment of a President, Members and staff of the Tribunal.

28. Part 3 of the DDT Act deals with “Jurisdiction of, and proceedings before, the Tribunal”.

29. Section 10 of the DDT Act provides:

“(1) The Tribunal has, except as provided by sections 29 and 32, exclusive jurisdiction to hear and determine proceedings referred to in sections 11 and 12.

(2) The Tribunal has such other jurisdiction as may be conferred on it by or under any other Act.

(3) The Tribunal has, wherever sitting, jurisdiction throughout New South Wales.

(4) In any proceedings brought under section 11 or transferred under section 12, the Tribunal has the same power to make decisions as the Supreme Court would, but for this section, have had in relation to similar proceedings brought in the Supreme Court.

(5) Subject to sections 13(6) and 14, a decision of the Tribunal has the same effect as, and may be enforced in the same way as, a decision of the Supreme Court.

(6) The following matters are declared to be excluded matters for the purposes of section 5F of the Corporations Act 2001 of the Commonwealth in relation to the provisions of sections 471B and 500 (2) of that Act:

(a) proceedings under section 11 of this Act,

(b) proceedings transferred under section 12 of this Act,

being proceedings that, but for this subsection, could not be commenced or proceeded with without the leave of the Court referred to in section 471B or 500 (2) of the Corporations Act 2001 of the Commonwealth.

Note—

In the absence of this subsection, sections 471B and 500 (2) of the Corporations Act 2001 of the Commonwealth would require the leave of the Federal Court or the Supreme Court to commence or proceed with proceedings under this Act against certain companies that are being externally administered. This section ensures that section 5F of that Act will operate to ensure that those sections will not require the leave of the Court directing the external administration before proceedings can be commenced or proceeded with in the Tribunal.

(7) Proceedings to which subsection (6) refers are declared to be an applied Corporations legislation matter for the purposes of Part 3 of the Corporations (Ancillary Provisions) Act 2001 in relation to sections 471B and 500 (2) of the Corporations Act 2001 of the Commonwealth as if a reference in those sections to the Court were a reference to the Tribunal.

Note—

Part 3 of the Corporations (Ancillary Provisions) Act 2001 provides for the application of provisions of the Corporations Act 2001 and Part 3 of the Australian Securities and Investments Commission Act 2001 of the Commonwealth as laws of the State in respect of any matter declared by a law of the State (whether with or without modification) to be an applied Corporations legislation matter for the purposes of that Part in relation to those Commonwealth provisions. Section 14 (2) of the Corporations (Ancillary Provisions) Act 2001 ensures that a declaration made for the purposes of Part 3 of that Act only operates to apply a provision of the Corporations legislation to a matter as a law of the State if that provision does not already apply to the matter as a law of the Commonwealth. If a provision referred to in a declaration already applies as a law of the Commonwealth, nothing in the declaration will affect its continued operation as a law of the Commonwealth.”

30. Section 11 of the DDT Act provides:

“(1) If:

(a) a person is suffering, or has suffered, from a dust-related condition or a person who has died was, immediately before death, suffering from a dust-related condition, and

(b) it is alleged that the dust-related condition was attributable or partly attributable to a breach of a duty owed to the person by another person, and

(c) the person who is or was suffering from the dust-related condition or a person claiming through that person would, but for this Act, have been entitled to bring an action for the recovery of damages in respect of that dust-related condition or death,

proceedings for damages in respect of that dust-related condition or death may be brought before the Tribunal and may not be brought or entertained before any other court or tribunal.

(1A) Proceedings by any tort-feasor liable in respect of damages referred to in subsection (1) to recover contribution from any other tort-feasor liable in respect of that damage may be brought before the Tribunal.

Note—

This subsection does not prevent those proceedings being brought in another court.

(2) In subsection (1), a reference to a duty includes a reference to a duty imposed by statute as well as a duty imposed under the common law.

(3) If the cause of action giving rise to proceedings to be brought under subsection (1) or (1A) also gives rise to a claim in respect of some other matter, the claim may be included in those proceedings even though it does not relate to a dust-related condition from which a person is suffering or has suffered.

(4) Any matter that is ancillary or related to a matter that is the subject of proceedings to be brought under subsection (1) or (1A) may also be included in those proceedings.

(5) In subsection (1) (c), the reference to a person claiming through a person who is or was suffering from a dust-related condition includes a reference to a relative for whose benefit an action may be brought under the Compensation to Relatives Act 1897.”

31. Section 12 of the DDT Act provides:

“(1) If:

(a) on the commencement of this section, proceedings of the kind referred to in section 11 (1) are pending in the Supreme Court and the hearing of those proceedings has not begun, or

(b) after that commencement, proceedings of that kind are brought or are pending in the Supreme Court,

the registrar of the division of that Court in which the proceedings are pending or are brought must transfer the proceedings to the Tribunal, together with any ancillary or related matters.

(2) If:

(a) on the commencement of this section, proceedings of the kind referred to in section 11 (1) are pending in the District Court and the hearing of those proceedings has not begun, or

(b) after that commencement, proceedings of that kind are brought or are pending in the District Court,

the registrar of that Court for the place where the proceedings are pending or are brought must transfer the proceedings to the Tribunal, together with any ancillary or related matters.”

32. Section 3(3) of the DDT Act provides:

“(3) Notes included in this Act do not form part of this Act.”

33. Section 3(1) defines the phrase “ancillary or related”, which appears in s 11(4) of the DDT Act as follows:

“ancillary or related matter, in relation to any proceedings, includes any claim relating to the subject-matter of the proceedings that a defendant in the proceedings has against another person, whether that other person is a party to the proceedings or not.”

34. The original claim brought by Mr McDonald, and now continued by Ms McDonald for the benefit of Mr McDonald’s estate, is clearly a claim for damages for a “dust-related condition”. Section 3(1) contains the following definition:

“dust-related condition means:

(a) a disease specified in Schedule 1, or

(b) any other pathological condition of the lungs, pleura or peritoneum that is attributable to dust.”

35. While lung cancer (apart from asbestos-induced carcinoma) is not included in Schedule 1, it is clearly arguable that lung cancer induced by exposure to silica and/or coal dust is a pathological condition of the lungs attributable to dust. It would thus fall within the definition of a “dust-related condition”. I will assume so for the purpose of this separate determination.

Background to the Dust Diseases Tribunal Act 1989 (NSW)

36. One of the earliest cases decided by the Tribunal went on appeal to the Court of Appeal in Mangion v James Hardie & Co Pty Ltd (1990) 20 NSWLR 100. The issues to be decided by the Court of Appeal in that case were whether a claim under the Compensation to Relatives Act 1897 (NSW) and a nervous shock claim pursuant to the Law Reform (Miscellaneous Provisions) Act 1944 (NSW) were within the jurisdiction of the Tribunal. Justice Mahoney said the following at p 108G:

“The objective sought to be achieved by the Dust Diseases Tribunal Act was, or included, that where a person is liable for damages because of his liability for a dust-related condition, all aspects of his liability should be determined by one Tribunal. The legislature no doubt had in mind that, under the pre-existing law, the person affected by such a condition or his legal personal representative might bring proceedings first in the Compensation Court and then in the Supreme or District Court for damages; and on his death his wife or other relatives might then bring proceedings in the Compensation Court and in the Supreme or District Courts. The experience of multiple litigation in motor vehicle and industrial accident cases was, I think, seen by the legislature as a mischief to be avoided in dust-related condition cases. The objective of avoiding multiple litigation would to that extent be defeated if claims by relatives, and in particular claims by them under the Compensation to Relatives Act, were not to be brought before the Tribunal.

In addition, the legislature no doubt saw as a mischief to be avoided the possibility of inconsistent decisions in different courts or tribunals in respective claims based upon a dust-related condition. The avoidance of such inconsistency or at least the not infrequent arguments as to the effect of estoppel was also, I think, before the mind of the legislature. The avoidance of this mischief would not be achieved to the extent that claims under the Compensation to Relatives Act were not within the Tribunal’s jurisdiction.”

37. Senior Counsel for the plaintiff relied upon that passage in the decision in Mangion in support of his submission that it was intended that the Tribunal would have jurisdiction to determine all matters necessary to finalise a claim for damages for a dust-related condition. This included a submission that where a plaintiff who suffered from a dust-related condition had a cause of action against an employer, the Tribunal had jurisdiction to make an order for reinstatement of a deregistered corporate employer, using the power under s 601AH(2) of the Corporations Act.

Same Power as the Supreme Court

38. Senior Counsel for the plaintiff submitted as follows:

1. The Tribunal has exclusive jurisdiction to hear and determine proceedings referred to in s 11 of the DDT Act: s 10(1) DDT Act.

2. In proceedings brought under s 11 the Tribunal has the same power to make decisions as the Supreme Court would, but for s 10, have had in relation to similar proceedings brought in the Supreme Court: s 10(4) DDT Act.

3. The claim brought by the late Mr McDonald, and now pursued by Ms McDonald, is a claim for damages for a dust-related condition which may be brought before the Tribunal and may not be brought before or entertained before any other court or tribunal: s 11(1) DDT Act.

4. While ss 58AA and 601AH(2) of the Corporations Act give the power to order ASIC to reinstate a company to the Supreme Court, the Tribunal has the powers of the Supreme Court when hearing proceedings brought for damages for a dust-related condition.

5. Thus the Tribunal has power to make an order under s 601AH(2) of the Corporations Act.

39. Counsel for WCNI submitted that because Denehurst had been deregistered pursuant to the provisions of the Corporations Act, its reinstatement was governed by that same Act. An order for reinstatement may only be made by “the Court” which is defined in s 58AA of the Corporations Act to mean the Federal Court, a State or Territory Supreme Court or the Family Court of Australia.

40. Counsel for WCNI submitted that an application for reinstatement pursuant to s 601AH(2) of the Corporations Act is not a proceeding of the type referred to in s 11(1) of the DDT Act. Nor is an application for reinstatement under s 601AH(2) of the Corporations Act, an application that is “ancillary or related” to a claim for damages for a dust-related condition.

41. Counsel for WorkCover Queensland made submissions to the same effect.

42. As previously recited, Coal Mines Insurance adopted the submissions put forward for WCNI and WorkCover Queensland.

43. All counsel referred me to the decision of the Court of Appeal in James Hardie & Coy Pty Ltd v Barry [2000] NSWCA 353; (2000) 53 NSWLR 257. The plaintiff had commenced proceedings in the Tribunal seeking damages for a dust-related condition. The plaintiff was a resident of Queensland and the cause of action included torts that occurred in Queensland. The defendants sought orders from the Supreme Court under the Jurisdiction of Courts (Cross-vesting) Act 1987 (NSW) to transfer the proceedings in the Tribunal to the Supreme Court of NSW and then to the Supreme Court of Queensland. The plaintiff resisted these applications in order to retain perceived procedural advantages if the matter were heard by the Tribunal rather than by the Supreme Court of Queensland.

44. The plaintiff submitted that the power to transfer under the cross-vesting legislation was vested exclusively in the Tribunal. This submission was rejected by President Mason, with whom Chief Justice Spigelman and Justice Priestley agreed.

45. The President acknowledged that the DDT Act established the Tribunal as a specialist body with exclusive jurisdiction in defined dust-related matters: at [53]. The President noted that s 10(1) of the DDT Act gave the Tribunal exclusive jurisdiction to “hear and determine” proceedings falling within s 11(1). He said at [56]:

“But such grant says nothing about any jurisdiction otherwise conferred expressly on the Supreme Court that does not fall within such description. For example, the appellate jurisdiction of this Court that is conferred by s 32 of the DDT Act is obviously unaffected by s 10(1).”

(Emphasis added)

46. The plaintiff argued that the words “related to” in s 11(4) of the DDT Act meant that the Tribunal had exclusive jurisdiction in relation to an intermediate step such as a cross-vesting application. The President said at [62]:

“But it is entirely different thing to say that such an ancillary or related matter falls within the preclusion of s 10(1) as soon as the original plaintiff and defendant are at issue on the substantive claim and even before the defendant makes any ancillary or related claim in the Tribunal. It is clear that s 10(1) was introduced to ensure that, within New South Wales at least, particular types of dust-related claims were litigated at trial only in a specialist tribunal. But it does not follow that the pendent jurisdiction which ‘may’ be added pursuant to s 11(4) falls within the same dispensation. Section 12 of the DDT Act reinforces this reasoning.”

47. The President rejected the submission that the Tribunal had exclusive jurisdiction to deal with the cross-vesting application saying:

“67. The plaintiff suggested that s 10(4) of the DDT Act confers on the Tribunal the Supreme Court’s cross-vesting jurisdiction in relation to proceedings brought under s 11 of the DDT Act. I disagree. Section 10(4) gives the Tribunal the Supreme Court’s ‘power to make decisions’ in any proceedings brought under s 11 or transferred under s 12. This is a reference to decisions concerning the hearing in the Tribunal, including interlocutory aspects thereof. The ‘jurisdiction’ given to the Supreme Court under the parts of the cross-vesting scheme invoked in this case is of a different order altogether.

68.   Accordingly, the Tribunal has no jurisdiction to transfer and the Supreme Court alone has jurisdiction to remove the proceedings for the purpose of transferring it to the Supreme Court of Queensland.”

48. I find that the reasoning in Barry is directly applicable to the present issue. The Corporations Act has given a statutory power to (inter alia) the Supreme Court of NSW to make an order under s 601AH(2) of the Corporations Act. The exclusive jurisdiction granted by s 10 of the DDT Act is jurisdiction “to hear and determine proceedings referred to in ss 11 and 12”. The type of proceeding referred to in s 11(1) of the DDT Act is a claim for damages in respect of a dust-related condition. In hearing proceedings brought under s 11 the Tribunal has the same power to make decisions as the Supreme Court would have had in relation to similar proceedings brought in the Supreme Court before the passing of the DDT Act: s 10(4) of the DDT Act. The reference in s 10(4) of the DDT Act to the power formerly exercised by the Supreme Court to make decisions is a reference to the power of the Supreme Court (before the passage of the DDT Act) to award common law damages for a dust-related condition.

49. The Tribunal has not been given power to exercise “any jurisdiction otherwise conferred expressly on the Supreme Court”: Barry at [56]. This would include any jurisdiction expressly given to the Supreme Court by statute, such as the power conferred by s 601AH(2) of the Corporations Act.

50. The plaintiff cannot rely upon the power given to the Tribunal by s 11(4) of the DDT Act to deal with any matter that is “ancillary or related”, as such a matter must be ancillary or related to the subject of the proceedings brought under s 11(1) of the DDT Act. The subject of such proceedings is a claim for damages in respect of a dust-related condition.

“Court” or “court”

51. The passing of the Corporations Act is an example of what might be called co-operative federalism. The parliaments in each State passed legislation to refer certain matters relating to corporations and financial products and services to the parliament of the Commonwealth of Australia for the purposes of s 51(xxxvii) of the Constitution of the Commonwealth. In New South Wales this was done by the Corporations (Commonwealth Powers) Act 2001 (NSW). The Commonwealth parliament then enacted the Corporations Act 2001 (Cth). The States then enacted supporting legislation to make provision for consequential amendments. In New South Wales this was done by the Corporations (Consequential Amendments) Act 2001. The Commonwealth legislation then applied as the law of the State of New South Wales, subject to each State declaring that the Corporations Act was not to apply in certain circumstances.

52. The jurisdiction given to the Supreme Court by s 601AH(2) of the Corporations Act seems, like the cross-vesting jurisdiction, to involve a Commonwealth legislative scheme which “is of a different order altogether” – Barry at [67].

53. While the reasoning in Barry did not concern an argument as to whether the Tribunal had jurisdiction under the Corporations Act, the same principles apply in my view to the present dispute.

54. Counsel for WCNI referred the Tribunal to the decision of Justice Brereton in Re Douglas Webber Events Pty Ltd [2014] NSWSC 1544; (2014) 104 ACSR 250. A plaintiff sought leave pursuant to s 237 of the Corporations Act to bring derivative proceedings on behalf of a company. The defendant was a citizen of New Zealand and the proceedings were served upon him in that country in reliance upon the Trans-Tasman Proceedings Act 2010 (Cth). The New Zealand defendant applied pursuant to s 17 of the Trans-Tasman Proceedings Act for an order staying the proceedings commenced in the Supreme Court of NSW on the grounds that the High Court of New Zealand was the more appropriate forum.

55. The legislation provided that the Australian court had a discretion to stay proceedings if it was satisfied of two conditions: firstly that a New Zealand court had jurisdiction to determine the matters in issue between the parties to the proceedings and secondly that the New Zealand court was the more appropriate court to determine those matters.

56. Section 237 of the Corporations Act is drafted in similar terms to s 601AH. Section 237 permits a person to apply to “the Court” for leave to bring proceedings on behalf of a company.

57. Justice Brereton found at [34] that because of s 58AA of the Corporations Act, no court except the Federal Court of Australia, the Supreme Court of a State or Territory or the Family Court of Australia could exercise the power given by s 237. His Honour held that necessarily, no foreign court may do so.

58. At [35] Justice Brereton said:

“In other words, where a function under the Act is given to a ‘Court’ (as distinct from a ‘court’), only a court as so defined can exercise that function. Sections 237, 1317H, 232 and 233 are such provisions, and jurisdiction under them is limited to such ‘Courts’ and is not given to other courts, including foreign courts.”

59. To that list could be added s 601AH(2). It also gives jurisdiction only to a “Court” and not to any other courts. Since the Tribunal is not a “Court” within the definition of s 58AA of the Corporations Act, it has not been given jurisdiction under s 601AH(2), and the power given to a Court under that subsection to order ASIC to reinstate the registration of a company, can only be exercised by a “Court” and not by a “court”.

60. Justice Brereton relied upon the decision of the High Court in In the Marriage of JG and RG Smith [1986] HCA 36; (1986) 161 CLR 217. That case concerned whether the Family Court had accrued jurisdiction to approve a release of rights under s 31 of the Family Provision Act 1984 (NSW). The High Court said:

“There is a further, and quite independent, reason for concluding that the Family Court cannot give an approval for the purposes of s 31 of the Family Provision Act. That section makes a release effective only if the Supreme Court has given its approval to it. An approval by the Family Court is not an approval by the Supreme Court, and would not satisfy s 31(3).”

61. Thus where a statutory power is given to a “Court” within the meaning of the Corporations Act, it follows that only a “Court” has jurisdiction to grant relief of the kind sought by the plaintiff in these proceedings.

62. For the reasons set out above I find that the Tribunal does not have jurisdiction to grant the relief sought in pars 2 and 3 of the Amended Notice of Motion.

Sections 10(6) and 10(7) of the DDT Act

63. These subsections are reproduced in par 29 above. Senior Counsel for the plaintiff submitted that the presence of these subsections in the DDT Act was an indication that the Tribunal could exercise the corporations law powers of the Supreme Court in proceedings within its exclusive jurisdiction. Counsel for WCNI and counsel for WorkCover Queensland submitted that the presence of these subsections was an indication to the contrary i.e. that because s 601AH of the Corporations Act was not to the subject of a “carve out” (to use the expression adopted by counsel for WorkCover Queensland) the power to order ASIC to reinstate a company was vested only in the Supreme Court and not in the Tribunal.

64. Subsections 10(6) and 10(7) of the DDT Act were inserted into the Act by Clause 2.11 of Schedule 2 to the Corporations (Consequential Amendments) Act 2001 (NSW). The Second Reading Speech (Legislative Council), 26 June 2001 said:

“The Corporations (Consequential Amendments) Bill amends over 160 Acts and Regulations that contain references to the Corporations Law, or to a previous Corporations Law scheme, or that otherwise need amendment because of the change from a State-based to a Commonwealth-based system of Corporations Law.

This wide-ranging amendment of the statute book is being made so that the new arrangements for a National Corporations Law are more readily understood as they apply to the text of State Acts.

…

The schedules to the Bill make amendments that fall into distinct categories, namely –

…

(d) in accordance with part 1.1A of the proposed Corporations Act of the Commonwealth (dealing with the interaction between Commonwealth legislation and State provisions), provisions to continue certain existing exemptions, exceptions and exclusions from the operation of the Corporations Law that apply under State law.”

65. Section 10(6) of the DDT Act declares that ss 471B and 500(2) of the Corporations Act are “excluded matters” for the purposes of s 5F of the Corporations Act. Section 5F says that if a provision of a State law declares a matter to be an “excluded matter”, then the specified provision of the Corporations legislation does not apply in the State in relation to the matter.

66. Section 471B of the Corporations Act says that while a company is being wound up in insolvency or by the “Court”, a person cannot begin or proceed with proceedings in a “court” against the company except with the leave of the “Court”. But for the fact that s 471B is declared to be an excluded matter, any plaintiff in the Tribunal who wished to sue a company which was being wound up would need to go to a “Court” (usually the Supreme Court of NSW or the Federal Court) to obtain leave to commence or continue the proceedings.

67. Section 500(2) of the Corporations Act operates in a similar fashion. After a resolution for voluntary winding up has been passed, no civil proceeding can be commenced or continued against the company except by leave of the “Court”. This provision is, by force of s 10(6) of the DDT Act, also an excluded provision for the purposes of s 5F of the Corporations Act.

68. As the Note to s 10(6) accurately states, the effect of the subsection is that a plaintiff in the Tribunal does not require the leave of the Supreme Court or the Federal Court to commence proceedings against a company which is under external administration conducted either by a liquidator or an administrator.

69. Section 10(7) of the DDT Act goes further, and requires the references in ss 471B and 500(2) of the Corporations Act to a “Court” to be read as a reference to the Tribunal. Thus in respect of a company which is being wound up or which is in voluntary administration, the Tribunal has the power to grant leave to commence or continue proceedings.

70. If the parliament of NSW had wanted to give the Tribunal power to order ASIC to reinstate a company pursuant to s 601AH(2) of the Corporations Act, it could have added s 601AH(2) to the powers effectively given to the Tribunal by subss 10(6) and 10(7). That was not done.

71. That is a further reason for reaching the conclusion that the Tribunal does not have jurisdiction to make an order that ASIC reinstate a company, and that such power still resides only in the Supreme Court, the Federal Court and the Family Court.

Conclusion and Orders

72. For the reasons set out above, I have found that the Tribunal does not have jurisdiction to make the orders sought under s 601AH(2) of the Corporations Act 2001 (Cth). The plaintiff is at liberty to make application to a “Court” for such orders, if so advised. The parties requested that I reserve the costs of the motion, and give them time to consider this judgment. The parties also requested that they be given leave to approach my Associate to obtain a fresh date for a further directions hearing.

73. In the current COVID-19 lockdown of Greater Sydney, the parties have very sensibly agreed that this judgment may be delivered by publication on Caselaw and a link to the published judgment being sent by email to the lawyers for the parties.

72. My orders are:

1. Determine that the answer to the separate question “Does the Dust Diseases Tribunal have jurisdiction to make the orders sought in paragraphs 2 and 3 of the Amended Notice of Motion filed on 5 March 2021?” is “No”.

2. Reserve the costs of the motion.

3. Grant leave to the parties to approach my Associate to obtain a date for a directions hearing.

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Decision last updated: 06 August 2021