Chang Jeeng v Nuffield (Australia) Pty Ltd [1959] HCA 40; (1959) 101 CLR 629 (3 September 1959)

HIGH COURT OF AUSTRALIA

CHANG JEENG v. NUFFIELD (AUSTRALIA) PTY. LTD. [1959] HCA 40; (1959) 101 CLR 629

Workers' Compensation (N.S.W.)

High Court of Australia
Dixon C.J.(1), McTiernan(2), Kitto(3), Menzies(4) and Windeyer(5) JJ.

CATCHWORDS

Workers' Compensation (N.S.W.) - Time for commencing proceedings independently of Act against employer - Prescribed period of twelve months from first or only payment of compensation with provision for application for extension of time made within, or within twelve months after expiration of, prescribed period - Amending legislation extending prescribed period from twelve months to three years but leaving time within &which application might be made for extension unchanged - Worker - First payment of compensation - Prescribed period of twelve months still current - Amendment to three years - Application for extension of time made after three but within four years from first payment - Competency of application - Workers' Compensation Act 1926-1951 (N.S.W.), s. 63 (3) (a) - Workers' Compensation (Amendment) Act 1953 (N.S.W.) (No. 21 of 1953), s. 7 (1) (c) (ii).

HEARING

Sydney, 1959, April 28; September 3. 3:9:1959
APPEAL from the Supreme Court of New South Wales.

DECISION

September 3.
The following written judgments were delivered:-
DIXON C.J. The question of law upon which the decision of this appeal turns (Amendment) Act 1953, No. 21, in a provision of the Workers' Compensation Act 1926-1951 (N.S.W.). The provision is s. 63 which deals with the right of a worker to proceed under the Act and independently of the Act in a case where the injury is caused by some negligence or wilful act giving rise to a civil liability in the employer. Sub-section (3) of s. 63 provided, before the amendment, that where any payment by way of (workers') compensation under the Act is received by the worker no action should be maintainable by the worker (scil. independently of the Act) unless such proceedings are instituted within twelve months after the date upon which such payment was so received by the worker or where more payments than one have been so received by the worker unless such proceedings are instituted within twelve months after the date upon which the first of such payments was so received by the worker. This was called the prescribed period. A proviso enabled a judge of the Supreme Court to extend the prescribed period for such further period and subject to such terms and conditions as he set out in the order, if he were satisfied that sufficient cause was shown or that having regard to all the circumstances of the case it would be reasonable so to do. An application for an extension might be made within the prescribed period or at any time within twelve months thereafter. On 20th November 1953 the foregoing provision was altered by changing the prescribed period from twelve months to three years. It is to be noted that the period within which an application for an extension of time may be made remained unaltered: it remained twelve months after the prescribed period but of course as the prescribed period became three years, time to apply for an extension did not run out until twelve months after the expiry not of one year but of three years from the first payment of compensation. The amendment substituting three years for twelve months was made by s. 7 (1) (c) (ii) of the Workers' Compensation Act 1953, No. 21. Since this is the provision which gives rise to the question it is important to set it out in full. The expression "the Principal Act" which the provision uses means the Workers' Compensation Act 1926-1951. Section 7 (1) says "The Principal Act is further amended . . . (c) (i) . . . (ii) by omitting from paragraph (a) of subsection three of the same section" (scil. s. 7) "the words 'twelve months' where firstly secondly and thirdly occurring and by inserting in lieu thereof the words 'three years'." In April 1953, that is to say about seven months before this amendment was made, Chang Jeeng, the appellant, suffered, as he claims, an injury compensable under the Act by his employers, who are the respondents upon this appeal. For that he received two payments of compensation the first of which was made on 1st May 1953. As the law then stood, if he were to decide to sue his employer in respect of his injury independently of the Act it would be necessary for him to institute his proceedings against his employer within twelve months, that is to say not later than 1st May 1954, or if he failed to do so, then it would be necessary not later than twelve months from the latter date, that is to say not later than 1st May 1955, to apply to a judge of the Supreme Court for an extension of time. If he obtained such an extension it would be necessary for him to sue his employer within the time named by the judge. In fact the appellant, Chang Jeeng, did not sue his employer before 1st May 1954 and did not apply before 1st May 1955 for an extension of time. But he did make an application on 12th December 1956 for an extension of time. That date was more than three years after the first payment of compensation. The amendment had of course extended the prescribed period to three years, but if the case was governed by the new prescribed period of three years, the fixed time for bringing an action had expired on 1st May 1956. But over four months remained of the twelve months which is allowed after the expiry of the prescribed period for making an application for an extension of time. The Prothonotary, under a delegation, heard the application in the first instance and refused it on the ground that no sufficient cause had been shown for an extension and that in the circumstances it was not reasonable to extend the time. There was then a reference to the judge in chambers which McClemens J. heard. His Honour granted an extension. So far the respondent had not taken the point that the application was not governed by the amended provision and that the unamended provision continued to apply and that accordingly the application was out of time. The respondent appealed to the Full Court but again he did not take the point in his notice of appeal, the grounds of which were confined to the existence of cause for an extension of time and the reasonableness of the order extending time. However, the respondent notified his intention to apply for an amendment of the grounds of appeal so as to include the point and in the Full Court the question was argued whether the case was governed still by the provision as it stood before the amendment. In the result it was decided by Owen and Hardie JJ., Herron J. dissenting, that the old "prescribed period" of twelve months remained applicable to the case and that the amendment did not apply: Chang v. Nuffield (Aust.) Pty. Ltd. (1959) SR (NSW) 16; (1958) 76 WN 13 . It followed of course from this decision that the application for an extension of time was itself out of time and could not be granted. I find myself unable to agree in the view adopted by the majority of the Supreme Court. My reasons for the contrary view may be stated very simply. At the time when the amendment was made substituting three years for twelve months the prescribed period of twelve months limited for suing had not expired and of course the further period of twelve months before the expiration of which it was necessary to make an application for an extension of time had not begun to run. It appears to me that, on the repeal of the limitation of twelve months and the substitution of that of three years, there was no limitation to govern the case unless it was the period of three years. The right to sue had not been barred and no question of reviving it arose. It was a common law right to put in suit a common law cause of action. It was enforceable and the statutory period of limitation then running against it ceased to exist and was replaced by another statutory period. According to the rule of the common law the statutory limitation to a period of twelve months, except as to cases past and closed, should be considered as if it had never existed. Some statutory provision might, of course, apply which overrode the rule of the common law and kept the limitation of twelve months alive for a case in which time had begun to run before its repeal and replacement by a period of three years. But in my opinion there is no such provision. I think that the Interpretation Act of 1897 (N.S.W.) does not contain it. I take the view that the words in par. (a) of s. 8 that the repeal shall not "affect the previous operation of an enactment so repealed" mean that an operation, that is an effect or legal situation, already produced shall not be affected by the repeal. A consideration of s. 8 will as I think show that this case cannot fall within it and there is no other relevant section. It was suggested that because in certain provisions in the Workers' Compensation (Amendment) Act 1953 No. 21 there is an express or at all events a distinct advertence to the question of the retrospective operation of other amendments, it was sufficiently implied in the amending statute itself that the repealed period of twelve months should continue to apply to cases where time had commenced to run. I recognize that this reasoning is the basis of the decision in Russell v. Darling Island Stevedoring Co. Ltd. (1) and it influenced the decision of Owen and Hardie JJ. in the present case. But for reasons I shall give I do not think that any such intention is disclosed, still less a necessary intendment. I can see no room for any presumption by which the operation of the repealed provision would be continued. I say nothing about cases that had been barred by the fixed period of limitation so that the right to sue had gone. Russell's Case (1958) SR (NSW) 200; (1957) 74 WN 467 is an example. There is too, the stronger case where the right to apply for an extension of time had also been barred before 20th November 1953. But where the right to sue is on foot and the limitation is repealed, then, in the absence of some special statutory provision or manifest intendment, I can see nothing which could keep the repealed period of limitation in operation for the purpose of the case. The reasoning which I have applied to the provisions in question here is really that which I applied in Maxwell v. Murphy [1957] HCA 7; (1957) 96 CLR 261, at pp 266-268 but with an opposite result. The reasoning there produced an opposite result because before the amendment enlarging the period of limitation had come into force the right had been completely barred by the expiry of the old period. The question therefore was of a different, perhaps of a converse, kind, namely whether an actionable right barred and gone was revived by the repeal of the limitation of time and the substitution of a longer one. In that case no provision could be found in the Interpretation Act saying that it could not be so revived: here none can be found preserving the operation, in cases where time has not expired, of the repealed limitation. There I thought that if the amending statute applied to that case, it would impose anew a liability that had ceased to exist and that the presumptive interpretation was against such an operation (1957) 96 CLR, at p 269 . But if the diverse character of the two cases be held in mind, what I wrote in Maxwell v. Murphy (1957) 96 CLR 261 serves to explain the view I have expressed above and it contains my formulation of the rules of interpretation affecting what is so misleadingly called the retrospective operation of statutes. I therefore give some extracts from what I wrote in that case: - "In a sense the matter is governed by the interpretation of the amending statute. But the interpretation can hardly be accomplished by attempting to extract from the terms of that enactment an actual meaning or intention with reference to such a question. For it is unfortunately only too plain from the brief words substituting one period of time for the other that there was never any advertence to the effect the amendment would or might have in relation to deaths that had already occurred. The interpretation must depend upon presumption or rules of construction. It may perhaps be noted that in strictness it is the operation of the amendment as a repeal of the limitation of twelve months that gives . . . room for the contention that no longer is" (the) "action barred . . . . If the Interpretation Act does not apply, the rule of the common law on the subject must receive effect. In the first place it must be borne in mund that at common law the repeal of a statute or statutory provision means that the law must be applied as if the provision had never existed. This is subject to an exception, variously expressed, as to past matters. Lord Tenterden C.J. used the expression 'transactions past and closed' : Surtees v. Ellison [1829] EngR 594; (1829) 9 B & C 750, at p 752 [1829] EngR 594; (109 ER 278, at p 279) . Lord Campbell C.J. said : '. . . all matters that have taken place under it before its repeal are valid and cannot be called in question' : Reg. v. Inhabitants of Denton (1852) Dears 3, at p 8 [1852] EngR 59; (169 ER 612, at p 614) . The phrase of Blackburn J. was 'transactions already completed under it' - Butcher v. Henderson (1868) LR 3 QB 335, at p 338 . The general rule of the common law is that a statute changing the law ought not, unless the intention appears with reasonable certainty, to be understood as applying to facts or events that have already occurred in such a way as to confer or impose or otherwise affect rights or liabilities which the law had defined by reference to the past events. But, given rights and liabilities fixed by reference to past facts, matters or events, the law appointing or regulating the manner in which they are to be enforced or their enjoyment is to be secured by judicial remedy is not within the application of such a presumption. Changes made in practice and procedure are applied to proceedings to enforce rights and liabilities, or for that matter to vindicate an immunity or privilege, notwithstanding that before the change in the law was made the accrual or establishment of the rights, liabilities, immunity or privilege was complete and rested on events or transactions that were otherwise past and closed." (1957) 96 CLR, at pp 266, 267 . To complete this passage, long as it is, it is necessary to add an observation concerning one of the difficulties which have attended the application of a distinction clear enough in principle and well founded in justice. The observation is that in some cases "the difficulty has been traceable to the inveterate tendency of English law to regard some matters as evidentiary or procedural which in reality must operate to impair or destroy rights in substance" (1957) 96 CLR, at p 267 . Now to my mind the considerations in the present case which are decisive are these : - the right of action of Chang Jeeng the appellant had not been barred at the date the amendment took effect ; considered in relation to the right of action the amendment was, I think, truly procedural ; there was no impairment or destruction of any substantive right belonging to the respondent ; the amendment effectually removed the limitation of twelve months and replaced it by a period of three years and no provision of the Interpretation Act exists which would keep alive the limitation of twelve months in its application to the case. If one turns to the dissenting judgment of Fullagar J. (1957) 96 CLR, at p 283, par-ticularly at pp 284-287 in Maxwell v. Murphy [1957] HCA 7; (1957) 96 CLR 261 reasons will be found set out which apply with no inconsiderable strength to the present case. (at p638)

2. The matter upon which this case must, as I think, turn is the suggestion that the Workers' Compensation (Amendment) Act 1953, No. 21, contains in itself sufficient evidence of an intention that the unamended provision should continue to apply to cases where a payment on account of compensation had been already made before the amendment took effect. The provisions said to provide that evidence are these. In the first place sub-s. (2) of s. 7 says expressly that an amendment made by par. (a) of sub-s. (1), the effect of which is to confer upon the commission the status of a court of record, shall be deemed to have commenced on 20th May 1950. In the second place sub-s. (3) of s. 7 says expressly that an amendment made by sub-s. (1) (c) (i) of that section shall apply to and in respect of workers who have received an injury before the commencement of the Act and who have not signed a notice of election pursuant to s. 63A as well as to workers receiving an injury after such commencement. In the third place an analogous allusion to the application of amendments may be found in s. 3 (2). (at p639)

3. In my opinion the foregoing provisions do not warrant the inference which it is sought to draw from them. All they do is to show that the draftsman adverted to specific problems concerning the earliest application to persons and events of the particular amendments to which those provisions relate. Plainly he did not advert to any such problem in the case of s. 7 (1) (c) (ii). No inference can, I think, be drawn as to his meaning and it appears to me that no foundation is provided for an implication in the enactment to the effect that the repealed limitation should continue to apply to a case where a payment of compensation had already been made. There is nothing in my opinion to displace what otherwise I should take to be the meaning and application of the amending provision. I think therefore that the application for an extension was competent. (at p639)

4. We were told that in the Full Court a view was expressed from the Bench during the hearing of the appeal that on the merits the decision of McClemens J. should not be interfered with but that no decision to that effect was pronounced. We have nothing before us in the appeal book on the subject and in the circumstances we stated at the hearing of this appeal that, if we decided that the application to the Supreme Court to extend the time was competent, we would remit the proceedings to the Full Court for decision upon the merits of the appeal or application. (at p639)

McTIERNAN J. I agree in the reasons of the Chief Justice. Consequently I concur in remitting the proceedings to the Full Court for decision upon the merits. (at p639)

KITTO J. The appellant, while employed by the respondent, received a personal injury in the course of his employment, and some incapacity for work resulted. He received the injury on an unspecified day in or about the month of April 1953. He was a "worker" within the meaning of the Workers' Compensation Act 1926-1951 (N.S.W.), and by virtue of the provisions of that Act the receipt of the injury entitled him in the circumstances to receive compensation from the respondent. He alleges that the injury was caused by the personal negligence of some person for whose act or default the respondent was responsible at common law, and, if that is so, as we must assume for the purposes of this appeal that it is, the receipt of the injury entitled him according to the common law to recover damages from the respondent. (at p640)

2. But with respect both to damages and to compensation his rights were subject to the provisions contained in s. 63 of the Workers' Compensation Act as it stood at the time. The section first provided, by sub-s. (1), that nothing in the Act should affect any civil liability of the employer where the injury was caused by the personal negligence or wilful act of the employer or of some person for whose act or default the employer was responsible. Then, by sub-s. (2), it provided that the worker might, at his option, proceed under the Act (i.e. for compensation) or independently of the Act (i.e. for damages), and went on to qualify the right to compensation by enacting that the worker should not be entitled to compensation under the Act if he obtained judgment against his employer independently of the Act. Then the section enacted qualifications upon the right to damages, by making a series of provisions all of which had been inserted by an amending Act in 1938. Only sub-s. (3) need be mentioned here in detail. So far as material, it provided that where any payment by way of compensation under the Act in respect of the injury was received by the worker after the date upon which the 1938 Act was assented to, no proceedings against the employer independently of the Act should be maintainable by any person whomsoever unless such proceedings were instituted within twelve months after the date upon which such payment was so received by the worker, or where more payments than one had been so received by the worker unless such proceedings were instituted within twelve months after the date upon which the first of such payments was so received by the worker. The period within which proceedings were to be instituted as prescribed in the foregoing provisions was referred to as the "prescribed period". The proviso enabled a judge of the Supreme Court, or the Supreme Court on appeal from a judge, to extend the prescribed period for cause shown, on an application made either within the "prescribed period" or within twelve months thereafter. (at p640)

3. The appellant did not institute any proceedings within the "prescribed period", which in this case expired on 1st May 1954, nor did he apply to a judge for an extension within twelve months after that date. But before the "prescribed period" expired, namely on 20th November 1953, a further amending Act, the Act No. 21 of 1953, came into operation. This Act, by s. 7 (1) (c) (ii), omitted from sub-s. (3) of s. 63 the words "twelve months", and inserted in their place the words "three years", in the prescription of the period for instituting proceedings independently of the Act (though not in the prescription of the period for applying for an extension of time). The appellant did not institute any proceedings within three years after his first receipt of compensation, but within twelve months after that period, namely on 12th December 1956, he took out a summons in the Supreme Court seeking an extension of time under the section. McClemens J. made an order extending the time until 18th April 1957. On an appeal from this order to the Full Court of the Supreme Court, the point was taken for the first time that there was no jurisdiction to grant any extension. The amending Act of 1953, it was contended, did not apply to the case, and the appellant had lost his right to apply for an extension by not having done so by 1st May 1955, that is, within twelve months after the expiration of his original "prescribed period". The Full Court by a majority (Owen and Hardie JJ., Herron J. dissenting) upheld the contention and discharged the order of McClemens J.: Chang v. Nuffield (Aust.) Pty. Ltd. (1959) SR (NSW) 16 ; (1958) 76 WN 13 . Of that decision the appellant now complains. (at p641)

4. The question to be decided is whether the amending Act of 1953 should be construed as substituting three years for twelve months as the "prescribed period", not only for every case in which no "prescribed period" had begun to run before the Act came into force, but also for every case in which a receipt by the worker of a payment by way of compensation had already set a "prescribed period" running. To this question, the terms of the 1953 Act, considered by themselves, neither provide nor suggest an answer. It is necessary to impute an intention to the Act by applying either a common law or a statutory rule of construction. (at p641)

5. If the provision of s. 63 (3) concerned only a matter in its nature procedural, that is to say, if it dealt only (to use the language of Lord Cairns in River Wear Commissioner v. Adamson (1877) 2 App Cas 743, at pp 751, 752 ) with the mode in which a right of action for damages already existing should be asserted, a ready solution of the problem might be found in the presumption of the common law that a procedural amendment is prima facie to be construed as extending to every future proceeding in which it is applicable, notwithstanding that the rights sought to be enforced by the proceeding may depend upon facts, matters or events which were already of the past when the amendment came into force : see Maxwell v. Murphy (1957) 96 CLR, at pp 267, 290 . Such enactments as the Limitation Act 1623 (21 Jac. 1 c. 16) are generally regarded as of this kind because they merely deny the procedure of the courts for the enforcement of rights which themselves remain untouched (1957) 96 CLR, at pp 287-289 ; and the argument for the appellant has relied on the presumption as applying inthis case on the footing that sub-s. (3) of s. 63 is such an enactment. In my opinion, however, the sub-section is of a different description. It is not an enactment for barring stale demands. Its operation is to annex a legal consequence to certain conduct on the part of a worker, namely his receiving a payment by way of compensation. If the alteration of the "prescribed period" by the amending Act of 1953 were to apply to cases where the first receipt of such a payment occurred before the commencement of that Act, the result would be an abrogation of the legal effect of something already done, and the substitution of a new and different effect. In my opinion the question to be decided is whether a construction producing that result should be placed upon the amending Act. (at p642)

6. When regard is had to the development of s. 63 since it was originally enacted in 1926, the view which I have expressed, that sub-s. (3) is in truth legislation different in kind from statutes of limitation, seems to me to become clear. Originally, the section contained only sub-ss. (1) and (2), both in the terms which have already been stated. On the provisions so made, differences of judicial opinion arose as to what conduct on the part of a worker would amount to an irrevocable exercise of his option in favour of accepting compensation to the exclusion of damages : see Harbon v. Geddes [1935] HCA 25; (1935) 53 CLR 33 ; Latter v. Muswellbrook Corporation [1936] HCA 70; (1936) 56 CLR 422 ; Union Steamship Co. of New Zealand Ltd. v. Burnett [1937] HCA 19; (1937) 56 CLR 450 ; O'Connor v. S. P. Bray Ltd. [1937] HCA 18; (1937) 56 CLR 464 ; Mathisen v. Wallarah Coal Co. Ltd. (1937) 37 SR (NSW) 530 ; 54 WN 154 ; Coleman v. Shell Co. of Australia Ltd. (1943) 45 SR (NSW) 27 ; 62 WN 21 . (Under the corresponding United Kingdom legislation, a diversity of opinion was to emerge a little later : see Young v. Bristol Aeroplane Co. Ltd. (1946) AC 163 and cases there discussed). The view which prevailed in this Court was that a mere receipt of workers' compensation would not amount to such an exercise of the option, but that the institution of proceedings for compensation would do so if, and only if, the worker had a knowledge that the choice was open to him of suing for damages or claiming compensation. As Jordan C.J. remarked in Coleman's Case (1943) 45 SR (NSW), at p 29; 62 WN, at p 22 , just how much knowledge had to be sheeted home to the worker in order to show that the condition was satisfied was a question which had not been decided by 1938, when the legislature intervened with the amending Act of that year. By the amendments then made, s. 63 was brought into the form which it still had when the appellant in the present case received his first payment of compensation, except that both the "prescribed period" and the period for applying for an extension were six months instead of twelve, and that no appeal was given from the decision of a judge on an application for extension. The amendments also included the insertion of s. 63A providing for a formal exercise of a worker's option by means of the signing (subject to certain safeguards) of a notice of election stating that the worker was aware of the option, that he did not desire to proceed independently of the Act, and that he elected to proceed under the Act. (at p643)

7. It will be observed that the 1938 amendments left unaltered the situation created by the decisions of this Court in regard to the necessity for knowledge on the part of the worker if his institution of proceedings for compensation was to be relied upon as an exercise of his option. The two main things that were done may be usefully contrasted. On the one hand, s. 63A provided a precise method by which the worker might make an irrevocable election in favour of compensation, thereby effectually ending his right to maintain proceedings independently of the Act. On the other hand, s. 63 (3) provided for the conditional termination of that right (and indeed any right to proceed against the employer which any person at all might have in respect of the injury) not by any exercise of the worker's option under sub-s. (2), but by the operation of the sub-section upon the fact of the worker's receiving a payment by way of compensation, whatever his intention and whether or not he knew that an alternative remedy was open to him. The receipt of the payment would not immediately and absolutely terminate the right, but it would bring about at once a new legal situation by giving sub-s. (3) an immediate application to the particular case. It would at once set a term to the employer's liability to be sued independently of the Act. (at p643)

8. The next relevant legislation was the Act No. 13 of 1942, which altered "six month" in s. 63 (3) to "twelve months" and made other amendments. In Coleman's Case (1) the Supreme Court held that the alteration of the period applied although the first receipt of compensation had occurred before the commencement of the 1942 Act, and even though, before such commencement, the "prescribed period" had elapsed without any proceedings independent of the Act having been commenced. (at p644)

9. There was no other material amendment until the passing of the Act of 1953 with which we are here concerned. Naturally enough, it has been submitted for the appellant that if Coleman's Case (1943) 45 SR (NSW) 27; 62 WN 21 was rightly decided the alteration of the "prescribed period" from twelve months to three years by the last-mentioned Act must apply to a case such as the present. The reasoning of the Supreme Court in Coleman's Case (1943) 45 SR (NSW) 27; 62 WN 21 was based on the premiss that in the then state of the authorities a provision placing a time limit upon a right to sue was necessarily to be regarded as merely procedural and, as such, was prima facie to be treated as retrospective. The court considered that s. 63 (3) was a provision to which that rule of construction applied; and it held that the result of applying it was that in all proceedings after the amendment took effect the provision had to be treated as if it had always specified twelve months instead of six. Whether the same view would have been adopted if the court had had before it the discussion of the relevant principles which is now to be found in Maxwell v. Murphy [1957] HCA 7; [1957] HCA 7; (1957) 96 CLR 261 may be doubted. But in my opinion the initial error, if I may respectfully so describe it, was in approaching sub-s. (3) as if it did no more than prescribe a general limit of time for legal proceedings of the kind to which it refers. (at p644)

10. It is not without interest to observe what amendments were made to the relevant provisions by the amending Act of 1953. They are to be found in s. 7, pars. (c) and (d) of sub-s. (1) and sub-s. (3). Paragraph (c) of sub-s. (1) had the effect of freeing s. 63 of the principal Act from all that was involved in the existence of an option. Thenceforth a worker's rights under the Act were to be cumulative upon, instead of alternative to, any rights that he might have against his employer independently of the Act. This was brought about by repealing sub-s. (2) of s. 63 and substituting a new provision which contained, instead of the words "may, at his option, proceed under this Act or independently of this Act", the words "may proceed both under this Act and independently of this Act". Consistently with the change thus brought about, s. 63A of the principal Act, with its provision for exercising the option by means of a notice of election, was repealed. At the same time, by sub-s. (3) of s. 7 of the amending Act, the amendment of s. 63 (2) was made to apply to and in respect of workers who had received an injury before the commencement of the amending Act and who had not already signed a notice of election pursuant to s. 63A, as well as to workers receiving an injury after such amendment. But sub-s. (3) of s. 63, though it was amended as to the "prescribed period", was not otherwise altered. There was no inconsistency in all this, for, as I have pointed out, the operation of sub-s. (3) had never been to provide a worker with a method of exercising his option under the old sub-s. (2); it had always been to give his receiving of compensation the immediate consequence of introducing into the case a condititional bar, which otherwise would not have applied, to the maintenance of proceedings against the employer independently of the Act. (at p645)

11. This being the nature of the provision, it seems to me that the answer to the question before us is to be found in s. 8 (a) of the Interpretation Act 1897 (N.S.W.). It is there provided that where an Act repeals in the whole or in part a former Act, then, unless the contrary intention appears, the repeal shall not affect the previous operation of an enactment so repealed, or anything duly suffered, done, or commenced to be done under an enactment so repealed. There being no contrary intention disclosed in the amending Act of 1953, this provision in my opinion requires that that Act shall be so construed as not to affect the operation which, before its commencement, s. 63 (3) had already produced in every case in which a worker had received a payment by way of compensation. (at p645)

12. A case which may be usefully compared with the present case came before the Court of Appeal in Heston and Isleworth Urban District Council v. Grout (1897) 2 Ch 306 . By s. 150 of the Public Health Act 1875 (38 and 39 Vict. c. 55), a district council was authorized in certain circumstances to give notice to frontagers requiring them to do certain works to a street within a specified time; and the council was empowered, if the notice was not complied with, to execute the works and recover the expenses incurred from the frontagers in default. The council gave certain frontagers a notice under the section, and the time fixed by the notice expired without the required work having been done. While things thus stood, s. 150 was repealed in relation to the district (as the Court of Appeal held), and at a subsequent date the council carried out the work. It then sued for a declaration that the amount of the expenses incurred was due to it from the frontagers, and was met by a contention that the repeal of s. 150 ended its power to take steps under the section. The argument presented was that by giving the notice the council had not done anything more than acquire an option to carry out the work, and that the repeal had taken away the option. The Court of Appeal, affirming North J., decided in favour of the council. Speaking with the concurrence of Lopes and Rigby L.JJ., Lindley L.J. applied provisions contained in s. 38 of the Interpretation Act 1889 (52 & 53 Vict. c. 63) corresponding with s. 8 of the New South Wales Act. After quoting the provision which is par. (a) in the New South Wales section, his Lordship said: "That to my mind preserves that notice and the effect of it" (1897) 2 Ch, at p 313 . It is to be observed that his Lordship did not say that it preserved the effect of the omission of the frontagers to do the work in the specified time. The view indicated by the words I have quoted was that the section operated upon the act of giving the notice, the operation being to produce a new legal situation, and that the repeal of the section did not undo that operation. The new situation was not one of immediately fixed and unconditional rights and liabilities. The frontagers had a period in which they might execute the work if they chose. Only if they omitted to do it within the period would the council's authority to do it arise; and only if the council chose to do it would the frontagers come under a pecuniary liability to the council. The rights and liabilities provided for by the section were therefore conditional; but the notice which the section authorized was none the less to be described, as his Lordship in fact described it a little later in his judgment, as a "notice . . . involving the consequences mentioned in that section" (1897) 2 Ch, at p 313 . (Lindley L.J. also placed some degree of reliance upon the provision of s. 35 corresponding with par. (b) of s. 8 of the New South Wales Act, but that may be put aside for present purposes). (at p646)

13. To reach a similar conclusion in relation to the conduct of the present appellant in receiving his first payment by way of compensation is to give to s. 8 (a) of the Interpretation Act an effect conforming with the traditional presumption of the common law that statutory enactments are in general to be construed, as Baron Parke said in Moon v. Durden [1848] EngR 285; (1848) 2 Ex 22 (154 ER 389) as "intended to regulate the future conduct of persons" (1848) 2 Ex, at p 43 (154 ER, at p 398) . Accordingly I am of opinion that the decision of the Supreme Court was right, and that the appeal should be dismissed. (at p647)

MENZIES J. In April 1953, Chang Jeeng, the appellant, suffered an injury while working for Nuffield (Australia) Proprietary Limited, the respondent. The appellant was paid workers' compensation under the Workers' Compensation Acts of New South Wales for incapacity resulting from this injury and the first of such payments was received by him in May 1953. In December 1956 he made an application to the Supreme Court under s. 63 (3) (a) of the Workers' Compensation Act 1926-1954 for an extension of time in which to commence an action for negligence against his employer. This application was heard by the Prothonotary who refused it upon its merits; that decision was, upon appeal, reversed by McClemens J. An appeal was taken to the Full Court and for the first time the point was taken that the court had no jurisdiction to grant the extension of time that was sought, because s. 63 (3) (a) of the Workers' Compensation Act 1926-1954 had no application to a case where the first payment of compensation had been made before the Workers' Compensation (Amendment) Act 1953 came into force - that is, the 20th November 1953. (at p647)

2. In May 1953 when the first payment of workers' compensation was received by the appellant, s. 63 of the Workers' Compensation Act 1926-1951 provided that nothing in the Act should affect any civil liability of an employer for negligence (sub-s. (1)); the worker might at his option proceed under the Act or independently of the Act (sub-s. (2)); and if proceedings independent of the Act were to be taken in a case where compensation had been paid, they would have to be instituted within the "prescribed period", which was twelve months from the receipt of the first payment of compensation, or within such extended time as a judge of the Supreme Court might fix upon an application made to him within the prescribed period or at any time within twelve months thereafter (sub-s. (3) (a)). Under the section as it stood, the appellant, therefore, had to bring his action by May 1954 or within some extension of time granted upon an application made by May 1955. No such application was made. Before the prescribed period of twelve months had expired, however, s. 63 was amended by the Workers' Compensation (Amendment) Act 1953, s. 7 (1) (c). In the first place, this replaced sub-s. (2) - which conferred an option upon the worker - by a provision which gave the worker the right to proceed both under the Act and independently of it, with the limitation that no compensation should be payable after judgment in proceedings independent of the Act; this amendment was expressly made to apply to workers who had received an injury prior to the commencement of the Act but who had not signed a statutory notice of election. In the second place, the amendment omitted the words "twelve months" where they appeared in sub-s. (3) (a) in the specification of the prescribed period and inserted the words "three years" in lieu thereof. The effect of this was to substitute three years for one year as the "prescribed period". If this sub-section, as amended, applied to the appellant, his application for an extension of time to bring his action was within the time limit, since he had four years from May 1953 in which to make it. (at p648)

3. In the Full Court, the issue argued and decided was whether the right of the appellant to bring an action for negligence was to be determined under s. 63 (3) (a) of the Workers' Compensation Act as that provision stood before the enactment of the Workers' Compensation (Amendment) Act 1953 or as it stood after that Act. That court (Herron J. dissenting) took the former view: Chang v. Nuffield (Aust.) Pty. Ltd. (1959) SR (NSW) 16; (1958) 76 WN 13 . (at p648)

4. The issue decided by the Full Court was not, however, the true issue. Once s. 63 was amended, the words omitted from sub-s. (3) (a) disappeared as though they had never been, except as regards rights or liabilities acquired or incurred under the sub-section as it stood. There is nothing in the amending Act which expressly continues the operation of the sub-section as it stood before amendment in respect of proceedings by workers who had received compensation before the amendments came into operation and there is nothing that affords any sound basis for inferring that the operation of the sub-section was so continued. The real question is, therefore, whether sub-s. (3) (a), as amended, applies or whether there is no limitation of time imposed by the Workers' Compensation Act applicable to the appellant's action for negligence. (at p648)

5. I have no doubt that, this being the choice, s. 63, as amended, applies, and I would observe that to regard it in this way is not to give it any retrospective effect. In Maxwell v. Murphy [1957] HCA 7; (1957) 96 CLR 261 Dixon C.J. said: - "The general rule of the common law is that a statute changing the law ought not, unless the intention appears with reasonable certainty, to be understood as applying to facts or events that have already occurred in such a way as to confer or impose or otherwise affect rights or liabilities which the law had defined by reference to the past events." (1957) 96 CLR, at p 267 . The operation that I would give to the amendment would not depart from this general rule but would treat the legal consequences of the operation of the unamended provision as unaffected, leaving the amended provision to apply to the extent to which a worker's action had not been finally barred. If, however, it were sought to apply the sub-section, as amended, to a case where the first payment of compensation had been received more than two years before the 20th November, then it would be sought to use the amendment to revive an action completely barred. As at present advised, I think the sub-section, as amended, should not be given such an operation : Maxwell v. Murphy [1957] HCA 7; (1957) 96 CLR 261 . (at p649)

6. There is then the case of a worker who first received compensation more than one year but less than two years before the 20th November 1953. I am disposed to think that the amended section does not revive such a worker's right to bring an action without obtaining an extension of time, and, notwithstanding Coleman's Case (1943) 45 SR (NSW) 27 ; 62 WN 21 , I would not be prepared to apply the amendment to make it alter a legal situation already complete : Maxwell v. Murphy (1). However, since the former prescribed period of twelve months has now been taken out of the sub-section, the old time limit for applying for an extension of time has, as a consequence, disappeared and, rather than treat such a worker as being without any right to apply for an extension, I would regard the sub-section, as amended, as allowing such a worker four years from the receipt of the first payment of compensation within it to apply for an extension. Again, I would not regard this as giving the amendment any retrospective operation. Russell v. Darling Island Stevedoring Co. Ltd. (1958) SR (NSW) 200 ; (1957) 74 WN 467 upon which the majority of the Full Court relied in this case, dealt with such an intermediate position. There, a worker who first received payment of worker's compensation on 24th January 1952 commenced an action on 25th October 1954 and it was held that his action was statute-barred. It will be observed that although the first period of twelve months from the date of the first receipt of workers' compensation had expired before the amending Act came into force, the second period of twelve months had not expired. The decision of the Full Court proceeded, however, upon the assumption that the sub-section, in its amended form, remained in force for the purpose of its application to cases where time was running when the amendment came into force. This, for the reasons already given, I cannot accept and it seems to me that the only way in which the decision in Russell v. Darling Island Stevedoring Co. Ltd. (3) can be supported is that because the first period of twelve months had expired before the amending Act came into force, an application for an extension became necessary and, because this had not been made or granted, the action was then statute-barred. (at p650)

7. That decision, and this decision of the Full Court following it, depended to some extent upon the circumstance that there were in the amending Act two sub-sections, 7 (2) and 7 (3), which expressly gave retrospective operation to certain other provisions of the amending Act but not to the provision in question. It seems to me that too much significance was attached to this circumstance. It is beyond question that unless it were clearly intended to relate back to an earlier date, a provision such as that a member of the commission should, while performing the duties of the chairman, have the same salary as the chairman, would only operate from the date when the amending Act came into force. The existence of such an express provision, however, has little bearing upon the problem whether, notwithstanding the substitution of a prescribed period of three years for that of one year, the amendment should be read in such a way as to have retained the period of one year for application to cases where compensation has been received prior to the coming into operation of the amendment. (at p650)

8. For the reasons I have already stated, I consider that the amended section operates to allow the present applicant four years in which to apply for an extension. Accordingly, this appeal should be allowed, and, as the Full Court has not considered the application upon its merits, the matter should be remitted to it to deal with the appeal from McClemens J. upon the merits of the case. (at p650)

WINDEYER J. I agree with the Chief Justice and with my brother Menzies that the period within which the applicant might seek an extension of time had not expired. In view of what they have written, it is not necessary that I say more than that we must, I think, see what was the position at the time when the 1953 amendment came into operation. At that time the prescribed period for bringing an action had not expired. The effect of the amendment was to remove an existing period of limitation for the enforcement of a common law right and to substitute a new and longer period. This new period became the "prescribed period" for the purposes of the Act ; and any application for an extension of time had to be brought within twelve months of its expiry - which from the time of the amendment meant within twelve months from the expiry of three years from the first payment of compensation. Therefore, the time when the applicant might avail himself of the rights given by the Act not having expired at the date when the Act was amended, he became entitled to the benefit of the enlarged time. His right had not been barred. The removal of the limitation of twelve months meant that the Act provided no temporal limitation. The substitution of the period of three years made that (and the consequential further twelve months for an application for an extension) the only temporal limitation. This is in accordance with the decision in Maxwell v. Murphy [1957] HCA 7; (1957) 96 CLR 261 and there is nothing elsewhere in the Act which, to my mind, displaces this as the intended consequence of the amendment. I agree with the order proposed remitting the matter to the Supreme Court. (at p651)

ORDER

Appeal allowed. Discharge the rule or order of the Full Court of the Supreme Court of 25th June 1958. Declare that the application of the abovenamed appellant Chang Jeeng, made in pursuance of s. 63 (3) of the Workers' Compensation Act 1926 as amended, by summons dated 12th December was made within time and is competent. Remit the cause to the said Full Court for consideration and determination according to law consistently with this order and to dispose of the costs of the proceedings in the Supreme Court. Order that the respondent pay to the appellant such expenses of and incidental to his appeal to this Court as fall within 0. 16 r. 40 (2).