Gavranich v Dann

[1990] HCATrans 187

-b, AUSTRALIA,11.!-

- -~~)'.>~'-"

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Adelaide No Al of 1990

B e t w e e n -

FRANK GAVRANICH

Applicant

and

KAREN MARY DANN

Respondent

Application for special

leave to appeal

BRENNAN J
TOOHEY J

McHUGH J

TRANSCRIPT OF PROCEEDINGS

AT ADELAIDE ON THURSDAY, 23 AUGUST 1990, AT 12.00 NOON

Copyright in the High Court of Australia

Gavranich 1 23/8/90

MR M.J. MITCHELL: If it please Your Honours, I appear for

the appellant in this matter. (instructed by

Matthew Mitchell)

I have prepared for Your Honours' assistance,

a summary of my submissions in this matter and also

some material of relevance to the case.

MR J.J. DOYLE, QC, Solicitor-General for South Australia:

If it please Your Honours, I appear with my friend,

MR R. WAINWRIGHT, for the respondent .. (instructed

by the Crown Solicitor for South Australia)

BRENNAN J:  Mr Mitchell, I think we would be advantaged if

you could outline to us first why, in your

submission, the Court should grant special leave to

appeal to consider the construction of a regulation

of this kind, particularly in the light of the

legislative amendments.

MR MITCHELL:	Yes, sir, I have touched on that in paragraphs 5, 6 and 7 of my submission. The situation with
this matter is that although the legislation has
been amended there are quite a large number of
cases, dealing with quite a large number of
weighbridges throughout South Australia, awaiting
the result of the decision in Gavranich's case.

My principal point is that the legislative

scheme of things creates a certainty with respect

to weighbridges; their tolerance of 15 millimetres

was prescribed and that can be very accurately

measured.

What the Full Court decision has done is to

create an ambiguity in this situation where a

certain point on the weighbridge was held by

Mr Justice White not to be a point at all, because

it was not a large enough area, and by

Mr Justice Jacobs not actually to be on the

weighbridge at all, even though it was securely

fastened. My submission is that any one of all the

other cases that are awaiting this may find its way

back up here because the factual situation on each

of them is slightly different. Certainly, all

those involving any other weighgbridges - - -

McHUGH J:  Is not the point that the new section 34 is

directory only and not mandatory?

MR MITCHELL:  The amended section or as it was then?

McHUGH J: Yes, the amended section.

MR MITCHELL:  The amended section is quite different.

Mc HUGH	J:	Yes .
Gavranich	2	23/8/90

MR MITCHELL:  But there are, in my office, about 20 cases

which occurred prior to the amendments to which the

present - - -

McHUGH J: But that is the point, why should the High Court

of Australia be concerned with the construction of

a section which is repealed. The Full Court of

South Australia has given its view about it, right

or wrong.

MR MITCHELL: Well, sir, it is of particular importance to

the drivers concerned, particularly this man who is

facing quite a substantial monetary penalty as an

effect of this. The Full Court - it was a split

decision and I would, obviously, be urging

Your Honours to adopt the dissenting view of

Mr Justice Matheson who, in fact, I will not say

concurred but also followed the magistrate. Four

judicial officers have considered it and I guess it

is two all, clearly, the Full Court carries

precedence there. But the points raised, I submit,

are significant to this case because of the penalty

that this particular applicant is facing, but also

to a large number of other cases. The amending

legislation, however, although it ceases to be

mandatory has a similar sort of scheme of things

and I could well envisage that problems would occur

unless the situation is clarified.

I also submit that the administration of

justice argument must be looked at. Your Honours

are saying, "Why should the High Court interfere

with the Full Court, right or wrong". I would submit that if it can be demonstrated the Full

Court is, in fact, wrong on the point, that is a

sufficient reason for the High Court to intervene.

McHUGH J: But wrong in terms of statutory construction

usually only means that one court takes a different

view to that of a lower court. I mean questions of

construction, whether of statutes or contracts,

notoriously generate divisions of opinion. The

Full Court of South Australia, by a majority, has

might come up here and you may succeed but by a expressed a view about the meaning of this, you split majority.

MR MITCHELL I submit, sir, that it is a little more than

his judgment a concession as to the facts that was

statutory interpretation. In my submission,

agreed in the lower court. In page 30 of the

application book, which is page 3 of the decision

of Mr Justice Matheson, the dissenting judge, a

concession is recorded there that was made, and I

will read it:

Gavranich 23/8/90

If the boltheads on the 2 steel platforms of the weighbridge form part of the surface of

the weighbridge there is a maximum variation

of 18 mm within the surface of the weighbridge
where the load would bear. Accordingly the
weighbridge does not comply with Regulation

10.05.

Now, that was a concession that was made by the

Crown before the start of the case in the

magistrate's court.	Mr Justice White's judgment
entirely overlooks it.	He finds, as a matter of

statutory interpretation, that point should be

defined differently, but concedes that there is

this 18 millimetre difference overlooking, on my

submission, the concession that if that

18 millimetre is in existence the weighbridge does

not comply with the regulations at all.

I also submit that it is a matter of some

significance when the justice of the court seeks to

redefine a word of the English language such as
"point". In my documents that I have put to you,

"point" is defined in the Macquarie dictionary and

manages to achieve 72 different meanings. It is my

submission the supreme court is trying for a

seventy-third. The relevant one I have underlined

in blue, which is on page 6 of the material I have

put to you that "a point is something that has.
position but not extension". In other words, it is

a place - it is a spot without an area.

Mr Justice White, in his judgment, finds that parliament intended to use the word "point" to

convey an area where a tyre rests on a weighbridge.

In my submission, an area can be made up with an infinite number of points, but that it is a matter of some significance when a judge seeks to redefine

a word, in fact to define a word judicially, in a

way that is not in common usage and not in usage in the dictionary. The Oxford dictionary which I have also annexed has similar explanations in different

language to the same effect, that a point is a

spot, it is not an area, and that Mr Justice White

has made a -

McHUGH J: But he has construed it in a statutory context

and if law simply consisted of taking a statute and

a dictionary there would not be much need for

courts. Words have flexible meanings and he has

interpreted it in accordance with the purpose of

the statute, came to a certain conclusion. He may

be wrong, but why should we grant special leave? courts of appeal deal with questions of statutory

construction. If this Court granted special leave
every time it tended to think that the decision was

wrong we would be doing nothing else.

Gavranich 4 23/8/90

MR MITCHELL:  I can but repeat again, sir, that this is not

just one case turning on this, that there are a

large number of cases turning on this particular

weighbridge, and there are a large number of cases

turning on similar weighbridges with different

deficiencies.

BRENNAN J: Yes, well, your proposition is that there are a

number of cases involving weighbridges; this is a

construction of the regulations which, you submit,

is an erroneous construction and this Court ought

to set it right?

MR MITCHELL:  Yes.

BRENNAN J: That is your argument?

MR MITCHELL:	Yes.
BRENNAN J:	And the question is whether or not the point

that you wish to raise is of sufficient public

importance?

MR MITCHELL: Yes.

BRENNAN J:	Is there anything you wish to add?
MR MITCHELL:	I think Your Honours have summarized my

argument fairly well. I would like to submit that

it is a matter of considerable public importance to

the numerous transport operators actually involved

in the industry and, particularly, the ones facing

prosecutions.

The. statutory scheme of things, under the Road Traffic Act, is that there are a great many deeming evidentiary provisions so that there is virtually -

the Crown in the magistrate's court can prove its
case by the tendering of a number of certificates.

In my submission, it is consequently an important

statutory interpretation out of the ordinary

statutory interpretations if matters of this sort

can be raised and appellants are not granted leave

to appeal to your Court.

BRENNAN J: Thank you. We need not trouble you,

Mr Solicitor.

This application does not involve a question

of law that is of sufficient public importance to
warrant the grant of special leave. Special leave,

accordingly, will be refused.

MR DOYLE:  I make application for costs, if the Court

pleases.

BRENNAN J:	Have you anything to say to that, Mr Mitchell?
Gavranich	23/8/90
MR MITCHELL:	No, sir.
BRENNAN J:	The application will be refused with costs.

AT 12.12 PM THE MATTER WAS ADJOURNED SINE DIE

Gavranich 6 23/8/90