Hui v Lane

[2004] HCATrans 288

[2004] HCATrans 288

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Adelaide  No A277 of 2003

B e t w e e n -

LEE LIN HUI

Applicant

and

GEOFFREY WILLIAM LANE

Respondent

Application for special leave to appeal

GLEESON CJ
HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT ADELAIDE ON WEDNESDAY, 11 AUGUST 2004, AT 2.06 PM

Copyright in the High Court of Australia

MR M.T. BOYLAN, QC:   May it please the Court, I appear with my learned friend, MR S.D. OWER, for the applicant.  (instructed by Alan Hean-Fui Wong)

MR S.W. TILMOUTH, QC:   May it please the Court, I appear with my learned friend, MS M.L. BARNES, for the respondent.  (instructed by Director of Public Prosecutions (Commonwealth))

GLEESON CJ:   Yes, Mr Boylan.

MR BOYLAN:   Your Honours, it is the applicant’s submission that this case warrants a grant of special leave because it raises an important question of the extent and operation of section 15AA of the Acts Interpretation Act in a criminal context.  Without going to the facts in any detail at all, the applicant was convicted of a number of offences under the Therapeutic Goods Act in that she in most of the cases exported from Australia therapeutic goods as defined in the Act and in one case attempted to export those goods from Australia when the goods were not registered in her name.  It is an offence pursuant to section 20(1) of the Act.

HAYNE J:   It turns on demonstrating that there can be but one sponsor.

MR BOYLAN:   Yes, your Honour, it does.

HAYNE J:   Why should one read the Act in that way?

MR BOYLAN:   We say, your Honour, because if one reads the Act in that way – and it is apparently reading down the literal meaning of the Act – it has the result that somebody in the applicant’s position who has in no way infringed the integrity of the therapeutic goods registration and quality control system would not suffer the consequences of being found guilty of criminal offences. 

We say that there is no reason if one looks at the purposes of the Act for a woman in her position to stand so convicted in the circumstances obtaining in her case and that it is possible – if one applies properly section 15AA of the Acts Interpretation Act, then one can read down the definition of “sponsor” to the position which we say is the correct one, the result being that Mrs Hui, who has not, in our submission, infringed in any way the registration system, would not be guilty of criminal offences and all that attaches to convictions for those offences.

The registration system is set up to assure that therapeutic goods are not released on the Australian market, or indeed any market, unless there has been a proper quality control test and everything has been approved by the registrar who is set up under the Act.  Here that had happened to all of the goods in question.  As Justice Bleby noted in his judgment, there is nothing sinister about them.  Mrs Hui is a pharmacist who is entitled to sell goods of this nature.  What she did was buy them in large quantities from the manufacturers and then export them to Southeast Asia.  The goods as exported were identical to the goods as approved pursuant to the registration system.  So, even though she has only shipped from Australia, and in one case attempted to ship from Australia, goods which were not registered in her name, those goods were shipped from Australia in the precise form in which they had been released for use in the Australian market.

GLEESON CJ:   That seems to amount to the proposition that there should not be a law against it.

MR BOYLAN:   We say, your Honour, that there is not a law against what Mrs Hui has done.

GLEESON CJ:   You acknowledge, as I understand it, that what she did fell within the literal words of the law.

MR BOYLAN:   I cannot get away from that, your Honour.  She falls within the literal words of the section because section 3 defines for relevant purposes a sponsor as “a person who exports . . . goods from Australia”.  There are some exceptions or an exception but they are irrelevant here.  So section 3 says that a sponsor is a person who exports goods from Australia, but a consequence of applying the literal definition is that a woman in her position must be convicted of the offences, whereas if the term “sponsor” is read down to be tied to the registration system, which is the prime purpose of the Act, then we say that somebody in her position is not caught and she should not be caught.

HAYNE J:   What sort of reading down are you contemplating?  How are you framing the reading down?  It seems to me to be a very difficult task.

MR BOYLAN:   If your Honour pleases, we would frame the reading down to say that somebody to be caught by the section must be somebody who is a sponsor in the sense that that person is responsible for the goods in the sense of having vouchsafed their safety or efficacy.  For example, it is possible under the legislation for a person to import therapeutic goods into Australia with the intention of exporting those same goods.  In that case the exporter would be a sponsor – a sponsor exporter, so to speak.  We would submit that the Act should be read down in those terms.

The literal meaning of the Act, we say, is not the be‑all and end‑all, that by virtue of section 15AA of the Acts Interpretation Act it behoves the Court to look at the purposes of the Act and then to apply that section to give the proper meaning to the Act without these adverse consequences.  We say that their Honours in the Full Court here did not do that.  With respect, Justices Mullighan and Debelle adopted a literal approach to the interpretation of the Act without taking it further.

Justice Gray referred to the objects and purpose of the Act, but it is our submission that his Honour made a fundamental error in his approach to the Act because he appeared to be of the view – and I am referring particularly to page 56 of the application book – that it would have been possible for Mrs Hui, who is not the manufacturer of these goods which were manufactured in Australia, to obtain registration to enable her to export the goods.  That was not the case.  I am referring to line 10 on page 56 of the application book at page 12 of his Honour’s judgment.

HAYNE J:   But if 15AA is concerned with construing the Act, what precisely is the construction that you have to apply to the definition of “sponsor” to achieve the result you identify as the desired and desirable event?  How can you manipulate the words?

MR BOYLAN:   If one looks at the whole of the Act, your Honour, “sponsor” must mean in its context a person who, in effect, vouchsafes for the therapeutic goods.  In the context of the whole Act, we say that that is what “sponsor” must mean.  First of all, it is the primary meaning of the word.  Somebody who sponsors something or somebody is somebody who takes responsibility for something or somebody.  In the context of the Therapeutic Goods Act, that is exactly what a sponsor is.  Somebody who has proposed, for example, that the goods, in the case of goods being manufactured in Australia, should be registered and then released for sale in Australia, that person must comply with the various steps or see that they are complied with as set out in the legislation.

GLEESON CJ:   The only way you can get to that result, consistently with the language of the definition of “sponsor”, is by treating the words “or” where they appear between paragraphs (a), (b) and (c) of the definition to be exclusive of the others.  You have to argue, do you not, that if there is a manufacturer of the goods in Australia within paragraph (c), then paragraphs (a) and (b) do not apply?

MR BOYLAN:   Yes, your Honour.  We say that the “or” can be read disjunctively and it can have that result and that that would be one of our arguments for saying that there can only be one sponsor.

GLEESON CJ:   So that if in Australia a person manufactures the goods, there can be no other sponsor of the goods?

MR BOYLAN:   Yes, your Honour, that is what we would say must follow.  That makes common sense because it is the person who manufactures the goods in Australia who has taken upon himself or itself the responsibility for complying with the requirements that lead to registration which is a prerequisite for sale and supply throughout Australia.

GLEESON CJ:   Let us test your proposition that there cannot be more than one sponsor just by taking paragraph (a).  “Sponsor” means:

(a)      a person who exports, or arranges the exportation of, the goods –

Could there not be one person who exports the goods and another person who arranges the exportation?

MR BOYLAN:   One in that sense, if your Honour pleases, would be acting as an agent of the other.

GLEESON CJ:   They would just both be sponsors, that is all.

HAYNE J:   It seems to me that the argument requires not only reading “or” in a particular way but substituting the definite article for the indefinite article.  What you would have is “‘Sponsor’ means either the person who is this or the person who is that”, and it is that way in which you want to have the section read, and that is a fairly heroic piece of surgery.

MR BOYLAN:   Heroic it may be, your Honour.

GLEESON CJ:   If it means either (a) or (c), why should it mean (c) rather than (a)?

MR BOYLAN:   It will depend on who is actually dealing with the goods at the time, your Honour, and in whose name they are registered, which we say is the linchpin.  That makes perfect sense of this complicated legislation.  One only has to look at the result of what has happened to the applicant here and compare that with the purpose of the legislation, in our respectful submission, to see that there is a good argument for reading down “sponsor” to avoid those highly undesirable consequences.  Here she suffers the consequences of the conviction when all that she has done, and in one case tried to do, is to ship abroad therapeutic goods which comply with the requirements of the Act.

GLEESON CJ:   This is the fourth stage of decision-making in this matter.

MR BOYLAN:   Yes, your Honour, it is.

GLEESON CJ:   You have run this flag up the pole at every stage and nobody has saluted so far.

MR BOYLAN:   With great respect, this is another and the final opportunity, your Honours.  As I said earlier, we say that, with respect to their Honours of the Supreme Court, two of their Honours, even though Justice Mullighan essentially agreed with Justice Gray, in one paragraph he appeared to apply the literal interpretation.  Justice Gray, we say, made a fundamental error and that as a result of that, this case is now in a situation where, given the situation that obtains and what happened in the Supreme Court, it is an appropriate case for the grant of special leave.  Your Honours, I do not know if I can make the point any clearer than that.

GLEESON CJ:   Thank you.  This is an application for special leave to appeal against a decision of the Full Court of the Supreme Court of South Australia which upheld a decision of Justice Bleby who in turn upheld a decision of Magistrate Harris.  We are of the view that there is no reason to doubt the correctness of the decision of the Full Court and the application is dismissed with costs.

AT 2.20 PM THE MATTER WAS CONCLUDED