Lamont v Keenan - [2003] WASCA 82

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION: LAMONT -v- KEENAN [2003] WASCA 82

CORAM: MILLER J

HEARD: 4 APRIL 2003

DELIVERED : 11 APRIL 2003

FILE NO/S: SJA 1137 of 2002

BETWEEN: DAVID ALLAN LAMONT
Appellant
AND
GRANTLEY JAMES KEENAN
Respondent

Catchwords:

Statutory interpretation - Road Traffic Law - Term prescribed in regulations not in fact prescribed - Whether any offence made out - Whether Court entitled to look to other sources to interpret words - Road Traffic Code 2000, reg 183(4)

Legislation:

Road Traffic Code 2000, reg 3, reg 183(4)

Road Traffic (Vehicle Standards) Regulations 1977

Result:

Appeal dismissed

Category: B

Representation:

Counsel:

Appellant: Mr M D Cuerden
Respondent: Mr C C Lomma

Solicitors:

Appellant: Chris Baker & Associates
Respondent: State Crown Solicitor

Case(s) referred to in judgment(s):

Duperouzel v Cameron [1973] WAR 181
Ex parte Perry; Re Murdoch & Anor (1948) 48 NSWR 393
Gibb v Federal Commissioner of Taxation (1966) 118 CLR 628
Hall v Jones (1942) 42 SR (NSW) 203
The Producers' Cooperative Distributing Society Ltd v Commissioner of Taxation (NSW) (1944) 69 CLR 523

Case(s) also cited:

Betella v O'Leary [2001] WASCA 266
Re Ricall & Co Pty Ltd v Collector of Customs (1980) 2 ALD 991

MILLER J: The appellant was charged in the Joondalup Court of Petty Sessions that on 29 June 2001 at Merriwa he drove a motor vehicle on a road at night, displaying light from fog lamps, with other lamps illuminated, of a power exceeding 7 watts emitting white light to the front, contrary to reg 183(4) of the Road Traffic Code 2000.
To this charge the appellant pleaded not guilty. He was tried before Mrs Musk SM on 7 November 2002 and found guilty of the offence. A spent conviction order was made.
The facts as found by the learned Magistrate were that on Friday 29 June 2001 at 9.05 pm the appellant was the driver of a vehicle in Hester Avenue, Merriwa, which was stopped because it had four separate lights illuminated on the front of the vehicle. The Magistrate found that these lights gave the same level of brightness, there being two standard headlights on low beam and a separate unit set into the front bumper assembly, not being park lights. The four lights which were illuminated gave off the same level of brightness.
The learned Magistrate found that a police officer who had stopped the appellant requested that the appellant switch off the second set of lights, which he did, asking the question "Are you going to tell me that there's some sort of law against it?".
The learned Magistrate found as a fact that both the headlights and the other lights gave off more than 7 watts of power and there is no challenge to that finding. She found that the second set of lights illuminated on the vehicle (that is other than the headlights) constituted fog lights within the meaning of the Road Traffic Code. This conclusion she reached because the lights were not spotlights but were fitted lights and were not an extra set of headlights. Further, they were not parking lights. The learned Magistrate said she was not aware of any other lights except for the purposes of getting more light in fog or hazardous weather conditions and in all the circumstances the lights that were on were found by her to fall into the category of fog lights. When asked by counsel for the appellant for some further elaboration upon her finding, the learned Magistrate said that she used her general knowledge as to what was meant by fog lights in determining that these were fog lights. Her Worship held that the relevant provisions of the vehicle's standards regulations were inapplicable and the definition therein was of no application.
The appellant was given leave to appeal his conviction on the ground that the learned Magistrate erred in fact and in law in holding that the lights on the motor vehicle in question, the subject of the complaint, were "front fog lights" within the meaning of reg 183(4) of the Road Traffic Code 2000.
Counsel for the appellant traced the relevant regulatory provisions. Regulation 183(4) makes it an offence to drive a motor vehicle displaying light from a front fog light or front fog lights, if any other light of a power exceeding 7 watts and capable of showing a white light to the front is alight. Regulation 3, as it was in force at the relevant time, provided that "front fog light" means a front fog lamp as described by the Vehicle Standards (the Road Traffic (Vehicle Standards) Regulations 1977). Those regulations do not in fact prescribe a front fog lamp. Regulation 405 of the Road Traffic (Vehicle Standards) Regulations 1977 makes reference to "fog lamps", but that is not a definition. It is a prescription of the circumstances in which fog lamps may be fitted to the front of a motor vehicle.
The appellant contends that the learned Magistrate correctly found that the Road Traffic (Vehicle Standards) Regulations 1977 did not prescribe "a front fog lamp" and therefore the Road Traffic Code 2000 defined the term "front fog light" by reference to a definition that did not exist. The appellant therefore contends that the complaint should have been dismissed by the learned Magistrate.
The appellant challenges the learned Magistrate's conclusion that because there was in fact no definition of the term "front fog lamp", she was entitled to look to other sources to determine whether the lights in question were front fog lights.
In support of the appellant's submissions counsel referred to Gibb v Federal Commissioner of Taxation (1966) 118 CLR 628 at 635, where Barwick CJ, McTiernan and Taylor JJ held that the function of the definition clause in a statute is to indicate that when particular words or expressions, the subject of definition, are found in the substantive part of the statute under consideration, they are to be understood in the defined sense and are to be taken to include certain things which, but for the definition, they would not include. This proposition can be accepted, but it does not necessarily resolve the issue in this appeal. Counsel for the appellant also replied upon Duperouzel v Cameron [1973] WAR 181 at 182, where Burt J said that the word "means" is a word of true definition and as such the words following it stand as an exclusive statement of what the subject's expression includes. This is, of course, an accepted proposition, but again it does not resolve the point at issue in this appeal.
Reliance was also placed by counsel for the appellant upon The Producers' Cooperative Distributing Society Ltd v Commissioner of Taxation (NSW) (1944) 69 CLR 523 where, at 531, Latham CJ made it clear that it would be an inversion of the ordinary methods of statutory interpretation to seek to interpret a definition by reference to provisions in which the defined term was used. Counsel relied upon this statement in support of the submission that it would be an even greater inversion to consider "other sources" including general knowledge of the trier of fact in interpreting a definition. The case is not, however, authority for that proposition.
Counsel for the respondent accepted that the regulations do not expressly prescribe "front fog lamp" and the provisions of reg 405 are of no application. However, it was submitted that the use of the word "means" within the definition of "front fog lights" in reg 3 does not necessarily mean that the definition of "front fog lights" was intended to be exhaustive. It was argued that while the use of the word "means" may prima facie be treated as exhaustive, it should be taken as substituting one set of words for another, not as strictly defining what the meaning of the word must be under all circumstances. Reliance was placed upon Ex parte Perry; Re Murdoch & Anor (1948) 48 NSWR 393 at 399, where Davidson J said:
"The general rule is that prima facie when expressions such as 'mean' or 'include' or 'mean and include' are used they must be given their ordinary and precise meaning and be treated as exhaustive, but that they are not necessarily to be given such a rigid construction nor to be taken as substituting one set of words for another, nor as strictly defining what the meaning of a word must be under all circumstances. Rather they should be regarded as declaring what should be comprehended within the particular expressions where the circumstances require that they should: The Queen v The Justices of Gloucestershire; Dilworth v Commissioner of Stamps."
Counsel for the respondent submitted that the general words in an Act of Parliament must always be construed in accordance with the circumstances to which the Act is intended to apply. Reliance was placed upon what was said by Jordan CJ in Hall v Jones (1942) 42 SR (NSW) 203 at 207 ‑ 208 to the following effect:
"It is well established that the fact that the language of a Statute, when given its natural grammatical meaning, produces a result which appears to a Court to be unjust, unreasonable or even absurd, supplies no justification for placing a forced construction upon it, if the language is plain and unambiguous and there is nothing in the nature of subject matter of the Act which makes it manifest that the Legislature could not have meant what it appears to have said: Tindal v Calman; Sargood Bros v The Commonwealth; Vacher & Sons Ltd v London Society of Compositors. 'It is, however, a very serious matter to hold that when the main object of a Statute is clear, it shall be reduced to a nullity by the draughtsman's unskilfulness or ignorance of law. It may be necessary for a Court of justice to come to such a conclusion but … nothing can justify it except necessity or the absolute intractability of the language used': Salmon v Duncombe. Hence, the authorities establish also that if words in a Statute when read in their primary or natural sense would produce a result which, in relation to the provisions of the Statute itself, are fantastic or absurd, a Court is entitled to pay the Legislature the not excessive compliment of assuming that it intended to enact sense and not nonsense."
Counsel for the respondent thus submits that if it be accepted that the definition of "front fog light" can only be found in the regulations and there is no definition of "front fog lights" prescribed in those regulations, an absurdity would result. That is, there could be no offence under reg 183(4) of the Code. It is submitted that reg 3 is not, therefore, to be understood as providing a complete closed and exhaustive definition of "front fog lights" and it is appropriate to look for other definitions of the term. Alternatively, it is put that if it be accepted that the Code defined the term "front fog lights" by reference to a definition that did not exist, the term should be interpreted as if it was not defined. In short, it was put that it was open to the learned Magistrate to look to other sources outside those found in the definition to determine whether or not the appellant drove a motor vehicle on the night in question displaying light from front fog lights with other lights illuminated.
I accept the thrust of the respondent's submissions. Although it was clearly intended when the Road Traffic Code 2000 was promulgated that the term "front fog lights" should be defined in the Road Traffic (Vehicle Standards) Regulations 1977, no such definition in fact appeared in the latter regulations. That did not, in my view, mean that there could never be an offence of driving a motor vehicle displaying front fog lights with other lights illuminated. I would respectfully adopt what was said by Jordan CJ in Hall v Jones to the effect that where the language of a statute when given its natural grammatical meaning produces a result which appears to be unjust, unreasonable or even absurd, a court is entitled to assume that the Legislature "intended to enact sense and not nonsense". Applying those general principles to the facts of this case, it is my view that Parliament must have intended, in the absence of a specific definition of "front fog lights" in the Road Traffic (Vehicle Standards) Regulations 1977 that the term should be given its ordinary meaning. That was the meaning given by the learned Magistrate, namely, a second set of lights, not being spotlights or parking lights, independently operated, which formed part of the front bumper assembly, for the purpose of giving more light in fog or hazardous weather conditions.
In the circumstances the learned Magistrate was, in my view, entitled to find the charge against the appellant proven, and I would therefore dismiss this appeal.