Michael John O'Keefe v State of South Australia No. SCGRG93/1589 Judgment No. 4306 Number of Pages 7 Statutes Interpretation

[1993] SASC 4306

COURT IN THE SUPREME COURT OF SOUTH AUSTRALIA MATHESON J

CWDS
Statutes - interpretation - Workers Rehabilitation (Miscellaneous) Amendment Act 1992 section 22(4) - plaintiff claiming in respect of a liability at common law for non-economic loss - whether action commenced before the date falling six months after the commencement of the amendment act. Acts Interpretation Act 1915ss 4, 14d, 22(1) and 27. Forster v Jododex Australia Pty Ltd and Anor (1972) 127 CLR 421; Re Toyo Pulp Co Ltd v Deputy Commissioner of Patents (1978) 2 ALD 177 and Dodds v Walker (1981) 1 WLR 1027, discussed.

HRNG ADELAIDE, 1 December 1993 #DATE 8:12:1993
Counsel for plaintiff:     Mr T M Mcrae
Solicitors for plaintiff: Reilly Basheer Downs
   and Humphries
Counsel for defendant:     Mr J J Doyle QC, Solicitor
   General for the State of South
   Australia with Mr N I Hodgson
Solicitors for defendant: Crown Solicitor

ORDER
First question reserved answered 'no'.

JUDGE1 MATHESON J This is a question of law reserved to the Supreme Court from the Magistrates Court of South Australia pursuant to s.41 of the Magistrates CourtAct 1991. The reservation signed by Mr. v. K. Patrick SM reads:
    "This matter concerns the provisions in the Workers
    Rehabilitation and Compensation (Miscellaneous) Amendment Act
    1992 ("the amending act") which limit the time for commencement
    of actions at common law. The question reserved is raised on
    the pleadings, and the relevant facts which are not in dispute
    are -
     1. The plaintiff's claim is in respect of a liability at
    common law for non-economic loss, within the meaning of Section
    54 of the Workers Rehabilitation and Compensation Act, 1986 (as amended).
     2. The plaintiff's action was commenced by a claim filed in
    the Magistrates Court on Thursday the 3rd day of June, 1993.
     3. The cause of action alleged by the plaintiff in his
    particulars of claim is that he suffered injury to his right arm
    and shoulder as a result of an unsafe system of work and unsafe
    work practices over a period concluding more than 12 months
    prior to the 3rd day of June, 1993.
     The question of law reserved to the Supreme Court is -
     1. In the above circumstances was the action commenced by the
    plaintiff in the Magistrates Court commenced before the date
    falling six months after the commencement of the amending act,
    or
     2. Was the defendant's liability to the plaintiff at common
    law extinguished by the amending act at any and what time prior
to the commencement of the plaintiff's action." 2. Prior to the passage of the amending act, s.54(1) of the WorkersRehabilitation and Compensation Act, 1986 (as amended) provided, omitting immaterial words:
    "54.(1) ... no liability attaches to an employer in
    respect of a compensable disability arising from employment by
    that employer except -
     (a) a liability under this Act;
     or
     (b) a liability at common law for non-economic loss or
    solatium." 3. The defendant by its defence said that the plaintiff had no claim because of the combined effect of sections 16(a) and 22(4) and (5) of the amending act. Those provisions state:
    "16. Section 54 of the principal Act is amended -
     (a) by striking out paragraph (b) of subsection (1);
     ...
     22.(1) - (3) ...
     (4) A liability at common law for non-economic loss or
    solatium that arose before the commencement of this Act is not
    extinguished, on the commencement of this Act, by the amendments
    to section 54 of the principal Act, but, if an action is not
    commenced in a court to enforce the liability before the date
    falling 12 months after the cause of action arose or six months
    after the commencement of this Act (whichever is the later), the
    liability is then extinguished. (5) The period prescribed by
    subsection (4) cannot be extended." 4. It is agreed that the amending act commenced on 3 December, 1992. 5. Section 4 of the Acts Interpretation Act 1915 provides, inter alia: "'month' means calendar month." Section 14d provides: "Where an Act, or part of an Act, comes into operation on a particular day, it will be taken to have come into operation as from 12 o'clock midnight of the preceding day." 6. Section 27 provides: "27.(1) The time prescribed or allowed by any Act for any proceeding, or for the doing of any thing, or for suffering any thing, will be taken not to include the day of the act or event from or after which the time is to be calculated, but to include the day on which the proceeding is to be taken or the thing is to be done or suffered." 7. The plaintiff's argument is that the date falling six months after 3 December, 1992 would normally be 3 June, 1993, but by virtue of the provisions of s.27 of the Acts Interpretation Act the commencement day of the amending act should be excluded, and that six months after 3 December, 1992 was 4 June, 1993. The claim was filed before this day, and hence it was within time. 8. The defendant's argument is in two steps:
     (1) a calendar month is a period which begins on a given
    day (for example, 4 December) and ends one day before the
    corresponding day next month (3 January).
     (2) as the action had to be commenced before 6 months after
    the commencement, the last day was 2 June. There does not
    appear to be any case where the language considered is identical
    to that in the case before me. I was, however, referred to a
number of relevant cases. I only intend to refer to three. 9. The leading Australian case is undoubtedly Forster v. Jododex Australia Pty. Ltd. and Anor. (1972) 127 CLR 421, and it assists the defendant's argument. The New South Wales Mining Act provided for the issue of exploration licences. Section 83B(13)(a) provided that an exploration licence might be granted for such period not exceeding twelve months as the Minister might determine. The Minister was authorised by the s.83B(13)(b) to renew a licence for further periods not exceeding six months upon application made "during the currency of such licence or any renewal thereof and not later than one month before the expiration of such licence or renewal ..." 10. On 28 November, 1968 the Minister granted to the respondent company an exploration licence "for the term of twelve months from the date hereof". On 28 October, 1969 the company applied for renewal of the licence, and the licence was extended for a period of six months from 28 November, 1969. Further extensions of six months were granted. 11. In the Supreme Court of New South Wales, Street J declared that the respondent was the holder of an exploration licence validly renewed from time to time over the land the subject of the applications. An appeal to the High Court was dismissed by a majority. All of the Justices held that the licence expired at midnight on 28 November, 1969, that is at the commencement of 29 November, and a majority held that the application for renewal was made "not later than one month before the expiry of such licence" 12. within the meaning of s.83B(13)(b) of the Act. Accordingly, the majority held that the Minister had power to grant the renewal, the subsequent renewals were within power and the appeal was dismissed. 13. At p.440, Gibbs J (as he then was) said in a judgment with which Walsh J essentially agreed:
    "The appellant submitted that on the proper construction of
    the exploration license 28th November 1968, on which day the
    license was executed, was included in the period of twelve
    months for which the license was granted. If this were so, the
    license would have expired on 27th November 1969 and the
    application for renewal, which was made on 28th October 1969,
    would certainly have been made too late. The exploration
    license was granted 'for the term of twelve months from the date
    hereof', that is, from 28th November 1968. The question is
    whether the term commenced at the beginning, or at the end, of
    that day. Where a written instrument requires a period of time
    to be computed 'from' a specified date, it depends on the true
    construction of the instrument whether the date specified is to
    be included in the period. Generally speaking, however, the day
    from which the period runs is excluded, although there is no
    rigid rule to that effect, and 'from' is capable of having an
    inclusive effect in an appropriate context. These propositions
    seem to be established by the authorities ... In particular,
    where the term of a lease is expressed to commence 'from' a
    specified day, the term will, prima facie, commence at midnight
    on the day specified, and will last during the whole anniversary
    of the day from which it began, unless a different intention is
    revealed in the document..." 14. At p.442, his Honour said:
    "None of the provisions relied upon by the appellant in my
    opinion reveals any intention that in calculating the period of
    twelve months for which the license was granted 28th November
    1968 should be included. In my opinion, therefore, effect
    should be given to the prima facie rule as to the effect of the
    preposition 'from' and it should be held that the term began at
    midnight on 28th November 1968 and therefore did not conclude
    until midnight on 28th November 1969." 15. At p.443, his Honour said:
    "Although the appellant is unsuccessful in his primary
    submission, that is not the end of the matter. Before us, the
    appellant advanced an alternative argument, which was not put to
    the learned primary judge, that even on the assumption that the
    license expired at the last moment of 28th November 1969 an
    application made on 28th October 1969 was not made 'not later
    than one month before the expiry of such license'. In effect,
    it was submitted that the words of the section require that the
    application be made a full or clear month before the date of
    expiry, or, in other words, that a month must elapse between the
    date of the application and the date of expiry, excluding both
    dates from the calculation. If this is correct the application
    was made one day too late." 16. At p.446, his Honour said (and it was on this matter that there was a difference of opinion in the High Court):
    "Although the exploration license did not expire until
    midnight on 28th November 1969, its expiry must be regarded as
    co-extensive with 28th November 1969. In deciding whether the
    application was made 'not later than one month before the
    expiry' it is therefore necessary to exclude the day of the
    expiry and to inquire whether the full period of one month had
    expired between the day on which the application was made and
    28th November 1969. 'Month' in the section means 'calendar
    month': s.21(d) of the Interpretation Act, 1897 (N.S.W.). A
    full calendar month before 28th November 1969 ended on 27th
    November 1969; it follows that it began on 28th October 1969.
    The application made on 28th October 1969 was therefore made
    within the month before the expiry of the license; in other
    words, it was made 'later than one month before' the expiry." 17. At p.448, Stephen J said:
    "Three preliminary points should be noted; first, as Gibbs
    J has held, the term of the respondent's license did not
    expire until the end of the day of 28th November 1968; secondly,
    'month' in this sub-section means 'calendar month' -
    Interpretation Act, 1897 (N.S.W.) s.21(d) - that is to say, a
    period beginning on a day in one month and ending one day before
    the corresponding day in the next month; thirdly, and again for
    the reasons stated by Gibbs J this period of a calendar month
    must be a whole or clear period so that its first day is wholly
    after the occurrence of the making of the application for
    extension and its last day is wholly before the occurrence of
    the expiration of the license. It follows that the first day of
    the clear calendar month must be 29th October 1969, the day
    after the making of the application for extension; the last day
    will therefore be 28th November 1969. The question is whether
    that day is a clear day in the relevant sense in view of the
    fact that the license expired at the end of that day." 18. At p.450, his Honour said:
    "... I conclude that in the process of reckoning a period
    of one clear calendar month before the expiration of the
    relevant license the full day which precedes the moment of that
    expiration, namely 28th November 1968, is properly to be
    included in the computation. If this be done the application is
    found to have been made within time. I would dismiss this
    appeal." 19. At p.453, Mason J (as he then was) said in a judgment, with which McTiernan J agreed, dismissing the appeal:
    "Had the license been expressed to be for a term of twelve
    months commencing on 29th November 1968 the term would have been
    identical, the point of commencement and the point of expiry
    would have been the same. The license would have expired at
    midnight between 28th and 29th November 1969. Had the license
    been so expressed, an application for its renewal, if made on
    28th October 1969, would have been within time and good. Yet it
    is said the application for renewal of the instant license was
    out of time and bad. It is not a distinction which I would
    willingly accept." 20. I agree with the Solicitor General that all of their Honours appear to have adopted the meaning of "calendar month" for which he contends. 21. Next, I refer to Re. Toyo Pulp Co. Ltd. v. Deputy Commissioner of Patents
(1978) 2 ALD 177 which was relied on by, and also supports the defendant. Davies J (Deputy President) had to consider the following facts:
    "The applicant had applied for a patent for an invention.
     This application had been reported upon adversely by the
    examiner on 22 May 1975. The applicant ultimately determined,
pursuant to s 49A of the Patents Act 1952, to seek a patent for
    an invention of lesser scope than that originally sought, ie a
    patent for an invention falling within the scope of the rejected
    claims. Such an application must be made before the expiration
    of the original application. This application was lodged on 23
    February 1977. The time for acceptance of an application for a
    patent is 12 months after the date on which an examiner first
    reports on the application. Under s 54 of the Act, this time
    may be extended to twenty-one months. Such an extension had
    been granted in this case. The Commissioner ruled that this
    extension expired on 22 February 1977 and declined to accept the
application under s 49A of the Act." 22. At p.179, Davies J said:
    "... in my view 21 months after 22 May 1975 expires at
    midnight on 22 February 1977 and such computation gives a full
    period of 21 calendar months excluding any part of 22 May 1975.
    See, for example, the remarks of Gibbs J in Forster v Jododex
Australia Pty Ltd (1972) 127 CLR 421 at 440-1 ..." 23. Both counsel sought to rely on Dodds v Walker (1981) 1 WLR 1027. I quote the facts from the headnote, but observe that the facts are not really relevant here because, unlike the case before me, it was a so-called "end of month case":
    "On September 30, 1978, the landlord under Part II of the
    Landlord and Tenant Act 1954, gave notice to the tenant to
    determine his tenancy of business premises. Under section 29(3)
    of the Act, the tenant had 'four months after the giving of the
    landlord's notice' to apply to the county court for a new
    tenancy. The tenant applied on January 31, 1979. The registrar
    dismissed the application on the basis that it was out of time
    and, on appeal, the judge held that, in computing the four
    months' period under section 29(3), the day the landlord gave
    notice was to be excluded but, notwithstanding that September
    was a 30 day month, the period elapsed on the corresponding day
    in the fourth month, namely, January 30, and therefore the
    tenant's application made on the last day of January was made
    one day too late. The Court of Appeal affirmed that decision." 24. The House of Lords unanimously dismissed the appeal. At p.1029, Lord Diplock said:
    "My Lords, reference to a 'month' in a statute is to be
    understood as a calendar month. The Interpretation Act 1889
    says so. It is also clear under a rule that has been
    consistently applied by the courts since Lester v. Garland
    (1808) 15 VesJun.248, that in calculating the period that has
    elapsed after the occurrence of the specified event such as the
    giving of a notice, the day on which the event occurs is
    excluded from the reckoning. It is equally well established,
    and is not disputed by counsel for the tenant, that when the
    relevant period is a month or specified number of months after
    the giving of a notice, the general rule is that the period ends
    upon the corresponding date in the appropriate subsequent month,
    i.e. the day of that month that bears the same number as the
    day of the earlier month on which the notice was given. The
    corresponding date rule is simple. It is easy of application.
    Except in a small minority of cases, of which the instant case
    is not an example, all that the calculator has to do is to mark
    in his diary the corresponding date in the appropriate
    subsequent month. Because the number of days in five months of
    the year is less than in the seven others the inevitable
    consequence of the corresponding date rule is that one month's
    notice given in a 30 day month is one day shorter than one
    month's notice given in a 31 day month and is three days shorter
    if it is given in February. Corresponding variations in the
    length of notice reckoned in days occur where the required
    notice is a plurality of months." 25. At p.1030, Lord Russell of Killowen said:
    "My Lords, it is common ground that in this case the
    period of four months did not begin to run until the end of the
    date of the relevant service on September 30 - i.e. at midnight
    September 30/October 1. It is also common ground that
    ordinarily the calculation of a period of a calendar month or
    calendar months ends upon what has been conveniently referred to
    as the corresponding date. For example in a four month period,
    when service of the relevant notice was on September 28, time
    would begin to run at midnight September 28/29 and would end at
    midnight January 28/29, a period embracing four calendar months.
    It is to be observed that the number of days in the four month
    period in that example is in one sense inevitably limited by the
    fact that September and November each contains but 30 days. But
    the application of the corresponding date principle inevitably
    produces variation in the number of days involved, depending
    upon the date upon which a four month notice is served and the
    irregular allotment of days to different months. Sometimes it
    is not possible to apply directly the principle, for instance if
    a four month notice is served on October 30 (the time beginning
    to run at midnight October 30/31), there being in February but
    28 (or 29) days it is not possible to find a corresponding date
    in February and plainly a corresponding date cannot be sought in
    March: the application of the corresponding date principle in
    such case can only lead to termination of the four month period
    at midnight February 28/March 1 (or midnight February 29/March 1
in a leap year). That is an inevitable outcome." The other three Lords of Appeal specifically said they agreed with the views expressed in both the speeches of Lords Diplock and Russell. 26. My first impression was that Lord Diplock's speech supported the plaintiff's argument, but the passage I have underlined in Lord Russell's speech clearly supports the defendant, and I agree with the Solicitor General that if Lord Russell thought he was expressing a different principle to Lord Diplock it is surprising that neither of them adverted to it. Mr. McRae finally sought to rely on s.22(1) of the Acts Interpretation Act which provides: "... where a provision of an Act is reasonably open to more than one construction, a construction that would promote the purpose or object of the Act (whether or not that purpose or object is expressly stated in the Act) must be preferred to a construction that would not promote that purpose or object." 27. However, I do not consider that s.22(4) of the amending act is reasonably open to more than one construction, and accordingly the argument must fail. 28. In my opinion, the defendant's construction is correct and the first question reserved should be answered: "No". 29. There is no need to answer the second question.