Pepper v. Attorney-General for the State of Queensland (No 2)
[2008] QSC 32
•12 February 2008
SUPREME COURT OF QUEENSLAND
CITATION:
Pepper v Attorney-General for the State of Queensland
[No 2] [2008] QSC 032PARTIES:
NOEL JOSEPH PEPPER
(applicant)
v
ATTORNEY-GENERAL FOR THE STATE OF QUEENSLAND
(respondent)FILE NO:
SC No 9966 of 2007
DIVISION:
Civil
PROCEEDING:
Application
ORIGINATING COURT:
Supreme Court
DELIVERED ON:
12 February 2008
DELIVERED AT:
Brisbane
HEARING DATE:
12 February 2008
JUDGE:
Fryberg J
ORDER:
1) The Attorney-General give Mr Pepper a statement in relation to his decision not to refer Mr Pepper’s case to the Court of Appeal within 28 days of 12 February 2008;
2) The order in paragraph 1 be stayed for seven days or if a notice of appeal be filed within that time until the determination of appellate proceedings on condition that the Attorney file an undertaking in writing to prepare such a statement to be ready for immediate delivery within 28 days of 12 February 2008;
3) The Attorney-General pay Mr Pepper’s costs if any of the application filed on 12 December 2007 and of this oral application;
4) Adjourn the originating application to a date to be fixed;
5) Liberty to apply
CATCHWORDS:
Statutes – Acts of Parliament – Interpretation – Rules of construction – Particular rules – Application of noscitur a sociis to Judicial Review Act 1991 schedule 2 – Schedule relates to decisions affecting ongoing proceedings – Prosecution of applicant not ongoing
Judicial Review Act 1991 s31, s33, sch 2
Deputy Commission of Taxation v Dick [2007] NSWCA 190 cited
Cody v J H Nelson Pty Ltd (1947) 74 CLR 629 cited
Prior v Sherwood (1906) 3 CLR 1054 citedCOUNSEL:
Applicant: Self represented
Respondent: M Hinson SCSOLICITORS:
Applicant: Self Represented
Respondent: B Stead (Crown Solicitor)
SUPREME COURT OF QUEENSLAND
CIVIL JURISDICTION
[2008] QSC 32
FRYBERG J
No 9966 of 2007
| NOEL JOSEPH PEPPER | Applicant |
| and | |
| THE STATE ATTORNEY-GENERAL | Respondent |
BRISBANE
..DATE 12/02/2008
ORDER
HIS HONOUR: By originating application filed on the 6th of November 2007, Noel Joseph Pepper, who is currently a prisoner in custody of the State, applied to review certain decisions of the Attorney-General and, as the application has subsequently been amended, the Governor in relation to a petition for a pardon for offences of which he was convicted on 2nd of June 2000, and which he delivered to her Excellency under cover of a letter dated 20th of October 2005.
The petition took a long time to be dealt with. It eventually came before the Attorney-General for decision on the 31st of March 2007 when the Attorney decided on advice given to him by someone from Crown Law not to refer Mr Pepper's case to the Court of Appeal. Subsequently, her Excellency was advised not to pardon Mr Pepper and on the 12th of June 2007, she decided in accordance with that advice.
The originating application as amended seeks to have the Attorney's decision reviewed and also to have her Excellency's decision reviewed. Her Excellency has not been made a party to these proceedings at this stage, and the present parties are content for the proceedings to go forward as presently constituted unless and until the time is reached where the issue of her Excellency's decision needs to be addressed.
By an application filed on the 12th of December 2007, the Attorney-General applied, pursuant to s 48, for an order that the application be stayed or dismissed on the grounds that it was inappropriate and that no reasonable basis for it had been disclosed. I dealt with that application yesterday, and delivered ex tempore reasons for dismissing it.
Subsequently, Mr Pepper made an oral application for an order pursuant to s 39 of the Judicial Review Act 1991 that the decision-maker - that is, the Attorney-General - give a statement of reasons within a specified time. In response to Mr Pepper's request for reasons, the Attorney had, by a letter dated the 29th of August 2007, taken the view that Mr Pepper was not entitled to a statement under the provisions of the Act.
That issue has been before me today. Mr Pepper, who is unrepresented, frankly confessed his inability to provide any assistance to the Bench. Senior counsel for the Attorney-General has, however, been helpful in his submissions, and I am indebted to them.
It is always difficult for a judge in a situation such as this to ensure that justice is done to an unrepresented litigant, while at the same time, avoiding descending into the arena and avoiding the mental commitment to an argument which comes when the argument is one which a person has thought of himself. I have endeavoured to avoid falling into that trap, and have consciously sought to examine the arguments as objectively as I can.
The focus of the argument is sch 2 of the Act. That is because the prima facie position under s 32 of the Act is that if a person makes a decision to which Part 4 of the Act applies, anyone entitled to make an application to the Court for judicial review in relation to the decision may request a written statement in relation to the decision. That is what has happened in this case.
When such a request is made, the decision-maker must under
s 33 provide the statement so requested. A decision to which Part 4 applies is one which is a decision to which the Act applies, but the term does not include a decision included in a class of decisions set out in sch 2 to the Act.
It is implicit in the reasons which I gave yesterday that my view is that the decision in the present case was one which is justiciable. It is also implicit in it that Mr Pepper is a person who is entitled to make an application to the Court under s 20. The argument before me today has focussed solely on the question of whether the decision is included in a class of decisions set out in sch 2.
I should, however, repeat one matter accepted without argument yesterday: The decision of the Attorney-General is one to which the Act applies because it is a decision of an administrative character under an enactment, it being a decision made under s 672A of the Criminal Code.
Mr Hinson has submitted - in my opinion, correctly - that the reference in s 31 to a class of decisions is not accidental. It is an indication that sch 2 sets out classes, and when one turns to the schedule - which is headed "Decisions for which reasons need not be given" - one sees those classes. They are wide-ranging and I have not paused to consider whether there is any common theme among the 18 classes set out in the schedule.
It is not necessary to do that because plainly enough, only the first class can apply in the present case. Class 1 is in these terms:
"1 Administration of criminal justice
"Decisions relating to the administration of criminal justice, and in particular-
(a)decisions in relation to the investigation or prosecution of persons for offences against the law of the State, the Commonwealth, another State, a Territory or a foreign country; and
(b)decisions in relation to the appointment of investigators or inspectors for the purposes of such investigations; and
(c)decisions in relation to the issue of search warrants under a law of the State; and
(d) decisions under a law of the State requiring-
(i) the production of documents or things; or
(ii) the giving of information; or
(iii) the summoning of persons as witnesses."
As Mr Hinson submitted, the words "relating to" are of the widest import. Mr Hinson submitted that it may be significant that those words are used rather than the word "in", and perhaps it is. But I do not need to make that comparison in order to reach the conclusion that the words have a wide meaning. The connector between "decisions" and "the administration of criminal justice" need not be narrowly defined, and should not be.
Nor is the expression "administration of criminal justice" one of precise denotation. It would seem, on its face, to encompass all matters connected with the process by which criminals are dealt with.
The question of the ambit of the class is not to be determined solely by reference to the wide opening words. If those words stood alone, that is, "decisions relating to the administration of criminal justice", I have little doubt that they would encompass the decision made by the Attorney General in this case. However, as Mr Hinson pointed out, they do not stand alone. They are followed by particulars. It is accepted law in this country that words in a statute must be construed in their context. They are to be construed having regard to the terms of words which surround them and to the purpose of the statute in which they appear.
These conclusions, can I think, be derived from decisions of Courts in this country over a long period. In Prior v. Sherwood (1906) 3 CLR 1054, Barton J said:
"Now, there is another principle of construction which is called the rule of ejusdem generis, or noscitur a sociis, which is stated thus in Maxwell on The Interpretation of Statutes, 3rd ed., p.461: 'When two or more words, susceptible of analogous meaning, are coupled together, noscitur a sociis; they are understood to be used in their cognate sense. They take, as it were, their colour from each other, that is, the more general is restricted to a sense analogous to the less general'."
Perhaps the leading High Court case on the topic is Cody v. J H Nelson Pty Ltd (1947) 74 CLR 629. The principle which has been described as noscitur sociis was described by Justice Starke and Justice Dixon in that case.
Starke J said:
"The contention is that acts or omissions which the Governor-General may declare to be black marketing should be construed according to the rule or canon of construction called 'ejusdem generis' or 'noscitur a sociis.' It is not a rule of law. But where there are general words following particular or specific words the general words should be confined to things of the same kind as those specified. This 'rule of construction is subordinate to the real intention of the parties, and does not control it; that is to say, that the canon of construction is but the instrument for getting at the meaning of the parties, and that the parties, if they use language intimating such intention, may exclude the operation of this or, I suppose, any other canon of construction...'"
Dixon J said:
"The three canons of construction are relied upon: Lord
Bacon's verba generalia restringuntur ad habilitatem rei vel personae, to which in the passage just quoted there is a reference; Lord Hale's noscitur a sociis, and that which allows the court to give to general expressions following an enumeration of more particular things or matters an application no larger than to things and matters ejusdem generis. But standing as a caution against a too ready use of these counsels there is yet another Latin canon, generalia verba sunt generaliter intelligenda, which is as much as to say words although general should be understood in their primary and natural signification unless there are sufficient indications of some other meaning. This last maxim or brocard is not to be understood in opposition to the three first mentioned. They relate to the context and subject matter in which indications of a narrower meaning may be seen.
The precept allowing of the restraint of a general expression to a class of things ejusdem generis with particular expressions preceding it may be regarded as a subordinate rule forming part of the larger principle stated by Sir Benson Maxwell. ...
In the interpretation of the last part of s.3 of the Black Marketing Act I think that we should begin with the presumption or assumption that words, even when general, mean what they say. No canon of construction is enshrined in the observation made by Lord Wright in James v. Commonwealth, concerning the words 'absolutely free' that 'the use of the language involves the fallacy that a word completely general and undefined is most effective. A good draftsman would realize that the mere generality of the word must compel limitation in its interpretation.' Doubtless the observation embodies a shrewd generalization, not untinged with cynicism, concerning the incredulity which broad and sweeping provisions arouse in the judicial mind, so apt to regard them as legislative hyperbole to be confined in application within moderate and practicable limits."
More recently it was referred to by the Chief Justice of New South Wales in Deputy Commissioner of Taxation v. Dick [2007] NSWCA 190. In that case the words under consideration were, of course, different from those presently being considered but his Honour said:
"Although words such as 'breach of duty' and 'default' are capable of extending respectively to a breach of statutory duty and to a contravention of statutory provision, there are textual and contextual reasons for concluding that that was not the intention behind the use of these particular words in section 1318 [of the Corporations Act].
...
The relevant principle of statutory interpretation is noscitur a sociis which has been imaginatively translated by Lord McMillan as 'words of a feather flock together'. As his Lordship went on to explain the principle, 'The
meaning of a word is to be judged by the company it keeps.'
This general principle of the law of interpretation has a number of specific sub principles including the ejusdem generis rule.
As I pointed out in Lend Lease v. GPT, Lord Diplock warned in Letang v. Cooper, 'The maxim noscitur sociis is always a treacherous one unless you know the societas to which the socii belong.'" (citations omitted)
It seems to me that those principles are applicable in the present case. The opening words appear in the context of four paragraphs of particular examples. The first is decisions in relation to the investigation for prosecution of persons for offences. Second are decisions in relation to the appointment of investigators, or inspectors for the purpose of such investigations. Third are decisions in relation to the issue of search warrants under a law of the State. Finally there are decisions under a law of the State requiring the production of documents or things, the giving of information or the summoning of persons at witnesses.
In my judgment, those matters form a fairly clearly defined class. It is not surprising that they should do so. Class is the very word used in s 31. The class is decisions relating to the investigation and trial of criminal offences. One can see moreover why it would be that the Parliament would select such a class. The decisions described are all decisions which affect ongoing proceedings. To have to give reasons in respect of them would not only distract those whose task it is to carry out the administration of the proceedings from what they should be doing, but might also actually prejudice the task which they have to carry out. There is a clear public policy reason for what is included in the class.
That reason does not extend to the present situation. Here, the prosecution of Mr Pepper was concluded long ago.
Senior counsel for the Attorney-General drew my attention to the terms of class 2 in the schedule. Structurally that class is similar to class one, in that it begins with words of generality which are then particularised. As with class 1, the frequently used formula "without derogating from the generality of the foregoing" has been omitted. It may be that a similar approach would be adopted in relation to the construction of class 2. It is unnecessary to decide the point, and undesirable to do so in the abstract.
In relation to both classes it must be remembered that one is considering only decisions made under an enactment. Most decisions of the type particularised in class 1 are not made in this way, and are not reviewable in any event.
I have therefore come to the conclusion that the opening words of the class read with the words which surround them and in the light of the policy which the definition of the class embodies do not include the present case.
It follows that, in my judgment, the Attorney ought to give reasons for his decision. Subject to submissions of counsel I propose to order that he give a statement of reasons to Mr Pepper within 28 days of this order.
...
HIS HONOUR: Yes, now what I have proposed is:
(1) order that the Attorney-General give Mr Pepper a statement in relation to his decision not to refer Mr Pepper's case to the Court of Appeal within 28 days of today;
(2) stay the order in paragraph 1 for seven days or if a notice of appeal be filed within that time until the determination of appellate proceedings on condition that the Attorney file an undertaking in writing to prepare such a statement to be ready for immediate delivery within 28 days of today;
(3) Liberty to apply.
...
HIS HONOUR: I will make the three orders that I foreshadowed before. I make those three orders and I further order:
(4) that the Attorney-General pay Mr Pepper's costs if any of
the application filed on the 12th of December 2007 and of the oral application heard today to be assessed.
...
HIS HONOUR: (5) I adjourn the originating application to a
date to be fixed;
(6) I direct a copy of the transcript of proceedings of
yesterday and today be sent to Mr Pepper.
...
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