Secretary, Department of Planning and Environment v Aerotropolis Pty Ltd

[2023] NSWLEC 4

Land and Environment Court

New South Wales

Medium Neutral Citation:

Secretary, Department of Planning and Environment v Aerotropolis Pty Ltd [2023] NSWLEC 4

Hearing dates:

11 October 2022

Date of orders:

2 February 2023

Decision date:

02 February 2023

Jurisdiction:

Class 5

Before:

Moore J

Decision:

See orders at [146]

Catchwords:

PROSECUTIONS - multiple charges laid pursuant to the National Parks and Wildlife Act 1974 and the Biodiversity Conservation Act 2016 (together the charge‑founding statutes) - charges required to be laid within two years of alleged offending conduct becoming known to an authorised officer - challenges to whether charges were laid prior to the expiry of the two‑year limitation period - two separate bases advanced by the Defendant as to why the prosecutions were commenced out of time - first basis that the day knowledge of the offending conduct coming to the attention of an authorised officer to be counted in the two‑year limitation period - second basis (if the first basis failed) was that the two-year time period expired on a Saturday and that the provisions of s 36(2) of the Interpretation Act 1987 (the Interpretation Act) were not available to the Prosecutor to extend the time for commencement of the prosecutions until the next available working day - question whether two-year limitation period included the day when the authorised officer became aware of the alleged offending conduct or whether that day was excluded from the two-year period - Defendant proposes that the day was included - inclusion of the day would mean that all the prosecutions were commenced out of time - day the authorised officer became aware of the alleged offending conduct not to be counted in the two-year period - consideration of whether the relevant provisions in the charge‑founding statutes ousted the operation of the Interpretation Act provision – time‑extending provision of the Interpretation Act not ousted - prosecutions all commenced within time - Defendant’s Notice of Motion dismissed

Legislation Cited:

Acts Interpretation Act 1901 (Cth), s 36
Acts Interpretation Act 1931 (Tas), s 29
Acts Interpretation Act 1954 (Qld), s 38

Biodiversity Conservation Act 2016, ss 2.2(1)(b), 2.4(1) and 13.4

Children (Criminal Proceedings) Act 1987

Criminal Procedure Act 1986, s 246(1)(a)

Environmental Planning and Assessment Act 1979, s 127(5)

Interpretation of Legislation Act 1984 (Vic), s 44
Interpretation Act 1978 (NT), s 28

Interpretation Act 1984 (WA), s 61

Interpretation Act1987 (NSW), ss 5(2) and 36

Legislation Act 2001 (ACT), s 151A
Legislation Interpretation Act 2021 (SA), s 44

National Parks and Wildlife Act 1974, ss 118A(2), 118D(1) and 190

Cases Cited:

Attorney-General (Cth)v Oates (1999) 198 CLR 162; [1999] HCA 35

Chief Executive, Office of Environment and Heritage v Geoffrey Phillip Manchee; Chief Executive, Office of Environment and Heritage v Bogamildi Investments Pty Ltd [2015] NSWLEC 117

Chief Executive of the Office of Environment and Heritage v Somerville [2019] NSWLEC 155

Dodds v Walker [1981] 1 WLR 1027

Environment Protection Authority v Truegain Pty Ltd (2013) 85 NSWLR 125; [2013] NSWCCA 204

Epacris Pty Limited v Director-General, Department of Natural Resources (2007) 69 NSWLR 507; [2007] NSWCCA 76

Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89; [2007] HCA 22

Hill v Zuda Pty Ltd [2022] HCA 21

Lester v Garland (1808) 15 Ves Jun 248

Marshall v Director-General, Department of Transport (2001) 205 CLR 603; [2001] HCA 37

Morgans v Director of Public Prosecutions [1999] 2 Cr App R  99

Morton v Hampson [1962] VR 364

Price v JF Thompson (Qld) Pty Ltd [1990] 1 Qd R 278

R v A2 (2019) 269 CLR 507; [2019] HCA 35

SZTAL v Minister for Immigration and Border Protection (2017) 262 CLR 362; [2017] HCA 34

Walker Corporation Pty Limited v Sydney Harbour Foreshore Authority (2008) 233 CLR 259; [2008] HCA 5

Wignalls Smallgoods Pty Ltd v Kent (2002) 10 Tas R 460; [2002] TASSC 67

Willoughby City Council v Screnci (2015) 213 LGERA 238; [2015] NSWLEC 192

Category:

Procedural rulings

Parties:

Secretary, Department of Planning and Environment (Prosecutor)
Aerotropolis Pty Ltd (Defendant)

Representation:

Counsel:
Ms N Sharp SC/Ms L Opper, barrister (Prosecutor)
Mr P Herzfeld SC/Mr J Wherrett, barrister (Defendant)

Solicitors:
Department of Planning and Environment (Prosecutor)
Clayton Utz (Defendant)

File Number(s):

173269 to 173288 of 2022

Publication restriction:

No

TABLE OF CONTENTS

Introduction

Relevant statutory provisions

Introduction

The NPWS Act

The Biodiversity Conservation Act

The Interpretation Act

The primary relevant provision

Similar effect provisions from other jurisdictions

The operative application of the New South Wales Act

The Prosecutor’s non‑reliance on s 36(1) of the Interpretation Act

Representation

A recent High Court decision

My introductory observations at the hearing

The evidence

The issues

The first issue - commencement of time running

The Prosecutor’s submissions on the first issue

The Company’s submissions on the first issue

The Prosecutor’s submissions in reply on the first issue

The anticipatory reply to the Company’s written submissions

The Prosecutor’s reply to the Company’s oral submissions

The second issue - the extension of time for commencing the prosecutions

The Prosecutor’s submissions on the second issue

The Company’s submissions on the second issue

The Prosecutor’s submissions in reply

Consideration of the issues

Introduction

The first issue

Consideration

The statutory fallback on the first issue

The second issue

Orders

Judgment

Introduction

1. On 14 June 2022, the Secretary of the Department of Planning and Environment (the Prosecutor) commenced 20 prosecutions against Aerotropolis Pty Ltd (the Company). The Summonses alleged eight breaches of the National Parks and Wildlife Act 1974 (the NPWS Act) (the alleged breaches are of s 118A(2) - three charges - and of s 118D(1) - five charges) and 12 breaches of the Biodiversity Conservation Act 2016 (the Biodiversity Conservation Act) (the alleged breaches are of s 2.2(1)(b) - four charges - and of s 2.4(1) - eight charges).

2. On 5 August 2022, the Company filed a Notice of Motion seeking to have all the charges dismissed on the basis that they had been laid outside the statutory time limitation period within which such charges were permitted to be laid.

Relevant statutory provisions

Introduction

3. Provisions of the the NPWS Act and of the Biodiversity Conservation Act contain the time‑related provisions governing commencement of such prosecutions. These require to be considered for the purposes of this interlocutory hearing. Also relevant is the provision of the Interpretation Act 1987 (NSW) (the Interpretation Act) setting out the circumstances when, if otherwise permissible, extensions of the time limits contained in these provisions of the NPWS Act and the Biodiversity Conservation Act can, potentially, be permitted. It is not necessary to set out the offence provisions relied upon in each enactment.

4. It is also appropriate to note that interpretation legislation of the Commonwealth Parliament and of the other state and territory parliaments also arises as relevant to issues here requiring to be addressed.

The NPWS Act

5. The relevant time‑related provision of the NPWS Act is s 190. This provision is in the following terms:

190   Time within which proceedings may be commenced

(1)   Proceedings for an offence under this Act or the regulations may be commenced—

(a)   within but not later than 2 years after the date on which the offence is alleged to have been committed, or

(b)   within but not later than 2 years after the date on which evidence of the alleged offence first came to the attention of any authorised officer.

(2)   If subsection (1) (b) is relied on for the purpose of commencing proceedings for an offence, the court attendance notice, Summons or application must contain particulars of the date on which evidence of the offence first came to the attention of any authorised officer and need not contain particulars of the date on which the offence was committed. The date on which evidence first came to the attention of any authorised officer is the date specified in the court attendance notice, Summons or application, unless the contrary is established.

(3)   This section applies despite anything in the Criminal Procedure Act 1986 or any other Act.

(4)   In this section, evidence of an offence means evidence of any act or omission constituting the offence.

6. It is to be noted that each of the Summonses alleging breaches of the NPWS Act contain a particular pleading a date in satisfaction of s 190(2).

The Biodiversity Conservation Act

7. The relevant time‑related provision of the Biodiversity Conservation Act is s 13.4, a provision in the following terms:

13.4   Time within which proceedings may be commenced

(1)   Proceedings for an offence against this Act or the regulations, or for a native vegetation offence, may be commenced not later than 2 years after the date on which the offence is alleged to have been committed.

(2)   Proceedings for an offence against this Act or the regulations, or for a native vegetation offence, may also be commenced within, but not later than, 2 years after the date on which evidence of the alleged offence first came to the attention of any relevant investigation officer.

(3)   If subsection (2) is relied on for the purpose of commencing proceedings for an offence, the court attendance notice or application must contain particulars of the date on which evidence of the offence first came to the attention of any relevant investigation officer and need not contain particulars of the date on which the offence was committed. The date on which evidence first came to the attention of any relevant investigation officer is the date specified in the court attendance notice or application, unless the contrary is established.

(4)   This section applies despite anything in the Criminal Procedure Act 1986 or any other Act.

(5)   In this section—

evidence of an offence means evidence of any act or omission constituting the offence.

investigation officer means an authorised officer within the meaning of Part 12, whether or not the person has the functions of an investigation officer in connection with the offence concerned.

relevant investigation officer means—

(a)   in relation to proceedings for an offence instituted by or with the authority of the Environment Agency Head—any investigation officer who is an employee of the Office of Environment and Heritage, or

(b)   in relation to proceedings for an offence instituted by any other person—any investigation officer.

8. It is to be noted that each of the Summonses alleging breaches of the Biodiversity Conservation Act contain a particular pleading a date in satisfaction of s 13.4(3).

The Interpretation Act

The primary relevant provision

9. The primary relevant provision of the Interpretation Act requiring consideration is s 36. This provision is in the following terms:

36   Reckoning of time

(1)   If in any Act or instrument a period of time, dating from a given day, act or event, is prescribed or allowed for any purpose, the time shall be reckoned exclusive of that day or of the day of that act or event.

(2)   If the last day of a period of time prescribed or allowed by an Act or instrument for the doing of any thing falls—

(a)   on a Saturday or Sunday, or

(b)   on a day that is a public holiday or bank holiday in the place in which the thing is to be or may be done,

the thing may be done on the first day following that is not a Saturday or Sunday, or a public holiday or bank holiday in that place, as the case may be.

Similar effect provisions from other jurisdictions

10. As the Prosecutor’s written submissions noted, provisions to the effect of s 36 of the Interpretation Act appear in legislation adopted by the Commonwealth Parliament and the parliaments of each other state and territory. A list of those enactments was set out in footnote 2 to the Prosecutor’s written submissions in support of this motion. It is appropriate to reproduce that list in full. Those enactments are:

• Acts Interpretation Act 1901 (Cth), s 36(2);

• Legislation Act 2001 (ACT), s 151A(2);

• Interpretation Act 1978 (NT), s 28(2);

• Acts Interpretation Act 1954 (Qld), s 38;

• Legislation Interpretation Act 2021 (SA), s 44(2);

• Acts Interpretation Act 1931 (Tas), s 29(3);

• Interpretation of Legislation Act 1984 (Vic), s 44; and

• Interpretation Act 1984 (WA), s 61.

11. It is not necessary to reproduce the equivalent provisions in all of the above enactments. However, for the purposes of what later requires consideration, it is appropriate to reproduce, first, the terms of s 36 of the Commonwealth enactment. This provision is in the following terms (examples in the text of the Act):

Calculating time

(1)   A period of time referred to in an Act that is of a kind mentioned in column 1 of an item in the following table is to be calculated according to the rule mentioned in column 2 of that item:

Calculating periods of time
Item	Column 1 If the period of time:	Column 2 Then the period of time:
1	is expressed to occur between 2 days	includes both days.
2	is expressed to begin at, on or with a specified day	includes that day.
3	is expressed to continue until a specified day	includes that day.
4	is expressed to end at, on or with a specified day	includes that day.
5	is expressed to begin from a specified day	does not include that day.
6	is expressed to begin after a specified day	does not include that day.
7	is expressed to end before a specified day	does not include that day.

Example 1: If a claim may be made between 1 September and 30 November, a claim may be made on both 1 September and 30 November.

Example 2: If a permission begins on the first day of a financial year, the permission is in force on that day.

Example 3: If a licence continues until 31 March, the licence is valid up to and including 31 March.

Example 4: If a person's right to make submissions ends on the last day of a financial year, the person may make submissions on that day.

Example 5: If a variation of an agreement is expressed to operate from 30 June, the variation starts to operate on 1 July.

Example 6: If a decision is made on 2 August and a person has 28 days after the day the decision is made to seek a review of the decision, the 28-day period begins on 3 August.

Example 7: If a person must give a notice to another person at any time during the period of 7 days before the day a proceeding starts and the proceeding starts on 8 May, the notice may be given at any time during the 7-day period starting on 1 May and ending on 7 May.

(2)   If:

(a)   an Act requires or allows a thing to be done; and

(b)   the last day for doing the thing is a Saturday, a Sunday or a holiday;

then the thing may be done on the next day that is not a Saturday, a Sunday or a holiday.

Example: If a person has until 31 March to make an application and 31 March is a Saturday, the application may be made on Monday 2 April.

12. It is, next, appropriate to reproduce the terms of s 29 of the Tasmanian enactment. It is to be noted that this provision has not been amended since it was considered by a Full Bench of the Tasmanian Supreme Court in Wignalls Smallgoods Pty Ltd v Kent (2002) 10 Tas R 460; [2002] TASSC 67 (Wignalls Smallgoods), a decision to which I will need to return. This provision is in the following terms:

Reckoning of time

(1)   Where by or under any Act any period of time, dated or reckoned from a given day, act, or event, is prescribed or allowed for any purpose that period of time shall be reckoned exclusively of that day, or of the day of that act or event, as the case may be.

(2)   Where by or under an Act a period is expressed to be a specified number of clear days or a specified number of days at least, that period shall be reckoned exclusively both of the given day or of the day of the specified act or event and also of the day on which the purpose is to be fulfilled.

(3) Where any time, or the first or last day (according as it is reckoned backwards or forwards) of any period of time, prescribed or allowed for the doing of any act or thing falls on a Sunday or on any day which is a statutory holiday as defined in the Statutory Holidays Act 2000 or a public holiday throughout the State or in that part of the State where the act or thing is to be, or may be, done (which days are in this section referred to as excluded days) the act or thing –

(a)   if the time or period of time is reckoned forwards, shall be considered as done in due time if it is done on the next day afterwards, not being an excluded day; and

(b)   if the time or period of time is reckoned backwards, shall not be considered as done in due time unless it is done on the next day before, not being an excluded day.

(4)   Where the last day of the period prescribed or allowed for the filing or registration of a document or instrument falls on a day on which the office in which the filing or registration is to be effected is not open, the document or instrument may be filed or registered on the next ensuing day on which the office is open.

(5)   Where any act or proceeding is directed or allowed to be done on a particular day so fixed or prescribed that subsection (3) is not applicable, then if that day happens to be an excluded day, the act or proceeding shall be considered as done or taken in due time if it is done or taken on the next day afterwards, not being an excluded day.

(6)   When an act or proceeding is directed or allowed to be done or taken within any time not exceeding 6 days, excluded days shall not be reckoned in the computation of time.

13. The third comparable provision it is appropriate to reproduce is s 38 of the Queensland enactment. It is also to be noted that this provision has not been amended in the period since it was considered by the Queensland Court of Appeal in Price v JF Thompson (Qld) Pty Ltd [1990] 1 Qd R 278 (Price), a decision to which it will also be necessary later to return. This provision is in the following terms:

38   Reckoning of time

(1)   If a period beginning on a given day, act or event is provided or allowed for a purpose by an Act, the period is to be calculated by excluding the day, or the day of the act or event, and—

(a)   if the period is expressed to be a specified number of clear days or at least a specified number of days—by excluding the day on which the purpose is to be fulfilled; and

(b)   in any other case—by including the day on which the purpose is to be fulfilled.

(2)   If the time, or last day of a period, calculated forwards that is provided or allowed by an Act for doing anything falls on an excluded day, the time, or last day, is taken to fall on the next day later that is not an excluded day.

(3)   If the time, or earliest day of a period, calculated backwards that is provided or allowed by an Act for doing anything falls on an excluded day, the time, or earliest day, is taken to fall on the next day earlier that is not an excluded day.

(4)   If no time is provided or allowed for doing anything, the thing is to be done as soon as possible, and as often as the relevant occasion happens.

(5)   In this section—

"excluded day" —

(a)   for filing or registering a document—means a day on which the office is closed where the filing or registration must or may be done; or

(b)   otherwise—means a day that is not a business day in the place in which the thing must or may be done.

14. As can be seen from the above‑reproduced provisions of the Commonwealth, Tasmanian and Queensland enactments, the various provisions are not in identical terms. Also, it is to be noted that they are not in identical terms to s 36 of the Interpretation Act. However, as can also be seen from an examination of the terms of each of the provisions, they each contain elements to identical effect, relevantly, to each of the elements of s 36 of the Interpretation Act.

The operative application of the New South Wales Act

15. It is also appropriate to reproduce the terms of s 5(2) of the Interpretation Act. This provision is in the following terms:

5   Application of Act

(1)   …

(2)   This Act applies to an Act or instrument except in so far as the contrary intention appears in this Act or in the Act or instrument concerned.

The Prosecutor’s non‑reliance on s 36(1) of the Interpretation Act

16. The written submissions for the Company, on page 8 at footnote 23, recorded:

²³   The prosecution does not rely on s 36(1) of the Interpretation Act. For the reasons addressed below, it does not apply in any event.

17. The Prosecutor addressed the non‑reliance on s 36(1) of the Interpretation Act early in the hearing. The transcript records the following (11 October 2022, page 7, line 45 to page 8, line 3):

PROSECUTOR: Can I then take your Honour to s 36 of the Interpretation Act? Does your Honour have that provision?

HIS HONOUR: I do.

PROSECUTOR: There are two different rules here. There's s 36(1) which is a provision to the effect that the date of the event is not to be counted. That simply codifies a very long standing common law rule, which I'll address your Honour on shortly.

18. The Prosecutor then turned to authorities which she submitted laid down a longstanding common law rule that when a date was stipulated that date is not counted in the reckoning of time. These submissions were later addressed by Mr Herzfeld and are considered by me in this decision. The Prosecutor continued, relevantly, saying (Transcript, 11 October 2022, page 10, lines 28 to 43):

PROSECUTOR: It's not necessary to lay down any general rule. Of course this case has now been taken as laying down a general rule. But upon technical reasoning, I rather think it would be more easy to maintain that the day of an act done or an event happening ought in all cases to be excluded. That's the origin of that rule. There can be no doubt that the common law also results in the limitation period in this case expiring on 11 June 2022, other than the fact that that happened to fall on a weekend,

The defendant has pointed out in its written submissions that the prosecutor has not relied on s 36(1) of the Interpretation Act, which says that when an act specifies a date, that date is not to be included. The reason is we don’t have to. We rely on the clear words of the provision, s 190 of the National Parks and Wildlife Act and s 13.4 of the Biodiversity Conservation Act, and we rely on the common law rule which has its foundation in the case of Lester v Garland. There's no reason why we couldn’t also rely on s 36(1), but there is no need for us to do so.

Representation

19. The Prosecutor was represented by Ms N Sharp SC and Ms L Opper, barrister. The Company was represented by Mr P Herzfeld SC and Mr J Wherrett, barrister. It is to be noted that comprehensive written submissions were provided for the Prosecutor and the Company prior to the hearing. It will later be necessary to refer to and/or reproduce portions of those submissions.

A recent High Court decision

20. In Hill v Zuda Pty Ltd [2022] HCA 21 (Hill v Zuda), a decision of the Full Court of the High Court, the Court said, at [25] and [26] (footnotes omitted):

The methodological question

25   Farah Constructions identified two decision-making principles. The first is that an intermediate appellate court should not depart from seriously considered dicta of a majority of this Court[. The second is that neither an intermediate appellate court nor a trial judge should depart from a decision of another intermediate appellate court on the interpretation of Commonwealth legislation, uniform national legislation or the common law of Australia unless convinced that the interpretation is plainly wrong or, to use a different expression, unless there is a compelling reason to do so.

26   Although both principles are directed to ensuring coherence in the law, the principles are distinct. The first concerns the relationship between an intermediate appellate court and this Court. The second concerns the relationships between intermediate appellate courts and between intermediate appellate courts and trial judges. In that latter context, intermediate appellate courts and trial judges are not bound to follow obiter dicta of other intermediate appellate courts, although they would ordinarily be expected to give great weight to them.

My introductory observations at the hearing

21. At the commencement of the hearing, I said to the advocates (Transcript, 11 October 2022, page 2, lines 28 to 34):

I have carefully read the decision of the full Tasmanian Supreme Court in Wignalls Smallgoods Pty Ltd v Kent and the two separate judgments comprising the majority of the Queensland Court of Appeal in Price v JF Thompson (Qld) Pty Ltd.

You will both need to address me on how I should regard both of those decisions in light of what the High Court said on 15 June this year at [25] and [26] of Hill v Zuda Pty Ltd [2022] HCA 21.

22. Having said that to the advocates, I later added the following (Transcript, 11 October 2022, page 3, lines 1 to 8):

HIS HONOUR: Yes, well let me just simply continue to say although those are said to be that mandated instruction is said to be one which applies to the interpretation of Commonwealth legislation, uniform national legislation, or the common law, I am concerned that the fact that each State and Territory Parliament, as well as the Commonwealth, had passed legislation in or to the same effect as the provisions of s 36 of the Interpretation Act, and under such circumstances it seems to me at least arguably, which is why I raise it now, that applies by analogy as to being uniform national legislation.

The evidence

23. The parties had settled a Statement of Agreed Facts (SOAF). The SOAF became Exhibit 1. The terms of the Company’s Notice of Motion are set out at paragraph 4 of the SOAF. The SOAF provides the necessary contextual information to give a sufficient understanding of matters arising in my consideration of the Company's motion.

24. The SOAF is reproduced below:

Background

1.   On 14 July June 2022 [corrected at the commencement of the hearing - transcript 11 October 2022, page 5, lines 28 and 29], the Secretary, Department of Planning and Environment (the Prosecutor) commenced proceedings 2022/173269-173288 by Summons against Aerotropolis Pty Ltd (the Defendant).

Charges

2. The Prosecutor alleges that the Defendant committed 8 offences under sections 118A(2) and 118D(1) of the National Parks and Wildlife Act 1974 (NSW) (the National Parks and Wildlife Act), and 12 offences under sections 2.2(1)(b) and 2.4(1) of the Biodiversity Conservation Act 2016 (NSW) (the Biodiversity Conservation Act). The charges are set out in Appendix A.

3.   The charges relate to the alleged clearance of vegetation at 203 Greendale Road, Bringelly NSW 2556 (the Property).

The Defendant’s motion

4   On 5 August 2022, the Defendant filed a Notice of Motion (the Motion) seeking the following orders:

(a) That proceedings nos. 2022/173269-173276 be dismissed on the basis that the proceedings were commenced outside the limitation period prescribed by section 190 of the National Parks and Wildlife Act 1974 (NSW).

(b) That proceedings nos. 2022/173277-173288 be dismissed on the basis that the proceedings were commenced outside the limitation period prescribed by section 13.4 of the Biodiversity Conservation Act 2016 (NSW).

(c)   Costs.

(d)   Any further order the Court sees fit to make.

Relevant facts

5   For the purposes of the Motion only, the relevant facts can be stated as follows:

(a)   Evidence of each of the charged offences first came to the attention of Ms Sarah Burke, on 11 June 2020.

(b) Ms Burke was, at the relevant times, an authorised officer under the National Parks and Wildlife Act.

(c) Ms Burke was, at the relevant times, a relevant investigation officer under the Biodiversity Conservation Act.

(d)   The date of 11 June 2022 was a Saturday.

(e)   The date of 12 June 2022 was a Sunday.

(f)   The date of 13 June 2022 was a public holiday in the State of New South Wales.

(g)   The Prosecutor commenced the proceedings by Summonses on 14 June 2022

25. The SOAF had appended to it various documents. It is not necessary, for present purposes, to reproduce the terms of any of those documents.

26. In addition to the SOAF set out above, the Prosecutor also tendered a letter, dated 27 June 2022, written to the Prosecutor by the legal representatives of the Company. That letter became Exhibit 2.

27. The Company read an affidavit deposed on 5 August 2022 by Mr Marcus Vethecan, a solicitor employed by the Company's legal representative. This affidavit was a procedural one in support of its motion.

The issues

28. As can be seen from the timing matters set out in the SOAF, the Prosecutor relies on s 190(1)(b) for the commencement date of the period of time within which the prosecutions under the NPWS Act were required to be laid.

29. A similar position applies with respect to the offences charged pursuant to s 13.4 of the Biodiversity Conservation Act. The Prosecutor relies on s 13.4(2) for the commencement date of the period of time within which the charges were required to be laid.

30. The Company raises two grounds upon which it submits that all the charges laid by the Prosecutor are out of time and must be dismissed. The first basis is that a proper construction of s 190(1)(b) of the NPWS Act and s 13.4(2) of the Biodiversity Conservation Act leads to the conclusion that the time period within which the Prosecutor was permitted to commence proceedings expired at midnight on Friday 10 June 2022.

31. On this basis, if correct, whatever the proper understanding of s 36 of the Interpretation Act, that Act could not operate to extend the time within which charges could be laid until Tuesday 14 June 2022.

32. In the alternative, if this primary submission is held not to be well‑founded, the Company proposes that, if the limitation period expired on Saturday 11 June 2022, s 36 of the Interpretation Act was not available to be relied upon by the Prosecutor as extending the time for commencement of the proceedings. This is because, the Company proposes, a proper understanding of the relevant provisions of the NPWS Act and the Biodiversity Conservation Act each operate to oust s 36 of the Interpretation Act.

33. Thus, it was submitted for the Company, by not approaching the duty judge of this Court on Saturday 11 June 2022 to initiate the prosecutions by seeking orders pursuant to s 246(1)(a) of the Criminal Procedure Act 1986 (the Criminal Procedure Act) and pay the necessary fee to have the Court’s Registry opened especially for the purposes of filing the relevant Summonses on that day, all of the prosecutions against the Company were out of time on this separate basis.

The first issue - commencement of time running

The Prosecutor’s submissions on the first issue

34. The Prosecutor’s written submissions set out at paragraphs 13 and 14, entirely uncontroversially I would have thought, what was described as the orthodox approach to statutory interpretation - citing the judgment of the plurality of the High Court in SZTAL v Minister for Immigration and Border Protection [2017] HCA 34, at [14], and the proposition from the later judgment of Keifel CJ and Keane J in R v A2 (2019) 269 CLR 507; [2019] HCA 35 (R v A2), at [33], that consideration of the context of the provision is undertaken at the first stage of construction.

35. In this context, the Prosecutor’s substantive written and oral submissions commenced by addressing how the word “after” should be understood in its context in the provisions relied upon to found the various charges.

36. The Prosecutor’s written submissions commenced addressing the first issue as set out below:

15. In this case, the limitation periods are to be calculated by reference to the expression, “within but not later than 2 years after the date on which …”, which appears in each of s.190(1) of the NPW Act and s.13.4(2) of the BC Act. These words should be given their ordinary meaning.

16.   The Prosecutor does not understand the Defendant to challenge the proposition that the limitation periods would ordinarily have expired at 11.59pm on 11 June 2022. Indeed, this concession was made in the letter from the Defendant’s solicitors to the Prosecutor dated 27 June 2022 at paragraph 4 (see Annexure A to these submissions).

17.   This concession is consistent with the way that same expression has been applied in other cases. For example, in the context of s.64 of the Native Vegetation Conservation Act 1964 (NSW), the NSWCCA held that where offences had taken place up to and including 10 December 2003, the limitation period expired on 10 December 2005.

18.   The Defendant’s concession is well made. In particular, effect must be given to the word “after”, which clearly denotes that the date that evidence of the offence came to the relevant officer’s attention is not to be counted. … (continued below)

37. The letter referred to at the conclusion of paragraph 16 in the above extract from the Prosecutor's written submissions is in evidence as Exhibit 2. The fourth paragraph of this letter was in the following terms:

4   As the Summonses indicate that evidence of the alleged offences came to Ms Burke's attention on 11 June 2020, the plain language of the legislative provisions in paragraph 3(b) require the Secretary to have commenced proceedings within but not later than two years after this date. By our calculation, and on a beneficial construction to the Secretary, the proceedings were commenced two years and three days after the date on which evidence first came to the attention of Ms Burke. It follows that all 20 proceedings are statute-barred and should be summarily dismissed.

38. That which was set out in the above paragraph is not now conceded and gives rise to the first issue in dispute in these interlocutory proceedings.

39. The Prosecutor then turned to setting out her submissions concerning the common law position on this issue, citing the decision of the House of Lords in Dodds v Walker [1981] 1 WLR 1027 (Dodds v Walker).

18.   … There is long standing authority on this point. In Dodds v Walker [1981] 1 WLR 1027, the House of Lords considered s.29(3) of Landlord and Tenant Act 1954, which provided:

No application [for a new tenancy] under section 24(1) of this Act shall be entertained unless it is made not less than two nor more than four months after the giving of the landlord’s notice under section 25 of this Act … (emphasis added)

19.   In a passage that bears repeating in full, Lord Diplock said, at 1029:

It is also clear under a rule that has been consistently applied by the courts since Lester v Garland (1808) 15 Ves Jun 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 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 of easy application. …all that the calculator has to do is to mark in his diary the corresponding date in the appropriate subsequent month.

40. As can be seen from the first sentence of the above extract from the speech of Lord Diplock, his Lordship cited the case of Lester v Garland (1808) 15 Ves Jun 248 (Lester v Garland). During the course of the Prosecutor’s oral submissions, I was taken to the decision in Lester v Garland. The Prosecutor took me to the second paragraph on page 752 of that decision, a paragraph in the following terms:

It is not necessary to lay down any general rule upon this subject: but upon technical reasoning I rather think, it would be more easy to maintain, that the day of an act done, or an event happening, ought in all cases to be excluded, than that it should in all cases be included.

41. The Prosecutor submitted (Transcript, 11 October 2022, page 10, lines 28 to 34):

PROSECUTOR: ... Of course this case has now been taken as laying down a general rule. But upon technical reasoning, I rather think it would be more easy to maintain that the day of an act done or an event happening ought in all cases to be excluded. That's the origin of that rule. There can be no doubt that the common law also results in the limitation period in this case expiring on 11 June 2022, other than the fact that that happened to fall on a weekend, …

42. At this point, the Prosecutor explained why s 36(1) of the Interpretation Act was not relied upon in rebuttal of the first proposition advanced on behalf of the Company (see [15] to [17] earlier), saying (Transcript, 11 October 2022, page 10, lines 38 to 43):

The reason is we don’t have to. We rely on the clear words of the provision, s 190 of the National Parks and Wildlife Act and s 13.4 of the Biodiversity Conservation Act, and we rely on the common law rule which has its foundation in the case of Lester v Garland. There's no reason why we couldn’t also rely on s 36(1), but there is no need for us to do so.

43. In this context, I note that, although the Prosecutor does not rely on that provision in the Interpretation Act, I am satisfied that it is potentially appropriate that I might have regard to its terms - a position to which I will later return.

44. The Prosecutor next turned, in her oral submissions, to responding to a number of matters which were advanced on behalf the Company in its written submissions for a proper understanding of the way the cases of the Prosecutor and the Company were advanced. The appropriate course, in my assessment, is to address the Prosecutor's response submissions on this first issue, after I have set out the submissions advanced on behalf of the Company concerning this topic.

The Company’s submissions on the first issue

45. Mr Herzfeld commenced his oral admissions on the first issue by reminding me that the Prosecutor needed to persuade me, beyond reasonable doubt, that these prosecutions were commenced in time. He then summarised the nature of the contest in the proceedings, saying (Transcript, 11 October 2022, page 18, lines 12 to 19):

The prosecution case really depends on two steps, the first step is the exclusion of the date of knowledge of the authorised officer and therefore that the period runs until the end of 11 June 2022 and that was a Saturday. The second step is the application of s 36(2) of the Interpretation Act and unless the prosecution succeeds on both steps the prosecutions are out of time. Therefore conversely as your Honour will have seen we say that within but not later than two years after 11 June 2020 doesn't run to the end of 11 June 2022, it expires the moment before 11 June 2022.

46. He then acknowledged that there was no disagreement about the identification of 11 June 2022 as the relevant date - noting that the contest between the parties was whether (as the Prosecutor submitted) time ran until the end of that day (therefore midnight on 11 June 2022), or from the beginning of that date as the Company submitted (therefore from midnight on 10 June 2022). He noted that, if the latter proposition is correct, the issue of any potential application of s 36(2) of the Interpretation Act did not arise to be considered.

47. To understand the basis upon which Mr Herzfeld approached the position that the time expired at midnight of the day before the date upon which the Company's alleged offending conduct came to the attention of the relevant authorised officer, his argument was set out, concisely, in paragraphs 9 to 13 of the written submissions on behalf of the Company. These paragraphs were in the terms:

The decision in Environment Protection Authority v Truegain Pty Ltd

9   At the outset, it should be emphasised that both of the issues on which the parties are in dispute are the subject of dicta of the New South Wales Court of Criminal Appeal in Environment Protection Authority v Truegain Pty Ltd. It is not mentioned in the Prosecutor’s submissions. That dicta supports the position for which the defendant contends and is inconsistent with the position for which the Prosecutor contends.

10   The Court was dealing a prosecution under the Protection of the Environment Operations Act 1997 (NSW). Section 216 of that Act was in relevantly the same terms as the provisions at issue here: sub-s (2) authorised the commencement of proceedings for an alleged offence “within but not later than” 12 months after the date on which evidence of the offence first came to the attention of any relevant authorised officer and sub-s (5) provided that the section applied despite anything in the Criminal Procedure Act 1986 (NSW) or any other Act.

11   The Summons stated that evidence of the offence first came to the attention of the authorised officer on 6 June 2010. The Summons was filed on Friday 3 June 2011. Justice Leeming (with whom RA Hulme and Button JJ agreed) said that, by filing on that date, “the EPA did not commence its prosecution until the last possible day”.

12   That conclusion is necessarily inconsistent with both propositions upon which the Prosecutor’s case depends. The Court expressly stated — contrary to the Prosecutor’s first proposition — that the 12-month period did not expire on Monday 6 June 2011. Rather, it is evident that the Court concluded that the last date for filing was Friday 3 June 2011 by reasoning that the 12-month period expired on Sunday 5 June 2011 and then reasoning - contrary to the Prosecutor’s second proposition — that the EPA did not obtain the benefit of s 36(2) of the Interpretation Act so as to be able to file on the next working day. Rather, the EPA had to file by the previous working day, Friday 3 June 2011.

13   It may be accepted that the question of whether the prosecution was validly commenced within time does not appear to have been in issue in Truegain. Accordingly, the observation identified above does not form part of the ratio of the decision binding on this Court. Nevertheless, this Court should follow the approach of the Court of Criminal Appeal absent compelling reasons. Far from that being the case, both principle and authority support the dicta in Truegain.

48. In his oral submissions, Mr Herzfeld took me to [9] in the decision in Environment Protection Authority v Truegain Pty Ltd (2013) 85 NSWLR 125; [2013] NSWCCA 204 (noted in paragraph 11 of the written submissions above) where Leeming JA said (emphasis added):

9   The Summons stated that evidence of the offence first came to the attention of an authorised officer on 6 June 2010. The POEO Act contains its own time limits. It requires prosecutions for an offence under s 64 to be commenced “within but not later than” 12 months after the date on which it is alleged to have been committed: s 216(1). However, s 216(2) authorises the commencement of proceedings for an alleged offence under, inter alia, s 64, “within but not later than” 12 months after the date on which evidence of the offence first came to the attention of any relevant authorised officer. By filing its Summons on Friday 3 June 2011, the EPA did not commence its prosecution until the last possible day.

49. The Transcript then, relevantly, records the following exchange, which I had with Mr Herzfeld, concerning the passage in Truegain to which he had referred me (Transcript, 11 October 2022, page 19, lines 3 to 31):

HERZFELD: That is within, but not later than, 12 months after 6 June 2020 didn't run to the end of Monday 6 June 2021 it expired the moment before that which was Sunday 5 June 2011 and that was a Sunday. If the prosecution case about the application of the Interpretation Act is correct that should have tipped them over to the Monday but 36(2) evidently was thought not to apply and that's why his Honour said that the prosecution could only commence on the last weekday of Friday 3 June 2011. So that passage is necessarily inconsistent with the case that the prosecution advances to your Honour. Now we--

HIS HONOUR: His Honour does not at least to my recollection of it appear to have had the question of whether s 36 of the Interpretation Act could extend or not drawn to his attention or certainly not argued and requiring determination before him.

HERZFELD: We accept what your Honour has said, this is not part of the ratio of the case, it's not binding on your Honour. The point doesn't appear to have been in issue. But equally this is not simply recording common ground of the parties without any judicial imprimatur. This is a statement by the Court indicter [in dicta] I accept but nonetheless a statement by the Court of its view that the last possible day was 3 June 2011. And so your Honour of course could not follow this dicta, I'm not suggesting otherwise. But it is nonetheless dicta of the Court of Criminal Appeal stating its view--

HIS HONOUR: To which I have to have regard, I understand that.

HERZFELD: Yes and that will be relevant when we come down the track to some of the other intermediate appellate decisions. As I say the prosecution correctly doesn't seek to distinguish this in any way it carries the burden of persuading your Honour not to follow that dicta.

50. Mr Herzfeld next turned to the matters set out in paragraphs 14 to 27 of the written submissions on behalf of the Company, paragraphs which set out why it was submitted that the approach taken by Leeming JA in Truegain should be adopted, resulting in me concluding that the limitation period had expired on Friday 10 June 2022. It is unnecessary to set out the detail of what was contained in those paragraphs of the written submissions for the Company; it is sufficient to quote the summary of what was said in them as advanced by Mr Herzfeld in his oral submissions (Transcript, 11 October 2022, page 19, line 38 to page 20, line 1):

HERZFELD: ... So we've addressed in paras 14 to 27 of our written submissions why consistently with what Leeming J said in Truegain, the limitation period expired on Friday 10 June 2022. And the debate really comes down to this. Both constructions of this provision as a matter of ordinary meaning just read on its terms, are available. That is within, but not later than two years after the date that evidence of the offence came to the officer's attention can be construed both to exclude that original date and therefore go to the end of the corresponding date, or to include the first day, and therefore to expire immediately prior to the corresponding date.

As we've set out in our written submissions in para 15 particularly by reference the cases in footnotes 11 and 12, while there are general approaches, ordinary approaches, they are not inflexible rules, and it all depends on the construction of the particular provisions at issue.

51. Although I have earlier set out the terms of paragraph 11 of the Company's written submissions, it is also appropriate to flesh them out, for present purposes, by also reproducing the terms of footnote 12 which Mr Herzfeld referred to in the above transcript extract. This footnote was in the following terms:

¹²    This point has been made repeatedly in cases concerning the construction of the word “from”: see, eg, Ex parte Toohey’s Ltd; Re Butler (1934) 34 SR (NSW) 277 at 285 (Jordan CJ; Street J and Maxwell AJ agreeing) (“The general rule is that in computing a period of time from the date, or the day of the date, of a deed, or any fixed day—that day is prima facie to be excluded, but the context or other admissible evidence may show that it is to be included”); Associated Beauty Aids Pty Ltd v Commissioner of Taxation (Cth) (1965) 113 CLR 662 at 668 (Barwick CJ) (“In my opinion, [the preposition “from”] does not usually have an inclusive but rather an exclusive or separatist quality. But unquestionably it may have either. Thus, the preposition derives its relevant quality from the context in which it is found, which includes the purpose which the document in which it is found is evidently designed to effect.”)

52. Mr Herzfeld then turned to the decision in Lester v Garland to which the Prosecutor had earlier taken me, referencing page 752, where the Master of the Rolls observed that it was “not necessary to lay down any general rule” on the issue.

53. He next took me to the speech of Lord Diplock in Dodds v Walker where, on page 1029, his Lordship had referred to what had come from Lester v Garland as this having “by then, become a general rule”.

54. However, Mr Herzfeld submitted that (Transcript, 11 October 2022, page 20, lines 21 to 24):

HERZFELD: …. It is absolutely true that words like "Within" and "After" and "From" often mean that the day of the event is excluded, but it is not a universal rule, and it is necessary for your Honour to pay close attention to these particular provisions. And there's three reasons in our submission why these particular provisions should be construed in the way that we submit. As to the first, would your Honour please take up the Biodiversity Conservation Act again? And would your Honour turn to s 13.4?

55. Mr Herzfeld submitted that there were three reasons why interpretation of the relevant statutory provisions here being considered should be read in the fashion advanced on behalf of the Company.

56. He submitted, first, that the language in s 13.4(1) of the Biodiversity Conservation Act used a different formulation of language contained in s 13.4(2) of that Act. He submitted that it was a general proposition of statutory construction, that the use of different words indicated a difference of meaning (Transcript, 11 October 2020, page 20, lines 35 and 36).

57. In this regard, he took me to the decision of Craig J in Willoughby City Council v Screnci (2015) 213 LGERA 238; [2015] NSWLEC 192 (Screnci). He pointed to the differences in language in the provision there being considered and the fact that the provision therein engaged differed from that upon which the Prosecutor sought to rely in these various proceedings against the Company.

58. Mr Herzfeld took me to [24] of Craig J’s decision in Screnci, where his Honour said:

24 If the date from which the limitation period of two years commences to run is the concluding date alleged in each charge, the limitation period for the internal works offence would expire on 27 February 2016 while the limitation period for the foreshore works offence would have expired in February 2015. As the proceedings in respect of each offence were commenced on 19 September 2014, each would appear to satisfy the requirement of s 127(5).

59. He submitted (Transcript, 11 October 2022, page 21, lines 7 to 17):

… we accept that if the formulation here was not later than two years after the offence was alleged, this case would provide strong support for the prosecution's position, and it would have been open when s 13.4 was enacted after Screnci. It would have been open to the parliament to use the same formulation in both subs (1) and subs (2), that is not later than two years after.

And if parliament has chosen to do that, then the prosecution's position would have been much stronger, but the parliament didn't do that. The parliament chose different language in subs (2), and as I said, that different language of itself indicates a difference of meaning.

60. Mr Herzfeld then turned to differences in language used - addressing, specifically, the use of the word “within” in the provision here requiring consideration. He submitted (Transcript, 11 October 2022, page 21, lines 33 to 46):

HERZFELD: But the obvious difference in meaning of the word, within, is that it reinforced the confinement of the period, certainly within isn't an expansionary word. It's a confining word. It's to circumscribe a period, and it's used in addition to the words, "But not later than." And the only way that one can give work to that confining word is to adopt a narrower construction of 13.42 than that adopted in Screnci, and one does that by rejecting the prosecutor's construction and adopting that for which we contend.

And it actually goes a bit further than this. On the prosecutor's construction, the use of different language in 13.41 and 2 is irrelevant, and the word, within, in 13.42 is wholly otiose. And while that is possible the Court strives very strongly against rendering parliamentary language otiose, and there is an obvious way to give it work, and that is to adopt the construction for which we contend.

61. Mr Herzfeld then addressed the Prosecutor's submission concerning differences in use of language (acknowledging that the point raised concerning the language in s 13.4 of the Biodiversity Conservation Act not being present in s 190 of the NPWS Act). He summarised this overall, submitting (Transcript, 11 October 2022, page 22, lines 9 to 15):

But nonetheless, the point remains that the word, within, if the prosecution's construction is adopted, is wholly otiose. These provisions would operate in exactly the same way on the prosecution's instruction if the words, "Within, but," were excluded. And it is a strong indication therefore that the construction is wrong, and what the word, within, there is doing is confining what the meaning would have been if it simply said, "May be commenced not later than two years after the date."

62. He next summarised the second basis upon which I should adopt the construction that had the relevant time period expiring at the commencement of the day upon which the offending conduct came to the attention of the authorised officer (being at midnight on the day prior to that day), submitting that the exception to the proposition of time running from the date of the offence by the relevant statutory provisions was an exception of “only limited ambit”. He submitted (Transcript, 11 October 2022, page 22, lines 26 to 34):

It's only to give the prosecutor two years from the time of the offence first from the time evidence of the offence first comes to knowledge of the relevant officer. That can occur at any time of the day, but on the prosecutor's construction, the whole of that day is excluded, and the prosecutor obtains the benefit of the whole of the corresponding day two years later, and that construction in fact gives the prosecution more than two years from the time knowledge comes to the authorised officer's knowledge. It gives them more than two years after that date.

63. Mr Herzfeld then gave an example (unnecessary to repeat) which, he submitted, demonstrated that the Prosecutor's interpretation would give a wider exception to the general rule by granting the remainder of the day upon which the evidence of the offending conduct came to the attention of the authorised officer by what amounted to an additional bonus (my words) not intended by the legislature. He proposed that the further time limit arose because (Transcript, 11 October 2022, page 22, lines 41 to 44):

… it's clear further that in imposing any time limit on the commencement of prosecutions at all, the legislature intended to encourage timely investigation of alleged offending, possible offending, and timely institution of proceedings.

64. He submitted that this approach was contrary to that intended by the legislature in giving a prosecutor additional time within which to commence proceedings and that the reliance on this was clearly contrary to the legislative intent.

65. It is appropriate, at this point, as it is relevant in my later consideration, to note the following exchange I had with Mr Herzfeld on this point (Transcript, 11 October 2022, page 23, lines 1 to 10):

HIS HONOUR: Well, on that proposition, even taking your interpretation of how it runs, if the two years runs as you say, and the prosecutor find the relevant authorised officer finds out at 10 o'clock in the morning, they still get the bonus of 10am that day to midnight that day, do they not?

HERZFELD: But it's still less than two years. It will be just less than two years. It won't be more. They'll get until midnight on the day just before the corresponding day, but it won't be more than two years, and so it coheres better with the confining operation of the word, "Within, but not later than two years." So that's the difference between the two.

66. The final, distinct point relied upon on behalf of the Company was that there was ambiguity in the provisions and that in Australia any such ambiguity was to be resolved in favour of an accused. He cited R v A2 in support of this proposition, noting that the Prosecutor in these proceedings did not submit that this was not the position. He observed that there were two reasons why the Prosecutor's submissions (that what was here engaged was not a penal provision) were not valid in the fashion advanced by the Prosecutor.

67. Mr Herzfeld submitted that there were two bases upon which I should accept that proposition. He turned, first, to the United Kingdom decision in Morgans v Director of Public Prosecutions [1999] 2 Cr App R 99 where, at 113, that Court had observed:

Section 11(2) is an exception to the normal rule that summary offences should be prosecuted within six months. As an exception in favour of the prosecution it should be strictly construed.

68. The written submissions for the Company relevantly concluded on the first point by saying, at paragraph 24, the following:

24.   Finally, having regard to the fact that these provisions provide an exception to the ordinary limitation period that operates in favour of the prosecutor, these provisions are particularly apt for the application of the modern approach to the construction of penal provisions.19 As Kiefel CJ and Keane J (with whom Nettle and Gordon JJ relevantly agreed) explained in R v A2:

A statutory offence provision is to be construed by reference to the ordinary rules of construction. The old rule, that statutes creating offences should be strictly construed, has lost much of its importance. It is nevertheless accepted that offence provisions may have serious consequences. This suggests the need for caution in accepting any “loose” construction of an offence provision. The language of a penal provision should not be unduly stretched or extended. Any real ambiguity as to meaning is to be resolved in favour of an accused. An ambiguity which calls for such resolution is, however, one which persists after the application of the ordinary rules of construction. [emphasis added]

If there remains doubt as to the meaning of these provisions, they should be construed favourably to the accused.

69. The second proposition advanced on behalf of the Company, that any ambiguity should be resolved in favour of a defendant, was that s 190 of the NPWS Act and s 13.4 of the Biodiversity Conservation Act were not simply procedural in nature. This was because an element requiring to be satisfied by the Prosecutor in each of these proceedings was that the validity of commencement of each of the proceedings was an essential element to be demonstrated before the Company could be convicted of any of the offences with which it had been charged. In this regard, Mr Herzfeld took me to the decision of Pepper J in Chief Executive of the Office of Environment and Heritage v Somerville [2019] NSWLEC 155 at [48] to [53], where her Honour said:

48 In response, Mr Somerville argued that because s 190 of the NPWA is a time bar contained in a penal provision it should be strictly construed (citing Scott v Cawsey [1907] HCA 80; (1907) 5 CLR 132 at 154-155 and Beckwith v The Queen [1976] HCA 55; (1976) 135 CLR 569 at 576). He therefore submitted that the proper construction of s 190(1) of the NPWA was that, by reason of the use of the disjunctive word “or” in s 190(1) of the NPWA, the two limbs of that provisions were in the alternative, thereby requiring a Prosecutor to elect which time period it relied upon. In respect of the possession offences, s 190(1)(a) of the NPWA was not available to OEH, it having made an election stipulated in paragraph 1(c) of the Summonses to rely on the time limit provided for in s 190(1)(b) (when read together with s 190(2)).

49   The ambit of the rule in Beckwith in the modern era of statutory construction was discussed by the Court in Secretary, Department of Planning and Environment v Leda Manorstead Pty Ltd (No 4) [2019] NSWLEC 58 (at [94]-[95], quoting from Chief Environmental Regulator of the Environment Protection Authority v The Forestry Corporation of New South Wales [2018] NSWLEC 10 at [49]-[53] per Robson J). In Leda the Court observed that the rule is “as the authorities above are at pains to emphasise, a rule of last resort” (at [97]).

50   More recently, Kiefel CJ and Keane J in The Queen v A2 [2019] HCA 35 stated that (at [52], referring to Beckwith at 576 and Waugh v Kippen [1986] HCA 12; (1986) 160 CLR 156 at 164, footnotes otherwise omitted):

52   A statutory offence provision is to be construed by reference to the ordinary rules of construction. The old rule, that statutes creating offences should be strictly construed, has lost much of its importance. It is nevertheless accepted that offence provisions may have serious consequences. This suggests the need for caution in accepting any "loose" construction of an offence provision. The language of a penal provision should not be unduly stretched or extended. Any real ambiguity as to meaning is to be resolved in favour of an accused. An ambiguity which calls for such resolution is, however, one which persists after the application of the ordinary rules of construction.

51   This is consistent with the decision in Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41; (2009) 239 CLR 27 at [57]).

52   The general principles to be applied when construing statutes were summarised in A2 as follows (at [32]-[37], footnotes omitted):

32   The method to be applied in construing a statute to ascertain the intended meaning of the words used is well settled. It commences with a consideration of the words of the provision itself, but it does not end there. A literal approach to construction, which requires the courts to obey the ordinary meaning or usage of the words of a provision, even if the result is improbable, has long been eschewed by this Court. It is now accepted that even words having an apparently clear ordinary or grammatical meaning may be ascribed a different legal meaning after the process of construction is complete. This is because consideration of the context for the provision may point to factors that tend against the ordinary usage of the words of the provision.

33   Consideration of the context for the provision is undertaken at the first stage of the process of construction. Context is to be understood in its widest sense. It includes surrounding statutory provisions, what may be drawn from other aspects of the statute and the statute as a whole. It extends to the mischief which it may be seen that the statute is intended to remedy. "Mischief" is an old expression. It may be understood to refer to a state of affairs which to date the law has not addressed. It is in that sense a defect in the law which is now sought to be remedied. The mischief may point most clearly to what it is that the statute seeks to achieve.

34   This is not to suggest that a very general purpose of a statute will necessarily provide much context for a particular provision or that the words of the provision should be lost sight of in the process of construction. These considerations were emphasised in the decisions of this Court upon which the Court of Criminal Appeal placed some weight.

35   The joint judgment in Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue rejected an approach which paid no regard to the words of the provision and sought to apply the general purpose of the statute, to raise revenue, to derive a very different meaning from that which could be drawn from the terms of the provision. The general purpose said nothing meaningful about the provision, the text of which clearly enough conveyed its intended operation. Similarly, in Saeed v Minister for Immigration and Citizenship the court below was held to have failed to consider the actual terms of the section. A general purpose of the statute, to address shortcomings identified in an earlier decision of this Court, was not as useful as the intention revealed by the terms of the statute itself. In Baini v The Queen, it was necessary to reiterate that the question of whether there had been a "substantial miscarriage of justice" within the meaning of the relevant provision required consideration of the text of the provision, not resort to paraphrases of the statutory language in extrinsic materials, other cases and different legislation.

36   These cases serve to remind that the text of a statute is important, for it contains the words being construed, and that a very general purpose may not detract from the meaning of those words. As always with statutory construction, much depends upon the terms of the particular statute and what may be drawn from the context for and purpose of the provision.

37   None of these cases suggest a return to a literal approach to construction. They do not suggest that the text should not be read in context and by reference to the mischief to which the provision is directed. They do not deny the possibility, adverted to in CIC Insurance Ltd v Bankstown Football Club Ltd, that in a particular case, "if the apparently plain words of a provision are read in the light of the mischief which the statute was designed to overcome and of the objects of the legislation, they may wear a very different appearance". When a literal meaning of words in a statute does not conform to the evident purpose or policy of the particular provision, it is entirely appropriate for the courts to depart from the literal meaning. A construction which promotes the purpose of a statute is to be preferred.

53 Having regard to the principles and authorities referred to above, there is, in my view, no warrant for construing s 190(1) of the NPWA as requiring a Prosecutor to make an election between the two time periods stipulated in that section. The plain and unambiguous wording of that provision permits the Prosecutor to rely on either or both time limits. A broader rather than narrower interpretation of s 190(1) of the NPWA accords with the purpose of the provision, which includes a recognition by the legislature that the commission of some of the offences created by that Act may not be immediately detectable and that additional time may therefore be needed to commence proceedings in order to uphold the aims of the Act. These aims include the objects expressly referred to in s 2A of the NPWA. For example, s 2A(1) of the NPWA states:

2A   Objects of Act

(1)   The objects of this Act are as follows:

(a)   the conservation of nature, including, but not limited to, the conservation of:

(i)   habitat, ecosystems and ecosystem processes, and

(ii)   biological diversity at the community, species and genetic levels, and

(iii)   landforms of significance, including geological features and processes, and

(iv)   landscapes and natural features of significance including wilderness and wild rivers, …

70. The submission advanced on behalf of the Company with respect to this element of her Honour's decision was (Transcript, 11 October 2000, page 24, lines 2 to 18):

If your Honour turns to para 48, her Honour set out the argument which was being made and the issue there was whether the prosecution had to make an election between the two limbs of s 190 or if it could rely on both limbs. Time running both from the date of alleged offending or date of discovery and it was argued that effectively an election should be required because that's a stricter construction and this is a penal provision and that should apply.

Her Honour did not say "This rule is inapplicable because s 190 isn't a penal provision." What her Honour did was to explain, in paras 49 and 50 by reference to A(2), the limit of that principal and then her Honour set out the ordinary principals of statutory interpretation and then in para 53 rejected the propounded election construction by reference to the purpose and words of the provision. So there's no room for the penal construction argument but her Honour did not in any way say "These are not penal provisions therefore I put that to one side." To the contrary, the reasoning proceeds on the premise that those principals do apply to cases such as this.

71. In conclusion on this element of submissions on behalf of the Company, Mr Herzfeld turned to what the Prosecutor had advanced in reliance on the decision of the Court of Criminal Appeal in Epacris Pty Limited v Director‑General, Department of Natural Resources (2007) 69 NSWLR 507; [2007] NSWCCA 76 (Epacris). Mr Herzfeld submitted that, in that case, the decision of the Court of Criminal Appeal did not stand for the proposition advanced by the Prosecutor. He said (Transcript, 11 October 2022, page 24, lines 22 to 28):

The short point is, in Apacris [Epacris] the Court simply recorded a common assumption of the parties and it was a common assumption which actually didn't depend on the last day because the prosecution had in any event been instituted the day before the last day. So your Honour doesn't get anything out of Apacris and I may say, unlike Truegain, it was expressly recorded as being a common assumption of the parties and not given any judicial imprimatur at all.

72. For all these reasons, Mr Herzfeld submitted that the relevant limitation period arising from each of the statutory provisions had expired at midnight on Friday 10 June 2022 and not midnight on Saturday 11 June 2022 and thus, if correct in adopting this position, the question of consideration of s 36(2) of the Interpretation Act did not arise.

The Prosecutor’s submissions in reply on the first issue

The anticipatory reply to the Company’s written submissions

73. The Prosecutor’s response to the Company’s written submissions on the first issue are set out in the transcript at page 11, line 12 to page 14, line 29. The Prosecutor addressed four points that were raised for the Company in the written submissions on its behalf. The Prosecutor’s submissions on each of these points is set out below.

74. First, with respect to the decision in Truegain, it was submitted that what was relied upon for the Company was not persuasive dicta but was a “throwaway line” (Transcript, 11 October 2022, page 11, line 6). The Prosecutor took me through the timing elements addressed in the decision in Truegain, culminating in the passage from the decision of Leeming JA (highlighted at [48] earlier in bold in the extract from [9] of the decision in Truegain). It is this element of Leeming JA’s judgment which the Prosecutor describes as a “throwaway line”. The Prosecutor submitted that there was no such matter in contention in Truegain (Transcript, 11 October 2022, page 11, lines 30 and 31).

75. The second matter to which the Prosecutor turned was the reliance, in footnote 11 of the Company’s written submissions, on the decision of Morton v Hampson (a decision of the Full Court of the Supreme Court of Victoria (Morton v Hampson [1962] VR 364)). The Prosecutor took me to a copy of that decision. After taking me to the headnote of the report of the decision (a headnote not necessary to be quoted), the Prosecutor next took me to the timing of the judgment from which the appeal was sought to be mounted. At page 365, line 25, the decision of the Full Court noted that the judgment below had been pronounced shortly before 6.00 pm on an identified date - Thursday 22 June. The question arising for determination by the Full Court was, here relevantly, whether or not the purported appeal had been commenced out of time. At page 365, line 51, the Full Court said:

There is, in our opinion, no doubt that the notice was served out of time. The modern rule in relation to a period of time fixed by statute “within” which an act is to be done after a specified event is that the day of the event is to be excluded; the next day is the first day of the stipulated period and the time expires on the last day of that period, counting from and of course including the first day (then citing Lester v Garland and other authority).

76. The Full Court concluded:

Therefore, the first day of the 14 day period was Friday, 23 June, and the fourteenth (and last) was Thursday 6 July.

77. As the appeal in those proceedings had purported to be commenced on 7 July, the Full Court held that they were out of time.

78. With respect to the outcome in Morton v Hampson, the Prosecutor submitted (Transcript, 11 October 2022, page 12, lines 9 to 14):

This is a longstanding rule of the common law which our friends seek to oust. While it may be accepted that the common law rule is the rule of ordinary application which can be ousted if the circumstances of the particular statute so require, there is no indication in the provisions at issue that there was any intention to oust that ordinary common law rule of construction. Quite the contrary. The words are "After the date that the offence came to notice".

79. The third matter addressed by the Prosecutor in response to the Company’s first issue was the submission that there was a distinction to be drawn between ss 13.4(1) and 13.4(2) of the Biodiversity Conservation Act. The Prosecutor noted the difference between the two provisions, saying, on an examination of s 13.4(1), a reader (Transcript, 11 October 2022, page 12, lines 27 to 31) would:

… see that where time pivots around the date the offence was committed, the limitation is expressed as "may be commenced not later than two years after". So the word "within" is missing. If your Honour then goes to 13.4(2), this one pivoting around where notice of the offence came to the authorised officer's attention, your Honour will see that the word "within" is included. The defendants seek to make some point about this difference. We say there is no point to be made, and it is a distinction without a difference.

80. The Prosecutor submitted, as can be seen at the conclusion of the above extract, that this amounted to “a distinction without a difference”. In this regard, the Prosecutor addressed the reliance for the Company on the decision in Screnci. The Prosecutor noted that this was also an environmental prosecution case, one arising under the Environmental Planning and Assessment Act 1979 (the EPA Act). The Prosecutor addressed the terms of s 127 of the EPA Act, particularly subs (5), submitting that this established that the limitation period imposed by that subsection for a continuing offence, as was there the case, required to be calculated from the date upon which the offence was complete (Transcript, 11 October 2022, page 13, lines 7 to 14).

81. The Prosecutor next submitted that Screnci was entirely consistent with the position advanced by the Prosecutor. However, in the context of the position that subs (5) did not contain the word “within”, the Prosecutor then turned to address the decision of Pepper J in Chief Executive, Office of Environment and Heritage v Geoffrey Phillip Manchee; Chief Executive, Office of Environment and Heritage v Bogamildi Investments Pty Ltd [2015] NSWLEC 117 (Manchee) as it had been relied upon in Screnci by Craig J as part of his reasoning process.

82. The Prosecutor pointed out that, relevantly, in Pepper J’s decision, she had noted (at [15]) the fact that the prosecutor, in those proceedings, had advised the defendants that, for the purposes of calculating the limitation period, the originally particularised provision of the (then applicable) Native Vegetation Act 2003 was not relied upon, but a different subsection of the same provision (being the relevant provision then applicable relating to the commencement of prosecutions) was substituted. The prosecution in Manchee was also one for a continuing offence. Pepper J observed, at [34]:

As it submitted, in the present proceedings it was sufficient for the prosecutor to allege a continuing offence, the constituent acts of which commenced on 16 December 2008 and continued up to 10 January 2013. This meant that the offence was not complete until 10 January 2013, well inside the two year limitation period.

83. At [44], her Honour observed that the limitation period is calculated “from the date on which the offence was completed”. Her Honour then proceeded to set out a number of decisions which she considered were relevantly necessary to support the process by which she should calculate the end date of the period within which the Summonses required to be filed in order validly to commence the proceedings against the defendants with whom she was then dealing. Her Honour said, at [49]:

Applying these authorities to the present facts, the limitation period began to run on 11 January 2013. Therefore, provided the Summonses were filed within two years of that date, which they were, no part of the continuing offences with which Bogamildi and Mr Manchee have been charged are statute barred. That reasoning reinforced, as I understood the Prosecutor’s submissions that Screnci and Manchee, when properly understood, both supported the Prosecutor’s position that the difference in language between ss 13.4(1) and 13.4(2) was, as earlier noted in this summary, a “distinction without a difference”.

84. The fourth and final matter in this element of the Prosecutor's submissions in reply addressed the question of whether what was said to be ambiguous in the submissions on behalf of the Company was a penal provision. Having submitted that the time calculation provisions in the NPWS Act and the Biodiversity Conservation Act were not penal provisions, the Prosecutor also submitted that, whatever their status, there was no ambiguity in either of those provisions.

85. The reply by the Prosecutor can be understood from the Prosecutor's oral submissions, where she said (Transcript, 11 October 2022, page 14, lines 6 to 29):

PROSECUTOR: What the defendant is relying upon here is a principle that certainly isn't quite as strong as it once would that penal provisions should be strictly construed against a prosecutor in the event of ambiguity. So there's that trigger in the event of ambiguity. We say that trigger has not been pulled in this case. There is no ambiguity so there is no moment for that principle of construction to apply however we say there is another reason why that principle does not apply. That principle applies only when you are construing a penal provision.

That is, a provision which creates an offence and the limitation period is not a penal provision and that may be made good simply by looking at the extract from Queen v A2 which is quoted in the defendant's submissions at para 24. Your Honour will see that the joint judgment of Kiefel CJ and Keane J commences a statutory offence provision. Now a limitation period is not a statutory offence provision, and then in the third line their Honours - the Chief Justice and Keane J said, "It is nevertheless accepted that offence provisions" - again a limitation period is not an offence provision so we say the beneficial construction rule that pivots around penal provisions is not triggered here because this is not a penal provision.

It's a limitation period, but in any event even if it was the trigger for its application has not been pulled because there is no ambiguity in s 190 of the National Parks and Wildlife Act or s 13(4) of the Biodiversity Conservation Act. The word "after the date" must be given its effect.

The Prosecutor’s reply to the Company’s oral submissions

86. The Prosecutor’s oral submissions in reply concerning the first issue were brief. It is sufficient to reproduce them in their entirety. They were in the following terms (Transcript, 11 October 2022, page 32, line 39 to page 33, line 18):

Moving to the first question, what is notable in the defendants submissions is that the word "after" which appears in both s 190 of the National Parks and Wildlife Act and s 13.4 of the Biodiversity Conservation Act has been completely ignored. The defendant poses this - the defendant says on the ordinary meaning of those two provisions, both constructions are available.

The first construction being one that excludes the date the matter came to the attention of the authorised officer. The second construction being to include the date. Those constructions are not both open, your Honour, because the statute says "after the date". So, that's the first point, that meaning, the ordinary meaning of the word "after" should be given effect.

I go to my next point. Your Honour did ask a question about whether the extrinsic materials assist in any way. The highest we can put it is if I take your Honour to the prosecutor's submissions at para 21. Your Honour, really only to note the way that s 190 was construed. If your Honour notes the way the explanatory note says that the proceeding may be commenced within, but then in brackets, "but not later than two years after". Your Honour, I've said in my submissions in chief, that what was really going on here was there were two ways to skin the cat. Two different expression were being used to achieve the same purpose.

The use of two different expressions to achieve the same purpose is not something that has no effect; they're not words that don't have work to do. The work being done is to make it abundantly clear that an approach must be taken to these statutes where the starting day is the day after the matter came to the attention of the authorised officer. So, that's my third submission your Honour, these words, and the word "within" does have work to do; it is reinforcing the proper approach to the construction of these matters.

The second issue - the extension of time for commencing the prosecutions

The Prosecutor’s submissions on the second issue

87. The Prosecutor addressed the second issue pressed on behalf the Company that the relevant enactment pursuant to which the prosecutions have been commenced should, in each instance, be understood to have ousted the operation of the Interpretation Act on the question of the running of time and, hence, any possibility of any extension of that time.

88. The Prosecutor addressed the question of whether s 194 of the NPWS Act had the effect of ousting s 36 of the Interpretation Act. She commenced her submissions, saying (Transcript, 11 October 2022, page 14, lines 43 to 47):

We say it is firstly notable that every jurisdiction in Australia has adopted the approach set out in s 36(2) of the Interpretation Act, "When a specified date falls on a weekend or public holiday the date extends to the next working day," and parliamentary drafters must be taken to be aware of that rule when they are drafting legislation here.

89. The Prosecutor then took me to the decision of the Tasmanian Supreme Court in Wignalls Smallgoods, commencing with the judgment of Crawford J, making the following submission with respect to that judge’s analysis of how the extension of time provision operates. The Prosecutor submitted (Transcript, 11 October 2022, page 15, lines 26 to 33):

It is patently … month limitation period," and that's the case in the legislation that we're looking at, your Honour. Ordinarily the limitation period for a summary offence is six months and so what we've seen is an extension to two years for these particular statutes so the ordinary rule is being displaced and, your Honour, Crawford Js judgment is in fairly strong terms. He talks about the "absurdity" of the construction urged which was to the effect that the Interpretation Act was excluded and his Honour concludes, "To exclude the operation of the general interpretive provision for no good reason makes no sense at all."

90. The Prosecutor then turned to the judgment of Slicer J in Wignalls Smallgoods, pointing to the fact that the observation was made that the provision being considered was common to every Australian jurisdiction. The Prosecutor pointed to his Honour's quotation, in [12], of Pearce’s Statutory Interpretation in Australia, submitting (Transcript, 11 October 2022, page 15, lines 39 to 45:

PROSECUTOR: And then if I could take your Honour to para 12 Slicer J makes the very point that every jurisdiction in Australia has passed an Interpretation Act in these terms and midway down that paragraph, "As Pearce observes in Statutory Interpretation in Australia, a draftsman of legislation will assume a knowledge of these Acts." And 13, "Interpretation provisions in those Acts apply unless the contrary interpretation appears," and at para 15, "It is said…contemplated by Parliament."

91. The Prosecutor also referred to the fact that Slicer J had observed (at [19]) that this approach was to be taken despite the fact that the enactment there being considered was penal in nature.

92. Although the Prosecutor did not take me to the detail of the decision of the Queensland Full Court in Price, this was because I had already indicated my familiarity with that decision.

93. After noting that these were two intermediate appellate court decisions which were directly on point and which I was bound to follow, the Prosecutor said there was also a general principle of statutory construction which inevitably, in the Prosecutor's submission, led to the same conclusion. On this point, the Prosecutor took me to the decision of the High Court in Attorney-General (Cth) v Oates (1999) 198 CLR 162; [1999] HCA 35 (Oates). In essence, the Prosecutor submitted that what was to be taken from this decision was that provisions (such as s 36(2) of the Interpretation Act here requiring consideration) were facultative ones - relying on [34] of the decision of the Court, a paragraph which incorporated the sentence:

… not surprising that a facultative provision like s 34 or s 1316 was included in the relevant legislation and it is not surprising that each took the form that it did when it was intended to operate against a very diverse legislative backgrounds.

94. The Prosecutor concluded her submissions on this point, saying (Transcript, 11 October 2022, page 17, lines 43 to 46):

Section 194 and s 13.4(4) are facultative, they make it clear that the longer limitation period applies to the exclusion of the shorter one, they do not operate to oust the principle of interpretation which we find in every Australian jurisdiction and which in New South Wales is in s 36(2).

The Company’s submissions on the second issue

95. Mr Herzfeld addressed why, on the Company's position, s 5(2) of the Interpretation Act operated to prevent s 36(2) of that Act having the effect of extending the time for commencement of the prosecutions until after the public holiday on Monday 13 February 2022. He commenced by drawing attention to the terms of s 5(2), a provision which made it clear that any of the subsequent use of that Act (including the facultative provision in s 36(2)) was subject to any contrary intention in the legislation requiring consideration. In this context, he took me to s 13.4(4) of the Biodiversity Conservation Act, a subsection in the following terms:

13.4   Time within which proceedings may be commenced

(1)   ...

(2)   ...

(3)   ...

(4)   This section applies despite anything in the Criminal Procedure Act 1986 or any other Act.

(5)   ...

96. He noted that an identical provision appeared in s 190(4) of the NPWS Act. Mr Herzfeld's short submission, with respect to s 13.4(4) of the Biodiversity Conservation Act and s 190(4) of the NPWS Act, was that, for the purposes of each of these provisions, “… just reading it [the relevant subsection in each Act] simply, the Interpretation Act is any other act, and this section applies despite anything in that act. That's it.” (Transcript, 11 October 2022, page 25, lines 48 and 49).

97. The written submissions for the Company also addressed this point, saying, in paragraphs 31 and 32 (footnoted citations omitted):

31. In this regard, both s 190(3) of the former and s 13.4(4) of the latter provide that the relevant section “applies despite anything in the Criminal Procedure Act 1986 or any other Act”. The reference to “any other Act” means all other Acts. There is no textual or contextual reason to read down the reference to “any other Act” so that it excludes the Interpretation Act. Parliament did not have to say “any other Act including the Interpretation Act” to make its intention clear (cf PS [26]). As the High Court has said, “[t]he language which has actually been employed in the text of legislation is the surest guide to legislative intention”. The words “should be approached on the basis that Parliament said what it meant and meant what it said”.

32. The construction of the phrase “any other Act” as including the Interpretation Act is consistent with the modern approach to penal provisions set out in the passage from A2 quoted above. To the extent that there is any ambiguity as to whether “any other Act” really does mean “any other Act”, that ambiguity should be resolved in favour of the defendant.

98. In this context, he submitted that that any ambiguity (if one existed) should be resolved in favour of any defendant. However, he submitted that there was no such ambiguity. In this context, Mr Herzfeld relied on the passage in the judgment in R v A2 from paragraph 24 of the Company’s written submissions (earlier reproduced at [68]).

99. He submitted that the Prosecutor could have avoided the problem with which it had been placed in these various proceedings by commencing each of them in a relevantly timely fashion, rather than leaving commencing the proceedings until the very last moment if that very last moment happens to fall on a weekend (Transcript, 11 October 2022, page 26, lines 4 to 8).

100. Mr Herzfeld next continued to explain how he submitted these provisions should be understood (Transcript, 11 October 2022, page 26, line 34 to page 27, line 5):

First, there seems to be a contention that the word "despite" necessarily means that these provisions are facultative rather than restrictive, and therefore add something rather than take something away. Now that is simply wrong. The word "despite" in a provision like this, simply means that it operates notwithstanding other provisions. It prevails over other provisions. The word makes it clear, that this is the leading provision. But whether it operates to expand other provisions, ought to contract or cut down other provisions, depends on its content. And so to give an example, if these limitation provisions provided for a shorter period than that specified ordinarily in the Criminal Procedure Act, then the word "despite" would make it clear that these provisions cut down the length of the limitation period.

Whether "despite" is expansive or contracting, depends not on the word "despite" but depends on what you put after it. And it can have different functions, depending on what's displaced. And so here, it's clear. That insofar as this provision expands the limitation period applicable for summary offences, the word "despite" is expansive. It does, it extends the limitation period. But that doesn't mean that that's the entirety of its operation, because what goes on, is it says it applies despite anything in any other act. And that might, as we say it does, cut down the operation of other acts, because they are expressly displaced. There's no magic to the word "despite" which operates, so as to compel an expansive or a cutting down construction.

101. Mr Herzfeld next responded to the submissions made on behalf of the Prosecutor concerning Oates, proposing that (Transcript, 11 October 2022, page 27, lines 12 to 23):

HERZFELD: The reason that this provision was expansive, was because it provided for a limitation period that operated in a federal space, despite any other provision of any of the alternative individual state regimes that might have applied. If your Honour turns to para 34, that's the point being made, that the state laws were not uniform. Some states maintained distinctions between felonies, some did not. And that's why there was a provision put in to the Corporations Law, which was said to apply despite any other law. It couldn't just specify a particular limitations act, because it was intended to apply uniformly throughout Australia despite any other of the various multitude of limitations provisions that were applicable. It was cutting through that swathe of complicated, tangled provisions. And that's why that provision was described in the way that it was.

102. He then submitted that the use of the word “despite”, in the circumstances discussed by the High Court in Oates, was in a significantly different context to that here engaged, this arising because of the complex and differing limitation periods in the various state and territory statutes sought to be covered by the provision there dealt with.

103. The next matter which Mr Herzfeld addressed was the fact that, at this point in the hearing, the Prosecutor had not pointed to any other enactment which would also be ousted by the provision in addition to ousting the provisions of the Criminal Procedure Act. He submitted (Transcript, 11 October 2022, page 27, lines 42 to 45):

… so if Parliament were aiming at displacing, if it were only aiming at displacing contrary limitation periods, it would have been sufficient for the provision to say, "This provision applies despite anything in the Criminal Procedure Act." It doesn't. It's gone on to say, "In any other act."

104. Continuing from the above passage, Mr Herzfeld submitted (concluding at the end of line 19 on page 28):

Even if it were thought that Parliament was guarding against the possibility of a limitation period being specified in some other act, or the Criminal Procedure Act being amended and retitled, it would have been sufficient for Parliament to say, "This provision applies despite anything in the Criminal Procedure Act, or any other act, which limits the time within which proceedings for an offence may be commenced." Or, it would have been sufficient for Parliament to say, "This provision applies despite any limitation period in the Criminal Procedure Act or any other act." But Parliament didn't do that at all. It said, "This provision applies despite anything." Not despite any limitation periods, despite anything in the Criminal Procedure Act or any other act.

There is simply no warrant in the words, or any extrinsic material to which the prosecution has pointed, to cut down the generality of the words "anything" and "any other act". Ms Sharp relies on the proposition that, because the interpretation acts are general and well-known provisions, draftsmen are taken to have knowledge of them. But if that is so, it rather reinforces our point. There was no carve out to this provision for the Interpretation Acts. It's perfectly general language which was used, and the draftsperson must be taken to have known of the Interpretation Acts and that these perfectly general words would displace those general provisions. And so far from assisting the prosecution, the proposition that Interpretation Acts are generally known provisions of which the draftsperson is taken to be aware, in fact harms the prosecution's attempt to narrow this general language.

105. Mr Herzfeld next turned to the decisions in Wignalls Smallgoods and Price, making four points as to why he submitted these were not to be taken into account in the present proceedings. The first two of these points were:

1. First, neither of those decisions was binding on me; and

2. Second, it would be a fundamental error of principle for me to have regard to those decisions on the basis that I should follow them unless I was persuaded that they were plainly wrong.

106. He said, on this point (Transcript, 11 October 2022, page 28, lines 27 to 29):

It would be a fundamental error of principle to do that, because neither concerned national uniform legislation or the common law. The fact that the Interpretation Act provisions are nationally uniform, is not to the point.

107. He later continued, on this point, addressing the principle in Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89; [2007] HCA 22 (Farah), saying it did not apply because (Transcript, 11 October 2022, page 28, lines 38 to 45):

… one is not dealing with national uniform legislation, this principal [principle] in Farah doesn't apply, and what I mean by that is one's not construing the Interpretation Acts, one is construing these particular pieces of New South Wales legislation to see whether they displace the Interpretation Act.

So, the uniformity of the Interpretation Act doesn't get the prosecution anywhere.

108. Mr Herzfeld next took me to the decision of the High Court in Walker Corporation Pty Limited v Sydney Harbour Foreshore Authority (2008) 233 CLR 259; [2008] HCA 5 (Walker Corporation) where observations made by McHugh J in Marshall v Director-General, Department of Transport (2001) 205 CLR 603; [2001] HCA 37 (Marshall) were quoted with approval at [31].

109. The passage from McHugh J in Marshall was, Mr Herzfeld submitted, one which significantly qualified, as I understood his submission, any obligation to follow the decision of an intermediate appellate court from another jurisdiction under such circumstances (as is here the position with respect to the Tasmanian and Queensland decisions upon which the Prosecutor relies). Although those decisions are required to be considered by me, there is no obligation placed upon me to follow them, he submitted.

110. He said (Transcript, 11 October 2022, page 29, lines 10 to 17):

HERZFELD: And so, when one is outside the territory of federal legislation, national uniform legislation, or the common law, there is no principal which applies, including by analogy, that a first instance Court in this state should follow, unless persuaded it is plainly wrong, an intermediary appellant decision even on similarly worded legislation. In fact, this passage is precisely to the contrary. Those decisions may be guides, but whether they are depends on the intrinsic persuasiveness of the reasons and also things like differences in language, difference in context.

111. Mr Herzfeld next turned to the Queensland decision in Price, pointing first to the fact that the provision there being interpreted was not one involving a penal decision, as was submitted for the Company was here the case. Second, he submitted that the language of the Queensland provision differed from that here in the Interpretation Act and it did it purport to oust any other act or law. He submitted that this decision plainly involved quite different considerations from the one with which I was dealing.

112. Next, he turned to the Tasmanian decision in Wignalls Smallgoods. Although he acknowledged that the provision there being considered was what the Company submitted was a provision in a penal statute, the language used was in terms which differed from that here in the Interpretation Act.

113. He summed up the position advanced for the Company concerning these cases, saying (Transcript, 11 October 2022, page 30, lines 6 to 9):

… your Honour can't simply slavishly follow, as picking up the language in Walker, these provisions, your Honour has to decide whether the reasoning in these provisions is intrinsically persuasive and applicable to the provisions with which your Honour is concerned.

114. He then repeated his reference to Leeming JA’s comment in Truegain and also observed that, as a consequence of the brevity of the references to the provisions in Price and in Wignalls Smallgoods, I should have regard to what he described as the “really perfunctory nature of the reasoning” in those cases.

115. Mr Herzfeld next referred me to the dissenting judgment of Carter J in Price, where his Honour said, at 281 (after setting out the opening words of the relevant section - “notwithstanding any other Act or law or rule of law”):

It was submitted for the appellant that the opening words of s.11 did not apply so as to exclude the operation of the Acts Interpretation Act. It was submitted that the opening words had only limited application to s.11 and referred only to any Act or law will rule of law which fixed a period or periods of limitation. There is nothing in the words themselves or in the body of s.11 which justifies such constraint upon the wide language used. Rather it seems to me that the legislative intent which is apparent from all of the plain language used in s.11 is an express and decisive intention that an action of the kind in question “shall” not be brought after the relevant period has expired irrespective of the content of any other Act or law or rule of law. The Acts Interpretation Act antedated the enactment of s.11 in the 1974 Limitation Act and, in my view, there is no reason for not giving full effect to the opening words of s.11.

116. With respect to the above passage from the judgment of Carter J, Mr Herzfeld submitted that his Honour had simply applied the ordinary meaning of the words and that there is nothing in them to cut those words down. He continued (Transcript, 11 October 2022, page 30, lines 34 to 37):

And what has really happened with respect in the reasons of the other members of the Courts, is that they each made an a priori assumption as to the purpose of these provisions before considering their terms and then narrowed the terms to fit the a priori assumption.

117. He proposed that this disclosed that the majority in Price had made a fundamental error in the appropriate approach to statutory construction. He continued (Transcript, 11 October 2022, page 30, lines 41 to 45):

The proper approach in identifying the purpose of the provisions is something that emerges from the text read in context. And here the text provides no foundation to say that these provisions are only about displacing a limitation period, and in fact the use of the word "Anything" and any other Acts in addition to the Criminal Procedure Act is strong evidence to the contrary.

118. The final point, Mr Herzfeld made concerning the decisions in Price and Wignalls Smallgoods was that even if those decisions were correct in their own contexts, they are distinguishable for each of the reasons to which he had already taken me.

119. For completeness, I note that Mr Herzfeld concluded his oral submissions by referring me to a number of notes in the Biodiversity Conservation Act and the NPWS Act. Whilst conceding that these notes did not form part of either enactment, he proposed that they were potentially otherwise relevant extrinsic material capable of being considered in my interpretation of these two enactments. Given the conclusions I have reached concerning the outcome of these proceedings, it is not necessary to set out further any of that material.

The Prosecutor’s submissions in reply

120. The Prosecutor's oral submissions in reply on the second issue were also commendably brief. It is also appropriate to reproduce them in full (Transcript, 11 October 2022, page 33, lines 20 to 45):

My learned friend made the submission in relation to the word "despite", that it doesn’t always mean that an expansive view should be taken, and it depends on the content of the provision. What my learned friend failed to do is articulate why, in view of the content, an expansive approach ought not be taken. It is clear that s 190 of the National Parks and Wildlife Act and s 13.4 of the Biodiversity Conservation Act are concerned with limitation periods. That is their function. With those limitations, what those provisions do is change the rule. The ordinary rule is there's a six month limitation period. So, in that particular statutory context, what the word "despite" does is expand.

Our learned friend also said that the prosecutor has not identified any general limitation period other than that found in the Criminal Procedure Act. With respect, that's not the case. We also relied in our written submissions, and I rely now, on s 27 of the Children (Criminal Proceedings) Act 1987 which also specifies a limitation period. What it does, by way of specification, is pick up the ordinary limitation period in the Criminal Procedure Act.

The last point we make is that your Honour can gain some comfort from the recent High Court case about what approach a court should take to the intermediate appellant court decisions when looking at national legislation. Because, there is the same statute in every jurisdiction which is performing exactly the same function; which is to say, that if a date for something falls due on a weekend or public holiday, there is a simple way for resolving that problem. That simple way is to extend the time for filing to the next business day. That is the national effect of all of those statutes.

Consideration of the issues

Introduction

121. It is convenient to commence by noting the fundamental basis upon which the Prosecutor resists the interpretations advanced for the Company as to what statute the limiting dates for the commencement of each of the prosecutions against the Company (it not mattering which of the charge-founding provisions was engaged for the relevant offence).

122. The first point of differentiation is, as a matter of construction, how the words “in, but not later than, two years after the date on which the evidence of the alleged offence came to the notice of the authorised officer” are to be construed. The competing positions as to how these words are to be understood defines the first element of the contest between the Prosecutor and the Company.

123. The second proposition is how the words in s 190(4) of the NPWS Act are to be understood. It is appropriate to reproduce at this point this subsection. It is in the following terms:

190   Time within which proceedings may be commenced

(1)   …

(2)   …

(3)   This section applies despite anything in the Criminal Procedure Act 1986 or any other Act.

(4)   …

124. It is to be noted that an identical provision appears in s 13.4(4) of the Biodiversity Conservation Act.

125. The position advanced for the Company is that each of these identical provisions has the effect of setting aside s 36(2) of the Interpretation Act, thus rendering its facultative provisions inapplicable in the present circumstances.

The first issue

Consideration

126. The Company responded to a submission advanced by the Prosecutor concerning the Court of Criminal Appeal in Epacris, with the Company’s submissions saying, at paragraph 26:

26.   Contrary to PS [17], the Court of Criminal Appeal “held” nothing inconsistent with the defendant’s position in Epacris Pty Ltd v Director-General, Department of Natural Resources. As the Court of Criminal Appeal made clear, the position as to the expiry of the limitation in that case was “common ground” and thus neither in issue nor argued. A matter not in issue and not argued does not bind this Court; and in the absence of any reasoning by the Court of Criminal Appeal, the statement of “common ground” is of no persuasive value as dicta (unlike the dicta in Truegain, which was a conclusion independently arrived at by the Court). For the reasons above, in circumstances where time began to run on 10 December 2003, that date was included in the two year period at issue in that case and the limitation period in fact expired at the end of the day on 9 December 2005, not 10 December 2005 as was common ground. In any event, since the Summons in that case was filed on 9 December 2005, it was within time on any view; that is a further reason the decision provides no support to the prosecutor here. Indeed, the case is contrary to the prosecutor’s position concerning s 36(2) of the Interpretation Act: 10 December 2005 was a Saturday yet there was no suggestion that, as a result, the limitation period was extended to the following Monday 13 December 2005.

127. Although the above submission seeks to make a substantive distinction between Epacris and the observation by Leeming JA in Truegain, I am satisfied that this is a difference without a valid distinction.

128. I have reached this conclusion because, read in its proper context, the observation by Leeming JA in Truegain did not arise in circumstances where there was any argument (let alone substantive argument) in the Court of Criminal Appeal concerning matters of substantive interpretation as are here engaged for my resolution. In this context (whilst it is, perhaps, inappropriately dismissive to describe Leeming JA’s remark as a “throwaway line”), I am, nonetheless, not satisfied that it should be regarded as “persuasive dicta” and given the weight proposed by Mr Herzfeld to be ascribed to it in the present circumstances.

129. As a general proposition, what was earlier set out in the extract from R v A2 (at paragraph 24 of the submissions on behalf of the Company) is binding on me for interpreting penal provisions. I am not persuaded that s 190 of the NPWS Act or s 13.4 of the Biodiversity Conservation Act should be regarded as “penal provisions” in the fashion submitted on behalf of the Company.

130. On the contrary, I am satisfied that the approach advanced by the Prosecutor, namely, that these provisions are to be regarded as procedural or administrative ones, is the correct approach for the reasons advanced by the Prosecutor. Taking that position, it is clear that the application of the general rule has devolved from Lester v Garland and, addressed by Diplock LJ in Dodds v Walker, is the correct approach to be adopted.

131. On this basis, the expiry of the time period within which knowledge of Company’s alleged offending conduct was able to come to the attention of the relevant authorised officer for the purposes of validly founding commencement of prosecutions (subject to further consideration of the second issue in dispute between the parties to these proceedings) was midnight on 11 June 2022 rather than midnight on 10 June 2022.

132. For this reason, the first basis upon which the Company seeks to challenge the commencement of each of these prosecutions against it must necessarily fail.

The statutory fallback on the first issue

133. I have set out, at [15] to [17], the position taken by the Prosecutor of non‑reliance on s 36(1) of the Interpretation Act as a foundational statutory response to the first element of the challenge mounted on behalf of the Company. For the reasons explained above, I am satisfied that the common law basis upon which the Prosecutor relies to demonstrate that the time for the time within which the prosecution was needed to be commenced started to run from midnight on 11 June 2020, not 10 June 2020 as proposed for the Company.

134. In this context, against the possibility that this common law‑founded conclusion is incorrect, it is appropriate that I note that, had I needed to do so, I would have concluded that s 36(1) of the Interpretation Act operated to the same effect.

135. It is unnecessary, under the circumstances, to set out any reasoning in support of this conclusion. However, it is sufficient to observe that, whatever might be the intellectual disposition of the Prosecutor to set it aside, the terms of a relevant parliamentary enactment cannot simply be ignored if, as might arise here, they are otherwise applicable.

The second issue

136. This second issue can be dealt with in comparatively short compass.

137. Although the submissions advanced by Mr Herzfeld are, to a degree, seductively attractive, to succumb to them would be, I am persuaded, “courageous” in the sense that Sir Humphrey Appleby uses that word in the great British political satire penned by Johnathon Lyn and Antony Jay.

138. I have earlier set out, at [9], the names of, and the relevant provisions in, each of the corresponding interpretation enactments for the Commonwealth and each state and territory. Although s 36(2) of the Interpretation Act in this jurisdiction is not replicated in identical terms in the wording of the various counterpart provisions in each of the other jurisdictions, the operative effect of each of those equivalent provisions is the same.

139. At [19], I have set out [25] and [26] of the recent decision of the High Court in Hill v Zuda. This decision makes it expressly clear (reinforcing the earlier decision of the High Court in Farah) that, in circumstances where there is equivalent national legislation (here to effect, if not in precise drafting) and there are relevant, clear decisions of intermediate appellate courts as to how such legislation is to be interpreted, I am mandated to follow those decisions.

140. Having explained the above broad conclusion, it is appropriate that I also addressed the submission that Mr Herzfeld made concerning the extract from the decision of McHugh J in Marshall, as cited in Walker Corporation.

141. The proposition about the appropriate approach to the application of decisions of intermediate appellate courts, as discussed by McHugh J, arose in the context of the expression "injuriously affecting" - a term which involves assessment of facts and circumstances in a qualitative and evaluative fashion. In such circumstances, interpretation and application of such an assessment criterion may well have evolved differently over time in different jurisdictions. The care necessary in having regard to the approach taken by an intermediate appellate court which is not the court of the home jurisdiction of the decision‑maker is to be understood in that context.

142. That is not the position in these proceedings. The provision of the Interpretation Act here involved is one of mathematical calculation, one involving no evaluative assessments. In such circumstances, whilst not cavilling with the correctness of the proposition derived from McHugh J’s observation when matters of statutory interpretation involve evaluative assessment, I am satisfied that that is not here applicable, as such an assessment is not involved.

143. As I observed in the introductory portion of this decision, there are unambiguous decisions of two intermediate appellate courts (the Full Court of the Supreme Court of Tasmania in Wignalls Smallgoods and the Court of Appeal in Queensland in Price) that have expressly rejected, in those two jurisdictions, the proposition here advanced for the Company by Mr Herzfeld that the effect of s 36(2) of the Interpretation Act in this jurisdiction is ousted by statutory provisions of the nature of s 190(3) of the NPWS Act or s 13.4(4) of the Biodiversity Conservation Act.

144. As the Prosecutor observed (Transcript, 11 October 2022, page 33, lines 31 to 36), in addition to the Criminal Procedure Act, there is one other statute (the Children (Criminal Proceedings) Act 1987) encompassed by the catch‑all words “or any other Act” of the two provisions here being considered so that, in a purposive fashion, those words can be seen to have had some legitimate work to do.

145. That legitimate work, however, cannot, for the above reason, effect the ousting of the facultative benefit of s 36(2) of the Interpretation Act. It therefore follows that the second issue pressed on behalf of the Company also fails.

Orders

146. It follows from the foregoing that, in each of Matter Nos 173269 to 173288 of 2022, the orders of the Court are:

1. The Defendant’s Notice of Motion is dismissed; and

2. Costs are reserved.

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Decision last updated: 02 February 2023