Stephen Ronald Kirkwood v Sheryl Vardon No. SCGRG863 of 1992 Judgment No. 3683 Number of Pages 4 Statutes Interpretation

[1992] SASC 3683

COURT IN THE SUPREME COURT OF SOUTH AUSTRALIA PRIOR J

CWDS
Statutes - interpretation - Commercial Tribunal found cause for disciplinary action against appellant (a builder) and disqualified him from holding a licence or registration 'for a period of ten years and thereafter until further order' - Construction of Tribunal's powers under 519(6) of BuildersLicensing Act 1986 - Powers to disqualify expressed in the alternative. Held: Order made by Commercial Tribunal beyond power - 'Or' is read disjunctively unless to do so would create an absurdity. Builders' Licensing Act 1986 519. Ormerod V Blaslov (1989) 52 SASR 263; Re: The Licensing Ordinance (1986) 13 FLR 143; BP Australia Ltd And Food Plus Pty Ltd V State Of South Australia
(1982) 31 SASR 178 and Federal Steam Navigation (1974) 1 WLR 505, applied.

HRNG ADELAIDE, 15 October 1992 #DATE 15:10:1992
Counsel for appellant:        Mr G.D. Coppola
Solicitors for appellant:     Kelly and Co
Counsel for respondent:     Mr A.D. Wainwright
Solicitors for respondent:    Director of Public Prosecutions

ORDER
Appeal allowed.

JUDGE1 PRIOR J The Acting Commissioner for Consumer Affairs had lodged a complaint against the appellant. Pursuant to s19(11)(c)(iii) of the Builders' Licensing Act 1986, the Tribunal found that there was cause for disciplinary action against the appellant. It ordered that his licence as a builder and registration as a building work supervisor be cancelled forthwith, the appellant being "disqualified from holding a licence or registration under the Builders' Licensing Act for a period of ten years and thereafter until further order". 2. S19(6) of the Builders' Licensing Act 1986 provides:-
    "If, after conducting an inquiry under this section, the
    Tribunal is satisfied that proper cause exists for disciplinary
    action, the Tribunal may exercise one or more of the following
    powers:
     (a) it may reprimand the respondent;
     (b) it may impose a fine not exceeding $5 000 on the
    respondent;
     (c) where the respondent is licensed or registered, it may -
        (i) reduce the respondent's licence or registration, or
    both, to a more limited category;
        (ii)attach conditions or further conditions to the
    respondent's licence or registration;
        (iii)suspend the respondent's licence or registration, or
    both, for a specififed period or until the fulfilment of
    stipulated conditions or until further order; or (iv)cancel the
    respondent's licence or registration, or both;
     (d) it may disqualify the respondent permanently, for a
    specified period, until the fulfilment of stipulated conditions,
    or until further order, from being licensed or registered, or
    both, under this Act;
     (e) where the respondent is a building consultant or former
    building consultant - it may make an order prohibiting the
    respondent from carrying on business as a building consultant
    permanently, for a specified period, until the fulfilment of
    stipulated conditions, except in accordance with stipulated
    conditions, or until further order." 3. In the notice of appeal filed on 29 May 1992 pursuant to leave of a judge of this Court to appeal out of time, the only ground taken was that the penalty imposed upon the appellant was manifestly excessive in all the circumstances. Before me it is complained that the order is outside the power of the Tribunal in that paragraph (d) of subsection (6) permits disqualification for a specified period or until further order, not disqualification for a period of ten years and thereafter until further order. 4. Counsel for the respondent submits that paragraph (d) is to be construed in the context of the subsection in which it appears. The opening words of the subsection provide that the Tribunal may exercise "one or more of the following powers". 5. Therefore, it is submitted that it was open to the Tribunal to exercise one or more of the powers enumerated in paragraph (d). I reject that argument. It overlooks a number of things. First, within paragraph (d) the words "or both" appear with respect to the power to disqualify a person from being licensed or registered. Secondly, the phrase relied upon at the beginning of the subsection must be construed by reference to the specific powers in each of the paragraphs, not any alternatives within particular paragraphs. This construction, for example, permits the Tribunal to fine under paragraph (b) and attach conditions to a licence under sub-paragraph (ii) within paragraph (c) or indeed, to impose a fine under paragraph (d) whilst exercising the power of disqualification as expressed in its various alternatives within that paragraph. 6. More than once within s19, Parliament has spelt out by use of the words "or both" that something expressed in the alternative within a particular part of a particular paragraph of s19 is not to be construed disjunctively. I refer to sub-paragraphs (i), (ii) and (iv) within paragraph (c), besides paragraph (d) itself, where a disqualification order can relate to both the holding of a licence and registration. 7. Authorities with respect to the proper meaning of "or" and "and" in statutes abound. As Blackburn J observed in Re: The Licensing Ordinance
(1968) 13 FLR 143 at 147, the authorities do not establish that "and" can sometimes mean "or" or that "or" sometimes means "and" as much as that a court will construe "and" to mean "or" or "or" to mean "and" where not to do so would create an absurdity. No absurdity is created here by giving the word "or" its natural and ordinary meaning wherever that word appears in the subsection. 8. I refer to what Professor Pearce has said in the second edition of his book "Satutory Interpretation In Australia" at paragraphs 34 and 35. I hope that is a sufficient reference to the second category of cases to which Sir Richard was referring in the Licensing Ordinance case just cited. I quote part of what Lord Wilberforce and Lord Salmon said in R v Federal Steam Navigation (1974) 1 WLR 505. At 522 Lord Wilberforce said:-
    "To substitute 'and' for 'or' is a strong and exceptional
    interference with a legislative text, and in a penal statute
    one must be even more convinced of its necessity. It is
    surgery rather than therapeutics." 9. A similar sentiment applies with respect to a statute affecting a person's livelihood. Lord Salmon said at 524:-
    "There is certainly no doubt that generally it is assumed
    that "or" is intended to be used disjunctively and the word
    "and" conjunctively. Nevertheless, it is equally well settled
    that if so to construe those words leads to an unintelligible or
    absurd result, the courts will read the word "or" conjunctively
    and "and" disjunctively, as the case may be; or, to put it
    another way, substitute the one word for the other." 10. I see nothing unintelligible or absurd in staying with the plain meaning of the word "or" and the understanding of its use at the beginning of subsection (6) as referring to the paragraphs which follow within the subsection and not to the alternatives within any particular paragraph. 11. Besides the authorities cited to me today, I add references to observations made by Justice Wells, as a member of the Full Court in BP Australia Ltd and Food Plus Pty Ltd v State of South Australia (1982) 31 SASR
178 at 191, and Justice O'Loughlin's judgment in Ormerod v Blaslov (1989) 52 SASR 263 at 269. 12. The order made by the Tribunal is therefore beyond power. I do not think it appropriate for me to express a concluded view on the original ground taken in the appeal that the order is manifestly excessive. I think the matter ought to be remitted to the Tribunal so that the appellant may now make submissions on an appropriate order against the Tribunal's findings. The appellant took no part in the proceedings before the Tribunal. Nothing that I now say is to be taken as disagreeing with the remarks made by the Chairman with respect to ss10(9) and 20 of the Builders' Licensing Act. 13. The appeal is allowed. The subject matter of the appeal is remitted to the Tribunal for rehearing pursuant to paragraph (b) of subsection (4) of s20 of the Commercial Tribunal Act 1982. No order as to costs.