Sydney Capitol Hotels Pty Ltd v Bandelle Pty Limited

[2021] HCATrans 91

[2021] HCATrans 091

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S233 of 2020

B e t w e e n -

SYDNEY CAPITOL HOTELS PTY LTD ACN 107232459

Applicant

and

BANDELLE PTY LIMITED ACN 003921891

Respondent

Application for special leave to appeal

GAGELER J
EDELMAN J
STEWARD J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON THURSDAY, 20 MAY 2021, AT 9.54 AM

Copyright in the High Court of Australia

MR D.S. WEINBERGER:   If it please the Court, I appear with MR A. JORDAN for the applicant.  (instructed by Gells Lawyers)

MR T.M. LYNCH, SC:   May it please the Court, I appear with MR D.J. HAND, for the respondent.  (instructed by Farrar Lawyers)

GAGELER J:   Thank you.  Yes, Mr Weinberger.

MR WEINBERGER:   Thank you, your Honour.  This is a case which various members of the Court of Appeal described as being significant for the building industry as containing errors in the legislative process requiring their Honours to depart from the literal meaning of the legislation, and in the case of Justice Leeming with hesitation, and about legislation - issues will arise in the future unless the legislature intervenes, not only on the specific limitation issue which is presently before the Court.

The application as originally cast contended for four separate leave questions.  Your Honours will find that in the book at page 78.  The first of those questions appears to have fallen away.  Can I explain it very briefly.  The first question concerned the repeal of clause 34 of the 1998 regulation in 2011, effective from 2012.

As a result of the majority decision and the concession by the respondent in paragraph 27, that question no longer arises.  In other words, it is accepted by the majority and by the respondent that section 109ZK did not apply to works the subject of a development consent granted prior to July 1998, notwithstanding the repeal of clause 34 of the 1998 regulation.

GAGELER J:   Is that consistent with Justice Leeming’s judgment?

MR WEINBERGER:   No, that is why I emphasised the majority.  Justice Leeming was in the minority on that point.  The majority, however, accepted that the repeal of clause 34 left 109ZK unaffected. 

GAGELER J:   You say “majority”, but I mean, you mean two members of the three who all came to the same ultimate conclusion.

MR WEINBERGER:   Yes, your Honour.

GAGELER J:   Yes.

MR WEINBERGER:   Yes.  The consequence is, in our respectful submission, three questions arise or remain live.  The first of those three, which is the second question as it appears in the book, is whether section 6.20 is limited in scope in the same way as section 109ZK, or to put it another way, section 6.20 only applies to work the subject of a development consent, or does 6.20 only apply to work the subject of a development consent which predated 1 July 1998?  That seems to be the crux of the issue, and there were divergent views in the Court of Appeal on that question.  Justice Emmett, who was in the minority, concluded that since:

s 6.20 is a successor provision to 109ZK and there is no reason to think that the –

2017 amending Act – which introduced Part 6, which itself contained section 6.20 commencing in March 2018 – was intended to achieve a different outcome.  That is in judgment paragraph 110.  To put it another way, Justice Emmett, who was in the minority, found that the amending Act intended to effect a seamless transition, that is, section 6.20 should be understood as being applicable to works in respect of which 109ZK formerly applied.

So if 109ZK did not apply prior to the amendment, section 6.20 should be also understood as being inapplicable.  The balance of the Bench reached a contrary view, albeit for different reasons, although in my submission, Justice White did so with a degree of hesitation.  His Honour agreed that by reference to the explanatory note, the finding of Justice Emmett was supported by inference, and he did so at judgment 76.

STEWARD J:   Mr Weinberger, could I ask a question.  Accepting for the moment that the cases on importance, at least fiscally to the building industry in New South Wales, do you say that the case raises an important principle of law that needs to be resolved?

MR WEINBERGER:   Yes, I do, your Honour.

STEWARD J:   What is that, other than issues of statutory construction?

MR WEINBERGER:   I was going to say it is a question of statutory construction and the extent to which it is permissible to, in effect, rewrite legislation – that is the first point.  Ancillary to that is the extent to which a court should have regard to extrinsic materials in construing legislation.  Those are the underlying points.  In my respectful submission, the Court of Appeal in this case, at least in relation to Justice White, appears to have taken an inconsistent approach.

STEWARD J:   Is there a paragraph or paragraphs where you say the principle of law for which you contend can be seen illustrated?

MR WEINBERGER:   Yes, your Honour.  Can I take your Honour to Justice White’s decision, which found support in the balance of the court at book 47. 

GAGELER J:   This is the construction of clause 18? 

MR WEINBERGER:   Yes, I am jumping forward in light of the question and I was coming to that provision, but it really involves the application of Taylor – the High Court decision in Taylor v Owners Corporation referred to in paragraph 78 of the judgment and there appears to be, in my submission, great dichotomy and inconsistency in approach in the Court of Appeal, not only in New South Wales but in other States, as to the extent to which it is within the remit of a court to rewrite or restructure legislation or fill a void or fill gaps in order to avoid what their Honours or one of their Honours described as an apparent unintended consequence contrary to the plain and literal meaning of the legislation, which is what ‑ ‑ ‑ 

EDELMAN J:   You would accept that legislation is not always construed according to its literal meaning?

MR WEINBERGER:   Yes, your Honour, I would.

EDELMAN J:   You would also accept, I take it, that on your construction of clause 18 it has, to put it at its lowest, an odd consequence of creating a 21‑month gap. 

MR WEINBERGER:   It created a 21‑month hiatus.  Yes, your Honour.  That is the consequence, perhaps odd, perhaps intended. 

GAGELER J:   Can you advance any reason why it might have been intended?

MR WEINBERGER:   Well, two things can be put in relation to that, that is, the amending provision itself appears to have had regard to the possibility, that is clause 18 of the regulation was express.  There is, as I have put to your Honours, a literal meaning which can apply to the provision.  As we have set out in the submissions which, if I can take your Honours to it and emphasise in relation to clause 18, paragraph 49 of the submissions accepts, as Justice Edelman put to me, there is:

no absolute rule against interpreting a statute -

But the point is, and by reference to High Court authority, that approach should not be taken as here where the:

insertion of words is to fill so-called gaps or to make an insertion which is too big or too much at variance . . . with the language in fact used by the legislature.

Ultimately the task remains to give meaning to the text and not to divine an unexpressed intention or remedy a deficiency. 

GAGELER J:   So, at the end of the day, here, we are concerned with the construction of what is, on any view, a very poorly drafted transitional regulation applying relatively well‑settled principles. 

MR WEINBERGER:   Yes, your Honour.  The question is whether those principles have been correctly applied, not only in relation to this aspect but also in relation to the fourth question which arises and that is, as a question of construction, was it intended that this legislation apply to those who are indirectly or accidentally affected by defective building work – if I can put it that way? 

GAGELER J:   On that fourth question, there is no difference in the reasoning of the members of the Court of Appeal, I think, is there?

MR WEINBERGER:   No, your Honours, there is not.  Their Honours, however, did depart from the reasoning in the New South Wales Court of Appeal in Dinov. 

GAGELER J:   They perhaps explained that reasoning.

MR WEINBERGER:   That is one way to look at it, yes, your Honour, I accept that.  They explained it – or departed from it.  We would submit they departed from it.  Harking back to the earlier question in relation to clause 18, Justice Leeming, at judgment 40, himself, his Honour said he had departed “with some hesitation” from the “literal meaning” of the Act.  His Honour, Justice White, on the one hand, was content to rewrite clause 18 – merely on the basis it was not excessive to do so, but then, on one view, took an inconsistent approach by refusing to do so in relation to the fourth question which arises on the application.

The other important point which arises, as I said when I first rose, is the issue here as to construction is not only relevant to the application of section 6.20 of the Act.  As a result of what has been described by their Honours as a “labyrinth” of legislation, the point will arise in the future – as Justice Leeming said at 44 – but it will arise not only in the context of the application of section 6.20 but, insofar as the application of other provisions which have been repealed and re‑introduced by the provisions under consideration.

I do not wish to repeat what I have put in writing on the fourth question.  As your Honour Justice Gageler has observed on one view their Honours distinguished the facts in Dinov and in the Victorian decision of Rail Track to the present case but there still, nonetheless, appears to be a degree of tension, in my submission, between the facts of this case and the other two cases in particular which their Honours sought to distinguish from the facts at hand.

Returning, if I may, to what may be described as the primary point and that is the second question which arises, I have already drawn to your Honours’ attention Justice Emmett’s decision that the amendment was intended to achieve a seamless transition, that is section 6.20 should be understood as being applicable to works in respect of which 109ZK formerly applied and 109ZK did not apply to this case. 

As I said, his Honour Justice White at 76 agreed that that was the intention of the amendment by reference to the explanatory note because what was intended, according to the explanatory note, was a continuation of the previous provision but a seamless continuation on one view was not achieved, according to Justice White, because section 6.20 as introduced did not by its literal words contain words to the effect as previously found in clause 34 which was repealed. 

The submission is his Honour should have had regard to the explanatory note which made plain that the legislation intended, that is, the legislation intended a seamless transition.  Just as his Honour had regard to the legislative intention in relation to clause 18, the same approach should have been taken in relation to the application of clause 6.20.

Finally, can I point out other reasons we say that approach should have been taken is by reference to the writing at book 83 commencing at paragraph 37 and following.  His Honour appears to have either disregarded or given sections 30 of the Interpretation Act insufficient weight in the region ‑ ‑ ‑ 

GAGELER J:   That is the point that is dealt with specifically by Justice Leeming.

MR WEINBERGER:   That is the point, yes.  There is a degree of overlap and inconsistencies in the various findings, and the point we wish to urge upon the Court is in circumstances where the cause of action had accrued in January 2017, being the date of the fire, being the date of the loss, the cause of action should not be understood to have been extinguished by the amendment in issue.

On the following page, at page 84, and I will not seek to repeat that which is in writing, we provide other reasons why we submit Justice White and, inferentially, to the extent necessary, Justice Leeming erred in reaching the conclusion that their Honours arrived at.  If it please the Court.

GAGELER J:   Thank you, Mr Weinberger.  Mr Lynch, we do not need to hear from you, thank you.

MR LYNCH:   May it please the Court.

GAGELER J:   We are not persuaded that the application raises any question of principle warranting the grant of special leave to appeal.  Special leave is refused with costs.

AT 10.13 AM THE MATTER WAS CONCLUDED