Waterfront Place Pty Ltd v Minister for Planning
[2019] VSCA 156
•28 June 2019
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCI 2018 0150
| WATERFRONT PLACE PTY LTD (ACN 123 231 390) | Applicant |
| v | |
| MINISTER FOR PLANNING & ORS (according to the attached Schedule) | Respondents |
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| JUDGES: | MAXWELL ACJ, T FORREST and EMERTON JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 21 May 2019 |
| DATE OF JUDGMENT: | 28 June 2019 |
| MEDIUM NEUTRAL CITATION: | [2019] VSCA 156 |
| JUDGMENT APPEALED FROM: | [2018] VSC 621 (Garde J) |
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STATUTORY INTERPRETATION – Interpretation statutes – Contrary intention –Computation of time – Statutory time limit – Ministerial power to call in Tribunal proceeding – Notice to be given ‘no later than seven days’ before hearing date – Period expired on Sunday – Notice given on Monday – Whether general provision applied to extend time – Whether contrary intention disclosed – General rule applicable – Leave to appeal refused – Victorian Civil and Administrative Tribunal Act 1998 sch 1 cl 58, Interpretation of Legislation Act 1984 s 44.
WORDS AND PHRASES – ‘no later than’.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr J Delany QC with Mr R Watters | Rigby Cooke Lawyers |
| For the First Respondent | Mr D J Batt QC with Ms R Amamoo | Victorian Government Solicitor’s Office |
| For the Second Respondent | No appearance | |
| For the Third Respondent | Mr J D Pizer QC with Ms E C V Porter | Minter Ellison |
MAXWELL ACJ
T FORREST JA
EMERTON JA:
Summary
Where a statute authorises or requires something to be done, the provision in question will very often specify a date by which, or a period within which, the act or thing must be done. Typically, the date or the period will be expressed by reference to a number of days, as in the phrases ‘not less than seven days before …’ and ‘within 28 days after ...’.
The consequence of non-compliance with a time limit of this kind may or may not be spelt out in the statute. Sometimes, as in the present case, the statute expressly provides that a failure to do the act by the date, or within the period, specified will have the effect that the purported act is invalid. In other instances, the statute is silent on the effects of non-compliance.[1]
[1]See Ian Street Developer Pty Ltd v Arrow International Pty Ltd [2018] VSCA 294 (‘Ian Street’).
Either way, those needing to comply with statutory time limits need to have certainty in calculating when the relevant period will expire. To that end, State and Commonwealth interpretation statutes have for many years included counting rules for this purpose. For example, when the period in question is expressed to begin on, or be reckoned from, a particular day, the counting rule is that that day ‘shall not be included in the period’.[2] On the other hand, when the period is expressed to end on a particular day, the counting rule is that that day ‘shall be included in the period’.[3]
[2]Interpretation of Legislation Act 1984 s 44(1) (‘ILA’).
[3]Ibid s 44(2).
Parliaments have also recognised that, in particular cases, a correct application of these counting rules will have the result that the specified period expires on a non-business day — a Saturday or Sunday or a public holiday. (We will use the term ‘holiday’ to cover these three alternatives.) As a matter of practical reality — at least where what has to be done is to give a notice or file a document — compliance on a holiday is impossible. Accordingly, the interpretation statutes include an additional rule to the effect that, if the period expires on a holiday, the act may be done on the next business day (‘the extension rule’).
At issue in the present appeal is Victoria’s version of the extension rule. Thus s 44(3) of the Interpretation of Legislation Act 1984 (Vic) (‘ILA’) provides:
Where the time limited by an Act … for the doing of any act or thing expires or falls on a day that is a holiday, the time so limited shall extend to, and the act or thing may be done on, the day next following that is not a holiday.
(‘Holiday’ is defined for this purpose to mean a Saturday, Sunday or public holiday.)[4]
[4]Ibid s 44(4).
As with other provisions of the ILA, the extension rule is intended to apply to all Victorian statutes, except where ‘a contrary intention appears’. Universal application is, of course, a defining characteristic of interpretation statutes. In the ILA that intention is expressed in s 4(1), in these terms:
The provisions of this Act—
(a)unless a contrary intention appears in this Act or in the Act or subordinate instrument concerned, extend and apply to all Acts, whether passed before or after the commencement of this Act, and to all subordinate instruments, whether made before or after that commencement;
In the present case, the respondent Minister sought to exercise a power, conferred by cl 58(2) of sch 1 to the VictorianCivil and Administrative Tribunal Act 1998 (‘VCAT Act’), to ‘call in’ a proceeding commenced in the Tribunal. The call in power is exercisable by the giving of a notice to the Tribunal under cl 58(2) of the Schedule. Sub-clause 58(3)(b) provides that such a notice ‘is of no effect unless it is given … no later than 7 days before the day fixed for the hearing of the proceeding’.[5]
[5]Emphasis added.
It is not in dispute that, on a proper application of the ILA counting rules, the seven day period expired on a Sunday. The Minister gave his notice on the following day, the Monday. The applicant’s contention, at first instance and in this Court, was that the extension rule did not apply to this seven day period, because a contrary intention could be discerned from the provisions of the VCAT Act.
The judge at first instance rejected that argument, holding that there was nothing in the VCAT Act to suggest that, in conferring the call in power and fixing the time limit, Parliament intended to exclude the operation of the extension rule.[6] It followed that the giving of the call in notice on the Monday was effective.
[6]Waterfront Place Pty Ltd v Minister for Planning [2018] VSC 621, [67]–[72] (‘Reasons’).
Waterfront Place now seeks leave to appeal from that decision. For reasons which follow, we would refuse leave to appeal. In our respectful view, the judge was entirely correct to conclude, for the reasons which he gave, that there was no indication of an intention to displace the application of the extension rule.
This question of contrary intention only arises, of course, because the VCAT Act contains no express statement of an intention to displace the extension rule. Had there been such a statement, there could have been no room for doubt and there would have been no litigation. It is only because the Parliament has been silent on that question that the Court is called upon to scrutinise the statutory context in order to decide whether it discloses an unstated intention to displace the rule.
In our view, a court should be very slow to find an unstated contrary intention in circumstances such as these, where the general rule said to have been displaced is a rule of practical commonsense, reflecting the critical difference between weekdays and holidays, and is one which is relied on by those needing to comply with time limits (and their advisers). The threshold requirement for contrary intention — whether it be ‘reasonable certainty’ or ‘necessary implication’[7] — should be stringently applied.
[7]See [32]-[34] below.
Axiomatically, both the language used in statutes and their interpretation by courts should be such as will promote certainty, comprehensibility and predictability. These are foundational requirements of the rule of law.[8] Those considerations are, we think, of particular importance in relation to provisions of this kind, which are designed to provide clarity and certainty to individuals and corporations — and public officials — engaged in a wide range of activities. A person who is aware of the extension rule, and who sees nothing in the provisions imposing the time limit to suggest that the rule does not apply, should be able to proceed on the assumption that it does.
[8]See, eg, T Bingham, The Rule of Law (Penguin, 2011) 37–39.
Background
The applicant is the owner of 1–7 Waterfront Place, Port Melbourne. On 24 October 2016, it applied to Port Phillip City Council for a planning permit to develop the land for the purposes of a 10-storey, mixed-use development. The Council refused the permit application.
On 12 September 2017, the applicant commenced proceedings in the Tribunal seeking review of the Council’s decision to refuse to grant a permit. On 5 March 2018, the Tribunal made orders listing a hearing of the review proceeding to commence on Monday, 30 July 2018.
On Monday, 23 July 2018, the Minister wrote to the Principal Registrar of the Tribunal stating:
I consider that the proceeding raises a major issue of policy, and determination of the proceeding may have a substantial effect on the achievement or development of planning objectives.
Accordingly, under cl 58(2)(a) of sch 1 to the Victorian Civil and Administrative Tribunal Act 1998, I am giving you notice of my decision to call in the proceeding.
Clause 58 of the Schedule is in these terms:
58 Minister’s call in powers in Planning and Environment Act matters
(1)This clause applies to a proceeding for review of a decision under the Planning and Environment Act 1987 if the Minister administering the Planning and Environment Act 1987 considers that—
(a)the proceeding raises a major issue of policy; and
(b)the determination of the proceeding may have a substantial effect on the achievement or development of planning objectives.
(2)The Minister administering the Planning and Environment Act 1987 may—
(a)by notice in writing to the principal registrar call in the proceeding; or
(b)invite the Tribunal—
(i)to decline to hear or to continue to hear the proceeding and refer it to the Governor in Council for determination; or
(ii)to hear or to continue to hear the proceeding but, without determining it, refer it with recommendations to the Governor in Council for determination.
(3)A notice or invitation under subclause (2) is of no effect unless it is given—
(a)before the final determination of the proceeding; and
(b)no later than 7 days before the day fixed for the hearing of the proceeding.
(4)If the Minister calls in a proceeding under subclause (2)(a)—
(a)the Tribunal must not commence or continue to hear the proceeding; and
(b)the principal registrar must refer the proceeding to the Governor in Council for determination.
(5)In subclause (3) a reference to a hearing does not include a reference to a hearing in the nature of a directions hearing, preliminary hearing or interlocutory hearing.
(6)This clause applies to a proceeding existing on or after the commencement of section 3 of the Victorian Civil and Administrative Tribunal (Amendment) Act 2004.
On 26 July 2018, the applicant commenced a proceeding in the trial division seeking a declaration that the Minister’s call in notice was invalid. The applicant’s contention was that the notice was ‘of no effect’, because it had been given to the Principal Registrar less than ‘seven days before the day fixed for the hearing of the proceeding’.
At trial, the applicant and the Minister both submitted, albeit for different reasons, that the last day for the giving of effective notice under cl 58 was Sunday, 22 July 2018. The Minister contended, however, that the extension rule operated to extend the time for the giving of an effective notice to the Monday. As already mentioned, the applicant contended that the VCAT Act disclosed a contrary intention and that the extension rule was inapplicable. The judge upheld the Minister’s contention.
The single proposed ground of appeal is that his Honour erred in law in finding that the minimum period of time stipulated in cl 58(3)(b) was subject to the operation of s 44(3) of the ILA.
In its written case, the applicant advanced two separate arguments. The first rested on the proposition that:
Where there is no uncertainty in the meaning of a particular statutory provision, there is no need or reason to have recourse to the Interpretation Act.
It was said that, because cl 58(3) was not attended by any uncertainty ‘whether in the text or as to context and purpose’, no recourse to s 44(3) was necessary.
At the commencement of the hearing, however, senior counsel for the applicant informed the Court that this ‘uncertainty’ argument would not be pressed. Counsel further conceded that the time limit fixed by cl 58(3) would attract the operation of s 44(3) unless — as the applicant maintained — a contrary intention appeared from the provisions of the VCAT Act. Those were, with respect, entirely appropriate concessions.
We turn to consider the arguments regarding contrary intention.
‘Unless a contrary intention appears’
As the applicant submits, a contrary intention may appear ‘from the scope, nature and subject-matter of legislation’[9] or ‘the general character of the legislation itself’.[10] According to its submission, the context, nature and subject-matter of cl 58(3) strongly support a strict application of the seven day limit.
[9]Forsyth v Deputy Commissioner of Taxation (2004) 62 NSWLR 132, 138 [28] (Spigelman CJ).
[10]Pfeiffer v Stevens (2001) 209 CLR 57, 74 [56] (McHugh J).
Four considerations are advanced, namely, that:
(a) clause 58 is directed to removing a proceeding from the Tribunal constituted by specialists in planning matters, upon whom the Parliament has conferred exclusive jurisdiction to determine the proceeding;
(b) a construction which allows the prospect of reducing the call in notice period to less than seven clear days creates doubt as to the bounds of the Tribunal’s jurisdiction and is productive of uncertainty and lack of confidence in the hearing and listing processes at the Tribunal;
(c) the calling-in of a proceeding at late notice would adversely impact on the Tribunal and its case allocation and would almost invariably result in wasted Tribunal resources; and
(d) calling-in the proceeding less than seven days before a hearing would adversely impact on all those involved in the proceeding, with significant adverse cost consequences.
Before addressing these specific contentions, it is necessary to identify the threshold which must be crossed before an unstated contrary intention can be shown. On ordinary principles, legislative intention is conveyed either by express statutory language or by necessary implication.[11] An unstated intention should only be implied where the implication is necessary to make express provisions workable.[12]
[11]See, eg, Western Australia v Commonwealth (1975) 134 CLR 201, 251–2 (Stephen J); Taylor v Owners —Strata Plan No 11564 (2014) 253 CLR 531, 556–7 [65] (Gageler and Keane JJ).
[12]See, eg, Norton v Long [1968] VR 221, 223–4 (Winneke CJ).
The submission for the applicant, however, was that something less than ‘necessary implication’ was sufficient. This argument rested on decisions regarding provisions in interpretation statutes which deal with the effect of repeal (or amendment) on rights and liabilities which crystallised under the legislation as it stood before the repeal (or amendment).
In Victoria, the relevant provisions are ss 14–16 of the ILA. As senior counsel for the applicant pointed out, these provisions have the distinctive feature that they are expressed to apply ‘unless the contrary intention expressly appears’. For example, s 14 of the ILA provides as follows:
(1) Where an Act or a provision of an Act—
(a) is repealed; or
(b) expires, lapses or otherwise ceases to have effect—
any Act or provision of an Act that had been repealed by the first-mentioned Act or provision shall not, unless the contrary intention expressly appears, be construed as having been revived in consequence of the repeal, expiry, lapsing or ceasing to have effect of the first-mentioned Act or provision.
(2) Where an Act or a provision of an Act—
(a) is repealed or amended; or
(b) expires, lapses or otherwise ceases to have effect—
the repeal, amendment, expiry, lapsing or ceasing to have effect of that Act or provision shall not, unless the contrary intention expressly appears—
(c)revive anything not in force or existing at the time at which the repeal, amendment, expiry, lapsing or ceasing to have effect becomes operative;
(d)affect the previous operation of that Act or provision or anything duly done or suffered under that Act or provision;
(e)affect any right, privilege, obligation or liability acquired, accrued or incurred under that Act or provision;
(ea)affect any immunity or indemnity conferred or given by or under that Act or provision;
(f)affect any penalty, forfeiture or punishment incurred in respect of an offence committed against that Act or provision; or
(g)affect any investigation, legal proceeding or remedy in respect of anything mentioned in paragraphs (e) to (f)—
and any such investigation, legal proceeding or remedy may be instituted, continued or enforced, and any such penalty, forfeiture or punishment may be imposed, as if that Act or provision had not been repealed or amended or had not expired, lapsed or otherwise ceased to have effect.[13]
[13]Emphasis added.
As this Court pointed out in Mitchell v Latrobe Regional Hospital (‘Mitchell’),[14] the phrase ‘unless the contrary intention expressly appears’ was examined in a series of decisions following the enactment of the ILA in 1984. In their joint judgment, Osborn and Beach JJA and J Forrest AJA referred to those decisions before concluding as follows:
In our view, the authorities stretching over many decades and the application of common sense support the interpretation of the word ‘expressly’ which requires that s 14(2) not be read narrowly: ‘expressly’ means ‘plainly’, ‘clearly’, or ‘by necessary implication’ and, as such, does not require a line by line reference to every part of a piece of existing legislation.[15]
[14](2016) 51 VR 581.
[15]Ibid 595–6 [64].
The applicant also referred to the High Court decision in ADCO Constructions Pty Ltd v Goudappel (‘ADCO’).[16] That case concerned a similar provision in the New South Wales interpretation legislation, which was expressed to operate ‘unless the contrary intention appears’. In the view of the High Court majority (French CJ, Crennan, Kiefel and Keane JJ), the protection of accrued rights provided by such a provision mirrored the common law as enunciated by Dixon CJ in Maxwell v Murphy[17] and Chang Jeeng v Nuffield (Australia) Pty Ltd.[18] In the latter case, Dixon CJ said:
The general rule of the common law is that a statute changing the law ought not, unless the intention appears with reasonable certainty, to be understood as applying to facts or events that have already occurred in such a way as to confer or impose or otherwise affect rights or liabilities which the law had defined by reference to the past events.[19]
[16](2014) 254 CLR 1.
[17](1957) 96 CLR 261, 267.
[18](1959) 101 CLR 629, 637–8.
[19]Ibid (emphasis added).
Quoting the same passage, Gageler J said:
A contrary intention sufficient to displace s 30 of the Interpretation Act must ordinarily appear with the same reasonable certainty as is needed to displace the general common law rule. A contrary intention need not be express and its implication, although sometimes referred to as ‘necessary implication’, has not been confined to those extreme circumstances in which alteration of an existing right or liability ‘cannot be avoided without doing violence to the language of the enactment’. The cases, rather, demonstrate that a contrary intention will appear with the requisite degree of certainty if it appears ‘clearly’ or ‘plainly’ from the text and context of the provision in question that the provision is designed to operate in a manner which is inconsistent with the maintenance of an existing right or liability.[20]
[20]ADCO (2014) 254 CLR 1, 22 [52].
We are not persuaded that there is any relevant difference between what this Court said in Mitchell about the phrase ‘unless the contrary intention expressly appears’ and what the High Court said in ADCO about the phrase ‘unless the contrary intention appears’. Mitchell establishes that the words ‘expressly’ in ss 14–16 do not confine the search for contrary intention to the identification of express words. Rather, the interpreting court needs to consider whether the intention is disclosed as a matter of necessary implication — as the Court found it was in that case.
That the phrase ‘unless the contrary intention appears’ requires no different approach is reinforced by what was said by Gageler J in the passage set out above. As T Forrest JA pointed out in argument, Gageler J considered that a contrary intention would appear with ‘reasonable certainty’ if it appeared ‘clearly’ or ‘plainly’ from the text and context. Those were, of course, the very words used by the Court in Mitchell in construing the phrase ‘unless the contrary intention expressly appears’. (Nothing said by his Honour is inconsistent with the reasons of the plurality in ADCO.)
In any event, counsel for the applicant accepted that ‘reasonable certainty’ was the applicable test. We proceed on that basis, noting that it creates a very high threshold. That is, the interpreting court would not find a contrary intention unless it reached a state of certainty that Parliament had intended to oust the operation of the relevant ILA provision.
That degree of stringency is entirely appropriate in the present context. As we have said, the extension rule is self-evidently a rule of practical common sense, enacted to address the practical impossibility of complying with a time limit when the last day falls on a holiday. Promulgation of such a rule as one of universal application is plainly intended to facilitate the conduct of affairs by all those to whom time limits are applicable.
One important consideration is that an interpretation statute is the setting in which substantive legislation is enacted. As Gleeson CJ said in Attorney-General (Qld) v Australian Industrial Relations Commission, an interpretation statute
shortens the language of Acts of Parliament by making it unnecessary for Parliament to enact elaborate and repetitive provisions anticipating possible uncertainties and declaring the legislative intention on those points. Naturally, the [statute] makes repeated reference to the concept, central to statutory construction, of intention. Parliament, having expressed its intention as to the way in which its enactments are to be interpreted, frames its legislation accordingly. But its general expressions of intention are subject to anything that appears in the particular legislation.
Acts of Parliament are drafted, and are intended to be read and understood, in the light of the [interpretation statute]. A particular Act, and the [interpretation statute], do not compete for attention, or rank in any order of priority. They work together. The meaning of the particular Act is to be understood in the light of the interpretation legislation. The scheme of that legislation is to state general principles that apply unless a contrary intention is manifested in a particular Act.[21]
[21](2002) 213 CLR 485, 492–3, [7]–[8].
It follows that cl 58(3) is taken to have been drafted — and enacted — in the knowledge that the time limit provision would be interpreted in accordance with s 44(3). The legislature having said nothing in cl 58 to indicate that the extension rule was to be excluded, there would need to have been very powerful indications from the structure, content and purpose of the VCAT Act as a whole, or the call in power in particular, before the contrary intention argument could have succeeded.
The matters relied on by the applicant as indicia of ‘contrary intention’ fall far short of what would have been required. Those ‘indicia’ can be divided into two categories: first, those based on the integrity of the jurisdiction of the Tribunal as a specialist body in planning matters; and, secondly, those said to constitute ‘adverse impacts’ on the Tribunal and the parties if less than seven days’ notice of a call in were given.
Dealing first with the alleged adverse impacts of any shorter notice period, we observe that in this case, the application of s 44(3) to allow the call in notice to be given on the Monday rather than on the Sunday (when no one would have been at work in the Registry to receive and act upon the notice) would make no difference to the Tribunal’s processes and could make very little difference to the position of the parties, who, in any event, are not required to be notified of the call in by the Minister. More generally, we do not accept that possible inconvenience to the parties, or to the Tribunal, is a reason to construe cl 58(3) as excluding the operation of a provision in the ILA intended to be applied systematically (in the interests of certainty) when due dates fall on a holiday.
As to the argument that s 44(3) somehow compromises or undermines the jurisdiction of the Tribunal, cl 58 of the VCAT Act expressly provides for proceedings to be removed from the Tribunal if the Minister considers that ‘the proceeding raises major issues of policy‘ and that ‘the determination of the proceeding may have a substantial effect on the achievement or development of planning objectives’. Schedule 1 modifies pt 3 of the VCAT Act and cls 58, 59 and 60 provide for the jurisdiction of the Tribunal to be exercised by what is in substance another administrative decision-maker. Reducing the notice period by a day (or more) makes no difference to the division of powers contemplated by the VCAT Act. Shortening the notice period does not, in and of itself, affect the jurisdiction of the Tribunal.
Finally, we reject the proposition that the application of s 44(3) to cl 58 creates doubt as to the bounds of the Tribunal’s jurisdiction or is productive of uncertainty or might generate a lack of confidence in the hearing and listing processes at the Tribunal. To the contrary, the application of s 44(3) gives to all concerned certainty about how holidays are to be treated, consistently with the purpose of the ILA.
‘No later than’
A separate argument, developed more fully at the hearing than in the applicant’s written case, was that the phrase ‘no later than’ demonstrated
an intention to allow the beneficiary the whole of the stipulated period and to exclude interpretive provisions which would have the effect of reducing the time available under a particular Act.
Particular reliance was placed on the judgment of Gibbs J in Forster v Jododex Australia Pty Ltd (‘Jododex’).[22] Under provisions of the Mining Act 1906 (NSW), the relevant Minister was authorised to grant an exploration licence ‘for such period not exceeding twelve months as the Minister might determine’. The Minister was authorised to renew such a licence for further periods not exceeding six months, upon application made:
during the currency of such licence or any renewal thereof and not later than one month before the expiry of such licence or renewal.[23]
[22](1972) 127 CLR 421.
[23]Ibid 431 (Gibbs J) (emphasis added).
The Minister had purported to renew an exploration licence. The issue for determination was whether, in the events which had happened, the application for renewal had been made ‘no later than one month’ before the expiration of the licence. If it had not, the Minister lacked the power to grant the purported renewal. All members of the Court considered that the phrase ‘not later than one month before the expiry of such licence’ required that:
the application for renewal be made a clear month before expiry, that a full month must elapse between the application and the expiry.[24]
[24]Ibid 451–2 (Mason J). See also at 448 (Stephen J).
Gibbs J expressed the point this way:
Where an instrument prescribes that a period of time must elapse between one event and another, the words ‘at least’ or ‘not less than’ should, unless the context or the subject matter reveals a contrary intention, be regarded as indicating that a clear or full period of time must expire between the two events. Although the phrase ‘not later than’ has not received so much judicial attention, it seems to me indistinguishable in meaning in this sort of context from ‘at least’ or ‘not less than’.[25]
[25]Ibid 445 (emphasis added).
The point of difference between the majority and the minority, however, was whether the day on which the licence expired was ‘a clear day in the relevant sense’. Gibbs J (in dissent) held that it was not. He said:
In deciding whether the application was made ‘not later than one month before the expiry’ it is therefore necessary to exclude the day of the expiry and to inquire whether the full period of one month had expired between the day on which the application was made and 28th November 1969.[26]
His Honour held that the effect of the authorities concerning ‘not later than’ and cognate phrases was to exclude the counting rule in the applicable New South Wales interpretation statute, which provided that:
The time prescribed or allowed in an Act for the doing of a particular thing shall, unless the contrary intention appears, be taken to exclude the day of the act or event from or after which the time is to be reckoned, but to include the day for the doing of that thing.
The majority (McTiernan, Stephen and Mason JJ) held that the day of expiry was to be counted towards the period of one month. The expiry did not occur until midnight on the last day, by which time that day was ‘spent’.[27]
[26]Ibid 446.
[27]Ibid 452 (Mason J).
The submission for the applicant was that, in using the phrase ‘no later than’ in cl 58(3)(b), the legislature deliberately imported what was said to be its ‘settled’ meaning, as enunciated by Gibbs J. This meant, it was said, that the call in notice must be given at a time which allowed seven days to elapse between the giving of the notice and the day fixed for hearing.
This submission must be rejected, in our view. First, what Gibbs J said in Jododex concerned the exclusion (by necessary implication) of a counting rule which would otherwise have applied. No such issue arises here. As noted earlier, the parties are in agreement as to the application of the ILA counting rules. We are concerned, instead, with a remedial or relieving provision.[28]
[28]See De Angelis v De Angelis (2003) 7 VR 331, 333 [5] (Mandie J).
Secondly, as counsel for the Minister correctly pointed out, the phrase ‘no later than’ is used in cl 58(3) in order to define the end of the period within which the Minister may exercise the call in power. In other words, those words are performing the precise function contemplated by s 44(3) — they limit the time ‘for the doing of any act or thing’.[29] The very words which attract the operation of s 44(3) could hardly be taken to demonstrate the legislature’s intention to exclude its application.
[29]Ibid.
Likewise, as counsel for the Minister also pointed out, the fact that s 44(3) operates in these circumstances to shorten the period mandated by cl 58(3) cannot be said to demonstrate a contrary intention. That is precisely what Parliament intended should occur in the event that compliance on the last day of the period was a practical impossibility.
Conclusion
For these reasons, leave to appeal must be refused.
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SCHEDULE OF PARTIES
| WATERFRONT PLACE PTY LTD (ACN 123 231 390) | Applicant |
| v | |
| MINISTER FOR PLANNING | First Respondent |
| and | |
| THE PRINCIPAL REGISTRAR, VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL | Second Respondent |
| and | |
| VICTORIAN PORTS CORPORATION (MELBOURNE) | Third Respondent |
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