Wignalls Smallgoods Pty Ltd v Kent
[2002] TASSC 67
•12 September 2002
[2002] TASSC 67
CITATION: Wignalls Smallgoods Pty Ltd v Kent [2002] TASSC 67
PARTIES: WIGNALLS SMALLGOODS PTY LTD
v
KENT, Robert Bruce
TITLE OF COURT: SUPREME COURT OF TASMANIA (FULL COURT)
JURISDICTION: APPELLATE
FILE NO/S: FCA 50/2002
DELIVERED ON: 12 September 2002
DELIVERED AT: Hobart
HEARING DATES: 5 September 2002
JUDGMENT OF: Crawford, Slicer and Evans JJ
CATCHWORDS:
Industrial Law - Industrial safety, health and welfare - Other States and Territories - Tasmania - Offences - Limitation period - Expiring on Sunday.
Acts Interpretation Act 1931 (Tas), s29(3)(a).
Workplace Health and Safety Act 1995 (Tas), s55.
Aust Dig Industrial Law [444.5]
REPRESENTATION:
Counsel:
Appellant: G C Wood
Respondent: K Brown
Solicitors:
Appellant: Wallace Wilkinson & Webster
Respondent: Director of Public Prosecutions
Judgment Number: [2002] TASSC 67
Number of Paragraphs: 22
Serial No 67/2002
File No FCA 50/2002
WIGNALLS SMALLGOODS PTY LTD v ROBERT BRUCE KENT
REASONS FOR JUDGMENT FULL COURT
CRAWFORD J
SLICER J
EVANS J
12 September 2002
Order of the Court
Appeal dismissed.
Serial No 67/2002
File No FCA 50/2002
WIGNALLS SMALLGOODS PTY LTD v ROBERT BRUCE KENT
REASONS FOR JUDGMENT FULL COURT
CRAWFORD J
12 September 2002
I agree with Slicer J that the appeal should be dismissed. I agree in substance with his Honour's reasons and with those of the learned judge below.
It is patently obvious that the primary purpose of the Workplace Health and Safety Act 1995, s55, was to provide for a special 12 month limitation period for proceedings under the Act, instead of the general six month limitation period that would otherwise apply by virtue of the Justices Act 1959, s26(1). It was argued by counsel for the appellant that "absurd" was too strong a word when considering whether the legislature would have intended to exclude the application of the Acts Interpretation Act 1931, s29(3)(a). It is at the very least extremely unlikely that the legislature was concerned about or even contemplated the possibility that on some future occasion the last day for taking proceedings, at the end of the 12 month limitation period, might happen to fall on a Sunday or a statutory holiday and determined that in such event the general operation of s29(3)(a) should not apply. To exclude the operation of a general interpretative provision for no good reason, makes no sense at all.
File No FCA 50/2002
WIGNALLS SMALLGOODS PTY LTD v ROBERT BRUCE KENT
REASONS FOR JUDGMENT FULL COURT
SLICER J
12 September 2002
This appeal concerns the application of the Acts Interpretation Act 1931 ("the Act") on a particular enactment which provides:
"Notwithstanding anything in any other Act."
On 24 December 2001, a complaint was made charging the appellant with an offence contrary to the Workplace Health and Safety Act 1995 ("the Workplace Act"), s9(4), alleged to have occurred on 23 December 2000.
The Workplace Act, s55, provides:
"Notwithstanding anything in any other Act, proceedings for an offence against this Act may not be instituted later than 12 months after the act or omission alleged to constitute the offence."
The section permits a limitation period different from that stated in a general procedural enactment, the Justices Act 1959, s26(1), which, in turn, requires:
"In the case of a simple offence (not being an indictable offence), or of a breach of duty, unless some other time is limited for making complaint by the law relating to the particular case, complaint must be made within 6 months from the time when the matter of complaint arose."
The Workplace Act permits "… some other time … by the law relating to the particular case" with the consequence that the time for commencing the proceedings was no later than 23 December 2001, a Sunday.
The learned primary judge dismissed an appeal by the appellant against a magistrate's decision that the provisions of the Act, s29, permitted Sunday to be excluded from the limitation calculation.
Basis of Appeal
The grounds of appeal state:
"1 The Learned Judge erred in law in finding that Section 55 of the Workplace Health & Safety Act 1995 did not operate so as to exclude the operation of Section 29(3)(a) of the Acts Interpretation Act 1931.
2 The Learned Judge erred in law in finding that the words 'notwithstanding anything in any other act' in Section 55 of the Workplace Health & Safety Act 1995 should not be interpreted as applying to the Acts Interpretation Act Section 29(3)(a).
3 The Learned Judge erred in law in, having made a finding that the words' 'notwithstanding anything in any other act' only effect could be to exclude the operation of the Acts Interpretation Act, Section 29(3)(a), His Honour failed to ascribe any meaning, intent or effect to the said words.
4 The Learned Judge erred in fact and in law in finding that the legislature decided that the limitation period for proceedings under the Workers Rehabilitation and Compensation Act 1995 [sic] was to be 12 months rather than 6 months.
5 The Learned Judge erred in fact and in law in finding that a literal interpretation to the words 'notwithstanding anything in any other act' in Section 55 of the Workplace Health and Safety Act 1995 lead [sic] to an absurd result that parliament cannot have intended."
The issue is whether the provisions of a general statute govern the interpretation and application of a particular enactment.
Acts Interpretation Act 1931
The Act, s29(3)(a), relevantly provides:
"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 ¾
(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."
The Act, if applied, would permit the making of a complaint alleging an offence contrary to the Workplace Act on 24 December 2001.
All Australian jurisdictions have passed Acts known variously as Acts Interpretation Acts or Interpretation Acts, designed to reduce the size of legislation by avoiding the repetition of common provisions and providing for uniformity in certain matters of evidence and procedure. As Burton JA observed in Hands v Law Society (1890) 17 Ontario App 41 at 57:
"The extraordinary diversity of opinion to be found in these cases [of construction] furnishes a strong reason for the passing of an Interpretation Act; and I think the passing of such an Act may be regarded as a gentle intimation by the Legislature to the Court that it understands what it is saying and means what it says."
As Pearce observes in Statutory Interpretation in Australia (1974) at 71:
"A draftsman of legislation will assume a knowledge of these Acts on the part of a reader and prepare legislation accordingly. On a lesser scale, a draftsman of a particular Act will often include in that Act a section in which he sets out definitions of particular words that are used frequently in the Act. Again the object is to avoid verbosity and repetition."
Interpretation provisions appearing in those Acts apply "unless the contrary intention appears". (In theMatter of the Fourth South Melbourne Building Society (1883) 9 VLR 54). The Act, s4, which relevantly provides:
"4 ¾ (1) Except where otherwise expressly provided, the provisions of this Act shall be applied in the interpretation and construction of every Act whenever passed (including this Act) and of all regulations made under any Act"
is a statement, subject to defined exceptions by Parliament that it intends to govern all of its legislation by a uniform approach or standard. It provides (s29(1)) that where a period is to be calculated from a particular day or event, the time is to be reckoned exclusive of that day or the day of that event (Ex parte Toohey's Ltd; re Butler (1934) SR (NSW) 277; Forster v Jododex Australia Pty Ltd (1972) 3 ALR 1303) a provision which would apply to any calculation of time required for the purposes of the Workplace Act, s55. The terminal days are excluded from the computation (Young v Higgon (1840) 6 M & W 54: [1835-42] All ER 278; Weeks v Wray [1868] LR 3 QB 212).
On the appellant's argument, the day of the event would be excluded from any computation involving the Workplace Act, s55.
It is said that the words "Notwithstanding anything in any other Act" ought be taken to apply to the Act since, because the wording of the Justices Act, s26, is clear, there could be no other legislation contemplated by Parliament. The Workplace Act, by Sch2, repealed six enactments which previously regulated work places, in particular mines, construction and machinery. Schedule 3 provided for a continuation of liability for events occurring before the repeal of these specific enactments. Section 4 provided:
"4 All acts, matters and things done or omitted to be done by, or done or suffered in relation to, the Industrial Safety, Health, and Welfare Board before the commencement day have, on and after that day, the same force and effect as if they had been done or omitted to be done by, or done or suffered in relation to, the WorkCover Tasmania Board."
Section 6 preserved existing rights and liabilities in relation to matters "not finally determined by … appeal".
Each of the repealed enactments had provided for the form and procedure for the prosecution of offences created in each Act. The wording of each differed slightly:
"proceedings … shall be instituted and heard and determined summarily" (Industrial Safety, Heath and Welfare Act 1977, s43);
"offences … shall be heard and determined summarily by a magistrate" (Mines Inspection Act 1968, s54);
"convicted of an offence", "proceedings in respect of an offence" (Scaffolding Act 1960, ss20, 21);
"complaint against any person for a breach", "justices imposing any penalty" (Inspection of Machinery Act 1960, ss37, 50)
but each applied the general provisions of the Justices Act and the limitation provided by that Act, s26. Schedule 3, s4, was to continue liability for events occurring before its proclamation and to permit a new limitation period. A procedural defence was altered by the substitution of a new period of limitation. The words "Notwithstanding anything in any other Act" can be seen to apply to those repealed enactments.
The provisions of the Act, s29(3)(a), are intended to confer an advantage on the person required to do something and do not operate to the benefit of one on whom a duty is imposed (Associated Dominion Assurance Society Pty Ltd v Balmford (1950) 81 CLR 161).
The appellant contends that the words "Notwithstanding anything in any other Act" operate to exclude the provisions of the Act, s29(3)(a). There is no special provision in the Workplace Act which purports to include the last Sunday in any calculation. There may be cases where:
"… a general provision applying to all legislation cannot be given the same operation as a special provision introduced into legislation the precise character of which was before the legislature." (Rich, Starke and Dixon JJ in Australian Railways Union v Victorian Railways Commissioners (1930) 44 CLR 319 at 386)
but such does not apply here. The Workplace Act could not be seen to supplant the operation of the Act, s29(4), which excludes time in the event that a public office is closed. The provisions as to the "last Sunday" is of a procedural nature. It governs the interpretation of the term "12 months" stated in the Workplace Act when a particular event (in this case the last day falling on a Sunday) occurs. There is no inconsistency between the two enactments. The particular Act governs the substance, namely the period of time and the general Act, the method of calculation. The fact that the Workplace Act can be seen to be "penal" in nature does not alter that position.
The learned primary judge was correct when he concluded that the words used in the Workplace Act, s55, do not exclude the provisions of the Act, s29(3)(a).
In my opinion, the appeal ought be dismissed.
File No FCA 50/2002
WIGNALLS SMALLGOODS PTY LTD v ROBERT BRUCE KENT
REASONS FOR JUDGMENT FULL COURT
EVANS J
12 September 2002
I agree with the reasons for judgment prepared by Slicer J and with the order he proposes.
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