Wignalls Smallgoods Pty Ltd v Kent - [2002] TASSC 67

[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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2002] TASSC 67
Decision Date: 12 September 2002

CaseChat Overview and Summary

Wignalls Smallgoods Pty Ltd appealed against the decision of the primary judge that the Acts Interpretation Act 1931 applied to the calculation of the limitation period in proceedings under the Workplace Health and Safety Act 1995. The primary judge had found that the appellant's complaint that an offence had occurred on 23 December 2000 was time-barred because it was lodged on 24 December 2001, a Sunday. The appellant argued that the Workplace Health and Safety Act provided a special limitation period of 12 months, which should be calculated without regard to Sundays or public holidays, in contrast to the general 6-month limitation period prescribed by the Justices Act 1959. The appeal was dismissed by the Full Court, which found that the Workplace Health and Safety Act did not exclude the application of the Acts Interpretation Act, and that the primary judge's interpretation of the legislation was correct.

The Full Court considered the arguments put forward by the appellant and concluded that the Workplace Health and Safety Act did not intend to exclude the provisions of the Acts Interpretation Act. The court held that the special limitation period provided by the Workplace Health and Safety Act was intended to provide an alternative to the general 6-month limitation period, rather than to exclude the application of the Acts Interpretation Act. The Full Court found that the primary judge was correct in his interpretation of the legislation and dismissed the appeal. The Full Court agreed with the primary judge's finding that the legislature could not have intended to exclude the application of the Acts Interpretation Act in such circumstances. The Full Court held that the primary judge's decision was correct, and the appeal was dismissed. The Full Court did not make any further orders.

Orders