Wignalls Smallgoods Tasmania Pty Ltd v Kent

[2002] TASSC 26

[2002] TASSC 26

CITATION:              Wignalls Smallgoods Tasmania Pty Ltd v Kent [2002] TASSC 26

PARTIES:  WIGNALLS SMALLGOODS TASMANIA PTY LTD
  v
  KENT, Robert Bruce

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  APPELLATE
FILE NO/S:  LCA 17/2002
DELIVERED ON:  10 May 2002
DELIVERED AT:  Hobart
HEARING DATES:  8 April 2002
JUDGMENT OF:  Blow J

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:
           Applicant:  T D Cox
           Respondent:  F C Neasey
Solicitors:
           Applicant:  Wallace Wilkinson & Webster
           Respondent:  Director of Public Prosecutions

Judgment Number:  [2002] TASSC 26
Number of Paragraphs:  11

Serial No 26/2002
File No LCA 17/2002

WIGNALLS SMALLGOODS TASMANIA PTY LTD v ROBERT BRUCE KENT

REASONS FOR JUDGMENT  BLOW J

10 May 2002

1. The applicant is aggrieved by a decision of a magistrate rejecting a submission that a prosecution against it was instituted out of time, and refusing to dismiss the complaint by which that prosecution was instituted.

1. By that complaint, the respondent charged the applicant with failing to ensure that a contractor was safe from injury, contrary to the Workplace Health and Safety Act 1995 ("the Act"), s9(4). The offence is alleged to have been committed on 23 December 2000. The complaint was made on 24 December 2001. The applicable limitation period is 12 months. That limitation period is fixed by the Act, s55, which reads as follows:

"55 ¾ 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."

1. But for the enactment of that section, the applicable limitation period would have been six months by reason of the Justices Act 1959, s26(1), which reads as follows:

"26 ¾ (1)  In a 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."

1. Taken at face value, s55 would appear to require proceedings for an offence committed on 23 December 2000 to be instituted no later than 23 December 2001.  However that day was a Sunday.  The respondent relies on the Acts Interpretation Act 1931, s29(3)(a), which provides as follows:

"(3)   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 …".

1. However counsel for the applicant submitted that this provision does not apply to the reckoning of time for the purposes of the Act, s55. This submission was based on the fact that s55 begins with the words "Notwithstanding anything in any other Act …". Read literally, these words would exclude all provisions in other Acts relating to limitation periods and the reckoning of time. The Acts Interpretation Act is an Act within the literal meaning of the expression "any other Act". 

1. Counsel for the applicant drew my attention to the Acts Interpretation Act, s4(1)(a), which provides as follows:

"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, except in so far as ¾

(a)any provision of this Act is inconsistent with or repugnant to the true intent and object of the particular Act or regulation to be interpreted …".

He argued that the Acts Interpretation Act, s29(3)(a) was inconsistent with and repugnant to the true intent and object of s55, and that s55 was evidently intended to fix a time limit that was not affected by any other statutory provision.

1. It is worth noting that the Justices Act, s26(1) is worded so as to apply only in the absence of a specific limitation provision in an Act that creates an offence. If Parliament intended only to supersede the provisions of that subsection, s55 would not have needed the words "Notwithstanding anything in any other Act …". If those words have any effect at all, their only effect can be to exclude the operation of the Acts Interpretation Act, s29(3)(a). As a general rule, all words in a statute must be assumed to have been intended to have some effect. See Pearce and Geddes Statutory Interpretation in Australia 5th ed, par2.22.

1. However, in my view, a literal interpretation of the introductory words of s55 would lead to an absurd result that Parliament cannot have intended.  There is a great deal of common sense underlying the Acts Interpretation Act, s29(3)(a). If a limitation period expires on a Sunday, it is sensible to allow proceedings to be instituted on the next business day. Urgent quests for justices of the peace, court officers, and so forth on Sundays are thereby avoided. When it was decided that the limitation period for proceedings under the Act was to be 12 months rather than six months, I cannot imagine that Parliament or the authors of the Act also decided that an extra day was inappropriate when the 12 months expired on a Sunday. That result would be absurd. Words in a statute will not be given their grammatical and ordinary meaning when that would lead to some absurdity: Grey v Pearson (1857) 6 HLC 61 at 106; Australian Boot Trade Employés' Federation v Whybrow & Co (1910) 11 CLR 311 at 341 - 342; Pearce and Geddes (supra), par 2.4.

1. The Acts Interpretation Act, s8A(1) requires an interpretation that promotes the purpose or object of an Act to be preferred to an interpretation that does not promote that purpose or object. The primary purpose of the Act, in my view, is to promote the health and safety of persons working in industry. That object would be promoted by an interpretation that facilitates prosecutions for contraventions of that Act, rather than one that hinders the institution of such prosecutions. An interpretation that allows a complaint to be made on the next business day when a limitation period has expired on a Sunday is one that promotes that object.

1. For these reasons, I think that the opening words of s55 should not be interpreted literally, and should not be interpreted as applying to the Acts Interpretation Act, s29(3)(a). In my view that provision applied so as to permit the respondent to institute proceedings by complaint on 24 December 2001, and that the learned magistrate rightly so held.

1. The motion to review is dismissed.