Re Butler (1934) 34 SR (NSW) 277
Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89
Source
Original judgment source is linked above.
Catchwords
[2009] HCA 41
Attorney-General (Cth) v Oates (1999) 198 CLR 162[2014] NSWCA 149
Environment Protection Authority v Truegain Pty Ltd (2013) 85 NSWLR 125[2013] NSWCCA 204
Ex parte Toohey's LimitedRe Butler (1934) 34 SR (NSW) 277
Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89[2001] HCA 37
Maxwell v Murphy (1957) 96 CLR 261[1998] HCA 28
R v A2 (2019) 269 CLR 507[1998] FCA 825
Taheri v Vitek (2014) 87 NSWLR 403[2014] NSWCCA 209
Tillman v Attorney-General NSW (2007) 70 NSWLR 448
[2007] NSWCA 327
Totaan v R (2022) 108 NSWLR 17
Judgment (23 paragraphs)
[1]
Introduction
The issue before the judge was whether the prosecutions commenced by the Secretary of the Department of Planning and Environment ('the respondent') against the applicant were commenced within time.
The respondent claimed by summonses filed in the Land and Environment Court of New South Wales on 14 June 2022 that the applicant had committed eight offences contrary to ss 118A(2) and 118D(1) of the National Parks and Wildlife Act 1974 (NSW) ('the NPW Act') and twelve offences against ss 2.2(1)(b) and 2.4(1) of the Biodiversity Conservation Act 2016 (NSW) ('the BC Act').
[2]
The alleged offending
In an affidavit, the applicant's solicitor summarised the proceedings against the applicant as follows:
"By summonses filed on 14 June 2022, the [Respondent] charged the [Applicant] with offences pursuant to:
a. s 118(2) of the National Parks and Wildlife Act, in that the [Applicant] was alleged to have picked plants that were part of an endangered ecological community between 29 April 2016 and 27 August 2016 (proceedings no. 2022/173269), 27 August 2016 and 9 April 2017 (proceedings no. 2022/173272) and 8 July 2017 and 24 August 2017 (proceedings no. 2022/173274);
b. s 118D(1) of the National Parks and Wildlife Act, in that the [Applicant] was alleged to have damaged habitat of a threatened species and of an endangered ecological community and knew that the habitat concerned was habitat of that kind between 29 April 2016 and 27 August 2016 (proceedings nos. 2022/173270; 2022/173271), 27 August 2016 and 9 April 2017 (proceedings no. 2022/173273) and 8 July 2017 and 24 August 2017 (proceedings nos. 2022/173275; 2022/173276);
c. s 2.2(1)(b) of the Biodiversity Conservation Act, in that the [Applicant] was alleged to have picked plants that were part of a threatened ecological community between 12 September 2017 and 4 August 2018 (proceedings no. 2022/173277), 4 August 2018 and 5 November 2018 (proceedings no. 2022/173280), 12 March 2019 and 1 July 2019 (proceedings no. 2022/173283) and 1 July 2019 and 28 May 2020 (proceedings no. 2022/173286); and
d. s 2.4(1) of the Biodiversity Conservation Act, in that the [Applicant] was alleged to have damaged habitat of a threatened species and of a threatened ecological community and knew that it was habitat of such species or community between 12 September 2017 and 4 August 2018 (proceedings nos. 2022/173278; 2022/173279), 4 August 2018 and 5 November 2018 (proceedings nos. 2022/173281; 2022/173285) and 1 July 2019 and 28 May 2020 (proceedings nos. 2022/173287; 2022/173288)."
[3]
The proceedings in the Land and Environment Court
The applicant filed a notice of motion seeking orders that the prosecutions were commenced outside the limitation periods prescribed by s 190 of the NPW Act and s 13.4 of the BC Act.
Section 190 of the NPW Act is as follows:
190 Time within which proceedings may be commenced
(1) Proceedings for an offence under this Act or the regulations may be commenced -
(a) within but not later than 2 years after the date on which the offence is alleged to have been committed, or
(b) within but not later than 2 years after the date on which evidence of the alleged offence first came to the attention of any authorised officer.
(2) If subsection (1) (b) is relied on for the purpose of commencing proceedings for an offence, the court attendance notice, summons or application must contain particulars of the date on which evidence of the offence first came to the attention of any authorised officer and need not contain particulars of the date on which the offence was committed. The date on which evidence first came to the attention of any authorised officer is the date specified in the court attendance notice, summons or application, unless the contrary is established.
(3) This section applies despite anything in the Criminal Procedure Act 1986 or any other Act.
(4) In this section, evidence of an offence means evidence of any act or omission constituting the offence.
Section 13.4 of the BC Act is as follows:
13.4 Time within which proceedings may be commenced
(1) Proceedings for an offence against this Act or the regulations, or for a native vegetation offence, may be commenced not later than 2 years after the date on which the offence is alleged to have been committed.
(2) Proceedings for an offence against this Act or the regulations, or for a native vegetation offence, may also be commenced within, but not later than, 2 years after the date on which evidence of the alleged offence first came to the attention of any relevant investigation officer.
(3) If subsection (2) is relied on for the purpose of commencing proceedings for an offence, the court attendance notice or application must contain particulars of the date on which evidence of the offence first came to the attention of any relevant investigation officer and need not contain particulars of the date on which the offence was committed. The date on which evidence first came to the attention of any relevant investigation officer is the date specified in the court attendance notice or application, unless the contrary is established.
(4) This section applies despite anything in the Criminal Procedure Act 1986 or any other Act.
(5) In this section -
evidence of an offence means evidence of any act or omission constituting the offence.
investigation officer means an authorised officer within the meaning of Part 12, whether or not the person has the functions of an investigation officer in connection with the offence concerned.
relevant investigation officer means -
(a) in relation to proceedings for an offence instituted by or with the authority of the Environment Agency Head - any investigation officer who is an employee of the Office of Environment and Heritage, or
(b) in relation to proceedings for an offence instituted by any other person - any investigation officer.
[4]
Grounds of appeal
The notice of appeal identifies the following grounds:
"(1) The primary judge erred in concluding that, upon a proper construction of s 190(1) of the National Parks and Wildlife Act 1974 (NSW) and s 13.4(2) of the Biodiversity Conservation Act 2016 (NSW), the time limit to commence the proceedings no. 2022/173269-173288 expired at the end of 11 June 2022 rather than the moment before the beginning of 11 June 2022.
(2) The primary judge erred in concluding that s 190(1) [sic] of the National Parks and Wildlife Act 1974 (NSW) and s 13.4(2) [sic] of the Biodiversity Conservation Act 2016 (NSW) did not evince a contrary intention so as to displace the application of s 36(2) of the Interpretation Act 1987 (NSW)."
[5]
Arguments advanced in the appeal
Mr P Herzfeld SC appeared for the applicant and Ms N Sharp SC for the respondent. Both Senior Counsel also appeared in the proceedings before the judge. Mr Herzfeld said that the respondent's contention that the prosecutions were commenced within time rested on two steps, the first being "that within, but no later than, two years after 11 June 2020 runs to the end of 11 June 2022 and that was a Saturday, and the second step is that s 36(2) of the Interpretation Act then extended the period for the commencement until the next business day." [4]
Mr Herzfeld submitted that if the applicant's arguments about the first step were right, the second step would not need consideration as the "weekend issue" would not arise. If the applicant's arguments about the first step were wrong, the applicant's submission was that s 36(2) did not apply as it had been displaced by s 190(3) of the NPW Act and s 13.4(4) of the BC Act.
[6]
Ground 1: The first issue - did the limitation period expire on 10 June 2022 or 11 June 2022?
[7]
A summary of the applicant's submissions
Mr Herzfeld commenced by emphasising that the judge's decision was inconsistent with this Court's "dicta" in Truegain. Reliance was placed on what was said by Leeming JA (with whose reasons R A Hulme and Button JJ agreed) at [9]:
"The summons stated that evidence of the offence first came to the attention of an authorised officer on 6 June 2010. The POEO Act contains its own time limits. It requires prosecutions for an offence under s 64 to be commenced "within but not later than" 12 months after the date on which it is alleged to have been committed: s 216(1). However, s 216(2) authorises the commencement of proceedings for an alleged offence under, inter alia, s 64, "within but not later than" 12 months after the date on which evidence of the offence first came to the attention of any relevant authorised officer. By filing its summons on Friday 3 June 2011, the EPA did not commence its prosecution until the last possible day."
Mr Herzfeld said that it appears this Court concluded in Truegain that the last date for filing was Friday, 3 June 2011 by reasoning that the 12-month period expired on Sunday, 5 June 2011, and then reasoning that the EPA did not obtain the benefit of s 36(2) of the Interpretation Act so as to be able to file on the next working day. Rather, the EPA was required to file by Friday, 3 June 2011, the previous working day. It was submitted that both conclusions were inconsistent with the findings of the judge.
It was accepted that the question of whether the prosecution was validly commenced within time did not appear to have been an issue in Truegain and Leeming JA's "dicta" was not part of the "ratio" of the decision that this Court should follow unless persuaded that it is "plainly wrong" and there are "compelling reasons" to depart from that decision: Totaan v The Queen (2022) 108 NSWLR 17; [2022] NSWCC 75 at [72]. Mr Herzfeld, nevertheless, contended that this Court should follow its previous approach absent compelling reasons which were not present in this case, as both principle and authority supported the "dicta" in Truegain. R v Obeid (No 2) [2015] NSWSC 1380 at [43] was cited.
Mr Herzfeld referred to the judge's conclusion that the application of the general rule in Lester v Garland and Dodds v Walker was the "correct approach to be adopted". Mr Herzfeld submitted that his Honour did not explain why the application of the "general rule" was clear. He submitted that his Honour erred in concluding that s 190 and s 13.4 are not penal provisions and, in any event, that conclusion did not lead to the respondent's approach being correct. Mr Herzfeld emphasised that the approach in Lester v Garland and Dodds v Walker is expressed as general in nature and subject to exceptions.
[8]
A summary of the respondent's submissions
Ms Sharp pointed out that the issues between the parties in Truegain did not include whether the prosecution had been commenced within time and there was no indication in Leeming JA's reasons that the limitation period had been the subject of any submissions or argument by the parties. In the absence of there having been any argument on the limitation period, and in light of the observation not being related to the issues to be decided (as to duplicity and costs), Leeming JA's remarks are properly to be treated as "mere dicta" or "passing dicta". It was submitted that it should not be given the weight that would be afforded to "considered dicta" and Truegain is of no assistance on the issue of the commencement of the limitation period.
The judge did not err, Ms Sharp submitted, in rejecting the applicant's arguments for the following reasons:
Firstly, all the words of the operative statutory phrases in s 190(1)(b) of the NPW Act and s 13.4(2) of the BC Act must be construed and effect must be given to the word "after". Ms Sharp argued that the word "after" provides a clear indication that the date on which evidence of the offence came to the relevant officer's attention is not to be counted. Ms Sharp criticised the applicant's contentions as erroneously ignoring the word "after" and instead proceeded on the basis that the phrase to be construed is "within, but not later than 2 years".
Ms Sharp contended that the applicant's reliance on Screnci is misplaced and ignores in its analysis that the word "after" must have some operation. The fact that s 127(5) of the EPA Act used "not later than 2 years after…" and did not use the word "within" was of no significance.
Secondly, the applicant's contention that its construction is consistent with the purpose of the provisions should be rejected because it is a circular argument.
Thirdly, the characterisation of a s 190(1)(b) of the NPW Act and s 13.4(2) of the BC Act as "penal provisions" did not assist the applicant. Ms Sharp contended that in order for the characterisation of a statutory provision as a "penal provision" to have any significance to an issue of construction, there must be "real ambiguity" that persists after the ordinary rules of construction are applied. Furthermore, these provisions do not operate to create offences and therefore are not "penal provisions" that attract the operation of the principle. They are procedural. Ms Sharp contended that nothing in Sommerville assists the applicant.
[9]
A summary of the applicant's submissions in reply
In arguing that Leeming JA's observation in Truegain was not "mere dicta", Mr Herzfeld contended that the Interpretation Act, which is legislation that prima facie applies to all New South Wales legislation, did not need to be drawn to his Honour's attention.
Mr Herzfeld argued that the applicant's construction did not erroneously ignore the word 'after'. He pointed out that the relevant provisions require a prosecution to be commenced within a period that falls "after" the date on which evidence of the alleged offence first came to the attention of a relevant officer. The question is whether that period includes or excludes that date.
Mr Herzfeld contended that the respondent's construction gave the word "within" no work to do and the respondent had not explained why the inclusion of "within" is of no significance. He argued that if the Legislature had intended that the provisions would be constructed consistently with Screnci, it would have used the same formulation and not have included "within".
Further, it was argued that the respondent's criticism of the applicant's contention that its construction is consistent with the purpose of the provision as being circular should be rejected. Furthermore, the respondent had offered no authority in support of the proposition that the principle of construction relating to penal provisions applies only to provisions that "operate to create offences". Mr Herzfeld submitted that the term "penal" is broader, given it includes statutes for providing for the confiscation of property in connection with criminal activity and civil penalties. In addition, the rule has been applied to provisions imposing a time limit not only in Sommerville, but also in Morgans v Director of Public Prosecutions [1999] 2 Cr App 99 at 113.
Mr Herzfeld contended that s 190 and s 13.4 are not "procedural provisions" as they specify when a prosecution may be commenced pursuant to an exception, and so in substance prescribe an element that needs to be satisfied by the prosecution for there to be a conviction.
As to the respondent's submission that s 36(1) of the Interpretation Act confirms the judge's conclusion, Mr Herzfeld said that this was a change in the respondent's position before the judge. In any event, the respondent's submission should be rejected for the same reasons that the expression "despite… any other Act" displaces s 36(2).
[10]
Consideration
Simply understood, the question for determination raised by Ground 1 is whether the date the evidence first came to the attention of the relevant investigation officer, namely 11 June 2020, was to be included in the calculation of the limitation periods of two years in s 190(1)(b) of the NPW Act and s 13.4(2) of the BC Act. If that date was to be included, the limitation periods expired at the conclusion of Friday 10 June 2022 and the prosecutions commenced on Tuesday 14 June 2022 were out of time. The judge found that the date the evidence first came to the relevant investigation officer's attention was not included in the calculation of the limitation periods and (subject to the issues raised in Ground 2) the limitation periods expired at midnight on 11 June 2022 rather than midnight on 10 June 2022. It is the applicant's case that the judge erred in reaching that conclusion.
[11]
Truegain
At the forefront of the applicant's submissions is that the judge was obliged to follow Leeming JA's "dicta" in the passage quoted at [25] above and his Honour's findings were inconsistent with the approach of this Court in Truegain. His Honour said at [128]:
"I have reached this conclusion because, read in its proper context, the observation by Leeming JA in Truegain did not arise in circumstances where there was any argument (let alone substantive argument) in the Court of Criminal Appeal concerning matters of substantive interpretation as are here engaged for my resolution. In this context (whilst it is, perhaps, inappropriately dismissive to describe Leeming JA's remark as a "throwaway line"), I am, nonetheless, not satisfied that it should be regarded as "persuasive dicta" and given the weight proposed by Mr Herzfeld to be ascribed to it in the present circumstances."
The applicant argues that the "dicta" of this Court should not be so readily despatched and the judge (and this Court) was required to follow the approach in Truegain absent compelling reasons for not doing so. The respect that is to be accorded to a decision of an intermediate appellate court is reflected in the principle that whilst not legally bound by their own earlier decisions, intermediate appellate courts should only depart from such authority if they are of the view that the decision in question is "plainly wrong" and there are "compelling reasons" to depart from the earlier decision: Totaan v R (2022) 108 NSWLR 17; [2022] NSWCCA 75 per Bell CJ at [72].
The applicant accepts that Leeming JA's remarks are not part of the ratio decidendi in Truegain. However, reliance was placed on the observations of Beech-Jones J (as his Honour then was) in Obeid at [43]:
"There is so far as I am aware no statement to the effect that a judge at first instance is bound by the "seriously considered dicta" of the Court of Appeal in the same way that all lower courts are bound by such dicta of the High Court (Farah Constructions Pty Ltd v Say-Dee Pty Ltd [2007] HCA 22; 230 CLR 89 at [134] and [158]). Nevertheless, at the very least, compelling reasons for departing from the above statements would need to be demonstrated before I could conclude that an MLA or MLC is not a "public officer". Before addressing whether there are such reasons I will mention some of the discussion in the United Kingdom relevant to this topic."
[12]
Relevant principles of statutory construction
The task of ascertaining the meaning of s 190(1)(b) of the NPW Act and s 13.4(2) of the BC Act begins "with a consideration of the text itself", although "the meaning of the text may require consideration of the context, which includes the general purpose and policy of a provision, in particular the mischief it is seeking to remedy"; Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27; [2009] HCA 41 ('Alcan') at [47] per Hayne, Heydon, Crennan and Kiefel JJ.
As there has been much debate in the competing arguments whether the words "within" and "after" are given work to do, the presumption against surplusage remains a valid guide to ascertaining their meaning; Taheri v Vitek (2014) 87 NSWLR 403; [2014] NSWCCA 209 per Leeming JA at [121]. Furthermore, a court construing a statutory provision must strive to give meaning to every word of the provision; Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 at [71] per McHugh, Gummow, Kirby and Hayne JJ.
The Court's attention was also drawn to [52] in the joint judgment of Kiefel CJ and Keane J in A2, which has been quoted at [35] above.
[13]
The meaning of s 13.4(2) of the BC Act and s 190(1)(b) of the NPW Act
It is useful to isolate ss 13.4(1) and 13.4(2) as the applicant's argument is founded, to an extent, on textual differences between the subsections. Section 13.4(2) includes the words "also" and "within" which are not present in s13.4(1). For ease of reference, ss 13.4(1) and 13.4(2) are as follows:
13.4 Time within which proceedings may be commenced
(1) Proceedings for an offence against this Act or the regulations, or for a native vegetation offence, may be commenced not later than 2 years after the date on which the offence is alleged to have been committed.
(2) Proceedings for an offence against this Act or the regulations, or for a native vegetation offence, may also be commenced within, but not later than, 2 years after the date on which evidence of the alleged offence first came to the attention of any relevant investigation officer.
These subsections are in essentially the same terms as ss 127(5) and 127(5A) of the EPA Act, which were as follows:
127 Proceedings for offences
…
(5) Proceedings for an offence against this Act or the regulations may be commenced not later than 2 years after the offence was alleged to be committed.
(5A) However, proceedings for any such offence may also be commenced within, but not later than, 2 years after the date on which evidence of the alleged offence first came to the attention of an authorised officer within the meaning of Division 2C of Part 6.
In Screnci, Craig J's focus was on s 127(5) of the EPA Act which is in similar terms to s 13.4(1). Section 127(5A), which is in similar terms to s 13.4(2), was not considered. Craig J found at [29] that "the prosecutor was bound to prove that the proceedings in respect of each offence were commenced not later than two years after the date upon which the evidence establishes that each offence was committed".
True it is, as the applicant submits, that it follows from Screnci that a provision in the terms of s 13.4(1) excludes the first day of the period commencing on the date of the alleged offending. I am not persuaded that it necessarily follows that the Legislature when enacting s 13.4(2) (which was after the decision in Screnci) intended by the inclusion of the word "within" for that subsection to have a different meaning. In enacting ss 13.4(1) and 13.4(2), the Legislature mirrored existing legislation, namely ss 127(5) and 127(5A) of the EPA Act. It appears that s 127(5A) has not been the subject of judicial consideration.
[14]
Ground 2: The second issue - does s 36(2) of the Interpretation Act apply?
As the limitation periods expired at the conclusion of Saturday 11 June 2022 and the prosecutions commenced on Tuesday 14 June 2022, the prosecutions were out of time unless s 36(2) operated to extend the time to that day (Monday being a public holiday).
[15]
A summary of the applicant's submissions
Mr Herzfeld pointed out that s 5(2) of the Interpretation Act provides that the Interpretation Act applies subject to a contrary intention appearing in the legislation being construed. He referred to s 190(3) of the NPW Act and s 13.4(4) of the BC Act which provide that the relevant section "applies despite anything in the Criminal Procedure Act 1986 or any other Act". He submitted that the reference to "any other Act" means all other Acts and there is neither a textual nor contextual reason to read down the reference to "any other Act" so that it excludes the Interpretation Act. Mr Herzfeld cited Alcan, in which the plurality (Hayne, Heydon, Crennan, and Kiefel JJ) said, inter alia, at [47]; "[t]he language which has actually been employed in the text of the legislation is the surest guide to legislative intention".
A further submission was that the construction of the phrase "any other Act" as including the Interpretation Act is consistent with the modern approach to penal provisions in A2. Mr Herzfeld contended that to the extent that there is any ambiguity as to whether "any other Act" really does mean "any other Act", that ambiguity should be resolved in the applicant's favour. Mr Herzfeld submitted that the inapplicability of s 36(2) does not occasion any unreasonable consequences. If a limitation period happens to end on a weekend or public holiday, the prosecutor could institute the prosecution within a slightly shorter period of time.
Mr Herzfeld argued that the judge erred in concluding that he was obliged to follow Wignalls Smallgoods and Price. He submitted that the principle in Hill v Zuda at [25]-[26] that neither an intermediate appellate court nor a trial judge should depart from a decision of another intermediate court on the interpretation of uniform national legislation unless convinced that the interpretation was plainly wrong, did not apply in the present case. Mr Herzfeld argued that the judge seemed to proceed on the basis that he needed to construe the Interpretation Act, being the legislation that was materially uniform in each of the States and Territories. In fact, his Honour was construing whether s 190(3) and s 13.4(4) evinced a contrary intention so as to displace s 36(2).
The applicant accepted that the judge was required to consider Wignalls Smallgoods and Price in construing the relevant legislation but submitted that the judge was not bound to follow them. Mr Herzfeld referred to the observations of McHugh J in Marshall v Director-General, Department of Transport (2001) 25 CLR 603; [2001] HCA 37 at [62] which the judge said were not "applicable" in the present case. In reaching that view, Mr Herzfeld submitted that the judge made two errors. Firstly, McHugh J's observations were not limited to legislation involving an "evaluative assessment". Rather, they are expressed to apply to the interpretation of statues which have analogues in other States generally. Secondly, as previously submitted, the judge made the error of misidentifying the statute he was required to construe.
[16]
A summary of the respondent's submissions
Ms Sharp observed that s 190(3) and s 13.4(4) do not expressly exclude the operation of the Interpretation Act and do not mention that Act which may be compared to s 5(1) of the Legal Profession Uniform Application Act 2014 (NSW) and ss 74N(4) and 81G(4) of the Real Property Act 1900 (NSW) that expressly exclude its application.
In support of the submission that a "contrary intention" to the application of the Interpretation Act could not be discerned from a consideration of the text, context and purpose of s 190(3) and s 13.4(4), Ms Sharp argued that these provisions are facultative, rather than restrictive, which operate only to displace the ordinary, shorter limitation periods that would otherwise apply to the prosecution of offences against those Acts. Ms Sharp submitted this is indicated by the use of the word "despite". Ms Sharp raised Attorney-General (Cth) v Oates (1999) 198 CLR 162; [1999] HCA 35 ('Oates') at [35] which explained the facultative operation of provisions such as ss 190(3) and s 13.4(4) which should be construed as having a similarly facultative operation as s 1316 of the Corporations Law in Oates.
Furthermore, Ms Sharp contended that the proposition that s 190(3) and s 13.4(4) do not oust the application of s 36(2) is supported by the decision of the Full Court of the Supreme Court of Tasmania in Wignalls Smallgoods and the Full Court of the Supreme Court of Queensland in Price. Ms Sharp raised Tillman v Attorney-General NSW (2007) 70 NSWLR 448; [2007] NSWCCA 327 at [106]-[108] whereby the importance of comity between intermediate appellate courts was referred to by Giles JA and Ipp JA.
Ms Sharp argued that the reasoning in each case was not "perfunctory" but persuasive. A further submission was that the applicant's contention that Truegain is authority as to the applicability of s 36(2), which should be followed in preference to Wignalls Smallgoods and Price should be rejected.
A further submission was that it was unlikely that the Legislature would have intended that a provision designed to provide a solution to the common problem of a day falling on a weekend or a public holiday be excluded from the application of the NPW Act and BC Act. Ms Sharp argued that the suggestion that the expiry of the time limit occurring on a weekend or a public holiday was "not a problem" because the prosecutor could simply impose upon the Duty Judge and pay a fee to have the LEC Registry opened was an unrealistic view of the circumstances in which courts ought to be prevailed upon to operate outside of their usual hours.
[17]
A summary of the applicant's submissions in reply
Mr Herzfeld submitted that contrary to the respondent's contention, the Interpretation Act was expressly excluded as s 190(3) and s 13.4(4) state that those sections apply despite "any other Act". Accordingly, the real issue was not whether the operation of the Interpretation Act is excluded by necessary implication. Rather, the question is whether there is any reason to read down the phrase "any other Act", other than consistently with its ordinary meaning.
As to the respondent's submission that the use of the word "despite" in s 190(3) and s 13.4(4) indicates that they are "facultative provisions", Mr Herzfeld said this submission was wrong. He argued that the use of the word "despite", like the use of "notwithstanding" to introduce a provision simply shows that it is the leading provision. The respondent raised as an example Environment Protection Authority v Condon (2014) 86 NSWLR 499; [2014] NSWCA 149 ('Condon') at [28]. It was further contended that the mere use of the word "despite" does not determine the point and contrary to the respondent's submissions, there is nothing in Oates that supports the proposition that the use of "despite" is always facultative or always expands upon the operation of other provisions. The reason it did so in Oates was because of the content of the provision at issue.
Whilst accepting that one of the effects of both provisions is to displace the operation of shorter limitation periods prescribed in other legislation, Mr Herzfeld submitted that "despite" does not compel a reading as having only that effect.
The respondent's submission that both provisions cannot evince an intention to exclude s 36(2) because they "are directed towards different things and thus they operate in tandem", Mr Herzfeld argued, makes the same mistake as the judge by making an a priori assumption as to the purpose of the provisions and then reading down the broad words used so as to conform to that assumption. He submitted that there is no basis in the text of the provisions to read them as limited to other Acts "directed to defining what the limitation period is".
It was further submitted that this is not a case where there is "no good reason" to exclude the operation of s 36(2). Mr Herzfeld argued that it is consistent with the legislative intention to allow the prosecutor two years in which to commence but no longer. He submitted that the inapplicability of s 36(2) occasions no unreasonable consequences such that it would be "most unlikely" that the Legislature would have intended to exclude it. Mr Herzfeld contended that in circumstances where the legislation allows two years in which a prosecution can be commenced, it would be expected that the cases in which the prosecution would need every available minute, including the last available weekend, to put together their case would be rare. In such cases, it would be appropriate for the court to be prevailed upon to operate outside of the court's usual hours.
[18]
Consideration
Simply understood, the question for determination raised by Ground 2 is whether s 36(2) of the Interpretation Act has been excluded by s 190(3) of the NPW Act and s 13.4(4) of the BC Act. As outlined at [87] above, the prosecutions were out of time unless s 36(2) operated to extend the time to that day (Monday being a public holiday).
[19]
Was the judge obliged to follow Wignalls Smallgoods and Price?
The judge reproduced the terms of s 29(3) of the Acts Interpretation Act 1931 (Tas) which was considered by the Full Court of the Supreme Court of Tasmania in Wignalls Smallgoods and s 38 of the Acts Interpretation Act 1954 (Qld) which was considered by the Full Court of the Supreme Court of Queensland in Price. [10] His Honour observed at [14]:
"As can be seen from the above‑reproduced provisions of the Commonwealth, Tasmanian and Queensland enactments, the various provisions are not in identical terms. Also, it is to be noted that they are not in identical terms to s 36 of the Interpretation Act. However, as can also be seen from an examination of the terms of each of the provisions, they each contain elements to identical effect, relevantly, to each of the elements of s 36 of the Interpretation Act." [11]
When deciding the second issue, his Honour said at [138]-[139]:
"I have earlier set out, at [9], the names of, and the relevant provisions in, each of the corresponding interpretation enactments for the Commonwealth and each state and territory. Although s 36(2) of the Interpretation Act in this jurisdiction is not replicated in identical terms in the wording of the various counterpart provisions in each of the other jurisdictions, the operative effect of each of those equivalent provisions is the same.
At [19], I have set out [25] and [26] of the recent decision of the High Court in Hill v Zuda. This decision makes it expressly clear (reinforcing the earlier decision of the High Court in Farah) that, in circumstances where there is equivalent national legislation (here to effect, if not in precise drafting) and there are relevant, clear decisions of intermediate appellate courts as to how such legislation is to be interpreted, I am mandated to follow those decisions." [12]
His Honour had correctly referred to the second principle identified in Farah and confirmed by the High Court in Hill v Zuda at [25]-[26] that "neither an intermediate appellate court nor a trial judge should depart from a decision of another intermediate appellate court on the interpretation of Commonwealth legislation, uniform national legislation or the common law of Australia unless convinced that the interpretation is plainly wrong, or to use a different expression, unless there is a compelling reason to do so."
[20]
The meaning of s 13.4(4) of the BC Act and s 190(3) of the NPW Act
Section 13.4(4) of the BC Act and s 190(3) of the NPW Act are in the same terms. Section 13.4 and s 190 apply "despite anything in the Criminal Procedure Act 1986 or any other Act".
The textual context in which each subsections appears is in a provision which prescribes the time within which proceedings against the relevant Act or regulations may be commenced. The purpose of the BC Act is to maintain "a healthy, productive and resilient environment" [14] and the objects of the NPW Act include "the conservation of nature". [15] The offence provisions such as ss 2.2(1)(b) and 2.4(1) of the BC Act are designed to protect "a threatened ecological community" and "a threatened species". The offence provisions such as ss 118A(2) and 118D(1) of the NPW Act are designed to protect "an endangered ecological community".
All of the offences with which the applicant has been charged may be prosecuted summarily. Section 179(1) of the Criminal Procedure Act 1986 provides that "[p]roceedings for a summary offence must be commenced not later than 6 months from when the offence was alleged to have been committed".
It is abundantly clear that the expression "despite anything in the Criminal Procedure Act" is intended to extend the time for the commencement of summary proceedings for offences against the BC Act and the NPW Act to the time prescribed in each Act. I have no doubt that the word "despite" in the context of the Criminal Procedure Act is facultative and not restrictive.
As in that context "despite" is facultative, does it become restrictive when construed with "any other Act"? Does "despite" possess chameleonic qualities so that its meaning changes after the word "or"? I think not. The expression "despite anything in the Criminal Procedure Act 1986 or any other Act" must be construed as a whole. I do not agree with Mr Herzfeld that "despite" can have two meanings in the same expression.
Construed as a whole, the plain intention of the expression is to authorise the commencement of proceedings which would otherwise be barred by reason of the 6-month time limitation in the Criminal Procedure Act or by a time limit in other legislation. I do not agree with Mr Herzfeld's submission that as s 27 of the Children (Criminal Proceedings) Act applies the limitation period for summary offences imposed by the Criminal Procedure Act, the respondent has not identified any other Act beyond the Criminal Procedure Act. The Children (Criminal Proceedings) Act is a statute in its own right and is not encompassed by the Criminal Procedure Act. The Children (Criminal Proceedings) Act falls within the expression "any other Act" even though it applies the same limitation period for summary offences as is imposed by the Criminal Procedure Act.
[21]
Orders
The orders I propose are:
1. Grant leave to appeal;
2. Dismiss the appeal; and
3. Remit the proceedings to the Land and Environment Court of NSW for mention on 11 August 2023.
DHANJI J: I agree with the orders proposed by Price J, and with his Honour's reasons. I would add only the following, relevant to the first issue of whether the limitation period expired, as the applicant contends, on 10 June 2022.
As has been explained by Price J, it was accepted that evidence of the alleged offences came to the attention of a relevant officer on 11 June 2020. Both s 190 of the National Parks and Wildlife Act 1974 (NSW) and s 13.4 of the Biodiversity Conservation Act 2016 (NSW) provided that a prosecution could be commenced "within but not later than 2 years after the date on which evidence of the alleged offence first came to the attention of" that officer. The applicant's construction overlooks the significance of the words "the date" in the expression "after the date".
To take a hypothetical example, if an offence came to the attention of an authorised officer at midday on 19 June 2023, a period of two years will conclude the moment before midday on 19 June 2025. The limitation period, however, is not two years after the relevant event but two years after the date of the relevant event (which also gives voice to the general principle that law does not deal in fractions of a day: see Prowse v McIntyre (1961) 111 CLR 264; [1961] HCA 79 at 270-71, 276, 278). The date in this case is 19 June 2023. Time begins to run after that date. Thus, the two year period begins at the commencement of 20 June 2023 and ends at the conclusion of 19 June 2025. (It is the conclusion of 19 June, rather than "midnight": see Prowse v McIntyre at 274, 278). Adapting this to the present case, the relevant date was 11 June 2020. The period of two years after that date expired at the conclusion of 11 June 2022. A literal reading of the provision also supports the construction of the primary judge.
[22]
Endnotes
Secretary, Department of Planning and Environment v Aerotropolis Pty Ltd [2023] NSWLEC 4 at [128].
Ibid at [129]-[130].
Ibid at [130].
Tcpt, 19 June 2023, p 2(25).
Tcpt, 19 June 2023, p 6(46).
Tcpt, 19 June 2023, p 6(33).
Tcpt, 19 June 2023, p 31(9).
See [4] above.
Tcpt, 19 June 2023, p 18(26)
Wignalls Smallgoods Pty Ltd v Kent (2002) 10 Tas R 460 at [9]-[13].
Secretary, Department of Planning and Environment v Aerotropolis Pty Ltd [2023] LEC 4 at [14].
Ibid at [138]-[139].
Attorney-General (Cth) v Oates (1999) 198 CLR 162; [1999] HCA 35 at [9].
See [80] above.
See [81] above.
Interpretation Act 1987 (NSW), s 5(2).
[23]
Amendments
10 August 2023 - paragraph numbering alignment
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.
Decision last updated: 10 August 2023
CA 37
Maxwell v Murphy (1957) 96 CLR 261; [1957] HCA 7
McPherson v Lawless [1960] VR 363
Morgans v Director of Public Prosecutions [1999] 2 Cr App 99
Morton v Hampson [1962] VR 364
Peacock v The Queen (1858) 4 CB (NS) 264
Price v JF Thompson (Qld) Pty Ltd [1990] 1 Qd R 278
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28
R v A2 (2019) 269 CLR 507; [2019] HCA 35
R v Obeid (No 2) [2015] NSWSC 1380
Reynolds v Reynolds [1941] VR 249
Secretary, Department of Planning and Environment v Aerotropolis Pty Ltd [2023] LEC 4
Susiatin v Minister for Immigration and Multicultural Affairs (1998) 83 FCR 574; [1998] FCA 825
Taheri v Vitek (2014) 87 NSWLR 403; [2014] NSWCCA 209
Tillman v Attorney-General NSW (2007) 70 NSWLR 448; [2007] NSWCA 327
Totaan v R (2022) 108 NSWLR 17; [2022] NSWCCA 75
Union Shipping New Zealand Limited v Morgan (2002) 54 NSWLR 690
V R Dye & Co v Peninsula Hotels Pty Ltd (In Liq) [1993] 3 VR 201
Wignalls Smallgoods Pty Ltd v Kent (2002) 10 Tas R 460
Willoughby City Council v Screnci [2015] NSWLEC 192
Ying v Song [2009] NSWSC 1344
Texts Cited: J D Heydon, Limits to the Powers of Ultimate Appellate Courts (2006) 122 LQR 399
Dennis Charles Pearce, Statutory Interpretation in Australia (1974, Butterworths)
Category: Principal judgment
Parties: Aerotropolis Pty Ltd (Applicant)
Secretary, Department of Planning and Environment (Respondent)
Representation: Counsel:
Mr P Herzfeld SC/Mr J Wherrett (Applicant)
Ms N Sharp SC/Ms S Patterson (Respondent)
Solicitors:
Clayton Utz (Applicant)
Department of Planning and Environment (Respondent)
File Number(s): 2023/45532
Publication restriction: Nil
Decision under appeal Court or tribunal: Land and Environment Court of New South Wales
Jurisdiction: Criminal
Citation: [2023] NSWLEC 4
Date of Decision: 02 February 2023
Before: Moore J
File Number(s): 2022/(173268-173288)
For the purposes of the motion, the parties had agreed that the evidence of each of the charged offences first came to the attention of the relevant investigation officer under the NPW Act and the BC Act on 11 June 2020. It was further agreed that 11 June 2022 was a Saturday, 12 June 2022 was a Sunday, and 13 June 2022 was a public holiday.
It was common ground that the prosecutions had to be commenced "within but not later than 2 years after" 11 June 2020, being the date that the evidence of the alleged offences came to the attention of the relevant officer. The respondent accepted that the prosecutor bore the onus of establishing the proceedings were commenced within time beyond reasonable doubt.
The principal submission made on behalf of the applicant to the judge was that on the proper construction of the phrase "within but not later than" the date that the evidence first came to the attention of the relevant investigation officer, namely 11 June 2020, was included such that the period of two years expressed to commence from that date ended immediately prior to the corresponding date two years later. The applicant contended that the limitation period expired on Friday 10 June 2022. It followed that the prosecutions which were commenced on Tuesday 14 June 2022 were out of time.
In support of that submission, the applicant placed reliance on what was said by Leeming JA in Environment Protection Authority v Truegain Pty Ltd (2013) 85 NSWLR 125; [2013] NSWCCA 204 ('Truegain') at [9]. The applicant's further submissions included that s 190 of the NPW Act and s 13.4 of the BC Act were "penal provisions" and the reliance by the respondent on the common law rule in Lester v Garland (1808) 15 Ves Jun 248 ('Lester v Garland') was misplaced, as it was a "general rule". Particular emphasis was placed on the difference in language in ss 13.4(1) and 13.4(2) of the BC Act, and on the word "within".
An alternative submission was that even if the date that the evidence first came to the attention of the relevant officer was excluded, such that the period of two years expressed to commence from that date ended at the end of the corresponding date two years later, namely Saturday 11 June 2022, s 36(2) of the Interpretation Act 1987 (NSW) had no role to play in the reckoning of time as the subsection had been displaced by the NPW Act and the BC Act.
The applicant pointed to s 190(3) of the NPW Act and s 13.4(4) of the BC Act in support of that submission and contended that there was no textual or contextual reason to read down the reference to "any other Act" so that it excluded the Interpretation Act. The applicant submitted that the judge was not bound to follow the decisions in Wignalls Smallgoods Pty Ltd v Kent (2002) Tas R 460 ('Wignalls Smallgoods') and Price v JF Thompson (Qld) Pty Ltd [1990] 1 Qd R 278 ('Price'). It was the applicant's contention that the respondent did not gain an extension to Tuesday 14 June 2022.
Section 5(2) of the Interpretation Act is as follows:
5 Application of Act
…
(2) This Act applies to an Act or instrument except in so far as the contrary intention appears in this Act or in the Act or instrument concerned.
…
Section 36 of the Interpretation Act is as follows:
36 Reckoning of time
(1) If in any Act or instrument a period of time, dating from a given day, act or event, is prescribed or allowed for any purpose, the time shall be reckoned exclusive of that day or of the day of that act or event.
(2) If the last day of a period of time prescribed or allowed by an Act or instrument for the doing of any thing falls -
(a) on a Saturday or Sunday, or
(b) on a day that is a public holiday or bank holiday in the place in which the thing is to be or may be done,
the thing may be done on the first day following that is not a Saturday or Sunday, or a public holiday or bank holiday in that place, as the case may be.
(3) If in any Act or instrument a period of time is prescribed or allowed for the doing of any thing and a power is conferred on any person or body to extend the period of time -
(a) that power may be exercised, and
(b) if the exercise of that power depends on the making of an application for an extension of the period of time - such an application may be made,
after the period of time has expired.
The respondent's principal submission to the judge was that 11 June 2020 was excluded for the calculation of the limitation period which resulted in the limitation period expiring on 11 June 2022. The respondent argued that the passage relied upon by the applicant in Truegain was a "throwaway line" and not "considered dicta". Further, the proper construction of the word "after" led to the conclusion that the date on which the relevant event occurred was excluded and the general rule in Lester v Garland applied. Another submission was that there was no "real ambiguity" in the provisions which, in any event, were not penal provisions.
The respondent, it appears, did not consider it necessary to rely on s 36(1) of the Interpretation Act. However, it was argued that neither the NPW Act nor the BC Act ousted s 36(2) of the Interpretation Act. The respondent submitted that Wignalls Smallgoods and Price were intermediate appellate court decisions directly on point which the judge was bound to follow.
I have refrained from summarising all of the arguments put to the judge as they are essentially the same submissions made to this Court and will be recounted in further detail. It is sufficient to state that the judge referred comprehensively to the competing submissions in his judgment.
His Honour rejected the applicant's submissions. On the first issue, being the time when the limitation period commenced to run, his Honour was not satisfied that the remarks of Leeming JA in Truegain at [9] should be regarded as "persuasive dicta". [1] His Honour was not persuaded that s 190 of the NPW Act and s 13.4 of the BC Act were "penal provisions", but considered that these subsections were "procedural" or "administrative" provisions. [2] His Honour accepted that the respondent's submission that the general rule devolved from Lester v Garland, and addressed by Diplock LJ in Dodds v Walker [1981] 1 WLR 1027, was "the correct approach to be adopted". [3] His Honour concluded at [131]:
"On this basis, the expiry of the time period within which knowledge of Company's alleged offending conduct was able to come to the attention of the relevant authorised officer for the purposes of validly founding commencement of prosecutions (subject to further consideration of the second issue in dispute between the parties to these proceedings) was midnight on 11 June 2022 rather than midnight on 10 June 2022."
In making this finding, his Honour accepted that the approach taken by the respondent was correct and the day that the event occurred, namely 11 June 2020, was not included in the calculation of the limitation periods.
On the second issue, being the operation of s 36(2) of the Interpretation Act, his Honour found that s 36(2) was not ousted by either s 190(3) of the NPW Act or s 13.4(4) of the BC Act. His Honour stated at [143]:
"As I observed in the introductory portion of this decision, there are unambiguous decisions of two intermediate appellate courts (the Full Court of the Supreme Court of Tasmania in Wignalls Smallgoods and the Court of Appeal in Queensland in Price) that have expressly rejected, in those two jurisdictions, the proposition here advanced for the Company by Mr Herzfeld that the effect of s 36(2) of the Interpretation Act in this jurisdiction is ousted by statutory provisions of the nature of s 190(3) of the NPWS Act or s 13.4(4) of the Biodiversity Conservation Act."
The applicant's motion was dismissed with costs reserved.
In the context of the relevant provisions, Mr Herzfeld argued that the effect of the word "within" is to compel the applicant's approach which is to include the date when evidence of the alleged offence first came to the attention of the relevant officer. Three reasons were said to further support that submission:
Firstly, the use of similar but not identical words in ss 13.4(1) and 13.4(2) of the BC Act. Section 13.4(2) uses the word "within" while s 13.4(1) does not. Mr Herzfeld referred to the general proposition that the use of different words within a statute indicates a difference in meaning. Willoughby City Council v Screnci [2015] NSWLEC 192 ('Screnci') was raised. Mr Herzfeld said that "[t]he difference in meaning is evidenced by the way the Land and Environment Court dealt with a provision formulated in the same way as [s 13.4(1)] in [Screnci]". [5] It was submitted that s 127(5) of the Environmental Planning and Assessment Act 1979 (NSW) ('the EPA Act') was in the same terms as s 13.4(1) of the BC Act and Craig J's decision that the limitation period expired on 27 February 2016 meant that the date on which evidence of the alleged offence first came to the attention of the authorised officer was excluded from the calculation of the limitation period.
Mr Herzfeld argued that s 13.4 of the BC Act was enacted after Screnci and it was open to the Legislature to use the formulation "may be instituted after two years" without the word "within". He submitted that the effect of the word "within" is "to adopt a construction narrower than that which would have been adopted if the word 'within' had been excluded". [6] The word "within" should be given work to do which was to shorten the period to which s 13.4(2) is directed. The same reasoning was submitted to apply to s 190(1)(b) of the NPW Act.
Secondly, the applicant's approach cohered with the purpose of the provisions. The extension of time for the commencement of proceedings under s 13.4(2) was intended, Mr Herzfeld submitted, to ensure that offenders do not escape prosecution where there is delay in the detection of the offence. Mr Herzfeld contended that if the respondent's approach was accepted, the prosecution obtained "more than" two years within which to bring a prosecution - an advantage that the Legislature did not intend to confer. It was submitted that in imposing a time limit, the Legislature clearly intended to encourage timely investigations and the prompt commencement of prosecutions.
Finally, as these provisions provide an exception to the ordinary limitation period that operates in favour of the prosecutor, these provisions are particularly apt to the application of the modern approach to the construction of penal provisions. Mr Herzfeld cited the joint judgment of Kiefel CJ and Keane J in R v A2 (2019) 269 CLR 507; [2019] HCA 35 ('A2') at [52]:
"A statutory offence provision is to be construed by reference to the ordinary rules of construction. The old rule, that statutes creating offences should be strictly construed, has lost much of its importance. It is nevertheless accepted that offence provisions may have serious consequences. This suggests the need for caution in accepting any "loose" construction of an offence provision. The language of a penal provision should not be unduly stretched or extended. Any real ambiguity as to meaning is to be resolved in favour of an accused. An ambiguity which calls for such resolution is, however, one which persists after the application of the ordinary rules of construction." (Footnotes omitted.)
Mr Herzfeld contended that his Honour erred in not characterising s 190 and s 13.4 as penal provisions. He argued that the applicant can only be subject to the penalty that attaches to the relevant offence if the prosecution has been brought within time. As compliance with the time limit is what potentially exposes a person to the imposition of a penalty, the relevant sections are properly characterised as "penal provisions". Mr Herzfeld cited Chief Executive of the Office of Environment and Heritage v Sommerville [2019] NSWLEC 155 at [49]-[52] ('Sommerville') as correctly proceeding on the basis that s 190 of the NPW Act is a penal provision.
Fourthly, a construction of the phrases in s 190(1) and s 13.4(2) that gives effect to the word "after" by excluding the date on which the relevant event occurred from the calculation of the relevant period of time is consistent with long-standing authority. Ms Sharp cited Lord Diplock in Dodds v Walker at 1029.
Fifthly, s 36(1) of the Interpretation Act provides confirmation that the date on which evidence of the alleged offences came to the relevant officer's attention is to be excluded from the calculation of the two year period.
Ms Sharp further submitted that the phrase "within but not later than two years after" is a compound expression and the preposition "after" requires attention. She argued that "[t]he word 'within' must always be tethered to a preposition. The preposition is the mooring around which the word 'within' pivots. The preposition here is 'after'." [7]
When referring to the difference in language in ss 13.4(1) and 13.4(2), Ms Sharp contended that "it is a distinction without a difference" because the phrase "within two years after the date" means exactly the same as "no later than two years after the date". A further submission was that the draftsperson of ss 13.4(1) and 13.4(2) did not use the word "within" superfluously in s 13.4(2) as it is used to be "confirmatory" of s 13.4(1).
Ms Sharp submitted that the adoption of the general rule in Dodds v Walker which has been referred to as "the corresponding date rule" was to overcome arguments over fractions of days and cited Ex parte Toohey's Limited; Re Butler (1934) 34 SR (NSW) 277 at 278 and Morton v Hampson [1962] VR 364 at 365 as authorities in which the corresponding date rule was recognised.
In Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89; [2007] HCA 22 ('Farah'), the High Court (Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ) said at [134]:
"That too is not a step which an intermediate court of appeal should take in the face of long-established authority and seriously considered dicta of a majority of this Court."
Similar remarks were made at [158]. The High Court emphasised the need to have regard to long-established authority and "seriously considered dicta" of the majority of the High Court. More recently, in Hill v Zuda Pty Ltd [2022] HCA 21 ('Hill v Zuda') the High Court said at [25]:
"Farah Constructions identified two decision-making principles. The first is that an intermediate appellate court should not depart from seriously considered dicta of a majority of this Court." (Footnotes omitted.)
In Ying v Song [2009] NSWSC 1344, Ward J (as her Honour then was) comprehensively reviewed the weight to be accorded to the authorities in that case as there were two apparently conflicting positions in relation to s 128 of the Evidence Act 1995 (NSW). Her Honour noted at [21]-[25]:
"In Brunner v Greenslade [1971] Ch 993 at 1002-1003, Megarry J said (quoted in a footnote in Justice Heydon's article "Limits to the Powers of Ultimate Appellate Courts" (2006) 122 LQR 399 at 415 n 114):
A mere passing remark or a statement or assumption on some matter that has not been argued is one thing, a considered judgment on a point fully argued is another, especially where, had the facts been otherwise, it would have formed part of the ratio
(after which Justice Heydon adds the comment:
A statement of this kind has judicial weight nearer to that of a ratio decidendi than an obiter dictum.)
The factors which may affect the weight to be attributed by an ultimate appellate court to its own dicta were outlined by Justice Heydon in the article referred to above, as follows:
The attention to be paid to a statement on a point of law by an unquestionably great judge will vary with the circumstances in which it was made - whether it was made in the course of argument in open court while dealing with an example far removed from the case in hand; or made during an application for leave or special leave to appeal; or made in argument to counsel during an application for ex parte relief; or made in an interlocutory unreserved judgment; or made in a judgment in a case in which the loser was not represented, or argued by a litigant in person, or argued by very incompetent counsel; or made in an obiter dictum very far removed from either the core of the case or the arguments of the parties; or made in a case in which no party argued that the proposition was wrong. (Footnotes omitted.)
Of the factors in determining the weight to be accorded to such dicta is whether the point was argued before the court in which such dicta was uttered. Here, the majority in Cornwell noted the absence of dispute between the parties on the question. It is submitted by Mr Lawson that there was therefore no reasoned argument on the question. Nevertheless, the transcript of proceedings before the Court shows that there was some debate on this issue in oral argument and that their Honours had had regard in some detail to the background to the section. Therefore, while it may be that there is a question whether this should be treated as "seriously considered" dicta of the majority, it certainly appears to go beyond what might be described as "passing dicta", to use the terminology considered by Heydon JA (as his Honour then was) when sitting in the Court of Appeal, in Union Shipping New Zealand Limited v Morgan (2002) 54 NSWLR 690 at 734:
When dealing with cases apparently adverse to it, the defendant tended to read the scope of possible rationes decidendi in cases down remorselessly and distinguish the cases ruthlessly. When dealing with cases containing favourable statements, the defendant tended to gloss over the fact that those statements reflected common ground or a want of contrary argument. Arguably Cook v Cook must be understood as not glossing over the differences between passing dicta, considered dicta, and rationes decidendi; nor the difference between statements proceeding from highly experienced lawyers of good reputation in ultimate appellate courts and statements proceeding from other persons.
In Beveridge v Whitton [2001] NSWCA 6, Heydon JA, with whom Mason P and Powell JA agreed, stated:
The liquidator did not explain the basis for his submission that the Victorian Court of Appeal in V R Dye & Co v Peninsula Hotels Pty Ltd (In Liq) [1993] 3 VR 201 at 214 was wrong. … In any event, the court ought not to refuse to follow the decision of the Victorian Court of Appeal in V R Dye & Co v Peninsula Hotels Pty Ltd (In Liq) without being convinced that it is plainly wrong: Akins v Abigroup Ltd (1998) 43 NSWLR 539 at 547. The same is true in my opinion of well-considered dicta even if, which is questionable, the statements of the Victorian Court of Appeal can be regarded as obiter dicta. I am far from being convinced that either the decision or the dicta, if that is what they are, were wrong.
If a judge ought not to depart from the well-considered dicta of an intermediate appellate court unless convinced that it is plainly wrong, then, a fortiori, that must be true of the well-considered dicta of an ultimate appellate court. Hence, the dilemma posed for a trial judge when considering the weight to be accorded to Ferrall in light of the subsequent dicta in Cornwell."
There is undoubtedly a difference in the weight to be given to "passing dicta" and "seriously considered dicta" of an intermediate appellate court. I would agree with the observations of Beech-Jones CJ at CL (as his Honour now is) in Obeid that "seriously considered dicta" of the Court of Appeal (here the Court of Criminal Appeal) should be followed unless there are compelling reasons for departing from that "seriously considered dicta".
In Truegain, the EPA sought leave to appeal pursuant to s 5F of the Criminal Appeal Act in respect of three interlocutory decisions made by Lloyd AJ in the Land and Environment Court. The principal issue in the appeal was whether the primary judge erred in determining that the summons filed in Class 5 of the jurisdiction of the Court suffered from duplicity. The EPA also challenged an order of costs against it.
The EPA claimed by its summons filed on Friday 3 June 2011 that Truegain had committed an offence against s 64(1) of the Protection of the Environment Operations Act 1997 (NSW) ('POEO Act') which required prosecutions for the offence to be commenced "within but no later than" 12 months after the date on which the evidence of the offence first came to the attention of an authorised officer. The summons stated that evidence of the offence first came to the attention of an authorised officer on 6 June 2010. In the passage quoted at [27] above, Leeming JA said that "the EPA did not commence its prosecution until the last possible day."
Unsurprisingly, Leeming JA did not give reasons for those remarks. The issues in the case did not concern whether the prosecution had been commenced within time. There is nothing to suggest that there were any submissions made or any argument by the parties on this point. No party appears to have argued that Leeming JA's view as to "the last possible day" was wrong. Furthermore, there is nothing to suggest that his Honour's attention was drawn to s 36(2) of the Interpretation Act.
Should the limitation period have been an issue, I have no doubt that reasons would have been given by Leeming JA for his remarks about the commencement of the prosecutions. Leeming JA provided lengthy reasons for deciding that the prosecutor's summons was duplicitous and that the primary judge was wrong to order costs against the prosecutor. I do not agree with Mr Herzfeld's submissions that there was no need to bring s 36(2) to Leeming JA's attention. If there had been argument about the limitation period, s 36(2) would inevitably have been raised. Leeming JA's remarks were far removed from the issues to be decided.
In my view, Leeming JA's remarks cannot be regarded as "seriously considered dicta" which the judge was obliged to follow unless compelling reasons for departure were demonstrated. Although the remarks of an eminent appellate judge were to be given respectful weight, it remained a matter for the judge to decide the questions of statutory construction which were in issue. The judge did not err in not regarding the dicta in Truegain as "persuasive".
The applicant places particular emphasis on the inclusion of the word "within" in s 13.4(2). There are a number of authorities which have considered that word. In Reynolds v Reynolds [1941] VR 249, when considering the expression "has within five years… left his wife habitually without the means of support" O'Bryan J said at 252:
"The word 'within' in relation to a period of time does not usually mean 'during' or 'throughout the whole of': it is more frequently used to delimit a period 'inside which' certain events may happen."
In Morton v Hampson [1962] VR 364, the question for the Full Court of the Supreme Court of Victoria was whether a notice of appeal was served within time. Section 74(2)(a) of the County Court Act 1958 (Vic) required a party to give written notice of appeal "within fourteen days after such judgment or order". The Full Court said at 365:
"The modern rule in relation to a period of time fixed by a statute 'within' which an act is to be done after a specified event is that the day of the event is to be excluded; the next day is the first day of the stipulated period and the time expires on the last day of the period, counting from and of course including the first day…"
In Susiatin v Minister for Immigration and Multicultural Affairs (1998) 83 FCR 574; [1998] FCA 825, the issue was whether the applicant in that case had commenced proceedings pursuant to s 476 of the Migration Act 1958 (Cth) within the time period of 28 days following notification of the Minister's decision, as required by s 478 of the Act. Beaumont J said at 580:
"In my opinion, the word "within" in the present context, has a meaning similar to that attributed to it in the authorities I have mentioned, that is to say, it should be read as indicating the limits of a period before the end of which the relevant act must be done and that for this purpose, the day of the act in question is to be excluded."
The construction of the word "within" as excluding the day of the act in question is consistent with Lester v Garland and Dodds v Walker. In Dodds v Walker, Lord Diplock said at 1029:
"It is also clear under a rule that has been consistently applied by the courts since Lester v Garland… that in calculating the period that has elapsed after the occurrence of the specified event such as the giving of a notice, the day on which the event occurs is excluded from the reckoning."
The rule in Lester v Garland ('the corresponding date rule') is a general rule and subject to exceptions. However, I do not discern from the text of s 13.4(2) an intention not to follow the corresponding date rule which overcomes the practical difficulties associated with identifying the precise time if the limitation period commences from the time of the triggering event with corresponding arguments about fractions of days.
These authorities provide support for the respondent's contention that the word "within" in the context of s 13.4(2) is tethered to the word "after" so that the calculation of the two-year period excludes the day the alleged offences were brought to the attention of the relevant officer.
Viewed in this way, both words have work to do and s 13.4(2) is not ambiguous. The purpose of the BC Act "is to maintain a healthy, productive and resilient environment for the greatest well-being of the community" (s 1.3 BC Act). The textual context in which the subsection appears is a provision which prescribes the time for the commencement of proceedings and the intention behind s 13.4(2) is to enable proceedings to be commenced even though 2 years have expired after the date on which the offence is alleged to have been committed. There is no reason to conclude that the corresponding date rule does not sit happily with the purpose of the section and the mischief (the commission of offences against the BC Act) that the legislation seeks to remedy.
The textual differences that arise in ss 13.4(1) and 13.4(2) do not apply to s 190(1) as subsections (a) and (b) both commence with the expression "within but not later than…". The objects of the NPW Act include "the conservation of nature" which is to be "achieved by applying the principles of ecologically sustainable development" (s 2A NPW Act). The textual context in which the subsections appear is a provision which prescribes the time for the commencement of the proceedings. It makes no sense that the Legislature would deprive the prosecution in proceedings for an offence against the NPW Act which are commenced "within but no later than 2 years after the date on which the offence is alleged to have been committed" (s 190(1)(a)) of the corresponding date rule. There is no reason to conclude that the corresponding date rule does not sit happily with both ss 190(1)(a) and 190(1)(b) and the mischief (the commission of offences against the NPW Act) that the legislation seeks to remedy. Section 190(1)(b) is not ambiguous.
As I have found that there is no ambiguity in either provision after the ordinary rules of construction have been applied, it is not necessary to consider whether the provisions in issue are penal in nature: A2 at [52]. It is convenient to add Adamson J's (as her Honour then was) observation in Sommerville v Chief Executive of the Office of Environment [2020] NSWCCA 93 ('Sommerville No 2) at [46]:
"The principle that, as an exception in favour of the prosecutor, it must be strictly construed (Morgans v Director of Public Prosecutions [1999] 2 Cr App R 99 at 113 (Kennedy LJ, Sullivan J agreeing)) must be doubted in light of what was said by Kiefel CJ and Keane J in The Queen v A2 [2019] HCA 35; (2019) 93 ALJR 1106 at [52]..."
There has been some debate as to whether s 190(1)(b) of the NPW Act and s 13.4(2) of the BC Act are "penal" provisions. Although unnecessary for the disposition of this appeal, I will express a view on this issue.
Statutes "which impose a time limit on the commencement of proceedings to enforce right" have been traditionally regarded as "procedural"; Maxwell v Murphy (1957) 96 CLR 261; [1957] HCA 7, per Fullagar J at 286-287. There was no consideration in either Sommerville or Sommerville No 2 as to whether s 190 of the NPW Act was "penal" or "procedural". In my view, the provisions which create the offences are "penal". The offence provisions under which the applicant is charged are "penal" provisions. [8] The limitation sections, namely s 190 of the NPW Act and s 13.4 of the BC Act are procedural.
The judge did not err in finding that the date the evidence first came to the investigation officer's attention was not included in the calculation of the limitation periods and the limitation periods expired at midnight on 11 June 2022.
I would dismiss Ground 1 of the appeal.
It was further argued that this Court should follow its own decision in Truegain in preference to Wignalls Smallgoods and Price as:
1. The dispositive reasoning of Slicer J in Wignalls Smallgoods and the majority in Price is perfunctory.
2. The reasoning of Slicer J in Wignalls Smallgoods and the majority in Price paid insufficient regard to the breadth of the words of the provisions at issue, which prescribed a time period which applied "notwithstanding any other law" and imposed an artificial constraint on the words.
3. Price is distinguishable on the basis that it did not concern a penal statute. It dealt with the limitation period applicable to personal injuries actions. Accordingly, the modern approach to penal statutes, by which an ambiguity is resolved in favour of an accused, had no application.
4. In Wignalls Smallgoods, Slicer J paid insufficient regard to the fact that he was interpreting a penal provision. Mr Herzfeld was critical of the judge's analysis of the limited purpose of the phrase "or any other Act" which his Honour found was confined to the time limits that might ordinarily apply by reason of the Criminal Procedure Act 1986 (NSW) and the Children (Criminal Proceedings) Act 1987 (NSW). Mr Herzfeld argued that limited purpose does not explain the breadth of the words in fact used. It was submitted that his Honour erred by making an a priori assumption as to the purpose of these provisions and then reading down the broad words used so as to conform to that assumption.
Further submissions were made as to the general rule (absent any such Interpretation Act provision that when a statute names a period which an act is to be done the weekend is included). Peacock v The Queen (1858) 4 CB (NS) 264 and McPherson v Lawless [1960] VR 363 at 369 were cited.
Rule 5.3(1) of the Land and Environment Court Rules 2007 (NSW) was referred to as was the Practice Note applicable to Class 5 proceedings in the Land and Environment Court. Mr Herzfeld submitted that the respondent could have commenced the prosecutions on a Saturday by making an application to the Duty Judge and the Court's Registry can be opened on the weekend upon payment of a fee. He further submitted that contrary to the respondent's submissions at first instance, the "problem" of a time limit expiring on a weekend was in fact not a problem at all.
As to Wignalls Smallgoods and Price, Mr Herzfeld observed that the respondent now correctly accepts that this Court is not bound to follow those decisions unless convinced they are plainly wrong and noted that the respondent's submission that its argument is "supported" by those decisions.
Mr Herzfeld submitted that there were two difficulties with the respondent's argument that the words "any other Act" are to ensure that other time limitations do not apply. The first was that the respondent had not pointed to any other applicable limitation period other than the Criminal Procedure Act 1986 (NSW). He argued that s 27 of the Children (Criminal Proceedings) Act 1987 (NSW) simply applies the general provisions of the Criminal Procedure Act including the limitation period and no other Act had been identified beyond the Criminal Procedure Act. The second was that if Parliament was "simply aiming at displacing contrary limitation periods, it would have said 'this provision applies despite anything in the Criminal Procedure Act or any other Act which prescribes a limitation period'". [9] The legislative provision, he emphasised, was "more general" and there was "no warrant to cut down the breadth of the words 'or any other Act'".
In this appeal, the respondent does not submit, as it did before the judge, that the second principle in Farah and Hill v Zuda applies so that the judge was obliged to follow the decisions of the intermediate appellate courts of Tasmania and Queensland in Wignalls Smallgoods and Price. It is hardly surprising that the respondent does not argue that those decisions are binding precedent as the State legislation interpreted by each Full Court were not identical or substantially similar to s 13.4(4) of the BC Act or s 190(3) of the NPW Act. Furthermore, there are differences in the Interpretation Acts considered in each case.
The respondent confined its argument to both cases providing support for its contention that s 190(3) and s 13.4(4) do not oust the application of s 36(2) and cited the joint judgment of Giles JA and Ipp JA in Tillman (Mason P dissenting), who emphasised the importance of comity between intermediate appellate courts in the construction of substantially similar State or Territory legislation.
In concluding as his Honour did in the passages quoted at [22] and [109] above that he was obliged to follow the decisions in Wignalls Smallgoods and Price, his Honour erred. His Honour had the duty to exercise his own independent discretion in the interpretation of the statutes, whilst giving respectful consideration to those intermediate appellate court decisions.
Turning to Wignalls Smallgoods, I do not agree with Mr Herzfeld's criticism that the dispositive reasoning of Slicer J (and the majority) was perfunctory. As will be seen from the passages of the judgments quoted below, the issues in the case were carefully canvassed by the Full Court. Furthermore, I do not agree that Slicer J paid insufficient consideration to the fact that he was construing what was regarded as a penal provision. It is plain that Slicer J bore that in mind.
In Wignalls Smallgoods, s 55 of the Workplace Health and Safety Act 1995 (Qld) ('the Workplace Act') provided that, "Notwithstanding anything in any other Act", proceedings for an offence may not be instituted later than 12 months after the act or omission alleged to have constituted the offence.
On 24 December 2001, Wignalls Smallgoods was charged with an offence contrary to the Workplace Act. The offence was alleged to have been committed on 23 December 2000, which was a Sunday. The appellant's submission that the prosecution was out of time was rejected by the Full Court of the Supreme Court of Tasmania. The Full Court held that s 55 did not displace s 29(3)(a) of the Acts Interpretation Act 1931 (Tas) which provided that where a stipulated time for doing an act fell on a Sunday, statutory holiday, or public holiday, the act to be done was to be considered to be done in due time if it was done the next day.
Slicer J (with whom Crawford J and Evans J agreed) explained at [6] that s 55 permitted a limitation period different from the shorter limitation period of 6 months stated in the Justices Act 1959 (Tas). Section 55 did not operate to displace the Acts Interpretation Act (Tas). Slicer J said at [12]:
"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.'"
Slicer J further observed at [19]:
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.
Crawford J added the following observations at [2]:
"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."
In Price, the Full Court of the Supreme Court of Queensland considered the construction of s 11 of the Limitation of Actions Act 1974-1981 (Qld) which provided:
"Notwithstanding any other Act or law or rule of law, an action for damages for negligence… or breach of duty… in which damages claimed by the plaintiff consist of or include damages in respect of personal injury… shall not be brought after the expiration of 3 years from the date on which the cause of action arose."
The appellant had been injured in the course of his employment on 6 July 1982. He commenced an action for damages on 8 July 1985 which was more than three years after the date on which the cause of action arose. In 1985, 6 July was a Saturday and his action was commenced on the following Monday. The respondent submitted that by s 11, the appellant's right of action was barred. The appellant submitted that s 38(3) of the Acts Interpretation Act 1952-1977 (Qld) applied so that his right of action did not become barred until the following Monday.
The appeal was allowed (Carter J dissenting). The majority (Moynihan and de Jersey J) held that the reference in s 11 to its application "notwithstanding any other Act or law or rule of law" did not exclude the operation of s 38 of the Acts Interpretation Act.
Moynihan J said at 283 [24]-[34]:
"In my view the reference in s.11 of the Limitation Act to "Notwithstanding any other Act or law or rule of law" has the consequence that s.11 of the Limitation Act is the exclusive determinant of the matters which with it deals to the exclusion of any other provision which might otherwise deal with the same subject matter and is restricted to that consequence. In other words the reference in s.11 to any other Act is a reference to an Act dealing with a period upon the expiration of which an action cannot be brought or imposing a limitation as to the time in which proceedings coming within s.11 are to be instituted. Section 11 does not exclude the operation of s.38(3) of the Interpretation Act if that is, by its terms, applicable."
The judgment of de Jersey J included his Honour's consideration of s 38(3) of the Acts Interpretation Act which included "unless otherwise expressly provided". It is important to note that those words do not appear in s 36 of the Interpretation Act of this State. His Honour said at 287 [12]-[28]:
"I mention now the significance of the opening words of s.11: "Notwithstanding any other Act or law or rule of law…". Those words do not exclude the applicability of s.38(3) of the Acts Interpretation Act. They were included in s.11 to make it abundantly clear that in respect of such actions, s.11 prevailed over other statutory limitations on the right to sue for damages in respect of personal injuries, limitations of the character of those mentioned in s.4(2) of the 1956 Act. I also observe that the licence accorded by s.38(3) of the Acts Interpretation Act to commence an action on a Monday following a Saturday is to apply "unless otherwise expressly provided". Reading s.38(3) of the Acts Interpretation Act with s.11 of the Limitation of Actions Act, and assuming for argument that the opening words of s.11 could otherwise operate to exclude s.38(3) (which is contrary to my opinion) the inclusion in s.38(3) of the words "unless otherwise expressly provided" excludes that possible construction of s.11. That is because there is nothing in s.11 sufficiently specific to amount to the express exclusion of the application of s.38(3) of the Acts Interpretation Act."
I do not agree with Mr Herzfeld's criticism that the dispositive reasoning of the majority in Price was perfunctory.
Ms Sharp placed emphasis in oral argument on the High Court's judgment in Oates and submitted that s 190(3) of the NPW and s 13.4(4) of the BC Act should be construed as having the same facultative operation as s 1316 of the Corporations Law was held to have in Oates.
In Oates, the High Court (Gleeson CJ, McHugh, Gummow, Kirby and Hayne JJ) considered s 1316 of the Corporations Law which stated:
"Despite anything in any other law, proceedings for an offence against this Law may be instituted within the period of 5 years after the act or omission alleged to constitute the offence or, with the Minister's consent, at any later time."
The respondent had been charged with offences against ss 229 and 570 of the Companies Code. The prosecution was commenced on 12 January 1995, and the offences were alleged to have been committed between August 1988 and May 1989. On 5 January 1995, the Minister for Justice had consented to the institution of proceedings, although there was an issue in the proceedings whether that consent was valid. All of the offences were indictable. Under Western Australian Law, prosecutions for summary offences were required to be commenced within a twelve-month period. However, there was no time limitation on the commencement of prosecutions for indictable offences.
The Full Court of the Federal Court held that the phrase "[d]espite anything in any other law" was "a reference to any law, whether common law or statute, that is inconsistent with a requirement that a prosecution must be commenced within five years". The appellants challenged that holding: that prosecutions for offences against the Corporations Law, even those prosecuted on indictment where otherwise there is no time limit, must be instituted within the five year period; and, if that period had elapsed, the consent of the Minister was always required. The appellant's primary submission was at [9]: "that s 1316 is facultative rather than restrictive in character and does not impose any special limitation upon the period within which all prosecutions, whether conducted summarily or on indictment, must be commenced". [13] The appellant submitted at [20] that the opening expression "[d]espite anything in any other law" indicated "that the section displaces what otherwise would be obstacles and does so by empowering or authorising the commencement of proceedings which otherwise would be barred by reason of a time limitation imposed by some other statute".
The High Court accepted the appellant's submissions and held that the section was facultative, not restrictive. The section authorised the commencement of proceedings (e.g. summary offences) which would otherwise be barred by reason of a time limitation imposed by another statute.
Mr Herzfeld argued that there is nothing in Oates that supports the proposition that the use of the word "despite" is always facultative. He referred to Leeming JA's judgment in Condon where his Honour considered the use of the word "despite" in clause 6 of the Protection of the Environment Operations (Waste) Regulation 2005. Clause 6 commenced "[d]espite clause 5…" Leeming JA said at [28]:
"First, cl 6 prevails over clause 5 ("Despite clause 5"). "Despite" is a word used in more modern legislation where once "notwithstanding" might have been used: Attorney-General (Cth v Oates [1999] HCA 35; 198 CLR 162 at [33]. Its purpose is to ensure that the operation of cl 6 is unaffected by cl 5."
This Court's task is to interpret the meaning of s 190(3) of the NPW Act and s 13.4(4) of the BC Act. In undertaking that task, the principles of statutory construction summarised at [67]-[69] above apply. Although all of the authorities which I have mentioned (including Truegain) are helpful, they do not relieve this Court from the obligation of exercising its independent judgment in construing each provision.
There is neither an express nor implicit intention to exclude the operation of s 36 of the Interpretation Act. The Interpretation Act applies as no contrary intention appears in either the BC Act or the NPW Act. [16] After the ordinary rules of construction are applied, there is no ambiguity which requires resolution.
The judge correctly concluded that s 13.4(4) of the BC Act and s 190(3) of the NPW Act did not oust s 36(2) of the Interpretation Act. It follows that s 36(2) extended the time for the proceedings to Tuesday 14 June 2022. The respondent established beyond reasonable doubt that the prosecutions commenced within time.
It is convenient to add that s 36(1) of the Interpretation Act supports the conclusion in the disposition of Ground 1 that the day the evidence first came to the investigating officer's attention was not included in the calculation of the limitation periods.
HEADNOTE
[This headnote is not to be read as part of the judgment]
The applicant is the subject of proceedings in the Land and Environment Court of NSW where it faces criminal proceedings in relation offences against the National Parks and Wildlife Act 1974 (NSW) ('the NPW Act') and the Biodiversity Conservation Act 2016 (NSW) ('the BC Act'). Those proceedings were brought by summonses filed by the respondent on Tuesday, 14 June 2022.
The applicant filed a notice of motion seeking orders that the prosecutions were commenced out of time. Each Act prescribes a 2-year limitation period for the commencement of proceedings from the date on which evidence of the alleged offence first came to the attention of any relevant investigation officer. This date was agreed to be 11 June 2020. The applicant contended that the limitation period expired on Friday, 10 June 2022 (Ground 1). The applicant also contended that even if this was not the case, and the 2-year period expired on 11 June, the Interpretation Act 1987 (NSW) did not apply to extend the limitation period from Saturday 11 June 2022 to Tuesday 14 June 2022, noting Monday, 13 June 2022 was a public holiday (Ground 2).
In relation to Ground 1, particular emphasis was placed on the words "within, but not later than" to distinguish the limitation period from the general "corresponding date rule", in which the date of discovery of the offences is not included in the limitation period.
In relation to Ground 2, the applicant contended that the words "despite anything in the Criminal Procedure Act 1986 or any other Act" served to exclude the Interpretation Act from applying, and thus the limitation period was to be interpreted strictly and could not be extended over the long weekend.
The notice of motion was dismissed, with the primary judge finding that the limitation period did not expire until 11 June 2022, and that the Interpretation Act was not ousted by the language in the NPW Act or BC Act.
The applicant sought leave to appeal this decision. The issues on appeal were whether the limitation period expired on 10 June 2022 or 11 June 2022 (Ground 1), and, if the limitation period expired on 11 June 2022, whether s 36(2) of the Interpretation Act applied (Ground 2). Consideration was also given as to the weight, if any, to be given to remarks in reasons for judgment regarding matters which were neither in issue nor argued.
The Court held (Price J, Adamson JA and Dhanji J agreeing), dismissing the appeal:
Ground 1
Per Price J (Adamson JA agreeing, Dhanji J agreeing with additional reasons):
(1) The addition of the words "within, but not later than" does not convey an intention not to follow the corresponding date rule. The primary judge did not err in finding that the date the evidence first came to the investigation officer's attention was not included in the calculation of the limitation periods. Accordingly, the limitation periods expired at the conclusion of 11 June 2022: [70]-[86] (Price J).
(2) The remarks of an eminent appellate judge which were far removed from the issues to be decided, although to be given respectful weight, cannot be regarded as "seriously considered dicta" which the primary judge was obliged to follow unless compelling reasons for departure were demonstrated. It remained a matter for the judge to decide the questions of statutory construction which were in issue: [65]-[66] (Price J).
Environment Protection Authority v Truegain Pty Ltd (2013) 85 NSWLR 125; [2013] NSWCCA 204 at [9] (Leeming JA); Willoughby City Council v Screnci [2015] NSWLEC 192, considered.
Ground 2
Per Price J (Adamson JA and Dhanji J agreeing):
(3) The expression "despite anything in the Criminal Procedure Act 1986 or any other Act" does not operate to displace the application of the Interpretation Act. The plain intention of the expression is to authorise the commencement of proceedings which would otherwise be barred by reason of the 6-month time limitation in the Criminal Procedure Act, or by a time limit in other legislation. The primary judge correctly concluded that s 13.4(4) of the BC Act and s 190(3) of the NPW Act did not oust s 36(2) of the Interpretation Act. It follows that s 36(2) extended the time for proceedings to be commenced to include Tuesday, 14 June 2022: [133]-[141] (Price J).