Alcan (NT) Alumina Pty Ltd v Commissioner of Northern Territory Revenue

Alcan (NT) Alumina Pty Ltd v Commissioner of Northern Territory Revenue - [2010] WASC 52 - WASC 2010 case summary — Zoe

[74]

'It is well settled that at common law, apart from any reliance upon s 15AB of the Acts Interpretation Act 1901 (Cth), the court may have regard to reports of law reform bodies to ascertain the mischief which a statute is intended to cure. Moreover, the modern approach to statutory interpretation (a) insists that the context be considered in the first instance, not merely at some later stage when ambiguity might be thought to arise, and (b) uses "context" in its widest sense to include such things as the existing state of the law and the mischief which, by legitimate means such as those just mentioned, one may discern the statute was intended to remedy. Instances of general words in a statute being so constrained by their context are numerous. In particular, as McHugh JA pointed out in Isherwood v Butler Pollnow Pty Ltd (1986) 6 NSWLR 363, 388, if the apparently plain words of a provision are read in the light of the mischief which the statute was designed to overcome and of the objects of the legislation, they may wear a very different appearance. Further, inconvenience or improbability of result may assist the court in preferring to the literal meaning an alternative construction which, by the steps identified above, is reasonably open and more closely conforms to the legislative intent.' (footnotes omitted)

In the passage from CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384, 408, set out above, Brennan CJ, Dawson, Toohey and Gummow JJ cited with approval the reasons of Mason and Wilson JJ in Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation [1981] HCA 26; (1981) 147 CLR 297, 320 - 321, where their Honours said:

If the judge applies the literal rule it is because it gives emphasis to the factor which in the particular case he thinks is decisive. When he considers that the statute admits of no reasonable alternative construction it is because (a) the language is intractable or (b) although the language is not intractable, the operation of the statute, read literally, is not such as to indicate that it could not have been intended by the legislature.

... the propriety of departing from the literal interpretation is not confined to situations described by these labels [namely absurd, extraordinary, capricious, irrational or obscure]. It extends to any situation in which for good reason the operation of the statute on a literal reading does not conform to the legislative intent as ascertained from the provisions of the statute, including the policy which may be discerned from those provisions.

[83]

The Macquarie Dictionary Online [ at 7 March 2010] relevantly defines:

(a) the verb 'represent' to mean '3. to stand or act in the place of, as a substitute, proxy, or agent. 4. to speak and act for by delegated authority: to represent one's government in a foreign country';

(b) the noun 'representation' to mean '1. the act of representing. 4. speech or action on behalf of a person, body, business house, district, or the like by an agent, deputy or representative';

(c) the adjective 'representative' to mean '1. serving to represent; representing. 2. standing or acting for another or others'; and

(d) the noun 'representative' to mean '7. someone or something that represents another or others. 10. an agent or deputy; a legal representative'.

The Oxford English Dictionary Online [ at 7 March 2010] defines:

(a) the verb 'represent' to mean '1. a. To assume or occupy the role or functions of (a person), typically in restricted, and usually formal situations; to be entitled to speak or act on behalf of (a person, group, organization, etc.); (in later use esp.) to act or serve as the spokesperson or advocate of ... b. Originally: to occupy or assume (the status, role, etc.) of a person or group of people (obs.). In later use: to serve as a representative of (the interests, etc.) of a person or group';

(b) the noun 'representation' to mean '3. a. The fact or process of standing for, or in the place of, a person, group, institution, etc., esp. with the right or authority to speak or act on behalf of these; (in later use also) the action or fact of representing a party in a legal case';

(c) the adjective 'representative' to mean '1. a. That stands in the place of a person or thing; spec. ...(b) that speaks or acts on behalf of a wider body or group of people... b. Of, relating to, or based on the fact of one person, group, or thing standing in the place of another ...';

(d) the noun 'representative' to mean '3. a. More generally: a person who stands for, speaks, or acts on behalf of another person or group of people, typically in an official capacity...'

[113]

Division 2 deals with how the tribunal will be constituted for an appeal. The president will determine how the tribunal is to be constituted, and it may comprise one or three members. One of the objectives of the Bill is that the new appeal system will operate with as little formality and technicality as possible and will provide determinations as rapidly as possible, consistent with sound decision making. With this objective in mind, the Bill provides for the constitution of the tribunal for an appeal to be determined on the basis of the degree of complexity and formality appropriate to its resolution. For more simple cases - developments of less than $250,000, subdivisions of not more than three lots, and other classes of appeal set out in the Town Planning Appeal Tribunal rules - the appeals will be conducted with a degree of informality and flexibility similar to that found in the Small Claims Tribunal. Those appeals will be heard by a single ordinary member. The hearings will be conducted in an informal atmosphere. The emphasis will be on inquisitorial rather than adversarial processes. However, if the president is of the opinion that an appeal is likely to raise complex or significant planning issues, he may direct that the appeal be determined by a senior member or by the tribunal constituted by three members.

...

Division 4 deals with the proceedings of the tribunal. All planning appeals and related referrals, which currently are made to the minister or the tribunal, in future will be made to the tribunal. All procedures for lodging appeals, giving notice, attendance at hearings and related matters will be contained in the rules and regulations. The tribunal will have the power to affirm the original determination or direction, vary or set it aside, or make another determination or direction. The tribunal may also make ancillary or incidental orders. The procedures of the tribunal embrace the concept of natural justice and procedural fairness, ensuring that no party is disadvantaged by the process. Within this context, the tribunal will deal with each appeal with as little formality and technicality as possible to provide soundly based outcomes in the minimum time. Parties who attend a hearing may appear personally or be represented by an agent or legal practitioner. To ensure the appeals process is as informal as possible, legal representation for the more simple appeals mentioned previously would be elected by the appellant at the time the appeal is lodged. If the appellant elects not to have legal representation, no party to the appeal will be entitled to representation by a legal practitioner. For other appeals, including those of a more complex nature or which raise questions of law, parties may be represented by a legal practitioner if they choose. An appellant who is a legal practitioner may appear and legal representation may be permitted in cases in which an appellant subsequently withdraws an election not to have legal representation (emphasis added): Western Australia, Parliamentary Debates, Legislative Assembly, 28 June 2001, 1583 (The Hon A MacTiernan, Minister for Planning and Infrastructure)

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (130 paragraphs)

WESTERN AUSTRALIAN PLANNING COMMISSION -v- DUNGEY [2010] WASC 52 (16 March 2010)

Textual considerations of s 58 of the Town Planning Act

The Second Reading speech introducing s 58 of the Town Planning Act

The consequences of the wider construction of s 58 and s 239

Parties

Legislation Cited (6)

Cases Cited (15)