Associated Dominions Assurance Society Pty Ltd v Balmford

High Court of Australia|1950-07-01|Before: Fullagar JJ, McTiernan J

For the reasons which I have given I am of opinion that the notice was a good notice under s. 55. It is unnecessary for me therefore to consider the questions arising upon the Acts Interpretation Act. In my opinion the appeal should be dismissed.

On the morning of 3rd May 1948 the respondent, the defendant in the action, handed to an officer of the appellant, the plaintiff in the action, at its registered office, the following notice in writing: "It appears to me, the Insurance Commissioner appointed under the Life Insurance Act 1945, that Associated Dominions Assurance Society Pty. Ltd. (hereinafter called the "Company") is likely to become unable to meet its obligations and that the rate of expense of procuring, maintaining, and administering the life insurance business of the company in relation to the income derived from premiums is unduly high now therefore in pursuance of the provisions of section 55 of the Life Insurance Act 1945 by this Notice I call upon the Company to show cause within the period of fourteen days next ensuing after the second day of May one thousand nine hundred and forty-eight why I should not on the ground that the company is likely to become unable to meet its obligations and the ground that the rate of expense of procuring maintaining and administering the life insurance business of the company in relation to the income derived from premiums is unduly high appoint a person to investigate the whole of the business of the company and report to me the results of his investigation. Dated the thirtieth day of April one thousand nine hundred and forty-eight."

Section 55 of the Life Insurance Act 1945 requires that a notice shall specify a period not less than fourteen days from the date of the notice within which a company may show cause to the satisfaction of the commissioner why he should not investigate the whole or any part of the business of the company or appoint a person to make such an investigation and report to the commissioner the results of his investigation. The two short questions that arise on the appeal are (1) whether the above notice is a valid notice under this section; and (2) whether, if this notice would otherwise be invalid, it is saved by ss. 36 (2) and 46 (a) of the Acts Interpretation Act 1901-1947 (the Interpretation Act in force at the relevant time).

Question (1). The notice bears date 30th April 1948 but was not served until 3rd May 1948. The minimum period which must be allowed to a company to show cause is a period of not less than fourteen days from the date of the notice, so that if the words "the date of the notice" in s. 55 refer to the date of the document, the notice does satisfy the requisite period, whereas if they refer to the date of service the notice does not do so. A notice to a person in the ordinary use of language cannot be a notice until it is communicated to him. Communication may be made in different forms, and it is not unusual for a statute to prescribe a particular form and manner of communication. Section 55 does this for it requires that a company shall receive a notice in the form of a notice in writing, and that it shall be communicated by being served on the company. It is also not unusual for statutes to provide that a person shall be deemed to have received a communication although he may not in fact have done so. Accordingly s. 146 of the Life Insurance Act provides that a notice in writing may be served upon a person personally or be posted addressed to him at his usual or last known place of abode or business, and that any notice so addressed and sent shall be deemed to be notice to that person. Section 29 of the Acts Interpretation Act provides that unless the contrary is proved service by post shall be deemed to be effected at the time at which the letter would be delivered in the ordinary course of post.

The present notice was handed to the company so that the meaning of these sections is not in question and they do not appear to throw any light upon the meaning of the words "the date of the notice" in s. 55.

Section 55 does not require that there should be any date on the notice. It refers to the date of the notice. It is the duty of the Court to construe an Act so as to give effect to the intent of Parliament and, in enacting s. 55, Parliament obviously intended that a company should have a period of at least fourteen days after it had received notice that the commissioner intended to investigate its affairs within which to show cause why such an investigation should not be made. It appears to me that the date of the notice must be the date on which it becomes an effective notice under the section - that is the date when the notice is actually served on the company or if sent by post is deemed to be served in accordance with s. 146 of the Life Insurance Act and s. 29 of the Acts Interpretation Act. As service of the present notice was effected on Monday 3rd May, that is the date of the notice. To comply with s. 55, the period specified in the notice had to be a period of not less than fourteen days from 3rd May.

It was contended that the fourteen days had to be fourteen clear days but it is not necessary to determine this point because the notice had at the least to specify a period which did not expire until Monday 17th May. The notice in fact specified a period of fourteen days next ensuing after 2nd May. This period commenced on Monday 3rd May and ended on Sunday 16th May. The notice did not therefore specify a proper period under the section.

Question (2). It was contended that the notice was, within the meaning of s. 46 (a) of the Acts Interpretation Act, an instrument issued under the Life Insurance Act and that, since the last day for showing cause in the period specified in the notice was a Sunday, s. 36 (2) of the Acts Interpretation Act extended the last day until Monday 17th May and that, with the assistance of the Acts Interpretation Act, the notice did specify a period of at least fourteen days from the date of service of the notice. I am of opinion that the notice is such an instrument, but I do not think that the respondent can obtain any assistance from s. 36 (2). If a period complying with s. 55 of the Life Insurance Act had been specified which ended on a Sunday, s. 36 (2) of the Acts Interpretation Act would have enlarged the period until the following Monday. But the last day of a period of at least fourteen days from the day of the service of the notice would have expired on a Monday and not on a Sunday, and s. 36 (2) would not have come into operation. I am of opinion that s. 36 (2) could only operate upon an effective notice under s. 55 of the Life Insurance Act and could not convert a notice which is invalid because it does not specify a period of at least fourteen days from the date of the notice into a valid notice under the latter section.

If, as the respondent submits, any actual notice, however short, would comply with s. 55 of the Life Insurance Act 1945, provided the notice specified a period of not less than fourteen days from the date appearing in the notice, then this express provision of a minimum period was a waste of words, as actually it achieved nothing. But that result is reached only if we insist on reading "date of the notice" in s. 55 as referring to the date specified in the document, and not to the date of actual notice, i.e. of service of the notice. The latter meaning is, I think, open and should be taken to be that intended by Parliament. The article "the" before "notice" in s. 55 could, I think, refer to actual notice as well as to the document. But if this meaning is accepted, then the notice was drawn in contravention of s. 55 and invalid. Section 36 of the Acts Interpretation Act does not make it valid; the purpose of s. 36 is to provide for the construction of instruments otherwise valid.

Section 55 of the Life Insurance Act 1945 provides that, in certain circumstances, the Insurance Commissioner may serve on a life insurance company "notice in writing calling upon it to show cause, within such period, not less than fourteen days from the date of the notice, as is specified in the notice," why an investigation of the affairs of the company should not be made. It is then provided that, "if the company fails, within the period specified in the notice, to show cause to the satisfaction of the commissioner," the investigation may be made. The succeeding sections deal with the conduct and consequences of the investigation.

On 3rd May 1948 the commissioner, who is the respondent on this appeal, served on the appellant company a notice in writing calling upon it "to show cause within the period of fourteen days next ensuing after the second day of May One thousand nine hundred and forty-eight" why an investigation of its affairs should not be made. At the end of the document appear the words "Dated the thirtieth day of April One thousand nine hundred and forty-eight."

It was conceded that the serving of a notice complying in all respects with the requirements of s. 55 was a condition precedent to the power of the commissioner to make an investigation, and, the legislation being framed as it is, I would think the concession inevitable. It was then argued for the appellant company that the notice served did not comply with s. 55 in that the time which it allowed for showing cause was less than the time which s. 55 requires to be allowed.

Some argument took place as to the minimum number of days which must, if s. 55 is complied with, be allowed after "the date of the notice" (whatever that may mean) for showing cause. It was common ground that the date of the notice itself must be excluded in calculating the time (see Acts Interpretation Act 1901-1947, s. 36 (1)). But it was argued on the one hand that the time to be allowed expired at the end of the fourteenth day after the date of the notice, so that the commissioner could commence an investigation on the fifteenth day. It was argued on the other hand that the Act required that fourteen clear days should elapse between the date of the notice and the first day on which the commissioner could commence an investigation. On this view the period would not expire until the end of the fifteenth day after the date of the notice, and the first day on which the investigation could commence would be the sixteenth day after that date. In the view which I take of the case the question does not really arise, but I may say that, in my opinion, the former view is clearly the correct view. There is some authority for saying that the use, in a statute prescribing a time limit, of such expressions as "at least" and "not less than" indicate an intention that the specified number of "clear days" must elapse between two acts or events (see R. v. Justices of Shropshire [1] ; Young v. Higgon [2] ; Chambers v. Smith [3] ; In re Railway Sleepers Supply Co. [4] and Ex parte McCance; Re Hobbs [5] ). But it is clear, I think, that significance is attached to such expressions as "at least" or "not less than" only in cases where the immediate purpose of the prescription of a time is to define a period on the expiration of which an act may be done, and not in cases where the immediate purpose is to define a period within which an act must be done. In the former class of case the prescribed number of days must elapse between two acts or events. In the latter class of case the act must (unless a contrary intention appears) be done before the expiration of the last of the prescribed number of days (see, e.g. Radcliffe v. Bartholomew [1] and Armstrong v. Great Southern Gold Mining Co. [2] ). In the latter case Griffith C.J. said: - "When you talk of doing a thing within a period of a certain number of days, it is quite clear that the end of the last day is the furthest limit. It is impossible to say that a thing required to be done within seven days is done within seven days if done on the eighth day, and it is impossible to make any alteration of the limit by adding the word "clear" " [3] . In the case of s. 55 of the Life Insurance Act it is plain that the immediate purpose of the prescription of a period is to fix a time within which cause must be shown. It follows that the last day on which cause may be shown is the fourteenth day after the date of the notice.

(1838) 8 Ad. & E. 173 [ 112 E.R. 803]. 2. (1840) 6 M. & W. 49 [ 151 E.R. 317]. 3. (1843) 12 M. & W. 2 [ 152 E.R. 1085]. 4. (1885) 29 Ch. D. 204. 5. (1926) 27 S.R. (N.S.W.) 35; 44 W.N. 43. 6. (1892) 1 Q.B. 161. 7. (1911) 12 C.L.R. 382. 8. (1911) 12 C.L.R., at p. 388.

In the present case the document served allowed "the period of fourteen days next ensuing after the second day of May" 1948. That period would expire at midnight on 16th May 1948. The document purports to be "dated" 30th April, but it was served on 3rd May. A period of fourteen days from 30th April would expire at midnight on 14th May, but a period of fourteen days from 3rd May would not expire until midnight on 17th May. If, therefore, the words "date of the notice" in the Act mean the date which the document bears on its face, the minimum period which the Act requires to be allowed ran from 30th April and expired at midnight on 14th May, and the notice complies with the Act, because it allows up to midnight on 16th May. In effect two more days are allowed than is necessary. If, on the other hand, the words "date of the notice" in the Act mean the date when notice was given by means of the service of the document, the minimum period which the Act requires to be allowed ran from 3rd May and expired at midnight on 17th May, and the notice does not comply with the Act, because it allows only up to midnight on 16th May. One day too little is allowed. The former construction of the Act is put by the respondent, the latter by the appellant company.

The view that the words "date of the notice" refer to the date of a document is, at first sight, supported by a formal consideration which is not without weight. The word "notice" occurs four times in s. 55. On the first, third and fourth occasions, it is clearly used as referring to a document. One would naturally expect it to bear the same meaning on the second occasion of its use, which is the critical occasion for the purposes of this case. One may, therefore, perhaps say that the prima facie and natural construction is to treat the word "notice" in the expression "date of the notice" as referring to a document. But, even if this be conceded, there are, in my opinion, considerations which far outweigh it, and which compel the construction for which the appellant company contends.

The first point to observe is, I think, that the word "notice" is clearly capable of meaning "notification" or "intimation." Indeed, that is its primary meaning, and it is only in a secondary and transferred sense that it is used to describe a document, which is the means by which "notice" is given or conveyed. In the second place, the argument that the word should be given the same meaning in all four places in which it occurs in s. 55 is greatly weakened, if not indeed destroyed, when one looks at s. 146, in which also the word "notice" occurs four times. In s. 146 it is used somewhat loosely, but certainly not in the same sense on all four occasions. Section 146 provides for service of a "notice" either personally or by post, and it concludes: "and any notice so addressed and sent" (i.e. by post) "shall be deemed to be notice to that person." Here it is clear that the word "notice" first refers to a document and is immediately afterwards used as meaning "notification" or the giving or serving of "notice."

The above considerations are negative, but they serve to remove any difficulty in the way of giving effect to a strong affirmative reason for construing the words in question as referring to the date of notification or of giving or serving the document. That reason is that to construe the words as referring to the date which appears on the document could lead to unjust, and indeed absurd, consequences, and could defeat the whole object of the provision for notice. That object obviously is that the company shall have fourteen days in which to show cause, but, if that construction be correct, a document "dated" 1st May and allowing fourteen days from 1st May could be served on the company on 15th May. The section would be complied with, although the company might be left with only a few hours in which to show cause. There is abundant authority for construing a statute so as to avoid such consequences if the language leaves it possible to do so. It is sufficient to quote the words of Barton J. in Bowtell v. Goldsbrough Mort & Co. Ltd. [1] . That learned judge said: "If there are two possible constructions, one working a manifest injustice and the other not, then I think the latter construction is the one which should be adopted." It is undeniable, to my mind, that the construction contended for by the company is open on the language used, and, in my opinion, it should be adopted.

But there is, I think, another reason for adopting that construction. That construction really does resolve all ambiguity: it makes the position clear and intelligible. The other construction leaves a serious ambiguity in the section and could give rise to serious difficulties. For, if we say that the word "notice" refers to a document, what is meant by "the date of the notice"? So far I have been assuming that that expression means the date which the document bears or the date stated in the document. But does it mean this? If it does, can the commissioner or his agent insert any date he likes in the document? This does not seem likely: a date (say, 1st May) arbitrarily inserted in a document which did not come into existence until (say) 14th May would hardly, one would think, be what the legislature meant by the expression "date of the notice." Or does the expression mean the date on which the document is signed? But there appears to be nothing in s. 55 which requires the document to be signed at all: for all that appears, it could be couched in the third person. Then does it mean the date on which it is drafted or typed or printed, or the date on which the commissioner decides to use it? It seems to me that these questions really do arise, if the respondent's construction is adopted, and they are not disposed of by saying that prima facie the date of an instrument is the date stated in it. If we adopt the other construction, the words used mean the date on which the document becomes effective as a "notice" by being served, and all the difficulties disappear.

For the above reasons 1 am of opinion that, on the construction of s. 55 alone, the notice was defective, and the appellant succeeds. The respondent, however, submitted a further argument based on the Acts Interpretation Act 1901-1947. (The Act of 1948 did not come into force until after the material date.) The 16th May 1948, the date on which the notice given to the company expired, was a Sunday, and s. 36 (2) of the Act provides that: - "Where the last day of any period prescribed or allowed by an Act for the doing of anything falls on a Sunday, or on any day which is a public or a bank holiday throughout the Commonwealth, or throughout the State or part of the Commonwealth in which the thing is to be or may be done, the thing may be done on the first day following which is not a Sunday or such public or bank holiday." And s. 46 provides: - "Where an Act confers upon any authority power to make, grant or issue any instrument (including rules, regulations or by-laws), then - (a) unless the contrary intention appears, expressions used in any instrument so made, granted or issued shall have the same meanings as in the Act conferring the power, and this Act shall apply to any instrument so made, granted or issued as if it were an Act and as if each such rule, regulation or by-law were a section of an Act."

I should think that the document served in this case was an "instrument" within the meaning of s. 46, and the argument was that, because the time allowed by the notice expired on a Sunday (16th), s. 36 (2) extended the time until midnight on the 17th. The notice having been served on the 3rd, the time which s. 55 required to be allowed expired at midnight on the 17th. The company, it was said, was entitled to have until that time to show cause. It did have until that time. Therefore, it was said, the notice was a good and valid notice.

I would agree that the combined effect of the notice and of s. 36 (2) of the Acts Interpretation Act is that the company may "show cause" at any time up to midnight on 17th May. The last day of the period prescribed or allowed by the instrument for the doing of the thing falls on a Sunday. The "thing," therefore, may be done on the following day, which is a Monday. In my opinion, however, it does not follow that the notice was a good and valid notice. Section 36 (2) of the Acts Interpretation Act does not say that the notice shall be construed as if the period specified in it expired on Monday the 17th, instead of Sunday the 16th. And s. 55 of the Life Insurance Act does say that the notice shall "specify" a period not less than fourteen days from service of the notice. The notice actually served did not "specify" such a period: it "specified" a period which was too short by one day, and the Acts Interpretation Act does not affect this position. The two statutory provisions, read together, mean simply this: the notice must specify a period not less than fourteen days from service of the notice within which the thing must be done, and, if the last day of the period so specified falls on a Sunday, the thing may be done on the following Monday. The notice simply did not specify such a period, and it is, therefore, bad.

In my opinion, the appeal should be allowed, and there should be judgment in the action for the plaintiff in the form of a declaration that the notice is invalid and void, and an injunction to restrain the respondent from instituting an investigation into the affairs of the company.

High Court of Australia Latham C.J. Williams, Webb and Fullagar JJ. Associated Dominions Assurance Society Pty Ltd v Balmford [1950] HCA 30

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