Claffey, D.R. v. Davy, R.D. [1988] FCA 148

Mr. Davy is a director and manager of a company, Skafola Pty.Ltd., which at all relevant times operated the Criterion Hotel at 77 Drayton Street, Dalby. The affidavit material filed and relied on by the prosecution suggests a series of serious difficulties encountered by inspectors under the Conciliation and Arbitration Act in respect of time and wages records over quite

At the hearing of this information, Mr. Watson of counsel, who appeared for Mr. Davy, submitted there were fatal defects in the notice issued to Mr. Davy in purported reliance on

the obligations imposed under s.125(7) of the Conciliation and

Arbitration Act 1904. It seemed to me just and expeditious to consider these submissions at the outset, rather than at' the conclusion of all the evidence for the prosecution because all the facts relevant to these matters were known. They were

identified and there was no dispute concerning them.

The statutory framework against which the information falls to be decided appears from ss.125(6) and (7) of the Act, with s.125(10) providing for penalties for obstruction. I set

"(6) For the purpose of ascertaining whether awards and the requirements of this Act or the regulations are being, or have been, observed, an

Inspector may, at any time during ordinary working hours or at any other time at which it is reasonably necessary to do so for that purpose -

(i) a building or place (including a vessel, aircraft or vehicle) in or on which he has reasonable cause to believe that work to which an award is or was applicable is being, or has been, performed; or

(ii) a place of business of any person in which he has reasonable cause to believe that there are books or documents relevant to that purpose; and

(b) ain a building or place referred to in paragraph (a) ~

(i) inspect any work, or any material, machinery, appliance, article or facility;

made for the purposes of this sub-paragraph, take samples of any goods or substance;

(iv) require a person having the custody of, or access to, a_ book or document relevant to that purpose (whether kept in that building or place or elsewhere) to produce it in that building or place for his inspection in accordance with the requirement, and ainspect, and take extracts from, the book or document when so produced.

(7) If a person required under sub-paragraph (6)(b){(iv) to produce a book or document refuses to do so, or fails to do so within a' reasonable time, an Inspector may -

(a) by notice in writing served on the person personally or by post, require the person to produce the book or document at such place, and within such time (not being less than 14 days) as are specified in the notice; and

(b) inspect, and take extracts from, the book or document when so produced.

(a) hinders or obstructs an Inspector in the exercise of his powers or the performance of his duties;

({b) refuses or fails, without reasonable excuse, to comply with a requirement made by an Inspector in accordance with sub-paragraph (6)(b)(iv) or paragraph (7)(a); or

(c) makes to an Inspector, in the course of the exercise of his powers or the performance of his duties, a statement, whether orally or in writing, which to his knowledge is false or misleading in any particular,

The notice of which s.125(7) speaks is contained in a letter dated 24 November 1986 addressed to Mr. Davy by the informant, Mr. D.R. Claffey, a senior inspector. The first two

"You are hereby advised that in accordance with the provisions of Section 125(7) of the Conciliation and Arbitration Act 1904, you are required to have produced all manner of time and wage records for all persons employed by the Company in connection

with the Criterion Hotel for the period from 4 November 1983 up to and including 10 December

The records above described are to be produced at the Criterion Hotel, 77 Drayton Street, Dalby, to Senior Arbitration Inspector, D R Claffey and Arbitration Inspector, R J Loftus, who are Inspectors appointed under Section 125 of the Conciliation and Arbitration Act 1904, at 11 O'clock in the forenoon of Wednesday, the tenth day of December 1986 and for the period as required thereafter, during business hours on that day and Thursday, the eleventh of December 1986."

Mr. Christopher Chadwick is in the employ of the Arbitration Inspectorate of the Department of Industrial

Relations, and on Tuesday, 25 November 1986, he received a letter

from Mr. Claffey addressed to Mr. Davy, and deposes that on that day, he delivered the letter to the Department's Registry and explained that the letter was required to be sent certified mail. He observed an officer in the Registry section adhere a certified sticker on the letter and place it with other outward mail. That is the extent of the evidence as to posting, quite surprisingly. But, if one infers that the letter was posted and in the ordinary course was delivered to Mr. Davy at the address on the letter, even relying on Regulation 160A of the Conciliation and

"Where service of a document is effected, in accordance with one of the last three preceding regulations, by posting the document to the person to whom it is directed, service of the document shall, unless the contrary is proved, be deemed to have been effected at the time when the letter containing the document would, in the ordinary course of post, be delivered at the address to which it 1s posted."

At best for the prosecution, the letter calling on Mr. Davy to produce records would have been received by him no earlier than 26 November and possibly later. The argument by Mr. Watson is that the time which is required by s.125(7) to be given for the production of records in that notice was not given, and the

Sub-section 7 includes a requirement that the time given for producing the book or document be not less than i4 days. The notice then in its terms requires production of books at 11 a.m. on 10 December 1986. It is clear, in my view, that the 14 days

runs from the date of receipt of the notice, not the date of the

notice itself. In Associated Dominions Assurance Society

Pty.Ltd. v. Balmford (1950) 81 C.L.R. 161, Mr. Justice Fullagar

"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 ''antimation'. Indeed, that 15 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 1n 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' (1.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' Ist May and allowing fourteen days from ist 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."

The date of receipt is excluded for the purpose of calculating

the 14 day period. Not only does s.36(1) of the Acts

Interpretation Act 1901 lead inexorably to that conclusion, but

in Balmford's Case Mr. Justice Fullagar at p.182 said:-

"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."

"But 1¢t as 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."

Now it is apparent that, if one excludes the date of receipt, the

"...IN]ot being less than 14 days" being the words in s.125(7) must mean, in my view, 14 clear days. In Forster v.

Jododex Australia Pty.Ltd. (1972) 127 C.L.R. 421, Mr. Justice

"The Court applied the rule which has become established as that which is generally applicable to provisions referring to an act being done 'not less than' a stated number of days before a given day or event, or referring to the elapsing of 'at least' a specified period of time.

The statement that the specified period that 1s to elapse from the doing of an act before a given day or event must be a 'full' period, or must be so many 'clear' days, means that the period is to be exclusive, both of the day on which the act 1s done and of a day which can be regarded as marking out the specified terminus by reference to which the period is to be calculated. In order that the period may be capable of calculation as a 'clear' period of a specified number of days, or of some other recognized span of time, it is necessary, in my opinion, to be able to identify some day as that which indicates the termination of the period, but which is itself to be excluded from the computation. Tf a day is named as the day before which the specifred period 1s to elapse there is no difficulty. If an event is named, the day when that event occurs is the day before which (that is to say, before the commencement of which) the period must elapse. When, as in the present case, the indicated termination of the specified period is described as 'the expiry of such license', then in my opinion what must be done is to identify some day as being the day upon which the license may be said to expire and to exclude that day in computing the 'clear' period of one month to which the statutory provision refers."

"If the matter had been res integra it might have been thought to be anice question whether a statute requiring an act to be done 'not later than' or 'at least' or 'not less than' so many days before a given event meant that the act must be done so many clear days before that event. However, the effect of the words 'at least' and 'not less than' has been considered in a long series of authorities. In Reg. v. Justices of Shropshire (1838) 112 E.R. 803], it was held, following Zouch v. Empsey (1821) 106 E.R. 1028, although not without some doubts, that a provision requiring a notice of the grounds of appeal to be given 'fourteen days at least' before the first day of sessions meant fourteen clear days. This case has been regarded as settling the meaning of 'at least', at any rate prima facie, and it has frequently been followed. It has been held that a section which required that a document nominating a candidate should be delivered 'seven days at least' before the day of the nomination meant seven days exclusive both of the day of the nomination and the day of delivery:..."

And he then cites a number of other authorities in a long list,

"Where an instrument prescribes that a period of time must elapse between one event and another, the words 'at least' or 'not less than' should, unless the context or the subject matter reveals a contrary intention, be regarded as indicating that a clear or full period of time must expire between the two events. Although the phrase 'not later than' has not received so much judicial attention, 1t seems to me indistinguishable in meaning in this sort of context from 'at least' or 'not less than'."

And Mr. Justice Mason, as he then was, at p.451 said:-

"As to the meaning of the expression 'not later than one month before the expiry of such license' in s.83B(13), I accept that it requires that the application for renewal be made a clear month before expiry, that a full month must elapse between the application and the expiry."

In the circumstances, it seems to me that the notice did not give a time not being less than 14 days from when the notice was served on the person by post, and therefore is not the notice for which s.125(7) calls. In the circumstances, it being a criminal prosecution, that defect, in my view, is fatal to the prosecution. On my indicating that to Mr. Clutterbuck, counsel for the prosecutor, he offered no further evidence in respect of

I should say that there was a second matter raised in respect of the notice. It will be recalled that the notice, on

its face, required Mr. Davy to produce at 11 a.m. on 10 December

".,.all manner of time and wage records for all persons employed by the Company in connection with the Criterion Hotel for the period from 4 November 1983 up to including 10 December 1986."

In my opinion, the notice is impermissibly wide in calling for the production of these documents. And the notice manifests a misunderstanding of the interrelationship between s.125(6) and 125(7). Section 125(7) is dependent upon either a refusal or a failure to produce a book or document within a reasonable time, and empowers an inspector, by notice in writing, to require the person to produce "the book or document" which must relate back to those books or documents which the person has

refused to produce or failed to produce within a reasonable time.

It follows, therefore, that a statutory command under

s.125(7) must relate to books or documents in respect of which

there has been an earlier failure or refusal to produce. A requirement that includes documents not of that class, as this must necessarily be in this case since some of the document may not even be in existence at the date of the notice, also seems to me to be too wide. Indeed, some of the records would relate to

However, for the first reason advanced, which seems to me to be fatal, it is unnecessary to express a concluded view as to the effect of the width of the notice in the second respect.

(i) being an appeal from a judgment, decree, order or sentence of the Court or any other court under this Act; or

(ii) being a proceeding in respect of an award proposed to be made, made or purporting to have been made, a decision proposed to be given, given or purporting to have been given, or any other act proposed to be done, done or purporting to have been done, under this Act or in respect of a failure to make an award, give a decision or do any other act that 1s required to make an award, give a decision or do any other act that is required or permitted by this Act to be made, given or done,

shall not be ordered to pay any costs incurred by any other party to that proceeding except where the party against whom the order is made instituted the proceeding vexatiously or without reasonable cause."

It is here submitted that this is a case where it would have been obvious to any person who turned his mind to s.125(7), that the notice was bad on its face. As a consequence, the institution of proceedings were without reasonable cause. I do not accept that submission. The matter is by no means as patent as that. In my view, the proceedings were instituted in circumstances which do not bring into play the exception contained in s.197A. So the order that I make is simply that the

! certify that this and the il preceding pages are a true copy of the reasons for judgment heretn of His Honour Mr. Justice Spender 2