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[2003] HCA 69
appellant. Appeal allowed with costs. The Full Court's orders were set aside. In their place, the appeal to the Full Court was allowed with costs, the District Court's orders were set aside, and the...
Dossett had applied for permission to bring a common law damages case before the workers' compensation legislation changed. The new Act replaced the old leave provision and expressly protected some proceedings, but it did not clearly say that those were the only proceedings protected. Western Australia's Interpretation Act supplied a general saving rule for repealed laws, and another section specifically said that an express saving in a new Act does not, by itself, prevent that general rule from operating. The High Court held that Dossett's pending application could therefore continue under the former provision. The Court did not grant leave to bring the damages action; it sent the application back to the District Court to decide according to law.
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The dispute concerned the transition between two statutory regimes governing workers' common law damages claims in Western Australia. Dossett said he was injured at work on 2 December 1996 while operating a front end loader at a limestone quarry. The machine bounced after its blade struck stone, and he struck his head on the roof. He alleged injury to his cervical spine and both shoulders [20].
26 cited instruments linked from this judgment.
At that time, the Workers' Compensation and Rehabilitation Act 1981 (WA) imposed conditions on common law damages claims. Under the former s 93D, a worker needed District Court leave before commencing proceedings. The District Court was required to grant leave if at least one of the statutory criteria was met, including the criterion concerning likely future pecuniary loss [2], [23].
Dossett applied for leave on 1 July 1998 [22]. His originating summons was served in May 1999, supporting affidavit material was filed in September, and the application was listed for hearing on 8 October 1999 [24]. But on 5 October, the Workers' Compensation and Rehabilitation Amendment Act 1999 (WA) received Royal Assent. It repealed and substituted provisions governing common law damages claims, imposing a more restrictive regime [25]-[26].
The amending Act included a transition provision, s 32(7). It preserved the former provisions for proceedings commenced before the assent day, and proceedings for which the District Court had granted leave before that day. Dossett's application was still pending on 5 October. The District Court concluded that the new law left it without power to grant leave, and dismissed the application. The Full Court of the Supreme Court of Western Australia upheld that decision [27]-[31].
The High Court unanimously allowed Dossett's appeal. It did not decide whether he met the former statutory criteria for leave. Instead, it held that the District Court retained power to decide his pending application under the former s 93D. The application was remitted for determination according to law [46].
The central question was the interaction between the specific transitional provision in the 1999 Act and the general savings provision in s 37 of the Interpretation Act 1984 (WA). Section 37(1) states that, when a written law repeals an enactment, the repeal does not, unless a contrary intention appears, affect specified matters. These include prior operation, rights or powers existing before repeal, and legal proceedings or remedies in respect of them. Such proceedings may be continued as if the repealing law had not been made [6], [34].
The respondent first argued that the former s 93D had not been “repealed” for this purpose, because new provisions had been substituted for it. The Court rejected that reading. Section 32(5) of the amending Act expressly described the earlier sections as repealed and the replacements as substituted [25]. In any event, s 35 of the Interpretation Act specifically deals with repeal accompanied by substitution. The Court reasoned that a repeal with substitution remains a repeal, and is therefore within s 37 [9], [37]-[39].
The next question was whether s 32(7) showed a contrary intention. Its two listed categories were proceedings already commenced, and proceedings for which leave had already been granted. The respondent argued that this detailed list was exhaustive: pending applications that had not yet resulted in leave were excluded.
Section 37(2) was important to the answer. It provides that including an express saving in a repealing enactment is not, by itself, to prejudice the operation of s 37. The High Court therefore did not treat the existence of s 32(7) as automatically excluding the general saving rule [7], [32], [42]. The amending Act would have needed to show a contrary intention or actual conflict sufficient to displace the statutory saving.
The Court found no such clear conflict. Section 32(7) did not say that its two categories were the only cases in which the old law could continue to apply. It did not state that it operated despite other legislation. Nor did it address pending applications for leave in terms that expressly terminated them [15], [44]. The joint reasons concluded that the former s 93D continued to apply to Dossett's application [45].
The Court also rejected the suggestion of implied repeal. McHugh J stated that implied repeal is rare and can be inferred only when “actual contrariety is clearly apparent” [14]. The joint reasons applied the same demanding approach, concluding that no actual contrariety appeared from s 32(7) [43]-[44].
Kirby J placed this conclusion within the broader principle that legislation is not ordinarily read as retrospectively destroying established rights without clear language. He considered that eliminating the ability to seek leave could effectively defeat the enforcement of Dossett's existing common law claim, and would therefore require a clear legislative indication [79]-[87]. That discussion reinforces the result, while the joint reasons and McHugh J also resolve the case through the text and operation of the two Western Australian Acts.
Before the 1999 amendment, the relevant statutory framework did not permit an unrestricted common law damages action. The 1993 amendments had inserted a division imposing constraints on awards. The former s 93D required District Court leave before proceedings could be commenced, and set criteria that, if satisfied, required the court to grant leave [22]-[23]. The Court described these requirements as procedural conditions on enforcement of the common law rights, rather than an abolition of those rights [59]-[61].
The 1999 Act changed the regime and replaced ss 93D, 93E and 93F with new provisions [25]. Its express transition rule preserved proceedings in two specified circumstances. The immediate dispute was whether that express list displaced the general savings rule in the Interpretation Act.
After Dossett, the relevant interpretive position under the provisions considered in the judgment was that a substitution can constitute a repeal for the purposes of s 37. Further, the existence of an express saving in the amending Act does not, without more, prevent s 37 from operating, because s 37(2) expressly guards against that result [37], [42].
The judgment did not hold that every pending claim survives every statutory amendment. The outcome depended on the words of the WA provisions, the nature of the pending application, the respondent's concession that the facts answered one or more parts of s 37(1), and the absence of a sufficiently clear contrary intention in s 32(7) [35], [44]-[45]. Kirby J's discussion of the need for clear language when established rights are affected supports a cautious interpretive approach, but the result remains tied to this statutory scheme [80]-[88].
At [37], the joint reasons say: “In either case, there is a ‘repeal’ to which s 37 applies.” The point is that replacing an old statutory provision with a new one does not avoid the ordinary savings rule merely because there is a replacement.
At [42], the joint reasons explain that s 37(2) must be read alongside the phrase “unless the contrary intention appears” in s 37(1). In ordinary terms, the presence of an express transitional clause does not itself switch off the general statutory saving rule. The legislation must indicate more clearly that the general rule is displaced.
At [44], the joint reasons identify what the amending Act did not say: it did not state that the two listed categories were the only proceedings in which the former provisions could apply. Nor did it state that s 32(7) applied despite other statutes. The omission mattered because the respondent's argument depended on treating the list as exclusive.
At [14], McHugh J states that implied repeal can be inferred only where “actual contrariety is clearly apparent.” Put simply, a court does not infer that Parliament silently removed an earlier statutory protection merely because a later law deals with related subject matter. The conflict must be clear.
At [88], Kirby J describes the respondent's argument as relying on “an ambiguous, non-exhaustive provision”. This captures why the Court did not regard the transitional wording as clear enough to defeat the pending application. It does not mean ambiguity always preserves a claim; it describes the reading of this particular provision in the context of s 37 and the common law principles discussed.
The decision is most directly relevant where a statute is repealed and replacement provisions are enacted, while a related proceeding or application is already underway. The statutory interpretation question is whether a general savings provision preserves that matter, despite a specific transition clause in the amending Act.
The features that mattered here were: a pre-existing common law claim arising from an earlier injury; a leave application made under the former statutory regime; the application still being pending on the assent day; a statutory repeal accompanied by substitution; an express but limited transitional provision; and a general Interpretation Act saving rule containing a provision that protects its operation despite express savings [20]-[26], [32]-[45].
The case may also be relevant when parties disagree over whether an amendment amounts to a “repeal” for interpretation legislation. The Court treated a repeal with substitution as a repeal under the particular WA provisions [37]-[39]. Care is needed before applying that conclusion elsewhere: the judgment itself notes that statutory savings provisions differ between Australian jurisdictions [33].
The decision does not determine the merits of the underlying damages claim, whether leave should ultimately be granted, or how a differently worded transition provision would operate. The High Court remitted Dossett's application rather than deciding whether he satisfied the former s 93D criteria [18], [46].
The provided judgment records authorities considered by the High Court up to the date of decision, including Butler v Attorney-General (Vict), South Australia v Tanner, Kartinyeri v The Commonwealth and Shergold v Tanner on implied repeal and actual contrariety [14], [43]. It also discusses G F Heublein and Bro Inc v Continental Liqueurs Pty Ltd, distinguishing it because the federal statute in that case did not contain an equivalent to WA s 37(2) [12]-[13].
The judgment does not provide information about later cases applying, distinguishing, or limiting Dossett. It would therefore be unsupported to describe how later courts have treated it based on this source alone. A current case-law search would be needed to establish subsequent treatment, and any later decision would need to be checked against the precise statutory language in issue.
The judgment leaves open how far its reasoning extends to other jurisdictions whose interpretation legislation lacks a counterpart to s 37(2). The joint reasons note that other Australian statutes differ in whether they refer to contrary intention, and that none of the provisions they survey has an equivalent strengthening provision to WA s 37(2) [33]. The result in Dossett therefore cannot be detached from that distinctive statutory text.
A further question is what wording would be sufficient to show a contrary intention and displace a general saving provision. The Court identified examples that were absent here, such as stating that the listed categories are the only proceedings saved, or that the provision applies despite other laws [15], [44]. It did not decide the effect of every possible formulation.
The decision also did not finally determine whether Dossett qualified for leave under the old s 93D. The District Court had dismissed the application without deciding its merits, and the High Court ordered remittal [27], [46]. Nor did the Court decide the substantive damages claim or its value.
Finally, the judgment discusses the broader presumption against retrospective interference with rights, but the operative result rests on the combined statutory scheme and the facts of a pending leave application. The judgment does not establish that every procedural change affecting an accrued claim must be treated as retrospective or invalid. It establishes that this particular amending Act did not clearly displace the applicable general savings provision.
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Source: the High Court of Australia (www.hcourt.gov.au). Converted to plain text by ZoeLaw. Not the official version.
HIGH COURT OF AUSTRALIA
McHUGH, GUMMOW, KIRBY, HAYNE AND HEYDON JJ
BRADLEY JOHN DOSSETT APPELLANT
AND
TKJ NOMINEES PTY LTD RESPONDENT
Dossett v TKJ Nominees Pty Ltd [2003] HCA 69
4 December 2003
P118/2002
ORDER
Appeal allowed with costs.
Set aside the orders of the Full Court of the Supreme Court of Western Australia made on 15 June 2001.
In place thereof order that the appeal to that Court be allowed with costs, the orders of the District Court of Western Australia made on 3 May 2000 be set aside, and the application for leave to commence proceedings be remitted to the District Court for determination according to law.
On appeal from the Supreme Court of Western Australia
Representation:
B L Nugawela with J J Sheldrick for the appellant (instructed by Andrew Read & Associates)
M W Odes QC with G W Nutt for the respondent (instructed by Jackson McDonald)
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
CATCHWORDS
Dossett v TKJ Nominees Pty Ltd
Statutes — Interpretation – Amending Act – Appellant's workers' compensation claim did not fall within the specific saving provision in the amending Act – Whether the general saving provision in s 37(1) of the Interpretation Act 1984 (WA) applied to supplement the specific saving provision in the amending Act – Section 37(1) applied where a written law "repeals" an enactment – Whether a repeal accompanied by the substitution of provisions for those repealed was a "repeal" for the purpose of s 37(1) – Significance of the distinction between "amend" and "repeal" – Relevance of principle that abolition of common law rights must be made clearly.
Workers' compensation – Limitation on awards of common law damages – Whether appellant was entitled to a grant of leave to commence common law proceedings for personal injury – Amending Act creating a new and stricter regime provided a specific exemption for actions commenced before the assent date – Appellant had only applied for leave to commence proceedings before the assent date – Whether the general saving provision in the Interpretation Act 1984 (WA) applied to enable the appellant to proceed under the earlier regime.
Words and phrases – "repeal".
Workers' Compensation and Rehabilitation Act 1981 (WA), s 93D(4).
Workers' Compensation and Rehabilitation Amendment Act 1999 (WA), s 32(7).
Interpretation Act 1984 (WA), s 37.
Statement of the case
"The amended provisions do not affect the awarding of damages in proceedings –
(a) commenced before the assent day; or
(b) for the commencement of which the District Court gave leave under the former provisions before the assent day,
and the former provisions continue to apply in relation to those proceedings."
Section 32(6) defined "assent day" to mean the day of the receipt of the Royal Assent.
The District Court held that the amended provision applied to Mr Dossett's application and that it had no power to give him leave to commence proceedings under the old s 93D. Mr Dossett appealed to the Full Court of the Supreme Court of Western Australia but that Court dismissed his appeal. Scott J (with whom Anderson J and Stein AJ agreed) said that, because the District Court had not determined Mr Dossett's application before 5 October 1999, the transitional provision in the Workers' Compensation and Rehabilitation Amendment Act did not save his application.
The Interpretation Act 1984
Mr Dossett contends that he is entitled to proceed under the earlier regime even though his application did not fall within the savings provisions in s 32(7) of the Workers' Compensation and Rehabilitation Amendment Act. He contends that, although his application was not saved by s 32, it was saved by the general savings provision in s 37 of the Interpretation Act 1984 (WA) and, in particular, by pars (b), (c) and (f) of s 37(1).
Section 37(1) of the Interpretation Act provides:
"Where a written law repeals an enactment, the repeal does not, unless the contrary intention appears –
...
(b) affect the previous operation of the enactment repealed or anything duly done or suffered under that enactment;
(c) affect any right, interest, title, power or privilege created, acquired, accrued, established or exercisable or any status or capacity existing prior to the repeal;
...
(f) affect any investigation, legal proceeding or remedy in respect of any such right, interest, title, power, privilege, status, capacity, duty, obligation, liability, burden of proof, penalty or forfeiture,
and any such investigation, legal proceeding or remedy may be instituted, continued, or enforced, and any such penalty or forfeiture may be imposed and enforced as if the repealing written law had not been passed or made."
"The inclusion in the repealing provisions of an enactment of any express saving with respect to the repeals effected thereby shall not be taken to prejudice the operation of this section with respect to the effect of those repeals."
In response, TKJ Nominees Pty Ltd, the respondent to the appeal, contends that s 37 of the Interpretation Act did not save the application. It contends that s 37 applies only where an enactment has been repealed and that s 93D had not been repealed – the legislature had merely amended s 93D by substituting a new provision for the previous provision. This contention is without substance.
Upon the Royal Assent being given to the new s 93D, the old s 93D no longer operated according to its own terms. Its provisions ceased to affect legal rights, duties and relationships. Put simply, it was repealed. In so far as its provisions continue to have any legal effect, they do so only because of the transitional provisions and the operation of s 37 of the Interpretation Act. If there were any doubt about the matter – which there is not – it is put to rest by s 35 of the Interpretation Act. Section 35 declares:
"Where a written law repeals an enactment and substitutes provisions for the enactment repealed, the repealed enactment remains in operation until the substituted provisions come into operation."
This section makes it clear that a substituted enactment effects a repeal of the earlier enactment.
"The function of the Court is to give effect to the will of Parliament as expressed in the law."
In my opinion, s 32 contains no foundation for the inference of contrary intention upon which TKJ Nominees relies. Section 32(7) authorises the awarding of damages where proceedings for damages have been commenced and where leave to issue proceedings has been given but no action for damages has commenced. It has nothing to say about whether the right to apply for leave may continue. Nor does it say anything about the effect and operation of s 37(1) of the Interpretation Act. But in any event s 37(2) makes it clear that the inclusion in a repealing Act of an express saving provision does not prejudice the operation of s 37 with respect to the effect of the repeal.
In support of its argument, TKJ Nominees relies on this Court's decision in G F Heublein and Bro Inc v Continental Liqueurs Pty Ltd4. Heublein concerned an express provision made by the Trade Marks Act 1955 (Cth) – which repealed the Trade Marks Act 1905 (Cth) – preserving the rights of applications lodged under the repealed Act and pending when the 1955 Act came into operation. Kitto J found that s 8 of the Acts Interpretation Act 1901 (Cth) – the federal equivalent of s 37(1) – saved the pending application5. However, the Full Court (Dixon CJ, Taylor and Windeyer JJ) reversed his decision. Heublein does not support the argument of TKJ Nominees. The decision rested on the specific transitional provisions of the 1955 Act, provisions that the Full Court of this Court thought dealt exhaustively with the saving of existing proceedings and which, in the Full Court's view, left no room for the application of s 8 of the Acts Interpretation Act6.
Moreover, the Acts Interpretation Act 1901 (Cth) contained no equivalent of s 37(2). The terms of that sub-section indicate that s 37(1) applies to all repeals in the absence of an express statement that it does not apply to the repeal. By themselves, the terms of s 37(2) constitute a sufficient ground for distinguishing the decision in Heublein – the Acts Interpretation Act containing no equivalent to s 37(2).
Once the conclusion is reached that s 32(7) contained no intention to oust the operation of s 37(1) of the Interpretation Act, it is impossible to conclude that "somehow by some means" s 32(7) impliedly repealed either s 37(1) or s 37(2) or both. An implied repeal of legislation is such a rare and unlikely event that it can be inferred only when "actual contrariety is clearly apparent." Nothing in s 32(7) of the or that Act generally discloses any actual contrariety with s 37(1) or (2) of the .
Order
The appeal should be allowed. Orders should be made in the form proposed by Gummow, Hayne and Heydon JJ.
GUMMOW, HAYNE AND HEYDON JJ. This appeal from the Full Court of the Supreme Court of Western Australia8 turns upon questions of construction of s 32(7) of the Workers' Compensation and Rehabilitation Amendment Act 1999 (WA) ("the 1999 Act") and its relationship to the general savings provisions found in s 37 of the Interpretation Act 1984 (WA) ("the Interpretation Act").
The appellant contends that, on 2 December 1996, he suffered an injury to his cervical spine and both shoulders as a result of an incident during the course of his employment by the respondent. At the material time, the appellant was operating a front end loader in order to chip out limestone at the Moore River Limestone Quarry. The blade on the front wheels dug into stone causing the front end loader to bounce up and down and the appellant to strike his head on the roof of that vehicle.
In respect of this injury, the common law of tort gave the appellant well established rights. Those rights were not thereafter to be abrogated by statutory intervention in the absence of clear words or a necessary implication to that effect9. At the time the appellant sustained his injury, there had been a partial legislative inroad. As the law then stood, leave of the District Court of Western Australia was required for the commencement by the appellant of proceedings at common law to recover damages for personal injury. That requirement was imposed by s 93D(4) of the Workers' Compensation and Rehabilitation Act 1981 (WA) ("the Workers' Compensation Act"). The outcome on the present appeal turns upon the question as to whether a subsequently enacted and more restrictive legislative regime applies to the appellant's common law rights.
On 1 July 1998, by originating summons filed in the District Court, the appellant sought leave pursuant to s 93D(5) of the Workers' Compensation Act to commence proceedings at common law for damages for personal injury. Section 93D had been added to the Workers' Compensation Act by s 4 of the Workers' Compensation and Rehabilitation Amendment Act 1993 (WA) ("the 1993 Act"). Section 4(3) of the 1993 Act inserted in Pt IV of the Workers' Compensation Act a new Div 2 (ss 93A‑93F), headed "Constraints on awards of common law damages". The new Division applied to the award of damages independently of that statute against the employer of a worker where the disability of the worker was caused by the negligence or other tort of the employer (s 93B).
Section 93C, which was not thereafter repealed or amended, stated:
"If this Division applies a court is not to award damages to a person contrary to this Division."
Section 93D provided that damages might only be awarded in the case of a person such as the appellant if there was a "serious disability" (s 93D(1)). Moreover, proceedings in which damages were sought were "not to be commenced without the leave of the District Court" (s 93D(4)). The District Court was obliged to grant that leave if one or more of three conditions specified in pars (a), (b) and (c) of s 93D(5) were met. The conditions were concerned with the degree of the disability suffered (pars (a), (b)) and the likely amount of future pecuniary loss (par (c)).
The originating summons seeking leave from the District Court was served on 12 May 1999 and an affidavit in support of the application was sworn and filed on 14 September 1999. On 15 September 1999, the application was listed for hearing on 8 October 1999. However, in the interval between those two dates, a significant legislative step was taken.
On 5 October 1999, the 1999 Act received the Royal Assent. Section 2 of that statute provided that s 32 thereof came into operation on that day. Section 32 of the 1999 Act made a number of changes to the Workers' Compensation Act further restricting the award of damages and related matters; it also contained savings and transitional provisions. Section 32(5) stated that ss 93D, 93E and 93F of the Workers' Compensation Act "are repealed" and that the sections set out thereunder and numbered as ss 93D, 93E, 93F and 93G "are substituted". Section 32(7) read:
"The amended provisions do not affect the awarding of damages in proceedings –
(a) commenced before the assent day; or
(b) for the commencement of which the District Court gave leave under the former provisions before the assent day,
and the former provisions continue to apply in relation to those proceedings."
The phrase "assent day" was defined in s 32(6) as meaning the day of receipt of the Royal Assent. The phrase "former provisions" was defined as meaning Pt IV Div 2 of the Workers' Compensation Act before amendment by s 32 of the 1999 Act, and "amended provisions" as meaning Pt IV Div 2 as amended by s 32 of the 1999 Act. That Division had included s 93D.
The District Court decided that it lacked power to grant leave to the appellant, thereby making it unnecessary to consider the merits of the application had the former provisions of s 93D applied. The originating summons was dismissed.
Pursuant to a grant of leave by the Full Court (Kennedy, Murray and Parker JJ), the appellant appealed to the Full Court (Anderson and Scott JJ, Stein AJ). The Full Court dismissed the appeal.
An appeal also had been taken to a differently constituted Full Court in the matter of Toolan v Metropolitan (Perth) Passenger Transport Trust10. That was an appeal from a decision of the District Court refusing leave to commence proceedings for damages at common law for personal injury. The decision refusing leave had been given on 20 May 1999, that is to say, before the commencement of the 1999 Act, but the critical factors were those expressed by Malcolm CJ11:
"In my opinion, s 37(1)(c) [of the Interpretation Act] protects the right of an appeal from a refusal of leave under the repeal provisions where the appeal has been commenced and was pending as at 5 October 1999. The right of appeal to the Full Court by leave of the Supreme Court or a judge existed at that date by virtue of the provisions of s 79(1)(b) of the District Court of Western Australia Act [1969 (WA)]. Leave to appeal had been duly obtained and the appeal commenced by notice of appeal dated 11 June 1999. Section 37(1)(f) of the [Interpretation Act] provides that the repeal of the former provision does not affect any 'legal proceeding or remedy' in respect of any such right. Finally, s 37(1) concludes by providing that any such legal proceeding may be continued 'as if the repealing law had not been passed or made'. This clearly has the effect that an appeal pending under the repealed law is required to be heard and determined under the repealed law in the same way as if it had not in fact been repealed."
"The result is, where no relevant proceedings are pending as at 5 October 1999, then, irrespective of the date of the accident or the date upon which the injury or disability occurred, the [1999 Act] applies, unless one or other of the saving provisions in s 37(2) applies. In my view, in a case where one or other of the saving provisions applies, the intention of the legislation on its proper construction is that pending proceedings are subject to the statutory regime as it was prior to the amendment."
The decision in Toolan was given whilst the Full Court had the present matter under reservation. The outcome in Toolan appears to have turned upon the pendency on 5 October 1999 of the Full Court appeal under the relevant legislation providing for District Court appeals. Nevertheless, in the present matter, the Full Court treated Toolan as "sufficient authority" to govern the result13. Scott J (with whom Anderson J and Stein AJ agreed) said that, because the appellant had not had his application for leave determined by the District Court before 5 October 1999, he was precluded thereafter from obtaining leave. This was so "notwithstanding the provisions of s 37(1) of the [Interpretation Act], which would not have the effect of preserving [his] position even although [the application] for leave [was] lodged before that date"14. That reasoning should not be accepted and the appeal to this Court should be allowed.
In this Court, the appellant draws attention to the provisions of s 37(2) of the Interpretation Act. This states:
"The inclusion in the repealing provisions of an enactment of any express saving with respect to the repeals effected thereby shall not be taken to prejudice the operation of this section with respect to the effect of those repeals."
The appellant submits that it follows from the application of the specific provision in s 37(2) of the Interpretation Act that the limited savings provisions in s 32(7) of the 1999 Act do not exhaustively deal with his position. He contends that there is left untouched whatever advantage he otherwise obtains by the operation of s 37(1) of the Interpretation Act. That submission should be accepted.
Section 37, like provisions enacted in other Australian jurisdictions15, draws upon the general savings provision made in the United Kingdom by s 38(2) of the Interpretation Act 1889 (UK). The legislation in Victoria and Tasmania16 requires that the contrary intention appear or be provided "expressly", and that in Queensland and the Northern Territory17 does not qualify its operation by any reference to contrary intention. However, none of the other Australian legislation contains any analogue to the strengthening of s 37(1) of the Western Australian statute by the detailed provision of s 37(2).
The appellant relies in particular upon pars (b), (c) and (f) of s 37(1) of the Interpretation Act. These state:
"Where a written law repeals an enactment, the repeal does not, unless the contrary intention appears –
...
(b) affect the previous operation of the enactment repealed or anything duly done or suffered under that enactment;
(c) affect any right, interest, title, power or privilege created, acquired, accrued, established or exercisable or any status or capacity existing prior to the repeal;
...
(f) affect any investigation, legal proceeding or remedy in respect of any such right, interest, title, power, privilege, status, capacity, duty, obligation, liability, burden of proof, penalty or forfeiture,
and any such investigation, legal proceeding or remedy may be instituted, continued, or enforced, and any such penalty or forfeiture may be imposed and enforced as if the repealing written law had not been passed or made."
In argument in this Court the respondent properly made an important concession. This was to the effect that, in the events that had happened (in particular, the suffering by the appellant of his injury on 2 December 1996 and the pendency of his leave application to the District Court), at the critical date of 5 October 1999, when s 32(5) of the 1999 Act came into effect and, in its terms, repealed s 93D of the Workers' Compensation Act, the situation of the appellant answered the terms of one or more of pars (b), (c) and (f) of s 37(1) of the Interpretation Act.
However, the respondent submitted that the appellant's reliance upon s 37(1) to preserve his pending application for leave must fail at the threshold. This was said to be by reason of the requirement in the opening words of s 37(1) that there be a "repeal" of the enactment in question, namely s 93D, which had entitled the appellant to a grant of leave upon satisfying the District Court of any of the three matters specified in s 93D(5). There was said to have been no "repeal", in the sense required by the Interpretation Act provision, by the operation of s 32(5) of the 1999 Act. This was because that provision had gone on to "substitute" other provisions in Pt IV Div 2 of the Workers' Compensation Act.
There is no substance in that submission. Section 37 is found in Pt V (ss 33‑39) of the Interpretation Act. Section 35 states:
"Where a written law repeals an enactment and substitutes provisions for the enactment repealed, the repealed enactment remains in operation until the substituted provisions come into operation."
There thus is evident in Pt V a distinction between a repeal and a repeal accompanied by the substitution of provisions for those repealed. In either case, there is a "repeal" to which s 37 applies.
"Where a written law which has been amended by any other written law is repealed, such repeal shall include the repeal of all those provisions of such other written law by which the first-mentioned written law was amended."
"replace, substitute, in whole or in part, add to or vary, and the doing of any 2 or more of such things simultaneously or by the same written law".
The term "repeal" is defined as including "rescind, revoke, cancel, or delete". Nothing in the definitions requires any contrary construction of s 37(1) of the Interpretation Act to that which would apply the sub‑section to the repeal of s 93D accompanied by the substitution of other provisions.
Contrary to the respondent's submissions, the provisions of s 93C, which were not amended by the 1999 Act, neither require nor permit the conclusion for which the respondent contends. To provide, as s 93C does, that, if the relevant Division of the Workers' Compensation Act applies, "a court is not to award damages to a person" contrary to that Division provides no answer to the question whether regard must be had to the terms of the Workers' Compensation Act as it stood before the 1999 Act or to the terms of the statute as it stood after the 1999 Act. That question is to be answered by reference to the operation which is to be given to the relevant provisions of both the 1999 Act and the Interpretation Act.
The respondent also relied upon the statement in s 37(1) of the Interpretation Act that it operates "unless the contrary intention appears". Such a contrary intention was said to appear in s 32(7) of the 1999 Act. The text of that sub‑section is set out earlier in these reasons. It identifies two categories of proceeding in which the awarding of damages is not affected by the substituted provisions.
However, the phrase "unless the contrary intention appears" in s 37(1) of the Interpretation Act must be read with the statement in s 37(2) of that statute. That operates to the effect that the inclusion of an express saving such as that in s 32(7) of the 1999 Act is not to be taken to prejudice any additional operation of the Interpretation Act upon the repeal otherwise effected by s 32 of the 1999 Act.
Therefore it becomes necessary for the respondent to demonstrate that the 1999 Act wrought a repeal pro tanto of s 37(2) of the Interpretation Act. Plainly the terms of s 32 of the 1999 Act do not state that there is any repeal of this nature. The question then becomes one of an implied repeal. That was described by Fullagar J in Butler v Attorney-General (Vict)18 as "a comparatively rare phenomenon". His Honour added19 that it had been said again and again that a repeal of this nature would not be held to have been effected "unless actual contrariety is clearly apparent". That statement has been applied in subsequent decisions of this Court20.
No such actual contrariety clearly appears from the terms of s 32(7) of the 1999 Act. There is not, for example, a statement that the two classes of proceedings identified in s 32(7) are the only proceedings in which the former provisions may continue to apply, or a statement that the sub‑section applies despite anything in any other statute.
The relevant facts
The facts are stated in the other reasons and were not in doubt31. Mr Bradley Dossett (the appellant) was injured in December 1996. On 1 July 1998, in accordance with the law then applicable in Western Australia, he applied to the District Court of that State for leave to proceed at common law against his employer, TKJ Nominees Pty Ltd (the respondent). To that extent, the appellant had invoked the judicial branch of government for a determination of his entitlements. In the normal course of events, he was entitled to expect that his claim against the respondent, which pre-existed his invocation of the jurisdiction of the District Court, would be determined, according to law, by that court whose jurisdiction and powers he had engaged.
In accordance with the then procedure, the appellant's originating summons was listed for hearing before a Registrar of the District Court on 8 October 1999. That hearing was adjourned to a special appointment before a Registrar. Eventually, a hearing date was fixed for 19 January 2000. On that day, the appellant's originating summons was dismissed by the District Court on the basis of the legislation now under consideration. That decision was affirmed on the appeal from which, by special leave, the further appeal now comes to this Court.
The constitutional setting
The task of a court in a case such as the present is to give effect to the law applicable to the foregoing facts. By the law, I mean both the statute law and the common law of Australia understood as the background against which the relevant Acts were enacted.
Statute law and the common law must always conform to constitutional requirements32. Here, the proceedings between the parties had been commenced before a court which was a part of the independent and integrated judicature of the nation33. The constitutional setting is therefore not irrelevant34. Having invoked the courts, the appellant would usually be entitled to expect that his rights would not be altered whilst his application to the courts was pending, awaiting determination35. Where changes are effected in ways that have an impact upon already accrued legal rights, privileges and entitlements, statutory exceptions are commonly made to exclude those that are the subject of pending proceedings36. Subject to the Constitution37, supervening legislation may alter the rights of parties whose suits are awaiting judicial determination. So much was not contested. But when this occurs, it is not unusual for Australian courts to say (in part defensive of their own constitutional position and function) that such legislation must be clear38.
A foundation for this approach is what Barwick CJ described in Geraldton Building Co Pty Ltd v May39 as the "credit" that courts give to legislatures that, by their enactments, they intend to do justice to all affected parties. The presumption against the deprivation of rights without very clear language is not adopted by courts to frustrate the will of Parliament. It is based instead on a presupposition respectful of Parliament's presumed desire to act fairly and justly in respect of the accrued rights of those who are subject to its laws40.
Statutory purpose and statutory language
I shall return to the last-mentioned presumption because, in the end, it is critical for my resolution of the arguments of the parties in this appeal. However, first, it is essential to make a number of additional points concerning the role of a court.
The starting point for the ascertainment of the respective rights and duties of the parties is the legislation itself. Where there is applicable legislation, the starting point for legal analysis is the text of the legislation41. Its language is examined to ascertain the purpose of Parliament in enacting it42. This follows from the primacy in our legal system of the written law and the binding force of such law under the Constitution. The parliamentary purpose is ultimately to be derived from the statutory language43. If there is discordancy between that language and any contextual materials, it is the language that prevails. This is because of the democratic legitimacy of the language based on the fact that it has been endorsed by law-makers accountable to the electors44.
In the present appeal, there are three relevant Acts. The first is the Workers' Compensation and Rehabilitation Act 1981 (WA) ("the Workers' Compensation Act"). The second is the Workers' Compensation and Rehabilitation Amendment Act 1999 (WA) ("the 1999 Act"). The third is the Interpretation Act 1984 (WA) ("the Interpretation Act"). The solution to the problem in the appeal only emerges from an appreciation of the operation of those Acts upon the comparatively simple facts of the appellant's case. Common law rules, judicial remarks, ministerial statements and contextual considerations may prove useful, depending on the application of the three statutes. But the starting point was, and is, the analysis of what those statutes enact as law.
The relevant provisions of the Workers' Compensation Act, the 1999 Act, and the Interpretation Act are set out in the other reasons45. It is the Workers' Compensation Act that contains special conditions and burdens on the prosecution of a claim to enforce the appellant's alleged entitlements against his employer at common law. In the absence of valid legislation and subject to applicable limitation provisions and provisions governing the jurisdiction and powers of the courts46, such entitlements could be enforced by an action at law. Nothing in the Workers' Compensation Act, either before or after the 1999 Act, abolished the appellant's common law rights. All that happened was that the enforcement of those rights was made the subject of procedural conditions. Conditions were applicable both before and after the 1999 Act.
"If this Division applies a court is not to award damages to a person contrary to this Division."
That provision appears in a Division of the Workers' Compensation Act titled: "Constraints on awards of common law damages". The provision was within the constitutional powers of the Parliament of Western Australia. It was binding on the courts in this case. Parliament intended it to be complied with.
The procedural condition imposed on the appellant at the time his common law cause of action accrued was that stated in s 93D of the Workers' Compensation Act, as then applicable. Proceedings in the District Court were not to be commenced "without the leave of the District Court"47. Provision was then made to govern the grant of such leave. Relevantly, a judicial determination was required that "the worker is likely to have future pecuniary loss resulting from the disability of an amount that is at least equal to the prescribed amount"48. That was the procedural gateway through which the appellant had to pass before being entitled to commence proceedings for which damages are sought in the District Court. Leave was essential to the commencement of proceedings. Before the 1999 Act took effect, the appellant commenced proceedings to secure such leave.
The "assent day" for the purposes of the 1999 Act was 5 October 1999. Under the new regime commencing from that day, new requirements governed the award of damages in proceedings against an employer. Transitional provisions, specially enacted by s 32(7) of the 1999 Act, specified savings.
Because the particularity of s 32(7) is central to the respondent's argument, I will set it out:
"The amended provisions do not affect the awarding of damages in proceedings –
(a) commenced before the assent day; or
(b) for the commencement of which the District Court gave leave under the former provisions before the assent day,
and the former provisions continue to apply in relation to those proceedings."
Arguments in favour of the respondent
Particularity of the provision: In effect, the respondent argued that the transitional provisions in s 32(7) of the 1999 Act represented such a particular enactment for the saving of current proceedings in the District Court that they expelled the general savings provisions of the Interpretation Act49 and any principles of the common law that might otherwise have applied to save the appellant's pending proceedings.
In support of the contention that the language of s 32(7) of the 1999 Act excluded the survival of the appellant's application for leave, which was pending on the assent day, the following considerations need to be noticed.
Express exceptions: First, there is the fact that Parliament has addressed with exactness "proceedings" of the kind in question at different points in the course of their resolution in the District Court. Parliament could be taken to know that, on and after the assent day, there would be proceedings, like those of the appellant, that were awaiting determination of applications for leave but were not yet resolved. Yet only two exceptions to the operation of the 1999 Act were permitted. Each involved "proceedings" that had advanced further towards decision than the appellant's had. Either such proceedings had been commenced (and thus by hypothesis had already secured the requisite leave) or, although leave had been granted, the commencement of the proceedings had not actually occurred before the assent day. Arguably, this high particularity excluded proceedings that did not qualify on either of the specified grounds. Upon this view, as the appellant's proceedings failed to meet the procedural condition superimposed by the 1999 Act, his claim for damages was subject to the new requirements for the award of damages.
Ministerial statement: Secondly, to demonstrate that this was the "intention" of Parliament in so providing, the respondent tendered an extract from the record of debates in the Legislative Assembly of Western Australia50. According to this, the then Minister for Labour Relations (Mrs Edwardes) made a statement to the Assembly which, she said, was designed "to remove any doubts about the transitional provisions contained in sections 32(7) and 32(8) of the [1999 Act]". The Minister explained that, because there had been no opposition to the Bill when originally introduced, "clarification on the transitional provisions was not read into Hansard" at that time. She stated that it was "prudent to place on the record a clarification of their meaning" in light of comments that had since been made. She said that the Bill closely reflected a recommendation of a general review of common law actions which had preceded the legislation.
"Close consideration of the special provisions of s 5 induces us to think that the express provision which it makes with respect of applications pending under the earlier Act must be read as exhaustive and that there is, therefore, no room for the application of s 8 of the Acts Interpretation Act, even if it were otherwise possible to bring the case within its terms."
Arguments in favour of the appellant
Express and other savings: The foregoing arguments have force. For me, this is not an open and shut case. Nevertheless, for a number of reasons, I prefer the conclusion that the appellant's common law cause of action survives.
First, the starting point is an appreciation of the language of the amending Act in so far as it affects the rights of a person in the position of the appellant. By s 32(7) of the 1999 Act, Parliament has not stated that the only proceedings that are saved by the transitional provisions are those identified65. Whilst that consequence is an available construction of the purpose of sub-s (7), it is not the only one. The sub-section can be construed as identifying two categories of proceedings for which express savings are enacted. They are those that are most clearly saved, being, in each case, proceedings for which leave to proceed has already been granted by the District Court.
However, such clear cases are not the only ones that present with strong features suggesting continuance of pending proceedings. In Toolan v Metropolitan (Perth) Passenger Transport Trust66, the Full Court of the Supreme Court of Western Australia considered a case in which leave had been refused by the District Court but, in the Full Court's opinion, wrongly so. This presented the issue of what should occur once the Full Court substituted its order providing leave, although doing so on a date after the assent day. The Full Court divided on how this problem should be solved. The circumstances disclosed in Toolan reveal the difficulty of applying justly the arbitrary approach postulated by the respondent and endorsed in the present case by another Full Court. On the respondent's argument concerning the benefits of simplicity and clarity in ascertaining entitlements to continue proceedings by reference only to the stage plaintiffs have reached at the assent day, the plaintiff's claim to continue his proceedings in Toolan should likewise have been rejected. At least that would follow unless the ingenious remedy proposed by Wheeler J, involving an antedated appellate order, was to provide the solution to that problem67. That would not be a solution available in the present case.
Presumed survival of rights: Secondly, a provision such as s 32(7) is not to be read in isolation. It needs to be understood both in the context of common law principle and the general savings provisions enacted in the Interpretation Act.
Conclusion: pending claims preserved
Orders
Western Australia, Legislative Assembly, Parliamentary Debates (Hansard), 21 October 1999 at 2456. ↩
(1987) 162 CLR 514 at 518. ↩
(1987) 162 CLR 514 at 518. ↩
(1962) 109 CLR 153. ↩
Continental Liqueurs Pty Ltd v G F Heublein and Bro Inc (1960) 103 CLR 422. ↩
(1962) 109 CLR 153 at 161-162. ↩
Butler v Attorney-General (Vict) (1961) 106 CLR 268 at 275. ↩
Dossett v TKJ Nominees Pty Ltd [2001] WASCA 179. ↩
Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission (2002) 77 ALJR 40 at 43 [11], 49 [43], 61 [111], 65‑66 [132]; 192 ALR 561 at 565, 573, 590, 596. ↩
(2001) 25 WAR 1. ↩
(2001) 25 WAR 1 at 8‑9. ↩
(2001) 25 WAR 1 at 9. ↩
[2001] WASCA 179 at [30]. ↩
Dossett
TKJ Nominees Pty Ltd [2003] HCA 69; 218 CLR 1; 202 ALR 428; 78 ALJR 161
(1987) 162 CLR 514
(1962) 109 CLR 153
(1960) 103 CLR 422
(1961) 106 CLR 268
(2002) 77 ALJR 40
(2001) 25 WAR 1
(1989) 166 CLR 161
Appeal allowed with costs. The Full Court's orders were set aside. In their place, the appeal to the Full Court was allowed with costs, the District Court's orders were set aside, and the application for leave was remitted to the District Court for determination according to law: order; [46].
Section 32(7) deals with claims for damages that either have been commenced or by the grant of leave may be commenced. It says nothing whatever about pending applications for leave to commence proceedings for damages. Nor does it contain any statement that the two classes of proceedings identified in s 32(7) are the only proceedings to which the former provisions of s 93D continue to apply. Nor does s 32(7) contain any statement that it applies despite anything in any other statute.
Accordingly, s 32(7) did not effect an implied repeal of either s 37(1) or s 37(2) of the Interpretation Act.
It follows that s 37 of the Interpretation Act entitled Mr Dossett to proceed with his pending application for leave which continues to be governed by the former provisions of s 93D of the Workers' Compensation and Rehabilitation Act 1981. The Full Court of the Supreme Court of Western Australia and the District Court erred in concluding that the District Court had no power to give leave to Mr Dossett to commence proceedings for damages under the repealed s 93D.
The result is that the former provisions in s 93D continued to apply to the pending application by the appellant and that the District Court therefore erred in dismissing the application on the ground that it lacked the necessary power to grant leave.
The appeal should be allowed with costs. The orders of the Full Court of the Supreme Court of Western Australia should be set aside. In place thereof it should be ordered that the appeal to that Court should be allowed with costs, the orders of the District Court should be set aside and the application for leave should be remitted to the District Court for determination according to law. The grant of leave to appeal to the Full Court dealt with the costs of that application by treating them as costs in the appeal to the Full Court. The costs order now made with respect to the Full Court appeal will pick up the earlier order and there is no occasion to amend that order.
KIRBY J. This is another dispute over statutory interpretation. It presents the type of problem about which judges of this Court21 and other appellate courts22 not infrequently differ. Such differences arise out of the margin for judgment inherent in the task.
Although, in the result, there is unanimity in this Court (thereby reversing the unanimous decision of the Full Court of the Supreme Court of Western Australia23), the argument in favour of the decision now reversed was not an insubstantial one. The answer to the puzzle is not found only, or even mainly, in an analysis of the statutory language. It is found by considering that language in the broader context of legal principle and policy.
It is increasingly accepted that, in contested matters of statutory interpretation, there will often be persuasive arguments in favour of competing conclusions24. In the end, a legal system endorses one interpretation as the correct or preferable construction. That is then identified as the only one applicable to the contested words. However, it is rare that words themselves, alone, yield the preferred outcome25. If such disputes are to depend upon considerations more substantial than the identity of the decision-makers and their place in the judicial hierarchy, it is important that a court such as this should acknowledge the problematic nature of the task and seek to identify clearly the considerations that have led it to its conclusion26. To say this does not mean delving into psychological considerations and other like mysteries27. However, it does mean approaching the task of construction from a perspective that is broader than the examination of the words of the statute, armed with a dictionary or two28. The importance of context for the derivation of meaning has been emphasised by this Court both in relation to statutory construction29 and the ascertainment of the meaning of private instruments30. I approach the present appeal with that instruction in mind.
In explaining why I have concluded that the Full Court erred in this case, I will start with a number of general propositions. After identifying what I see as the strongest arguments in favour of the conclusion that the Full Court reached, I will list those considerations that have brought me to the opposite outcome.
At all times relevant to the appellant's action, s 93C of the Workers' Compensation Act stated:
In response to a suggestion by lawyers "that if an application were made prior to assent, workers may seek damages under the old common law provisions", the Minister stated that "[c]learly this is not the intent of the amendment Act". She said that the wording of s 32(7) of the 1999 Act was "clear". She stated that "[t]he new common law provisions do not affect the awarding of damages only if the proceedings have commenced or leave of the District Court was granted before the assent day".
Although these remarks are not part of a Second Reading Speech and are not therefore available under the Interpretation Act52 as extrinsic material to assist in interpretation of the Act, the respondent submitted that the Minister's speech was admissible as "relevant material in any official record of proceedings in either House of Parliament"53 or under the common law. Accordingly, it should be received to indicate the Minister's understanding of the purpose of Parliament54. Certainly, no Member of Parliament took objection at the time the Minister made her statement or thereafter.
The assent day: Thirdly, the particularity of the "assent day" was arguably another indication of a purpose of Parliament in introducing, even at the cost of some arbitrariness, an incontestable precondition that would clarify the rights of workers and obligations of employers where the worker was claiming common law damages against an employer at the time the 1999 Act took effect. Unless the worker had commenced the proceedings before the assent day (or at least had obtained leave to do so before that date), the worker was not entitled to commence any such proceedings thereafter and the court could not award damages contrary to such requirement (s 93C). Whatever individual injustice that might cause in a particular case, it at least had the merit of clarity. It was therefore the obligation of courts to give it effect. It was no part of the function of courts to frustrate the clearly expressed wishes of a Parliament acting within its constitutional mandate55. In such a case, any suggestions of unfairness must be addressed through the democratic process to the Parliament concerned56. Courts must resist any temptation to correct such perceived injustices. To attempt to do so takes the judiciary beyond its legitimate function57.
Contemporary caps and restrictions: Fourthly, in so far as suggested injustice to individuals such as the appellant was concerned, provisions of the kind introduced by the 1999 Act must arguably now be viewed against a background of many similar attempts by legislatures in Australia to abolish, restrict, and impose caps on, entitlements at common law with the object of ensuring that such entitlements are economically affordable58. No court, surveying the scene of common law actions in Australia, could be unaware of the fact that provisions such as those introduced by the 1999 Act represent a comparatively common legislative response, designed to restrict damages and ensure the availability of insurance cover at reasonable rates59.
Once it is accepted that legislation of such a kind is now a common feature of the law, the desirability of clear provisions to govern entitlements during the transition is plain. Employers and insurers will need to calculate risks, to estimate residual claims and to close files by reference to transparent criteria of liability. Such considerations lend strength to the respondent's argument that s 32(7) of the 1999 Act was intended to cover the universe of pending common law proceedings by employees. Other proceedings that had not progressed as far as a grant of leave were, on this hypothesis, excluded from continuation. The files were closed.
A "contrary intention": Fifthly, no general provision of the Interpretation Act could breathe life into a claim for damages that, in effect, had been terminated by the imposition of a procedural requirement with which the appellant did not comply. Section 37 of the Interpretation Act states that general savings provisions have the specified consequences "unless the contrary intention appears"60. Therefore, if, as the respondent submitted, the "contrary intention" appeared sufficiently from the particularity of s 32(7) of the 1999 Act, the disqualification envisaged in the Interpretation Act was engaged. The general savings could have no operation to cut away the clearly stated "intention" of Parliament in enacting, as it did, the special provisions in the 1999 Act61. The object of Interpretation Acts is to ensure that the purpose of the relevant Parliament, properly ascertained, is given effect. It is not to defeat obedience to that purpose where it is clear.
An analogous precedent: Sixthly, to the suggestion that this approach was unduly rigid, insensitive to the decisions of this Court protective of pending proceedings already before courts and tribunals, the respondent pointed to G F Heublein and Bro Inc v Continental Liqueurs Pty Ltd62. There a Full Court reversed a decision of Kitto J, who had decided at first instance a somewhat analogous point63. In that case, express provision had been made by the Trade Marks Act 1955 (Cth) when it repealed the Trade Marks Act 1905 (Cth), in respect of applications that had been lodged under the repealed Act and were pending when the 1955 Act came into operation. Kitto J had concluded that s 8 of the Acts Interpretation Act 1901 (Cth) saved the pending application. This was so notwithstanding the content of the special transitional provisions contained in the 1955 Act. However, Dixon CJ, Taylor and Windeyer JJ, in the Full Court, concluded differently64:
So far as common law principle is concerned, it is a strong assumption of the operation of legislation that amendments to a statute will ordinarily be construed as having a prospective operation only. At least they normally do so far as they purport to affect individual rights and privileges68. Generally speaking, it is presumed that legislation does not have a retrospective operation on rights without clear provision to that effect. Where the rights are merely procedural, a different presumption will sometimes be given effect. But in the instant case, the suggested interposition of an abolition of the entitlement to seek the District Court's approval to commence proceedings of a claim at common law, can hardly be described as procedural only69. If the respondent's argument is good, the combined operation of s 93C of the Workers' Compensation Act and the transitional provisions in s 32(7) of the 1999 Act would effectively destroy the entitlement of the appellant to enforce his rights. Such a procedural burden would be fatal. For the transitional provisions to have that effect, a clear indication of the legislative purpose would be required.
Absence of express abolition: Thirdly, such a clear indication could have been expressed by Parliament in various ways. Thus, Parliament might have expressly stated that common law rights that existed at the assent day but which had not been the subject of a grant of leave to proceed, were thereby "abolished". Or it might have stated that s 32(7) of the 1999 Act took effect "notwithstanding any provisions of any other law, written or unwritten". Or it might have said that proceedings could continue "in and only in" those cases commenced as specified by s 32(7). Such means of clarifying a purpose to terminate the appellant's rights were not enlisted. The legislation must be read accordingly.
Interpretation Act, s 37(2): Fourthly, there is a further consideration special to the law of Western Australia. By s 37(2) of the Interpretation Act, the Parliament of that State has enacted a unique indication of its special purpose to apply the general savings provisions to a repeal, notwithstanding the fact that particular legislation may also contain express savings provisions70.
The respondent immediately perceived the danger presented to its arguments by the terms of s 37(2) of the Interpretation Act. It endeavoured to avoid that danger by contending that the provisions of the 1999 Act were not "repealing provisions" but were, instead, in the Western Australian context, "amendments" to which s 37(2) had no application. I agree that this argument should be rejected71. The new provisions of the 1999 Act replaced the earlier law, which thereafter had no operation. Accordingly, s 37(2) of the Interpretation Act applies. It affords an indication that the language of s 32(7) of the 1999 Act is not to be taken "to prejudice the operation of this section", that is, s 37(1) of the Interpretation Act. That being the case, s 37(1) must be read in conjunction with the amendment effected in 1999. As pointed out in the other reasons72, this conclusion is reinforced by the terms of s 35 of the Interpretation Act, which make it clear the substituted enactment is to be characterised as a repeal73.
The inclusion of the particular provisions in s 32(7) of the 1999 Act did not therefore give rise to the "contrary intention" referred to in s 37(1) of the Interpretation Act. In terms of s 37(1) of the Interpretation Act, the "right", "interest", "title", "power" or "privilege" of the appellant to pursue his common law claim by way of the pending application for leave in the District Court survived the repealing force of the amending Act of 1999. True, s 32(7) of the 1999 Act did not make specific reference to this saving. But neither did that sub-section expressly remove the saving effected by other legislation that gave recognition to a deep-seated common law principle.
Abolition and accountability: Fifthly, in this Court the requirement that legislation having the propounded effect of abolishing individual rights must be clear and unambiguous is a longstanding and important one74. It applies to a right, such as the common law right of the appellant to damages, notwithstanding that such right has been made conditional upon fulfilment of procedural requirements75. Although the principle has a long history, it is probably fair to say that it has been applied more rigorously by the Court in recent years. An illustration is Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission76. There, this Court unanimously held that general provisions of the Trade Practices Act 1974 (Cth) did not abrogate important common law rights, privileges and immunities in the absence of clear words or necessary implications to that effect77.
The greater insistence by the Court upon the application of this principle of late can probably be explained by reference to the growth of legislation in recent times. It may also be affected by enlarged appreciation of the importance of fundamental human rights that shape contemporary understandings of Australian law78. In many cases, but particularly in recent years, this Court has insisted upon this principle79. It lessens the risk of the abolition of the rights of individuals by oversight, accident or mistake80. To that extent, the courts act in a role "auxiliary to Parliament and defensive of basic rights"81. In many areas of the law, not least in amendments to and repeal of legislation, it is easy to abolish established rights without intending to do so.
The statement by the Minister to the Western Australian Parliament, made after the enactment of the 1999 Act (assuming that it was admissible and relevant in this appeal), scarcely represented the kind of considered adoption by Parliament of a law abolishing established rights and privileges that can be expected where law-makers set out to take away such legal entitlements. Further, as mentioned in Daniels Corporation82, those who set out to abolish existing rights are obliged to face the consequences of what they have done. In the modern processes of democratic government they are required to assume political accountability for their actions83.
[2001] WASCA 179 at [30]. ↩
Acts Interpretation Act 1901 (Cth), s 8; Acts Interpretation Act 1915 (SA), s 16; Acts Interpretation Act 1931 (Tas), s 16; Acts Interpretation Act 1954 (Q), s 20; Interpretation of Legislation Act 1984 (Vic), s 14; Interpretation Act 1987 (NSW), s 30; Legislation Act 2001 (ACT), s 84; Interpretation Act 1978 (NT), s 12. ↩
Interpretation of Legislation Act 1984 (Vic), s 14; Acts Interpretation Act 1931 (Tas), s 16. ↩
Acts Interpretation Act 1954 (Q), s 20; Interpretation Act 1978 (NT), s 12. ↩
(1961) 106 CLR 268 at 275. ↩
(1961) 106 CLR 268 at 275. ↩
South Australia v Tanner (1989) 166 CLR 161 at 171; Kartinyeri v The Commonwealth (1998) 195 CLR 337 at 375 [67]; Shergold v Tanner (2002) 209 CLR 126 at 136‑137 [34]-[35]. ↩
Continental Liqueurs Pty Ltd v G F Heublein and Bro Inc (1960) 103 CLR 422 at 426-427 per Kitto J reversed in this respect: G F Heublein and Bro Inc v Continental Liqueurs Pty Ltd (1962) 109 CLR 153 at 160-162; Esber v The Commonwealth (1992) 174 CLR 430 at 440-441 per Mason CJ, Deane, Toohey and Gaudron JJ and at 452 per Brennan J (diss). ↩
Musgrove v Minister for Transport [2000] WASCA 232 per Ipp J, Wallwork J; Kennedy J dissenting. ↩
Dossett v TKJ Nominees Pty Ltd [2001] WASCA 179 per Scott J; Anderson J and Stein AJ concurring. ↩
News Ltd v South Sydney District Rugby League Football Club Ltd (2003) 77 ALJR 1515 at 1524 [42] per McHugh J; 200 ALR 157 at 168. ↩
cf Trust Company of Australia Ltd v Commissioner of State Revenue (2003) 77 ALJR 1019 at 1034 [95]; 197 ALR 297 at 317. ↩
Trust Company of Australia Ltd v Commissioner of State Revenue (2003) 77 ALJR 1019 at 1029 [66]; 197 ALR 297 at 310. ↩
Trust Company of Australia Ltd v Commissioner of State Revenue (2003) 77 ALJR 1019 at 1029 [66]; 197 ALR 297 at 310. ↩
Attorney-General (WA) v Marquet [2003] HCA 67 at [186]; Mason, "Changing the Law in a Changing Society", (1993) 67 Australian Law Journal 568 at 569. See also Young, "Recent Cases: Statutory Construction", (1993) 67 Australian Law Journal 555 at 556. ↩
CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 at 408. ↩
Royal Botanic Gardens and Domain Trust v South Sydney City Council (2002) 76 ALJR 436 at 441 [19], 449-450 [70]-[72]; 186 ALR 289 at 296, 307-308. ↩
Reasons of McHugh J at [2]-[4]; reasons of Gummow, Hayne and Heydon JJ ("joint reasons") at [20]-[28]. ↩
Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 at 562-566. ↩
Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51 at 115-118, 137-139. ↩
cf British American Tobacco Australia Ltd v Western Australia (2003) 77 ALJR 1566; 200 ALR 403. ↩
Victorian Stevedoring and General Contracting Co Pty Ltd and Meakes v Dignan (1931) 46 CLR 73 at 104-106; cf Building Construction Employees and Builders' Labourers Federation of New South Wales v Minister for Industrial Relations (1986) 7 NSWLR 372 at 390-391. ↩
See the instances cited in Building Construction Employees and Builders' Labourers Federation of New South Wales v Minister for Industrial Relations (1986) 7 NSWLR 372 at 391. ↩
cf Georgiadis v Australian and Overseas Telecommunications Corporation (1994) 179 CLR 297 at 304-305, 314. ↩
cf Toolan v Metropolitan (Perth) Passenger Transport Trust (2001) 25 WAR 1 at 22 [65] per Parker J. ↩
(1977) 136 CLR 379 at 387. See also Trust Company of Australia Ltd v Commissioner of State Revenue (2003) 77 ALJR 1019 at 1029 [69]; 197 ALR 297 at 311. ↩
Potter v Minahan (1908) 7 CLR 277 at 304; Ex parte Walsh and Johnson; In re Yates (1925) 37 CLR 36 at 93; Bropho v Western Australia (1990) 171 CLR 1 at 18; Chu Kheng Lim v Minister for Immigration (1992) 176 CLR 1 at 28; Coco v The Queen (1994) 179 CLR 427 at 435-438; Kartinyeri v Commonwealth (1998) 195 CLR 337 at 381 [89]; Malika Holdings Pty Ltd v Stretton (2001) 204 CLR 290 at 328 [121]; Attorney-General (WA) v Marquet [2003] HCA 67 at [163]-[164]. ↩
eg Conway v The Queen (2002) 209 CLR 203 at 227 [65]. ↩
Bropho v Western Australia (1990) 171 CLR 1 at 20 applying Kingston v Keprose Pty Ltd (1987) 11 NSWLR 404 at 421-424. ↩
cf Re Bolton; Ex parte Beane (1987) 162 CLR 514 at 518. ↩
Trust Company of Australia Ltd v Commissioner of State Revenue (2003) 77 ALJR 1019 at 1029 [68]; 197 ALR 297 at 310; Australian Communication Exchange Ltd v Deputy Commissioner of Taxation (2003) 77 ALJR 1806 at 1816 [59]; 201 ALR 271 at 285; Attorney-General (WA) v Marquet [2003] HCA 67 at [133], [145]-[148]. ↩
Reasons of McHugh J at [2]-[3], [6]-[7]; joint reasons at [23], [25]-[26], [32], [34]. ↩
Such as Supreme Court Act 1935 (WA) and District Court of Western Australia Act 1969 (WA): see Toolan v Metropolitan (Perth) Passenger Transport Trust (2001) 25 WAR 1 at 19 [52]. ↩
Workers' Compensation Act, s 93D(4). ↩
Workers' Compensation Act, s 93D(5)(c). ↩
Interpretation Act, ss 37(1) and (2). See reasons of McHugh J at [6]-[7]; joint reasons at [32], [34]. ↩
Western Australia, Legislative Assembly, Parliamentary Debates (Hansard), 21 October 1999 at 2456. ↩
Great Britain, Report of the Royal Commission on Civil Liability and Compensation for Personal Injury (Chairman: Lord Pearson), (1978), Cmnd 7054-I, vol 1 at 169. ↩
Interpretation Act, s 19(2)(f). ↩
Interpretation Act, s 19(2)(h). ↩
As distinct from the subjective belief of the Minister, which is irrelevant: see Attorney-General (WA) v Marquet [2003] HCA 67 at [134]. ↩
Trust Company of Australia Ltd v Commissioner of State Revenue (2003) 77 ALJR 1019 at 1029 [68]; 197 ALR 297 at 310. ↩
Building Construction Employees and Builders' Labourers Federation of New South Wales v Minister for Industrial Relations (1986) 7 NSWLR 372 at 406; Durham Holdings Pty Ltd v New South Wales (2001) 205 CLR 399 at 427 [61]. ↩
Trust Company of Australia Ltd v Commissioner of State Revenue (2003) 77 ALJR 1019 at 1033 [91]; 197 ALR 297 at 316; Durham Holdings Pty Ltd v New South Wales (2001) 205 CLR 399 at 427 [61], 430-432 [70]-[77]. ↩
Victims Compensation Fund Corporation v Brown (2003) 77 ALJR 1797 at 1802 [26]; 201 ALR 260 at 266-267. ↩
See Australia, Review of the Law of Negligence: Final Report (Chairman: Justice David Ipp), (2002); cf Victims Compensation Fund Corporation v Brown (2003) 77 ALJR 1797 at 1803 [29]; 201 ALR 260 at 268. ↩
Interpretation Act, s 37(1). ↩
cf Sin Poh Amalgamated (HK) Ltd v Attorney-General of Hong Kong [1965] 1 WLR 62 at 67 (PC); [1965] 1 All ER 225 at 228; cf Musgrove v Minister for Transport [2000] WASCA 232 at [6], [8] per Kennedy J (diss). ↩
(1962) 109 CLR 153. ↩
Continental Liqueurs Pty Ltd v G F Heublein and Bro Inc (1960) 103 CLR 422. ↩
(1962) 109 CLR 153 at 161-162. ↩
cf David Grant & Co Pty Ltd v Westpac Banking Corporation (1995) 184 CLR 265 at 275-276; Landsal Pty Ltd (In liq) v REI Building Society (1993) 41 FCR 421 at 427. ↩
(2001) 25 WAR 1. ↩
(2001) 25 WAR 1 at 29-30 [89]-[92]. ↩
Maxwell v Murphy (1957) 96 CLR 261 at 267; Fisher v Hebburn Ltd (1960) 105 CLR 188 at 194. ↩
Maxwell v Murphy (1957) 96 CLR 261 at 277; cf Republic of Costa Rica v Erlanger (1876) 3 Ch D 62. ↩
The terms of s 37(2) are set out in the reasons of McHugh J at [7]. See also joint reasons at [32]. ↩
Reasons of McHugh J at [8]-[9]; joint reasons at [37]. ↩
Reasons of McHugh J at [9]; joint reasons at [37]. ↩
cf Attorney-General (WA) v Marquet [2003] HCA 67 at [127], [135]-[136]. ↩
Potter v Minahan (1908) 7 CLR 277 at 304; Ex parte Walsh and Johnson; In re Yates (1925) 37 CLR 36 at 93; Attorney-General (WA) v Marquet [2003] HCA 67 at [163]. ↩
New South Wales Aboriginal Land Council v Minister Administering the Crown Lands (Consolidation) Act and the Western Lands Act (1988) 14 NSWLR 685 at 696 per Hope JA. ↩
(2002) 77 ALJR 40; 192 ALR 561. ↩
Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission (2002) 77 ALJR 40 at 43 [11], 49 [43], 57 [88], 65-66 [132]; 192 ALR 561 at 565, 573, 584, 596. ↩
cf Mabo v Queensland [No 2] (1992) 175 CLR 1 at 42; Attorney-General (WA) v Marquet [2003] HCA 67 at [180]. ↩
eg Re Bolton; Ex parte Beane (1987) 162 CLR 514 at 523; Coco v The Queen (1994) 179 CLR 427 at 435-438. ↩
Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission (2002) 77 ALJR 40 at 59-60 [104]-[105]; 192 ALR 561 at 588. ↩
Yuill v Corporate Affairs Commission (NSW) (1990) 20 NSWLR 386 at 403-404. See also Durham Holdings Pty Ltd v New South Wales (2001) 205 CLR 399 at 415-416 [30]-[31], 430 [71]-[72]. ↩
(2002) 77 ALJR 40; 192 ALR 561. ↩
Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission (2002) 77 ALJR 40 at 60 [106]; 192 ALR 561 at 588-589; Plaintiff S157/2002 v Commonwealth (2003) 77 ALJR 454 at 462 [30]; 195 ALR 24 at 34; Attorney-General (WA) v Marquet [2003] HCA 67 at [164], [180] each citing R v Secretary of State for the Home Department; Ex parte Simms [2000] 2 AC 115 at 131 per Lord Hoffmann. See also R (Morgan Grenfell & Co Ltd) v Special Commissioner of Income Tax [2003] 1 AC 563 at 615 [44]. ↩
(1998) 195 CLR 337
(2002) 209 CLR 126
(1992) 174 CLR 430
(2003) 77 ALJR 1515
(2003) 77 ALJR 1019
(1997) 187 CLR 384
(2002) 76 ALJR 436
(1997) 189 CLR 520
(1996) 189 CLR 51
(2003) 77 ALJR 1566
(1931) 46 CLR 73
(1986) 7 NSWLR 372
(1994) 179 CLR 297
(1977) 136 CLR 379
(1908) 7 CLR 277
(1925) 37 CLR 36
(1990) 171 CLR 1
(1992) 176 CLR 1
(1994) 179 CLR 427
(2001) 204 CLR 290
(2002) 209 CLR 203
(1987) 11 NSWLR 404
(2003) 77 ALJR 1806
(2001) 205 CLR 399
(2003) 77 ALJR 1797
(1995) 184 CLR 265
(1993) 41 FCR 421
(1957) 96 CLR 261
(1960) 105 CLR 188
(1988) 14 NSWLR 685
(1992) 175 CLR 1
(1990) 20 NSWLR 386
(2003) 77 ALJR 454