Forster v Jododex Aust Pty Ltd [1972] HCA 61;

Forster v Jododex Aust Pty Ltd [1972] HCA 61; - HCA 1972 case summary — Zoe

[48]

That section obviously has no application to the present case, where no proceedings are sought to be removed. It has been held in the Supreme Court of New South Wales that prohibition will not lie against the grant by a warden of an authority to enter upon private lands : Ex parte Phillips (1906) 23 WN (NSW) 145 , followed in Ex parte Miller (1907) 7 SR (NSW) 214 . The reason given was that the warden when so acting is not a court, but prohibition may be directed to bodies other than courts if they perform quasi-judicial functions: R. v. Connell; Ex parte Hetton Bellbird Collieries Ltd. [1944] HCA 42; (1944) 69 CLR 407, at p 429 . However, it is not here necessary to consider whether the actual decision reached in Ex parte Phillips (1906) 23 WN (NSW) 145 was correct. The Supreme Court of New South Wales has also held that when a warden grants or refuses an application for an authority to enter, there are no "proceedings" within s. 168 of the Act and there is consequently no jurisdiction to state a case for the decision of the Supreme Court: Wake v. Murphy (1916) 16 SR (NSW) 523 ; Wallamaine Colliery Pty. Ltd. v. Cam & Sons Pty. Ltd. (1961) SR (NSW) 195 ; Keogh v. Heffernan (1961) SR (NSW) 535 . On the other hand, mandamus will lie to a warden who fails to hear and determine according to law an application for an authority to enter : Wade v. Burns [1966] HCA 35; (1966) 115 CLR 537 . However, these decisions, which indicate that one procedure is available and another is not to review the decision of a warden who grants or refuses an authority to enter, seem to me to have no relevance to the present question. There is nothing in the provisions considered in those cases that indicates a clear intention to exclude the power of the court to make a declaratory order. The Act does not provide a specific remedy to which the holder of an exploration license who seeks to establish the rights which it gives him is bound to resort. It was submitted that when s. 10 of the Equity Act was amended in 1965 the legislature did not intend by those general provisions to alter the effect of the special provisions of the Mining Act, which was the subject of considerable authority. The purpose of amending s. 10 was to provide a more extensive remedy of a general kind, and there is no possible justification for reading the section as though it contained words excepting from its operation cases arising under the Mining Act. Some reliance was placed by the appellant upon Toowoomba Foundry Pty. Ltd. v. The Commonwealth [1945] HCA 15; (1945) 71 CLR 545 where it was held that the decision of an independent tribunal acting under a statute or regulation cannot be challenged in an action claiming only a declaration that the decision is invalid. Since, in the present case, the warden has made no decision, Toowoomba Foundry Pty. Ltd. v. The Commonwealth [1945] HCA 15; (1945) 71 CLR 545 is distinguishable, and it is unnecessary to consider whether that case is consistent with later decisions of the House of Lords, such as Vine v. National Dock Labour Board (1957) AC 488 and Pyx Granite Co. Ltd. v. Ministry of Housing and Local Government (1960) AC 260 . It is true that the purpose of Jododex in seeking a declaration was to forestall a possible contrary decision by the warden, but that does not mean that the validity of any proceeding by the warden is challenged in these proceedings : cf. Mutual Life and Citizens' Assurance Co. Ltd. v. Attorney-General (Cth.) [1961] HCA 51; (1961) 106 CLR 48, at p 54 (at p437)

[61]

16. There is nothing in the nature of an exploration license that would render inappropriate this prima facie rule of construction, but the submission on behalf of the appellant was that a number of provisions of the license indicate an intention to include 28th November 1968 as the first day of the term. The license states that "This license is granted subject to such rights and interests as may be lawfully subsisting in such land at the date hereof . . ." Clearly enough, "the date hereof" in this provision means 28th November 1968 and the license is rendered subject to rights and interests subsisting at that date. It was submitted that anomalies might arise if the term did not commence until 29th November because there might be rights or interests which still subsisted on 28th November but which terminated on that date. I find it impossible, from a practical point of view, to imagine any right or interest to which the license was intended to be subject throughout the whole of the term notwithstanding that the right or interest itself came to an end on 28th November. The object of requiring that the rights and interest to which the license should be subject must be subsisting at a specified date was to exclude rights and interests that might subsequently come into existence, and the fact that 28th November was, naturally enough, selected as the date specified for this purpose seems to me to provide no assistance in deciding the question whether the term was intended to commence at the beginning or at the end of that day. Reference was also made to cl. 2 of the license which provides that "The Licensee shall immediately commence and unless otherwise authorised shall thereafter continuously proceed to carry out . . . such surveys and other operations as are hereinafter specified . . ." The word "immediately" in this clause does not mean at the very moment the license is signed. It means as quickly as is reasonably possible. Obviously the clause does not compel the licensee to do anything before the commencement of the term. In my opinion, it throws no light on the question when the term commenced to run. Finally, reference was made to cl. 2 of the special conditions which provides that "The area granted shall be exclusive of all titles . . . validly held prior to 9.30 a.m. on 20th March 1967, and still so held . . ." It was submitted that "still" in this condition meant on the date of signing the license. This may be so, but it does not follow that the date of signing is therefore intended to be included in the term. None of the provisions relied upon by the appellant in my opinion reveals any intention that in calculating the period of twelve months for which the license was granted 28th November 1968 should be included. In my opinion, therefore, effect should be given to the prima facie rule as to the effect of the preposition "from" and it should be held that the term began at midnight on 28th November 1968 and therefore did not conclude until midnight on 28th November 1969. (at p442)

[70]

20. If the matter had been res integra it might have been thought to be a nice 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 (3), it was held, following Zouch v. Empsey (4), 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 : Ex parte Hurst ; In re De Clouet (5) ; that a requirement that notice should be given by a council "one month at least" before fixing a level meant one clear month : Kilpatrick v. Mayor of Prahran (6) ; and that a provision of the Liquor Act (N.S.W.) that notice must be given "at least fourteen days before" an application for a license meant fourteen clear days and that the Licensing Court had no jurisdiction to entertain an application if notice had been given on the fourteenth day before the application : Ex parte McCance ; Re Hobbs (7). Similarly, it has been held that if "at least five days'" notice of a meeting is to be given, five clear days' notice must be given : Mount Oxide Mines Ltd. v. Gould (8), and see Mercantile Investment and General Trust Co. v. International Co. of Mexico (1893) 1 Ch 484 n ; at p 489 n ; a contrary decision in Anglo-Australian Investment, Finance and Land Co. Ltd. (1894) 4 BC (NSW) 63 is opposed to authority. The meaning of the expression "not less than" so many days gave rise to some initial fluctuation of opinion : Chambers v. Smith [1843] EngR 1002; (1843) 12 M & W 2 (152 ER 1085) , but since that decision the use of the words "not less than" so many days has been regarded as indicating that so many clear days must elapse between two acts or events : In re Railway Sleepers Supply Co. (1885) 29 Ch D 204 ; In re Hector Whaling Limited (1936) 1 Ch 208 ; Bear v. Official Receiver [1941] HCA 41; (1941) 65 CLR 307, at pp 311, 318 ; Associated Dominions Assurance Society Pty. Ltd. v. Balmford [1950] HCA 30; (1950) 81 CLR 161, at p 183 ; Reg. v. Long (1960) 1 QB 681 A different view has been taken in relation to notices to quit : Schnabel v. Allard (1967) 1 QB 627, but that case apparently depends on the special rules of the law of landlord and tenant. Whatever doubts may have originally existed, and however nicely balanced the arguments may have originally been, it is now, as Chitty J. said in In re Railway Sleepers Supply Co. (1885) 29 Ch D, at p 208 , "better . . . to adhere to settled rules". 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, it seems to me indistinguishable in meaning in this sort of context from "at least" or "not less than". With respect, I agree with the remarks of Megaw L.J. in Carapanayoti & Co. Ltd. v. Comptoir Commercial Andre & Cie S.A. (1972) 1 Lloyd's Rep, at p 145:

At a glance

Court

Decision date

Before

Source

Judgment (107 paragraphs)

Forster v Jododex Aust Pty Ltd [1972] HCA 61; (1972) 127 CLR 421 (1 December 1972)

Parties

Legislation Cited (2)

Cases Cited (16)