Hore v Albury Radio Taxis Co-Op Society Ltd

Supreme Court of NSW|2002-11-12|Before: Campbell J

These proceedings be transferred to the Federal Court, Victoria Registry.

Plaintiff to pay costs of the defendants of the Notice of Motion seeking transfer. Appendix of Cases Giving Examples of "Always Speaking" Construction

In 1958 section 418(1)(b) of the Local Government Act 1919 conferred on local councils powers relating to the supply of gas and the supply and installation of gas fittings and appliances. By a proclamation made in 1958 there was delegated to the Aberdare County Council, "all powers and duties under sections 416 to 419 of the Act relating to the supply of gas and the supply and installation of gas fittings and appliances." In 1961 local councils were given an additional power by section 418(1)(l) Local Government Act , relating to the supply of liquefied petroleum gas and the supply and installation of pipes, fittings apparatus and appliances used for or designed for use in the conveyance or consumption of such gas. A county council levied a rate for the purpose of supplying liquid petroleum gases and pipes, fittings, apparatus and appliances connected with liquid petroleum gas. Barwick CJ (with whom Menzies J agreed, and Windeyer J agreed with some reservations) referred, at 331, to an argument that "gas" in the 1958 proclamation, was confined to coal gas. Three predecessors of the Local Government Act , which referred to powers concerning gas, were so confined. Barwick CJ continued: "It may be granted that "gas" in these statutes denoted coal gas. In the earlier of three Acts that clearly appears from the various provisions of the Acts themselves, and no doubt in 1906, gas denoted coal gas, because no other form of gas for lighting and heating was in common use. Nonetheless the connotation of the word "gas" may not be so described. The Act here speaks of "gas" , not of coal gas. In my opinion, it thus selects the genus, and not any particular species of gas. I can see no reason why, whilst the connotation of the word "gas" will be fixed, its denotation cannot change with changing technologies. Indeed, in my opinion, it would be odd that in granting trading powers, including the power to supply gas for heating and lighting, the Act should intentionally close the door on access by the local government bodies to developing methods of trading in gas for heating and lighting. But in my opinion the question need not be resolved on any such general considerations. It is to my mind plain that the word "gas" in the paragraph in section 418 cannot be limited in its denotation to coal gas … In my opinion, throughout the reference in section 418(1)(b) and the proviso is to the genus gas which will apply to them as new species of gas are made available. That meaning is not to be altered, in my opinion, by the addition of par (l) which, it seems to me, was simply inserted for more abundant caution": The Council of the Shire of Lake Macquarie v Aberdare County Council (1969) 123 CLR 327

A tax deduction was available for certain expenditure made by a taxpayer in connection with the carrying on of "mining operations" . ICI claimed a tax deduction for expenditure involved in drilling into particularly concentrated subterranean pockets of brine, bringing it to the surface and, through evaporation, producing salt. The Commissioner submitted that this technique was comparatively new, and hence not within the meaning intended by parliament. Walsh J, at 43, said: "I think it would be a mistake to say that the question is as to the meaning which the relevant provisions of the Act had at the time when they were enacted and that therefore no regard can be had to anything that occurred afterwards. When the Act was passed there were no works in Australia of the kind which ICI subsequently established. It was not until such works were established that any question could arise as to whether they were or were not works to which the general expression "mining operations" used in the Act applied. When it was raised in this case, the question was whether the expenditure then recently incurred by ICI was incurred in connection with the carrying on of mining operations. In my opinion it must be legitimate to ask whether in the sense in which the words were then used or understood, they applied to the operations of ICI": Imperial Chemical Industries of Australia & New Zealand Limited v Commissioner of Taxation of the Commonwealth (1971) 46 ALJR 35. (An appeal to the Full Court, The Commissioner of Taxation of the Commonwealth of Australia v ICI Australia Limited (1972) 127 CLR 529 did not consider this point.)

The Abortion Act 1967 of England made provision for there to be no offence committed under the law relating to abortion when a pregnancy was terminated in certain circumstances, one of which was that the "pregnancy is terminated by a registered medical practitioner" . At the time of enactment of the legislation, the only methods used to produce abortions were surgical methods, all significant steps in which were carried out by medical practitioners. After the enactment of the legislation a method of abortion became available which involved a medical practitioner inserting a catheter into the womb of the pregnant woman, and a cannula into one of her veins. Thereafter, prostaglandin was gradually administered through the catheter, and oxytocin through the cannula. It was the administration of these chemicals which was the effective cause of the foetus ultimately being expelled. The administration of these chemicals was carried out by nursing staff, though in accordance with directions from a medical practitioner. The House of Lords held, by a 3:2 majority, that this new method of achieving abortions amounted to a pregnancy being "terminated by a registered medical practitioner" . Lord Wilberforce, one of the dissentients, stated the principle as follows, at 822: "In interpreting an Act of Parliament it is proper, and indeed necessary, to have regard to the state of affairs existing, and known by Parliament to be existing, at the time. It is a fair presumption that Parliament's policy or intention is directed to that state of affairs. Leaving aside cases of omission by inadvertence, this being not such a case, when a new state of affairs, or a fresh set of facts bearing on policy, comes into existence, the courts have to consider whether they fall within the Parliamentary intention. They may be held to do so, if they fall within the same genus of facts as those to which the expressed policy has been formulated. They may also be held to do so if there can be detected a clear purpose in the legislation which can only be fulfilled if the extension is made. How liberally these principles may be applied must depend upon the nature of the enactment, and the strictness or otherwise of the words in which it is expressed. The courts should be less willing to extend expressed meanings if it is clear that the Act in question was designed to be restrictive or circumscribed in its operation rather than liberal or permissive. They will be much less willing to do so where the subject matter is different in kind or dimension from that for which the legislation was passed. In any event there is one course which the courts cannot take, under the law of this country; they cannot fill gaps; they cannot by asking the question "What would Parliament have done in this current case - not being one in contemplation - if the facts had been before it?" attempt themselves to supply the answer, if the answer is not to be found in the terms of the Act itself": Law Lords in the majority in the House of Lords regarded the new procedure as coming within the legislative words by reason of the legislation contemplating that termination of pregnancies would take place in hospitals, where treatment by teams of doctors, nurses and other professionals was routine (828), and the pregnancy would be "terminated by a registered medical practitioner" if a medical practitioner accepted responsibility for all stages of the treatment, himself carried out all parts of the procedure which in accordance with accepted medical practice were done only by qualified medical practitioners, gave specific instructions for carrying out those parts of the procedure ordinarily carried out by other members of the team, and was available to be consulted or called on from beginning to end of the treatment (828, 835): Royal College of Nursing of the United Kingdom v Department of Health and Social Security [1981] AC 800.

A statute of 1861 forbade the bringing about of "grievous bodily harm" , in certain circumstances. In R v Ireland [1998] AC 147 one of the questions for decision was whether psychiatric injury counted as "grievous bodily harm" . Lord Steyn said, at 158: "… although out of considerations of piety we frequently refer to the actual intention of the draftsman, the correct approach is simply to consider whether the words of the Act of 1861 considered in the light of contemporary knowledge cover a recognisable psychiatric injury. It is undoubtedly true that there are statutes where the correct approach is to construe the legislation "as if one were interpreting it the day after it was passed:" "The Longford (1889) 14 PD 34. Thus in The Longford the word "action" in a statute was held not to be apt to cover an Admiralty action in rem since when it was passed the Admiralty Court "was not one of His Majesty's Courts of Law:" see pp 37, 38. Bearing in mind that statutes are usually intended to operate for many years it would be most inconvenient if courts could never rely in difficult cases on the current meaning of statutes. Recognising the problem Lord Thring, the great Victorian draftsman of the second half of the second century, exhorted draftsmen to draft so that "An Act of Parliament should be deemed to be always speaking:" Practical Legislation (1902) p 83; see also Cross, Statutory Interpretation , 3rd ed (1995) p 51; Pearce and Geddes, Statutory Interpretation in Australia , 4th ed (1996), pp 90-93. In cases where the problem arises it is a matter of interpretation whether a court must search for the historical or original meaning of a statute or whether it is free to apply the current meaning of the statute to present day conditions. Statutes dealing with a particular grievance or problem may sometimes require to be historically interpreted. But the drafting technique of Lord Thring and his successors have brought about the situation that statutes will generally be found to be of the "always speaking" variety … The proposition that the Victorian legislator when enacting sections 18, 20 and 47 of the Act of 1861, would not have had in mind psychiatric illness is no doubt correct. Psychiatry was in its infancy in 1861. But the subjective intention of the draftsman is immaterial. The only relevant inquiry is as to the sense of the words in the context in which they are used. Moreover the Act of 1861 is a statute of the "always speaking" type: the statute must be interpreted in the light of the best current scientific appreciation of the link between the body and psychiatric injury."

A defence to defamation, of being a fair and accurate report of the proceedings at any public meeting, was available in relation to reporting the contents of a press statement made available at a press conference. This was so notwithstanding that the defence could be traced back to a statute of 1881, at which time press conferences were unknown: McCartan Turkington Breen (a firm) v Times Newspapers Ltd [2001] 2 AC 277, at 290-292, 295-296. **********

Last Modified: 11/28/2007 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.

Competition Code Competition Policy Reform Act 1995(Cth)

Co-Operatives Act 1992(NSW)

Jurisdiction of Courts Legislation Amendment Act 2000(Cth)

Jurisdiction of Courts (Miscellaneous Amendments) Act 1987(Cth)

Trade Practices Act 1974(Cth)

When the Jurisdiction of Courts (Cross-vesting) Act 1987(NSW)

CITATION : Hore v Albury Radio Taxis Co-Op Society Ltd [2002] NSWSC 1130 revised - 9/05/2003 CURRENT JURISDICTION: Equity FILE NUMBER(S) : SC 2912/00 HEARING DATE(S) : 12 November 2002 JUDGMENT DATE : 6 December 2002

COUNSEL : M S White (Plaintiff) J Baird (Defendant) SOLICITORS : Kell Moore (Plaintiff) Pigott Stinson Ratner Thom (Defendants) CATCHWORDS : TRADE PRACTICES AND RELATED MATTERS - jurisdiction - jurisdiction of State court to determine matter arising under the Competition Code - STATUTES - Acts of Parliament - whether definition of "special federal matter" in Jurisdiction of Court (Cross-vesting) Act 1987 picks up definition of "special federal matter" in Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth) as at 1987, or as amended from time to time - section 68 Interpretation Act 1987 (NSW) - construction to achieve purpose of legislation - constructing of schemes of more than one statute - construction of statutes as "always speaking" - PROCEDURE - courts and judges generally - transfer of proceeding under section 5 Jurisdiction of Courts (Cross-vesting) Act 1987 - factors relevant to "the interests of justice" - WORDS AND PHRASES - "having regard to" Abortion Act 1967 Acts Interpretation Act 1901 (Cth) Competition Code Competition Policy Reform Act 1995 (Cth) Competition Policy Reform (NSW) Act 1995 Co-Operatives Act 1992 (NSW) Copyright Act 1912 Corporations Act 2001 (Cth) Federal Court of Australia Act 1976 LEGISLATION CITED : Federal Courts (Consequential Provisions) Act 2000 Federal Courts (State Jurisdiction) Act 1999 Interpretation Act 1987 (NSW) Jurisdiction of Courts (Cross-vesting) Act 1987 (NSW) Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth) Jurisdiction of Courts Legislation Amendment Act 2000 (Cth) Jurisdiction of Courts (Miscellaneous Amendments) Act 1987 (Cth) Local Government Act 1919 Restraints of Trade Act 1976 (NSW) Trade Practices Act 1974 (Cth) Abdi v Release on Licence Board (1987) 10 NSWLR 294 Austereo Ltd v Trade Practices Commission (1993) 115 ALR 14 Australian Capital Television Pty Ltd v Minister for Transport and Communications (1989) 86 ALR 119 Chappell & Co Ltd v Associated Radio Co of Australia Ltd [1925] VLR 350 Commissioner for Government Transport (NSW) v Deacon (1957) 97 CLR 535 Commissioner of Stamp Duties v Permanent Trustee Co Ltd (1987) 9 NSWLR 717 Evans v Marmont (1997) 42 NSWLR 70 Imperial Chemical Industries of Australia & New Zealand Limited v Commissioner of Taxation of the Commonwealth (1971) 46 ALJR 35 McCartan Turkington Breen (a firm) v Times Newspapers Ltd [2001] 2 AC 277 Pioneer Concrete Services Ltd v Yelnah Pty Ltd (1986) 5 NSWLR 254 CASES CITED : Promenade Investments Pty Ltd v State of New South Wales (1991) 26 NSWLR 203 Queensland Medical Laboratory v Blewett (1988) 84 ALR 615 R v Hunt; ex parte Sean Investments Pty Ltd (1979) 180 CLR 322 R v Ireland [1998] AC 147 R v Police Board; ex parte Madden [1983] 1 WLR 447 R v Toohey; ex parte Meneling Station Pty Ltd (1982) 158 CLR 327 Re Wakim; ex parte McNally (1999) 198 CLR 511 Remick & Co v The American Automobile Accessories Company The Council of the Shire of Lake Macquarie v Aberdare County Council (1969) 123 CLR 327 Wallace v Stanford (1995) 37 NSWLR 1 Wilson v Commissioner of Stamp Duties (1988) 13 NSWLR 77 DECISION : See paragraph 59

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