Langton v The Independent Commission Against Corruption

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

CA 40959/98 ALD 30027/98 STEIN JA GILES JA HODGSON CJ in EQ Monday, 19 June 2000 Brian Joseph LANGTON v THE INDEPENDENT COMMISSION AGAINST CORRUPTION

This appeal concerns the construction of provisions in the Guide to Members Entitlements Facilities and Services complied to inform members of the Legislative Assembly of the NSW Parliament of their entitlements and conditions attaching. The entitlements at issue relate to the use of travel warrants to meet the cost of an air charter.

The appellant appeals against the decision of Sperling J (in judicial review proceedings in the Supreme Court) that the ICAC Commissioner was correct to find that warrants are not transferable between members to meet the cost of an air charter where the transferor does not travel on the flight. The appellant relies on the ordinary meanings of 'transferable' and 'surrender'.

Held (Stein JA, Giles JA and Hodgson CJ in Eq agreeing):

Given the context and the words used, the construction adopted by Sperling J and the ICAC Commissioner appears plainly to be the correct one. The appeal should be dismissed with costs. OoO

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

CA 40959/98 ALD 30027/98 STEIN JA GILES JA HODGSON CJ in EQ Monday, 19 June 2000 Brian Joseph LANGTON v THE INDEPENDENT COMMISSION AGAINST CORRUPTION JUDGMENT 1 STEIN JA and GILES JA: 2 The issue presented in this appeal concerns the construction of provisions in the Guide to Members Entitlements Facilities and Services (the Guide) compiled to inform members of the Legislative Assembly of the New South Wales Parliament of their entitlements and the conditions attaching. It was issued in October 1993 for the currency of the 50th Parliament. The entitlements at issue relate to the use of travel warrants to meet the cost of an air charter. 3 The entitlements themselves result from determinations made from time to time under the Parliamentary Remuneration Tribunal Act 1975 and the Parliamentary Remuneration Act 1989. Under the legislation the entitlement of members to services, including air travel, was a matter for the Premier's determination. 4 The May 1984 version of the Guide provided for air charter travel upon payment by the member in the first instance and tender of a travel warrant when claiming reimbursement, and specified that travel warrants for air travel were not transferable. In 1987 the Premier determined that when a member arranged an air charter it should be permissible for that member, and any other members who travel on the flight, to surrender the number of warrants required to cover the cost of the charter, based on the commercial equivalent value of the warrants. This determination was reflected in the 1988 version of the Guide, although there was no relevant change in the non-transferability provisions. 5 The relevant provisions of the 1993 Guide included under the heading 'Air Travel' are as follows: Transfer and Use of Warrants (1) Warrants issued to members, spouses or approved relatives are not transferable between the various categories of travel, i.e., electorate to Sydney travel, intrastate travel and interstate travel. (2) Warrants are also not transferable between members, spouses or approved relatives or other members, spouses, etc, with the exception of: (a) the transfer of up to six electorate to Sydney warrants per annum from a member to electorate office staff (see Electorate Office Staff Travel Entitlements); or (b) where one member elects to surrender additional warrants to meet the cost of an air charter (see Air Charters). 6 And under the heading 'Air Charter Travel': Air Charter Travel Members, spouses or approved relatives may charter a plane in lieu of travelling on commercial flights provided that: (1) Sufficient warrants based on the equivalent commercial cost of one person travelling are surrendered. (2) Any member, spouse or approved relative travelling on the charter using Legislative Assembly or Legislative Council air travel entitlements must surrender sufficient warrants or entitlements between them to meet the total cost of the charter. (3) It is the responsibility of the member organising the charter to ensure that sufficient warrants are surrendered to meet the total cost of the charter or, alternatively, make up any shortfall by the payment of cash within 30 days of the receipt of an invoice from the Financial Controller. 7 The Guide specifies that members are provided with air travel entitlements for electorate and parliamentary business only. 8 The question for the Court to determine, upon the true construction of the Guide, is whether warrants are transferable between members to meet the cost of an air charter even though the transferor does not travel on the flight. The appellant contends that warrants are transferable and may be used for that purpose. 9 In his report, the ICAC Commissioner found to the contrary. In judicial review proceedings in the Supreme Court, Sperling J was satisfied that the interpretation given to the Guide by the Commissioner 'was right, and plainly so'. His Honour's reasons for so concluding are to be found in his judgment at 20 - 24. 10 On behalf of the appellant, Mr Kelly SC places critical reliance on the word 'transferable' in para (2) under the heading 'Transfer and Use of Warrants' in the Guide. Giving 'transfer' its ordinary meaning, the appellant submits that para (2)(b) expressly authorises the transfer of warrants by a member to meet the cost of an air charter and, by implication, the use of the warrant by the transferee for that purpose. It was not a condition of the entitlement to transfer, or the use authorised, that the transferor travel on the flight. 11 Mr Kelly submits that the words 'transferable' and 'surrender' are used to identify two quite different events. Transfer is a conveyance of a warrant from one member to another. A warrant is surrendered if it is yielded up to pay for the flight. If a member is travelling on the flight, it makes no sense to speak of her or him 'transferring' a warrant to another member. The warrant is surrendered to pay for the flight. So the transfer authorised by para 2(b) had to include transfer by a member not travelling on the flight to another member, who then surrendered the warrant to meet the cost of the air charter. There is, of course, more detail to the appellant's contention and this is fully set forth in the written submissions. We trust that we do no disservice to the appellant's case to summarise its main thrust as we have done. 12 Before coming to the construction of the Guide, it should be emphasised that it is not a statute, nor is it a contract. It is intended as a practical document addressed to members of the Legislative Assembly. Although in a different context, it is apposite to refer to the approach of Lord Reid in Gill v Donald Humberson & Co [1963] 3 All ER 180 at 183 wherein he said: … I find it necessary to make some general observations about the interpretation of regulations of this kind. They are addressed to practical people skilled in the particular trade or industry, and their primary purpose is to prevent accidents by prescribing appropriate precautions. Any failure to take prescribed precautions is a criminal offence. The right to compensation which arises when an accident is caused by a breach is a secondary matter. The regulations supplement, but in no way supersede, the ordinary common law obligations of an employer to care for the safety of his men, and they ought not to be expected to cover every possible kind of danger. They have often evolved by stages as in the present case, and as a result they often exhibit minor inconsistencies, overlapping and gaps. So they ought to be construed in light of practical considerations, rather than by a meticulous comparison of the language of their various provisions, such as might be appropriate in construing sections of an Act of Parliament.

13 The Guide should also be interpreted in its historical and legal context consistent with its status as a practical document. Although irrelevant to the Court's task, it may be noted that the construction advanced by the appellant is contrary to his understanding at the time and that of members generally. 14 The starting point for consideration is that members were provided with air travel entitlements (in the form of warrants) for electorate and parliamentary business only. A specific number of warrants were issued to members for several categories of travel. 'S' warrants for intrastate travel, 'I' warrants for interstate and 'E' warrants for electorate to Sydney travel. Warrants were not transferable between the categories. The warrants were generally 'surrendered' at the time of booking with the travel agent who forwarded them back to the Parliamentary Accounts Section. At the end of the Parliament any unused air travel warrants were handed back, with the result that there was no cost to the public purse with respect to them. 15 It is plain that the word 'transfer' in para (2) under the heading 'Transfer and Use of Warrants' is not used in any technical or narrow sense. For example, para (1) provides that warrants are 'not transferable between the various categories of travel'. That is not a reference to a transfer in the strict sense. It is also clear that para (2)(b) treats the surrender of additional warrants as a 'transfer' because the surrender is an exception to the general rule prohibiting the transfer of warrants between members. 16 We accept the submission of Mr Gageler on behalf of the respondent that 'transferable' in para (2) connotes no more than the ability to use a warrant for a category other than for which it was issued, or for travel by a person other than the person to whom it was issued. 'Transfer' includes the handing of a warrant from one person to another but is not limited to that situation. 17 The language of para (2) creates a prohibition on the transfer of warrants between members. It then creates an exception to the rule, 'where one member elects to surrender additional warrants to meet the cost of an air charter'. These words are followed by the bracketed words 'see Air Charters'. Thus, the exception is limited to surrender as referred to in the detailed provisions of the Guide headed 'Air Charter Travel'. 18 Any reasonable reading of the last mentioned provisions leads to the conclusion that they limit the circumstance in which one member may elect to surrender 'additional' warrants to meet the cost of an air charter. This circumstance is where the member, himself or herself, is travelling on the flight and that member surrenders sufficient warrants, together with others travelling on the flight, to meet the total cost of the charter, based on the equivalent commercial cost of travel. The member elects to surrender additional warrants to make up the shortfall in the cost rather than leaving the member organising the charter with the responsibility of making up that shortfall in cash. 19 The language of para (2) of the Air Charter Travel section of the Guide clearly spells out that the member, herself or himself, must be 'travelling on the charter'. It is only those members so travelling who are entitled to pool warrants. Members not travelling on the charter are ineligible to surrender warrants 'between them' to meet the cost. Again, we accept the submission of the respondent's counsel that an 'air charter' in para (2)(b) under the heading 'Transfer and Use of Warrants' is the charter on which the member surrendering the additional warrants is travelling, as required by para (2) of the Air Charter Travel section of the Guide. 20 Contrary to the submission of counsel for the appellant this does not mean that para (2)(b) is rendered otiose. Sperling J was correct to observe that: … but for exception (b) in para (2) of the no transfer provision, para (2) of that provision and the air charter provision would have to be read together and reconciled. Insofar as the no transfer provision was inconsistent with the air charter provision, the air charter provision would be given priority. Otherwise, assuming such an inconsistency, a central feature of the air charter provision - the pooling of warrants by persons flying on a charter flight - would be inoperative. Exception (b) in para (2) of the no transfer provision can then be seen as having a sensible function, that is, to confirm conclusively that the air charter provision is unaffected by the no transfer provision.

21 It is true that the Guide contains deficiencies in drafting, leading to imprecision. Sperling J acknowledged this. Nonetheless, given the context and the words used, the construction adopted by Sperling J and the Commissioner appears plainly to be the correct one. It is also the construction more consistent with an overall scheme for the use of travel warrants that the warrants are to be used for the member's electorate and parliamentary business and not for some other member's electorate or parliamentary business, and that unused warrants are to be returned at the end of the Parliament. The suggested inconsistency of meaning attributed to 'transfer' in the two limbs of para (2), under the heading 'Transfer and Use of Warrants', matters not given the nature and status of the Guide as a working set of rules for members of the Legislative Assembly governing their entitlements. In any event, the inconsistency is more apparent than real if one is to treat 'transfer' in a non-technical fashion appropriate to an instrument of this nature. 22 The appeal should be dismissed with costs. 23 HODGSON CJ in Eq: The issues in this matter are set out in the judgment of Stein, JA and Giles, JA. I agree with the orders they propose, and with their reasons. I would add the following reasons of my own. 24 Mr. Kelly SC submitted that the relevant paragraph 2(b) of the Guide was intended to provide an exception to the general prohibition against transfer, and therefore was intended to specify a situation in which warrants could indeed be transferred, that is, conveyed by one person to another. Accordingly, he submitted, in the situation specified, namely where one member elects to surrender warrants, additional to his or her requirements, in order to meet the cost of an air charter, a transfer could take place, and there was no need for the member who surrendered the warrant to travel on the charter flight. 25 In my opinion, the reference to "additional warrants" in par.2(b) is plainly not a reference to warrants additional to the member's requirements, but rather to warrants additional either to those which would be required for an equivalent commercial flight, or to those which would meet the member's share of the cost of the charter flight. 26 Thus, par.2(b) contemplates that a member travelling on a charter flight may surrender warrants meeting more than his or her share of the cost of that flight, even to the extent of meeting the whole of the cost of the flight. That could perhaps be regarded as being in substance a transfer of the benefit of those warrants to other members travelling on the flight; and accordingly, to remove doubt, the exception in par.2(b) was apt. 27 Further, the reference in par.2(b) to the surrendering of warrants confirms that what is contemplated is not a transfer of a warrant from one member to another so that the latter could surrender it for travel, but rather the surrendering of warrants by one member for that member's own travel. 28 Mr. Kelly suggested that this interpretation could lead to capricious and unreasonable results, because warrants are normally surrendered when a flight is arranged. If a member surrendered warrants for a charter flight when it was arranged, and later missed that flight, it would be unreasonable, Mr. Kelly submitted, if those warrants had to be withdrawn so that the whole burden of the cost of the charter flight was placed on the member who organised it. 29 I am not certain that such a result would be unreasonable or capricious; but in any event, in my opinion, if a member surrendered warrants for a charter flight, which were not additional to his or her share of the cost of that flight, and genuinely intended at that time to take the flight, but was prevented from doing so by subsequently occurring circumstances, then I do not think that those events could be considered as amounting in substance to a transfer of the benefit of the warrants to the members who did travel on the flight. That is, those events would not amount to a breach of the general prohibition against transfer. OoO

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