Federal Court of Australia|1994-09-23|Before: Mr P, Beaumont J, Beazley JJ

Manit Zangzinchai v Marilyn Milanta [1994] FCA 1361; (1994) 53 FCR 35 (23 September 1994)

Immigration - appellant lawfully held temporary permit - application for further entry permit lodged one day after temporary entry permit expired - whether by operation of s36(2) of the the appellant was "lawfully present in Australia" notwithstanding expiry of temporary entry permit.

Solicitors for the Appellant: Newman and Associates

Counsel for the Respondent: Mr P. Roberts and

Ms S. Welsman

Solicitor for the Respondent: Australian Government Solicitor

1. The appeal be dismissed.

2. The appellant pay the Respondent's cost of the appeal.

NEAVES and BEAZLEY JJ This is an appeal from the judgment of a judge of this Court (Beaumont J) given on 30 July 1993 dismissing an application by the present appellant under the Administrative Decision (Judicial Review) Act 1977 (Cth) for an order of review in respect of a decision made on 8 October 1992 by the respondent, sitting as the Immigration Review Tribunal. The respondent determined that the appellant was not entitled to have reviewed by that Tribunal the decision made on 27 April 1992 refusing the appellant an extended eligibility (economic) entry permit. The respondent's was based on the ground that the appellant did not satisfy the criterion prescribed by reg.21(3)(a) of the Migration (Review) Regulations made under the Migration Act 1958 (Cth) ("the Migration Act"). That regulation relevantly provided that an applicant for an entry permit might apply, in accordance with those regulations, for review of a relevant decision, being a decision to refuse the entry permit, if the applicant was "lawfully present in Australia, when he or she lodged the application". The date on which the application for an extended eligibility (economic) entry permit was lodged was March 1992. The respondent took the view that the appellant ceased to be lawfully present in Australia the day before the application was lodged, namely on 1 March 1992, upon the expiration of the temporary entry permit which he then held.

2. When the applicant entered Australia he was the holder of a specialist (overseas) visa (Code Number 414) (see the Migration regulations made under the Migration Act and in force at the relevant time, reg.10 and Schedule 2, Item No.34). His entry was lawful and he was granted a specialist (overseas) temporary entry permit (Code No.414) permitting him to remain in Australia until 1 March 1992. That was a Sunday.

3. The appellant was unsuccessful before the primary judge on a contention that, by reason of the operation of s.36(2) of the Acts Interpretation Act 1901 (Cth), he was "lawfully present in Australia" on 2 March 1992 notwithstanding that his temporary entry permit was expressed to expire on 1 March 1992. He now seeks to have the decision of the primary judge reversed. The appellant was also unsuccessful in other contentions but his Honour's rejection of those contentions is not the subject of this appeal.

4. At all material times, s36(2) of the Acts Interpretation Act has provided:

"(2) Where the last day of any period prescribed or allowed by an

Act for the doing of anything falls on a Saturday, on a Sunday or

on any day which is a public holiday or bank holiday in the place

in which the thing is to be or may be done, the thing may be done

on the first day following which is not a Saturday, a

Sunday or a public holiday or bank holiday in that place".

5. Reference should be made to certain provisions of the Migration Act and the Migration Regulations in force at the relevant time.

6. Section 33(1) of the Migration Act provided, inter alia, that regulations under the Act might make provision in relation to the granting and refusal of entry permits, including the granting of entry permits subject to a limitation as to the time the holder was authorised to remain in Australia. Section 33(2) provided that the regulations might provide for different classes of the entry permits (s.33(2)(a)) and that, subject to ss.40 and 45 (which are not relevant for present purposes), a person was entitled to be granted an entry permit of a particular class if that person satisfied all the prescribed criteria in relation to thaat class (s.33(2)(b)). Section 34 applied where, and only where, a person made an application for an entry permit of a particular class in accordance with the regulations and any fee payable in respect of the application was paid (s.34(1)). The section further provided that, where it appeared to the Minister that the application was, under the regulations, entitled to be granted an entry permit of the class concerned, the Minister was, subject to Division 3 Part 2 of the Act, to grant the applicant such an entry permits (s.34(3)0. Where it appeared to the Minister that the applicant was not, under the regulations, entitled to be granted an entry permit of the class concerned, the Minister was to refuse to grant such an entry permit (s.33(4)).

7. Regulation 21 of the Migration Regulations provided that, for the purposes of s.33(2)(a) of the Migration Act, the classes of entry permits were those specified in Schedule 3 to those regulations. One of the classes of entry permits specified in Schedule 3 was the class 2 entry permit - temporary resident. Within that class was the specialist (overseas) entry permit (Code No.414). Another of the classes of entry permits specified in Schedule 3 was the class 12 entry permit - extended eligibility. Within that class was the extended eligibility (economic) entry permit (Item No.92, Code No.823). Neither of the entry permits referred to was to be granted as a permanent entry permit (reg.24(2)(a)).

8. Regulation 22(1) relevantly provided that, subject to reg.22 and reg.34 (which had no application to the present case), an application for an entry permit was in accordance with the Migration Regulations, in a case where the applicant applied after entering Australia -

(i) if the application was in the form approved by the Minister;

(ii) if the relevant fee had been paid; and

(iii) if the applicant produced to an officer the passport or

other document produced by the applicant for the purposes of

his or her entry to Australia, or a valid travel document.

9. It may be noted that reg.22 did not prescribe a time limit within which an application was to be made (cf. reg.34AA which prescribed a time limit for making an application for certain classes of entry permit but which was not applicable to the present case). Regulation 42(1) provided that, subject to ss.40 and 45 of the Migration Act, a person was entitled to be granted an entry permit referred to in the Migration Regulations if the person satisfied the prescribed criteria in relation to that entry permit. Regulation 128(1) prescribed criteria in relation to an extended eligibility (economic) entry permit. One of the criteria so prescribed was that the applicant was not the holder of a visitor visa or entry permit, or an illegal entrant (reg.128(1)(a)(ii)). By virtue of reg.34A(1), that criterion had to be satisfied at the time of application and as applicable at the time.

10. It may be noted that reg.42(1A) prescribed criteria where an illegal entrant applied for an entry permit other than an entry permit of the kind identified in the subsection. It was not suggested, however, that the appellant satisfied the criteria there prescribed.

11. Regulation 27 relevantly provided that a valid entry permit ceased to be in force on the expiration of the period in respect of which the entry permit was granted. Section 14(3) of the Migration Act provided that a non-citizen who was the holder of a valid entry permit became an illegal entrant if he or she stopped being the holder of a valid entry permit while he or she was in Australia.

12. It is within the context of this regulatory scheme that it is necessary to determine whether s.36(2) of the Acts Interpretation Act applied in favour of the applicant. The section has a straightward operation. It provides that when the last daay for the doing of anything falls on a Saturday, Sunday, a public holiday or a bank holiday the thing may be done on the first business day following. A typical example where this provision may be utilised is where the last day for filing an appeal fall on a public holiday. In that case, the notice of appeal may be filed on the first day that the registry of the Court is open after the public holiday.

13. The effect of the relevant provisions of the Migration Act and the Migration Regulations to which we have referred above, was that an entry permit might be limited in duration, both as to the period in which it was valid and as the time the holder might remain in Australia. These regulations did not provide for the doing of anything. Nor did they prescribe or allow a time for the doing of anything. Rather, during the currency of a temporary entry eprmit, or during the period in which the holder might remain in Australia, whichever was the shorter, the holder was authorised to be in Australia. Once the shorter of those periods had expired, the holder became an illegal entrant, assuming for the purposes of the argument that no other entry permit had been granted. In other words, Beaumont J said, regs 24 and 27 affected status. They did not prescribe or allow a time for the doing of anything. The consequence of being an illegal entrant was that a person had to satisfy different regulatory criteria to be eligible for the grant of a further entry permit.

14. Similarly, reg.21(3)(a) of the Migistration (Review) Regulations did not provide for the doing of anything.

15. Counsel for the appellant submitted that the regulations allowed a time for the doing of an act, or, alternatively, authorised the doing of an act - namely the making of an application for an entry permit. While it was true that the holder of a temporary entry permit might apply, or as counsel for the appellant submitted, was authorised by the legislation to apply, for an entry permit during the currency of the temporary entry permit, this misunderstands the nature of the regulations. The regulations dis not prescribe ar allow a time in which an application for an extended eligibility (economic) entry permit might be made. Rather, different consequences flowed depending upon whether the applicationwas made while the applicant was or was not the holder of the temporary entry permit. If a person made an application after a temporary entry permit had expired, the person had to satisfy different criteria before being eligible for the grant of a further entry permit, than was the case if the person was the holder of an entry permit a tthe time of application.

16. In our opinion, the operation of s.36 of the Acts Interpretation Act upon the provisions of the legislation here in question was correctly explained by Professor L. Certoma, Senior Member of the Immigration Review Tribunal, in Re Sekiko (IRT decision, N91/00033, 6 March 1992) namely:

"...s.36 of the Acts Interpretation Act 1901 (Cth) would appear to

be irrelevant in the present since its application depends,

according to the terms of the section, upon the

prescription of a period for the doing of something and the Act

and Regulations do not contain any such prescription of time for

the making of an application for an entry permit. An application

for a further temporary entry permit may be made at any

time, even if, as in the present case, the applicant is an illegal

entrant in which case however certain further criteria must be

satisfied. The lawful status of a non-citizen cannot exist

without, and is a quality ariseing from, the possession of an

entry permit. Therefore lawful status is lost by a temporary

resident as a passive act through the expiry of an entry permit

and can only be regained or maintaained by the grant of, and not

the application for, a further temporary entry permit in respect

of which, as already noted, there is no time prescription in the

Act or Regulations. Indeed, as already noted, the

legislative provisions contemplate that even persons who have

become illegal entrants may seek any entry permit and to that end

have provided additional criteria that must be satisfied by such

applicants. Therfore s.36 of the Acts Interpretation Act 1901

(Cth) cannot be considered as extending the time within which an

application for an entry permit may be made nor, consequently, as

preserving the lawful status of an applicant. It follows that the

Principal must be considered an illegal entrant on the date of the

application for the further temporary entry permit....".

17. Accordingly, we dismiss the appeal. The appellant must pay the respondent's costs of the appeal.

This appeal involves a question of the construction of s. 36(2) of

the Acts Interpretation Act 1901, a provision which, although it has stood in substantially its present form since its enactment, has received little detailed consideration in the courts.

2. The question arises in the context of an application for a particular class of entry permit, made under the Migration Act 1958 and the regulations pursuant to that Act, as the Act and Regulations stood in March 1992. Provision was made for the holder of a temporary entry permit, such as was held by the appellant up until and including 1 March 1992, to make an application for a particular class of extended temporary entry permit. If he did so, provision was also made for the review of the decision to be given on the application. But in order that an application for a reviewable decision might be made, it was necessary that it be lodged before the expiry of the appellant's existing temporary entry permit. That followed, as a general rule for cases of applications to extend or renew temporary entry permits, from the terms of reg. 21(3)(a) of the Migration (Review) Regulations, by which:

"An Applicant for a visa or entry permit may apply, in

accordance with these Regulations, for review of a relevant

decision (this expression is defined in subreg. 2 as meaning

'an internally reviewable decision' or certain decisions

reviewable by the Immigration Review Tribunal), being a

decision to refuse the visa or entry permit, if:

(a) the applicant was lawfully present in Australia when

he or she lodged the application; or (certain

exceptional cases are provided by paras. (b), (c) and

(d))".

3. In the present case, the last day of the lawful presence of the appellant in Australia by virtue of his existing temporary entry permit, and thus the last day on which he could lodge an application for a "reviewable decision" within the meaning of the regulation, was 1 March 1992. As that day was a Sunday, it was not then practicable (it may be accepted) for him to lodge his application, and he did so on the next day, Monday 2 March 1992. The application was rejected on a ground which the appellant wishes to have reviewed, but the Immigration Review Tribunal has held that the decision on the application was not reviewable by it because the application was lodged on the day after the expiry of the previous temporary entry permit, so that he was not "lawfully present in Australia when he ... lodged the application". The learned primary Judge upheld this contention.

4. The appellant's case is that, by virtue of s. 36(2) of the Acts Interpretation Act, he was enabled to lodge an application for a reviewable decision on the day after the Sunday which would otherwise have been the last day for him to do so. It is, in my opinion, essential for the proper evaluation of this argument to examine the precise terms of that section, which is not confined (as much of the argument seemed to assume) to a case where a specific section of an Act expressly requires a particular thing to be done by an expressly nominated day. Section 36(2) reads:

"Where the last day of any period prescribed or allowed by an

Act for the doing of anything falls on a Saturday, on a Sunday

or on a day which is a public holiday or a bank holiday in the

place in which the thing is to be done or may be done, the

thing may be done on the first day following which is not a

Saturday, a Sunday or a public holiday or bank holiday in that

place." (Emphasis added.)

5. There is no statutory equivalent of this provision in England. There are more specific provisions, for the purposes of particular Acts, and there are rules of court in similar, but not identical, terms. When the provision was enacted in 1901, however, it was not without precedent in legislation of the Australian colonies and New Zealand. As is indicated by the headnote to Wall v. The Commissioner of Stamps (1900) 18 NZLR 74, s. 24(1) of The Interpretation Act, 1888 of New Zealand (which replaced an even earlier provision made by s. 22 of The Interpretation Act, 1878) provided that, "If the time limited by any Act for any proceeding, or the doing of anything under its provisions, expires or falls upon a holiday, the time so limited shall be extended to, and such thing may be done on, the day next following which is not a holiday". In that case, the last day for stamping an instrument upon payment of a fine for late stamping of only 25 per centum, after which the fine would be 100 per centum, fell on a Sunday. Stout CJ held (at 77): "I do not see how it can be said that this is not a time limited for the doing of an act under the statute."

6. It is of interest to note that s. 4 of The Stamp Act 1882 Amendment Act, 1885 was not expressed as a prescription of a period for the doing of anything, and counsel had argued (at 75) that it was "not merely the imposition of a limit of time", but "an allowance to a person who is strictly under a duty to stamp at once". The section actually provided, so far as is relevant, that

"any unstamped or insufficiently stamped instrument may be

stamped or further stamped by the Commissioner after the first

execution thereof, on payment of the unpaid duty and fine in

addition to the duty as follows:-

(1.) When such instrument is presented to be stamped more

than one month and less than three months after

execution, a fine of twenty-five per centum on the

amount of duty payable.

(2.) When such instrument is presented to be stamped more

than three months after execution, a fine of one hundred

per centum on the amount of the duty payable ... ."

7. It is clear that Stout CJ regarded the interpretation provision as one to be applied broadly, having regard to the effect of the Act to be interpreted.

8. In New South Wales, an Act of 1858 (22 Vic. No. 12) provided (by s. 11) for the reckoning of "(t)he time prescribed or allowed in an Act for the doing of a particular thing", and that where "the day for the doing of that thing ... falls on a Sunday or on Christmas Day or Good Friday the thing may be done on the day following". This language was repeated, altered only to enlarge the category of special days, in s. 35 of the Interpretation Act 1897 (NSW). It had also been adopted, in South Australia, in s. 29 of Act No. 9 of 1872 (35 and 36 Vic. No. 9). By contrast with the phrase "prescribed or allowed" in the New South Wales and South Australian Acts, the Tasmanian legislation (see s. 7 of The Interpretation Act, 1900 (Tas.)) uses the phrase "directed or authorised".

9. It may be that when, so shortly afterwards, the Commonwealth Parliament passed the Acts Interpretation Act 1901, the reference in counsel's argument in Wall to "an allowance" was not overlooked, despite the actual result of the case. But it seems certain that the language chosen was taken from the New South Wales legislation. In s. 36(2) (and also in s. 36(1)) the expression was utilized, "prescribed or allowed by an Act". The word "allowed" is not a technical word. It is plainly less precise than "prescribed". The relevant meaning given by the Shorter Oxford English Dictionary 3rd ed. (1980) for the word "allow" is "To concede, permit (an action, etc.)". It is in this sense that Isaacs J used the word (almost contemporaneously) in his well known statement about the construction of a remedial Act, that "it should be construed so as to give the fullest relief which the fair meaning of its language will allow". (See Bull v. The Attorney-General for New South Wales [1913] HCA 60; (1913) 17 CLR 370 at 384.) The Oxford Dictionary (ubi cit.) reminds us that the word was also employed in the famous judgment of Portia: "The law allows it, And the Court awards it".

10. On the face of the provision, the use of the expression, "or allowed by an Act", makes it clear that s. 36(2) applies where, according to the true construction of an Act, a period is allowed for the doing of something; it is not necessary to find a provision prescribing in terms that something shall be done within a particular period. That the subsection is not concerned with the formulation of a prescription is also made clear by the way it operates. It does not say that a statement of a period shall be read as extending to the day after a Sunday etc. It is not so tied to the manner in which an Act may be drafted. (That could have been seen as involving possibly fortuitous limitations upon the scope of the Acts Interpretation Act.) Instead, it goes to the substance, providing that "the thing may be done on the first day following ... ". I think this provision must be construed as meaning "done effectively", and that it should be given its full impact upon the substance of what other legislation, to be interpreted in the light of the Acts Interpretation Act, may allow.

11. In construing the language of s. 36(2), in order to understand how it is to be applied to the situations it covers, the Court should not overlook its remedial nature. It is plainly aimed, in wide terms and without limitation to any particular type of case, at providing a remedy in the great variety of circumstances where a person may be faced, by virtue of the provisions of an Act, with adverse consequences by reason of some period expiring on a Sunday or other day when an office may not be open. The section is designed to overcome the perceived inappropriateness, and unfairness, of such a situation. (Of course, it is the legislature which has assumed there would be difficulties in doing the thing on that day; there is no onus to show an office was in fact not open.)

12. The rule of construction applicable to a beneficial or remedial provision of a statute has been variously stated. Sometimes (as apparently, at least at first glance, in Pearce and Geddes on Statutory Interpretation in Australia 3rd ed. (1988) at 164) it is assumed that the rule is one for the resolving of ambiguities. Pearce and Geddes refer to the words of Isaacs J, in his dissenting judgment in Bull (supra) at 384 -

"(I)f any ambiguity existed, (the Act) should be construed

beneficially ... . This means, of course, not that the true

signification of the provision should be strained or exceeded,

but that it should be construed so as to give the fullest

relief which the fair meaning of its language will allow."

13. Isaacs J went on to say that, in the particular case, he could see no ambiguity. But at the page cited, Pearce and Geddes refer to the "approach" of the Court to the construction of a statute, and other statements of the rule do not confine it to the resolution of ambiguities. Particularly is this true of modern statements of the rule. And those statements have deep roots. In Butler (or Black) v. Fife Coal Company, Limited (1912) AC 149 at 178-179 Lord Shaw of Dunfermline said:

"The commanding principle in the construction of a statute

passed to remedy the evils and to protect against the dangers

which confront or threaten persons or classes of His Majesty's

subjects is that, consistently with the actual language

employed, the Act shall be interpreted in the sense favourable

to making the remedy effective and the protection secure.

This principle is sound and undeniable."

14. What Lord Shaw said was quoted with emphatic approval by Isaacs J in Mathews v. Foggitt Jones Limited [1926] HCA 13; (1926) 37 CLR 455 at 464. Again this was a dissenting judgment, but there is no suggestion that the majority did not accept the passage to which I have referred. Coming to the modern decisions in Australia, I cite Waugh v. Kippen [1986] HCA 12; (1986) 160 CLR 156 at 164, where the joint judgment of Gibbs CJ, Mason, Wilson and Dawson JJ treated the rule as an integral part of the Court's "primary task of extracting the intention of the legislature from the fair meaning of words by which it has expressed that intention, remembering that it is a remedial measure passed for the protection of the worker". Mason CJ relied on this passage in his dissenting judgment in Devenish v. Jewel Food Stores Pty Limited [1991] HCA 7; (1991) 172 CLR 32 at 44, where he referred to the "evident purpose and policy underlying (a particular) Part of the Act (as) recommend(ing) a broad construction of its constituent sections". He cited a proposition in his own earlier judgment in Day and Dent Constructions Pty Ltd v. North Australian Properties Pty Ltd [1982] HCA 20; (1982) 150 CLR 85 at 108: "It is reasonable to impute to Parliament an intention that the provision, which is a protective provision, be given 'the widest possible scope'". Devenish v. Jewel Food Stores was cited by Gummow J (with whom, relevantly, Sheppard J agreed) in McAusland v. Deputy Commissioner of Taxation (1993) 118 ALR 577 at 581-582, where his Honour held that a section of the Companies (NSW) Code was remedial in nature, and added: "As such it should be given a generous construction so as to permit the fullest relief which will be allowed on a fair reading of its language ... ." See also Trade Practices Commission v. The Gillette Company (No. 1) [1993] FCA 496; (1993) 45 FCR 366 at 375-376.

15. The rule so stated does not proceed on the basis that, before it can be applied, an ambiguity must first be found. On the contrary, the rule is one of the intellectual tools brought to the task of construction whenever the statutory provision to be construed is of a remedial nature. This understanding of the way the principle operates is simply a corollary of the recognition that words do not have fixed meanings, regardless of context. The rule is really an appeal to context - the words to be construed are used in the context of remedial legislation. That was how the matter was put in Johnston v. The Commonwealth [1982] HCA 54; (1982) 150 CLR 331 at 342, where Gibbs CJ, Mason and Wilson JJ referred to "the context of a remedial Act such as the one under consideration". If the matter is looked at in this way, the words of Mason J in his dissenting judgment in K and S Lake City Freighters Proprietary Limited v. Gordon and Gotch Limited [1985] HCA 48; (1985) 157 CLR 309 at 315 are relevant:

"Problems of legal interpretation are not solved satisfactorily

by ritual incantations which emphasize the clarity of meaning

which words have when viewed in isolation, divorced from their

context. The modern approach to interpretation insists that

the context be considered in the first instance, especially in

the case of general words, and not merely at some later stage

when ambiguity might be thought to arise."

16. I discussed this proposition in some detail, in a judgment with which relevantly Drummond J expressed his agreement, in Short v. F.W. Hercus Pty Limited [1993] FCA 51; (1993) 40 FCR 511 at 518-520.

17. When the construction of s. 36(2) is being considered, full weight should be given to Lord Shaw's "commanding principle"; to the provision of the alternative, in s. 36(2), to a "period prescribed", of a "period ... allowed"; to the fact that what is envisaged as allowing the period is not a precise section, but "an Act"; and to the fact that the remedy provided is not limited by the drafting, even in a relaxed version, of some requirement, but is simply that "the thing may be done on the first day following ...". It seems to me that the operation of the subsection, in a particular case, will not easily be denied because, although an Act permits something to be done within a time expiring on a Sunday etc, it does so indirectly or without a precise prescription of a requirement to do it within a specified period.

18. However, in the present case, the learned primary Judge placed reliance on the reasoning in an unreported decision of the Immigration Review Tribunal, Re Sekido (IRT decision in 91/00033, 6 March 1992). But the passage his Honour quoted asserts that s. 36

"would appear to be irrelevant in the present case since its

application depends, according to the terms of the section,

upon the prescription of a period for the doing of something

and the Act and Regulations do not contain any such

prescription of time for the making of an application for an

entry permit."

19. It will be apparent from what I have already written that this reasoning is unreliable; it omits all reference to the alternative of the allowance of a period, not by precise prescription, but by the terms of an Act.

20. The judgment under appeal went on to refer to the decision in Re Tavella (1953) 16 ABC 166, as summarized by Sholl J in McPherson v. Lawless [1960] VicRp 59; (1960) VR 363 at 369. Re Tavella was followed by Fitzgerald J in Re Arba; Ex parte St. Martins Investments Pty Limited (unreported, 28 April 1982), but without citation of further authority. Re Tavella and Re Arba were both concerned with the effect of the bankruptcy provision (now s. 44(1)(c) of the Bankruptcy Act 1966) which forbids presentation of a petition unless "the act of bankruptcy on which the petition is founded was committed within 6 months before the presentation of the petition". It may be there are special considerations applicable to this provision, but it should be pointed out that the cases relied on by Clyne J in Re Tavella (Dechne v. City of Montreal (1894) AC 640; Gelmini v. Moriggia (1913) 2 KB 549; and McNiven v. Glasgow Corporation (1920) SC 584) have all been doubted or expressly disapproved by much more recent authority, to which I shall refer.

21. As I have said, there is no general provision in England equivalent to s. 36(2). However, the problem has arisen. It may safely be concluded that one reason why there is no such provision is that, even without it, the courts have been able to solve the problem by construction, at least partially. That, in itself, suggests that s. 36(2) should not be construed in any narrow or technical spirit. In Hodgson v. Armstrong (1967) 2 QB 299, the Court of Appeal had to consider a provision, in landlord and tenant legislation, concerning a tenant's application to the Court for a new tenancy:

"No application under section 24(1) of this Act shall be

entertained unless it is made not less than two nor more than

four months after the giving of the landlord's notice under

section 25 of this Act".

22. The Court of Appeal was concerned with a case where the relevant (County) court office was closed on the last day, because of the Easter weekend. Davies LJ (with whom Sellers LJ (at 309) in this respect expressed agreement) considered each of the three cases cited by Clyne J in Re Tavella, and said (at 320): "With the very greatest respect, I would not follow these authorities." Sellers LJ (at 311) took the view that there could be implied into the landlord and tenant legislation in question a qualification, when the last day of the period allowed fell upon a day such as that involved in the case under consideration. This was because a differentiation, "in such fortuitous circumstances", between those litigants who did have the full time of four months, and those who did not, "would appear ridiculous". He concluded (at 313):

"If the final day is a Monday and the court is open, the tenant

has the complete period. If the final day is a Sunday, when

the court is not open, and the necessary act cannot be done,

and if it is to be held that the act must be done the day

before, such a decision would deprive the party concerned of

one of the days the statute stipulated. That seems to me more

a usurpation of the legislature's function than to decree that

the tenant should have the full period during which the

combined act of the court and of the party can be performed."

23. Davies LJ took a slightly different view of the solution of the problem before the Court. He thought the legislature, in providing for an application to the Court, must be taken to have accepted the applicability of the Court rules, one of which contained a provision in terms somewhat similar to those of s. 36(2). Russell LJ dissented on the ground that neither of these solutions was expressed in the legislation. He said (at 325-326):

"I would with satisfaction hold that in all cases where a

statutory period for initiating proceedings expires on a dies

non the next office day should be deemed to be within the

period: but this would be legislation."

24. The problem came back before the Court of Appeal in Pritam Kaur v. S. Russell and Sons Ltd (1973) 1 QB 336. That was a case of an action under the Fatal Accidents Acts 1846 to 1959, where the last day for the institution of proceedings fell on a Saturday. The action was instituted on the Monday following, and the question was whether it was instituted within time. The Court of Appeal (Lord Denning M.R., Karminski LJ and Megarry J) unanimously held in accordance with the following statement made by Lord Denning M.R. (at 349):

"So I am prepared to hold that when a time is prescribed by a

statute for doing any act, and that act can only be done if

the court office is open on the day when the time expires,

then, if it turns out in any particular case that the day is

a Sunday or other dies non, the time is extended until the

next day on which the court office is open."

25. He supported this proposition by a citation from a judgment of Erle CJ in Hughes v. Griffiths [1862] EngR 785; (1862) 13 CBNS 324 at 333:

"Where the act is to be done by the court, and the court refuses

to act on that day, the intendment of the law is that the

party shall have until the earliest day on which the court

will act."

26. Megarry J (at 353) expressly cited each of the authorities relied upon by Clyne J in Re Tavella, but he did not follow them, and, in particular, he criticized (at 355) the reasoning on which McNiven v. Glasgow Corporation is based. However, the Court also rejected the proposition that legislation could generally be construed subject to a rule of Court, and preferred to uphold the validity of the filing of the proceedings on the Monday upon the basis stated in the passage I have quoted, which reflects the view of Sellers LJ in the earlier case.

27. Pritam Kaur has since been applied by the Employment Appeal Tribunal in England: Ford v. Stakis Hotels and Inns Ltd (1987) 1 ICR 943. That case, however, indicates the practical difficulties of a rule which depends upon inability to make the application on a holiday, and underlines Parliament's wisdom in enacting s. 36(2) on the basis that, if the day is in fact one of the specified days, this is enough.

28. The principle of Pritam Kaur has also been applied outside the area of statutory construction. In The Clifford Maersk (1982) 1 WLR 1292, the principle was applied to an Admiralty claim lodged on the Monday following a Sunday on which an agreed extension of time for its lodgment had expired; the claim was held made within time, and the Court pointed out that the United States Court of Appeals had come to the same conclusion.

29. The two modern decisions of the Court of Appeal in England were cited to Harris J in Thomson v. Les Harrison Contracting Co [1976] VicRp 18; (1976) VR 238. His Honour decided that the plaintiff was there entitled to institute proceedings, despite the terms of a limitation Act, on the Monday following a Sunday on which the period expressed by the terms of the limitation Act expired, but he did so on the footing of a Victorian statute in terms similar (though not identical) to those of s. 36(2). More significant for present purposes is the decision of the Full Court of the Supreme Court of Queensland in Price v. J.F. Thompson (Qld) Pty Ltd (1990) 1 Qd R 278, where the limitation Act in question was expressed in terms closely similar to those of s. 44 of the Bankruptcy Act. Nevertheless, the majority of the Queensland Full Court (Moynihan and de Jersey JJ, Carter J dissenting) held that Queensland legislation to the same effect as s. 36(2) applied.

30. Price v. J.F. Thompson (Qld) Pty Ltd is consistent with the decision of the New Zealand Court of Appeal (Davison CJ, Richardson and McMullin JJ) delivered by Richardson J in Price v. Williams (1979) 2 NZLR 374. There, the New Zealand equivalent of s. 36(2) was applied to a statutory provision limiting a time, as the Court acknowledged at 376 and 377, only "indirectly". The case is persuasive authority, at the appellate level, for the view that if an Act has the effect of permitting indirectly the imposition of a time limit, a provision in the terms of s. 36(2) should be held to operate to extend the time. The Court reached that conclusion without adverting to the remedial nature of the legislation. It did so in respect of a provision of the Property Law Act 1952 of New Zealand, under which a mortgagee was empowered to require the mortgagor to remedy a default "before the date ... specified" in a notice. The date specified in the notice was a Monday, so that the last moment for remedying the default was midnight on the preceding Sunday. Richardson J said (at 376-377) that the Property Law Act

"confers a right on the mortgagor to remedy his default under

the mortgage and thereby preclude the exercise by the

mortgagee of his powers in that respect. It does so

indirectly, but no less effectively, by providing for that

right to be referred to in the notice given under the section.

...

The second step under s 25(a) (of the New Zealand Acts

Interpretation Act 1924) is to ask: Is there a time limited by

s 92 (of the New Zealand Property Law Act 1952) for the

remedying by the mortgagor of his default? The section does

not impose its own time limit directly but, in providing for

a date to be fixed in the notice, it does so indirectly. In

allowing for the power of sale to be exercised on the date

specified in the notice, it requires that the remedying of the

default be done before that date and so in that way it limits

the time in which it may be done."

31. Section 36(2) has itself been considered judicially in Associated Dominions Assurance Society Proprietary Limited v. Balmford [1950] HCA 30; (1950) 81 CLR 161, which does not deal with the present problem, and in Automatic Tube Co. Pty. Ltd. v. Adelaide Steamship (Operations) Ltd. (1966) 9 FLR 130, in relation to a rule of limitation made under the Sea-Carriage of Goods Act 1924, expressed as follows:

"In any event the carrier and the ship shall be discharged from

all liability in respect of loss or damage unless suit is

brought within one year after delivery of the goods or the

date when the goods should have been delivered."

32. As Neaves J pointed out during the hearing of the present case, s. 46(1) makes s. 36 applicable to "any instrument (including rules, regulations or by-laws)" made under an Act. In Automatic Tube Co., although the rule under the Sea-Carriage of Goods Act is clearly framed in terms appropriate to the discharge of the liability at the expiration of the year, Nevile J expressed (at 135) the view that proceedings could be commenced on a Monday if the period expired on a Saturday. However, the suit was dismissed on the facts.

33. In my opinion, this Court should heed the guidance which is suggested by the broad application given to s. 36(2), and the equivalent provisions in Queensland and New Zealand, in Automatic Tube Co., Price v. J.F. Thompson (Qld) Pty Ltd, Wall v. The Commissioner of Stamps and Price v. Williams. None of these decisions, of course, involved a person becoming an illegal entrant. But it is difficult to distinguish in principle a case where the lapse of time produces that effect from the four cases I have cited where the lapse of time discharged a liability, raised a statutory bar to the bringing of an action, changed the basis on which an instrument should be stamped, or left a mortgagee free to act upon a default independently established. In all these cases, the question is whether imputing to the legislature the intention to give the protective provision in s. 36(2) "the widest possible scope" (as Mason CJ put it in Day and Dent Constructions), the section should be understood as permitting the necessary application to be lodged, as an effective application, on the Monday or other applicable day, and as to that extent qualifying the provision in the later statute. Although none of the cases is decisive for the present situation, what they have laid down suggests that the subsection can be construed as reaching that far, and upon the authorities, it must be taken to have been intended, as a remedial provision, to have the farthest reach it can be given. Adopting Rutledge J's metaphor in In re Yamashita [1946] USSC 27; (1945) 327 US 1 at 43: "(I)t is the essence of our tradition for judges, when they stand at the end of the marked way, to go forward with caution keeping sight, so far as they are able, upon the great landmarks left behind and the direction they point ahead." I think the direction pointed by the cases is that of applying s. 36(2) where the effect of an Act is to prescribe or allow "anything" to be done on a Sunday etc., whether or not that effect arises out of a direct and precise prescription.

34. Accordingly, I would allow the appeal and grant the relief sought.

Property Law Act 1952

Interpretation Act 1924

New Zealand Property Law Act 1952

Administrative Decision (Judicial Review) Act 1977(Cth)

Interpretation Act 1897(NSW)

Interpretation Act 1901

Sea-Carriage of Goods Act 1924

Manit Zangzinchai v Marilyn Milanta [1994] FCA 1361;

At a glance

Court

Decision date

Before

Source

Judgment (77 paragraphs)

Manit Zangzinchai v Marilyn Milanta [1994] FCA 1361; (1994) 53 FCR 35 (23 September 1994)

Parties

Legislation Cited (8)

Cases Cited (14)