MyEnvironment v VicForests [2013] VSCA 356

MyEnvironment v VicForests [2013] VSCA 356 - VSCA 2013 case summary — Zoe

[8]

In CIC Insurance Ltd v. Bankstown Football Club Ltd,[3] Brennan CJ, Dawson J, Toohey J and Gummow J stated:

It is well settled that at common law, apart from any reliance upon s 15AB of the Acts Interpretation Act 1901 (Cth), the court may have regard to reports of law reform bodies to ascertain the mischief which a statute is intended to cure. Moreover, the modern approach to statutory interpretation (a) insists that the context be considered in the first instance, not merely at some later stage when ambiguity might be thought to arise, and (b) uses 'context' in its widest sense to include such things as the existing state of the law and the mischief which, by legitimate means such as those just mentioned, one may discern the statute was intended to remedy. Instances of general words in a statute being so constrained by their context are numerous. In particular, as McHugh JA pointed out in Isherwood v Butler Pollnow Pty Ltd, if the apparently plain words of a provision are read in the light of the mischief which the statute was designed to overcome and of the objects of the legislation, they may wear a very different appearance. Further, inconvenience or improbability of result may assist the court in preferring to the literal meaning an alternative construction which, by the steps identified above, is reasonably open and more closely conforms to the legislative intent.[4]

In Project Blue Sky Inc v Australian Broadcasting Authority,[5] McHugh, Gummow, Kirby and Hayne JJ stated:

[69] The primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute. The meaning of the provision must be determined 'by reference to the language of the instrument viewed as a whole'. In Commissioner for Railways (NSW) v Agalianos, Dixon CJ pointed out that 'the context, the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning than the logic with which it is constructed'. Thus, the process of construction must always begin by examining the context of the provision that is being construed.

[70] A legislative instrument must be construed on the prima facie basis that its provisions are intended to give effect to harmonious goals. Where conflict appears to arise from the language of particular provisions, the conflict must be alleviated, so far as possible, by adjusting the meaning of the competing provisions to achieve that result which will best give effect to the purpose and language of those provisions while maintaining the unity of all the statutory provisions. Reconciling conflicting provisions will often require the court 'to determine which is the leading provision and which the subordinate provision, and which must give way to the other'. Only by determining the hierarchy of the provisions will it be possible in many cases to give each provision the meaning which best gives effect to its purpose and language while maintaining the unity of the statutory scheme.

[71] Furthermore, a court construing a statutory provision must strive to give meaning to every word of the provision. In The Commonwealth v Baume Griffith CJ cited R v Berchet to support the proposition that it was 'a known rule in the interpretation of Statutes that such a sense is to be made upon the whole as that no clause, sentence, or word shall prove superfluous, void, or insignificant, if by any other construction they may all be made useful and pertinent'.[6]

[28]

The reasoning of the majority in the Court of Appeal

The principal argument in favour of the disjunctive construction which attracted the majority of the Court of Appeal was that the legislation had remedial and beneficial objectives, one of which was, as stated in s 3(a) of the Act, 'to give effect to a statutory scheme of compensation for victims of crimes of violence'. It may be accepted at once that the legislation did have remedial and beneficial objectives. While at common law the victim of a criminal act of violence can sue the perpetrator for the tort of battery, and, depending on the circumstances, other torts, commonly the criminal will have vanished, or will lack any assets with which to satisfy a judgment.

The majority considered it to follow that the legislation should be construed by taking 'a liberal approach'. The 'injury of shock' comprised 'conditions attributed to post traumatic stress disorder, depression and similar conditions' having psychological and physical symptoms and leading to disabilities. This, it was said, supported the interdependence of the five parts of cl 5. Since it would only be a rare case in which symptoms and disabilities did not coexist, there was no reason to construe cl 5(a) as creating 'a mandatory cumulative requirement' because this would not 'promote the broad and beneficial legislative purpose'. It was also said that 'symptoms and disability' was a 'composite or portmanteau phrase in its context'.

The "remedial and beneficial objectives" argument

To begin consideration of issues of construction by positing that a 'liberal', 'broad', or 'narrow' construction will be given tends to obscure the essential question, that of determining the meaning the relevant words used require. Although the purpose of the Act is beneficial, it does not follow that recovery is contemplated for every act of violence or every consequence that could be described as an injury. The numerous injuries set out in the Table to Sched 1 (which extends over twelve pages) are identified with considerable precision. The clauses in Sched 1 which precede the Table, too, are drafted with some attempt at precision. The legislation confers benefits, and no doubt it should not be construed restrictively, but in dealing with specific limited words like those of cl 5, it is not open to apply much liberality of construction. It is difficult to state the legislative purpose except at such extreme levels of generality that it is not useful in construing particular parts of the legislative language. As Spigelman CJ said: "The issue before the Court is the determination of the circumstances in which compensation is payable." The legislation has endeavoured to define these circumstances in precise language which does not permit universal recovery; and hence "[t]he Court is not required to give the most expansive possible interpretation of such circumstances". [19]

[318]

(3) The proposition espoused by MyEnvironment that although the age of a tree may be a useful indicator, it is 'probably irrelevant', 'as a matter of choice for the LBP', is inconsistent with the statistically significant correlation between the age of a tree and its use by LBP as a habitat. The evidence established that not only is there a correlation between the age of a tree and its diameter, and its diameter and the existence of hollows, but there was also evidence that there was a statistical relationship between larger older trees and an abundance of hollows.[252] In particular, large old trees in regrowth ash forest tend to have a large number of hollows. This is so because, as mentioned above,[253] they will have developed to an age where hollows are typically developed and, in addition, in a regrowth forest, are likely to have undergone the disturbances of fire and logging which give rise to stem damage and the formation of cavities.[254] Against that background, to treat the age of a tree as 'probably irrelevant' is to adopt the perspective of an individual LBP who is seeking to make a nest and evaluating whether any particular individual tree has cavities in which to breed without concern as to the age of the tree. As the judge recognised, this is not the perspective from which the LBP AS has been prepared. Far from looking at each individual tree from the perspective of an individual LBP, the LBP AS is prepared as a managerial measure to permit scientifically informed decisions to be made about the protection of the environment and biodiversity and the sustainability of the timber industry. In this context, the existence of a correlation between age and an abundance of hollows is significant. It is significant because it permits macro-level managerial decisions to be made about what patches of forest should be included within a SPZ. As all the scientific evidence relied on by the judge demonstrated, the age of a tree is highly relevant to the likelihood of its containing hollows. It is precisely those probabilistic relationships that ground regulatory instruments such as the LBP AS.

At a glance

Court

Decision date

Before

Source

Judgment (403 paragraphs)

Parties

Legislation Cited (9)

Cases Cited (16)