Plaintiff v First Defendant

1 The plaintiff ('Joseph') seeks judicial review of a County Court decision dismissing his appeal against a conviction in the Magistrates' Court.[1] The application is made pursuant to O 56 of the Supreme Court (General Civil Procedure) Rules 2015 ('Rules').[2]

2 Joseph seeks relief in the nature of certiorari to quash orders made by a Judge of the County Court and a declaration that sub-s 72(2) of the Long Service Leave Act 1992 ('LSLA') is not a continuing offence and is otherwise subject to the provisions of s 7 of the Criminal Procedure Act 2009 ('CPA'). Joseph seeks orders that the matter be remitted back to a differently constituted Court of the County Court to be heard and determined according to law or, alternatively, an order that the charge the subject of the proceedings be dismissed.

3 The grounds upon which it is said that the decision of the County Court is susceptible to review is that the County Court fell into error in determining that under sub-s 72(2) of the LSLA the offence created by that section was a continuing offence and hence not subject to the 12 month limitation period in s 7 of the CPA. This is an error on the face of the record and also a jurisdictional error because the completed offence was purportedly committed outside the limitation period of one year under s 7 of the CPA and the County Court had no jurisdiction to determine the charge. The first defendant maintains the decision of the County Court was correct and without reviewable error. The second defendant is the Court, and takes no active role in accordance with the principles in R v Australian Broadcasting Tribunal; ex parte Hardiman & Ors.[3]

4 In my view, in the context of the LSLA and having regard to the subject matter and purpose of sub-s 72(2) of the LSLA, and the Act more broadly, the offence created by sub-s 72(2) of the LSLA, once committed, is extensible and continues day by day from that time until the payment required is made. It is in my view, a continuing offence.

5 Joseph is the principal of David Joseph & Co, Lawyers in Benalla, Victoria. He acquired the law practice on 14 April 2008. At that time, Susan Scorah ('Scorah') was an employee of the law practice and had been employed with the previous owners since about 2 September 2002. She resigned from the firm with effect from 7 December 2012. Her total employment with the law practice was approximately 10 years and three months.[4]

6 On 13 February 2013, a little over two months after her employment ended, Scorah wrote to the plaintiff claiming her long service leave entitlement had not been paid and requested him to pay it. Joseph denied liability on various grounds that are not presently relevant. On 20 October 2014, the first defendant ('Worthington') who is a manager in the Department of Economic Development, Jobs, Transport and Resources ('the Department') signed a charge-sheet and summons ('Charge') directed to Joseph. That Charge was issued by the Magistrates' Court on 21 October 2014.[5]

On and from 7 December 2012 and continuing, David Joseph, trading as David Joseph & Co Lawyers (ABN 12 247 624 310), being the former employer of Susan Charmaine Scorah, contravened s 72(2) of the Long Service Leave Act 1992 (Vic).

Particulars

You, David Joseph, trading as David Joseph & Co Lawyers, were required on 7 December 2012, to pay Susan Charmaine Scorah, an employee whose employment ended on 7 December 2012, before she had taken all of the long service leave to which she was entitled, the full amount of her long service leave entitlement as at that date and have thereafter failed to do so.[6]

8 It is immediately apparent from the wording of the Charge that it proceeds on the assumption that the offence created by sub-s 72(2) is a continuing offence.

9 The Charge was found proven by the Magistrates' Court of Victoria on 27 April 2016 and Joseph was fined $1,500.00 without conviction and ordered to pay costs of $4,580.[7] The Magistrate also ordered Joseph to pay the amount of unpaid long service leave plus interest.

10 The plaintiff appealed to the County Court on 2 May 2016 and on 15 November 2016, the appeal was heard de novo before Judge Murphy, who dismissed the appeal with costs and ordered Joseph to pay:

(a) the outstanding entitlement of Scorah, being $8,405.79 pursuant to s 161 of the LSLA;

(b) interest to Scorah on that outstanding entitlement ($3,386.91 as at 15 November 2016) pursuant to s 160(5) of the LSLA;

(d) Worthington's costs fixed at $18,320.00.[8]

11 There were a number of issues before Judge Murphy - only one is the subject of the application before me. It was put by counsel for Joseph that the offence in question was not a continuing offence as it had been committed on the day of termination of the employment of Scorah and was spent, as an offence, when the money was not paid on that day. On the other hand, counsel for Worthington maintained that the offence is a continuing offence and continued up until the money is actually paid.

12 Judge Murphy accepted that the analysis advanced by counsel for Worthington was correct and referred to the decisions of this Court in R v Industrial Appeals Court; Ex part Barelli's Bakeries Pty Ltd[9] and R v Industrial Appeals Court; Ex parte Circle Realty Pty Ltd,[10] and was guided by those decisions in the interpretation of s 72 of the LSLA.

The Long Service Leave Act

13 Division 6 of Part 5 of the LSLA is headed 'Long Service Leave'. Section 56 sets out the basic entitlement to long service leave. An employee is entitled to 13 weeks of long service leave on ordinary pay on completing 15 years of continuous employment with one employer. Thereafter, an employee is entitled to 4 1/3 weeks of long service leave on ordinary pay on completing each period of five years of continuous employment with that employer after the first 15 years of continuous employment.

14 Section 56A deals with the entitlement to long service leave after 10 years. It provides that if an employee has completed at least 10, but less than 15 years of continuous employment with one employer, the employee is entitled to an amount of long service leave equal to 1/60th of the period of continuous employment with that employer.

15 Sections 57 to 71 of the LSLA deal with a variety of matters not directly relevant to the construction of s 72. These include additional long service leave after 15 years,[11] the entitlement to long service leave if employment stopped after seven years,[12] definitions of 'employer', 'employee' and 'ordinary pay' that are beneficial to the employee,[13] the giving of a very wide meaning to the expression 'one employer' and 'continuous employment' that are beneficial to the employee and that appear to include antiavoidance measures,[14] when leave is to be taken,[15] splitting leave,[16] payment and pay increases while on leave,[17] excluding annual leave and public holidays from long service leave,[18] leave in advance,[19] leave at half pay[20] and employees to whom the Division does not apply.[21] The unifying feature of all these provisions is that they are beneficial to the employee or worker, as are the subsequent provisions after the critical section, s 72.

16 Section 72 of the LSLA provides:

72 What is to happen if employment ends before leave taken

(1) If the employment of an employee ends before he or she has taken all the long service leave to which he or she is entitled, the employee is to be regarded as having started to take his or her leave on the day the employment ended.

(2) On that day the employee's employer must pay the employee the full amount of the employee's long service leave entitlement as at that day.

Penalty: 20 penalty units.[22]

(3) An employee's long service leave entitlement under this section includes any entitlement that accrued as a result of the ending of the employee's employment.

17 Section 74 of the LSLA prohibits an employee from giving and an employee from accepting any payment in lieu of long service leave, except as permitted by Division 6 of Part 5 of the LSLA. A penalty of 20 penalty units is prescribed.

18 Subsection 75(1) gives jurisdiction to the Industrial Division of the Magistrates' Court to hear disputes as to an employee's entitlement to long service leave or payment in lieu, the rate of ordinary pay and an employer's refusal to allow leave at half pay under s 71A. By subsection 75(2) of the LSLA, an employee or their personal representative may apply to the Industrial Division of the Magistrates' Court for an order 'directing' an employer to pay the employee (or their personal representative) any amount that has become due under Division 6 'within 5 years immediately before the day on which the application is made'.

19 Section 79 declares that any provision in an employment agreement that annuls, varies or excludes any provision of Division 6 of Part 5 is of no effect, unless the provision confers greater rights on an employee than the rights conferred by Division 6.

20 Section 80 provides for offences in relation to the keeping of records. So, for example, s 80(1) provides that an employer must keep long service leave records in the form approved by the Chief Administrator and containing the details required.[23] There are various other obligations, breach of which give rise to an offence. Section 80(5) provides that, despite anything to the contrary in the LSLA or any other Act, a charge-sheet charging an offence under that section may be filed at any time within five years after the commission of the alleged offence.

21 Part 15 of the LSLA contains provisions dealing with prosecutions, evidence and recovery of money, including proceedings for offences to be brought in the Industrial Division of the Magistrates' Court,[24] who can prosecute under the LSLA,[25] judicial notice of certain signatures,[26] and provisions relating to the recovery of money owed to an employee.[27]

22 Section 160 provides that where an employee is owed any money by an employer under the LSLA, or any other Act or under any employment agreement or order made under the LSLA or any other Act, they may take proceedings in the Industrial Division of the Magistrates' Court to recover the money owing. Subsection 160(3) provides that proceedings under the section must be started within six years after the employee's entitlement to the money arises. Subsection 160(4) provides that before proceedings may be started under the section, the employer must be given a written demand for the money owed. Subsection 160(5) provides for the payment of interest to an employee on top of any other amount the employee is entitled to if certain conditions are satisfied. The interest is, by s 160(6) limited to the rate fixed under s 2 of the Penalty Interest Rates Act 1983 that applies at the time the Court makes the order.

23 Section 161 provides that if the Magistrates' Court finds an employer guilty of an offence relating to the underpayment of an employee, the Court may order the employer to pay the employee any amount that the employee was underpaid and that is still owed to the employee, in addition to imposing a penalty for the offence. Subsection 161(3) applies subsections 160(5)-(7) to a claim under s 161.

Criminal Procedure Act

24 It is common ground that the Charge for contravention of sub-s 72(2) of the LSLA is a summary offence. By s 6 of the CPA, a criminal proceeding is commenced by filing a charge-sheet containing a charge with a registrar of the Magistrates' Court. Section 7 then sets the time limit and provides as follows:

(1) A proceeding for a summary offence must be commenced within 12 months after the date on which the offence is alleged to have been committed except where -

(a) otherwise provided by or under any other Act; or

(b) the accused gives written consent, and the DPP or a Crown Prosecutor consent, to the proceeding being commenced after the expiry of that period.

25 It is also common ground that there is no other Act permitting the filing of a Charge for an offence contrary to sub-s 72(2) of the LSLA more than 12 months after the alleged offence was committed.

26 The plaintiff's appeal to the County Court was under Part 6.1 of the CPA. The County Court heard and determined the appeal in its appellate jurisdiction. There is no further right of appeal. The rights of appeal contained in Part 6.3 of the CPA apply to matters heard by the County Court in its original jurisdiction (see s 274 of that Act). The only avenue of redress from a conviction, or orders made, in the County Court in its appellate jurisdiction is judicial review.[28]

27 The common law jurisdiction of this Court to review decisions of inferior courts is subject to the procedures sets out in O 56 of the Rules. The jurisdiction is supervisory and does not entitle this Court to canvas matters that it would on an appeal. In a judicial review, the Court is concerned with the legality of what was done by the court or tribunal below, and is not concerned with the merits of the decision under review.

28 This is made clear in the decision of the High Court in Craig v South Australia[30] where the Court noted that:[31]

(a) certiorari was a process by which a superior court, in the exercise of its original jurisdiction, supervises the acts of an inferior court or tribunal. It merely enables the quashing of an impugned order or decision upon one or more of a number of distinct grounds, of which the most important are:

(ii) failure to observe some applicable requirement of procedural fairness;

(b) where the writ is sought on the ground of jurisdictional error, breach of procedural fairness or fraud, the superior court entertaining an application for certiorari can, subject to applicable procedural and evidentiary rules, take account of any relevant material placed before it;

(c) where relief is sought on the ground of error of law on the face of the record, the superior court is restricted to 'the record' of the inferior court or tribunal and the writ will enable the quashing of the impugned order or decision only on the ground that it is affected by some error of law which is disclosed by that record; and

(d) it is not an appellate procedure enabling either a general review of the order or decision of the inferior court or tribunal, or a substitution of the order or decision which the superior court thinks should have been made.

29 In the leading case of Cooper Brookes, Mason and Wilson JJ said:

[t]he fundamental object of statutory construction in every case is to ascertain the legislative intention ... The rules [of interpretation] ... are no more than rules of common sense, designed to achieve this object.[32]

30 To the same effect, Gleeson CJ has said that 'the object of a court is to ascertain, and give effect to, the will of Parliament.'[33] It follows that:

[j]udicial exposition of the meaning of a statutory text is legitimate so long as it is an exercise ... in discovering the will of Parliament: it is illegitimate when it is an exercise in imposing the will of the judge.[34]

31 The discovery of the legislative intent, however, is an objective process ascertained by interpreting the statute.[35] That is, the objective intention of the legislation is revealed by its proper construction.[36] The reach and operation of the law is determined by reference to the language, purpose and scope of the law, viewed as a whole within its context, as well as by reference to considerations of consistency and fairness.[37] The plurality of the High Court in Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue summarised the approach as follows_:_[38]

(a) the task of statutory construction must begin with a consideration of the text itself;[39]

(b) historical considerations and extrinsic materials cannot be relied on to displace the clear meaning of the text;[40]

(c) the language which has actually been employed in the text of legislation is the surest guide to legislative intention;[41] and

(d) the meaning of the text may require consideration of the context, which includes the general purpose and policy of a provision,[42] in particular the mischief it is seeking to remedy.[43]

32 Joseph submitted that the offence created by sub-s 72(2) of the LSLA is not a continuing offence because:

(a) whether the section creates a continuing offence or a completed offence is a question of statutory construction. The authorities show that the starting point is the construction of the words of the section, the text, and the language which has actually been employed in the text of legislation which is the surest guide to legislative intention.[44] The Court must strive to give meaning to every word of the provision,[45] and to the provision(s) as a whole.[46] The text may require a consideration of the context, which includes the general purpose and policy of a provision, in particular, the mischief it is seeking to remedy. Historical considerations and extrinsic materials cannot be relied on to displace the clear meaning of the text.[47] Whenever Parliament legislates, it does so in the knowledge that the task of interpretation will be governed by such rules;[48]

(b) the Court must give meaning to the words 'on that day' in sub-s 72(2). They are an essential element of the offence. Section 72 provides that the offence occurs on the day an employee's employment ended and on no other. Payment of a long service leave entitlement at any time after that day will satisfy the obligation protected by s 160, but will do nothing to relieve an employer of liability for the criminal offence committed by a contravention of sub-s 72(2). A late payment is a 'once off', event and cannot as a matter of logic be or become a continuing state of affairs. Once payment is late it is forever late;

(c) determining whether or not the offence created by s 72 is a continuing offence or not is a question of the interpretation of the statute and depends upon the analysis of the legislation in the case at hand and it is not assisted by other cases determining the question on other legislative provisions;

(d) Parliament specifically provided for the extension of time provisions in the LSLA in other cases.[49] The absence of an express extension of time for a criminal proceeding indicates Parliament did not intend to alter the general limitation period in the CPA; there is nothing in the LSLA to suggest that Parliament intended sub-s 72(2) to operate as a continuing offence. In the absence of express intention to create a continuing offence, courts should be slow to conclude that the offence is continuing;[50]

(e) by way of contrast, Parliament has expressly provided for continuing offences in other statutes;[51] and

(f) neither the explanatory memorandum nor parliamentary debates provide guidance as to the purpose of s 72 of the LSLA or shed any light on whether it is to be regarded as a continuing offence; the mischief sought to be regulated is the non-payment of long service leave entitlement. The offence of failing to pay that entitlement 'on that day'- the day the employment ends - accrues on that day; the commission of the offence under s 72 of the LSLA is quite independent of the liability of the employer to the employee under s 160 of the LSLA. The employer's obligation to pay and an employee's ability to recover a long service leave entitlement is created and persists extrinsically to the offence under sub-s 72(2).

33 In the course of making his submissions, counsel for Joseph referred to a range of authorities including Barelli's Bakeries, Circle Realty, Jones v Lorne Sawmills Pty Ltd,[52] Sloggett v Adams,[53] Welsh v Cornfoot,[54] Larking v Great Western (Nepean) Gravel Ltd,[55] EPA v Alkem Drums Pty Ltd.[56] I consider these authorities later.

34 Worthington maintained before me, as she maintained before the County Court, that sub-s 72(2) gives rise to a continuing offence. The section imposes a duty or obligation on employers to pay employees their accrued but untaken long service leave entitlement at the cessation of their employment. The obligation to pay continues until fulfilled. As a result, the plaintiff's breach constitutes only one offence (or one crime as the term is used in Barelli's Bakeries) but continues day by day to be an offence until the obligation is performed.[57] In support of this overarching submission, counsel for Worthington referred me to many of the cases to which Joseph's counsel had taken me, and others, including Bridge v Lindrum,[58] John Crowder & Sons Pty Ltd v Speedy,[59] Dickman v M & M Sirianni Pty Ltd[60] and Cox v Ketchell.[61]

35 Worthington's reasons for this construction are that:

(a) the proper test to determine whether or an offence is a continuing offence is to consider the true characterisation of the law;[62]

(b) the true characterisation of sub-s 72(2) of the LSLA is that it imposes an obligation that continues until it is observed, and as such, is a continuing offence;

(c) sub-section 72(2) imposes a duty upon Joseph that arises on the day the employment ceases, and, resembling a debt, continues until actual payment;

(d) the reference to 'on that day' in sub-s 72(2) does no more than fix the point in time, on and from which, the duty to pay is operable and on and from which the offence commences to be committed;

(e) sub-section 72(2) does not create an offence which, once committed, is complete and exists only in the past. Rather, consistent with the reasoning in Barelli's Bakeries, the section creates an offence constituted by a continuing breach of the duty to take action to put an end to a forbidden state of affairs;[63] and

(f) the subject matter of the section is an important pointer to the construction advanced. The time for performance of the duty to pay monies owed to an employee under sub-s 72(2) is extensible and continues day to day from the time it commences to operate, which is the day when the employment ends. The purpose of the LSLA is to make provision with respect to long service leave entitlements of certain employees.[64] It may be inferred that the objective of making that provision is to provide paid leave (as defined in the LSLA) to long serving employees, as one of the conditions of their employment. The gravamen of the offence is the failure to make the required payment to employees, not the failure to make it within the specified time, on the day that the employment ends.

36 The history of the current provisions in the LSLA, going back to the Factories and Shops (Long Service Leave) Act 1953, shows that the words 'on that day' at the end of sub-s 72(2) is merely a device to specify the time when the obligation to give effect to the principle in s 72(1) takes effect. Under the previous forms of the obligation, the entitlement and the time when it applied were rolled together. Section 70(2) of the Industrial Relations Act 1979 (which is substantially the same as s 156(2) of the Labour and Industry Act 1953 and s 9(2) of the Factories and Shops (Long Service Leave) Act 1953) provides:

Notwithstanding anything to the contrary in sub-s (1) where the employment of a worker is for any reason terminated before he takes all the long service leave to which he is entitled or where a long service leave entitlement accrues to a worker because of the termination of his employment the worker shall be deemed to have commenced to take his leave on the day his employment was terminated and he shall be entitled to be paid by his employer ordinary pay in respect of that leave.

37 The objective of the LSLA is to reward employees for long and continued service in the form of a paid break from work. The fact that sub-s 72(2) requires payment for accrued but untaken long service leave is consistent with that purpose: the payment of the entitlement at the end of employment permits 'the worker who so chooses, to have a period free from work on full pay to the extent of payment actually made in the circumstances'.[65]

38 There was nothing in the second reading speeches (or explanatory memoranda) for the current version of s 72 of the LSLA, or in respect of any of its predecessors, which indicates that Parliament intended the limitation period to run from the date payment first became due. Parliament must have been aware of the line of authority, treating obligations imposed on employers to make payments to their employees as continuing offences until the obligations are discharged. Had it intended to depart from that line of authority, it could have defined the offence as one which, once committed, is complete and concluded, so that the time limit for taking proceedings for the offence would commence from the date when the breach first arose. The Court is not justified in putting words into an Act of Parliament which the legislature has not put in, to get rid of a line of authority of which the legislature must be deemed to have known.[66]

39 Counsel for Joseph countered counsel for Worthington's reliance upon the history of the legislative provisions by reference to the full text of the provisions that were relevant to the operation of the offence provision. In particular, the offences created for contravention of the previous equivalent provisions were subject to specific limitation periods. Under the Factories and Shops (Long Service Leave) Act 1953 the offence section, s 17, provided that any prosecution for an offence constituted by a contravention or failure to comply with any provision of the Act was by information 'which may be laid at any time within two years after the commission of the offence'. In the case of the Industrial Relations Act 1979, s 77 imposed a limitation period of five years after the commission of the offence for the laying of any information.

40 The effect of this analysis was, in the submission of counsel for Joseph, that the legislative history did not inform the analysis of sub-s 72(2) nor aide in the construction that would lead to that provision giving rise to a continuing offence.

41 Both parties referred me to many cases concerning the identification of a continuing offence. The primary cases relied on in the County Court, and referred to at length in argument before me were Barelli's Bakeries and Circle Realty.

42 Barelli's Bakeries was a decision of the Full Court of the Supreme Court of Victoria[67] in judicial review proceedings (an application for the writ of certiorari) in respect of a decision of the Industrial Appeals Court concerning the conviction of an employer for contravention of the combined effect of provisions of the Labour and Industry Act 1958 ('Labour and Industry Act') and a Wages Board Determination for Bread Carters. The information in question was laid under s 198(1) and s 205 of the Labour and Industry Act. Section 198(1) provided that:

Where an employer employs any person on work for which the lowest prices or rates have been fixed in a determination, such employer shall be liable to pay and shall pay in full in money without any deduction whatever to such person the price or rate so determined.

Every person who contravenes or fails to comply with any of the provision of this Act ... or determination thereunder shall be guilty of a contravention of and offence against this Act.

44 Under the determination of the Wages Board, the obligation to pay the award rate provided 'Thursday at 5.30pm shall be the day and latest hour for payment of wages'. The employer argued that if there was a contravention or failure to comply with the provisions of the determination, the offence was committed on a particular Thursday and the information was laid well beyond the six month limitation period prescribed by s 192(1)(a) of the Labour and Industry Act. The informant contended that since the liability was continuing, the failure to comply was equally continuing and accordingly the offence charged was of a continuing nature. O'Bryan and Gillard JJ said:[68]

A continuous or continuing offence is a concept well known in the criminal law and is often used to describe two different kinds of crime. There is the crime which is constituted by conduct which goes on from day to day and which constitutes a separate and distinct offence each day the conduct continues. There is, on the other hand, the kind of conduct, generally of a passive character, which consists in the failure to perform a duty imposed by law. Such passive conduct may constitute a crime when first indulged in but if the obligation is continuous the breach though constituting one crime only continues day by day to be a crime until the obligation is performed. In such a case in measuring the period of limitation, if one is applicable, the right to lay an information is not barred if the breach has continued up to the day the information was laid or if the breach was cured before the information was laid, time counts from the day when the obligation was satisfied. The question whether an offence is of a continuing or continuous nature generally arises in the case of statutory offences and the question is solved by ascertaining what is the precise nature of the offence.[69]

45 O'Bryan and Gillard JJ then considered a number of authorities, including Jones v Lorne Saw Mills Pty Ltd,[70] a decision of Cussen J, and said in relation to that decision:

It is to be noted that his Honour indicated that not every case of non-observance of an award was necessarily a continuous offence and he instanced an offence which has relation to a specified act or indicated a day or a time for its performance... But the mere fact that a time is fixed by the determination for the doing of the act does not necessarily mean that the obligation created by the determination or by the statute is spent at the expiration of that time...[71]

46 In Barelli's Bakeries, Smith J delivered separate reasons agreeing with the conclusions reached by O'Bryan and Gillard JJ and said:

...the Industrial Appeals Court was right in regarding the offence charged as a continuing one, and in holding that the information was, therefore, laid within time. The offence charged was not that the employer allowed the time fixed for payment to pass without having paid. It was that, moneys having become due and payable, the employer failed to perform the duty imposed by the Act of paying them to the employee. That duty is one which operates throughout the period from the time fixed for payment until actual payment. The breach of it begins at the time fixed for payment but continues on...The distinction is between, on the one hand, an offence which, once committed, is complete and concluded and exists only in the past, and, on the other hand, an offence constituted by a continuing breach of a duty to take action to put an end to a forbidden state of affairs, in this case that wages which have become payable under a determination are unpaid...[72]

47 Circle Realty was also a judicial review proceeding where the employer sought to quash an Industrial Appeals Court decision. It concerned a failure to pay holiday pay on termination of a worker's employment. The limitation period for the laying of the information was 12 months after the commission of the offence. The information before the Court had been laid more than 12 months after the termination of the worker's employment, and was statute barred unless the offence was a continuing one. The employer was convicted and fined and ordered to pay arrears in the Industrial Appeals Court.

48 The provision which created the offence was s 201(c) of the Labour and Industry Act. That section provided, so far as relevant:

(1) Subject to this section where a price or rate of payment for any person or class of persons has been fixed in a determination which is in force every person who -

...

(c) contravenes or fails to comply with any of the provisions of the determination ...

Shall be guilty of an offence.

49 The Wages Board determination, so far as relevant, provided by cl 14B:

(3)(a) This sub-clause applies with respect to every period of employment of a worker by any employer which is less than one year, ...

(b) Where the employment of any worker by any employer is terminated at the end of a period of employment to which this sub-clause applies the employer shall forthwith pay to the worker, in addition to all other amounts due to him, an amount equal to four forty-eighths of his ordinary pay for that period of employment...

50 O'Bryan J[73] referred to the decision in Barelli's Bakeries, quoted from the decision of O'Bryan and Gillard JJ the passage that I have referred to above (at paragraph 44) and said:

Whether a particular offence is a continuing one ... turns upon the proper construction of the law creating the offence. If the true characterisation of the law is that it imposes an obligation which continues until it is observed, then the offence may constitute a continuing one, but if on the other hand, the true characterisation of the law is that it specifies a time for the doing of the act, then the limitation period commences to run from that specified time and this is so whatever the nature of the obligation.[74]

51 His Honour noted that the information incorporated the provisions of the determination and alleged that the employer was under an obligation to pay a specified amount of holiday pay to the worker 'forthwith' at the end of a period of employment. In relation to the use of the word 'forthwith', he said that in the context in which the word is used in the determination, it means as soon as reasonably possible or practicable and cannot be intended to stipulate a definite time or date for payment. He went on:

Different situations relating to the employment may require different meanings to be given to the obligation to pay holiday pay. ... But, in every case, it is the obligation to pay the amount due that is the essential element involved. Where an offence is charged and it is alleged that the obligation has not been met by the employer the use of the word 'forthwith' in the information does not introduce any essential element into the offence. The offence is the failure to pay the amount due under the determination and the obligation to pay continues until payment is made.[75]

52 In his reasons in Circle Realty, O'Bryan J considered a number of relevant authorities. The first is Sloggett v Adams,[76] where the Court of Appeal in New South Wales considered a limitation section for charging a person who failed to comply with a notice requiring the eradication of certain noxious weeds on land by a particular date. After referring to the distinction between continuing and completed offences, Street CJ said:

The test, it seems to me, is one which was prescribed in Ellis v Ellis[77] by Sir Francis Jeune, who said: 'The test whether an offence is to be treated in law as continuous is, I think, whether its gravamen is to be found in something which the offender can, at will, discontinue.' Applying that test to the section now under consideration, the legislature has made it clear that the offence is the failure to comply with the requirements of the notice. It is true that the notice deals with the eradication of noxious plants from the land, and one thing which must be done in order to comply with the notice is to eradicate. But the offence here was not a mere failure to eradicate generally, such as would be included under s 472 of the Local Government Act;[78] it was a failure to eradicate within the prescribed time, that is, within the 28 days which expired on 2nd July 1951. At that moment the offence was completed and concluded, and thereafter it existed only in the past.[79]

Where, as here, the notice sets a time for the doing of the act which is required to be done, the offence is, in my opinion, committed once and for all if that act is not done within the time set.[80]

54 O'Bryan J also considered the decision of Lush J in Welsh v Cornfoot,[81] which was a judicial review proceeding and concerned obligations imposed by the Companies Act 1961 to lodge notices with the Registrar of Companies within one month of allotment of shares or incorporation. Failure to comply with each obligation was an offence. Lush J observed:

...as a general rule when a time for compliance with a statutory requirement is fixed, the offence of non-compliance is complete at the end of that time and the offence is not a continuing one. The problem arises in the application of limitation periods when a court is called on to decide whether a prosecution has been instituted within a fixed time after the offence has been committed.[82]

55 That case, O'Bryan J noted, was decided on the basis that the time specified was of the essence of the offence.[83] In Welsh v Cornfoot, Lush J considered a number of authorities, including Jones v Lorne Saw Mills Pty Ltd,[84] Barelli's Bakeries, Sloggett v Adams and some cases in which offences were held to be continuing even though a time for performance was fixed. In relation to Barelli's Bakeries, Lush J observed:

All the judges who decided [that case] were, however, careful to point out that the statute then under consideration fixed no time for compliance and they took the view that this rendered the obligation continuing, the circumstances that a determination under the relevant Act fixed a time not having the effect of diminishing the period of operation of the statutory obligation itself.[85]

56 That may be so, however the critical passage in the reasons of O'Bryan and Gillard JJ nevertheless construes the combined operation of the Act and the determination:[86]

The section which creates the obligation fixes no time for the performance of the obligation to pay. As we have already noted the determination does fix a time for payment, i.e. not later than 5.30 p.m. on the Thursday, but we find it impossible to infer from the combined operation of the statute and the determination that the statutory obligation to pay is spent if payment is not made at the time fixed by the determination. An offence under s 205 is complete if payment is not then made, but the offence of contravening or failing to comply with the obligation to pay money is one in which, to borrow the words of Cussen, J, in Jones v Lorne Saw Mills Pty. Ltd., 'The time element is extensible'. [emphasis added].

57 Lush J in Welsh v Cornfoot then referred to in the decision in J Robins & Sons Ltd v Maloney (No 2),[87] which was a decision that an offence was continuing even though a time for performance was fixed, and commented that he entertained some doubt whether the decision could stand with Sloggett v Adams, although it is consistent with other decisions in the New South Wales Industrial Commission dealing with payments under awards.[88] He went on to say that the authorities show that the relevant legislation must be analysed in every case.[89] That is, indeed, the very thing that Cantor J observed in Robins v Moloney which lead him to the conclusion that the offence in that case was a continuing offence.[90] Cantor J observed in the course of his reasons that:

It is a sound rule of construction, in order to arrive at the intention of the legislature, to inquire what is the subject matter with respect to which the words of the Statute to be interpreted are used, and the object in view, and indeed that course was followed in a number of the cases to which we have referred.[91]

58 This approach of Cantor J, like the approach of O'Bryan and Gillard JJ in Barelli's Bakeries, shows that it is not just the language, but the subject matter and purpose of the obligation that significantly influences the characterisation of the provision in question.

59 Returning to the decision of O'Bryan J in Circle Realty, his Honour then referred to the decision of the High Court in Larking v Great Western (Nepean) Gravel Ltd.[92] In that case, the High Court considered an appeal taken from a decision that a covenant in a licence to erect fences having been broken by the licensee was not a continuing breach but was a breach 'once for all'. Dixon J (as he then was) drew a distinction between a covenant that premises will be insured and kept insured, which imposes a continuing obligation and a covenant to put the premises in repair, which is broken 'once for all' if a reasonable time for putting the premises in repair elapses without his doing so.

60 Having reviewed these authorities, O'Bryan concluded:

Quite clearly, the legislature has insisted that payment of holiday pay, calculated at a particular rate, shall be made promptly upon the termination of employment. But the burden that is imposed upon the employer to pay holiday pay does not abate if it is not paid 'forthwith'. It continues until payment has been made. There are no doubt some reasons of policy why holiday pay should be paid promptly upon termination of a contract of employment. The use of the word 'forthwith' in the determination gives effect to that policy. However, in my opinion, after closely considering the law which creates the offence, it is the failure to pay holiday pay that is the gravamen of the offence, and not the failure to pay 'as soon as reasonably possible' or 'as soon as practicable' or 'without undue delay'.[93]

61 In Circle Realty, O'Bryan J referred to a number of other decisions of the Industrial Commission of New South Wales and the Industrial Appeals Court of Victoria[94] and observed that, although they were not binding on him, they showed that consistently over a period of years, tribunals administering similar legislation had treated as a continuing offence a failure to pay wages due on a particular day or 'forthwith' under an award.[95]

62 One of those cases was Bridge v Lindrum,[96] where the offence was a failure to pay holiday pay forthwith on termination of the worker. McKeon J referred to a variety of authorities and stated the test as to whether the statute created a continuing offence was to be found in the language of the instrument in question, but that the real purpose of the Act,[97] and the obligation of the section in question, was to give workers the benefits of an annual holiday and that the gravamen of the offence was a failure to comply with that obligation, not the failure to comply within a specified time.[98] The result was a finding that the provision created a continuing offence.

63 The cases that conclude that an offence is continuing tend to be ones where the nature or the subject matter of the duty or obligation imposed, the contravention of which is an offence, indicate a legislative intent to create a continuing offence. Thus, Barelli's Bakeries and Circle Realty concerned a failure to pay wages or holiday pay within a prescribed time. The substance or gravamen of the offence was the failure to pay the wages or holiday pay due. As Smart JA observed in EPA v Alkem Drums that '[i]t would be an extraordinary result if this were not an offence which continued until payment'.[99]

64 What was important in Barelli's Bakeries, as in Circle Realty, was the 'true characterisation' of the law that it imposed an obligation which continued until observed, in contradistinction to one the 'true characterisation' of which was that it specified a time for the doing of the act.

65 There are other cases that fall into this category. In Ganke v Corporate Affairs Commission,[100] s 375 (1) of the Companies (New South Wales) Code required the directors and secretary to submit a statement of affairs to the liquidator not later than 14 days after the making of a winding up order against the company. The NSW Court of Criminal Appeal held that there was a continuing obligation. Section 571 provided that the obligation continued notwithstanding that the time for compliance had passed and there had been non-compliance. Hunt J, with whom the other judges agreed, held that even without reference to s 571, the offence created by s 375(9) should be construed as a continuing one. The purpose of the statutory obligation created by s 375(1) was to provide the liquidator with information which it was unlikely he could obtain elsewhere. The liquidator needed the information even though the time limit had passed.

66 To the same effect is the decision of the decision of the Full Court of the Supreme Court of South Australia in Leydon v Forrest[101] where King CJ reviewed the authorities, including Barelli's Bakeries and Sloggett v Adams, and other 'notice cases', and observed:

I think that these authorities indicate...that the question whether non-compliance with a legal duty which must be performed within a prescribed time is a continuing offence or a once and for all offence must be answered by reference to the language of the section creating the offence and the context in which it is found.[102]

67 In relation to the cases like Sloggett v Adams, which concerned non-compliance with notices given under statutory authority,[103] King CJ observed that the notices did not seek to impose a continuing obligation, but directed action to be taken within the specified time. The prohibited omission therefore occurred immediately at the time when it expired and the notice could not be complied with thereafter.

68 Another case relied on by Counsel for Worthington is John Crowder & Sons Pty Ltd v Speedy,[104] an appeal to the Industrial Appeals Court presided over by the Deputy President, Judge Dethridge, from the Magistrates' Court at Frankston against two convictions of the appellant for failure to pay holiday pay under provisions of the Labour and Industry Act 1958 and the Labour and Industry (Annual Holiday) Act 1958. The issue was whether the charges were laid within the limitation periods applicable. Judge Dethridge departed from an earlier decision of the Victorian Industrial Appeals Court, and followed the decision of McKeon J in Bridge v Lindrum,[105] holding that the gravamen of the offence in question was the failure to give holiday pay not the failure to give it within the specified time, so that the offence was a continuing offence.

69 Counsel for Worthington also referred to Dickman v M & M Sirianni Pty Ltd,[106] a case which applies Barelli's Bakeries to the non-payment of holiday pay, in addition to referring to John Crowder & Sons Pty Ltd v Speedy, and to Cox v Ketchell,[107] a decision of Neasey J in the Supreme Court of Tasmania, which applied the reasoning of the Court in Barelli's Bakeries, and the authorities referred to in it, to similar Tasmanian offence provisions.

70 The question for determination in this application for judicial review is whether the learned Judge of the County Court was wrong in concluding that Joseph's failure to pay Scorah's accrued long service leave entitlement on 7 December 2012 was a continuing offence. It is thus a question of construction whether the offence created by sub-s 72(2) of the LSLA is a continuing offence or was a completed offence on that date. If it was a completed offence, the summons and charge-sheet issued on 21 October 2014 was out of time and the County Court fell into jurisdictional error. If it was a continuing offence, the charge-sheet was within time and no jurisdictional error arises.[108]

71 It is common ground that the question whether sub-s 72(2) of the LSLA creates a continuing offence has not previously been judicially considered. It is also common ground that there are no relevant 'extrinsic materials' relating to the LSLA when enacted in its current form.[109]

72 In my view, the competing arguments on the construction of sub-s 72(2) of the LSLA are finely balanced. I will seek to analyse the construction of the section in the context of the Act by considering the text, the context, subject matter and general purpose and policy of the provision in that context, including the mischief it seeks to remedy, then the historical considerations and the authorities that I have referred to that relate to analogous provisions.

73 The first thing to notice about the text is that sub-s 72(1) picks up on the entitlement of an employee provided for by ss 56, 56A, 57 and 58. It only applies if the employment of the employee ends before they take all the long service leave to which they are entitled under one or other of those provisions. Second, it creates a fiction - the employee is to be regarded as having started to take their leave on the day the employment ended. That, of course, is a reference to the leave to which the employee is entitled. Then sub-s 72(2) proceeds on the basis of that fiction and places an obligation on the employer to pay the full amount of the employee's long service leave entitlement as at the day the employment ended 'on that day'. On the face of it, a failure to pay the entitlement 'on that day' gives rise to a contravention of the section and the language is apt to define an offence that is complete and concluded if the payment is not made on that day. But is the time of payment the essence of the offence? As O'Bryan and Gillard JJ said in Barelli's Bakeries, the mere fact that a time is fixed by the determination for the doing of the act does not necessarily mean that the obligation created by the determination or by the statute is spent at the expiration of that time.[110] Much depends on the nature of the offence.[111]

74 This brings in to play the context, subject matter, or nature, and the general purpose and policy of the provision. I have set out the context, and the obviously beneficial character of the legislation above (see [13] to [23]). The legislation is plainly designed so as to require the employer to provide benefits to the employee by way of a paid break or rest after long service. It may be that this is to reward employees for lon[112]nd continuous service112 or provide for an employee's health and well-being, or both. Beneficial meanings are given to the terms 'employer', 'one employer' and 'continuous employment' so as to ensure a long serving employee cannot be denied their entitlement to that break from work. Further, so as to cater for changes in employment and other exigencies, the entitlement is converted into an entitlement to payment in lieu of that leave where the employment of the employee ends before all of the long service leave has been taken. In other circumstances, payme[113]in lieu is forbidden.113 Moreover, an employee commits an offence if that employee works for hire or award whils[114]n long service leave.114 Indeed, a person employing a person on long service leave commits an offence if the employer knowingly employs the per[115] while on such leave.115

75 The purpose, therefore, of the provision in s 72 is to ensure that employees receive their entitlements when their employment ends and the creation of an offence for failure to pay the entitlement may be seen as a means to the same end, as well as a punishment for a failure to pay the entitlements.[116] These considerations point towards the essence or gravamen of the offence being the payment of the entitlement rather than the time of that payment.

76 Counsel for Worthington contended that the history of the LSLA shows that the use of the words 'on that day' at the end of sub-s 72(2) of the LSLA are a device to specify the time when the obligation to pay the entitlement takes effect. The previous forms of the obligation did not specify that the entitlement to long service leave was to be paid on the day the employment ended, although that might be thought to have been the natural order of things given the termination of the employment. As can be seen from the section in the Industrial Relations Act 1979, quoted above at [36], the fiction of the employee commencing to take their long service leave on the day the employment was terminated is present. The entitlement to be paid the ordinary pay in respect of that leave is specified. It is clear, in my view, on the authorities to which I have referred, that the provisions in that earlier legislation created a continuing offence. There was no time for payment specified expressly or by implication in the provisions. The fact that the earlier legislation separated the obligation and the offence provisions does not detract from this analysis. The limitation period specified (see [39] above) does not counter the proposition that the section properly construed gave rise to a continuing offence. That limitation period was applicable to a range of offences, not just the failure to pay long service leave entitlements on termination of employment. Indeed, it seems to me to have been impossible to apply the limitation period unless the offence was viewed as a continuing one.

77 Thus, the legislative history does inform an analysis of sub-s 72(2), but the effect of that analysis is equivocal. It is equivocal because, on the one hand, s 72 read as a whole includes the substance of s 70(2) of the Industrial Relations Act 1979, and its predecessors, in that it gives rise to the same entitlement and creates the same fiction as sub-s 72(1) and includes as a part of sub-s72(2) the obligation to pay the long service leave entitlement. On the other hand, the change in the language by specifying payment on the day the employment ended may be seen as a change in language leading to a change in meaning.

78 The subject matter is, of course, the payment of employee entitlements created by Statute. The general purpose and policy of the provision is, as I have said, to reward employees for long and continuous service in the form of a paid break from work, or to benefit the health and well-being of the employee (or both) and the particular purpose of s 72 is to enable that to occur even though the employment ends before the full entitlement is taken.

79 The language of the section in its current form was first employed in the Employee Relations Act 1992. The rewriting in that Act of the obligation derived from the Industrial Relations Act 1979 in what might be called 'plain English' was done against a background of the authorities, particularly Barelli's Bakeries and Circle Realty. It is difficult to see that the inclusion of the words 'on that day' were intended to get rid of the line of authority that has been so well established in relation to workers entitlements under industrial laws designed to advance the interests of employees at the expense of employers. The legislature must be taken to have known of the line of authority that relates to obligations of the same character as are the subject of the LSLA.[117]

80 The fact that sub-s 72(2) purports to fix a time at which the payment is to be made does not give it the same character as Sloggett v Adams. In that case, the notice did not, as King CJ observed in Leydon v Forrest[118] seek to impose a continuing obligation in its terms. The notice directed that the required action be taken within the specified time. The prohibited omission therefore occurred immediately at the time it expired and the notice could not be complied with thereafter. In my view, the language of sub-s 72(2), although equivocal, is analogous to the language upon which the Full Court opined in Barelli's Bakeries and O'Bryan J considered in Circle Realty.

81 The fact that an employer found to have failed to comply with the obligation imposed by sub-s 72(2) may also be ordered to pay the outstanding leave entitlement,[119] which could be sued for independently under s 160 within 6 years 'after the employee's entitlement to the money arises',[120] has, in my view, little bearing on the characterisation of the offence created by sub-s 72(2) of the LSLA. True it is, that by characterising the provision as giving rise to a continuing offence, the opportunity to recover unpaid long service leave entitlements may persist beyond the 6 year limitation period. But the power of the Industrial Division of the Magistrates' Court to pay 'any amount that the employee was underpaid and that is still owed to the employee' in addition to imposing a penalty for the offence (under s 161 of the LSLA) is discretionary. The Court 'may' order the employer to pay that unpaid entitlement. Like all discretionary powers, this must be exercised judicially, that is, by reference to relevant considerations and upon facts and matters connected with or leading up to the matter, and this will include the fact that the employee has sat on their rights, if that is the case.

82 The fact that other offences created in the LSLA have different and longer express limitation periods does not, in my view, detract from this analysis. By way of example, s 80 creates offences for failing to keep long service leave records, retaining them for at least 7 years, and for making false or misleading statements in those records. As I have mentioned (see [20] above), that section specifies a 5 year limitation period peculiar to offences relating the keeping and retention of those records. The difference in the subject matter is obvious, and the necessity to place a limit on prosecutions follows from the limitation on the period over which they are to be kept. In other words, the subject matter and purpose of the provision is quite different from the subject matter and purpose of sub-s 72(2) of the LSLA.

83 It is not helpful to analyse the provisions in other legislation creating continuing offences, to which Counsel for Joseph referred, albeit in passing, to see if some pattern emerges.[121] No submissions were made based on any analysis of the other legislation creating continuing offences. Nothing profitable is to be gained by merely referring to the fact that in other legislation there is express provision for continuing offences.

84 In the context of the LSLA and having regard to the subject matter and purpose of sub-s 72(2) of the LSLA, and the Act more broadly, the words 'on that day' are apt to identify the time at which the breach of the sub-section begins and does not identify a completed offence. The offence created by sub-s 72(2) of the LSLA, once committed, is extensible and continues day by day from that time until the payment required is made. It is, in my view, a continuing offence.

85 For these reasons, the learned County Court Judge committed no error on the face of the record, nor was there any jurisdictional error, and the proceeding should be dismissed with costs. I will hear the parties as to the appropriate orders.

[1] By originating motion filed 13 January 2017.

[2] Justice Ginnane made orders on 8 August 2017 referring the hearing and determination of the proceeding to me pursuant to r 77.05 of the Rules_._

[4] Under s 60 of the LSLA, continuous employment in the one business counts towards long service leave, even where (as in this case) there were several changes in the ownership of the business over the relevant period.

[5] The affidavit of David Joseph sworn 10 January 2017 ('the Joseph Affidavit'), Exhibit DJ-2.

[6] Joseph Affidavit, Exhibit DJ-2; Court Book('CB')-14.

[7] Joseph Affidavit, Exhibit DJ-3; CB-16-28.

[8] Joseph Affidavit, Exhibit DJ-4; CB-29-40.

[9] [1965] VicRp 79; [1965] VR 615 ('Barelli's Bakeries').

[10] [1980] VicRp 44; [1980] VR 459 ('Circle Realty').

[22] By s 111 of the Sentencing Act 1991, a penalty set out at the foot of a provision of an Act must be construed as indicating that a contravention (whether by act or omission) of the provision is an offence against the Act punishable on a finding of guilt (with or without recording a conviction as required by s 7) by a penalty not exceeding that set out. A penalty unit is defined, in effect, by s 110 of that Act as stating a number of dollars equal to the product obtained by multiplying the number of penalty units by the amount fixed from time to time by the Treasurer under s 5(3) of the Monetary Units Act 2004.

[23] The Chief Administrator is defined in s 4 of the LSLA.

[28] Ta v Thompson [2012] VSC 446 [30], footnote 20; Gurappaji v Tonkin [2015] 45 VR 324 [23].

[29] This summary is taken from Gurappaji v Tonkin [2015] 45 VR 324 [24]-[25].

[30] [1995] HCA 58; (1995) 184 CLR 163.

[31] Craig v South Australia [1995] HCA 58; (1995) 184 CLR 163, 175-6.

[32] Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation [1981] HCA 26; (1981) 147 CLR 297, 320 (Mason and Wilson JJ).

[33] Wilson v Anderson (2002) 213 CLR 401, 418.

[34] Murray Gleeson, 'The Meaning of Legislation: Context, Purpose and Respect for Fundamental Rights' (2009) 20 Public Law Review 26, 27; Richard Elkins & Jeffrey Goldsworthy, 'The Reality and Indispensability of Legislative Intentions' [2014] 36:39 Sydney Law Review 39, 40.

[35] Wenn v Attorney-General (Vic) [1948] HCA 13; (1948) 77 CLR 84, 122 (Dixon J); Saeed v Minister for Immigration and Citizenship [2010] HCA 23; (2010) 241 CLR 252 [31]; Momcilovic v The Queen (2011) 245 CLR 1, 136 [327] (Hayne J) ('Momcilovic').

[36] Momcilovic, 136 [327] (Hayne J).

[37] Momcilovic, 133 [315] (Hayne J), referring to Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355, 381-2 [69]-[70] ('Project Blue Sky').

[38] (2009) 239 CLR 27; [2009] HCA 41 [47] (Hayne, Heydon, Crennan and Kiefel JJ).

[39] Roy Morgan Research Centre Pty Ltd v Commissioner of State Revenue (Vic) [2001] HCA 49 [9]; [2001] HCA 49; (2001) 207 CLR 72 (Gaudron, Gummow, Hayne and Callinan JJ), [46] (Kirby J); Stevens v Kabushiki Kaisha Sony Computer Entertainment (2005) [2005] HCA 58 [30]; [2005] HCA 58; 224 CLR 193 (Gleeson CJ, Gummow, Hayne and Heydon JJ) [167]-[168] (Kirby J); Carr v Western Australia (2007) [2007] HCA 47; 232 CLR 138 [6] ('Carr') (Gleeson CJ); Director of Public Prosecutions (Vic) v Le (2007) [2007] HCA 52 [85]; [2007] HCA 52; 232 CLR 562 (Kirby and Crennan JJ); Northern Territory v Collins [2008] HCA 49 [99]; [2008] HCA 49; (2008) 235 CLR 619 (Crennan J) ('Collins').

[40] Nominal Defendant v GLG Australia Pty Ltd (2006) [2006] HCA 11 [22]; [2006] HCA 11; 228 CLR 529 (Gleeson CJ, Gummow, Hayne and Heydon JJ) [82]-[84] (Kirby J). See also Combet v Commonwealth [2005] HCA 61 [135]; (2005) 224 CLR 494 (Gummow, Hayne, Callinan and Heydon JJ); Collins.

[41] Hilder v Dexter [1902] AC 474, 477-478 (Earl of Halsbury LC).

[42] Commissioner for Railways (NSW) v Agalianos [1955] HCA 27; (1955) 92 CLR 390, 397 (Dixon CJ), quoted with approval in Project Blue Sky [69] (McHugh, Gummow, Kirby and Hayne JJ).

[43] Re Heydon's Case [1584] EngR 9; (1584) 3 Co Rep 7a at 7b ; 76 ER 637 at 638.

[44] Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27; [2009] HCA 41 [47] (Hayne, Heydon, Crennan and Kiefel JJ) ('Alcan').

[45] DPP v Walters [2015] VSCA 303 [4] ('Walters'), citing Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355, 382 [71].

[46] Walters [4] citing Commissioner of State Revenue v EHL Burgess Properties Pty Ltd [2015] VSCA 269 [74].

[49] See s 75(2), 80(5) and 160(3) of the LELA.

[50] R v Wimbledon Justices; Ex parte Derwent [1953] 1 QB 380 at 390.

[51] The Business Names Act 1962 s 28(1), the Casino Control Act 1991 s 150A(2); the Dangerous Goods Act 1985 s 45(2), the Local Government Act 1989 s 115(1)(b), the Occupational Health and Safety Act 2004, ss 151A(7), 151B(3), 151C(3), 151D(3) and 151E(3), the Planning and Environment Act 1987 s 127(b), the Sex Work Act 1994 s 77(1) and the Water Act 1989 ss 23(6), 33D(2), 47A(2), 63(2), 84(2), 143(1)(c), 145(1) and (4), 146 and 148(1) and (4).

[52] [1922] ArgusLawRp 105; [1923] VLR 58, 64-5. Approved in Ingamells v Petroff [1934] HCA 8; (1934) 50 CLR 451 at 459 per Starke J.

[53] (1953) 70 WN (NSW) 206.

[54] [1973] VicRp 2; [1973] VR 21.

[55] [1940] HCA 37; (1940) 64 CLR 221.

[56] [2000] NSWCCA 416; (2000) 121 A Crim R 152.

[58] [1957] AR 356 ('Lindrum').

[59] Judge Dethridge, 11 June 1971 (Unreported).

[61] [1973] TAS SR 333 ('Ketchell').

[63] Barelli's Bakeries, 623; Cf Ketchell, 37.

[64] See s 1 of the LSLA.

[66] Brammer v Deery Hotels Pty Ltd (1974) 22 FLR 276, 279.

[68] [1965] VicRp 79; [1965] VR 615, 620.

[69] It is noted that Cantor J in Robins & Sons Ltd v Maloney (No 2) (1935) IR 155 identified the same two classes of continuing offences.

[70] [1922] ArgusLawRp 105; [1923] VLR 58.

[73] Norman Michael O'Bryan, the son of Sir Norman O'Bryan who was the Senior Puisne Judge in the Barelli's Bakeries decision.

[76] (1953) 70 WN (NSW) 206 (Street CJ, Owen and Clancy JJ).

[77] (1896) P. 251, at p. 254.

[78] Section 472 placed a continuous burden upon occupiers of land. Section 473, under which the charge was laid, placed a specific burden upon a specific owner or occupier of land to comply with a specific notice which constituted the offence.

[79] Sloggett v Adams (1953) 70 WN (NSW) 206 at 208; EPA v Alkem Drums Pty Ltd, [2000] NSWCCA 416; (2000) 121 A Crim R 152 [9] ('EPA v Alkem Drums').

[80] Ibid, 208; EPA v Alkem Drums [10]

[81] [1973] VicRp 2; [1973] VR 21.

[82] [1973] VicRp 2; (1973) VR 21, 26.

[84] [1922] ArgusLawRp 105; [1923] VLR 58.

[87] (1935) AR (NSW) 155 ('Robins v Moloney').

[88] For example, Commissioner for Railways v Hunt (1940) AR (NSW) 90 and Schreiber v Santora (1935) AR (NSW) 168. Robins v Moloney concerned a failure to give notice of an existing indenture of apprenticeship within a month of the award.

[90] (1935) AR (NSW) 155, 158.

[92] [1940] HCA 37; (1940) 64 CLR 221 at 237.

[94] J Robins & Sons Ltd v Maloney [1935] IR 155; Commissioner for Railways v Hunt [1940] IR 90; Bridge v Lindrum [1957] AR 356; 57 SR (NSW) 356; John G Crowder & Sons Pty Ltd v Speedy [1971] CR 177 and Dickman v M & M Sirianni Pty Ltd [1975] 1 AC (Unreported).

[96] [1957] AR 356 (McKeon J).

[97] the Annual Holidays Act 1944.

[100] (1990) 19 NSWLR 449.

[101] (1980) 23 SASR 364.

[103] See also Nottage v Tarac Manufacturers (Adelaide) Ltd [1941] SASR 102; Ex parte Schaefer; Re Field& Anor (1943) 60 WN (NSW) 99.

[104] Industrial Appeals Court (Vic), Judge Dethridge, 11 June 1971 (Unreported).

[105] [1957] AR 356. The case not followed was Sutherland v Jaqueline.

[106] [1975] 1 AC ('Dickman'). The report of this decision in the Court book is an uncertified and incomplete typescript.

[107] [1973] TAS SR 333 ('Ketchell').

[108] Counsel for the first defendant accepted that jurisdictional error arose if the offence was a completed offence on 7 December 2012: Outline of submissions of first defendant 23 March 2017 [14]; CB0149 at CB0153.

[109] As the Employee Relations Act 1992.

[112] Worthington's Outline of Submissions [14].

[116] The fiction created by sub-s 72(1) of the LSLA may have the effect that should the employee take up another position (for hire or award) immediately after ending their employment, the employee may be liable to be charged under sub-s 78(1) for working whilst on long service leave.

[117] See the observations of Spicer CJ in Brammer v Deery Hotels Pty Ltd [1974] 22 FLR 276, 279.

[118] (1980) 23 SASR 364, 372.

[121] These are referred to above at footnote 51.