Rose v Hvric

High Court of Australia|1963-07-01|Before: Owen JJ, So Isaacs J, As Keating J

High Court of Australia Kitto, Taylor and Owen JJ. Rose v Hvric [1963] HCA 13

The Court delivered the following written judgment: -

The purpose of this appeal is to obtain the opinion of the Court upon a question similar to that which was decided by the Full Court of the Supreme Court of Victoria in Healey v. Festini [4] . The question is whether on a second or subsequent conviction of a person before a court of petty sessions under s. 154 of the Licensing Act 1958 Vict. the court is authorized by s. 74 of the Justices Act 1958 Vict. to impose a pecuniary penalty instead of a term of imprisonment. Both Acts were proclaimed to commence on 1st April 1959, and are therefore to be construed as having come into operation simultaneously: see Acts Interpretation Act 1958 Vict., s. 4 (2).

Section 74 (1) of the Justices Act must be quoted verbatim. It provides: "Except where otherwise expressly enacted when a court of petty sessions has authority under this or any other Act now or hereinafter in force to impose imprisonment for an offence punishable on summary conviction and has not authority to impose a penalty for that offence the court when adjudicating on such offence may notwithstanding if it thinks that the justice of the case will be better met by a penalty than by imprisonment impose a penalty of not more than One hundred pounds".

Section 154 (1) of the Licensing Act provides (so far as material) that every person who sells any liquor without a licence authorizing such sale (a) shall be liable for a first offence to a penalty of not less that £25 nor more than £50 or to imprisonment for a term of not less than three nor more than six months; (b) shall be liable for a second or subsequent offence to imprisonment for a term of not less than six nor more than twelve months. The Supreme Court by a majority held in the case cited that even for a second or subsequent offence under the predecessor of this section a court of petty sessions might lawfully impose a penalty instead of imprisonment, because it was not "otherwise expressly enacted" and the general provision now contained in s. 74 (1) of the Justices Act therefore applied.

The argument before us was largely directed to the meaning and effect of the introductory words of s. 74 (1). In Gourlay v. Casey [1] . the expression "unless otherwise expressly provided", as used in the Insolvency Act 1915 Vict., was held to mean "unless some inconsistent provision is expressly made". The qualifying words with which s. 74 of the Justices Act begins may be similarly paraphrased, but some analysis even of the paraphrase is required.

Notwithstanding a doubt expressed by Lord Dunedin in In re Silver Bros. Ltd. [2] , a particular enactment may be effectual to exclude the general provisions of s. 74 (1) of the Justices Act though it makes no special reference to it: see Lord Blackburn's speech in Metropolitan District Railway Co. v. Sharpe [3] . That this must be so becomes obvious when the case is considered of a particular enactment later in time of commencement than s. 74 (1). However that provision were framed, it could not detract from the operation of the later statute according to its true construction. Because this is so, exceptive words such as those which introduce s. 74 (1) have no legal effect beyond saving earlier enactments which otherwise would be inconsistent with the provision introduced. In regard to later enactments they "go no farther than the general law": Garnett v. Bradley [4] and "are not really necessary because if the later Act shows a contrary intention the earlier enactment cannot control it. But they remind us of the general rule". So Isaacs J. observed in Bennett v. Minister for Public Works (N.S.W.) [5] , speaking of the exceptive expression "unless the contrary intention appears". Whatever the verbal formula employed, it cannot have in regard to later legislation any greater force or value than that expression. As Keating J. remarked in Chorlton v. Lings [6] , "to do more would be exceeding the competency of parliament with reference to future legislation" [7] .

[1932] A.C. 514, at p. 523. 2. (1880) 5 App. Cas. 425, at p. 441. 3. (1878) 3 App. Cas. 944, at p. 965 4. (1908) 7 C.L.R. 372, at p. 384. 5. (1868) L.R. 4 C.P. 374. 6. (1868) L.R. 4 C.P., at p. 395.

What, then, is the point of the insistence in such an exceptive expression as that which introduces s. 74 (1) of the Justices Act that the general provision shall apply except where otherwise "expressly" enacted? In appropriate contexts "expressly" may be used as the antonym of "impliedly", as it is in s. 2 (2) of the same Act and in the statement that "an express repeal of or exemption from an earlier enactment is not more effectual than if it were created by implication": Goodwin v. Phillips [1] . But this cannot be the sense of the word in s. 74 (1), for the reason which the statement just quoted provides. The word merely serves to emphasize the generality of the main provision by making clear that no case is outside that provision unless that is the necessary result of the operation of another enactment according to the intention it manifests: see Metropolitan District Railway Co. v. Sharpe [2] and Chorlton v. Lings [3] .

(1908) 7 C.L.R. 1, at p. 16. 2. (1880) 5 App. Cas. 425. 3. (1868) L.R. 4 C.P. 374.

But while in s. 74 (1) "expressly" cannot be understood as excluding enactments by implication, the distinction is not to be overlooked between a mere inference from an enactment and the enactment itself. It is a distinction that was made by Lord Denman C.J. in the case of Reg. v. St. Edmunds, Salisbury [4] when he said: "While we hold that a positive enactment is not to be repealed by inference we must also act on the maxim, " Leges posteriores priores contrarias abrogant " wherever it comes into operation" [5] . The contrast is between, on the one hand, a conclusion from what has been enacted that a further provision is a logical next step, the legislature not having taken that next step for itself, and, on the other hand, a conclusion that a provision which has been made means more than it explicitly says. "An implication is included in and part of that which is expressed: an inference is something additional to what is stated": Lubrano v. Gollin & Co. Pty. Ltd. [6] . Thus, while an exception from the operation of a statutory provision may be effected by an inconsistent implication in a later provision (or, with the aid of such exceptive words as those of s. 74 (1), by such an implication in an earlier enactment), it cannot result from an enactment which is not inconsistent in meaning and therefore in operation, even though the latter enactment provide ground for a conclusion that the draftsman's train of thought, if logically pursued, would have led him to enact the exception. Explicit or implicit contradiction is efficacious; merely "inferential contradiction", as Lord Hatherley called it in Attorney-General v. Great Eastern Railway Co. [7] , is not. The general provision of s. 74 (1) of the Justices Act is accordingly prefaced by words which have a saving effect as regards earlier enactments and serve as a reminder in relation to later, meaning in regard to both that the general provision which follows is not to be denied any of its operation save by something actually inconsistent with it in the operation of another enactment.

(1841) 2 Q.B. 72 [114 E.R. 30]. 2. (1841) 2 Q.B., at p. 84 [114 E.R., at p. 35]. 3. (1919) 27 C.L.R. 113, at p. 118. 4. (1873) L.R. 6 H.L. 367, at p. 375.

What has been said of earlier legislation applies equally to contemporaneous enactments. The problem in the present case, therefore, is to be solved by comparing the general provision of s. 74 (1) with the particular provision of s. 154 (1) of the Licensing Act and seeing whether they are inconsistent with one another in operation. The latter does not contradict the former in terms; but the appellant contends that the two cannot live together (to use Lord Dunedin's expression [1] , because s. 154 (1) exhibits an intention to deal exhaustively with the topic of the punishment which may be imposed for the offence of selling liquor without a licence, and that therefore it should be construed as implying that in the case of a second or subsequent conviction a pecuniary penalty shall not be imposed. If the implication is there, that is the end of the matter; and it would be there, clearly enough, if the meaning of the section were that its provisions should constitute the whole law as to punishment for the offence mentioned: cf. Maybury v. Plowman [2] .

[1932] A.C., at p. 523. 2. (1913) 16 C.L.R. 468, at pp. 479, 480.

But whether s. 154 (1) means to exhaust the topic is a question. Care must be taken in answering it not to forget the distinction between the meaning of a provision and the underlying policy to which it may be supposed to point. The provision in par. (b) that a person shall be liable for a second or subsequent offence to imprisonment for a term of not less than six nor more than twelve months, especially standing as it does in contrast with the provision in par. (a) for a penalty or imprisonment for a first offence, undoubtedly shows that liability to a penalty for a second or subsequent offence is deliberately omitted. From this perhaps (though not certainly) a policy may be deduced, justifying an inference that if the draftsman had gone on to provide explicitly whether a penalty might be imposed, he would more likely than not have elected against it. But he made no provision on the point in terms, and an implication of intention not to authorize a penalty, justified as it is by the maxim expressio unius est exclusio alterius, falls obviously short of an implication that a penalty shall not be imposed under an authority to be found elsewhere. Both s. 154 (1) of the Licensing Act and s. 74 (1) of the Justices Act are expressed affirmatively, and the question for decision becomes whether s. 154 (1), notwithstanding its affirmative form, contains a negative implication precluding the application of the general provision of s. 74 (1).

Questions of this nature are usually questions of implied repeal. Even before Dr. Foster's Case [1] it was settled law that a later affirmative enactment does not repeal an earlier affirmative enactment unless the words of the later are "such as by their necessity to import a contradiction": see per Lord Blackburn in Garnett v. Bradley [2] . There must be in the later provision an actual negation of the earlier. Ex hypothesi there is no negation in words, but there must be a negation as a matter of meaning. Lord Chief Baron Comyns expressed the point by saying that affirmative words do not take away a former statute but where they "in sense contain a negative": Com. Dig. tit. Parliament, R. 25. Only where that occurs is the general test satisfied which has often been laid down in respect of repeal by implication, that the contrariety between the earlier and later enactments must be such that "effect cannot be given to both at the same time": Kutner v. Phillips [3] ; Hack v. Minister for Lands [4] ; see generally Hill v. Hall [5] ; Flannagan v. Shaw [6] .

(1614) 11 Co. Rep. 56b [77 E.R. 1222]. 2. (1878) 3 App. Cas. 944, at p. 966. 3. [1891] 2 Q.B. 267, at p. 272. 4. (1905) 3 C.L.R. 10, at pp. 23, 2?? 5. (1876) L.R. 1 Ex. D. 411, at pp. 413, 414. 6. [1920] 3 K.B. 96.

Then, is there in par. (b) of s. 154 (1) a negative implication forbidding the imposition of a penalty in lieu of imprisonment for a second or subsequent offence? We do not think that there is. Both s. 154 (1) (b) and s. 74 (1) can work together, just as easily as can s. 74 (1) and any other provision conferring authority to impose imprisonment but not a penalty. The section of the Licensing Act provides generally for a second or subsequent offence. The Justices Act does not by s. 74 (1) contradict either what the former says or anything it implies. It is true that for a second or subsequent offence s. 154 (1) (a) of the Licensing Act prescribes a liability not merely to imprisonment but to a minimum term of imprisonment. In relation to such a provision, however, s. 74 (1) can take effect exactly as it does where no minimum term is prescribed, for its operation is merely to add a different kind of liability, less severe, as an alternative which a court of petty sessions may adopt where it thinks that "the justice of the case will be better met" thereby. There is no inconsistency. The general provision of s. 74 (1) is opposed not by anything that is enacted in s. 154 (1), but at most by an inference of an intention which has not reached the point of enactment. There is therefore nothing to prevent its application to second or subsequent convictions under s. 154 (1).

In our opinion the decision of the Supreme Court in Healey v. Festini [1] . was correct, and this appeal should be dismissed.

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