Shoebridge v Pasta Master Pty Ltd [2000] VSC 14

Supreme Court of Victoria|2000-02-07|Before: Warren J

The application for compensation was resisted in the Magistrates' Court below by the employer. The employer argued that the provisions of s.86(1) of the Sentencing Act did not apply retrospectively, that is, did not relate to the circumstances of the death of Leon Shoebridge as his death occurred prior to the commencement of the legislation.

The magistrate reserved his decision until 13 July 1999 when the application was dismissed and reasons provided. The magistrate found that for the appellants' application to proceed it would involve applying the amending legislation on a retrospective basis. The magistrate held that as the legislature had not expressed a clear intent of retrospective application, on the basis of well-established legal principles, the amendment made by s.74 of the Victims of Crime Assistance Act to s.86 of the did not apply to the appellants. The formal order made on 13 July 1999 was that the application was refused. As a result, the appellants seek to appeal on a question of law against such order.

The question of law on the appeal to be determined by this court was ordered by the Master to be whether on a proper construction of s.86 of the Sentencing Act 1991 (Vic) ("the Act"), an application for compensation for pain and suffering may be made against an offender found guilty of or convicted of an offence committed before 1 July 1997, being the date of commencement of operation of s.86 of the Act as amended by s.74(1) of the Victims of Crime Assistance Act 1996 (Vic).

Prior to 1 July 1997, s.86(1) of the Sentencing Act limited the power of a court in making a compensation order to circumstances where an applicant suffered loss or destruction of or damage to property as a result of an offence. Section 86(1) provided:

"86. Compensation order (1) If a court finds a person guilty of, or convicts a person of, an offence it may, on the application of a person suffering loss or destruction of, or damage to, property as a result of the offence, order the offender to pay any compensation for the loss, destruction or damage (not exceeding the value of the property lost, destroyed or damaged) that the court thinks fit."

Arising from amendments made to the Sentencing Act by s.74 of the Victims of Crime Assistance Acts, s.86(1) was extended to include claims for pain and suffering. In addition, the provisions of the Victims of Crime Assistance Act inserted new sub-sections (9A), (9B), and (9C) in s.86 of the Sentencing Act.

Since 1 July 1997 s.86 of the Sentencing Act provided:

(1) If a court finds a person guilty of, or convicts a person of, an offence it may, on the application of a person suffering loss or destruction of, or damage to, property or pain and suffering as a result of the offence, order the offender to pay any compensation for the loss, destruction or damage (not exceeding the value of the property lost, destroyed or damaged) or for the pain and suffering that the court thinks fit.

(2) If a court decides to make an order under sub-section (1) it may in determining the amount and method of payment of the compensation take into account, as far as practicable, the financial circumstances of the offender and the nature of the burden that its payment will impose.

(3) A court is not prevented from making an order under sub-section (1) only because it has been unable to find out the financial circumstances of the offender.

(4) In making an order under sub-section (1) the court may direct that the compensation be paid by instalments and that in default of payment of any one instalment the whole of the compensation remaining unpaid shall become due and payable.

(5) An order under sub-section (1) -

(a) may be made on an application made as soon as practicable (and, in the case of an application for compensation for pain and suffering, no later than 6 months) after the offender is found guilty, or convicted, of the offence; and

(b) may be made in favour of a person on an application made -

(i) by that person; or

(ii) on that person's behalf by the Director of Public Prosecutions or (if the sentencing court was the Magistrates' Court) the informant or police prosecutor.

(6) Nothing in sub-section (5)(b)(ii) requires the Director of Public Prosecutions or the informant or police prosecutor (as the case requires) to make an application on behalf of a person.

(7) On an application under this section -

(a) a finding of any fact made by a court in a proceeding for the offence is evidence and, in the absence of evidence to the contrary, proof of that fact; and

(b) the finding may be proved by production of a document under the seal of the court from which the finding appears.

(8) A court must not exercise the powers conferred by this section unless in the opinion of the court the relevant facts sufficiently appear from evidence given at the hearing of the charge or from the available documents, together with admissions made by or on behalf of any person in connection with the proposed exercise of the powers.

(9) In sub-section (8) 'the available documents' means -

(a) any written statements or admissions which were made for use, and would have been admissible, as evidence on the hearing of the charge; or

(b) the depositions taken at the committal proceeding; or

(c) any written statements or admissions used as evidence in the committal proceeding.

(9A) A court must not exercise the powers conferred by this section to order an offender to pay compensation for pain and suffering without giving the offender a reasonable opportunity to be heard on the application.

(9B) On deciding to grant or refuse an application for compensation for pain and suffering, the court must -

(a) state in writing the reasons for its decision; and

(b) cause those reasons to be entered in the records of the court.

(9C) The failure of a court to comply with sub-section (9B) does not invalidate the decision made by it on the application.

(10) Nothing in this section takes away from, or affects the right of, any person to recover damages for, or to be indemnified against, any loss, destruction or damage to property or to recover damages for pain and suffering so far as it is not satisfied by payment or recovery of compensation under this section.

(11) References in this section to property include references to a motor vehicle."

The Victims of Crime Assistance Act was silent as to whether the amending provisions contained in s.74 of that Act were intended to operate retrospectively or prospectively.

Mr M. Dreyfus QC who appeared with Mr R. Heath for the appellants submitted that the application by the appellants under the Sentencing Act could only be brought upon the conviction, if any, of the employer. As the conviction was entered, it was argued, after the commencement of the amendment to s.86(1) of the Sentencing Act the appellants were entitled to bring their application. It was submitted that the amendment to s.86 was intended to have prospective application, that is, it was intended to apply in respect of convictions or findings of guilt occurring after the commencement of the amendment notwithstanding that the offence that led to the conviction was committed before the amending legislation came into operation.

For the respondent, three preliminary submissions were made. Firstly, that the appellants lacked standing to bring the appeal as the application by the appellants in the Magistrates' Court below under s.86 of the Sentencing Act was not a "criminal" or "civil" proceeding for the purposes of the Magistrates' Court Act. The argument was developed on the basis that as such there was no entitlement under s.92 or s.109 of the Magistrates' Court Act to bring the proceedings before this court by way of appeal. Section 92(1) of the Magistrates' Court Act entitles a party to a "criminal proceeding" to appeal to this court on a question of law from a final order of the court in that proceeding. Section 109 of the Act entitles a party to a civil proceeding to appeal to the Supreme Court on a question of law from a final order in that proceeding. It was submitted on behalf of the employer that the application under s.86 of the Sentencing Act did not constitute either a criminal proceeding under s.92 or a civil proceeding under s.109 of the Magistrates' Court Act.

The expression "criminal proceeding" and "civil proceeding" are not defined by the Magistrates' Court Act. However, "proceeding" is defined, among other matters, as meaning "any matter in the Court including a committal proceeding". Given that a "proceeding" includes "any matter" the issue arises as to whether the expression "criminal" in s.92 and "civil" in s.109 of the Magistrates' Court Act before the expression "proceeding" qualifies the definition of "proceeding" as contained in s.3(1) of that Act. In my view it does not. The expressions "criminal" and "civil" do no more than categorise the nature of the proceeding for the purposes of the Magistrates' Court Act. In any event, s.86 of the Sentencing Act is concerned with circumstances where "a court" being in the present instance a Magistrates' Court finds a person guilty of or convicts that person of "an offence". The expression "offence" is not defined by the Magistrates' Court Act.

The application instituted by the appellants in the Magistrates' Court does raise the issue as to whether the application in the Magistrates' Court below was a civil or criminal proceeding. On the one hand the application can be triggered only under s.86 of the Sentencing Act where a party has been found guilty of or convicted of an offence. Ordinarily, an appeal against conviction of an offence in the Magistrates' Court, for example, would be brought under s.92 of the Magistrates' Court Act, the proceeding being viewed as a criminal proceeding. On the other hand, the application by the appellants for compensation might properly be regarded as a civil application that is triggered as a result of findings in a criminal proceeding. In my view the entitlement, if any, of a person to bring an application under s.86 of the Sentencing Act is properly characterised as a civil proceeding. It is a statutory right to seek civil damages. It follows, further, that in my view the application made by the appellants in the Magistrates' Court below constituted a civil proceeding. Accordingly, I am satisfied that the appeal was properly instituted by the appellants in this court under s.109 of the Magistrates' Court Act.

The second preliminary submission made on behalf of the employer was that even if the application by the appellants below constituted a proceeding under s.92 or 109 of the Magistrates' Court Act the order made by the magistrate did not constitute a final order as required under both provisions. In my view such submission is misconceived. Whilst the formal order made by the magistrate could desirably have been expressed so as to dismiss the application nevertheless the effect of the refusal by the magistrate below was to dismiss the application. It was submitted on behalf of the employer that all that the magistrate did was deal with a threshold issue and that as a consequence no final orders have been made. The fact remains that unless the order made by the magistrate is set aside on appeal the appellants cannot proceed with their application under s.86 any further. The order made by the magistrate was final in that respect; its effect was to finally determine the rights of the appellants as applicants under s.86 of the Sentencing Act. I consider that the order of the magistrate was intended to dispose of the application by the appellants and, therefore, the order was a final order in the sense that word bears in s.109 of the Magistrates' Court Act. An analogous situation was considered by the majority of the Appeal Division of this court in Camberwell v Camberwell Shopping Centre Pty Ltd [1994] VicRp 10; (1994) 1 VR 163, 173-175. It follows that I am satisfied that the order made by the magistrate below was final and that the second submission made on behalf of the employer in this court fails.

The third preliminary submission on behalf of the employer was that the appellants were not directly involved in the prosecution of the employer and, therefore, were not entitled to bring the application under the Sentencing Act. It was submitted as part of this argument that as a consequence the appellants were never "a party" for the purposes of s.86 of the Sentencing Act. In my view such submission is misconceived. Section 86(1) of the Sentencing Act contemplates that a person may bring an application under the section providing she or he can establish the suffering of loss or destruction of or damage to property or pain and suffering as a result of the relevant offence. In each case it will be a question of fact for the relevant court hearing an application under s.86(1) of the Sentencing Act to determine whether or not the person making the application has suffered such loss or destruction. Insofar as it may be necessary to determine whether the appellants were a "party" for the purposes of s.109 of the Magistrates' Court Act, for the reasons already stated I am satisfied that the appellants' application below constituted a civil proceeding. Clearly, the appellants were a party to such proceeding.

I turn to consider the substantive submissions on behalf of the defendant employer. It was submitted that the amendment to s.86(1) of the Sentencing Act did not operate retrospectively. On proper analysis the argument purported to be expressed on the basis that as the circumstances that related to the death of the deceased occurred prior to the commencement of the amendment to s.86 there was no entitlement to bring an application under that section notwithstanding that the employer was convicted after the commencement of the amendment. It is the latter issue that is the nub of the dispute between the appellants and the respondent.

In considering the retrospective or prospective application of amending legislation the usual starting point is the statement of the principles by Dixon CJ in Maxwell v Murphy [1957] HCA 7; (1957) 96 CLR 261, 267:

"The general rule of the common law is that the statute changing the law ought not, unless the intention appears with reasonable certainty, to be understood as applying to facts or events that have already occurred in such a way as to confer or impose or otherwise affect rights or liabilities which the law had defined by reference to past events."

The courts have considered on many occasions whether amending legislation is properly characterised as prospective or retrospective and, on occasions, have held that legislation which relates to events that occurred prior to the commencement of the amending legislation nevertheless renders the effect of the amending legislation prospective.

In Re a Solicitor's Clerk (1957) 1 WLR 1219 the court was concerned with an appeal against the disqualification of a solicitor's clerk on the ground of misconduct. The particular clerk had been convicted of larceny in 1953. Amending legislation was passed subsequently in 1956, that is, subsequent to the conviction enabling disqualification. The court held that the amending legislation was not retrospective as it enabled an order of disqualification to be made for the future. Lord Goddard CJ observed, at 1222, that " ... what happened in the past is the cause or reason for the making of the order, but the order has no retrospective effect".

In Robertson v City of Nunawading [1973] VicRp 81; (1973) VR 819 the Full Court of this court considered circumstances where a sub-divider of non-residential land filed a notice of intention to sub-divide. Shortly thereafter the Local Government Act 1958 was amended with the consequence that the local municipal council was entitled to request the payment of a security from the sub-divider of the land. The issue arose as to whether or not the sub-divider was obliged to pay the security as requested by the council as a result of the amending legislation. In the judgment of the Full Court, at 823, the court observed:

"As is so often the case in similar circumstances resort has then to be to any presumption which operates to indicate what was intended to any interpretative statutory provisions. The common law principle which is applicable may for present purposes be taken from two statements, recently cited by Gibbs, J., in Mathieson v. Burton [1971] HCA 4; (1971), 124 C.L.R. 1, at p. 22; (1971) A.L.R. 533, one from the judgment of Wright, J., in Re Athlumney; Ex parte Wilson, [1898] 2 Q.B. 547, at pp. 551-2; [1895-91] All E.R. Rep. 329, the other from the judgment of Dixon, J., in Maxwell v. Murphy [1957] HCA 7; (1957), 96 C.L.R. 261, at p. 267; [ 1957 ] A.L.R. 231."

The Full Court in Robertson cited the extract of the judgment of Dixon CJ in Maxwell v Murphy referred to already and then made the observation:

"It is to be observed that this principle is not concerned with the case where the enactment under consideration merely takes account of antecedent facts and circumstances as a basis for what it prescribes for the future, and it does no more than that: Maxwell on Interpretation of Statutes, 12th ed., pp. 216-7. The principle is concerned with the case where the enactment would apply to these antecedent facts and circumstances in such a way 'as to impair an existing right or obligation' or 'as to confer or impose or otherwise affect rights or liabilities which the law had defined by reference to the past events."

Significantly for present purposes, the Full Court in Robertson proceeded then to observe:

"As Fullagar, J., said in Ku-Ring-Gai Municipal Council v. Attorney-General (N.S.W.) [1957] HCA 61; (1957), 99 C.L.R. 251, at p. 269; [1957] A.L.R 953 - 'What the rule really means is that prima facie a statute must not be construed so as to change the legal character or the legal consequences, of past events and transactions."

Later, in an unreported judgment of Re the Crimes Compensation Tribunal and Laufenberg & Ors Crockett J of this court considered whether the then Crimes Compensation Tribunal was correct in refusing applications for compensation under the Criminal Injuries Compensation Act 1972 (unreported judgment delivered on 30 April 1986 in matter No.86/0327). The relevant circumstances were that the appellants suffered an injury as a result of a criminal act. Each of the appellants at the relevant time was living with the offender as a member of his household. At the time the criminal acts occurred the legislation excluded orders for compensation where a victim was married to the offender or was a member of the offender's household. Later, the legislation was amended to permit orders for compensation in such circumstances. The Criminal Injuries Compensation Act was amended by the Criminal Injuries Act 1980. Prior to the amendment s.14(2) of the Criminal Injuries Compensation Act restricted the powers of awarding compensation of the Crimes Compensation Tribunal as follows:

"s.14(2) The Tribunal shall not make an order for compensation under this Act - ... (c) if the victim was, at the time when the injury was sustained, living with the offender as his wife or her husband or as a member of the offenders' household".

As a result of amendments contained in s.2 of the Criminal Injuries Act 1980 s.14 of the Act was amended as follows:

"s.14(2) The Tribunal shall not make an order for compensation under this Act - ... (c) if the victim was, at the time when the injury was sustained, living with the offender as his wife or her husband or as a member of the offenders' household - unless the offender has been convicted of inflicting the injury the subject of the application for an award of compensation under this Act or has, in any proceedings in which he is charged with an offence on inflicting the injury, pleaded 'Guilty' to the information or complaint or otherwise admitted that he inflicted the injury as charged or been found to be insane at the time of the commission of the alleged offence; (4) Unless otherwise expressly provided an order for compensation may be made under this Act whether or not any person is prosecuted for or convicted of an offence arising out of the criminal Act or omission." (The underlining indicates the amendments.)

On a case stated, Crockett J was concerned with whether the amendment to the Criminal Injuries Compensation Act applied to the applicants. In the matter the offender pleaded guilty and was convicted of a number of counts of incest and indecent assault with respect to the applicants.

In his judgment Crockett J, at 8a-10a, analysed the authorities. After commencing with the previously cited principles expressed by Dixon CJ in Maxwell v Murphy, Crockett J turned to consider the application of legislative princples:

"But what is meant by giving an Act retrospective operation? As Dr. Pearce pointed out in his "Statutory Interpretation in Australia", 2nd Ed. at p.149: 'Two possible approaches are open. It can be said that an Act operates retrospectively if it impairs an existing right or obligation or creates a new right or obligation. Henceforward that right or obligation is not as it was before. Alternatively, it is possible to say that an Act is only retrospective in effect if it provides that at a past date the law is to be taken to be that which it was not. Few Acts do not interfere with some existing right. The usual intention of a legislature is to make some change in an existing course of conduct. It is, therefore, appropriate to talk in terms of retrospectivity only where an Act affects rights by changing them with effect prior to the commencement of the amending Act'. The distinction between the two approaches is made clear in Re A Solicitor's Clerk (1957) 1 W.L.R. 1219. In that case the clerk, despite having been convicted of an offence of larceny, could not under the relevant Act be prohibited from employment in a solicitor's office. The Act was then amended so as to allow a prohibition order to be made in the case of such a conviction. An order was made in the case of the clerk. He contended that the making of such an order was to give the amendment retrospective operation. The court held that there was no such retrospectivity. The Act had future operation only - even if the conduct on which it depended had taken place in the past. On the other hand, the Act would have had retrospective operation if anything done before its commencement had been declared void or voidable. In a case not dissimilar in some respects from the present, Dubbo Base Hospital v Jones (1979) 1 N.S.W.L.R. 225, it was made clear that, where a provision gives a fresh right to an existing class of persons, then to hold that those forming the class at the date of the enactment of the provision on as well as those who joined it after that date should have the benefit of that right was not to hold that the enactment was operating retrospectively. I take a similar view of the legislation in the present case. In my opinion, the amendment operates so as to allow the appellants to claim the relief sought by them provided that, at the time of the making of the application, the offender with whom the appellant had been living as a member of his household had been convicted of inflicting the injury the subject of the application for an award of compensation. In so concluding, I do not consider that the amending legislation has been given a retrospective effect. It has this effect only if it - to use Counsel's words - "changes yesterday's laws in relation to yesterday's actions". This view of the legislation means that no question arises as to whether, in the present case, the presumption against retrospectivity should be treated as having been rebutted; though had the question to be considered, I would have been disposed to take the same view of the legislation as did Adam, J. take of the Act he had to construe in Doro v Victorian Railways Commission [1960] VicRp 12; (1960) V.R. 84 at p.86."

The issue of retrospectivity was visited in La Macchia v Minister for Primary Industry (1986) 72 ALR 23 where the Full Court of the Federal Court was concerned with an appeal against cancellation of a fishing licence. The applicant was convicted of an offence under the Fisheries Act 1952 (Cth) on 13 June 1985. On 31 August 1985 the legislation was amended empowering the relevant Minister to cancel a licence where the holder of a licence was convicted of an offence against the Act. Subsequent to the conviction and the amending legislation the Minister determined to cancel the licence on 14 October 1986. On appeal it was argued that the amending legislation did not empower the Minister to cancel the licence as it would involve giving the legislation retrospective effect and which effect it did not have. The Full Court of the Federal Court held that the order of the Minister did not have retrospective effect merely because it relied upon conduct which occurred before the power existed. Toohey J, with whom Bowen CJ agreed, held that the Minister was not constrained to rely upon a conviction that occurred after the legislative amendment, rather, that the commission of an offence whether before or after the amending legislation warranted the Minister giving notice of cancellation of the licence. Toohey J held (at 26) that the Ministerial order did not have retrospective effect merely because it relied upon conduct that occurred before the power existed. The learned judge cited Re a Solicitor's Clerk. A similar view was taken by French J (at 33) to the effect that the fact that the power to cancel a licence under the amending legislation was conditioned upon a class of past events "... does not mean that the inclusion in that class of events which pre-dated the law, renders its operation retrospective". Again, French J cited with approval Re a Solicitor's Clerk.

In Commissioner for Corporate Affairs v X and Y [1987] VicRp 41; (1987) VR 460 the Full Court of this court considered circumstances where the Commissioner for Corporate Affairs sought orders for the examination of former receivers and managers of a company in respect of events that occurred prior to the commencement of legislation that empowered the Commissioner to conduct such examination. At first instance the trial judge held that the Commissioner was not entitled to conduct the examination as the relevant legislation (s.541 of the Companies (Victoria) Code) did not have retrospective operation. Marks J with whom Murphy and McGarvie JJ agreed held (at 464):

"Mr Goldberg Q.C. for the respondents submitted that the liability of the respondents to be examined under s. 541 was new and comprised a new liability. But in my view that description is merely of the alteration in the law as to the 'mode' by which it may be demonstrated that any fraud or negligence etc. previously occurred or may have occurred. In a sense, but not a relevant one, any alteration in procedure effected by a new law might be said to impose a new 'liability', but this is not the 'liability' on which the presumptive rule of construction operates. Thus, I consider Mr. Batt correct in submitting that legislation is not properly called retrospective merely because past events are by virtue of it the subject of prospective action such as examination under Court order: R. V. Inhabitants of St.Mary, Whitechapel [1848] EngR 746; (1848) 12 Q.B. 120, at p. 127; [1848] EngR 746; 116 E.R. 811, at p. 814; West v. Gwynne [1911] 2 Ch. 1, at p. 11; In re a Solicitor's Clerk [1957] 1 W.L.R. 1219, at p. 1222; Fisher v. Hebburn Ltd. [1960] HCA 80; (1960) 105 C.L.R. 188, at p. 824; Robertson v. City of Nunawading [1973] VicRp 81; [1973] V.R. 819, at p. 824; Geschke v. Del-Monte Home Furnishers Pty. Ltd. [1981] VicRp 80; [1981] V.R. 856, at pp. 959-60; Halsbury's Laws of England, 4th ed., vol. 4, para. 921. In Fisher v. Hebburn Ltd. Fullagar J. said, at (105 C. L. R.) p. 194: 'There can be no doubt that the general rule is that an amending enactment - or, for that matter, any enactment ... is prima facie to be construed as having a prospective operation only ... But there is no rule of law that such statutes must be so construed, and it would not be true to say that a retrospective effect can only be avoided by confining the operation of such a statute to subsequently occurring 'accidents' or 'injuries'. It may truly be said to operate prospectively only, although its prospect begins, so to speak, with some other event than accident or injury.'"

After citing Robertson v City of Nunawading and Ku-ring-gai Municipal Council v Attorney-General (NSW) Marks J (at 465) went on to observe:

"It cannot be said that s. 541 in any way changes the legal character or legal consequences of any past conduct of the respondents. I think that Gobbo J. in Geschke v. Del-Monte Home Furnishers Pty. Ltd. was correct when he observed, at ([1981] V.R.) p. 860: 'In my view, the presumption against retrospective operation does not direct itself to legislation which merely uses past acts as a foundation for future action.'"

On the basis of the analysis of the authorities by Marks J the Full Court held that the Commissioner for Corporate Affairs was entitled and empowered to conduct an examination as proposed in relation to transactions that occurred prior to the operation of the amending legislation.

In this matter, Mr Lindeman who appeared for the respondent employer submitted that the amendment to s.86 of the Sentencing Act was retrospective and therefore the appellants were not able to make an application under s.86 of the Sentencing Act as amended. He sought to distinguish the circumstances in the present matter from those in the authorities I have cited to support a view of prospective application on the basis that the amendment to s.86 of the Sentencing Act created an entirely new right to make an application for compensation for pain and suffering and as such did not just expand the class of persons entitled to make a claim for compensation. Mr Lindeman relied upon Carter v Reid [1992] VicRp 22; (1992) 1 VR 351. In that case Hedigan J was concerned with an appeal against a conviction for driving a vehicle where the blood alcohol level of the driver exceeded the lawful limit. In a summary hearing in the Magistrates' Court a breathalyser operator's certificate was admitted as conclusive proof and the driver was ultimately convicted. Subsequent to the conviction the Full Court held in another matter (Bracken v O'Sullivan [1991] VicRp 94; (1991) 2 VR 573) that such breathalyser operator's certificates were not admissible in proof of a drink driving offence. The legislation was amended to overcome the effect of the judgment of the Full Court. On appeal after the operation of the amending legislation Hedigan J held that the appeal before the learned judge was to be determined by applying the law that operated at the time of the original hearing and that the appellant driver had the right to have his conviction quashed, that is, that the breathalyser operator's certificate on the basis of the Full Court judgment was not admissible in evidence. Hedigan J formed the view (at 358) that the amending legislation did not operate retrospectively and was intended to operate prospectively only. At 359 the learned judge said:

"If events have occurred prior to the passing of an amending Act which have brought into existence particular rights or liabilities in respect of that act or transaction, it would be giving a retrospective operation to the Act to treat it as intended to alter those rights or liabilities, but would not be giving it a retrospective operation to treat it as governing the future operation of the matter or transactions as regards to creation of further particular rights or liabilities: see Coleman v. Shell Company of Australia Ltd. (1943) 45 S.R_._ (N.S.W.) 27, at p. 31. The appellant's arguments appeared to suggest that, as Mr. Carter had been wrongly convicted, he had a 'substantive right' to have that conviction set aside on appeal which could not be taken away from him by the legislature. Whatever may be said about the question of whether or not a statute has been apt to effect such an objective, it may be doubted that there is any principle which prevents a Parliament from making laws retrospective in operation, including perhaps a law of the kind alluded to, and subject to one further issue later referred to. The usual dispute, and it is the dispute here, is whether or not the amending Act ought to be construed on the ordinary principles, as intending and achieving that objective. If it is correct to say that there is a presumption against retrospectivity, such presumption clearly may be rebutted by the terms of the legislation itself, and, even if it is not specifically stated to be retrospective, the court will regard the presumption as being rebutted if it perceives the intendment of the Act is to operate retrospectively. Statutes which are passed specifically for the purpose of making legal what was illegal prior to the commencement of the Act, or to make illegal that which was legal, must of their very nature operate retrospectively."

The principle applied by Hedigan J in Carter v Reid has no application in the present matter. Carter was not a case where past acts were used as a foundation for future action. Rather, it was a case where the appellant had a substantive right that existed prior to the enactment and commencement of amending legislation.

Mr Lindeman relied also upon judgments of the Supreme Court of Queensland in Re Wilkinson (1999) QSC 177 and the Supreme Court of Western Australia in Law v Austin, an unreported judgment of Scott J delivered 23 April 1999. The Queensland and Western Australian authorities were concerned with applications for compensation arising from criminal injuries in circumstances where amending legislation had been enacted and arguably had affected the entitlement of the particular applicant. I have considered the two authorities carefully. However, they do not appear to have considered the various authorities to which I have already referred including those authorities that bind me. In any event both authorities were concerned with different legislation to that presently before me.

On the basis of the various authorities referred to I consider that the amendment to s.86 of the Sentencing Act was prospective and is not properly characterised as retrospective because past acts are, by virtue of the amending legislation, the subject of the prospective legislation. To adopt the words of Gobbo J in Geschke, cited with approval by the Full Court in Commissioner for Corporate Affairs v X and Y: " ... the presumption against retrospective operation does not direct itself to legislation which merely uses past Acts as a foundation for future action".

It was further submitted on behalf of the respondent employer that even if the legislation was properly characterised as prospective, as a result of s.134A(1) of the Accident Compensation Act 1985 the appellants had no entitlement to compensation. The section provides:

"Section 134A(1) A worker who is, or the dependents of a worker who are or may be, entitled to compensation in respect of an injury arising out of or in the course of, or due to the nature of, employment on or after 12 November 1997 shall not, in proceedings commenced in respect of the injury or otherwise, recover any damages of any kind".

Strictly speaking the application of s.134A of the Accident Compensation Act was not properly before me as the issue did not fall within the question of law formulated by the Master. However, I observe that on its face the submission is misconceived in any event as s.134A is specifically confined to employment injuries arising on or after 12 November 1997, that is, well after the subject injury in the proceeding before me. I note also that s.86(10) of the Sentencing Act provides that s.86 does not prejudice compensatory rights under other legislation. Finally, I observe that Mr Lindeman for the respondent relied upon the approach adopted by Ashley J in Bentley v Furlan (1999) VSC 481 (unreported judgment delivered 30 November 1999) wherein the learned judge considered whether there was an entitlement to compensation for pain and suffering under s.86(1) of the Sentencing Act where there was an entitlement to compensation under the provisions of the Transport Accident Act 1986. Having had the opportunity to consider the judgment of Ashley J in Bentley I am satisfied that the submission on behalf of the respondent is misconceived. The ultimate conclusion of Ashley J in Bentley was that there was no reason other than to conclude that legislation such as compensatory provisions under the Sentencing Act and the entitlement of a person under the Transport Accident Act were intended to co-exist.

It follows from my reasons that I conclude that there was an error of law in the orders made by the magistrate below and, accordingly, the question of law ordered by the Master will be answered in the affirmative and the appeal ought be allowed. Whilst not absolutely necessary, in my view, it would be desirable for the same magistrate as determined the conviction and penalty of the respondent employer below to proceed to hear the application by the appellants. I will direct that the matter be remitted to a magistrate to be heard and determined in accordance with law.

A remaining matter to be considered is the appearance by Mr M. Robins of counsel instructed on behalf of the Attorney-General of Victoria to appear as amicus curiae. Mr Robins sought leave to intervene on behalf of the Attorney-General to urge the course proposed by the appellants. The appearance of counsel for the Attorney-General was objected to by the respondent. I received the submissions on behalf of the Attorney-General and indicated that I would determine whether or not to take such submissions into account at a later time. Having had the opportunity to consider the matter in full I do not consider it necessary to consider the submissions on behalf of the Attorney-General. I note that those submissions were largely supportive and in some respects duplicated the submissions made on behalf of the appellants. Nevertheless I make the observation that it was an unusual course for the Attorney-General to seek to be heard on the basis of amicus curiae. This matter did not raise any State constitutional issues. In my view it was a straightforward matter concerned with statutory construction. A court will construe legislation in accordance with law. If the outcome of that construction is contrary to or does not accord with government policy then it is a matter which the legislature can address by legislative means. As I have determined the matter in favour of the appellants it is not necessary for me to consider the appearance and submissions on behalf of the Attorney-General.

Fisheries Act 1952(Cth)

Crime Assistance Act 1996

Criminal Injuries Act 1980

At a glance

Court

Decision date

Before

Source

Judgment (52 paragraphs)

Parties

Legislation Cited (3)

Cases Cited (6)