Timothy Fox v GIO Australia Limited - [2002] NSWIRComm 318 - NSWIRComm 2002 case summary — Zoe

NSWNSWIRComm

Timothy Fox v GIO Australia Limited

[2002] NSWIRComm 318

Industrial Relations Commission (NSW)|2002-07-01|Before: Walton J, Mr P, Mr J

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Source facts

Court

Industrial Relations Commission (NSW)

Decision date

2002-07-01

Before

Walton J, Mr P, Mr J

Catchwords

03/28/2002
04/09/2002 DATE OF JUDGMENT: 12/19/2002

Source

Original judgment source is linked above.

Catchwords

03/28/200204/09/2002 DATE OF JUDGMENT: 12/19/2002

Judgment (161 paragraphs)

[1]

Industrial Relations Commission of New South Wales in Court Session

[2]

CITATION : Timothy Fox v GIO Australia Limited [2002] NSWIRComm 318 APPLICANT: Timothy Fox PARTIES : RESPONDENT: GIO Australia Limited FILE NUMBER: IRC5966 of 1999 CORAM: Walton J Vice-President CATCHWORDS : Declaratory relief - Statutory interpretation - Section 174 Industrial Relations Act - Discretion to make orders in accordance with settlement - Unconscionability to be taken into account - Extent of power to make such orders if settlement invalid - Importance of adherence to settlements voluntarily entered into - Sections 200A(1)(b) and 200B Corporations Act 2001- Whether "giving a benefit" includes an agreement to pay a settlement sum upon consent orders - "Making a payment" - Nature of proceedings under s106 Industrial Relations Act 1996 - Whether issues of unfairness under s106 "in connection with" loss of office within meaning of s200B Corporations Act 2001 - Section 200H Corporations Act 2001 - Whether court order a "law in force in Australia" - Exemption under corporations law - Exemption applies by virtue of s174 order - Doctrine of illegality - Not applicable in this case - To be applied cautiously - Whether s200B an express prohibition - Intention to penalise rather than to render illegal - Harsh effect of application of doctrine - Implied authority - Not raised but relevant - Interest - Indemnity costs Acts Interpretation Act 1901 (Cth) Corporations Act 1989 Corporations Act 2001 LEGISLATION CITED : Industrial Relations Act 1996 International Arbitration Act (1974) (Cth) Interpretation Act 1987 (NSW) Interpretation of Legislation Act 1984 (Vic) Navigation Amendment Act 1979 Abboud v The State of New South Wales (Department of School Education) (1999) 92 IR 32 Abdurahman v Field (1987) 8 NSWLR 158 Australasian Memory Pty Ltd v Brien [2000] HCA 30 Ballabil Holdings Pty Ltd v Hospital Products Ltd (1985) 1 NSWLR 155 Beahan v Bush Boake Allen Australia Limited (1999) 47 NSWLR 648 Broken Hill Chamber of Commerce and Ors and Construction Forestry Mining and Energy Union (New South Wales Branch) [2002] NSWIRComm 244 Campbells Cash and Carry Pty Ltd v National Union of Workers, New South Wales Branch (No.2) (2001) 53 NSWLR 393 Capral Aluminium Limited v WorkCover Authority of New South Wales (2000) 49 NSWLR 610 CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 Crown Employees' (Teachers in Schools and TAFE and Related Employees) Salaries and Conditions Award (2000) 102 IR 202 Cummings v Claremont Petroleum NL (1992) 9 ACSR 583 CASES CITED : Dr Payne v The University of Sydney and Anor [2000] NSWIRComm 102 Hurst and Ors v Vestcorp Ltd (1988) 12 NSWLR 394 Kirmani v Captain Cook Cruises Pty Ltd & Anor [No 1] (1985) 159 CLR 351 Lander and Anor v Whitbread and Ors [1982] 2 NSWLR 530 Langan v Ceramiclab Pty Limited (2000) 97 IR 80 Metrocall Inc v Electronic Tracking Systems Pty Ltd (2000) 101 IR 66 Mills v Meeking & Anor (1990) 169 CLR 214 R v Isaac & Ors, ex parte Transport Workers' Union (1985) 159 CLR 323 Re Mahmoud and Ispahani [1921] 2 KB 716 Smarzak v Grimes Management Services Pty Ltd [2000] NSWIRComm73 Storeworkers - Campbells Cash and Carry Pty Limited (NSW), NUW (NSW Branch) Award 2000 (No 2) [2001] NSWIRComm 53 The Firm (Australia) Pty Ltd v South Sydney Council [1999] NSWLEC 5 Van Huisstede v the Commissioner of Police (No 2) (2001) 106 IR 56 HEARING DATES: 03/05/2002; 03/28/2002; 04/09/2002 DATE OF JUDGMENT: 12/19/2002

[83]

The primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute (See Taylor v Public Service Board (NSW) (1976) 137 CLR 208 at 213, per Barwick CJ). The meaning of the provision must be determined "by reference to the language of the instrument viewed as a whole" ( Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297 at 320, per Mason and Wilson JJ. See also South West Water Authority v Rumble's [1985] AC 609 at 617, per Lord Scarman , "in the context of the legislation read as a whole"). In Commissioner for Railways (NSW) v Agalianos ((1955) 92 CLR 390 at 397), Dixon CJ pointed out that "the context, the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning than the logic with which it is constructed". Thus, the process of construction must always begin by examining the context of the provision that is being construed ( Toronto Suburban Railway Co v Toronto Corporation [1915] AC 590 at 597; Minister for Lands (NSW) v Jeremias (1917) 23 CLR 322 at 332; K & S Lake City Freighters Pty Ltd v Gordon & Gotch Ltd (1985) 157 CLR 309 at 312, per Gibbs CJ; at 315, per Mason J; at 321 per Deane J). 70. A legislative instrument must be construed on the prima facie basis that its provisions are intended to give effect to harmonious goals ( Ross v The Queen (1979) 141 CLR 432 at 440, per Gibbs J). Where conflict appears to arise from the language of particular provisions, the conflict must be alleviated, so far as possible, by adjusting the meaning of the competing provisions to achieve that result which will best give effect to the purpose and language of those provisions while maintaining the unity of all the statutory provisions (See Australian Alliance Assurance Co Ltd v Attorney-General (Q) [1916] St R Qd 135 at 161 per Cooper CJ; Minister for Resources v Dover Fisheries Pty Ltd (1993) 43 FCR 565 at 574, per Gummow J; 116 ALR 54 at 63). Reconciling conflicting provisions will often require the court "to determine which is the leading provision and which the subordinate provision, and which must give way to the other" ( Institute of Patent Agents v Lockwood [1894] AC 347 at 360 per Lord Herschell LC). Only by determining the hierarchy of the provisions will it be possible in many cases to give each provision the meaning which best gives effect to its purpose and language while maintaining the unity of the statutory scheme. 71. Furthermore, a court construing a statutory provision must strive to give meaning to every word of the provision ( The Commonwealth v Baume (1905) 2 CLR 405 at 414, per Griffith CJ; at 419, per O'Connor J; Chu Kheng Lim v Minister for Immigration Local Government & Ethnic Affairs (1992) 176 CLR 1 at 12 - 13, per Mason CJ). In The Commonwealth v Baume (1905) 2 CLR 405 at 414 Griffith CJ cited R v Berchet (1688) 1 Show KB 106 [89 ER 480] to support the proposition that it was "a known rule in the interpretation of Statutes that such a sense is to be made upon the whole as that no clause, sentence, or word shall prove superfluous, void, or insignificant, if by any other construction they may all be made useful and pertinent".

[89]

44 The decision of this Court in Beahan v Bush Boake Allen Australia Limited is useful in this context. The Court held (at 687): We were helpfully assisted by counsel as to the proper approach to statutory construction and to the method which now prevails, particularly by reference to the purposive and non-literal approach: see e.g. Kingston v. Keprose Pty. Ltd. (1987) 11 N.S.W.L.R. 404 per McHugh at 421-424. Also, we were referred to the judgment of Spigelman C.J. in the Court of Criminal Appeal in R. v. Young [1999] N.S.W.C.C.A. 166 which represented the most recent exposition in the State of the approach to statutory construction by reference to the acknowledged authorities. In addition, we have had in mind s.34 of the Interpretation Act 1987 as to the use of extrinsic material in the interpretation of a statute and, in particular, the provisions of sub-s.(2)(e), (f) and (h), respectively as to any explanatory note or memorandum relating to the Bill for the Act, the speech made to a House of the Parliament by the Minister moving that the Bill be read a second time and the official record of debate on that occasion. However, for present purposes we think it sufficient to attempt to summarise the position by reference to what the learned editors said in Halsbury's Laws of Australia (Vol. 24 at par.[385-145]), as follows : Intention of legislature. The function of the court is to construe, by the application of accepted canons of construction, the intention of the legislature through the words used in a statute. This literal approach has been described as the fundamental rule of interpretation to which all others are subordinate. With the adoption of such an approach to interpretation, the rejection of the grammatical sense is only permitted if the results lead to an absurdity or inconsistency. While the literal interpretation of the words has at times been expressed in the past more absolutely than in recent times, the more recent approach has been for the courts to ascertain the intention of the legislature through the object or purpose underlying the legislation and to ascertain the meaning of the words in light of that object or purpose. Such an approach consequently allows the court far more latitude in departing from the literal or grammatical meaning and extends to any situation where the literal reading does not conform to the legislative intent as ascertained from the provisions of the statute, including the policy that may be discerned from those provisions. Such an approach has also been supported by legislative provisions in most Australian jurisdictions.

[91]

45 The interpretation of the Victorian equivalent of s15AA of the Acts Interpretation Act (Cth), s35(a) of the Interpretation of Legislation Act 1984 (Vic), was discussed by Dawson J in Mills v Meeking (1990) 169 CLR 214 at [19]: [T]he literal rule of construction, whatever the qualifications with which it is expressed, must give way to a statutory injunction to prefer a construction which would promote the purpose of an Act to one which would not, especially where that purpose is set out in the Act. Section 35 of the Interpretation of Legislation Act must, I think, mean that the purposes stated in Pt 5 of the Road Safety Act are to be taken into account in construing the provisions of that Part, not only where those provisions on their face offer more than one construction, but also in determining whether more than one construction is open. The requirement that a court look to the purpose or object of the Act is thus more than an instruction to adopt the traditional mischief or purpose rule in preference to the literal rule of construction. The mischief or purpose rule required an ambiguity or inconsistency before a court could have regard to purpose: Miller v. The Commonwealth (1904) 1 CLR 668 at p 674; Wacal Developments Pty. Ltd. v. Realty Developments Pty. Ltd. (1978) 140 CLR 503 at p 513. The approach required by s.35 needs no ambiguity or inconsistency; it allows a court to consider the purposes of an Act in determining whether there is more than one possible construction. Reference to the purposes may reveal that the draftsman has inadvertently overlooked something which he would have dealt with had his attention been drawn to it and if it is possible as a matter of construction to repair the defect, then this must be done. However, if the literal meaning of a provision is to be modified by reference to the purposes of the Act, the modification must be precisely identifiable as that which is necessary to effectuate those purposes and it must be consistent with the wording otherwise adopted by the draftsman. Section 35 requires a court to construe an Act, not to rewrite it, in the light of its purposes.

[145]

97 It is worthwhile extracting the subsequent text of his Honour's judgment, not only to place the above quotation in context, but also to illustrate the issues relevant to illegality which were not addressed by the respondent: (It is not necessary for present purposes to determine which of these views the law presently adopts: see First Chicago Australia Ltd v Yango Pastoral Co Pty Ltd [No 3] [1977] 2 NSWLR 583 at 596-597; affirmed (1978) 139 CLR 410). But the fact that there is involved a breach of the law and in particular statutory law, does not always result in the law of illegality applying to the transaction. The matter is to be determined having regard to, as it is described, the legislative intention: see generally the judgment of Mason J in the First Chicago case (1977) 139 CLR 410 at 424 et seq. In the present case Mr Palmer QC submitted that the law of illegality did not apply to transactions in contravention of s 83(1) for, in the main, three reasons: because the legislative intention was such; because of the provisions of s 86(2); and because the illegality did not attach to what was here in question. I shall consider each of these three matters separately. In First Chicago Australia Ltd v Yango Pastoral Co Pty Ltd [No 3] there was, in my opinion, a significant development, or at least restatement, of the law of illegality as it applies to transactions. Both in the judgments in the High Court and in this Court emphasis was placed upon the necessity, when an issue of illegality is raised, to determine precisely what is the subject of the statutory proscription. The reason for this is at least twofold: to enable the court more clearly to consider the question whether that which is proscribed by the statute was intended to be, for the purposes of the law of transactions, illegal, as distinct from merely penalised; and, secondly, to enable the courts to apply with a greater degree of precision and flexibility the consequences of the decision that, in the particular case, the law of illegality was intended to apply. Each of these is, as Mr Palmer has submitted, relevant in the present case.

[148]

99 The respondent also referred to the judgment of Kirby P in Hurst v Vestcorp, but an inspection of that judgment reveals, again, the complicated issues which attach to the doctrine of statutory illegality which were not addressed in submissions. I extract his Honour's summary of the relevant principles at 411: The principles of law applicable to the resolution of this question are found in First Chicago Australia Ltd v Yango Pastoral Co Pty Ltd [No 3] [1977] 2 NSWLR 583; affirmed sub nom Yango Pastoral Co Pty Ltd v First Chicago Australia Ltd (1978) 139 CLR 410. I take the relevant principles to include: 1. The fact that a transaction is made which results from or involves a breach of the requirement of statute may result in a conclusion that the transaction itself is illegal such that, to give effect to the statute, a court will decline to enforce the transaction or will treat it as void; 2. Such a result will not, however, always follow. Because statutes rarely provide, in terms, for the effect of the breach of their provisions upon such transactions, it is for the court, in applying the potentially crude instrument of the doctrine of illegality, to determine the imputed legislative intention. It must do so from the language, history and apparent policy of the statute: the court necessarily filling the gaps left by the legislature; 3. In reaching its conclusion, the court will consider the extent to which the statute itself already provides adequately for securing the attainment of its apparent objects and for punishing breaches of and non-compliance with its terms. It will also have regard to the possible consequences upon innocent third parties of a rigorous application of the principles as to illegality; and 4. Because of the sometimes drastic consequences of the application of the doctrine of illegality upon transactions, the proscription may not be extended beyond those transactions which are clearly in breach of the statute, lest, by casting the net more widely, serious injustice may be done to third parties beyond that necessary to give effect to the presumed legislative intention. Inherent in these principles, and in their application to particular cases, is an inescapable element of imprecision and judgment.

Timothy Fox v GIO Australia Limited

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Cases Cited (43)