Webster, Edward David & Anor v. McIntosh, Victor John [1980] FCA 156

Federal Court of Australia|1980-07-01|Before: Kelly JJ

CN APPEAY r?OK THE SUPPEME COMPT OF THE AUSTFALIAN CAPITAL TEPPITOPY

BETWREN EDWAPD DAVIL WERST UF WAL COLI' CAP appellant. AL.D VICTOr .TOHM MeINTCCll Fesponder. - ROER

The appeal be dismissed.
The appellants pay to the resepondant hiz co3t3 of the a

differ:ng powers of arrest (see Mavbury v. Plowman (261s & t q 2 _

16 C.L.P.468 at o>.473, 474). In such a case, reconciliation

ls effectec by so construing the two laws that they are consistent and complementary, limiting the reaning and oper tion of the more general law to leave room for the operation crf the jrore particular law. If reconciliation cannet be effected, -

subsecuent general lew is held impliedly to repeal ar earlier

particular law; but there 1s a presummtion against incons:3tency

and implied repeal, anc the application cf the waxim gives effect to that presumption. As Wocd Y-C said in Frtsr:z wy

-P.959 at p.9bo, in & passage cited by Barton A.C.J. in Maybiry v. Plovran (oupra, ct

"In passing the Speeial Act, the Legislature had their attention directed to the special case which the Act was meant to meet, and cons_dered and providee for all the circumstances of tnat special case; and, having so done, they are not to be considere¢ by a general enactment passed sudsequently, and making no menticn of anv such intention to have intende2 to derogate frem that which, by their own Special Act, they had thu. carefully supervised anc regulated. "

Though the mexin may usefully be applied where the tye aprarentl; inconsistent laws are lavs of the sare legisiature, there ic neither need nor occasion for applying tha maxim rere the. ar:

rot: see Butler v. Attorney-General (iet.) ((1301) 195 C.LLR. Ste at v.278).

Putting the Ordinance to one sida, there aprear. te be no reason for restricting the ordinary meaning cF the lanz.asz2 in s.$3A, though it may be that the menkers oF 4

oree are to be regarced as constatles cnly within tac lipits o their respective localities. Be this as it mey, 5.8A confer:

he Territory to areect an offender for an offence against the laws of the Territery wien the offender is found within the Territory. In the clrcuTrstane

of tne present case, the section would have oferated to confer

upon tne appellants a power to arrest the respvorcer.t 1f the

onciticns which it imposes apon the exerezse of the pover nas

Section 18(e) would confer a pcver upon merrears c7-

Police Force of the Territory to arrest an oflerder for an

offence against the laws of the Territo»y wien the offencer is found within the Territory. Either the power which s.18(2) would confer 1s additional to the pcewer conrerred Ly 5.84, so

that either power is available whenever +..e conditicns zaveruint

its exereise are fulf2iled, or s.18(2) 15 ineonszetent witn erd

Incensistercy i3 not necessarily Cerenstrated by the

e.ercise of two or more powers, prevideu tre exereise of one tL,

WoLle not trespass upcon pligics, rovers oT privilijes se2urad

or class of offences, but 1mpose aifferent conditions for ths

exercise of those powers, then the laws are incontrstint end cn2

of tnem rust yield, unless it De posslile te oor true the 2

togetner, reacing down one or both of them to five them 42 completrentary cperation. Theat 1S not pourible whan the ..et confers upon the members of the Police Force oz the Territer, a

power te arrest in respect of all otfences conmitted azainct leis

of a Territory, and the Ordinance purports to confer a power .52h at >

"How long did that state of false immrisorment leart" So long, of course, as the plaintiff remanred in the custocy of a mznisterial officer oF the lev, whose duty 1t was to detain him until he could Le brought before a judicial officer. "

The proccsses of p..ctographing ani finewerpriutng i r P hy S t é€

'e, as his Hcencur found, crdinar, and known incidents of +>?

steay on whic. the appellants hac placec the resrondent, anne

icer in charge is to do what 1s requirec in orier to continue

ON APPEAL FROM THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Appellants AND VICTOR JOHN Mc INTOSH Respondent CORAM Brennan, Deane and Kelly JJ. 6 November, 1980. REASONS FOR JUDGMENT DEANE J I agree with the yudgment of Brennan J. sok 2 4 ea

bcertify thet thts ' true copy of the reasons for Judgment

QN APPLAL FROM LHP SUPREME COURT OT THE AUSTR "LO CAPITAL TERRITON

Brennan J. that the Appeal should be dismissed with costs

I hereby certify that this 15 a true copy of the Judgment of his Jlonour Mr. Justice kelly.

At a glance

Court

Decision date

Before

Source

Judgment (45 paragraphs)

Cited By (2)