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Statutory interpretation

McDonald v Price [2011] NSWSC 70. Davies J.

[18] Section 15 Civil Procedure Act 2005 makes it clear that Practice Notes issued by a Court are subject to the Rules of the Court. In addition, it is a well known principle that a power provided by the Rules cannot exceed the power given in an Act under which those Rules are made, and if the Rule and the Act are irreconcilable then the Rule must give way to the Statute: see Pearce & Geddes , Statutory Interpretation in Australia, 5th ed, Sydney, Butterworths (2001) at 3.38 and the cases cited therein.

Hesami v Hong Australia Corporation Pty Ltd [2011] NSWWCCPD 14. Roche DP.

43. In interpreting this provision, I must apply the principles of statutory construction explained by Allsop P (Giles and Hodgson JJA agreeing) in Wilson v State Rail Authority of New South Wales [2010] NSWCA 198 at [12]. It is convenient to set out his Honour’s statement in point form (excluding citations):

(a) “It is the language of Parliament that must be interpreted and construed”;

(b) “in construing an Act, a court is permitted to have regard to the words used by Parliament in their legal and historical context”;

(c) “context is to be considered in the first instance, not merely when some ambiguity is discerned”;

(d) “context is to be understood in its widest sense to include such things as the existing state of the law and the mischief or object to which the statute was directed”;

(e) “fundamental to the task, of course, is the giving of close attention to the text and structure of the Act, as the words used by Parliament to effect its legislative purpose”, and

(f) “general words, informed by an understanding of the context, and of the mischief to which the Act is directed, may be constrained in their effect”.

44. Applying the above principles, I must interpret and construe the words in s 60AA having regard to their legal and historical context, giving close attention to the text and structure of the Act. I also have regard to the fact that the workers compensation legislation is “beneficial legislation” and that entitlements under such legislation should not depend on “distinctions which are too nice”: per Mahony JA in Articulate Restorations & Developments Pty Ltd v Crawford (1994) 10 NSWCCR 751 at 765.

At the same time, the principle that beneficial legislation should be given a liberal construction does not entitle a court to give it a construction that is unreasonable or unnatural: per McColl JA in Amaca Pty Ltd v Cremer [2006] NSWCA 164, citing IW v City of Perth (1997) 191 CLR 1 (at 11–12) per Brennan CJ and McHugh J.

Con Ange v Fairfax Media Publications Pty Ltd & Ors [2010] NSWSC 1383. Garling J.

21 The exercise upon which the Court is to engage is essentially one of statutory interpretation.

22 In carrying out that exercise I will apply the following principles:

(a) The commencing point is to engage in a purposive construction. That is, in the interpretation of a provision of an Act, a construction which promotes the purpose and/or object underlying an act, is to be preferred to a construction that would not promote that purpose or object: Carr v Western Australia(2007) 232 CLR 138 at [5]-[6] per Gleeson CJ; 

(b) What is involved in an exercise of statutory construction is a search for the objective intention of Parliament and not the subjective intention of the Parliament, if one exists, or ofMinisters, Eastman v The Queen (2000) 203 CLR 1 at [146]-[147] per McHugh J; Harrison v Melham (2008) 72 NSWLR 380 at [14] per Spigelman CJ, [159] per Mason P, Beazley and Giles JJA agreeing;

(c) A statement of intention by a Minister in a Second Reading Speech will not prevail over the words of a statute: Re Bolton, Ex Parte Beane (1987) 162 CLR 514 at 518; Harrison at [14] per Spigelman CJ, [162] per Mason P. Identification of the mischiefto be addressed by the legislation, and the purpose to be served by the legislation, when contained in a Second Reading Speech are in a different context and realm to statements of the meaning of words, phrases or provisions in statutes: Kingston v Keprose Pty Ltd (1987) 11 NSWLR 404 at 424; Harrison at [162] per Mason P;

(d) Legislation must be construed by reference to what Parliament has said in the enactment as distinct from what others, including Ministers, may wish or think Parliament intended: Nolan v Clifford (1904) 1 CLR 429 at 449; Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 at 499 [55]; Harrison at [159] per Mason P;

(e) The courts in exercising judicial power, interpret legislation by determining what Parliament intended to mean by the words it used. The Court does not determine what Parliament intended to say or make any attempt to divine the intention of Parliament:Wik Peoples v Queensland (1996) 187 CLR 1 at 168; Dossett v TKJ Nominees Pty Ltd (2003) 218 CLR 1 at [10]; R v PLV (2001) 51 NSWLR 736 at [82]; Harrison at [16] per Spigelman CJ;

(f) In interpreting legislation, the primary object is to construe the relevant provisions so that it is consistent with the language and purpose of all of the provisions of the statute: Project Blue Sky Pty Ltd v Australian Broadcasting Authority (1998) 194 CLR 355at [69], at [71] per McHugh, Gummow, Kirby and Hayne JJ;

(g) It is both permissible and appropriate to have regard tocontextual material without a need for ambiguity to be established: Caterpillar of Australia Pty Ltd v Industrial Court of NSW [2009] NSWCA 83 at [86];

(h) The contextual material, to which reference may be made, includes the history of the particular enactment, and the state of the law when it was enacted. This may include an examination of reports of law reform bodies (or the like): Pyneboard Pty Ltd v Trade Practices Commission (1983) 152 CLR 328 at 341 per Mason A-CJ, Wilson and Dawson JJ; CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 at 408 per Brennan CJ, Dawson, Toohey and Gummow JJ;

(i) It is an established principle that a statute should not be presumed to abrogate existing fundamental or common law rights in the absence of clear language. The nature of the right being abrogated will determine whether the principle is strong or weak: Gifford v Strang Patrick Stevedoring Pty Ltd(2003) 214 CLR 269 at [36] per McHugh J; Electrolux Home Products Pty Ltd v Australian Workers Union (2004) 221 CLR 309 at [19] per Gleeson CJ; Harrison at [209]-[221] per Basten JA, Spigelman CJ agreeing at [2].




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