Archive for Statutory Construction

Construing statutes: grossly unfair, perverse and anomalous – not relevant

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Legislative mistakes

 

Nash v Silver City Drilling (NSW) Pty Ltd [2017] NSWCA 100
  1. A definition using the term “means” is generally to be understood as exhaustively defined by what follows. Because the definition of “sentence” has 11 paragraphs, which include many kinds of order which would not ordinarily be thought of as part of the sentence, the general rule should apply and the language adopted should be treated as exhaustive. In accordance with the authorities discussed in Roslyndale, the phrase “an order for the payment of costs” would not ordinarily be understood to include the refusal to order payment of costs. No reason was put forward not to give that language its ordinary meaning (as there was in the case of s 5AA). Accordingly, there is no right of appeal to a prosecutor under s 5D with respect to the refusal to order costs. For this purpose Roslyndale remains good law.
  2. As an aside, a literal reading of par (h) in the definition of “sentence” would give it no content. When the paragraph was inserted in its present form in 2004, [6] the power to award costs was to be found in s 253 of the Criminal Procedure Act, which was then in Ch 4, Pt 5, Div 3. Section 253 was repealed in 2006, [7] by legislation which inserted s 257B and s 257C. However, those provisions were placed in a new Div 4, not Div 3; the definition of “sentence” in the Criminal Appeal Act was not amended.
  3. Despite the absence of a consequential amendment, the definition of “sentence” should be understood to refer to orders for the payment of costs made under Div 4 of Pt 5 of Ch 4 of the Criminal Procedure Act. This is a clear case where the drafter has made a mistake for a reason which is readily identifiable. The Court should read the definition in accordance with its former operation and clear intention. [8]

The meaning of words

  1. As Lord Hoffmann explained in R v Brown, [20] in a passage cited with approval in Collector of Customs v Agfa-Gevaert Ltd: [21]

“The unit of communication by means of language is the sentence and not the parts of which it is composed. The significance of individual words is affected by other words and the syntax of the whole.”

Cited in Fraser v Health Care Complaints Commission [2015] NSWCA 421 per Basten JA at [29]

Statutory construction and the rule against double compensation

STATUTORY INTERPRETATION – application of general law principles to statutory compensation scheme – construing two statutes of the same legislature conformably – whether provisions of one statute picked up by second statute

WORKERS’ COMPENSATION – dust diseases – whether qualified claimant entitled to payment of benefit – whether Dust Diseases Board entitled to refuse claim where damages recovered – whether general law prohibition on double recovery applies to a claim for compensation under Workers’ Compensation (Dust Diseases) 1942 (NSW)

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