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 Section 253 was repealed in 2006, [7] by legislation which inserted s 257B and s 257C.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]

What is an “order”

Nash v Silver City Drilling (NSW) Pty Ltd [2017] NSWCA 100
  1. In written submissions, the respondent relied squarely upon the judgment of this Court in Director of Public Prosecutions (NSW) v Roslyndale Shipping Pty Ltd. [1] The respondent referred in particular to the statement by Spigelman CJ that “[i]n its natural and ordinary meaning, the word ‘order’ would not encompass a refusal to make an order.” For that proposition, the Chief Justice relied upon the reasoning of Fullagar J in The King v Blakeley; Ex parte the Association of Architects, Engineers, Surveyors and Draftsman of Australia, and of Lord Herschell in Boulter v Kent Justices.

Road authority

Wells v Council of the City of Orange (No 2) [2017] NSWSC 510

TORTS – negligence – motor vehicle accident – motorcycle colliding with water-filled barrier at night – duty of care – breach of duty – standard of liability – whether using water-filled barrier manifestly unreasonable – expert evidence – whether failure to comply with Australian Standard determinative – Civil Liability Act 2002 ss 5B, 5D, 5R, 43A, 50, 54 – breach of duty and causation not established – s 43A defence established – s 54 defence established – verdict for defendant.