Origin Energy LPG Limited & Anor v Bestcare Foods Limited & Anor [2008] HCATrans 187 (16 May 2008)

Last Updated: 20 May 2008

[2008] HCATrans 187

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S573 of 2007

B e t w e e n -

ORIGIN ENERGY LPG LIMITED (FORMERLY BORAL GAS (NSW) PTY LIMITED)

First Applicant

ORIGIN ENERGY RETAIL LIMITED

Second Applicant

and

BESTCARE FOODS LIMITED

First Respondent

ATTORNEY-GENERAL FOR THE STATE OF NEW SOUTH WALES

Second Respondent

Office of the Registry
Sydney No S574 of 2007

B e t w e e n -

ORIGIN ENERGY LPG LIMITED (FORMERLY BORAL GAS (NSW) PTY LIMITED)

First Applicant

ORIGIN ENERGY RETAIL LIMITED

Second Applicant

and

BESTCARE FOODS LIMITED

Respondent

Applications for special leave to appeal

GUMMOW J
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 16 MAY 2008, AT 11.09 AM

Copyright in the High Court of Australia

__________________

MR S.J. GAGELER, SC: May it please the Court, in each of those matters I appear with MR B.G. SMITH for the applicants. (instructed by Ebsworth & Ebsworth)

MS M.A. PERRY, QC: If the Court pleases, I appear with my learned friend, MR M.S. WEINBERGER, for the first respondent in both matters. (instructed by McCabe Terrill)

MR N. PERRAM, SC: If the Court pleases, I appear with my learned friend, MR S.J. FREE, for the second respondent in S573/2007. (instructed by Crown Solicitor’s Office)

GUMMOW J: Yes, Mr Gageler.

MR GAGELER: Your Honours, statutory interpretation is not all about text and context, it is also about attitude informed by common law and constitutional principle. The problem here is that the Court of Appeal faced with a power imposed in the Executive to alter by regulation the operation of an Act, read the power up when it should have read the power down if it had given weight to the constitutional principle.

Now, your Honours have from us a bundle of authorities. The regulation which was under challenge is the regulation introduced by the instrument at tab 3. The regulation itself appears at page 3 of tab 3 and it needs to be understood against the background that clauses 6 and 13 of Schedule 1 of the Act to which it refers expressly and specifically provide that Part 4 of the Act applies to civil liability that arose before Part 4 commenced on 1 December 2004. That is the specific provision of those transitional provisions.

The regulation then in terms and in its substantive effect flatly contradicts clauses 6 and 13 of Schedule 1 and says Part 4 has no application to any civil liability that arose before 26 July 2004. So for my client, who was here sued on a cause of action that occurred in 2003, the Act says Part 4 applies and says so quite specifically and the regulation contradicts the Act and says Part 4 does not apply.

The regulation-making power held by the Court of Appeal to support that regulation your Honours find in the Act itself, which is tab 1, and it is in the provision that begins at page 3, section 3B and the relevant part of section 3B is 3B(3). So the language of 3B(3) is that:

The regulations may exclude a specified class or classes of civil liability . . . from the operation of all or any specified provisions of this Act.

It needs, of course, to be read in context with section 3B(1) and 3B(2). I will return to that.

GUMMOW J: I will just ask you this, Mr Gageler. If the decision both of Justice Hammerschlag and the Court of Appeal were to stand as to the operation of these regulations, is the result that the regulations are effective to – in this limited sense at any rate – preserve the common law rights of the plaintiffs in this action?

MR GAGELER: That is correct, yes.

GUMMOW J: The construction for which you contend would have the opposite operation?

MR GAGELER: It would give us the benefit of the statutory rights conferred by Part 4, yes.

GUMMOW J: Of the new statutory rights?

MR GAGELER: Of the new statutory rights, yes.

GUMMOW J: Right.

MR GAGELER: That is exactly right. So 3B(3), your Honours, has to be read with 4(2) which is the regulation-making power itself. Section 3B(3) actually describes a sort of regulation to be made under the regulation-making power and also needs to be read with section 4(4) which says that “Schedule 1 has effect”. So whatever the regulations are, they are to be not inconsistent with the Act and the Act specifically provides that Schedule 1 transitional provisions propose specific retrospective provisions that I have already referred to has effect.

Now, in that context, your Honours, it is our submission that fairly and modestly read, section 3B(3) is a power by regulation to carve out from one or more specified provisions of the Act one or more substantive categories of civil liability. It is in purpose and design a power to add to the categories of civil liability.

GUMMOW J: Yes. The question comes down to whether the specification of the class can be achieved by criteria looking to circumstances and to time. Is that not right?

MR GAGELER: Yes, almost, your Honour, not just circumstances, but rather this; can the specification of the criteria be all civil liability covered by the Act or a specified provision of the Act before a certain date, after a certain date or within a specified period? So you are not carving out here a subset of substantive civil liability. You are saying by this regulation that what is excluded is the application of particular provisions to any civil liability before a certain date.

Now, if you read the power as going that far, where does it go? It becomes a power to prevent the operation of any provision of the Act. It becomes a power to suspend any or all of the provisions of the Act and it becomes, in effect, a power to repeal by regulation the operation of the entire Act. That is the logic of the construction given by the Court of Appeal. That, in our submission, becomes a rather dramatic and extensive power to repose in the Executive and one ought not get there in principle if
there is another fair, more modest reading of the provision and, in our submission, there is. It is the one that we have given - - -

GUMMOW J: Yes, but at that stage, when you start talking about being modest, you run into the matter we referred to a few minutes ago, namely, that the effect of this is to conserve some common law rights.

MR GAGELER: But, your Honour, the question of whether common law rights should or should not be conserved or preserved is one that has been squarely addressed by the legislature. That is where we start. We start with the question of whether this Act is to be prospective or retrospective as one made in the very design of the Act in - - -

GUMMOW J: Yes, but the square includes 3B(3), that is all.

MR GAGELER: Yes, it is within the square and the question – yes, it does. It is not a circle, your Honour, it is a square. The question is, it really comes down to where I started, do you read it up or do you read it down? In our submission, you certainly do not read it up. We do invoke the constitutional principle which, in our submission, is one of extreme importance. That is stated by Justice Kirby in the passage that we have set out at page 56. His Honour did not make it up. His Honour was quoting the New Zealand Court of Appeal. It leads to an approach of strict construction.

GUMMOW J: Yes, but those remarks are not addressed in the situation where the statute itself is abrogating common law rights and the subordinate legislation may moderate that abrogation.

MR GAGELER: That may be a factor that influences the construction, I accept that, your Honour, but it is stating a broad constitutional principle which we would at least like someone to acknowledge and grapple with. The Attorney-General in his submissions notes that the principle has been applied in the House of Lords and the Federal Court, but nevertheless wants to argue that that principle is wrong. In our submission, it is right. That is extremely important. It should have been applied or it should have been at least acknowledged in the present case. If the Court pleases.

GUMMOW J: There is no need to call on the respondents.

We are not satisfied that there are sufficient prospects of success on any appeal to warrant a grant of special leave. Accordingly, special leave is refused with costs in matters 5 and 6.

AT 11.19 AM THE MATTERS WERE CONCLUDED