FORSYTH v DFC of T

Members: Gleeson CJ
Gummow J

Kirby J
Hayne J
Callinan J
Heydon J
Crennan J

Tribunal:
Full High Court of Australia

MEDIA NEUTRAL CITATION: [2007] HCA 8

Decision date: 1 March 2007

Kirby J

48. Giving meaning to legislation is an inherently disputable activity [32] News Ltd v South Sydney District Rugby League Football Club Ltd (2003) ATPR ¶ 41-943 ; (2003) 215 CLR 563 at 580 [ 42 ] per McHugh J. . This is

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especially so where the problem has already engaged three levels of the judicial hierarchy [33] As in this case, the Court of Appeal of New South Wales; the Special Leave Panel of this Court; and the Full Court. The point was not raised or determined in the District Court of New South Wales. . It is not uncommon for differences of opinion to emerge during the litigious journey. Sometimes such differences can be explained by different responses to statutory language or to the context or the purpose discerned in the legislation. Intuitive judgments, often difficult to explain in words, are involved in the task. Different judicial values sometimes inform the resolution of the problem. In the present case all of the foregoing considerations play a part in the outcome.

Appeals and the disputable meaning of legislation

49. Where six Justices of this Court conclude that a contested construction of legislation must be decided in a particular way, their resolution becomes the only correct and lawful interpretation offered by our system of law. Such a high degree of unanimity and substantial concurrence on the point in the Court of Appeal of New South Wales, from which the appeal comes [34] Forsyth v Deputy Commissioner of Taxation (2004) 62 NSWLR 132 . As is explained below at [ 109 ] - [ 111 ] , Gzell J added an additional ground for dismissing the appeal. See at 146 [ 70 ] . , suggest, at the least, a strongly arguable interpretation which (whatever one ' s doubts) a judge inclining to a differing view might accept. To do so eases the burden. It involves acceptance of majority wisdom. It recognises that questions of this kind rarely, if ever, have an objectively " correct " resolution. Why trouble to express a different view when it cannot alter the outcome of the proceedings or contribute to any binding legal principle for which the case will stand [35] Garcia v National Australia Bank Ltd (1998) 194 CLR 395 at 417-418 [ 56 ] . ?

50. There are particular reasons why rejecting this appeal might be attractive. The objection to the jurisdiction of the District Court of New South Wales that is now in contest, was not raised at the trial. When the appeal was before the Court of Appeal, it was not the sole point of resistance to the judgment of the District Court advanced by the appellant. Other points, also of a technical kind, were raised and successively rejected [36] Forsyth (2004) 62 NSWLR 132 at 139-146 [ 36 ] - [ 66 ] (the validity of notices and an argument of abuse of process). A further argument raised before this Court concerning the validity of the appointment of Acting Judges to the District Court of New South Wales was abandoned following the decision of the Court in Forge v Australian Securities and Investments Commission (2006) 80 ALJR 1606 ; 229 ALR 223 . . They are not now before this Court.

51. The appellant ' s objection to jurisdiction is entirely technical. It is not concerned with the factual merits of his excuse (if there be one) concerning his liability, under ss 222AOC and 222AOD of the Income Tax Assessment Act 1936 (Cth) ( " the 1936 Act " ), as a director in office of a company which failed to remit to the Commissioner the amounts it deducted from the salaries of its employees under the PAYE system for the instalment remission of employees ' income tax [37] See reasons of Gleeson CJ, Gummow, Hayne, Callinan, Heydon and Crennan JJ ( “ the joint reasons ” ) at [ 8 ] - [ 13 ] . . That system is one of great importance for the integrity of the collection of tax payments in Australia, upon which the governmental system of the country depends.

52. Moreover, it was accepted during argument that there was no time bar or other limitation in the way of the later pursuit of a recovery from the appellant in fresh proceedings, were the present appeal to succeed [38] Joint reasons at [ 19 ] . . A measure of irritation about the appellant ' s jurisdictional argument is therefore understandable. Especially so because, as it appears, if his argument is correct, supervening changes in the jurisdiction of the Common Law Division of the Supreme Court of New South Wales would result in the commencement of fresh proceedings in the District Court, the very court whose jurisdiction the appellant now challenges [39] See joint reasons at [ 31 ] . .

53. Yet it is of the first importance for the rule of law which underpins Australia ' s constitutional arrangements [40] Australian Communist Party v The Commonwealth (1951) 83 CLR 1 at 193; Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 at 513-514 [ 104 ] . , that technical legal arguments, if found to be valid, should ordinarily be upheld. If they have merit in law, that is normally sufficient to attract relief from a court of law. Especially so where what is involved is the jurisdiction of a court within the integrated Judicature of the Commonwealth. The absence of such jurisdiction, if legally established, destroys the hypothesis upon which the binding force of the court ' s judgment and orders rests. This Court was informed that, apart from the position of the appellant, other cases wait in the wings for the resolution of this appeal.

54. Also important for such resolution is the context of federal jurisdiction provided by the Judiciary Act 1903 (Cth) ( " the Judiciary Act " ), s 39(2). The appellant argued that this had been given inadequate attention by the Court of Appeal as a contextual matter supporting his case [41] In this matter the Court of Appeal recognised that the District Court was exercising federal jurisdiction as contemplated by the Constitution, ss 75(iii) and 76(ii) and by the Judiciary Act, s 39(2). See Forsyth (2004) 62 NSWLR 132 at 135 [ 6 ] - [ 7 ] . . It is central to the hypothesis upon which the integrated courts provided for in the Australian Constitution operate, that a court exercising federal jurisdiction shall " neither exceed nor neglect any jurisdiction which the law confers on " it [42] cf Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 at 513-514 [ 104 ] . .

55. 

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Pursuant to special leave, the appellant now has his objection before the Full Court of this Court. The objection has been argued in full. Whilst a conclusion adverse to the appellant has found favour with the majority and will control the outcome of the appeal, it is my opinion that such conclusion is legally flawed. The correct interpretation of the legislation in issue is that urged for the appellant. Having reached that conclusion, I am obliged to give effect to it and to explain why. Other branches of government suppress differences and legitimately deal in compromises. In the discharge of the work of the judicial branch, the governing obligation of all members is individual honesty and transparent integrity. Process is important; not just outcomes.

The facts, legislation and common ground

56. The facts and legislation : The facts and the legislation necessary for an understanding of this appeal are set out in the reasons of Gleeson CJ, Gummow, Hayne, Callinan, Heydon and Crennan JJ ( " the joint reasons " ). I will not repeat any of the descriptive material [43] The facts appear in the joint reasons at [ 5 ] - [ 7 ] . The legislative scheme for the recovery of the “ penalty ” and for the jurisdiction of the District Court when exercising federal jurisdiction also appears there at [ 5 ] - [ 16 ] . .

57. The common ground : None of the facts necessary to the resolution of the appeal was contested. Nor is it essential to add reference to any other legislation. The question for statutory construction presented by the appeal is a relatively confined and straight-forward one. Ultimately, it is directed to the issue of whether, when the Deputy Commissioner of Taxation ( " the respondent " ) commenced proceedings in the District Court against Mr Ross Forsyth ( " the appellant " ), that Court was " invested with federal jurisdiction " within the meaning of s 39(2) of the Judiciary Act.

58. Unless, having regard to its " locality, subject-matter, or otherwise " , the respondent ' s action was " within the limits of " the jurisdiction of the District Court, that Court had no power or authority under federal law to entertain the respondent ' s proceedings. Specifically, it had no power or authority to make orders or to enter judgment against the appellant. Although the point of jurisdiction was not pleaded or raised at trial, it is a fundamental one. It goes to the root of the validity of the orders made. The appellant might be penalised in costs for having failed to raise the objection at an earlier stage. However, if he could make good his arguments of law and demonstrate the invalidity of the District Court ' s assumption of jurisdiction whilst the proceedings are before the Judicature, he would ordinarily be entitled to relief against the judgment and orders concerned. No discretionary or like considerations would warrant withholding relief in the circumstances of this case.

59. Because the law providing for the investment of federal jurisdiction in the District Court refers to the " several Courts of the States " and to the " limits of their several jurisdictions " , it is inherent in the scheme for conferring federal jurisdiction, as envisaged by the Constitution [44] Constitution, s 77(iii). and enacted by federal law, that regard must be had to the applicable State law providing for, and defining, the " limits of [ the ] several jurisdictions " of the State court concerned. Thereby, federal law " picks up " the relevant State law which then operates not by its own force but as a kind of " surrogate federal law " given effect by the Judiciary Act in order to fulfil the scheme of the Constitution ' s " autochthonous expedient " [45] R v Kirby ; Ex parte Boilermakers ’ Society of Australia (1956) 94 CLR 254 at 268 per Dixon CJ, McTiernan, Fullagar and Kitto JJ. .

60. The State law so applied is, relevantly, s 44(1)(a)(i) of the District Court Act 1973 (NSW) ( " the District Court Act " ) [46] cf Solomons v District Court (NSW) (2002) 211 CLR 119 at 134-135 [ 24 ] , 146 [ 60 ] , 169 [ 139 ] . . It follows that the focus of attention in this appeal has been on the meaning of that sub-paragraph. It is not the sub-paragraph as an item of State law to which this Court gives effect but as a provision envisaged by, and effectively given the force of federal law in, the Judiciary Act, s 39(2). Although I do not understand this point to be contested by the respondent (or disputed in the joint reasons), it is, as I shall show, an important consideration, with consequences for the meaning to be given to s 44(1)(a)(i) of the District Court Act. And it points to a construction opposite to that reached by the majority.

61. At the time s 44(1)(a)(i) took the form in which it appeared when the respondent commenced his proceedings [47] On 29 August 2001. See joint reasons at [ 17 ] , [ 21 ] . , invoking the jurisdiction of the District Court, those proceedings " if brought in the Supreme Court " would not then " be assigned to the Common Law Division of that Court " . By reason of changes to the inter-Divisional assignments of jurisdiction in the Supreme Court made before the filing of the statement of liquidated claim in

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the District Court, an action of that kind " would be assigned " to the Equity Division of the Supreme Court [48] Joint reasons at [ 26 ] fn 19, [ 30 ] . On 30 June 2000, Pt 12 r 5(b)(vi) of the Supreme Court Rules 1970 (NSW) was added: “ There shall be assigned to the Equity Division: … (b) proceedings in the Court: … (vi) in relation to any provision in any Act or Commonwealth Act by which a tax, fee, duty or other impost is levied, collected or administered by or on behalf of the State or the Commonwealth ” . It was accepted by the parties that this Rule was in force when these proceedings were commenced.
. It was this change of assignment that occasioned the appellant ' s submissions critical to the fate of this appeal.

62. Put simply, the appellant argued that, if the respondent ' s action had been brought in the Supreme Court, it would not have been assigned to the Common Law Division of that Court but to the Equity Division. It followed that the precondition to the existence of jurisdiction in the District Court to " hear and dispose of " the respondent ' s action, as stated in s 44(1)(a)(i) of the District Court Act, was absent. The precondition to the existence of jurisdiction in the District Court was not enlivened either by the terms of the relevant federal law (the Judiciary Act, s 39(2)) or by the relevant State law which that federal law picked up and applied (the District Court Act, s 44(1)(a)(i)).

63. In an attempt to scramble out of the consequences of such a construction, suggested by the language of the federal and State laws as they intermesh, the respondent urged that the State law, engaged by the federal law, was to be given a " fixed time " interpretation and not the " ambulatory " interpretation urged for the appellant. That submission is accepted in the joint reasons [49] Joint reasons at [ 40 ] - [ 45 ] . . With respect, I find it unconvincing.

64. As the joint reasons correctly acknowledge, there is nothing in the explanatory note or the Second Reading Speech introducing the amendment to s 44(1)(a) of the District Court Act [50] Courts Legislation Further Amendment Act 1997 (NSW), Sched 1 Item 1.5 [ 2 ] . See joint reasons at [ 21 ] . , to support the favoured construction [51] Joint reasons at [ 40 ] . . As I shall show, the respondent ' s construction is fundamentally inconsistent with (1) the language of the governing legislation; (2) the decisional background against which the amendment to the District Court Act was introduced; (3) the canons of construction that govern the ascertainment of the meaning of such legislation; and (4) various considerations of general principle that support the appellant ' s submission, however inconvenient the consequences which then follow in this case.

The issues

65. Two issues are presented by this appeal:

66. 

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The joint reasons conclude that s 44(1)(a)(i) of the District Court Act should be given a " fixed time " meaning, thereby sustaining dismissal of the appeal on the first issue without determination of the second issue. In my opinion, each of the issues should be answered adversely to the respondent.

The District Court Act s 44(1)(a)(i) is ambulatory

67. The federal context : In a beneficial and original provision, the Constitution of the Commonwealth envisages " investing any court of a State with federal jurisdiction " [54] Constitution, s 77(iii). . The Constitution also provides for the creation of federal courts, other than this Court, and for the definition of the jurisdiction of such courts and for the extent to which such jurisdiction should " be exclusive of that which belongs to or is invested in the courts of the States " [55] Constitution, s 77(ii). See also s 77(i). .

68. The Constitution, and federal law made under it, might have proceeded to confine the exercise of all federal jurisdiction to federal courts. However, this was not done. Instead, the original notion of investing State courts with federal jurisdiction has persisted. The present is such a case. By s 220AAZA(4) of the 1936 Act [56] In respect of the deductions made prior to 1 July 1998, s 221R of the 1936 Act applies. See joint reasons at [ 15 ] - [ 16 ] . , it is provided that:

" A recoverable amount may be sued for and recovered in a court of competent jurisdiction by the Commissioner or a Deputy Commissioner suing in his or her official name. "

69. In the present case, it was pursuant to this federal law that the respondent sought to invoke the jurisdiction of the District Court. However, by the federal law mentioned, a precondition to that invocation is that the court must be a court " of competent jurisdiction " . Such is required by the federal legislation particular to this case. It is also required by the general scheme for the exercise of federal jurisdiction, enacted by the Federal Parliament soon after the Constitution came into force. By s 39(2) of the Judiciary Act, the investment of federal jurisdiction in the " several Courts of the States " is confined to remaining " within the limits of their several jurisdictions " .

70. The original constitutional idea of investing federal jurisdiction in State courts would not have worked successfully and efficiently if the Federal Parliament had purported to establish rules for the limits of jurisdiction different from those defined by State laws. Had the Federal Parliament conferred federal jurisdiction on a Local or Magistrates Court of a State in terms indifferent to the limits imposed on such courts by State laws, the result would have been to disrupt the orderly conduct by those courts of State jurisdiction and possibly to exceed the competence, powers, experience and any specialist expertise of the State court concerned.

71. So much is self-evident. But it is equally plain (and has been the experience of the Commonwealth since federation) that the number and identity of the " several Courts of the States " has changed over time. Particular State courts have been created, abolished, sometimes re-created in a new form, modified and renamed over time, in response to the perceived needs of the several States as determined by their Parliaments [57] Examples include the Industrial Court of New South Wales. For the history of that Court see Batterham v QSR Ltd (2006) 80 ALJR 995 at 1010-1011 [ 71 ] - [ 72 ] ; 227 ALR 212 at 230-231. There are many other examples including the former Land and Valuation Court of New South Wales created by the Land and Valuation Court Act 1921 (NSW); the then Workers ’ Compensation Commission, created by the Workers ’ Compensation Act 1926 (NSW); and the former Compensation Court of New South Wales created by the Compensation Court Act 1984 (NSW). . This was an inevitable development, and thus within the contemplation of the constitutional and statutory provisions in Australia for the exercise by State courts of federal jurisdiction. So was the alteration from time to time of the limits imposed by State law on the jurisdiction of State courts. Thus, over the decades of federation, the jurisdiction of the District Court of New South Wales has changed significantly [58] The history of the District Court of New South Wales and of its powers, dating from the first creation of such courts by the District Courts Act 1858 (NSW), is described in Pelechowski v Registrar, Court of Appeal (NSW) (1999) 198 CLR 435 at 473-474 [ 118 ] - [ 119 ] . . The constitutional and federal legislative provisions must be taken to have anticipated such variations, and to have provided for them and adapted to them.

72. The scheme for the operation of the interactive federal and State legislation contemplated by the Constitution and by s 39(2) of the Judiciary Act is relatively simple. In order to discover whether one of the " several Courts of the States " shall be " invested with federal jurisdiction " a straight-forward criterion is expressed. The jurisdiction concerned is to be " within the limits " fixed by State law, " whether such limits are as to locality, subject-matter, or otherwise " . Because such " limits " may be changed from time to time by State law, the measure of federal jurisdiction is provided by the expressed limits of State jurisdiction. Hence, Dixon J ' s correct inference that any change made by the State to the " limits " of the jurisdiction of a State court " would, under the terms of s 39(2), ipso facto make an identical

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change in its Federal jurisdiction " [59] Minister of State for the Army v Parbury Henty & Co Pty Ltd (1945) 70 CLR 459 at 505. . In
The Commonwealth v The District Court of the Metropolitan District Holden at Sydney [60] (1954) 90 CLR 13 at 20 per Dixon CJ, Kitto and Taylor JJ (emphasis added). , this Court said:

" The view that has been tacitly accepted is that the expression ' within the limits of their several jurisdictions ' refers to the limits imposed by the relevant State law in operation from time to time whether enacted before or after the commencement of the Judiciary Act " .

73. These features of the interactive provisions of the Constitution, of general and special federal legislation and of State law, do not, of themselves, resolve the present point of construction. However, they do suggest that the appellant has the better side of the argument. This is because the whole idea that lies behind the federal provisions for the conferral of federal jurisdiction on State courts contemplates that such conferral will accord with alterations in the limits provided by State law, as made from time to time. No other inter-relationship would work effectively or be consistent with the arrangement contemplated in the provisions of s 39(2) of the Judiciary Act.

74. Once it is appreciated that the " limits " of such jurisdiction may, and do, vary from time to time, thereby altering the availability of a State court for the investment of the federal jurisdiction applicable to the particular case, it can be understood that such jurisdiction will be altered from time to time. As would ordinarily be contemplated, the new limits provided by State law (given effect by the federal law) will normally apply to a federal action with reference to the date on which such proceedings purport to engage the jurisdiction of the court concerned.

75. The joint reasons state that the contemplation of fluctuation of jurisdiction from time to time, expressed in s 39(2) of the Judiciary Act, is not a " decisive consideration " [61] Joint reasons at [ 34 ] . . It may not be " decisive " , true. However, it is surely a very powerful contextual argument for the interpretation of a State law addressed to defining the " limits " of the jurisdiction of a State court that inevitably attracts the operation of s 39(2) of the Judiciary Act. State law-makers can be deemed to know that, under s 39(2), virtually since federation, alterations to the " limits of [ the ] several jurisdictions " of the " Courts of the States " ipso facto alter the capacity of such courts to be " invested with federal jurisdiction " in the designated matters. It must be remembered, also, that the integrated character of the federal and State courts within the Judicature of the Commonwealth [62] Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51 at 94-96 per Toohey J, 103 per Gaudron J, 115-118 per McHugh J, 137-139 per Gummow J. is a vitally important and beneficial feature of the Australian constitutional and legislative design. Accordingly, no interpretation should be adopted that would divorce the reading of State legislation relevant to the specification of the " limits of [ the ] jurisdictions " of State courts from the consequences that such alterations automatically have for the exercise of federal jurisdiction from time to time.

76. Authorities and analogies from other countries do not bear upon this important matter of the Australian constitutional context. That is a context highly significant for the interpretation of a provision such as s 44(1)(a)(i) of the District Court Act. The Court of Appeal was correct to note that the jurisdiction in this case, as exercised by the District Court, was federal jurisdiction [63] In this respect, it did not fall into the error evident in several earlier proceedings in this Court where the point was overlooked. See eg British American Tobacco Australia Ltd v Western Australia (2003) 217 CLR 30 at 69 [ 98 ] . . However, it erred in failing to perceive the significance of that conclusion for the construction of the State law where, as in this case, that law became the means by which the limits of the District Court ' s jurisdiction were defined, from time to time, for the purposes of the Judiciary Act of the Commonwealth.

77. The provisions of s 39(2) of the Judiciary Act have been described as themselves continuing " in force from day to day as a law presently speaking, and [ operating ] upon the courts of a State as they are brought into existence and upon the limits of their respective jurisdictions as they are defined or redefined " [64] The Commonwealth v The District Court of the Metropolitan District Holden at Sydney (1954) 90 CLR 13 at 22, see also at 20; Le Mesurier v Connor (1929) 42 CLR 481 at 503. . Indeed, those provisions have been described as the means of continuing " to bring up to date federal jurisdiction in line with the latest State law on State jurisdiction " [65] Lane ’ s Commentary on The Australian Constitution , 2nd ed (1997) at 633. See generally at 632-634. . This, in my view, is how they should be construed.

78. This construction does not imply any power on the part of the Federal Parliament to alter the State courts in which jurisdiction is invested [66] Le Mesurier v Connor (1929) 42 CLR 481 at 496. But cf Re Tracey ; Ex parte Ryan (1989) 166 CLR 518 at 545, 574, 592 noted in (1989) 63 Australian Law Journal 666. . On the contrary, it involves a recognition that the Federal Parliament selects the State court concerned, with the appreciation that the " limits " of its jurisdiction may be

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altered unilaterally from time to time by State law. If the federal law-maker does not like subsequent changes, its remedy is to withdraw the investment of federal jurisdiction and to invest the jurisdiction concerned in a federal court. That remedy has been available since 1903 because of the existence of this Court. However, in recent times especially, it has become a much more viable proposition, following the creation of several federal courts with large jurisdictions and powers.

79. It follows that the scheme of the applicable federal legislation expressly envisages the enactment of ambulatory State provisions which, as enacted over time and as successively amended, will define the limits of jurisdiction that they provide to apply to actions which the parties initiate in the several courts of the States. To adopt a " fixed time " interpretation of s 44(1)(a)(i) of the District Court Act undermines the simple operation of State laws providing successive and different " limits " to the several jurisdictions of State courts. The ambulatory construction, urged by the appellant, avoids such an outcome. It fulfils the provision for the fluctuation in State laws long envisaged by the terms of the federal Judiciary Act.

80. Textual indications : The majority are not convinced by the textual considerations urged by the appellant [67] See joint reasons at [ 35 ] . See also at [ 43 ] - [ 44 ] . . However, in this respect, they are mistaken.

81. The language of s 44(1)(a)(i) is expressed in terms of the subjunctive mood ( " if brought in the Supreme Court, would be assigned to the Common Law Division " ). The use of the subjunctive mood suggests the contemplation of the hypothesis that the jurisdiction of the Common Law Division of the Supreme Court would be altered from time to time after the adoption of this version of s 44(1)(a).

82. Had it been the intention of the State Parliament to adopt a " fixed time " provision in s 44(1)(a)(i), it would have said so. Thus, it would have used the ordinary (or indicative) mood in the sub-paragraph. Thus, it would have said " which, if brought in the Supreme Court, is assigned to the Common Law Division of that Court " . Such would have been the language appropriate to fixing the jurisdiction of the Common Law Division as that existing at the time of the enactment of the provision.

83. Instead, the subjunctive mood reflects the double hypothesis required of the reader of the sub-paragraph. First, the reader must hypothesise the bringing of the proceedings in the Supreme Court (although they are actually brought in the District Court). And secondly, the reader must ask where such hypothesised proceedings " would be assigned " within the Supreme Court, that is, would be assigned at the time that is relevant, namely on their commencement. In a provision expressed in the subjunctive mood and in such conditional and hypothetical terms, it is quite artificial to impose a meaning that is fixed in time.

84. Elsewhere in the joint reasons, it is argued that, as a matter of textual analysis, the definite and fixed language appearing in s 44(1)(a)(ii) suggests a similar construction for the immediately preceding sub-paragraph, s 44(1)(a)(i) [68] Joint reasons at [ 44 ] . . I beg to differ. Where Parliament has intended a " fixed time " provision, it has said so expressly in plain language stated in the indicative mood and in the present tense ( " in which the amount claimed does not exceed $ 750,000 " ) [69] District Court Act, s 44(1)(a)(ii) (emphasis added). By the Civil Procedure Act 2005 (NSW), the jurisdictional limit previously existing in s 44(1)(a)(ii) was amended by removing the fixed dollar amount existing at the time when these proceedings were commenced and replacing it with the present formulation expressed by reference to “ the Court ’ s jurisdictional limit & rdquo;. By s 4 of the District Court Act, the “ jurisdictional limit ” is defined to mean “ $ 750,000 ” . . This makes the preceding sub-paragraph, stated in the subjunctive mood and conditionally ( " would be assigned " ), all the more clear as an express indication that Parliament has recognised that varying assignments will arise from time to time and that they must be given meaning as they arise in defining the jurisdiction of the District Court.

85. It is thus in the nature of the discrimen adopted in s 44(1)(a)(i) that it is variable and, indeed, capable of variation by subordinate legislation, namely the Rules of the Supreme Court of the State made by the Rule Committee of that Court [70] Supreme Court Act 1970 (NSW), s 124(3). . Where the State Parliament intended a specific provision to govern the criterion of jurisdiction of the District Court, it said so, as it did in respect of the fixed financial limit of jurisdiction stated in s 44(1)(a)(ii). Where Parliament contemplated a particular character of the action as the discrimen for a District Court action, it said so by reference to a quality inherently variable over time (assignment to a specified Division of the Supreme Court) and in language that expressly recognised such variability ( " would be assigned " ).

86. 

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Textual analysis therefore supports the interpretation urged by the appellant. It negates the interpretation urged for the respondent.

87. Assignment incorporates the Rules : At the time of the enactment of the amendment that introduced s 44(1)(a)(i) into the District Court Act in its present substantive form, the provision for assignments of actions between the Divisions of the Supreme Court of New South Wales, contemplated by the Supreme Court Act 1970 (NSW), envisaged the assignment of business between the Divisions as " [ s ] ubject to the rules " [71] Supreme Court Act 1970 (NSW), s 53. . Therefore, when Parliament chose assignment to the Common Law Division as one of the two criteria for ascertainment of the jurisdiction, in actions of a similar kind in the District Court, inferentially it did so fully aware that such assignment could be altered (as it commonly was [72] See joint reasons at [ 28 ] - [ 32 ] . ) by the simple expedient of the adoption of new Rules of Court.

88. The joint reasons accept what was said in the Court of Appeal [73] Forsyth (2004) 62 NSWLR 132 at 136 [ 14 ] . that " [ i ] t is by no means clear that the words ' [ s ] ubject to the rules ' in s 53 of the Supreme Court Act prior to 1998, authorised the reassignment of matters from one Division to another " . They agree that the expression could also credibly concern the imposition of additional prerequisites upon the institution of proceedings in another court [74] Joint reasons at [ 37 ] . .

89. This argument is also unconvincing. If the discrimen of assignment to a Division of the Supreme Court is adopted, and if such assignments may, by statute, be achieved by alteration of the Rules of Court, the provision for such assignment is picked up and applied as the applicable first criterion stated in the District Court Act. True, the making of a new Rule of Court might sometimes be difficult at first to ascertain. On occasion, there could be uncertainty as to the proper assignment of the action and whether it is to the Common Law Division or some other Division of the Supreme Court. However, the criterion itself is relevantly clear, objective and expressed as a matter of law. In practice, legal practitioners in the State would have to clarify the assignment if they were, in fact, to commence an action in the Supreme Court. All that s 44(1)(a)(i) of the District Court Act required was that they should make the same inquiry, albeit conditional and hypothetical, by reference to any decision to invoke the jurisdiction of the District Court for the purpose of commencing the action there. In terms of practicalities, a practitioner in doubt would consult the Supreme Court Rules, the Internet and, if necessary, a desk officer in the Registry of the Supreme Court. As an argument against the adoption of this objective standard, the suggested uncertainty should be rejected.

90. Interpretation Act and statutory purpose : The Interpretation Act 1987 (NSW) ( " the Interpretation Act " ), s 68(1) gives effect to the contemporary principle that legislation is now ordinarily to be construed as " always speaking " , that is, speaking to those subject to it from time to time in terms that they can ascertain from the statutory text without the need to adopt the posture of a legal antiquarian, searching for meanings in books of legal history.

91. Section 68(1) states:

" In any Act or instrument, a reference to some other Act or instrument extends to the other Act or instrument, as in force for the time being. "

92. The joint reasons find this provision inapplicable on the ground that there is no " ' reference to some other Act ' within the meaning of s 68 " , in the language of s 44(1)(a)(i) of the District Court Act [75] Joint reasons at [ 36 ] . . With all respect, this too is unconvincing. The word " reference " in a statute of general application, such as the Interpretation Act, is not to be limited to a case of express reference. That would be quite artificial. It would frustrate the achievement of the large purposes of the Interpretation Act and particularly of s 68(1). A " reference " may be specific. But it may also be general. It may also be express. It may be implied. To read s 44(1)(a)(i) of the District Court Act as not referring to another statute, but to a " state of the law " [76] See joint reasons at [ 36 ] . at an earlier time, is artificial. Especially so where the " state of the law " concerned incorporates the assignment of actions between Divisions of the Supreme Court of the State, as varied from time to time. This is clearly contemplated by s 44(1)(a)(i) of the District Court Act.

93. Remedial legislation such as s 68(1) should not be read narrowly so as to undermine its operation. Possibly unpalatable outcomes do not authorise the adoption of artificial constructions. The duty of courts is to the

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neutral interpretation of legislative provisions and a purposive and constructive interpretation of statutes of general operation, such as the Interpretation Act. Especially so because the provisions of s 68(1) have been enacted precisely to overcome a previous common law presumption that, in the absence of a clear indication that a reference to another piece of legislation was to be ambulatory, the reference was to be taken as one to legislation in the " fixed time " form it took when the referring legislation was enacted [77] Pearce and Geddes, Statutory Interpretation in Australia , 6th ed (2006) at 211 [ 6.19 ] . .

94. Thus, the provisions of s 68(1) of the Interpretation Act were adopted to overcome the results of such decisions as
In re Universal Distributing Co Ltd (in liq) [78] (1933) 48 CLR 171 at 173. and
Commissioner for Government Transport v Deacon [79] (1957) 97 CLR 535 at 546. . The old common law rule produced outcomes contrary to the obvious and rational design of the legislators. Ordinarily, this is to the effect that legislation continues to speak from time to time so that reference in one statute to another will normally be taken as a reference to that statute as it is amended and varied from time to time.

95. Each of the Interpretation Acts of Australia now contains a provision similar to s 68 of the New South Wales Act [80] Acts Interpretation Act 1901 (Cth), s 10; Interpretation of Legislation Act 1984 (Vic), s 17; Acts Interpretation Act 1915 (SA), s 14B(3); Acts Interpretation Act 1954 (Q), s 14H; Interpretation Act 1984 (WA), s 16; Acts Interpretation Act 1931 (Tas), s 17; Interpretation Act (NT), s 50; Legislation Act 2001 (ACT), s 102. . If this Court adopts a construction of such a provision that undermines the achievement of its large purposes, we will force legislators into expressing their will in statutory language of increasing particularity, specificity, detail and complexity. At the very least, in a statute of general application, such as the Interpretation Act, it behoves the Court to give the provision a full and ample operation because such an Act represents an attempt by Parliament to speak to the courts in the language of principles concerning the way in which (exceptional circumstances apart) Parliament has itself intended to express its statutory commands. If such Acts state the rules by which parliamentary counsel draft legislation, courts should generally be ready to interpret the legislation in accordance with the stated provisions.

96. The result of provisions such as s 68(1) of the Interpretation Act is that, if legislation is referred to in some other Act or instrument, the reference is ordinarily to be taken to adopt an ambulatory meaning. If a contrary meaning is to be accepted, and the provisions incorporated are to be fixed as at the date at which the referring legislation was made, this outcome will need to be spelt out in clear language. That certainly cannot be said of this case. Occasionally, a fixed time meaning will be accepted because of the clarity of the statutory reference [81] cf Switzerland Insurance Australia Ltd v Mowie Fisheries Pty Ltd (1997) 74 FCR 205 at 220-221. . Generally, however, the courts have given effect to what is now effectively the modern " statutory presumption " that legislation is to be treated as " always speaking " and thus to include reference to amendments and variations as made from time to time [82] Promenade Investments Pty Ltd v New South Wales (1992) 26 NSWLR 203 at 223-224; Hore v Albury Radio Taxis Co-operative Society Ltd (2002) 56 NSWLR 210 at 222-223 [ 40 ] - [ 44 ] ; Pearce and Geddes, Statutory Interpretation in Australia , 6th ed (2006) at 211 [ 6.19 ] . Contrast Forsyth 2005 ATC 4025 ; (2004) 62 NSWLR 132 at 138 [ 28 ] - [ 29 ] . .

97. The present is not a case where the reference to another Act is to one that has since been repealed or remade in a substantially different form. The reference here is to inter-Divisional assignments within the Supreme Court. Self-evidently, such assignments have been altered from time to time. That is inherent in the very notion of assignments. There has thus been no repeal or revision of the fundamental idea contained in s 44(1)(a)(i). Its essential provisions were unaltered when, on 29 August 2001, the respondent commenced the present action in the District Court.

98. The object of incorporating the reference to the assignment to the Common Law Division of the Supreme Court, as the criterion for the jurisdiction of the District Court, can best be understood by referring to the explanation of the previous criterion ( " any personal action at law " ) set out in the reasons of Priestley JA in
Vale v TMH Haulage Pty Ltd [83] (1993) 31 NSWLR 702 at 706-708. . That decision clarifies the purpose of the amended terms of s 44(1)(a). The difficulty with the criterion " personal action at law " was that it took a court, obliged to give meaning to that expression, to " authority dating back to well before Blackstone " [84] Vale v TMH Haulage Pty Ltd (1993) 31 NSWLR 702 at 707. . The clear object of Parliament, then, in substituting a criterion expressed by reference to the assignment to the Common Law Division of the Supreme Court, was to avoid such time-consuming and disputable historical inquiries. It would be a very odd result to conclude that, when Parliament amended s 44(1)(a) of the District Court Act, it simply substituted one historical inquiry for another.

99. The " always speaking " principle : Unfortunately, in my opinion, the joint reasons on this occasion have reverted to an approach to statutory construction which reflects the

ATC 4296

previous, and now usually discarded, principle expressed in the Latin maxim contemporanea expositio est optima et fortissima in lege [85] 2 Co Inst 11. (A contemporaneous exposition is the best and most powerful in law, that is, the best way to construe a document is to read it as it would have been read when made.) See Burke (ed), Jowitt ’ s Dictionary of English Law , 2nd ed (1977), vol 1 at 441. See also Broom ’ s Legal Maxims , 10th ed (1939) at 463; Butterworths Australian Legal Dictionary , (1997) at 259; Corporate Affairs Commission (NSW) v Yuill (1991) 172 CLR 319 at 322-323. . Regrettably, this is an approach that is increasingly creeping back into statutory interpretation of contemporary Australian legislation in this Court [86] See eg Coventry v Charter Pacific Corporation Ltd (2005) 80 ALJR 132 at 148 [ 76 ] - [ 77 ] , 153 [ 113 ] ; 222 ALR 202 at 220-221, 227-228; Central Bayside General Practice Association Ltd v Commissioner of State Revenue (2006) 80 ALJR 1509 at 1527-1528 [ 77 ] - [ 84 ] ; 229 ALR 1 at 21-23; Sons of Gwalia Ltd v Margaretic [ 2007 ] HCA 1 at [ 104 ] . . I do not agree with it.

100. The approach favouring the ascertainment of statutory meaning by reference to its meaning at the time of the first enactment of progenitor provisions is generally inconsistent with the modern " purposive " construction of legislation, otherwise adopted by this Court [87] Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at 381-382 [ 69 ] - [ 71 ] . . It sits uncomfortably with developments in the enacted law on interpretation of legislation (illustrated by s 68 of the Interpretation Act). It is hard to reconcile with the repeated insistence of this Court, where enacted law governs the question, upon the primacy of parliamentary commands to be derived from the actual legislative text [88] Central Bayside General Practice Association Ltd v Commissioner of State Revenue 2006 ATC 4610 ; (2006) 80 ALJR 1509 at 1528 [ 84 ] , fn 64; 229 ALR 1 at 22-23. . It undermines the notion that rights and duties expressed in legislation should ordinarily be ascertainable from the text and should not require those subject to it to search through legal history and extraneous materials for the content of the governing law. It adds to the cost of litigation by requiring the discovery of the law as it stood at some earlier time rather than as it appears in the law in the books as now enacted. It diminishes the significance of the contemporary context of the written law. It puts a premium on searching through the annals of history which is even more inaccessible to people coming before the courts than is the text of presently binding statutes and subordinate legislation.

101. Considerations such as these have led courts in many countries to turn away from the previous approach encapsulated in the contemporanea expositio maxim [89] For example, in India, the Supreme Court has declined to apply that approach. See Senior Electric Inspector v Laxminarayan Chopra AIR 1962 SC 159 at 162-163; Raja Ram Jaiswal v State of Bihar AIR 1964 SC 828 at 836; cf National and Grindlays Bank Ltd v Municipal Corporation for Greater Bombay AIR 1969 SC 1048 ; Singh, Principles of Statutory Interpretation , 9th ed (2004) at 296. . Generally speaking, courts have done so except for the construction of ambiguous language used in some very old statutes where the language itself may have enjoyed a rather different denotation [90] Campbell College, Belfast (Governors) v Commissioner of Valuation for Northern Ireland [ 1964 ] 1 WLR 912 at 941-942; [ 1964 ] 2 All ER 705 at 727 (HL). . Because context is now increasingly seen as a very important influence on the ascertainment of statutory meaning [91] R (Daly) v Secretary of State for the Home Department [ 2001 ] 2 AC 532 at 548 [ 28 ] per Lord Steyn who stated that “ [ i ] n law, context is everything ” . See also Al-Kateb v Godwin (2004) 219 CLR 562 at 624 [ 174 ] . , I respectfully disagree with the revived inclination on the part of the majority of this Court to construe contemporary Australian legislation by reference to historical inquiries rather than the elucidation of meaning from the text itself [92] Coleman v Power (2004) 220 CLR 1 at 95-96 [ 245 ] - [ 246 ] applying Ahmad v Inner London Education Authority [ 1978 ] QB 36 at 48 per Scarman LJ. See also Pearce and Geddes, Statutory Interpretation in Australia , 6th ed (2006) at 122-124 [ 4.9 ] - [ 4.10 ] ; Bennion, Statutory Interpretation , 4th ed (2002) at 762-763. . Regrettably, the present is another case where, instead of giving a legislative provision its natural meaning, as intended to operate from time to time, the majority have accepted an historical meaning, fixed at the moment that the legislation was enacted and ascertainable only by those with the skill and resources to search for how the law stood at that moment.

102. The approach favoured by the majority is so antithetical both to the developments reflected in the statutory presumption now contained in the Interpretation Act, s 68 and to the modern principles of statutory interpretation, that I cannot agree to it. It involves attributing to the commands of Parliament, intended to operate from time to time, a circumscribed and unnatural limitation that runs counter to the general (and in my view beneficial) development of modern principles of statutory construction which the Court has applied elsewhere [93] See for example R v Gee (2003) 212 CLR 230 at 241 [ 7 ] . . Where, as here, reference is made in legislation to an arrangement that is necessarily governed by, or under, legislation ( " assignment " as between Divisions of a Supreme Court), and where it is inherent in that item of reference that the " assignment " will be altered from time to time, and where federal legislation expressly contemplates varying " limits " of jurisdiction that will fluctuate from time to time, the imposition of an historical " fixed time " meaning as the criterion for the limit on jurisdiction offends the language, purpose and federal context of the provisions in question. This Court should say so.

103. There are no competing principles that warrant adopting a different course. It is true that a presumption is sometimes recognised in the law that, where a court is invested with jurisdiction to determine certain matters, it may be supposed that Parliament intended to take the court as it found it with procedures and powers apt for the discharge of all of its functions [94] cf Electric Light and Power Supply Corporation Ltd v Electricity Commission of NSW (1956) 94 CLR 554 at 560. . However, this well-known principle, and other rules favourable to the maintenance of an established jurisdiction of a court [95] See for example Shergold v Tanner (2002) 209 CLR 126 at 136 [ 33 ] . , cannot override an enactment with the clear language of s 44(1)(a)(i) of the District Court Act by which the jurisdiction of the District Court of New South Wales is " limited " in a way enlivening the alteration

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from time to time of the boundaries of federal jurisdiction.

104. Conclusion: jurisdiction is " limited " : From these reasons, it follows that a correct interpretation of s 44(1)(a)(i) of the District Court Act sustains the conclusion that the provision is an ambulatory one, addressing the subject of its commands in terms that confine the jurisdiction of the District Court by reference to the jurisdiction of the Common Law Division of the Supreme Court of the State, as from time to time assigned. This is both what the words say and what they mean by reference both to the State and federal contexts in which they operate. It is the meaning that is confirmed by a textual analysis of the language; by a consideration of its basic purpose; by an application to it of the provisions of the Interpretation Act, s 68; and by following the general approach to the construction of contemporary Australian legislation, so that it is accepted as " always speaking " .

105. Whilst the consequence that follows is a burden on the respondent, he, of all litigants, is very well provided with legal advice and cannot really complain about the inconvenience or injustice of the mistake that occurred in commencing his proceedings in the District Court without apparently checking (or checking carefully) whether an action of such a kind, if brought in the Supreme Court, would have been assigned to the Common Law Division of that Court or not.

106. Every observer of the relationship in recent years between the Supreme Court and the District Court in New South Wales would be aware of the shift to the District Court of a substantial part of the trial litigation formerly conducted in the Supreme Court of the State. However, that shift has been confined to criminal and other matters, as ordinarily assigned to the Common Law Division of the Supreme Court. There are, no doubt, reasons for confining the movement of business in such a way. Doubtless they include the powers and remedies available to the District Court [96] Pelechowski v Registrar, Court of Appeal (NSW) (1999) 198 CLR 435 at 449 [ 43 ] - [ 44 ] , 460 [ 78 ] , cf at 482-483 [ 142 ] . ; the capacity of the District Court to absorb the increase in cases; the ordinary expertise of the judges of the District Court; and the available number of judicial personnel [97] Forge v Australian Securities and Investments Commission (2006) 80 ALJR 1606 at 1640 [ 140 ] , 1650 [ 181(4) ] ; 229 ALR 223 at 262, 275. .

107. Once these contextual considerations are added to the ingredients taken into account in resolving the present appeal, the harmony of the interpretation propounded by the appellant is plain and the disharmony of that advanced for the respondent becomes even clearer [98] Commissioner of Stamp Duties v Permanent Trustee Co Ltd (1987) 9 NSWLR 719 at 722; Catto v Ampol Ltd (1989) 16 NSWLR 342 at 345-346; Hore v Albury Radio Taxis Co-operative Society Ltd (2002) 56 NSWLR 210 at 222 [ 39 ] . .

108. The jurisdiction and powers of the District Court were intended to constitute the alter ego of the Common Law Division of the Supreme Court of the State. This makes it a natural, and relatively simple, inquiry to ascertain, from time to time, the jurisdiction of the latter so as to identify the jurisdiction of the former. The limits of jurisdiction so enacted become the limits of federal jurisdiction, as provided by the Judiciary Act, s 39(2). At the relevant time, the District Court was not a " court of competent jurisdiction " for the respondent ' s action, within the meaning of s 220AAZA(4) of the 1936 Act. The respondent could not, therefore, invoke the jurisdiction of that Court to sue the appellant in an action claiming the " recoverable amount " alleged to be due under the 1936 Act. Save for the point raised by the respondent ' s notice of contention, to which I now turn, these conclusions entitle the appellant to succeed in the appeal.

The recoverable amount was a tax, fee etc

109. The contention issue : By his amended notice of contention, the respondent sought to support the additional ground, propounded by Gzell J in the Court of Appeal, for holding that the proceedings remained " assigned " to the Common Law Division and were not " assigned " to the Equity Division under the amendment to the Supreme Court Rules 1970 (NSW), Pt 12 r 5(b)(vi), as described in the joint reasons [99] Joint reasons at [ 24 ] - [ 32 ] , [ 46 ] . .

110. Gzell J concluded [100] Forsyth 2005 ATC 4025 ; (2004) 62 NSWLR 132 at 146-147 [ 70 ] - [ 75 ] . that the " penalty " for which the respondent had commenced his proceedings in the District Court was not included in the collocation " a tax, fee, duty or other impost " , proceedings for the recovery of which were, at the time of the commencement of the respondent ' s proceedings, assigned to the Equity Division of the Supreme Court. Neither Spigelman CJ nor Giles JA endorsed this suggested reason for upholding the jurisdiction of the District Court. In my view, the majority of the Court of Appeal were correct in holding back from support of this additional argument.

111. The matter for decision is whether the provisions of the taxation legislation under which the respondent, by his action in the

ATC 4298

District Court, sought to recover the amount alleged to be recoverable as a debt due to the Commonwealth from the appellant [101] Pursuant to the 1936 Act, s 220AAZA(4). , were within the relevant Rule of Court. A proper understanding of the legislation confirms that the provisions of the amended Rules of Court were satisfied. Proceedings such as the action brought by the respondent would have been assigned to the Equity Division of the Supreme Court in the place of the Common Law Division, until those provisions were later altered [102] See above at [ 69 ] . .

112. A provision for collection of a tax : Section 221C(1A) of the 1936 Act imposed a duty on employers to make deductions from payments of salary and wages to employees at the identified times. Section 220AAM [103] In respect of the deductions made prior to 1 July 1998, s 221F(5) of the 1936 Act applies. See joint reasons at [ 9 ] - [ 11 ] , [ 14 ] - [ 16 ] . of the 1936 Act imposed an obligation on employers to remit amounts so deducted. Section 221H(3) of the 1936 Act provided that the employee was entitled to credit against an assessment (if tax were payable) for amounts so deducted. Section 4-10 of the Income Tax Assessment Act 1997 (Cth) provided for the method of calculating the amount of liability to income tax. The Income Tax Rates Act 1986 (Cth) provided in s 12(1) and Sched 7 for the applicable rates of tax.

113. It is tolerably clear from this scheme of legislation that the fundamental purpose and object of the creation of the " penalty " , payable by a person such as the appellant, was to provide a means " by which " a tax, levied on the employer, could be " collected " in circumstances where, contrary to the 1936 Act, the employer had failed to remit to the Commissioner the amounts deducted from the salary or wages of employees [104] Joint reasons at [ 6 ] . .

114. The legislation operates in that way both by direct and indirect prescription. It discourages companies from failing to comply with their obligations to remit the amount collected from employees to the Commissioner by making it clear that any such failure will be visited not only with consequences for the companies concerned but also with individual consequences for the directors upon whom there is imposed a continuing obligation to cause the company to comply with its obligations [105] Joint reasons at [ 10 ] , citing s 222AOB of the 1936 Act. . Moreover, in the case of default, the " penalty " that falls upon a director of a company that has not complied with its remittance obligation is measured exactly by reference to " an amount equal to the unpaid amount " of the company ' s liability [106] Joint reasons at [ 10 ] - [ 13 ] , citing ss 222AOC, 222AOD of the 1936 Act. .

115. In such circumstances, looking at the provisions of the applicable taxation legislation in its entirety, it is clear that the " penalty " the respondent sought to recover by bringing his " action " in the District Court was brought in reliance upon legislation " by which " a " tax " was " collected " . It therefore fell within the amended Rule of Court that rendered the action of a kind which, if brought in the Supreme Court, would be assigned to the Equity Division of that Court.

116. It is important to note the generality of the words in the amended Rule of Court assigning proceedings to the Equity Division. To be so assigned to the Equity Division, it was sufficient that the proceedings be " in relation to any provision " [107] Supreme Court Rules 1970 (NSW), Pt 12 r 5(b)(vi) (emphasis added). . The overall objective of the reassignment was clearly to shift collection proceedings concerned with State and federal taxation legislation from the Common Law Division of the Supreme Court to the Equity Division. That purpose should be given effect for the period in which the amended Rule of Court operated [108] See joint reasons at [ 31 ] - [ 32 ] . .

117. Conclusion: contention rejected : It follows that, upon the construction that I would give to s 44(1)(a)(i) of the District Court Act and Pt 12 r 5(b)(vi) of the Supreme Court Rules, the action was not one which the District Court had jurisdiction to hear and dispose of at the time the respondent purported to invoke that Court ' s jurisdiction. The point advanced in the respondent ' s amended notice of contention should be rejected.

Orders

118. Both issues having been resolved against the respondent, the appellant is entitled to succeed. At the applicable time, the District Court did not have jurisdiction to hear and dispose of the respondent ' s action against the appellant. The judgment of the District Court against the appellant cannot stand.

119. The appeal should be allowed with costs. The orders of the Court of Appeal of the Supreme Court of New South Wales should be set aside. In place of those orders, this Court should order that the appeal to the Court of Appeal be allowed; the judgment of the District Court of New South Wales, dated 26 September 2003, should be set aside; and in place thereof it

ATC 4299

should be ordered that the action be dismissed for want of jurisdiction. I would reserve the disposition of the costs in the Court of Appeal and in the District Court to be determined by the Court of Appeal.

Footnotes

[32] News Ltd v South Sydney District Rugby League Football Club Ltd (2003) ATPR ¶ 41-943 ; (2003) 215 CLR 563 at 580 [ 42 ] per McHugh J.
[33] As in this case, the Court of Appeal of New South Wales; the Special Leave Panel of this Court; and the Full Court. The point was not raised or determined in the District Court of New South Wales.
[34] Forsyth v Deputy Commissioner of Taxation (2004) 62 NSWLR 132 . As is explained below at [ 109 ] - [ 111 ] , Gzell J added an additional ground for dismissing the appeal. See at 146 [ 70 ] .
[35] Garcia v National Australia Bank Ltd (1998) 194 CLR 395 at 417-418 [ 56 ] .
[36] Forsyth (2004) 62 NSWLR 132 at 139-146 [ 36 ] - [ 66 ] (the validity of notices and an argument of abuse of process). A further argument raised before this Court concerning the validity of the appointment of Acting Judges to the District Court of New South Wales was abandoned following the decision of the Court in Forge v Australian Securities and Investments Commission (2006) 80 ALJR 1606 ; 229 ALR 223 .
[37] See reasons of Gleeson CJ, Gummow, Hayne, Callinan, Heydon and Crennan JJ ( “ the joint reasons ” ) at [ 8 ] - [ 13 ] .
[38] Joint reasons at [ 19 ] .
[39] See joint reasons at [ 31 ] .
[40] Australian Communist Party v The Commonwealth (1951) 83 CLR 1 at 193; Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 at 513-514 [ 104 ] .
[41] In this matter the Court of Appeal recognised that the District Court was exercising federal jurisdiction as contemplated by the Constitution, ss 75(iii) and 76(ii) and by the Judiciary Act, s 39(2). See Forsyth (2004) 62 NSWLR 132 at 135 [ 6 ] - [ 7 ] .
[42] cf Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 at 513-514 [ 104 ] .
[43] The facts appear in the joint reasons at [ 5 ] - [ 7 ] . The legislative scheme for the recovery of the “ penalty ” and for the jurisdiction of the District Court when exercising federal jurisdiction also appears there at [ 5 ] - [ 16 ] .
[44] Constitution, s 77(iii).
[45] R v Kirby ; Ex parte Boilermakers ’ Society of Australia (1956) 94 CLR 254 at 268 per Dixon CJ, McTiernan, Fullagar and Kitto JJ.
[46] cf Solomons v District Court (NSW) (2002) 211 CLR 119 at 134-135 [ 24 ] , 146 [ 60 ] , 169 [ 139 ] .
[47] On 29 August 2001. See joint reasons at [ 17 ] , [ 21 ] .
[48] Joint reasons at [ 26 ] fn 19, [ 30 ] . On 30 June 2000, Pt 12 r 5(b)(vi) of the Supreme Court Rules 1970 (NSW) was added: “ There shall be assigned to the Equity Division: … (b) proceedings in the Court: … (vi) in relation to any provision in any Act or Commonwealth Act by which a tax, fee, duty or other impost is levied, collected or administered by or on behalf of the State or the Commonwealth ” . It was accepted by the parties that this Rule was in force when these proceedings were commenced.

[49] Joint reasons at [ 40 ] - [ 45 ] .
[50] Courts Legislation Further Amendment Act 1997 (NSW), Sched 1 Item 1.5 [ 2 ] . See joint reasons at [ 21 ] .
[51] Joint reasons at [ 40 ] .
[52] Forsyth 2005 ATC 4025 ; (2004) 62 NSWLR 132 at 146 [ 70 ] .
[53] Subdiv B of Div 9 of Pt VI of the 1936 Act. See joint reasons at [ 46 ] .
[54] Constitution, s 77(iii).
[55] Constitution, s 77(ii). See also s 77(i).
[56] In respect of the deductions made prior to 1 July 1998, s 221R of the 1936 Act applies. See joint reasons at [ 15 ] - [ 16 ] .
[57] Examples include the Industrial Court of New South Wales. For the history of that Court see Batterham v QSR Ltd (2006) 80 ALJR 995 at 1010-1011 [ 71 ] - [ 72 ] ; 227 ALR 212 at 230-231. There are many other examples including the former Land and Valuation Court of New South Wales created by the Land and Valuation Court Act 1921 (NSW); the then Workers ’ Compensation Commission, created by the Workers ’ Compensation Act 1926 (NSW); and the former Compensation Court of New South Wales created by the Compensation Court Act 1984 (NSW).
[58] The history of the District Court of New South Wales and of its powers, dating from the first creation of such courts by the District Courts Act 1858 (NSW), is described in Pelechowski v Registrar, Court of Appeal (NSW) (1999) 198 CLR 435 at 473-474 [ 118 ] - [ 119 ] .
[59] Minister of State for the Army v Parbury Henty & Co Pty Ltd (1945) 70 CLR 459 at 505.
[60] (1954) 90 CLR 13 at 20 per Dixon CJ, Kitto and Taylor JJ (emphasis added).
[61] Joint reasons at [ 34 ] .
[62] Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51 at 94-96 per Toohey J, 103 per Gaudron J, 115-118 per McHugh J, 137-139 per Gummow J.
[63] In this respect, it did not fall into the error evident in several earlier proceedings in this Court where the point was overlooked. See eg British American Tobacco Australia Ltd v Western Australia (2003) 217 CLR 30 at 69 [ 98 ] .
[64] The Commonwealth v The District Court of the Metropolitan District Holden at Sydney (1954) 90 CLR 13 at 22, see also at 20; Le Mesurier v Connor (1929) 42 CLR 481 at 503.
[65] Lane ’ s Commentary on The Australian Constitution , 2nd ed (1997) at 633. See generally at 632-634.
[66] Le Mesurier v Connor (1929) 42 CLR 481 at 496. But cf Re Tracey ; Ex parte Ryan (1989) 166 CLR 518 at 545, 574, 592 noted in (1989) 63 Australian Law Journal 666.
[67] See joint reasons at [ 35 ] . See also at [ 43 ] - [ 44 ] .
[68] Joint reasons at [ 44 ] .
[69] District Court Act, s 44(1)(a)(ii) (emphasis added). By the Civil Procedure Act 2005 (NSW), the jurisdictional limit previously existing in s 44(1)(a)(ii) was amended by removing the fixed dollar amount existing at the time when these proceedings were commenced and replacing it with the present formulation expressed by reference to “ the Court ’ s jurisdictional limit & rdquo;. By s 4 of the District Court Act, the “ jurisdictional limit ” is defined to mean “ $ 750,000 ” .
[70] Supreme Court Act 1970 (NSW), s 124(3).
[71] Supreme Court Act 1970 (NSW), s 53.
[72] See joint reasons at [ 28 ] - [ 32 ] .
[73] Forsyth (2004) 62 NSWLR 132 at 136 [ 14 ] .
[74] Joint reasons at [ 37 ] .
[75] Joint reasons at [ 36 ] .
[76] See joint reasons at [ 36 ] .
[77] Pearce and Geddes, Statutory Interpretation in Australia , 6th ed (2006) at 211 [ 6.19 ] .
[78] (1933) 48 CLR 171 at 173.
[79] (1957) 97 CLR 535 at 546.
[80] Acts Interpretation Act 1901 (Cth), s 10; Interpretation of Legislation Act 1984 (Vic), s 17; Acts Interpretation Act 1915 (SA), s 14B(3); Acts Interpretation Act 1954 (Q), s 14H; Interpretation Act 1984 (WA), s 16; Acts Interpretation Act 1931 (Tas), s 17; Interpretation Act (NT), s 50; Legislation Act 2001 (ACT), s 102.
[81] cf Switzerland Insurance Australia Ltd v Mowie Fisheries Pty Ltd (1997) 74 FCR 205 at 220-221.
[82] Promenade Investments Pty Ltd v New South Wales (1992) 26 NSWLR 203 at 223-224; Hore v Albury Radio Taxis Co-operative Society Ltd (2002) 56 NSWLR 210 at 222-223 [ 40 ] - [ 44 ] ; Pearce and Geddes, Statutory Interpretation in Australia , 6th ed (2006) at 211 [ 6.19 ] . Contrast Forsyth 2005 ATC 4025 ; (2004) 62 NSWLR 132 at 138 [ 28 ] - [ 29 ] .
[83] (1993) 31 NSWLR 702 at 706-708.
[84] Vale v TMH Haulage Pty Ltd (1993) 31 NSWLR 702 at 707.
[85] 2 Co Inst 11. (A contemporaneous exposition is the best and most powerful in law, that is, the best way to construe a document is to read it as it would have been read when made.) See Burke (ed), Jowitt ’ s Dictionary of English Law , 2nd ed (1977), vol 1 at 441. See also Broom ’ s Legal Maxims , 10th ed (1939) at 463; Butterworths Australian Legal Dictionary , (1997) at 259; Corporate Affairs Commission (NSW) v Yuill (1991) 172 CLR 319 at 322-323.
[86] See eg Coventry v Charter Pacific Corporation Ltd (2005) 80 ALJR 132 at 148 [ 76 ] - [ 77 ] , 153 [ 113 ] ; 222 ALR 202 at 220-221, 227-228; Central Bayside General Practice Association Ltd v Commissioner of State Revenue (2006) 80 ALJR 1509 at 1527-1528 [ 77 ] - [ 84 ] ; 229 ALR 1 at 21-23; Sons of Gwalia Ltd v Margaretic [ 2007 ] HCA 1 at [ 104 ] .
[87] Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at 381-382 [ 69 ] - [ 71 ] .
[88] Central Bayside General Practice Association Ltd v Commissioner of State Revenue 2006 ATC 4610 ; (2006) 80 ALJR 1509 at 1528 [ 84 ] , fn 64; 229 ALR 1 at 22-23.
[89] For example, in India, the Supreme Court has declined to apply that approach. See Senior Electric Inspector v Laxminarayan Chopra AIR 1962 SC 159 at 162-163; Raja Ram Jaiswal v State of Bihar AIR 1964 SC 828 at 836; cf National and Grindlays Bank Ltd v Municipal Corporation for Greater Bombay AIR 1969 SC 1048 ; Singh, Principles of Statutory Interpretation , 9th ed (2004) at 296.
[90] Campbell College, Belfast (Governors) v Commissioner of Valuation for Northern Ireland [ 1964 ] 1 WLR 912 at 941-942; [ 1964 ] 2 All ER 705 at 727 (HL).
[91] R (Daly) v Secretary of State for the Home Department [ 2001 ] 2 AC 532 at 548 [ 28 ] per Lord Steyn who stated that “ [ i ] n law, context is everything ” . See also Al-Kateb v Godwin (2004) 219 CLR 562 at 624 [ 174 ] .
[92] Coleman v Power (2004) 220 CLR 1 at 95-96 [ 245 ] - [ 246 ] applying Ahmad v Inner London Education Authority [ 1978 ] QB 36 at 48 per Scarman LJ. See also Pearce and Geddes, Statutory Interpretation in Australia , 6th ed (2006) at 122-124 [ 4.9 ] - [ 4.10 ] ; Bennion, Statutory Interpretation , 4th ed (2002) at 762-763.
[93] See for example R v Gee (2003) 212 CLR 230 at 241 [ 7 ] .
[94] cf Electric Light and Power Supply Corporation Ltd v Electricity Commission of NSW (1956) 94 CLR 554 at 560.
[95] See for example Shergold v Tanner (2002) 209 CLR 126 at 136 [ 33 ] .
[96] Pelechowski v Registrar, Court of Appeal (NSW) (1999) 198 CLR 435 at 449 [ 43 ] - [ 44 ] , 460 [ 78 ] , cf at 482-483 [ 142 ] .
[97] Forge v Australian Securities and Investments Commission (2006) 80 ALJR 1606 at 1640 [ 140 ] , 1650 [ 181(4) ] ; 229 ALR 223 at 262, 275.
[98] Commissioner of Stamp Duties v Permanent Trustee Co Ltd (1987) 9 NSWLR 719 at 722; Catto v Ampol Ltd (1989) 16 NSWLR 342 at 345-346; Hore v Albury Radio Taxis Co-operative Society Ltd (2002) 56 NSWLR 210 at 222 [ 39 ] .
[99] Joint reasons at [ 24 ] - [ 32 ] , [ 46 ] .
[100] Forsyth 2005 ATC 4025 ; (2004) 62 NSWLR 132 at 146-147 [ 70 ] - [ 75 ] .
[101] Pursuant to the 1936 Act, s 220AAZA(4).
[102] See above at [ 69 ] .
[103] In respect of the deductions made prior to 1 July 1998, s 221F(5) of the 1936 Act applies. See joint reasons at [ 9 ] - [ 11 ] , [ 14 ] - [ 16 ] .
[104] Joint reasons at [ 6 ] .
[105] Joint reasons at [ 10 ] , citing s 222AOB of the 1936 Act.
[106] Joint reasons at [ 10 ] - [ 13 ] , citing ss 222AOC, 222AOD of the 1936 Act.
[107] Supreme Court Rules 1970 (NSW), Pt 12 r 5(b)(vi) (emphasis added).
[108] See joint reasons at [ 31 ] - [ 32 ] .

 

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