Lukey v Edmunds

21 CLR 336

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(Judgment by: Isaacs J)

Between: Lukey
And: Edmunds

Court:

Judges: Griffith CJ
Barton J

Isaacs JGavan Duffy J
Rich J

Subject References:
Statutes
Interpretation
Generalia specialibus non derogant
Necessary commodity

Legislative References:
Gas Act 1912 (NSW) No 71 - s 15; s 20
Necessary Commodities Control Act 1914 (NSW) No 18 - s 1; s 2; s 7; s 8

Hearing date: SYDNEY 5 April 1916; 6 April 1916; 11 April 1916
Judgment date: 11 April 1916

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Judgment by:
Isaacs J

The Necessary Commodities Control Act 1914 provides that during what may be called "the war period," the Governor in Council, acting on the report of a Commission, may from time to time, fix the maximum price at which necessary commodities may be sold for consumption in New South Wales. "Necessary commodity" is, by s. 2, declared to mean, except where inconsistent with the context, certain things including "(b) gas for lighting, cooking, or industrial purposes."

The appellant contends that "gas" there must be read to mean "gas other than gas sold by the Australian Gas Light Co , the North Shore Gas Co Ltd , and the City of Newcastle Gas and Coke Co Ltd " That is a formidable alteration of the literal phraseology of the Act; but it is said that the Court ought to adopt it on practically two grounds, which to some extent run into each other, but are really distinct. One is that the maxim Generalia specialibus non derogant applies, because the three companies named are already dealt with as to price by the Gas Act 1912. Therefore, it is said, there being no reference to that Act, or to those companies, in the Act of 1914, it must be taken that Parliament did not intend to alter its special regulation with regard to those companies. The other ground is, that the rule in Heydon's Case ^[F6] is applicable: that the Court should look beyond the mere words of the Act of 1914, to the intent of the Parliament in passing it, which is to be found by ascertaining the mischief to be remedied. When this is done, so runs the argument, it is seen there was no mischief in respect of prices to be remedied in relation to these three companies. Consequently they should be regarded as outside the scope of the enactment when it is thus properly construed.

The first ground mentioned rests on a well-recognized principle which is, after all, this-that when Parliament has once solemnly expressed its will on any subject, that stands until it is clearly shown to be superseded by a change of intention.

The principle has been stated by the Privy Council in Barker v Edger, ^[F7] at p. 754, and so is beyond discussion by me. It is expressed in these terms:

"The general maxim is, Generalia specialibus non derogant. When the Legislature has given its attention to a separate subject, and made provision for it, the presumption is that a subsequent general enactment is not intended to interfere with the special provision unless it manifests that intention very clearly."

And then their Lordships add:

"Each enactment must be construed in that respect according to its own subject matter and its own terms."

It is, of course, possible, but quite unprofitable, to examine the various cases cited and others of a like nature in order to ascertain why in each instance the Court came to its conclusion for or against the alteration of the law as enacted in the special Statute. Once the principle is found and stated, other cases have served their purpose. The problem is how to apply it to the enactments we have before us.

And, in doing this, there is a passage in the judgment of Willes J. in Daw v Metropolitan Board of Works, ^[F8] at p. 179 which it is very important to remember. That learned Judge, after acknowledging the force of the general maxim, proceeded to distinguish the case before him, and said:"So soon as you find the Legislature is dealing with the same subject matter in both Acts, so far as the later Statute derogates from and is inconsistent with the earlier one, you are under the necessity of saying that the Legislature did intend in the later Statute to deal with the very case to which the former Statute applied."

Now, the Gas Act 1912 is, as to all except the group of sections 15 to 20 inclusive, an Act of general application to all companies, corporations, firms or persons in New South Wales supplying any gas "for lighting, heating, motive power, or other purpose" for profit. It further applies to any municipal council which supplies gas in competition with any other gas supplier, but apparently does not apply to any municipality being the sole supplier in any place. As to the group of ss. 15 to 20 inclusive, they are in the nature of a standing form, which Parliament has already applied to the three companies named and may, in the contemplation of the Statute itself, at any future time specifically apply to any other company as defined by the Act.

But the central point to be observed in this connection is not so much a distinction between a general Act and a special Act as the distinction as to subject matter. Is it "gas its purity and price," on the one hand, as the main subject matter dealt with-the provisions as to company profits and dividends being incidental to the main purpose, and introduced only for their relation to the general public; or is it the "companies" themselves, on the other hand, as the main subject matter, with profit and dividend provisions introduced as part of the social compact between the shareholders, the general public having no concern in those provisions? The answer is that the subject matter of the Act of 1912 is "gas," not "companies." (See per Lord Selborne in Seward v The Vera Cruz, ^[F9] at p. 66.)

That group of sections is, with necessary local modifications, substantially based on English precedents-principally the Gasworks Clauses Act 1847, the South Metropolitan Gas Act 1900, the Commercial Gas Act 1902 and the Model Gas Bill 1910. (See Michael and Wills on the Law relating to Gas and Water, 6th ed., p. 361.) It contains, however, some important additions, notably s. 19.

So far as material here, it may be said that it provides that an increase of dividend beyond the standard rate involves a proportionate reduction of price, and that an increase of price beyond the standard price involves a proportionate reduction of dividend. But maintenance of the standard rate of dividend entitles the companies to maintain the statutory standard or price, with statutory increase in a particular instance, subject to statutory reduction back to normal standard in a stated event, immaterial here.

It is true that s. 19 is a stringent section, and stimulates to some extent the inducement to reduce prices which it created by other sections. But I am not prepared to say how far its intended effect is complete even under ordinary peace conditions.

The profits of the Company are dependent on many considerations besides the price it charges for the gas supplied. And I am not at all sure what is meant by the phrase in s. 19 "paying moneys from profits," or when or how or by whom the amount of "profits" there referred to is to be ascertained.

One thing is clear, namely, that although the Act of 1912 does deal with the price of gas as a subject matter yet the Act provides no method by which an individual consumer can obtain direct and expeditious and certain relief from what may be an excessive charge for the gas he consumes.

But the mere fact that the two Acts, that of 1912 and that of 1914, do expressly and specifically deal with gas, and deal with it in relation to the price to be charged to the consumer, brings into play the observations of Willes J. in the passage I have quoted, and renders inapplicable the maxim relied on. Once the subject matter is shown to be identical, the whole foundation of the maxim disappears.

The second contention is also based on the fact of the special provision made by the Act of 1912, but on a different ground from that just dealt with. It is that the mere fact of a special provision being made establishes that there was no public mischief to be dealt with in relation to these companies, and the generality of the later Act should be cut down accordingly on the authority of Heydon's Case. ^[F10] The principle of that case is very frequently invoked to restrict the general words of a Statute.

But it cannot be too carefully borne in mind that that principle, valuable as it is in its proper place, is wholly inapplicable where the words of the enactment are in themselves unambiguous. Read the Act itself in the first place; if it is clear and unambiguous it is its own expositor. If its language is ambiguous, resort must be had to recognized canons of construction to discover which of the meanings of which the ambiguous words are reasonably capable is the true one. Some recent cases of the highest authority show how firmly this principle is to be applied.

In Vacher & Sons Ltd v London Society of Compositors, ^[F11] at pp. 117, 118 Lord Macnaghten, after quoting the well known words of Lord Wensleydale in Grey v Pearson, ^[F12] at p. 106 and recognizing the duty of construing Acts according to the "intent of the Parliament" which passes them, refers to what he calls the note of warning given by Tindal C.J. in the Sussex Peerage Case, ^[F13] at p. 143. There the Lord Chief Justice used these words:"If the words of the Statute are in themselves precise and unambiguous, then no more can be necessary than to expound those words in their natural and ordinary sense. The words themselves alone do, in such case, best declare the intention of the lawgiver." Then Lord Macnaghten adds for himself this passage:"Nowadays, when it is a rare thing to find a preamble in any public general Statute, the field of inquiry is even narrower than it was in former times. In the absence of a preamble there can, I think, be only two cases in which it is permissible to depart from the ordinary and natural sense of the words of an enactment. It must be shown either that the words taken in their natural sense lead to some absurdity or that there is some other clause in the body of the Act inconsistent with, or repugnant to, the enactment in question construed in the ordinary sense of the language in which it is expressed."

In a later case in the same volume (Inland Revenue Commissioners v Herbert, ^[F14] at p. 332) Lord Haldane L.C. observed, with special appositeness to the present case:"My Lords, in approaching the controversy as to the meaning of these sections I think it worth while to recall a principle which must always be borne in mind in construing Acts of Parliament, and particularly legislation of a novel kind. The duty of a Court of law is simply to take the Statute it has to construe as it stands, and to construe its words according to their natural significance. While reference may be made to the state of the law, and the material facts and events with which it is apparent that Parliament was dealing, it is not admissible to speculate on the probable opinions and motives of those who framed the legislation, excepting in so far as these appear from the language of the Statute. That language must indeed be read as a whole. If the clearly expressed scheme of the Act requires it, particular expressions may have to be read in a sense which would not be the natural one if they could be taken by themselves. But subject to this the words used must be given their natural meaning, unless to do so would lead to a result which is so absurd that it cannot be supposed, in the absence of expressions which are wholly unambiguous, to have been contemplated."

In City of London Corporation v Associated Newspapers Ltd, ^[F15] at p. 692 Lord Atkinson reaffirmed the view of Lord Macnaghten in Vacher & Sons' Case. ^[F16] Again, Lord Haldane L.C., in Watney, Combe, Reid & Co v Berners, ^[F17] at p. 891, said that "the intention" of Parliament "must be found in the language finally adopted in the Statutes under construction, and in that language alone. No doubt general words may in certain cases properly be interpreted as having a meaning or scope other than the literal or usual meaning. They may be so interpreted where the scheme appearing from the language of the Legislature, read in its entirety, points to consistency as requiring the modification of what would be the meaning apart from any context, or apart from the purpose of the legislation as appearing from the words which the Legislature has used, or apart from the general law."

In Drummond v Collins, ^[F18] at pp. 1017, 1018 Lord Loreburn applied these principles to the Income Tax Acts.

I consequently decline to go outside the four corners of the Act of 1914 for the purpose of discovering its meaning, unless I first see that its language read as a whole is ambiguous. The passage as to extraneous circumstances read and relied on by learned counsel from the judgment of Turner L.J. in Hawkins v Gathercole, ^[F19] at pp. 21, 22 is inapplicable unless, as in that case, the Court first finds ambiguity in the words of the Act, read alone. Indeed, that ambiguity was the foundation of the other part of the same case, the part referred to by Lord Selborne in Seward v The Vera Cruz, ^[F20] at p. 68. In the celebrated passage on page 68, the Lord Chancellor postulates the case of a later Act in which there are general words capable of reasonable and sensible application without attributing to them a sense wide enough to extend to the subject of the earlier legislation. In other words, he postulates that the words are reasonably susceptible of two constructions. That, then, excludes the case of words of precision and unequivocal signification.

Turning then to the Act of 1914 and reading it by the dry light of its own language, I am unable to find any ambiguity whatever in the relevant words, whether they are read alone or in conjunction with the context. Section 1, by restricting the operation of the Act to the war period, and a limited time afterwards during which its effects may be expected to continue, indicates clearly that the purpose of the Legislature is to provide for new events common to the whole State-one of which strongly disturbs the ordinary current of business. The whole community is at war and the whole community is affected by it, and that abnormal event is the basis of the legislation. The immediate object of legislative solicitude is to guard the whole community from excessive cost of the prime necessities of life and industry. Then come the words with which we are immediately concerned, namely, "gas for lighting, cooking, or industrial purposes," which are unqualified. Taken alone in their natural sense and independently of any aid from the preceding words, they are precise and universal, and unless the context introduces some departure from that comprehensiveness, which it does in one respect only, the universality remains. I examine the context both precedent and subsequent only to inquire whether the inherent comprehensiveness of these words is limited.

The Commission, by s. 7, is to report from time to time as to what should be the highest selling prices, having reasonable regard to market conditions, "for the State of New South Wales"-that is, for the whole State without exception.

It may differentiate having regard to the sale or supply under differing terms and conditions or in different parts of New South Wales-and again no exception is made.

By s. 8 the Government may declare the maximum price at which any necessary commodity may be sold for consumption in New South Wales. There is not only no exception as to the area, but there is distinct evidence in that provision that the mind of the Legislature was directed to considering how far the generality of its enactment should in any way be limited. It expressly stopped short of interference with inter-State and foreign trade; but otherwise left its provision universal. The one instance of limitation bears its own significance. By s. 8 also the Governor may differentiate as to different parts of the State.

Thus, with the one exception mentioned, the unrestricted generality of the words immediately relevant is in no way lessened, but on the contrary is confirmed, by the context.

It would, indeed, be surprising if the Legislature, avowedly resting the measure upon the basis of a great national emergency calling for the revision and adjustment by the State itself of private commercial interests, for the sake of the general welfare, so far as prime necessities of the people are concerned, had exempted from the common but temporary obligation these great companies, really public utilities, enjoying by the gift of the State considerable statutory privileges and by their products entering so largely into the daily life of the population. It would be still more surprising if, as is contended for by the appellant, the Legislature had at the same time permitted them to share all the benefits of the scheme of readjustment from contributing to which they were relieved. Coal, for instance, it is said, may be cheapened for their benefit, but their own prices must remain unchallengeable. Those industrial enterprises which utilize the gas supplied by these companies are, by the same argument, to be subject to reduction of prices for the necessary commodities they produce, but the source of the energy they employ cannot be checked. In other words, above them and below them the Act is to operate, but they are to rest unmolested upon an oasis of privilege. For myself it would require the most express language to induce me to give effect to such an argument.

It was said for the appellant that, independently of the definite fixation of a normal standard of price by the Act of 1912, a specific additional right was given by the Statute to have that standard price increased in the manner provided, if an award as to labour conditions increased the cost of production. This right, it was urged, was an important one, and would be unjustly lost if the new Act applied. Even if there were substance in the argument, it could not avail in view of the plain words of the Act. The same difficulty might confront anyone else who had no tribunal to appeal to. But, in truth, there is no substance in it, because under the Act of 1914 the Commission is at liberty to consider all circumstances which influence cost, and the factor referred to, if it occurred, would naturally be relied on by the companies as one of the elements in support of their claim before the Commission to a certain price.

During the argument various other Acts and a certain Local Government Ordinance were referred to relating to a maximum price for gas supplied by other companies and by municipalities. The plain construction of the Act of 1914 renders a consideration of these circumstances superfluous, but they do certainly point very convincingly to the reason why the Legislature made its enactment as broad as it is. So far as I can see, the companies operating under the other Acts, and the municipalities under the Ordinance, are as much entitled to exemption as the three companies scheduled to the Act of 1912. The reference to gas in the Act of 1914 would then be a mere shadow. And, even apart from those other enactments, when we remember that the whole population of New South Wales in August 1914 was about 1,850,000, the exclusion of practically the whole of Greater Sydney, representing a population of about 760,000, and of Newcastle, representing a population of about 58,000, would leave so enormous a gap in the scheme of relief, besides creating and enhancing the relative injustice I have referred to, as, in the absence of express words, to make the position unthinkable.

I am clearly of opinion that the action is unsustainable, and that the appeal should be dismissed.