Andrew Casey v Richard Luke Alcock  ACTCA 1 (23 January 2009) The ACT Court of Appeal has indicated that the UK's Ghaidan approach to legislative construction - which allows a court to depart from the unambiguous meaning of the legislation where necessary to give effect to a designated purpose - does not necessarily apply under the Legislation Act 2001 (ACT) or Human Rights Act 2004 (ACT) ('HR Act (ACT)').
Alcock was injured in a motor vehicle accident and lodged a claim with the driver's insurer. Under s 61 of the Civil Law (Wrongs) Act 2002 (ACT) the insurer was obliged to provide written notice stating whether it admitted or denied liability. The insurer admitted that its client had breached his duty of care. Alcock commenced proceedings approximately three and a half years after the accident, outside the statutory limitation period. However, s 32 of the Limitation Act 1985 (ACT) provides that if, during the limitation period, a person against whom a cause of action lies confirms the existence of the cause of action, then the time before receiving that confirmation does not count in the reckoning of the limitation period.
The trial judge found that the insurer's letter constituted a confirmation of Alcock's cause of action and thus the limitation period did not begin to run until the respondent received the letter. Consequently, the proceedings were initiated within time.
On appeal, the insurer argued that its admission of liability was not a confirmation for the purposes of s 32 of the Limitation Act 1985 (ACT), as the consequent restarting of the limitation period was contrary to the purpose of the Civil Law (Wrongs) Act 2002. In support of this argument, the insurer asserted that s 139 of the Legislation Act 2001 (ACT) was analogous to s 3 of the Human Rights Act 1998 (UK) ('HR Act (UK)'), in that both required a court to 'prefer' one meaning to another. In the case of the Legislation Act, a meaning 'that would best achieve the purpose of the Act' is to be preferred, while s 3 of the HR Act (UK) obliges courts to prefer an interpretation that is consistent with the European Convention on Human Rights.
In respect of the HR Act (UK), the House of Lords has found that courts are allowed to depart from the unambiguous meaning the legislation would otherwise bear to give effect to that designated purpose: Ghaidan v Godin-Mendoza  2 AC 557. Accordingly, if the Ghaidan principle applied, the Court would be required to overlook the unambiguous language of s 32 and instead construe the section in a way which the insurer submitted would better give effect to the intention of the Act.
The Court of Appeal unanimously dismissed the appeal, holding that s 32 of the Limitation Act 1985 (ACT) required the reckoning of the limitation period to be restarted, so that the action was commenced within time, and that there was no power or obligation under ACT law to disregard the unambiguous wording of the provision.
Besanko and Refshauge JJ both rejected the approach in Ghaidan on the basis that, unlike section 3 of the HR Act (UK), s 139 of the Legislation Act 2001 (ACT) explicitly retains the purpose of the legislation in question as the determining factor in statutory interpretation. Similarly, the obligation to interpret legislation consistently with human rights under s 30 of the HR Act (ACT) is expressly subject to the purpose of the relevant legislative provision. Thus, in the ACT, the purpose of legislation takes primacy over its human rights implications in statutory interpretation.
Refshauge J noted that the insurer relied on a previous decision of the ACT Court of Appeal, in which the Court had stated, in obiter, that s 139 of the Legislation Act 'seem[ed to be] in similar form to the interpretive provision in the HR Act (UK)': Kingsley's Chicken Pty Ltd v Queensland Investment Corp  ACTCA 9 at -. His Honour held that the Court of Appeal was not suggesting that s 139(1) of the Legislation Act authorised or required a court to take the type of approach adopted by the House of Lords in Ghaidan, but that if it did, he would decline to follow its observations in any event.
His Honour went beyond finding that the Legislation Act did not require a Ghaidan style analysis, and observed that:
Nor, in my respectful opinion, is it correct to say that, in a case in which a human right was in issue, s 30(1) of the Human Rights Act authorised and required a Court to take the type of approach taken by the House of Lords in Ghaidan: at .
Section 30 of the HR Act (ACT)has always been subject to a requirement that a Court adopt an interpretation which is consistent with the purpose of the legislative provision. Conversely, the primary constraint under s 3(1) of the HR Act (UK) is stated in terms of what is or is not possible, not what is intended by the provision, and hence can provide a court with the ability to go beyond unambiguous wording.
Relevance to the Victorian Charter
Like s 30 of the HR Act (ACT), and unlike s 3 of the HR Act (UK), the obligation to interpret legislation consistently with human rights in s 32(1) of the Victorian Charter is expressly subject to the purpose of the legislation.
Refshauge J's observations regarding the application of Ghaidan to the HR Act (ACT)were obiter and thus not binding. It remains to be seen how far Victorian courts will go to give effect to the operation of s 32(1) as the primary remedial provision under the Victorian Charter.
The decision is available at http://www.courts.act.gov.au/supreme/judgmentsca/casey.htm.
Charlotte Lau, Human Rights Law Group, Mallesons Stephen Jaques