Prisoners: “bringing” an action & statutory construction

Di Carlo v Kashani-Malaki & Anor [2012] QCA 320

The appeal concerned the construction of s.95 of the Public Trustee Act 1978 as to whether proceeding brought prior to the sentence of imprisonment fell foul of the section. Apart from the discussion as to the meaning of “bringing” proceedings, the judgment of Muir JA with whom the court concurred, is useful in its explanation of the rules of statutory construction.

Muir JA:

[17] Counsel for the Public Trustee and the respondent referred to authorities which supported the conclusion that “bringing” meant commencing or instituting and that “brought” meant commenced or instituted.4 In Tyler v Krause,5 McPherson JA, with whose reasons the other members of the Court agreed, observed:


“[9] The impression that s. 95(b) imposes a disqualification or disability from suing, rather than a prohibition that is breached if action is brought without the written consent of the Public Trustee, is supported by the particular language of s. 95(b) itself. It provides that ‘a prisoner shall be incapable, except with the consent in writing of the Public Trustee … (b) of bringing

… any action …’. Moreover, what seems to me to be conclusive against any other interpretation of the section is the provision in s. 94(1)(f) of the Act. In specifying the powers of the  Public  Trustee  as  manager  of  the  estate  of  a  prisoner,

s. 94(1)(f) provides that the Public Trustee may, in its corporate name or in the name of the prisoner, ‘institute any proceedings of a property nature or for the recovery of any debt or damage’ which the prisoner might have instituted.

[10] The words quoted from s. 94(1)(f) are indistinguishable in substance and effect from those used in s. 95(b) in imposing the disability from bringing any action that is comprehended in that subsection. The proceedings which, under s. 94(1)(f), the Public Trustee may institute are identified as those which the prisoner might have instituted ‘but for the provisions of this part’. From this it is clear that the proceedings which the Public Trustee is by s. 94(1)(f) authorised to institute in the prisoner’s own name are precisely those that the prisoner is by s. 95(b) disabled from bringing himself. It seems clear that the Act does not contemplate that two sets of proceedings might at the same time be instituted in the prisoner’s name, one of them by the Public Trustee and the other by the prisoner himself. Section 94(1)(f) thus confirms that, without the written consent of the Public Trustee, the prisoner is disabled from instituting proceedings because it is only the Public Trustee who may institute them. All action so taken is binding on the prisoner: see s. 94(2).”

[18] A desire to make the language of s 95 accommodate the legislative purpose identified by the appellant as vesting the management of the whole of a prisoner’s estate in the Public Trustee should not be given effect at the expense of ignoring the plain words of s 95 or by giving them a meaning they are not reasonably capable of bearing.   In WACB v Minister for Immigration and Multicultural and Indigenous

Affairs,6  Gleeson CJ, McHugh, Gummow and Heydon JJ observed that in Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation:7


“Gibbs CJ said that the canons of construction should not be treated so rigidly as to prevent the implementation of a realistic solution in the case of a drafting mistake. However, his Honour went on to say that, where the language of a statutory provision is clear and unambiguous, and is consistent and harmonious with the other provisions of the enactment, it must be given its ordinary and grammatical meaning”.


[19] Neither s 14A nor a purposive approach to construction authorises a departure from the grammatical or literal meaning of a statute, where that meaning gives effect to the purpose or object of the statute.8 The court‘s role is one of construction not legislation.9


[20]   In R v Young,10 Spigelman CJ cautioned that although a “court may construe words in the statute to apply to a particular situation or to operate in a particular way, even if the words used would not, on a literal construction, so apply or operate… the words which  actually  appear  in  the  statute  must  be  reasonably  open  to  such a construction.  Construction must be text based.”


[21] The primacy of the language of a statute in the determination of its meaning was affirmed in the judgment of Hayne, Heydon, Crennan and Kiefel JJ in Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue.11   Their Honours said:


“This Court has stated on many occasions that the task of statutory construction must begin with a consideration of the text itself. Historical considerations and extrinsic materials cannot be relied on to displace the clear meaning of the text. The language which has actually been employed in the text of legislation is the surest guide to legislative intention. The meaning of the text may require consideration of the context, which includes the general purpose and policy of a provision, in particular the mischief it is seeking to remedy.”  (citations omitted)


[22] Their Honours also warned against concentrating on the legislative purpose at the expense of due consideration of the text:12


“Fixing upon the general legislative purpose of raising revenue carried with it the danger that the text did not receive the attention it deserves.  This danger was adverted to by Gleeson CJ in Carr v Western Australia when he said:


‘[I]t may be said that the underlying purpose of an Income Tax Assessment Act is to raise revenue for government.    No  one  would  seriously  suggest  that s 15AA of the Acts Interpretation Act has the result that all federal income tax legislation is to be construed so as to advance that purpose. Interpretation of income tax legislation commonly raises questions as to how far the legislation goes in pursuit of the purpose of raising revenue. In some cases, there may be found in the text, or in relevant extrinsic materials, an indication of a more specific purpose which helps to answer the question. In other cases, there may  be  no  available  indication  of a more specific purpose. Ultimately, it is the text, construed according to such principles of interpretation as provide rational assistance in the circumstances of the particular case, that is controlling.’”


[23] This is not a case in which a literal construction of a provision will subvert an obvious legislative intention and produce an obviously unreasonable result.13 The words in s 91 “except as otherwise provided in this part…” are apt to accommodate a situation in which civil proceedings are on foot when s 91 takes effect by operation of s 90. Section 95 “otherwise provides” by necessary implication and it is significant that it is a provision which deals specifically with a prisoner‘s ability to commence and prosecute proceedings.


[24] There is nothing startling or even impractical in the construction favoured by the primary judge and supported by the Public Trustee. It may be expensive in both time and money for the Public Trustee to come to grips with legal proceedings in which a prisoner is engaged when s 91 takes effect. There are other considerations. There may be a need for compliance with court orders, the progress of a trial may be disrupted or a forensic advantage lost if the management of an existing proceeding automatically vests in the Public Trustee.


[25] In Watson v Watson,14 Hood J, in considering legislation similar to that under consideration, said:


“The words,  ‘no action shall be brought,’ do not refer to the carrying on of an action. The action has been brought when the writ is issued. That action may be continued or discontinued or stayed, but it is already in existence… There may be some good reason for preventing a convict while he is subject to the Act from bringing an action by issuing a writ, but the inconvenience of applying that restriction to the continuing of an action which may be near its termination is extreme, and would be an excessive restriction on the rights of the person convicted. If the defendant‘s contention were correct, an action might be stayed in the middle of the evidence, or even while the jury were deliberating, or while the Judge had reserved judgment.”


[26] Another relevant consideration is the “general principle that a statute will not be construed to take away a common law right unless the legislative intent to do so clearly emerges, whether by express words or by necessary implication”.15 This principle was described by Barwick CJ in Wade v New South Wales Rutile Mining Co Pty Ltd16 as “the fundamental principle that if Parliament intends to derogate from the common law right of the citizen it should make its law in that respect plain…”.


[27]       For generally the same reasons, I would reject the appellant’s alternative argument.

Section 95 deals expressly with the bringing of proceedings after management of the prisoner‘s estate is vested in the Public Trustee. Where such proceedings are commenced, the prisoner can take no further steps in them without the written consent of the Public Trustee. It is significant that this restriction is directed to proceedings commenced after the vesting of management and not to proceedings commenced both before and after.


2                  Watson v Watson [1919] VLR 384 at 385; and Tyler v Krause [2003] 1 Qd R 453.

5                  [2003] 1 Qd R 453 at 456–457.

6                  (2004) 79 ALJR 94 at 101–102.

7                  (1981) 147 CLR 297 at 304.

8                  Saraswati v The Queen (1991) 172 CLR 1 at 21.

9                  Newcastle City Council v GIO General Ltd (1997) 191 CLR 85 at 109.

10               (1999) 46 NSWLR 681 at 687.

11                (2009) 239 CLR 27 at 46–47.

12               (2009) 239 CLR 27 at 47–48.

13               As to which see MacAlister v The Queen (1990) 169 CLR 324 at 330.

14               [1919] VLR 384 at 385–386.

Brisbane Barrister – David Cormack

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