Statutory Construction: Judicial Pension

Tutt v State of Queensland [2013] QCA 59

Catchwords STATUTES – ACTS OF PARLIAMENT – INTERPRETATION – GENERAL APPROACHES TO   INTERPRETATION – GENERALLY – where the applicant was appointed a District   Court judge and retired after having served for seven years and 353 days –   where the applicant served more than five years but less than ten years as a   judge – where s 3(1) of the Judges   (Pensions and Long Leave) Act 1957 (‘the Act’) provides for a pension ‘at   a rate equal to six per cent of the judge’s salary for each completed year of   service as a judge’ – where the respondent calculated the applicant’s pension   on the basis of having served seven complete years as a judge – where the   applicant contends his pension should be calculated on the basis of serving   seven years and 353 days as a judge – whether s 3 of the Act should be   interpreted as requiring a calculation of judicial pensions for the last year   of service on a pro rata basis
Before Fraser JA with Holmes and White JJA concurring
  1. The   question stated for the opinion of the court should be answered as follows:
    “In calculating the pension payable to a judge who retires upon reaching the   age of 70, having served more than five years but less than ten years as a judge,   section 3 of the Judges (Pensions and   Long Leave) Act 1957, does not require a pro rata calculation to be   applied to the last period of service commencing on 24 May 2011 which is less   than one year.”
    2. No order as to costs.


Fraser JA

9. It is unnecessary to discuss the decisions of the Queensland   Industrial Court to which the applicant referred. None of those decisions   turned upon the construction of s 3(1) or of any provision referring to “each   completed” period of service. The applicant’s argument was also not advanced   by his reference to different statutes which expressly exclude any pro rata operation.[4] Sub-section 3(1) in any event   precludes reference to any period less than a completed year. The differing   terms of the analogous statutory provisions in other Australian jurisdictions,   to which the State referred, also cannot influence the proper construction of   s 3(1).

10. As the applicant submitted, s 14A   of the Acts   Interpretation Act 1954   requires the interpretation which best achieves the purpose of the Act to be   preferred to any other interpretation. The applicant referred to a statement   by the Minister for Justice at the time of the presentation of the Bill for   the Act that “[t]he general objective of this bill is to safeguard the system   of justice by ensuring as far as reasonably practicable the independence of   the judiciary” and “to bring the Queensland law more into conformity… with   other States by providing for pensions for Queensland judges”.[5] These statements of statutory   purpose were expressed at too high a level of generality to supply assistance   in resolving the particular issue of construction in this case.

11. The applicant also referred to what he argued were legitimate   community expectations that the amount of a retired judge’s pension would   reflect the whole period of service and to the unlikelihood that it was   intended to exclude the additional 353 days served by the applicant from the   calculation of the pension when the applicant was unable to use that time to   earn a potentially lucrative private income. The applicant’s submissions   speculate about what might have been intended by the legislators or make   assumptions about the legislative purpose. Neither approach is legitimate:   see Lloyds   Underwriters v Cross [2012] HCA 56 at [25]-[26] per French CJ and Hayne J.

12. The applicant invoked the following approaches in Maxwell’s On   the Interpretation of Statutes, which were endorsed by French CJ and Bell   J in Minister   for Immigration and Citizenship v SZJGV: [6]

“Where the language of a   statute, in its ordinary meaning and grammatical construction, leads to a   manifest contradiction of the apparent purpose of the enactment, or to some   inconvenience or absurdity which can hardly have been intended, a   construction may be put upon it which modifies the meaning of the words and   even the structure of the sentence. This may be done by departing from the   rules of grammar, by giving an unusual meaning to particular words, or by   rejecting them altogether, on the ground that the legislature could not   possibly have intended what its words signify, and that the modifications   made are mere corrections of careless language and really give the true   meaning.”

[4] Cf Mifsud v Veolia Transport Sydney Pty Ltd   [2011] FMCA 913 (“…each completed year of service) (not pro rata…”).

[5] Hansard 28 November   1957, pp 1449-1450.

[6] (2009)   238 CLR 642 at 651-652   [9].

13. In support of the contention that the State’s construction   produced an absurd result, the applicant referred to s 24 of the District   Court of Queensland Act 1967,   which provides:

“If at the determination by   effluxion of time or other cause of any commission under this Act there shall   be any actions or matters, civil or criminal, including any appeal, partly   heard or standing for judgment by or before the holder of such commission, the   commission shall only for the purpose of deciding such actions or matters   (including the completion of the hearing thereof where necessary) and so far   as is necessary for that purpose, remain in force until judgment shall have   been delivered therein unless the holder of that commission shall be sooner   removed.”[7]

14.  The applicant did not have any reserved decisions or part heard   matters when he retired so that s 24   of the District   Court of Queensland Act 1967   did not operate to extend his commission. He argued that if he had required a   further fortnight to complete his judicial work he would have had the benefit   in the pension calculation of the disputed 353 days. He argued that this was   an absurd result of the State’s construction of s 3(1). However the situation   catered for by s 24 should be encountered only rarely. Assuming, without   deciding, that an extended period of service for the limited purposes   described in s 24   of the District   Court of Queensland Act 1967   would bear upon the correct calculation of a judge’s pension in some unusual   cases, that is an unconvincing ground for departing from the ordinary meaning   of s 3(1)   of the Judges   (Pensions and Long Leave) Act 1957.

15. In Commissioner   of Taxation v Consolidated Media Holdings Ltd,[8] French CJ, Hayne, Crennan, Bell and   Gageler JJ referred to the observation in Alcan (NT) & Alumina Pty Ltd   v Commissioner of Territory Revenue that “the task of statutory   construction must begin with a consideration of the text itself” and added:

“So must the task of statutory   construction end. The statutory text must be considered in its context. That   context includes legislative history and extrinsic materials. Understanding   context has utility if, and insofar as, it assists in fixing the meaning of   the statutory text. Legislative history and extrinsic materials cannot   displace the meaning of the statutory text…”

[7] Similarly, s 21(2) of the Supreme   Court of Queensland Act 1991   provides that “a judge who, before retiring …, starts the hearing of a   proceeding remains a judge for the purposes of finishing the proceeding.”

[8] [2012]   HCA 55   at [39].


Brisbane Barrister – David Cormack

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