Aerotropolis Pty Ltd v Secretary, Department of Planning and Environment

1. [1]

   ADAMSON JA: I agree with Price J.

2. [2]

   PRICE J: Aerotropolis Pty Ltd (‘the applicant’) seeks leave to appeal pursuant to s 5F of the Criminal Appeal Act 1912 (NSW) in respect of an interlocutory decision made by Moore J (‘the judge’) to dismiss the applicant’s notice of motion on 2 February 2022: Secretary, Department of Planning and Environment v Aerotropolis Pty Ltd [2023] NSWLEC 4.

Introduction

1. [3]

   The issue before the judge was whether the prosecutions commenced by the Secretary of the Department of Planning and Environment (‘the respondent’) against the applicant were commenced within time.

2. [4]

   The respondent claimed by summonses filed in the Land and Environment Court of New South Wales on 14 June 2022 that the applicant had committed eight offences contrary to ss 118A(2) and 118D(1) of the National Parks and Wildlife Act 1974 (NSW) (‘the NPW Act’) and twelve offences against ss 2.2(1)(b) and 2.4(1) of the Biodiversity Conservation Act 2016 (NSW) (‘the BC Act’).

The alleged offending

1. [5]

   In an affidavit, the applicant’s solicitor summarised the proceedings against the applicant as follows:

The proceedings in the Land and Environment Court

1. [6]

   The applicant filed a notice of motion seeking orders that the prosecutions were commenced outside the limitation periods prescribed by s 190 of the NPW Act and s 13.4 of the BC Act.

2. [7]

   Section 190 of the NPW Act is as follows:

3. [8]

   Section 13.4 of the BC Act is as follows:

4. [9]

   For the purposes of the motion, the parties had agreed that the evidence of each of the charged offences first came to the attention of the relevant investigation officer under the NPW Act and the BC Act on 11 June 2020. It was further agreed that 11 June 2022 was a Saturday, 12 June 2022 was a Sunday, and 13 June 2022 was a public holiday.

5. [10]

   It was common ground that the prosecutions had to be commenced “within but not later than 2 years after” 11 June 2020, being the date that the evidence of the alleged offences came to the attention of the relevant officer. The respondent accepted that the prosecutor bore the onus of establishing the proceedings were commenced within time beyond reasonable doubt.

6. [11]

   The principal submission made on behalf of the applicant to the judge was that on the proper construction of the phrase “within but not later than” the date that the evidence first came to the attention of the relevant investigation officer, namely 11 June 2020, was included such that the period of two years expressed to commence from that date ended immediately prior to the corresponding date two years later. The applicant contended that the limitation period expired on Friday 10 June 2022. It followed that the prosecutions which were commenced on Tuesday 14 June 2022 were out of time.

7. [12]

   In support of that submission, the applicant placed reliance on what was said by Leeming JA in Environment Protection Authority v Truegain Pty Ltd (2013) 85 NSWLR 125; [2013] NSWCCA 204 (‘Truegain’) at [9]. The applicant’s further submissions included that s 190 of the NPW Act and s 13.4 of the BC Act were “penal provisions” and the reliance by the respondent on the common law rule in Lester v Garland (1808) 15 Ves Jun 248 (‘Lester v Garland’) was misplaced, as it was a “general rule”. Particular emphasis was placed on the difference in language in ss 13.4(1) and 13.4(2) of the BC Act, and on the word “within”.

8. [13]

   An alternative submission was that even if the date that the evidence first came to the attention of the relevant officer was excluded, such that the period of two years expressed to commence from that date ended at the end of the corresponding date two years later, namely Saturday 11 June 2022, s 36(2) of the Interpretation Act 1987 (NSW) had no role to play in the reckoning of time as the subsection had been displaced by the NPW Act and the BC Act.

9. [14]

   The applicant pointed to s 190(3) of the NPW Act and s 13.4(4) of the BC Act in support of that submission and contended that there was no textual or contextual reason to read down the reference to “any other Act” so that it excluded the Interpretation Act. The applicant submitted that the judge was not bound to follow the decisions in Wignalls Smallgoods Pty Ltd v Kent (2002) Tas R 460 (‘Wignalls Smallgoods’) and Price v JF Thompson (Qld) Pty Ltd [1990] 1 Qd R 278 (‘Price’). It was the applicant’s contention that the respondent did not gain an extension to Tuesday 14 June 2022.

10. [15]

    Section 5(2) of the Interpretation Act is as follows:

11. [16]

    Section 36 of the Interpretation Act is as follows:

12. [17]

    The respondent’s principal submission to the judge was that 11 June 2020 was excluded for the calculation of the limitation period which resulted in the limitation period expiring on 11 June 2022. The respondent argued that the passage relied upon by the applicant in Truegain was a “throwaway line” and not “considered dicta”. Further, the proper construction of the word “after” led to the conclusion that the date on which the relevant event occurred was excluded and the general rule in Lester v Garland applied. Another submission was that there was no “real ambiguity” in the provisions which, in any event, were not penal provisions.

13. [18]

    The respondent, it appears, did not consider it necessary to rely on s 36(1) of the Interpretation Act. However, it was argued that neither the NPW Act nor the BC Act ousted s 36(2) of the Interpretation Act. The respondent submitted that Wignalls Smallgoods and Price were intermediate appellate court decisions directly on point which the judge was bound to follow.

14. [19]

    I have refrained from summarising all of the arguments put to the judge as they are essentially the same submissions made to this Court and will be recounted in further detail. It is sufficient to state that the judge referred comprehensively to the competing submissions in his judgment.

15. [20]

    His Honour rejected the applicant’s submissions. On the first issue, being the time when the limitation period commenced to run, his Honour was not satisfied that the remarks of Leeming JA in Truegain at [9] should be regarded as “persuasive dicta”. [1] His Honour was not persuaded that s 190 of the NPW Act and s 13.4 of the BC Act were “penal provisions”, but considered that these subsections were “procedural” or “administrative” provisions. [2] His Honour accepted that the respondent’s submission that the general rule devolved from Lester v Garland, and addressed by Diplock LJ in Dodds v Walker [1981] 1 WLR 1027, was “the correct approach to be adopted”. [3] His Honour concluded at [131]:

16. [21]

    In making this finding, his Honour accepted that the approach taken by the respondent was correct and the day that the event occurred, namely 11 June 2020, was not included in the calculation of the limitation periods.

17. [22]

    On the second issue, being the operation of s 36(2) of the Interpretation Act, his Honour found that s 36(2) was not ousted by either s 190(3) of the NPW Act or s 13.4(4) of the BC Act. His Honour stated at [143]:

18. [23]

    The applicant’s motion was dismissed with costs reserved.

Grounds of appeal

1. [24]

   The notice of appeal identifies the following grounds:

Arguments advanced in the appeal

1. [25]

   Mr P Herzfeld SC appeared for the applicant and Ms N Sharp SC for the respondent. Both Senior Counsel also appeared in the proceedings before the judge. Mr Herzfeld said that the respondent’s contention that the prosecutions were commenced within time rested on two steps, the first being “that within, but no later than, two years after 11 June 2020 runs to the end of 11 June 2022 and that was a Saturday, and the second step is that s 36(2) of the Interpretation Act then extended the period for the commencement until the next business day.” [4]

2. [26]

   Mr Herzfeld submitted that if the applicant’s arguments about the first step were right, the second step would not need consideration as the “weekend issue” would not arise. If the applicant’s arguments about the first step were wrong, the applicant’s submission was that s 36(2) did not apply as it had been displaced by s 190(3) of the NPW Act and s 13.4(4) of the BC Act.

Ground 1: The first issue – did the limitation period expire on 10 June 2022 or 11 June 2022?

1. [27]

   Mr Herzfeld commenced by emphasising that the judge’s decision was inconsistent with this Court’s “dicta” in Truegain. Reliance was placed on what was said by Leeming JA (with whose reasons R A Hulme and Button JJ agreed) at [9]:

2. [28]

   Mr Herzfeld said that it appears this Court concluded in Truegain that the last date for filing was Friday, 3 June 2011 by reasoning that the 12-month period expired on Sunday, 5 June 2011, and then reasoning that the EPA did not obtain the benefit of s 36(2) of the Interpretation Act so as to be able to file on the next working day. Rather, the EPA was required to file by Friday, 3 June 2011, the previous working day. It was submitted that both conclusions were inconsistent with the findings of the judge.

3. [29]

   It was accepted that the question of whether the prosecution was validly commenced within time did not appear to have been an issue in Truegain and Leeming JA’s “dicta” was not part of the “ratio” of the decision that this Court should follow unless persuaded that it is “plainly wrong” and there are “compelling reasons” to depart from that decision: Totaan v The Queen (2022) 108 NSWLR 17; [2022] NSWCC 75 at [72]. Mr Herzfeld, nevertheless, contended that this Court should follow its previous approach absent compelling reasons which were not present in this case, as both principle and authority supported the “dicta” in Truegain. R v Obeid (No 2) [2015] NSWSC 1380 at [43] was cited.

4. [30]

   Mr Herzfeld referred to the judge’s conclusion that the application of the general rule in Lester v Garland and Dodds v Walker was the “correct approach to be adopted”. Mr Herzfeld submitted that his Honour did not explain why the application of the “general rule” was clear. He submitted that his Honour erred in concluding that s 190 and s 13.4 are not penal provisions and, in any event, that conclusion did not lead to the respondent’s approach being correct. Mr Herzfeld emphasised that the approach in Lester v Garland and Dodds v Walker is expressed as general in nature and subject to exceptions.

5. [31]

   In the context of the relevant provisions, Mr Herzfeld argued that the effect of the word “within” is to compel the applicant’s approach which is to include the date when evidence of the alleged offence first came to the attention of the relevant officer. Three reasons were said to further support that submission:

6. [32]

   Firstly, the use of similar but not identical words in ss 13.4(1) and 13.4(2) of the BC Act. Section 13.4(2) uses the word “within” while s 13.4(1) does not. Mr Herzfeld referred to the general proposition that the use of different words within a statute indicates a difference in meaning. Willoughby City Council v Screnci [2015] NSWLEC 192 (‘Screnci’) was raised. Mr Herzfeld said that “[t]he difference in meaning is evidenced by the way the Land and Environment Court dealt with a provision formulated in the same way as [s 13.4(1)] in [Screnci]”. [5] It was submitted that s 127(5) of the Environmental Planning and Assessment Act 1979 (NSW) (‘the EPA Act’) was in the same terms as s 13.4(1) of the BC Act and Craig J’s decision that the limitation period expired on 27 February 2016 meant that the date on which evidence of the alleged offence first came to the attention of the authorised officer was excluded from the calculation of the limitation period.

7. [33]

   Mr Herzfeld argued that s 13.4 of the BC Act was enacted after Screnci and it was open to the Legislature to use the formulation “may be instituted after two years” without the word “within”. He submitted that the effect of the word “within” is “to adopt a construction narrower than that which would have been adopted if the word ‘within’ had been excluded”. [6] The word “within” should be given work to do which was to shorten the period to which s 13.4(2) is directed. The same reasoning was submitted to apply to s 190(1)(b) of the NPW Act.

8. [34]

   Secondly, the applicant’s approach cohered with the purpose of the provisions. The extension of time for the commencement of proceedings under s 13.4(2) was intended, Mr Herzfeld submitted, to ensure that offenders do not escape prosecution where there is delay in the detection of the offence. Mr Herzfeld contended that if the respondent’s approach was accepted, the prosecution obtained “more than” two years within which to bring a prosecution – an advantage that the Legislature did not intend to confer. It was submitted that in imposing a time limit, the Legislature clearly intended to encourage timely investigations and the prompt commencement of prosecutions.

9. [35]

   Finally, as these provisions provide an exception to the ordinary limitation period that operates in favour of the prosecutor, these provisions are particularly apt to the application of the modern approach to the construction of penal provisions. Mr Herzfeld cited the joint judgment of Kiefel CJ and Keane J in R v A2 (2019) 269 CLR 507; [2019] HCA 35 (‘A2’) at [52]:

10. [36]

    Mr Herzfeld contended that his Honour erred in not characterising s 190 and s 13.4 as penal provisions. He argued that the applicant can only be subject to the penalty that attaches to the relevant offence if the prosecution has been brought within time. As compliance with the time limit is what potentially exposes a person to the imposition of a penalty, the relevant sections are properly characterised as “penal provisions”. Mr Herzfeld cited Chief Executive of the Office of Environment and Heritage v Sommerville [2019] NSWLEC 155 at [49]-[52] (‘Sommerville’) as correctly proceeding on the basis that s 190 of the NPW Act is a penal provision.

11. [37]

    Ms Sharp pointed out that the issues between the parties in Truegain did not include whether the prosecution had been commenced within time and there was no indication in Leeming JA’s reasons that the limitation period had been the subject of any submissions or argument by the parties. In the absence of there having been any argument on the limitation period, and in light of the observation not being related to the issues to be decided (as to duplicity and costs), Leeming JA’s remarks are properly to be treated as “mere dicta” or “passing dicta”. It was submitted that it should not be given the weight that would be afforded to “considered dicta” and Truegain is of no assistance on the issue of the commencement of the limitation period.

12. [38]

    The judge did not err, Ms Sharp submitted, in rejecting the applicant’s arguments for the following reasons:

13. [39]

    Firstly, all the words of the operative statutory phrases in s 190(1)(b) of the NPW Act and s 13.4(2) of the BC Act must be construed and effect must be given to the word “after”. Ms Sharp argued that the word “after” provides a clear indication that the date on which evidence of the offence came to the relevant officer’s attention is not to be counted. Ms Sharp criticised the applicant’s contentions as erroneously ignoring the word “after” and instead proceeded on the basis that the phrase to be construed is “within, but not later than 2 years”.

14. [40]

    Ms Sharp contended that the applicant’s reliance on Screnci is misplaced and ignores in its analysis that the word “after” must have some operation. The fact that s 127(5) of the EPA Act used “not later than 2 years after…” and did not use the word “within” was of no significance.

15. [41]

    Secondly, the applicant’s contention that its construction is consistent with the purpose of the provisions should be rejected because it is a circular argument.

16. [42]

    Thirdly, the characterisation of a s 190(1)(b) of the NPW Act and s 13.4(2) of the BC Act as “penal provisions” did not assist the applicant. Ms Sharp contended that in order for the characterisation of a statutory provision as a “penal provision” to have any significance to an issue of construction, there must be “real ambiguity” that persists after the ordinary rules of construction are applied. Furthermore, these provisions do not operate to create offences and therefore are not “penal provisions” that attract the operation of the principle. They are procedural. Ms Sharp contended that nothing in Sommerville assists the applicant.

17. [43]

    Fourthly, a construction of the phrases in s 190(1) and s 13.4(2) that gives effect to the word “after” by excluding the date on which the relevant event occurred from the calculation of the relevant period of time is consistent with long-standing authority. Ms Sharp cited Lord Diplock in Dodds v Walker at 1029.

18. [44]

    Fifthly, s 36(1) of the Interpretation Act provides confirmation that the date on which evidence of the alleged offences came to the relevant officer’s attention is to be excluded from the calculation of the two year period.

19. [45]

    Ms Sharp further submitted that the phrase “within but not later than two years after” is a compound expression and the preposition “after” requires attention. She argued that “[t]he word ‘within’ must always be tethered to a preposition. The preposition is the mooring around which the word ‘within’ pivots. The preposition here is ‘after’.” [7]

20. [46]

    When referring to the difference in language in ss 13.4(1) and 13.4(2), Ms Sharp contended that “it is a distinction without a difference” because the phrase “within two years after the date” means exactly the same as “no later than two years after the date”. A further submission was that the draftsperson of ss 13.4(1) and 13.4(2) did not use the word “within” superfluously in s 13.4(2) as it is used to be “confirmatory” of s 13.4(1).

21. [47]

    Ms Sharp submitted that the adoption of the general rule in Dodds v Walker which has been referred to as “the corresponding date rule” was to overcome arguments over fractions of days and cited Ex parte Toohey’s Limited; Re Butler (1934) 34 SR (NSW) 277 at 278 and Morton v Hampson [1962] VR 364 at 365 as authorities in which the corresponding date rule was recognised.

22. [48]

    In arguing that Leeming JA’s observation in Truegain was not “mere dicta”, Mr Herzfeld contended that the Interpretation Act, which is legislation that prima facie applies to all New South Wales legislation, did not need to be drawn to his Honour’s attention.

23. [49]

    Mr Herzfeld argued that the applicant’s construction did not erroneously ignore the word ‘after’. He pointed out that the relevant provisions require a prosecution to be commenced within a period that falls “after” the date on which evidence of the alleged offence first came to the attention of a relevant officer. The question is whether that period includes or excludes that date.

24. [50]

    Mr Herzfeld contended that the respondent’s construction gave the word “within” no work to do and the respondent had not explained why the inclusion of “within” is of no significance. He argued that if the Legislature had intended that the provisions would be constructed consistently with Screnci, it would have used the same formulation and not have included “within”.

25. [51]

    Further, it was argued that the respondent’s criticism of the applicant’s contention that its construction is consistent with the purpose of the provision as being circular should be rejected. Furthermore, the respondent had offered no authority in support of the proposition that the principle of construction relating to penal provisions applies only to provisions that “operate to create offences”. Mr Herzfeld submitted that the term “penal” is broader, given it includes statutes for providing for the confiscation of property in connection with criminal activity and civil penalties. In addition, the rule has been applied to provisions imposing a time limit not only in Sommerville, but also in Morgans v Director of Public Prosecutions [1999] 2 Cr App 99 at 113.

26. [52]

    Mr Herzfeld contended that s 190 and s 13.4 are not “procedural provisions” as they specify when a prosecution may be commenced pursuant to an exception, and so in substance prescribe an element that needs to be satisfied by the prosecution for there to be a conviction.

27. [53]

    As to the respondent’s submission that s 36(1) of the Interpretation Act confirms the judge’s conclusion, Mr Herzfeld said that this was a change in the respondent’s position before the judge. In any event, the respondent’s submission should be rejected for the same reasons that the expression “despite… any other Act” displaces s 36(2).

Consideration

1. [54]

   Simply understood, the question for determination raised by Ground 1 is whether the date the evidence first came to the attention of the relevant investigation officer, namely 11 June 2020, was to be included in the calculation of the limitation periods of two years in s 190(1)(b) of the NPW Act and s 13.4(2) of the BC Act. If that date was to be included, the limitation periods expired at the conclusion of Friday 10 June 2022 and the prosecutions commenced on Tuesday 14 June 2022 were out of time. The judge found that the date the evidence first came to the relevant investigation officer’s attention was not included in the calculation of the limitation periods and (subject to the issues raised in Ground 2) the limitation periods expired at midnight on 11 June 2022 rather than midnight on 10 June 2022. It is the applicant’s case that the judge erred in reaching that conclusion.

2. [55]

   At the forefront of the applicant’s submissions is that the judge was obliged to follow Leeming JA’s “dicta” in the passage quoted at [25] above and his Honour’s findings were inconsistent with the approach of this Court in Truegain. His Honour said at [128]:

3. [56]

   The applicant argues that the “dicta” of this Court should not be so readily despatched and the judge (and this Court) was required to follow the approach in Truegain absent compelling reasons for not doing so. The respect that is to be accorded to a decision of an intermediate appellate court is reflected in the principle that whilst not legally bound by their own earlier decisions, intermediate appellate courts should only depart from such authority if they are of the view that the decision in question is “plainly wrong” and there are “compelling reasons” to depart from the earlier decision: Totaan v R (2022) 108 NSWLR 17; [2022] NSWCCA 75 per Bell CJ at [72].

4. [57]

   The applicant accepts that Leeming JA’s remarks are not part of the ratio decidendi in Truegain. However, reliance was placed on the observations of Beech-Jones J (as his Honour then was) in Obeid at [43]:

5. [58]

   In Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89; [2007] HCA 22 (‘Farah’), the High Court (Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ) said at [134]:

6. [59]

   Similar remarks were made at [158]. The High Court emphasised the need to have regard to long-established authority and “seriously considered dicta” of the majority of the High Court. More recently, in Hill v Zuda Pty Ltd [2022] HCA 21 (‘Hill v Zuda’) the High Court said at [25]:

7. [60]

   In Ying v Song [2009] NSWSC 1344, Ward J (as her Honour then was) comprehensively reviewed the weight to be accorded to the authorities in that case as there were two apparently conflicting positions in relation to s 128 of the Evidence Act 1995 (NSW). Her Honour noted at [21]-[25]:

8. [61]

   There is undoubtedly a difference in the weight to be given to “passing dicta” and “seriously considered dicta” of an intermediate appellate court. I would agree with the observations of Beech-Jones CJ at CL (as his Honour now is) in Obeid that “seriously considered dicta” of the Court of Appeal (here the Court of Criminal Appeal) should be followed unless there are compelling reasons for departing from that “seriously considered dicta”.

9. [62]

   In Truegain, the EPA sought leave to appeal pursuant to s 5F of the Criminal Appeal Act in respect of three interlocutory decisions made by Lloyd AJ in the Land and Environment Court. The principal issue in the appeal was whether the primary judge erred in determining that the summons filed in Class 5 of the jurisdiction of the Court suffered from duplicity. The EPA also challenged an order of costs against it.

10. [63]

    The EPA claimed by its summons filed on Friday 3 June 2011 that Truegain had committed an offence against s 64(1) of the Protection of the Environment Operations Act 1997 (NSW) (‘POEO Act’) which required prosecutions for the offence to be commenced “within but no later than” 12 months after the date on which the evidence of the offence first came to the attention of an authorised officer. The summons stated that evidence of the offence first came to the attention of an authorised officer on 6 June 2010. In the passage quoted at [27] above, Leeming JA said that “the EPA did not commence its prosecution until the last possible day.”

11. [64]

    Unsurprisingly, Leeming JA did not give reasons for those remarks. The issues in the case did not concern whether the prosecution had been commenced within time. There is nothing to suggest that there were any submissions made or any argument by the parties on this point. No party appears to have argued that Leeming JA’s view as to “the last possible day” was wrong. Furthermore, there is nothing to suggest that his Honour’s attention was drawn to s 36(2) of the Interpretation Act.

12. [65]

    Should the limitation period have been an issue, I have no doubt that reasons would have been given by Leeming JA for his remarks about the commencement of the prosecutions. Leeming JA provided lengthy reasons for deciding that the prosecutor’s summons was duplicitous and that the primary judge was wrong to order costs against the prosecutor. I do not agree with Mr Herzfeld’s submissions that there was no need to bring s 36(2) to Leeming JA’s attention. If there had been argument about the limitation period, s 36(2) would inevitably have been raised. Leeming JA’s remarks were far removed from the issues to be decided.

13. [66]

    In my view, Leeming JA’s remarks cannot be regarded as “seriously considered dicta” which the judge was obliged to follow unless compelling reasons for departure were demonstrated. Although the remarks of an eminent appellate judge were to be given respectful weight, it remained a matter for the judge to decide the questions of statutory construction which were in issue. The judge did not err in not regarding the dicta in Truegain as “persuasive”.

14. [67]

    The task of ascertaining the meaning of s 190(1)(b) of the NPW Act and s 13.4(2) of the BC Act begins “with a consideration of the text itself”, although “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”; Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27; [2009] HCA 41 (‘Alcan’) at [47] per Hayne, Heydon, Crennan and Kiefel JJ.

15. [68]

    As there has been much debate in the competing arguments whether the words “within” and “after” are given work to do, the presumption against surplusage remains a valid guide to ascertaining their meaning; Taheri v Vitek (2014) 87 NSWLR 403; [2014] NSWCCA 209 per Leeming JA at [121]. Furthermore, a court construing a statutory provision must strive to give meaning to every word of the provision; Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 at [71] per McHugh, Gummow, Kirby and Hayne JJ.

16. [69]

    The Court’s attention was also drawn to [52] in the joint judgment of Kiefel CJ and Keane J in A2, which has been quoted at [35] above.

17. [70]

    It is useful to isolate ss 13.4(1) and 13.4(2) as the applicant’s argument is founded, to an extent, on textual differences between the subsections. Section 13.4(2) includes the words “also” and “within” which are not present in s13.4(1). For ease of reference, ss 13.4(1) and 13.4(2) are as follows:

18. [71]

    These subsections are in essentially the same terms as ss 127(5) and 127(5A) of the EPA Act, which were as follows:

19. [72]

    In Screnci, Craig J’s focus was on s 127(5) of the EPA Act which is in similar terms to s 13.4(1). Section 127(5A), which is in similar terms to s 13.4(2), was not considered. Craig J found at [29] that “the prosecutor was bound to prove that the proceedings in respect of each offence were commenced not later than two years after the date upon which the evidence establishes that each offence was committed”.

20. [73]

    True it is, as the applicant submits, that it follows from Screnci that a provision in the terms of s 13.4(1) excludes the first day of the period commencing on the date of the alleged offending. I am not persuaded that it necessarily follows that the Legislature when enacting s 13.4(2) (which was after the decision in Screnci) intended by the inclusion of the word “within” for that subsection to have a different meaning. In enacting ss 13.4(1) and 13.4(2), the Legislature mirrored existing legislation, namely ss 127(5) and 127(5A) of the EPA Act. It appears that s 127(5A) has not been the subject of judicial consideration.

21. [74]

    The applicant places particular emphasis on the inclusion of the word “within” in s 13.4(2). There are a number of authorities which have considered that word. In Reynolds v Reynolds [1941] VR 249, when considering the expression “has within five years… left his wife habitually without the means of support” O’Bryan J said at 252:

22. [75]

    In Morton v Hampson [1962] VR 364, the question for the Full Court of the Supreme Court of Victoria was whether a notice of appeal was served within time. Section 74(2)(a) of the County Court Act 1958 (Vic) required a party to give written notice of appeal “within fourteen days after such judgment or order”. The Full Court said at 365:

23. [76]

    In Susiatin v Minister for Immigration and Multicultural Affairs (1998) 83 FCR 574; [1998] FCA 825, the issue was whether the applicant in that case had commenced proceedings pursuant to s 476 of the Migration Act 1958 (Cth) within the time period of 28 days following notification of the Minister’s decision, as required by s 478 of the Act. Beaumont J said at 580:

24. [77]

    The construction of the word “within” as excluding the day of the act in question is consistent with Lester v Garland and Dodds v Walker. In Dodds v Walker, Lord Diplock said at 1029:

25. [78]

    The rule in Lester v Garland (‘the corresponding date rule’) is a general rule and subject to exceptions. However, I do not discern from the text of s 13.4(2) an intention not to follow the corresponding date rule which overcomes the practical difficulties associated with identifying the precise time if the limitation period commences from the time of the triggering event with corresponding arguments about fractions of days.

26. [79]

    These authorities provide support for the respondent’s contention that the word “within” in the context of s 13.4(2) is tethered to the word “after” so that the calculation of the two-year period excludes the day the alleged offences were brought to the attention of the relevant officer.

27. [80]

    Viewed in this way, both words have work to do and s 13.4(2) is not ambiguous. The purpose of the BC Act “is to maintain a healthy, productive and resilient environment for the greatest well-being of the community” (s 1.3 BC Act). The textual context in which the subsection appears is a provision which prescribes the time for the commencement of proceedings and the intention behind s 13.4(2) is to enable proceedings to be commenced even though 2 years have expired after the date on which the offence is alleged to have been committed. There is no reason to conclude that the corresponding date rule does not sit happily with the purpose of the section and the mischief (the commission of offences against the BC Act) that the legislation seeks to remedy.

28. [81]

    The textual differences that arise in ss 13.4(1) and 13.4(2) do not apply to s 190(1) as subsections (a) and (b) both commence with the expression “within but not later than…”. The objects of the NPW Act include “the conservation of nature” which is to be “achieved by applying the principles of ecologically sustainable development” (s 2A NPW Act). The textual context in which the subsections appear is a provision which prescribes the time for the commencement of the proceedings. It makes no sense that the Legislature would deprive the prosecution in proceedings for an offence against the NPW Act which are commenced “within but no later than 2 years after the date on which the offence is alleged to have been committed” (s 190(1)(a)) of the corresponding date rule. There is no reason to conclude that the corresponding date rule does not sit happily with both ss 190(1)(a) and 190(1)(b) and the mischief (the commission of offences against the NPW Act) that the legislation seeks to remedy. Section 190(1)(b) is not ambiguous.

29. [82]

    As I have found that there is no ambiguity in either provision after the ordinary rules of construction have been applied, it is not necessary to consider whether the provisions in issue are penal in nature: A2 at [52]. It is convenient to add Adamson J’s (as her Honour then was) observation in Sommerville v Chief Executive of the Office of Environment [2020] NSWCCA 93 (‘Sommerville No 2) at [46]:

30. [83]

    There has been some debate as to whether s 190(1)(b) of the NPW Act and s 13.4(2) of the BC Act are “penal” provisions. Although unnecessary for the disposition of this appeal, I will express a view on this issue.

31. [84]

    Statutes “which impose a time limit on the commencement of proceedings to enforce right” have been traditionally regarded as “procedural”; Maxwell v Murphy (1957) 96 CLR 261; [1957] HCA 7, per Fullagar J at 286-287. There was no consideration in either Sommerville or Sommerville No 2 as to whether s 190 of the NPW Act was “penal” or “procedural”. In my view, the provisions which create the offences are “penal”. The offence provisions under which the applicant is charged are “penal” provisions. [8] The limitation sections, namely s 190 of the NPW Act and s 13.4 of the BC Act are procedural.

32. [85]

    The judge did not err in finding that the date the evidence first came to the investigation officer’s attention was not included in the calculation of the limitation periods and the limitation periods expired at midnight on 11 June 2022.

33. [86]

    I would dismiss Ground 1 of the appeal.

Ground 2: The second issue – does s 36(2) of the Interpretation Act apply?

1. [87]

   As the limitation periods expired at the conclusion of Saturday 11 June 2022 and the prosecutions commenced on Tuesday 14 June 2022, the prosecutions were out of time unless s 36(2) operated to extend the time to that day (Monday being a public holiday).

2. [88]

   Mr Herzfeld pointed out that s 5(2) of the Interpretation Act provides that the Interpretation Act applies subject to a contrary intention appearing in the legislation being construed. He referred to s 190(3) of the NPW Act and s 13.4(4) of the BC Act which provide that the relevant section “applies despite anything in the Criminal Procedure Act 1986 or any other Act”. He submitted that the reference to “any other Act” means all other Acts and there is neither a textual nor contextual reason to read down the reference to “any other Act” so that it excludes the Interpretation Act. Mr Herzfeld cited Alcan, in which the plurality (Hayne, Heydon, Crennan, and Kiefel JJ) said, inter alia, at [47]; “[t]he language which has actually been employed in the text of the legislation is the surest guide to legislative intention”.

3. [89]

   A further submission was that the construction of the phrase “any other Act” as including the Interpretation Act is consistent with the modern approach to penal provisions in A2. Mr Herzfeld contended that to the extent that there is any ambiguity as to whether “any other Act” really does mean “any other Act”, that ambiguity should be resolved in the applicant’s favour. Mr Herzfeld submitted that the inapplicability of s 36(2) does not occasion any unreasonable consequences. If a limitation period happens to end on a weekend or public holiday, the prosecutor could institute the prosecution within a slightly shorter period of time.

4. [90]

   Mr Herzfeld argued that the judge erred in concluding that he was obliged to follow Wignalls Smallgoods and Price. He submitted that the principle in Hill v Zuda at [25]-[26] that neither an intermediate appellate court nor a trial judge should depart from a decision of another intermediate court on the interpretation of uniform national legislation unless convinced that the interpretation was plainly wrong, did not apply in the present case. Mr Herzfeld argued that the judge seemed to proceed on the basis that he needed to construe the Interpretation Act, being the legislation that was materially uniform in each of the States and Territories. In fact, his Honour was construing whether s 190(3) and s 13.4(4) evinced a contrary intention so as to displace s 36(2).

5. [91]

   The applicant accepted that the judge was required to consider Wignalls Smallgoods and Price in construing the relevant legislation but submitted that the judge was not bound to follow them. Mr Herzfeld referred to the observations of McHugh J in Marshall v Director-General, Department of Transport (2001) 25 CLR 603; [2001] HCA 37 at [62] which the judge said were not “applicable” in the present case. In reaching that view, Mr Herzfeld submitted that the judge made two errors. Firstly, McHugh J’s observations were not limited to legislation involving an “evaluative assessment”. Rather, they are expressed to apply to the interpretation of statues which have analogues in other States generally. Secondly, as previously submitted, the judge made the error of misidentifying the statute he was required to construe.

6. [92]

   It was further argued that this Court should follow its own decision in Truegain in preference to Wignalls Smallgoods and Price as:

   1. (1)

      The dispositive reasoning of Slicer J in Wignalls Smallgoods and the majority in Price is perfunctory.

   2. (2)

      The reasoning of Slicer J in Wignalls Smallgoods and the majority in Price paid insufficient regard to the breadth of the words of the provisions at issue, which prescribed a time period which applied “notwithstanding any other law” and imposed an artificial constraint on the words.

   3. (3)

      Price is distinguishable on the basis that it did not concern a penal statute. It dealt with the limitation period applicable to personal injuries actions. Accordingly, the modern approach to penal statutes, by which an ambiguity is resolved in favour of an accused, had no application.

   4. (4)

      In Wignalls Smallgoods, Slicer J paid insufficient regard to the fact that he was interpreting a penal provision. Mr Herzfeld was critical of the judge’s analysis of the limited purpose of the phrase “or any other Act” which his Honour found was confined to the time limits that might ordinarily apply by reason of the Criminal Procedure Act 1986 (NSW) and the Children (Criminal Proceedings) Act 1987 (NSW). Mr Herzfeld argued that limited purpose does not explain the breadth of the words in fact used. It was submitted that his Honour erred by making an a priori assumption as to the purpose of these provisions and then reading down the broad words used so as to conform to that assumption.

7. [93]

   Further submissions were made as to the general rule (absent any such Interpretation Act provision that when a statute names a period which an act is to be done the weekend is included). Peacock v The Queen (1858) 4 CB (NS) 264 and McPherson v Lawless [1960] VR 363 at 369 were cited.

8. [94]

   Rule 5.3(1) of the Land and Environment Court Rules 2007 (NSW) was referred to as was the Practice Note applicable to Class 5 proceedings in the Land and Environment Court. Mr Herzfeld submitted that the respondent could have commenced the prosecutions on a Saturday by making an application to the Duty Judge and the Court’s Registry can be opened on the weekend upon payment of a fee. He further submitted that contrary to the respondent’s submissions at first instance, the “problem” of a time limit expiring on a weekend was in fact not a problem at all.

9. [95]

   Ms Sharp observed that s 190(3) and s 13.4(4) do not expressly exclude the operation of the Interpretation Act and do not mention that Act which may be compared to s 5(1) of the Legal Profession Uniform Application Act 2014 (NSW) and ss 74N(4) and 81G(4) of the Real Property Act 1900 (NSW) that expressly exclude its application.

10. [96]

    In support of the submission that a “contrary intention” to the application of the Interpretation Act could not be discerned from a consideration of the text, context and purpose of s 190(3) and s 13.4(4), Ms Sharp argued that these provisions are facultative, rather than restrictive, which operate only to displace the ordinary, shorter limitation periods that would otherwise apply to the prosecution of offences against those Acts. Ms Sharp submitted this is indicated by the use of the word “despite”. Ms Sharp raised Attorney-General (Cth) v Oates (1999) 198 CLR 162; [1999] HCA 35 (‘Oates’) at [35] which explained the facultative operation of provisions such as ss 190(3) and s 13.4(4) which should be construed as having a similarly facultative operation as s 1316 of the Corporations Law in Oates.

11. [97]

    Furthermore, Ms Sharp contended that the proposition that s 190(3) and s 13.4(4) do not oust the application of s 36(2) is supported by the decision of the Full Court of the Supreme Court of Tasmania in Wignalls Smallgoods and the Full Court of the Supreme Court of Queensland in Price. Ms Sharp raised Tillman v Attorney-General NSW (2007) 70 NSWLR 448; [2007] NSWCCA 327 at [106]-[108] whereby the importance of comity between intermediate appellate courts was referred to by Giles JA and Ipp JA.

12. [98]

    Ms Sharp argued that the reasoning in each case was not “perfunctory” but persuasive. A further submission was that the applicant’s contention that Truegain is authority as to the applicability of s 36(2), which should be followed in preference to Wignalls Smallgoods and Price should be rejected.

13. [99]

    A further submission was that it was unlikely that the Legislature would have intended that a provision designed to provide a solution to the common problem of a day falling on a weekend or a public holiday be excluded from the application of the NPW Act and BC Act. Ms Sharp argued that the suggestion that the expiry of the time limit occurring on a weekend or a public holiday was “not a problem” because the prosecutor could simply impose upon the Duty Judge and pay a fee to have the LEC Registry opened was an unrealistic view of the circumstances in which courts ought to be prevailed upon to operate outside of their usual hours.

14. [100]

    Mr Herzfeld submitted that contrary to the respondent’s contention, the Interpretation Act was expressly excluded as s 190(3) and s 13.4(4) state that those sections apply despite “any other Act”. Accordingly, the real issue was not whether the operation of the Interpretation Act is excluded by necessary implication. Rather, the question is whether there is any reason to read down the phrase “any other Act”, other than consistently with its ordinary meaning.

15. [101]

    As to the respondent’s submission that the use of the word “despite” in s 190(3) and s 13.4(4) indicates that they are “facultative provisions”, Mr Herzfeld said this submission was wrong. He argued that the use of the word “despite”, like the use of “notwithstanding” to introduce a provision simply shows that it is the leading provision. The respondent raised as an example Environment Protection Authority v Condon (2014) 86 NSWLR 499; [2014] NSWCA 149 (‘Condon’) at [28]. It was further contended that the mere use of the word “despite” does not determine the point and contrary to the respondent’s submissions, there is nothing in Oates that supports the proposition that the use of “despite” is always facultative or always expands upon the operation of other provisions. The reason it did so in Oates was because of the content of the provision at issue.

16. [102]

    Whilst accepting that one of the effects of both provisions is to displace the operation of shorter limitation periods prescribed in other legislation, Mr Herzfeld submitted that “despite” does not compel a reading as having only that effect.

17. [103]

    The respondent’s submission that both provisions cannot evince an intention to exclude s 36(2) because they “are directed towards different things and thus they operate in tandem”, Mr Herzfeld argued, makes the same mistake as the judge by making an a priori assumption as to the purpose of the provisions and then reading down the broad words used so as to conform to that assumption. He submitted that there is no basis in the text of the provisions to read them as limited to other Acts “directed to defining what the limitation period is".

18. [104]

    It was further submitted that this is not a case where there is “no good reason” to exclude the operation of s 36(2). Mr Herzfeld argued that it is consistent with the legislative intention to allow the prosecutor two years in which to commence but no longer. He submitted that the inapplicability of s 36(2) occasions no unreasonable consequences such that it would be “most unlikely” that the Legislature would have intended to exclude it. Mr Herzfeld contended that in circumstances where the legislation allows two years in which a prosecution can be commenced, it would be expected that the cases in which the prosecution would need every available minute, including the last available weekend, to put together their case would be rare. In such cases, it would be appropriate for the court to be prevailed upon to operate outside of the court’s usual hours.

19. [105]

    As to Wignalls Smallgoods and Price, Mr Herzfeld observed that the respondent now correctly accepts that this Court is not bound to follow those decisions unless convinced they are plainly wrong and noted that the respondent’s submission that its argument is “supported” by those decisions.

20. [106]

    Mr Herzfeld submitted that there were two difficulties with the respondent’s argument that the words “any other Act” are to ensure that other time limitations do not apply. The first was that the respondent had not pointed to any other applicable limitation period other than the Criminal Procedure Act 1986 (NSW). He argued that s 27 of the Children (Criminal Proceedings) Act 1987 (NSW) simply applies the general provisions of the Criminal Procedure Act including the limitation period and no other Act had been identified beyond the Criminal Procedure Act. The second was that if Parliament was “simply aiming at displacing contrary limitation periods, it would have said ‘this provision applies despite anything in the Criminal Procedure Act or any other Act which prescribes a limitation period’”. [9] The legislative provision, he emphasised, was “more general” and there was “no warrant to cut down the breadth of the words ‘or any other Act’”.

Consideration

1. [107]

   Simply understood, the question for determination raised by Ground 2 is whether s 36(2) of the Interpretation Act has been excluded by s 190(3) of the NPW Act and s 13.4(4) of the BC Act. As outlined at [87] above, the prosecutions were out of time unless s 36(2) operated to extend the time to that day (Monday being a public holiday).

2. [108]

   The judge reproduced the terms of s 29(3) of the Acts Interpretation Act 1931 (Tas) which was considered by the Full Court of the Supreme Court of Tasmania in Wignalls Smallgoods and s 38 of the Acts Interpretation Act 1954 (Qld) which was considered by the Full Court of the Supreme Court of Queensland in Price. [10] His Honour observed at [14]:

3. [109]

   When deciding the second issue, his Honour said at [138]-[139]:

4. [110]

   His Honour had correctly referred to the second principle identified in Farah and confirmed by the High Court in Hill v Zuda at [25]-[26] that “neither an intermediate appellate court nor a trial judge should depart from a decision of another intermediate appellate court on the interpretation of Commonwealth legislation, uniform national legislation or the common law of Australia unless convinced that the interpretation is plainly wrong, or to use a different expression, unless there is a compelling reason to do so.”

5. [111]

   In this appeal, the respondent does not submit, as it did before the judge, that the second principle in Farah and Hill v Zuda applies so that the judge was obliged to follow the decisions of the intermediate appellate courts of Tasmania and Queensland in Wignalls Smallgoods and Price. It is hardly surprising that the respondent does not argue that those decisions are binding precedent as the State legislation interpreted by each Full Court were not identical or substantially similar to s 13.4(4) of the BC Act or s 190(3) of the NPW Act. Furthermore, there are differences in the Interpretation Acts considered in each case.

6. [112]

   The respondent confined its argument to both cases providing support for its contention that s 190(3) and s 13.4(4) do not oust the application of s 36(2) and cited the joint judgment of Giles JA and Ipp JA in Tillman (Mason P dissenting), who emphasised the importance of comity between intermediate appellate courts in the construction of substantially similar State or Territory legislation.

7. [113]

   In concluding as his Honour did in the passages quoted at [22] and [109] above that he was obliged to follow the decisions in Wignalls Smallgoods and Price, his Honour erred. His Honour had the duty to exercise his own independent discretion in the interpretation of the statutes, whilst giving respectful consideration to those intermediate appellate court decisions.

8. [114]

   Turning to Wignalls Smallgoods, I do not agree with Mr Herzfeld’s criticism that the dispositive reasoning of Slicer J (and the majority) was perfunctory. As will be seen from the passages of the judgments quoted below, the issues in the case were carefully canvassed by the Full Court. Furthermore, I do not agree that Slicer J paid insufficient consideration to the fact that he was construing what was regarded as a penal provision. It is plain that Slicer J bore that in mind.

9. [115]

   In Wignalls Smallgoods, s 55 of the Workplace Health and Safety Act 1995 (Qld) (‘the Workplace Act’) provided that, “Notwithstanding anything in any other Act”, proceedings for an offence may not be instituted later than 12 months after the act or omission alleged to have constituted the offence.

10. [116]

    On 24 December 2001, Wignalls Smallgoods was charged with an offence contrary to the Workplace Act. The offence was alleged to have been committed on 23 December 2000, which was a Sunday. The appellant’s submission that the prosecution was out of time was rejected by the Full Court of the Supreme Court of Tasmania. The Full Court held that s 55 did not displace s 29(3)(a) of the Acts Interpretation Act 1931 (Tas) which provided that where a stipulated time for doing an act fell on a Sunday, statutory holiday, or public holiday, the act to be done was to be considered to be done in due time if it was done the next day.

11. [117]

    Slicer J (with whom Crawford J and Evans J agreed) explained at [6] that s 55 permitted a limitation period different from the shorter limitation period of 6 months stated in the Justices Act 1959 (Tas). Section 55 did not operate to displace the Acts Interpretation Act (Tas). Slicer J said at [12]:

12. [118]

    Slicer J further observed at [19]:

13. [119]

    Crawford J added the following observations at [2]:

14. [120]

    In Price, the Full Court of the Supreme Court of Queensland considered the construction of s 11 of the Limitation of Actions Act 1974-1981 (Qld) which provided:

15. [121]

    The appellant had been injured in the course of his employment on 6 July 1982. He commenced an action for damages on 8 July 1985 which was more than three years after the date on which the cause of action arose. In 1985, 6 July was a Saturday and his action was commenced on the following Monday. The respondent submitted that by s 11, the appellant’s right of action was barred. The appellant submitted that s 38(3) of the Acts Interpretation Act 1952-1977 (Qld) applied so that his right of action did not become barred until the following Monday.

16. [122]

    The appeal was allowed (Carter J dissenting). The majority (Moynihan and de Jersey J) held that the reference in s 11 to its application “notwithstanding any other Act or law or rule of law” did not exclude the operation of s 38 of the Acts Interpretation Act.

17. [123]

    Moynihan J said at 283 [24]-[34]:

18. [124]

    The judgment of de Jersey J included his Honour’s consideration of s 38(3) of the Acts Interpretation Act which included “unless otherwise expressly provided”. It is important to note that those words do not appear in s 36 of the Interpretation Act of this State. His Honour said at 287 [12]-[28]:

19. [125]

    I do not agree with Mr Herzfeld’s criticism that the dispositive reasoning of the majority in Price was perfunctory.

20. [126]

    Ms Sharp placed emphasis in oral argument on the High Court’s judgment in Oates and submitted that s 190(3) of the NPW and s 13.4(4) of the BC Act should be construed as having the same facultative operation as s 1316 of the Corporations Law was held to have in Oates.

21. [127]

    In Oates, the High Court (Gleeson CJ, McHugh, Gummow, Kirby and Hayne JJ) considered s 1316 of the Corporations Law which stated:

22. [128]

    The respondent had been charged with offences against ss 229 and 570 of the Companies Code. The prosecution was commenced on 12 January 1995, and the offences were alleged to have been committed between August 1988 and May 1989. On 5 January 1995, the Minister for Justice had consented to the institution of proceedings, although there was an issue in the proceedings whether that consent was valid. All of the offences were indictable. Under Western Australian Law, prosecutions for summary offences were required to be commenced within a twelve-month period. However, there was no time limitation on the commencement of prosecutions for indictable offences.

23. [129]

    The Full Court of the Federal Court held that the phrase “[d]espite anything in any other law” was “a reference to any law, whether common law or statute, that is inconsistent with a requirement that a prosecution must be commenced within five years”. The appellants challenged that holding: that prosecutions for offences against the Corporations Law, even those prosecuted on indictment where otherwise there is no time limit, must be instituted within the five year period; and, if that period had elapsed, the consent of the Minister was always required. The appellant’s primary submission was at [9]: “that s 1316 is facultative rather than restrictive in character and does not impose any special limitation upon the period within which all prosecutions, whether conducted summarily or on indictment, must be commenced”. [13] The appellant submitted at [20] that the opening expression “[d]espite anything in any other law” indicated “that the section displaces what otherwise would be obstacles and does so by empowering or authorising the commencement of proceedings which otherwise would be barred by reason of a time limitation imposed by some other statute”.

24. [130]

    The High Court accepted the appellant’s submissions and held that the section was facultative, not restrictive. The section authorised the commencement of proceedings (e.g. summary offences) which would otherwise be barred by reason of a time limitation imposed by another statute.

25. [131]

    Mr Herzfeld argued that there is nothing in Oates that supports the proposition that the use of the word “despite” is always facultative. He referred to Leeming JA’s judgment in Condon where his Honour considered the use of the word “despite” in clause 6 of the Protection of the Environment Operations (Waste) Regulation 2005. Clause 6 commenced “[d]espite clause 5…” Leeming JA said at [28]:

26. [132]

    This Court’s task is to interpret the meaning of s 190(3) of the NPW Act and s 13.4(4) of the BC Act. In undertaking that task, the principles of statutory construction summarised at [67]-[69] above apply. Although all of the authorities which I have mentioned (including Truegain) are helpful, they do not relieve this Court from the obligation of exercising its independent judgment in construing each provision.

27. [133]

    Section 13.4(4) of the BC Act and s 190(3) of the NPW Act are in the same terms. Section 13.4 and s 190 apply “despite anything in the Criminal Procedure Act 1986 or any other Act”.

28. [134]

    The textual context in which each subsections appears is in a provision which prescribes the time within which proceedings against the relevant Act or regulations may be commenced. The purpose of the BC Act is to maintain “a healthy, productive and resilient environment” [14] and the objects of the NPW Act include “the conservation of nature”. [15] The offence provisions such as ss 2.2(1)(b) and 2.4(1) of the BC Act are designed to protect “a threatened ecological community” and “a threatened species”. The offence provisions such as ss 118A(2) and 118D(1) of the NPW Act are designed to protect “an endangered ecological community”.

29. [135]

    All of the offences with which the applicant has been charged may be prosecuted summarily. Section 179(1) of the Criminal Procedure Act 1986 provides that “[p]roceedings for a summary offence must be commenced not later than 6 months from when the offence was alleged to have been committed”.

30. [136]

    It is abundantly clear that the expression “despite anything in the Criminal Procedure Act” is intended to extend the time for the commencement of summary proceedings for offences against the BC Act and the NPW Act to the time prescribed in each Act. I have no doubt that the word “despite” in the context of the Criminal Procedure Act is facultative and not restrictive.

31. [137]

    As in that context “despite” is facultative, does it become restrictive when construed with “any other Act”? Does “despite” possess chameleonic qualities so that its meaning changes after the word “or”? I think not. The expression “despite anything in the Criminal Procedure Act 1986 or any other Act” must be construed as a whole. I do not agree with Mr Herzfeld that “despite” can have two meanings in the same expression.

32. [138]

    Construed as a whole, the plain intention of the expression is to authorise the commencement of proceedings which would otherwise be barred by reason of the 6-month time limitation in the Criminal Procedure Act or by a time limit in other legislation. I do not agree with Mr Herzfeld’s submission that as s 27 of the Children (Criminal Proceedings) Act applies the limitation period for summary offences imposed by the Criminal Procedure Act, the respondent has not identified any other Act beyond the Criminal Procedure Act. The Children (Criminal Proceedings) Act is a statute in its own right and is not encompassed by the Criminal Procedure Act. The Children (Criminal Proceedings) Act falls within the expression “any other Act” even though it applies the same limitation period for summary offences as is imposed by the Criminal Procedure Act.

33. [139]

    There is neither an express nor implicit intention to exclude the operation of s 36 of the Interpretation Act. The Interpretation Act applies as no contrary intention appears in either the BC Act or the NPW Act. [16] After the ordinary rules of construction are applied, there is no ambiguity which requires resolution.

34. [140]

    The judge correctly concluded that s 13.4(4) of the BC Act and s 190(3) of the NPW Act did not oust s 36(2) of the Interpretation Act. It follows that s 36(2) extended the time for the proceedings to Tuesday 14 June 2022. The respondent established beyond reasonable doubt that the prosecutions commenced within time.

35. [141]

    It is convenient to add that s 36(1) of the Interpretation Act supports the conclusion in the disposition of Ground 1 that the day the evidence first came to the investigating officer’s attention was not included in the calculation of the limitation periods.

Orders

1. [142]

   The orders I propose are:

   1. (1)

      Grant leave to appeal;

   2. (2)

      Dismiss the appeal; and

   3. (3)

      Remit the proceedings to the Land and Environment Court of NSW for mention on 11 August 2023.

2. [143]

   DHANJI J: I agree with the orders proposed by Price J, and with his Honour’s reasons. I would add only the following, relevant to the first issue of whether the limitation period expired, as the applicant contends, on 10 June 2022.

3. [144]

   As has been explained by Price J, it was accepted that evidence of the alleged offences came to the attention of a relevant officer on 11 June 2020. Both s 190 of the National Parks and Wildlife Act 1974 (NSW) and s 13.4 of the Biodiversity Conservation Act 2016 (NSW) provided that a prosecution could be commenced “within but not later than 2 years after the date on which evidence of the alleged offence first came to the attention of” that officer. The applicant’s construction overlooks the significance of the words “the date” in the expression “after the date”.

4. [145]

   To take a hypothetical example, if an offence came to the attention of an authorised officer at midday on 19 June 2023, a period of two years will conclude the moment before midday on 19 June 2025. The limitation period, however, is not two years after the relevant event but two years after the date of the relevant event (which also gives voice to the general principle that law does not deal in fractions of a day: see Prowse v McIntyre (1961) 111 CLR 264; [1961] HCA 79 at 270-71, 276, 278). The date in this case is 19 June 2023. Time begins to run after that date. Thus, the two year period begins at the commencement of 20 June 2023 and ends at the conclusion of 19 June 2025. (It is the conclusion of 19 June, rather than “midnight”: see Prowse v McIntyre at 274, 278). Adapting this to the present case, the relevant date was 11 June 2020. The period of two years after that date expired at the conclusion of 11 June 2022. A literal reading of the provision also supports the construction of the primary judge.