Chapter-5 Circumstances When Reading may be permitted and Authorities Part-9.3

Chapter-5

Circumstances When Reading may be permitted and Authorities

Part-9.3

Discretions to cure innocent error

Experience specifically teaches that, on questions such as the present, judges, including in this Court, may exhibit different general inclinations. Thus, some judges incline to a narrower application of legislation so as to maximise the role of strict rules and to minimise the space for discretion that may adapt to the special demands of justice in the particular case. There are several instances where this tension has revealed itself[46][1]. Nevertheless, the general trend in this Court in recent years has, I believe, been to uphold the broad grant of jurisdiction and power to a court where this is afforded by legislation in terms that permit the court to soften the edges of overly rigid applications of procedural and other rules, and where otherwise an unyielding application of the law might defeat the attainment of justice in the particular case[47][2].

Differences of the foregoing kind might perhaps be traced to considerations embedded in individual judicial conceptions of the ameliorating role of courts of justice; a recognition of (and allowance for) human frailties; or the scars of particular professional experiences[48][3]. However that may be, when a choice exists in the construction of legislation, the trend of this and other courts has been to accept the need to uphold provisions that permit courts to cure particular defaults for reasons of justice. That is the approach that this Court should apply in circumstances such as the present. Above all where, with an explicit provision, the Parliament has afforded jurisdiction and power to a superior court, "[i]t is a strong thing to read into an Act of Parliament words which are not there, and in the absence of clear necessity it is a wrong thing to do.[4]"[49].

In Victorian Workcover Authority v Victoria[5][17] it is said:

“We cannot rewrite statutes where the words are unambiguous and the only reason for intervention would be a reasonable suspicion that Parliamentary counsel, or those instructing Parliamentary counsel, made a mistake and that the result gives a worker a windfall again.”

Exceptions as to when Court can read in to give purpose of an Act/statute

‘Moreover, once a court concludes that the literal or grammatical meaning of a provision does not conform to the legislative purpose as ascertained from the statute as a whole including the policy which may be discerned from its provisions, it is entitled to give effect to that purpose by addition to, omission from, or clarification of, the particular provision.[6]’ "There will be instances, however, in which even a purposive construction that strains the express terms of a provision, or that requires a provision to be treated as containing additional words, will be justified in order to give effect to the intention of the legislature.[7]”

However, ’If the target of a legislative provision is clear, the court's duty is to ensure that it is hit rather than to record that it has been missed. As a result, on rare occasions a court may be justified in treating a provision as containing additional words if those additional words will give effect to the legislative purpose.[8]’ As already stated ‘LORD DIPLOCK pointed out in Jones v. Wrotham Park Estates (at p 105) "the task on which a court of justice is engaged remains one of construction; even where this involves reading into the Act words which are not expressly included in it". His Lordship said that words could only be read into a statute if three conditions were fulfilled. First, the court must know, from a consideration of the legislation read as a whole, precisely what the mischief was that it was the purpose of the legislation to remedy. Secondly, the court must be satisfied that by inadvertence Parliament has overlooked an eventuality which must be dealt with if the purpose of the legislation is to be achieved. Thirdly, the court must be able to state with certainty what words Parliament would have used to overcome the omission if its attention had been drawn to the defect.[9]’

Authority and Case laws

1. It is beyond our province to rescue Congress from its drafting errors, and to provide for what we might think . . . is the preferred result.[10]
2. Even when the statute invites modification, as the "context clause" in some definitions does, judges are limited to considering the linguistic context rather than trying to "improve" the statute's substantive effect[11].
3. The only recent decision in which the anti-absurdity canon played an important role, [12] dealt with an incomplete and baffling rule. Other decisions that cite the doctrine, such as[13], use it to avoid an unconstitutional reading. The dearth of modern "substantive absurdity" decisions is readily understandable. Scholars as well as judges have recognized that a power to fix statutes substantively would give the Judicial Branch too much leeway to prefer its views about what makes for "good" laws over those of the Legislative Branch.[14]
4. The Supreme Court has been willing to enforce even statutes that seem to set traps for the unwary or unfortunate[15]., is a good example: The Court held that the statute of limitations for collateral attacks on criminal convictions may expire before the decision supporting the challenge becomes applicable, and it rejected an argument that this linguistically sound reading should be rejected as substantively absurd.

5. Another good example is United States v. Locke, [16], which dealt with a statute that required certain documents to be filed "before December 31." Unwary readers might read this as equivalent to "before the end of the year," and inevitably some did. The Court held that a person who filed on December 31 had filed too late. The statute was complete as written, and though the use of "before December 31" rather than "on or before December 31" may have been a blunder there was no linguistic defect, and hence no role for the anti-absurdity canon. The unfortunate outcome for the late filers, the Court held, was just a normal effect of any rule; no matter where the line may be placed, someone always files one day too late[17].

6. "It is a corollary to the general rule of literal construction that nothing is to be added to or taken from a statute unless there are adequate grounds to justify the inference that the legislature intended something which it omitted to express. Lord Mersey said: "It is a strong thing to read into an Act of Parliament words which are not there, and in the absence of clear necessity it is a wrong thing to do." "We are not entitled," said Lord Loreburn, L.C., "to read words into an Act of Parliament unless clear reason for it is to be found within the four corners of the Act itself." A case not provided for in a statute is not to be dealt with merely because there seems no good reason why it should have been omitted, and the omission appears in consequence to have been uninten­tional.[18]" (p 33) [emphasis added]

Lord Nicholls went on to describe what he considered to be the proper limits of this aspect of the judicial role,

"This power is confined to plain cases of drafting mistakes. The courts are ever mindful that their constitutional role in this field is interpretative. They must abstain from any course which might have the appearance of judicial legislation. A statute is expressed in language approved and enacted by the legislature. So the courts exercise considerable caution before adding or omitting or substituting words. Before interpreting a statute in this way the court must be abundantly sure of three matters: (1) the intended purpose of the statute or provision in question; (2) that by inadvertence the draftsman and Parliament failed to give effect to that purpose in the provision in question; and (3) the substance of the provision Parliament would have made, although not necessarily the precise words Parliament would have used, had the error in the Bill been noticed. The third of these conditions is of crucial importance. Otherwise any attempt to determine the meaning of the enactment would cross the boundary between construction and legislation.. In the present case these three conditions are fulfilled[19].

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[1] See eg Jackamarra v Krakouer [1998] HCA 27; (1998) 195 CLR 516 (Brennan CJ, McHugh and Kirby JJ; Gummow and Hayne JJ dissenting); [1998] HCA 27.

[2] See eg Queensland v J L Holdings Pty Ltd [1997] HCA 1; (1997) 189 CLR 146 at 167-172; [1997] HCA 1.

[3] cf Kirby, "Ten Parables for Freshly-minted Lawyers", (2006) 33 University of Western Australia Law Review 23 at 24-25

[4] Thompson v Goold & Co [1910] AC 409 at 420 per Lord Mersey, cited [2007] VSCA 121; (2007) 63 ACSR 300 at 309

[5] Victorian Workcover Authority v Victoria [2005] VSCA 261 at [4] per CALLAWAY JA

[6]See Kammins Co. v. Zenith Investments (1971) AC 850, at pp 880-882; Jones v. Wrotham Park Estates (1980) AC 74, at p 105; Cooper Brookes, at pp 321-323; In re Lockwood, Decd. (1958) Ch 231, at p 238

[7] Fox at para 16 per BLACK CJ

[8] Newcastle City Council v GIO General Ltd [supra] per MCHUGH J quoted by BLACK CJ

[9] See Mills v. Meeking [supra] per MCHUGH J ,also see generally ‘The present situation does not satisfy the conditions which, according to LORD DIPLOCK in Jones v Wrotham Park Estates and MCHUGH J in Newcastle City Council v GIO General Ltd, must be met before a court can read words into legislation, namely: “First, the court must know the mischief with which the statute was dealing. Second, the court must be satisfied that by inadvertence Parliament had overlooked an eventuality which must be dealt with if the purpose of the legislation is to be achieved. Third, the court must be able to state with certainty what words Parliament would have used to overcome the omission if its attention had been drawn to the defect.”

[10] " Lamie v. United States Trustee, [2004] USSC 9; 540 U.S. 526, 542[2004] USSC 9; , 124 S.Ct. 1023, 157 L.Ed.2d 1024 (2004), quoting from United States v. Granderson, [1994] USSC 1; 511 U.S. 39, 68[1994] USSC 1; , 114 S.Ct. 1259, 127 L.Ed.2d 611 (1994) (concurring opinion).

[11] See Rowland v. California Men's Colony, Unit II Men's Advisory Council, [1993] USSC 3; 506 U.S. 194, 113 S.Ct. 716, 121 L.Ed.2d 656 (1993).

[12] Green v. Bock Laundry Machine Co., [1989] USSC 96; 490 U.S. 504, 109 S.Ct. 1981, 104 L.Ed.2d 557 (1989),

[13] Public Citizen v. Department of Justice, [1989] USSC 125; 491 U.S. 440, 109 S.Ct. 2558, 105 L.Ed.2d 377 (1989), and United States v. X-Citement Video, Inc., [1994] USSC 52; 513 U.S. 64, 115 S.Ct. 464, 130 L.Ed.2d 372 (1994)

[14] See, e.g., John Manning, The Absurdity Doctrine, 116 Harv. L.Rev. 2387 (2003); Adrian Vermeule, Legislative History and the Limits of Judicial Competence: The Untold Story of Holy Trinity Church, 50 Stan. L.Rev. 1833 (1998).

[15] Dodd v. United States, ___ U.S. ___, 125 S.Ct. 2478, 162 L.Ed.2d 343 (2005)

[16] United States v. Locke, [1985] USSC 80; 471 U.S. 84, 105 S.Ct. 1785, 85 L.Ed.2d 64 (1985),

[17] See also Exxon Mobil Corp. v. Allapattah Services, Inc., ___ U.S. ___, 125 S.Ct. 2611, 162 L.Ed.2d 502 (2005).

[18]As quoted in: Ratnasingham v. Tikiribanda Dassanaike and Others - SLR - 8, Vol 1 of 1998 [1997] LKSC 14; (1998) 1 Sri LR 8 (17 October 1997

[19] Inco Europe Ltd v. First Choice [2000] 1 WLR 586