Case: Dimella Constructions Pty. Ltd v Stocker and Stocker (1976) 14 SASR 215
Outcome: applied
applicant relies upon the decision of the Full Court of the Supreme Court of South Australia in Dimella Constructions Pty. Ltd v Stocker and Stocker (1976) 14 SASR 215 in which the Court at 221-222 considered the meaning of the word 'contravention'. Additionally, the applicant submits that the principle of interpretation that Parliament is not taken to deprive persons of property rights without expressing its intention in unmistakable and unambiguous terms applies: see Coco v R (1994) 179 CLR 427 at 437-438. The applicant relies upon the decision of Dimella Constructions , in which the Court was asked whether s 21(5) of the Builder's Licensing Act 1967 (SA) would apply to a builder even if a charge under ss 21(2) or (11) could be defended by the common law defence of honest and reasonable mistake of fact. Section 21(5) stated that: Where a person has carried out or undertaken, or submitted a bid or tender, to carry out any building work in contravention of this section, he shall not be entitled to claim, or recover in any court, the amount of any fee or charge for any building work... Section 21(2) imposed a penalty on a person who held himself or herself out as having a building licence without having a licence and s 21(11) imposed a penalty for constructing a building for a fee without a licence. The conduct of the charged party satisfied the descriptions of such offences, but the Court found that he was adequately protected by the defence of honest and reasonable mistake of fact because he believed himself to be licensed. Bray CJ (with other judges agreeing) found at page 221 that: I think a man does not transgress a law if he is legally innocent of breaking it and entitled to acquittal if charged with a breach of it, nor, in such circumstances, does he go counter to it or come into conflict with it. At 222, Bray CJ concluded: If it is a characteristic of any contravention that it could result in a penalty after conviction for a punishable offence, then e converso when there can be no penalty, because there can be no convention because there is no punishable offence, there is no contravention. The meaning of the word 'contravention' is critical for the present proceedings. The word has been defined in cases other than Dimella to mean ' a failure to obey a statutory command...by doing something that a statute says must not be done ': see Re Centennial Coal Co Ltd (2006) 226 ALR 341 at 346 per Barrett J; ' an infringement or violation of a rule or standard or norm ': see Re Venice Nominees at 242 per Miles CJ; '" infringe (law); (of things) conflict with"' per Owen J in Elkington v Vockbay Pty Ltd; Vockbay Pty Ltd v Elkington (1993) 10 ACSR 785 at 803; and ' an act or omission which is blameworthy and may lead to civil or criminal consequences ' per Young J in NRMA Ltd v Gould and Others (1995) 18 ACSR 290 at 293. The word has been defined in various UK statues as ' failure to comply ': see, for example, ss 5(1) and 37(1) Misuse of Drugs Act 1971 (UK); s 53(1) Food and Safety Act 1990 (UK). In view of the applicant's further submissions, the decision in Dimella Constructions and the preceding discussion, the Court finds itself unable to ignore the judicial findings which have had the result that all those charged with offences under the Migration Act have been acquitted. Contravention may not always equate to a criminal offence. However, due to the structure of the Criminal Code it must follow that a failure to find criminal responsibility must also lead to finding that a contravention of the relevant provisions of the Migration Act creating offences does not exist. The defence upon which the acquittals or discontinuances of the charges against the applicant and others was based, namely sudden or extraordinary emergency as provided by s 10.3 of the Criminal Code , applies equally to any offence with which the applicant or any other person on board the ship could be charged. As has been stated, the relevant question is whether the Court is satisfied to a high degree of probability that a contravention of the Migration Act has occurred. The Court can no longer be so satisfied that contraventions have occurred in respect of any offences under the Migration Act . Contravention of s 42 of the Migration Act