Case: Garnett v Bradley (1878) 3 App Cas 944
Outcome: cited
154 of the Licensing Act provided for a penalty of imprisonment for a term not less than six months or more than 12 months for a second offence of selling liquor without a licence. The question for the Court was whether the exceptive words in s 74(1) meant that the Court could not exercise the power in s 74(1) to reduce a penalty to something less than imprisonment if the justice of the case would be better met. The Court said: Because this is so, exceptive words such as those which introduce s. 74(1) have no legal effect beyond saving earlier enactments which otherwise would be inconsistent with the provision introduced. In regard to later enactments they "go no farther than the general law": Garnett v Bradley (1878) 3 App. Cas. 944 , at p. 965 and "are not really necessary because if the later Act shows a contrary intention the earlier enactment cannot control it. But they remind us of the general rule". So Isaacs J. observed in Bennett v. Minister for Public Works (N.S.W.) [1908] HCA 50 ; (1908) 7 C.L.R. 372 , at p. 384, speaking of the exceptive expression "unless the contrary intention appears". Whatever the verbal formula employed, it cannot have in regard to later legislation any greater force or value than that expression. As Keating J. remarked in Chorlton v. Lings (1868) L.R. 4 C.P. 374, "to do more would be exceeding the competency of parliament with reference to future legislation" (1868) L.R. 4 C.P., at p. 395. The Court said at 359: The general provision of s. 74(1) of the Justices Act is accordingly prefaced by words which have a saving effect as regards earlier enactments and serve as a reminder in relation to later, meaning in regard to both that the general provision which follows is not to be denied any of its operation save by something actually inconsistent with it in the operation of another enactment. Section 43 authorises the Court to make an order for costs against a non-party. The exceptive words in the body of s 43 do not by themselves limit the operation of s 43 by any later Act. Section 43 of the Federal Court Act was enacted before s 1335(2) of the Corporations Act . It cannot control that subsection. A later Act could limit the operation of s 43 but that would raise the question of the construction of the later Act. Therefore, the question which is to be determined is whether s 1335(2) as a later enactment has the effect of limiting the operation of s 43(1) to a party or a party to a proceeding brought under the Corporations Act . His Honour traced the legislative history of s 1335(2). He noted that the English Judicature Acts of 1873-1875 did not address all of the anomalies which then existed in relation to the Court's powers in relation to costs. Costs in the common law courts were entirely creatures of statute: Garnett v Bradley (1878) 3 App Cas 944 at 962. On the other hand, the Court of Chancery claimed to have power to deal with costs at its discretion although there was some uncertainty as to the extent of that power. The authorities suggested that the position in equity continued after those Acts. He noted that s 5 of the Judicature Act 1890 (UK) which gave the Court expanded jurisdiction to award costs resolved the uncertainty. That section relevantly provided: subject to the ... Acts and the Rules ... and to the express provisions of any statute ... the costs of and incidental to all proceedings in the Supreme Court ... shall be at the discretion of the Court or Judge and the Court or Judge shall have full power to determine by whom and to what extent such costs are to be paid. He noted that it was not until 1928 that s 5 of the Judicature Act 1890 (UK) was adopted in Victoria as s 32(1) of the Supreme Court Act 1928 (Vic) (now s 24(1) of the SC Act (Vic)). Section 32(1) gave the Court jurisdiction to deal with all questions of costs, including proceedings under the Companies Act. Before the Uniform Companies laws of 1961, there was no equivalent of s 1335(2) in the Victorian legislation. There was on his Honour's reasons no need for s 1335(2) because s 32(1) gave the Court power to award costs in all proceedings and therefore s 1335(2) was not picked up by the Victorian Companies Act of 1938 or its consolidation in 1958. He turned his attention to the New South Wales jurisdiction. He noted that New South Wales did not adopt the Judicature Acts until 1970 when the Court was given the statutory provision equivalent to s 5 of the Judicature Act 1890 (UK). In the meantime, the predecessor of s 1335(2) was introduced into the Companies Act 1936 (NSW) (the Companies Act) by s 365(2). Section 365(2) eventually became s 1335(2). His Honour said at 211: It seems fairly clear that this subsection was an enabling provision, intended to give the Supreme Court in New South Wales a similar discretion to that which was given to English Courts in 1890 and to the Victorian Supreme Court in 1928. Bearing in mind that s. 24(1), or its equivalent, was in force in Victoria and England, there was no need to introduce in those jurisdictions a provision such as s. 365(2) of the Companies Act of New South Wales. On the other hand, there was reason to pass such legislation in New South Wales in 1936 if its Supreme Court was to have a wide discretion to award costs in a proceeding under the companies legislation. Because there was no general power in New South Wales of the kind given by s 5 of the Judicature Act, it was arguable that the Courts did not have the power to award costs in matters under the Companies Act. The enactment of s 365(2) was to put beyond doubt the Courts' power to award costs for proceedings under that Act. It was not enacted to limit the circumstances in which costs might be awarded. Thus it was that his Honour held that s 365(2) at the time of its introduction was an enabling provision, not a limiting provision. His Honour also noted that the equivalent of s 365(2) was not introduced into Victorian law until 1961 at the time of the Uniform Companies legislation in the form of s 363(2). His Honour pointed out that there was no need to introduce such legislation into the Victorian Uniform Companies legislation because the position was covered by s 24(1) of the SC Act (Vic). Moreover, his Honour observed was that there was no need to continue with s 365(2) in the New South Wales legislation after the New South Wales Parliament adopted the Judicature Act in 1970 but the provision has remained and has become s 1335(2). For those reasons, his Honour found that s 1335(2) was intended to be an enabling provision, not a limiting provision. In those circumstances, it did not limit the provisions of s 24(1) of the SC Act (Vic). His Honour concluded and said at 212: Whatever may be the position in relation to s. 43 of the Federal Court of Australia Act , s. 1335(2) does not so inhibit the jurisdiction of this court on the question of costs as was contended for by the respondents. His Honour's analysis of the legislative history of s 1335(2), in my opinion, has the same application in the construction of s 43 of the Federal Court Act.