Case: Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28 ; (1998) 194 CLR 355
Outcome: cited
As McHugh, Gummow, Kirby and Hayne JJ pointed out in Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28 ; (1998) 194 CLR 355 at 384 [78] , the duty of a court is to give the words of a statutory provision the meaning that the legislature is taken to have intended it to have. They said: 'Ordinarily, that meaning (the legal meaning) will correspond with the grammatical meaning of the provision. But not always. The context of the words, the consequences of a literal or grammatical construction, the purpose of the statute or the canons of construction (for example, the presumption that, in the absence of unmistakable and unambiguous language, the legislature has not intended to interfere with basic rights, freedoms or immunities: Coco v The Queen [1994] HCA 15 ; (1994) 179 CLR 427 at 437) may require the words of a legislative provision to be read in a way that does not correspond with the literal or grammatical meaning.' (See also DB Management 199 CLR at 338 [34].) 33 Indeed, the provisions of reg 11 prescribed some of the matters which the Review Report regarded as exceptional circumstances. But reg 11 could not supplant the natural and ordinary meaning of 'exceptional circumstances' as used in s 106KA(2). Rather the purpose of the regulation-making power granted by the Parliament in s 106KA(5) was to set out a free-standing set of circumstances which may or may not be within the ordinary and natural meaning of 'exceptional circumstances' in s 106KA(2). 49 After the draft report had been served on Dr Ho in accordance with s 106KD(3) he made submissions upon the findings. In its final report the committee set out, in tabular form, a summary of the thrust of Dr Ho's submissions and their response. The committee noted in response to the argument that s 106KA(2) should be interpreted literally, that a purposive approach should be taken referring to Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28 ; (1988) 194 CLR 355. 50 The committee's final report noted that Dr Ho's lawyers had raised legal issues in his post hearing submissions. The submissions claimed that the chairman's summary given at the conclusion of the hearing had understated the difficulties encountered by Dr Ho. The submissions provided further material concerning, among other things, the difficulties encountered by Dr Ho as a result of the former partnership litigation disputes, the problems of locating and engaging a suitable new doctor and the difficulties caused by the corporatisation of medical practices which was then occurring. Corporatisation was said to make it even more difficult than normal to recruit a suitable practitioner to the practice. 51 The committee noted that most of Dr Ho's claimed stressful circumstances were outside the referral period. It went on to say: '[70] In relation to his practice, Dr Ho did not present any additional evidence to the committee on how he might have alternatively managed his patients, for instance, by limiting hours and initiating an appointment system, or by referring patients to other practitioners or hospitals in the area. Dr Ho told the committee that in retrospect he could have handled the situation thus: "I could say no and refuse to see them because my volume was so high. I just did not" because he felt it was more an ethical issue that he see his regular patients. The committee considers the opening hours of the Familyland Medical Practice during the referral period to be both business and lifestyle decisions made by the partners in the practice and, thus, this does not constitute exceptional circumstances.'