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Tutt v State of Queensland

 

[2013] QCA 59

 

SUPREME COURT OF QUEENSLAND

 

PARTIES:

FILE NO/S:

Court of Appeal

PROCEEDING:

Case Stated

ORIGINATING COURT:

DELIVERED ON:

26 March 2013

DELIVERED AT:

Brisbane

HEARING DATE:

14 March 2013

JUDGES:

Holmes, Fraser and White JJA
Separates reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

  1. The question stated for the opinion of the court should be answered as follows:

“In calculating the pension payable to a judge who retires upon reaching the age of 70, having served more than five years but less than ten years as a judge, section 3 of the Judges (Pensions and Long Leave) Act 1957, does not require a pro rata calculation to be applied to the last period of service commencing on 24 May 2011 which is less than one year.”

  1. No order as to costs.

CATCHWORDS:

STATUTES – ACTS OF PARLIAMENT – INTERPRETATION – GENERAL APPROACHES TO INTERPRETATION – GENERALLY – where the applicant was appointed a District Court judge and retired after having served for seven years and 353 days – where the applicant served more than five years but less than ten years as a judge – where s 3(1) of the Judges (Pensions and Long Leave) Act 1957 (‘the Act’) provides for a pension ‘at a rate equal to six per cent of the judge’s salary for each completed year of service as a judge’ – where the respondent calculated the applicant’s pension on the basis of having served seven complete years as a judge – where the applicant contends his pension should be calculated on the basis of serving seven years and 353 days as a judge – whether s 3 of the Act should be interpreted as requiring a calculation of judicial pensions for the last year of service on a pro rata basis

Acts Interpretation Act 1954 (Qld), s 14A

District Court of Queensland Act 1967 (Qld), s 24

Judges (Pensions and Long Leave) Act 1957 (Qld), s 3(1), s 15

British Columbia v B.C.G.E.U., unrep, 5 September 1997, British Columbia Arbitration Board, cited
Commissioner of Taxation v Consolidated Media Holdings Ltd (2012) 87 ALJR 98; [2012] HCA 55, cited
Lloyds Underwriters v Cross (2012) 293 ALR 412; [2012] HCA 56, cited
Mifsud v Veolia Transport Sydney Pty Ltd [2011] FMCA 913, cited
Minister for Immigration and Citizenship v Szjgv (2009) 238 CLR 642; [2009] HCA 40, cited

COUNSEL:

J K Murdoch SC for the applicant
W Sofronoff QC SG for the respondent

SOLICITORS:

McKeering Down Lawyers for the applicant
Crown Law for the respondent

[1] HOLMES JA: I agree with the reasons of Fraser JA and the orders he proposes.

[2] FRASER JA: The applicant applied by an originating application in the Trial Division for a declaration that upon the proper construction of s 3 of the Judges (Pensions and Long Leave) Act 1957 the applicant is entitled to a pension at a rate equal to 47.784 per cent of his salary as at 11 May 2012.  Pursuant to r 483 of the Uniform Civil Procedure Rules 1989 (Qld), a judge in the Trial Division stated the following case for the opinion of the Court of Appeal:

Facts

1.The applicant was born on 11 May 1942.

2.The applicant was appointed a judge of the District Court of Queensland from 24 May 2004.

3.To applicant attained the age of 70 years on 11 May 2012.

4.On 11 May 2012, as required by section 14 of the District Court Act 1967, the applicant retired.

5.The State has calculated the applicant’s pension as 42% of salary.

6,The applicant contends that the pension should be calculated at 47.784% of salary.

Question

1.The question for the Court is:

Whether, in calculating the pension payable to a judge who retires upon reaching the age of 70, having served more than five years but less than ten years as a judge, section 3 of the Judges (Pension and Long Leave) Act 1957, requires a pro rata calculation to be applied to the last period of service commencing on 24 May 2011 which is less than one year.”

[3] The answer to the question depends upon the proper construction of s 3 of the Judges (Pensions and Long Leave) Act 1957.  It provides:

Pension of judge retiring at 70

(1)If a judge retires on reaching 70 after serving as a judge for not less than 5 years, the judge is, subject to subsection (2), entitled to a pension at a rate equal to 6% of the judge’s salary for each completed year of service as a judge.

(2)The maximum pension to which the judge is entitled is the following percentage of the judge’s salary—

(a)if the judge retired before the enactment of the Judges’ Pensions Act Amendment Act 1984—50%;

(b)in any other case—60%.”

[4] Subsection 2 does not apply because the applicant served as a judge for less than 10 years.  The applicant is therefore entitled to a pension “at a rate equal to six per cent of the judge’s salary for each completed year of service as a judge”.  Because the applicant began service as a judge on 24 May 2004 and concluded that service after the seventh anniversary and before the eight anniversary of his appointment, the applicant completed seven years of service as a judge.  The State contended that the applicant is therefore entitled to a pension of 42 per cent of salary (seven years at six per cent).  The applicant contended that the relevant calculation must also take into account that the applicant served 353 days after the seventh anniversary of his service as a judge.  He contended that the correct calculation is (7 plus 353/366) x 6 per cent of salary.  That equates to 47.784 per cent of salary.

[5] The applicant argued that the phrase “at a rate” in s 3(1) required the pension to be calculated with reference to the total period the applicant had served as a judge.  He argued that the State’s construction should be rejected because it left the words “at a rate” with no work to do.  In an attempt to surmount the apparent obstacle to this argument in the words “each completed year”, the applicant argued that “completed” merely made it clear that the rate of six per cent was attracted only for each completed year and that an incomplete year of service does not attract the “full” six per cent.

[6] The applicant’s arguments require a departure from the ordinary meaning of the statutory text.  The three factors in the calculation are “6%”, “salary”, and “each completed year of service”.  The provision does not permit the use of a percentage less than six or a period less than a completed year.  Nor is the expression “at a rate” superfluous.  Some such expression was necessary for the reason advocated for the State, that the pension varies according to a formula which takes into account variations in “salary” from year to year.  The word “rate” is apt; one of the ordinary meanings of “rate” is a payment fixed by reference to a rule or basis of calculation.[1]  That word is particularly appropriate because the product of the calculation is an annual rate of pension, the “salary” factor in the calculation being a reference to a notional annual rate of salary.[2]  The calculation required by the words “equal to 6% of the judge’s salary for each completed year of service as a judge” is therefore the straightforward one used by the State in calculating the applicant’s pension.  The same construction might have been appropriate had the word “completed” been omitted,[3] but that word reinforces the conclusion that any period after the judge’s last complete year of service is not to be taken into account.

[7] The State’s construction also finds some support in s 15(1)(b) of the Act.  It provides for six-sevenths of a month leave of absence for “each subsequent completed year of service” after the first seven years of service.  Consistently with the State’s construction of s 3(1), s 15(1)(b) unambiguously provides for the accrual of leave only upon a completed year of service.  The applicant referred to the absence of the expression “at a rate” in s 15(1)(b) and the reference to a fraction of a month in the calculation of the period of leave, but s 15(1)(b) nonetheless makes it difficult to contend that the use of only completed years of service in calculating the pension is so surprising as to be unlikely to reflect the legislative purpose.

[8] The applicant contrasted the terms of s 3(1) with those of s 5(2)(b), which concerns the amount of pension payable upon a judge’s retirement or removal from office on account of ill health.  The latter provision relevantly provides for “an annual pension at a rate” which includes a component “for each year of the judge’s service as a judge in excess of 5 years”.  The contrast with s 3(1) does not seem significant.  In the context of s 5(2)(b) the express “for each year of the judge’s service” conveys the same meaning as the expression in s 3(1) “for each completed year of service as a judge”

[9] It is unnecessary to discuss the decisions of the Queensland Industrial Court to which the applicant referred.  None of those decisions turned upon the construction of s 3(1) or of any provision referring to “each completed” period of service.  The applicant’s argument was also not advanced by his reference to different statutes which expressly exclude any pro rata operation.[4]  Sub-section 3(1) in any event precludes reference to any period less than a completed year.  The differing terms of the analogous statutory provisions in other Australian jurisdictions, to which the State referred, also cannot influence the proper construction of s 3(1).

[10] As the applicant submitted, s 14A of the Acts Interpretation Act 1954 requires the interpretation which best achieves the purpose of the Act to be preferred to any other interpretation.  The applicant referred to a statement by the Minister for Justice at the time of the presentation of the Bill for the Act that “[t]he general objective of this bill is to safeguard the system of justice by ensuring as far as reasonably practicable the independence of the judiciary” and “to bring the Queensland law more into conformity… with other States by providing for pensions for Queensland judges”.[5]  These statements of statutory purpose were expressed at too high a level of generality to supply assistance in resolving the particular issue of construction in this case. 

[11] The applicant also referred to what he argued were legitimate community expectations that the amount of a retired judge’s pension would reflect the whole period of service and to the unlikelihood that it was intended to exclude the additional 353 days served by the applicant from the calculation of the pension when the applicant was unable to use that time to earn a potentially lucrative private income.  The applicant’s submissions speculate about what might have been intended by the legislators or make assumptions about the legislative purpose.  Neither approach is legitimate:  see Lloyds Underwriters v Cross [2012] HCA 56 at [25]-[26] per French CJ and Hayne J.

[12] The applicant invoked the following approaches in Maxwell’s On the Interpretation of Statutes, which were endorsed by French CJ and Bell J in Minister for Immigration and Citizenship v Szjgv: [6]

“Where the language of a statute, in its ordinary meaning and grammatical construction, leads to a manifest contradiction of the apparent purpose of the enactment, or to some inconvenience or absurdity which can hardly have been intended, a construction may be put upon it which modifies the meaning of the words and even the structure of the sentence. This may be done by departing from the rules of grammar, by giving an unusual meaning to particular words, or by rejecting them altogether, on the ground that the legislature could not possibly have intended what its words signify, and that the modifications made are mere corrections of careless language and really give the true meaning.”

[13] In support of the contention that the State’s construction produced an absurd result, the applicant referred to s 24 of the District Court of Queensland Act 1967, which provides:

“If at the determination by effluxion of time or other cause of any commission under this Act there shall be any actions or matters, civil or criminal, including any appeal, partly heard or standing for judgment by or before the holder of such commission, the commission shall only for the purpose of deciding such actions or matters (including the completion of the hearing thereof where necessary) and so far as is necessary for that purpose, remain in force until judgment shall have been delivered therein unless the holder of that commission shall be sooner removed.”[7]

[14] The applicant did not have any reserved decisions or part heard matters when he retired so that s 24 of the District Court of Queensland Act 1967 did not operate to extend his commission.  He argued that if he had required a further fortnight to complete his judicial work he would have had the benefit in the pension calculation of the disputed 353 days.  He argued that this was an absurd result of the State’s construction of s 3(1).  However the situation catered for by s 24 should be encountered only rarely.  Assuming, without deciding, that an extended period of service for the limited purposes described in s 24 of the District Court of Queensland Act 1967 would bear upon the correct calculation of a judge’s pension in some unusual cases, that is an unconvincing ground for departing from the ordinary meaning of s 3(1) of the Judges (Pensions and Long Leave) Act 1957.

[15] In Commissioner of Taxation v Consolidated Media Holdings Ltd,[8] French CJ, Hayne, Crennan, Bell and Gageler JJ referred to the observation in Alcan (NT) & Alumina Pty Ltd v Commissioner of Territory Revenue that “the task of statutory construction must begin with a consideration of the text itself” and added:

“So must the task of statutory construction end.  The statutory text must be considered in its context.  That context includes legislative history and extrinsic materials.  Understanding context has utility if, and insofar as, it assists in fixing the meaning of the statutory text.  Legislative history and extrinsic materials cannot displace the meaning of the statutory text…”

[16] The State’s construction reflects the meaning of the text of s 3(1) when it is considered in the context of other provisions in the same Act.  For the reasons I have given, the extrinsic material cited by the applicant and the other matters upon which he relied are incapable of displacing that meaning.

Proposed answer

[17] In my opinion, the question stated for the opinion of the Court should be answered as follows:

“In calculating the pension payable to a judge who retires upon reaching the age of 70, having served more than five years but less than ten years as a judge, section 3 of the Judges (Pensions and Long Leave) Act 1957, does not require a pro rata calculation to be applied to the last period of service commencing on 24 May 2011 which is less than one year.”

[18] In supplementary submissions filed with the Court’s leave, the parties agreed that if, as I would hold, the respondent State was the successful party in the reference, there should be no order as to costs.

[19] WHITE JA: I have read the reasons for judgment of Fraser JA and I agree with his Honour’s construction of s 3 of the Judges (Pensions and Long Leave) Act 1957 (Qld) for the reasons that his Honour gives.

[20] I agree with the answer which his Honour proposes to the question stated for the opinion of the Court and that there should be no order as to costs.

Footnotes

[1] That meaning is reflected in dictionary meanings, for example, the Macquarie Dictionary Online (“amount of a … payment with reference to some basis of calculation”) and The Chambers Dictionary, 11th Ed. (“amount determined according to a rule”).

[2] The definitions of “salary” in the Schedule and in s 2B of the Act (the latter applies only in a limited class of cases) both refer to a notional “annual rate of salary”.

[3] See British Columbia v B.C.G.E.U., unrep, 5 September 1997, British Columbia Arbitration Board, which found that the common meaning of “each year” in the expression “severance pay based upon three weeks current salary for each year of service” was “one complete year”.

[4] Cf Mifsud v Veolia Transport Sydney Pty Ltd [2011] FMCA 913 (“…each completed year of service) (not pro rata…”).

[5] Hansard 28 November 1957, pp 1449-1450.

[6] (2009) 238 CLR 642 at 651-652 [9].

[7] Similarly, s 21(2) of the Supreme Court of Queensland Act 1991 provides that “a judge who, before retiring …, starts the hearing of a proceeding remains a judge for the purposes of finishing the proceeding.”

[8] [2012] HCA 55 at [39].

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Editorial Notes

  • Published Case Name:

    Tutt v State of Queensland

  • Shortened Case Name:

    Tutt v State of Queensland

  • MNC:

    [2013] QCA 59

  • Court:

    QCA

  • Judge(s):

    Holmes JA, Fraser JA, White JA

  • Date:

    26 Mar 2013

Litigation History

Event Citation or File Date Notes
QCA Original Jurisdiction [2013] QCA 59 26 Mar 2013 -

Appeal Status

No Status