Yrttiaho v Copely [1971] HCA 29

High Court of Australia Barwick C.J. Menzies, Windeyer, Walsh and Gibbs JJ. Yrttiaho v Copely [1971] HCA 29

ORDER Appeal dismissed with costs.

Cur. adv. vult.

The following written judgments were delivered:—

July 18 Barwick C.J.

I have had the advantage of reading the reasons for judgment prepared in this appeal by my brother Gibbs. He has there set out all the facts and circumstances necessary to be known in order to dispose of the questions which arise in the appeal between the parties. He has also referred to the decisions both of this Court and of other courts which may bear upon the resolution of those questions.

If the matter were governed simply by the rules of the common law I would agree with his conclusion that in its application to the facts of this case the amendment of O. 90, r. 9 effected by the Order in Council of 14th December 1965 was of a procedural nature only and that in that application it did not displace or affect any relevant right of the appellant. I find no need to add anything to what my brother has said in respect of the reasons which support that conclusion.

Again if the rights of the parties depended solely on the provisions of s. 20 (1) (c) of The Acts Interpretation Acts, 1954 to 1962 Q. (the Act) I would agree that the Order in Council, being for purposes of that provision an Act, did not affect any right, interest, title, power or privilege within the meaning of that paragraph of s. 20 (1). Consequently on that assumption I would agree that the Order in Council could not be ignored in considering what procedure was applicable to the appellant's proceedings after it had become effective.

However, the rights of the parties quite clearly, in my opinion, do not depend either upon the common law rules or solely upon the provisions of s. 20 (1) (c). They depend in my view upon the provisions of s. 20 (1) (e) and its proper construction and application. The point of the case, in my opinion, is simply one of construction of that provision. The paragraph must of course be read as a whole. The matter cannot be resolved by merely reading so much of it as precedes the words "and any such investigation" etc. These words are part of par. (e), following the words "punishment as aforesaid". Read as a whole, I am quite unable to accept the view that when it refers to an investigation or legal proceeding or remedy that it is referring to the existence of a right to bring proceedings or to seek remedies or to conduct investigations. The prior paragraph does that if the right satisfies its terms. Paragraph (e) includes in its premise the supposition that at the time of the amendment there is on foot an actual investigation, legal proceeding, etc. It says and I quote it "any such investigation, legal proceeding, or remedy may be continued as if the repealing or amending Act had not been passed,". After due consideration, and with due respect for the views of those who may not share my opinion I am quite unable to apply this provision to the facts of this case otherwise than to treat the appellant as being in the position of being able to continue his action as if no amendment had been made to O. 90, r. 9. Prior to the amendment he was undoubtedly in the position that he could continue that action without the assistance of an order of a judge up to the expiry of six years from the date of the last step having been taken. The section, in my opinion, says in the plainest, and to my view the most unambiguous of language that he is to remain in that situation notwithstanding the amendment. It is not a matter of conceding him some vested right in court procedure. It is simply a matter of applying the clearly expressed provision of the statute.