sqme recent developments in statute law

SQME RECENT DEVELOPMENTS IN STATUTE LAW."

I have not found this an easy paper to write. Reading statutes in uacuo (as I have been doing for the past six years, for the purpose of the Annual Review of Legislation, and as I have had to do over again for this paper) is a totally different thing from reading statutes, in the light of a concrete set of facts, with a view to finding the answer to a specific legal problem. One has to approach the statute first by asking exactly what it was that the legislature was trying to do--a question the answer to which involves a good deal of investigation of the debates in Hansard, an investigation which of course is strictly speaking illegitimate to the practising lawyer-and then by asking whether the legislation in question has done effectively what it was apparently intended to do. I am afraid that it. is an approach which inevitably concentrates attention on the blemishes in the Statute- Book. Not that such blemishes escape attention when statutes are being read for solutions to legal problems. Criticism of the drafting of legislation is endemic to the legal profession. Most of the recorded criticism, of course, comes from the judiciary. Writing at the beginning of this century, Lord Thring (the man who, in the words of Sir Courtenay Ilbert,l "is more responsible than anyone else for the form of modern English statutes") observed: ". . . when the bill has become law it will have to run the gauntlet of the judicial bench, whose ermined dignitaries delight in pointing out the shortcomings of the legislature in approving such an imperfect perf~rmance."~

One could, if there were time, compile an anthology the size of a small book of such judicial criticism. Megarry, in his Miscellany-at- Law, has collected some choice specimen^.^ Perhaps I may be per- mitted to remind you of a few. Grove J. observed, in Lyons v. Tucker," that "the language of statutes is peculiar and not always that which a rigid grammarian would use; we must do what we can to construe them"; though in the case in question his decision was ultimately that which strict grammatical construction would justify. Brett M.R. said of the Bankruptcy Act 1883, that5 "I have come to the conclusion, though with great doubt, that the legislature intended this Act of

+ A paper read at the 1965 Law Summer School held at the University of Western Australia.

1 THE MECHANICS OF LAW MAKING (New York, 1914), 99. 2 THRING, PRACTICAL LEGISLATION, cited ILBERT, op. cit . , 106. 8 MISCELLANY-AT-LAW (London, 1955), 349 et seq. 4 (1881) 6 Q.B.D. 660, at 664. 5 Hough v. Windus, (1884) 12 Q.B.D. 224, at 232.

Parliament to be verbose and tautologous, and intended to express itself twice over." Of the Rent and Mortgage Interest Restrictions Acts, 1920-1939, McKinnon L.J. once ob~e rved :~ ". . . having once more groped my way about that chaos of verbal darkness, I have come to the conclusion, with all becoming diffidence, that the county court judge was wrong in this case. My diffidence is increased by finding that my brother Luxrnoore has groped his way to the contrary conclusion." Three years before the same learned judge, referring to section 4 of the Trade Marks Act 1938, had said:7 "I must confess that . . . I have very little notion of what the section is intended to convey, and particularly the sentence of two hundred and fifty-three words, as I make them, which constitutes subs. 1. I doubt if the entire statute book could be successfully searched for a sentence of equal length which is of more fuliginous obscurity," while Lord Hewart said of the Shops (Sunday Trading Restriction) Act 1936, section 2:' "It might be possible, but I doubt if it would be easy, to compress in the same number of lines more fertile opportunities for doubt and error."

Finally, may I cite a contemporary example of the way in which the draftsman's techniques may move Her Majesty's Judges to language ranging from the robust to the plaintively picturesque? In the recently-reported case of Dauy v. Leeds CorporationQ Lord Denning observed : lo

"In order to resolve this difference we have been taken through the provisions as to compensation in the Town and Country Planning Act, 1959. I must say that rarely have I come across such a mass of obscurity, even in a statute. I cannot conceive how any ordinary person can be expected to understand it. So deep is the thicket that, before the Lands Tribunal, both of the very experienced counsel lost their way. Each of them missed the last twenty words of subsection (8) of section 9 of the Act of 1959. So did this expert tribunal itself. I do not blame them for this. I t might happen to anyone in this jungle. I am only too grateful to counsel for guiding us through it."

Harman L. J., supporting him, complained : l1

"To reach a conclusion on this matter involved the court in

6 Winchester Court, Ltd. v. Miller, [I9441 K.B. 734, at 744. 7 Bismag, Ltd. v. Amblins (Chemists) Ltd., [1940] Ch. 667, at 687. 8 London County Council v. Lees, [I9391 1 All E.R. 191, at 194. 9 [1964] 1 Weekly L.R. 1218.

10 Id., at 1222. 11 Id. , at 1224.

wading through a monstrous legislative morass, staggering from stone to stone and ignoring the marsh gas exhaling from the forest of schedules lining the way on each side. I regarded it at one time, I must confess, as a slough of despond through which the court would never drag its feet, but I have, by leaping from tussock to tussock as best I might, eventually, pale and exhausted, reached the other side where I find myself, I am glad to say, at the same point as that arrived at with more agility by my Lord."

Not only the judges, but occasionally draftsmen themselves, have been critical of the defects of at any rate their predecessors. Ilbert reminds us12 that it was Lord Thring who drew attention to the by now well-known instance of the Act 52 Geo. 3 c. 146, (an Act for the better regulating and preserving Parish and other Registers of Births, Baptisms, Marriages and Burials in England) of which section 14 created the offences of making false entries or false copies of entries in register books, or destroying, defacing, &c. register books, and went on to say "every Person so offending, and being thereof lawfully con- victed, shall be deemed and adjudged to be guilty of felony, and shall be transported for the Term of Fourteen Years," while section 18 provides that one half of the amount of all fines or penalties to be levied in pursuance of the Act should go to the person who should inform or sue for the same. He used also to cite a definition section in a local Improvement Act to the effect that: "The term new building means any building pulled or burnt down to or within ten feet from the surface of the adjoining ground." More recently E. A. Driedger, in an excellent article in the Canadian Bar Review,13 has shown himself refreshingly critical of a good deal of the Canadian drafting for which predecessors of his were responsible. For example, after citing one particular provision of the Canadian Dominion Elections Act14 "Every person who violates, contravenes, or fails to observe any of the provisions of this section is guilty of an indictable offence against this Act, punishable as in the Act provided" he goes on to ask: "What is the difference between violating this section, contravening it, and failing to observe its provisions? Why go on to say punishable as in this Act provided when section 86 of the same Act prescribes the penalties for any indictable offence against this Act? The example could be written:

12 Op. Cit. supra, n.1, 101. 13 Legislative Drafting, (1949) 27 CAN. BAR. REV. 291. Driedger was then

Parliamentary Counsel in the Ministry of Justice. He is the author of an excellent book, THE COMPOSITION OF LEGISLATION (Ottawa, 1957) .

14 R.S.C., 1927, c. 53, sec. 66 (6) , cited by Driedger, op . cit. supra, at 298.

Every person who violates this section is guilty of an indictable offence.

Twelve words instead of thirty-one, and no punctuation!"15 Again, citing a particular provision of the Canadian Quarantine Regula- tions:16 "Any unauthorized interference with animals after inspection, whether by substitution or otherwise, or any evasion, or misrepresentation, will be deemed a breach of these Regulations, and, in addition will render the shipment liable to seizure and detention pending the orders of the Minister as to its disposal" he asks, "What is an unauthorized interference wi th animals or an evasion? As the section reads, it is not merely an evasion of the regulations or a misrepresentation of some matter material to the regulations that is deemed to be a breach of the regulations; any evasion or misrepresentation (whatever that may mean) is deemed a breach" and he adds, bitingly "The difficulty with this section is that the draftsman did not know what he wanted to say." He goes on to cite what he calls "another example of confused thinking" to be found in the Feeding Stuffs Act.17 Section 5 ( 1 ) of the Act requires that every package containing any feeding stuff "mentioned in column 1 of Schedule A" shall be labelled in

15 Driedger characterizes this offence against the canons of good drafting, as he sees them, as the addition of unnecessary words to legislative sentences. This is probably the product of excessive caution (or else the survival of the verbosity of bygone conveyancers) ; and the habit dies hard. Despite the undoubted influence of Driedger on the style of Canadian legislative drafting, I find this in the Maritime Transport Union Trustees Act (1963) 12 Eliz. 11, chap. 17 sec. 21, "Except as expressly provided in this Act, nothing contained in this Act, impairs, alters or affects the rights or liabilities of a maritime union . . ." Would "affects" not be sufficient? In 1 WORDS AND PHRASES JUDICIALLY DEFINED (London, 1943), the judgment of Swinfen Eady J. in Re Mackenzie, [1911] 1 Ch. 578, at 602-3, is cited. The provision in question (sec. 8 of the Married Women's Property (Scotland) Act, 1881) was "This

Act shall not affect any contracts made . . . between married persons before . . . marriage." "If that right under the contract were held to be restricted or limited by the Act of 1881, the marriage contract would in my judgment be 'affected' by the Act."

One can find many local examples. May I cite two? Sec. 23 (4) (d) of the Veterinary Surgeons Act, 1960, defines unprofessional conduct as including advertising "otherwise than in accordance with the regulations, or . . . in contravention of the regulations." Is there any difference between these two? Sec. 33 of the Buildings Societies Act 1920, as re-enacted by the Building Societies Act Amendment Act, 1961, sec. 29, speaks of an application to register "any alteration or addition to or rescission of the rules of a society." Surely an addition to the rules or a rescission of one or more of the rules is an alteration of the rules? (In passing, "rescission of the rules" appears to mean rescission of the whole of the rule; was this intended?).

16 Sec. 17 of the Quarantine Regulations under the Animal Contagious Diseases Act, R.S.C., 1927, c. 6, cited Driedger, op. cit. supra, n. 13, 292.

1 7 Statutes of Canada, 1937, c. 30, cited Driedger, id.

such manner as may be prescribed from time to time by regulation. The first item in Schedule A reads: "Feeding stuffs (excluding chop feeds) ground, crushed or in meal, cake, pellet, or biscuit form, not otherwise provided for, and to which in the opinion of the Minister, the particulars specified are appropriate." "What" he asks, "was the draftsman thinking when he said and to which, in the opinion of the Minister, the particulars specified are appropriate?"

I would not have it thought for a moment that I underestimate the intrinsic difficulty of the draftsman's job; and, indeed, as I have already indicated, sympathetic judges (and understanding draftsmen) have frequently emphasised this.18 But one cannot help feeling that constant efforts should be made to improve the standard of drafting, in the interests, not only of the legal profession and of the judges, but of the community as a whole. Just under a year ago Lord MacDer- mott, Lord Chief Justice of Northern Ireland, delivered a lecture before the University of Aberdeen entitled "Some Requirements of Justice."l9 He chose three subjects for discussion. The first of these was the problem of statutory interpretation. The basic cause of this problem he said, was: *O

"nothing else than the difficulty of communication-the difficulty of finding unequivocal language by which to convey the intentions of Parliament. Throughout the civilized worId the power of

18 ILBERT, op. cit. supra, note 1, 106: "It must be borne in mind that Lord Thring's condemnation of judicial criticism is not unqualified. He admits frankly that some judges, and those not the least eminent, including the late Sir James Fitzjames Stephen, who had enjoyed the advantages of having been a draftsman before he was a judge, both expressed a different and juster view of the draftsman's position and made greater allowance for the difficulties which he has to encounter and surmount." Stephen himself, in the Introduction to his DIGEST OF THE CRI~LIINAL LAW (London, 1877), which discussed the possibility of codification attributed the style of Acts of Parlia- ment to the fact that they were "formed upon the model of deeds, and both deeds and statutes were originally drawn up under the impression that it was necessary that the whole should form one sentence'' (p. xix) .

Some judicial defences of the draftsman have been collected in CRAIES, STATUTES LAW (6th ed., London, 1963) 26-27; it is interesting to find Den- ning L.J. (as he then was) among the defenders. "Whenever a statute comes up for consideration i t must be remembered that it is not within human powers to foresee the manifold sets of facts which may arise; and that, even if it were, it is not possible to provide for them in terms free from all ambiguity. The English language is not an instrument of mathematical precision. Our literature ~ l o u l d be much the poorer if it were. This is where the draftsmen of Acts of Parliament have often been unfairly criticised." Seaford Court Estates v. Asher, [1949] K.B., at 498.

19 (1964) JURID. REV. 103. 20 Id. at 110.

expression still lags behind the power of thought. Even the most accomplished draftsman-and today we have small cause to complain of the quality of our parliamentary draftsmen-cannot always find words in which to convey precisely what he has in mind, particularly when dealing with some abstruse or intricate subject."

To deal with this problem Lord MacDermott made four suggestions, three of which are directly relevant to the task of the draftsman. The first was that more use should be made of the preamble, as a broad declaration of purpose in the light of which the detailed provisions of the statute might be c ~ n s t r u e d . ~ ~ The second I will give in his own words : 22

"The next suggestion is that a t some stage in the parliamentary process, important measures should be scrutinised in draft by a team of clause-tasters, chosen for their competence and experience,

21 Lord MacDermott illustrated the manner in which this might work for good by reference to the decision in the series of cases to be found sub. nonl. Inland Revenue Cominissioners v. Bladnoch Distillery Co. Ltd., [I9481 1 All E.R. 616. In those cases the House of Lords (Lord MacDermott dissenting) held that shareholders in companies holding stocks of Scotch IVhisky, who had sold their shares at greatly inflated prices to persons whose acquisition of the shares was the preliminary to a carefully worked out scheme for taking advantage of the high market price then to be obtained for whisky while avoiding the payment of excess profits tax, but who had been innocent of any complicity in, or even awareness of, the scheme, were themselves liable to pay or contribute towards payment of the excess profits tax which had been evaded, under the retrospectively-operating provisions of section 24 of the Finance Act, 1943. "If the Finance Act of 1943 had declared in general terms the reason for the retrospective operation of section 24 to be Parliament's determination to make those who were parties to the schemes for evasion responsible for the payment of the duty lost, the courts would have had a guiding principle to lead them to more equitable results," ( O p . cit. supra note 19, at 111.) This is no doubt true; but then, had Parliament (or, to drop the fiction, those who were responsible for the preparation of the legislation) adverted to the question whether only the parties to the schemes in question were to be liable appropriate words could have been inserted in the operative provisions exempting from their operation those who, though they could be said to have obtained financial benefits from transactions "effected in connection with or in association with" the offending transactions, were not parties to the scheme but merely its innocent beneficiaries, and such a preamble xcrould have been pointless.

22 Op. cit. supra note 19, at 111. A similar suggestion was made years ago in the famous case of River Wear Commissioners v. Adamson, (1877) 2 App. Cas. 843; Lord O'Hagan (at 756) suggested the institution of "a department by which Bills, after they have passed committee, might be supervised and put into intelligible and working order, and then submitted for final revision to Parliament before they passed into laws."

who would be without any prior knowledge of the draftsman's instructions. The function of these gentlemen would be to detect ambiguities, and I think they might well save more eventually than they would cost. They would certainly help to offset a disability to which every draftsman is in some degree subject. When you know what you want to say, you may easily see it more clearly in what you write than others do. My clause-tasters would check that sort of error by their very lack of previous knowledge. I must admit that when I first made this suggestion several years ago it fell very flat. But in this most difficult art I still think that more heads may be better than one when it comes to making words fit their purpose; and it is of interest to note in this regard that in Sweden many bills have to be submitted for advice, before introduction, to the Council on Legislation, which consists of three members of the Supreme Court and one member of the Supreme Administrative Court."

This seems to me, in principle, a wholly admirable suggestion. My own experience of conveyancing and, to a very limited extent, of drafting suggests that one never sees the mistakes in one's own drafts, for the very reason that Lord MacDermott suggests. Whether the scrutiny should be by an independent team, or whether the scrutiny should be carried out by another draftsman, so that every bill is in fact the product of two hands, is another matter. I can see arguments in favour of either of these suggestions. The trouble is probably that either procedure would entail expense, and I have an uneasy feeling that Governments would begrudge the spending of money on the mere improvement of the standard of legislative drafting.23 To this, perhaps, Lord MacDermott's fourth suggestion (which recalls a

23 It is possible, too, that they would say that this is one of the functions of Parliament. Commenting on Lord O'Hagan's suggestion, noted in the preceding note, CRAIES (STATUTE LAW, London, 1963, 28) says: "It is most un- likely that the legislature will admit its own incompetence and delegate to any outside person one of its most important functions." Unfortunately, experience has shown that the local Legislature is either unable or unwilling to make corrections even of such elementary mistakes as faulty grammar in Bills before it, or misplaced punctuation producing potentially ambiguous or nonsensical readings. For obvious errors in grammar see section 9 (5) of the Housing Loan Guarantee Act Amendment Act, 1961, and section 6 (2) of the Local Government Act, 1960; for n~isplaced punctuation see section 256 (1) (a) of the latter Act (which, I am afraid, contains a good deal of rather careless punctuation). Mistakes of this kind are easily enough made by a man who is drafting legislation at speed; it is difficult to excuse the fact that they remain in the finished product after it has undergone the scrutiny of eighty Members.

comment made in 1928 by Scrutton L.J.%) is relevant. This is that every court called upon to determine any substantial question of statutory construction should have power in its discretion to order the costs of all necessary parties to be paid out of the public purse. "The public purse has a strange way of exciting public opinion and the public cost of statutory ambiguity would, I believe, through the medium of Treasury remonstrance and other less refined forms of reproof, eventually lead to greater certainty and a better exercise of legislative power."25

I would venture to suggest that at the very least there should be a constant willingness on the part of all concerned with the preparation and drafting of legislation to re-examine drafting methods and drafting style. At the conclusion of the article referred Driedger quotes two short sentences from Coode. "There is apparently a notion amongst amateurs, that legislative language must be intricate and barbarous," and "If it could be made to be generally recognized that the essentials of every law are simple, and that their direct expression is the perfection of law writing, the greatest defects of our statute law would cease." All too often one finds expressed in verbose, or tortuous language, not infrequently by way of circumlocution, what could be expressed simply and directly; and one wonders what it is that inhibits those concerned with the legislative process from saying what they mean. For example, why does section l lA(3 ) of the Elec- toral Districts Act, 1947 (inserted by section 6 of the Electoral Districts Act Amendment Act, 1963) say that each of the metropolitan pro- vinces "shall consist of at least four or not more than five . . . electoral districts"? What would have been wrong with "either four or five"?27 Why did section 2 (g) of the Judges' Salaries and Pensions Act Amend- ment Act, 1959, refer to the salary "of any judge who retired after the twenty-seventh day of February, one thousand nine hundred and fifty-nine, and before the 30th day of June, one thousand nine hundred and fifty-nine"? Only one judge retired betwecn those dates; why not mention him simply by name? Why does section 11A of the Traffic

24 "I regret that I cannot order the costs to be paid by the draftsmen of the Rent Restrictions Acts, and the members of the Legislature who passed them, and are responsible for the obscurity of the Acts." Roe v. Russell, [1928] 2 K.B. 117, at 130.

25 Op. cit. supra, note 19, a t 112. 26 Op. cit. supra, note 13, at 317. 27 "At least four or not more than five" suffers from the further defect that,

strictly construed, it gives a choice between one, two, three, four, or five and four, five, six . . . to infinity. "Or" should, of course, have been "and." But nobody noticed-see note 23, supra.

Act, 1919, inserted by section 3 of the Traffic Act Amendment Act (No. 3) 1959, speak, in subsection 3, of "an amount which exceeds by fifty per centum the total amount" and "an amount which exceeds by fifty per centum one-half of the total amount"? What would have been wrong with "an amount one-and-a-half times the total amount" and "an amount three-quarters of the total amount"?28 I have chosen examples from local legislation, but one could match them by a search of Commonwealth legislation or of British legislation itself.29 What is the remedy? One wonders whether, if the Labour Party is spared to bring into fruition some of its plans for Law Reform, Lord GardinerJs proposed commission to "modernize" English law (which is understood by some sources to involve re-writing the law in language that can be understood by ordinary people)30 we may see a gradual simplification of the language of legislation. I myself believe that it would be possible, if all concerned would be prepared to accept a considerable change in style, to draft legislation in a much simpler form without loss of p r e ~ i s i o n . ~ ~ But old habits die hard.

28 Simplicity, one suspects. Even the words "an amount" could have been omitted without loss of clarity, so that the operative provision read "shall pay . . . one-and-a-half times the total amount."

29 The words which, according to Lord Denning in Davy v. Leeds Corporation, [I9641 1 Weekly L.R. 1218 at 1222, "very experienced counsel" and "this expert tribunal itself" missed were defining words expressed rather too verbosely; "any reference to development of any land shall be construed as including a reference to the clearing of land." Not only would it have been simpler to say "development includes clearance", but casting the definition in this form, in which two other definitions in the subsection had been expressed, would have drawn attention rather more forcibly to the provision and might have secured it against being overlooked.

30 There has been a brief (and possibly not altogether accurate) notice of this in several places in the Australian Press. I have a copy of the Age for Saturday, 9 January 1965, which reports, under the heading "World News in Brief" that "a commission will be set up to rewrite English law in language that can be understood by ordinary people." Whether consolidation of the statutes, or codification of the common law, or both, are contemplated, is not clear from this; and the rather fuller reference in The Times, Friday, 8th January 1965, p. 6 columns 5-6 (which speaks of the "moderni- zation" of the law) does not make this any clearer.

31 Drafting style has moved away from the belief, referred to in note 18 above, that a whole enactment should be drafted in the form of one (unpunctuated) sentence, and the devices of breaking up sections and subsections into numbered phrases, or dividing phrases up in the printing of the statute so that each stands out (as in a number of sections in e.g., the Local Govern- ment Act, 1960, of which sections 45 (10) and 174 (3) (a) may be given as specific examples,) are now common and accepted. I wonder whether the next step in the direction of greater lucidity is not to accept the fact that many long and complex sections or subsections, which are still drafted so as to form one sentence, grammatically speaking, could be broken up into several separate sentences without loss of clarity, and perhaps with some

With this much said by way of general preamble, may I turn to comment on some specific pieces of legislation which I, at any rate, have found interesting and which I hope may be of interest to my audience. "Recent" is, I hope, a fairly elastic term; because the first Act to which I would like to draw attention is the Fatal Accidents Act, 1959. This was a much-needed piece of reform by way of moderni- zation, and while it was being drafted account was taken of reforms in various States of Australia and in New Zealand.32 My principal criticism would be that the process of reform was not taken quite far enough, and in particular that it was unfortunate that contemporary developments in the United Kingdom in that field of law were apparently not taken into account.33

The principal changes are these: First, although the persons for whose benefit an action may be brought remain unchanged as wife, husband, parent and child (section 6(1) ) section 3 ( 2 ) extends the relationship of parent and child to include illegitimate and adoptive relationships, though an action cannot be brought on behalf of an illegitimate child unless the deceased was either maintaining him, had agreed to maintain him, or had been ordered to maintain him, before death.34 In the light of the English legislation referred to, is not this

gain in brevity. I t is true that the result might look to the expert eye like a "good popular account of a Bill" (the criticism which, according to JEN-

NINGS, PARLIAMENT (2nd ed., 1961) 223, was levelled by the draftsman of the day at Mr. Balfour's draft clauses for the Education Bill of 1902). But despite Jennings' explanation that "A good popular account will not do; i t must be written by lawyers for lawyers," is there really anything wrong with a good popular account if it is lucid and not likely to be misunderstood by those who have to administer the legislation, or by the courts if it comes before them?

32 This appears from the marginal notes to various sections. I t was the subject of comment from the Hon. H. C. Strickland in the Legislative Council: "A notable feature of the Bill is that i t has been made up of sections adopted from various Acts of the British Commonwealth (sic) and the various States of Australia." He added (one wonders whether with sarcastic intent) "No doubt, the Government had some ideas itself in connection with the provisions of the measure; and the Bill does not merely consist of portions snatched from other legislation." (1959) 153 WESTERN AUSTRALIAN PARLIA- MENTARY DEBATES 1426. (The annual volumes of Parliamentary Debates for Western Australia will hereafter be referred to as HANSARD) .

33 The Fatal Accidents Act, 1959 (7 & 8, Eliz. 2, c. 65) which was introduced as a private member's Bill, was assented to seven days before the Bill for this Act was introduced into the Legislative Assembly.

36. Sec. 6 (3) (b) makes i t one condition of the bringing of an action for the benefit of an illegitimate child that "a maintenance or pre-maternity order was made against" the deceased. The phrase "pre-maternity order" (as, indeed, the whole of paragraph (b)) was obviously lifted from section 5 of the Wrongs Act Amendment Act, 1939 (S.A.) ; but it is not a term of art in this jurisdiction. Presumably it will be construed as referring to an order made

too conservative? The general policy of the legislation is surely that anyone who has been deprived of support by the wrongful act of another should be entitled to recover damages against the wrongdoer. The relationships of husband and wife and parent and child (as extended to include grandparents and step-relationships) no doubt exist in most cases in which one person is the support of another; but uncles and aunts have been known to support nephews and nieces, older brothers or sisters, younger ones; and there are no doubt cases (even if few in number) in which one person is the support of another although more distantly related or connected only by ties of friendship. Why should not the person deprived of support in all these cases enjoy the benefit of the Act, if he can prove the dependence and consequently the loss? The English extended the relationships which would found an action to include those of brother and sister uncle (or aunt) and nephew (or niece), and first cousins, and provides that any relationship by affinity is to be treated as a relationship by consanguinity. This goes a very long way in the right direction.

Second, damages awarded may include sums of money in respect of medical expenses incurred in treating the deceased before his death, and any funeral expenses, if these expenses were incurred by the parties,36 for whose benefit the action is brought (section 5 ( 1) ) . In my view it is unfortunate that Mr. H. N. Guthrie's proposal that provision be made for the award of solatiurn, along the lines of the South Australian legi~lation,3~ was not accepted. So long as damages awarded at common law in an action involving personal injury include damages for pain and suffering and loss of expectation of life, it appears in- consistent to deny damages on an analogous basis to the child who has lost his parent, or the spouse who has lost the other.

Third, the rigour of the original legislation as interpreted by the Courts, has been mitigated by the provision in section 5 (2 ) that not all payments made in consequence of the death are to be taken into account in assessing damages. But in my submission the legislation has not gone far enough. The moneys not to be taken into account are (1) insurance moneys paid or payable on the death of the deceased;

under sec. 74 of the Child Welfare Act, 1947, before the birth of the child, authorized by subsec. 2; but will an order for confinement expenses only be regarded as sufficient to fulfil the condition?

35 T h e Fatal Accidents Act, 1959, sec. 1 (1) and (2) . 36 Presumably there will be no difficulty, if the point is ever raised in con-

struing this to include one of the parties, if an action is brought for the benefit of wife and children but the medical and funeral expenses were incurred by the wife alone.

37 Secs. 23a and 23b, the Wrongs Act, 1936-1959 (S.A.) .

( 2 ) moneys paid or payable under any "superannuation, provident or like fund or scheme, or by way of benefit from a friendly society, benefit society or trade union"; ( 3 ) pensions paid under any Common- wealth or Western Australian legislation. I cannot see why pensions paid under the pension (or other) legislation of other States, or even of other countries, should not have been included under ( 3 ) ; and it appears to me that non-contributory pensions paid by employers to widows or children may be excluded from ( 2 ) , unless it is possible in the circumstances of any particular case to bring such a pension within the words "any superannuation, provident or like fund or scheme."38 Moreover, since certain funds available to the dependents as a result of the deceased's savings through life, by medium of his contributions to insurance policies and provident funds, and certain subventions on the part of his employer, by way of his contributions to superannuation funds, are exempt from being taken into account, why not all savings of the deceased,39 and all payments to the dependents by the employer? I t is true that a provision too widely drawn, such as that in the New Zealand leg i~ la t ion ,~~ may produce anomalous re- s u l t ~ ; ~ ~ but is it beyond the wit of man to devise a suitable formula? So far as payments made gratuitously, whether by the employer or

38 It is submitted that the essence of both a superannuation scheme and a provident fund is that the person who enjoys the benefit has himself provided part or all of it by his own contributions; but I have been unable to find any case in which the meaning of either expression has been in issue.

39 The policy behind the English legislation which first provided that insurance moneys were not to be taken into account, however, was not that the moneys were savings of the deceased, but that legislation to this effect would assist insurance companies to sell policies. Mr. MacDermot, the Hon. Member for Lewisham North, told the House of Commons on the third reading of the Bill which became the Fatal Accidents Act, 1959, that: "It was pointed out by the Hon. and Learned Member for Warwick and Leamington, in an extraordinarily interesting speech in Committee, that the historical origin for this exemption of certain benefits was action taken by insurance companies which were insuring passengers against risks of railway accidents. In a series of Private Bills they managed to get the benefits of their insurance policies excluded from the provisions of the Fatal Accidents Acts," and he added "That certainly has come home to roost now because, quite rightly, we have seen fit to extend this class of benefits to many other kinds of benefits." 605 PARLIAMENTARY DEBATES (Commons) (1958-59) , 758.

40 Deaths by Accidents Compensation Act, 1952, sec. 7 (2) : "In awarding damages in any such action the Court shall not take into account any gain, whether to the estate of the deceased person or to any dependant, that is consequent on the death of the deceased person." This sweeping provision was inserted into the New Zealand legislation by sec. 7 of the Law Reform Act, 1936, which was enacted in the first year of office of a Labour Govern- men t.

41 See Alley v. Buckland, [I9411 N.Z.L.R. 575; cf., Gillett v. Gallagher (1962) 36 AUST. L.,I.R. 72.

others, are concerned, the new English legislation covers the position admirably, by excluding from consideration any "benefit . . . or gratuity which has been or will or may be paid as a result of the death,"42 a provision which avoids any argument whether there was any reasonable expectation of the payment a t the time of death, and so avoids the possibility of drawing fine and invidious distinction^.^^

Section 10 (1) of the Act expressly provides that a cause of action under the Act survives the death of the wrongdoer; but this does not appear to have been necessary, in the light of the general provision, in section 4 ( 1) of the Law Reform (Miscellaneous Provisions) Act, 1941, for the survival of all causes of action subsisting against a deceased person at the date of his death, except those for defamation, seduction, enticement, or damages for adultery, and to the specific reference in section 4(5) to the survival of causes of action under Lord Campbell's Act. Subsection 2 of the section goes on to fix the period of limitation in such cases as six months after the grant of probate or administration in the deceased wrongdoer's estate, if this six months ends later than the original period of twelve months from the death of the victim. Again, it is doubtful whether this was necessary, in the light of section 4(3) ( b ) of the 1941 Act. I t is clear that the section was borrowed from the New South Wales legislation (the Compensation to Relatives Act, 1897), section 6C of which was inserted by section 2(2) of the Compensation to Relatives Amendment Act, 1928, sixteen years before the enactment of a general survival statute in that ju r i~d ic t ion .~~ One wonders whether its insertion in the Western Australian legislation was carefully considered or inadvertent; though admittedly it effects some slight amendment to the limitation provision^.^^

May I now turn to three pieces of legislation affecting in various ways the distribution of estates upon death? The first is the Simulta- neous Deaths Act, 1960. For some reason the legislature of this State (which, of course, never adopted the English property law reforms of 1925) did not consider whether there were not a number of ancil-

42 Fatal Accidents Act, 1959, sec. 2 (1). 43 See the discussion in FLEMING, LAW OF TORTS, (2nd ed., Sydney, 1961)

636-637, and the cases cited in notes 34-37. 44 The Law Reform (Miscellaneous Provisions) Act, 1944, which came three

years later than the corresponding Western Australian provision. 45 Sec. 4 (3) (b) of the Law Reform (Miscellaneous Provisions) Act, 1941,

empowered a judge to extend the time for instituting proceedings, although the application might be made after the expiry of the limitation period; sec. 7 (2) (d) of the Fatal Accidents Act, 1959, does not allow any extension of time in an action to which sec. 10 applies.

lary reforms which might well be copies, even if the main legislation were thought inapt to local conditions; and so section 184 of the Law of Property Act, 1925, which established a presumption that where two persons died in circumstances such that it was uncertain whether one survived the other, and if so, which, the younger had survived the elder, was never adopted here. I t was, however, adopted in New Zealand in 1927.46 The application of the presumption did not do away with all possible anomalous or inconvenient results arising from the deaths of two persons in such circumstances, the possibility that it could lead to double successions and hence to double payment of death duties was eventually covered in England by a provision in a Finance Act, and the possibility, where husband and wife died together in such circumstances, that property coming from the husband's family might end up in the possession of the wife's family, or vice versa, was dealt with (but only where one of the pair died intestate) by the Intestates' Estates Act, 1952.47 New Zealand (which has for some years been very active in the field of law reform, and has a permanent Law Reform section in the Justice D e ~ a r t m e n t ) ~ ~ enacted, in 1958, a comprehensive piece of legislation to replace the not altogether satisfactory operation of the presumption above referred to.49 This legislation has been taken over almost verbatim.50

Section 3 provides that where two or more persons die at the same or in circumstances that give rise to reasonable doubt which of them survived the other or others, the property of each is to devolve, and failing a contrary direction therein his will is to take effect, as if he had survived the other or others and died immediately afterwards.

There are, no doubt, circumstances in which the application of

46 Property Law Amendment Act, 1927, sec. 6. 47 Sec. 1 (4) . 48 For an account of law reform in New Zealand, and of the work of the Law

Revision Committee, see Cameron, Law Reform in New Zealand, (1956) 32 N.Z.L.J. 72, 88, 106.

49 The Simultaneous Deaths Act, 1958. 50 There have been some small changes in drafting style-may I add, for the

better? "Where" has replaced "In any case where" (which is tautologous) ; and the words "Provided that" (on which Driedger has some critical re- marks: THE COMPOSITION OF LEGISLATION (Ottawa, 1957) c. xi, pp. 110 e t . seq.) have been replaced by "but." Unfortunately this deliberate excision of the proviso from local drafting style has been but a flash in the pan. I t illustrates, however, the point made earlier-that improvements can often be made by the person who works over another's draft, especially if he has an eye on the best modern models.

51 The presumption enacted in England by sec. 184 of the Law of Property Act, 1925, did not apply in this situation; see In re Pringle [I9461 Ch. 124.

the new rule will make no change. Where husband and wife die in the circumstances envisaged, neither having made a will (and each being entitled to succeed the other on i n t e ~ t a c y ) , ~ ~ or the husband having made a will in favour of the wife, who dies intestate,53 or having made mutual wills by which each bequeathes property to the other,54 the common law rule would have produced the result that the property of each would be distributed just as if he (or she) had survived the other. But if the will or wills contain a gift over in the event of the spouse predeceasing the testator, that gift, which failed under the common law rule,55 will take effect under the new legislation, unless of course a contrary intention appears from the will. I t is surmised that the Courts will not be astute to spell out of the will an intention to exclude the operation of the Act, but will require an explicit statement to this effect.56

Paragraphs (b) to (g) of section 4 contain supplementary provisions. Any donatio mortis causa made by one person dying in the circumstances envisaged to another so dying is avoided;57 if one such person carries insurances which would have been paid to another (or others) had they survived, the insurance moneys are to be distributed on the footing that he died last.58 Where such persons are joint tenants (otherwise than as trustees) the property will devolve as if they had been tenants in common with equal shares.59 If propertya0 had been so devised or settled that its destination would ultimately have been the survivor of two or more persons so dying,61 it is to devolve as if

52 As in In the Goods of Beynon, [I9011 P. 141. 53 This appears to have been the position in Re Bate, Chillingworth v. Bate,

[I9471 2 All E.R. 418. 54 AS in Re Rowland dec'd, [I9631 Ch. 1. 55 Wing v. Angrave, (1860) 8 H.L.C. 183, 11 E.R. 397. 56 Or an explicit provision for the destination of the property in the event of

testator and beneficiary perishing in the circumstances contemplated; this would in any case be the more sensible provision to insert in the will, for the mere exclusion of the said Act, would, it is thought, revive the common law for that will.

57 Presumably such a gift would have been effective in the previous state of the law. The point whether a donatio mortis causa is invalidated by the death of the donee before that of the donor seems never to have arisen; but as under the common law it would be impossible to establish that fact in the circumstances, an affirmative answer on the point would make no difference.

5s It is not thought that this alters the previous law in Western Australia. 59 Under the previous law it would appear that the property would escheat;

but the point seems never to have arisen. 60 Other than the proceeds of insurance policies, which are specially provided

for in paragraph (c) . 61 For example, where i t would have descended to them as joint tenants.

they had taken it as tenants in common in equal shares; and if the survivor would have been able to exercise a power of appointment in respect of such property the power is to be exercisable as if each of the persons dying together had had a power of appointment in respect of an equal share of the property, and that share will devolve in default of appointment as it would have devolved had he been the survivor. Paragraph (g) deals with the special case in which the persons dying together include a testator and one or more of his issue, however remote, to whom he has devised or bequeathed property; the devise or bequest is to lapsee2 unless any of the donee's issue is living at the date of his death, when it takes effect according to section 33 of the Wills Act, 1837. That section has now, of course, been restricted in its operation, by section 21 ( 7 ) of the Law Reform (Property, Per- petuities and Succession) Act, 1962, to specific legacies or specific appointments of chattels. Section 21 makes other provision for what the marginal note describes as a "statutory substitutional gift"; and a consequential amendment to the Simultaneous Deaths Act (Act No. 85 of 1962) has inserted a new paragraph (fa) .63 This provides for the situation in which property is devised bequeathed or appointed to the survivor of two or more of a testator's children or other issue (within the meaning of section 21 referred to above) and all those children or issue, or the last survivors of them, die in the circumstances already d e s ~ r i b e d . ~ Section 21 then takes effect as if the devise, bequest or appointment were in equal shares to those of them who so die and leave a child or children living at the date of death of the testator, and so the child or children take their deceased parent's share. This completes the tale of specific provisions; for all other purposes

62 I have described this in the text as a "special case"; but, of course, the bequest would lapse in any case, as a result of paragraph (a), and it does not seem necessary to have repeated this as a preliminary to the recital of the exception; it was not thought necessary in the new paragraph (fa) referred to below.

63 This labelling has no doubt been adopted in order that in any future reprint the paragraph will appear in its logical place; but it is not attractive, and one would have thought it better either to label the new paragraph (g) (the case for this is the stronger in that it replaces for most purposes the paragraph (g) as it now stands) and re-label the next two paragraphs (h) and (i) , or to re-draft paragraph (g) to take account of both sec. 21 of the Law Reform (Property, Perpetuities and Succession) Act, 1962, and sec. 33 of the Wills Act, 1837.

64 Unlike paragraph (g) it does not refer specifically to the death of the testator in the same circumstances; so that if a testator, having devised property to the survivor of his three sons, perishes with them in the same catastrophe, and it cannot be determined whether any of his sons survived him, the grandchildren living at the date of death of the testator take nothing under the devise.

affecting the title to property or the appointment of trustees, the current English presumption is applied and the younger of the persons is deemed to have survived the elder.65

The second piece of legislation under this heading at which I would like to look for a moment or two is the Law Reform (Property, Perpetuities and Succession) Act, 1962. This legislation has, of course, been pretty thoroughly canvassed by one of its principal begetters, Mr. (now Professor) D. E. Allan, in the pages of the Law Review for 1963.66 In the course of his canvass Professor Allan drew attention to the fact that under the "wait and see" rule introduced by section 7 one might be able to argue that if, when the interest finally vests, it is possible to find any person at all who was alive at the creation of the interest and whose death had occurred within 21 years of its vesting, the interest must be valid. He pointed out that Morris and Leach made light of this difficulty, because any court faced with the problem would determine the measuring lives substantially as they were determined before the Act became law.67 He went on to say that the drafters of the legislation had thought at the time that they had "neatly side-stepped the problem" by subsection 3, which provides that nothing in section 7 makes any person a life in being for the purpose of ascertaining the perpetuity period if he would not have been reckoned a life in being for that purpose at common law.08 Further consideration however suggested that this might not be so, and Professor Allan suggested that it might be desirable to amend section 7 (3) in such a way as to specify what lives may be reckoned as lives in being for the purposes of the "wait and see" rule.

That suggestion has not been taken up in Western Australia; but it is of interest to note that Professor Allan's misgivings have been heeded both in England and in New Zealand. Section 3 (5) of the English legislation (the Perpetuities and Accumulations Act, 1964) and section 8 (5) of the New Zealand legislation (the Perpetuities Act 1964) each provides a catalogue (in almost identical terms) of

65 What happens in the (no doubt relatively rare) situation in which the comrnorientes are twins? If it could be shown which one was born second, would he be regarded as the survivor, the law in this situation taking into account fractions of a day?

66 T h e Rule against Perpetuities Re-Stated, (1963) 6 U. WEST. AUST. L. REV. 27; this was first presented as a paper at the Third Summer School in February, 1963.

67 MORRIS and LEACH, THE RULE AGAINST PERPETUITIES (2nd ed., London, 1962) cited by Allan, op. cit. at 43.

68 Id., at 44.

the lives which may be considered as lives in being.6Q The English provision (and so, by implication, the New Zealand one) has been criticised by Morris and Wade as "a major rni~take"~O-and the Western Australian provision is characterized as "fundamentally sound";71 moreover, they take sharp issue with Professor Allan's argument referred to above, describing it as a "palinode, eloquent with the agony of remorse," and regarding his desertion of his own draft provision as " ~ d d . " ~ "

I had the advantage of considerable discussion with Professor

G!, The New Zealand catalogue is as follows (sec. 8 (5)) :

" (a) The person by whom the disposition was made: (b) A person to whom or whose favour the disposition was made, that is

to say- (i) In the case of a disposition to a class of persons, any member or

potential member of that class; (ii) In the case of an individual disposition to a person taking only

on certain conditions being satisfied, any person as to whom only one or some of the conditions are satisfied and the remainder may in time be satisfied; (iii) In the case of a disposition conferring a special power of appoint-

ment exercisable in favour of members of a class, any member or potential member of the class; (iv) In the case of a disposition conferring a special power of appoint-

ment exercisable in favour of one person only, that person or, where the object of the power is ascertainable only on certain conditions being satisfied, any person as to whom only one or some of the conditions are satisfied and the remainder may in time be satisfied; (v) In the case of any power, option, or other right, the person on

whom the right is conferred;

(c) A person having a child or grandchild who falls within subparagraphs (i) to (iv) of paragraph (b) of this subsection, or any of whose children or grandchildren, if subsequently born, would by virtue of his or her descent fall within those subparagraphs.

(d) Any person on the failure or determination of whose prior interest the disposition is limited to take effect."

The English catalogue is identical. Subsec. 4 (a) provides that if any person falling within the calalogue is to be a life in being he must he in being and ascertainable at the beginning of the perpetuity period, but that the lives of any description of persons falling within paragraphs (b) or (c) (above) are to be disregarded if the number of persons of that description is such as to render it impracticable to ascertain the date of death of the survivor. One cannot help commenting that this last provision appears to constitute a partial abandonment of the "wait and see" principle-i.e., you may not wait unless it is a6 initio likely to be practicable to see.

Morris and Wade, op. cit. infra note 70, a t 502-7, provide a useful commentary on the effect of these provisions.

70 Perpetuities Reform at Last, (1964) 80 L.Q. REV. 486, at 533. 71 Id., at 499. 72 Ibid.

Allan on this topic while he was here; and I am completely in agreement with his point of view. At common law the selection of lives in being was governed by one all-important requirement: that it should be possible to say with certainty that (by necessary implication from the terms of the gift and the surrounding circumstances) the gift must vest within twenty-one years from the expiry of that life in being. Therefore, as Morris and Wade themselves say "the law allows any lives to be used, but no lives can be of the slightest use unless they somehow restrict (scil. at the date from which the will or settlement speaks) the period of time within which the gift is to be capable of vesting . . . ."73 But the "wait and see" rule postpones the ascertainment of the question whether the gift will vest within the perpetuity period until it does vest (or until it is certain when it will vest) and then poses the question: "Has this gift vested (or will it vest) within twenty-one years from the end of some life certainty in being at the date from which the will or settlement speaks?" If, as Morris and Wade say, the law allows any lives to be used, then it must surely follow that any lives at all will do if it can be shown to bring the vesting within the period. The only reason why, as Morris and Leach put it, the lives in being if not specified in the instrument, must be "necessarily involved in the limitations contained therein"74 is that only so can it be determined in advance whether by necessary implication, and therefore certainty, the gift will vest within the period.

Morris and Wade do concede a certain limited operation to the "wait and see" rule, in validating gifts which would have been invalid at Common Law. They put the case of a gift by will " 'to A's first grandchild to marry' where A survives T but has as yet no married g rand~h i ld . "~~ The "wait and see" rule will save the gift, they say, if a grandchild in fact married within 21 years of A's death, or that of a child of A who was both alive at T's death and the parent of that grandchild; for, they say "the lives of A and of that child of A both necessarily restrict the period of time within which the relevant grandchild can be born and so eventually marry." This is no doubt true; but neither of these lives so restricts that period as to make it certain ab initio that the gift would vest within the perpetuity period. The only justification for describing them as "lives in being," appears to be that the calculation of necessary implications, and so of certain-

73 Id., at 496. 74 Id., at 497. 75 Id., at 498.

ties of vesting, can begin only with them.76 But in that case what of A's wife, or the wife of the child of A who is the parent of the grandchild? Would these not equally be lives in being for the purposes of the "wait and see" rule? Would they have been "lives in being" at Common Law?77 If not, why not?

It is possible that agreement can never be reached on this topic. Morris and Wade may well have put the matter most aptly when they say that "whether any detailed provision is required (for the ascertainment of lives in being) is a subject of controversy among ~onnoisseurs.''~~ But this suggests that not to have the detailed provision is to invite litigation at some future date; and, though the risk may be small, prudence would seem to dictate that early consideration be given to perfecting the scheme of the local reforms by amending section 7 ( 3 ) .79

Two other matters in the Act seem to me to call for some comment. The first is the provision in section 20 that a will expressed to be in contemplation of a particular marriage is not revoked by the solemnization of the contemplated marriages0 but that it is invalid if the testator dies before the contemplated marriage is ~olemnized,~~

76 "Royal lives" if chosen, make the vesting within the perpetuity period certain because the period of twenty-one years after the death of the last survivor is specifically laid down in the instrument; and the only possible flaw in the gift may be the impossibility of ascertaining with certainty all members of the (admittedly large) class of lives in being. If, however, the time of inquiry is shifted to the vesting of the gift, uncertainty surely disappears?

77 Or in the eyes of Morris and Wade? 78 Id., at 495. '79 It is fair to say that, though Morris and Wade disagree with the English

(and therefore by necessary implication with the New Zealand) provisions, they admit that "an attempt is made to minimise the uncertainty which the "wait and see" principle undoubtedly introduces" and add "It may also be said that, had the judges been left to grope their way through the difficulties which have been experienced in drafting section 3 (4) and (5), [the provisions defining lives in being] the result might not have been better." (op. cit., at 507) .

Reference should also be made to Mr. Wheatley's dissent from the misgivings expressed by Allan when he first delivered his paper-see his comment at (1963) 6 U. WEST. AUST. L. REV. 75, 77 ff.

80 Subsec. (1). This adopts the provision of sec. 177 of the (United Kingdom) Law of Property Act, 1925.

81 Subsec. (2) ; this was the result of an amendment proposed by Mr. H. N. Guthrie while the Bill was in Committee in the Assembly. His justification of this was that a man who had made a will leaving all his property to his fiancbe, in contemplation of the marriage, might then be jilted by her, and die before he could alter the will; the property would then benefit the faithless fiancee rather than his own family. This is certainly a situation which should be guarded against: but the cure appears to have produced

unless the will itself contains an express provision to the contrary. I t would be of interest to know whether the existence of this second provision has affected the practice with regard to the making of wills for young men (and young women) who are contemplating marriage. Is it now common to ask the intending testator, before the will is drawn, whether he (or she) wishes the dispositions in the will in favour of the other party to remain effective notwithstanding the testator's death before marriage?82

The second is the major reform introduced by section 23. I t is now possible to obtain relief in respect of money paid by mistake, even though the mistake be one of law, if the circumstances otherwise are such that relief would have been granted had the mistake been wholly one of fact. But such relief is not to be given if the payment in question was made at a time when the law allowed it, or was commonly understood to require or allow it, if the law is subsequently changed, or shown not to be as it was commonly understood to be at the time of payments3 Further, relief is to be denied if the recipient received the payment in good faith, and has so altered his position in reliance on the validity of the payments4 that, having regard to the implications in respect of his position and that of persons claiming

an equally undesirable result, namely, that if the man died (say, in an accident) before the marriage his family (and not ilccessarily his immediate family) might benefit at the expense of a faithful fianche, whom he would have wished to receive the property irrespective of marriage. One wonders which of these situations is the more likely to occur in practice. In any case, could not the apparent injustice to the immediate members of the family, in the first situation, be remedied in an appropriate case by use of the Testator's Family Maintenance Act, 1939? The comment of the Law Reform Committee was adverse to the proposed amendment; in addition to the above matters it pointed out that there rnight he dispositive provisions in the will other than those to the fiancke, and that i t would be unfortunate if these should fail, and suggested that it would be better to leave the testator himself to include in his will provisions for the eventualities of his death before marriage or breach of the engagement. Rut i t appears to have had no influence upon the Legislature.

82 Or (a question one would think even less likely to be well received by a lover) what provision should be made if the girl should prove faithless?

83 This follows a provision made two years earlier in New Zealand; see sec. 94A of the Judicature Act, 1908, inserted into the principal Act by the Judicature Amendment Act, 1958. The genesis and effect of this reform are discussed by Cameron in Payments made under Mistake, (1959) 35 N.Z.L.J. 4.

84 An example of such an alteration of position, discussed by Cameron, id . a t 6, is the spending of the money. He cites the judgment of Lord Simonds in Ministry of Health v. Simpson, [I9501 2 All E.R. 1137, at 1147; "The broad fact remains that the Court of Chancery in order to mitigale the rigour of the Common Law or to supply its deficiencies, established the rule of equity which I hare described, and this rule did not excuse the wrongly paid legatee from repayment because he had spent what he had been

under him, the court thinks it inequitable to grant relief. I t is not clear why the court is precluded from taking into consideration the position of the person who paid the money by mistake, and one would think that it would be difficult to achieve an equitable result if the position of one side only is to be taken into account. The intention of the Law Reform Committee was that the court might be entitled to exercise what it called a "greater hardship discretion" as between two innocent partie~;~"hat intention has been f r u ~ t r a t e d . ~ ~

The third piece of legislation under this heading which I want to consider is the Wills (Formal Validity) Act, 1964. This belongs to the select company (in any jurisdiction) of statutes dealing with a problem in that relatively esoteric discipline, Conflict of Laws or Private International Law. The problem in question is that of the choice of the law governing the formalities of execution of a will executed elsewhere than in Western Australia. The key sections are 4 and 5; the will of a testator dying after the commencement of the . - Act is to be regarded as properly executed, for purposes of Western Australian law, if its execution complies with the formalities required by:

(a ) the internal law in force at the place where it was executed; or (b) the internal law in force at the place of the testator's domicil

either at the time of execution of the will, or at the time of death;

wrongly paid," and suggests that the new provision clearly negatives the last clause of that sentence. But is this quite so clear? In Simpson's case the money had been spent on new hospital buildings, and this might well be such an alteration of position that i t would be inequitable to order repayment. But what if i t had been spent on readily resaleable consumer goods? Would it be so inequitable to make an order whose effect would be that the unexpected windfall of luxury had to be disposed of?

85 Report of the Law Reform Sub-Committee on the Law of Trusts, (1962) 57. 88 This frustration results from another amendment introduced during the

Committee stage of the Bill by Mr. H. N. Guthrie, who had first consulted with senior counsel. In the course of his explanation of the amendment Mr. Guthrie said that "when we referred to a similar section in the trustee legislation we found similar words there," (1962) 163 Hansard, 2791. The reference is no doubt to sec. 65 (8) of the Trustee Act 1962, which provides that relief is to be denied "if the person from whom relief is sought received the assets or interest in good faith and has so altered his position in reliance on his having an indefeasible interest in the assets or interest that, in the opinion of the Court, having rcgard to all possible implications i n respect of the trustee and other persons, it is inequitable to grant relief . . ." Surely the italic words, far from excluding consideration of the position of the claimant, are intended to allow it to be taken into consideration? The comment of the Law Reform Committee was that the amendment "would nullify the whole purpose of the subclause"; but again, i t had no influence on the Legislature.

(c) the internal law in force at the place of the testator's habitual r e s i d e n ~ e , ~ ~ at either of the above times; or

( d ) the internal law of the country of which the testator was a national at either of those times; or

(e) if the will is a will of immovables, and so far as it disposes of immovables, the internal law in force at the place where the property was situated; or

( f ) if the will was executed on board a vessel or aircraft of any desc r ip t i~n ,~~ the internal law of the place with which, having

87 This is an obviously necessary provision, to take care of the situations in which, after a testator's death, i t turns out that the place of his habitual residence has not in fact been the place where he was domiciled; cf., the well-known cases of Winans v. Attorney-General, [I9041 A.C. 287, and Ram- say v. Liverpool Royal Infirmary, [I9301 A.C. 558. - .

88 Why add "of any description"? Are not the words "vessel or aircraft" sufficiently general? This perhaps illustrates the universal tendency in statutory drafting to "gild the lily," either by making the general more general or the precise more precise. An example of the former is to be found in the definition of "in or adjoining the district of a municipality" in sec. 6 of the Local Government Act 1960, where these words are used in relation to "a street or other public place, or to land, or to a bridge, jetty, river, creek, watercourse, foreshore, sea shore, or other place or thing, whether the other place or thing is of the same kind as, or a different kind from, those here specified." Would i t not have been sufficient to have said "any place or thing"? In fact, was it really necessary to restrict the application of the phrase defined? An example of the latter is the persistent use of that most exasperating of expressions in thc armoury of the legislator, "bona fide." It is not enough, for example, to exempt a dog "kept an.1 used as a guidedog" from registration fees (sec. 30 of the Dog Act 1903), (incidentally, surely "used as a guide dog" would be sufficient?) ; the Icg~s- lator must say "bona fide kept and used as a guide dog." T o this the Dog Act Amendment Act 1960, sec. 8, adds the words "or being bona fide kept and being trained" as a guide dog, which suggests that the keeping must be bona fide (whatever that may mean) but that the training need not. Again, in order to secure pern~ission to continue work as an optometrist (sec. 34C of the Optometrists Act 1940, added by the Optometrists Amend- ment Act 1960, sec. 10) a person must show that he has been for at least eighteen months "continuously, solely, and bona fide engaged in dispensing . . . prescriptions." What on earth does bona fide mean in this context? It is submitted that in most of the instances in which it is used i t could well be done without, since it adds nothing to the meaning of the expression qualified: and where it has some meaning, as for example, i t was said by O'Connor J. to have, in Davies and Jones v. Western Australia, (1905) 2 Commonwealth L.R. 29, 49-50: "Bona fide resident is an expression frequently used in the Legislation of all the Australian States. I t may be said to have acquired a settled meaning as conveying the idea of 'habitual physical presence' in a locality, or in other words, 'permanent residence'." I t would be better to give i t that meaning directly. Thus, instead of the formula "a borza fide resident of and domiciled in IYestern Australia" it1 secs. 3 and 5 of the Administration Act Amendment Act 1961, the Legislature should

regard to its registration, if any, and other relevant circumstances the vessel or aircraft may be taken to have been most closely connected.

In addition, a will revoking a will which would be treated under the Act as properly executed (or a provision in such a will) will be regarded as validly executed if it is executed in accordance with the formal requirements of any law which, under the foregoing provisions, would validate the execution of the original will; and a will exercising a power of appointment, if otherwise validly executed, is not invalidated by reason only of the fact that it was not executed in accordance with the formal requirements of the instrument creating the power.s9

"Formalities" includes any requirement of the law governing the will that special formalities be observed by testators answering a particular description, or that witnesses possess certain special qualifi- cations; this rule of classification is to apply notwithstanding that the law in question classifies the rule imposing such requirement under some other heading.90 "Internal law" means that law which a country would apply to purely domestic situation, i.e., those in which no question as to the law in force in any other country or place arises; thus any question of "renvoi" is expressly excluded. Where there are more systems of "internal law" than one governing the formal validity of wills in any country,g1 the choice between those systems is to be made on the basis of the local choice-of-law rule, if any; failing this, the question is to be governed by the system with which the testator was most closely connected at the relevant time. "Relevant time" means the time of the testator's death, if the matter is to be determined by reference to circumstances prevailing at his death,92 otherwise the

have said "habitually resident in and domiciled in Western Australia" if that was what it meant. But perhaps it meant no more than the Hon. A. R. G. Hawke thought (1961) 160 Hansard 2266; that it referred to persons "who live genuinely or have been living genuinely in Western Australia." In that case, what is the difference between "living" and "living genuinely" in a place?

09 Sec. 5 (2) . 90 For example, that law might well classify the first of such questions under

the heading of "capacity," a question which is ordinarily governed by the law of the domicil.

91 For example, where the personal or religious law of a testator governs the formalities of his will.

92 I t is not at all clear what criterion is to be used to determine whether the "matter" (presumably, the closeness of the testator's connexion with a particular system of law) is to be determined by reference to circumstances prevailing at his death; is it to be governed by the system of law itself? This would appear to be circular.

time of execution of the will. In general, the question whether the execution of a will conformed to a particular law is to be determined by reference to the provisions of that law at the date of execution; but account may be taken of a subsequent change in the law if this would enable persons concerned to treat the will as properly executed.

The Act conforms with draft uniform legislation (which is said to have evolved from the meeting of Attorneys-General in Melbourne in April 1963 as the result of submissions made by Sir Albert Wolff, the Chief J u s t i ~ e ) ~ ~ which itself stems from the recommendations of the fourth report of the Wynn-Parry Committee (the Lord Chancel- lor's Committee on Private International Law), via the Hague Con- vention of 1961 on Conflicts of Law Relating to the Form of Testamentary Dispositions. The whole scheme is clearly motivated by the consideration " u t res magis valeat q u a m pereat." The effect of the new legislation (in its commonest application) may be summed up by saying that it will no longer be necessary for a migrant to consider (at the point at which he might be said to have acquired a domicil of choice in Western Australia) whether the will he made in his homeland remains validly executed according to the law of his new domicil, and whether he should execute a new will; and those concerned with proving a will of a migrant dying in Western Australia will no longer be obliged to make anxious inquiries to determine whether he has acquired a local domicil, or whether he has retained the domicil whose law will save the validity of the execution of his will. On the other hand, practitioners may from time to time be faced with wills executed in what may appear an unorthodox fashion, and will require to seek expert advice (and, it may be, evidence) concerning the relevant law in any of the places mentioned in section 4.04

Finally, attention should be drawn to the innocent-looking little provision of section 6 which introduces into Western Australian law, for the first time, one of the ancillary provisions to Lord Kingsdown's Act (the Wills Act, 1861) to the effect that the construction of a will shall not be altered by reason of any change in the testator's domicil after the execution of the Curiously enough, this provision has never been the subject of any reported case, but it makes it clear that

93 (1964) Hansard (No. 5) 634-635, per the Hon. A. F. Griffith. 94 For example, Austrian, Swiss and Scandinavian laws, (as well as those of

some American States) allow oral or nuncupative wills, which may present a problem; i t may be that even more unusual formalities will be found in the laws of the newly-emerging states, especially where these are founded on previous customary law.

95 I t also makes i t clear (as Lord Kingsdown's Act did not) that this provision relates to all wills and not only to those of British subjects.

the use of the lex domicilii at death, in order to construe the will, is completely excluded unless the testator's domicil has remained unchanged since the execution of the and it clearly indicates that the first approach to the question of construction of e.g., a migrant's will must be through the law of his domicil at the date it was made.g7

May I now turn to the Local Government Act, 1960, or rather, since a full commentary on an Act of 694 sections and 23 schedules would occupy at least all the time set aside for the Summer School, to certain parts of the Act which seem to be worthy of comment. The Act (which was twelve years in coming to fruition) has obviously been very carefully considered, but in spite of all the care which has been lavished upon it there are a number of glaring defects of legislative technique, ranging from mere grammatical errorsgs through apparently misconceived definitions, to misplaced provisions which in effect are concealed from any but the most thorough and painstaking search.

An early amendment of the pre-1960 law, so far as what were formerly municipalities are concerned, is to be found in the definition of 'land' in section 6 (1 ) . "Land" was not defined in the Road Dis- tricts Act, 1919; and therefore the definition of "land" in the Interpre- tation Act, 1918,99 applied where the context allowed. Section 6 of the Municipal Corporations Act, 1906, defines "land" as including "all reclaimed land, houses, buildings, and other structures or property erected thereon, or there~nder ,~ but for the purposes of valuation does not include any machinery, whether affixed to the soil or not"; the definition therefore did not include "messuages, tenements and hereditaments." Land is now defined as including "messuages, tenements and hereditaments, and any estate in the land, and houses, buildings,

96 Perhaps "completely excluded" is rather too strong; for there might be the occasional case in which the will was clearly drafted with an eye to the acquisition of a new domicil of choice and the provisions of its laws, and that domicil may be the domicil at death.

97 "First approach" because the will itself may indicate that it was drawn with an eye to its being construed by another legal system than that of the domicil at the date of making; e.g., i t might be drawn in a form peculiar to the law of the place of making, or the national law of the testator.

9s An old friend, the verb which agrees in number not with the subject of the sentence but with a nearer noun, makes its appearance in sec. 6 (2) : "Inter- pretation of expressions by this Act extend . . ."! If punctuation may be included under "grammar" there is a woeful slip in sec. 256(1) (a) : "sale at a price not exceeding the cost price for each copy, as determined by the Council to persons applying for them,"-a separate determination of price in respect of each applicant? Why did the legislators not pick these things UP?

99 "'land' includes messuages, tenements, and hereditaments, and houses and buildings, unless there are words to exclude houses and buildings."

1 On or under the reclaimed land, or under the land?

works and structures, in or upon the land." This is certainly casting the nct very widely, if somewhat r e ~ e t i t i v e l ~ ; ~ but what it is all going to mean in practice is most obscure. In most of the sections which I have canvassed it appears to me that "land" will mean "land" and nothing else;%t is difficult to see any section in which the word will be held to include an easement, a charge, a lien, or an incumbrance (all of which come within the definition of "estate" in section 6 of the Interpretation Act, 1908, and might be included within the expressions 'tenements' or "hereditaments"). I would hazard the view that this extensive definition is in most contexts pretty well meaningless; and if there are contexts in which the word "land" can bear an extended meaning it would have been far better to pin-point them expressly, rather than adopt the 'shotgun' definition referred to. The definition of the words "in or adjoining the district of a 'municipality' has some unsatisfactory features; quite apart from its extraordinary verbosity in describing the places or things to which it may r ~ l a t e . ~ I t goes on to say, tautologically, that the expression means "that the place or thing is in the district of the municipality" ( a piece of information for which we hardly need the enlightenment of a legislative enactment) and then adds "or, if not in the district, is . . . not in the district of another municipality." What appears to have been overlooked here in the addition of the words "adjoins that district and" between "district" and "is"; for, as the definition stands, a piece of reclaimed land on the shores of Albany Harbour, if it is not in the district of the Albany municipality, might, to take an absurd case, be said to be in the City of Ned land~ .~ The words "allowed to use" are defined very elaborately, in a provision whose syntax is, to say the least of it, p e c ~ l i a r ; ~ but they do not seem to appear in many other provisions of the Act other

2 "Messuage" means, shortly, dwelling-house and land. "Houses" are "buildings." "Tenement" may mean an estate in the land-it may also mean a building (see 5 Words and Phrases Judicially Defined (London, 1943) 271-3; reference to those pages will show also that it has a number of other meanings-which of them is intended to be included in this definition section?)

3 In fact, a number of sections, e.g., secs. 296 and 313, speak, not of "land" but of "property" or "rateable property"; but "property" is not defined at all. Could it include personal property?

4 See note 88 supra. 5 It may be objected that it is unfair to invent absurd examples by way of

criticising such provisions; but the short answer is surely that definition sections should not lend themselves to absurd constructions.

6 " 'allowed to use' where used in relation to public place . . . means a public place . . . which having been dedicated to use as such by the public under an Act or at common law, the public has a right to use as such . . . and includes . . . a place . . . ."

than three further definition provisions (those of "public place", "street" and "way") and one feels that the definition would have been better inserted under those headings. The point of the definition is that where a street, way or public place is defined as one which the public is "allowed to use" this includes not only a street, etc. which has been dedicated to public use, but also one which is used by the public, with the express or implied permission of the person entitled to grant that permission, substantially as if it had been dedicated, notwithstanding the temporary interruption of that use by the person referred to. To take an example near at home, the continuation of Myers Street through the University grounds is a "street" (and also a "public place") within the definition of the Act. This amends the previous law so far as road districts are concerned, but does not appear to have made any difference to the law concerning streets, etc. in municipalities, notwithstanding the absence from the Municipal Cor- porations Act, 1906, of the elaborate definition of "allowed to use."

I have already noted the fact that 'land' is defined as including buildings and structures; "building" is, however, separately defined as meaning a structure erected or placed on land. The definition then goes on to say "unless in the circumstances of a particular case, a court required to decide the case declares otherwise." This grant of discretion to a court to decide that a structure is not a building should be noted.7 I t should also be noted that "building in any case includes a fence erected in the district of a city or town or in a townsite." This seems to mean that a court can never decide that a fence is not a building (even though the context would seem to require otherwise). At first sight some of the results appear to be unintended; for example, was it intended that no fence should be built unless plan and specifi- cations have first been submitted to the council? (section 374) ; is it necessary to obtain a licence under section 399 to erect a wooden fance? was it intended that the powers of a council under sections 407-409, relating to dilapidated buildings, should extend to dilapidated fences? Other definitions appear to be straightforward enough; some, indeed, seem to have been inserted ex abundanti cautela, e.g., those of "city", "shire", "town", "Part", "~ection";~ and this certainly ap-

7 At first sight this appears to offend against the view of Driedger (op. cit. supra, note 13, at 46) that substantive provisions should not be incorporated in definitions; but in due course, reading through the Act, one comes across the substantive provision conferring the discretion upon the Court in section 687, and one concludes that the provision in the definition clause is ex abundanti cautela.

8 "'City' means a municipality which is a city" (and so with "shire" and "town") ; " 'Part' means Part of this Act" (and so with "Section") .

pears to be the reason for subsection (2 ) of section 6: "Interpretation of expressions by this Act extend to primatives? derivatives, inflexions and variants of the respective expressions." Is this really necessary? Indeed, is it altogether wise? For example, what exactly is meant by "variants"? IS " f o ~ t p a t h " ~ ~ a variant of "streety'? I cannot think that this is good drafting; it savours too much of the "shotgun" technique referred to earlier.ll It may be, of course, that the value of such a provision does not appear when one is reading an Act of Parliament right through, in order to see what it says; perhaps it is when one is looking for the answer to specific problems that the subsection would prove helpful. But statutes have been interpreted for a long time without the aid of these enlarging words and I am very inclined to express the hope that we do not see them again.

As I remarked before, the Act contains 694 sections, divided into 28 Parts; and one can do no more than dip here and there. I note, for example, that section 173 provides for a quorum of the council, as did section 160 of the Municipal Corporations Act, 1906, and section 132 of the Road Districts Act, 1919;12 it provides in subsection (2 ) that "A council shall not transact business at a meeting unless a quorum is present"; but it does not say what is to happen if a council does so. Presumably this provision will be construed as mandatory, and not as directory merely;13 one feels that it would have been better to be explicit. Part VIII contains extensive powers of making by-laws; and section 190 contains an elaborated procedure for the making of such by-laws.14 Tucked away in the middle of Part VIII is section 222,

9 I had to go to the Oxford Dictionary (not the Shorter Oxford) to find this word; it is an obsolete form of "primitive," meaning "root word." Are there likely to be any such words in the statute?

10 See sec. 330-"path or footpath." 11 See p. 137 above. 12 T h e quorum is altered to half an even number of councillors, and just over

half an odd number of councillors (i.e., the nearest even number above half). The quorum in a municipality used to be one-third, and in a road district a majority.

13 On this distinction see, inter alia, Craies, Statute Law, (6th ed., London, 1963) 62-64.

14 Perhaps unnecessarily elaborated; it has been thought necessary to "gild the lily" (see note 88 supra) by providing in subsec. 3 that "the provisions of the Interpretation Act in general and those of sections thirty-six and tbirty- eight of that Act in particular apply in respect of by-laws made, and the making of by-laws under this Act." (Note the omission of the comma after the second "by-lawsw)-this in spite of the clear words of sec. 3 of the Interpretation Act itself-and then (so as to avoid the application of the maxim exfiressio unius . . . ) that this provision does not exclude the application to this Act ("or by-laws made under this Act"!) of any of the other provisions of that Act. I am afraid that provisions of this sort are

subsection 2 of which enables a council to make by-laws concerning any licence which may be required by other by-laws as the condition of undertaking any activity; these first-mentioned by-laws arc machinery by-laws regulating such matters as the form and manner of application for a licence, its duration, the fees payable, the conditions for the licence, the circumstances in which it may be cancelled, re- newed, or replaced, and so on. Quite unexpectedly, subsection ( 3 ) of the section provides a procedure for appeal against the failure of a council to grant a licence. This is an admirable provision in intention (though it does not, in my submission, go far enough, for it limits the appeal to failure to grant a licence and provides no appeal against cancellation of the licence) but it is surely in quite the wrong place. No-one who had not read the Act from cover to cover would be likely to stumble on it by chance; and no-one who was looking for such a provision would look for it in the middle of a Part headed "By-Laws" and in a Division headed "Power of Councils to make By-Laws."15

The procedure provided is briefly this (it does not apply to licences for what are rather grandiosely-and misleadingly-called "extractive industries," which I shall mention in a moment). If after application has been made for a licence the council does not grant it within 35 days, the applicant may within a further fourteen days write to the council asking why the licence has not been granted.l8 Within fourteen days from the service of the notice on the council, it must give the applicant a notice in writing stating why the licence has not been granted. If he is dissatisfied with the reason stated he

becoming rather common-do the legislators not believe that the Interpre- tation Act means what it says? I t is true that lawyers (and courts) have been known to overlook the Act in the past-for some examples from New Zealand see Ward, Interpretation of Statutes, (1955) 31 N.Z.L.J. 248 and Trends in the Interpretation of Statutes, (1958) 34 N.Z.L.J. 326, at 327-8- but does this justify provisions such as these, and the similar one in sec. 4 (2)? Incidentally, i t is nonsensical to say in subsec. 3 that the provisions

of the Interpretation Act apply generally to by-laws and in subsec. 4 that the preceding section does not exclude the application to by-laws of any of the other provisions of the Act. But presumably the final draft of this was done in a hurry and i t was impossible to check it. .4 further small example of over-elaboration appears in subsec. 5 (a) , which prescribes as the first step in making a by-law that the council shall "cause a draft of the proposed by-law to be prepared." I t is not easy to see how a council could resolve that "the by-law be made" if i t did not exist in draft form.

15 Unless he was forewarned, e.g., by familiarity with the Road Districts Act 1919, sec. 202 of which commits the same error.

16 Why allow the council to keep silence concerning the fate of an application and put the onus on the applicant to ask for reasons? Why not require the council to come to a decision within 35 days and notify the applicant, with reasons for its refusal, if it refuses?

may, within a further fourteen days, make a complaint17 that the council has wrongly failed to issue the licence.18 The complaint may be heard only by a stipendiary magistrate, sitting as a court of summary jurisdiction; he may either make an order directing the council to issue the licence,l9 or dismiss the complaint. In either case an appeal will lie, under the Justices Act, against his decision.

Section 235 makes special provision for the licensing of quarrying and excavating, which as I have said are grandiosely and misleadingly described as "carrying on an extractive industry."20 The appeal (as by section 202 of the Road Districts Act, 1919) lies to the Minister; the council has only twenty-eight days in which to act, (instead of thirty-five) and the disappointed applicant may (without first seeking the council's reasons) appeal at any time to the Minister, stating his grounds. The Minister may refuse the appeal,21 or grant it and direct the council to issue the licence sought, subject to any conditions he thinks fit to impose. Subsection 7 (again quite inappropriately placed here) empowers a court of petty sessions which convicts a person of quarrying or excavating without a licence to make an order restraining him from continuing or repeating the offence; by paragraph (c ) section 159 of the Justices Act, 1902, is applied to such an Order, implying that it may direct that disobedience shall be punished by imprisonment. An appeal under the Justices Act, 1902, lies against the making of such an order.

17 These grounds will presumably amount to a traverse of the council's expressed reasons.

18 I t may be that a council will issue a licence, but subject to conditions (not being conditions expressed in the by-law) to which the applicant objects. There is no provision for appeal against the imposition of such conditions, but as sec. 222 (2) (a) does not specifically empower the council to take by by-law power to impose conditions in respect of particular applications, the remedy would appear to be to dispute the validity of the by-law under sec. 264, unless it is saved by sec. 190 (7) (b) , which authorizes the making of a by-law "so as to delegate to or confer upon a specified person or body . . . a discretionary authority." (Incidentally, what is the difference between "delegate to" and "confer upon" in the above?).

19 For some reason the order so made is not "to have effect according to its tenor"; cf. secs. 327 (4) & (5) and 331 (3) . TVhy the omission?

20 "Extractive industry" is a phrase wide enough to cover a multitude of processes, including e.g., the making of tannin from bark, and the making of fruit juices. I t is not good drafting, it is submitted, to take so wide a phrase and narrow it arbitrarily by way of definition. Would it not have been better to have used the simple word "quarrying" (as in sec. 202 of the Road Districts Act 1919) with a slight widening of the definition to include excavating?

2 1 At first sight this expression struck me as odd-does one refuse an appeal, or the relief sought by way of appeal? But perhaps this is pedantic.

Division 2 of Part V111 (sections 257-258) empowers the making by the Governor of model by-laws, which may be adopted, with or without alteration, by a procedure specified in section 258 ( 4 ) . For some reason, the procedure varies in its details from that prescribed by section 343 of the Health Act, 1911, for the adoption of model by-laws made under that Act; one wonders whether this is not a possible source of confusion which ought to have been removed (or ought now to be removed by amending section 343 of the Health Act so as to correspond with the Local Government Act).

Brief reference has already been made2"o section 264, which re- enacts the procedure of section 207 of the Municipal Corporations Act, 1906, for testing the validity of by-laws, but includes an express provision that the establishment of the special procedure does not preclude a person from contesting the validity of a by-law in other proceedings in which the question is material.

Section 272, governing the manner in which contracts may be made by a council, adds to the possible signatories to a contract made in writingz3 the mayor or president of the council, signing alone, and the clerk, or an officer authorized in writing by him, signing alone, and authorizes any one of those persons to enter into oral contracts on behalf of the council, if the contracts might be made orally by private persons, such persons must of course act by the direction (whether general or specific) of the council.z4 Section 273 allows a council to enter into instalment payment contracts for the purchase of anything except land, (which by section 278 it may purchase by raising a mortgage) subject to certain limitations as to calling for tenders (in effect) and as to the total amount of the council's loan and instalment-purchase debts.

Attention should perhaps be drawn briefly to the provisions of Part 20 of the Act, which replaces all but the fencing provisions of the Cattle Trespass, Fencing and Impounding Act, 1882,25 and (according to the marginal notes) draws extensively on the model of the South Australian Impounding Act, 1920. Some changes may be

22 Supra, at p. 141, n. 18. 23 A contract which, i f made between private persons would not be enforce-

able unless made in writing and signed, must be made in writing by the council; other contracts (except those which must be made under seal) may be made in writing.

24 The section sa7s "acting by the direction, whether general or specific, and on behalf of the council . . . ." I f a person is acting by direction o f the council could he be acting otherwise than on its behalf?

25 These sections have been repealed by the Dividing Fences Act 1961, noted infra.

noted. The privilege of castrating trespassing beasts which are branded, or of which the owner is known, after three days' notice to him, no longer obtains;26 only unbranded beasts whose owner is unknown may br so dealt with. Where cattle trespass on unenclosed land, the rate of damages which may initially be claimed for the trespass is, as before, lowrr than that in respect of trespass on enclosed land; but after three days' written notice given personally to the owner, or fourteen days' notice by advertisement, requiring him to prevent the cattle from continuing to trespass, the rate of damages claimed may be increased to that claimable in respect of trespass on enclosed land. The limitation to £5 of the total amount claimable in respect of a single case of trcspass on unenclosed land by cattle other than entire horses, asses or bulls is removed, as is the provision that all trespasses committed by the same cattle against the same person before the date of any complaint or information are to be treated as one offence on!v. Section 474 lays down the conditions under which unclaimed cattle impounded in a public pound may be sold, and various powers of ordering that t h r conditions of any of them be dispensed with, or that the cattle be drstroyed or disposed of,27 are given to a single Justice of the P r ~ c e . ~ ~ Srction 484 creates the offence of permitting cattle to stray

26 I am assuming that sec. 5 (1) of the Cattle Trespass, Fencing and Impound- ing Act 1882, conferred this power, despite the inconsistency between it and the opening paragraph of sec. 5.

27 "Disposed of," presumably, otherwise than by sale or destruction; the only other way would appear to be by giving the cattle away. Was this contemplated?

28 T h e Justice of the Peace is given power to make certain orders of a specific kind; subsec. (9) provides that "An order made under this section by a justice has effect according to its tenor . . . ." This phrase, which is at first sight distributed haphazard throughout local legislation, (see note 19 supra.) is difficult to understand. Some years ago its appearance in a statute was questioned by the present Minister for Justice the Hon. A. F. Griffith. H e said that he had had advice from a member of "the legal fraternity" who was "regarded as a good draftsman": "Mere words; most unnecessary. It would be an extremely strange proclamation if it did not have effect according to its tenor" ( (1947) 147 Hansard 1857) . The Hon. E. M. Heenan, who was in charge of the Bill in question, defended it by saving "[tlhe person who has drafted this Bill has had far more experience than either Mr. Griffith or I. It must have been put there for a reason." Is it now7 proper to ask in public for an explanation of that reason? I hare an uileasy sus-

context seem picion that it is hoped that the words (which in their pres- never to have been the subject of judicial interpretation) may somehow save an order which would otherwise be ultra vires, by a vulgar paraphrase something like this, and anything at all which a Justice chooses to order when he purports to make an order under this section shall be effective." This suspicion is strengthened by the fact that they are often coupled (as in the present instance) with the provision that such an order is not subject to appeal. Cf. sec. 171 (3) of the New Zealand Land and Income Tax Act

or be at large, tethering cattle, or depasturing cattle in a street or other public place. Subsection 5 of that section provides that cattle are to be regarded as being at large in a street or public place within a city, town, or townsite notwithstanding that they are in charge of some person, unless they travel a t the rate of at least five miles a day in a direct line;29 there is an exception to this if the day on which the cattle are travelling is a market day for the sale of cattle, or the day before, and the cattle are travelling at less than five miles a day.30

In running through the provision concerning the recovery of rates I am puzzled by an apparent inconsistency, and a fairly long- standing one, between sections 586 and 589, concerning the terms of sale of land sold for non-payment of rates, and the application of the

1954: "Every Order-in-Council under this section shall have effect according to its tenor, anything to the contrary in this Act notwithstanding." This would probably save an Order from being struck down for repugnancy to another part of the Act (though even then the concluding words of the phrase, which never appear in local legislation, would seem to be vital to achieve this) ; but it is very doubtful whether they would save an Order 111tra uires the section, which would probably be held not to be "an Order- in-Council under this section." If this is so, the words lose most of the meaning which I have suggested in the above paraphrase. In any case, as a matter of policy, should those who draft such legislation be so anxious (if my guess as to their motives is correct) to exclude the operation of the ul tra uires principle; and should not the legislators know what they are doing when they approve of legislation containing these words.

3 This provision is going to present a few problems in its application. If cattle are found on a street, in charge of some person or other, how long must they be followed to determine whether they are travelling at less than the rate of five nliles a day? The words "at the rate of" are those which cause the difficulty: if the section had said "do not travel at least five miles a day" there would he no difficulty (except that there may be few towns or townsites more than f iw miles long or wide) . Further, how "direct" must a "direct line" be-must it follow the shortest practicable stock route between the point of departure and the eventual destination? The difficulty with this interpretation is that the rubsection does not say expressly that the cattle must have a destination. TVill it still be possible to graze "the long acre" so lollg as the cattle move in a straight line at such a speed that it can reasonably be said that they would travel five miles in twenty-four hours? If so, we may find that a particular highway could be grazed by moving cattle up and down a "direct" stretch of five-and-a-quarter miles each day.

30 I may be misreading this provision: but what the section says is that if cattle on a street do not travel at the rate of at least five miles a dav in a direct line they are to be regarded as being at large "unless the day is hat one which a market is held for the sale of cattle or the preceding day, and t h e cattle are travelling t o tlze rtzarket in charge of n person a t n l e ~ ~ rate." The words in italic (which in any case are unnecessary, and do not appear in the South Australian legislation from which this section was borrowed-sec. 6 of the Impounding 4ct Amendment Act 1938) may have mislead me.

sale moneys. Section 586 gives the council power to transfer or convey the land sold to a purchaser, but subject to a number of encumbrances and charges, including any mortgage in favour of the Commissioners of the R. and I. Bank;31 one assumes therefore that the conditions of sale will be that the land is sold subject to this encumbrance (inter alia'). But section 589, providing for the application of the moneys received on sale, directs that the balance of the moneys after payment of costs of sale, unpaid rates, moneys due to the Crown, and other amounts due to the council, shall then be paid "in payment of money due under mortgage of the land to The Commissioners of the Rural and Industries Bank of Western Australia." Since the land has been sold subject to that mortgage, the effect would appear to be that the purchaser may receive an unexpected windfall if there is a surplus over and above the items first mentioned. What happens in practice?

Comment might be made on one or two of the specific provisions of Part 28, Division 1 "Legal Proceedings by and against Municipali- ties." Section 646 (5) puts what could occasionally be a useful weapon in the hands of ratepayers disgruntled by the failure of a council to enforce its own b y - l a w ~ ; ~ ~ it provides that any person may make and prosecute a complaint of a contravention of the Act or of any by-law. Section 647 applies to all municipalities the provision of section 339 of the Road Districts Act, 1919, making it an offence to neglect to keep in repair a fence or gate separating land from a road. I have wondered at times whether the existence of this might justify a refusal on the part of the local Courts to follow Searle v. W a l l b ~ n k . ~ ~ I do not like (although it is of long standing) the provision in section 655 ( 3 ) to the effect that the averment in a claim, complaint, or other document, in proceedings instituted for purposes of the Act, that a person is or was at a stated time the owner or occupier of land is to be presumed as proved in the absence of proof to the contrary. Why should not the local authority which is taking proceedings be obliged

31 This is a provision of long-standing; but I do not quite see why this body should be so favoured. At one time I was one of the legal staff of a similar semi-Government organization in New Zealand; i t did not enjoy this priority.

32 Some time ago I was asked by a colleague what remedy he had against a neighbour who was conducting a marine dealer's business next door to him, and sorted bottles from 6 a.m. to 10 p.m. Apart from the usual remedy in nuisance, I suggested that he might get some relief if he complained to the local authority concerned that the neighbour was in breach of one of the uniform by-laws which required such premises to be surrounded by an eight-foot high fence. He told me that the local authority officer he saw was obviously most unwilling to make any move towards enforcing the by-law.

33 [1947] A.C. 341; cf. Fleming v. Atkinson, (1959) 18 D.L.R. (2nd.) 81.

to prove what is no doubt an essential part of its case? I am sure that the answer is "administrative convenience dictates this"; but in my submission administrative convenience dictates a good many things it should not, and Members of Parliament accept far too much of this sort of thing.3b I cannot see what section 659 (requiring a vendor of land to notify the municipality of the sale of land) is doing in a subdivision of this Division, even if the subdivision is headed "Service of Notices"; but this placing has been taken over from the Municipal Corporations Act, 1906, despite the fact that the provision itself (according to the marginal note) was adopted or adapted from the Road Districts Act, 1919, where it was placed elsewhere (though no more appropriately) .35

Section 676 provides a procedure for settling disputes between councils; it is in effect a re-draft of section 532. The appropriate tribunal is still the Minister, with or without assessors. This invites reflection on the number of different dispute-settling procedures laid down in different parts of the Act. The appropriate tribunals or bodies range from the Governor,S6 through the the Supreme C o ~ r t , 3 ~ a person appointed by the Governor, having the powers of a Royal Commission,39 a Valuation Appeal Court,4O the Local Court,41 a court of summary jurisdiction composed of a stipendiary magi~trate?~ a stipendiary magistrate as a Court of Disputed return^,^^ a court of summary jurisdiction (not confined to a magistrate) ,44 two arbitration under the Arbitration Act, 1895,46 to three members of a Council as a revision In some cases one can see justification for choosing some particular form of tribunal or inquiry; in others the variation is less easy to explain. Might it not be worth while consider-

34 Professor Allan commented on similar complacency on the part of members of the Commonwealth Parliament in (1959) 4 U. WEST. AUST. ANN. L. REV. 524.

35 Sec. 159, in Part V "Powers and Functions of Boards" in Division I "Con- trol of Roads . . . and the Subdivision of land in Districts." Surely it belongs in the Part or Division which deals with the making-up of the rate book?

36 Secs. 328 (8) and 329. 37 Secs. 12 (5) ; 235; 295 (3) (d) and (4) (d) ; 374 (4) (c) ; 401 (3) . 38 Sec. 264. 39 Sec. 158 (6) (b) . 40 Secs. 555 and 556. 41 Sec. 350 (5) and (6) . 42 Secs. 155, 222, 681. 43 Sec. 137. 44 Sec. 500. 45 Secs. 422-432. 46 See the list of such provisions in sec. 684. 47 Sec. 49.

ing whether a greater uniformity could be reached, perhaps by way of the setting up of one or more Local Government Tribunals to handle dispute-settling and appeals against the decisions of Local Authorities?

This has been a very cursory survey; but may I be excused if I note only one further point? Section 660 for some reason replaces the provisions of section 47A of the Limitation Act, 1935, in respect of actions against local authorities, their members, officers and servants. The period of limitation remains twelve months;48 but the new provision, in addition to requiring the prospective claimant to give the prospective defendant timely notice (s) of the intended claim,49 restores the requirement that he answer what I may call "statutory interroga- t o r i e ~ . " ~ ~ No doubt sound policy reasons can be advanced in defence of these provisions but could they not be advanced with almost equal force in respect of all potential defendants? Is it really necessary to give special treatment, in this respect, to local authorities and their members, officers or servants?

One could, of course, continue almost indefinitely with a paper such as this; and if, with the poet Marvell:

". . . at my back I always hear Time's winged chariot hurrying near,"

48 Cf . Sec. 518 of the Municipal Corporations Act 1906, sec. 349 of the Road Districts Act 1919, under which the period of limitation was six months after the date of a notice which set out particulars of the demand.

49 Particulars of the cause of action, of the injury (if any) and the name and address of the person injured, of the damage to property (if any) and the nature of the property; of the claim being made, or about to be made, and whether an action is about to be begun against the municipality or its member, officer, or servant, must be given as soon as possible after the cause of action arose, and in any case within twenty-one days; a further notice stating particulars of the cause of action, the claim, and the name and address of the party about to sue, is to be served on the council at least thirty-five days before the action is begun. If at the time the first notice is served it has been decided to bring an action that fact must be stated (as indicated above) and presumably that notice will suffice, so that the second notice will be required only if at the time of serving the first notice it has not been decided whether to sue. Would it not have been better to make this quite clear? In any case, why the two bites of the cherry?

(Might one observe, in passing, that paragraphs (b) and (c) are not in logical sequence?) Only one notice was required under sec. 47A of the Limitation Act 1935, (which is now repealed, pro tanto, by implication).

50 Sec. 660 (f) : if the person does not when required by the council at reasonable times answer in writing such reasonable inquiries relating to the cause of action and the claim as are addressed to him by or on behalf of the council or the defendant, the action is not maintainable. Cf. sec. 518 (5) of the Municipal Corporations Act 1906, and sec. 349 (5) of the Road Districts Act, 1919.

I am also conscious, more prosaically, of the voices of my brethren saying something like "Why didn't he say something about section 26 ( j ) of the Dog Act Amendment Act 1962"? So I feel that a few isolated comments are in order to draw this paper to a close. First, may I notice the Painters' Registration Act, 1961, which brings yet another trade or occupation within the circle of those which require a person to be registered before he carries it on. One of the reasons given for legislation such as this is that it helps to protect the public by excluding the incompetent and the careless from the trade. I t is interesting to note that Act contains more teeth than has in the past been customary in such legislation, for section 16 requires the Painters' Registration Board to hold a full inquiry into any complaint that a registered painter has been guilty of negligence, incompetence, or fraudulent conduct, and empowers it, if it finds the complaint proved, not only to cancel or suspend the painter's registration, but to require him to make good faulty or inferior work within a specified time. If he fails to do so the Board may make the work good at his e~pense .~ ' Next, although the provisions of the Dividing Fences Act, 1961, were very thoroughly canvassed by Mr. Pidgeon at a conference in Bunbury two years ago, there are three comments I would like to make. First, I am interested in the provisions in sections 8 and 9, setting out the procedure to be followed when an owner wishes to erect a dividing fence and compel the adjoining owner to contribute his half-share, with the procedure to which I was accustomed. The first-mentioned owner must take active steps to secure his neighbour's agreement to the proposal to fence; and if the neighbour simply fails or refuses to make up his mind within twenty-one days from the date of service on him of the notice containing the proposal, there is a dispute which must be settled by a stipendiary magistrate. This was borrowed from New South Wales l eg i~ la t ion .~~ I wonder whether the system to which I was accustomed does not at least merit consideration; that is, that once the notice of intention to fence is served the owner who receives it has twenty-one days in which to make up his mind whether to accept it or dispute it; if he wishes to dispute it he must serve a cross- notice, and the dispute then becomes focussed for the consideration of the Magistrate, but if he fails to serve a cross notice he is taken to have agreed to the original proposals, and the owner serving notice

51 It will be interesting to see the effect of this. I t would be even more interesting if such a provision were to be inserted into the Builders' Registra- tion Act 1939; but why not, if the Act is really intended to protect the public?

52 The Dividing Fences Act 1961, sec. 9.

may go ahead with the fence and recover half the have also some misgivings concerning the provision in section 15 ( 7 ) ( a ) (also copied from New South Wales) to the effect that if any dividing fence has been constructed partly by one owner and partly by another, each shall bear the cost of repairing the part constructed by him. I t may be fair enough that each should bear the whole cost of repair necessi- tated by defects in material or construction for which he was initially responsible, but it does not seem fair that he should bear the whole cost if the part which he erected is the only part damaged by natural causes (including white ant attack) .54 Lastly, I note that there has so far been no amendment to section 13 ( 7 ) , which provides that an owner who has been asked by notice to contribute to the cost of a dividing fence already erected (because he has erected a building on his land or is now occupying a building on it) must, if he wishes to dispute the claim, both pay the amount claimed and give notice of his intention to dispute the claim.55 What is happening in practice whrn such a dispute arises? Have stipendiary magistrates been making orders for payment by the owner in question of a less sum than that claimed, notwithstanding that he has not paid the full claim at the same time as he gave notice of intention to dispute, and so expressly or impliedly reading "or" for "and"?56

Next, a few brief references to 1962 legislation other than that which I have already noticed. The Law Reform (Statute of Frauds) Act, 1962, has not wholly abolished the Statute of Frauds-indeed, following English (but not New Zealand) precedent57 it has left the operative part of the Statute untouched (and thus, it would seem, preserved beyond question all the relevant case law) but has restricted its operation to contracts of guarantee and contracts for the sale of

53 The Fencing Act 1908, sec. 13. 64 I t is true that sec. I5 (7) (b) provides that if any dividing fence i.i damaged

by "flood, fire, lightning, storm, tempest or accident" either owner may immediately repair i t and claim half the cost from the other; but it is not clear whether this derogates or is intended to derogate from the general rule in sec. 15 ( 5 ) (a), referred to in the text.

55 "If the owner of adjoining land on whom a notice of claim has been made . . . does not (a) pay the amount of the claim within one month . . . ; and within that

period give notice . . . that he disputes the claim . . . he is liable to pay . . . the amount of the claim."

56 "You do sometimes read 'or' as 'and' in a statute . . . . But you do not do i t unless you are obliged, because 'or' does not generally mean 'and', and 'and' does not generally mean 'or'." Scrutton L.J. in Green v. Premier Glynrohon- wy Slate Co., [I9281 1 K.R. 561.

57 The Law Reform (Enforcement of Contracts) Act 1954 (U.K.) ; the Con- tracts Enforcement Act 1956 (N.Z.) .

land. Perhaps the most frequently important aspect of the reform will be that it will no longer be necessary to give anxious consideration, before a contract is entered into (or when action on it is contemplated) whether it is or is not to be performed within the space of one year from the date on which it was made. Section 6 of the Reprinting Act Amendment Act, 1962, and section 4 of the Amendments Incorpora- tion Act Amendment Act, 1962, have amended the former provision that an Act reprinted pursuant to either of the principal Acts is to be judicially noticed and "deemed for all purposes to be an Act of the Parliament of Western Australia." A reprinted Act is now deemed to be no more than a correct copy of the original statute (as amended) ; and it appears now to be open to counsel (as, in theory at any rate, it was not before) to show that the reprinted Act is not a correct copy of the original. The Interpretation Act Amendment Act, 1962, suggests that the Legislature has, perhaps rather belatedly, shown itself willing to respond to judicial criticism of local legislation. In Trobridge u.

Hardyss Fullagar J. referred to "the iniquitous provisions for treble costs" against a person bringing an unsuccessful action against a public officer which were contained in paragraph H of the Second Schedule to the Interpretation Act, 1918. The amending legislation makes this award no longer mandatory, but discretionary, and allows a court to award a lesser multiple of the costs in the action than treble costs. Presumably it would have taken more courage than either the Government or the Legislature possesses to delete the provision entirely, and so stop waving this particular big stick at members of the public who are aggrieved by the actions of certain public officers and wish to challenge them; this provision appears to me to be a relic of Crown Colony mentality which we should have outgrown.sQ

Two small procedural amendments made in 1962 may be worthy of note. The Declaration and Attestations Act Amendment Act, 1962, enables declarations to be made and documents to be attested before a Justice of the Peace for any other State or Territory of the Com- m o n ~ e a l t h . ~ ~ The Evidence Act Amendment Act, 1962, inserts into the principal Act a new section 79A dispensing with the need to call an attesting witness to prove the execution of any document (other

58 (1955) 94 Con~monwealth L.R. 147, 155. 59 The provision first appears in Western Australia in 1853, in the Ordinance

16 Vict. No. 11; it has no counterpart in the English predecessor of that legislation, 13 and 14 Vict. c. 21.

60 Presumably the intention was that the declaration so validated should be those made in the State or Territory for which the attesting witness is a Justice of the Peace; but the Act is not so limited.

than a will or other testamentary document) which requires attesta- tion in order to be valid. The document may be proved in the same way as it would have been proved had no attesting witness been alive.

Time will not permit of any comments on the Mental Health Act, 1962; but the provisions of section 6 of the Health Act Amendment Act, 1962, are of interest, because they provide a new answer to a problem with which our medical brethren occasionally present us. If the parents of a child neglect or refuse to authorize a blood transfusion or blood exchange when one is urgently necessary for the child's health or survival, a medical practitioner may perform that transfusion if he is satisfied that such a transfusion or exchange is a reasonable and proper treatment for the condition from which the child is suffering. If he is able to secure the confirming opinion of another medical practitioner, if one can be found after such search or inquiry as the first one thinks reasonable, having regard to the possible effect of delay on the child, he must do so. This appears to be a distinct improvement on the procedure of summoning a special court to hear the medical evidence and the objections of the parents, which I believe is in vogue elsewhere. "Child" means any person under the age of twenty-one; thus a person of twenty with religious convictions forbidding the acceptance of a transfusion may be given one against his will under this provision. This does not shock me; but it does make me wonder whether it is really a grave deprivation of religious (or secular) freedom to extend such a provision to enable blood trans- fusions to be given against their will to persons of any age who are in urgent need of them.

The Money Lenders Act Amendment Act, 1962, contains a curious little addition to the principal Act enabling any incorporated company or body corporate which borrowed any money before the date of commencement of the Act, or borrows it after, to agree with the lender of the money (if he is a money lender as defined in the Act) that the provisions of the Act shall not apply to the loan; the execution of the agreement exempts the loan transaction from the operation of the Act and the borrower from any penalties which he may in- advertently have incurred by failure to comply with section 9. The reason for the legislation was the discovery, by the Hon. H . K. Watson, first, that the definition of "money lender" in the principal Act was apparently wide enough to include a person who had at any time lent money at more than 123%61 and second, that persons falling within the definition of money lender, for other reasons as well as this, might

61 Sed quaere?

have unintentionally committed breaches of the -4ct by lending money to a company on the strength of a prospectus and not thinking of complying with section 9. The curious feature of the Act is that it allows the borrower to elect whether to exempt its lenders from the penalties of the Act, and at the same time to deprive itself of the possibility of taking advantage of what he called an "unexpected curiosity" in the leg is la t i~n .~~ Is not this carrying tenderness for acquired rights to a ridiculous extent?

I cannot end a paper on "Recent Developments in Statute Law," without a glance, however cursory, at the legislation for 1963 and such of the legislation for 1964 as has come over my table. How often it falls to the lot of a local practitioner to execute against assets in Western Australia the judgment of a foreign court I do not know; but those who find this necessary will note that the provisions of Part 8 of the Supreme Court Act, 1935, will cease to be relevant to this when the Foreign Judgments (Reciprocal Enforcement) Act, 1963 (another piece of uniform legislation resulting from the close liaison between Federal and State Attorneys-General) takes its place. The principal difference between the old procedure and the new appears to be that, whereas under the old procedure the Supreme Court had no power to register a foreign judgment unless certain conditions were n e g a t i ~ e d , ~ ~ the presence of one of these conditions is grounds, under the new legislation, for setting aside the registration. A new ground (and a curious one, at first sight) for setting aside the registration is that the matter in dispute in the proceedings in the original court had, before the date of judgment in the original court (i .e. , the judgment which has been registered) been the subject of a final and conclusive judgment by a court having jurisdiction in the matter. The situation envisaged appears to be what one would think the rare case in which a disappointed plaintiff, who has failed in his action in one jurisdiction, brings a second action on the same cause of action in another jurisdiction, and succeeds, obtaining the judgment which he later registers. The new Act provides in section 9 (2) and (3) detailed rules for ascertaining when a foreign court is and is not deemed to have jurisdiction for the purpose of registration of a judgment in this State. Section 13 of the Act is interesting for an oblique reference to a doctrine which one had thought was dead, namely that enforcement of the judgments of one country by the courts of another depends upon reciprocal treatment of the judgments

62 (1962) 162 HANSARD 1037. 63 Sec. 148 ( 2 ) .

of the former by the courts of the latter;m it empowers the Governor to order that no proceedings shall be entertained in any court in Western Australia for the recovery of any sum alleged to be payable under a judgment given by the court of a country which accords to Western Australian judgments substantially less favourable treatment (in respect of recognition and enforcement) that its judgments receive in the Courts of this State. Section 14 empowers and requires the Supreme Court to issue to a judgment creditor a signed copy of any judgment which he desires to enforce in the courts of any country to which the Act applies. Such a copy is not to issue while execution of the judgment is stayed, either pending an appeal or for any other reason.65

I cannot forbear from a brief comment on section 2 (b) of the Legal Practitioners Act Amendment Act, 1963, which requires an applicant for re-admission to satisfy the Board "that he is, in the opinion of the Board, a fit and proper person to be re-admitted." What evidence will he require to satisfy the Board as to its own opinion in the matter?

The provisions of the Industrial Arbitration Act Amendment Act, 1963, will no doubt be canvassed ad nauseam in the next few weeks; may I leave them on one side, with just the observation that it is perhaps unfortunate that it was not possible either to consolidate the Act while these extensive amendments were being drafted, or, if the exigencies of politics forbade, to prepare a draft reprint at the same time as the amending Bill was being drafted and include this as an appendix to the Statute Book.66

I t is interesting to note that section 3 of the Police Act Amend-

64 This doctrine, enunciated by the Supreme Court of the United States in Hilton v. Guyot, (1895) 159 U.S. 113, was later rejected by the New York Court of Appeals in Johnston v. Compagnie General Transatlantique, (1926) 242 N.Y. 381, 152 N.E. 121, what was said on the point in Hilton v. Guyot being characterized as "magnificent dictum." The doctrine was never accepted by English courts.

66 What sec. 14 (2) says is that "an application shall not be made under this section with respect to the judgment" while execution of that judgment is stayed. I t is not clear whether this is intended to make the making of an application in such circumstances an illegal act, or to provide that the application is to be invalid. Would it not have been better to have said directly that the Court (which must issue a certified copy of the judgment on application) is not to do so while execution is stayed?

66 One would think that, if the exigencies of the drafting process allow the time, the preparation of the draft reprint would assist in drafting amendments, as i t would be possible to see exactly what effect they would have on the principal Act.

ment Act, 1963, has a t last removed from the familiar notice 'Tres- passers will be prosecuted' the reproach that it is a "wooden lie." I have been familiar with another system in which this notice was only a half-truth, for section 6A of the New Zealand Police Offences Act, 1927, made it an offence to continue to trespass on land after having been requested by the owner to leave.67 The Western Australian provision, simply making it an offence to enter enclosed land without lawful excuse and without the consent of the owner, occupier, or person in charge thereof, is in my submission preferable; the only thing that worries me is whether the average city residential property without a front fence is "enclosed land" within the meaning of the section.68

Section 4 of the same Act has, again a little belatedly,69 evidenced the attention paid by the legislature to judicial criticism of the Statute Book. The notoriously ill-drawn section 84 of the principal Act, which came under fire in Higgon v. O'Dea70 has been amended to remove the words which made it an offence to permit or suffer persons apparently under the age of sixteen to enter and remain in any shop or place to which the public had resort.71 The offence, created by a new

67 I t was held by one Stipendiary Magistrate that a notice drawing the attention of persons on the land to the fact that they were trespassing and requesting them to leave was not a sufficient request within the meaning of the section.

68 The legislation was passed with the country dweller in mind; but is not the city dweller (even if not so urgently) entitled to the same protection? See the comment above on the Interpretation Act Amendment Act 1962.

70 [I9621 West. Aust. R. 140. 7 1 The section, which was uncritically copied from English legislation of the

last century, displayed the characteristic fault of what I have earlier called the "shotgun" technique of drafting, which in such provisions creates offences all round the target, because the legislation cannot or will not take the trouble to particularize. Unfortunately i t is still with us. I note with horror that in the Government Gazette for 16th December 1964 there appears an amendment to the Fisheries Act Regulations which substitutes for regulation 14A a regulation which begins: " (1) No person shall remove the crayfish tail from any crayfish, or cut up

or otherwise process any crayfish, except in an export establishment . . . ."

So far, it seemed that though I might no longer buy or cut up whole crayfish, I would be able to buy cray tails and keep within the law (if, of course, cutting up a craytail is not included in the words "cutting up . . . any crayfish") ; but then I look further to: " (2) No person shall bring ashore from any boat any crayfish tail or any

severed portion of any crayfish unless that boat is an export establishment . . . ."

which suggests that all craytails are henceforth going to go to export estab- lishments, and that I shall be lucky to enjoy crayfish at all. But is it really intended to forbid the ordinary citizen to buy a whole crayfish and prepare it himself or herself?

subsection 2, is to allow such children to enter and remain "under such circumstances as shall indicate that the mental, physical or moral wclfarc of the child is likely to be in jeopardy."

I can do no more than refer with approval to the provisions of thc Offenders' Probation and Parole Act, 1963, which marks a considerable step forward in penology; though I cannot say that the approval extends to the way in which the Act has been drafted, for it seems to me too full of unnecessary little provision^.^^ There is a new consolidation of the Factories and Shops Act (the Factories and Shops Act, 1963) but this I have barely skimmed; there is also a new consolidation of the Native Welfare Act (the Native Welfare Act, 1963). Such consolidations are very welcome from the point of view of all who have to handle the legislation in question. If only it were possible to consolidate (and, to borrow Lord Gardiner's phrase, modernize) that patchwork monstrosity the Workers' Compensation Act!

Two final comments on 1964 legislation. First, the Damage by Aircraft Act, 1964; a short Act, following those passed by Great Britain in 1949;73 New Zealand in 1948;74 New South Wales in 1952 ;75 Victoria in 1953;76 and Tasmania in 1963.77 Section 4 takes away any action in respect of trespass or nuisance caused by the flight of an aircraft over any property at a reasonable height, having regard to the wind, the weather, or other circumstance, or the ordinary incidents of such a flight, as long as the Air Navigation Regulations are complied with; but section 5 makes the owner of an aircraft (or, if it has been chartered for a period of more than fourteen days, the charterer) strictly liable78 for material loss or damage caused to any person or property on land or water by the aircraft, by a person in it, or by an article, animal or person falling from it, while it is in flight, taking off, or landing, unless the loss or damage was caused or contributed to by

72 Many of these apparently result from copying the Victorian legislation. 73 T h e Civil Aviation Act 1949, sec. 40. 74 The Civil Aviation Act 1948, sec. 5. 75 The Damage by Aircraft Act 1952. 76 The Wrongs (Damage by Aircraft) Act 1953 (now Part V of the Wrongs

Act 1958). 77 The Damage by Aircraft Act 1963. 78 "[Dlamages . . . are recoverable from the owner of the aircraft without proof

of negligence, or intention, or other cause of action, as if the loss or damage had been caused by the wilful act, neglect or default of the owner." (Sec. 5 (1 ) ) . The final words of this provision appear to he surplus; i t is not easy to see that they add anything to the subsection, and so far they have never been invoked in any reported case.

the negligence of the person by whom it was suffered.79 And second and finally (an Act which came across my table only a day or two before I came to the end of this paper) the Land Agents Act Amend- ment Act, 1964. I choose this not for its substantive provisions (which, in so far as they tighten up the control which may be exercised over land agents, are, I would judge, wholly to be commended), but for a machinery provision which is inserted into the principal Act by section 20. The principal Act creates a number of specific offences, and there is power to make regulations and (by section 22(b) of the amending Act) to impose penalties not exceeding fifty pounds for their breach. The Act also imposes duties on land agents (e.g. , under section 15, to ascertain that the vendor has paid all rates, taxes and outgoings, and that they have been apportioned) and on various persons in official positions ranging from the clerk of the Court of Petty Sessions (section 4 (2a) ) through the Under-Treasurer (section 9 ( 5 ) ) to the Governor (section 14A ( 1 ) ) . Section 20 inserts into the Act the following new section 15K:

(1) A person who ( a ) does that which by or unders0 this Act he is forbidden

to do; (b) does not do that which by or under this Act he is re-

quired to do; or (c) otherwises1 contravenes or fails to comply withs2 any

provision of this Act, is guilty of an offence under this Act.

(2) A person who is guilty of an offence against this Act is liable on conviction to a penalty or punishment not exceeding the penalty or punishment expressly provided as the penalty or

79 If the person injured has been guilty of contributory negligence, however slight, he loses his remedy, even if the owner of the aircraft has himself been negligent, unless he retains his right to sue in negligence at common law. The Act does not appear to have taken this way; but the point has not yet been decided.

80 "By or under" would seem to be intended to cover also the case of regulations under the Act forbidding a particular act; but what of sec. 4 of the Interpretation Act, 1918, S.V. "this Act."?

81 To borrow an expression from the vocabulary of the equity practitioner, how otherwise?

82 Is there a difference between contravening and failing to comply with? See Driedger's commerlt (reproduced in the text) on the Canadian legislation referred to in note 14 supra.

83 The first phrase appears to me to use 36 words and occupy four lines of type to say nothing at all, or at any rate, nothing that is not painfully obvious.

punishment for the offence,83 or if a penalty or punishment is not so provided, to a penalty, not exceeding fifty pounds.

Literally, of course, this applies to the officials above-mentioned. Was it intended to?84 In any case, was it necessary (except to plug up loopholes which should have been specifically plugged up, either in the amending Act or by regulations) ? Finally, could it not have been more concisely expressed?

E. K. BRAYBROOKE."

84 Had this been a common form provision in all legislation overlooking, for a moment, the effect of sec. 177 of the Criminal Code, it might have given a new turn to Tonkin v. Brand, El9621 West. Aust. R. 2, and would have provided a weapon in the more recent controversy concerning the failure of the Government to appoint members to the Wheat Products Prices Committee under the Wheat Products (Prices Fixation) Act 1938.

sqme recent developments in statute law

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