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Accident Compensation Cases

BLACKWELL v D L BRODRIBB LTD (HC, 03/04/89)

Judgment Text

Judgment of Doogue J 
Doogue J
This is an appeal by way of case stated. The appeal gives rise to what, from the point of view of the Appellant, is an important point as to whether or not s 119(2)(a) of the Accident Compensation Act 1982 (afterwards referred to as "the Act") creates any offence in respect of the obligations of employers under s 43 of the same Act. The District Court Judge has held that an information alleging that the Respondent failed to furnish a statement for the purposes of the Act, in contravention of s 119(2)(a) of the Act, does not specify an offence, as the obligation under s 43(1) of the Act is to deliver a statement and not to furnish a statement. The case stated requires a determination as to whether or not the decision of the District Court Judge was correct in law. 
It is unfortunate that the point now before the Court was not argued before the District Court Judge and has not been the subject matter of argument before this Court. In the District Court the Respondent acknowledged that it had failed to furnish a statement and did not take the point relied upon by the District Court in his judgment. In this Court the Respondent has not been represented. 
To put the point into context it is necessary to refer to sections of the Act other than s 43 and s 119. It is also necessary to refer to the provisions of the Income Tax Act 1976 and to the predecessor to the present Accident Compensation Act. It is simplest if I approach the matter historically. 
The following provisions of the Accident Compensation Act 1972, now repealed, are of some relevance:— 
Section 76 - 
“(1)
In this section and in sections 77 to 80 of this Act, unless the context otherwise requires, — "Deliver"— 
(a)
In any case where a levy is to be paid to the Commissioner of Inland Revenue pursuant to section 75(1) of this Act, means deliver to the Commissioner of Inland Revenue, unless the levy is paid to the Post Office pursuant to section 75(2) of this Act, in which latter case it means deliver to the Post Office; and 
(b)
In any case where the Commission has appointed an agent or agents other than the Commissioner of Inland Revenue to collect a levy, means deliver to an agent so appointed; and 
(c)
In any case where the Commission makes arrangement for payment to it of a levy, means deliver to the Commission: .... 
(2)
Any statement required by any of the provisions of this section and sections 77 to 80 of this Act to be delivered by an employer or a self-employed person shall be in the appropriate form approved by the Commission .... 
(3)
Subject to the provisions of this Act and any, regulations made under this Act, statements shall be delivered by employers in accordance with subsections (1) and (2) of section 77 of this Act .... ”
Section 77 imposed certain obligations upon employers in respect of statements and, in particular, required the statements to be DELIVERED in certain circumstances. 
Section 180(2) provided that every person commits an offence who: - 
“(a)
Refuses or fails to furnish any statement or information for the purposes of this Act as and when required by or under this Act or the regulations made thereunder; or 
(b)
Wilfully or recklessly makes and delivers to the Commission or any agent of the Commission under sections 76 to 80 of this Act any false statement .... ”
The Accident Compensation Act 1982 contains the following relevant provisions: - 
Section 42 - 
“(1)
Subject to this Act, statements of earnings shall be in such form and contain such particulars and shall be delivered by such time or times as the Corporation shall from time to time determine. 
(2)
A statement purporting to be delivered by or on behalf of any employer or self-employed person shall, for all purposes, be deemed to have been furnished by that employer or person or by his authority until the contrary is proved. ”
Section 43 - 
“(1)
Every employer who is required to furnish, pursuant to and for the purposes of section 353(1)(e) of the Income Tax Act 1976, a reconciliation statement as defined in that Act shall, within the time in which he is required to furnish that reconciliation statement, deliver a statement of the amount of earnings as employees that have been paid by him in the year to which that reconciliation statement relates and at the same time pay in relation to every such statement a levy calculated in accordance with subsection (3) of this section. 
(2)
Every employer who, on the disposal or cessation of his business, is required to furnish, pursuant to and for the purposes of section 353(1) of the Income Tax Act 1976, a reconciliation statement as defined in that Act shall— 
(a)
Within the time in which he is required to furnish that reconciliation statement, deliver a statement of the amount of earnings as employees that have been paid or have become payable by him during the period commencing on the 1st day of April last preceding the date on which he so ceases to be an employer and ending at the time at which he so ceases; .... 
(3)
.... 
(4)
Notwithstanding anything in this section, it shall not be necessary for an employer to furnish a statement of the amount of earnings as employees that have been paid by him in the preceding year if — .... 
(5)
.... ”
There are similar provisions to s 43 in s 44 which relate to self-employed persons. 
Section 119(2) provides that every person commits an offence and is liable on summary conviction who: - 
“(a)
Refuses or fails to furnish any statement or information for the purposes of this Act as and when required by or under this Act or the regulations made thereunder and, if the offence is a continuing one, to a further fine not exceeding $25 for every day during which the offence continues; or 
(b)
Wilfully or recklessly makes and delivers to the Corporation or any agent of the Corporation any false statement, or gives any false information to, or misleads or attempts to mislead, the Corporation or any agent, committee, officer, or employee of the Corporation in relation to any matter or thing affecting his own or any other person's liability to pay any levy, or right to claim rehabilitation assistance or compensation, under this Act; or 
(c)
.... ”
Section 353(1)(e) of the Income Tax Act 1976 referred to in s 43(1) of the Accident Compensation Act 1982 reads: - 
“Every employer who makes tax deductions from source deduction payments made to employees shall— 
(e)
Not later than the 15th day of May in each year (except in cases to which subsection (2) of this section applies), deliver to the Commissioner a reconciliation statement signed by the employer, being a certificate in a form authorised by the Commissioner and showing the total amount of all tax deductions paid to the Commissioner by the employer in respect of source deduction payments made in the preceding year, and the total amount of all tax deductions shown in tax deduction certificates delivered to employees in respect of those source deduction payments, together with an explanation if the 2 totals do not agree, and, except where the Commissioner has given his consent to the provision of information in accordance with section 354 of this Act, accompanied by signed copies of all those tax deduction certificates, by all tax code declarations and tax code certificates delivered to him in the preceding year, and by all notices cancelling relevant deductions given to him in that year under section 344(10) of this Act: ”
The District Court Judge in his decision, having referred to s 43(1) and s 119 of the Accident Compensation Act 1982, addressed himself to whether a failure to deliver a statement of earnings by 31 May 1988 amounted to the offence of failing to furnish a statement required by the Act. The District Court judge said: - 
“Prima facie that would seem to be the case in that furnish and deliver appear to be synonyms. Indeed the definitions in the Shorter Oxford English Dictionary confirm such a feeling. However, s 43 appears to contrast 'furnish' and 'deliver'. It refers to the obligation to FURNISH a reconciliation statement under the income Tax Act 1976 and requires the employer to DELIVER a statement of earnings within the time the employer is required to FURNISH the reconciliation statement. The deliberate choice of different words must mean that the Legislature ascribed different meanings to them. I find it difficult to say what the meanings are but fortunately am not required to do so. The significant factor is that s 119(2)(a) creates the offence of failing to furnish whereas the obligation of s 43 is to deliver. Section 43 could just have easily have said - 
... shall within the time in which he is required to furnish that reconciliation statement furnish a statement of the amount of earnings ... 
The failure to do so must in my view be taken when s 119(2)(a) is read as a decision not to make the failure to deliver the statement of earnings an offence under the paragraph. I should say that I have also considered s 43(4) which relates to the domestic earnings and the obligation of an employer to 'furnish' a statement of earnings. There is no apparent consistency between the obligations created by the two sub-sections. If one were permitted one could conclude that there was an error in drafting but that is one conclusion which the Courts may not reach. In any event in which sub-section does the error lie, if there is one. One would be justified in concluding there was a deliberate contrast between 'furnish' and 'deliver' in subsection (1) and the error was in subsection (4). 
For the reasons set out I conclude that the information does not specify any offence relevant to the factual matrix let alone a continuing offence. ”
The District Court Judge then went on to deal with a separate issue which is not in dispute as to whether or not a continuing offence was created in the present case. 
It is submitted on behalf of the Appellant that the District Court Judge is wrong in his reasoning in that either the word "furnish" is synonymous with the word "deliver" or, at the very least, the word "furnish" encompasses the word "deliver". 
Mr Gudsell for the Appellant put his submissions in the following way: - 
He submitted that s 43(1) of the Act had to be read in the context of s 353(1)(e) of the Income Tax Act 1976. The latter subsection referred to "deliver", whereas the opening words of s 43(1) of the Act referred to the requirement to "furnish". It was accordingly submitted that the very words of the section showed that the two words were being used synonymously. 
It was further submitted that the provisions of s 43(4) of the Act which refers to the furnishing of a statement was only consistent with that word "furnish" being used synonymously with the word "deliver" having regard to the obligation under s 43(1) to "deliver". It was accordingly submitted that when s 43 was read alongside s 119(2) of the Act, the word "furnish" had to be read as synonymous with the word "deliver". It was further submitted in support of this primary submission that the provisions of s 43 had to be seen in the context of the part of the Act in which it finds itself. It submitted that when s 42 of the Act was looked at, then s 42(1) referred to delivery of statements, as did subs (2), but subs (2) used not only the word "deliver" but went on to provide that a statement "purporting to be delivered", "shall, for all purposes, be deemed to have been furnished" It was accordingly submitted that, having regard to the context the Legislature had used the words "deliver" and "furnish" synonymously, and that no different meanings could be intended. 
It was further submitted, with reference to the 1972 Act, that s 76 of that Act had specifically defined the word "deliver". Section 180(2) of that Act had provided for the same offence of failing to "furnish" as s 119(2) of the present Act. 
I interpolate that s 180(2)(a) of the 1972 Act and s 119(2)(a) of the present Act, can usefully be contrasted with the provisions of subs (b) of both those sections as distinguishing between refusing or failing "to furnish any statement" and "wilfully or recklessly makes and delivers ... any false statement" 
It was further submitted with reference to the decision of Aikman v White, (1986) Simon's Tax Cases, 1, 5, a decision of the Scottish High Court of Justiciary that the word "furnish", in a somewhat different context, may extend beyond the word "delivery". 
The word "furnish" is defined in the Shorter Oxford Dictionary 3rd ed, vol 1, pp 819-820, as including:- 
“To provide or supply with ”
and 
“To supply with what is necessary. ”
In the same volume the word "deliver" is defined at p 513 as including: - 
“To hand over to another's possession or keeping ”
In the context of the present business world it is apparent that there would be methods of furnishing information other than "delivery" such as the use of telex or facsimile machines, and there may be other methods of furnishing information, for example, orally, which do not involve delivery. 
For myself, therefore, I would have seen the word "furnish" as being a word of more general application than the word "deliver", if the ordinary meaning is to be given to the words in the sections of the Act. 
I bear in mind s 5(j) of the Acts Interpretation Act 1924 provides: - 
“Every Act, and every provision or enactment thereof, shall be deemed remedial, whether its immediate purport is to direct the doing of anything Parliament deems to be for the public good, or to prevent or punish the doing of anything it deems contrary to the public good, and shall accordingly receive such fair, large, and liberal construction and interpretation, as will best ensure the attainment of the object of the Act and of such provision or enactment according to its true intent, meaning, and spirit: ”
That section, in its plain words, applies to situations of a penal nature as well as other situations. Such textbooks as Maxwell on the Interpretation of Statutes, 8th ed, 230 ff, Craies on Statute Law, 7th ed, 529 ff, Cross, Statutory Interpretation, 149 ff, make clear that the distinction between a strict and a liberal construction, with particular reference to the rule of strict construction in respect of penal acts, has almost or totally disappeared and that statutes, whether penal or not, are now construed by substantially the same rules. 
When one looks at the provisions of s 43(1) of the Act, it is apparent that there is a duty placed upon an employer to deliver a statement. When one looks at the provisions of s 119(2) of the Act, it is apparent that an offence is created if someone "refuses or fails to furnish any statement" or "wilfully or recklessly makes and delivers ... any false statement". 
The District Court Judge took the view, for the reasons already set out above, that the requirement to deliver in terms of s 43(1) of the Act was not synonymous with the offence created under s 119(2)(a) of the Act to "furnish" and that, accordingly, no offence was shown on the face of the information. 
With all respect to the District Court Judge, I find that I cannot agree with the interpretation made by him of the statute. It appears to me that regardless of whether or not the word "deliver" is viewed as synonymous with the word "furnish" or viewed as encompassing less than the word "furnish", the intention of the Legislature is clear, namely that a failure to furnish a statement must encompass a failure to deliver a statement as, however the words are defined, the word "deliver" could not have any wider meaning than the word "furnish". When the Act is read in the context of the sections set out above and in the context of the provisions of the Income Tax Act 1976 incorporated in s 43(1), and when it is read against the background of the 1972 Act, it seems to me apparent that whether the words "deliver" and "furnish" are used either interchangeably or with a gradation in meaning an offence is still shown on the face of the information because if there is a failure to "deliver" then there must be a failure to "furnish". 
The District Court Judge has approached the matter on the basis that the Legislature must have intended the words "deliver" and "furnish" to have a different meaning because of the different use of those two words in the different parts of the Act. With all respect to his reasoning, in my view if the words are intended to have a different meaning, which must at the very least be exceedingly doubtful, it can only be intended that the word "furnish" has the wider common meaning already referred to above than the word "deliver". I regret having to take a different view from the experienced District Court Judge, with his usual well reasoned basis for judgment, but in this case I feel that I must do so for the reasons already given. If, as I see it, the statute is to be interpreted in accordance with the provisions of s 5(j) of the Acts Interpretation Act 1924, and the general law relating to statutory interpretation, then the word "furnish" in s 119(2)(a) of the Act is clear and is either synonymous with or incorporates within it the requirement to "deliver" under s 43(1) of the Act and an offence is alleged in the information. 
The result must be that the matter is referred back to the District Court Judge for him to determine the matter upon the basis that the information does specify an offence. 

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