References: (1998) 194 CLR 355, [1998] HCA 28, (1998) 153 ALR 490, (1998) 72 ALJR 841, (1998) 8 Legal Rep 41
Links: Austlii
Coram: McHugh, Gummow, Kirby and Hayne JJ
(High Court of Australia) ‘In our opinion, the Court of Appeal of New South Wales was correct in Tasker v Fullwood in criticising the continued use of the ‘elusive distinction between directory and mandatory requirements’ and the division of directory acts into those which have substantially complied with a statutory command and those which have not They are classifications that have outlived their usefulness because they deflect attention from the real issue which is whether an act done in breach of the legislative provision is invalid. The classification of a statutory provision as mandatory or directory records a result which has been reached on other grounds. The classification is the end of the inquiry, not the beginning. That being so, a court, determining the validity of an act done in breach of a statutory provision, may easily focus on the wrong factors if it asks itself whether compliance with the provision is mandatory or directory and, if directory, whether there has been substantial compliance with the provision. A better test for determining the issue of validity is to ask whether it was a purpose of the legislation that an act done in breach of the provision should be invalid. This has been the preferred approach of courts in this country in recent years, particularly in New South Wales. In determining the question of purpose, regard must be had to ‘the language of the relevant provision and the scope and object of the whole statute.”
This case is cited by:
- Cited – Regina -v- Soneji and Bullen HL (Bailii, [2005] UKHL 49, House of Lords, Times 22-Jul-05, [2005] 3 WLR 303, [2006] 1 AC 340, [2006] 1 Cr App R(S) 79, [2006] Crim LR 167, [2005] 4 All ER 321, [2006] 2 Cr App R 20)
The defendants had had confiscation orders made against them. They had appealed on the basis that the orders were made more than six months after sentence. The prosecutor now appealed saying that the fact that the order were not timely did not . . - Cited – Ashton , Regina -v-; Regina -v- Draz; Regina -v- O’Reilly CACD (Bailii, [2006] EWCA Crim 794, Times 18-Apr-06, [2007] 1 WLR 181)
The court considered three appeals where there had been a procedural irregularity, and where the judge had taken some step to overcome that irregularity. In two cases the Crown Court judge had reconstituted himself as a district judge to correct a . . - Cited – North Somerset District Council -v- Honda Motor Europe Ltd and Others QBD (Bailii, [2010] EWHC 1505 (QB), [2010] RA 285)
The council claimed that the defendants were liable for business rates. The defendants said that the notices were defective in not having been served ‘as soon as practicable’, and further that they should not be enforced since the delay had created . . - Cited – TTM -v- London Borough of Hackney and Others CA (Bailii, [2011] EWCA Civ 4, [2011] HRLR 14, [2011] PTSR 1419, [2011] Med LR 38, [2011] 1 WLR 2873)
The claimant had been found to have been wrongfully detained under section 3. He appealed against rejection of his claim for judicial review and for damages. The court found that his detention was lawful until declared otherwise. He argued that the . . - Cited – Stockton-On-Tees Borough Council -v- Latif Admn (Bailii, [2009] EWHC 228 (Admin))
The council appealed against a decision that the crown court had jurisdiction to extend the time for appeal against refusal of a private hire vehicle licence.
Held: The court did not have the jurisdiction it used: ‘The terms of the section 300 . .