Episode 115

What has the High Court told us about interpretation in 2024?  Two things stand out.  First are the comments by Edelman J in Harvey on extrinsic materials1.  Second is the clarification in SkyCity of how we are to read statutory definitions2.  Several other cases emphasise basic themes – textcontextpurpose, coherence and objectivity3; …

Awareness of cases

Vicinity Funds v Commissioner [2024] VSC 658

This case is about duties payable on transfer of Myer sites in Melbourne.  Each site was subject to a 299 year lease, with rent of $1pa.  Duty was payable on the greater of consideration and unencumbered value7.  Were the leases an ‘encumbrance’?  Answer ‘no’. 

Parliament is generally presumed to be aware …

Meaning of ‘or’

Williams v Toyota Motor Corp [2024] HCA 38

The little word ‘or’ often causes problems.  Here, it was used between paragraphs in the definition of ‘affected person’ in manufacturer damage clauses. 

Usually ‘or’ is read disjunctively to produce discrete options to be met.  Jagot J (at [155]) confirmed that this is not always the case, and that ‘or’ may have …

Headings

FCT v Patrix Prestige [2024] FCAFC 148

Headings are taken into account in interpretation11, but their practical impact varies.  One issue in this case was the effect of the phrase ‘Changes of use’ in headings to luxury car tax adjustment provisions12

The key point made by the court (at [19]) was that headings are ‘often …

Meaning of ‘in relation to’

FCT v Esso Australia [2024] FCAFC 151

The meaning of phrases like ‘in relation to’ depends on context.  The issue in this case was whether fees paid to Esso under contract were ‘assessable tolling receipts’ for being ‘consideration receivable … in relation to the processing of … internal petroleum’14.

Context is determined by the text, purpose and history, …

Episode 114

The recent ‘ankle bracelet’ challenge in the High Court is an example of the ‘textcontextpurpose’ protocol in practice1.  At issue was the validity of punitive curfew restrictions on aliens awaiting deportation, enforced by an ‘electronic monitoring device affixed to the person’2.  This applied unless the Minister was satisfied it was not necessary ‘for the …

Statutory definitions

SkyCity Adelaide v Treasurer [2024] HCA 37

30 years ago, the High Court said it ‘would be quite circular to construe the words of a definition by reference to the term defined’5.  Other courts saw this as out-of-step with how we are to read statutes6

In SkyCity, the court said (at [32]) there is no …

Three principles

HBSY Pty Ltd v Lewis [2024] HCA 35

In this cross-vesting case, 3 key principles of our interpretation system are touched on – always speaking, statutory harmony and objective enquiry. 

On the first 2, Gageler CJ (at [53]) said that legislation is always speaking in the present.  Statutes must be construed as currently in force given parliament ‘intends its legislation …

Foreign statutes

X Corp v eSafety Commissioner [2024] FCA 1159

Whether X Corp (new owner) was subject to online safety penalties imposed on Twitter (old owner) depended on the status of X Corp and whether ‘liabilities’ under Nevada law included regulatory obligations10.  Wheelahan J first observed (at [134]) that ‘Australian courts know no foreign law’11.

Foreign law is …

Grammar

Qube Ports v CFMEU [2024] FCA 132

The issue in this fair work case was whether an enterprise agreement could be varied retroactively to remove ambiguity on application of an employer who was no longer ‘covered by the agreement’12

Wheelahan J (at [73]) said interpretation ‘requires more than matching up statutory text against pronouncements in books on grammar …