Kousis v Inner West Council [2022] NSWLEC 1611
The council gave consent in the 1990s for a gate at the rear of an inner-city property on condition that a further application be made for vehicular access. No application was made, but the new owners said the gate was lawfully used for this purpose and there was implied consent (via council …
Monash University v EBT [2022] VSC 651
Episode 90 says one issue with ‘always speaking’ is how it may apply in any particular situation. This case, about whether an electronic-only file is a ‘document’ for FOI purposes13, illustrates this.
Cavanough J (at [5]) held that a thing is a ‘document’ if it is a record of information ‘regardless …
Boulos v Warrumbungle SC [2022] NSWSC 1368
Whatever ‘person’ means in any legislation is very much context-dependent. In this case, the issue was whether the director of a development company was a ‘person’ who carries out construction and by reason of that status had a duty to exercise reasonable care to avoid economic loss caused by certain defects7.…
Edelman J Implications [2022] Spigelman Oration
In his Spigelman Oration, Edelman J stresses that interpretation involves a ‘single process’, not a two-step one. This derives from statements in CIC Insurance (and other cases) that context and purpose are to be considered at the same time as the text.
The judge says (at 9) that it is ‘emphatically, not a …
Warburton v VicForests (No 5) [2022] VSC 633
The traditional approach to delegated legislation – taken by Garde J (at [267-268]) – is that, being less carefully drafted and directed at ‘practical people’, legislation of this kind is to be given some latitude in its interpretation8. Others say there is no principle requiring laxity’9. Are these …
GL v R [2022] NSWCCA 202
One issue was the basis on which the ‘standard non-parole period’ (SNPP) for child sex offences was to be determined. Sentencing must accord with ‘patterns and practices at the time of sentencing’, but the SNPP is that period ‘(if any) that applied at the time of the offence’12. Transitional provisions, however, appeared …
R v Wiggins (No 7) [2022] NSWSC 1249
W was charged with murder and another offence. He had priors for violence plus a long-term association with bikie gangs. In dispute was whether s 110(3) of the Evidence Act 1995, which allows character evidence to be led ‘in a particular respect’ without putting general character into issue, prevented him leading …
BBlood Enterprises v FCT [2022] FCA 1112
In this share buy-back case, Thawley J (at [119]) said the idea that the meaning of a statutory definition cannot be controlled by the term defined8 ‘is not an inflexible rule’ of interpretation9. The issue was whether the word ‘reimbursement’ as part of the term defined controlled or limited the …
DJ v DPP (WA) [2022] WASC 303
This case raised what are ‘special circumstances’ in an application to disregard young offender convictions11. Smith J (at [58-63]) looked at other statutory contexts, of which there are many, where the same expression is used. These confirmed that the subject case must be ‘different in kind’.
An important point of general …
Kelly v CFMMEU [2022] FCAFC 130
An application for a secret ballot was made to determine if a division of the union might become a separate organisation12. One issue was whether the division was a ‘separately identifiable constituent part’ of an amalgamated organisation under a statutory definition. The union said general words in the definition should be read …
