Principles

Smith v R [2022] SASCA 48

Statutes are read not to breach fundamental rights and freedoms, absent clear words⁸.  This protects against ‘inadvertent and collateral’ contraventions⁹. The boundaries here are ever being tested¹⁰.

In this roadside licence check case¹¹, it was accepted (at [28-29]) there is a common law right to go …

LCM Funding v Stanwell [2022] FCAFC 103

Anderson J (at [79]) provides a statement of principle at the very heart of our ‘modern approach’ – ‘Consideration of purpose in statutory interpretation is not optional: s 15AA of the Acts Interpretation Act 1901’¹².  It was a ‘clear error’ of an earlier court to forego a purposive approach to a …

Hurley v Collector of Customs [2022] FCAFC 92

Imported alcohol went into home consumption under a permission allowing deferral of duty.  When duty went unpaid, payment demands were served³.  It was conceded H had ‘possession, custody or control’ of the goods, & they were ‘subject to customs control’.

The issue was whether he had failed ‘to keep the …

NSW v Kaiser [2022] NSWCA 86

This case is about whether a prisoner convicted of manslaughter was a ‘supervised offender’ against whom an ‘extended supervision order’ could be made⁶.  He said this would restrict his rights contrary to the ‘principle of legality’, which meant the power to make the order should be construed strictly⁷.

The court …

Hill v Zuda Pty Ltd [2022] HCA 21

In this case (at [25]), 7 judges of the High Court confirmed that an ‘intermediate appellate court should not depart from seriously considered dicta of a majority of this Court’⁹ – ‘dicta’ are statements which are not part of the reasons for a decision.

Leaving aside the uncertain boundary between ‘considered’ …

BSA v Ventia Australia [2022] NSWCA 82

Ventia subcontracted provision of social housing services to BSA under an arrangement which said  each work order was a separate contract.  BSA made a claim of 5 work orders which Ventia rejected as violating the ‘one contract rule’ in the legislation¹³.

The court said it was ‘strongly arguable’ there was no …

Azizi v DPP [2022] VSCA 71

A and O jointly owned a house for which O provided the whole purchase price.  O was charged with drug offences and a restraining order placed on the house.  O was convicted.  A argued her interest should be excluded from confiscation as she acquired it from O ‘for sufficient consideration’⁵.  This was …

Krajcar [2022] VSC 173 and Kildair [2022] VSC 251

Two Victorian cases make key points on remedial and beneficial legislation.  In the first, Croft J (at [39-41]) notes that, while remedial laws ‘should be given a beneficial construction’⁹, this does not allow a court ‘to transcend express words … or to disregard the fundamental structure and approach of …

Piastrino v Seascape Constructions [2022] VSC 202

It is taken as read that statutory definitions are to be inserted into the substantive provision before interpretation is applied¹².  To do otherwise ‘invites error’.  Delany J (at [68]) makes the important extra point that the substantive provision expanded by incorporation of the definition also needs to be read in context …

Twin Rivers Developments v FCT [2022] AATA 887

This decision makes an important point about characterisation.  The issue was whether payments to the director of a development entity and his wife were ‘wages’ giving rise to a ‘cash flow boost’ entitlement¹⁴.  The director gave evidence they were wages and that he and his wife were employees.

However, as …