Principles

Procedural fairness

Raina v CIC Allianz Insurance [2021] NSWSC 13

Raina was injured when another driver ran into the back of his car.  He challenged medical review panel assessments on grounds which included denial of natural justice.  Campbell J (at [92]) rejected this, given Raina refused a further medical examination.

The judge (at [51-56]) describes how statutory powers are interpreted to require …

Guidelines and rulings

Antegra Pty Ltd v CCSR [2021] NSWSC 107

Payne JA (at [86-87]) held that the ordinary principles of interpretation apply to Treasurer guidelines, and that it was ‘to be construed according to its text and purpose as evident from the document itself in the context of the legislative scheme in which the guidelines are required to be applied’13.  …

Meaning of ‘includes’

Gamble v Kingborough Council [2020] TASFC 7

A coffee cart parked at a motel needed a permit if it involved a ‘use’ in relation to land.  Here ‘use … includes the manner of utilising land’, with ‘land’ defined to include buildings, structures and ‘any estate, interest, easement, servitude, privilege or right in or over land’5.  On being charged …

Interpretation code

Elliot v ACT Revenue [2020] ACAT 72

Keeping up with interpretation intel is not easy.  One thing is that judges are driven to restate settled principles, picking and choosing what suits, often with quotes, but just as often in their own words – judicial wheel reinvention, perhaps.  Might there be a better way, perhaps some kind of legislated code? 

There …

Effect of repeal

Voicu v Strata Plan No 1624 [2020] NSWCA 52

An apartment dispute commenced in the local court, but the appeal was to the district court.  Laws regulating district court costs were replaced by new legislation, but the old provisions continued to apply to proceedings commenced before 1 July 20159.  Which provisions applied to costs in the appeal?

Basten …

Dictionaries (again)

Will v Brighton [2020] NSWCA 355

This case on the meaning of ‘pest animals’11 exposes a difference of view about use of dictionaries12.  Bell JA (at [52]) said ‘care must be taken not to place too heavy reliance’ on them.  Dictionaries provide no guidance on context and are ‘rarely determinative’.  She would not fully ignore them, however, …

Double jeopardy

SafeWork NSW v BOC Limited [2020] NSWCA 306

BOC was acquitted of offences after installing gas lines to a hospital operating theatre.  Nitrous oxide lines were wrongly labelled as ‘oxygen’.  One baby died and another suffered brain damage.  SafeWork sought review of the acquittal after final orders were made.  BOC pleaded ‘double jeopardy’ – that is, they could not be …

Virtual judgments

Bay Street Appeal [2020] FCAFC 192

Allsop CJ (at [4]) cautions against so-called ‘virtual judgments’.  The same judge has written about why judicial work should not be done by ‘judge-bots’7.  But that is not what he is getting at in this instance.

What Allsop CJ is concerned about is treating court judgments literally ‘as if they were the …

Anomalous outcomes

N & M Martin Holdings v FCT [2020] FCA 1186

In this case, Steward J was asked to go against an earlier case about when capital gains arise ‘from’ a CGT event9  – he declined.  The taxpayer pointed to various ‘anomalous outcomes’ if the earlier case was followed.  Arguments like this are often framed at the outer limits …

Tax & general law

Carter v FCT [2020] FCAFC 150

Gummow J once singled out tax officers as needing to better understand the general law against which tax disputes often play out12.  This trusts case may illustrate the point.  It was argued that disclaimer of a present entitlement in a later year was ineffective.  In a payroll tax context, it had been …