Principles

Michael Brown PS v WSC [2020] NSWCA 137

Use and abuse of dictionaries is a regular topic for judicial comment¹².  This case involved planning consent given on the basis that the development (flats) ‘is compatible with the flood hazard of the land’¹³.  Was ‘is’ used here merely to indicate present compliance, or did it cover things …

Forrest v DPP [2020] NSWCA 162

The bedrock requirement to consider context in the widest sense and up-front includes an obligation to consult the legislative history of provisions.  Forrest was about stating cases on questions of law, an issue on which Leeming JA had ruled in an earlier decision. 

On reading Basten JA’s legislative history in the present case, however, …

Binsaris v Northern Territory [2020] HCA 22

When officers at the Don Dale Youth Detention Centre used tear gas on young detainees after a ‘serious disturbance’ causing property damage, the detainees sued for damages asserting these actions were in breach of legislation & unlawful¹.  All judges agreed.

One judge (at [25]) emphasised the principle that statutory authority to …

Australian Rail v Dollisson [2020] NSWCA 58

This case involved the meaning of ‘compensation’ in Victorian legislation⁴, and whether an old rule of linguistic logic⁵ could be applied to what Bell ACJ (at [47]) called a ‘patchwork statute’.  Modern statutes are often subject to patchwork amendment where there may be little debate and much compromise.

Rejecting the …

Pickett v Western Australia [2020] HCA 20

A man was stabbed to death when 8 males attacked him at a railway station.  The act of killing was likely done by a child, who was not responsible due to his age.  Accordingly, the rest argued they could not be charged.  Each of them was convicted of murder.

The issue was how …

AJ & PA McBride Ltd v FCT [2020] AATA 1909

The taxpayer bought a property with existing ‘fencing assets’.  A $2.74m deduction was claimed for capital expenditure incurred on ‘construction, manufacture, installation or acquisition’ of that fencing¹¹.  The AAT (at [73-77]) denied the deduction. 

Statutory purpose required ‘a fence coming into existence on the land and not just …

Burgess v Commonwealth [2020] FCA 670

When it is argued that a provision is constitutionally invalid⁴, a presumption of validity applies on the basis that parliament ‘did not intend to pass beyond constitutional bounds^’5 – see Episode 7.

This presumption, said Besanko J (at [96]), is not to be pushed beyond its ‘proper limits’.  Courts should not …

Meyrick v Home Affairs [2020] FCA 677

Statutes are generally read in line with Australia’s international obligations.  In this visa cancellation case⁸, however, the decision-maker failed to have regard to a convention to which Australia was party but parliament had not yet legislated for⁹.

Unenacted treaties may guide the common law¹⁰, but failing to …

Taylor v The Queen [2020] VSCA 50

This is a rare case where contrary intention rebuts the presumption that the singular includes the plural¹².  T was charged with trafficking in a ‘drug of dependence’¹³ – ‘anabolic or steroid agents’, which is a class of drugs rather than an individual drug.  The question was whether a class of …

Universal Property v BCC [2020] NSWCA 106

The old idea that parliament does not intend to contradict itself¹⁴ finds modern emphasis in the ‘principle of harmonious operation^’15.  Brought to attention in Project Blue Sky, this requires harmony to be sought for warring provisions within and between statutes of the same legislature.  Implied repeal only occurs where …