Hunter Quarries v Mexon [2017] NSWSC 1587
Adding words to fix minor glitches in legislation is part of purposive interpretation3, though it seldom succeeds in practice. The argument was that ‘permanent impairment’ excluded situations where death followed ‘shortly after injury4’. Schmidt J (at [89-101]) declined to ‘read in’ allegedly missing words of limitation, as preconditions were …
Law Society of NSW v Bouzanis [2017] NSWCA 330
Are client payments to solicitors on account of disbursements ‘trust money’ for legal practice purposes6? Yes, said the majority, despite the difficult terms of the statutory definition involved.
While definitions ‘should not readily be put aside’, this might be done ‘where context suggests that a different meaning should be …
Riverstone v Blacktown CC [2015] NSWLEC 137
We all know de minimis8, but how does it apply in practice? First, it is a principle of construction, not a rule of law. Second, its application always depends on text, purpose and context9. Third, it inevitably involves a substantial element of value judgment10.
In this case, …
R v PJ [2017] NSWCCA 290
It’s no secret that phrases like ‘in connection with’11 routinely raise interpretation problems because of their general nature and variability of operation12. They may cover a wide spectrum of relationships. The court in this case, like many others before it, exercised caution in approaching the phrase.
However, it went a step …
SZTAL v Minister [2017] HCA 34
Three High Court judges in SZTAL (at [14]) re-stated some of the fundamentals. Start with the text while ‘at the same time’ having regard to purpose and context4, the latter in its widest sense5. Ordinary meaning is important, but if purpose or context suggests another meaning which is inconsistent with …
Esso v Australian Workers’ Union [2017] HCA 54
In Esso (at [52]), another High Court majority said the ability to depart from ordinary meaning is limited to construing the provision in a way ‘which, despite its terms, it is plain that parliament intended it to have’. Courts cannot overcome unintended consequences of the intended operation by adopting a meaning that …
Bazzo v FCT [2017] FCAFC 139
This case (at [5]) stresses that contractual interpretation is an objective exercise, subjective beliefs etc being irrelevant. The meaning of terms ‘is to be determined by what a reasonable person would have understood them to mean’7. The language used, known surrounding circumstances and commercial objects all must be considered8.
In …
Cherry v Steele-Park [2017] NSWCA 295
In 2011, the High Court sternly told all courts to follow the old rule12 – but not many bowed. In Cherry (at [68-85]), Leeming JA explains (A) why surrounding circumstances have to be consulted before any finding of ambiguity can be made, and (B) why the High Court must be taken to agree…
Kemp v Medical Board of Australia [2017] VSC 691
When may a court overturn a longstanding decision on interpretation? There is a reluctance to do so unless the earlier decision is clearly wrong2. But, it is no part of the judicial role to perpetuate error, even where provisions have been re-enacted3. Decided cases also should not …
Kaczmarski v Legal Services Board [2017] VSC 690
The statute allowed Kaczmarski 7 days to appeal a notice posted on 1 May. He emailed his appeal at 7.43pm on 10 May. Did he lodge in time? A thing is ‘lodged’ if it is deposited in person (or electronically) and accepted, said the judge (at [32-36]). An email is ‘lodged’ when …
