Principles

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 …

Lewis v Sergeant Riley [2017] NSWCA 272

What if 2 Acts provide separate rights of appeal from the same proceedings?  In this case: one to the District Court, one to the Supreme Court.  The answer, said Basten JA (at [5, 21]), is not to assume inconsistency, but instead to try and give each provision an operation consistent with its terms.  …

FCT v Hacon Pty Ltd [2017] FCAFC 181

This case confirms that the ATO can decline to make a private ruling where it ‘would depend on which assumptions were made about a future event’¹¹.  One argument rejected (at [21-27]), however, was that provisions about making private rulings and applying for them should ‘be read as a composite’¹²…

Dinov v Allianz Australia [2017] NSWCA 270

This case (at [65-67]) tells us to construe the text of the law, not language ‘used in the second reading speech or in some explanatory memorandum.’  Statements in explanatory materials about intention ‘cannot overcome the need to carefully consider the words of the statute to ascertain its meaning.⁷’

In this case, …

NW Melbourne Recycling v CSR [2017] VSC 647

In this land tax refund case, it was said (at 41]) that the provisions in question were the ‘alpha and omega of the judicial task of statutory construction’⁸.  The phrase ‘alpha and omega’ has biblical overtones⁹, but in this context means no more than ‘the beginning and the …

Keris Pty Ltd v DFCT [2017] FCAFC 164

This security deposit case illustrates how examples in legislation can impact on interpretation.  An example said the Commissioner could require additional security in certain cases.  The court observed (at [28]) that the example was consistent with the forward-looking aspect of the power.

Section 15AD¹² says that an example is not exhaustive …

Tomvald v Toll Transport [2017] FCA 1208

Although industrial agreements are generally to be construed with a degree of latitude or generosity, a court is not free to read into them preconceived notions of fairness.  Nor, said Flick J (at [37-38]), are awards to be read ‘in a vacuum divorced from industrial realities’¹⁵.  Context is important.

The issue …