Principles

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 …

Koundouris v Owners Unit Plan [2017] ACTCA 36

Planning laws commonly impose warranties for work quality on builders.  It was argued that  explanatory statements with the Act meant a builder had to be party to the sale contract for warranties to apply⁶.  Here there was an interposed entity. 

The appeal court said (at [41]) the explanatory statements…

Joseph v Worthington [2017] VSC 501

A cardinal rule of interpretation has always been to give effect to legislative intent⁷.  This case (at [31]) reminds us that discovering intention is ‘an objective process ascertained by interpreting the statute’. 

It is not any subjective intention of the legislature which is relevant, but rather the ‘objective meaning’ of the provisions…

Ghamrawi v R [2017] NSWCCA 195

Constructional choice is one thing, but statutory words, even when read in their widest context, only stretch so far.  Ghamrawi was convicted of ‘break and enter’ to commit assault¹².  He had permission to enter, however, and used no trick or threat. 

Law reform elsewhere had extended the meaning of ‘break’, but the …

Oreb v ASIC (No 2) [2017] FCAFC 49

The court (at [54]) referred to the ‘massive and over complex verbiage’ of the 2500 page Corporations Act, where professionals and judges ‘must navigate tortuous, mind-numbingly detailed, cascading provisions’.  These ‘telephone books’ enacted ‘at huge cost to the community’¹⁴ raise the need for more principles-based drafting, the court said. 

This …