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 …
Oreb v ASIC (No 2) [2017] FCAFC 49
Mere inconvenience of result is not enough to force interpretation6 – this is basic. ASIC can disqualify officers within 12 months of ceasing their duties, if the company ‘was wound up’7. Does winding up need to be complete? If ‘yes’, it would prejudice ASIC powers and go beyond mere …
4nature v Centennial Springvale [2017] NSWCA 191
Episode 13 mentioned court comments that delegated legislation, being ‘less carefully drafted’, is to be ‘less keenly scrutinised’. Not everyone agrees8. In 4nature (at [45]), an appeal judge has now denied that ‘there is some general principle requiring laxity or flexibility in construing delegated legislation, or statutory instruments generally’.
The correct …
CCSR v Smeaton Grange [2017] NSWCA 184
In 1952, it was said it was ‘beyond the power of the gods … to alter the past’9. This case (at [5-15]) applies that sentiment in the context of disclaimer by the object of a discretionary trust. Private parties may agree that legal relations between them began from some date in …
Hunter’s Hill Council v Minister [2017] NSWCA 188
Basten JA in this council amalgamation case (at [76-83]) recalls the limits of using dictionaries. Resort to them is ‘rarely favoured’11, he said, though not for ‘some dismissive or precious attitude’. It is more because they concern common usage, which may not be reflected in the statutory context. They may …
Power Rental v Forge Group [2017] NSWCA 8
This case (at [83-91]) tells you almost everything you need to know about the use of extrinsic materials4. They may be consulted to reveal legislative purpose. But what about using them to determine meaning? Purpose and meaning are ‘inextricably woven’5.
Section 15AB(1) of the Acts Interpretation Act makes …
DM & Longbow v Willoughby [2017] NSWLEC 1358
Judges often say things about statutory definitions. That they are no more than an ‘aid to construction’ is a common observation. This case (at [33]) reinforces the point that the ‘meaning of a definition turns on the context in which it appears, considered as a whole’8. This is consistent with …
