Principles

Lazarus v ICAC [2017] NSWCA 37

Special care needs to be taken in stating what a case about statutory interpretation is authority for – see Episode 9.  This case (at [87]) says that ‘every word of every judgment’ must be read in its context¹⁰. 

The problem in Lazarus was that too much had been made of what had …

FCT v Jayasinghe [2017] HCA 26

‘No one has ever made an acontextual statement’¹¹ … and neither does parliament!  Context is always important¹².  In this case, the issue was the meaning of ‘holds an office in an international organisation’ in a tax exemption.  The word ‘office’ (at [31]) ‘must not be read in isolation; it must be …

DPP v Acme Storage Pty Ltd [2017] VSCA 90

An issue in this case was the meaning of ‘detriment’ in an anti-discrimination provision – ordinary or technical legal meaning?  The court (at [65-83]) reviewed cases on how ordinary words are to be approached.  Absent contrary indicators, ordinary words in a statute take their ordinary meaning according to ‘logic and common …

ABCC v Powell [2017] FCAFC 89

The mischief rule is an ancient precursor to the purposive approach we apply today in selecting between constructional choices⁷.  What parliament was seeking to remedy is part of the context. 

What happens, however, when the words chosen go beyond mere remediation of the mischief?  This case (at [46-47]) tells us that general …

Tilley v Children’s Guardian [2017] NSWCA 174

Often it’s the simple things that help us when trying to figure out what a provision means.  This case (at [54]) takes us back to the core proposition that ‘statutes are to be read as a whole’¹¹.  To do otherwise only invites the kind of narrowness which the modern purposive approach …

Raptis v City of Melbourne [2017] VSC 247

Episode 19 makes the point that the degree of connection required by phrases like this one depends on purpose and context.  This case (at [43-52]) gives an example.  Raptis ran the Blu-Nite Café from leased premises.  He argued that illegal work by the lessor voided the lease, and he demanded all his …

Justice Susan Glazebrook (2015) article

‘Purpose is king (or is it?)’ – this is the question posed by Glazebrook J of New Zealand in a recent article¹.  After referring to the ‘modern purposive approach’², the judge says that (A) ‘purpose is there to help ascertain the meaning of text and not to override or dominate it’, …

Greater Shepparton CC v Clarke [2017] VSCA 107

Ejusdem generis⁴ (‘of the same kind’) is an old rule limiting general words, like ‘other’, by reference to some common feature (genus) – for example, ‘railway, road, pipeline or other facility’ is confined to facilities on or through which goods move⁵. 

Clarke (at [67-69]) notes some limitations however – …

Aubrey v R [2017] HCA 18

The traditional rule says that doubt in penal provisions is resolved in favour of the accused.  However, Pearce & Geddes (at [9.8]) call this a ‘somewhat naive approach’ and, as far back as 1976, it was described as ‘one of last resort’⁹. 

The true position is more nuanced, with penal consequences being …

LM Investment Management v EY [2017] QSC 73

This case (at [118]) refers to a common law rule that, where a repeal is followed by a re-enactment in substantially the same terms, the new provision ‘may be construed to apply retrospectively’¹¹. 

This rule is essentially remedial in nature.  It protects the validity of things done under repealed provisions …