Principles

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  It protects the validity of things done under repealed provisions …

Commissioner v CLP Power HK [2017] HKCFA 18

It’s not every day that a Hong Kong case says something about our tax laws³.  This court (at [35]) says that the principles of interpretation apply just as much to tax laws as to other statutes.  Kirby J in our High Court is quoted for 2 propositions.  First, it is …

Re Amerind Pty Ltd [2017] VSC 127

Precedent compels consistency between courts in the same system.  Courts in different systems (and co-ordinate courts in the same system) are not strictly bound by decisions of the other.  But they are expected to be consistent unless convinced the other is ‘plainly wrong’⁶.  This case (at [293]) underlines the public interest…

Ryde v PIA (No 4) [2017] NSWSC 436

This case (at [93]) re-works themes in Episode 4.  Regs usually cannot ‘be taken into account’ when interpreting the Act, but an exception is where the regs and statute ‘form part of a legislative scheme’ (as here).  Ticking the ‘scheme’ box, however, provokes further questions – (A) how are the regs to …

Lockwood v Ecoliv Buildings [2017] VSC 109

Episodes 1 & 7 deal with when practical outcomes support one construction over another.  This case (at [96-97]) quotes Project Blue Sky, then observes that courts ‘frequently [refer] to the consequences of competing statutory interpretations to determine which … best suits the purpose of an Act’.

Zammit J said that ‘interpretation by …