Realestate.com.au v Hardingham [2022] HCA 39
R commissioned H to photograph properties for sale under an informal agreement. R later provided them to a sub-licensee for uploading to a subscription website. H sued R for breach of copyright.
In determining contractual terms, Kiefel CJ and Gageler J (at [15-17]) said the test is what reasonable people with knowledge of the …
Nuon [2022] FCAFC 197 & QCoal [2022] QCA 237
These appeal cases show the different meanings ‘includes’ may take in a statutory definition13. In Nuon (at [22]), it removed doubt that certain things fell within ‘imprisonment’ as ordinarily understood14. In QCoal (at [57]), it extended the ordinary meaning. This was confirmed by the fact that inclusions …
Lord Wilberforce once said the uncertainty of words was what made statutory interpretation ‘so exciting’. This must be one of the most super-nerdy statements in legal history. It was made at a symposium held prior to the enactment of s 15AB1. It reveals, however, two fundamental truths about the ‘modern method’ we are to apply. The first is …
Vicinity Funds Re Ltd v CSR [2022] VSCA 176
This case concerns whether a taxpayer could make serial requests to appeal an objection decision4. It shows that the remedial aspects of a provision will not necessarily resolve constructional choice.
It was accepted (at [71]) that the taxpayer argument was ‘open on the bare text’ and that the provision …
John Holland Pty Ltd v Wallis [2022] WASC 358
Was an inspector authorised to launch a prosecution for workplace offences? One issue was whether a particular statutory power6 covered this via the ‘impossibility maxim’ – Whenever anything is authorized … and it is found impossible to do that thing unless something else not authorized in express terms be also …
Kousis v Inner West Council [2022] NSWLEC 1611
The council gave consent in the 1990s for a gate at the rear of an inner-city property on condition that a further application be made for vehicular access. No application was made, but the new owners said the gate was lawfully used for this purpose and there was implied consent (via council …
Monash University v EBT [2022] VSC 651
Episode 90 says one issue with ‘always speaking’ is how it may apply in any particular situation. This case, about whether an electronic-only file is a ‘document’ for FOI purposes13, illustrates this.
Cavanough J (at [5]) held that a thing is a ‘document’ if it is a record of information ‘regardless …
That legislation is ‘always speaking’ in the present is a baseline assumption in our system of interpretation1. Some States have even legislated for it2. The core idea is that words take their current meaning and are not to be ‘locked in a statutory time capsule’3. One way this is described is that, while the …
Boulos v Warrumbungle SC [2022] NSWSC 1368
Whatever ‘person’ means in any legislation is very much context-dependent. In this case, the issue was whether the director of a development company was a ‘person’ who carries out construction and by reason of that status had a duty to exercise reasonable care to avoid economic loss caused by certain defects7.…
Edelman J Implications [2022] Spigelman Oration
In his Spigelman Oration, Edelman J stresses that interpretation involves a ‘single process’, not a two-step one. This derives from statements in CIC Insurance (and other cases) that context and purpose are to be considered at the same time as the text.
The judge says (at 9) that it is ‘emphatically, not a …
