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 …
Warburton v VicForests (No 5) [2022] VSC 633
The traditional approach to delegated legislation – taken by Garde J (at [267-268]) – is that, being less carefully drafted and directed at ‘practical people’, legislation of this kind is to be given some latitude in its interpretation8. Others say there is no principle requiring laxity’9. Are these …
GL v R [2022] NSWCCA 202
One issue was the basis on which the ‘standard non-parole period’ (SNPP) for child sex offences was to be determined. Sentencing must accord with ‘patterns and practices at the time of sentencing’, but the SNPP is that period ‘(if any) that applied at the time of the offence’12. Transitional provisions, however, appeared …
Two recent High Court cases probe difficult corners of interpretation law. The first1 explores presumptions both at common law and under statute2 against the extraterritorial operation of domestic statutes3. Kiefel CJ and Gageler J (at [34]) said these presumptions had no application in the circumstances – that is, they did not exclude non-residents from being a …
R v Wiggins (No 7) [2022] NSWSC 1249
W was charged with murder and another offence. He had priors for violence plus a long-term association with bikie gangs. In dispute was whether s 110(3) of the Evidence Act 1995, which allows character evidence to be led ‘in a particular respect’ without putting general character into issue, prevented him leading …
BBlood Enterprises v FCT [2022] FCA 1112
In this share buy-back case, Thawley J (at [119]) said the idea that the meaning of a statutory definition cannot be controlled by the term defined8 ‘is not an inflexible rule’ of interpretation9. The issue was whether the word ‘reimbursement’ as part of the term defined controlled or limited the …
