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 …
It’s tax time again! As a result, there is more focus on ATO public guidance and the need to make calls on tax issues and outcomes. Sometimes, this will raise the need for interpretation. Where this occurs, remember to apply ordinary purposive principles. Start and finish with the statutory text – this is fundamental. In between, consult context in the …
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 It protects the validity of things done under repealed provisions …
iNOW! has aimed at building capacity on interpretation for 2 years – let’s all get better at this! Two disrupting ideas still lurk in the shadows, however. The first is that ‘anything goes’, with every position being equally tenable. This is misconceived. Determining what parliament meant and selecting between constructional choices both involve key interpretation skills1. Second …
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…
