Episode 96

James Allsop recently retired as chief justice of the Federal Court.  What was his legacy on interpretation?  As a committed contextualist, he went behind the ‘widest sense’ mantra to explain why context is ‘indispensible’ – It gives the place, the wholeness and the relational reality to words; it helps prevent linear thinking and sometimes beguilingly simple and attractive logic with …

Legislative guides

Arik v Vicinity Centres PM Pty Ltd [2023] VSC 94

Arik had a ‘slip and fall’ accident.  A medical panel later found that she had not suffered a ‘significant injury’ in accordance with AMA guides on what constituted ‘significant injury’ for the purposes of the legislation?6 

Guides are not statutes but the same general interpretation principles are applied to …

Contractual interpretation

Laundy Hotels v Dyco Hotels [2023] HCA 6

This recent case on the legal effect of pandemic restrictions in default situation is important because a full bench of the High Court repeats (at [27]) the basic principles of contractual interpretation –

“It is well established that the terms of a commercial contract are to be understood objectively, by what a

Objective purpose

DPP v Whittle [2023] ACTSC 64

Was the offence of possessing prohibited firearms one that ‘relates to money or other property’ under s 375(1)(b)(i) of the Crimes Act 1900 (ACT)?  The answer was ‘not obvious’.  In selecting the interpretation that best achieved the purpose of the provisions, Mossop J (at [18-19]) emphasised 3 key things.

First, purpose is to be …

Treaty interpretation

Kingdom of Spain v ISL SÀRL [2023] HCA 11

In this foreign state immunity case, the High Court considers 4 key principles of treaty interpretation.

One,  statutory provisions are to be interpreted consistently with international law11.  Two, treaties should have the same meaning in all party states12.  The Vienna Convention on treaty interpretation applies rather than …

Episode 95

Episode 90 observed that ‘always speaking’ is a baseline assumption in our system, but that how to apply it is often problematic.  A recent UK case – News Corp UK – throws more light on this1.  The issue was whether ‘newspapers’ in older VAT provisions extended to cover digital editions – answer ‘no’.  The court confirmed that always …

Examples in legislation

R v Clark [2023] SASCA 15 (at [14])4

Section 20 of the Legislation Interpretation Act 2021 (SA) says that an example included in legislation ‘is not exhaustive’ and ‘may extend, but does not limit, the meaning of the provision …to which it relates’5.

The word ‘may’ allows a court to assess if an example in fact extends …

Super documents

Application by Ellasil Pty Ltd [2023] VSC 69

This case (at [88]) explains how superannuation trust deeds are to be interpreted.  Unsurprisingly, they are to be read in the same practical, objective and purposive way as all commercial documents9.

McMillan J said that attention must to be paid to the language used, commercial circumstances, operational context, and the …

Delegated legislation

NL v Chief Executive DFCP [2023] SASCA 20

Delegated legislation is invalid if it is inconsistent with the statute under which it is made12.  As the court explained (at [118-123]), inconsistency may involve direct collision between the two, or may arise where the statute is ‘plainly intended’ to ‘cover the field’13 – that is, where the statute …


Attorney General v FJG [2023] NSWCA 34

In this case, Bell CJ (at [1]) observes that interpretation should never start from some preconceived policy outcome considered desirable then ‘work backwards’.  Preconception may be unconscious just as much as deliberate.  Within our purposive system, it is a particular problem that appellate courts have been concerned to call out15.

Could …