Always speaking

BMW Australia Ltd v Brewster [2019] HCA 45

Can a court make a ‘common fund order’ in class actions under the general power to make any order it ‘thinks appropriate or necessary to ensure that justice is done’?12 – ‘no’ said the majority. 

Edelman J (at [171]) restates the principle about open-textured words ‘always speaking’13 so the essential meaning is applied ‘taking into account changes in our understanding of the natural world, technological changes, changes in social standards and … changes in social attitudes’14, and ‘changes in the law since the legislation was enacted’15.  This dynamic principle is central in determining what parliament meant by the words it used in an Act.

This case is from Episode 56 of interpretation NOW!


12 s 33ZF of the Federal Court of Australia Act 1976 (CTH).

13 cf (at [44]), Episodes 2, 45 & 47, Pearce 9th ed (at [4.14-4.20]).

14 Owens [2017] 4 WLR 74 (at [39]), Aubrey [2017] HCA 18 (at [29-30]).

15 Burrows [2018] Hamlyn Lectures (at 29), cf (2011) 37/2 MULR 1.