Harris v Planning Authority [2026] ACAT 35
Arthur SM (at [113-115]) commented on the use of ‘and/or’ in documents. What is called the ‘bastard conjunction’5, the senior member noted, is the product of lazy drafting and is inherently ambiguous. Two earlier cases collect the various criticisms6.
It has been called an ‘embarrassing expression which endangers accuracy’7. One US judge described it as a ‘Janus-faced verbal monstrosity’8. While it has been tacitly accepted at times9, the tide of disapproval only rises. You may rarely see ‘and/or’ in legislation, but contracts and other legal instruments are less discriminating. iTip – first, don’t use ‘and/or’ yourself; second, if you come across it, beware!
This principle is from Episode 136 of interpretation NOW!
Footnotes:
5 Term coined first by Viscount Simon in Bonitto [1944] AC 75 (82).
6 Canberra Data [2010] ACTSC 20 [85], St Clair [2010] QSC 480 [11-12].
7 Fadden (1943) 68 CLR 76 (82), cf Millen [1945] VLR 259 (260).
8 Tollefsen (1935) 263 NW 376 (377), cf Boyle (2013) 87 ALJ 349.
9 Jasper [2003] NSWCCA 186 [37], Herzfeld & Prince [5.270].