In Hopper v Victoria, the High Court held legislated caps on political donations in Victoria to be invalid1. One issue was the effect of a severance clause in the State interpretation statute2 aimed at saving a challenged provision ‘to the extent to which it is not in excess of … power’3. The plurality noted …
The High Court has clarified the meaning of ‘honest’ within the expression ‘honest concurrent use’ as a defence to trade mark infringement1. After Firstmac registered the mark ZIP for financial products, Zip used substantially the same mark for its loan products. It was held that Zip had failed to prove ‘honest concurrent use’. The court noted (at [57]) …
The High Court refused an application by US singer Katy Perry to cancel the clothing trade mark Katie Perry held by an Australian fashion designer1. It was argued that its use by the designer ‘would be likely to deceive or cause confusion’2. This was due to the reputation the singer’s later trade mark Katy Perry had …
What is the difference between ‘ordinary meaning’ and ‘plain meaning’? A recent American article spends 70 pages explaining the position1. Often the two terms are used without discrimination. In our system, ordinary meaning involves the natural way in which people use a word. Plain meaning refers to the evident or clear meaning of a word in the sense …
Can statutes die of old age? The answer seems to be ‘not in law but sometimes in practice’1. Repeal by parliament is needed to kill them off in a legal sense. A statute may fall into desuetude for practical purposes, however, where the ‘tooth of time’ deprives it of all factual application2. The law is also …
When a public authority undertook construction of a light rail project, affected businesses sued in private nuisance for substantial interference with their use and enjoyment of their premises1. They succeeded and were awarded damages. The case illustrates the complexities arising at the intersection of public works and private occupation. In the context of project legislation, the common law …
In Badari, access to extrinsic materials in the interpretation of court orders is considered by the High Court1. Importantly, the court said that ‘as is generally the case with the interpretation of written instruments, there is no threshold requirement before extrinsic context can be considered’. This appears to clear up any residual uncertainty as to whether ambiguity …
An unfortunate feature of legislative drafting is that most legislation is expressed to apply to the world at large … so said Ball JA in a recent gambling case1. TexBet was convicted of ‘providing’ gambling ads via SMS to a gambler in Victoria whose account had been closed on request2. It appealed on the basis that …
A Bolivian artefact1 bought from a Colorado dealer by Palmanova was forfeited after import under cultural heritage laws2. It had to be shown that a ‘protected object of a foreign country has been exported from that country’ and that the ‘export was prohibited by a law of that country’. It was established that (A) the artefact came …
Forty years ago in the K&S Lake case, Mason J set down what he called the ‘modern approach’ to statutory interpretation1. The crucial breakthrough which the judge sought to engineer was that context in the ‘widest sense’ is to be considered ‘in the first instance’ rather than at some later stage ‘when ambiguity might be thought to arise’…
