Civil penalties

AER v Pelican Point Ltd [2023] FCA 1110

A regulator sought declarations that Pelican had under-reported the electricity it could produce on a given day.  Pelican argued that any doubt or ambiguity in the civil penalty provisions should be resolved in its favour.  Besanko J (at [680]) agreed generally2.

This is similar to criminal situations where, if real …

Delegated legislation

Croc’s Franchising v Alamdo [2023] NSWCA 256

Did COVID regulations protect Croc’s as an ‘impacted lessee’ from termination by Alamdo?4  Clause 7 required regard be had to National Code principles when decisions affected ‘impacted lessees’.

While ordinary interpretation principles apply to delegated legislation5, that legislation will often not be drafted with the same care as statutes…

Reach of Interpretation Act

Granville Hotel v ILGA [2023] NSWCA 248

Granville’s application to operate pokies late at night was rejected on the basis there were insufficient gaming ‘venues’ proximate to the hotel.  The dispute turned solely on whether ‘venues’ in a guideline8 included the singular9.  Granville argued it should.

Kirk JA (at [32]) accepted that the Interpretation Act applied to …

Time of decision

Raiz v PSR (No 2) [2023] FCA 1293

Dr Raiz challenged referral of a complaint to a committee.  He said a prior ‘inclination to refer’ was itself a ‘decision’ which was flawed because his submissions had not been taken into account11.  The issue was what is meant by ‘make a referral’12

The judge held no ‘decision’ …


Ramsay v Minister [2023] NSWLEC 66

Farmers were granted access licences for lesser amounts of water than they applied for.  They tried to appeal on the basis that ‘a decision refusing to grant an access licence’ had been made5.  They raised the principle that, where two meanings are open, it is proper to adopt the one which avoids …

Legislative purpose

The King v Jacobs Group [2023] HCA 23

This case is about the penalty imposed after a company conspired to bribe a foreign official on construction projects8.  The penalty provision mirrored treaty obligations and was to be read consistently with international law9.  Penalties should be ‘effective, proportionate and dissuasive’; and proportionate to the gravity of the …


Disorganized Developments v SA [2023] HCA 22

Hells Angels is a criminal organisation.  Two members were directors of Disorganized, which owned land at Cowirra.  It is an offence for members of a criminal organisation to enter property declared a ‘prescribed place’11.  Regulations sought to (but did not on their face) declare the land a ‘prescribed place’.  After conviction, …

Singular meaning

MK v R [2023] NSWCCA 180

MK was convicted of maintaining an ‘unlawful sexual relationship’ with a child13.  That term is defined as ‘a relationship in which an adult engages in 2 or more unlawful sexual acts towards a child over any period’. Two earlier cases held that a sexual relationship over and above commission of the offences …

Adding words

CEO v Waroona Resources [2023] WASCA 73

Regulations exempted ‘asbestos containing material’6  – defined as ‘manufactured material … that, as part of its design, contains asbestos’ – from levy calculation.  Waroona said this should be read as including a mix of asbestos and soil where separation was impracticable.

Waroona argued that the levy’s purpose of encouraging recycling did not …

Extrinsic materials

Doman v Leadenhall Australia [2023] SASC 97

This case is about the effect of bankruptcy on judgment debt interest.  It is important for two reasons.  First is the principle that statutes – in this case, the Bankruptcy Act 1966 – override the common law to the extent of any inconsistency.  Second is the discussion by McDonald J (at [50-57]) about …