Principles

EPA v Sydney Water [2023] NSWLEC 119

SW resisted a subpoena for documents because their sole purpose was that of a ‘voluntary environmental audit’ (protected).  The interpretation point was how this composite expression was to be construed. 

Moore J said the ‘task is to construe the language of the statute, not individual words’¹¹.  Composite expressions are …

Russell v R [2023] NSWCCA 272

This ‘extreme body modification’ case is a sequel to the genital mutilation decision, R v A2 [2019] HCA 35.  R was convicted of genital mutilation¹⁴ – labiaplasty on a consenting adult female.  He appealed on the basis High Court dicta made it clear the offence was confined to ritual acts committed on female …

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 …

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…

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 …

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 …

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, …

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 …