City of Ryde v Haddad [2018] NSWCA 35
Sometimes even the most obvious things have to be spelt out. Legislation commonly adopts the format – ‘Any person who – (a) lives in Sydney, or (b) has red hair, must register’. The appeal court in this case (at [20]) pointed out (continuing our simplified example) that someone who lives in Sydney, …
Duro Felguera v Samsung C&T [2018] WASCA 28
Legislative intention is always slippery. This case (at [141-142]) repeats that it is no more than the meaning of the words parliament ‘is taken to have intended them to have’ after application of interpretive principles. It has nothing to do with any ‘collective psychanalysis’6. The High Court tells us that …
Ku-ring-gai Council v Comanos [2018] NSWLEC 24
Do special rules apply in the interpretation of planning instruments? This case (at [42]) gives a straight ‘no’ answer, with the result that the ordinary principles of statutory interpretation apply10.
C was charged with installing tiered stairs on his residential development without consent. Under the planning instrument, however, ‘pathways’ were exempt …
Eames and Commissioner [2018] WASAT 14
The High Court said in 2009 that ‘tax statutes do not form a class of their own’12, even if their fiscal nature is part of the wider context. Eames (at [66]), however, states categorically that revenue statutes ‘are to be interpreted in a technical manner’.
As one judge suggested in 2004, tax …
Apache Finance v Quad Energy [2018] WASC 68
This case included a fight over the scope of tax indemnities in a share sale context, and the meaning of the defined term ‘Relevant Assessment’. There were many wrinkles in the complex drafting, and each party had numerous reasons for their position.
The important general point to absorb is that contractual definitions …
Re Goyal and ACN 154 520 199 [2018] FCA 129
What happens when court orders are less than clear? This case (at [28-29]) makes 2 points – (A) if the orders are immediately plain, they ‘speak for themselves’, and (B) if they are ambiguous, the ‘ordinary rules of construction’ apply.
In situations of ambiguity, evidence of surrounding circumstances is then …
NSW v Wheatley [2018] NSWSC 178
This case (at [81]) re-confirms that the old rule about penal provisions being read strictly against liability really is one of ‘last resort’. Even 40 years ago, the High Court said the rule had already ‘lost much of its importance’ and that the ordinary rules ‘must be applied’7. Of course, penal consequences …
ADCO Constructions v Goudappel [2014] HCA 18
Provisions delegating legislative power to administrators are often called ‘Henry VIII clauses’, due to their autocratic vibe10. Their constitutionality is seldom in doubt11, but they attract greater scrutiny and are read strictly to their statutory purpose12. A recent example allows the Tax Commissioner, by legislative instrument, to …
Ellison v Sandini Pty Ltd [2018] FCAFC 44
This case reminds us that deeming provisions are to be read strictly in line with their purpose14.
A general rule operated to engage CGT provisions ‘as if you had received money or other property if it has been applied to your benefit … or as you direct’15. Jagot …
Anchorage Capital Partners v ACPA [2018] FCAFC 6
The High Court recently reminded us that ‘may’ can be used ‘in more than one sense’ 4. It can mean ‘must’ if there is an obligation to exercise power on defined criteria being met5. Context is the key.
In Anchorage, the Act in question consistently used ‘must’ to …
