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 …
Xiao v R [2018] NSWCCA 4
Episode 32 quotes from the High Court in SZTAL on how purpose and context may displace the ordinary meaning of provisions. The appeal court in Xiao (at [223-224]) does likewise, stressing the ‘importance of considering context in the first instance’.
The judges in Xiao quote Gageler J in SZTAL for the point that constructional …
Ian Street Developer v Arrow [2018] VSC 14
The judge in this case (at [53-55]) said that, while extrinsic materials are part of the context to be consulted, they can only be used to assist in determining meaning when the text is ambiguous9. Another court later made similar comments10.
Both cases refer to remarks in Saeed…
Mercanti v Mercanti [2016] WASCA 206
This case, about the scope to vary a trust deed, restates (at [72-73]) the important principle that trust deeds are interpreted in the same way as contracts12. It is the objective meaning of the words we are looking for, not what the parties may have subjectively intended, thought or meant to say…
Hunter Quarries v Mexon [2017] NSWSC 1587
Adding words to fix minor glitches in legislation is part of purposive interpretation3, though it seldom succeeds in practice. The argument was that ‘permanent impairment’ excluded situations where death followed ‘shortly after injury4’. Schmidt J (at [89-101]) declined to ‘read in’ allegedly missing words of limitation, as preconditions were …
Law Society of NSW v Bouzanis [2017] NSWCA 330
Are client payments to solicitors on account of disbursements ‘trust money’ for legal practice purposes6? Yes, said the majority, despite the difficult terms of the statutory definition involved.
While definitions ‘should not readily be put aside’, this might be done ‘where context suggests that a different meaning should be …
