Principles

Riverstone v Blacktown CC [2015] NSWLEC 137

We all know de minimis⁸, but how does it apply in practice?  First, it is a principle of construction, not a rule of law.  Second, its application always depends on text, purpose and context⁹.  Third, it inevitably involves a substantial element of value judgment¹⁰. 

In this case, …

R v PJ [2017] NSWCCA 290

It’s no secret that phrases like ‘in connection with’¹¹ routinely raise interpretation problems because of their general nature and variability of operation¹².  They may cover a wide spectrum of relationships.  The court in this case, like many others before it, exercised caution in approaching the phrase. 

However, it went a step …

SZTAL v Minister [2017] HCA 34

Three High Court judges in SZTAL (at [14]) re-stated some of the fundamentals.  Start with the text while ‘at the same time’ having regard to purpose and context⁴, the latter in its widest sense⁵.  Ordinary meaning is important, but if purpose or context suggests another meaning which is inconsistent with …

Esso v Australian Workers’ Union [2017] HCA 54

In Esso (at [52]), another High Court majority said the ability to depart from ordinary meaning is limited to construing the provision in a way ‘which, despite its terms, it is plain that parliament intended it to have’.  Courts cannot overcome unintended consequences of the intended operation by adopting a meaning that …

Bazzo v FCT [2017] FCAFC 139

This case (at [5]) stresses that contractual interpretation is an objective exercise, subjective beliefs etc being irrelevant.  The meaning of terms ‘is to be determined by what a reasonable person would have understood them to mean’⁷.  The language used, known surrounding circumstances and commercial objects all must be considered⁸. 

In …

Cherry v Steele-Park [2017] NSWCA 295

In 2011, the High Court sternly told all courts to follow the old rule¹² – but not many bowed.  In Cherry (at [68-85]), Leeming JA explains (A) why surrounding circumstances have to be consulted before any finding of ambiguity can be made, and (B) why the High Court must be taken to agree…

Kemp v Medical Board of Australia [2017] VSC 691

When may a court overturn a longstanding decision on interpretation?  There is a reluctance to do so unless the earlier decision is clearly wrong².  But, it is no part of the judicial role to perpetuate error, even where provisions have been re-enacted³.  Decided cases also should not …

Kaczmarski v Legal Services Board [2017] VSC 690

The statute allowed Kaczmarski 7 days to appeal a notice posted on 1 May.  He emailed his appeal at 7.43pm on 10 May.  Did he lodge in time?  A thing is ‘lodged’ if it is deposited in person (or electronically) and accepted, said the judge (at [32-36]).  An email is ‘lodged’ when …

Lewis v Sergeant Riley [2017] NSWCA 272

What if 2 Acts provide separate rights of appeal from the same proceedings?  In this case: one to the District Court, one to the Supreme Court.  The answer, said Basten JA (at [5, 21]), is not to assume inconsistency, but instead to try and give each provision an operation consistent with its terms.  …

FCT v Hacon Pty Ltd [2017] FCAFC 181

This case confirms that the ATO can decline to make a private ruling where it ‘would depend on which assumptions were made about a future event’¹¹.  One argument rejected (at [21-27]), however, was that provisions about making private rulings and applying for them should ‘be read as a composite’¹²…