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…
Dinov v Allianz Australia [2017] NSWCA 270
This case (at [65-67]) tells us to construe the text of the law, not language ‘used in the second reading speech or in some explanatory memorandum.’ Statements in explanatory materials about intention ‘cannot overcome the need to carefully consider the words of the statute to ascertain its meaning.7’
In this case, …
NW Melbourne Recycling v CSR [2017] VSC 647
In this land tax refund case, it was said (at 41]) that the provisions in question were the ‘alpha and omega of the judicial task of statutory construction’8. The phrase ‘alpha and omega’ has biblical overtones9, but in this context means no more than ‘the beginning and the …
Keris Pty Ltd v DFCT [2017] FCAFC 164
This security deposit case illustrates how examples in legislation can impact on interpretation. An example said the Commissioner could require additional security in certain cases. The court observed (at [28]) that the example was consistent with the forward-looking aspect of the power.
Section 15AD12 says that an example is not exhaustive …
Tomvald v Toll Transport [2017] FCA 1208
Although industrial agreements are generally to be construed with a degree of latitude or generosity, a court is not free to read into them preconceived notions of fairness. Nor, said Flick J (at [37-38]), are awards to be read ‘in a vacuum divorced from industrial realities’15. Context is important.
The issue …
Koundouris v Owners Unit Plan [2017] ACTCA 36
Planning laws commonly impose warranties for work quality on builders. It was argued that explanatory statements with the Act meant a builder had to be party to the sale contract for warranties to apply6. Here there was an interposed entity.
The appeal court said (at [41]) the explanatory statements…
