Justice Susan Glazebrook (2015) article
‘Purpose is king (or is it?)’ – this is the question posed by Glazebrook J of New Zealand in a recent article1. After referring to the ‘modern purposive approach’2, the judge says that (A) ‘purpose is there to help ascertain the meaning of text and not to override or dominate it’, …
Greater Shepparton CC v Clarke [2017] VSCA 107
Ejusdem generis4 (‘of the same kind’) is an old rule limiting general words, like ‘other’, by reference to some common feature (genus) – for example, ‘railway, road, pipeline or other facility’ is confined to facilities on or through which goods move5.
Clarke (at [67-69]) notes some limitations however – …
Aubrey v R [2017] HCA 18
The traditional rule says that doubt in penal provisions is resolved in favour of the accused. However, Pearce & Geddes (at [9.8]) call this a ‘somewhat naive approach’ and, as far back as 1976, it was described as ‘one of last resort’9.
The true position is more nuanced, with penal consequences being …
LM Investment Management v EY [2017] QSC 73
This case (at [118]) refers to a common law rule that, where a repeal is followed by a re-enactment in substantially the same terms, the new provision ‘may be construed to apply retrospectively’11.
This rule is essentially remedial in nature. It protects the validity of things done under repealed provisions …
Commissioner v CLP Power HK [2017] HKCFA 18
It’s not every day that a Hong Kong case says something about our tax laws3. This court (at [35]) says that the principles of interpretation apply just as much to tax laws as to other statutes. Kirby J in our High Court is quoted for 2 propositions. First, it is …
Re Amerind Pty Ltd [2017] VSC 127
Precedent compels consistency between courts in the same system. Courts in different systems (and co-ordinate courts in the same system) are not strictly bound by decisions of the other. But they are expected to be consistent unless convinced the other is ‘plainly wrong’6. This case (at [293]) underlines the public interest…
Ryde v PIA (No 4) [2017] NSWSC 436
This case (at [93]) re-works themes in Episode 4. Regs usually cannot ‘be taken into account’ when interpreting the Act, but an exception is where the regs and statute ‘form part of a legislative scheme’ (as here). Ticking the ‘scheme’ box, however, provokes further questions – (A) how are the regs to …
Lockwood v Ecoliv Buildings [2017] VSC 109
Episodes 1 & 7 deal with when practical outcomes support one construction over another. This case (at [96-97]) quotes Project Blue Sky, then observes that courts ‘frequently [refer] to the consequences of competing statutory interpretations to determine which … best suits the purpose of an Act’.
Zammit J said that ‘interpretation by …
Privacy Commissioner v Telstra [2017] FCAFC 4
Should you work out the meaning of a statutory definition in isolation before reading it into the text of the provision being looked at? The answer given by the courts is a firm ‘no’. Statutory definitions are only aids to construction, not substantive law2. Divorcing a definition from its substantive context …
Benjamin v FCT [2017] AATA 39
The use of headings for interpretational purposes has always been difficult5. Historically, Part and Division headings formed part of the Act and could not be ignored. They could constrain general provisions or help resolve ambiguity6, but naturally gave way to clear language in provisions.
Section headings, however, were only part …
