In Badari, access to extrinsic materials in the interpretation of court orders is considered by the High Court1. Importantly, the court said that ‘as is generally the case with the interpretation of written instruments, there is no threshold requirement before extrinsic context can be considered’. This appears to clear up any residual uncertainty as to whether ambiguity must first be shown before extrinsic materials can be consulted. Where an order is ambiguous, the court said that it may be necessary to look at the reasons for judgment, and sometimes the pleadings, the evidence and how the case was conducted2. Although the court is explaining a systemic principle of interpretation here, it is qualified by the word ‘generally’. This may be in recognition of the contract law idea that ambiguity must first be shown before wider context can be accessed3.
Gordon Brysland – Tax Counsel Network gordon.brysland@ato.gov.au 0417 605 338
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Footnotes:
1 Badari v Minister [2025] HCA 48 [12] joint reasons of five judges.
2 Doyle [2020] NSWCA 34 [58], Owston [2003] FCA 629 [27] resp.
3 Jireh [2011] HCA 45 illustrates, cf Herzfeld & Prince [36.90].