Episode 82

Gordon Brysland

In a recent patents case, Edelman J made observations about the importance of context and purpose in interpretation1.  The general point (at [97]) is that fixing the meaning of express words, drawing inferences within a provision or implying new content into one are all best considered as a kind of ‘continuum’.  The judge made 2 points.  First, implications all along the continuum depend on ‘general or particular circumstances of context or purpose’2.  Second, the bigger the implication suggested, the more it must be mandated by those circumstances3.  These comments may seem overly theoretical, but they do have an acutely practical application.  That is, if you are seeking a substantial departure from the ordinary meaning of a provision, you must bring strong and very relevant evidence of context and purpose to the table.  iTip – vibe is not enough.

Gordon Brysland – Tax Counsel Network

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In this episode:

Credits – Gordon Brysland, Oliver Hood, Charlie Yu & Lachlan Ballard.


1 H Lundbeck A/S v Sandoz Pty Ltd [2022] HCA 4, patent extension.

2 Sternau (etc) (2015) 84 Journal of Pragmatics 86 (at 88) cited.

3 cf (at [113]), citing Esso Australia [2017] HCA 54 (at [52]).