Episode 98

What has Franz Kafka’s The Trial got to do with interpretation?  Patrick v AIC (No 2)1 is about when the AIC had a ‘duty’ to make an FOI review decision2 as would allow the Federal Court to intervene for ‘unreasonable delay’3.  It was argued no duty arose until the review process was complete.  Wheelahan J (at [43]) said this ‘result would be absurd’ – no delay by the AIC would ever then engage the remedial ADJR jurisdiction.  This ‘door to the law’, he said, would remain shut in the same way as it did in The Trial4.  The constructional choice was ‘clear’ given the remedial purpose was best achieved by the duty arising on the application for review contingent on completion5.  Judicial references to Kafka are often a metaphor for the absurd consequences the law may sometimes produce6.  Interpretation method responds, as in this case, to avoid absurdity by requiring a purposive outcome.

Gordon Brysland – Tax Counsel Network

See here for the official PDF of Episode 98 of interpretation NOW!

Thanks – Matt Snibson, Cheryl D’Amico & Philip Borrell.


1 Patrick v Australian Information Commissioner (No 2) [2023] FCA 530.

2 s 55K of the Freedom of Information Act 1982 (Cth).

3 s 7(1) of the ADJR Act 1977 (Cth).

4 Wang [1997] FCA 70, cf Neat Domestic [2003] HCA 35 (at [140]).

5 s 15AA of the Acts Interpretation Act 1901 (Cth) referred to.

6 cf Buonamano Kafka and Legal Critique [2016] UTSLRS 6.