Extrinsic materials

Re K and M [2021] NSWSC 1314

In this family law case, Sacker J (at [32]) repeats the point that extrinsic materials may be taken into account without first having to find ambiguity or other difficulty.  This is timely given the confusion which still appears to cloud the issue.

The instruction in CIC Insurance to consider context in the ‘widest sense’ in the first instance is one of the brightest stars by which modern statutory interpretation is to be navigated5.  Three things may be observed – (A) the common law and statute operate in tandem in this area6, (B) the uses to which any extrinsic materials may be put must be carefully observed7, & (C) they are to be treated like evidence.

This principle is from Episode 80 of interpretation NOW!


5 Episode 43 case 2 (context), A2 [2019] HCA 35 (at [33]).

6 Gayle [2019] NSWCA 172 (at [258-259]), cf Mohamud [2021] VSC 787 (at [17]).

7 Mondelez [2020] HCA 29 (at [70]), Consolidated [2012] HCA 55 (at [39]).