Aguasa v Hunter [2026] WASCA 37
Whether a statutory requirement is procedural or substantive is often difficult to determine10. Various ‘formulations’ of the test to be applied have emerged. Vaughan J said (at [163]), however, that nothing is served by expressing a preference for one formulation over another. Courts in this regard are ‘not offering a dictionary or statutory definition’.
Cases of this type should not be decided on a ‘literal interpretation’ of a formulation, as if the court was ‘providing a statutory formula’11. This observation by the judge is part of a more general principle against treating judicial comments on statutory provisions as if they were themselves statutory12.
This principle is from Episode 132 of interpretation NOW!
Footnotes:
10 In this case, s 12B Defamation Act 2005 (NSW).
11 Hamilton [2006] NSWCA 55 [128] cited, cf Peros [2024] QSC 80 [113].