‘means X and includes Y’

Roden v Bandora Holdings [2015] NSWLEC 191

Pearce & Geddes (at [6.64]) say that using ‘means and includes’ in definitions ‘ought to be eschewed by drafters’.  This case shows why.  The issue was whether wedding venues were ‘tourist facilities’, in turn defined in the ‘means X and includes Y’ form with no reference to weddings whatsoever.

Two general problems may arise.  ‘Means and includes’ pulls in different directions11 – one restrictive and the other expansive.  The solution is usually to treat the phrase as exhaustive – that is, as ‘means’ alone12.  However, ‘includes’ by itself may also be taken to mean ‘means and includes’13.  iTip – always be wary of definitions in this form, and pay particular attention to context and purpose14.

This case is from Episode 10 of interpretationNOW!


11  Hepplesv FCT (1990) 22 FCR 1 (at 21), Yazgi [2007] NSWCA 240 (at [29-30]).

12  BHP Billiton [2008] HCA 45 (at [32]), Horsell [2013] NSWCA 368 (at [161]).

13  Dilworth [1899] AC 99 (at 105-106), Tkacz [2001] WASCA 391 (at [45-56]).

14  R v Smith [2008] QCA 406 (at [16-19]), discusses.