Boulos v Warrumbungle SC [2022] NSWSC 1368
Whatever ‘person’ means in any legislation is very much context-dependent. In this case, the issue was whether the director of a development company was a ‘person’ who carries out construction and by reason of that status had a duty to exercise reasonable care to avoid economic loss caused by certain defects7.…
Edelman J Implications [2022] Spigelman Oration
In his Spigelman Oration, Edelman J stresses that interpretation involves a ‘single process’, not a two-step one. This derives from statements in CIC Insurance (and other cases) that context and purpose are to be considered at the same time as the text.
The judge says (at 9) that it is ‘emphatically, not a …
Warburton v VicForests (No 5) [2022] VSC 633
The traditional approach to delegated legislation – taken by Garde J (at [267-268]) – is that, being less carefully drafted and directed at ‘practical people’, legislation of this kind is to be given some latitude in its interpretation8. Others say there is no principle requiring laxity’9. Are these …
GL v R [2022] NSWCCA 202
One issue was the basis on which the ‘standard non-parole period’ (SNPP) for child sex offences was to be determined. Sentencing must accord with ‘patterns and practices at the time of sentencing’, but the SNPP is that period ‘(if any) that applied at the time of the offence’12. Transitional provisions, however, appeared …
Two recent High Court cases probe difficult corners of interpretation law. The first1 explores presumptions both at common law and under statute2 against the extraterritorial operation of domestic statutes3. Kiefel CJ and Gageler J (at [34]) said these presumptions had no application in the circumstances – that is, they did not exclude non-residents from being a …
R v Wiggins (No 7) [2022] NSWSC 1249
W was charged with murder and another offence. He had priors for violence plus a long-term association with bikie gangs. In dispute was whether s 110(3) of the Evidence Act 1995, which allows character evidence to be led ‘in a particular respect’ without putting general character into issue, prevented him leading …
BBlood Enterprises v FCT [2022] FCA 1112
In this share buy-back case, Thawley J (at [119]) said the idea that the meaning of a statutory definition cannot be controlled by the term defined8 ‘is not an inflexible rule’ of interpretation9. The issue was whether the word ‘reimbursement’ as part of the term defined controlled or limited the …
DJ v DPP (WA) [2022] WASC 303
This case raised what are ‘special circumstances’ in an application to disregard young offender convictions11. Smith J (at [58-63]) looked at other statutory contexts, of which there are many, where the same expression is used. These confirmed that the subject case must be ‘different in kind’.
An important point of general …
Kelly v CFMMEU [2022] FCAFC 130
An application for a secret ballot was made to determine if a division of the union might become a separate organisation12. One issue was whether the division was a ‘separately identifiable constituent part’ of an amalgamated organisation under a statutory definition. The union said general words in the definition should be read …
In a recent VSCA case1, Sifris JA’s minority judgment (at [145-152]) touched on the interplay between text and purpose in resolving constructional choice. If the ordinary or literal meaning of statutory words conflicts with legislative purpose, it is justifiable to depart from it in favour of an alternative construction that is ‘reasonably open’ on the words of the …
