iNOW! has many times dealt with extrinsic materials and their uses within the interpretive process. A recent case makes a key point here1. Thawley J said of an interpretation advanced by one party that it ‘does not give primary effect to the statutory language read in context: rather, it looks to the extrinsic material and presumes that to …
Kingdom Towers v Liverpool [2021] NSWLEC 1074
The impact of provisions being ‘beneficial’ can be less than straightforward3. It was argued in this case that dispensing with height restrictions under an environmental plan4 was ‘beneficial and facultative’, meaning the clause in question should have the ‘widest interpretation that its language will give’5.
The court found …
R v Grundy [2021] SASCA 4
This case confirms that, even if the old rule about construing offence provisions in favour of the accused is one of last resort and has lost much of its importance7, it may apply where ambiguity persists8. The defendant had been found guilty of possessing a gun without a licence, for …
FCT v Auctus Resources [2021] FCAFC 39
The term ‘administrative overpayment’ is defined to mean ‘an amount that the Commissioner has paid to a person by mistake, being an amount to which the person is not entitled’10. Does choice of the adjective ‘administrative’ exert any influence over the meaning of the definition? The natural answer is ‘yes’, but …
Rockment Pty Ltd v AAI Limited [2020] FCAFC 228
This contract case looks at the duty to strive for a commercial result and ‘businesslike interpretation’13. Notions of commerciality ‘must be confined to their proper place’ (at [54]), and an interpretation ‘is commercial if it is not commercially absurd’14.
No comparative financial analysis is called for, nor …
Recent appeal cases stress 4 related propositions – ■ purpose is to be considered throughout the interpretive process1, ■ harmony between provisions must be sought2, ■ we must try to ensure the legislative target is hit not missed3, and ■ a purposive answer may rule over ordinary meaning4. These propositions wrap up …
Bob Brown Foundation v Cth [2021] FCAFC 5
Normally an ‘agreement’ is an accord which is legally enforceable. BBF argued this seeking to prevent forestry operations affecting habitat of the swift parrot. Earlier approvals were invalid, said BBF, because the inter-governmental agreement (IGA) in question was not an ‘agreement that is in force’ under the legislation6. This was …
Spain v Infrastructure Services [2021] FCAFC 3
Investors secured an arbitration award for €1.1m under the ICSID Convention9 against Spain for default on a solar power project. They sought execution in Australia under ICSID, a point being whether ‘execution’ extends to ‘enforcement’. ICSID is made in English, French & Spanish – all equally authentic.
Treaty terms are presumed to …
Raina v CIC Allianz Insurance [2021] NSWSC 13
Raina was injured when another driver ran into the back of his car. He challenged medical review panel assessments on grounds which included denial of natural justice. Campbell J (at [92]) rejected this, given Raina refused a further medical examination.
The judge (at [51-56]) describes how statutory powers are interpreted to require …
Antegra Pty Ltd v CCSR [2021] NSWSC 107
Payne JA (at [86-87]) held that the ordinary principles of interpretation apply to Treasurer guidelines, and that it was ‘to be construed according to its text and purpose as evident from the document itself in the context of the legislative scheme in which the guidelines are required to be applied’13. …
