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. …
Looking back over the span of iNOW! operations, one theme dominates – stability of our interpretation system. Courts regularly proclaim that the basics are now well-established – a ‘settled approach of some clarity’1. No longer is it right to talk about interpretation as a ‘fashion industry’, if indeed it ever really was. The idea we are merely awaiting …
Gamble v Kingborough Council [2020] TASFC 7
A coffee cart parked at a motel needed a permit if it involved a ‘use’ in relation to land. Here ‘use … includes the manner of utilising land’, with ‘land’ defined to include buildings, structures and ‘any estate, interest, easement, servitude, privilege or right in or over land’5. On being charged …
Elliot v ACT Revenue [2020] ACAT 72
Keeping up with interpretation intel is not easy. One thing is that judges are driven to restate settled principles, picking and choosing what suits, often with quotes, but just as often in their own words – judicial wheel reinvention, perhaps. Might there be a better way, perhaps some kind of legislated code?
There …
Voicu v Strata Plan No 1624 [2020] NSWCA 52
An apartment dispute commenced in the local court, but the appeal was to the district court. Laws regulating district court costs were replaced by new legislation, but the old provisions continued to apply to proceedings commenced before 1 July 20159. Which provisions applied to costs in the appeal?
Basten …
Will v Brighton [2020] NSWCA 355
This case on the meaning of ‘pest animals’11 exposes a difference of view about use of dictionaries12. Bell JA (at [52]) said ‘care must be taken not to place too heavy reliance’ on them. Dictionaries provide no guidance on context and are ‘rarely determinative’. She would not fully ignore them, however, …
