Hayne & Gordon course notes
The authors, one a Royal Commissioner and the other a High Court judge, refer to ‘one of the complexities’ students face – being that canons of construction ‘can be used to justify almost any result that the user wishes to achieve’2. This is not a new idea3 – one observation being that …
Owners – SP No 66375 v King [2018] NSWCA 170
The point from this case (at [290]) is that, in complex legislation like the Home Building Act 1989, the level at which statutory purpose is framed ‘can be critical to the outcome’. The issue was whether warranties for design defects made developers liable in the absence of a contract …
Bautista v Minister [2018] FCA 1114
The High Court in 2014 integrated the ‘adding words’ rules into purposive theory9, but that does not mean it’s easy to do. Experience shows the opposite. In this case, Collier J (at [83-88]) refused to read ‘time limit’ words into a migration provision because inadvertence was not shown and it was not …
FCT v Sharpcan Pty Ltd [2018] FCAFC 163
Constructional choice is a hot topic, and one that is truly at the epicentre of interpretation these days12. Choice between possible meanings of a provision is driven by the ‘unqualified statutory instruction’ in s 15AA of the Acts Interpretation Act 1901.
Articulation of the principles was undertaken initially by French …
Every so often, a case comes along crammed with interpretation learning – Uber BV, for example, see Episode 21. This month, there are 2 of them, both appeal decisions. A2 v R is about the meaning of ‘otherwise mutilates’ in a criminal law context1, while WorkPac Pty Ltd v Skene concerns who may be a ‘casual employee’ for …
Sometimes even the most basic things can be overlooked … things like whether purposive interpretation is mandatory. As we know, a daunting range of common law rules and canons may impact statutes. Into this mix, parliament legislated s 15AA of the Acts Interpretation Act, first in 1981 to say that a ‘construction that would promote the purpose or object …
Hayman v Cartwright [2018] WASCA 116
When a common law term appears in a legislative code, do we read the code as if it were the common law merely expressed in a different medium? In this case, a statutory code definition included the term ‘assault’ 5. Was common law ‘intention’ necessary?
The court cautioned against any idea that the …
Minogue v Victoria [2018] HCA 27
Retrospectivity describes a law that changes legal rights linked to past events7. Gordon J (at [111]) noted it is ‘somewhat distasteful’, more so when it takes away accrued rights8. It was held, however, that parole rules9 were not retrospective. Also, parole is a privilege not a right10. …
L v Commissioner [2018] TASSC 32
Episode 11 explains that the old rule about reading remedial legislation liberally still survives, but it has its limits13. Geason J in this case (at [25]) said it is unsound to interpret statutes of this kind ‘with meticulous literalism’. On the other hand, no beneficial construction can enlarge the operation of an …
Oxanda Childcare v MAAG [2018] VSC 370
This case (at [36]) reinforces that ‘and’ and ‘or’ are to be given their ordinary meanings unless context indicates otherwise. The defendant argued that the proper construction of a lease termination clause required ‘and’ to be read as ‘or’ for the contract to make commercial sense. The court held that the leasing context …
