Duro Felguera v Samsung C&T [2018] WASCA 28
Legislative intention is always slippery. This case (at [141-142]) repeats that it is no more than the meaning of the words parliament ‘is taken to have intended them to have’ after application of interpretive principles. It has nothing to do with any ‘collective psychanalysis’6. The High Court tells us that …
Ku-ring-gai Council v Comanos [2018] NSWLEC 24
Do special rules apply in the interpretation of planning instruments? This case (at [42]) gives a straight ‘no’ answer, with the result that the ordinary principles of statutory interpretation apply10.
C was charged with installing tiered stairs on his residential development without consent. Under the planning instrument, however, ‘pathways’ were exempt …
Eames and Commissioner [2018] WASAT 14
The High Court said in 2009 that ‘tax statutes do not form a class of their own’12, even if their fiscal nature is part of the wider context. Eames (at [66]), however, states categorically that revenue statutes ‘are to be interpreted in a technical manner’.
As one judge suggested in 2004, tax …
Apache Finance v Quad Energy [2018] WASC 68
This case included a fight over the scope of tax indemnities in a share sale context, and the meaning of the defined term ‘Relevant Assessment’. There were many wrinkles in the complex drafting, and each party had numerous reasons for their position.
The important general point to absorb is that contractual definitions …
Michael Kirby has described interpretation as ‘an art not a science’1. As readers of statutes, we may forget that the exercise cannot be reduced to a scientific calculation or mechanistic formula2. It is not something a robot can do … yet. Interpretation involves a sympathetic quest for meaning, where context in the widest sense is …
Re Goyal and ACN 154 520 199 [2018] FCA 129
What happens when court orders are less than clear? This case (at [28-29]) makes 2 points – (A) if the orders are immediately plain, they ‘speak for themselves’, and (B) if they are ambiguous, the ‘ordinary rules of construction’ apply.
In situations of ambiguity, evidence of surrounding circumstances is then …
NSW v Wheatley [2018] NSWSC 178
This case (at [81]) re-confirms that the old rule about penal provisions being read strictly against liability really is one of ‘last resort’. Even 40 years ago, the High Court said the rule had already ‘lost much of its importance’ and that the ordinary rules ‘must be applied’7. Of course, penal consequences …
ADCO Constructions v Goudappel [2014] HCA 18
Provisions delegating legislative power to administrators are often called ‘Henry VIII clauses’, due to their autocratic vibe10. Their constitutionality is seldom in doubt11, but they attract greater scrutiny and are read strictly to their statutory purpose12. A recent example allows the Tax Commissioner, by legislative instrument, to …
Ellison v Sandini Pty Ltd [2018] FCAFC 44
This case reminds us that deeming provisions are to be read strictly in line with their purpose14.
A general rule operated to engage CGT provisions ‘as if you had received money or other property if it has been applied to your benefit … or as you direct’15. Jagot …
Resource Capital is a decision of Pagone J, now on appeal, about the tax treatment of limited partnership profits1. One issue was whether the judge was bound by a superior court decision that the partnership in question was a legal entity2. Pagone J said (at [6]) that, while he was bound by precedent, there was no …
