Anchorage Capital Partners v ACPA [2018] FCAFC 6
The High Court recently reminded us that ‘may’ can be used ‘in more than one sense’ 4. It can mean ‘must’ if there is an obligation to exercise power on defined criteria being met5. Context is the key.
In Anchorage, the Act in question consistently used ‘must’ to …
Xiao v R [2018] NSWCCA 4
Episode 32 quotes from the High Court in SZTAL on how purpose and context may displace the ordinary meaning of provisions. The appeal court in Xiao (at [223-224]) does likewise, stressing the ‘importance of considering context in the first instance’.
The judges in Xiao quote Gageler J in SZTAL for the point that constructional …
Ian Street Developer v Arrow [2018] VSC 14
The judge in this case (at [53-55]) said that, while extrinsic materials are part of the context to be consulted, they can only be used to assist in determining meaning when the text is ambiguous9. Another court later made similar comments10.
Both cases refer to remarks in Saeed…
Mercanti v Mercanti [2016] WASCA 206
This case, about the scope to vary a trust deed, restates (at [72-73]) the important principle that trust deeds are interpreted in the same way as contracts12. It is the objective meaning of the words we are looking for, not what the parties may have subjectively intended, thought or meant to say…
Justice Pagone of the Federal Court has given a paper on the continuing need for tax academics to provide assistance to judges1. After discussing core interpretation principles, the judge said that academics can assist courts in ‘resolving ambiguities in legislation’, and are most useful in ‘exploring and explaining context’. The knowledge of a judge unaided in this regard …
Hunter Quarries v Mexon [2017] NSWSC 1587
Adding words to fix minor glitches in legislation is part of purposive interpretation3, though it seldom succeeds in practice. The argument was that ‘permanent impairment’ excluded situations where death followed ‘shortly after injury4’. Schmidt J (at [89-101]) declined to ‘read in’ allegedly missing words of limitation, as preconditions were …
Law Society of NSW v Bouzanis [2017] NSWCA 330
Are client payments to solicitors on account of disbursements ‘trust money’ for legal practice purposes6? Yes, said the majority, despite the difficult terms of the statutory definition involved.
While definitions ‘should not readily be put aside’, this might be done ‘where context suggests that a different meaning should be …
Riverstone v Blacktown CC [2015] NSWLEC 137
We all know de minimis8, but how does it apply in practice? First, it is a principle of construction, not a rule of law. Second, its application always depends on text, purpose and context9. Third, it inevitably involves a substantial element of value judgment10.
In this case, …
R v PJ [2017] NSWCCA 290
It’s no secret that phrases like ‘in connection with’11 routinely raise interpretation problems because of their general nature and variability of operation12. They may cover a wide spectrum of relationships. The court in this case, like many others before it, exercised caution in approaching the phrase.
However, it went a step …
Justice Kirby spoke at Cambridge University in 2002 on movement ‘towards a grand theory of interpretation’ for statutes and contracts1. He noted a ‘need for caution’ in embracing any grand theory, but pointed to trends which narrow the differences. Two of these were a greater appreciation of the choices available2, and moves towards wider contextual analysis. …
