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. …
SZTAL v Minister [2017] HCA 34
Three High Court judges in SZTAL (at [14]) re-stated some of the fundamentals. Start with the text while ‘at the same time’ having regard to purpose and context4, the latter in its widest sense5. Ordinary meaning is important, but if purpose or context suggests another meaning which is inconsistent with …
Esso v Australian Workers’ Union [2017] HCA 54
In Esso (at [52]), another High Court majority said the ability to depart from ordinary meaning is limited to construing the provision in a way ‘which, despite its terms, it is plain that parliament intended it to have’. Courts cannot overcome unintended consequences of the intended operation by adopting a meaning that …
Bazzo v FCT [2017] FCAFC 139
This case (at [5]) stresses that contractual interpretation is an objective exercise, subjective beliefs etc being irrelevant. The meaning of terms ‘is to be determined by what a reasonable person would have understood them to mean’7. The language used, known surrounding circumstances and commercial objects all must be considered8.
In …
Cherry v Steele-Park [2017] NSWCA 295
In 2011, the High Court sternly told all courts to follow the old rule12 – but not many bowed. In Cherry (at [68-85]), Leeming JA explains (A) why surrounding circumstances have to be consulted before any finding of ambiguity can be made, and (B) why the High Court must be taken to agree…
iNOW! is a modest initiative from the ATO built on a simple idea – ‘anyone who reads legislation and writes down what it means needs to know this stuff’. Over 140 cases and 31 episodes later, iNOW! is an accessible toolkit of principle and practice. This year alone, AustLII will record over 2500 cases dealing with the subject in one …
Kemp v Medical Board of Australia [2017] VSC 691
When may a court overturn a longstanding decision on interpretation? There is a reluctance to do so unless the earlier decision is clearly wrong2. But, it is no part of the judicial role to perpetuate error, even where provisions have been re-enacted3. Decided cases also should not …
Kaczmarski v Legal Services Board [2017] VSC 690
The statute allowed Kaczmarski 7 days to appeal a notice posted on 1 May. He emailed his appeal at 7.43pm on 10 May. Did he lodge in time? A thing is ‘lodged’ if it is deposited in person (or electronically) and accepted, said the judge (at [32-36]). An email is ‘lodged’ when …
Lewis v Sergeant Riley [2017] NSWCA 272
What if 2 Acts provide separate rights of appeal from the same proceedings? In this case: one to the District Court, one to the Supreme Court. The answer, said Basten JA (at [5, 21]), is not to assume inconsistency, but instead to try and give each provision an operation consistent with its terms. …
FCT v Hacon Pty Ltd [2017] FCAFC 181
This case confirms that the ATO can decline to make a private ruling where it ‘would depend on which assumptions were made about a future event’11. One argument rejected (at [21-27]), however, was that provisions about making private rulings and applying for them should ‘be read as a composite’12…
