Penal provisions

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 are part of the context, but a ‘very minor consideration to be taken into account’ when ascertaining meaning8

In theory at least, the old rule may have some role where ordinary principles of interpretation have ‘run out’ and ‘all other indicia’ fail to provide guidance9iTip – in practice, however, it will be a rare case indeed which is resolved on this default basis. 

This case is from Episode 35 of interpretationNOW!


7 Beckwith (1976) 135 CLR 569 (at 576), Aubrey [2017] HCA 18 (at [39]).

8 Forestry [2018] NSWLEC 10 (at [53]), Grajewski [2017] NSWCCA 251 (at [55]).

9 Lavender [2005] HCA 37 (at [93]), Imerva [2017] VSCA 168 (at [87]).