Fortress Credit v Fletcher [2015] HCA 10

What happens when parliament re-enacts words already judicially construed?  As this case explains (at [15]), parliament ‘is taken to have intended the words to bear the meaning … judicially attributed to [them]’2.  This presumption does not bite in all situations3, but it was applied in this case to provisions concerning voidable transactions4

iTip 1 – take care with replacement or consolidating legislation in this context, as the presumption may be weaker or inapplicable – the rationale being that parliament has considered only the form and not the substance of the new law5iTip 2 – there must also be a considered decision on point, with lower court cases attracting less or maybe no weight6.

This case is from Episode 8 of interpretationNOW!


2  Re Alcan Australia [1994] HCA 34 (at [20]).

3  Electrolux [2004] HCA 40 (at [81]),  Pearce & Geddes (at [3.48]).

4  s 588FF of the Corporations Act 2001.

5  Melbourne Corporation (1922) 31 CLR 174 (at 186-188).

6  Re Judge Schoombee [2011] WASCA 129 (at [54]).