Statutes and common law

Fairfax Media v Gayle [2019] NSWCA 172

Chris Gayle the cricketer sued Fairfax for defamation – it was in all the papers.  Leeming JA (at [258-259]) commented on the ‘symbiotic relationship’ between statutes and the common law11.  They are not separate and independent sources of law, he said.

This is a subtle and difficult area, but with practical impacts.  One example from Episode 39 makes the point12.  When a common law term is used in a legislative code, does the full common law meaning go across into the code?  The answer given there was ‘no’13iTip – at all points of intersection between statutes and the common law, it is important to investigate context and purpose.

This case is from Episode 51 of interpretation NOW!


11 Brodie [2001] HCA 29 (at [31]), Middleton J (2016) 40 MULR 626 (at 627).

12 Hayman [2018] WASCA 116.

13 cf R v LK [2010] HCA 17 (at [96-97]), Boughey [1986] HCA 29 (at [43]).