Annotated Case List
Module 1 - Introduction to Statutes
Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27 [per: French CJ] - text,context, purpose.
Brennan v Comcare (1994) 50 FCR 555 [per: Gummow J at 572-3] - dealing with legislation is different to dealing with case law/precedent operates differently.
Coleman v Power (2004) 209 ALR 182 [per: Kirby J] - ‘court may adopt a construction not argued by the parties’
Commissioner of Stamps (SA) v Telegraph Investment Co (1995) 184 CLR 453 [per: Brennan CJ, Dawson and Toohey JJ] - approach to reading amended legislation - read Act and amendment together.
Concrete Constructions v Nelson [1990] HCA 17 - discussion of role of headings to Parts and Divisions.
Goodwin v Phillips (1908) 7 CLR 1 - example of repeal by implication.
Hornsby Building Information Centre Pty Ltd v Sydney Building Information Centre Ltd [1978] HCA 11 - discussion of use of headings, and other sections as context for section being interpreted.
Ogden Industries Pty Ltd v Lucas [1970] AC 113 [ref: Lord Upjohn at 127] - job of the Court to construe the legislation each time, not simply rely on past interpretations.
R v White (1899) 20 LR (NSW) 12 - insert brief summary/key principle here.
Ragless v Prospect City Council [1922] SASR 299 at 311 [per: Murray CJ] - Rules re use of headings
Re the Commercial Bank of Australia Ltd (1893) 19 VLR 333 - the Part provides the immediate context for the section
Re Wakim; ex parte McNally (1999) 198 CLR 511 - cross vesting not possible
Telstra Corp v Treloar (2000) 102 FCR 595 [ref: Branson and Finkelstein JJ] - court’s attitude to precedent.
Module 2 - Common Law Approach to Statutory Interpretation
K-Generation Pty Limited v Liquor Licensing Court [2009] HCA 4 [ref: French CJ] - K-Generation applied for a liquor license, Police Commissioner intervened in process and said they were not ‘fit and proper’ but said information was classified under s28A of Liquor Licensing Act. K-Gen said s28A was invalid as it denied procedural fairness. French CJ:
‘Before the constitutional validity of a statute is considered its meaning and operation must be ascertained. The point of departure in that exercise is the ordinary and grammatical sense of the words having regard to their context and legislative purpose. Interpretation is also to be informed by the principle that the Parliament, whether of the State or the Commonwealth, did not intend its statute to exceed constitutional limits. It should be interpreted, so far as its words allow, to keep it within constitutional limits. That is a principle of general application.’ [text, context, purpose]
Engineers case (Amalgamated Society of Engineers v Adelaide Steamship (1920) 28 CLR 129 [at 161-2 Higgins J] - “a statute is to be expounded according to the intent of the Parliament ... found by an examination of the language used in the statute as a whole … when we find what the language means, in its ordinary and natural sense, it is our duty to obey that meaning, even if we consider the result to be inconvenient or impolitic or improbable.”
Weitman v Katies Ltd (1977) ATPR 40-041 - used Oxford English Dictionary to establish meaning of ‘misleading’ and ‘deceptive’.
ACCC v Lux [2004] FCA 926 - used dictionary to establish meaning of ‘unconscionable conduct’ .
State Chamber of Commerce and Industry v Commonwealth (1987) 163 CLR 329 - used Macquarie Dictionary to establish meaning of ‘fringe benefits’.
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 [McHugh, Gummow, Kirby and Hayne JJ at 384] - “…the duty of the court is to give the words of a statutory provision the meaning that the legislature is taken to have intended them to have. Ordinarily, that meaning (the legal meaning) will correspond with the grammatical meaning of the provision. But not always. The context of the words, the consequences of a literal or grammatical construction, the purpose of the statute or the canons of construction may require the words of a legislative provision to be read in a way that does not correspond with the literal or grammatical meaning.”
Grey v Pearson (1857) 6HL Cas 61 [Lord Wensleydale] - (discussing Golden Rule) “I have been long and deeply impressed with the wisdom of the rule, now I believe universally adopted, at least in the Courts of Law in Westminster Hall, that in construing wills and indeed statutes, and all written instruments, the grammatical and ordinary sense of the words is to be adhered to, unless that would lead to some absurdity, or some repugnance or inconsistency with the rest of the instrument, in which case the grammatical and ordinary sense of the words may be modified, so as to avoid that absurdity and inconsistency, but no farther.”
Adler v George [1964] 2 QB 7 - Golden rule was used to fix an absurdity. “In the vicinity of any prohibited place” was taken to mean “in or in the vicinity of any prohibited place.”
R v Oakes [1959] 2QB 350 - Golden rule was used to fix an absurdity. ‘Any person who aids or abets and does any act preparatory to the commission of an offence’ should have read “or does any act preparatory’
Heydon’s case (1584) - First case to use the mischief rule. Allowed the Court to look at the “the mischief and defect for which the common law did not provide” to establish the purpose of Parliament where there is ambiguity or inconsistency.
Kennon v Spry (2008) 83 ALJR 145 [Gummow and Hayne JJ] - Despite statutory definition of ‘property’, attention must still be paid to: “the subject matter, scope and purpose of the relevant statute” to determine its meaning in a way which advances that purpose.
Parkdale v Puxu [Gibbs CJ] - “misleading or deceptive or likely to mislead or deceive. Those words are on any view tautologous. One meaning which the words "mislead" and "deceive" share in common is "to lead into error". If the word "deceptive" in s. 52 stood alone, it would be a question whether it was used in a bad sense, with a connotation of craft or overreaching, but "misleading" carries no such flavour, and the use of that word appears to render "deceptive" redundant. The words "likely to mislead or deceive", which were inserted by amendment in 1977, add little to the section; at most they make it clear that it is unnecessary to prove that the conduct in question actually deceived or misled anyone.”
Fallas v Mourlas [2006] NSWCA 32 [Ipp JA] - “In a case of clear ambiguity … a construction that might result in potential unfairness and injustice should be avoided and a fair and just construction is to be preferred.”
Wacando v Commonwealth of Australia and the State of Queensland (1981) 148 CLR 1 Re: extrinsic materials - Mason J: generally speaking, reference could not be made to Hansard, but an exception could be made where a Bill was introduced to remedy a mischief.
Avel Pty Ltd v Attorney-General for NSW (1987) 11 NSWLR 126 ]Kirby P] - “The legislation relevant to the present appeal…does nothing to add to the coherency of this body of law. It is a jumble of ill-matched and poorly integrated enactments. If there is now to be found a common thread through it all, it would seem to be nothing more than revenue raising. The conclusion suggests that the only safe approach to the construction of the web of applicable legislation is an attention to the literal words of the legislation. A ‘purposive’ approach founders in the shallows of a multitude of obscure, uncertain and even apparently conflicting purposes.”
Shipping Corp of India Ltd v Gamlen Chemical Co (A’asia) Pty Ltd (1980) 147 CLR 142 - where legislation adopts international convention or treaty it should be interpreted consistently with international principles for reading treaties.
Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225 - where legislation incorporates provisions of treaty, the meaning should be determined in accordance with the treaty provisions, eg Vienna Convention on Interpretation of Treaties and “the rules generally applicable to the interpretation of domestic statutes give way”.
K & S Lake City Freighters Pty Ltd v Gordon & Gotch Ltd (1985) 60 ALR 509 [Mason J] - the Act must be read as a whole - “the cardinal rule of statutory interpretation that requires the words of a statute to be read in their context”.
CIC Insurance v Bankstown Football Club Ltd (1997) 187 CLR 384- “context operates in its widest sense – to ‘include such things as the existing state of the law and the mischief which...one may discern the statute was intended to remedy.’
Re Castioni [1891] 1 QB 149 - words are assumed to be used consistently
Craig Williamson Pty Ltd v Barrowcliff [1915] VLR 450 [Hodges J] - “any document should be construed as far as possible so as to give the same meaning to the same words wherever those words occur in that document … There ought to be very strong reasons present before the Court holds that words in one part of a section have a different meaning from the same words appearing in another part of the same section.”
Commissioner of Taxes (Vic) V Lennon (1921) 29 CLR 579 [Higgins J] - Intention is paramount. “...although it is always well to use the same word for the same thing and not to change the language unless a change in meaning is intended, the presumption that arises from variations in language is of very slight force if the words in themselves are sufficiently clear.”
Chappell and Co Ltd v Assoc Radio Co of Australia Ltd [1925] VLR 350 - copyright legislation restricted ‘public performances’. Playing of a record was deemed a public performance even though the technology did not exist, and thus was not in contemplation when the legislation was written.
Re Treneski and Comcare (2004) 80 ALD 760 - Federal Court scale allowed recovery of costs for "machine made copies". This was deemed to include hard copies of emails, even though the technology did not exist when the scale was prepared.
National Rugby League Investments Pty Limited v Singtel Optus Pty Ltd - Court prefered a “technology neutral interpretation” of “make” e.g. copyright could be breached in ways not foreseeable at time of enactment. Did not apply to this case as there was a clearly limited legislative purpose.
Woodside Energy Ltd v Federal Commissioner of Taxation (2009) 174 FCR 91- insert brief summary/key principle here.
Bourne v Norwich Crematorium Ltd [1967] 1 WLR 691 [Stamp J] - “Sentences are not mere collections of words to be taken out of the sentence, defined separately by reference to the dictionary or decided cases, and then put back again into the sentence with the meaning which one has assigned to them as separate words, so as to give the sentence or phrase a meaning which as a sentence or phrase it cannot bear without distortion of the English language”
R v Ann Harris (1836) 7C&P 446 - Noscitur a sociis. “Stab, cut or wound”. Biting did not qualify as words imply that an instrument needed to be used.
Attorney-General v Brown [1920] 1 KB 773 - Ejusdem generis. “the importation of arms, ammunition, gunpowder, or any other goods... “
Quazi v Quazi [1980] AC 744 [Scarman LJ] - Ejusdem generis is “is, at best, a very secondary guide to the meaning of a statute. The all important matter is to consider the purpose”
Mattison v Multiplo Incubators Pty Ltd [1977] 1 NSWLR 368 [Majoney JA] - Ejusdem generis has very limited use.
Module 3 - Role of Statutory Interpretation Legislation
Re Flavel [1916] SALR 47 - example of how commencement works - minute past midnight
Lipshut v MacKay [1950] VLR 57 [Deane J] - the exact moment at which a repealed Act ceases to apply and a new Act commences is said to be seamless – no gap. No “hiatus nor any overlapping”:
Mills v Meeking (1990) 169 CLR 214 [Dawson J]
YOU NEED TO DO THIS
R v L (1994) 49FCR 543 [Burchett, Miles and Ryan]- “the requirement of s15AA(1) that one construction be preferred to another can have meaning only where two constructions are otherwise open, and s15AA(1) is not a warrant for redrafting legislation nearer to an assumed desire of the legislature”
Chugg v Pacific Dunlop Pty Ltd (1990) 95 ALR 481- Old s15AA was limited to two interpretations
W v City of Perth (1997) 191 CLR 1 - A purpose or objects clause should be interpreted in the context of the Act as a whole
Victims Compensation Fund v Brown (2002) 54 NSWLR 668 - no legislation pursues its purpose at all costs; limits on role of purpose
Bermingham v Corrective Services Commission of New South Wales (1988) 15NSWLR 292 [McHugh JA] - “To give effect to the purpose of the legislation, a court may read words into a legislative provision if by inadvertence Parliament has failed to deal with an eventuality required to be dealt with if the purpose of the Act is to be achieved.”
R v Young (1999) 46 NSWLR 681 per Spigelman CJ - “Construction must be text based”
Nelson v Nelson [1995] HCA 25 - YOU SHOULD DO THIS
Lacey v A-G (Qld) (2011) 242 CLR 573 - YOU SHOULD DO THIS
Zheng v Cai (2009) 239 CLR 446 - YOU SHOULD DO THIS
NAAV v Minister for Immigration (2002) 123 FCR 298 - insert brief summary/key principle here.
Momcilovic v The Queen (2011) 245 CLR 1 - “‘intention’ is a conclusion reached about the proper construction of the law in question and nothing more”
Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41 - “the task of statutory construction must begin with a consideration of the text itself. Historical considerations and extrinsic materials cannot be relied on to displace the clear meaning of the text. The language which has actually been employed in the text of legislation is the surest guide to legislative intention. The meaning of the text may require consideration of the context, which includes the general purpose and policy of a provision, in particular the mischief it is seeking to remedy.”