BENNION ON STATUTORY INTERPRETATION ... - Francis Bennion

BENNION ON STATUTORY INTERPRETATION
Fifth Edition Updating Notes (Version 24, 25 Mar 2010)
The distinction was applied in Tasmania v S [2004] TASSC 84 at [6]; L v Tasmania [2006]
TASSC 59 at [38]; Perpetual Trustee Company Limited v Albert and Rose Khoshaba [2006]
NSWCA 41 at [34]. It was applied by New South Wales Court of Appeal in James Hardie &
Coy Pty Ltd v Barry & Anor; Seltsam Pty Ltd v Barry & Anor [2000] NSWCA 353 at [3],
Fexuto Pty Limited v Bosnjak Holdings Pty Limited & Ors [2001] NSWCA 97 at [3] and State
Bank of NSW & Anor v Brown & Ors [2001] NSWCA 223 at [30]. It was applied by New
South Wales Court of Criminal Appeal in R v Ellis [2003] NSWCCA 319 at [95] and R v Smith
[2003] NSWCCA 381 at [95].
Page 130 Relevant Index entry: court:guidelines by
In exercising its appellate function to lay down guidelines as to the exercise of a discretion, a
court is not expounding a rule of law or practice or setting a binding precedent: Fletcher
(Executrix of the estate of Carl Fletcher (deceased) v A Train & Sons Ltd [2008] EWCA Civ
413, [2008] 4 All ER 699, at [11], [24].
Where a statutory discretion is apparently open, as with the Law of Property Act 1925 s 49(2),
there may be an unspecified determining factor (s 49(2) is subject to the fact that a deposit on
the sale of land is an „earnest‟): Midill (97PL) Ltd v Park Lane Estates Ltd and another [2008]
EWHC 18 (Ch), [2008] EWCA Civ 1227, [2009] 2 All ER 1067, at [52].
Page 130-133 Section 20(4) Relevant Index entry: differential readings: nature of
In the Australian case of Victims Compensation Fund Corporation v Brown [2003] HCA 54;
(2003) 201 ALR 260; (2003) 77 ALJR 1797, at [10] Heydon J said: „It is, of course, common
for seemingly small points of construction to generate such sharp and evenly held differences of
opinion . . .‟.
Section 21. Doctrine of judicial notice
Pages 136-138 Relevant Index entry: judicial notice:fact, of
The court will not take judicial notice of the alleged fact that the public perception of animals
has changed in recent times: Hanchett-Stamford v Attorney General and another [2008] EWHC
330 (Ch), [2008] 4 All ER 323, at [23].
Judicial notice will be taken of the fact that „local authorities are hard pressed, both in terms of
manpower and money .[and] expend very considerable sums of money for the benefit of
persons who have no lawful entitlement to be in this country‟: R (on the application of AC) v
Birmingham City Council [2008] EWHC 3036 (Admin), at [2].
Section 23. Adjudicating authorities with appellate jurisdiction
Page 143 Relevant Index entry: legal proceedings:academic or hypothetical point
Patten J warned against construing an enactment in the absence of factual information, adding:
„To construe the provisions in the abstract risks giving the words used an over-wide or
unrealistic explanation . . .‟ (Re Metronet Rail BCV Ltd (In PPP Administration) [2007] EWHC
2697 (Ch), [2008] 2 All ER 75, at [21], [22].) See also Code 5th edn p. 142 n. 7 (preliminary
point of law).
Page 144 Relevant Index entry: academic point
For a case similar to Example 23.1 see R (on the application of Gilboy) v Liverpool City
Council [2008] EWCA Civ 751, [2008] 4 All ER 127, at [2].
Page 150 Relevant Index entry: evidence:fresh evidence
Fresh evidence will not be admitted if this would be in breach of the rule in Henderson v
Henderson (1843) 3 Hare 100 which requires a party to bring his entire case before the court in
one hearing, rather than seeking a succession of piecemeal hearings: see Szombatheley City
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