BENNION ON STATUTORY INTERPRETATION ... - Francis Bennion

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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 www.francisbennion.com/5th-edn 24
BENNION ON STATUTORY INTERPRETATION Fifth Edition Updating Notes (Version 24, 25 Mar 2010) Court and others v Fenyvesi and another [2009] EWHC 231 (Admin), [2009] 4 All ER 324 at [2]. Section 24. Judicial review Pages 163-164 Relevant Index entry: declaration [New entry, not in fifth edition] As to the cases where under modern law a court will make a declaration see Office of Fair Trading v Foxtons Ltd [2009] EWCA Civ 288, 3 All ER 697, at [52]-[60]. Section 26. Dynamic processing of legislation by courts and other enforcement agencies Page 167 Relevant Index entry: precedent, doctrine of:obiter dictum [New entry, not in fifth edition] The term obiter dictum derives from the Latin for a saying uttered „by the way‟, originally two words ob iter. The OED (2nd edn 1992) cites, from the title page of Augustine Birrell‟s book Obiter Dicta (1884): „An obiter dictum, in the language of the law, is a gratuitous opinion, an individual impertinence [that is something strictly not pertinent] which, whether it be wise or foolish, right or wrong, bindeth none - not even the lips that utter it.‟ In 2008 Mummery LJ said: „There is no point in cluttering up the law reports with obiter dicta, which could, in some cases, embarrass a court having to decide the issue later on‟: Housden and another v Conservators of Wimbledon and Putney Commons [2008] EWCA Civ 200, [2008] 3 All ER 1038, at [31]. Nevertheless they are so cluttered up. Page 174 Relevant Index entry: per incuriam decision:nature of The definition given on Code page 174 was described by the Court of Appeal as „the modern doctrine of per incuriam in criminal cases‟: see R v BR [2003] EWCA Crim 2199 at [30]. Pages 174-175 Relevant Index entry: Lords, House of:precedent, and For a more recent example of an overruling under the 1966 Practice Statement see A v Hoare and other appeals [2008] UKHL 6, [2008] 2 All ER 1 (overruling Stubbings v Webb [1993] 1 All ER 322). Section 28. Types of Act Page 188 Relevant Index entry: declaratory enactment Applied by the Federal Court of Australia in Seafarers’ Retirement Fund Pty Ltd v Oppenhuis [1999] FCA 1683 at [14]. Part II. The Instrument to be Interpreted: Acts of Parliament Section 28. Types of Act Pages 189-190 Relevant Index entry: constitutional rights For the rights of aboriginal peoples see Kent McNeil, „Aboriginal Governments and the Canadian Charter of Rights and Freedoms‟, www.ohlj.ca/archive/articles/34_1_mcneil.pdf. Page 191 Relevant Index entry: tax law rewrite Acts In Grays Timber Products Ltd v Revenue and Customs (Scotland) [2010] UKSC 4 Lord Walker said (at [7]): „It is regrettable that ITEPA 2003, which came into force on 6 April 2003 and was intended to rewrite income tax law (as affecting employment and pensions) in plain English, was almost at once overtaken by massive amendments which are in anything but plain English‟ (see also [56]). Section 32. Overriding effect of an Act www.francisbennion.com/5th-edn 25
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