BENNION ON STATUTORY INTERPRETATION ... - Francis Bennion

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BENNION ON STATUTORY INTERPRETATION Fifth Edition Updating Notes (Version 24, 25 Mar 2010) Africa And Another [2009] ZACC 22, http://41.208.61.234/uhtbin/cgisirsi/20090825152240/SIRSI/0/520/J-CCT91-08. Langa CJ says at [54]: „The applicant invoked the fact that the statute is remedial legislation, the purpose of which is to “express the values of the Constitution and to remedy the failure to respect such values in the past”. 34 He relied on Goedgelegen Tropical Fruits, where this Court held that the Constitution and remedial legislation “umbilically linked to the Constitution” ought to be interpreted in context and by offering a “generous construction over a merely technical or linguistic one”. 35 ‟ The footnote references are: 34 Department of Land Affairs and Others v Goedgelegen Tropical Fruits [2007] ZACC 12; 2007 (6) SA 199 (CC); 2007 (10) BCLR 1027 (CC); at para 55. 35 Id at para 53. I have not mentioned this supposed rule of interpretation in my writings because it is not part of the common law. As Blackstone said (Commentaries i 86) all statutes that are not declaratory are remedial, so there is no special case to apply the supposed rule to. Furthermore it is unsatisfactory to contrast the suggested „generous‟ construction with one that is „merely technical or linguistic‟. These do not fall into any accepted categories. A similar rule to the South African one just mentioned is applied in Hong Kong: see HKSAR v Lam Kwong Wai and Another (2006) 9 HKCFAR 574. It seems that these rulings should be regarded as relevant only for countries governed by a written constitution. Section 193. Basic rule of statutory interpretation Page 544 Relevant Index entry: statutory interpretation:basic rule The wording of Code s 193 was approved by the Supreme Court of Ireland in Maguire v DPP [2004] IESC 53. Page 545 Relevant Index entry: statutory interpretation:basic rule This page was relied on by the Barbados High Court in Cable and Wireless (Barbados) Ltd. v Fair Trading Commission and others (No. 1970 of 2003) at [36]-[37]. Section 195. The plain meaning rule Page 549 Relevant Index entry: plain meaning rule:meaning of The quotation from Halsbury’s Laws on this page was cited in R (on the application of D & M) v Secretary of State for Work & Pensions [2010] EWCA Civ 18 at [47]. For footnote 3 relating to this passage (which is erroneous) substitute: „4th edn, Vol 44 (1983), para 863‟. Section 197. The commonsense construction rule Page 551-558 Relevant Index entry: commonsense construction rule:nature of The wording of Code s 197 was approved: (1) by McGuinness J in Quinlivan v Governor of Portlaoise Prison [1998] 2 IR 113; (2) by O‟Higgins J in Mullins v Harnett [1998] 4 IR 426; (3) by Kearns J in Lawlor v Mr Justice Flood [1999] 3 IR 107. See also Billig, Re Application for Judicial Review [2006] ScotCS CSOH_148 at [35] (para xvi of Respondent‟s submissions). Dies non Where a period ends in a dies non it is common sense to treat it as extended to include the next dies utilis or working day: see Mucelli v Government of the Republic of Albania [2009] UKHL 2, [2009] 3 All ER 1035, at [84]. See Quinlivan v Governor of Portlaoise Prison [1997] IEHC 181; [1998] 2 IR 113 at paras. 48, 49. www.francisbennion.com/5th-edn 38
BENNION ON STATUTORY INTERPRETATION Fifth Edition Updating Notes (Version 24, 25 Mar 2010) Pages 555-556 Relevant Index entry: greater includes less This principle was applied by the Supreme Court of New South Wales in ASIC v Oliver Banovec (No. 2) [2007] NSWSC 961 at [28]. Section 198. The rule ut res magis valeat quam pereat Page 558 Relevant Index entry: res magis valeat quam pereat Code s 198 was applied by the High Court of Malawi in its ruling on the Malawi 1999 Presidential Election in Re Parliamentary and Presidential Elections Act 1993, www.sdnp.org.mw/elect99/mainstory.html (1999). Part XII Rules of Construction Laid Down by Statute Section 199. Statutory definitions Pages 562-564 Relevant Index entry: definition, statutory:potency of term defined See Optos Plc v Revenue & Customs [2006] UKSPC SPC00560 at para. 127. This principle was applied by the House of Lords in R (on the application of Heffernan) v Rent Service [2008] UKHL 58, [2009] 1 All ER 173 at [74] („locality‟); It was applied by the Industrial Relations Court of Australia in Western Newspapers Pty Ltd v Chrisyian Warren [1994] IRCA 122 („associated‟) and Hawkins and Anor v Commonwealth Bank of Australia [1996] IRCA 236 („redundancy‟). It was applied by the Federal Court of Australia in Minister for Immigration and Multicultural Affairs v Ye Hu [1997] FCA 1197 („usual occupation‟). It was applied by the New South Wales Appeal Court in Repatriation Commission v Vietnam Veterans’ Association of Australia NSW Branch Inc & Ors [2000] NSWCA 65 at [104] („sound medical-scientific evidence‟) and Manly Council v Malouf [2004] NSWCA 299 at [8] („shop‟). Page 565 Relevant Index entry: definition, statutory:substantive effect, having The passage in the middle of Code p 565 was applied by the Court of Appeal of the Northern Territory of Australia in Michael Munn v Agus & Anor (1997) 6 NTLR 84, [1997] NTSC 3, at [33]. Pages 569-570 Relevant Index entry: statutory interpretation:contrary intention [New entry, not in fifth edition] For a discussion of the principles involved in deciding on contrary interpretation (Code s 199(4)) see Re Dairy Framers of Great Britain Ltd [2009] EWHC 1389 (Ch), [2009] 4 All ER 241. In Re Interchase Corporation Limited (In Liquidation) and Sections 460 and 461 of the Corporations Law the Application of Gregory Paul Kelly and Richard Anthony Barber (Liquidators of Interchase Corporation Limited) [1993] FCA 595 at [27] the Federal Court of Australia applied Code s 199(4) where the contrary intention was not mentioned. Page 570 Relevant Index entry: definition, statutory:clarifying The dictum from IRC v Parker was applied in Health Service Executive -v- Commissioner for Valuation [2008] IEHC 178 at para. 9. Page 572 Relevant Index entry: definition, statutory:referential As to the passage on referential definitions on Code p. 572 see Elizabeth Court (Bournemouth) Ltd v Revenue & Customs [2007] UKSPC SPC00648. See also (in this table) the entry relating to incorporation by reference. Pages 573-574 Relevant Index entry: definition, statutory:enlarging www.francisbennion.com/5th-edn 39
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BENNION ON STATUTORY INTERPRETATION ... - Francis Bennion

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