BENNION ON STATUTORY INTERPRETATION ... - Francis Bennion

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BENNION ON STATUTORY INTERPRETATION Fifth Edition Updating Notes (Version 24, 25 Mar 2010) The first complete paragraph at the top of page 823 was applied by the Supreme Court of New Zealand in Lisa Cropp v A Judicial Committee and Bryan McKenzie [2008] NZSC 46 at [26]. Part XVII. Principle against doubtful penalisation Section 271. Principle against penalisation under a doubtful law Page 825 Relevant Index entry: doubtful penalisation, principle against In R v T [2008] EWCA Crim 815 at 4, Latham LJ referred to „the well-known passages in Bennion Part XVII entitled The Principle Against Doubtful Penalisation‟. The principle against doubtful penalisation was relied on in Perrin and another v Northampton Borough Council and others [2008] EWCA Civ 1353, [2008] 4 All ER 673, at [34]. Code s 271 was applied to delegated legislation by the Federal Court of Australia in Hanna v Migration Agents Registration Authority [1999] FCA 1657 at [22], [23]. The principle against doubtful penalisation was discussed in Gordon, Re Application for Judicial Review [2006] NIQB 20 at [21]. Page 826 Relevant Index entry: doubtful penalisation, principle against:nature of To the authorities listed in footnote 3 on page 826 add: Revenue & Customs v Walsh [2005] EWCA Civ 1291 at [10]; Crofts & Ors v Cathay Pacific Airways Ltd & Ors [2005] EWCA Civ 599 at [22]; AG’s Reference 004/2003 under s 36 of Criminal Justice Act 1988 v Suchedina [2004] EWCA Crim 1944, [2005] 1 WLR 1574, at [12]. Page 828 Relevant Index entry: doubtful penalisation, principle against:nature of As to the passage at the beginning of p. 828 see Re An Application for Judicial Review, Landlords Association for Northern Ireland [2005] NIQB 22 at [46]. The passage headed Where other factors are stronger was followed in Council for the Regulation of Health Care Professionals v General Medical Council & Anor [2004] EWHC 527 (Admin) at [39]. Another relevant authority is Bowers v Gloucester Corporation [1963] 1 QB 881 at 886-887, where Lord Parker CJ referred to „having applied “all the canons of interpretation”„. Pages 828-829 Relevant Index entry: legal policy:property rights and For an Australian case where the principle of no deprivation without compensation was disapplied by clear words see Mount Lawley Pty Ltd v Western Australian Planning Commission [2004] WASCA 149 at [296]. Section 273. Statutory restraint of the person Page 836 Relevant Index entry: doubtful penalisation, principle against:physical restraint of the person Sir Igor Judge P: „The starting point is the hallowed principle that each and every detention must be justified by clear, unequivocal, legal authority‟: R (on the application of G) v Chief Constable of West Yorkshire Police [2008] EWCA Civ 28, [2008] 4 All ER 594, at [29]. Page 837 Relevant Index entry: habeas corpus „Scott Baker LJ said that it would require the strongest words . . . to remove the ancient remedy of habeas corpus . . .‟: per Lord Hope of Craighead in Re Hilali [2008] UKHL 3, [2008] 2 All ER 207, at [21]. Nevertheless that case decided that, as respects extradition decisions against which there is a right of appeal under the Extradition Act 2003 (European arrest warrant), habeas corpus is excluded by the clear and unequivocal wording of s. 34. Baroness Hale of Richmond said at [32]: „For better or worse we have committed ourselves to this system and it is up to us to make it work‟. www.francisbennion.com/5th-edn 48
BENNION ON STATUTORY INTERPRETATION Fifth Edition Updating Notes (Version 24, 25 Mar 2010) Section 278. Statutory interference with economic interests Page 846 Relevant Index entry: legal policy:property rights, and Code s 278 was applied by the Federal Court of Australia in Re Centronics Systems Pty Ltd; Maurice Latin; Tiberio Salice and Fabrizio Latin v Nintendo Company Ltd [1992] FCA 584; (1992) 111 ALR 13 (1992) 24 IPR 481 (1992) 39 FCR 147, at [81]. It was considered by the Federal Court of Australia in Re Registrar of Liquor Licences v Peter Iliadis; John Iliadis; Yfigenia Iliadis; Ilias Spyridopoulos and Despina Spyridopoulos [1988] FCA 328 at [13]. Page 848 Relevant Index entry: legal policy:property rights, and This principle was described by Walker J as „well-established‟ in The Independent Committee for the Supervision of Standards of Telephone Information Services v Andronikou & Ors [2007] EWHC 2307 (Admin) at [25]. As to the passage before Example 278.8 see Re An Application for Judicial Review, Landlords Association for Northern Ireland, [2005] NIQB 22 at [41]. Section 281. Statutory interference with rights of legal process Pages 853-858 Relevant Index entry: legal policy:legal process, rights of [New entry, not in fifth edition] Code s 281 was applied by the Federal Court of Australia in Kevin Walker v Secretary, Department of Social Security [1995] FCA 1136; (1995) 129 ALR 198 (1995) 36 ALD 513 (1995) 21 Aar 147, at [19]. Pages 857-858 Section 281 Relevant Index entry: appeal:right of As to the right of a non-party to be joined as an appellant or respondent see George Wimpey UK Ltd v Tewkesbury Borough Council (MA Holdings Ltd intervening) [2008 EWCA Civ 12, [2008] 3 All ER 859. Division Five. Interpretative Presumptions Based on the Nature of Legislation Part XVIII. Interpretative Presumptions (General) Section 285. Presumption that literal meaning to be followed Page 864 Relevant Index entry: literal construction:presumption regarding [New entry, not in fifth edition] Code s 285 was considered in Maguire v Director of Public Prosecutions [2004] 3 IR 241 and Kelly v Minister for Defence & Anor [2008] IEHC 223. Pages 868-869 Relevant Index entry: time:commonsense construction rule and See Knowsley Housing Trust v White [2008] UKHL 70 at [12]. Where power is given to act against a person it will be inferred that it is to be done within a reasonable period: R (on the application of SK) v Secretary of State for the Home Department [2008] EWCA Civ 1204, [2009] 2 All ER 365, at [8], [9]. Section 286. Presumption that consequential construction to be given Page 871 Relevant Index entry: consequential construction:‘beneficent‟ consequences of See R (on the application of Hammersmith & Fulham LBC and others v Secretary of State for Health [1997] EWHC Admin 658. The principle was applied by the Court of Appeal of New Zealand in Warwick Henderson Gallery Limited v Weston [2005] NZCA 272 at [41]. www.francisbennion.com/5th-edn 49
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