BENNION ON STATUTORY INTERPRETATION ... - Francis Bennion

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BENNION ON STATUTORY INTERPRETATION Fifth Edition Updating Notes (Version 24, 25 Mar 2010) See entry for pp 969-1008 s. 312-318 „absurdity‟ above. Section 318. Avoiding a disproportionate counter-mischief Pages 1006-1008 Relevant Index entry: absurdity:counter-mischief [New entry, not in fifth edition] See entry for pp 969-1008 s. 312-318 „absurdity‟ above. Part XXII. Construction Against Evasion Section 319. Presumption that evasion not to be allowed Pages 1009-1014 Relevant Index entry: evasion of Act:presumption against For a case where counsel failed to raise fraud on an Act and the court declined to apply a strained construction, saying Parliament should deal with the problem, see Welwyn Hatfield Council v Secretary of State for Communities and Local Government & Anor [2010] EWCA Civ 26 at [35], [36], [44]-[47]. For the rule where a claimant with a good case is guilty of collateral fraud see Ul-Haq and others v Shah [2009] EWCA Civ 542, [2010] 1 All ER 73. In Repatriation Commission v William Harold Morris & Anor [1997] FCA 152 the Federal Court of Australia applied Code s 319 to prevent a tribunal delaying unreasonably in giving its decision. See also Re Australian Building Construction Employees’ and Builders Labourers’ Federation v the Master Builders’ Association of New South Wales [1986] FCA 380 at [28]. Section 320. Evasion distinguished from avoidance Pages 1014-1017 Relevant Index entry: evasion of Act:avoidance, distinguished from What cannot be done directly cannot be done indirectly: Equuscorp Pty Ltd v Belperio [2006] VSC 14 at [248]-[251] [Australia]. Section 322. Methods of evasion: doing indirectly what must not be done directly Page 1023 Relevant Index entry: evasion of Act:indirect Code s 322 was applied by New South Wales Appeal Court in Fairfield City Council v N & S Olivieri P/L [2003] NSWCA 41 at [26]. Section 324. Methods of evasion: repetitious acts Page 1025 Relevant Index entry: evasion of Act:repetitious acts, by Code s 324 has been adopted in Australia: see Secretary, Department of Treasury and Finance v Kelly [2001] VSCA 246 at [10]; Equuscorp Pty Ltd v Belperio [2006] VSC 14 at [248]-[251]. Section 326. Construction which otherwise defeats legislative purpose Page 1030 Relevant Index entry: statutory power:invalid exercise of The Australian Judge Merkel J said „there is particular force‟ in the statement at Code p. 1030 that „A construction will not be allowed which would enable persons charged with a statutory power or function to act in such a way as to truncate or otherwise modify what the legislature intended‟: Chun Wang v Minister for Immigration & Multicultural Affairs [1997] FCA 70). Earlier Merkel J had said of this passage: „the real point being made in the passage from www.francisbennion.com/5th-edn 54
BENNION ON STATUTORY INTERPRETATION Fifth Edition Updating Notes (Version 24, 25 Mar 2010) Bennion is that where a judge concludes that the legislature could not have intended that a statute could operate in a manner which defeats its manifest object or purpose, then an alternative interpretation must be preferred‟ (see Jurg Bollag & Anor v The Attorney-General of the Commonwealth of Australia & Anor [1997] FCA 1146). The passage was also relied on in Staines v Workcover/Allianz Australia Workers Compensation (S A) Ltd (Air International Pty Ltd) [2004] SAWCT 127 and in Byrne v Transport Accident Commission [2008] VSC 92 at [52]. Page 1030 Relevant Index entry: land:meaning of In relation to the definition of „land‟ in the Interpretation Act 1978 Sch 1 (see Example 326.5) note that the definition will not be attracted where a different term such as „the commons‟ is used: Housden and another v Conservators of Wimbledon and Putney Commons [2008] EWCA Civ 200, [2008] 3 All ER 1038, at [26]. Part XXIII. Application of Ancillary Rules of Law Section 327. Presumption that ancillary rules of law apply Page 1033 Relevant Index entry: ancillary rules of law:implied application of Arden LJ has given reasons why Parliament might not specify an ancillary rule of law but leave it as implied, see Revenue & Customs v BUPA Purchasing Ltd & Ors [2007] EWCA Civ 542 at [46] and London Borough of Lewisham v Malcolm & Anor [2007] EWCA Civ 763 at [57], [62]. The presumption specified in Code s. 327 was described as „well settled‟ in King, Re Application for Judicial Review [2002] NICA 48 at 58. Page 1036 Relevant Index entry: ancillary rules of law:implied application of As to the passage regarding contrary intention on p. 1036 see Moore v Scottish Daily Record & Sunday Mail Ltd [2007] ScotCS CSOH_24 at [22], [60], [71] (statutory modification of contract rules). Page 1042 Relevant Index entry: criminal law:mens rea For an amplification of the reference to mens rea on p. 1042 see FB‟s 2008 article „Offences by Children: The Mental Element‟. Section 329. Presumption that public law decision-making rules apply Page 1050 Relevant Index entry: decision-making rules:implied application of The presumption specified in Code s. 329 was described as „well settled‟ in King, Re Application for Judicial Review [2002] NICA 48 at 58. Pages 1054-1055 Relevant Index entry: proportionality:UK Law, in See note below on JF & Anor (on the application of R) v Secretary of State for the Home Department [2009] EWCA Civ 792, related to Pages 1330-1333 Pages 1055-1060 Relevant Index entry: natural justice:fairness „The rules of natural justice are one of the most important pillars of the common law‟: Dyson LJ in McNally v Secretary Of State For Education & Anor [2001] EWCA Civ 332 at [38]-[40]. See further X v West Midlands Police [2004] EWHC 61 (Admin) at [67]; Hampstead Heath Winter Swimming Club & Anor v Corporation of London & Anor [2005] EWHC 713 (Admin) at [33]. Pages 1056-1057 Relevant Index entry: decision-making rules:legitimate expectation On the development of the doctrine of legitimate expectation see R (Bhatt Murphy) v The Independent Assessor [2008] EWCA Civ 755. www.francisbennion.com/5th-edn 55
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