BENNION ON STATUTORY INTERPRETATION ... - Francis Bennion

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BENNION ON STATUTORY INTERPRETATION Fifth Edition Updating Notes (Version 24, 25 Mar 2010) Section 355. Construction of Act or other instrument as a whole Pages 1157-1160 Relevant Index entry: words:every word to be given meaning This passage was relied on in Re Mary Robertson [2001] ScotCS 94 at [11]. Pages 1160-1161 Relevant Index entry: words:different words given different meanings The court followed the dictum of Blackburn J which follows Example 355.14 on pp. 1160-1161 in James, Re An Application for Judicial Review [2005] NIQB 38 at [21]. See also Kelly v Minister for Defence & Anor [2008] IEHC 223. Pages 1160-1161 Relevant Index entry: elegant variation As to the remarks on elegant variation on pp. 1160-1161 see Omagh District Council, Re Judicial Review [2007] NIQB 61 at [50]. Page 1163 Relevant Index entry: repugnancy:within same Act In Ignatious v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1395 at [67] the Federal Court of Australia held the rule in Wood v Riley „to be as applicable to regulations as it is to statutes‟. Page 1164 Relevant Index entry: generalibus specialia derogant: [incorrectly given in the Index as generalia specialia derogant] See Henry Boot Construction (UK) Ltd v Malmaison Hotel Ltd [2000] EWCA Civ 175; R (on the application of AW) v London Borough of Croydon [2005] EWHC 2950 (QB) at [17]; R v Boutrab [2007] NICA 23 at [25], [32]. Part XXVII. Linguistic Canons of Construction: Interpretation of Particular Words and Phrases Section 363. Ordinary meaning of words and phrases Pages 1190-1191 Relevant Index entry: time:tense „. . . unless the contextual imperative to the contrary is very powerful indeed, the use of the present tense excludes the future, let alone the future conditional. It would seem wrong to extend a duty owed to a person who satisfies a statutory requirement to a person who currently does not satisfy the requirement simply because he will or may do so in the future.‟ (R (on the application of M) v Slough Borough Council [2008] UKHL 52, [2008] 4 All ER 831, at [55], per Lord Neuberger). „I think the use of the present tense, indicated by the word “is”, provides the best guide to what the phrase means‟: Majorstake Ltd v Curtis [2008] UKHL 10, [2008] 2 All ER 303, at [3]. It may be intended to refer to a situation which subsists over time, that is both in the present and in the future: see Manchester City Council v Moran [2009] UKHL 36, [2009] 4 All ER 161, (housing of homeless persons). Page 1192 Relevant Index entry: disjunctive use of ‘and’ [New entry, not in fifth edition] Example 363.25 was applied in relation to „crime and disorder‟ in Blackpool Borough Council v Howitt [2008] EWHC 3300(Admin), [2009] 4 All ER 154, at [17]-[20]. Page 1193 Relevant Index entry: omission to act For the fixing of an artificial date for the notional occurrence of an omission to act see Matuszowicz v Kingston Upon Hull City Council [2009] EWCA Civ 22, [2009] 3 All ER 685, where Sedley LJ said at [38] that the required contentions „demand a measure of poker-faced insincerity which only a lawyer could understand or a casuist forgive‟. www.francisbennion.com/5th-edn 60
BENNION ON STATUTORY INTERPRETATION Fifth Edition Updating Notes (Version 24, 25 Mar 2010) Section 364. Composite expressions Page 1192 Relevant Index entry: ordinary meaning:nature of On the meaning of „and‟ and „or‟ see Pilling and others v Reynolds and another [2008] EWHC 316 (QB), [2009] 1 All ER 163, at [21]. Page 1193 Relevant Index entry: existence Regarding the first line on this page, a reference to a collective noun, such as a „woodland‟, which includes things in posse as well as things in esse is taken to include both: see Palm Developments Ltd v Secretary of State for Communities and Local Government [2009] EWHC 220 (Admin) at [42] (tree preservation order). Pages 1193-1197 Relevant Index entry: composite expressions Code s 364 was applied by New South Wales Appeal Court in Victims Compensation Fund v Scott Brown & Ors [2002] NSWCA 155 at (ix). Pages 1196-1197 Relevant Index entry: weightless drafting This passage was applied by New South Wales Appeal Court in Victims Compensation Fund v Scott Brown & Ors [2002] NSWCA 155 at (ix). For examples of weightless drafting see Palm Developments Ltd v Secretary of State for Communities and Local Government [2009] EWHC 220 (Admin) at [26], where Cranston J said that such provisions „avoid the need for unprofitable disputes‟. Page 1198 Relevant Index entry: hendiadys See the Australian case of Victims Compensation Fund Corporation v Brown [2003] HCA 54; (2003) 201 ALR 260; (2003) 77 ALJR 1797, at [34]. Section 365. Technical terms (general) Page 1198 Relevant Index entry: technical terms:interpretation of For a discussion by the Supreme Court of Victoria of the passage beginning „Where it is possible to identify a particular expertise . . .‟ see The Distribution Group Ltd v Commissioner of Taxation [2000] VSC 418 at [32]. Section 366. Technical legal terms Pages 1199-1200 Relevant Index entry: free-standing term In Schanka v Employment National (Administration) Pty Ltd [2000] FCA 202 at [13] the Federal Court of Australia discussed this passage and held that „duress‟ was not a free-standing legal term. This was applied in Maritime Union of Australia v Burnie Port Corporation Pty Ltd [2000] FCA 1189 at [26]. Section 367. Technical non-legal terms Page 1205 Relevant Index entry: technical terms:non-legal terms As to the case dealt with in Example 367.7 see the Irish case Quigley -v- Harris [2008] IEHC 403. Section 369. Neologisms and slang Page 1209 Relevant Index entry: neologism www.francisbennion.com/5th-edn 61
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