BENNION ON STATUTORY INTERPRETATION ... - Francis Bennion

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BENNION ON STATUTORY INTERPRETATION Fifth Edition Updating Notes (Version 24, 25 Mar 2010) ALJR 841, at [78]-[81]. See also Red Roll Pty Ltd v Multiplex Latitude Retail Landowner Pty Ltd, Multiplex WS Retail Landowner Pty Ltd and AWPF Management Pty Ltd [2008] NSWADT 200 at [54]. Page 442 Relevant Index entry: presumptions of construction:Pointe Gourde rule On this rule see Transport for London (formerly London Underground Ltd) v Spirerose Ltd (in administration) [2009] UKHL 44, [2009] 4 All ER 810; Bocardo SA v Star Energy UK Onshore Ltd and another [2009] EWCA Civ 579, [2010] 1 All ER 26, at [104]-[107], [113]. Section 158. When strained construction needed Pages 458-463 Relevant Index entry: strained construction:reasons justifying Henry LJ applied Code s 158(a) (repugnancy) in Hyde Park Residence Ltd v Secretary For Environment, Transport & Regions & Anor [2000] EWCA Civ 13 at [34]. Code s 158 was applied by the Singapore High Court in Chang Mei Wah Selena and Others v Wiener Robert Lorenz and Others and Other Matters [2008] SGHC 97 at para. 20. This was upheld on appeal: see [2009] SGCA 7 at [49]-[51]. See entry for pp 971-979 s. 313 „absurdity‟ above. For an example of strained construction see the Australian case of Enfield v R [2008] NSWCCA 215 at [97]. Part VIII. Legislative Intention Section 163: Legislative intention as the paramount criterion Page 470 Relevant Index entry: counter-intuitive readings To the references to counter-intuitive readings at lines 3-4 and footnote 2, add: Giles v Rhind [2008] EWCA Civ 118, [2008] 3 All ER 697, at [17]. See also 5th edn page 1091 n3. Section 164. Is legislative intention fictitious? Page 472-474 Relevant Index entry: intention, legislative:fictitious, whether The Australian Justice Keith Mason said „Bennion is surely correct in describing [see p. 474] the suggestion that there can be no true intention behind an Act of Parliament as “antidemocratic”‟ („Legislators‟ intent: how judges discern it and what they do if they find it‟ , IALS, 2 November 2006, 67). The Federal Court of Australia upheld the validity of Code s 164 in NAAV v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 228 at [432]-[433]. Section 166. The duplex approach to legislative intention Page 477 Relevant Index entry: intention, legislative:duplex approach to The Federal Court of Australia upheld the validity of Code s 166 in NAAV v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 228 at [432]-[433]. Section 167. Legislative intention and delegation to the court Page 479 Relevant Index entry: processing of enactments, dynamic: courts, by www.francisbennion.com/5th-edn 34
BENNION ON STATUTORY INTERPRETATION Fifth Edition Updating Notes (Version 24, 25 Mar 2010) „, , , prescriptive reformulations of the legislative test [by the court] can be dangerous. This is partly because recasting the legislative test can lead to error, as it runs the inherent risk of unintentionally inventing a different test from that set out in the legislation. In addition, any reformulation can lead to problems not thrown up by the statutory wording, in which case it makes matters worse rather than better. Nonetheless, there are undoubtedly legislative provisions which, either because they are so obscure or because they must be given some sort of limitation which is not expressed, may well benefit from judicial exegesis, in order to decide whether, and if so how, they apply in the particular case, and also to assist in their application in future occasions.‟ (Smith v Northamptonshire County Council [2009] UKHL 27, per Lord Neuberger at [77], [78]). Section 171. Intention distinguished from motive Page 484 Relevant Index entry: political factors:enactment, behind With regard to the words preceding Example 171.1 see Schiemann LJ‟s comment that the Restrictive Trade Practices Act 1976 „clearly represents a compromise between a variety of commercial and political considerations‟: Dale Farm Dairy Group Ltd (t/a Northern Dairies) v Akram & Ors [1997] EWCA Civ 2125. Part IX. Filling in the Textual Detail Section 172. Nature of a legislative implication Pages 488-489 Relevant Index entry: ellipsis (the Relevant Index entry should not be italicised) As to the passage on pp. 488-489 see In re UK Waste Management[1999] NICA 2; [1999] NI 183; at para. 24 and Electricity Supply Assoc of Australia Ltd v Australian Competition and Consumer Commission [2001] FCA 1296 at [102]. Section 173. Is it legitimate to draw implications? Pages 491-494 Relevant Index entry: implication:legitimacy of The Australian Judge Merkel J, citing Code s 173, said: „it has been long accepted that the legal meaning of an enactment includes what is necessarily or properly implied so as to give effect to the legislative intention gleaned from the language used (Chun Wang v Minister for Immigration & Multicultural Affairs [1997] FCA 70). See also Re Application by the Local Government Auditor [2003] NIQB 21 at [11], [12]. The like ruling was made by the Court of Appeal of New Zealand in Frucor Beverages Limited v R T Fyers & Ors [2001] NZCA 109 at [36]. Section 174. When legislative implications are legitimate Page 494 Relevant Index entry: implication:legitimacy of In Shantha Karunaratna Jayasinghe v Minister for Immigration & Ethnic Affairs & Anor [1997] FCA 551 the Federal Court of Australia said: „The threshold of “necessity” has been rejected in favour of the formulation that the implication be “proper”. In Austereo Ltd v Trade Practices Commission (1993) 41 FCR 1 French and Beazley JJ accepted as a correct formulation the following passage in Bennion . . . „ (the FCA went on to cite the passage at Code p 495 beginning „The question of whether an implication should be found within the express words of an enactment depends . . .‟ and ending „Where the point is doubtful it will, as always in interpretation, call for a weighing and balancing of the relevant factors‟). See www.francisbennion.com/5th-edn 35
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BENNION ON STATUTORY INTERPRETATION ... - Francis Bennion

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