mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Mills v Cooper [1967] 2 QB 459
Outcome: considered
Various authorities are cited in support of the proposition. It is necessary to refer to only three of them. In Mills v Cooper [1967] 2 QB 459 at 470, a divisional court considered a prosecution in which it was alleged that a particular person was a gypsy, that term being taken to mean, not a person of the Romany race, but a person leading a nomadic life with no fixed employment and with no fixed abode. At 470, Diplock LJ said: 'Once it is recognized that being a gipsy [sic] is not an unalterable status but depends upon the way of life which a person is leading at any particular time, it is plain that the incorrectness of the assertion made in the previous proceedings is not inconsistent with the correctness of the assertion made in the proceedings now under appeal. The justices accordingly would not have been right in holding that the prosecution were not entitled to, or were estopped from asserting that the defendant was a gipsy [sic] on March 13, 1966, and from proving it if they can.'
Case: Carl Zeiss Stiftung v Rayner &amp; Keeler Ltd (No 2) [1967] AC 853
Outcome: considered
Similarly, in Carl Zeiss Stiftung v Rayner &amp; Keeler Ltd (No 2) [1967] AC 853, the House of Lords was concerned with the question of whether a local authority (the council of Gera) was the legal representative of a German corporation at a particular date. In earlier proceedings in West Germany it had been held that the council was not authorized to represent the corporation. At 913, Lord Reid observed: 'The second requirement for res judicata is identity of subject-matter. As to this, it has become common to distinguish between cause of action estoppel and issue estoppel. There is certainly no cause of action estoppel here. The question before the German court was whether the Council of Gera were the legal representatives of the Stiftung at one date. The question here is whether at a different date the solicitors had the authority of the Stiftung to raise this action. An answer, yes or no, to the first question does not necessarily imply a similar answer to the second.'
Case: Bank of Western Australia Ltd v Commissioner of Taxation (1994) 55 FCR 233
Outcome: cited
I accept that I should not depart from the ratio decidendi of the Hamersley decision unless I am satisfied it is 'clearly wrong' or 'plainly wrong': see Nezovic v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs (No 2) [2003] FCA 1263 ; (2003) 133 FCR 190 (' Nezovic ') at 206, [52]; Marr v Australian Telecommunications Corp (1991) 34 FCR 82; Upperedge v Bailey (1994) 13 ACSR 541 at 543; Bank of Western Australia Ltd v Commissioner of Taxation (1994) 55 FCR 233 at 255. It would not be sufficient for a judge to merely reach one view, which he or she may prefer over that of an earlier decision, and upon that basis not follow the strong persuasive authority that has already pronounced on the same legislative provision. Before a judge refuses to follow an earlier decision regarding the construction of the same legislative provision he or she must come to the view the earlier decision is 'clearly wrong' or 'plainly wrong'.
Case: Boral Besser Masonry Ltd v Australian Competition and Consumer Commission [2003] HCA 5 ; (2003) 215 CLR 374
Outcome: considered
The Council, however, submitted that the economic evidence was admissible in order to provide context to the task of interpreting Part IIIA of the Act. It submitted that since Queensland Wire Industries Pty Ltd v Broken Hill Pty Co Ltd (1989) 67 CLR 77, the courts have approached the Act as an economic statute designed to address economic activity. It was submitted that, critically, the courts have understood that the character of the Act as an economic statute must be taken into account in construing the words of the Act and, in this regard, economic theory and writings may be considered: see Boral Besser Masonry Ltd v Australian Competition and Consumer Commission [2003] HCA 5 ; (2003) 215 CLR 374 (' Boral Besser ') at 454, [247] per McHugh J. Like the High Court, the Tribunal recognised the importance of economic concepts in the consideration and understanding of the purpose of Part IIIA: see Re Australian Union of Students (1997) 147 ALR 458 at 462-463. 172 In the process of my reasoning, reliance has been placed upon relevant legitimate extrinsic material (referred to by the parties), including the Hilmer Report. However, I have found helpful the discussion of the economic experts as to the nature and the context in which Part IIIA is to operate, although in this regard this has been no more than an elaboration of the relevant legitimate extrinsic material referred to me by the parties. I see nothing inappropriate in the court having regard to and admitting into evidence expert evidence to inform itself as to the nature of and the context in which Part IIIA is to operate, just as it would be appropriate for the court to consider any economic writings on the subject: see Boral Besser at 454, [247] per McHugh J. By admitting the expert evidence for this purpose, the material is presented in evidentiary form and all the parties know precisely the extent of the material that is before the court and that which is to be considered by the court.
Case: Cabell v Markham (1945) 148 F (2d) 737
Outcome: cited
Nevertheless, context is important. The significance of context was articulated well by Learned Hand J, first in Helvering v Gregory (1934) 69 F (2d) 809 at 810: It is quite true...that as the articulation of a statute increases, the room for interpretation must contract; but the meaning of a sentence may be more than that of the separate words, as a melody is more than the notes, and no degree of particularity can ever obviate recourse to the setting in which all appear, and which all collectively create. And also in Cabell v Markham (1945) 148 F (2d) 737 at 739: ...of course it is true that the words used, even in their literal sense, are the primary, and ordinarily the most reliable, source of interpreting the meaning of any writing: be it a statute, a contract or anything else. But it is one of the surest indexes of a mature and developed jurisprudence not to make a fortress out of the dictionary; but to remember that statutes always have some purpose or object to accomplish, whose sympathetic and imaginative discovery is the surest guide to their meaning.
Case: Central Bayside General Practice Association Ltd v Commissioner of State Revenue [2006] HCA 43 ; (2006) 80 ALJR 1509
Outcome: considered
Nevertheless, one must recall the statement of Kirby J in Central Bayside General Practice Association Ltd v Commissioner of State Revenue [2006] HCA 43 ; (2006) 80 ALJR 1509 at 1528, [84] : Where the law in issue is expressed in the form of an Act of an Australian legislature, it is in the words of that statute that the content of the legal obligation is to be found, not in judicial synonyms, restatements or approximations. 101 This is a statement of principle which, as Kirby J indicated has been repeated and emphasised on many occasions: (see the cases referred to by his Honour in fn 64).
Case: Collector of Customs v Agfa-Gevaert Ltd [1996] HCA 36 ; (1996) 186 CLR 389
Outcome: considered
The process of construction of the definition of 'service' and the expression 'use of a production process' must begin by examining the context in which the definition appears and giving the words 'presumptively the most natural and ordinary meaning which is appropriate in the circumstances': Collector of Customs v Agfa-Gevaert Ltd [1996] HCA 36 ; (1996) 186 CLR 389 at 398 (' Agfa '), applying Maunsell v Olins [1975] AC 373 at 391. That is, the court must give the words a meaning which is consistent with the language and purpose of Part IIIA and the Act as a whole. It is important to remember that whilst for the purpose of these proceedings one focuses upon the definition of 'service', it is just that, a definition. One must consider the operative provision that incorporates that definition, and determine the purpose and ambit of the operative provisions. 168 The general rule of statutory interpretation is that words used in a statute are given their most natural and ordinary meaning which is appropriate in the circumstances. Consistent with a purposive approach to the interpretation of the expression 'use of a production process', the court would be entitled to receive expert economic evidence to assist in the interpretation of that phrase if it had a technical or specialised meaning: see, e.g. Agfa at 401; Pepsi Seven-Up Bottlers Perth Pty Limited v Commissioner of Taxation (1995) 62 FCR 289 at 297-8; Re Michael ; Ex parte Epic Energy (WA) Nominees Pty Ltd (2002) 25 WAR 511 (' Re Michael ') at 543-544, [107]. Whether the words of a statute are to be given their ordinary meaning or a technical or specialised meaning is a question of law for the court: see Agfa at 396-398.
Case: Helvering v Gregory (1934) 69 F (2d) 809
Outcome: cited
Nevertheless, context is important. The significance of context was articulated well by Learned Hand J, first in Helvering v Gregory (1934) 69 F (2d) 809 at 810: It is quite true...that as the articulation of a statute increases, the room for interpretation must contract; but the meaning of a sentence may be more than that of the separate words, as a melody is more than the notes, and no degree of particularity can ever obviate recourse to the setting in which all appear, and which all collectively create. And also in Cabell v Markham (1945) 148 F (2d) 737 at 739: ...of course it is true that the words used, even in their literal sense, are the primary, and ordinarily the most reliable, source of interpreting the meaning of any writing: be it a statute, a contract or anything else. But it is one of the surest indexes of a mature and developed jurisprudence not to make a fortress out of the dictionary; but to remember that statutes always have some purpose or object to accomplish, whose sympathetic and imaginative discovery is the surest guide to their meaning.
Case: Hematite Petroleum Pty Ltd v Victoria [1983] HCA 23 ; (1982) 151 CLR 599
Outcome: distinguished
Apart from the decision in Hamersley , BHPBIO relied upon the case of Hematite Petroleum Pty Ltd v Victoria [1983] HCA 23 ; (1982) 151 CLR 599 (' Pipeline Tax Case') in the consideration of the question of what is encompassed by the concept of production process. The question in that case was whether the Pipelines (Fees) Act 1981 (Vic) purported to impose a duty of excise, contrary to s 90 of the Constitution , and accordingly was invalid. By majority (Mason, Murphy, Brennan and Deane JJ, Gibbs CJ and Wilson dissenting), the High Court so held.
Case: House of Peace Pty Ltd v Bankstown City Council [2000] NSWCA 44 ; (2000) 48 NSWLR 498
Outcome: considered
I should also mention two other matters which are relevant to my deliberation. First, one should be mindful of the well-recognised limit to the use to be made of dictionary definitions of words. In House of Peace Pty Ltd v Bankstown City Council [2000] NSWCA 44 ; (2000) 48 NSWLR 498 at 505, [28] , Mason P (with whom Stein and Gyles JJ agreed) observed, in relation to the role of a dictionary meaning of a word in the task of statutory interpretation, that: They can illustrate usage in context, but can never enter the particular interpretive task confronting a person required to construe a particular document for a particular purpose.
Case: Marr v Australian Telecommunications Corp (1991) 34 FCR 82
Outcome: cited
I accept that I should not depart from the ratio decidendi of the Hamersley decision unless I am satisfied it is 'clearly wrong' or 'plainly wrong': see Nezovic v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs (No 2) [2003] FCA 1263 ; (2003) 133 FCR 190 (' Nezovic ') at 206, [52]; Marr v Australian Telecommunications Corp (1991) 34 FCR 82; Upperedge v Bailey (1994) 13 ACSR 541 at 543; Bank of Western Australia Ltd v Commissioner of Taxation (1994) 55 FCR 233 at 255. It would not be sufficient for a judge to merely reach one view, which he or she may prefer over that of an earlier decision, and upon that basis not follow the strong persuasive authority that has already pronounced on the same legislative provision. Before a judge refuses to follow an earlier decision regarding the construction of the same legislative provision he or she must come to the view the earlier decision is 'clearly wrong' or 'plainly wrong'.
Case: Mills v Meeking [1990] HCA 6 ; (1989) 169 CLR 214
Outcome: considered
In Mills v Meeking [1990] HCA 6 ; (1989) 169 CLR 214 at 235 Dawson J clearly explains this principle, stating: However, if the literal meaning of a provision is to be modified by reference to the purposes of the Act, the modification must be precisely identifiable as that which is necessary to effectuate those purposes and it must be consistent with the wording otherwise adopted by the draftsman. Section 35 [of the Interpretation of Legislation Act 1984 (Vic)] requires a court to construe an Act, not rewrite it, in the light of its purposes.
Case: Network Ten Pty Ltd v TCN Channel Nine Pty Ltd [2004] HCA 14 ; (2004) 218 CLR 273
Outcome: considered
In Network Ten Pty Ltd v TCN Channel Nine Pty Ltd [2004] HCA 14 ; (2004) 218 CLR 273 the High Court restated a number of the key principles of statutory interpretation. In doing so, the Court cited with approval (at 280, [11]) the following extract from the judgment of the High Court in CIC Insurance Ltd v Bankstown Football Club Ltd [1997] HCA 2 ; (1997) 187 CLR 384 at 408 (footnotes omitted): Moreover, the modern approach to statutory interpretation (a) insists that the context be considered in the first instance, not merely at some later stage when ambiguity might be thought to arise, and (b) uses "context" in its widest sense to include such things as the existing state of the law and the mischief which, by legitimate means such as those just mentioned, one may discern the statute was intended to remedy. Instances of general words in a statute being so constrained by their context are numerous. In particular, as McHugh JA pointed out in Isherwood v Butler Pollnow Pty Ltd , if the apparently plain words of a provision are read in the light of the mischief which the statute was designed to overcome and of the objects of the legislation they may wear a very different appearance. Further, inconvenience or improbability of result may assist the court in preferring to the literal meaning an alternative construction which, by the steps identified above, is reasonable open and more closely conforms to the legislative intent. 91 Furthermore, s 15AA of the Acts Interpretation Act 1901 (Cth) requires that a construction which promotes the purpose or object underlying the Act is to be preferred to a construction that would not promote that purpose or object. This is so even if the meaning of the words, interpreted in the context of the rest of the Act, is clear. When the purpose or object is brought into account, an alternative interpretation of the words may become apparent. However, I accept that if the words of a legislative provision are capable of only one construction, taking into account the purpose and context of the provision, then a court cannot ignore them and substitute a different construction because the court considers it somehow furthers the object of the legislation.
Case: Newcastle City Council v GIO General Ltd [1997] HCA 53 ; (1997) 191 CLR 85
Outcome: considered
Justice McHugh made the same observation in Newcastle City Council v GIO General Ltd [1997] HCA 53 ; (1997) 191 CLR 85 at 109: ...in applying a purposive construction, "the function of the court remains one of construction and not legislation". When the express words of a legislative provision are reasonably capable of only one construction and neither the purpose of the provision nor any other provision in the legislation throws doubt on that construction, a court cannot ignore it and substitute a different construction because it furthers the objects of the legislation.
Case: Nezovic v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs (No 2) [2003] FCA 1263 ; (2003) 133 FCR 190
Outcome: considered
I accept that I should not depart from the ratio decidendi of the Hamersley decision unless I am satisfied it is 'clearly wrong' or 'plainly wrong': see Nezovic v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs (No 2) [2003] FCA 1263 ; (2003) 133 FCR 190 (' Nezovic ') at 206, [52]; Marr v Australian Telecommunications Corp (1991) 34 FCR 82; Upperedge v Bailey (1994) 13 ACSR 541 at 543; Bank of Western Australia Ltd v Commissioner of Taxation (1994) 55 FCR 233 at 255. It would not be sufficient for a judge to merely reach one view, which he or she may prefer over that of an earlier decision, and upon that basis not follow the strong persuasive authority that has already pronounced on the same legislative provision. Before a judge refuses to follow an earlier decision regarding the construction of the same legislative provision he or she must come to the view the earlier decision is 'clearly wrong' or 'plainly wrong'. 99 Justice French in Nezovic noted that the rule that one judge of the same or co-ordinate jurisdiction should follow another has greater significance in the area of statutory construction. His Honour said (at 206, [52]): The judgment of Hely J in Tuncok is a carefully considered and recent judgment on the same issue as is before me in the present proceedings. Unless I was satisfied that his Honour was plainly wrong, I would not be justified in departing from the ratio of his decision on that point. In that respect I refer to what I said in Hicks v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 757. Judicial comity does not merely advance mutual politeness between judges of the same or co-ordinate jurisdictions. It supports the authority of the courts and confidence in the law by the value it places upon consistency in judicial decision-making and mutual respect between judges. Where questions of law and in particular statutory construction are concerned, the view that a judge who has taken one view of the law or a statute is "clearly wrong" is not lightly to be adopted having regard to the choices that so often confront the courts particularly in the area of statutory construction.
Case: Pepsi Seven-Up Bottlers Perth Pty Limited v Commissioner of Taxation (1995) 62 FCR 289
Outcome: cited
The general rule of statutory interpretation is that words used in a statute are given their most natural and ordinary meaning which is appropriate in the circumstances. Consistent with a purposive approach to the interpretation of the expression 'use of a production process', the court would be entitled to receive expert economic evidence to assist in the interpretation of that phrase if it had a technical or specialised meaning: see, e.g. Agfa at 401; Pepsi Seven-Up Bottlers Perth Pty Limited v Commissioner of Taxation (1995) 62 FCR 289 at 297-8; Re Michael ; Ex parte Epic Energy (WA) Nominees Pty Ltd (2002) 25 WAR 511 (' Re Michael ') at 543-544, [107]. Whether the words of a statute are to be given their ordinary meaning or a technical or specialised meaning is a question of law for the court: see Agfa at 396-398.
Case: R v Bradbourn [1985] Crim LR 682
Outcome: considered
It is tempting to say that in any particular case a court may well be able to recognise a 'service' just as it can recognise an elephant when it sees one, but may not find it necessary to define it (see, e.g. R v Bradbourn [1985] Crim LR 682). The difficulty with this approach is that it provides little, if any, guidance on the considerations that need to be considered in arriving at a reasoned decision.
Case: Rail Access Corporation v New South Wales Minerals Council Ltd (1998) 87 FCR 517
Outcome: considered
The Full Court confirmed the distinction between 'above rail' (transportation) and 'below rail' (infrastructure) services in its decision in Rail Access Corporation v New South Wales Minerals Council Ltd (1998) 87 FCR 517 (' Rail Access Case '). The Rail Access Case concerned the question of whether the NSW Rail Access Corporation provided a 'government coal-carrying service' within the meaning of Part IIIA of the Competition Policy Reform Act 1995 (Cth) which could therefore not be a 'service' within the meaning of Part IIIA of the Act. Rail Access Corporation did not carry coal itself or offer the service of carrying coal, but it owned the railway line which Freight Rail Corporation used to carry coal and provided a below rail service to third parties seeking to run trains to transport coal on its tracks and related infrastructure. 85 In considering the definition of 'service' in s 44B, the Full Court held, at 524: The definition of "service" in s 44B of the Act makes clear that a service is something separate and distinct from a facility. It may, however, consist merely of the use of a facility. The definition of "service" distinguishes between the use of an infrastructure facility, such as a road or railway line, and the handling or transporting of things, such as goods or people, by the use of a road or railway line. The fact that one service provider, such as Freight Rail Corporation, is using the railway line infrastructure facility made available to it by Rail Access Corporation for the purposes of carrying coal by rail does not mean Rail Access Corporation is carrying on, or is the provider of, a service of carrying coal by rail. There is a clear distinction, enshrined in the Transport Administration Act and confirmed by the NSW Rail Access Regime, between the service provided by Rail Access Corporation and the service provided by Freight Rail Corporation. Freight Rail Corporation provides the service of transporting coal. Rail Access Corporation provides to Freight Rail Corporation the different service of making available the infrastructure facility which is necessary to enable Freight Rail Corporation to provide the transportation service. The respondent is seeking access to the service provided by Rail Access Corporation, not the service provided by Freight Rail Corporation. 86 The Full Court concluded that the provider of a rail network or permanent way provides a different service to an entity that provides the service of carrying or transporting the coal using the rail network.
Case: Re Australian Union of Students (1997) 147 ALR 458
Outcome: considered
Part IIIA of the Act is to be interpreted as part of an economic statute designed to address economic activity. This does not mean that each and every word or expression found in Part IIIA of the Act is to be interpreted as an economic word or expression, just that the economic context of Part IIIA of the Act provides the setting within which to interpret words and expressions. The importance of the economic context was recognised by the Australian Competition Tribunal ('the Tribunal') in Re Australian Union of Students (1997) 147 ALR 458 at 462: Part IIIA is based on the notion that competition, efficiency and public interest are increased by overriding the exclusive rights of the owners of "monopoly" facilities to determine the terms and conditions on which they will supply their services. 165 The Council, however, submitted that the economic evidence was admissible in order to provide context to the task of interpreting Part IIIA of the Act. It submitted that since Queensland Wire Industries Pty Ltd v Broken Hill Pty Co Ltd (1989) 67 CLR 77, the courts have approached the Act as an economic statute designed to address economic activity. It was submitted that, critically, the courts have understood that the character of the Act as an economic statute must be taken into account in construing the words of the Act and, in this regard, economic theory and writings may be considered: see Boral Besser Masonry Ltd v Australian Competition and Consumer Commission [2003] HCA 5 ; (2003) 215 CLR 374 (' Boral Besser ') at 454, [247] per McHugh J. Like the High Court, the Tribunal recognised the importance of economic concepts in the consideration and understanding of the purpose of Part IIIA: see Re Australian Union of Students (1997) 147 ALR 458 at 462-463.