Case: Short v F W Hercus Pty Ltd [1993] FCA 51 ; (1993) 40 FCR 511
Outcome: cited
this approach, in United Firefighters' Union of Australia v Metropolitan Fire and Emergency Services Board [2006] FCAFC 84 , 152 FCR 18 it was concluded that the term " appeal " as used in a certified agreement did not include a claim for prerogative relief. Nicholson, Jacobson and Lander JJ there reasoned that " (T)he framers could hardly have had in mind that disputes under an agreement which includes matters such as worker safety could be delayed for many years while appeal steps in the Commission are pursued and then followed up by a claim for constitutional writs in the High Court ": at [64]. Their Honours previously observed at [53] that " the language of the instrument must be construed in its context, having regard to the subject matter and the wording of the entire agreement ...". Reference was there made by the Full Court to the judgment of Burchett J in Short v F W Hercus Pty Ltd [1993] FCA 51 ; (1993) 40 FCR 511 at 518. His Honour was there considering a clause in a Metal Industry Award and observed (references omitted): ... The context of an expression may thus be much more than the words that are its immediate neighbours. Context may extend to the entire document of which it is a part, or to other documents with which there is an association. Context may also include, in some cases, ideas that gave rise to an expression in a document from which it has been taken. When the expression was transplanted, it may have brought with it some of the soil in which it once grew, retaining a special strength and colour in its new environment. There is no inherent necessity to read it as uprooted and stripped of every trace of its former significance, standing bare in alien ground. True, sometimes it does stand as if alone. But that should not be just assumed, in the case of an expression with a known source, without looking at its creation, understanding its original meaning, and then seeing how it is now used. Very frequently, perhaps most often, the immediate context is the clearest guide, but the court should not deny itself all other guidance in those cases where it can be seen that more is needed. In literature, Milton and Joyce could not be read in ignorance of the source of their language, nor should a legal document, including an award, be so read. That much is fairly clear. Where there is seen to be a difficulty, the court can often go to the history of the matter. ... Is the court then forbidden to look past the document itself that is before it? The respondent says the instant award is clear, and we must shut our eyes to what went before. I think there are two answers to this argument. On the one hand, I do not accept that the award is clear on its face. The fact that I have given it a meaning by a process of construction (as it happens, contrary to the respondent's contention) cannot disguise the possibility of understanding the language, as the learned judge understood it, differently. ... That is certainly sufficient to justify a reference to its source. Where the circumstances allow the court to conclude that a clause in an award is the product of a history, out of which it grew to be adopted in its present form, only a kind of wilful judicial blindness could lead the court to deny itself the light of that history, and to prefer to peer unaided at some obscurity in the language. ...