Transcript PPT - The University of Sydney

Grammar refresher
Resources
• Grammar for Lawyers
– 2nd edition
– Michael Meehan and Graham Tulloch
– Butterworths Guides
• LEC’s opt in language course
Why bother with grammar?
• Because it helps clarity of thought
• It helps clarity of expression and drafting
• It helps understanding of legislation (and
contracts and other documents)
• Legislative drafters use it – and we need to
interpret it
• Judges use it – and we need to understand
what they are telling us
Drafting and grammar
• Contracts and legislation
• ‘Million Dollar comma case’
• section 8.1 of the 2002 SSA reads:
– Subject to the termination provisions of this
Agreement, this Agreement shall be effective from
the date it is made and shall continue in force for
a period of five (5) years from the date it is made,
and thereafter for successive five (5) year terms,
unless and until terminated by one year prior
notice in writing by either party.
Courts and grammar
• Literal rule
• All construction begins with a reading of the
section and looks at the relationship between
the parts of the section
• Similar to parsing
• May not end with a grammatical
understanding, but must be based on a
grammatical understanding
Secretary, Department of Social Security
v Copping [1987] 12 ALD 634 per Burchett J at 638
In my opinion the presumptive rule lacks its full force in
application to the identical verbiage of s6AD(1)(c) and
s6AD(3), because in the first use of the words a person is
the subject of the verb ‘could not be expected’, but in the
second instance an abstract noun phrase ‘the annual rate
of income’ is the subject of the verb. In the first instance
the idiomatic connotation suggested is of an enquiry as to
what it would be reasonable to expect of the verb’s subject
‘the person’ or ‘the person’s spouse’. In the second
instance it is easier to conceive a connotation of enquiry as
to what annual rate of income it would be reasonable to
expect the property to produce if it were exploited to yield
income, without regard to the identity, and therefore
without regard to the circumstances or feelings of the
exploiter.
NSW v The Commonwealth [1990] ALR 355
per Mason CJ, Brennan, Dawson, Toohey, Gaudron and McHugh JJ
To fall within the other limb, a corporation must
be a foreign corporation, that is, a corporation
formed outside the limits of the Commonwealth.
The distinction based on the place of formation
is obvious, but the basis of the distinction is
formation. The word ‘formed’ is a past participle
used adjectivally, and the participial phrase
‘formed within the limits of the Commonwealth’
is used to describe corporations which have
been or shall have been formed in Australia.
What should you know?
• Sentences, phrases and clauses – what is the
difference?
• Parts of speech – nouns, verbs, adverbs,
adjectives , articles etc (and how they relate to
phrases and clauses).
• Punctuation – more than just full stops.
• Vocabulary – what words actually mean, not
what you think they mean, and how to choose
the right word, not simply one which the
thesaurus suggests.
Phrase, Clause, Sentence or?
•
•
•
•
•
•
Walking down the street
The quick brown fox
Time flies
The judge dismissed the jury
Hope for the best and prepare for the worst
He said
Analysing sentences
Subject/object/verb:
• Parliament resumes today
• Great minds think alike
• Water surrounds the island
Parts of speech
• Nouns/verbs/adjectives/adverbs
• Issues:
– Noun/verb agreement, especially with collective
nouns
• Our staff (consist/consists) of skilled people
from a number of backgrounds.
• The committee (have/has) decided to approve
the amended proposal.
Nouns: abstract or concrete?
Section (4) provides that a reference in s46 to a
market is a reference to a market for goods or
services. The Act does not otherwise seek to define
what is meant by the word ‘market’. That is not
surprising since the word is not susceptible of
precise comprehensive definition when used as an
abstract noun in an economic concept. The most
that can be said is that ‘market’ should, in the
context of the Act be understood in the sense of an
area of potential close competition in particular
goods and/or services.
Per Deane J in Queensland Wire
Nouns/adjectives
Noun
Adjective
____________
Acceptance
____________
Reliance
Defective
____________
Requisite
____________
Pronouns
• A pronoun is used instead of a noun:
– Personal
– Demonstrative
– Relative
– Interrogative
– Generic
Exercises
• I went to the office early this morning and did
not see ____ there
• It is important that ___ be there to welcome
___
• The lawyers in that firm are rather old
fashioned in ____ approach and ____ need to
modernise.
Articles
• Definite and indefinite
• Whether or not there is a particular item
denoted by the noun
• Important legal distinctions often turn on the
precise identification of the article and its
function
Goold v Commonwealth of Australia
(1993) 114 ALR 135 per Wilcox J at 139/40
For reasons both of language and likely policy, it seems
to me that it would be wrong to interpret the words
‘the needs of an acquiring authority’ in such a way as to
refer only to the needs of the particular acquiring
authority that ultimately acquired the land. So far as
language is concerned, it is significant that the drafter
of the paragraph used an indefinite article ‘an’ rather
than the definite article ‘the’. The word ‘an’ suggests an
intention that it be enough that the intention was to
meet the needs of any acquiring authority...
Exercises
Correct these sentences by adding articles as
appropriate:
• Parties signed contract today after having
discussed price.
• If there is telephone call for me about case, put
it through.
• Lawyer about whom I spoke arrived at meeting
today too late to advise about amount of
damages company could get.
Prepositions
• Prepositions connect nouns (or pronouns) to
some other word.
• Prepositional phrases such as with regard to,
in relation to, in addition to, in compliance
with are common in legal English.
• Problematic – can be vague/ambiguous.
Dennis Hotels Pty Ltd v Victoria
(1960) 104 CLR 529 per Fullagar J at 554
Probably no one would dissent from the broad
proposition that it is an essential element in
the character of a duty of excise that it should
be a tax ‘upon goods’. But the whole weight of
that expression is carried by, and ambiguity
lurks in, the humble preposition, for which is
sometimes substituted a prepositional phrase
such as ‘in respect of’ or ‘in relation to’.
Taxes may be charged upon property, real or
personal, in the sense that there is a direct
remedy against the property for recovery of
the tax. But nothing of that kind is meant
when we speak, in the present universe of
discourse of a tax ‘upon goods’. Goods as such
cannot pay taxes, there must be a person who
can pay them.
Exercises
Replace the missing prepositions in the gaps in
the following sentences:
• Ten units must be delivered ____ the buyer ___
30 November
• This agreement can be terminated ___ giving
not less than 30 days notice___ writing
• Rent will be paid ___ accordance ____ this
agreement
H Jones and Co Pty Ltd v Kingsborough
Corporation (1950) 82 CLR 282 per Dixon J at 319
The observations quoted what is, I suggest, the
solution of the difficulty in the present case. It lies
in recognising that a draftsman in using the word
‘such’ may not have in mind all the precise
qualities which by an adjectival phrase he may
have attributed to his antecedent in an earlier part
of his text and may really intend to refer only to
the general nature of the thing or concept to which
he has occasion again to refer. In yielding to the
temptation to employ the word ‘such’ and avoid all
repetition he may not have seen or been alive to
all the implications which a logical application of
the word involves.
WA v The Commonwealth [1975] ALR 159
per Murphy J
The plaintiffs contended that there is an implied
limitation in s57 that if an opportunity for a
double dissolution, justified in respect of a
particular proposed law, is not acted upon
promptly, the opportunity for the double
dissolution lapses in respect of that proposed
law. They contended that there should be read
into s57 an adverb or adverbial clause of time
such as ‘thereupon’ or ‘within a reasonable time’
as a condition of the exercise of the power of the
Governor – General to dissolve both Houses,
which is to use an extraordinary mechanism to
resolve deadlocks between the two Houses.