Hi! Here’s another bounce and bucket. Today’s random $0.02, aka the bounce, is nerves; and bucket is reading Regulations! What fun!
Game 5, scores tied, Dame Lillard (Portland vs OKC) casually dribbles over half court – only just. Stares down the defender. And with 2 seconds left, puts up an outrageously long 3. Drains it.
Stadium (and me in Sydney) goes nuts. Gets smothered by teammates — and his expression: calm. Just doing his job.
So, next big moment, try not to get nervous. Just take care of your business and believe in yourself!
Now, the bucket. If you have regulations made under a statute, do you read the two independently? No!
In Master Education v Ketchell (2008) 236 CLR 101 at , the High Court emphasised that regulations are to be construed according to ordinary principles of construction — which requires that they be placed in their statutory context. And, in the case of regulations, the context includes the legislation under which they are enacted, with which they are required to be consistent.
So, next time you are construing a set of regulations make sure that the interpretation is consistent with the statute.
Today’s bounce – my $0.02 on a basketball related topic – is Elena.
She is the newest member of the 50-40-90 club and the first in the WNBA to do it. That is, she just shot over 50% for 2, 40% 3 pointers, and 90% free throws. Very rare accomplishment – reserved to great shooters like Steph, Reggie, KD, and Elena. But check that free throw percentage – 97.4 in the last season!!!!
Whaaaattt!!! Steph and Steve Nash currently best ever in NBA at 90.4. Elena is crushing them with a career percent of 93.4%!!!! Respect to Elena, the GOAT from the line. Appreciate greatness.
Now to the bucket – $0.02 on a legal principle. In a recent bucket I mentioned statutory interpretation where one must interpret a statute with conflicting internal provisions. What about two conflicting statutes?
Where that happens, one must strive to read the conflicting statutes together (as opposed to, for example, saying that the later enactment impliedly repeals the earlier). A convenient discussion of this concept can be found in Re Maritime Union; Ex parte CSL Pacific (2003) 214 CLR 397,  HCA 43 at 411  per Gleeson CJ, McHugh, Gummow, Kirby, Hayne, Callinan and Heydon JJ.
My overriding feeling was dismay. No, something stronger: anguish perhaps; a deep-seated melancholy; combined with a sense of frustration and futility.
Why, do you ask?
Because recently Ben Simmons (as reported in the SMH) is getting a lot of hate. Well, I’m a lover, not a hater.
Big Ben, that magnificent, majestic, six-foot-ten, preternatural, phenom, point-guard, can guard 1 to 5, dunk in yo face, pass like Magic, unstoppable force after a turnover and on the break, triple double machine: what a man. There’s a pretty good chance that Philly is going to be my alternate team on nights that the Warriors aren’t playing, with a genuine shot at willing the whole thing this year (certainly East presently feels like a Philly vs Bucks with Giannis battle; battling for the right to lose to the Clippers in the Finals). So, Big Ben, I’m in your corner buddy. You do you. Don’t listen to the haters. Particularly don’t listen to Alan James, or whatever his name is.
That’s my bounce — the $0.02 regarding the electronic activity in my cranium. Now for the bucket — an equivalent amount regarding a legal principle.
If you’re interpreting a statute, and there are two provisions that don’t sit easily together, you have to find an interpretation which “will best give effect to the purpose and language of those provisions while maintaining the unity of all the statutory provisions”. That is, if there is a way of analysing the provisions so that they fit together, rather than being in conflict, that will ordinarily represent the preferable construction. But what’s a good case with that principle? Ah, the old chestnut: Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355,  HCA 28 at 381–382 - per McHugh, Gummow, Kirby and Hayne JJ. Doing a “note-up” on that is a sure fire way to keep your internet browser occupied for a few minutes while the zillion cases that have cited it get brought up.
’m back. It’s Wednesday — much to my dismay. Allow me to elaborate. I woke up thinking it was Thursday and I only had to get through two days until Friday night. But then I checked my phone to make sure, and the crushing truth of being on the underside of the mid-week hump dawned on me. Even coffee has only partially improved my disposition. Better than last week though, when, on Wednesday, I was two days off and thought it was Friday. That, let me assure you, was brutal. (Look I know this has nothing to do with basketball but it’s the off season ok gimme a break — probably Steph Curry is just as discombobulated as I am — hang on a second I just slipped in a reference!)
That’s the bounce (as avid readers know, my $0.02 on what is going on in my brain). Here’s the bucket (my $0.02 on a legal principle).
Say you have a breach of contract case. Can the innocent party terminate?Look no further dearest reader: what you want is Koompahtoo Local Aboriginal Land Council v Sanpine Pty Ltd (2007) 233 CLR 115,  HCA 61 at -. Gleeson CJ, Gummow, Heydon and Crennan JJ explained, broadly speaking, that a breach of a warranty does not permit the innocent party to terminate; a breach of a condition does permit termination; and a sufficiently serious breach of a non-essential term can also permit termination — depending on the nature of the event to which the breach gives rise. Certainly a useful place to start if you are called on to study this aspect of the law.
Bounces — my $0.02 on what is happening in my brain. Sometimes up, sometimes down.
Buckets — my $0.02 on a legal concept. Hopefully swishing through with nothing but net.
I came across an article saying that Lebron James gets 8 to 10 hours sleep a night. Wowsers. I wish. But maybe there’s something to it. After a bit of a rowdy Saturday, and then a Sunday when I didn’t want my weekend to finish so I stayed up late, those two nights of little sleep put me in a murderous mood yesterday (combined with Mondayitis). But a better rest last night and I’m ready to go today. Maybe not sleeping enough is what’s been holding back my NBA career… Self-care though is something to aim for and easy to forget.
That’s the bounce.
Here’s the bucket: if you’ve got a case involving a contract, and it just doesn’t make sense, what’s the legal position? Obviously many cases on this, but one goodie is some fellow called Dixon CJ said in Fitzgerald v Masters(1956) 95 CLR 420 at 426–427: “Words may generally be supplied, omitted or corrected, in an instrument, where it is clearly necessary in order to avoid absurdity or inconsistency.” That is, if something has gone horribly wrong in the drafting, the court can (at least sometimes) fix it up. Obviously it’s not often that a contract can be characterised in this way, but if so, that snippet might be where the answer lies.