How does statu­to­ry inter­pre­ta­tion impact build­ing dis­putes in NSW?

How does statu­to­ry inter­pre­ta­tion impact build­ing dis­putes in NSW? Writ­ten laws like the Home Build­ing Act, build­ing codes, and indus­try stan­dards often leave room for mul­ti­ple inter­pre­ta­tions. This arti­cle explains how courts apply statu­to­ry inter­pre­ta­tion rules, such as the extrin­sic mate­ri­als rule under sec­tion 34 of the NSW Inter­pre­ta­tion Act 1987 and high­lights a recent case where inter­pre­ta­tion deter­mined the out­come of a defec­tive build­ing work claim.

A recent case con­duct­ed by Swaab illus­trat­ed how statu­to­ry inter­pre­ta­tion can apply in build­ing disputes.

Writ­ten laws include Acts of Par­lia­ment, indus­try codes of con­duct, build­ing stan­dards and codes and reg­u­la­tions. When peo­ple draft these laws, they do their best to make them clear but often the draft­ing results in sev­er­al alter­na­tive mean­ings. Lawyers are required to inter­pret these laws and there may be sev­er­al pos­si­ble meanings

To assist in the inter­pre­ta­tion of a writ­ten law, rules may apply includ­ing the extrin­sic mate­ri­als rule. This rule is set out in sec­tion 34 of the NSW Inter­pre­ta­tion Act 1987. Sec­tion 34 pro­vides that some doc­u­ments can be used in statu­to­ry inter­pre­ta­tion. These are doc­u­ments such as the sec­ond read­ing speech in par­lia­ment for a bill. In the sec­ond read­ing speech the min­is­ter respon­si­ble for the pro­posed act of par­lia­ment often gives a descrip­tion of what the new act sets out to do and achieve. This speech can be used in work­ing out what parts of that statute say.

Oth­er doc­u­ments include reports of Roy­al Com­mis­sions, Law Reform Com­mis­sions, com­mit­tees of enquiry or sim­i­lar bod­ies laid before either house before the pro­vi­sion was enact­ed and also reports of com­mit­tees of the par­lia­ment before a pro­vi­sion was enacted.

These doc­u­ments can how­ev­er only be referred to if the rel­e­vant pro­vi­sion is ambigu­ous or obscure or if the ordi­nary mean­ing leads to a result that is absurd or unreasonable. 

A recent case con­duct­ed by Swaab illus­trates the extrin­sic evi­dence rule. In this case, our clients made a claim against a builder for defec­tive build­ing work. Our clients said that the rel­e­vant Aus­tralian Stan­dard set out what the builder ought to do in his work to build a retain­ing wall. How­ev­er, the builder dis­agreed with our clien­t’s inter­pre­ta­tion of that stan­dard and said that the stan­dard actu­al­ly meant some­thing dif­fer­ent. The builder said he had com­plied with the stan­dard and car­ried out the work in accor­dance with his interpretation.

In order to prove that his inter­pre­ta­tion of the stan­dard was cor­rect, the builder relied on an inter­net arti­cle that seemed to have been issued by the body that made the rel­e­vant stan­dard. The arti­cle said there had been a com­mit­tee meet­ing for the stan­dard body and that meet­ing had decid­ed that one ought to inter­pret the stan­dard in the way the builder urged the court.

The ques­tion for the tri­bunal was whether the copy of the inter­net arti­cle could be used to inter­pret the Aus­tralian Standard. 

The tri­bunal said that it would not allow the inter­net arti­cle to be used. It was ​‘extrin­sic mate­r­i­al’ but it was not some­thing that could be said to have held the views of the body that made the stan­dard. It was only the views of a com­mit­tee of that body and not the views of the board.
As a result the views in the arti­cle were irrel­e­vant and the arti­cle could not be used to inter­pret the standard. 

As a result, the tri­bunal found it could not use the arti­cle and found for the home own­ers and in that, it agreed with their inter­pre­ta­tion of the stan­dard. The tri­bunal then went on to find that builder had car­ried out defec­tive build­ing work and the home own­ers were enti­tled to win their claim.

So, in this case, the rules of statu­to­ry inter­pre­ta­tion decid­ed the out­come of a build­ing case.