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 355per 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

____________ DefectiveAcceptance ________________________ RequisiteReliance ____________

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.