The rise of the common law in statutory interpretation of tort law reform legislation: Oil and water or a milky pond?

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Journal Article
Tort Law Journal, 2013, 21 (1), pp. 1 - 26
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The common law world has long puzzled over the interplay between common law and statute. This article demonstrates nuance in the approach to statutory interpretation in the six cases decided by the High Court between 2009 and 2013 involving interpretation of the tort law reform legislation: Adeels Palace Pty Ltd v Moubarak,1 Strong v Woolworths Ltd,2 Wallace v Kam,3 Wicks v State Rail Authority of New South Wales,4 Insight Vacations Pty Ltd v Young5 and Hunt & Hunt Lawyers v Mitchell Morgan Nominees Pty Ltd.6 The cases evidence that, in the interpretation of a single statute the Civil Liability Act 2002 (NSW) the High Court employs a diversity of statutory interpretation techniques which may be characterised as ranging between an `oil and water approach (to those statutory provisions which limit or abrogate previous common law rules and rights) to a `milky pond approach (where the common law is used analogically to interpret and develop statute law). This article argues that the employment of this range of techniques underlines the view that legislation and common law cannot be seen as separate and independent simply because of their independent sources. Rather they `exist in a symbiotic relationship7 as `products of the same inherently dynamic legal process
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