The proper approach to the interpretation of documents

In this judgement Wallis JA said that, over the last century, there have been significant developments in the law relating to the interpretation of documents, both in this country and in others that follow similar rules to our own.

Wallis JA said that the present state of the law can be expressed as follows:

"Interpretation is the process of attributing meaning to the words used in a document, be it legislation, some other statutory instrument, or contract, having regard to the context provided by reading the particular provision or provisions in the light of the document as a whole and the circumstances attendant upon its coming into existence. Whatever the nature of the document, consideration must be given to the language used in the light of the ordinary rules of grammar and syntax; the context in which the provision appears; the apparent purpose to which it is directed and the material known to those responsible for its production.

"Where more than one meaning is possible each possibility must be weighed in the light of all these factors. The process is objective, not subjective. A sensible meaning is to be preferred to one that leads to insensible or unbusinesslike results or undermines the apparent purpose of the document. Judges must be alert to, and guard against, the temptation to substitute what they regard as reasonable, sensible or businesslike for the words actually used. To do so in regard to a statute or statutory instrument is to cross the divide between interpretation and legislation; in a contractual context it is to make a contract for the parties other than the one they in fact made. The 'inevitable point of departure is the language of the provision itself', read in context and having regard to the purpose of the provision and the background to the preparation and production of the document."

A sensible approach conducive to clarity

Wallis JA said that the proper approach to the interpretation of documents is that, from the outset, one considers the context and the language together, with neither predominating the other. The judge said that he deliberately avoided using the conventional description of this process as one of ascertaining the intention of the legislature or the draftsman, nor would he use its counterpart in a contractual setting, 'the intention of the contracting parties', because these expressions are misnomers, insofar as they convey or are understood to convey that interpretation involves an enquiry into the mind of the legislature or the contracting parties.

The reason, according to the judge, is that the enquiry is restricted to ascertaining the meaning of the language of the provision itself. Despite their use by generations of lawyers to describe the task of interpretation it is doubtful whether the said expressions are helpful. If interpretation is, as all agree it is, an exercise in ascertaining the meaning of the words used in the statute and is objective in form, it is unrelated to whatever intention those responsible for the words may have had at the time they selected them.

The proper approach to the interpretation of documents is from the outset to read the words used in the context of the document as a whole and in the light of all relevant circumstances. That, according to Wallis JA, is how people use and understand language and it is sensible, more transparent and conducive to greater clarity about the task of interpretation for courts to do the same.