Jumping off the Page (Paper)

Gillian Coumbe QC, O’Connell Street Barristers

Synopsis

The late Justice Antonin Scalia (and RBG bestie) once quipped that “the main business of a lawyer is to take the romance, the mystery, the irony and the ambiguity out of everything [s]he touches”.

A large part of that exacting business is the task of interpretation. It is the bedrock of our legal work. Many disputes turn on the meaning of a written contract, or of a statute, or both. Lawyers constantly fret: “what on earth do these words mean?”. The answer, often knife-edge, can have enormous consequences.

The New Zealand courts have been tightening up their approach to interpretation, re-emphasising the primacy of the text. Judges have admonished parties for excessive reliance on external material that is inadmissible, only remotely relevant, or “singularly unhelpful”. These materials explore what may properly be put before the court.

These materials will help you:

• Update your understanding of the principles governing the interpretation of written contracts and of statutes, including the most recent case law;
• In relation to contracts, get practical guidance about what evidence is admissible (or not) under the “factual matrix”, commercial context, prior negotiations, and subsequent conduct;
• In respect of statutes, hear the latest word on permissible and impermissible extrinsic aids relating to legislative history;
• Overall, learn how far beyond the written page you should look in giving advice, or in bringing or defending a proceeding involving an issue of interpretation.

Intended audience

All lawyers involved in advising on, or litigating (in court or in arbitration) the meaning of contracts or statutes, as well as those who draft these instruments. The materials will be of interest to practitioners of both private and public law, to corporate counsel, and to government lawyers, at all levels.