Miscellanea¶
Interpretation and drafting of resolutions¶
Interpretation¶
1The interpretation of formal documents is a complex area, and many hefty legal textbooks have been written on the topic.[1] Just as with the law of meetings, we do not seek to present a comprehensive treatment of all aspects of the law of interpretation, but a brief summary of some key points.
2Courts recognise that formal documents, such as resolutions, are to be interpreted according ‘to the common sense principles by which any serious utterance would be interpreted in ordinary life’.[2]
3The correct meaning of a resolution is ‘the meaning which [it] would convey to a reasonable person’. This is distinct to whatever may be the dictionary definition of its words, as it may in fact be possible for the reasonable person to conclude the wrong words were used.[2]
4There are a number of principles and canons of constructions which aid courts in determining meaning. These canons are not strict rules to be applied uncritically, but are mere guides.[3] Some examples commonly applicable to the interpretation of resolutions are:
Words should be given their plain, ordinary meaning, unless this would be absurd, inconsistent or repugnant.[4]
A part of the resolution should not be interpreted in isolation, but read as part of the resolution as a whole.[5]
If possible, a resolution should be constructed to give effect to all parts, and not to render any part inoperative or surplus (the presumption against surplusage).[6]
When there are both general provisions and more specific provisions, the specific provisions overrule the general provisions on matters which fall into the scope of the specific provisions (generalia specialibus non derogant).[7]
When certain things are explicitly mentioned, it is assumed that other things of the same category which were not explicitly mentioned were deliberately omitted (expressio unius est exclusio alterius).[8]
When specific words are followed by general words, the general words are confined to things of the same kind as those specified (ejusdem generis).[9] For example, in the phrase ‘X, Y or any other Z’, the term Z would be limited to items of the same ‘genus’ as X and Y.
When a plural subject is followed by a plural predicate, the plurals may be distributively construed.[10] For example, the phrase ‘the committee members' views’ would probably mean ‘each view held by any committee member’, rather than ‘only the views held in common by all committee members’.
5Some rules of interpretation have also been expressly introduced by statute. For example, section 181(1) of the Conveyancing Act 1919 (NSW) provides that:
In all … instruments (whether relating to property or not) … unless the contrary intention appears—
(a) The masculine includes the feminine and vice versa.
(b) The singular includes the plural and vice versa.
(c) Person includes a corporation.
(d) Month means calendar month.
6Similar legislation exists in other states and territories.[11]
7Applying, or determining when not to apply, these rules, principles and canons is a rather more complicated topic than we have outlined here, and we reserve those details for legal textbooks such as Lewison et al. (2012).
Gender-neutral language¶
8For some time now, society has recognised a need to write gender-neutral documents in a gender-neutral way. The historical practice of simply using only male nouns and pronouns, and extending them to include all genders, has now been unacceptable for a considerable time.
9In this book, we have adopted gender-neutral nouns, such as ‘Chair’ rather than ‘Chairman’, and we encourage this practice.
10Historically, there have been 2 primary approaches to gender-neutral pronouns: either using ‘he or she’ (‘he/she’, ‘(s)he’, etc.), or omitting pronouns entirely and repeating the noun wherever necessary. Neither of these approaches seems entirely satisfactory,[12] so we have adopted the use of the singular ‘they’.
11The use of the singular ‘they’ to refer to an unknown or arbitrary person is grammatically correct, has been attested to since 1375, and was used by Shakespeare himself.[13] Revisionist grammatical objections to the use of the singular ‘they’ should be rejected in the strongest terms.[14]
Plain English¶
12The practice of the procedure at meetings is liable to produce in observers of the same a certain ambience of formality and proximity to the law, in the presence whereof a person (or persons) who hitherto might not have been legally trained is (are) wont to engage in one (1) or more courses of conduct, which conduct includes (but is not limited to) conduct which is inexplicable, verbose and occasionally wholly semantically incorrect, the aforedescribed undertaking ostensibly being made to emulate the lingua legisperitorum.[15]
13In other words, people sometimes, with good but misguided intentions, introduce ‘legalese’ into meeting procedure, in an attempt to sound ‘more correct’. Ironically, the legal field itself has been moving away from ‘legalese’ towards using plainer English since the 20th century.[16]
14Perhaps the most widespread example of inexplicable ‘legalese’ is when a number is written out in words, then followed in figures with brackets; for example, ‘one (1)’. One wonders what kind of disdain the drafter must have for their readers' intelligence if the meaning of the number ‘1’ needs clarifying.[17] Most style manuals now provide that numbers over 10 or 100 should be written in figures – in this book, we have gone even further and expressed almost all numbers exclusively in figures.
15Another common example of redundant legalese is the expression ‘includes, but is not limited to’ or ‘includes without limitation’: surely the word ‘includes’ inherently indicates the list is not exhaustive.
16The traditional style of legal drafting prefers to avoid the possessive apostrophe, writing, for example, ‘the rules of the association’. It would be plainer English to simply write ‘the association's rules’.[18]
17The legalese expression ‘not less than X’ is not as vehemently targeted by authorities on plain English, but Cutts (2013) recommends,[19] and the author agrees, considering the even simpler ‘at least X’ or ‘X or more’. The same goes for ‘not more than X’ (‘at most X’ or ‘X or less/fewer’).
18Other legalese words to consider avoiding include:
‘shall’ (consider ‘must’ or ‘will’)
pronominal adverbs like ‘hereby’,[20] ‘thereafter’, ‘wherein’, etc.
‘notwithstanding’ (consider ‘despite’ or ‘in spite of’)
‘where’ (when, in plain English, we would write ‘if’ or ‘when’)
and many others!
19For more information on plain English writing, see the Office of Parliamentary Counsel's Plain English Manual.[21]
Footnotes
