To resolve this ambiguity a court has to weigh the characteristics to see if they
are sufficient to constitute the thing defined,
182
taking into account (a) which
characteristics are present and which are absent, (b) the importance of each
characteristic that is present, and (c) where applicable, the degree or extent to
which a characteristic is present.
183
Open Terms
Some terms are so vague, wide and subjective that they effectively confer a
discretion on a court. Common examples of such words in statutes are
"reasonable," "fit and proper," and "just and equitable”. These terms often
raise a question of degree, for example how just and equitable must it be to
satisfy the requirement? The scope of these terms is "chronically wide”.
184
Therefore to make these terms more manageable courts often develop criteria
and guidelines to implement them. As a result such terms, although contained
in statute, give rise to a new common law as courts endeavour to turn their
open texture into more definite standards. This is referred to as statutory
common law. Clearly with this type of ambiguity there is no list of specific
meanings but an amorphous spectrum of possibilities.
Parts of Speech
Sometimes it is not clear as to what part of speech a word is. An example is
the phrase "eating apples”. The ambiguity lies in whether "eating" is a participle
or a verbal adjective.
Overworked Words
Common every day words are worked so hard that they tend to take on a wide
array of meanings, which usually overlap with one another to some extent.
Because these words are commonly used, their meanings are so embedded in
constant usage that often they are neither identified nor articulated. Hence it is
easy to overlook them as the possible source of trouble, and attempts to
resolve this unarticulated ambiguity result in law that tends to be highly
disorganised.
185
182
Hallstroms v FCT
(1946) 72 CLR 634, 646 per Dixon J, FCT v Blake
84 ATC
4661, 4664
183
FCT v Dixon (1952) 86 CLR 540
184
Stone (1968) p 264
185
Some illustrations involving the prepositions ‘in’, ‘of’ and ‘on’ are
considered in Christopher Enright “A Classification of Ambiguity”, Part 7: A
Cautionary Tale.
 |
 |
 |