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August 2010
 ASPECTS OF UNCERTAINTY IN PRIVATE
AND PUBLIC LAW

M. J. Grant

A thesis submitted in partial fulfillment of the

requirements for the degree of Master of Laws at
the University of Otago, -Dunedin, New Zealand.

August 1972
 i.

PREFACE

Nothing contributes to the certainty of laws

(whereof I am now treating), as to keep the
authentic writings within moderate bounds,
and to get rid of the enormous multitude of
authors and doctors of laws. For by them
the meaning of laws is distracted, the judge
is perplexed, and the advocate himself, as
he cannot peruse and master so many books,
takes refuge in abridgements.
Francis Bacon (Spedding, (Ed.) The Works of
Francis Bacon, Vol.5, p.l04.)
This thesis, though written in contravention of
Bacon's strictures, nonetheless dares to discuss the
problem of uncertainty in laws, together with uncertainty
in various types of legal instruments. The work was not
intended as jurisprudential, although the topic is one
which tends itself to such analysis, but rather as a study,
....
through the cases, .of a dilemma in which the courts
frequently find themselves - the dilemma of whether to
hold an unclear provision void for uncertainty, or
alternatively to accord it what meaning they can, even
though it be no more than a guess at the author's
intention. My main interest was with the so-called "test"
of certainty in public law instruments, where the origin,
status and extent of application of the test are all
obscure, but the study was extended to include the more
common private law instruments in orde~ to provide a basis
for comparison ..
 ii.
The idea for the topic came from Associate-Professor
D. E. Paterson of the Law Faculty at Otato University, and
to him I owe a considerable debt of gratitude for his advice
and encouragement. As my supervisor he has always been
ready and willing to help with constructive criticism, and
to indicate the more outrageous errors I have made. I
must also acknowledge the help I received from Miss Judith
Mayhew, who was kind enough to provide assistance with the
chore of proofreading. Finally to Miss Penelope Roydhouse
I owe a special debt for the fine job she has made of the
laborious task of typing this work, both in its draft and
final form.
 iii.

CONTENTS
Page
Preface i
Case Index iv
Index to Statutes and Regulations xxxii

PART ONE
CHAPTER 1 Introduction 1
CHAPTER 2 Language 8

PART TWO
UNCERTAINTY IN PRIVATE LAW
CHAPTER 3 Contracts 38
CHAPTER 4 Wills 86
CHAPTER 5 Trusts 112
CHAPTER 6 Other Private Law Instruments 135

PART THREE
UNCERTAINTY IN PUBLIC LAW
CHAPTER 7 History o~ the Certainty Test 144
CHAPTER 8 The Status and Extent of the
Requirement of Certainty 200
CHAPTER 9 The Operation of the Certainty
Test 230

PART FOUR
CHAPTER 10 Conclusions 268
 iv.
CASE LIST

Abbot v. Matamata County (1970) 3

N.Z.T.C.P.A. 281. 227
Abraham's Will Trusts, Re [1969] 1 Ch.463,
1967 3 W.L.R. 1198, [1967] 2 All E.R. 1175 128, 130, 131
Ackroyd & Sons v. Hasan Ul960] 2 Q.B. 144~
[1960] 2 W.L.R. 810, [1960] 2 All E.R. 254 80.
Adamastos Shipping Co. Ltd· v. Anglo-Saxon
Petroleum Co. Ltd [1959] A.C. 133, [1958]
2 W.L.R. 688, [195~] 1 All E.R. 725 64, 78, 79
Adams v. Fleming (1619) 1 Brownl. & Golds.
13, 123 E.R. 634 . 150
Adams and the Kensington Vestry, Re (1883)
27 Ch.D. 394 54 L.J.Ch. 87, 51 L.T. 382 115
All Cars Ltd v. McCann (1945) 19 A.L.J. 129 183
All ears Pty. Ltd v. Tweedle [193?] V.L.R. 35 74
Allgood v. Blake (1873) L.R. 8 Exch. 160,
42 L.·J. Ex. 101, 29 L.T. 331. 93
Allen, Re.Faith v. Allan [1953] Ch. 116,
810, [1953] 2 W.L.R. 244, & 3 W.L.R. 637,
[1953] 2 All E.R. 898, 1 All E.R. 308 128, 131
Allyns v. Sparks (1603) 1 Brownl. & Golds.
6, 123 E.R. 629
Amalgamatea,Television Services Pty. Ltd ~.
Television Corporation Ltd [1970] 3
N.s.w.R. 85 76
Anchorage Butchers Ltd v. Law (1939) 42
W.A.L.R. 40 181, 230, 237
Andrews, Re.Mayor etc. of Dunedin v. Smyth
(1910) 30 N.Z.L.R. 43
Anisminic Ltd v. Foreign Compensation
Commission [1969] 2 A.C. 147, [1969] 2
W.L.R. 163, [1969] 1 All E.R. 208 206, 207, 208,
211, 279
Arnold v. Hunt (1943) 67 C.L.R. 429 154, 184
Ashcroft v. Morrin (1842) 4 Man. & G. 450,
134 E.R. 185 48
Ashton, Re.Siddall v. Gordon [1955]
N.Z.L.R. 192 127
 v.
Associated Provincial Picture Houses Ltd v.
Wednesbury Corporation [1948] 1 K.B. 223,
[1948] L.J.R. 190, 177 L.T. 641, 63 T.L.R.
623 [1947] 2 All E.R. 680 193, 208, 237
Asten v. Asten [1894] 3 Ch. 26o, 63 L.J.
Ch. 834, 71 L.T. 228 95
Astor's SettlementcTrusts, Re.Astor v.
Scholfield [1952] Ch. 534, [1952] 1 T.L.R.
1003, (1952] 1 All E.R. 1067 126
Attorney-General v. Eenby [1925] Ch.596, 94
L.J. Ch. 434, 133 L.T. 722 159, 163, 244
Attorney-General v. National Provincial Bank
[1924] A.C. ·262, 93 L.J. Ch. 231, 131 L.T. 34 102, 126.
Attorney-General for Alberta v. Huggard Assets
Ltd [1953] A.C. 4,20, [1953] 2 W.L.R. 768,
[1953] 2 All E.R. 951. 72
Attorney-General for Canada v. Hallett & Carey
Ltd [1952] A.C. 427, [1952] 1 T.L.R. 1408 168
Attorney-General for New Zealand v. Brown [1917]
A.C. 393, 86 L.J.P.C. 132, 11~ L.T. 624,
33 T.L.R. 294 126
Auckland Meat Co. Ltd v. Minister of Works
[1963] N.Z.L.R. 120 141
Austin v. Jarvis (1615) 1 Brownsl •. & Golds.
11 123 E.R. 633 150
Australian Communist Party v. Commonwealth
(1951) 83 C.L.R. 1 224
Bacharach's Will Trusts, Re.Minden v.
Bacharach [1959] Ch.245, [1959] 2 W.L.R.
1, [1958] 3 All E.R. 715 90
Baden's. Deed Trusts, Re, [1971] A.C. 424,
[1970] 2 W.L.R. 1110, [1970] 2 All E.R.228 37, 104, 121-124
Baird (Robert) Ltd v. City of Glasgow [1936]
A.C. 32, 105 L.J.P.C. 33, 154 L.T. 65 163, 185, 266
Balfour v. Balfour [1919] 2 K.B. 571 43
Balkind, Re (1969] N.Z.L.R. 669 128, 132, 143
Bank of New Zealand v. Simpson [1900] A.C.l82 56
Barclays Bank Ltd v. Kiley [1961] 1 W.L.R.
1050 [1961] 2 All E.R. 849 65
Bardswell v. Bardswell (1838) 9 Sim. 319,
59 E.R. 381, 117
Barker v. Carr (1957) 59 W.A.L.R. 7 181
 vi.
Barnes v. City of Cobaurg [1928] V.L.R. 334 182
Barraclough v. Cooper [1908] 2 Ch. 121, n., 77
L.J. Ch. 555, n. 98 L.T. 852, n. 94
Bathurst v. Errington (1877) 2 App.Cas. 698,
46 L.J. Ch. 748, 37 L.T. 338 94
Baylis v. Attorney-General (1741) 2 Atk. 239,
26 E.R. 548 31, 99
Beaumont v. Fell (1?23) 2 P.Wms. 141, 24 E.R.
673
Bedford, dec'd., Re [1951] Ch. 905 [1951] 2
T.L.R. 216, [1951] 1 All E.R. 1093 128
Beltcn v. Commissioner of Inland Revenue [1959]
N.Z.L.R. 1372 114
Bendixen v. Coleman (1943) 68 C.L.R. 401 159, 177, 183, 232,
233, 243, 245, 250
Berry v. Palmerston North Metropolitan Milk
Board [1959] N.Z.L.R. 24o
Bishop & Baxter Ltd v. Anglo-Eastern Trading
and Industrial Co. Ltd [1944] K.B. 12, [1943]
2 All E.R. 598 74
Bishop v. Taylor (1968) 42 A.L.J.R. 227 73
Blackett v. Bates (1865) 1 Ch.App. 177, 35
L.J. Ch. 324, 136L.T. 656 82
Blackpool Board of Health v. Bennett (1859)
4 H.&N. 12?, 15? E.R. 78~ 154-155
Blackwood, Re [1953] N.I. 32 115
Blair v. Duncan [1902] A.C. 37, 71 L.J.P.C.
22, 86 L.T. 157, 18 L.R. 194 102, 126
Blue Haven Motel Ltd v. District of Burnaby
(1965) 52 D.L.R. (2d) 464 190, 191, 242
Blundell v. Gladstone (1844) 14 Sim. 83,
60 E.R. 288 95
Boden, Re.Boden v. Boden [1907] 1 Ch. 132,
76 L.J. Ch.lOO, 95 L.T. 741 92
Bond, Re.Cole v. Hawes (1876) 4 Ch.D. 238 117, 118
Bould v. Moore (1902) 4 G.L.R. 482 97
Boyd v. Onehunga Borough [1916] N.Z.L.R.
713 (1916) 18 G.L.R. 506 198, 231, 251
Brand Estates Ltd, Re [1936] 3 All E.R. 374 70, 71
 vii.
Br~mner v. Ruddenklau [1919] N.Z.L.R. 444, (1919)
21 G.L.R. 305 172, 259
Brierly v. Phillips [1947] K.B. 541, [1947]
1 All E.R. 269 168, 178, 180
British Bank for Foreign Trade Ltd v. Novinex
[1949] l K.B. 623, [1949] L.J.R. 658, [1949]
1 All E.R. 155
British Electrical and Associated Industries
(Cardiff) Ltd v. Patley Pressings Ltd [1953]
1 W.L.R. 280, [1953] 1 All E.R. 94
Bromley v. Tyron [1952] A.C. 265, [1951] 2
T.L.R. 1119, [1951] 2 All E.R. 1658 118
Brosseau v. Dore (1904) 35 S.C.R. 205 108
Brown v. Gould [1971] 3 W.L.R. 334, [1971]
2 All E.R. 1505 26' 37' 40' 77'
234
Brown v. Mcinnes (1896) 15 N.Z.L.R. 256 30, 156, 169-170,
200, 203, 231, 247,
248, 252
Brudenell v. Nestle Company (Australia) Ltd
(1971] V.R. 225 6, 189, 223, 249,
265
Brunswick Corporation v. Stewart (1941) 65
C.L.R. 88 182, 185, 237
Bunch and Town of Cobourg, Re (1963) 39
D~L.R. (2d0) !$13 190, 262
Burley, Re.Alexander v. Burley [1910] 1 Ch.
215, 79 L.J. Ch. 182, 101 L.T. 805, 26
T.L.R. 127 115
Burton, Re.Public Trustee v. Burton [1965]
N.Z.L.R. 712 115, 117
Butchers, Re (1970) 11 D.L.R. (3d) 519 93
Butchers Co. v. Morey (1790) 1 H.Bl. 370,
126 E.R. 217 146
Callinan, Ex parte. Re Russell (1945) 45 S.R.
(N.S.W.) 358 183, 231, 243, 244,
265
Campbell, R~Campbell v. Potter [19Q4]
N.Z.L.R. 1021 100
Campbell Re. Peacock v •. Ewen [1930] N.Z.L.R.
713 110
Cannan v. Fowler (1853) 14 B.B. 181, 139
E.R. 75 48
 viii.
Cann's Pty. Ltd v. Commonwealth (1946) 71 C.L.R.
210 189, 213, 265
Carroll v. Attorney•General [1933] N.Z.L.R. 1461,
[1933] G.L.R. 890 194, 221.
Carterton Borough Councilv. Harman (1970)
Magistrates' Court, Masterton &..R. 882,
883/70 253
Chandler & Co. Ltd v. Hawke's Bay County [1961]
N.Z.L.R. 746 259
Charnington & Co. Ltd v. Wooder [1914] A.C. 71 4 48
Charter v. Charter (1874) L.R. 7 H.L. 364 58, 93
Charter v. Greame and Simpson (1849) 13 Q.B.
216, 116 E.R. 1245 138
Chartered Bank of India, Australia, and China
v. British India Steam Navigation Co. Ltd
[1909] A.C. 369, 78 L.J.P.C. 111, 100 L.T.
661, 25 T.L.R. 480 78
Chester v. Bateson [1920] 1 K.B. 829, 89 L.J.K.B.
387, 122 L.T. 684, 36 T.L.R. 225 165
Chichester Diocesan Fund and Board of
Finance (Inc.) v. Simpson [1944] A.C. 341,
(1944] 2 All E.R. 60, 113 L.J. Ch. 225,
171 l.T. 141, 60 .T•L.R. 492 102, 126
Churston Settled Estates, Re. [1954] Ch. 334,
[1954] 2 W.L.R. 386, [1954] 1 All E.R. 725 103
City of London case (1609)' 8 Co.Rep. 12lb,
77 E.R. 658 157, 158
Clarke, Re. Bracey v. Royal National Lifeboat
Institution [1923] 2 Ch.407, 92 L.J. Ch.629,
129 L.T. 310, 39 T.L.R. 433 102
Clavering v. Ellison (1059) 7 H.L.C. 707,
11 E.R. 282 129-130
Clayton v. Ramsden [1943] A.C. 320 26, 129, 130
Coates dec'd Re. Ramsden v. Coates [1955]
Ch. 495, [1954] 3 W.L.R. 959, [1955] 1
All E.R. 26 104, 128
Cody v. Claxton (1945) 19 A.L.J. 206 183
Collins v. Day [1925] N.Z.L.R. 280 92
Collman v. Mills [1897] 1 Q.B. 396 161, 195, 251
Commissioners of Customs and Excise v. Cure &
Deely Ltd [1962] 1 Q.B. 340, [1961] 3 W.L.R.
798, [1961] 3 All E.R. 641 165
 ix.
Connolly, Re. Connolly v. Connolly [1910]
1 Ch. 219, 79 L.J. Ch. 148, 101 L.T. 783,
26 T.L.R. 189 115
Cook v. North Vancouver (1911) 16 B.C.R. 129 190, 191, 242
Coope v. Ridout [1921] 1 Ch. 291 50
Cooper v. Hood (1858) ·26 Beau. 293, 53 E.R.911 75
Corless v. City of Richmond 182
Cory, dec'd, Re. Cory v. Morel [1955] 1 W.L.R.
725, [1955] 2 All E.R. 630 92
Country Roads Board v. Neale Ads. Pty. Ltd
(1930) 43 C.L.R. 126 171, 184
Courtville Ltd v. Paull [1950] N.Z.L.R. 18 200, 204, 263
Coxen, Re. McAllum v. Coxen [1948] 1 Ch. 747,
[1948] 2 All E.R. 492 131
Crabb~ and Town of Swan River, Re. (1913)
9 D.L.R. 405 193
Craik v. Lamb (1844) 1 Coll. 489, 63 E.R. 512 92
Granton v. Worthington (1908) 27 N.Z.L.R. 677,
10 G.L.R. 358 66
Crisp from the F~ns v. Rutland County Council
(1950) 114 J.P. 105, 94 S.J. 177 164, 231, 245
Cullen, Re. [1921] N.Z.L.R. 209, sub nom. Cullen
v. Cullen (1920) 22 G.L.R. 536 115
Cundy, Re. (1899} 8 N.Z.L.R~ 53 1 G.L.R. 247 118
Cuthbert v. Cumming (1885} 10 Ex 809,
156 E.R. 668 29
Dartmouth, City of v. s.s. Kresge Co. LtEi
(1966} 58 D.L.R. (2d) 229 190, 230, 231, 234,
236, 262
Davidson v. Mayor etc. of Auckland (1904) 24
N.Z.L.R. 250 (S.C.) (1905} 25 N.Z.L.R. 497 198, 200, 203, 263
Davies v. Davies (1887) 36 Ch.D. 359, 56 L.J. Ch.
962, 58 L.T. 209 79
Dawson's Will Trusts, Re.National Provincial
Bank v. National Council of Y.M.C.·A. [1957]
1 W~L.R. 391, [1957] 1 All E.R. 177 98
Deacon, Re. Kinlock v. Brigham [1921] N.Z.L.R.
659 98
 x.
Denne v. Light (1857) 8 D.M.&G. 774, 26
L.J. Ch.459, 44 E.R. 588 66
Denton v. Ryde Municipal Council (1953) 19
L.G.R.A. 321 74
Deprez, Re. Henriques v. Deprez [1917] 1
Ch.24, 86 L.J. Ch.91, 115 L.T. 662 100
D~ Rosaz, In the goods of (1877) 2 P.D. 66 28, 31, 99
Dilworth, Re. McMurray v. Dilworth (1902)
22 N.Z.L.R. 125 97
Dimond Manufacturing Co. Ltd v. H~milton
[1969] N.Z.L.R. 609 . 58
Doe d. Smith v. Fleming (1835) 2 C.M.&R.
638, 150 E.R. 271 108
Doe d. Hiscocks v. Hiscocks (1839) 5 M. & w.
363, 151 E.R. 154 58, 93
Doe d. Gord v. Needs (1836) 2 M. & W. 129,
150 E.R. 698 59
Donald, Re. Moore v. Somerset [1909] 2
Ch. 410 78 L.J. Ch.761, 101 L.T. 377 98
Dowling v. South Canterbury Electric Power
Board [1966] N.Z.L.R. 676 223, 231, 241
Duncan v. Lawless (1901) 3 G.L.R. 472 243
Dunlop v. Milton Timber & Hardware Ca. Ltd
[1960] N.Z.L.R. 1096 227
Dunning v. Maher (1912) 106 L.T. 846, 23
Cox.c.c. 1 163
Dwyer v. Hunter [1951] N.Z.L.R. 177 200, 204, 243
Eades, Re. Eades v. Eades [1920] 2 Ch. 353 126
Eagleton v. East India Co. (18o2j 3 B. & P. ·
55, 127 E.R. 32 155, 157, 158
,Eastmond v. Bowis [1962] N.Z.L.R. 954 29, 51, 58
Eccles v. Bryant [1948] Ch.93, [1947] 2
All E.R. 865 50
Eden, dec'd., Re. Ellis v. Crampton [1957]
1 W.L.R. 788, [1957] 2 All E.R. 430 91, 104
Edwards v. New Zealand Insurance Co. Ltd [1971]
N.Z.L.R. 113 88
Edwards v. Skyways Ltd [1964] 1 W.L.R. 349,
[1964] 1 All E.R. 494 75
 xi.
Elder, Re. Elder v. Hercus (1896) 14
N.Z.L.R. 565 117
Elderslie Steamship Co. Ltd v. Borthwick [1905]
A.C. 93, 74 L.J.K.B. 338, 92 L.T. 274,
21 T.L.R. 277 78
Ellenborough Park, Re. Davies, dec'd., Re.
Powell,v. Maddison [1956] Ch.131, [1955]
3 W.L.A. 892, [1955] 3 All E.R. 667 135
Ellis v. Yarnly (1661) 1 Keble 124, 83
E.R. 852 150
Esso Petroleum Co. Ltd v. Harper's Garage
(Stourport) Ltd [1968] A.C. 269, [1967]
2 W.L.R. 871, [1967] 1 All E.R. 699 ?9, 277
Everton v. Levin Borough [1953] N.Z.L.R. 134 200, 204
Fawcett Properties Ltd v. Buckingham County
Council [1961] A.C. 636, [1960] 3 W.L.R. 831,
[1960] 3 All E.R. 503 H.L.(E), [1959] Ch.543,
[1959] 2 W.L.R. 884, [1959] 2 All·E.R. 321
(C.A.) 25, 37, 62, 133, 160,
162, 163, 164-165,
208, 213-217, 225, 226
230, 232, 234, 236,
240, 241, 242, 244,
272, 276
Fenton v. Nevin (1893) 31 L.R.Ir. 478 102
Fickus, Re, Fanna v. Fickus [1900] 1 Ch.331,
69 L.J• Ch.16m, 81 L.T. 749 86
Finbow v. Air Ministry [1963] 1 W.L.R. 697,
[1963] 2 All E.R. 647
First National Bank v. Methodist Home (1957)
181 Kan. 100 1 309 F. 2d. 389 8
Flint v. Hughes (1843) 6 Beav. 342, 49 E.R.
858 109
Foley v. Classique Coaches Ltd [1934] 2 K.B. 1 50
Follett, dec 1 d., Re. Barclays Bank Ltd v.
Dovell [1954] 1 W.L.R. 1430, [1953] 3 All E.R.
478, [1955] 1 W.L.R. 4~9, [1955] 2 All E.R.
22 (C.A.) 90, 100, 108
Foord, Re. Foord v. Condor [1922] Ch.519
G2 L.J. Ch.46, 1 28 L.T. 501 114
Ford v. Mayor etc. of Oamaru (1881) L.R.
1 S.C. 97 58.
 xii.
Ford Motor Co. Ltd v. Amalgamated Union of
Engineering and Foundry Workers [1969] 2 Q.B.
303, [1969] 1 W.L.R. 339, [1969] 2 All E.R. 481 44
Foster v. Aloni [1951] V.L.R. 481 189, 223, 226, 232
Foster v. Moore (1879) 4 L.R.Ir. 670 162, 170
Foster v. Wheeler (1888) 38 Ch.D. 130, 57
L.J. Ch.871, 59 L.T. 15, 4 T.L.R. 399 81
Framework-Knitters' Co. v. Green (1696) 1 Ld
Raym. 113, 91 E.R. 972 157, 158
Fraser Henleins Pty. Ltd v. Cody (1945)
70 C.L.R. 100 264
Frigaliment Importing Co. v. B.N.S.
International Sales Corp. (196o) 190
F.' Supp. 116 _ ..
Gape, Re. Veney v. Gape Ji• Gape [1952] Ch.418,
743; [1952] 1 All E.R. 827, [19521 2 All E.R.
579 131
Gardner v. Coutts & Co. [1968] 1 W.L.R. 173
[1967] 3 All E.R. 1064 61
Gare, Re. Filmer v. Cater [1952] Ch.80, [1951]
2 T.L.R. 1003, [1951] 2 All E.R. 863 90, 94
Gentel v. Rapps [1902] 1 K.B. 160, 71
L.J.K.B. 105, 85 L.T. 683 195
Geraghty v. Porter [1917] N.Z.L.R. 554, (1917)
19 G.L.R. 181 256
Gerard & Co. Pty. Ltd., Ex parte. Re Craig
(1944) 44 S.R.(N.S.W.) 370 183, 186
Gerrish v. Rodman (1771) 3 Wils. 155, 95
E.R. 986 154
Gestetner Settlement, Re. Barrett v. Blumka
[1953] Ch. 672, [1953] 2·W.L.R. 1033, [1953]
1 All E.R. 1150 103-104, 119
Gibbard's Will Trusts, Re. [1967] 1 W.L.R. 42,
[1966] 1 All E.R. 273 104
Giles v. Melsom (1873) L.R. 6 H.L. 24 92
Gill v. City of Prahran [1926] V.L.R. 410 182, 187, 214,
234, 264
Gillingham Bus Disaster Fund, Re. Bowman v.
Official Sol~citor [1959] Ch.62, [1958] 2
All E.R. 749
Gisborne City v. J. E. Openshaw Ltd [1971]
N.Z.L.R. 538 194, 238
 xiii.
Glynn v. Margetson & Co. [1893] A.C. 351 64
Godkin v. Newman [1928] N.Z.L.R. 593, [1928]
G.L.R. 52J 256
Golay's Will Trusts, Re. [1965] 1 W.L.R. 969,
[1965] 2 All E.R. 660 W9
Gold v. Patman and Fotheringham Ltd [1958]
1 W.L.R. 697, [1958] 2 All E.R. 497 63
Goldie, Re. Goldie v. Goldie [1952] N.Z.L.R.
928 108
Gould v. Gould [1970] 1 Q.B. 275, [1969] 3
W.L.R. 490, [1969] 3 All E.R. 728 43, 45, 46, 62
Grant v. Grant (1870) L.R. 5 C.P. 727, 39
L.J.P.C. 272, 22 L.T. 829 27
Grant v. Lynam (1828) 4 Russ. 292, 38
E.R. 815 118
Grater v. Montagu (1904) 23 N.Z.L.R. 904 193, 237
Gray v. Harnis [1925] N.Z.L.R. 607, (1925)
27 G.L.R. 385 138
Greater London Council v. Connolly [1970] 2
Q.B. 100, [1970] 2 W.L.R. 658, [1970] 1 All
E.R. 870, 68 L.G.R. 368 62, 72
Green, Re. Bath v. Cannon [1914] 1 Ch.l34, 83
L.J.C.L. 248, 110 L.T. 58 27
Green v• Russell [1959] 2 Q.B. 226, [1959]
3 W.L.R. 17, [1959] 2 All E.R. 525 112
Green v. Wood (1845) 7 Q.B. 178, 115 E.R.
i55 228
Gresham's Settlement, Re. Lloyds Bank Ltd
v. Gresham [1956] 1 W.L.R. 573, [1956] 2
All E.R. 193 104
Grimond (or Macintyre) v. Grimond [1905]
A.C. 124, 92 L.T. 477, 21 T.L.R. 323 W2
Gulbenkian's Settlements, Re. [1970] A.C.
508, [1968] 3 W.L.R. 1127, [1968] 3
All E.R. 785 58, 104, 107, 119,
120, 123
Gully v. Cregoe (1857) 24 Beav. 185, 53
E.R. 327 114
Guthing v. Lynn (1831) 2 B. & Ad. 232, 109
E.R. 1130 75
 xiv.
Haddock v. District of North Cowichan
(1966) 59 D.L.R.(2d) 392 190, l:-91, 231,
236, 242
Hains, Re. Hains v. Elder's Trustee and
Executor Co. Ltd [1942] S.A.S.R. 172 129, 130
Hain's Settlement, Re. [1961] 1 W.L.R. 440, [1961]
1 All E.R. 848 104, 120
Hall, Re. Andrews v. Wif£en [1931]
N.Z.L.R. ~S21 98
Hall v. Busst (1960) 104 C.L.R. 206, 34
A.L.J.R. 332 42
Hall v. Nixon (1875) L.R. 10 Q.B. 152, 44
L.J.(M.C.) 51, 33 L.T. 92, 32 L.T. 87 156
Hall & Co. Ltd v. Shoreham-by-Sea Urban
District Council [1964] 1 W.L.R. 240
[1964] 1 All E.R. 1 213., 240, 276
Hall v. Weatherford (1927) 32 370, 259 Pac.
282 49
Hamilton v. Ritchie [1894] A.C. 310 17
Hanna v. Auckland City [1945] N.Z.L.R. 622,
[1945] G.L.R. 290 . 173, 259, 260
Harding v. Glynn (1739) 1 Atk. 469, 26 E.R.
299 114
Harland v. Trigg (1782i 1 Bro.c.c. 142, 28
E.R. 104 114
Harper's Will Trusts, Re. [1962] Ch.78, [1961]
3 W.L.R. 924, [1961] 3 All E.R~ 588 125
Harris v. Du Pasquier (1872) 26 L.T. 689 126
Hart v. Hart (1881) 18 Ch.D. 670, 50 L.J.
Ch.697, 45 L.T. 13 74
Har~ey v. Pratt [1965] 1 W.L.R. 1025, [1965]
2 All E.R. 786 42
Hawkes Bay Raw Milk Producers Co-operative Co.
Ltd v. New Zealand MilK Board [1961] N.Z.L.R.
218 259
Haws v. Haws (1747) 3 Atk. 524, 26 E.R. 1102 91
Hazeldon v. MeAra [1948] N.Z.L.R. 1087 172, 259
Healy v. Dunne [1898] 1 W.A. 29 181, 247
Heisler v. Anglo-Dal Ltd [1954] 1 W.L.R. 1273,
[1954] 2 All E.R. 770
 xv.
Hetley, Re. Hetley v. Hetley [1902] 2 Ch.866,
71 L.J. Ch.769, 87 L.T. 265 118
Hicks v. Sallitt (1854) 3 De G.M. & G. 682,
43 E.R. 307 92
Higgie v. Wilkinson (1903) 23 N.Z.L.R. 74 87
Hill v. Hill [1897] 1 Q.B. 483 115
Hillas and Co. Ltd v. Arcos Ltd (1932) 147
L.T. 503, 38 Com. Cas. 23, 43 Ll.L.R. 359 39-40, 47, 48
Hirsch v. Town of Winnipeg Beach (1961) 26
D.L.R.(2d) 659 190, 236, 254
Hitchener v. Ham [1961] V.R. 97 189, 223, 226
Horowhenua County v. Nash (No.2) [1968]
N.Z.L.R. 632 138
Hotel and Catering Industry Training Board v.
Automobile Proprietary Ltd [1969] 1 W.L.R.
697, [1969] 2 All E.R. 582
Houston v. Burns [1918] A.C. 337, 87 L.J.P.C.
99, 118 L.T. 462, 34 T.L.R. 219 101, 102, 126, 255
Hughes, Re. Hughes v. Footner [1921] 2 Ch.208,
91 L.J. Ch.lO, 127 L.T. 117 101, 255
Hunt v. Hort (1791) 3 Bro.c.c. 311, 29 E.R.554 31, 99
Hunter v. McLean (1907) 27 N.Z.L.R. 231 203, 252
Hunter v. Public Trustee [1924] N.Z.L.R. 882 114
Hurring, Re. Davidson v. Hurring [1950] N.Z.L.R.
948 96
Hussey v. Horne-Payne (1879) 4 App.Cas. 311,
48 L.J. Ch. 846, 41 L.T. 1 51
Hutton v. Warren (1836) 1 M. & W. 466, 5 L,
J. Exch. 234, 150 E.R. 517 61
Ideal Laundry Ltd v. Petone Borough [1957i
N.Z.L.R. 1038 171, 173, 204,
243~ 266
Ingham v. Hie Lee (1912) 15 C.L.R. 267 251
Inland Revenue Commissioners v. Ross and
Coulter,»e Bladnoch Distillery Co. [1948]
1 All E.R. 616
Inland Revenue Commissioners v. Broadway
Cottages Trusts [1955] Ch.20, [1954]
3 W.L.R. 438, [1954] 3 All E.R. 120 103, 119, 120, 123,
124
 xvi.
Innholder's case (1750) 1 Wils. 281, 95
E.R. 619 154
Ireland v. Wilson [1936] 3 All E.R. 358 160, 163, 236
Jackson (F.E.) & Co. Ltd v. Collector of
Customs [1939] N.Z.L.R. 682, [1939]
G.L.R. 229 194, 256
Jacob, Re. Jacob v. Jacob (1897) 16 N.Z.L.R.
52 117
Jacobs v. Batavia General Plantations Trust Ltd
[1924] 1 Ch. 287; affirmed [1924] 2 Ch.329,
93 L.J. Ch.520, 131 L.T. 617, 40 T.L.R. 616 56
James v. Allen (1~17) 3 Mer. 17, 36 E.R. 7 126
Jaques v. Lloyd D. George and Partners Ltd
[1968] 1 W.L.R. 625, [1968] 2 All E.R. 187 80
Jebb, Re. Ward Smith v. Jebb [1966] Ch.666,
[1965] 3 W.L.R. 810, [1965] 3 All E.R. 358 111
Jenkins v. Kent [1922] N.Z.L.R. 882 62, 66
Johnson, Re. Public Trustee v. Calvert [1939]
2 All E.R. 458 115
Johnson v. Hammond (1888) 7 N.Z.L.R. 245 169, 198, 232
Johnstone v. Holdaway [1963] 1 Q.B. 601,
(1963] 2 W.L.R. 147, [1963] 1 All E.R. 432 135
Jones, dec'd., Re. [1971] N.Z.L.R. 796 92
Jones, Re Midland Bank Executor and Trustee
Co. v. Jones [1953] Ch.l25, [1953] 2 W.L.R.
283, [1953] 1 All E.R. 357 130
Jones, Re. Public Trustee v. Jones [1945] Ch.105
115 L.J. Ch.33, 173 L.T. 357
Jones v. Metropolitan Meat Industry Board (1925)
37 C.L.R. 252 187
Jones v. Padavatton [1969] 1 W.L.R. 328,
[1969] 2 All E.R. 616 44, 46
Jones v. Price (1841) 11 Sim. 557, 59 E.R.988 91
Jones v. Walton [1966] W.A.R. 139 51
Jorgensen v. Ridings [1917] N.Z.L.R. 980,
(1917) 19 G.L.R. 621 194
Joseph v. National Magazine Co. Ltd [1958]
Ch.l4, [1958] 3 W.L.R. 366, [1958] 3 All
E.R. 52 82
Jubal v. McHenry [1958] V.R. 406 51
Jubber v. Jubber (1839) 9 Sim. 503, 59 E.R.452 W9
 xvii.
Kay v. Crook (1857) 3 Bim. & G. 4o7,
65 E.R. 715 87
Kell v. Charmer (1856) 23 Beav. 195, 53
E.R. 76 23, 90
Kenny, Re. Read v. Isaacs [1921] N.Z.L.R. 537 115
Kerridge Odeon Corporation Ltd v. Auckland City
[1966] N.Z.L.R. 266 194
King Gee Clothing Pty Ltd v. Commonwealth
(1945) 71 C.L.R~ 18~ 141, 152, 178, 184,
186-189, 197, 212-
213, 230, 241, 268
King's Motors (Oxford) Ltd v. Lax [1970] l
W.L.R. 426, [1969] 3 All E.R. 665 48
Kirkbride's Trust, Re. (1886) L.R. 2 Eq.
400, 15 L.T. 51 92
Knibbs, Re. Flay v. Trueman [1962] 1 W.L.R. 852,
[1962] 2 All E.R. 829 86
Knight v. Knight (1840) 3 Beav. 148, 49
E.R. 58 113, 114
Koetsveld v. Patrick (1903) 29 V.L.R. 15.2 182, 203, 252
Kofi Sunkersette Obu v. A. Strauss & Co. Ltd
[1951] A.C. 243 70' 71
Kolb's Will Trusts, Re [1962] Ch.531 [1961]
3 W.L.R. 1034 [1961] 3 All E.R. 811 117
Krawitz Will Trusts, Re. [1959] 1 W.L.R. 1192,
. [1959] 3 All E.R. 793 130
Kruse v. Johnson [1898] 2 Q.B. 91 152, 156-159, 169,
190, 193, 198, 217,
218, 232, 236, 239,
243, 28o
Kursell v. Timber Operators and Contractors
Ltd [1927] 1 K.B. 298 140
Lahay v. Brown [1958] 5 C.R. 24o 87
Laird v. Dimond and Hart [1931] N.Z.L.R. 171 24
Lamason v. McLean [1952] N.Z.L.R. 288 226
Lambe v. Eames (1870) L.R. 10 Eq. 261,
(1871) 6 Ch.App. 597(C.A.) ~ . 114-115
Lange v. Town and Country Planning Appeal
Board (No.2) [1967] N.Z.L.R. 898 207, 210, 227, 276
Lawrence v. Handley [1920] N.Z.L.R. 169,
(1919) 22 G.L.R. 59 66
 xviii.
Lawrence v. Turner (1623) 2 Rolle. 369,
81 E.R. 858 150
Leach v. Regina City (1964) 50 W.W.R. 129,
(1965] Can.Abr.Supp. 224 190
Leathley v. Webster (l755) Sayer 251, 96
E.R. 870. Sub.nom. Nevesley v. Webster
1 Keny. 243, 96 E.R. 980 148, 151
Lee v. Marine Department, (1970) Supreme Court
Hamilton, G.R. 104, 105/7~Judgement:
6 August, 1970 6, 179-180, 199~
225, 231, 277
Leek, dec'd., Re. [1969] 1 Ch.563, [1968] 2 1tl.L.R.
1385, [1968] ~ All E.R. 'J93 104
Le Marchant v. Le,Marchant (1874) L.R. 18
Eq. 414 114
Leyton Urban Council v. Chew [1907] 2 K.B.
283, 76 L.J.K.B. 781, 96 L.T. 727 163, 244, 260
Life Insurance Co. of Australia Ltd v. Phillips
(1925) 36 C.L.R. 60 63
Lindsay v. Union Steam Ship Co. of New Zealand
Ltd [1960] N.Z.L.R. 486 273
Linson v. Walsh (1860) Argus Newspaper
(Victoria) 23 March 1860, 3 Aust.Dig. 150 181
Lloyd's Trust Investments, (unrep?rted)
Megarry J. June 24,.1970 26
Lockie, Re. Guardian Trust & Executors,Co. of
N.Z. Ltd v.
G.L.R. 464
Gray (1945] N.Z.L.R. 230~ [1944]
. 132
London, City of, case (1609) 8 Co. Rep. 12lb.,
77 E.R. 658 - 157, 158
London and North Eastern Railway Co. v.
Berriman [19;6] A.C. 278, [1946] 1 All E.R.
255, ll5 ~.J .K.B. 124, 174,,L.T. 151 162, 216, 242
Lourie, dec'd., Re. [1968] N.Z.L.R. 541 100
Love &· Stewart Ltd v. s. Instone Ltd (1917)
33 T.L.R. 475 74
B~y v. Walker [1911] A.C. 10 80 L.J.K.B.
138, 103 L.T. 6?:4, 27 T.L.R. 83 138
Luby ~. New9astle~upon-Lyme Corporation [1964]
2 Q.B. 64, (1964]. 2 W.L.R. 475, (1964] 1 All
E.R. 84, (1965] l·Q.B. 215, (1964] 2 W.L.R.
500, [1964]' 3 All E.R. ,169 ,(C.A.) 208, 24o, 276
 xix.
Lutheran Church of Australia South
Australian District Inc. v. Farmers Co-
operative Exe.cutors and Trustees Ltd (1970)
44 A.L.J.R. 176 102, 105, 125
Lushington, Re. Wynard v. Attorney-General
[1963] N.Z.L.R. 313 110
Luxor (Eastbourne) Ltd v. Cooper [1941]
A.C. 108,- 110 L.J.K.B. 131, 164 J..T. 313,
57 T.L.R. 213, [1941] 1 All E.R. a3 69
Lysaght, dec'd, Re. [1966] Ch.l9l, [1965]
3 W.L.R. 391, [1965] 2 All E.R. 888 128
Macandrew's Will Trusts, Re. Stephens v.
Barclays Bank Ltd [1964] Ch.704, [1963]
3 W.L.R. 822, [1963] 2 All E.R. 919 90, 100, 108
McAnnalley, Re. McAnnalley v. Public Trustee
[1935] N.Z.L.R. s.l06 98, 111
McCarthy v. Madden (1914) 33 N.Z.L.R. 1251,
17 G.L.R. 61 187, 193, 198,
213, 231
McCormick v. McCourtie [1933] N.Z.L.R. s.l76
[1933] G.L.R. 821 204, 263
McDevitt v. McArthur (1919) 15 Tas.L.R. 6 154
Macduff, Re. Macduff v. Macduff [1896] 2 Ch.45l
74 L.T. 706 125, 126
McEldowney v. Forde [1971] A.C. 632, [1969] 3
W.L.R._ 179, [1969] 2 All E.R. 1039 6, 25, 163, 165-169,
223, 242
McEwan,.Re. McEwan v. Day [1955] N.Z.L.R.875 101, 102, 103
McGill v. Garbutt (1886) N.Z.L.R. 5 S.C. 73 171
Mackay v. Adams [1926] N.Z.L.R. 518 (1926)
28 G.L.R. 372 21)9
McLachlan v. Taitt (1860) 2 De G.F. & J.
449,_ 45 E.R.695 92
McMillan, Ex parte. Re Craig (1944) 45
S.R.(N.S.W.) 229 183, 186
McMillan v. Tutt [1951] N.Z.L.R. 515 130, 132
Macphall v. Tor~ance (1909) 25 T.L.R. 810 87
McPhee v. Wolters (1901) 20 N.Z.L.R. 493 171
Maddison v. Alderson (1883) 8 App.Cas. 467,
52 L.J.K.B. 737, 49 L.T. 303 87
Mahupuku, Re Thompson v. Mahupuku [1932]
N.Z.L.R. 1397 108
 xx.
Maihu v. Flower (1662) 1 Sid. 98, 82
E.R. 993 150
Malim v. Keighley (1795) 2 Ves. 529, 30
E.R. 760 114
Marilyn Investments Ltd v. Rural Municipality
of Assiniboia (1965) 51 D.L.R. (2d) 711 190, 262
Markham v. Junex (1606) 1 Brownl. & Golds. 92,
123 E.R. 686 150
Marshall's Will Trusts, Re. [1945] Ch.217, [1945]
1 All E.R. 550, 114 C.J. Ch.ll8, 172,
L.T. 267 112
Martin and Fort Garry; Re. (1957) 19 D.L.R.
(28) 578 261
Martin v. Attorney-General [1970] N.Z.L.R.l58 6, 222
Martin v. Clarke (1893) 62 L.J.(M.C.) 178,
9 T.L.R. 656 157
Martin v. Smith [1933] N.Z.L.R •. 636, [1933]
G.L.R. 513 198, 200, 204, 231,
263
Masterton Co-operative Dairy Co. Ltd v. Wairarapa
Milk Board [1964] N.Z.L.R. 771 157, 159, 180, 198,
199, 200, 204, 213,
219, 230, 231, 232,
234, 237, 240, 241,
245, 263-264, 275
May and Butcher v. The King (1929), [1934] 2 K.B.
17n, 103 L.J.K.B. 556n., 151 L.T. 246n. 48, 50
Merak, The [1965] P. 223, [1965] 2 W.L.R. 250,
[1964] 2 Lloyd's Re. 283 65
Meredith v. Whitehead [1918] N.Z.L.R. 1041 173, 259
Messenger's Estate, Re. Chaplin v. Ruane
(1937] 1 All E.R. 355 99
Midgely Estates Ltd v. Hand [1952] 2 Q.B. 432,
[1952]l"'T.L.R. 1452, (1952] 1 All E.R. 1394 80
Mifsud v. Commonwealth [1968] 2 N.S.W.R. 83 141
Miller v. City of Brighton [1928] V.L.R. 375 260
Miller and Giorgi v. Collinge (1909) 28
N.Z.L.R. 358 171
Mills, Re. Midland Bank Executor and Trust Co.
Ltd v. United Birmingham Hospitals Board of
Governors [1953] 1 W.L.R. 554, [1953] 411
E.R. 835 109
 xxi.
Mill's Will Trusts, Re. [1967] 1 W.L.R. 837,
[1967] 2 All E.R. 193 128
Mills v. Farmer (1815) 1 Mer. 55, 35 E.R.
59? 125
Mitchell and Township of Saugeen, Re. (1919)
46 O.L.R. 279 190, 191, 242
Mitchel v. Reynolds (1711) 1 P.Wms. 181,
24 E.R. 347 79
Mixnam's Properties Ltd v. Chertsey Urban
District Council [1964] 1 Q.B. 214 162, 164, 213, 217,
127, 24o, 276
Moggridge v. Thackwell (1863) 7 Ves.36, 30
E.R. 44o 125
Monk v. Mawdsley (1827) 1 Sim. 286, 57
E.R. 584 92
Montreal, City of v. Morgan (1920) 54
D.L.R. 165 190, 191, 230, 236,
242.
Morice v. Bishop of Durham (1805) 10 Ves.
522, 32 E.R. 947 126
Morris v. Ballard (1926) 16 F.2d 175 49
Mortimer, Re. Gray v. Gray [1905] 2 Ch.502,
74 L.J. Ch. 745, 93 L.T. 459 94
Mullooly v. Macdonald (1888) 7 N.Z.L.R. 1 135, 137
Munt, Cottrell & Co. (Ltd) v. Doyle (1904)
24 N.Z.L.R. 417 172, 258, 259
Murray v. Parker (1854) 19 Beav. 305, 52
E.R. 367 68
Mussoorie Bank v. Raynor (1882) 7 App.Cas.
321, 51 L.J.P.C. 72, 46 L.T. 633 118
Nash v. Finlay (1901) 85 L.T. 682, 18 ~.L.R.
92, 20 Cox.c.c. 101 160, 161, 176, 184,
185, 236
Nathan Dec'd, Re. Nathan v •.. Hewitt [1933]
N.Z.L.R. s.l4l 97
National Society for the Prevention of Cnuelty
to Children v.· Scottish Natio_nal Society for
the Prevention of Cruelty to Children [1915]
A.C. 207 84 L.J.P.C. 29, lll L.T. 869,
30 T.L.R. 657 96-97, 100
 xxii.
Nelson (James) & Sons Ltd v. Nelson Line
(Liverpool) Ltd [1908] A.C. 108, 77 L.J.K.B.
456, 98 L.T. 322, 24 T.L.R. 315 78
Nesbitt, dec(d, Re. Dr Barnardo's Homes v.
United Newcastle-upon-Tyne Hospitals [1953]
1 W.L.R. 595, [1953] 1 All E.R. 936 97
Nicholson v. Kohai (1909) 28 N.Z.L.R. 552 135, 137
Nicolene Lt• v. Simmonds [1953] 1 Q.B. 543
[1953] 2 W.L.R. 717, [1953] 1 All E.R. 822 24, 62~63, 65.
Niller v. Green (1673) 3 Keble 153, 84
E.R. 648 150
Norris and Trussel, Wardens of the Society
of Weavers in the Town of Newbury in the
County of Berks v. J. Scapes (1616) 1
Brownl. & Golds. 48, 123 E.R. 657 147
Ofnei:e ·, Re. Samuel v. Ofner [1909] 1 Ch.60,
78 L.J. Ch.50, 99 L.T. 813 97
Ogden, Re. Brydon v. Samuel [1933] Ch.6?8,
102 L.J. Ch.226, 149 L.T. 162, 49 T.L.R.341 103, 108
O'Keefe g. City of Caulfield [1945] V.L.R. 227 154
Oriental Bank v. Wright (1880) 5 App.Cas. 842,
50 L.J.P.C. 1, 43 L.T. 177 216
O'Sullivan, Ex parte. Re Craig (1944) 44
s.R.(N.s.w.) 291 183, 185, 186
Otekaike Drainage Board v. McKay [1919]
N.Z.L.R. 669 251
Oxford Mayor of v. Wildgoose (1689) 3 Lev.
293, 83 E.R. 696 150-151
Oxford v. Provand (1868) L.R. 2 P.C. 135,
5 Moo.P.C.C.N.S. 150, 16 E.R. 472 84
Page v. Harvey [1939] N.Z.L.R. 325 185, 198, 200, 263
Palmer v. Simmonds (1854) 2 Drew. 221, 61
E.R. 704 118
Park, Re. Public Trustee v. Armstrong [1932]
1 Ch.580, [1931] All E.R. Rep. 63~ 101 L.J.
Ch.295, 147 L.T. 118 103
Parker v. Taswell (1858) 2 De G. & J. 559,
44 E.R. 1106 84
Parker v. Tootal (1865) 11 H.L.C. 143, 11
E.R. 1286 91
Farnall v. Farnall (1878) 9 Ch.D. 96 117
Parry v. Osborn [1955] V.L.R. 152 189, 223, 234, 235
 xxiii.
Pasmore v. Huggins (1855) 21 Beav. 103,
52 E.R. 798 91
Paykel v. Guardian Trust and Executors Co. of
N.Z. Ltd (1963] N.Z.L.R. 168 92, 93, 108
Pearce v. Stevens (1904) 24 N.Z.L.R. 357 74
Pearce v. Watts (1875) L.R. 20 Eq. 492 75
Pearse v. City of South Perth [1968] W.A.R.l30 181, 189, 223, 266
Peck v. Halsey (1726) 2 P.Wms. 387, 24 E.R. 780 109
Perrin v. Morgan [1943] A.C. 299, [1943] 1 All
E.R. 187, 112 L.J. Ch.81 93
Peterson v. Freebody [1895] 2 Q.B. 294, 65
L.J .Q.B.· 12, 73 L.T. 163
Pettitt v. Pettitt [1970] A.C. 777, [1969]
2 W.L.R. 966, [1969] 2 All E.R. 385
Petrofina S.A. of Brussels v. Compagnia
Italiana Transporto Olii Minerali of
Genoa (1937) 53 T.L.R. 650, 42
Com.Cas. 286 78
Pierson .v. Garnet (1786) 2 Bro.c.c. 38,
29 E.R. 20 114
Piper v. Chappell (1845) 14 M. & W. 624, 153
E.R. 625 148-149, 155, 156,
158
Poulters' Co. v. Phillips (1840) 6 Bing N.C.
314, 133 E.R. 124 151, 161, 195, 216,
251
Powell v. Bra~n [1954] 1 W.L.R. 401, [1954]
1 All E.R. 484 70, 71
Powell v. Hopkins (1649) Style 247, 82
E.R. 683 14~
Prenn v. Sm,,pmds [1971] 1 W.L.R. 1381,
[1971] 3 All E.R. ,237 55, 57, 58, 66, 68
Prospect, Re a Bylaw made by the District
Council of. Ex parte Hill [1926] S.A.S.R.
326
R v. Bois (1970) 14 D.L.R.(3d) 269
R v. Bratby, Re McLeod Bros (1889) 7
N.Z.L.R. 375 140
R v. Broad (1914) 33 N.Z.L.R. 1275 (C.A.)
[1915] A.C. lllO 175-178, 184-185,
194, 200, 220, 231,
244, 25a
 xxiv.
R v. Catherall (1731) 2 Str. 900,
93 E.R. 927 138
R I• Crisp (1912) 7 Cr.App.Rep. 173, 76 J.P.
304, 28 T.L.R. 296 142
R v. Davis (1833) 5 B.&Ad. 551, 110 E.R. 893 138
R v. Fuller (1699) l Ld.Raym. 509, 91 E.R.
l24o 138
R v. Garvey, ex parte Henry (1888) 6 N.Z.L.R.
628 135, 137, 139, 210,
223, 249
R v. Jukes (1800) 8 T.R. 536, 101 E.R. 1533 138
R v. King (1826) 2 C.&P. 412, 172 E.R. 186 228
R v. Liggetts-Findlay Drug Stores Ltd (1919)
49 D.L.R. 491 191
R v. MacDonald.Re Christie (1889) 7 -N.Z.L.R.
361 139
R v. Mayor of Durham (1757) l Ken. 512, 96
E.R. 1074 153
R v. Minister of Health; Ex parte Davis [1929]
l K.B. 619, 98 L.J.K.i. 636, 141 L.T. 6,
45 T.L.R. 343 178
R v. Saddlers' Co. (1863) 10 H.L.C. 404,
ll E.R. 1083 214-216
R v. Salomons (1786) l T.R. 249, 99 E.R. 1077 135, 138
R v. Trelawny (1786) l T.R. 222, 99 E.R. 1062 138
Raffles v. Wichelhaus (1864) 2 H. & C. 906,
159 E.R. 3?5 29, 66, 67
Rayner, Re. Rayner v. Rayner [1904] l Ch.l76
73 L.~. Ch.lll, 89 L.T. 681
Reardon Smith Line Ltd v. Ministry of
Agriculture, Fisheries and Food [1963]
A.C. 691, [1963] 2 W.L.R~ 439, [1963] l
All E.R. 545 65
Reigate v. Union Manufacturing Co. (Ramsbottom)
Ltd [1918] 1 K.B. 592 60
Richardson v. Austin (1911) 12 C.L.R. 463 251
Richardson v. Watson (1833) 4 B.&Ad. 787, 110
E.R. 652 95
Richmond Gate Property Co. Ltd, Re. [1965] l
W.L.R. 335, [1964] 3 All E.R. 936 ?O, 71
 xxv.
Riddiford v. Collier (No.2) (1896) 15
N.Z.L.R. 344 170, 172, 175, ~oo,
203, 220, 231, 257
River Wear Commissioners v. Adamson (1877) 2
App.Cas·•. 743 57
Roberts, Re. Repington v. Roberts-Gawen
(1881) 19 Ch.D. 520 28, 4o
Robertson v. Flynn [1920] 1 I.R. 78 96
Robjohns v. Hill (1900) 19 N.Z.L.R. 605 66
Rodger v. Rodger (1893) 12 N.Z.L.R. 392 115, 117
Rooney dec'd, Re. Public Trustee v. Rooney [1939]
N.Z.L.R. 87 93
Rose (F.E.) (London) Ltd v. W. H. Pim Jnr. & Co.
Ltd [1953] 2 Q.B. 450, [1953] 3 W.L.R. 497
[1953] 2 All E.R. ?39 56, 68
Russon v. Dutton (No.2) (1911) l04,L.T. 601,
27 T.L.R. 198 214
Ryan, Ex parte. Re Bellemore (1945) 46 S.R.(N.S.W.)
1521 177, 183, 231, 247,
250
Ryan v. Mutual Tontine Westminster Chambers
[1893] 1 Ch.ll6, 62 L.J. Ch.252, 67 L.T. 820 82
Salaman, Re. (Aniinfant) [1923] N.Z.L.R. 50 138
Sale v. Moore (1827)"1 Sim. 534, 57 E.R. 678 118
Salmon v. Duncombe (1886) 11 App.Cas. 627,
55 L.J.P.C. 69, 55 L.T. 446 228
Sanford, Re. Samford v. Sanford [1901] 1 Ch.
9a9, 70 L.J. Ch.591, 84 L.T. 456 91, 94
Savill Brothers Ltd v. Bethell [1902] 2
Ch.523, 71 L.J. Ch.652, 87 L.T. 191 135
Sawyer v. Crompton (1617) 1 Brownl. & Golds.
72, 123 E.R. 673 149
Saxone Shoe Co. Ltd's Trust Deed, Re. [1962]
1 W.L.R. 943, [1962] 2 All E.R. 904 104, 120
Sayer, Re. MacGregor v. Sayer [195~] Ch.423,
[1957] 2 W.L.R. 261, [1956] 3 All E.R. 600 104
Scammell, G. and Nephew v. H.C. & J.G. Duston
[1941] A.C. 251 . 74
Scarborough's Will Trusts (1958) The Times
22 March, 1958, p.3 108
 xxvi.
Scheggia v. Gradwell [1963] 1 W.L.R. 1049,
[1963] 3 All E.R. 114 80
Scott v. Pilliner [1904] 2 K.B. 855, 73
L.J.K.B. 998~ 91 L.T. 658, 20 T.L.R. 662 160, 161, 162, 214
Secretary for Law v. Tenalom [1965-66] P. & N.G.R.
414 256
Selby's Will Trusts, Re. [1966] 1 W.L.R. 43,
[1965] 3 All E.R. 386 130
Shamrock s.s. Co. v. Stoney & Co. ~1899) 81
L.T. 413, 16 T.L.R. 6 74
Sharp v. Amen [1965] N.Z.L.R. 760 140, 223
Shaw v. City of Essendon [1926] V.L.R. 461 182
Sharratt v. Bentley (1834) 2 My. & K. 149,
39 L.R. 901 91
Shirlaw v. Southern Foundries (1926) Ltd [1939]
2 K.B. 206, 108 L.J.K.B. 747
Shorev. Wilson, Lady Hawley's Charities
(1842) 9 Cl. & Fin. 355; .8 E.R. 450 90
Sifton v. Sifton [1938] A.C. 656, [1938] 3 All E.R.
435, ~07 L.J.P.C. 97, 159 L.T. 289 130-131
Simcoe, RewVewler-Simcoe v. Vowler [1913]
1 Ch.552 17
Sinderberry, Ex parte. Re Reid (1944) 44
S.R.(N.S.W.) 263 184, 185, 220, 225
Singleton v. Romlinson (1~78) 3 App.Cas.
404, 38 L.T. 653 100
Sleigh v. Tyser [1900] 2 Q.B. 333, 69
L.J.Q.B. 626, 82 L.T. 804, 16 T.L.R. 404 78
Slough Estates Ltd v. Slough Borough Council
(No.2) [1969] 2 Ch.305, [1969] 2 W.L.R. 1157,
[1969] 2 All E.R. 988 4o
Smidmore v. Smidmore (1905) 3 C.L.R. 344 91
Smith, Re Catheri~, Campbell v. N.Z. Insurance
Co. Ltd [1935] N.Z.L.R. 299, [1937] N.Z.L.R.
33 127
Smith, Re. [1948] Ch.49 100
Smith v. Crabtree (1871) 6 Ch.D. 591 91
Smith v; Mansi [1963] 1 W.L.R. 26, [1962]
3 All E.R. 857 51
Smith v. Morgan [1971] 1 W.L.R. 803, [1971]
2 All E.R. 1500 61
Smith v. Pybus (1804) 9 Ves. 566, 32 E.R. 722 91
 xxvii.
Smith v. Wellington City (No.2) [1968]
N.Z.L.R. 730 6, 221
Smith v. West Australian Trustee Executor &
Agency Co. Ltd (1950) 81 C.L.R. 320 106
Soames, Re. Church Schools Co. v. Soames (1897)
13 T.L.R. 439 87
Sobania v. Nitsche (1969) 16 Fed.L.R. 329 154
Solicitor-General v. Wanganui Borough [1919]
N.Z.L.R. 763 114
South Eastern Rail~ay Co. v. Associated Portland
Cement Manufacturers [1910] 1 Ch.l2 79 L.J.
Ch.l50, 101 L.T. 865 135
Sprange v. Barnard (1789) 2 Bro.c.c. 585,
29 E.R. 320 117
Spring v. National Amalgamated Stevedores and
Dockers Society [1956] 1 W.L.R. 585, [1956]
2 All E.R. 221 60
Springbank Municipal Council v. Rander [1936]
4 D.L.R. 193 159, 190, 234, 235
Stamford and Warrington (Earl), Re. Payne v.
Grey [1912] 1 Ch.343, 81 L.J. Ch.302, 105 L.T.
913, 28 T.L.R~ 159 94
Stanley v. Scott [1935] N.Z.L.R. s.l5 173, 259
Staples & Co. Ltd v. We1lington City (1900)
18 N.Z.L.R. 857 171-172
Stapleton, dec'd., Re [1969] S.A.S.R. 115 104, 107
Stationers' Co. v. Salisbury (1693) Comb.221,
90 E.R. 440 153, 154
Stead v. Mellor (1877) 5 Ch.D. 225, 46
L.J. Ch. 880, 36L.T. 498 117
Steele's Will Trusts, Re. National Provincial
Bank Ltd v. Steele [1948] Ch. 603, [1968] 2 All
E.R. 193 116
Stephan v. Baylor (1937) 37 S.R.(N.s.w.) 127 260
Stevens, dec'd, Re. Pateman v. James [1952] Ch.
323, [1952] 1 T.L.R. 590, [1952] 1 All E.R. 674 99
Stewart v. City of Essendon [1924] V.L.R. 219 182, 183, 188, 198
Stirling, dec'd, Re. Union Bank of Scotland Ltd
v. Stirling [1954] 1 W.L.R. 763, [1954] 2 All
E.R. 113 115
Stone v. Goddard (1616) 1 Brownsl. & Golds. 81,
123 E.R. 679 150
 xxviii.
Strawbridge v. Simeon [1959] N.Z.L.R. 405 177-178, 196-197,
221, 254, 277
Strickland v. Hayes [1896] 1 Q.B. 290, 65 L.J.M.C.
55, 74 L.T~ 137, 12 ~.L.R. 199 195
Surrey Zoning Bylaw 1954, No.l291; Re. British
Columbia Electric Co. Ltd v. District of Surrey
(1956) 1 D.L.R. (2d) 717 190, 260, 262
Sutton, Re. Stone v. Attorney-General (1885)
28 CH.D. 464, 54 ~.J. Ch.613 126
Sweet & Maxwell Ltd v. Universal News Services
Ltd [1964] 2 Q.B.699, [1964] 3 W.L.R.
356, [1964] 3 All E.R. 30 74
Swine, Re. Mellor v. Swire (1885) 30 Ch.D. 239,
53 L.T. 205, 1 T.L.R. 623 138
Synge v. Synge [1894] 1 Q.B. 466, 63 L.J.Q.B.
202, 70 L.T. 221, 10 T.L.R. 194 87
Talbot v. Talbot [1968] Ch.l, [1967] 3 W.L.R.
438, [1967] 2 All E.R. 920 109
Tarnpolsk, Re. Barclays Bank v. Hyer [1958]
1 W.L.R. 1157, [1958] 3 All E.R. 479 128, 130
Tatham v. Haxtable (1950) 81 C.L.R. 639, 24
A.L.J. 416 100, 102
Taylor, Re. Baker v. Taylor [1931] N.Z.L.R.998 92
Taylor, Re. Cloak v. Hammond (1886) 34 Ch.D.255 27
Taylor, Re. Taylor v. Thomp~on [1927] N.Z.L.R.
236 115
Taylor v. Beverley (1844) 1 Coll. 108, 63
E.R. 342 92
Taylor v. Portington (1855) 7 De G.M.&G.
328, 44 E.R •. l28 62
Taylors of Ipswich case (1614) Godb. 252,
78 E.R. 147 153
Television Corporation Ltd v. C_ommonweal th
(1963) 109 C.L.R. 59, 37 A.L.J.R. 107 189
Tetsell, Re. Foyster v. Tetsell [1961] 1 W.L.R.
938, [1961] 2 All E.R. 801 97
Thames Borough v. Thames Valley Electric Power
Board [1957] N.Z.L.R. 523 57
Thellusson v. Lord Rendlesham (1859) 7 H.L.C.
429, 11 E.R. 172 94
Thomas, Re. Smith v. Thomas (1915) 34 N.Z.L.R.
1110 97
 xxix.
Thomas v. Harpur (1935) 36 S.R.(N.S.W.)l42 84
Thompson and Pana, Re. (1894) 13 N.Z.L.R. 218 135, 139
Thomson, Ex parte. Re Clarke (1945) 45 S.R.(N.S.W.)
193 183, 265
Thorn v. Dickens [1906] W.N. 54 30
Thurlow, dec'd., Re. Riddick v. Kennard [1971]
3 W.L.R. 811 100
Tobacco-Pipe Makers' Co. v. Woodroffe (1825)
7 B•. lli.C. 835, 108 E.R. 9'35 151, 161, 195
Todd v. Percival [1923] N.Z.L.R. 1356 138
Topliss Bros. v. Cohr (1904) 24 N.Z.L.R. 54o 65, 66
Townsend (Builders) Ltd v. Cinema News and
Property Management Ltd [1959] l W.L.R. 119,
[1959] l All E.R. 7 163, 236, 244
Transport Department v. Manawatu Asphelts Ltd
(1971) 13 M.C.D. 257 225
Treasure & Co. v. Bermondsey Borough Council
(1904) 68 J.P. 206 162, 243
Treif v. Charles Parsons & Co. Pty. Ltd
(1946) 46 s.R.(N.s.w.) 265 189, 265
Trillo v. Christchurch City Corporation [1931]
N.Z.L.R. 833, (1931] G.L.R. 449 259
Trillo v. Christchurch City Corporation [1935]
N.Z.L.R. 64, (1935] G.L.R. 9C) 172
Trustees Executors & Agency Co. Ltd v. Peters
(1960) 102 C.L.R. 537 74
Turner v. Allison [1971] N.Z.L.R. 833 209
United Bill Posting Co. v. Somerset County
Council (1926) 95 L.J.K.B. 899 163, 243, 266
United Repairing Co. Ltd v. Glover [19~5] N.Z.L.R.
160 . 140
Upper Hunter County District Council v.
Australian Chilling & Freezing Co. Ltd
(1967-68) 118 C.L.R. 429, 41 A.L.J.R. 348 76
Vancouver Incorporation Act 1921, Re. Re Bent
»1940] 2 w.w.R. 697 191
Van Grutten v. Foxwell, Eoxwell v. Van G~utten
(1897] A.C. 658 - 17
Vardon v. Commonwealth (1943) 67 C.L.R. 434 177, 183, 185, 186,
188
Vince, Re. Ex parte Baxter [1892] 2 Q.B. 478 63
Voisey, Ex parte. In re Knight (1882) 21
Ch.D. 442 72
 xxx.
Von Hatzfeldt-Wildenburg v. Alexander [1912]
1 Ch.284, 81 L.J. Ch.l84 50
Waikato (Cargo owners) v. New Zealand
Shipping Co. (1898] 1 Q.B. 56, 68
L.J.Q.B. 1, 79 L.T. 326, 15 T.L.R. 33 77
Waldegrave v. Mayor etc. of Palmerston
North (1909) 29 N.Z.L.R. 223 203, 247, 252
Walpole v. Bywool Pty. Ltd [1963] V.R. 157 189, 225, 234
Walter v. Farmer (1620) Latch 216, 82 E.R.
353 150
Walton's Estate, Re. (1856) 8 De G.M. & G.
173, 44 E.R. 356 92
Waring & Gillow (Ltd) v. Thompson (1912)
29 T.L.R. 154
Way v. Latilla (1937] 3 All E.R. 759 70, 71
Webb's case (1607) 1 Rolle. ~br. 609 108
Western v. Western [1916] N.Z.L.R. 195 98
White v. White (1908) 28 N.Z.L.R. 129 109
Whitlock v. Brew (1968) 118 C.L.R. 445 24
Whitrick, dec'd, Re. Sutcliffe v. Sutcliffe
(1957] 1 W~L.R. 884, (1957] 2 All E.R. 467 100' 253
Widgeeshire Council v. Bonney (1907) 4 C.L.R.
977 216, 251
Willetts v. Ryan (1968] N.Z.L.R. 720 42, 69
Williams, Re. Williams v. Williams
1
[1897]
2 Ch.l2 115
Williams v. Melbourne Corporation (1933)
49 C.L.R. 142 187, 213
Williams v. Weston-Super-Mare U.D.C. No.1
(1907) 96 L.T. 537 260
Williams' Trustees v. Inland Revenue
Commissioner [1947] A.C. 447, 1947 1 All
E.R. 513, 176 L.T. 462 126
Williamson v. Christchurch City [1955] N.Z.L.R.
988 237, 245, 263
Williamson, J.C. Ltd v. Lukey & Mulholland
(1931) 45 C.L.R. 282 82
Willis, Re. Shaw v. Willis [1921] 1 Ch.44,
90 L.J. Ch.94, 124 L.T. 290, 37 T.L.R. 43 125
Wilton v. Mt Roskill Borough [1964] N.Z.L.R.
957 259
 xxxi.
Winn v. Bull (1879) 7 Ch.D. 29 1 47 L.J.
Ch.139 51
Winnipeg Beach (Town of) Re Bylaw 92
(1919) 50 D.L.R. 712 191, 236
Wolff, Re. Thornthwaite & Goldby v. David
(1958) 16 D.L.R.(2d) 527 108
Wolffe, Re. Shapley v. Wolffe (1953] 1 W.L.R.
1211, (1953] 2 All E.R. 697 128, 131
Wood v. Searl (1618) Bridg. J. 139, 123
E.R. 1257 148, 149, 151, 155
Woolworth, (F.W.) & Co. Ltd & City of
Hamilton, Re. (1965) 46 D.L.R. (2d)
602 190
Wootton, dec'd, Re. [1968] 1 W.L.R. 681,
(1968] 2 All E.R. 618 104
Wright v. Atkyna (1810) 17 Ves. 255,
34 E.R. 98 114
Wright v. Atkyns (1823) Turn. & R. 143,
37 E.R. 1051 1:1,8
Wright v. T.I.L. Services Pty. Ltd (1956)
56 S.R.(N.S.W.) 413 154, 177, 187
Wykes, dec'd, Re. (1961il Ch.229, (1961] 2
W.L.R. 115, [1961] 1 All E.R. 470 127
Yeap Cheah Neo v. Ong Cheng Neo (1875)
L.R. 6 P.C. 381 102
Zietsch, Ex parte. Re Craig (1944) 44
S.R. (N.S.W.) 360 183, 186, 216, 232,
233, 243, 251
Zurowski, Re. [1928] 1 D.L.R. 357 96
 xxxii.
TABLE OF STATUTES AND REGULATIONS
Unless otherwise indicated, all references are
to New Zealand legislation.

Acts Interpretation Act, 1924 s.5(j) 174, 225

Air Services Licensing·Act, 1951 210
Animal Remedies Act, 1967 211
Bankruptcy Act, 1885 139, 14o
Broadcasting Authority· Act, 1968 210
Bylaws Act, 1910 144, 173, 204-205,
245, 257-259, 260,
278
Charitable T~usts Act, 1957 125, 127, 128
Cha~itable Trusts Amendment Act, 1963 127
Charitable Trusts' (Validation) Act, 1954 (U.K.) 127
Clerk of Works Act, 1944 210
Contracts Enforcement Act, 1956 41
Counties Act, 1956 257 ...259
Criminal Injuries Compensation.Act, 1963 210
Customs Act, 1966 210
Dental Act, 1963 211
Finance Act., 1969 (U.IC.) s.36 121-122
Forest & Rural Fires Act, 1955 221
Housing Act, 1950 (U.K.) 214
Indecent Publications Act, 1963· 211
Industrial Cmnciliation and Arbitration
Act, 1964 210
Inferior Courts Procedure Act, 1909 139
Inland Revenue Department Amendment Act, 1960 211
Judicature Act, 1908 133
Land Settlement Promotion and Land
Acquisition Act, 1952 211
Land Transfer Act, 1952 6o, 136
Land Transfer Regulations, 1966 136
Land Valuation Proceeiings Amendment Act, 1968 211
Law Reform (Testamentary Promises) Act, 1949 87
 xxxiii.
Law Reform (Testamentary Promises)
Amendment Act, 1961 s.2 88
Magist_rates' Courts Act, 1947 138
Milk Act, 1967 211
Motor Spirits Distribution Act, 1953 210
-
Municipal Corporations Act, 1900 172
If
" II 1908 172
It u 1920 172
" II
1933 172
"" u
II

" 1954 172, 257-259

National Security Act, 1939-1945 (Aust.) 187
National Security (Prices) Regulations
1939-1945 (Aust.) 183, 212
Police Act 1 1958 · 210
Property Law Act, 1956 6o, 140
Race Relations Act, 1971 210
Sale. of Goods Act, 1908 41, 140
Sale of Liquor Act, 1952 211
Stabilisation of Remuneration Act, 1971 210
Summary Proceedings Act, 1957 139
Statutes Amendment Act, 1945 259-260
Town and Country Planning Act, 1953 211, 227
Trade Practices Act, 1958 210
Transport Act, 1962 210
Trustee Act, 1956 112
Trustee Amendment Act, 1935 126-127
Urban Renewal & Housing Improvement Act, 1945 172
Wi~ls Act, 1837 (U.K.) 86, 101, 106, 255,
268
W~lls Amendment Act, 1955 86
Wills Amendment Act, 1962 86
Wills Amendment Act, 1969 86
Workers' Compensation Act, 1956 210
 PART ONE
INTRODUCTION
 CHAPTER 1.

INTRODUCTION
Uncertainty of meaning of words is a problem of considerable

concern to scientists philosophers and lawyers. Since the language

of words is man's ?.hief medium of thought and means of communication

its imprecise and ambiguous nature tends to cause unnecessary

misunderstanding and confusion. Scientists and philosophers

have devoted considerable thought and discussion, aided in recent

years by laboratory research, to reaching a closer understanding

of the nat¥re and function of language in general, and particularly

to the question of how words can be said to 'mean' something.

In law the meaning of words is of paramount importance, yet

lawyers have approached problems of their interpretation in a

generally haphazard, though admittedly pragmatic manner. Should

uncertainty arise as to the meaning of a statute for example,

resort may be had to any of a number of established rules or

'canons' or construction, each of which purports to guide the

interpreter towards one or other of the choices that the language

of the statute appears to leave open to him. It has been said

that these rules

••• consist of a number of guides which l~rgely cancel

each other out, of learned formulas giving a deceptive
appearance of logic which only serves to conceal the
choice of equal logical validity, and of inarticulate
 2.

ideological premises which depend on personal

predilection and on changing trends of public
and social policy.l

Of these interpretative rules and sub-rules much has been

written elsewhere, and they will receive only passing reference
in this work. The concern of this study is instead with those

types of legal instruments where the courts have a way out of

their dilemma. Where the words are so obscure that no certain
meaning suggests itself, they need not embark upon a process of
refined analysis in order to distil some drop of meaning to
which effect may be given. They may instead hold the instrument
to be invalid.,

In private law, uncertainty may lead to invalidity

principally in contracts, wills and trusts, although various
other instruments may also fail on this ground. As may be
expected the major problem is in determining the degree of

uncertainty that is to be present before the instrument should

fail.. Different degrees of certainty are sometimes insisted

upon for different types of provision. But because of the

difficulty in defining and determining concepts such as 'meaning'

and 'uncertainty', assessments of their degree are likely to be

highly subjective. Because of this the courts have tended on

1. Friedmann, Law and Social Change in Contemporary Britain,

243-244. (Quoted in S. A. de Smith, Judicial Review of
Administrative Action 2nd ed. (1968) 87.}
occasions to be guided and influenced in the final analysis by

a number of subsidiary considerations. In private law, principles

of approach to the problem of uncertainty have been laid down
over a period of years, and tend to be applied with reasonable

consistency, a consistency that is generally reflected in the

actual decisions.

But in public law the situation is quite the reverse. Of

all the reported cases where judges have been required to grapple
with unclear and imprecise wording and to relate it to the

validity of provisions, those arising from subordinate legis-

lation must demonstrate the widest diverg,ence of judicial approach
and understanding. There can be few areas of law where judicial

inconsistency of so great a magnitude existso

As an example, reference may be made to the cases on bylaws.
That a bylaw may be held void for uncertainty has not always been
admitted, but even among those judges who accept the test, there

exist differences as to what degree of uncertainty should induce

invalidity. While some insist that its language should be

r~adily intelligible to the average citizen, others maintain

that the bylaw should be construed 'benevolently', or that

principles of statutory construction should be applied, or again

that it is sufficient merely that an experienced judge should be

able to understand the intentiGns of the legislator. Again,

there is confusion over the status of the test. There are those

who see it as a facet of unreasonableness, while others designate

 4.

it an 'independent' test of validity, or alternatively an aspect

of the ultra vires rule.
The standard public law texts afford little enlightenment.

Professors. A. de Smith,,whose book Judicial Review of

Administrative Action has rapidly becomea:ileading work, states
simply:

Bylaws may also be pronounced invalid for uncertainty

or repugnancy. The test of uncertainty is uncertain,
that of repugnancy elusive; but it is broadly correct
to say that uncertainty exists where a bylaw fails to
indicate adequately what it is prohibiting •••
Uncertainty is a ground for invalidating conditions
annexed to grants of planning permission and site
licences.2

A footnote in which reference is made to a handful of cases,

explains that 'how this test of uncertainty ought to be formulated
is not altogether clear', but apart from an earlier footnote,3
which adds little to the passage quoted, there is nothing more.
4
H.W.R. Wade, in Administrative Law makes no mention of the
certainty test at all.
Halsbury's Laws of England contains two references to the

test. The first is the simple statement:

A bylaw must be certain, that is, it must contain

adequ~te information as to the duties of those who
are to obey.5
6
A later passage elaborates on this, but unfortunately the analysis

there contained is, with respect, superficial and misleading,

2. 2nd ed. (1968) 339.

3. ~., 279, footnote 72.
4. 3rd ed. (1971).
5. 3rd ed. ix, 44.
6. ~., xxiv, 517.
 and fails mor~over to take into account any of the many decisions
since 1925.
One possible explanation.for the inadequacy of the English
texts 7 may be that much of the development of the test has taken
in place in Commonwealth Courts. Australia, in particular, has
chosen to proceed along different lines from the other common
law countries, yet Benjafield and Whitmore's Australian
8
Administrative Law dismisses the problem in two paragraphs.
Reliance is there placed upon the dissenting judgement of Kitto J.
~n Television Corporation Ltd v. The Commonwealth, 9 and upon
Lord Denning's jttdgement in Fawcett Properties Ltd v. Buckingham
10
County Counci1. The unusual facts of the latter case are
discussed more fully later in this work, 11 and, it is submitted,
are such as to call for a much narrower interpretation of L~rd

Denning's judgement that the learned authors indicate.

7. Uncertainty is accorded a brief mention in J. F. Garner,

Administrative Law 2nd ed. (1967) 81, but seemingly none
in Griffith and Street, Principles of Administrative Law
3rd ed. (1966), o. Hood Phillips, Constitutional and
Administrative Law, 4th ed. (1967), nor in D.C.M. Yardley,
Source Book of English Administrative Law (1963) The
writer has encountered only one text that attempts to
provide more than a passing reference to the topic,
D. E. Paterson, An Introduction to Administrative Law
in New Zealand, (1967) 71-77•
8. 4th ed. (1971), 175.
9. (1963), 109 C.L.R. 59, at 71.
10. [1961] A.C. 636, at 675-681.
ll. See at pp.213-l~infra.
 6.

But there has been a significant nu¢ber of cases where

subordinate legislation has been tested for certainty, and it
is dif£icult to understand the failure of legal writers to
devote more study to this area of law. 12 The courts have
always been reluctant to exercise wide powers of review
over subordinate legislation of-the Governor-General and
Ministers of the Crown, and have detlined in this country at
least, to test it for reasonableness. 13 It is surprising then
that recent applications of the certainty test to such legis•
14
lation should pass without comment.
The present study is to a large extent prompted by the
significance, both present and potential, of the test of
certainty as a basis for review of administrative action. In
order to assist in the understanding of what is meant by the
assertion that a word or phrase is 'uncertain' , the firs·t part
of this work is devoted to a brief study of the nature of
language, and to how uncertainty arises in its use.

12. It may be noted too, that decisions on uncertainty in

public law are indexed in a different manner in practically
every Report. Where they are listed in a category of
their own, they are liable to be found under any one or
more of the following headings: ambiguity, uncertainty,
or vagueness. These in turn may be subheadings of any
of the following: Administrative law, Bylaws, Crown
practice, Local government, Municipal corporations, or
Statutory instruments.
13. See e.g. Smith v. Wellington City (No.2) [1968] N.Z.L.R.
730; Martin v. Attorney-General [1970] N.Z.L.R. 158.
14. See e.g. Brudenell v. Nestle Co. (Aust.) Ltd [1971] V.R. 225;
~ v. Marine Department Supreme Court, Hamilton, 6 August
1970 (unreported); and, in a limited sense, McEldowney v.
Forde [1971] A.C. 632G
 Part Two is concerned with the extent to which private

law instruments may be tested for uncertainty. This Part is

not intended as an exhaustive study of interpretative processes

in the context of private law documents, but merely as an

attempt to study the effect upon the validity of a provision
of imprecise language in its terms. An effort is made to

isolate particular factors involved in the determination of

this question, in the hope that they may be of some assistance

in the analysis of the operation of the test in public law.

That analysis is contained in Part Three of this work,
and opens with a study of the history of the test in public law.

Ensuing chapters are devoted to its status, extent, and operation.

Finally, consideration is given to the extent to which

principles derived from decisions on private law instruments
can assist in the application of the test, and to its likely

future status and operation.

 8.,

CHAPTER 2.

LANGUAGE
l. The Nature of Legal Communication
It is a counsel of perfection to say that the draftsman
of a legal instrument must first ascertain the wishes of his
client with regard to all forseeable contingencies, and then
express them in his document in such a way as to ensure that
its subsequent interpretation is an exact reversal of his
procedures in its preparation. But it is also a gross over-
simplification of the actual process. It would rarely be
possible to provide in specific terms for all forseeable
contingencies, let alone those which are not forseeable.
Many must be overlooked, even deliberately. 1 It is likely
then that vague language will be used, leaving specific
future interpretation and application of the instrument to
a greater extent in the hands of the courts.
The language of words is the chief form of human
communication, and also the most significant instrument of
social control. But in its use in legal documents it is

l. An interesting example of considerations of delicacy

preventing parties from raising important issues in
their negotiations is provided by the case of First
National Bank v. Methodist Home (1957) 181 Kan. 100
F.2d 389. An elderly woman entered a home for the aged,
paying a lump sum to be returned to her 'if it should be
found advisable to discontinue her stay' during a two month
period. On her death within that period, it was held that
the sum must be refunded. The decision is cited in
E. Allan Farnsworth, "''Meaning'' in the Law of Contracts'
(1967), 76 Yale L.J. 939 at 956.
 9.

subject to a number of limitations. 2 Psychologists have

indicated that considerable amounts of information are
communicable without language, particularly in the face to
face conversational context.3 This may occur, for example,
through sounds., be they vocal - such as laughing or crying ...
or non-vocal such as applause or stamping. Furthermore, in
the context of the spoken word, the tone of voice employed
by the speaker serves in itself to communicate. The point
is that all these subsidiary communicative forms add meaning
to the words they may happen to accompany. Ambiguities and
uncertainties arising from the words used may readily be
resolved through their place in the whole conversational
context. One writer has put forward in illustration the
4
phrase 'pretty little girls camp•. It is capable of a large
number of quite different interpretations. That which it
actually receives, however, is dependent upon contextual
considerations. In the conversational context, the inflexion
and stress employed by the speaker wou~d indicate which meaning

!. The role of language in legal communication is specifically

studied by Glanville Williams, 'Language and the Law' (1945),
61 L.Q.R. 387 and by Chafee, 'The Disorderly Conduct· of
Words' (1941), 41 Columbia L.R. 381. Stuart Chase also
devotes part of his entertaining work The Tyranny of Words
5th ed. (1943) to legaluse and abuse of words; see
Chapter XVII, 'Round and Round with the Judges' at 212·226.
3. See e.g. B. F. Skinner, Verbal Behaviour (1957), Chap.l.
4. w. Quine, Word and Object (1960), 54.
 10.

he intended. But when written, its meaning is dependent

upon the surrounding text and the circumstances of its employ-

ment. In, the interpretation of legal provisions, these are the

major ai"d~, since none of the subsidiary communicative forms
...,:·
are avai-iable.
Furthermore, word language is an imprecise means of
communicatien. In order to achieve the precision necessary for
their di..sciplines, scientists prefer to rely on special
languages such as mathematics or chemical fermulae whose
denotations are precisely defined. The chemist for example,
defines compounds in terms of the proportions of their basic
elements, so that water becomes H o. In communicating with
2
persons trained in the language he is then able to impart ideas
and concepts with a minimum of ambiguity.
At the other end of the scale is the communication effected
by various art forms, such as music and abstract painting,
where the message is indirect and individual responses vary
substantially as a result. Persons attempting to describe
powerful experiences rely typically to a significant extent
tipon subsidiary forms of communication, such as gesture,
.;·~.·>

to'add meaning and colour to their words. Poetry, too, is

an art form, _and demonstrates a different use of language from
that of the law courts. In poetic communication the literal
sense of the words is generally of little significance, the
poet instead relying upon imagery to convey subjective and

i~precise impressions.
 11.

Given the ability of language to communicate in this way,

and the inability of the legal draftsman to indicate through
subsidiary means the sense in which he intended his words to
be understood, ambiguity and imprecision appear as unavoidable,
and indeed inherent in legal provisions. One further factor
is the significance liable to be accorded each word and phrase
in legal contexts. In the normal conversational situation,
vagueness and ambiguity frequently will be ignored by a listener,
possibly because of the unimportance to him of what is being
said, but for various other reasons as well. Alternatively
he may, through questionin~ require·the speaker to clarify
his statements.
But neither course is open to a court of law interpreting
an instrument. To ignore provisions is far from according
effect to the intentions of their author, and is generally .
possible only where there is no indication whatsoever of what
these intentions might have been. Nor can a court cross
examine the draftsman of, or the parties to, an instrument,
Even should they still be living, their intentions and beliefs
at the time of interpretation are irrelevant. All that is
seen as being of rele~ance to the interpretative process is
the intention at the time of execution of the instrument, and
that must be~gleaned solely from narrow conte~tual considerations.
 12.

2. The Meaning of Meaning

One psychologi_st has written:

'Meaning' is a harlot among words; it is a

te~ptress who can seduce the writer or speaker
from the path of intellectual chastity.5
In recent years the study of meaning, or semantics, has
received a considerable amount of attention from both
psychologists and philosophers. Both branches seem now
agreed that no fully satisfactory theory of semantics is
possible until it can be expressed in physiological and
eventually neural terms, and psycholinguists have been
working for some time in that direction. 6 In doing so they,
have rejected concepts of 'meaning' as unsatisfactory for
accurate scientific study. In demonstrating the unsatisfactory
nature of the wor~, philosophers and scientists have been able
to pinpoint a number of matters that have on occasion confused
philosophical thought and argument, and may therefore be of
relevance to this studyo .
The classic work in this field is that of Ogden and
Richards, The Meaning of Meaning first published in 1923. The
authors cond~nted an exhaustive analysis of the word 'meaning'

5. c. Cherry, On Human Communication (1957), 112.

6. See particularly B. F. Skinner, (supra, n.3) and Sol
Saporta (Ed) Psycholinguistices: A Book of Readings
which contains a wide coverage of psycholinguistic
thought and research. More technical but still
intelligible to the layman is s. Rosenberg (Ed.)
Directions in Psycholinguistics (1965), particularly
Part V, 'Individual Differences in Yerbal Behaviour•.
 13.

and were able to illustrate that it is commonly employed in

sixteen different ways, with a further nine shades of usage
within those different categories. 7 With twenty-five common
different understandings of the word it is little wonder that
confusion may arise in the determination of what is 'meant'
b~or the 'meaning' of a legal provision.
(a) The Relationship between a word and its meaning
One basic misconception that Ogde~ and Richards
demonstrated was that of the simple dyadic concept of meaning.
This postulates that there is some direct relationship between
a word and some object in the real world - that the word is
merely a sign for that object. This approach, is of course,
simplistic and misleading, in that it overlooks the roles of
both the user and the interpreter of the word. Ogden and
Richards 8 chose to stress this aspect by demonstrating that
words are in themselves nothing but symbols, or kinds of signs,
whose relationship to some thought, concept or object in the
real world (for which they coined the word 'referent') is

always indirect:
Our interpretation of any sign is our psychological
reaction to it, as determined by our past experience
in similar situations, and by our present experience.9

7. c. K. Ogden and I. A. Richards, The Meaning of Meaning

3rd rev. ed. (1930), 186.
8. Ibid., Chaps 1 & 2.
9. 'Ibid.' 11.
 14.

The relationship between sign and object they illustrated

with a triangle, where the three factors involved when any
statement is made or understood are symbolized by the corners,
and their relations represented by the sides. 10

SYMBOL REFERENT

The significant fact is that the triangle has only two

complete sides .... between the symbol and t.he referent there
is only ari imputed, and not a direct relation.
One consequence of this rejection of the dyadic concept
is the rejection too of any idea of 'word magic' - that words

have some existence of their own. 11 Glanville Williams, in

10. Ibid., ~~~. The diagram shown is that of Cherry (supra,

n.5) which varies slightly from the original.
11. Cherry has expressed similar sentiments in a rather more
colourful fashion: 'A "meaningH is not a label tied round
the neck of a spok,en word or phrase. It is more like,. the
beauty of a complexion which "lies altogether in the eye of
the beholder" (but changes with the light)•. (On Human
Communication 115.) See further, Chafee (supra, n.2)
384-385.
an interesting study asserts that a significant reason why
the crime of bigamy is regarded as seriously as it is, is
because of this word magic, or as he terms it, 'word
fetishism•. The severity. of its punishment, he claims,
stems to a considerable extent frpm the supposition that
the marriage ceremony is a magic form of words that has
to be protected from profanation. 12 Whether or not one
agrees with that conclusion, there can be little doubt that
many lawyers have over the years fallen into the trap of
assuming that every word has attached to it a constant and
invariable, or 'literal', meaning.
It is their emphasis on the role of the interpreter,
however, which gives special significance to Ogden and
Richards' theory to lawyers. They assert that the most
important sense in which words have meaning is this:
The meaning of A is that to which the mental
process interpreting A is adapted.l3-

Thu~ even where the user of a word and its interpreter

use 'meaning' in the same one of its twenty-five possible
senses, yet what each 'means' by the word may still vary

12~ (1945), 61 L.Q.R. 76-78.

13. Op. cit¥, 200. Cf. Wittgenstein's emphasis on the~
of words: 'For a large class of cases - though not for
all - in which we employ the word "meaning" it can be
defined thus: the meaning of a word is its use in
the language. And the meaning of a name is sometimes
explained by pointing to its bearer.' Philosophical
Investigations (1953), 20.
 16.
according to his past experience of the word. This

assertion may be ill,ustrated by reference to what is known

of the learning process, and in particular, to the way in

which words are learned.

Behavioural psychologist B. F. Skinner14 sees this

process in terms of his reinforcement theory. When the

infant child begins to babble in a random way~ the parents

show pleasure when they hear soun~that are similar to words.

Their pleasure serves as a reward or reinforcement to the

child, who tends to repeat those sounds, responding with

increasing adeptness to certain stimuli with certain words.

Each child learns his vocabulary on the basis of different

sets of stimuli presented to him, and is therefore likely to

have a rather different understanding of some words from

that of another child. Later experience will tend to temper

and alter this understanding, but the same sense of one word

may yet have different connotations to different persons.

Lawyers tend to use a plethora of technical words to

convey meaning in the hope that through a process of succes~

sive judicial interpretations subjective assesments of the

meaning will become less relevant, and they will have acquired

some sort of standard meaning (if not a magic meaning) to

those trained in the language. To a certain extent, of course,

14. Verbal Behaviour (1957). See also w. Quine, Word and

Object (1960), 85.
 17.
this aids precision, but the system may break down,

particularly when the language becomes too technical. Unlike

the scientist, it is important for the lawyer to continue to
employ a language that is reasonably intelligable to the
ordinary citizen, since his is the conduct to which the

language relates. One of the many problems that arises from

a failure to observe that principle is the case where laymen

use technical terms in their document. What meaning are they

presumed to have intended, if any? 1 5

(b) Words that have more than one function

Another sense in which a word may have more than one

meaning that has been underlined by semanticists is where the

16
word has two functions, as is the case with evaluative words.

Take for example, the word 'murder'. In one sense, its

descriptive sense, it means 'killing'. But there is an
evaluative gloss~ 'when it is wrong to do so'. Thus one

does not talk of soldiers who kill as 'murderers', unless one

wishes to evaluate their actions as wrong. Similarly, words
like 'good' and 'ought' are almost wholly evaluative, and
acquire descriptive meaning only through usage. An academic

15. The general rule is that unless it appears from the context
of the whole will that the testator . intended a different
meaning to be accorded the words, legal and technical
words should be read in their legal and technical sense,
see: Van Grutten v. Foxwell, Foxwell v. Van Grutten [1897]
A.C. 658, at 672, and at 684; Re Simcoe Vowler-Simcoe v.
Vowler [1913] 1 Ch.552, at 557; and also Hamilton v.
Ritchie [1894] A.C. 310.
16. A clear and concise discussion of these may be found in
J. Wilson, Language and the Pu~suit of Truth (1967),
25-28.
 18.
lawyer and a criminal may each speak of a 'good' judge, yet
mean different things. A 'good' judge to the criminal is

probably one who is lenient, and to the academic, one whose

grasp of legal principles he admires. There is a temptation,

through a confusion of evaluative and descriptive meanings, to

assert that the word 'good' has no 'ordinary' or 'plain' meaning,

but that it is wholly dependent upon its conteltt,t17 What is in
fact the case is that 'good' is performing a largely non-

descriptive function, that of signifying tne approval of the

speaker, so that ~gain, in a legal setting, it is from the
user of the word that information as to its purpose must be
sought. But in the game of legal interp-retation there exists

a number of rules that place severe limitations on the

_procedures available in the interpretative process. A court
may not, for example, direct questions to the user of a word

as to the meaning he intended it to bear. While the courts

admittedly talk in terms of arriving at the intention of the

draftsman, that intention must be gleaned normally solely

from contextual considerations. The 'context• is not always

limited to the verbal context surrounding a particular word

or phrase, but may extend to the context of the instrument as

a whole, the circumstances behind it, and the reasons for its

existance.

17. Judge Jeffries, for example, was doubtless a 'good 1

judge to James I.
 19.
But uncertainty will remain if no guidance from that

source is available. Should a testator bequeath a sum on

trust to be distributed to 'any of my good friends whom I

may have overlooked' for example, the minimal descriptive value

of the word 'good' demands that contextual considerations

become dominant. But the evaluative sense of a word is so

subjective a matter that these limited contextual considerations

will seldom provide more than a rough indication of its user's

intention.

(c) Dictionary definitions

Another sense in which words may have meaning, and one

frequently relied upon by the courts, is that of dictionary

definitions, or lexicography. There are numerous examples of

judges piecing together dictionary synonym~ in order to

interpret phrases, and this process is generally of assistance

in adding to or illustrating meaning. But only a part of
the picture of the words used is capable of being presented
by dictionary definitions. The meaning of any word is not,

as Ogden and Richards demonstrated, somehow directly attached

to it, and no dictionary can hope to capture all its senses.

This approach, if adopted inflexibly, ignores the intention

of the author of an instrument beyond the extent to which he

may have intended his words to bear meanings afforded by the

dictionary employed by the interpreting judge.

 20.
(d) Meaning in terms of the user's intention

When lawyers talk of the meaning of a word or document

they tend to use 'meaning' in a combination of the various
senses outlined 'by Ogden and Richards, and to slide
unconsciously from one sense to another. But the sense in
which it is most commonly used by lawyers is the sense of

intention - what meaning did the draftsman intend to convey

by the language he has used.

Ogden and Richards specifically warned against the use

of this sense of •meaning', asserting that such a sense
•• -.in which the meaning of a symbol is what the
hearer believes the speaker to be referring to,
is perhaps the richesg of all in opportunities
of misunderstanding.l
But it is .a warning that has gone unheeded so far as legal
interpretation is concerned. Indeed its value in that
particular c·ontext is open to considerable doubt. Semanticists,
including Ogden ~d Richards, have tended to concern themselves
generally with analyses of 'meaning' in the context of
descriptive, rather than normative statements. Indeed, the
study of the use of language to control human behaviour has
as yet attracted little attention, possibly because of the
complexity of the issues it raises.
In legal interpretation the primary question, despite
the opportunities it provides for misunderstanding, must

18. Op. cit., 208.

)
 21.

always be that of the intention of the author of an instrument.

The courts increasingly today see their task as one of
ascertaining that intention and according legal effect to
it. In a high proportion of cases, it is likely that the
draftsman had formed no particular intention in respect of
the facts that may have arisen, so that the search for it
may be strictly speaking a fiction. The. less guidance
there may be available from his words, the more highiy

subjective is likely to be the assessment of his intended

meaning. When it reaches the point of pure conjecture or
guess work, the court may have no option but to hold ~1

provision void for uncerttinty. It is in drawing that line

between subjective assessment and unreliable conjecture that
the attitudes, opinions, and approaches of individual judges
become apparent. It is perhaps significant that there have
been comparatively few decisions. o.n uncertainty, particularly
in public law, where the judges have been unanimous on the
question of whether or not a given provision should fail.
3. Uncertainty of meaning
Given the unsatisfactory nature of the word 'meaning'
and the limited means of communication available to the legal
draftsman, one might expect 'uncertainty of meaning' in
legal provisions to be a most common occurrence. A substantial
proportion o~ potential uncertainty is able to be resolved
satisfactorily, however, through a consideration of the context
of the words and surrounding circumstances. Furthermore, the
 22.

court or interpreter of the provision need not always engage

in a detailed search for the 'meaning' ef the provision as
such, since the question of whether or not the fact situation
before it falls within or outside the ambit of some legal
provision m~y be able to be quite readily answered. In the
case of statutory interpretation, the question is almost
invariably one of the application of the provision to a
given set of facts, so that although uncertainties of meaning
may arise, the court's function is to resolve them with
reference to those facts.
Since private law instruments and subordinate legislation
may be held void for uncertainty, however, they are frequently
attacked in vacuo on this ground, instead of being tested
against some actual fact situation. For the purposes of that
attack, any particular fact situation that may have ar~sen is
generally regarded as irrelevant, and indeed hypothetical fact
situations are often introduced to test the difficulties of
the provision's application.
But whatever the manner in which the provision comes
before a court, the most significant question, and the most
difficult to answer, is that of the degree of uncertainty that

will induce invalidity. It is a problem that receives closer

consideration throughout this work. But for the purposes of
later analysis, it is interesting to consider the manner in

which uncertainty usually arises.

 23.
The vice of uncertainty in legal instruments appears
to be attributable to any one or more of six main causes.
These are outlined briefly below, and their operation and
effect in different private and public law contexts is
illustrated in later chapters.
(a) Meaningless provisions

Only very rarely does this extreme form of uncertainty

arise, since some glimmering at least of the draftsman's
intentions is normally present. 19 In practice, the word
appears to have acquired, if not an evaluative usage, then at
least an emotional overtone, in the sense that it is frequently
employed to deseribe a provision that is thought by the court
to be not only uncertain, but also to reflect adversely
upon the skill, intelligence, gnalifications, and adeptness
of the draftsman responsible fer it.
'Meaninglessness' and· •unintelligibility' which are
frequently employed interchangeably, are no more than extreme
forms of uncertainty, and it may therefore be a matter of some

doubt whether their treatment here as a separate cause of

uncertainty is warranted. Because of·possible differences in
effect upon validity of a finding of meaninglessness, however,

19. A phrase quite meaningless to the layman, for example mey

be capable of technical explanation. See, e.g. !!!! v.
Charmer (1856), 23 Beav. 195, 53~R. ~6, where a will
provided, 'I bequeath to my son William the sum of i.x.x.
To my son Robert Charles the sum of o.x.x.• Evidence
was admitted to show that the testator was a jeweller
and used those signs to mark prices in his trade,
representing £100 and £·200 respectively.
 24.
it was considered that the phenomenon required isolation and
specific study.

Those differences arise in the context of the question

of severance. The courts have frequently held that where an

invalid portion of an instrument is capable of severance from

the rest, then the valid part will continue to stand on its
own. The test of severability has been said to be that it

must be possible to remove the offending portion without

disarranging the grammatical construction or substantially
.
a lt er1ng 1 por t•1on. 20
th e app 1.1cat•1on or e ff ec t o f th e val.d

If a provision can be said to be quite without meaning,

or unintelligible, the process of severance is more easily

achieved. A truly meaningless provision, after all, could

probably only be said to have any bearing on the application

or effect of the remainder of an ipstrument, where it is

clearly intended a~ indicated perhaps by some other provision,

to govern an essential term.

The result is that whereas a provision said to be merely

'uncertain' and therefore void will frequently spell the

failure of the entire instrument, a meaningless provision

may not. 21 It is a curious result, and one which has

20. See e.g. Laird v. Dimond and Hart [1931] N.Z.L.R. 171,
at 176; Whitlock v. Brew (1968), 118 C.L.R. 445, at 461.
21. See e.g. Nicolene Ltd-y:-Simmonds [1953] 1 Q.B., where
a contract subject to 'the usual conditions of acceptance'
was held not to be invalid for uncertainty, for the phrase
was meaningless and severableo
 25o

undoubtedly had some effect upon the designation by some

judges of particular provisions as 'meaningless'.
(b) Ambiguities

Although the word 'ambiguous' is of considerable

importance in the interpretation of documents, it has never
received a satisfactory legal definition. Frequently it is
used in its widest sense, that of 'capable of more than one
meaning'. In this sense, all uncertainty may be said also
to be ambiguity, and 'ambiguous' and •uncertain' treated as
synonymous.

Properly defined however, ambiguity is quite a different

concept, and throughout this work will be used in the sense
of 'capable of two or more distinctly different meanings'.
This enables a distinction between ambiguity as such and
'vagueness', used hereiin a complementary sense of 'capable
of two or more shades of similar meanin~. 22 It must be

22. Different understanaings of 'ambiguity' are demonstrated

in the case of Fawcett Properties Ltd v. Buckingham Counti
Council [1961] A.C. 636, where the House of Lords was
considering the phrase, 'an industry mainly dependent
upon agriculture'. Lords Cohen, Morton of Henryton and
Denning, saw the question as one of ambiguity. Lord Keith
of Avonholm denied that it was·a question of ambiguity,
while Lord Jenkins preferred the blanket term 'uncertainty'
to ambiguity. See also, McEldowney v. Forde [1969]
2 All E.R. 1039, at 1046 (per Lord MacDermott C.J.) 1049
(per McVeigh L.J.)·in the Northern Ireland Court of Appeal,
and, in the House of Lords, where Lord Hodson (ibid., 1067)
and Lord Diplock (ibid., 1074) talk of 'vagueness',
while Lords Guest and Pearce (ibid., 1064) talk of
•ambiguity•. In both cases, u'iid'e'r the definitions in the
text, the phrases-would be considered vague, rather than
ambiguous. w. F. Young, in 'Equivocation in the Making of
Agreements' (1964), 64 Colum. L.R. 619, at 626 discards
'ambiguity' because of the confusion surrounding its use,
 26 ..
conceded immediately that so sharp a distinction between the
two has not always been drawn by the courts, and that it is
sometimes difficult to draw in practice. But it has the
advantage of enabling the ind~pendent analysis of the two
expressions that their different practical effect requires.
Expressions which are ambiguous, then, have two or more
quite diffe~ent referents. Common legal examples are
'right', 'estate', 'property' and 'warranty•. 23 Examples of
vagueness, on the other hand, are such expressions as 'of the
24 . 25
Jewish faith' and 'for all my old friends'. As Young
expresses it, 'When vagueness is pointed out in a given
expression, ?ne ordinarily does not experience a sense of
surprise that a pun is being made.• 26
One reason behind the confusion between ambiguities and
vagUeness in legal thinking is probably the fact that the

22. Cont.
preferring instead to talk in terms of 'equivocation',
borrowed from Elphinstone, (Note in (1886) 2 L.Q.R. 110)
but also widely used by English writers.
23. Glanvi!hle Williams, op.cit., 179, asserts that 'right'
has some six meanings, 'property' at least seven, and
'warranty' two.
24. As in Clayton v. Ramsden [1943] A.C. 320.
25. See judgement of Megarry J. in Re Lloyd's Trust Invest-
ments (unreported: June 24, 1970) refer~ed to
extensively in Brown v. Gould [1971] 3 W.L.R. 334, at
337-338. .
26. 'Equivocation in the Making of Agreements' (1964), 64
Colum. L.R. 619, at 627.
 27.
admissibility of extrinsic evidence is often said to depend

upon the existence of latent ambiguity, - one which would not

normally suggest itself to the reader of a document without

his being aware of certain surrounding circumstances. For

example, where a testator devised property to his 'nephew

Joseph Grant•, but had two nephews of that name,one by blood

and another by marriage, evidence was admitted to show that
the latter had lived in the testator's house, and helped

manage his business, while the testator had for some years

been estranged from the family of the former, and did not
know of his name or existence. 2 7

This distinction between latent and, patentambiguities

has been traced back to Lord Bacon, and his statement that:

ambiguitas patens is never holpen by averment,

and the reason is because the law will not mingle
matter of specialty, which is of higher account,
with matter of aver~ent, which is of lower
account in law •••• 2
Phipson 2 9 notes that Bacon's rule had reference merely to
pleading, but was later erroneously propounded as a rule of

evidence by Bathurst in 1761, and so has descended to the

present day.

27. Grant v. Grant (1870), L.R. 5 C.P. 727. It should be

noted, however, that the decision has not always been
accepted, see Re Taylor Cloak v. Hammond (1886), 34
Ch.D. 255, at 257 and Re Green Bath v. Cannon [1914]
1 Ch.l34.
28. Maxims Reg. 23.
29. Phipson on Evidence 11th ed. (1970), 84o (hereafter
cited as Phipson).
 28.
The desire to give effect to private law instruments

rather than, as one Judge has put it, to 'repose on the easy
pillow of saying that the whole is void for uncertainty',30

has meant that the distinction has become of less significance,

leading to greater readiness on the part of the courts to

resort to extrinsic evidence. This has been achieved through

a reai!lisation of its unnecessary technicality,3l and,

because of the inherent ambiguity in all language, its

illogicality. There has been, moreover, a tendency to employ

'ambiguity' loosely so as to include vagueness•3 2

In using the 'distinctly different meaning' definition

of ambiguity, then,it may be noted that extrinsic evidence of
sur,rounding circumstances will always be admissible to

resolve the ambiguity, but that its admissibility is not

limited to that context.33 Where the ambiguity is such as to

amount to a true equivocation, as for example where there are

two equally qualified persons of the name used by a testator,

30. Per Sir George Jessel M.R. in Re Roberts Repington v.

Roberts-Gawen (1881), 19 Ch.D. 520, at 529.
31. See e.g. Thayer, A Preliminary Treatise on Evidence
(1898) 422-426.
32. A number of illustrations of this is provided by
Farnsworth (supra, n.l) 961, and Phipson, 841-898.
33· One possible exception is where the language is so
vague or imperfect that all that extrinsic evidence
would achieve would be the making of a new instrument.
See e.g. In the goods of De Rosaz (1877), 2 P.D. 66,
at 69 per Sir J. Hannen.
 29.
.
d ~rect ev~
"d ence .
of intention may also be admitted. 34

A further point for the purposes of analysis is that

ambiguities may be classified into those of term or of syntax.

Typical of the former category is the proper natne type of
ambiguity as illustrated by the Joseph Grant case, and again
in the celebrated case of Raffles v. Wichelhaus,35 where

parties to a contract had agreed upon a sale of cotton to

arrive 11 ex Peerless" from Bombay, but each had in mind at the

time of contracting a different ship of that name. An

example of ambiguity of syntax is provided by the case of

Cuthbert v. Cumming36 where a charter party obliged the

charterer 'to load a full and complete cargo of sugar,

molasses, and/or other lawful produce'. The expression 1 and/

or' left it open to the charterer to load in any one of a

large number of ways.

Uncertainty may also arise where parts of an instrument
are repugna~t, and, to the extent that two or more conflicting

interpretations may present themselves, this too is a form of

ambiguity.

34. The reluctance of the courts to receive direct evidence

of intention continues to prevent its admission in cases
of vagueness: see Eastmond v. Bowis [1962] N.Z.L.R. 954.
35. (1864), S.C. 33 L.J.Ex. 160, 159 E.R. 375.
36. (1855), 10 Ex.809, 156 E.R. 668.
Thus in Brown v. Mcinnes, 37 the New Zealand Supreme Court

had before it a bylaw of five paragraphs. Its ambiguity arose

from the fact that the fifth paragraph appeared to overrule

the other four. But if it were construed in such a manner as

to d..e.prive it of that effect, it became impossible to

determine exactly what effect it should be accorded.

Because of its relationship to the other four paragraphs,

it was not possible simply to ignore it, so that the whole

bylaw failed for uncertainty.

(c) Inaccuracies

The uncertainty that arises from inaccuracy is some-

times seen as a form of ambiguity, but in fact the two are

distinguishable. An example is where a testator left 'all

for mother•. 38 Evidence that he had no mother, but called

his wife 'mother', was received, and the gift upheld. Had

his mother actually been alive, an ambiguity would have

existed, but as it was the question was solely one of

inaccuracy. Uncertainty in this context can generally be

resol~ed through the admission of extrinsic evidenceo 39

(d) Omissions

Omissions ~.1!)0 are sometimes regarded as matters of

37. (1896), 15 N.Z.L.R. 256.

38. Thorn v. Dickens [1906] W.N. 54.
39· Beaumont v. Fell (1723), 2 P.Wms. 141, 24 E.R. 673 9
demonstrates~ extent to which extrinsic evidence may
assist in this situation. There, a legacy to '~atherine
Earnley' was sucessfully claimed by one Gertrude Yardley,
evidence having been received that there was no such
person as the former, but that the latter had been a
friend of the testator, who usually called her 'Getty',
which may have been mistaken for 'Katy' or 'Catherine'.
 31.

ambiguity, but this is not strictly true. The error probably

arise~ from ~he similarity between the most obvious type of

omission,
~
an
~t<
actual blank on the face of an instrument, and a
;~:· ·~

patent ambi~~ity. Some testators, for example, have described

their be:h~fig:L~ries simply as 1 Mr 1 and

40
'Lady •. In this type of situation, the

express-i.~n~ are not ambiguous, but fail to indicate any person

~- .. '~L {ji~ .~·.
at all., · The~~. is no ambiguity for extrinsic evidence to
resolve. 11t

In fict, instances of omission normally bear more

similarj,.ty to.vagueness, than to ambiguity. Since om:iss:i.ons

are a f~ilure to provide any guidance as to the author's

intention, they are close to extreme vagueness, where but

littl• guidance as to intention is available.

Uncertainty arising from omissions is of special

significance in contract law, where the courts are frequently

forced to imply terms in order to fill the gaps left by

parties in their agreement. These gaps are not normally

blanks on the fact of the instrument, but the result of

failure to provide in specific terms for some important aspect
,J ,. • .
of.the·contract. The anxiety of the courts to uphold contracts

where the basic elements are clearly expressed has involved

40. Ba~lis v. Attorney General (1741), 2 Atk. 239, 26 E.R.

54 ; Hunt v. Hort (1791), 3 Bro.c.c. 311, 29 E.R. 554.
But in-rn-the g;ods of De Rosaz 2 P.D. 66 a legacy to
'Percival of Brighton' was held not to be
meaningless, and evidence was admitted to establish the
identity of the beneficiary.
 32.
extensive use of the technique of implication of terms,

leading on occasion to criticisms that contracts may tend to

be ~constructed' rather than 'construed' by the courts. 41

One further type of omission which is occasionally encountered

is where an instrument purports to incorporate b~ reference

the terms of some other document, which has since been lost

or is otherwise unavailable. Its absence may be fatal to

the validity of the later instrument.

(e) Delegation or reservation

Uncertainty is sometimes said to arise when a legal

instrument purports to delegate a wide discretion to some

person. For example, a bylaw may prohibit a particular

activity, but reserve to some official the power to dispense

with the prohibition in certain cases. Here uncertainty may

arise from the inability to predict with any accuracy the

way in which the official may exercise his discretion in

any given situation.

Again, a will may provide a power of appointment without

defining specifical~y the class of persons or objects to be

benefitted. This is said to be a delegation of will making

power. Similar problems arise with contracts where, for

example, the amount of monetary consideration may be left in

the sole discretion of one party.

41. See G.H.L. Fridman, 'Construing, Without Constructing,

a Contract' (1960), 76 L.Q.R. 521.
 33.
Normally, however, cases of delegation or reservation

resolve into either questions of power, as in the public law

situation, or of vagueness$

(f) Vagueness

Of all forms of uncertainty, it is that which arises

from vagueness which causes most difficulty. Extrinsic

evidence is of considerably less assistance in ascertaining

with regard to a vague expression the intention of the user,

despite its ability to resolve most forms of ambiguity and

inaccuracy. This is because vagueness is a quality, which,

as has been shown, pervades all language; it may continue to

exist after an ambiguity has been resolved, or after other

forms of uncertainty have been eliminated.

The earlier discussion of Skinner's theory of learning

illustrates to some extent how vagueness may arise - through

persons learning the 'meaning' of words through different

sets of stimuli. This problem is minimal with those words

whose referents are well known objects in the real world.

Typically, for example, little uncertainty arises as to the

meaning of the word 'table' and most people would feel

confident of their aibility to determine whether or not any

given object fell into this class. With concrete nouns and

adjectives, borderline problems may still arise, but

comparatively infrequently.

On the other hand however, there are those words of an

abstract nature, incapable of exact and precise definition.

Words like 'hope', 'faith' and 'charity' suggest themselves

as possible examples (although the last-mentioned has in

some contexts ac~uired a technical legal meaning). Where

the expression has an abstract referent, the likelihood of

difficulty with borderline cases is considerably greater than

where the referent is some real object. Evaluative words are

similar, to the extent that they call for a value judgement

on the part of the interpreter. It may be,. however, that

the interpreter has experience with the use of the-word,

and the ability to apply it. For example, the concept of

'reasonableness' is one with whose operation the courts are

familiar in a number of contexts, and which as a result they

show little reluctance in construing and applying when it

appears in an instrument.

The problems which arise from vague expressions in

legal instruments are sometimes illustrated by legal

philosophers in terms of a 'core' of settled meaning

42
surrounding by a 'penumbra' of uncertainty. H.L.A. Hart

cites the example of a rule which forbids the taking of a

4
'vehicle' into the public park. 3 Plainly this forbids an

automobile. But into the penumbral area falls the cases

of bicycles, roller skates, and toy automobiles, to which

42. See e.g. H.L.A. Hart, 'Positivism and the Separation of

Law and Morals' (1958), 71 Harv.L.R. 593, at 607.
43. The Concept of Law (1961), 125.
 35.
the words of the prohib~tion are neither clearly applicable

nor clearly ruled out. This penumbral area is seen by Hart

as an essential feature of the 'open texture' of rules of

law. He asserts:

In fact, all systems, in different ways, compromise

between two social needs: the need for certain
rules which can, over great areas of conduct, safely
be applied by private individuals to themselves
without fresh official guidance or weighing up of
social issues, and the need to leaveopen, for
later settlement by an informed, official choice,
issues which can only be properly appreciated and
settled when they arise in a concrete case.44

So far as statutory legislation is concerned, this

compromise must be r~ached by the legislature itself, but

with subordinate legislation, the courts play a role in

ensuring that the first social need described by Hart, that

for certain rules, is given sufficient emphasis by

subordinate legislative authorities. The need is not

perhaps as pronounced in the case of provisions in private

law instruments, since their control over human behaviour is

nearly always markedly less significant. In both situations,

however, the tendency is to hold a provision invalid for

vagueness when. its penumbral area assumes significant

proportions in comparison with its settled core. Although

it is impossible to analyse any given expression scientifically

and determine the proportionate roles of core and penumbra,

a brief look at the process of abstraction may serve to

illustrate what is meant.

44. lli!!·' 127.

 Abstraction is that process which enables generalis-

ations from specific matters proceeding up through what

Chafee refers to as the 'hierarehy of words•. 45 Given

that those expressions which have a set~led core of meaning

with comparatively few penumbral problems are those with

well known concrete referents, these form the basic words of

the hierarchy. Thus, the least vague way of denoting a

person is by proper name, even although the potential may

46
exist for ambiguity. But legal control of the behaviour

of individual specific persons is seldom possible,

especially in public law, so that descriptions are generally

in terms of classes. Thus, 'John Blank' on one lev~l of

abstraction may become 'carpenter', and on progressively to

4
the higher l-evels of 'workman 1 , 1 men 1 and 'mankind 1 • 7 In

each case as the class gets larger the expression becomes

increasingly less specific, and the task of finding a

referent becomes more difficult. The more abstract the

definition of a class, the more significant becomes the

problem of the penumbral'area.

Some judges~ specifically recognised this distinction

45. Op.cit., 390. See also B. F. Skinner Verbal Behaviour

126-127 and GlanvilJ.e Williams, op~cit., 81-86.
46. An ambiguity is deliberately caused, for example, when
a child is named after some other person. The
denotation of persons by numbers would be a more exact
(though considerably less desirable) method.
Cf. Chafee op.cit., 390. As Stuart Chase points out,
'meaning' itself is a high order abstraction:
The Tyranny of Words 5th ed. (1943), 117.
 37·
between the uncertainty which may arise in borderline cases

at basic levels in the hiera~hy of words, and that which

arises at high levels when the difficulty in finding a

referent renders the concept itself uncertain. 48

Uncertainty of the former type the courts must resolve, but

the vagueness which arises from the use of words drawn from

unnecessary heights in the hierarchy frequently results in

invalidity.

4. Conclusion

A study of language is of some assistance in.a work of

this nature in demonstrating the way in which words operate,

their inadequacies and deficiencies, and some of the common

misunderstandings of their functions that have confused

thought from time to time. The most common types of

uncertainty have been isolated, but there remains the question

of the degree to. which any must be present in a given instru-

ment to cause its invalidity. This is largely dependent

upon the type and function of the provision under consideration

and the role which the court sees itself as playing in each

particular context.

The various factors that have influenced decisions on

whether or not different provisions should be held void for

uncertainty may now be considered in greater detail.

48. See e.g. Lord Keith of Avonholm in Fawcett Properties Ltd

v. Buckingham County Council (1961] A.C. 636, at 670,
and Megarry J. in Brown v. Gould (1971] 3 W.L.R. 334, at
338. See also Lord Wilberforce in Re Baden's Deed
Trusts (1971] A.C. 424, at 457.
 PART TWO
UNCERTAINTY IN PRIVATE LAW
 CHAPTER 3

CONTRACTS
1. Introduction

The purpose of including in this work a section on the

ope'ration of the certainty rule in private law is primarily

to enable a comparison with the way in which it has been

applied in public law. Of particular interest are such

questions as the degree of uncertainty that is required to

invalidate different types of provisions, the significance of

various types of uncertainty, and the reasons that have been

advanced by the courts for choosing to apply the test in

different ways. Admittedly the types of provisions studied

here vary substantially in their nature and function, but

in most cases it is the same basic problem - that of the

inherent vagueness and ambiguity of language - that causes

difficulties.

A number of different factors operate to determine with

regard to any legal provision whether a lesser degree of

uncertainty than complete unintelligibility, should render

it unenforceable. For example, holding a provision of a bylaw

void for uncertainty is sometimes se.en as a means of

ensuring that local bodies exercise adequate care in their

drafting. 1 In the case of contracts on the other hand, the

desire to uphold agreements that have been entered into

1. See further at p.243 infra.

 39.
freely has meant that by and large a high degree of

uncertainty need be present before an agreement will be

upset.,

Wherever a basic principle of this nature receives

repeated acknowledgement by the courts, it seems inevitable

that it should be symbolized by some form of Latin tag.

This area of law forms no exception, and two Latin maxims

call for study at this point.

The first, certum est quod certum reddi potest is

generally interpreted as meaning 'that is certain which can

2
be rende:ed certain•. The m~xim is clearly applicable to

the situation where an agreement leaves some matter

undecided but provides the machinery for its ascertainment,

usually at some later date. A lease, for example, may

provide for a right of renewal at a rental to be fixed by

a registered valuer. The new rental becomes certain when the

valuer announces his award. The common application of the

maxim extends beyond that limited situation, however, so that

particularly in contract law, actual processes of judicial

interpretation may be seen as rendering unclear provisions

certain ..

If the maxim has any real value, it is as an

exhortation to the courts not to repose on the 'easy pillow

2. Mozely and Whitely's New Zealand Law Dictionarl (1964)

56.
 40.
of uncertainty•. 3 Its widespread use as a principle of
construction may prove dangerous, however, for in some
cases the courts have declined for various reasons to take
the necessary steps necessary to render unclear provisions
certaint.,
The second maxim calling for comment is that which
reads verba ita sunt ut res magis valeat quam pereat.
This is generally under*tood as meaning that words are to
be construed so that the object of the instrument may be
carried out and not fail.
4 So far as contracts are concerned,

it is once more seen as an exhortation to the courts to uphold

an instrument wherever some glimmering of contractual intent
may be present 9 But the maxim, in the words of one Judge,·
••• does not mean that the Court is to make a
contract for the parties, or to go outside the words
they have usedf except in so far as there are
appropriate implications of law, as for instance
the implication of what is just and reasonable to
be ascertained by the court as a matter of
machinery where the contractual intention is
clear but the contract is silent on some detail. 5
It is in the field of commercial contracts that this
second maxim operates with particular vigour, and it is

Sir George Jessel M.R. in Re Roberts Repington v.

Roberts-Gawen (1881) 19 Ch.D. 520, at 529; cited by
Salmon L.J. in Slough Estates Ltd v. Slough Borough
Council (No.2) [1969] 2 Ch.305, at 320; and by
Megarry J. in_B~own v. Gould [1971] 3 W.L.R. 334.
4. See e.g. Odgers' Construction of Deeds and Statutes
5th ed., (1967), 32.
Hillas & Co. Ltd v. Arcos Ltd (1932) 147 L.T. 503,
at 514, per Lord Wright.
 41.
significant that contracts relating to land on the other hand,
have traditionally been construed by the courts in a more
circumspect manner. One reason for this divergance in
approach may be found in the following well known passage
6
from Lord Wright's opinion in Hillas & Co. Ltd v. Arcos Ltd:
Business men often record the most important
agreements in crude and summary fashion; modes
of expression sufficient and clear to them in
the course of their business may appear to those
unfamiliar with the business far from complete
or precise. It is accordingly the duty of the
court to construe such documents fairly and
broadly, without being too astute or subtle in
finding defects; but, on the contrary, the
court should seek to apply the old maxim of
English law, verba sunt intelligenda ut res
magis valeat quam pereat.
Land transactions, on the other hand, are often entered
into more cautiously, even reverently, and for reasons that
are largely historical,? a greater number of formalities
requires observance. The Sale of Goods Act~908 mirrors
Lord Wright's approach by encouraging the implication of
terms in commercial contr~cts, 8 while on the other hand the
Contracts Enforcement Act 1956 9 requires that all essential
terms of contracts relating to the sale of land be reduced

to writing.

6. Ibid., 514
7. ~an acute analysis of the distinctions, both real and
imaginary, see J. F. Burrows, 'Peculiarities of
Conveyancing Contracts' (1971), 4 N.Z.Univ.L.R. 232.
8. See e.g. ss.l0(2), 11(1), 14, 15, 16, 17(2).
9. Section 2.
 42.
One result of the greater formality surrounding land

transactions ~s that the courts are less reluctant to hold

void for uncertainty a conveyancing contract whose essential

10
terms are not clearly expressed. The fixing of a reasonable
price, for example, is a task which the courts are content

to perform in a sale of goods situation, but not for the

11
sale of land. Moreover, voidness may be seen as a sanction

in impressing upon parties to land transactions the importance

of complyihg with formalities and expressing their agreement

12
with sufficient certainty.

2. Contract Formation

The bilateral nature of the simple contract involves

that uncertainty of language is significant in an area where

it has little part to play in such unilateral instrument as

wills and subordinate legislation. Whereas those instruments

are created by unilateral action on the part of testator or

legislator, a contract comes into existance only upon final

10. One example is the case of a lease which fails to specify

its date of commencement. The courts have declined to
imply a term that the tenancy should commence within a
reasonable time: Harvet v. Pratt [1965IT 1 W.L.R. 1025.
11. See e.g. ~ v. Busst 1960) 104 C.L.R. 206, at 216
per Dixon C.J.; 222-223 per Fullager J.; and 233-235
Menzies J.; but see also at 226-228, per Kitto J.
dissenting, and the strong dissenting judgement of
Windyer J., especially at 236-245..-
12. So long as the property, parties and price are certain,
the court may imply other terms, (see e.g. Willetts v.
Ryan [1968].N.Z.L.R. 720, at 722 S.C.; 863, at 868 C.A.)
but the courts seem less prepared to resort to the
concept of 'reasonableness' where essential terms are
unclear, than they are in commercial contracts: see
e.g. ~ v. Busst at references in footnote 11 (supra).
agreement between two or more parties as to their intended

rights and obligations. Reference has already been made to

the fact that where the court is satisfied that a concluded
contract was intended by the parties to exist, it will

generally strive to uphold the agreement, construing vague

language and implying terms to fill gaps. Quite a different
attitude is apparent, however, when the language used by the

parties suggests that no contract was intended. The fact

that terms are unsettled may indicate that further

negotiation was intended, or that the arrangement was

intended to be merely one of honour or trust, and not enforce-

able in the courts. Uncertainty as to terms plays a purely

evidentiary role in this context, but since a lesser degree

of uncertainty than that required to invalidate an admittedly

concluded contract is seen as significant, the opportunity

is taken to look briefly at its operation.
(a) Intention to create legal relations

It seems now well settled that an intention to enter

into legal relations is essential to the validity of any contract. 1 3

Usually its existence is presumed but in the context of family

arrangements the presumption operates the other way. A party

13. The leading case is Balfour v. Balfour [1919] 2 K.B.

571, although as Lord Denning points out in Gould v.
Gould [1970] 1 Q.B. 275, at 280 Balfour's case was
regarded as extreme on its facts by Lord Hodson in
Pettitt v. Pettitt [1970] A.C. 777, at 306. See also,
for discussion of opposing views, Cheshire and Fifoot,
Law of Contract Australian Edition (1966), 187-188.
 44.
seeking legal enforcement of such an agreement must prove

that a legal relationship was intended. 14 The reasons for

this approach were summarised briefly by Salmon L.J. recently

in Jones v. Padavatton: 1 5

It derives from experience of life and human

nature which shows that in such circumstances
men and women usually do not intend to create
legal rights and obligations, but intend to rely
solely on family ties of mutual trust and
affection.

In that case, the issues that arose from an alleged

agreement between mother and daughter were first, whether

the parties had intended it to be legally binding, and

second, if so whether it was sufficiently certain to be

enforceable. The two issues were treated independently by

the Court, and Fenton Atkinson L.J. stated:
••• I do not thirii that the lack of formality
and precision in expressing the agreement is
necessarily an indication that no contract was
intended having regard to what the court knows of
the parties and their relationship.l6
Indeed, the ambiguities and gaps that are liablem occur in

even the most formal contract must serve as a warning against

14. Jones v. Padavatton [1969] 1 W.L.R. 328, at 331 per

Danckwerts L.J. and 332 per Salmon L.J.
15. ~., 332, cf. Ford Motor Co. Ltd v. Amalgamated Union
of En ineerin and Foundr Workers [1969] 2 Q.B. 309
existe.nce of intention to create legal relations in
industrial agreement.)
16. [1969] 1 W.L.R. 336. But, with respect, the writer is
unable to agree with the learned judge when he goes on
to assert that the upset felt by the daughter when her
mother initiated proceedings 'provide(s) a strong
indication that she had never for a moment contemplated
the possibility of her mother or herself going to court
to enforce legal obligationso•••' (ibid., 337).
placing too much weight upon uncertainty of language as an

indication of lack of intent to create legal relations.

It is respectfully submitted that the warning may have been

overlooked in the recent case of Gould v. Gould. 1 7

The evidence,of an alleged agreement between an

estranged husband and wife in that case was outlined by

Edmund Davies L.J. 18 in these terms:

According to the wife, the husband promised to pay

her £15 a week 'as long as business was O.K.• •.
The husband's evidence was substantially to the same
effect, namely 'I suggested that I would give her
£15 per week; and she said "for how long?"; and
I said "As long as I can manage itu•.

'To my mind', continued the learned judge, 'those words import

such uncertainty as to indicate strongly that legal relations

were not contemplated.' Megaw L.J. 19 was of a similar y,iew.

Lord Denning M.R., 20 on the other hand, dissented.

He would have upheld the agreement by implying a term that

if the husband found he could not manage to keep up the pay-

ments, he could, on reasonable notice, determine the agreement.

His Lordship argued that the presumption against intent to

17 .. [1970] 1 Q.B. 275

18. Ibid., 281
19. Ibid., 282: 'the uncertainty of the words used must
in my view be a matter of significance in considering
the question whether or not there was an intention
to enter into legal relations in a matter of this
nature.'
20. 12.!!·' 280.
 46.
create legal relations should not operate where husband and

wife were at arm's length and agreeing upon maintenance for

21
a separation period. He declined to relate the uncertainty
of language to that intention, arguing instead that a
concluded contract existed, and that only if it were utterly
impossible to attribute any meaning to it.s terms should it
fail for uncertainty.

It is respectfully submitted that a more satisfactory

solution might be found between these two extremes. While

uncertainty of a lesser degree than that envisaged by Lord

Denning might well be taken into account in ~etermining the

exist~nce of an intention to create legal relations, it is
submitted that such evidence can only be inconclusive, and

should be accorded weight only where other factors are

uncertain. The intention with which the court is concerned

is not the actual or subjective intent of the parties, but

that which is imputable to them from the evidence! 2 rt is

submitted that the majority in Gould's case tended to over-

emphasise the significance of vagueness in an oral agreement.

Their attitude, however, serves as a reminder of the

21. This view, it is submitted, is borne out by the passage

cited above from the judgement of Salmon L.J. in
Padavatton's case: could it be said that an estranged
couple intended to rely 'solely on family ties of mutual
trust and affection'?
22. See Padavatton's case (supra) 332 per Salmon L.J., and
Lord Denning in Gould's case, (supra) 279.
reluctance of the courts to declare a party contractually

bound where there is doubt that that may have been the

intention of the parties at the time of their agreement.

(b) Incomplete negotiations or concluded contracts
A simila·r reluctance is apparent when the courts are

asked to determine whether an alleged agreement is in fact a

concluded contract or merely represents a step in incomplete
ne~otiations. Where the language of the parties indicates

that further negotiations were intended to settle the details

of a term left uncertain, no contract will have been formed.

In theory, a contract to negotiate if supported by consideration,
might be supported by the courts, and damages, although

possibly nominal, obtained for its breach. 23 That is not thes

case, however, for in this situation it is the other ~erms

of the agreement that the party asserting its validity is

generally concerned to enforce. In this si~uation, however,

the courts have repeatedly asserted that they will not enforce
a mere 'agreement to agree'. Their attitude and reasons may
be examined in the context of the more common types of cases

that have arisen.

(i) 'to be agreed': the most obvious example is that of

a term which the parties have expressly reserved 'to be agreed',

23. See Hillas & Co. Ltd v. Arcos Ltd (1932) 147 L.T. 503,
at 515 per Lord Wright.
 48.
a situation which arises particularly in the context of
24
. .
f ~x~ng .
pr~ces o f goo d s, an d -of ren t upon the renewal of a

lease. 25 In each situation, had the parties failed to make

any provision at all, it is probable that the courts would

imply a term that the purchaser pay a reasonable price, or

the lessee a reasonable rent. Similarly, the parties may

themsel~es provide that assessments of cost and suchlike

should proceed on a reasonable basis. 26 Because the test

of reasonableness is said to be objective, the courts are

able to determine the price to be paid through reference to

recognised values and standards and uphold the agreement.

To imply a reasonable price when the parties have left

it to be agreed', however, would be to make a c.ontract for

1

' 27
the parties. It may be noted here that American courts have

in fact been prepared to take this step, by requiring first

24. See e.g. May & Butcher v. The King [1934] 2 K.B. 17,
where an agreement for the sale of tentage left price,
dates of delivery and manner of payment 'to be agreed
from time to time'. The House of Lords held that no
contract had been created.
25. See e.g. King's Motors (Oxford) Ltd v. ~ [1970] 1 W.L.R.
426 where rental was to be 'agreed upon between the parties
••• prior to the expiration of the term hereby created'.
26G For example the following expressions have been held
sufficiehtly certain: 'fair amount': Cannan v. Fowler
(1853) 14 C.B. 181, 139 E.R. 75; 'fair market price':
Charrin~ton & Co. Ltd v. Wooder [1914] A.C. 71;
'moderate terms': Ashcroft v. Morrin (1842) 4 Nan. & G.
450, 134 E.R. 185.
27. See e.g. Lord Wright in Hillas v. Arcos Ltd (1932) 147
L.T. 503, at 514. That decision is commented on
extensively in 48 L.Q.R. 4, 141, 310. See also
49 L.Q.R. 316.
that parties to a 1 to be agreed' clause negotiate. Then, if

no agreement is forthcoming, the court may itself determine

the Prl.·ce to be paJ."d. 28 Suc h a move h as cer t aJ.n
· a d van t ages,

particularly in the case of agreements drawn up without

professional advice where it is clear that the parties

intended to bind one another, and have been frustrated in

their attempts by their particular choice of words. Wedded

as they are to the principle of construing, and not

constructing contracts, however, it is most unlikely that

English and Commonwealth courts will ever go so far without

legislative sanction. 2 9

'Reasonableness' is but one objective means of determining

the contents of a term, however, and the courts have been

happy to uphold expressions of similar effect, for example

28. See e.g. Hall v. Weatherford. (1927) 32 Ariz. 370,

259 Pac. ~where the rental upon a lease renewal was
to be at 'a price to be agreed upon'. The Court held
the clause to be valid, on the ground that if the parties
could not agree what was reasonable the court would
decide. See also Morris v. Ballard (1926), 16 F~2d 175.
The Uniform Commercial Code provides:
The parties if they so intend can conclude a contract
for sale even though the price is not settled.
In such a case the price is a reasonable price at
the time of delivery if •••
(b) the price is left to be agreed by the parties
and they fail to agree. (2-305(1)).
It appears that the Code goes further than the authorities:
see Schlesinger, Formation of Contracts (1968), i 443, 460.
29. See Note in 48 L.Q.R. 310, at 316, and R. A. Samek,
'The Requirement of Certainty of Terms in the Formation
of Contract' (1970) 48 Can.Bar.Rev. 203.
 50.
where recourse may be had under the contract to arbitration,3°

or to other independent methods of assessment.3l So long as

no further negotiation between the parties is required to

render the terms of an agreement certain, the courts will

seek to uphold it.

(ii) 'subject to contract': agreements expressed to be

'subject to contract' also illustrate the operation of these

principles, although in a slightly different way. The

expression may mean two things •. If it is apparent that all

that was intended was that the parties should reduce the

terms upon which they had already agreed to writing in the

form of a formal document, the expression will cause no

difficulty, and may even be ignored.3 2 On the other hand,

however, it may be that the expression was intended to act as

a condition precedent to the enforcement of the terms of the

contract, or that final settlement of its terms can only be

achieved through further negotiation.33 In neither of these

30. In Foley v. Classique Coaches Ltd [1934] 2 K.B. 1, the

parties agreed on the sale of petrol 'at a price to be
agreed by the parties in writing'. Differences under
the agreement were to be settled by arbitration. The
court implied a term that failing agreement, a reasonable
price was to be determined under the arbitration
provision, and was therefore able to uphold the contract.
31. The parties may provide some standard or mechanism by
reference to which some term may be rendered certain: see
May & Butcher v. The King [1934] 2 K.B. 17, at 21 per
Viscount Dunedin.
32. See e.g. Von Hatzfeldt-Wildenburghv. Alexander [1912]
1 Ch.284, at 288-289.
33· The expression 'subject to contract' has on the facts
been held sufficient to negative the idea of a concluded
contract, in Eccles v. Bryant [1948] Ch.93; as has
'Subject· to title and contract': Coope v. Ridout [1921]
1 Ch.291; 'subject to our approving a detailed contract
 5lo
cases will the court uphold the purported agreement, although

again, if in the latter situation it is clear that extra

terms may be settled by independent means this process of

rendering the contract certain will be adopted.3 4

Similar considerations prevail in the case of 'subject

to finance' clauses. Provided that the evidence is able to

supply a reliable picture of what such a clause was intended

to achieve, it will not be invalid.35

(c) Conclusions

Where the court is not satisfied that the parties to an

alleged agreement intended it to be legally enforceable, they

are understandably reluctant to uphold it. The fact that

terms are vague may indicate that legal enforcement was never

intended. It may also indicate that the parties had not

concluded their bargaining. In neither situation however,

33. Cont.
to be entered into: Smith v. Mansi [1968] 1 W.L.R. 26;
and 'subject to the preparation and approval of a formal
contract': Winn v. Bull (1879), 7 Ch.D. 29.
34~ See also Hussey-v. Home-Payne (1879) 4 App. Cas. 311
where the parties had inserted a clause 'subject to the
title being approved by our solicitor'. Earl Cairns L.C.
would have upheld the clause since it meant no more than
that the title should be investigated and approved of
in the usual way (ibid., 322)_.
35. See e.g. Eastmond v. Bowis [1962] N.Z.L.R. 954, Jones v.
Walton [1966] W.A.R. 139. But cf. Jubal v. McHenry [1958}
V.K. 406. A full account of the prevalence and effect
of 'subject to finance' claus~is provided by R. D. Nicholson,
'Law and Suburbia: Contracts of Sale Subject to Finance'
(1967-68) 8 West Aust. L. Rev. 1.
 52.
is uncertainty of terms compelling evidence of this fact in

itself. As_ will be seen, mere vagueness will seldom render

a contract unenforceable. There must also exist some

indication that the uncertainty was intended to be clarified

by the parties themselves, and not by the courts.

3· Interpretation of Concluded Contracts

Reference was made in Chapter 2 to the difficulties

surrounding the use of the words 'meaning' and 'intention'

in the interpretation of legal instrumentso The bilateral

nature of the simple contract raises further problems, for

the user of the words is not a single person, such as a

testator or settlor, but two or more parties, each of whom

may at some later date assert that what he intended to convey

by those words was a meaning quite different from that

asserted by another party. With vague expressions, of course,

a wide range of meanings may suggest themselves and the courts

must, if it is possible, settle on that which it appears most

likely that the parties contemplated in choosing those

particular words. With ambiguous expressions, it is possible

that where two parties held quite different ideas of what was

meant at the time of contracting, that there was no consensus,

and hence no contract. Again, it may be the case that although

there was consensus at the time of contracting, one party

later seeks to avoid his contractual obligations byasserting

the contrary.
 53.
Ought a court called upon to 'interpret' the document

choose;either meaning asserted by the parties, and if so,

which; or ~hould i~
. . compromise between the two, choose
'

another m'eaning altogether, or hold the contract void for

uncertainty? Clearly the subjective intent of the parties is

irrelevant, and the decision of which meaning to adopt must

depend upon the facts of each case. But there are at least

two factors which will play a part in d~termining·which answer

the court will choose. The first is the extent to which the

court if? prep,a:r·~d, or permitted, to go beyond the four corners

of the contract as an aid to its interpretation. Secondly,

there is the question o~ the extent to which the court is

prepared to imply terms>where the contract leaves them

uncertain. Since both of these factors bear to a significant

degree on the question of whether or not a contract is

sufficiently certain to be enforced, they call for further

consideration.

(e) Theories ofinterpretation

Frq,'!ltime to time .two different theories have been

adve.nced to explain the process of contract interpretation.

The first, or 'objective' theory asserts that a valid

contract is created simply by agreement in expression, while

t·he second, or 1 subjective 1 theory, asserts that a contract

is not created unless there is complete agreement, properly

 54.
expressed. 36 Under the second theory the subjective intents

of the parties is relevant - under the first it is not.

Neither theory succeeds in explaining the interpretative

process adopted by the courts. Traditionally, however the

courts have tended towards the objective view, and have

insisted that the words used by the parties should act as

the sole guide to their intentions. The obvious danger of

this course if rigidly adhered to, is that it tends to assume

that the meaning of a word is something that is fixed, and

ascertainable in a vacuum. This idea of a direct link

between word and meaning has (as was seen in Chapter 2) been

rejected by semanticists and in its inflexible application

provides a dangerous ground of contract interpretation.

As Corbin points out, 37 it is not words, but rather men who

have 'meanings', which they try to communicate to oth~r men

through the use of words.

The courts then do not always insist upon a strictly

literal interpretation, but permit themselves where the

meaning of the words is unclear to have resort to extrinsic

evidence of surrounding circumstances. What prevents them

from going further and admitting evidence of the intention

of the parties is probably a justifiable fear that the

intention asserted in the witness box may be far different

36. See Corbin on Contracts Vol. 1 (1963) 474-478. Also

Pocket Supplement to Vol. 3 (1971) s.543B.
37. Ibid., 475.
 55o
from that held at the time of contracting,3 8 if, indeed, any
clear intention as to the operation of the words was held.39
Furthermore, there is a natural reluctance to upset a contract
and allow a party to escape his obliga~ions when the language
used is capable of a reasonable construction in all the
circumstances.
The policy of the courts is to support and maintain freedom
40
of contract, and as Fridman points out, a necessary result
is that where it is clear that a contract was intended the
courts must assist rather than defeat the attempts of the
parties to bind one another. A theory of interpretation that
asserts that contracts are completed only where parties are in
exact agreement would involve the failure of a significantly large
proportion of contracts on the gro~nds of mistake. Accordingly,
the courts have insisted that only uncertainty arising from

38. See e.g. Prenn v. Simmonds (1971] 1 W.L.R. 1381, at

1385 per Lord Wilberforce.
39. Lord Wilberforce has stated: 'The words used may, and
c often do, represent a formula which means different
things to each side, yet may be accepted because that is
the only way to get "agreement" anQ. in the hope that
disputes will not arise. The only course then can be to
try to ascertain the ''natural" mea:Q.ing. Far more, and indeed,
totally dangerous is it to admit evidence of one party's
objective - even if this is known to the other party.
However strongly puusued this may be, the other party
may only be willing to give it partial recognition, and
in a world of give and take, men often have to be satis-
fied with less than they want. So, again, it would be
a matter of speculation how far the common intention
was that the particular objective should be realised.•
(Prenn v. Simmonds. (1971] 1 W.L.R. 1381, at 1385.)
4o. G.H.L. Fridman, 'Construing without Constructing a Contract•
(1960) 76 L.Q.R. 521, at 523-524.
 56.
unresolvable ambiguity should have this result. 41

Nonetheless, evidence of surrounding circumstances is

generally admissible wh~re the meaning of words is unclear,

to assist in their interpretation, and the parol evidence

rule which prescribes the conditions of admissibility may

be seen as determining the point between the objective and

subjective theories at which the courts actually operate.

(b) The parol evidence rule

The rule itself simply prescribes that parol evidence

cannot be admitted 'to add to, vary or contradict a deed or

42
other written instrument•. The parties are deemed to have

expressed their final agreement in writing, and if evidence

were later admissible to alter that, contracts might never be

regarded as fihal.

But it is the exceptions to this rule that are of

significance. It is accepted that evidence may be admitted

to supplement, or explain the meaning of words used, although

if the court regards the words as having a fixed meaning,

no further evidence will be of assistance. 43 The extent to

which extrinsic evidence is admissible then willfrequently

41. See e.g. F. E. Rose (London) Ltd v. William H. Pim Jnr

& Co. Ltd [1953] 2 Q.B. 450, at 46o-461. ·
42. Per Lawrence J. in Jacobs v. Batavia & General Plantations
Trusts Ltd [1924] 1 Ch.287, at 295.
43. See Bank ·of New Zealand v. Simpson [1900] A.C. 182, at 189.
 57.
depend upon the confidence of the court in a fixed meaning

that suggests itself. There are signs that this confidence

is waning, and that along with a realisation of the fluid

nature of 'meaning' has come a more liberal attitude towards

admitting extrinsic evidence.

One of the best known early passages supporting this

view is that of Lord Blackburn in River Wear Commissioners v.

Adamson,
44 which states:

In all cases the object is to see what is the

intention expressed by the words used. But, from
the imperfection of language it is impossible to
know what that intention is without enquiring
further and seeing what the circumstances were
with reference to which the words were used, and
what was the object, appearing from those
circumstances, which the person using them had in
view; for the meaning of words varies according
to the circumstances with respect to which they
were used.

The extent to which the court may have regard to extrinsic

evidence where the literal meaning of the words is unclear and

cannot be construed was described recently by Lord Upjohn in

these terms:

It is then the duty of the court by the exercise

of its judicial knowledge and experience in the
relevant matter, innate common sense and desire
to make sense of the settlor's or parties'
expressed intentions, however obscure and
ambiguous the language that may have been used,

44. (1877) 2 App. Cas. 743, at 763. Applied in this country

in Thames Borough v. Thames Valley Electric Power Board
[1957] N.Z.L.R. 523, at 528, and recently endorsed in
the House of Lords in Prenn v. Simmonds [1971] 1 W.L.R.
1381, at 1384.
 58.
to give a reasonable meaning to that language
if it can do so without doing complete violence
to it.45

An illustration of this process at work is provided by the

decision of Richmond J. in Eastmond v. Bowis 46 where the

purchaser of some land had signed an agreement that provided,

'I accept the conditions of this agreement subject to finance'.

From evidence of the circumstances in which the agreement was

signed, Richmond J. was able to find that by 'subject to

finance' was meant 'subject to the sum of £6,000 being

raised on mortgage of the vendor's property by the purchaser

or Mr Matson on reasonable terms as to interest and repayment

of capital'.
There are limits on what evidence may be admitted, how-

ever. Certain evidence may be quite unhelpful and dangerous.

The House of Lords has recently affirmed that evidence of the

ptior negotiations of the parties is inadmissible as seeking

to show their intention in a subsequent agreement, 47 and

declarations of intention subsequent to its execution will be

. t e d • 48
. "1 ar 1 y reJec
s1m1

Re Gulbenkian's Settlements [1970] A.C. 508. Applied

by McCarthy J. to contract interpretation in the New
Zealand Court of Appeal in Dimond Manufacturing Co. Ltd
v. Hamilton [1969] N.Z.L.R. 609, noted in (1970),
N.Z.Univ.L.R. 48.
46. [196~] N.Z.L.R. 954, at 961.
47. In Prenn v. Simmonds [1971] 1 W.L.R. 1381, at 1384-1385.
And cf. ~ v. Mayor etc., of Oamaru (1881) L.R. 1 S.C. 97.
48. Doe d. Hiscocks v. Hiscocks (1839) 5 M. & W. 363, 151
E.R. 154; Charter v. Charter (1874) L.R. 7 H.L. 364.
 59.
One curious exception that exists is in the case of

'latent' ambiguities. Evidence may be admitted to demonstrate

their existence, and direct evidence of intention used to

resolve them. 49 A 'patent' ambiguity, on the other hand must

be resolved from within the four corners of the document with

assistance from evidence of surrounding circumstances. The

rule has been subject to much criticism in both Britain5°

and America, 51 where there are signs now of its gradual

modification. 5 2

(c) Implication of terms

Where some element of a contract has been omitted, or

provided for in ohly a very vague way, the courts may uphold
the contract by implying a term to indicate more clearly

the intended operation of the contract. Sometimes, the

implication is statutory. Section 10(2) Sale of Goods Act

1908 for example, prescribes that where no price is fixed by

49. Doe d. Gord v. Needs (1836) 2 M. & W. 129; 150 E.R. 698.
50. Bee e.g:-Gross on Evidence 3rd ed. (1967) 527-531,
Phipson on Evidence 11th ed. (1970) 840 ..
51. Thayer, A Preliminary Treatise on Evidence (1898)
422-426, 471-474. Farnsworth, "'Meaning" in the Law
of Contracts' (1967) 76 Yale L.J. 939, at 961 points
out that once it is realised that the referent of a word
is heavily dependent upon its context, the distinction
becomes blurred, and many supposedly latent ambiguities
can be seen instead as patent. See too, Justin Sweet,
'Contract Making and Parol .Evidence: Diagnosis and
Treatment of a Sick Rule' (1968) 53 Cornell L.R. 1036.
52 .. See Farnsworth (supra,n.51) 961-965.
 60.
a sale of goods contract, the buyer must pay a price that
is reasonable.53

In the case of implication by the courts, however,

there is a very real danger that a contract may be made for

the parties, instead of effect being given to their original

intentions. It is understandable then that the courts adopt

a cautious approach. The test most commonly applied is that

terms will only be applied in order to remedy some obvious

oversight, where otherwise a clear contractual intent would

fail. Lord Justice Mackinnon in Shirlaw v. Southern Foundries

(1926) Ltd 54 stated this in a well known passage:

Prima facie that which in any contract is left to

be implied and need not be expressed is something
so obvious that it goes without saying; so that,
if while the parties were making their bargain an
officious bystander were to suggest some express
provision for it in their agreement, they would
testily suppress him with a common, 'Oh, of course'.

So long as it is clear that a binding contract was intended

the process of implication of terms is likely to be of

considerable assistance in ensuring that it does not fail for

uncertainty. Extrinsic evidence may be looked at to

determine the way in which the parties intended the situation

to be governed, and particularly in commercial contracts,

53. Supra, n.8. The Property Law Act 1956, and Land Transfer
Act 1952 both operate to imply provisions into some
conveyancing contracts.
54. [1939] 2 K.B. 206, at 227. See, to the same effect,
Scrutton L.J. in Reigate v. Union Manufacturing Co.
(Ramsbottom) [1918] 1 K.B. 592, at 605; cf. Spring v.
National Amal amated Stevedores & Dockers Societ
195 ] 1 W.L.R. 5 5.
 61.
evidence of custom and trade usage is of assistance.55

Most frequently, however, the content of the implied term

is determined by reasonableness. 56 The parties are deemed

to be reasonable persons 57 and to have intended a reasonable

solution.

Despite the cautious approach of the courts to both the

admission of extrinsic evidence and implication of terms,

each of these devices has been of considerable assistance

in upholding contracts, notwithstanding the uncertainty of

their wording. This may be demonstrated by looking at the

approach of the courts to the six types of uncertainty out-

lined in Chapter 2, and the significance of each in contract

law.

4. The Resolution of Different types of Uncertainty

As may be eMpected, the type of uncertainty that causes

most difficulty in contract interpretation is that which arises

from language that is vague. Vagueness may remain after other

types of uncertainty have been resolved. All six types of

uncertainty outlined earlier cause difficulty in contract law,

however, and each calls for closer consideration.

55- Hutton v. Warren (1836), 1M. & W. 466, at 475; 150

E.R. 517, at 521.
56. s.g. Gardner v. Coutts & Co. [1968] l W.L.R. 173, at
176-179, Smith v. Morgan [1971] l W.L.R. 803, at 808.
Cf. Sale of Goods Act 1908, n.8 supra.
57· Fridman claims this to be a 'fundamental postulate of
contract law'; op.cit., 536.
 62.
(a) Meaningless Erovisions

It has occasionally been asserted that a provision of

a contract will be held void for uncertainty only when it is

utterly impossible to place a meaning on its words.5 8 In

fact, however, the line between valid and void provisions seems

to be drawn at a point before complete unintelligibility - at

the point wh~re a provision 'means' something in a very vague

way, but causes extreme difficulty when it is sought to apply

J.'t • 59 Perhaps a more accurate assessment of judicial

approach is provided by Lord Pearson when he says that,

The courts are always loathe to hold a clause

invalid for uncertainty if a reasonable meaning
can-be given to it.60

An expression that is quite meaningless is in fact an

extreme form of uncertainty, and is a comparatively rare

phenomenon. Seldom is the ineptitude"of the draftsman

sufficient to defeat the determination of the courts to accord

61 62
some meaning to his words. The case of Nicolene Ltd v. Simmonds

58. By Lord Denning M.R. in Fawcett Properties Ltd v.

Buckingham County Council [1961] A.C. 636, at 678;
and in Gould v. Gould [1970] 1 Q.B. 275, at 280.
59e Cf. Taylor v. Portington (1855) 7 De G.M.&G. 328,
44 E.R. 128.
60. Greater London Council v. Connolly [1970] 2 W.L.R. 658,
at 664.
61. The courts seem particularly determined to uphold the
provisions of amateur draftsmen, refusing to allow their
ineptitude to upset their agreement, see e.g. Jenkins v.
Kent [1922] N.Z.L.R. 882. Cf. Mobil Oil Australia Ltd ~
KOSta (1969) 14 Fed.L.R. 343.
62. [1953] 1 Q.B. 543.
provides an illustration of one situation where this occurred.

The seller of some goods wrote to the buyer 'I assume that

we are in agreement that the usu~l conditions of acceptance

apply'. The English Court of Appeal 63 held the phrase

meaningless, and that it could be ignored without disturbing

the operation of the rest of the contract. 64

Provisions of that type are not commonly encountered,

however.
65 More frequently of a.t!njttd.vaaie .ar1f ¥O:tol!l±sions that are

repugnant or inconsistent with the rest of the contract,

rendering it meaningless unless some provision can be ignored.

In fact, the situation is one of ambiguity, and the choice

between two vying interpretations of the contract is often

difficult to make. In wh~t situation may the court ignore

words used by the parties in order to give effect to their

contract. The test most commonly applied is that of Lord

63. Ibid., 549, per Singleton L.J."; 551, per Denning L.J.;
553, per Hodson L.J.
64. See also Re Vince, Ex parte Baxter [1892] 2 Q.B. 478.
Denning L.J. in Nicolene Ltd v. Simmonds (at 551) thought
that the clause 'subject to force majeure conditions'
described by McNair J., in British Electrical and
Associated Industries (Cardiff)· Ltd v. Patley Pressings
Ltd [1953] 1 W.L.R. 280, at 283 as 'so vague and uncertain
as to be incapable of any precise meaning' could have been
similarly severed, without affecting the validity of the
document as a whole. It is submitted, however, that, to
the extent that that clause envisaged some condition
being imposed on the contract, to ignore it would be to
alter the meaning of the whole contract. The clause was
not as meaningless as 'usual conditions of acceptance'.
Cf. Life Insurance Co. of Australia Ltd v. Phillips (1925)
36 C.L.R. 60.
See e.g. Heisler v~ Anglo-Dal Ltd [1954] 1 W.L.R. 1273, at
1277, and 1281; and Gold v. Patman & Fotheringham Ltd
[1958] 1 W.L.R. 697, at 702.
 64.
Halsbury in Glynn v. Margetson and Co.: 66

Looking at the whole of the instrument and seeing

what one must regard, for a reason which I will
give in a moment, as its main purpose, one must
reject words, indeed whole provisions, if they are
inconsistent with what one assumes to be the main
purpose of the contract.

The operation of this principle was demonstrated in the House

of Lords in Adamastos Shipping Co. Ltd v. Anglo-Saxon

6
Petroleum Co. Ltd 7 where a charter party had incorporated

into it by a typed slip the following clause:

Paramount clause. This bill of lading shall have

effect subject to the Carriage of Goods by Sea Act
of the United States • • • 1936, which shall be
deemed to be incorporated herein, and nothing
shall be deemed a surrender by the carrier of
any of its rights or immunities or an increase
of any of its responsibilities or liabilities
under the said Act. If any term of the bill
of lading be repugnant to the said Act to any
extent such term shall be void to that extent,
but no further.

~he Act, however, provided by s.5 that none of its

provisions should be applicable to charter parties. Having

accepted that 'bill of lading' was merely a slip for

'charter party', their Lordships proceeded to hold that s.5

of the Act was meaningless so far as the contract was

concerned and should be rejected. Viscount Simonds stated:

I cannot attribute to either party an intention to

incorporate a provisiQn which would nullify the
whole incorporation.6~

66. [1893] A.C.351, at 357.

67. [1959] A.C. 133.
68. ~., 154.
 In both that case and Nicolene Ltd v. Simmonds 6 9 it

accorded with the intention of the contract to ignore inconsistent

provisions and it is clear that the courts will seek wherever

possible to uphold contracts through adopting this approach.70

It is possible, although difficult, to envisage a contract

that provided no indication of which ~f two conflicting

provisions should prevail. Only in this situation, it is

submitted, will the contract fail as meaningless.

(b) Ambiguities

It will be recalled that for the purposes of this study,

cases of true ambiguity are distinguished from vagueness.

Except in one respect, ambiguity will seldom invalidate

contracts. A word or expressio~ that is on its face capable

of two or more meanings that are quite distinctly different,

can usually be resolved through resort to canons of construction,

or to evidence of surrounding circumstances. Evidence of

usage or custom, for example, may point to one meaning as

being more likely to have been in the contemplation of the

parties. 71 Again, applying an interpretative device of the

69o Supra, n.62.

70. See e. g. Barclays Bank Ltd v. Kiley [1961] 1 W.L.R. 1050,
Finbow v. Air Ministry [1963] 1 W.L.R. 697, and The Herak
[1965] P.223.
71. See e.g. Peterson v. Freebody [1895] 2 Q.B. 294; Reardon
Smith Line Ltd v. Ministry of Agriculture, Fisheries and
Food [1963] A.C. 691, at 726. And cf. Topliss Bros v. Cohr
(1904) 2~ N.Z.L.R. 54o.
 66.
last resort the court may choose to resolve the ambiguity in

the manner least favourable to the party that introduced the

.
am b ~guous .
express~on.
72

In these situations it is a matter of construction which

meaning should be attributed to the parties. The rare

situation where ambiguities really cause difficulty, however,

is where each of the parties clearly understood something quite

different when using an expression fundamental to the contract.

In such a case, there has been simply a failure to agree, and no

contract has been formed. Reference was made earlier to Raffles

v. Wichelhaus73 where the parties each had in mind a different

vessel when they spoke of goods to arrive 'ex Peerless from

Bombay'. Even in this situation the courtsstrive to uphold

contracts, recognising the danger in allowing persons seeking

to avoid liability to assert that they had been misled by

ambiguity. Where the evidence points to one meaning being

more likely to have suggested itself to a reasonable person

in the place of a party than that which he asserts to have under-

4
stood, he will be found by the former.7 In the 'Peerless' case,

72. See e.g. Robjohns v. Hill (1900) 19 N.Z.L.R. 6~~' lre.lfl.kins

v. Kent [1922] N.Z.L.~82. The courts have also insisted
that parties be bound by the interpretation of an ambiguity
upon which they have acted in the past: see e.g. Topliss
Bros v. Cohr (supra), Granton v. Worthington (1908) 27
N:Z:L.R.~. And cf. Lawrence v. Handley [1920] N.Z.L.R.
169, at 176.
73. (1864) 2 H. & C. 906, S.C. 33 L.J. Ex. 160, 159 E.R. 375.
74. Cf. Lord Wiiliberforce in Prenn v. Simmonds [1971] 1 W.L.R.
1381, at 1385.
the ambiguity was complete, and no evidence was brought to

show that to a reasonable third party one or other of the

meanings would have suggested itself.75

It is comparatively rarely that no evidence of that nature

will be available. Only in its absence, it is submitted, will

a court hold invalid a contractual provision for ambiguity:l? 6

(c) Inaccuracies

It is probably true to say that inaccuracies present thmm-

selves far less frequently in contracts, than in wi~ls and

trusts. The presence of two parties renders it more likely

that the terms of the contract will have been checked, and

errors corrected before execution. Furthermore, so long as

both parties are agreed that their document contains some

inaccuracy, there is no difficulty in amending ito

Should the presence of inaccuracy be disputed however, it

may be possible to obtain rectification by order of the court.

The conditions under which this remedy is available have been

stated in these terms:

Raffles v. Wichelhaus is discussed exhaustively by Young,

in 'Equivocation in the Making of Agreements' (1964) 64
Colum.L.R. 619. He concluded that, given the pervasive
quality of vagu~ness in language, disputes in contract
law call for interpretation and construction unless there
is no sensible basis for choosing between different under-
standings of the agreement.
76. The case of Frigaliment Importing Co. v. B.N.S. International
Sales Corp., (1960) 190 F.Supp. 116 is discussed by Corbin,
(Vol.3, 1971 Pocket Supplement) and provides an interesting
illustration of the principles discussed in the text. A
contract provided for the sale of •u.s. Fresh Frozen Chicken,
Grade A, Government Inspected'. The buyer found that the
birds were not young chicken suitable for broiling or frying,
but stewing chicken, or fowl. On the evidence, the Court
chose the meaning advanced by the seller, holding that the
 68 •
••• it is necessary to show that the parties were
in complete agreement on the terms of their contract,
but by an error wrote them down wrongly • • • If you
can predicate with certainty what their contract was,
and that it is, by a common mistake, wrongly expressed
in the document, then you rectify the document, but
nothing less will suffice • • • There could be no
certainty at all in business transactions if a
party who entered into a firm contract could after-
wards turn round and claim to have it rectified on
the ground that the parties intended something
different. He is allowed to prove, if he can that
they agreed something different ••• but not that
they intended something different.77

Direct evidence of intention is nonetheless admissible

in a suit for r~ctificati~n, 78 and as such forms an exception

to the general rule of admissibility of parol evidence to vary

the terms of a written agreement.

Uncertainty arising from inaccurate statements in contracts

does not then induce invalidity. - If the court is satisfied that

inaccuracy exists, rectification will be allowed. Otherwise, the

contract must stand as it is written. It may be that the

inaccuracy was to the mind of one party only, in which case the

matter must fall for consideration under the rules relating to

mistake.

76. Cont.
plaintiff (buyer) had failed to show that the seller knew,
or had_re.ason to know that the plaintiff intended to buy
broilers only.
77. Frederick E. Rose (London) Ltd v. William H. Pim Jnr. & Co.
Ltd [1963]_2 Q.B. 450, at 461-462 per Denning L.J. See
further, Leonard Bromley, 'Rectification in Equity' (1971)
87 L.Q.R. 532.
78. Murray v. Parker (1854) 19 Beav. 305, at 308; 52 E.R.
367, at 368. It may be that parties will try for rectific-
ation in order to gain the introduction of evidence which
would be excluded in a case of construction, see e.g.
Prenn v. Simmonds [1971] 1 W.L.R. 1381.
 (d) Omissions

It often happens that parties to a contract have omitted

to make provision for some term that is essential to the

carrying out of their contract. The general presumption is

that they have provided for every essential term,79 so that

the court will first attempt to enforce the agreement as it

stands, construing it in such a way as to render it enforceable.

Should this not be possible~ however, it may be possible to

imply terms. The rules relating to their implication have

already been considered, and it is in this process of 'gap

filling' that they play a most significant role.

It is necessary however that the parties themselves

intended to conclude a contract, and had used language

indicating that fact. That the courts will not imply terms

where the parties have indicated that they wish to negotiate

80
further was stressed by Richmond J. in Willetts v. Ryan where

79. Luxor (Eastbourne) Ltd v. Cooper [1941] A.C. 108, at

137 per Lord Wright.
80. [1968] N.Z.L.R. 720, at 722-723. Affirmed by the Court of
Appeal, ibid., 863,~867. Note the comment of Richmond J.
(724): "i""fi'ie court is always reluctant to arrive at the
conclusion that parties who have obviously intended to
enter into a contractual relationship have failed to do
so through leaving some part of their agreement outstanding
for further negotiation.' Also, in the Court of Appeal,
'··· we have come to the conclusion, though not without
some reluctance having regard to what appear to be the
merits of the case, ••• that in this case the parties
have not concluded their contract' (ibid., 867). The
Court was therefore prepared to impu't"eto the parties an
intent which it did not believe to be their subjective
intent, but which the language they had used dictated.
 70.
parties had agreed on the sale of some land and for the pay-

ment of the purchase price of '10% cash deposit on signing

the agreement for sale and purchase and the balance by mutual

arrangement.• Had the words 'mutual arrangement' not been

present, the court could by implication have supplied all

terms necessary for carrying out the contract. Those words,

however, implied that the parties themselves desired to settle

the method of payment, and that the court's powers ot

im~ation were thereby excluded.

(e) Delegation and reservation

The courts will not enforce what is a mere agreement to

agree, so that as has been seen, a contract that purports to

reserve some term to future determination by the parties will

not exist as a contract, unless they reach agreement. Parties

may, however, delegate the fixing of a term to some independent

third party, and in this case the id certum maxim will operate.

The term is ascertainable without further agreement.

Sometimes, however, one party may choose to delegate to

another party the power to determine a term unilaterally.

Examples of this are most frequently seen in cases where

remuneration or commission is left in the discretion of ~

employer 81 or .
cl~ent.
82 If the discretion is unfettered, there

81. See ~.g. Way v. Latilla [1937] 3 All E.R. 759, !£!i
Sunkersette Obu v. A. Strauss & Co. Ltd [1951] A.C. 243,
Powell v. Braun [1954] 1 W.L.R. 4ol, Re Richmond Gate
Property Co. Ltd [1965] 1 W.L.R. 33.3.
82. See e.g. Re Brand Estates Ltd [1936] 3 All E.R. 374.
 71.
is little that a court can do in ensuring its exercise

favourably to a claimant. For the court itself to exercise

the discretion and order payment of a certain sum would be to

make a contract for the parties. 83 However, the courts have

been prepared where they are not satisfied that an unfettered

discretion was intende.d, to imply a term to the effect that

it will be exercised reasonably.

84 In one case, a similar

result was achieved by implying a contract to pay quantum

meruit, but it is submitted that such an implication will

be .made only where there is no other express agreement for

remuneration, and all payments have been left on a discretionary

basis. 85 The unlikelihood of it being the parties' intention

that the plaintiff (claimant) should act gratuitously will,

in that situation, allow of a guantum meruit payment.

An illustration of the extent to which the courts are

prepared to go 4n upholding contracts despite .the discret-

ionary power vested in one party is provided by the recent

83. See Way v. Latilla (supra), and Kofi Sunkersette Obu v.

A. Strauss & Co. Ltd (supra) 250. ·
84. As in Powell v. Braun (supra), andRe Brand Estates (supra).
But in Re Richmond Gate Property Co. Ltd [1965] 1 W.L.R.
335, where a managing director's n.e:nwrl:erltlleiCm!.wis"t!Oile s:bGa 'as the
directors may determine', Plowma~ J. stated, 'he gets what
they determine to pay him, and if they do not determine
to pay anything, he does not get anything. That is his
contract with the company, and those are the terms on
which he accepts office.'
Way v. Latilla [1937] 3 All E.R. 759, Re Richmond Gate
Property Co. Ltd (supra).
 72.
English Court of Appeal decision in Greater London Council v.

Connolly
86 where tenancies held from the Council were subject

to the condition that rent was 'liable to be increased or

decreased on notice being given'. It was argued that bath the

condition, and the amount of rent to be paid were uncertain.

Lords Denning and Pearson were satisfied, 87 however, that by

implying a term that reasonable notice be given, the condition

could be rendered certain, and that upon notice being given,

the amount of rent payable also was rendered certain.

88 It

was not stated, however, whether a similar restriction of

reasonableness might also be imposed upon the amount of

increase that the Council might levy. There would seem no

reason why such ~n implication might not be made if necessary.

89

(f) Vagueness

In one sense the use of wide and vague language may

amount to delegation too, for the role played by the interpreter

of the contract becomes of significance in 'rendering certain'

86. [1970] 2 Q.B. 100.

87. Ibid., 663, 665. Apparently, some quarter of a million
tenants had received rent increases.
88. Relying on Ex parte Voisey, In re Knight (1882) 21 Ch.D.
442, and Attorne~ General for Alberta v. Huggard Assets
Ltd [1953] A.C. 20.
It is likely, for instance, that had Lord Justice
MacKinnon's officious bystander suggested that the
tenants and the Council place in their agreement a
term to the effect that any increase be reasonable, he
would have been met with a testy, 'Oh, of course'.
 73.
what the parties have left largely undefined. The situation

is close to that of omissions too, for in neither situation

may adequ~te guidance as to the parties' intention on specific

terms be available.

Reference has already been made to the situation where

the width of the language used by the parties gives rise to

J

an inference that their negotiations were incomplete. Close

to that case is the situation where although the parties may

have clearly believed themselves bound and even have acted on

the agreement, yet they have used an expression so vague and

indeterminate that the court is quite unable to enforce it.

lt might be said in this context also that clarification of

the term is possible only by the parties themselves, and not

by the court. 90

It is seldom, however, that the courts are defeated by

mere vagueness. One line of cases frequently regarded as

falling under this head appears on closer examination, to

be more appropriately regarded as providing instances of

ambiguity, although the borderline between the two categories

is admittedly not always clear. These cases are where the

parties have expressed their contract to be subject to some

90. See e.g. Bishop v. Taylor (1968) 42 A.L.J.R. 277, at 288

per McTiernan and Taylor J.J •. The court was unable to
find that any final agreement had been reached in a
contract for 't share of the crops', since the intended
crops were never defined specifically.
 74.
common type of clause, but have failed to specify which of many

similar clauses with different effects was intended. Contracts

expressed to be 'subject to war clauses 1 ,9l 'subjeet to

strike and lockout clauses•, 92 'subject to force majeure

conditions•, 93 and 'on hire purchase terms 1 9 4 have all been

held unenforceable because of the absence of any indication as

to which of a wide variety of clauses was intended. The

ambiguity was therefore unresolvable. If evidence is available

to suggest some specific clause, however, the ambiguity is

capable of resolution, and the contract enforceable.95

Those cases aside, however, instances· of true vagueness

inducing invalidity are rare. Illustrations may be provided

by two nineteenth century decisions. In the first, a contract

for the sale of some land that reserved 'the necessary land for

making a railway' was held too vague to be enforced, for the

91. Bishop & Baxter Ltd v~ Anglo-Eastern Trading and Industrial

Co. Ltd [1944] K.B. 12. '
92. Love &·stewart Ltd v. S. Instone Ltd (1917) 33 T.L.R. 475•
93. British Electrical & Associated Industries (Cardiff) Ltd
v. Patley Pressings Ltd [1953] 1 W.L.R. 280.
94. G~ Scammell & Nephew Ltd v. H.C. & J~G. Ouston [1941]
A.C. 251. And cf. Denton v. Ryde Municipal Council (1953)
19 L.G.R.A. 321, Allcars Pty. Ltd v~ Tweedle [1937]
V.L.R. 35·
95. In Shamrock S.S. Co. v. Storey & Co. (1899) 81 L.T. 413,
'the usual·colliery gu~rantee' was held valid, since such a
guarantee existed and was ascertainable. Similarly, a deed
of separation with 'the usual covenants' was upheld in
Hart v. Hart (1881) 18 Ch.D. 670, and an agreement to
IeaSe that provided 'the lease shall contain such other
covenants and conditions as shall reasonably be required
by [the plaintiffs]' in Sweet & Maxwell Ltd v. Universal
News Services Ltd [1964] 2 Q.B. 699. See also Summergreene
v. Parker (1950), 80 C.L.R. 304, Pearce~· Stevens (1904)
24 N.Z.L.R. 357, Trustees Executors & Agency Co. Lte v.
Peters (1960), 102 C.L.R.551.
 75 ..
Court neither knew what was 'the amount of land necessary

for a railway, nor what line the railway is to take, nor any-

thing about it ... .96

I
Similarly, in Cooper v. ~9 7 the

Court was unable to enforce an agreement whereby the vendor

agreed to leave 'a large portion of my money ••• for some

years' in the business that was the subject matter of the

contract.

Uncertainty of that nature could not be regarded as

rendering the contract unintelligible. In the unlikely

event of its occurrence in a statute, the court would have

had to construe it. There are signs that in recent years

the tendency is to adopt a similar approach in cont:Pa:e.tt

interpretation, decliming enforcement only where a provision

is quite unintelligible. The High Court of Australia stated

recently:

But a contract of which there can be more than one

possible meaning or which when construed can
produce in its application more than one result
is not therefore void for uncertainty. As long
as it is c·apable of a meaning, it will ultimately
bear that meaning which the courts, or in an

96. Pearce v. Watts (1875) L.R. 20 Eq. 492, at 494 per

Sir George Jessel M.R.
97. ' (1858) 26 Beav. 293! 53 E.R. 911. See also Taylor v.
Partington (1885) 7 De G.M. &-G. 328, 109 E,R. 147
(agreement to take a house 'if put into thorough
repair' and if the drawing room was 'handsomely
redecorated according to the present style') and
G.uthing v. Lynn (1831) 2 B. & Ad. 232, 109 E.R. 1130
(promise to pay 1 the buying of another ho:tuse<1: if
the purchased horse proved lucky.) Cf. Edwards v.
Skyways Ltd [1964] 1 W.L.R. 349.
 76.
appropriate case, an~ arbitrator decid~is its
proper construction: and the court or arbitrator
will decide its application. The question become
(sic] one of construction, of ascertaining the
intention of the parties. In the search for that
intention, no narrow or pedantic approach is
warranted, particularly in the case of
commercial arrangements. Thus will uncertainty
of meaning, as distinct frow absence of meaning
or intention, be resolved.9~

It is submitted that, as a general rule, the courts will

not hold a contract void for uncertainty arising from vague-

ness of language without first making every effort to construe

that language. As a result, only an expression to which no

meaning can be attributed without doing violence to the

'natural' meaning of the words used or their context, or

entering upon pure conjecture will render a contract unenforce-

able.

5. Exceptions to the General Rule

It is clear that the courts are, as a general rule,

extremely reluctant to hold a contract void for uncertainty

whatever its cause. Since questions of int,erpretation and

construction of legal instruments arise in almost every

matter that comes before them, they frequently find difficulty

in accepting that unskilled drafting could be capable of

preventing them from according a meaning to any provision.

350-351. Applied
Ltd v. Television
85";' at 92.
 77.
But there has been a small number of occasions where this
reluctance has been possibly less apparent, and where the

courts have been less willing to embark upon complex

processes of interpretation to uphold an agreement.
(a) Specific types of provisions

The attitude of the courts of equity towards provisions

of a harsh or unconsciona;blee nature is well enough known.
Particularly where the parties are of unequa~ bargaining
strength, the courts have tended to constru~ such provisions
narrowly, and to resolve ambigfltities against the party seeking
to enforce the provision. On occasion it would appear that

this attitude has had some bearing upon the question of

whether or not such a provision might be void for uncert~inty.

(i) Exclusion clauses On many occasions the courts have

held that an exception to an obligation can only be established

by clear and unambiguous words. But in.particular this

attitude has been apparent in the case of charter parties.

It has been long established that the common law implies

warranties into these documents, imposing upon the ship-

100
owner the obligation of providing a seaworthy vessel. The

99. See e.g. Brown v. Gould [1971] 3 W.L.R. 334, at 337-

338, 342.
100. See Owners of Cargo on Waikato v. N.Z. Shipping Co.
(1898] 1 Q.B. 645.
 78.
courts have been reluctant to uphold provisions seeking to
exclude that obligation, and have held that only plain words
th a t are I express, per t•~nen t , an d appos1•t e ,lOl w1"11 h ave th"~s
effect.

Lord Macnaghten once stated:

In such a case as this an ambiguous document is

no protection. It is a wholesome rule that a
shipowner who wishes to escape liability which
might attack to him for sending an unseaworthy
vessel to sea must do_so in plain words.102

In the same case, Lord Lindley stated that by 'plain terms'

be meant •terms sufficiehtly plain to the shipper for him to
understand it.• 10 3

But whether this means that failure to comply with such

a requirement, which bears a marked similarity to a require-
ment sometimes said to exist in respect of bylaws, would render
the provision void, is far from clear. The above passages
would appear to suggest that it might. But in practice, the
courts have preferred instead to adopt,~igorous techniques of

101. Sleigh v. T~jer [1900] 2 Q.B. 333. See also, Nelson v.

Nelson [190 A.C. 16, Chartered Bank of India, Australia
and China v. British India Steam Navigation Co. Ltd [1909]
A.C. 369, Petrofina S.A. of B~ussels v. Compagnia Italiana
Transporto Olii Minerali of Genoa (1937) 53 T.L.R. 650,
Adamastos ShiJping Co. Ltd v. Anglo-Saxon Petroleum
Co. Ltd [1959 A.C. 133·
102. Elderslie Steamship Co. Ltd v. Borthwick [1905] A.C. 93,
at 96.
103. ~., 97.
 79-
construction to narrow or preclude the application of

particular clauses to the fact situations before them. 10.4

While the reluctance of the courts to enforce such clauses

may yet lead to their accepting a lesser degree of uncertainty
as an invalidating factor than is demanded in the case of
other contractual provision~, it does not appear yet to have
had that effect.

(ii) Restraints on trade In the days of the first Queen

Elizabeth, all restraints of trade were thought to be contrary

to public policy and therefore void.l05 Over the years the

scope of the doctrine has been modified considerably, but,

as is demonstrated by the recent House of Lords decision in

Esso Petroleum Co. Ltd v. Harper's Garage (Stourport) Ltd106

it continues to have considerable force today.

In at least one case it is possible that the reluctance
of the court to uphold a provision in partial restraint of
trade led to its failing for uncertainty of a lesser degree
than that normally permitted in contracts. In Davies v.
. 107 a re t'1r1ng
Dav1es . par t ner h a d covenant e d w1'th th e o th er

104. See e.g. Adamastos ShipJing Co. Ltd v. Anglo-Saxon

Petroleum Co. Ltd [1959 A.C. 133, at 174-177 per
Lord Reid.
105. See e.g. Mitchel v. Reynolds (1711) 1 P.Wms. 181,
at 188.
106. [1968] A.C. 269.
107. (1887) 36 Ch.D. 359·
 Bo.
members of his firm 'to retire from the partnership and, so

far as the law allows, from the business'. The Court was

,unwilling to imply terms as to the extent of the restraint,

or to construe it in such a manner as might render it valid.

Instead, it preferred to hold the provision void for uncertainty.

(iii) Co~mission clauses A third situation where the

attitude of the courts towards particular types of provision

has tended to. influence their determination of validity is in

the case of commission clauses inserted typically in standard

agreements of estate agents, whereby commission may become

payable even without a sale having been effected. Again, the

courts have insisted upon clear wording in this type of

provision.
108 In Jagues v. Lloyd D. George and Partners Ltd10 9

the English Court of Appeal had little hesitation in finding

void for uheertainty such a provision, under which commission

was to be payable upon theagent being 'instrumental in

introducing a person willing to sign a document capable of

.
b ecom1ng a cont rae t' • Th e JU
. d gemen t s-o f Lor d Denn1ng
. M••
R llO

and Cairns J. 111 demonstrate a marked reluctance to construe

the provision in such a way as might render it more certain.

108. See e.g. Midgley Estates Ltd v. ~ [1952] 2 Q.B. 432,

Ackroyd and Sons v~. Has(J.n [1960] 2 Q.B. 144, Scheggia v.
Gradwell [1963) 1 W.L.R. 1049.
109. (1968) 1 W.L.R. 625.
110. Ibid., 629-635·
lil. Ibid., 634-635·
 81.
It appears that in holding the provision void for ~ncertainty

their Lordships were influenced to a significant degree by

the disagreeable nature of the provision, and the injustice

that it might work if permitted to stand.
(b) The nature of the remedy sought

In Fry's work on Specific Performance112 there appears

the following passage:

It is obvious that an amount of certainty must be

required in proceedings for the specific performance
of a contract greater than that demanded in an action
for damages. For to sustain the latter proceedings
the proposition required is the negative one, that the
defendant has not performed the-contract, -a
conclusion which may be often arrived at without any
exact consideration of the terms of the contract; ·
whilst in proceedings for specific performance it
must appear not only that the contract has not
been performed, but whath is the contract which is
to be je:rlfiellllled.

Stated in that form, the proposition has received little

support. One judge has seen it as having the effect of

requiring the Court to say to a defendant 'I do not know what

you have contracted to do, but I can estimate the damages

sustained by your not doing it, and you shall pay damages
for not doing it.• 11 3 The same judge, however, was prepared

to accept the distinction to a limited extent, in the sense

that while there might be no question as to the right to be

112. 6th ed. (1921), by G. R. Northcote, 179. And see Foster v.

Wheeler (1888) 38 Ch.D. 130, at 132 per Cotton L.J., 133
per Lindley L.J. Stonham, Vendor and Purchaser (1964)
64 also accepts this proposition, but without elaboration.
113. Per Buckl~ L.J. in Waning and Gillow (Ltd) v. Thompson
(1912) 29 T.L.R. 154, at 156.
 82.
enjoyed under a particular contract, its mode of enjoyment
might not be adequ~tely defined to found a decree of specific
per f ormance. 114..

It is submitted that the true relevance of certainty to

the question of remedy is in its bearing upon the exercise
of the courts dtiscretion. It is illogical to assert that the
validity of a contractual provision is dependent upon the
:nature of the remedy sought for its enforcement. But it is
not illogical to say that uncertainty of a degree insufficient
to render the provision invalid may nonetheless involve that
specific performance is an inappropriate remedy, and that the
plaintiff ought to be left to his remedy in damages. This
is because the courts retain a wide discretion in awarding
the former remedy. Factors which have on occasion borne
upon the exercise of that discretion include the possibility
of difficulty in enforcement of the decree; 115 or the possibility
of unnecessary hardship on a defendant. 116 If it is recalled
that for breach of a decree the deiendant may become liable for
imprisonment, it may cause such unnecessary hardship that he

114. Idem.
115. see-e.g. Blackett v. Bates (1865) l Ch. A~P· 177,
Ryan v. Mutual Tontine Westminster Chambers [1893]
l Ch. 116, J. C. Williamson Ltd v. Lukey & Mulholland
(1931) 45 C.L.R. 282, Joseph v• National Magazine Co.
Ltd (1958] Ch. 14.
be required to fulfill an obligation the terms of which are
incapable of precise definition.

But it is to the· remedy, and not the validityt of a

contract, that uncertainty of this nature should relate.
(c) Executed arid executory contracts

It has occasionally been suggested that a lesser degree

of uncertainty may operate to invalidate a purely executory
contract, than a partly executed contract. 11 7 It is not easy
to determine 'the extent to which this is true, however. In
one instance, that of a provision to supply goods or services
at a price •to be agreed', it appears that the courts will
give effect to what would be an unenforceable contract were it
purely executory, if one party has performed his obligations.
But the basis of such a decision would be the 1mplication,
from the conduct of the parties, of a contract that in
d e f au lt o f agreemen t a reasona bl e sum Would be Pal.'d.ll8 So
that it is not an enforcement of the existing contract as such
at all, but rather a requirement to pay quantum meruit~ 119
But outside that situation it would be difficult to

ll?. See e.g. Fry, Specific Performance 6th ed. 1921,

Halsbury's Laws of England 3rd ed. xxxvi, 289,
Schlesinger, Formation of Contracts (1968) i, 4?2-
4?4. '
118. See e.g. British Bank for Foreign Trade Ltd v. Novinex
[1949] l K.B. 623, at 629-630 per Cohen L.J.
119. See e.g. Way v. Latilla [193?] 3 All E.R. 759, at ?63.
 84.
assess the relevance of partial performance of a contract to

its validity. It may serve to clarify the obligations of

the parties, or ~o remove difficulties of tnforcement that

might otherwise prevent the award of a decree of specific

performance.
120 The courts have stated, moreover, that they

will strive to enforce partly executed contracts. 121 But

whether that- process will involve an effort beyond that

normally expended in the resolution of uncertainty is a matter

sole~y of conjecture.

6. Conclusions

The desire of the courts to uphold freedom of contract

has meant that no matter how clumsily or untidily parties may

have worded their agreement, so long as it is clear that legal

consequences were intended by the parties to flow from it, the

courts will strive to accord it effect. In doing so, however,

they must balance the risks of making a contract for the

parties on the one hand, with the risk of allowing an obvious

contractual intent to fail on the other. The balance is a

delicate one, and in borderline cases other factors, some

objective but largely subjective, tend to determine which way

120. See e.g. Parker v. Taswell (1858) 2 De G. & J. 559, at

571, 44 E.R. 1106, at 1111; Oxford v. Provand (1868)
L.R. 2 P.C. 135, at 149-150.
121. See e.g. Thomas v. Harper (1935) 36 S.R.(N.S.W.) 142,
at 149.
 122
the decision will go.

The exceptions occasionally advanced to the general rule

are often confused and lacking in solid judicial support.

Whether they amount to anything more than factors to be

accorded weight in the occasdiiila.aa.:•_, borderline case is unclear.

But in their absence, at least, it is clear that only extreme

instances of vagueness or ambiguity quite incapable of

resolut_ion will serve to invalidate a concluded contract.

122. The writer regrets his inability to acc~pt'the statement

of one learned writer, that 'The cases in which the
essentials of certainty have been considered are relatively
easy to harmonise. The topic is one which, so to speak,
has no loose ends.•: F. Graham Glover, 'Essentials of
Certainty' (1971) 121 New. L.J. 657.
 CHAPTER 4

WILLS
1. Will Formation

Reference was made in the previous chapter to the

distinction that may be drawn between uncertainty that arises
in the formation of a contract, and uncertainty in a concluded
agreement. In the creation of wills, however, uncertainty
plays a far less significant part. The making of a valid will
requires compliance with various legal formalities.· It must,
for example, be in writing, and be executed in accordance with
the statutory provisions relating to execution and attestation. 1
Compliance with these requirements will almost inevitably
indicate that a will was intended, so that the courts are
seldom required to determine from the language used in an
alleged will whether or not ther·e was a t_estamentary intention.
Only when a will falls into a privileged class rendering such
compliance unnecessary is it likely that testamentary intent
may be in doubt, 2 but the writer has been unable to find any

instanees of uncertainty of language playing a role in this

context.
There is one situation, however, where certainty is
required, and that is where a testator has entered into an

1. Wills Act 1837, s.9. But see Wills Amendment Act 1955
(as amended by Wills Amendment Acts of 1962 and 1969)
as to wills of servicemen and. sailors.
2. See e.g. Re Knibbs, Flay v. Trueman [1962] 1 W.L.R. 852o
agreement in his lifetime to dispose of his property by will
in an agreed manner. Such an agreement is recognised as
binding upon his personal representatives,3 so long as there
is certainty that the testator intended an agreement and
not merely a statement of intention, and provided too that
there is certainty as to the subject matter of the agreement.
Certainty of obligation may be illustrated by reference
4
to Re Fickus where a statement in the following terms was
held to be unenforceable:
She will have a share of what I leave after the
death of her mother, who I wish to leave in
comfortable independence if I ·should leave
her a widow.
Similarly, where the subject matter is vague, as for
example a promise to recognise a son, 'in common with the
rest', 5 no enforceable contract will exist.
The principles involved are those applied in contract
law generally, and require no furth~r comment. Mention may
be made, however, of the Law Reform (Testamentary Promises)
Act, 1949 under which persons who have performed work under
a promise, express or implied, of testamentary provision,

See e.g. Maddison v. Alderson {1883) 8 App. Cas. 467;

and Synge g. Synge [1894] 1 Q.B. 466. See also, W.A. Lee,
mcontracts to make Wills' {1971) 87 L.Q.R. 358.
4. [1900] 1 Ch. 331. See also Kay v. Crook (1857) 3 Sim. & G.
4o7, 65 E.R. 7·15; Higgie v. Wilkinson (1904) 23 N.Z.L.R.
74, Lahay v. Brown [1958] S.C.R. 240.
5. As in Kay v. Crook {1857) 3 Sim & G. 4o7, 65 E.R. 715.
See also Synge v. Synge [1894] 1 Q.B. 466; Re Soames
(1897) 13 T.L.R. 439; and Macphall v. Torrance (1909)
25 T.L.R. 810.
 88.
may bring a claim against the promisor's estate should he
fail to honour the promise. 6

2. Principles of Will Interpretation

Leaving aside for the moment the question of trusts set

up under wills, the areas in which uncertainty arises

principally in wills are the ascertainment of the property

intended to pass under a legacy, the ascertainment of the

person to whom it is intended to pass and the maehinery by

which it is to pass. In ascertaining the objects and subjects

of gifts under wills, the courts have tended to strive with

Particular vigour to find the t~stator's intention, and to

resist holding provisions void for uncertainty.

One writer has observed that, 'In the construction of wills,

the most unbounded indulgence has been shown to the ignorance,

unskilfulness, and negligence of testators•. 7 As a result,

resort is had constantly to extrinsic evidence in aid of

~nnerpretation, and a generally liberal approach is adopted

to the interpolation of words where it ms clear that a

testator has not properly expressed his meaning. The two

Latin maxims discussed in Chapter 3 are often cited in

explanation or justification of these techniques.

6. See s.3(l) (as amended by the Law Reform (Testamentary

Promises) Amendment Act 1961, s.2). The Act received a
liberal interpretation in the recent decision of Speight J.
in Edwards v. New Zealand Insurance Co. Ltd [1971]
N.Z.L.R. 113.
7. Jarman on Wills 8th ed. (1951) 471.
 The reasons why the courts should strive t? uphold
provisions are perhaps best illustrated by considering the

result of invalid~ty. The most obvious feature is of course

that the testator is unable to make a new instrument to

correct the errors of the first, and to ensure that those

persons he int7nded to benefit, will in fact benefit.
Should the property be adequately described, but not the

object, there will usually be an intestacy in r~spect of that

property, which the~~asses to those eligible on intestacy.

If, on the other hand, the object is certainly described but

not the subject of th~ gift, the property will normally become

partyof the residiary e.state. Only by coincidence will those

intended to benefit ree~ive ~heir bounty.

A further reason for this 'most unbounded indulgence' is

that in few areas of law is there to be found such a maze of

complexity and technicality of expression as in the area of

wills and trusts. It is an area which amateur draftsmen enter

at their peri2., Their lack of appreciation of the legal effect
~· ·..
of hal::'-.~nderstood expressions has for centuries caused anguish
to judges anxious to accord a sensible meaning to confused and

inconsistent instruments. There is an understandable reluctance

not .to allow a testator's lack of comprehension of legal

technicality to frustrate a clear testamentary intenti
Uncertainty may arise too from the fact that a will has

no legal effect until the testator's death. This may not be

 90.
for some considerable time after its execution, and events
that occur during that time, for example, the birth of children
and the purchase and sale of property, may render interpretation
extremely difficult, raising issues quite unforseeable at the
date of execution.
The influence of these considerations and the operation
of various principles of construction may now be observed
briefly in the context of different types of uncertainty
arising in wills.
3. The Effect of Different Types of Uncertainty
(a) Meaningless provisions
It has already been seen that in contract law a provision
is liable to be declared 'meaningless' only when all attempts
to accord it a meaning have failed, and that the expression
is highly relative. Similarly, in the context of will
interpretation there appear to be few occasions on which the
confusion engendered by a draftsman's lack of skill has
resulted in his provisions being accorded this labt~.

Provisions that may appear insensible at first glance, either

8
through inconsistency and repugnancy, or through the use of
local or private language or. idiom, 9 will generally be explicable

8. See e.g. Re Gare, Filmer v. Carter [1952] Ch. 80, Re Follett,

Barclays Bank Ltd v. Dovell (1954] 1 W.L.R. 1430; (1955]
1 W.L.R. 429 (C.A.); Re Bacharach's Will Trusts, Minden v.
Bacharach [1959] Ch. 245; 'Re Macandrew's Will Trusts,
Stephens v. Barclays Bank Ltd [1964] Ch. 704.
See e.g. Shore v. Wilson, Lady Hewley's Charities (1842)
9 Cl. & Fin. l!55, 8 E.R. 450; Kell v. Charmer (1856)
23 Beav. 195, 53 E.R. 76; and Re-Riyner, Rayner ~Rayner
[1904] 1 Ch. 176.
 91.
10
through extrinsic evidence. Here difficulty in ascertainment
of the subject or object of a gift will not render it void. To
have that effect, one judge has stated, the difficulty must be
so great as to be 'virtually in&apable of resolution•. 11 In
doubtful cases the courts are aided by a number of principles
of constructions and so-called 'presumptions•. Some of these
are listed by Halsbury, 12 who includes the presumption against
intestacy; the presumption of legality and knowledge of the
testator; and the presumption in favour of relatives or persons
having a claim an the testator. Thus where there is no 6~her

indication of the testator's intention, the interpretation of

an uncertain provision that more closely accords with one of
these presumptions will be adopted.
It will be. recalled that in contract law, an expression
that is meaningless can generally be ignored, and the instru-
ment permitted to.stand without it. Similarly with wills,
although the courts have paid lip service to a general rule
that they should give effect to every word used by a testator, 1 3
they have been quite ready to reject words warranted by
~hen

14
the immediate context or general scheme of the will ,. or where

10. See generally Halsbury's Laws of England, 3rd ed. xxxix,

955-973·
11. Re Eden, Dec'd, Ellis v. Crampton [1957] 2 All E.R. 430,
at 433 per Wynn-Perry J.
12. Halsbury 1 s Laws of England, 3rd ed. xxxix, 996-1000.
13. Parker v. Tootal (1865) 11 H.L.C. 143, 11 E.R. 1286;
Re Sanford, Sanford v. Sanford [1901] 1 Ch. 939.
14. See e.g. Haws v. Haws (1747) 3 A-K. 524; 26 E.R. 1102;
Smith v. PSb4) (1'8o'4J 9 ves. 566, 32 E.R.- 722; Sherratt v.
Bentley (1 3 2 My. & K. 149, 39 E.R. 901; Jones v. Price
(1841) 11 Sim. 557, 59 E.R. 988; Pasmore v. Huftgins (1B55)
21 Beav. 103, 52 E.R. 798, Smith v. Crabtree (1 71) 6 Ch.D.
591; Smidmore v. Smidmore (1905) 3 C.L.R. 344.
 92.
itt appears that the words are purely explanatory1 5 or mere
surplusage. 16

(b) Ambiguities

Normally, the presence of ambiguity will not invalidate

provisions of wills. Where a true ambiguity, or 'equivocation'
arises, extrinsic evidence is admissible in order to indicate

which of two equally qualified objects may have been intended

to benefit, or which property fitting the testator's description
was intended as the subject of his gift. Should doubt still
remain, then the court may even receive direct evidence of the
testator's intention. 1 7

In the absence of equivocation, however, the presence of

ambiguity is still regarded as sufficient cause for the

admission of extrinsic evidence, and its role in interpretation

is explained typically in the following terms:

The object of the Court in every case is to ascertain

the intention of the testator as declared by the
words of the will, and for this purpose the Court
is entitled to put itself in the position of the
testator and consider all material facts and circum-
stances known to the testator withreference to

15. See e.g. McLachlan v. Taitt (1860) 2 De G.F. & J. 449,

45 E.R. 695. Hicks v. Sallitt (1854) 3 De G.M. I G. 782,
43 E.R. 307; Re Walton's Estate_ (1856) 8 De G.M. & G. 173,
44 E.R. 356; Re Cory, Dec'd. Co)y v. Morel [1955] 1 W.L.R. 725.
16. See e.g. Monk v. Mawdsle~ (1827 1 Sim. 286, 57 E.R. 584;
Taylor v.Be'Verley (1844 1 Cell. 108, 63 E.R. 342; Craik v.
Lamb (1844) 1 Coll. 489, 63 E.R. 512; Re Kirkbride's Trusts
"[i'8'8'6) L.R. 2 Eq. 400; Giles v. Melsom (1873) L.R. 6 H.L.
2~, at 33; Re Boden, Boden v. Boden [1907] 1 Ch. 132.
17. See e.g. Re Taylor, Baker v. Taylor [1931] N.Z.L.R. 998;
Paykel v. Guardian Trust and Executors Co. of N.Z. Ltd [1963]
N.Z.L.R. 168• 171, Re Jones (dec'd) [1971] N.Z.L.R. 796,
at 8oo.
 93.
which he is to be taken to have used -the words
in the will, and then to declare what is the
intention evidenced by the words used with
reference to those facts and circumstances.l8

'Evidence of surrounding circumstances' is generally

interpreted broadly, and it may be used extensively. An

example is provided by the New Zealand Supreme Court decision

in Re Rooney, Dec'd, Public Trustee v. Rooney19 where a

testator had bequeathed to 'my two grandchildren' the sum of

£20 each. He had fourteen grandchildren, all of whom were
alive both at the date of his will and at his death. In
order to explain what was meant by 'two grandchildren',
Blair J. wa-s prepared to look at evidence of the testator's
children, who all believed that he intended to benefit two
particular grandchildren, Moira and Joan, and that he had

himself expressed such an intention to the Public Trustee's

20
Office when giving tentative instructions for a new will.
Further evidence was available to the effect that these two
children had stayed with the deceased on a number of occasions,
and that in a former will he had provided legacies for them

by name.
Even where extrinsic e~idence is not conclusive as
.-
18. Collins v. Day [1925] N.Z.L.R. 280, at 301, per Sim J.
See, to the same effect, Doe d. Hiscocks v. Hiscocks
(1839) 5 M. & W. 363, at 367; 151 E.R. 154, at 156;
Allgood v. Blake (1873) L.R. 8 Exch. 160, at 162;
Charter v. Charter (1874) L.R. 7 H.L. 364; Perrin v.
Morgan [1943] A.C. 399; Paykel v. Guardian Trust and
Executors Co. of N.Z. Ltd [1963] N.Z.L.R. 168, at 175.
And cf. Re Butchers (1970) 11 D.L.R. (3d) 519, at 521.
19o [1939] N.Z.L.R. 87.
20. This would appear to be direct evidence of intention,
although Blair J. does not appear to have seen this as
an equivocation, op~cit._ 90.
 94.
against one or more possible constructions of an ambiguity,

the courts strive against invalidity by the application of

numerous 'last resort' canons of construction. Thus, where

two or more meanings are possible, the courts will lean against
21
that which is capricious, or would tend to bring about a
22
harsh or whimsical result. They will similarly, applying

the~~ magis principle, lean against a construction that

2
would render the provision invalid. 3 It has even been

suggested that where a will contains an absolute ambiguity

through two inconsistent expressions, and there is no other

way out, the court should simply prefer the first to the
24
second, rather than hold the whole to be void.

The reasoning that has led to the development of these

principles has been aptly expressed in the following manner:

The court is, furthermore, reluctant to hold a

gift ~oid for uncertainty, and adopts the
benevolent rule that if there is ever so little
reason in favour of one construction of an
ambiguous gift more than another, the adoption
of the construction so favoured is at least
nearer the intention of the testator than that
the whole disposition should be void and the
persons entitled on an int~stacy let in.25

21. Thellusson v. Lord Rendlesham (1859) 7 H.L.C. 429, at

498, 11 E.R. 172, at 199.
22. Bathurst v. Errington (1877) 2 App. Cas. 698, at?l4;
Barraclough v. Cooper [1908] 2 Ch. 12ln at 125n.
23. Re Sanford, Sanford v. Sanford [1901] 1 Ch. 939;
Re Mortimer, Gray v. Gray [1905] 2 Ch. 502; · Re Earl
of stamford & Warrington, PaynC v. Jray [1912] 1 Ch.
24. See Re Gare, Filmer v. Carter 1952 Ch. 80, at 83
per Harman J.
25. See Halsbury's Laws of England, 3rd ed. xxix, 1001.
 95-

It is possible that so benevolent an interpretation

may not be granted where it is clear that intestacy will

26
not be the result of a gift failing, or if the failure of

a gift should mean that an otherwise disentitled heir might

inherit. 27 Outside these situations however, a gift will

fail for ambiguity only where it is quite impossible to

suggest one interpretation in preference to another. Seldom,

if ever, will this be the case.

28

(c) Inaccuracies

Inaccuracies occur frequently in wills, and cause a

reasonable amount of difficulty. Not only are they likely

to occur through errors in drafting, but they may also arise

through wills becoming out of date. Thus a description by

a testator of his property, or of a class of beneficiaries,

may no longer be accurate at the time of his death. Because

of the prevalence of inaccuracies, however, a number of

principles have developed for their construction, and these

may now be summarised briefly.

First it is clear that where a testator names a particular

26, See e.g. Blundell v. Gladstone (1844) 14 Sim. 83; 6o

E.R. 288.
27 • See e.g. Richardson v. Watson (1833) 4 B. & Ad. 787,
. 110 E.R. 652. .
28. But see Asten v. Asten [1894] 3 Ch. 260, where individual
gifts of four houses, each described simply as 'No. ,
Sudeley Place' failed, since the Court was quite unable
to determine which house was intended to pass to which
beneficiary.
 96.
property 29 or beneficiary30 accurately, there will be a very
heavy burden on he who seeks to demonstrate that something
else was intended. The strictness of this rule may be
illustrated by reference to the House of Lords decision in
National Society for the Prevention of Cruelty to Children v.
Scottish National Society for the Prevention of Cruelty to
Children. 31 There, a Scotsman who had lived all his life in
Scotland, left a gift to 'the National Society for the
Prevention of Cruelty to Children'. All the interests of
the testator were Scottish; the legacy was placed in the
midst of a series of legacies to Scottish charities, and the
Scottish National Society had recently been brought to the
testator's attention. It was held nevertheles~ that the
society that the testator had correctly named, whose head-
quarters were in London and ~operations did not extend
to Scotland, was entitled to the gift. The 'moral feeling'
of Lord Dunedin3 2 that the money was to go to a society that
the testator did not intend, was insufficient to rebut the

29. See e.g. Re Tetsall, Fo~ster v. Tetsell [1961] 1 W.L.R.

938; Re Butchers (19?0 11 D.L.R. (3d) 519 (Ont. High Ct)
but note that daia4:i.ati2:6ules on extrinsic evidence may
be stricter than in England: ibid., 526, and see
Re Zurowski [1928J 1 D.L.R. 35?.
30. National Society for the Prevention of Cruelty to
v. Scottish National Societ for the Prevention of C~uelt
to Children 1915 A.C. 20?; Robertson v. FCynn 1920
1-I.R. ?B; Re Hurring, Davidson v. Hurring 1950]
N.Z.L·.R. 948.
31. [1915] A.C. 20?.
32. ~., 214.
 97.
'strong presumption against any rival who is not the
possessor of the name mentioned in the will.'33

Where, however, the words used fail to fit any person

or property with accuracy, the court may have regard to

extrinsic evidence to ascertain what was intended. Frequently

it is evidence to show that the testator had on other

occasions used the words in question to designate some person

or object to which the words do not properly refer.3 4

One principle of construction that has received frequent

attention in this context is the rule, falsa demonstratio non

nocet cum de corpore constat, normally shortened to falsa
demonstratio. The rule provides that where the description
of a person or object is made up of two or more parts, and

one part is true and the other false, then if the part that
is true describes the person or object with sufficient certainty,
the untrue part may be rejected and will not vitiate the gift.35

The New Zealand case of Re Nathan, Nathan v. Hewitt 36 provides

33. Ibid., 212, per Earl Loreburn L.C. See, for criticism of
thiS decision, z. Chafee, 'The Disorderly Conduct of
Words' (1941) 41 Columbia L.R. 381, at 385: ' ••• the
law lords clung to the notion that the Scottish Society
had only one name, which the testator must use to reach
that society, just as Ali Baba couldn't open the door
without saying "Open Sesame".' ·
34. See e.·g. Re Ofner, Samuel v. Ofner [1909] 1 Ch. 60
(instructions for will admissible); Re Nesbitt,
Dr Barnardo's Homes v. United Newcastle-u on-T ne Hos
[1953] 1 W.L.R. 595; Re Tetsall, Foyster v. Tetsall
1 W.L.R. 938, at 940.
35. See Williams on Wills 3rd ed. (1967) 421.
36. [1933] N.Z.L.R. s.l41; and see also Bould v. Noore (1902)
4 G.L.R. 482; Re Dilworth, McMurray v. Dilworth (1902)
22 N.Z.L.R. 125; Re Thomas, Smith v. Thomas (1915) 34
 98.
an illustration of the operation of the maxim. There, the
testator erroneously described in his will an insurance policy

on the life of his grandchild that he had later replaced by

a more beneficial one. The court was able to reject the false

description and require the trustees to keep the later policy

in fo:r;ce"¢

Inaccurate descriptions may arise through a change of

circu~stances between the date of the will and the testator's
death. A person or object who once satisfied the description

may no longer exist. For example, a testator left a gift to

the ~unedin Volunteers but that group had since been transferred
to the Territorial Force. It was held that the gift was

good, 37 since all that had occurred was a mere change in name.
Had, however, the body come to participate in compulsory
military training, the giftwould have failed, for no longer
could it be regarded as falling within the testator's
. t•1.on. 38
d escrl.p

It is clear then, that mere inaccuracies in wills are

not generally sufficient to defeat the attempts of the courts
to arrive at the true intention of the testator, and that
where the courts are satisfied that the intention was other

36. Cont.
N.Z.L.R. 1110; Western v. Western [1916] N.Z.L.R. 195;
Re Deacon, Kinloch v. Brigham [1921] N.Z.L.R. 659;
Re Hall, Andrews v~ Wiffen [1931] N.Z.L.R. 283, Re
McAnnalley, McAnnalley v. Public Trustee [1935] N:z.L.R.
s.1o6.
37. Re Andrews, Mayor etc. of Dunedin v. Smyth (1910) 30
N.Z.L.R. 43.
38 .. See also Re Donald, Moore v. Somerset [1909] 2 Ch. 410
Re Dawson's Will Trusts, National Provincial Bank Ltd v.
National Council of Y.M.C.A. Inc. [1957] 1 W.L.R. 391.
 99.
than is revealed by the words used, they will strive to

give effect to it.

(d) Omissions

It is convenient to regard omissions, like ambiguities,

as falling into two categories, latent and patent. A patent

omission is one that appears on the fac$. of the will, where

for example, the subject or object of a gift is left blank.39

Unless there is some other indication on the fac~ of the will

as to the" testator's intention, 40 the courts will decline to

entertain extrinsic evidence for the purpose of identification.

The function of the courts in this situation is the

interpolation .of words into the testator's will, so

that it is not surprising that their approach is cautious,

and similar to that adopted when implying terms into

co.ntracts. This caution is particularly apparent when an

omission is not altogether clear from the face of the will,

but is 'latent'. The court must be able, it has been stated,

to 'collect from the four corners of the document that

someth±ng has been omitted and, further, collect with

39. See e.g. Baylis v. Attorney General (1741) 2 Atk. 239,

26 E.R. 548; Hunt v. ~ (1791) 3 Bro. C.C. 311,
. 29 E.R. 554.
40. For example, a legacy to 'Percival ••••••••••••• of
Brighton' has been held to provide sufficient basis
for the admission of extrinsic evidence; In the
goods of De Rosaz (1877) 2 .P .D. 66. See also, ~. .
Messenger's Estate [1937] 3 All E.R. 355, and~
Stevens dec'd., Pateman v. James [1952] 1 Ch.323.
 100.
. . t
su ff ~c~en . .
prec~s~on,
th e na t ure o f th e . .
om~ss~on.
,4l

Resort may be had to extrinsic evidence, although evidence

that words were omitted by mistake in the drafting or
engrossmen t o f a w~"11 ~s
. genera11 y ~na . "bl e. 42
. dm~ss~
4
In Re Lourie 3 a testatrix had devised, 'the rest and
residue of my personal property' but omitted any provision
as to the disposal of her realty. It was submitted for the
beneficiaries that the words 'real and' had been omitted
from the will in error, a submission that Tompkins J. was
prepared to uphold, finding it reasonably certain from a
reading of the will that these words had been inadvertantly
44
omitted.
Where the omission is wholly latent however, as was the
alleged omission of the word 'Scottish' in the Society for
Prevention of Cruelty case 45 discussed above, only in

41. In Re Whitrick dec'd., Sutcliffe v. Sutcliffe [1957] 1 W.L.R.

884, at887 per Jenkins L.J. See also Re Smith [1948]
Ch. 49, and cf. Re Follett, Barclay's Bank v. Dovell [1955]
1 W.L.R. 429; Re Macandrew'~ Will Trusts, Stephens v.
Barclay's Bank Ltd [1964] 1 Ch. 704, at 714 per Ungoed-
Thomas J. in Re Thurlow, Riddick v. Kennard [1971] 3 W.L.R.
811, at 815-816. A document may also be incorporated by
reference into a will, and so long as it is clearly
identifiable, the courts will take cognizance of it -
see e.g. Singleton v. Tomlinson (1878) 3 App. Cas. 404,
Re Deprez, Hen:iques v. Deprez [1917] 1 Ch. 24. Only
when identification is not possible need the failure to
physically incorporate the document render the will void
for uncertainty.
42. Tatham v. Huxtable (1950) 81 C.L.R. 639, 651 at per Kitto J.,
645 per Latham C.J.; Re Lourie (Deed) [1968] N.Z.L.R. 541.
43. [1968] N.Z.L.R. 541.
44. Ibid., 546, and see also Re Campbell, Campbell v. Potter .
[1924] N.Z.L.R. 1021, at 1023; where words were interpoitt~d
when a literal reading would otherwise have resulted in
absurdity.
45. [1915] A.C. 207.
 101.
extraordinary circumstances will it be possible to convince

a court that the testator's intention was other than appears

from the plain words he has used.

(e) Delegation and reservation

Testators clearly cannot reser~e any discretion to them-

selves under their wills but many attempt to leave to some
other person the power to direct where their bounty should go.
Most commonly this is done by providing a power of appointment,
or a wide power of selection to trustees. The attitude of

the courts to the latter type of provision is considared in

the following chapter, but the power of appointment calls for
further attention here •.

The courts have often held that the power to make a will
conferrea by the Wills Act 1837 46 to 3 devise, ~equeath, Gr
dispose of' property by a duly executed will is a personal
power. 47 As such, it cannot be exercised by a will merely

purporting to delegate to another person the distribution

of the testator's estate, and the ascertainment of the objects
of his bounty. There are possible exceptions. It has been

said that where there is a general power which the donee may

exercise forbis own benefit., it may simply be regarded as

equivalent to property. 48 Again, for reasons considered later,

46. Section 3. (Reprinted (1968] N.Z. Statutes Vol.4, at

3377.)
47. See e.g. Houston v. Burns [1918] A.C. 342, at 343;
Re Hughes, Hughes v. Footner (1921] 2 Ch. 208, at 212.
48. See e.g. Re McEwan, McEwan v. Day [1955] N.Z.L.R. 575,
at 581.
 102.
a power of distribution amongst charities will never fail. 4 9
There is also the case where a testator indicates with
sufficient certainty the class of beneficiaries from which
the selection is to be made. Since the delegation here will
not be total, it is more likely to be upheld.50

Early rulings against powers appear always to have been

on the grounds of uncertainty, rather.than for delegation
alone. 51 One writer has stated of the early decisions:
In most cases of this kind it is questionable
whether there was any uncertainty in the wills,
judging by the tests of certainty generally
applied in the cases on powers. But the cour·ts
evidently felt that the"testators should not be
allowed to go this far, and since this was before
objections had been conceived to delegation per ~'
the courts could.lay hold of no better ground than
uncertainty for ruling against the wills.52

See e.g. Re Clarke, Brace~ v. Royal National Lifeboai

Institution [1923] 2 Ch.07; Chichester Diocesan Fund
& Board of Finance (Inc.) v. Simpson [1944] A.C. 341, at
371.
50. See e.g. Houston v. Burns [1918] A.C. 342, at 345;
Tatham v. Huxtable (1950) 81 C.L.R. 639, at 649, and
at' 653; Lutheran Church of Australia South Australian
District Inc. v. Farmers Co-operative Executors and
Trustees Ltd (1970) 44 A.L.J.R. 176.
51. See e.g. Yeap Cheah Neo v. Ong Cheng Neo (18'fi5) L.R. 6 P.C.
381; Fenton v. Nevin (1893) 31 L.R. Ir. 478; Blair v.
Duncan [1902] A.C. 37; Grimond (or Macintyre) v. Grimond
[1905] A.C. 124; Houston v. Burns [1918] A~C. 337;
Attorney General v. National Provincial Bank [1924]
A.C. 262; Chichester Diocesan Fund and Board of Finance
(Ims;) v. Simpson [1944] A.C. 341.
52. D. M. Gordon,, 'Delegation of Will Making Power' (1953)
69 L.Q.R. 334, at 335; cited by Gresson J. in Re McEwen,
McEwen v. Day [1955] N.Z.L.R. 575, at 578; and by
Windeyer J. in Lutheran Church of Australia South
Australian District Inc. v. Farmers Co-operative Executors
& Trustees Ltd (1970) 44 A.L.J .R. 176, at .186~
 103.
The true role of uncertainty in relation to delegation
of will making power was considered in this country by
Gresson J. in Re McEwan, MeEwan v. Day?3 After a careful
study of the authorities his Honour concluded that a power
of appointment could be held valid upon either of two grounds;
first, if the class of persons or objects to be benefitted
were indicated with sufficient particularity,5 4 and second,
if it were a general power and therefore equivalent to
property. 55
But how certain need be the class of persons or objects
to be benefitted? Harman J. in Re Gestetner Settlement56
indicated that different considerations might apply according
to whether the power is a mere power, or whether it is
coupled with or in the nature of, a trust. That decision

together with the decision of the English Court of Appeal in

I.R.C. v. Broadway Cottages Trust57 established that a power

would be valid if it were possible from the terms of the

instrument and the surrounding circ.umstances to predict w:fu:Dh
reasonable certainty whether any given individual was an
object of the power or not. It would not be necessary, as
it was in the case of trust powers, to be able to ascertain

53· [1955] N.z ••• R. 575, at 581-582.

54. Referring to Re Ogden, Brydon v. Samuel [1953] Ch. 678;
Re Park, Public Trustee v. Armstrong [1932] l Ch. 580;
Re Jones, Public Trustee v.·Jones [1945] Ch. 105.
55. Referring to Re Ch·urston ..Settled Estates [1954] l Ch. 334,
at 344.
56. [1953] Ch. 672, at 687.
57- [1955] Ch., 20.
 104.
the whole class of beneficiaries.

In the years that followed these decisions, the validity

of a number of powers was determined in the courts according
to this fine and difficult distinction between trust powers
and mere powers, 5 ~ until its eventual rejection iri 1970 by
the House of Lords. 59 For mere powers, however, the test of
Gestetner was confirmed by the House of Lords in 1968,60
where it was emphasised that even if the terms of a power
were so vague that its every exercise required an application
to the court to ensure that it was within its terms, it would
still be valid provided there was sufficient information
61
available to the court to make a decision. These cases
receive further consideration in the following chapter.
It would a;ppear however, that even where .the class of
objects to be benefitted is sufficiently defined, a power
62
may still fail for uncertainty. In Re Stapleton Deceased

58. See e.g. Re Coates, dec'd Ramsden v. Coates [1955] Ch.495;

Re Gresham's Settlement [1956] 1 W.L.R. 573, Re Sayer,
McGregor v. Safer [1957] Ch. 423; Re Eden de~'d, Ellis v.
Crampton [1957 1 W.L.R. 788; Re Hain's Settlement [1961]
1 W.L.R. 440; Re Saxone Shoe Co. Ltd's Trust Deed [1962];
Re Gibbard's Will Trusts [1967] l W.L.R. 42, Re Leek
[1969] 1 Ch. 563; Re Wootton (dec'd) [1968] 1 W.L.R. 681.
59· Re Baden's Deed Trusts [1971] A.C. 424; sub. nom.
McPhail v. Doulton [1970] 2 All E.R. 228.--- ---
6o. In Re Gulbenkian's Settlements [1970] A.C. 508.
61. Ibid., 51B-519, 520, 523, 526. And see J. W. Harris,
'TrUst, Power and Duty' (1971) 87 L.Q.R. 31.
62. [1969] S.A.S.R. 115.
 105.
Bray C.J. in the South Australia Supreme Court was asked to

pronounce on the validity of a clause in a holograph will

that provided:

My trustees have discretionary power to transfer

any mortgages, and property, and shares in Companies
invested in my name to the Lutheran Mission
20 Marlborough Street St Peters, S.A. for building
Homes for Aged Blind Pensioners after all expenses
paid •••

Bray C.J. saw a conflict between the conferment of

'discretionary power' and the fact that only one beneficiary
was named, and concluded that the testatrix had conferred

on her trustees the right to use the assets in more than one
way, but had specified only one of the alternatives. 63 The

clause therefore, failed for uncertainty.

An appeal from that judgement to the High Court of

Australia, in Lutheran Church of Australia v. Farmers'

Co-operative Executors and Trustees Ltd

64 failed, the four

members of the Court being divided equally in their opinions.

McTiernan and Menzies JJ. in a joint judgement were of the

opinion that the clause simply left it to the trustees to
decide whether or not to constitute a trust in favour of a
named charity, and that as such it amounted to too great a

delegation of will making power. 65 But Barwick C.J., on

the other hand, was firmly of the view that there was in fact

no uncertainty at all - the identity of the repository of

63. Ibid., 125-126.

64. (1970) 44 A.L.J.R. 176.
65. Ibid., 183.
 106.
the power, the property over which it extended and the

object of the power were all quite clear. He was of opinion

that a bare power to appoint amongst a class, no member of

which derived a beneficial interest under the will in the

property that was the subject matter of the power, would be

a valid 'disposition' for the purposes of the Wills Act.

Why then, he reasoned, should a discretionary power to appoint

. any worse case. 66
t o a name d person b e 1n H"1s Honour appears

also to have regarded the c~aritable nature of the gift as of

some consequence, at least in increasing the court's vigilance

and also probably in narrowing the area of considerations that

the trustee could properly entertain in deciding whether or

not to exercise the power. 67 Windeyer J. too considered

the power to be valid, stating that a power to apply property

to a specified charity, or to select among charities generally,

could ne~er be invalid for uncertainty,
68 and that it was

too late for a court now to declare a power of appointment

invalid solely as an attempted delegation of testamentary

power, amounting perhaps to an actual charitable trust. 69

The effect of the decision is unclear. McTiernan and

Menzies JJ. appear to have regarded it as sufficient to

66. Ibid., 179-180.

67. Ibid., 181.
68. Ibid., 187, relying on Smith v. West Australian Trustee
Executor & Agency Co. Ltd (1950) 81 C.L.R. 320.
69. Ibid., 188.
 107.
invalidate the provision that it purported to delegate

testamentary powers, although also apparently finding

uncertainty arising from the fact that no alternative object

had been specified in the event of the trustees failing to

exercise the power. 70 It is respectfully submitted, however,

that the view of Barwick C.J. that there was no uncertainty

in the power is preferable. It is clearly inducive of a

result far nearer to the intention of the testatrix.

In summary, it may be asserted that the role of certainty

in the context of validity of powers is this: in order for

a power that is neither charitable nor general to be valid

itcmust, according to Gulbenkian's case, define the class of

objects amongst which selection is to be made with sufficient

clarity for a court to be able to determine in any particular

case whether a given object will fall outside or within that

class. 71

(f) Vagueness

The majority of cases in which gifts have been held

bad for vagueness have involved high order abstractions that

necessarily require some person to make a choice to render

70. Ibid., 183.

71. Bray C.J.'s judgement in Stapleton might be considered
as being based on this ground, to the extent that he
suspected from the use of the words 'discretionary
power&, that the class intended to be described by
the testatrix was wider than th~t actually defined,
that there had therefore been an omission that he was
unable to rectify, and.that accordingly the provision
failed for uncertainty.
 108.
the gift certain, but which fail to specify any such person.

Thus, gifts to 'twenty of the poorest of the testator's

kindred• 72 and to 'the senior members of the cafeteria staff'73

have both failed for uncertainty. Had each been worded in

the form of a power with a specified repository of the power,

then, provided the class was sufficiently certain, it need

. 74
not have failed.

But it is comparatively seldom that mere vagueness will

deter the courts' ambition to accord effect to the testator's

intention. Extrinsic evidence is admissible to add meaning

to the testator's vague expression, since in this context

words that have no 'plain meaning• 75 are then regarded as

'ambiguous•. 76 Where the testator employs the description

of 'reasonableness' the courts may be prepared to uphold the

gift even although no person is nominated by the testator

to select what is 'reasonable', since such an assessment is,

given a knowik.edge and experience of similar cases, an

objective task which the courts themselves are able to

72. Webb's case (1607) 1 Rolle. Abr. 609.

73· Re Wolff, Thornthwaite & Goldby v. David (1958) 16
D.L.R. (2d) 527; relying on Re Scarborough's Will Trusts
(1958) The Times March 22, 1958, p.~ See also Doe d. Smith
v. Fleming (1835) 2 C.M. & R. 638; 150 E.R. 271; gift
to 'the younger branches of the family of A.'
74. See e.g. Re Ogden, Br~don v. Samuel [1933] Ch,678 and
Brosseau v. Dore (190 ) 35 S.C.R. 205.
75· See e.g. Re Mahllpuku, Thompson v. Mahupuku [1932] N.Z.L.R.
1'97; 'unmarried'; Re Goldie, Goldie v. Goldie [1952]
N.Z.L.R. 928: 'next of kin•.
76. See e.g. Re Follett, Barclay's Bank v. Dovell [1955] 1
W.L.R. 429, Pa!kel v. Guardian Trust & Executors Co. of
N.Z. Ltd [1963 N.Z.L.R. 168, Re Macandrew's Will Trusts
[1964] Ch. 704.
 109.
perform.77

Descriptions of the subject matter of gifts that have

proved too vague to be enforced by the. courts include 1 some

of my best linen•, 78 'a handsome gratuity 1 ,79 and 'a small

portion of what is left•. 80 In each case the subject matter

was capable of substantially more precise definition by the

testator, in the absence of which ascertainment by the Court

could be no more than speculation. The extent of the gift

may be ascertainable from the extent of the purpose it is

designated to fulfill, however1 thus a gift of enough money

'as shall be necessary to endow a bed' at a hospital has been

81
held sufficiently cer.tain.
4. Exceptions to the General Rule

It is clear that the determination of the courts to

prevent wills failing for uncertainty is, if anything, even

greater than in the case of contracts, although there is still

a reluctance to make the testator's will for him. There are

however, exceptions. Where the gift is of a charitable nature,

for example, no matter how vague it may be the courts will

77. See e.g. Be Golay's Will Trusts [1965] 1 W.L.R. 969;

Talbot v. Talbot [1968] Ch. 1.
78. Peck ~· Halsey (1726) 2 P. Wms. 387; 24 E.R. 780.
79. Jubber v. Jubber (1839) 9 Sim. 503; 59 E.R. 452.
8o. White v. White (1908) 28 N.Z.D.R. 129; cf. Flint v.
Hughes (1843) 6 Beav. 342, 49 E.R. 858.
81. Re Mills, Midland Bank Executor and Trust Co. Ltd v.
United Birmingham Hospitals Board of Governors (1953]
1 W.L.R. 554.
 110.
uphold it by application of the cy-pres doctrine. 82 This

doctrine is considered in more detail in the following

chapter. An exception in the other direction arises in the

case of conditions subsequent - conditions wh~~~ operation

would result in forfeiture of the gift. Here, the courts

,··
have insisted upon a high degree of certainty because of the

harsh effect such a condition might have. These conditions

too are studied in the following chapter, since although they

are frequently attached to gifts under wills, the task of

ensuring compliance is normally placed in the hands of

trustees.

5. Conclusions

The courts have, particularly in recent years, tended to

take a very liberal attitude towards will interpretation,

although they have from time to time introduced and relied on

a number of technical, and often misleading, rules of

construction in order to assist in arriving at the testator's

intention. It is possible that future interpretative processes

may reflect greater confidence in arriving at the testator's

intention without resorting to techn.ical rules in justification.

LDrd D•nning M.R. stated recently;

In construing this will, we have to look at it as the

testator did, sitting in his armchair, with all the
circumstances known to him at the time. Then we have
to ask ourselves, 'What did he intend?' We ought not
to answer this question by reference to any technical
rules of law. Those technical rules have only too

82. See e.g. Re Campbell, Peacock v. Ewen [1930] N.Z.L.R. 713;

Re Lushington, Wynard v. Attorney:General [1963]
N.Z.L.R. 313.
 111.
often led the courts astray in the construction
of wills. Eschewing technical rules, we look
to see simply what the testator intended.83

Only when it is quite impossible to gather what the

testator intended, only when the gleaning of his intention

becomes something less than an informed guess, will the courts

hold a testator's directions void for uncertainty.

Re Jebb, Ward-Smith v. Jebb [1966] Ch. 666, at 672.

Callan J. in Re McAnnalleY7 McAnnalley v. Public Trustee
[1935] N.Z.L.R. s.1o6, atslO?, queries the appropriateness
of the •testators armehair' metaphor where, as in that
case, a will is made on the deathbed.
 CHAPTER FIVE

TRUSTS
1. Introduction

The trust is a complex legal concept, which has been

defined in a number of different ways. 1 One definition that

has received judicial acceptance 2 and may be of assistance in
the present study is·that of Sir Arthur Underhill:

A trust is an equitable obligation, binding a

person (who is called a trust~e) to deal with
proper'l;y over which h~ has cgn_trol (whicll il3
called the trust property) for the benefit of
persons (who are called beneficiaries, or
cestuis ~ trust) of whom he may himself be
one, and an~ one of whom may enforce the
obligation.3

The obligations of trustees and of executors of wills

are similar in many ways. Both are subject generally to the
provisions of the Trustee Act 1956, and frequently executors
are also appointed trustees. But there are a number of
distinctions. Two of the most significant are first, that

the duties of an executor are generally to distribute

property, while those of a trustee are to hold it and apply

it as directed. Second, those persons entitled to receive

under a will, unlike trust beneficiaries, have no beneficial

interest in the property, but merely the right to compel the

due administration of the ~state.

1. See e.g. Lewin on Trusts 16th ed. (1904) 3-4; Garrow and
Henderson's Law of Trusts and Trustees 3rd ed. (1966) 1,
7-9; Parker and Mellowes, The Modern Law of Trusts (1966)
5-7; Scott on Trusts 3rd ed. (1967) Vol. 1; 35-53·
2. By Cohen J. in Re Marshall's Will Trusts [1945] Ch._ 217,
at 219; and by Romer L.• J. in Green v. Russell [1959]
2 Q.B. 226, at 241.
Underhill's Law of Trusts and Trustees 11th ed. (1959) 3.
 113.
In many ways, however, the effect of the two instruments

is similar, and the jurisdiction exerted over both from an

early time by the Courts of Equity has meant that the

historical distinction between executor and trustee is now

4
rather blurred. Interpretation of the two instruments by

the courts follows similar patterns, so that in trusts, as

in wills, uncertainty arising from ambiguities, omissions and

inaccuracies is generally resolved through resort to extrinsic

evidence and other interpretative techniques. No attempt will

be made in this chapter to study specifically the resolution

of those forms of uncertainty in trusts. Of greater significance

is the attitude of the courts to what is frequently called the

'three certainties' that are sometimes asserted to be essential

to the validity of a trust. Also of relevance are those

provisions in trusts where the courts have insisted upon a

higher degree of certainty than is usual in legal instruments,

and the considerations which induce the courts to construe

trusts benevolently on occasion with a view to upholding them

despite the p~esence of a high degree of uncertainty.

The requirement of certainty in three specific areas in

trusts is generally regarded as flowing from the speech of

Lord Langdale in Knight v. Knight.5 There must be certainty

as to the intention to create a trust, certainty as to the

4. See Snell's Principles of Equity 26th ed. by R. E. Megarry

and P. v. Baker (1966) 107.
5. (1840) 3 Beav. 148, at 172; 49 E.R. 58, at 68.
 114.
subject matter of the trust, and certainty as to its objects.
The first certainty, that of intention, is similar to that
already discussed in contract law, but its unusual history
qualifies it for further consideration here.
2. Formation of Trusts

Difficulty has occasionally arisen in determining whether

or not a given provision was intended to create a trust.
Although the courts insist upon no specia~ formula for their
creation, 6 most trusts are set up by will or by formal deed
in which the words 'on trust' or some similar phrase is used.7
In theabsence of such wording, it may be uncertain whether or
not a trust obligation was intended. For example, the language
used may be merely precatory - in the nature of a recommendation
or request that a person employ specific property in a particular
way.
The early cases show that the courts tended to treat such
expressions as imposing definite trust obligations, 8 but by 1870
their attitude had clearly changed. In that year, Sir Richard
Malins in Lambe v. Eames 9 declined to imply such an obligation

Solicitor-General v. Wanganui Borough [1919] N.Z.L.R. 763;

Belton v. C.I.R. [1959] N.Z.L.R. 1372.
The words 'on trust' in a dispqsition are not necessarily
conclusive as to the existe.nce of a trust, however: see
e.g. Hunter v. Public Trustee [1924] N.Z.L.R. 882, Re Foord,
Foord v. Condor [1922] 2 Ch. 519.
8. S.ee e.g. Harding v. ~l~n (1739) 1 Atk. 469, 26 E.R. 299;
Harland v. Trigg (17 2 1 Bro. c.c. 142; 28 E.R. 1041;
Malim v. Keighley (1795) 2 Ves. 529, 30 E.R. 760; Pierson
v. Garnet (1786) 2 Bro. C.C. 38; 29 E.R. 20; Wright v.
AtkKna (1810) 17 Ves. 255; 34 E.R. 98; Knight v. Knight
(18 O) 3 Beav. 148; 49 E.R. 58; GullY v. Cregoe (1857)
24 Beav. 185, 53 E.R. 327; Le Marchant v. Le Marchant
(1874) L.R. 18 Eq. 414.
(1870) L.R. 10 Eq. 267.
 115.
where a testator had left property to his wife 'to be at

her disposal in any way she may think best for the benefit of
herself and familliy'. Instead, from the words of the will as
a whole, he implied it was the intention of the testator to

leave the property at the uncontrolled disposal of his wife.

Affirming that decision, James L.J. in the Court of Appeal
stated of the earlier cases:

••• I could not help feeling that the officious

kindness of the Court of Chancery in interposing
trusts where in many c-ases the father of the
family never meant to create trusts, must have
been a very cruel kindness indeed.l0

Since Lambe v. Eames the courts have been reluctant to

imply the existance of a trust where the language used is
precatory rather than mandatory, and it is clear that they

will do so only where it is indicated from the whole instru-

ment that a trust was intended. 11 What the change of attitude
in fact signified was that the courts were prepared now to

look more closely at the intention of the author of the

instrument as demonstrated by the words he had used, rather

10. (1871) 6 Ch. App. 597, at 599.

11. Trusts have been negatived in, Mussoorie Bank v. Raynor
(1882) 7 App. Cas. 321; Re Adams and the Kensin ton Vestr
(1883) 27 Ch.D. 394; Rodger v. Rodger 1 93 12 N.Z.L.R.
392; Re Hamilton, Williams v. Williams [1897] 2 Ch. 12;
Hill v. ~ [1897] 1 Q.B. 483; Re Connolly, Connolly v.
Connolly [1910] 1 Ch. 219; Re Cullen, Cullen v. Cullen
[1921J N.Z.L.R. 204; Re Kenny, Read v. Isaacs [1921]
N.Z.L.R. 537; Re Taylor, Taylor v. Thomson [1927]
N.Z.L.R. 236; Re Johnson, Public Trustee v. Calvert [1939]
2 All E.R. 458; Re Stirling (1954] 1 W.L.R. 763;
Re Burton, Public Trustee v. Burton [1965] N.Z.L.R. 712.
Trusts have been upheld in: Re Burley [1910] 1 Ch. 215,
.Re Blackwood [1953] N.I. 32.
 116.-

than as dictated by legal precedent. One possible exception

to this principle is afforded by the decision of Wynn-Parry J.

12
in Re·Steele's Will Trusts where he held that where a

particular form of wording had been held in the past to

create a trust, its use today would have a similar effect,

even though the previous decision was before 1870.

3. Uncertainty of Subject Matter and Objects

Uncertainty arising from vagueness or from exeessive dele-

gation to trustees is the chief source of difficulty in trusts.

Now the very creation of a trust, of course, involves that

the settlor is delegating to some other person or persons the

right to deal with the legal interest in his property

according to the guidelines he has set. What the courts

have insisted on is that these guidelines be sufficiently

definite to ensure that the trustees work largely in an

administrative capacity. One of the essential features of

a trust is the ability of the beneficiaries to enforce its

terms through court action. The greater the discretion

vested in the trustees as to the manner of distribution of

the trust property, the more difficult becomes the task of

enforcement. Again, the greater the vagueness in the

definition of the trustee's duties, the more difficult it

may be for him to determine whether or not some proposed

action might be in breach of trust.

12. [1948] Ch. 603.

 117.
Insistence that the property or subject matter of a

trust be adequ~tely defined has long been a significant

feature of the courts' attitude to the validity of trusts.

In a number of cases the definition of the trust property has

been so vague as to suggest strongly that no trust was

intended. Examples include 'the remaining part of what is

left•, 13 and 'to give what shall remain at her death• 14

after an otherwise absolute gift. 15 Vagueness in directing

the manner of investment of the trust property, as for

example where a settlor directed that proceeds of sale be

invested in 'stocks shares and convertible debentures in

the 1'blue chip" category•

16 need not invalidate the trust,

however, although it may cause the direction itself to

be void for uncertainty unless any necessary subjective

determination is left specifically to the trustees. 1 7 In

other cases, the trust property has been either undefined,

18

or described in such indefinite terms that its ascertainment

13. Sprange v. Barnard (1789) 2 Bro. c.c. 585, 29 E.R. 320.

14. Parnall v. Parnall (1878) 9 Ch.D. 96.
15. See also Re Bond, Cole v. Hawes (1876) 4 Ch.D. 238: 'to
do justice to those-relations on my side such as she think
worthy of remuneration but under no restriction to any
stated property'; Stead v. Mellor (1877) 5 ·ch.D. 225,
'shall distribute such residue as they think will be mo$
agreeable to my wishes'; and see: Rodger v. Rodger (1893)
12 N.Z.L.R. 392; Re Jacob (1897) 16 N.Z.L.R. 52i
Re Elder, Elder v. Hercus (1896) 14 N.Z.L.R. 565; Re Cate,
[1923] N.Z.L.R. 419, Re Burton, Public Trustee v. Burton
[1965] N.Z.L.R. 712.
16. Re Kolb's Will Trusts [1962] Ch. 531.
17. Ibid., 539, per Cross J.
18. see-e.g. Bardswell v. Bardswell (1838) 9 Sim. 319,
59 E.R. 381.
 118.
by objective means is not possible. 1 9

Greater difficulty, how~ver, is caused by uncertainty

in the objects of trusts. Frequently, testators and settlors

are unclear in their own minds as to the objects they wish

to benefit. Consequently, they employ vague descriptions

of the class of beneficiaries entitled. There are a number

of cases where an intention to benefit relatives or family

is clear, but it_ is not clear how far the class was intended
to extend.
20 Unless the uncertainty is capable of

resolution the trust will fail.

Alternatively, the settlor may be quite clear as to the

beneficiary he intends to benefit, but is reluctant to reveal

his name. Consequently, he may elect to create a half

secret trust. If the beneficiary's identity is not disclosed
to the trustee in time, the trust will fail for uncertainty. 21

The third and most significant situation arises from

the desire of s'ettlors and testators to retain some degree

of flexibility in choesing who shall benefit under a trust,

in order to cope with changing circumstances. Most

19. E.g. 'the bulk of my residiary estate': Palmer v.

Simmonds (1854) 2 Drew 221, 61 E.R. 704; but cf.
Bromley v. Tyron [1952] A.C. 265.
20o See e.g. Wright v. Atkyns (1823) Turn C.R. 143; 37
E.R. 1051; Grant v. ZyBam (1828) 4 Russ. 292, 38
E.R. 815; Re Cundy, 1 99) 18 N.Z.L.R. 53 ('family');
and see also Sale v. Moore (1827) 1 Sim. 534, 57 E.R.
678 ('near relations•); andRe Bond,~ v. Hawes
(1876) 4 Ch.D. 238. ('those relations on my side').
21o Re Hetley, Hetley v. Hetley [1902] 2 Ch. 866.
 119.
frequently, this flexibility is sought by empowering the

trustees to exercise a very wide discretion in choosing which

members of a large class should benefit. The attitude of

the courts with regard to delegation of testamentary power

in this way has already received attention. Where, however,

the trustees are given something more than a mere power to

appoint - where they are under a duty to do so, - different

considerations apply.

One form of delegation arises when trustees are directed

to divide a fund or its income equally between members of a

class. Now in this situation, it is said, the class must

be clearly defined, so that every member of it is ascertain-

able. This is because equal division is oth~rwise impossible. 22

The Court of Chancery, which acts in default of the trustees,

must know with certainty the objects of the bounty so that

it can execute the trust.

But where the settlor or testator does not direct equal

division, but. gives instead a power of selection among a

class, should the court demand a similar degree of certainty?

Harman J. in Re Gestetner Settlement, 23 and the Court

of ~eal in Inland Revenue Commissioners v. Broadway Cottages

Trusts 24 thought that it should, but that different

22. See Re Gulbenkian's Settlements, Whishaw v. Stephens

[1970] A.C. 508, at 524 per Lord Upjohn•
23. [1953] Ch. 672.
24. [1955] Ch. 20.
 120.
considerations ought to prevail where there was no more

than a 'mere' or 'bare' power. In that situation, no duty

exists to exercise the power, and the manner of its exercise

cannot be controlled by the court - it is a mere power to

distribute with a gift over in default. Thus, it might be
distinguished from the situation where there is a trust to

distribute among the class defined by th~ donor, with merely

a power of selection within that class. 25

From those two decisions arose the principle that while

for a mere power all that was required was that it be
possible to say of any person whether or not he fell within

the class, a greater degree of certainty would be necessary

for a trust power, that is, that every member of the class
should be ascertainable. But these principles involved

that the validity of a number of trusts hinged upon a fine

and often illusory distinction of whether the power of
selection was a trust power or mere power. Not surpris.ingly,
the distinction came in for a considerable amount of judicial

crJ.•t•J.CJ.sm.
. 26 It was, however, affirmed in the House of Lords
in 1968, 27 despite misgivings on the part of Lord Reid, who

25. See Re Gulbenkian 1 s Settlements, [1970] A.C. 508, at

524 per Lord Upjohn.
26. See e.g. Jenkins L.J. in Broadway Cottages [1955] Ch.20,
at 32, and 35; Lord Evershed M.R. in Re Rain's Settle-
ment, Tooth v.· Hain [1961] 1 W.L.R. 440, at 447; Cross J.
in Re Saxone shoe-co. Ltd's Trust Deed, [1962] 1 W.L.R.
943, at 954; Lord Denning M.R. in Re Gulbenkian's
Settlements [1968] 1 Ch. 126, at 133.
27. In Re Gulbenkian's Settlements [1970] A.C. 508.
 121.
stated:

But I trust that there may be an early opportunity

for reconsideration of some of the narrow and
technical distinctio~s which have grown up in this
chapter of the law.2~

Some judges, while of the opinion that the distinction

ought to be abolished and that the standard of certainty
required for mere powers should be extended to trust powers
as well, believed that this could be achieved only by
legislation. 29 In its Fifth Annual Report, the Law
Commission announced that it intended to enquire into trust
powers and uncertainty.3°
But legislative int'ervention proved unnecessary. In
1969, Britain's revenue law changed in such a way as to
render discretionary trusts liable to estate duty, so that
the amount of charge was determined by the actual inco~e
received by the object of the discretion. 31 It now made no
difference for taxation purposes whether the trustees had
a mere power to apply the income, or whether it was a power

coupled with a duty.

Ibid., 579.
see-e.g. Re Baden's Deed Trusts, McPhain v. Doulton
.[1971] A.C. 424, at 446 per Lord Guest. ·
30. Law Com. No. 36; (1970) H.C. 170; p.l4 para 71.
See now, Sixth Annual Report, Law Com. No. 47;
p.:,t:§, para. 76, where it is suggested that recent
litigation (discussed below) may mean that further
action by the Commission is unnecessary.
31. Finance Act 1969, s. 36(2).
 122.
The extent to which this development influenced the
law lords in Re Baden's Wills Trusts3 2 is not clear.33 But

in that decision, delivered'- just fifteen months after its

confirmation in Gulbenkian, the House of Lords rejected the

distinction, and instead applied to trust powers the test

previously applied only to bare powers - that all that w.as

required was that it be possible to say with reasonable
certainty whether or not any given person fell within the
class of objects.

The significant opinion is that of Lord Wilberforce,

with .whom Lord Reid and Viscount Dilhorne simply concurred.
His Lordship commenced by demonstrating the unsatisfactory

nature of the distinction that had arisen, commenting that

it did not seem satisfactory 'that the entire validity of a
disposition should depend on such delicate shading'~4 He

saw the difference between trusts and powers as one of degree

rather·than principle, not warranting the difference in their

legal requirements for valiaty. His Lordship saw the basis
of the distinction in the principle that for a trust to be
valid it must be capable of execution by the court. Since

32. [1971] A.C. 424.

33. Dr Harvey Cohen, in 'Certainly Uncertain: The
Discretionary Trust' (1971) Current Legal Problems
133, at 138 suggests that the new legislation may
have been of substantial influence.
34. [1971] A.C. 424, at 449.
 123 ..
the court could only execute it by ordering equal

distribution, certainty as to the identity of the whole

class would be necessary. The maxim 'equality is equity',

however, had not been consistently applied by the courts,

and Lord Wilberforce saw it as an unsound basis for the

distinction.

But in the nature of a greater hurdle was the judge-

ment of Lord Upjohn in Re Gulbenkian's Settlements, seen

gel'lerally as an endorsement of the Broadway Cottages

decision. Lord Wilberforce's statement that, 'I doubt very

much whether anything his Lordship said was really directed

to the present problem.• 35 must, with respect, be regarded

with some caution, since Lord Upjohn had devoted some

considerable attention to the distinction and the reasons

for it. One writer has commented,

The strongest grounds for the opinion of Lord

Wilberforce surely rests upon reason and common
sense rather than any attempt to justify it by
precedent.36

While rejecting the argument that there should be different

dggrees of certainty for trusts and powers, Lord Wilberforce

was careful to express his agreement with Lord Upjohn in

distinguishing between linguistic and semantic uncertainty,

and mere difficulty in ascertainment. The former, unresolved,

35. Ibid., 455.

36. Cohen, op.cit., 144.
 124.
renders a gift void. The latter may be resolved by

application to the courts for interpretation of a trust

instrument.37

The decision in Baden's case, together with the

criticism that had been levelled at Broadway Cottages in

other decisions, demonstrates the reluctance of the courts

to hold trusts invalid for a 'technicality~. For unless it

were quite impossible to carry out a trust without that

high degree of certainty, insistence upon it by the courts

could be no more than a technicality. It is possible too,

that the decision reflects an increased determination on

the part of the courts to interpret trusts in a manner more

closely in accordance with the intention of the settlor.

It may, perhaps, be seen as an instance of a gradual yet

discernible change of attitude by the courts this century,

who appear to have turned increasingly against the

invalidation of private law instruments for uncertainty,

seeing even a strained interpretation as at least closer

to their authors' intent than invalidity.

4. Charitable Trusts
Those private law instruments that clearly receive the

most benevolent treatment at the hands of the courts are

charitable trusts. It has been said that.a trust for charity

will never fail for uncertainty of object, provided there is

37. [1971] A.C. 424, at 457.

a clear intention to donate the property to charity.3 8

Thus, even although a simple provision placing property

'upon trust' without morewill clearly fail as a trust, a

provision 'upon trust for charity' will be upheld.39

There are two ways of viewing this rule. The first is

that the objection to uncertainty in other trusts - that

the court is unable itself to execute them - is not present
i~ the case of charity, since the Attorney-General
representing the Crown as parens patriae can always intervene

and propound a scheme for the regulation of the trust along

charitable lines. 40 Alternatively, it may be said that

'charity' itself is an object sufficiently certain, being

defined by the preamble to the Statute of Elizabeth and

41
applied by the courts for centuries.
The benevolence of the courts towards charities, however,

has frequently been stated to be exercisable only where the

trust is solely for charitable purposes. A gift in which

charitable and non-charitable purposes are mixed has long

been ~egarded as likely to fail for uncertainty. In

38. See Lutheran Church of Australia South Australian

District Inc. v. Farmers Co-o erative Executors and
Trustees Ltd (1970 A.L.J.R. 17 , at 1 7, per
Windeyer J. See also s.32 Charitable Trusts Act 1957.
39. See e.g. Mills v. Farmer (1815) 1 Mer. 55, 35 E.R. 597;
Moggridge v. Thackwell (1803) 7 Ves. 36, 30 E.R. 440;
Re Willis, Shaw v. Willis [1921] 1 Ch. 44.
4o. See Re HarpurtS Will Trusts [1962] Ch. 78, at 94.
41. See Re Macduff [1896] 2 Ch. 451, at 469 and see
generally, Tudor on Charities 6th ed. (1967) 133-147,
and G. W. Keeton, The Modern Law of Charities (1962)
97-104.
 126.
Morice v. Bishop of Durham,
42 for example, a gift to the

Bishop upon trust to dispose of to 'such objects of

benevolence and liberality' as he should approve was held

void for uncertainty. Because of the width of the

language used, it was possible to dispose of all the

property to non-charitable objects. Following that decision

a number of gifts for wide purposes, not solely charitable,

were held void for uncertainty. 3

4

It was clear however, that the invalidation of such

gifts was far from the intention of testator and settlor,

and that it was to the obvious detriment of charities.

The remedy in New Zealand was by legislation. The Trustee

Amendment Act, 1935 provided:

2(1) No trust shall be held to be invalid by

reason that some non-charitable and invalid
as well as some charitable purpose or purposes
is or are or could be deemed to be included in
any of the purposes to or for which an
application of the trust funds or any part
thereof is by such trust directed or allowed.
(2) Any such trust shall be construed and
given effect to in the same manner in all
respects as if no application of the trust

42. (1805) 10 ·Ves. 522, 32 E.R. 947.

43. See e.g. 'benevolent': James v. Allen (1817) 3 Mer.
17, 36 E.R. 7; Attorney General for N.Z. v. Brown
[1917] A.C. 393; Chichester Diocesan Fund and Board
of Finance v. Simpson [1944] A.C. ~!tl; 'public':
Blair v. Duncan [1902] A.C. 37; Houston v. Burns [1918]
A.C. 337; 'deserving': Harris v. Du Pas~uier (1872)
26 L.T. 689; Ee Sutton (1BB5) 28 Ch.D. 4 4; ·
'philanthropic'; Re Macduff [1896] 2 Ch. 541; Re Eades
[1920] 2 Ch. 353, Williams Trustees v. I.R.C. [1947]
A.C. 447; 'patriotic': Attorney General v. National
Provincial Bank [1924] A.C. 262.
 127.
funds or any part thereof to or for any such non-
charitable and invalid purpose had been or should
be deemed to have been so directed or allowed.44

In considering that section, now re-enacted in

slightly different form as s.61B Charitable Trusts Act, 195~4 5

the Court of Appeal in Re Ashton, Siddall v. Gordon 46 was of

the opinion that a broad interpretation should be accorded

it. Thus where the charitable and non-charitable purposes

under a gift were not distinct and separate but intermingled

through the use of wide language, the section might still

operate to save the trust. 4 7

A further facet of the benevolence of the courts towards

imperfect charitable trust provisions is demonstrated by

the cy-pres doctrine. Under this doctrine, where the gift

is uncertain, or initially impracticable or illegal, the

court may order t-hat the charitable intention be carried

into effect cy-pres, - by substituting for the objects

44. The section was passed following the decision of the

Court of Appeal in Re Catherine Smith, Campbell v.
N.Z. Insurance Co. Ltd [1935] N.Z.L.R. 299 affirmed
by the Privy Council sub.nom Attorney General Vo
N.Z. Insurance Co. Ltd [1937] N.Z.L.R. 33 where a
trust failed for the vagueness of the word 'benevolent'.
(See per Turner J. in Re Ashton, Siddall v. Gordon
[1955] N.Z.L.R. 192, 202). cf. Charitable Trusts
(Validation) Act (U.K.) 1954, andRe Gillingham Bus
Disaster Fund [1959], Ch. 62; Re Wykes dec'd [1961]
Ch. 229.
45. As insertea by s.4, Charitable Trusts Amendment Act 1963.
46. [1955] N.Z.L.R. 192.
47. The judgement of Gresson J. contains an interesting
survey of the interpretation accorded similar legis-
lation in Victoria and New South Wales. See also
Keeton, The Modern Law of Charities (1962) 105~117.
 128.
indicated by the donor another object as similar as

possible.~ The doctrine now has a statutory basis in this

country, where the Charitable Trusts Act, 1957 49 provides

that the trustees may prepare a scheme for dealing with the

property and apply to the Supreme Court for its approval.

5. Conditions on Gifts

Charities form an exception to the general rules

relating to certainty in trusts and wills, in that no

matter how uncertain a cha~itable gift may be, it will never

fail. An exception in the other direction is afforded by

conditions subsequent. In the case of conjitions precedent,

the courts have applied the normal certainty rules, holding

that so long as it is possible tbtdetermine with reasonable

certainty whether or not any given object satisfies the

condition, it should be enforced.50

But in the case of conditions subsequent, a considerably

'
higher degree of certainty is required. The most frequently

advanced reason for this attitude is that a condition which

might cause the forfeiture of a gift after its acceptance by

See generally, L.A. Sheridan and V.T.H. Delany, ~

Cy-pres Doctrine (1959).
See particularly s.32; and generally Part III of
the Act.
~- See e.g. Re Bedford [1951] Ch. 905; Re Allen, Faith v.
Allen [1953] Ch. 116, 810 (C.A.); Re Wolffe, Shapley v.
Wolffe [1953] 1 W.L.R. 1211; Re Coates, Ramsden v.
Coates [1955] Ch. 495; Re Tarnpolsk, Barclays Bank v.
Hyer [1958] 1 W.L.R. 1157: Re Lysaght, Hill v. Royal
College of Surgeons [1966] Ch. 191; Re Mills' Wills
Trust [1967] 1 W.L.R. 837; Re Abrahams Will Trusts
[1969] 1 Ch. 463; Re Balkind [1969] N.Z.L.R. 669.
 129.
the do.nee, is liable to work harshly or unconscionably.5l

This in itself may be seen as grounds for construing such

conditions narrowly52 but the courts have gone further, and

held uncertainty to be fatal to their validity.

The degree of certainty required in the case of conditions

subsequent was described by Lord Cransworth in l859 in

these terms:

And I consider that, from the earliest times, one

of the cardinal rules on the subject has been this:
that where a vested estate is to be defeated by a
condition on a contingency that is to happen after-
wards, that condition must be such that the Court
can see from the beginning, precisely and distinctly,
upon the happening of what event it was that the
preceding vested estate was to determine.53

It is clear that the attitude of the courts to

ODnditions subsequent has to a large extent been tempered

by the frequently distasteful clauses chosen by settlers

and testators. One of those commonly encountered is that

which purports to restrain on pain of forfeiture the marriage

of a donee outside a particular religious or ethnic group ..

Lord Atkin has stated of such clauses:

For my own part, I view with disfavour the power

of testators to control from their graves the.choice
in marriage of their beneficiaries, and should not
be dismayed if the power were to disappear, but at
least the control by forfeitures imposed by conditions

51. See e.g. Clayton v. Ramsden [1943] A.C. 320; at 325

per Lord Atkin, and at 333 per Lord Romer; and see
Re Hains [1942] S.A.S.R. 172, at 176 per Angas Parsons J.
52. See e.g. Lord Campbell L.C. in Claverin~ v. Ellison
(1859) 7 H.L.C. 707, at 721; 11 E.R. 2 2, at 288.
53· Clavering v. Ellison (1859) 7 H.L.C. at 725, 11 E.R.
at 289.
 130o
subsequent must be subject to the rule as to
certainty prescribed by this House in Clavering v.
Ellison ••• 54

Expressions in marriage restraining conditions that

have been held too vague to be valid include, 'of Jewish

parentage and of the Jewish faith 1 ,55 'profess the Jewish

faith•, 56 'a person of the Jewish race and religion 1 ,57

'the protestant faith•, 58 and 'a pakeha•. 59 Similarly,

conditions which would work a forfeiture in the event of

the donee having 'a social or qther relationship with•

60

a certain named person, or upon being 'deemed by my trustee

to be unfit to undertake the management and control of my

residu.ary estate'
61 have been declared too uncertain.

Where the condition is less morally objectionable,

however, there are signs that the certainty rule may

operate with less severity. Sifton v. Sifton

62 arose from

a trust provision that contained a condition to the effect

54. Clayton v. Ramsden [1943] A.C. 320, at 325.

55. ·Idem.
56. ~braham's Will Trusts [1967] 3 W.L.R. 1198 cf.
Re Se;lby's Will Trusts [1966] l W.L.R. 43.
57. Ji.~....:r'arnpolsk, Barclay's Bank v. Hyer [1958] 1 W.L.R.
1·15?; and see Re Krawitz Will Trusts [1959] l W.L.R.
1192: 'practise the Jewish religion'.
,58. ReLockie [1954] N.Z.L.R. 23e.
. 59 .. McMillan v. Tutt [1951] N.Z.L.R. 315 •
60. Re Jones, Mi~d Bank Executor & Trustee Co. v. Jones
[1953] Ch. 125.
61. Re Hains [1942] $.A.S.R. 172.
62. [1938] A.C. 656.
 131.
that payments to a donee should continue 'only so long as

she shall continue to reside in Canada.' The opinion of

the Privy Council that the condition was void for uncertainty

has not always found favour in later cases. Similar clauses

were held in Re Coxen, McCallum v. Coxen63 and Re Gape,

Veney v. Gape
64 to be sifficiently certain in all the

circumstances to be enforced.

Why there should be a different test of certainty in

the case of conditions precedent does not become clear

until the effect of invalidity of either type of condition

is understood. Where a gift is subject to a condition

precedent, the invalidity of the condition will cause the

whole gift to fail, as the court is unable to say what

persons will qualify for it. 65 If, however, it is a

condition subsequent that is uncertain the court is unable

to say what events will result in forfeiture. .Failure of

the condition will mean that the donee takes the gift
- 66
absolutely. The failure of the condition need not

involve the failure of the gift.

63. [1948] 1 Ch. 747, at 750.

64. (1952] 1 Ch. 418.
65. See e.g. Re Wolffe, Shapley v. Wolffe [1953] 1 VJ.L.R.
1211; Re Allen, Faith v. Allen [1953] Ch. 810.
66. See e.g. Sifton v. Sifton [1938] A.C. 656, at 677
per Lord Romer; Re Abraham's Will Trusts [1967~
3 W.L.R. 1198.
 132.
In assessing the validity of conditions, the courts

have always been careful to separate that assessment from

the fact situation before them. In McMillan v. Tutt 67 for

example, a condition sought to forfeit a gift to a woman if

'she should happen to marry a (pakeha] husband'.

Gresson J. was unable to determine any precise meaning of

'pakeha' and held the condition void, notwithstanding that

the wife had in fact married a full blooded European who

clearly fell within the definition.

Although it is now truly settled that conditions

subsequent should be worded as precisely and as certainly

as possible, the rule has been to subjected to criticism.

In the New Zealand Supreme Court Wilson J. stated recently

that it demonstrated

••• a willingness to defeat the clear intention of

the testator not commonly found in modern decisions
on the interpretation of wills.... With respect one
can hope that in this class of case also the more
modern and liberal rule will in time prevail and that
where the intention of the testator (who is, after
all, disposing of his own property) is sufficiehtly
clear the Courts will give effect to it without
demanding an unrealistic decree [sic] of precision
and detail in the definition of the conditions
under which the objects of his bounty may receive
or retain the benefits thereof.68

It is respectfully submitted, however, that the rule

requiring a high degree of certainty for conditions subsequent

rests on a sound basis. The law recognises in other contexts

67. [1951] N.Z.L.R. 515, see also Re Lockie [1945]

N.Z.L.R. 230, at 240 per Smith J.
68. Re Balkind [1969] N.Z.L.R. 669, at 671.
 133.
the embarrassment, financial and otherwise, that may be

caused through forfeiture of property even where a donee

has no strict legal right, having received it under a

mistake of fact or law. 69 There is, with respect, a

distinct difference in the position of a person required

to satisfy particular conditions in order to qualify for a

gift, from that of a person who may have enjoyed a gift for

some period, but is liable to be deprived of it for non-

compliance with specific conditions. Because of the

possible draconian effect of such conditions, it does not

seem particularly unfair to insist that they be worded with

sufficient certainty. Conditions subsequent often seek

to control the future behaviour of donees under threat ef

forfeiture, and thus might be said to bear a measure of

resemblance to the bylaws of local authorities. 70 The

courts have also insisted upon clarity of expression in

that context.

6. Conclusions
It is undeniable that the likely effects of invalidity

have played a significant role in the determination of

whether or not any given trust provision is too uncertain to

be enforceable. Thus, while the general rule is that a

provision will be held void for uncertainty only where it

is quite uncapable of bearing any meaning, that rule is

69. Judicature Act, 1908, s.94B.

70. Although see contra Lord Denning in Fawcett Properties
Ltd v. Buckingham County Council_ [1961] A.C. 636, at
677-678.
 134.
subject to a notable exception in the case of conditions

subsequent. In the case of charities the exception

operates the other way, guaranteeing that no genuine

charitable intention need fail for want of certainty.

Only in the context of trusts and gifts under wills

does the effect of uncertainty vary so greatly according

to the nature of the provision from which it stems.

 135.

CHAPTER 6

OTHER PRIVATE LAW INSTRUMENTS

1. Introduction

It is clear that the significance of contracts, wills

and trusts in pr.ivate law has dictated that a considerable

amount of attention has been paid to the problem of uncertainty

in those conte:its. For a number of reasons uncertainty has

infrequently operated as an invalidating factor in other

private law instruments. This chapter looks briefly at some

instances where uncertainty has been seen as having some

effect over and above causing difficulties in interpretation.

2. Other Private Law Instruments

Any instrument :b.llat is quite without meaning cannot be

said to exist as a legal instrument, but the courts have

been prepared to accept on occasion a lesser degree of

uncertainty than this as invalidating certain types of

instruments. I~ particular, two classes of instruments

1
that have been reviewed for certainty are conveyances and

court documents 1 2 including judgements. 3 It is seldo~,

1. See e.g. Savill Brothers Ltd v. Bethell [1902] 2 Ch.523;

South Eastern Railway Co. v. Associated Portland Cement
Manufacturers [1910] 1 Ch. 12, Re Ellenborough Park,
Powell v. Madison [1956] Ch. 131, at 175-176; Johnstone
v. Holdway [1963] i Q.B. 601. See also, E.H. Bodkin,
'Easements and Uncertainty' (1971) 35 Conveyancer 324.
2. See e.g. R. v. Selomons(l786) 1 T.R. 249, 99 E.R. 1077;
Mullooly v.Macdonald (1888) 7 N.Z.L.R. 1, at 7:
Re Thompson and Pana (1894) 13 N.Z.L.R. 218.
See e.g. R. v. Garvey, Ex parte Henry (1888) 6 N.Z.L.R.
628; Nicholson v. Kohai (1909) 28 N.Z.L.R. 552. It is
assumed for the purposes of this study that judgements
are, in fact, private law instruments. The classification
may not always be strictly correct however.
 136.

however, that uncertainty beyond that merely causing

difficulty of interpretation arises in these two situations,

and for this two possible reasons may be advanced. The

first is that such instruments are almost invariably

prepared by professional draftsmen. This in itself is no

guarantee against the use of vague or ambiguous expressions

although it may serve to minimise their effect. But the

other, and probably more significant reason is the safe-

guards which exist in each case.

In New Zealand, all dealings ~ith legal interests in

land fall under the Land Transfer Act, 1952, and are

effected through the Land Registry Office. No document

which, in the course of close scrutiny by the District Land

Registrar, is found to be defective will proceed to

registration.
4 The Registrar may instead issue a

requisition5 seeking, in the case of insufficient definition,

further details to be entered in the instrument, thereby

rendering its effect more certain. The exist~nce of a duty on

4. Should loss be caused through tte Registrar's mistake

or misfeasance in registering a defective document,
compensation-may be payable under s.172 Land Transfer
Act 1952. See too, P.B.A. Sim, The Compensation
Provisions of the Act in Hinde (Ed.), The New Zealand
Torrens S stem Centennial Essa s (1971) 138.
5. Section 3, Land Transfer Act 1952, see also Land
Transfer Regulations 1966, RR. 8, 12, 16, 19.
 137.
the Registrar to check documents in this way renders the

presence of uncertainty considerably less likely in registered

instruments. Of course not all conveyancing is concerned

with legal interests in land. Mortgages and leases for example,

need not be registered to be valid as contracts. But again

t~ safeguard of professional preparation and ehecking by the

advisers of all parties diminishes substantially the risks of

invalidity through uncertainty. In the final analysis it

is in fact doubtful that the rules applicable to certainty in

any conveyancing documents vary from those pertaining to

normal conveyancing contracts.

Similar safeguards are apparent too in the case of

court instruments. Mention is made in the following chapter

of the obsession of the seventeenth and eighteenth century

courts with certainty in documents involved in the legal

6
process. The New Zealand courts appear likewise to have

operated strict rules for a time, and in particular to have

accepted that judgements of the Native Land Court7 and

8
other inferior courts might be held void for uncertainty,

although in no reported case does a judgement appear in

fact to have failed on this ground alone. 9

6. Infra P• 149.
7. Mullooly v. Macdonald (1888)_ 7 N.Z.L.R .. 1, at 7;
Nicholson v. Kohai (1909) 28 N.Z.L.R. 552.
8. See e.g. li• v. Garvey, Ex parte Henry (1888) 6 N.Z.L.R. 628.
9. In both Mullooly and Nicholson's cases the vital issue
would appear to be whether the judgement was in fact the
final judgement of the Court, In_R. v. Garvey as discussed
below, the question was one of whether the power to
'appoint' a prison had been well exercised.
 138.
It is highly unlikely, it is submitted, that any judge-
ment could fail for uncertainty today. There are statutory
provisions to protect the validity of documents despite
purely formal defects, 10 which is all that much of the
uncertainty in the early cases could be said to amount to. 11
But more importantly, the courts have reserved the power to
amend judgements where they contain un~ertain or ambiguous
.
express1ons, 12 or o th erw1se
. f a1"1 t o express th e 1n
. t en t•1on o f

the Court clearly. 1 3 There are moreover, wide rights of

appeal.
The form and content of convictions also caused
considerable concern to eighteenth and nineteenth century
courts. In ord~r to be valid it was necessary that a
conviction set out clearly the offence complained of and the
penalty imposed. 14 It was not sufficient, for example,

10. See e.g .. Magistrates' Courts Act, 1947, s.64; Summary

Proceedings Act 1957, s.204.
11 .. See e.g. R. v. Trelawney (1786) 1 T.R. 222, 99 E.R. 1062;
li• v. Garvey, Ex tarte Henry (1886) 6 N.Z.L.R. 628.
12. Lowery v. Walker 1911] A.C. 10.
13. Re Swire, (1885) 30 Ch.D. 239; Re Salaman, (An Infant)
[1923] N.Z.L.R. 50; Todd v. Percival [1923] N.Z.L.R.
1356; Gray v. Harris-rl925] N.Z.L.R. 607. Where a
judgement is quite ambiguous or obscure it is likely
that justice would require that it be recalled; the
circumstances in which this course is open were considered
in Horowhenua County v. ~ (No.2) [1968] N.Z.L.R .. 632,
at 633 per Wild C.J.
14. See e.g. R. v. Fuller (1699) 1 Ld Raym. 509, 91 E.R.
1240; R.-v. Catherall (1731) 2 Str. 900; 93 E.R. 927;
R. v. Trelawn~ (1786) 1 T.R. 222, 99 E.R. 1062; R. v.
Salomons (178 ) IT.R. 249, 99 E.R. 1077; R. v. Jukes
(1800) 8 T.R. 536, 101 E.R. 1533; R. v. Davis (1833)
5 B. & Ad. 551; 110 E.R. 893; Ch~ter v. Greame &
Simpson (1849) 13 Q.B. 216, 116 E.R. 1245.
 139·
simply to describe the offence, and then the penal provision

being invoked as, 'the statute in such case made and provided'. 1 5

But the technicality of this rule led to its abrogation in

this country under the Inferior Courts Procedure Act, 19090 16

Where the courts have continued to insist upon certainty

in private legal instruments is where the making of the

instrument is pursuant to a statutory power, whose valid

exercise is dependent upon certainty in the instrument.

Authorisations to 'define' or to 'specify' or 'appoint', for

example, have. each been held to indicate that certainty is

essential to the valid exercise of the power.

The Bankruptcy Act 1885 provides an illustration. By

s.171 the Bankruptcy Court was empowered to adjudge offending

bankrupts 'to be imprisoned in such prison as the Court may

appoint'. In R. v. Garzey, Ex parte Henry, 17 a bankrupt had

been ordered to be imprisoned in purported exercise of this

power, in 'the prison in Wellington'. Apparently unknown to

the judge, there were at that time two prisons in Wellington.

The order was held to be not a valid exercise of the power ..

One may sympathise with the lament of Williams J. commenting

on that decision in a later case, that,

15. Re Thompson & Pana (1894) 13 N.Z.L.R. 218.

16. By ss.4, 5 and 6. See now Summary Proceedings Act 1957,
s.204.
17. (1888) 6 N.Z.L.:a. 628 9 See also R. v. MacDonald, re
Christie (1889) 7 N.Z.L.R. 361, at 364, and 368 ..
 140 •
••• the sections in the Bankruptcy Act which
authorise the Bankruptcy Court to exercise a
summary jurisdiction have been so inarticulately
framed that it is exceedingly difficult so to
proceed, and so to prepare a warrant of commitment
as to make ~t certain that the commitment will be
effectual.l

It is common today for a statute to provide that as a

condition precedent to action being taken against persons

under the statute, those persons should be served with a

notice 'specifying' certain things. One example is afforded

by s.92 Property Law Act, 1952 9 whereby mortgag~are empowered

to exercise powers of sale only after the service upon the

mortgagor of a notice specifying the default complained of

and a date on which the power will become exercisable', and

his failu~e to remedy one breach complained of. In Sharp vG

Amen19 the New Zealand Court of Appeal held that it was

insufficient compliance with the requirement to 'specify'

merely to provide a means whereby a date might be calculated.

The id certum est guod certum reddi potest maxim was held

inapplicable since the question was one of whether the

statutory requirement had been fully satisfied. Similarly,

the maxim has been held inapplicable in cases under the

Sale of Goods Act 1908 (s.9) relating to the sale of

20
'specific' goods.

18. R. v. Bratby, R~ McLeod Bros (1889) 7 N.Z.L.R. 375, at 380.

19. [1965] N.Z.L.R. 760, at 766, and see United Repairing Co.
Ltd v. Glover [1945] N.Z.L.R. 160.
20. KUrsell v. Timber Operators and Contractors Ltd [1927]
1 K.B. 298.
 141.
It is in fact less a question of whether the instrument

concerned is sufficiently certain to enable those affected

by it to be clear as to their duties, but of whether the

condition precedent or statutory authorisation has been

fulfilled. Examples of the same approach may be seen in

public law situations where officials have been authorised to

22
'fix prices•, 21 or to 1 describe• certain matters in notices.

Outside the situation where uncertainty in a private law

instrument is in breach of some statutory requirement or

authorisation, it is clear that only where its meaning is

so gravely in doubt that interpretative techniques are

incapable of resolving it satisfactorily will it be held to

be invalid.

Brief mention may be made at this point of the attitude

of the courts towards uncertainty in one situation that fails

to fall neatly into any of the categories discussed this far.

This is the question of ambiguous jury verdicts. The New South

Wales Court of Appeal had occasion recently in Mifsud v.

Commonwealth 2 3 to determine the validity of a jury verdict

expressed to be for the defendant, yet which allowed the

plaintiff his special damages. By a majority decision the

21. See e.g. Kin~ Gee Clothing Pty. Ltd v. Commonwealth __ (l945)
71 C.L.R. 18 , at 195 per Dixon J; and see infra p.l86
22. See e.g. Auckland Meat Co. Ltd v. Minister of Works
[1963] N.Z.L.R. 120.
23. [1968] 2 N.S.W.R. 83.
Court held that the general verdict being for the defendant,
24
the rest might be dismissed as surplusage, even although the

remainder of the verdict was clearly contradictory.

Ambiguity of· this type will often be capable of

resolution by questioning the jury to determine exactly

what was intended. 25

3. Uncertainty in Private Law

Unless a legal instrument is so uncertain as to be quite

unintelligible, the idea of holding it void for uncertainty

takes on the aura of a technicality; particularly where it

means that a decision is handed down that is effective in

settling a dispute over the operation of the instrument, yet

is independent of, and unrelated to the merits of the

particular dispute. The technical nature of a decision

based on uncertainty arises also from the fact that the

intention of the author of the instrument must almost

inevitably be defeated by its invalidation.

But as has been demonstrated, the nature of that

intention is likely to be of considerable significance in a

court's assessment of how far it should go in interpreting

24. Ibid., 86-87 per Herron C.J.; 89 per Asprey J.A.

25. See e.g. ~· v. Crisp (1912) 7 Cr. App. Rep. 173 where
the prisoner had been sentenced to six months imprisonment
for attempted suicide, having, as his counsel solemnly
informed the Court, -'jumped off the quay into Falmouth
Harbour; shouting "A hundred to one", a remark that has
never been explained.' The jury's verdict of 'guilty
but of unconscious mind' was clarified thrqugh
questioning.
and upholding, rather than upsetting an instrument. Should

the intention be charitable, for example, the courts will

generally be intent on upholding the instrument, however

obscure its provisions. Where, on the other hand, it is felt

that the intention is such as to operate harshly or unfairly,

the courts may be reluctant to go any distance at all in

searching for a meaning that might have this effect. Where

invalidation of the instrument or one of its provisions would

tend to induce a more just result, then obscurity or vagueness

of langu~ge may more readily be accepted as the ground of

invalidation.

The point seems to be that since an assessment of the

degree of uncertainty present in any given prov.ision is a

process for which there are no clear guidelines, the courts

feel justified in being influenced in that assessment by these

external considerations.

The extent to which this approach may be justified in a

time when legal interpretation is seen increasingly as the

process of arriving at and carrying out the true intention of

the author of a legal instrument, has not g9ne unquestioned.

26

Whether or not the present day tendency in interpretation

ought to extend to the public law situation, where authority

to exercise delegated powers has traditionally been construed

strictly by the courts, is a matter for consideration in the

following chapters.

26. See e.g. Wilson J. in Re Balkind [1969] N.Z.L.R. 669, at 671.

 PART THREE
UNCERTAINTY IN PUBLIC LAW
 CHAPTER 7 144.

HISTORY OF THE CERTAINTY TEST

1. Introduction

The rules that have evolved relating to certainty in the

private law context provide for reasonably logical, or at

least understandable, exceptions to the normal rules of

interpretation demanding that some meaning be accorded

words intended to have legal effect. The exceptions have

reached their present form, for the most part, only after

prolonged judicial consideration and development. Moreover,

their application has been consistent. But in public law

quite a different situation exists, While an actual 11 test 11

of certainty does exist, ~ts development is clouded by

numbers of confused and often conflicting decisions, and its

status, extent, and effect are far from clear.

Its unusual and confused history may be such as to

induce doubt as to the validity of the test, and for this

reason alone it is appropriate to preface a study of its

present day operation with an account of its development.

2. Early History

The early development of the certainty test was in the

context of bylaws, 1 and it is only comparatively recently

that it has been applied to other public law instruments.

1.. The spelling bylaw, is used in this work in preference

to byelaw or by-law, as it is the form used in the 1957
Reprint of the Bylaws Act, 1910. The original form used
in the Act was, by-law. Cf. Lumley, Essay on By-laws
(1877) 2. The actual meaning of the word is probably
1 townshiplaw 1 - see Pollock and Maitland, History of
English Law (1895) Vol. 1; 615.
It is clear that legislation by bylaw began at an early

stage of English legal history. Pollock and Maitland

2
record that in London as early as 1189 there was issued the

Fitz-Alwyne Assize, probably England's earliest building

bylaw, which imposed stringent restrictions on building

erection in parts of the City. A similar ordinance, issued

in 1212, fixed the wages of tradesmen after a great fire.

These are probably isolated instances however, and it

is clear that for the great majority of English towns, bylaw

making power was not formally acquired before the fifteenth

and sixteenth centuries. 3 It had become the practice by

this time for the Royal Charter of incorporation to expressly

authorise the making of bylaws, and indeed the power to make

bylaws became in the fifteenth century one of the five

4
decisive criteria of a ppoperly constituted borough.

Of considerable significance in the history of English

local government were the ancient guilds, most of which

possessed authority to make bylaws derived either expressly

or impliedly from Royal Charter. Such bylaws might bind

not only the m~mbers of a guild, but also those outsiders

2. Op.cit., 644.
3· See further Weinbaum, The Incorporation of Boroughs (1937)
22, 49. The Borough of Leeds, in fact, did not pass its
first bylaw until 1662, and that bylaw dealt largely with
the definition of its boundaries: see Wardell, The
Municipal History of the Borough of Leeds (1846)~x,ix.
It is not unlikely, however that ordinances of a less
formal nature may have existed prior to the borough's
formal incorporation.
4. Weinbaum, op.cit., 18.
 146.
who exercised the trade regulated by the guild. 5 The powers

of the guilds were wide, and while the process of in~ation

of boroughs frequently involved little more than the conversion

6
of the Leet Jury into a body corporate, some writers have

noted the close resemblance borne by the early municipal

corporations to the guilds, 7 and have suggested that only

gradually, from the sixteenth century onwards, did municipal

corporations assume greater governmental powers than those

8
exercised by the guilds.

Pollock and Maitland 9 explain that seldoi did the common

law courts deal with bylaws of town corporations. Their

enforcement was instead in municipal courts by those who made

them, and only rarely would they be challenged in the common

law courts. Only a bold and a rich citizen would bring in the

~ng against the city. For this reason, there were few

reported dec is ions touching a.n the validity of municipal

bylaws even as late as the mid-eighteenth century. Most

5. Butchers Co. v. Morey (1790) 1 H.Bl. 370, 126 E.R. 217.

6. See Redlich and Hurst, The History of Local Government
In England, 2nd ed. (1970) by Bryan Keith-Lucaa,
27-28.
7. See Williston, "Business Corporations", in Select Essays
in Anglo-American Legal History (1909) Vol.3; 195,
at 213.
8. In Webb, English Local Government: The Manor and the
Boroug,, 362 it is suggested that the municipal
corporation arose out of the guild, from which it
gleaned many of its characteristic features.
9. Op.cit., 645-646.
present principles appear to have evolved either in the nine-

teenth century~ or to be applications to municipal bylaws

of principles that had developed in the context of bylaws

of the guilds and other early corporations.

While it was established by at least the late fifteenth

century that the bylawsof guilds might be struck down for

unreasonableness, no suggestion of an additional requirement

of certainty would appear to have been made before the seven-

teenth century. In two cases early in that century, failure

to make clear provision with regard to penalty was suggested

as a ground upon which bylaws' validity might be questioned.

In 1616, the wardens of a weavers' guild brought an

action against one J. Scapes, for breach of one of their

10
bylaws. Three exceptions were advanced for the defendant,

but it ms unclear which was accepted by the court. What is

significant is that one objectioh to the bylaw was that for

its breach, the constitution provided 'that the offender

should forfeit a sum, and it did not appear to whom this

forfeiture should go,' that is, that it was uncertain in its

terms as to an important detail.

Uncertainty relating to penalty was again advanced as

10. Norris & Trussel, Wardens of the Society of Weavers

in the Town of Newbur in the County of Berks v.
J. Scapes 1 1 1 Brownl. & Golds. , 123 E.R. 657.
 148.
an objection to a bylaw two years later in Wood v. Searl, 11

where it was argued that a bylaw of the Commonalty of Cordwainers

of the City of Exeter was void, in that

••• no certain penalty is set down, but left to

the discretion of any of the shoemakers of Exeter,
and that is against the course of all laws; for
when a law is made, it is necessary that the
penalty thereof should be known, to the end that
men might not offend.

Again, it is unclear from the report whether the court

accepted this argument.

However, in 1755 a similar submission appears to have

been accepted by Ryder C.J. in Leathley v. Webster, 12 where

a bylaw of a Company of Cutlers reserved to its Master

and Wardens the power to determine what proportion of the

fifteen shillings paid to the Clerk for each pair of

indentures presente:l to him, should be deducted for the benefit

of the company. Ryder C.J. explicitly held the bylaw void

for uncertainty, adding however that it would also be void

as repugnant to statute.

No other reported cases appear to deal with uncertainty

of penalty until Piper Vo Chappe1113 in 1845, where the court

11. (1618) Bridg. J. 138, 123 E.R. 1257. The bylaw provided
that no person not a brother of the society should sell
'any books, shooes, pantofloes, pumps, or startops, or
any other wares belonging to the said art, under pain
of forfeiting to the said master and wardens for the time
being, for every offence such sum (not exceeding 40s) as
shall be assessed by the master, wardens and assistants •• o 1
12. (1755) Sayer 251, 96 E.R. 870. Sub nom. Nevesley v.
Webster 1 Keny 243; 96 E.R. 980G
13. (1845) 14 M. & W. 624, 153 E.R. 625; Grant, Corporations
(1850) 363, footnote q, saw Piper v. Chappell as
overruling ~ v. Searl.
had little difficulty in at least distinguishing, and in

point of fact, overruling~ v. Searl. The bylaw in

Piper v. Chappell provided a penalty of £5 for its breach,

but with a power of mitigation down to £2, and objections

to it on the grounds of uncertainty were overruled.

Clearly uncertainty of the type demonstrated in

those cases would not be regarded today as a serious

defect, since flexibility in assessing penalty is generally

accepted as more desirable than fixed and inflexible
penalties. Why then should such a technical type of

uncertainty have been seen as fatal to validity? One

possible reason is the overriding concern that lawyers of

at least the seventeenth century had with certainty, 14 a

concern that was manifest particularly in connection with

court documents. With the transition from oral to written

pleadings had come an insistence that all the facts relied

on, together with all incidental facts and details be set

out in full with painstaking clarity, and that the forms of

action be strictly complied with. 15 Thus, the reports of

the times abound with cases similar to that of Allyn v.

Sparks (1603) 16 where, in an action for blocking the

14. See e.g. Holdsworth A History of English Law 5th ed.

(Rep. 1966) Vol.3; 617-619; also Vol. 5; 179.
15. See Potter's Historical Introduction to En lish Law and
its Institutions th ed. by A.K.R. Kiralfy 19 2
293 ... 304.
16. (1603) 1 BrownL & Golds. 6, 123 E.R. 629. See also
.Sawyer v. Crompton (1617) 1 Brownl .. & Golds. 72, 123
E.R. 673 and illustrations in Potter, (o;p.cit., foot.-.
note 15). See too, cases on uncertainty of judgements:
Powell v. Hopkins (1649) Style 247, 82 E.R. 683;
 1,50.
plaintiff's way, judgement was stopped, 'because it doth

not appear in the [plaintiff's] declaration that village

the common way led to'.

The inflexibility of such rules relating to certainty

is well illustrated in their application to bylaws in

what may well be the first reported instance of the bylaw

of a town corporation being questioned for uncertainty,

Mayor of Oxford v. Wildgoose (1689). 17 The bylaw, as

paraphrased by the reporter, provided:

That if any person should be elected to be

Chamberlain and should refuse to undertake
the said office he should forfeit £10 to the
Mayor.

It was argued that the expression 'any person' was

too wide and hence uncertain, since only those persons who

were citizens and freemen were eligible for election. The

argument was upheld. But by 182.5, ~owever, it was stated
of Wildgoose's case that

[it] is not to be found in any contemporaneous

reporter; it does not appear to have been much
discussed or considered; and we think it cannot
be supported. In that case as well as this, we
think the question of eligibility is from the

16. Cont.
Maihu v. Flower (1662) 1 Sid. 98, 82 E.R. 993; Walter
v. Farmer (1620) Latch 216, 82 E.R. 3.53; Ellis v.
Yarnly (1661) 1 Keble 124, 83 E.R. 8.52; Lawrence v.
Turner (1623) 2 Rolle. 369; 81 E.R. 8.58; Stone v.
Goddard (1616) 1 Brownl. & Golds. 81; 123 E.R. 679;
Niller v. Green (1673) 3 Keble 1.53; 84 E.R. 648; Austin
v. Jarvis (161.5) 1 Brownl. & Golds. 11; 123 E.R. 633;
Adams v. Fleming (1619) 1 Brow.ml. & Golds. 13; 123 E.R.
634; Markham v. Jurex (1606) l_Brownl. & Golds. 92;
123 E.R. 6S6. -
17. (1689·t 3 Lev. 293, 83 E.R. 696.
 151.
subject matter necessarily implied, and that
the word person mu§t be considered as confined to
eligible persons.l~

The types of uncertainty discussed in ~ v. Searl

and Leathley v. Webster on the one hand, and in W.lildgoose

on the other, are the only two types of uncertainty the

writer has been able to discover applied to early bylaws.

All three decisions were later overruled. A further

significant fact is that in none of the eighteenth or early

nineteenth century Abridgements in which the validity of

bylaws was discussed, was certainty recognised as a test

of validity. 19

The writer is forced to conclude that up until the mid-

nineteent~ century, cases wherein bylaws had been tested for

certainty were few, there had been no development of any

principles, the type of uncertainty involved was quite

different from that for which bylaws may be tested today,

and the only significant cases had been overruled. By

1850, it is submitted, certainty could not be, nor was it

in fact, recognised as a test of validity of bylaws.

2. Nineteenth Century Development

It is accepted today that a bylaw may fail for

18. Tobacco-Pipe Makers' Co. v. Woodroffe (1825) 7 B. & c.

S35, at S53; lOS E.R. 935, at 942, per Lord Tenterden
C.J. Followed in The Poulters' Co. v. Phillips (1840)
6 Bing N.C. 314, at 323; 133 E.R. 124, at 127.
1,. See e.g. Blackstone, I Commentaries \21st ed. (1723)
475; Viner IV General Abrid ement of Law & E uit 2nd.
ed. (1791), 303-30 ; II CQmyn's Digest 5th ed. 1822)
303-304; I Bacon's Abridgement 7th edo (1832) 802~812
and III Petersdorff's Abridgement 2nd ed. (1862)
280-281.
 152.
uncertainty if it fails to contain adequate~information

as to the duties of those who are bound by it. Just how

this principle developed is of some significance.

The first step would appear to be the publication in

1850 of a work by James Grant, entitled Corporations.

In it, there appears this passage:

[The byelaw] ought to be expressed in such a

manner as that its meaning may be unambiguous,
and in such language as may readily be under-
stood by those on whom it is to operate.
Except in the two Universities and the College
of Physicians a byelaw in Latin would be bad
for that reason.20

No authority is cited for this assertion, and, it is

submitted that on the cases as they stood, no authority was

available. It seems that Grant had in mind a wider test

than that illustrated by the Latin bylaw, which outside the

institutions listed, might be unintelligible. This wider

test is signified by the expressions •unambiguous•, and

'language as may readily be understood'. It was to this

21
passage that Sir Owen Dixon once attributed the birth

of the rule as it is known today, suggesting that it

22
influenced Mathew J. in Kruse v. Johnson in a passage

examined in more detail shortly, to list certainty as a

requirement of validity of bylaws.

20. At p.86.
21. In the High Court of Australia in King Gee Clothing Co.
Pty. Ltd v. The Commonwealth (1945) 71 C.L.R. 184,
at 194-195.
22. [1898] 2 K.B. 91, at 108.
 153-
What is more likely, however, is that the rule came

to the attention of Mathew J. only after the next phase of

its development. This occurred in 1877 with the publication

of W. G. Lumley's Essay on By-laws. In his introduction,

Lum.ley acknowledged the assistance he had received from

Grant's work, 23 and it is probable that the following

passage from Lumley's work owes much to Grant:

A bylaw must be certain in its enactment, i.e.

free from ambiguity, and must afford complete
direction to those who are to obey it.24

Unlike Grant, Lumley cites a number of authorities, but,

it is respectfully submitted, not one of them supports the

test in the form in which he states it. Each will now be

considered.

(i) In g. v. Mayor of Durham, 25 as Lumley admits·, the

objection of uncertainty was not raised, nor discussed.

The bylaw there was challenged as being unauthorised, and

unreasonable. Both objections failed.

(ii) The Stationers' Company 26 v. Salisbury, and The Taylors

of Ipswich2 7 case: In the Taylors'' case, it was the Charter

of the Company and not, as Lumley asserts, a bylaw which was

held invalid, primarily as in restraint of trade. A

23. W. G. Lumley, An Essay on By-Laws (1877) v111.

24. Ibid., 93. This passage is rep·roduced almost verbatim
as-a principle of Scottish Law in II Green's Eneyclopaedia
of Scottish Law 2nd ed. (1909) (by J. Chisholm) 398.
25. (1757) 1 Ken. 512, 96 E.R. 1074.
26. (1693) Comb. 221, 90 E.R. 440.
27. (1614) Godb. 252, 78,E.R. 147.
subsidiary ground, which was followed in the Stationers'
case, was that the members of the Company in judging whether
or not an apprentice had served his apprenticeship, would be
'judges in their own cause'. The use of that expression is
in the context, clearly indicative of the !!!! judex principle,
rather than that the invalidity was induced through uncertainty
as to how the discretion might operate. Lumley fails to
explain the relevance of either case to the proposition he
supports.
- 28
(iii) In Gerrish v. Rodman, a bylaw provided a panalty of
20s fer the depasturin.g of sheep on a common contrary to
that bylaw, and all former bylaws. There was no evidence
to show what was the content of the former bylaws. Although
Blackstone J. describes the bylaw as •uncertain', it .does
not appear that the Court believed the bylaw to be bad for
this reason. The case was stood down for further argument.
The. true reason for the opinions expressed by the judges
would appear to be a re~uctance to enforce unpublished
legislation. 29 The judges clearly did not accept uncertainty
per ~ as an invalidating factor.
(iv) The Innholder's case3° Blackpool Board of Health v.

28. (1771) ~ Wils 155, at 164; 95 E.R. 986, at 992.

29. Cf. McDevitt v. McArthur (1919) 15 Tas. L.R. 6;
Arnold v. Hunt (1943) 67 C.L.R. 429; O'Kee·fe v. Gity
of Caulfie'idT1945) V.L.R. 22?; Wright v. 'T •. I.L.
Services Pty. Ltd (1956) 56 S.R. (N.S.W.) 413; and
Sobania v. Nitsche (1969) 16 F.L.R. 329.
30. (1?50) l Wils. 281, 95 E.R. 619.
 155-
Bennett31 and Piper v. Cha;ppell-'2 'are, if anything, against

Luml~y's proposition. In the first case, the objection of a

brother of the Company, four years in arrears, that no
particular days were appointed by the relevant bylaw for his
quarterly subscription payme?ts,was r~jected. A similar
argument was rejected in the Blackpool case. Piper v. Chappell,
another case on certainty of penalty, followed Woodruffe's

case in rejecting ~ v. Searl.

(v) Eagleton v. The East India Company33 is, it is submitted,
despite Lumley's efforts to demons~rate otherwise, concerned
solely with unreasonableness. Couns.e_l for tl:l,e plaintiff did,
however contend that the expression 'giving satisfaction'
where it appeanedin the defendant's conditions of sale
(regarded for argument •·s sake as a bylaw) was incapable of
precise meaning. The submission was rejected, the expression
interpreted narrowly, and t~e conditions upheld.
(vi) Wood v. Searl, as has been seen, must (to the extent
that any proposition of law may be gleaned from it), be
deemed to have been overruled at the time Lumley was writing.
(vii) Lumley refers also, on the matte» of certainty of
penalty, ·to Kyd on Corporations, where it is stated that:

31. (1859) 4 H. & N. 127, 157 E.R. 784.

32. (1845) 14 M. & We 624, 153 E.R. 625.
33. (18a2) 3 B. & P. 55, 127 E.R. 32.
 156 ..
[the penalty] must not be left to the arbitrary
assessment of the makers of the law according to
the circumstances, even though the utmost extent
of the sum be limited.34
This passage, claims Lumley, was cited with approbation
by Lush J. in Hall v. Nixont5 But it is clear that it was
to an earlier passage fr0m the same page of Kyd that Lush J.
was extending approval, and it is only in the Law Times
report of ~ v. Nixon that the above passage is quoted.
It appears in neither the 1aw Reports nor the Law Journal, and
indeed it is tolerably clear that at the time Lumley was
writing, it no longer represented the law.3 6
None of the authorities relied on by Lumley supports the
test that he states. In none of the cases that might still
be regarded as good law in 1877 when Lumley was writing, had
a bylaw been held void for uncertainty.
Yet Lumley's work had considerable influence. A bylaw
was held void for uncertainty in this country in 1896 in
reliance upon the p.rinciple stated by him.3? And in 1898
in Kruse v. Johnson3 8 Mathew J. referred to another portion
of Lumley's work at one stage of his dissenting judgement.

34. Kyd, Corporations Vol. 2; 156. In his introduction,

Lumley says of this work, • ••• there is an able and well
compiled chapter upon By-Laws but as the work was
published at the end of the last century, it is not
practically of much use at the present day.'
35. (1875) 3~ L.T. 92; L.R. 10 Q.B. 152; 44 L.J. (M.C.) 51.
36. As a r(lsult of Piper v. ChapPell (1845) 14 M. & W. 623,
153 E.R. 625.
37. Brown v. Mcinnes (1896) 15 N.Z.L.R. 256.
38. [1898] 2 Q.B. 91, at 108 •
•
 157-
That reference is significant, for immediately following
it Mathew J. proceeded to state what has b~en described39 as
locus classicus of the modern rule of uncertainty:
From the many decisions upon the subject it would
seem clear that a by-law to be valid must, amongst
other conditions, have two properties - it must
be certain, that is, it must contain adequate
information as to the duties of those who are to
'obe¥, and it must be reasonable: see City of
London Case;40 Com. Dig!! By-law B 1; FramewE>rk-
Knitters' Co. v. Green;~l Eagleton v. East India Co.42
Only five years earlier, Cave J. in the Divisional
Court 4 3 had said of an argument that the bylaw under
consideration there was void for uncertainty, that
This objection is somewhat peculiar. The usual
and general objectio.n to a bylaw is that it is
unreasonable but here we have it that the
respondent objects because it is vague and
uncertain. In my opinion this is a dangerous
question to be left to .\J'ustic~, who may decline
to enforce a particular bylaw framed by a
county council because in their view it appears
to be vague, or vaguely expressed. I think that
would lead to a great deal of bad law being laid
down by Justices, and perhaps to a disinclination
on their part to enforce bylaws at all, whenever
in their ,opinion the language is vague.
It is surprising then that Mathew J. was able to
state the proposition as assertively as he did. His

39. By B. A. Sugerman, 'Uncertainty in Delegated Legislation'

(1945) 18 A.L.J. 330, 331; and by B. D. Inglis,
'Statutory Regulations, Ambiguity, Uncertainty, and
Avoidance' (1959) 35 N.Z.L.J. 133. See also H.A. Street,
The Doctrine of Ultra Vires (1930) 50, and per North P.
in Masterton Co-C:S·erative Dair Co. Ltd v. Wairarapa
Milk Board 19 N.Z.L.R. 771, at 77 •
40. (1609) 8 Co. Rep. 12lb; 77 E.R. 658.
41. (1969) 1 Ld. Raym. 113, 91 E.R. 972.
42. (1802) 3 B. & P. 55, 127 E.R. 32.
43. Martin v. Clarke (1893) 62 L.J. M.C. 178, at 179.
 158.
authorities call for further consideration.

(i) The City of London Case: a bylaw here was closely

examined for unreasonableness, but a careful examination
of the report reveals no mention of uncertainty, nor do the
terms of the bylaw appear in any way uncertain.
(ii) Comyn's Digest refers solely to unreasonableness.
Similarly, as noted above, other writers and compilers of
early abridgements, while stressing that bylaws must be
reasonable, make no mention of certainty as a condition of
J. y. 44
val J.•d•t
(iii) In Framework-Knitters Co. v. Green the bylaw in
question provided a mode of fixing penalty similar to that in
~ v. Searl, yet, as counsel in the later case of Piper v.
Chappell 45 pointed out, no objection was taken to it on
the grounds of uncertainty nor was the question considered.
Again, the concern of the court was with reasonableness.
(iv) Eagleton v. East India Co.: It will be recalled that
Lumley also cites this case, and its relevance has already

been considered.
The authorities cited by Mathew J. all support the
second of his conditions of validity - reasonableness, but
do not support the existence of a test of certainty. The
most likely source relied on by Mathew J. for thattest,

See footnote 19 sutr4.

(1845) 14 M. & W. 2 , at 644; 153 E.R. 625, at 633e
 159.
it is submitted, is Lumley's Essay on By-Laws.
It will be recalled that Mathew J. was dissenting in
Kruse v. Johnson - in fact he was the sole dissenting judge
46
of a specially constituted Divisional Court of seven judges.
Further, his words on certainty are obiter. It is indeed
surprising that they have received such widespread
recognition, and that they should have been relied on as
supporting the test of certainty throughout the Commonwealth. 47
3. The Twentieth Century
This century has seen the development of a range of
different approaches to the certainty test in different
common-law countries. The result is that the test varies
in its status and application in Australia, England and New
Zealand.
(a) Development in England
(i) The early cases
The application of the test in Britain has proved
confused and inconsistent. One possible explanation is
that the early ·cases of this century which hav,e been later

46. The reason why the Court was specially constituted

was that the original Divisional Court that had heard
the case, comprising Lord Russell C.J. and Mathew J.
had been unable to agree.
4?. See e.g. in this country: Masterton Co-o erative Dair
~;~ Ltd v. Wairarapa Milk Board 19 N.Z.L.R. 771, at
per North P.; in Canada:Springbank Municipal District
v. Render [1936] 4 D.L.R. 193, at 198 per MiGillivray
J.-A.; in England: Attorney General v. Denby [1925]
Ch. 596, at 616 per Astbury J.; and in Australia:
Bendixen v. Coleman (1943) 68 C.L.R. 4ol, at 423 per
McTiernan J. See also 24 Halsbury's Laws of England
3rd ed., 51? para. 951.
 160.
cited as precedents, are not altogether satisfactory.
Two cases almost invariably relied on by text writers 4 ~
and frequently too by counse1 49 are~ v. Finlay5® and
Scott v. Pilliner~
1

In the former case, a bylaw that provided that 'no

person shall wilfully annoy passengers in the streets' was
held bad, because in the opinion,of Lord Alverstone L.J.,
it was difficult to understand what it was intended to
cover that was not .already within the ambit of the other
bylaws. Although Channell J. sought to stress that the
Court's decision was based on a lack of certainty, it is
clear that it was not in the sense of lacking adequate
information that the bylaw was uncertain. The special
facts of the case make it a rather special intance, and
it has proved of little assistance in later decisions.
The decision would appear to haEe since been limited to
its facts. 52·

48. See e.g. Maxwell on Inter retation of Statutes 11th ed.

(by Roy Wilson Q.C. and Brian Galpin 19 · 2 290;
Craies on Statute Law 6th ed. (s.G.G. Edgar) 328;
Odgers' Construction of Deeds & Statutes 5th ed.
(G. Dworkin) (1967) 432, de Smith, Jud.icial Review of
Administrative Action 2nd ed. (1969) 339; J. F. Garner,
Administrative La.w 2nd ed. (1967) 81; and 24 Halsbury
(jr.d ed.) 517; 2 Stone's Justices Manual (1970 ed.) 2170.
49. See e.g. Ireland v. Wilson [1936]· 3 All E.R. 358, and
Fawcett Properties Ltd v. Buckingham County Council
[1961] A.C. 636. .
50. (1901) 85 L.J. 682; 20 Cox. C.C. 101.
51. [1904] 2 K.B. 855.
52. See Ireland v. Wilson [1936] 3 All E.R. 358, at 359
per Lord Hewart L.C.J.
 161.
In Scott v. Pilliner, the bylaw under consideration provided:

No person shall frequent and use any street or

other public place, either on behalf of himself
or of any other person, for the purpose of selling
or distributing any paper or written or printed
matter devoted wholly or mainly to giving
information as to the probable result of races,
steeplechases or other competitions.
In the Divisional Court, Phillimore J. was in favour of
upholding the bylaw. Kennedy J. on the otherhand, was of
opinion that it was too unreasonable to be upheld. Lord
Alverstone C.J. also saw the ianguage of the bylaw as
being too wide, and stated that he thought it was desirable,
'for the good government of a locality that bylaws should
be clear and definite and free from ambiguity•. He
concluded,
Therefore, both on the ground of uncertainty, and
mainly on the ground that it may strike at perfectly
innocent sales of papersl I think this bylaw is bad
and cannot be supported.~3
The decision was in fact principally on the ground
that the width of the language used might have taken the
bylaw outside power. The Court was not prepared to make
appropriate implications limiting its application, 54 so

it failed for unreasonableness.

Neither that case nor ~ v. Finlay are _valuable
precedents, as more than one judge has been quick to point

53- [1904] 2 K.B.· 855.

54. See Poulters Co .• v. Phillips (1840) 6 Bing N.C. 314,
133 E.R. 1:24, Tobacco Pipe Makers Co. v. Woodroffe
(1825) 7 B. & C. 835, at 853; 108 E.R. 935, at 942
Collman v. Mills [1897] 1 Q.B. 396.
 162.
out, 55 and it is probable that their continued use has
served to weaken even further the test of uncertainty in
England.
Another reason that might be suggested for the
confusion in English law is that the test of uncertainty has
on occasion been confused with the old maxim of statutory
interpretation, that 'a man is not to be put in peril upon
an ambiguity•. 56 Some judges have preferred, in the case
of ambiguity, and sometimes vagueness to adopt a construction
whereby an accused person may still be acquitted yet the
bylaw remain valid. 57 _ An acquittal is of course possible
only in the fact situation where it is unclear whether
an accused person's behaviour was covered by the bylaw or
not. For this reason the maxim is of little assistance
where there has clearly been a breach of the bylaw, if it is
valid, nor where the bylaw is being attacked directly.

55. See particularly Lord Denning in Fawcett Properties Ltd

v._ Buckingham County Council [1961] A.C. 636, at 677,
where it is submitted, counsel's reliance solely on
Scott v. Pilliner may have led his Lordsh~p to dismiss
too readily submissions based on uncertainty in bylaws:
see per Diplock L.J. in Mixnam's Properties Ltd v.
Chertsey U.D.C. [1964] l Q.B. 214, at 235·
56. See London and North Eastern Railwa Co. v. Berriman
[194 A.C. 27, at.313-31, per Viscount Simonds.
57. See e.g. Treasure and Co. v. Bermondsey Borough Council
(1904) 68 J.P. 206, at 207 per Kennedy J.: 'it ought to
be made not me,rely inferentially possible, but absolutely
clear as a matter of ordinary construction of language
that they have done something which is forbidden ••• ! do
not think that you ought to convict a person on
inference ••• •. Cf. Foster v. Moore (1879) 4 L.R. Ir.670.
Yet it is possible that on occasion the assistance of the
maxim may have overshadowed the quite separate test of
certainty as a factor of validity.5 8

In only one reported English decision this century does

it appear that a bylaw has in fact been held void for
uncertainty, 59 although the test has been argued and
mentioned in a number of cases. 60
(ii) Extensipn to other public law instruments
Conditions imposed upon grants of planning permission
have caused difficulties in England, and on occasion their
want of certainty has been questioned in the courts. It
has been stressed that conditions should be worded in
plain language so that any layman might understand what was

58. Particularly in Fawcett Pro~erties Ltd v. Buckingham

County Council~[l961] A.C. ~36. See particularly Lord
Cohen, at 662; and Lord Denning, at 677. And cf,
McEldowney v. Forde [1971] A.C. 632, at 653 per Lord '
Pearce.
59. In Attorney-General v. Denby [1925] Ch. 5,96, but even
here Astbury J. talks of it merely as being '~lid
in the present cas.e' (612) and 'too uncertain. for me to
give effect to it in this cas.e'. and 'so uncertain that I
am un~ble to place any construdtion upon it as applying
to this case' (616) (Emphasis added). It is possible
that the learn~d Judge saw the test as one of construction
only. Cf. Townsend (Builders) Ltd v. Cinema News and
Proper~yManagement Ltd [1959] 1 All E.R. 7, at 10:; per
Lord Evershed M.R.: '.·•• a court will be all the slower
to hold byklaws invalid in proceedings to which the lpcal
authority concerned are not parties [sic].•
60. See e.g. Leyton Urban District Council'v. Chew [1907] 2
K.B. 283; Dunning v. Maher (1912) 106 L.T.~, 23 Cox
C.C.l; Robert Baird .Ltd v •.~ity eft' -Glasgow [1936] A.C.
32; Ireland v. Wilson (1936] 3 All E.R. 358, at ,359.
Lord Hewart's words in United Bill ~osting Co. v. Somerset
County Council (1926) 95 L.J.K.B. 899 strike a reassuring
note: 'Nothing is more clearly settled than that a bylaw
must contain adequ~te information regarding the duties
of those who have to obey it.•
 164.
61
required, but the degree of uncertainty needed to cause
invalidity is not clear. In Mixnam's Properties Ltd v.
Chertsey Urban District Council 62 it was accepted in both the
Court of Appea1 63 and House· of Lords 64 that a condition might
be considered analogous to a bylaw, and hence held void for
uncertainty. It would appear that a similar test might be
applied to the two types of instrument, and that a planning
condition ought to contain adequate information as to the
duties of those bound by it. However, it is necessary to
afford brief consideration to the decision of the House of
Lords in Fawcett Properties Ltd v. Buckingham County Counci1. 65
There it was held that the particular planning condition
under consideration should be held void for uncertainty only
if it could be given no sensible or ascertainable meaning.
The case is, it is submitted, distinguishable on its facts,
for the allegedly uncertain phrase had been borrowed vertabim

61. See e.g. Crisp from the Fems v. Rutland County Council
(1950) ~14 J.P. 105, at 112 per Denning L.J.
62. [1964] 1 Q.B. 214 (Court of Appeal), [1965] A.C. 735·
63. See part~cularly per Diplock L.J., [1964] 1 Q.B. at
235, but~also per Willmer L.J. at 227 and Dankwerts L.J.
at 2}b~3'5. .
64. q~f~,;?J A•:G. 735, at 747 per Lord Reid, and at 753 per
Vdiicount·Radcliffe. It was considered in the House of
Lords ''that to decide the case solely on the grounds
/ of certainty would not benefit either party, since
the conditions could be rewritten in more definite
form and the substantive question come up again for
decision: see e.g. at 747, per Lord Reid.
65. [1961] A.C. 636-,
from a statute. Those members of the House of Lords who
doubted if it were too uncertain to be enforced, tended to
equate the invalidation of the condition with the invalid-
ation of the statute in which the same wording appeared, and
hence were anxious to accord it what meaning they might. 66
A major significance of the case for this study is in its
demonstration of a wide diverg~.nce of judicial opinion on
the status and operation of the certainty test in England
today, 67 and accordingly it will receive further consideration
later in the text.
So far, attention ha~ been paid solely.to the operation
of the certainty test at local government level. It is
possible however, that the certainty test extends also to
executive legislation. Seldom have statutory regula_tions
ever been challenged in the British courts, and indeed
68
Lord Guest recently stated, in McEldowney v. Forde that

66. .!..!?.!!•'
662, per Lord Cohen; 676 per Lord Denning; 692
per Lord Jenkins. See also in Court of Appeal [1959]
Ch. 543, at 568 per Lord Evershed M.R. 574 per Romer L.J.
Cf. Pearse v. City of Sauth Perth [1968] W.A.R. 130, at 136.
In the Court of Appeal in Mixnam's Properties Ltd.v.
Chertsey U.D.C. [1964] 1 Q.B. 214, at 238 Diplock L.J.
was of the opinion that Fawcett's case had cast some
doubt on the correctness of certainty as an independent
test of validity.
68. [1971] A.c. 632, at 649 H.L. (N.I.); see too[l969] 2
All E.R. 1039 where the decision of the Court of Appeal
of Northern Ireland is also reported. One must question
Lord Guest's comment that since 19i7 he had been unable
to discover any case where a regulation made under statute
had been challenged. Such a challenge who made and
successfully in Chester v. Bateson [1920] 1 K.B. 829, and
in Commissioners of Customs & Excise v. Cure & Deeli¥}'Ltd
[19b2] 1 Q.B. 340; and see Hotel and Catering Industry
Trainin~ Board v. Automobile Proprietary Ltd [19b9J 1
W.L.R. 97 •
 166.
'it must be plain that the task of a subject who
endeavours to challenge the validity of such a regulation
is a heavy one.• In that case, however, a regulation made
by the Minister of Home Affairs for Northern Ireland was
attacked, the main ground of challenge being that of
uncertainty of language. The regulation prohibited member-
ship of a number of listed organisations deemed to be
unlawful, and added to that list, 'The organisations at
the date of this regulation or at any time thereafter d
describing themselves as "Republican Clubs" or any like
organisation howsoever described.'
The final phrase clearly describes a wide class without
precision, and for this reason two members of the House of·
Lords would have held the regulation uncertain and. void. 6 9
But by what authority might aeregulation be tested for
certainty? There were at least three different views.,
Lord Pearce based much of his reasoning upon the maxim that
a man must not be placed in peril upon an ambiguity in the
criminal law. But, as was pointed out by Lord Denning in
the Fawcett Properties?l case, this is a principle of
interpretation, and not a yardstick of validity.
Lord Diplock 1 too, was of opinion that the regulation
should fail for uncertainty, but on a different basis. '12

69 .. Lords Pearce (supra, at 653) and Diplock (supra, at 665).

'10. Ibid., 653. The argument was put in these terms by
~sel, at 640.
71. (1961] A.C. 636, at 6??.
72. [1971] A.C. 632, at 664-665.
The Minister's authorisation was to make regulations,
'for making further provision for the preservation of the
peace and the maintenance of order•' If the Minister's
intention were to proscribe !!! clubs and associations in
Northern Ireland, stated Lord Diplock, the regulation
plainly-fell outside the authorisation. But if his
intention were to proscribe some narrower category of
organisations the suppression of which would have the effect
of preserving the peace and maintaining order, he had failed
to disclose in the regulation what that category was. The
meaning of the regulation was so vague that it could not be
said to fall within the words of delegation. His Lordship
appears to have considered this to be an issue distinct from
the other ground of uncertainty which he believed existed,
that the words used were too vague and uncertain in their
meaning to be enforceable.
Lord Hodson, on the other hand, thought the objection
of vagueness to be tied up with arbitrariness in the sense
that the question became, was the regulation so vague and
arbitrary as to be wholly unre~sonable, and therefore not a
valid or legitimate exercise of the Minister's power. 73 His
Lordship did not believe thattest to be satisfied. Lord Guest 74

73. Ibid., 643, at 646, Quaere whether the regulation wou~

then be said to have been enacted in bad faith, or would
gross unreasonableness per ~ be sufficient?
74. ~., 650.
 168.
appears to have had a similar understanding of the role of
uncertainty, but again did not consider the class of 'like
organisations' to be so wide as to render the Minister's
~xercise of power 'unreasonable arbitrary and capricious'.
Lord Pearson 75 saw the uncertainty argument as the
'most formidable' against the validity of the regulation,
but was prepared to construe the regulatimn in such a way
as to render it within power.7 6

All of their Lordships appear to accept that vagueness

of language, although falling short of unintelligibility,
might render a statutory regulation invalid. Clearly, a
high degree of ~ncertainty would be required to have such
an effect, and it is perhaps significant that no mention
appears in the reports of McEldowney v. Forde to the bylaw
cases.
It is submitted that it is unclear from that case whether
a successful challenge of a regulation for uncertainty must
depend upon proof of insurmountable difficulties in enforce-
ment on the one hand, or, on the other, proof that the
wording is too wide to fall ~ithin the authorisation.
Because of the subjectivity of assessment of degrees of

75. Ibid., 65?, cf. Brierly v. Phillips [194?] K.B. 541, at

~per Lord Goddard L.C.J.
?6. It is significant that McVeigh L.J. in the N.I. Court
of Appeal considers vagueness and ambiguity, but only
in relation to the authorising statute and that part
of the regulation stating the power being invoked and
that it was expedient to involve it, using a test
gleaned from A-G for Canada v. Hallett & Carey.Ltd
[1952] A.C. 427 ([1969] 2 All E.R. at 1050).
uncertainty of meaning, however, it is doubted if the
difference in effect of either test would be significant,
particularly where the authorisation is itself in very wide
terms.
To the extent then that statutory regulations in Britain
may be tested for uncertainty, that test appears distinct,
at least so far as it has developed, from the similar test
for bylaws, which may be viewed as imposing a condition of
certainty upon the valid exercise of bylaw making powers.
In Commonwealth countries, the status of the test with
regard to the two different instruments is also sometimes
seen as distinctly different.
Consideration may now be given to the develop~ent of
the certainty test in both New Zealand and two other Common-
wealth countries with similar principles of judicial review,

Australia and Canada.

(b) New Zealand
(i) The early cases
In this country the fact that bylaws might be set
aside for uncertainty was recognised some time before Kruse
v. Johnson was decided. As early as 1888 Prendergast C.J.
was able to test a bylaw on this ground, but found it not
too indefinite. 77 ? In two cases in 1896, however, bylaws
were held void on this ground. In the first, Brown v •. Mcinnes,
78

77. Johnson v. Hammond (1888) 7 N.Z.L.R. 245, at 249.

78. ·(1896) 15 N.Z.L.R. 256, at 258.
 170.
Williams J. relied on Lumley for the proposition that a
bylaw should be 'certain in its enactment, and afford
complete direction to those who are to obey it.' The
learned Judge punported to rely also on the Irish case of
Foster v. Moore 79 but upon examination that,decision shows
that while the court there was prepared to insist that bylaws
be worded clearly, it was not necessarily prepared to
invalidate those that failed to meet its prescribed standards.
For his action in invalidating the bylaw, Williams J. had no
direct authority but Lumley.
80
In the second case, that of Riddiford v. Collier (No.2)
a statutory regulation provided:
Every cowshed shall be lighted, ventilated and
cleansed to the satisfaction of the inspector.
Uncertainty was not argued, although the authorities that
were argued dealt with bylaws, and not regulations. Their
application to regulations was justified by reference tQ
81
Lumley's wide definition of 1 bylaws•. Prendergast C.J.
stated,
Persons desiring to comply with these regulations
would not know what was required; and that, I
think, is too vague. A regulation should be
definite, so that persogs wanting to comply with
it may know what to do. 2

79. (1879) 4 L.R. Ir. 670, at 676.

80. (1896) 15 N.Z.L.R. 344.
81. That definition (Lumley p.2) is: 'A By Law is a law made
with due legal obligation, by some authority less than
the Sovereign and Parliament, in respect of a matter ~
specially or impliedly referred to that authority, and
not provided for by the law of the land.'
82. Supra, at 347.
 171.
No authority is cited in the judgement for invalidating
the regulation on this ground, but the similarity of
expression to that of Lumley points again to that work
as its source.

However, legislation in this form whereby matters were

reserved to the Aiscretion of some official of the council,
was becoming increasingly popular as local government
extended its control, especially in areas such as hygiene
and public health. Close control might otherwise require
that bylaws contain a welter of detail. If the local
authority had power to prohibit some activity, then there
could probably be no objection to its authorising some
relaxation of that prohibition at the discretion of its
delegate. 83 But without such authorisation, bylaws that
left matters to official discretion were likely to be
viewed by the courts as not bylaws at all.
Steps were finally taken towards settling the issue in
1900 following a decision by Sir Robert Stout in Staples & Co.
~ v. Wellington City84 where a bylaw had authorised the
Council itself to require certain publie(buildings to be
protected against fire, and to be constructed in a different
manner and of different materials from those otherwise required

See now, Country Roads Board v. Neale Ads. Pty Ltd (1930)
43 C.L.R. 126, and Ideal Laundry v. Petone Borough [1957]
N.Z.L.R. 1038.
84. (1900) 18 N.Z.L.R. 857; cf. McGill v. Garbutt (1886)
N.Z.L.R. 5 S.C. 73; McPhee v. Wolters (1901) 20 N.Z.L.R.
493; and Miller and Giorgi v. Collinge (1909) 28
N.Z.L.R. 358.
 172.
by an earlier bylaw. It was argued, relying again on
Lumley, 85 that the bylaw was bad for leaving everything

to the discretion of the Council in each case. The

submission was upheld.
(ii) Legislative intervention
86
As a direct result of that decision the legislature,
at the request of the Municipal Association, inserted in the
Municipal Corporations Act 1900 a new section, that provided:
405(1) A by•law may require any works or things to
be executed or done of materials, within a time, or
in a manner to be directed or approved in any
particular use by the Council or any officer thereof,
or other person:
(2) A by-law may leave any matter or thing to be
determined, applied, dispensed with, prohibited, or
regulated by the Council, from time to time by
resolution, either generally or for any classes of
cases, or in any partic~ar case: ••• 87
No., that Act settle9.'•· for municipal corporations, that
bylaws of the Staples and Riddiford v. Collier types need
no longer be invalid. In 1910 similar, though not

85.. (1900) 18 N.Z.L.R. 857, at 858.

86. Fair J. in Hazeldon v. MeAra [1948] N.Z.L.R. 1087, at
1104 points out that Staples was decided·on August 13,
1900 and the Municipal Corporation Act passed on
October 18, 1900. No debate on s.4o5 is to be found
in Hansard. (Vols 114, 115 N.Z. Parl. Debates).
87. Re-enacted successively in Municipal Corporations Acts
of 1908 ~s.346), 1920 (s.357), 1933 (s.367) and 1954
(s.390). It is curious that a similar provision
was not provided in the Counties Act until 1956
(s.405). The section quoted in the text has been
judicially considered in Munt, Cottrell & Co. (Limited)
v. Dolle (1904) 24 N.Z.L.R. 417; Bremner v. Ruddenklau
[1919 N.Z.L.R. 444; and Trillo v. Christchurch City [1935]
N.Z.L.R. 64. A similarly worded subsection but relating
to statutory regulations is contained in the Urban
Renewal and Housing Improvement Act, 1945; s.39(3).
 173.
identical, protection was extended to other bylaw making
authorities, by the Bylaws Act. The Act authorises the
reservation by bylaw of matters to 'the local authority,
any officer or servant, or any other person•, but with
the proviso that the protection shall not apply where the
discretion left is so great as to be unreasonable. 88
However the uncertainty deriving from reservation of
power is but one type of uncertainty falling under Lumley's
wide proposition. It may in fact be doubted if it ought
now to be considered under the head of uncertainty at all.
In New Zealand at least, the question must now be one solely
of power. If such a mode of legislating can be said to be
authorised by Parliament, the fact that the byla~ is thereby
rendered uncertain will not serve to invalidate it. 89 The
Bylaws Act, together with provisions in the Counties and
Municipal Corporations Acts, today provides wide protection.
But the Bylaws Bill, when originally introduced to
Parliament, was designed to provide even greater protectione
Clause 13 provided simply, :1.}~'No by;baw shall be invalid
on the ground of uncertainty~

88. Section 13, By-Laws Act 1910. See too Meredith v.

Whitehead [1918] N.Z.L.R. 1041; Stanley v. Scott
[1931§] N.Z.L.R. ~5 Hanna v. Auckland City [1945]
N.Z.L.R. 622; and Ideal Laundry v. Petone Borough
[1957] N.Z.L.R. 1038, at 1055.
89. See further Chapter 9 infra. See also Sugerma~,
'Uncertainty in Delegated Legislation' (1945)
18 A.L.J. 330, at 333·
 174.
The Attorney General of the day, Dr Findlay, in
explaining the reasons for this proposal to the Legislative
Council, stated:
••• it would be wearisome if one gave illustrations
of how often bylaws have been tested on what lawyers
call the ground of uncertainty - uncertainty which to
a layman would be no uncertainty at all - uncertainty
because the courts are bound by obsolete rules of
interpretation which once were of use, but which now
are nonsense.90

All that was proposed, he explained, was to apply to bylaws

the same cannns of construction as are applied to statutes,
and in particular that provision that is now s.5(j) Acts
Interpretation Act 1924. He continued:
I could give you, from Lumley's book on by-laws, an
illustration of how a by-law can be put out of court
on what seems trivial grounds of uncertainty. Do we
want by-laws upset on grounds like that?. If I went
on I could give you a hundred illustrations of how
by-laws in the past have been upset because of the
old rigid rule that unless the words were so clear
that a man half-asleep could say what they meant
there could be no eonviction.91
Concern at the proposal was expressed by another speaker,

Mr Sinclair, who asserted:

This seems to me to do a very great deal more than
touch old and obsolete rules. It is a matter of
substance, altering a principle that is in force
now - a principle that I submit is a very wholesome
one: that every by-law shall be clear and specific -
that there shall be no doubt about its meaning ••• A by-
law, if it is uncertain, may be capable of two
constructions - it may be open t~ more. It is like
a two pronged fork - it could impale its victim on
either pro~g.92

90. (1910) 149 New Zealand Parliamentary Debates, 750.

91. Ibid., 757.
92. Ibid., 751-752.
 175.
It is probable that the custom of Parliamentary

debate resulted in overstatements by each party. The Bill

was then referred to the Statutes Revision Committee. When
reported back to the House, the clause had been deleted. The
test of certainty continued to be applied by the Courts.
(iii) Extension to other public law instruments
There appear to be few reporte~ instances of t~e

application of the certainty test to planning emdi tions in

this country, and these are discussed elsewhere in this work.
But its application t() statutory regulations calls for further
co-nsiderati·on at this point.
Re~erence was made earlier to the decision in Riddiford v.
Collier (No.2), where a regulation of the Governor General was
held bad on this ground, in reliance upon the wide definition
of bylaws tendered--by Lumley. 93 That definition is certainly
wider than would be accepted today, since it is no longer the
custom to refer to regulations of the central government as
'bylaws•. Furthermore~ all of the cases on certainty cited by
Lumley relate solely to local, as opposed to nation~l,_

legislation. It is accordingly· doubtful ·how far Riddiford 1 s

case may be regarded as correct~ Unfortunately, the law is

confused.
One decision which, with respect, serves only to add to

that confusion _is !• v. Broad 94 a decision of the Judicial

Committee in 1915. There, a statutory regulation (though

93. The definition is set out in footnote 81, supra.

94. [f915] :· A.c. 1110.
 176.
again called a bylaw) provided that level railway c!Dossings
should be crossed only at a walking pace, and that
••• every person shall, before crossing the lines
of rail, comply with the directions upon the
notice board, ''stop: look out for the engine'.
The action arose from the death of the respo~dent's

husband from being struck by a train, and his non-compliance

·with the terms of the bylaw was relevant to the issue of
negligence. The opinion of the Judicial Committee is, with
'
respect, unusual. Having concluded that the majority of
the New Zealand public was in the habit of ignoring the
notice boards and avoiding •an idle and irritating ritual•, 95
when no engine was near, their Lordships concluded that, as
a result, in the minds of the New Zealand public the bylaw
did not bear the construction contended for it by the
Railways Department. Their Lordships continued:
••• that is proof that the bylaw fails by reason
of its ambiguity to give adequate information
as to the duties of those who are to obey it:
~ v. Finlay96
The re~uctance of their Lordships to construe this
ambiguity, if in fact one existed, may have perhaps been
influenced by the circumstances of the case and the fact that
the deceased had clearly been misled by that 'construction'
held by the general public, and also by the conduct on this
particular occasion, of the servants of the railway authority
itself, to believe that no train was coming. It is submitted,

95. Ibid., ll2l. Also described, at 1123, as a 'useless and

cumbersome ceremony.•
96. Ibid., 1122. See discussion of Nash v. Finlay (supra).
 1'77·
however, that the decision might best be regarded as
confined to these particular facts, and not as a precedent
for the application of the certainty test to statutory
regulations. 9'7 It appears to have been seldom used
as such in more recent cases.
In fact, when Hardie Boys J. came to consider whether
a statutory regulation might be tested for certainty, in
Strawbridge v. Simeon98 he found a lack of authority, not,
apparently, having been referred to either Broad's or
Riddiford's case. His Honour referred to the English decision

9'7. Sugerman, in 'Uncertainty in Delegated Legislation' (1945)

18 A.L.J. 330, at 336-33'7, asserts that the effect of the
decis1on appears to be that habitual popular interpretation
of a bylaw makes it uncertain. He states in a footnote
however, that 'The true explanation may well be that the
decision deals with uncertainty not as affecting validity
but as affecting the issue of contributory negligence
where there has been disobedience of the by-law.' Although
this may provide a convenient method of avoiding the
decision, it is submitted that such an interpretation is
precluded by the statement of their Lordships (at 1123)
that the bylaw cannot be sustained. Acceptance of
Sugerman's suggestion would seem to lead to the untenable
proposition that a different (and lesser) degree of
uncertainty should operate to invalidate a bylaw in civil
proceedings, from that required in criminal proceedings,
or in cases of direct challenge.
98. [1959] N.Z.L.R. 405. Noted by B.D. Inglis, 'Statutory
Regulations, Ambiguity, Uncertainty, and Avoidance' (1959)
35 N.Z.L.J. 133. It is respectfully submitted that
parts of this note may be misleading. Three of the nine
cases cited (at 133) as examples of Australian courts
holding statutory regulations void for uncertainty are.
in fact concerned with price orders made under authority
of statutory regulations; Bendixen v. Coleman (1943)
68 C.L.R. 4ol, Vardonv. Commonwealth (1943) 67 C.L.R.
434, Ex parte Ryan, Re Bellemare (1945) 46 S.R. (N.S.W.)
152. In two of the nine cases, the regulation concerned
was not even held void: Bendixen v. Coleman (supra) and
Wright v. T.I.L. Services Pty. Ltd (1956) 56 S.R. (N.S.W.)
413. Furthermore, the learned writer appears to have
overlooked the significance of the judgement of Dixon Jo
 178.
in Brierly v. Phillips 99 where Lord Goddard L.C.J. had stated
categorically that he was not. prepared to -support statutory
orders couched in language open to all sorts of meanings,
'so that the unfortunate people cannot know whether they are
acting legally or not, unless they get counsel's opinion,
or at any rate a solicitor's advice', and also to a passage
from Sir Carleton Allen's Law and Orders100 which might be
considered as implying that the certainty test extended to
regulations. Neither source is satisfactory, however, for
Lord Goddard fails to state whether a court has power to
hold regulations void for uncertainty, aa distinct from
unenforceable in a particular case; and the passage from
Sir Carleton Allen's book is itself ambiguous. Hardie Boys J.
was unwilling, in the absence of further authority, to
dispose of the appeal on the ground of uncertainty, but was
able to hold instead on other grounds that the regulation in
question was ultra v:ires its authorising Act. 101

98. Cont.
in King Gee Clothing Co. v. Commonwealth (1945) 71 C.L.R.
184 (discussed elsewhere in this work) which has had the
effect of denying the operation, in Australia at least,
of uncertainty as an independent test of validity.
99. [1947] K.B. 541. Also referred to was R. v. Minister
of Health; Ex parte Davis [1929] 1 K.B7 619.
100. 2nd Ed. (1956) 274.
101. [1959] N.Z.L.R. 405, at 4o8.
 The opportunity l'l>f clarifying the situation was not
taken, it is respect'ii'illy submitted, in the recent decision
of Wild C.J. in~ v. Marine Department. 102 His Honour
was there considering a Fisheries Regulation10 3 that
prohibited the taking by two persons associated together
of shell fish in quantity exceeding 'one four-gallon lot
measured in their shells'. The regulation afforded no
further direction as to how that measurement might be made.
The evidence for the defence raised at the very least a
reasonable doubt as to whether different results migh~ be
obtained by different methods of measurement. That,
suggested the learned Judge, left a position of doubt and
uncertainty. He stated:
It is axiomatic that before a citizen can be
convicted of an offence the law must •define
the elements of the offence with sufficient
precision so that people are not left in doubt
as to whether or not they are committing an
offence.l04

His Honour does not appear to have regarded the regulation

as invalid however, but rather that its uncertainty meant
that the prosecution's burden of proof had not been fulfilled.

102. Unreported, Supreme Court Hamilton, 6 August 1970.

103. R.l06 Fisheries (General) Regulations 1950 (Reprinted
1966/20) as amended 1968/104. Now repealed, see S.R.
1971/71 R.4(e). A subsequent amendment to the
Regulation (S.R. 1971/71) has clarified what is meant
by '4-gallon lot': 106(k)(6) ••• the Court may infer
that the accused committed the offence if the
prosecution proves that the shell fish were poured
into a 2-gallon, 4-gallon or 5-gallon container,
as the circumstances require, and that the accused was
or were in possession of shellfish in excess of the
quantity necessary to fill the container.
104. At p.7 of the judgemento
 180.
To that extent, the effect of his judgement would appear to
be similar to that of Lord Goddard's judgement in Brierly v.
Phillips. An enquiry into the validity of a bylaw or
regulation should be quite a separate matter from an enquiry
into the conduct of a person charged under it, 10 5 which
was the enquiry conducted in both these cases.
The position of the certainty test in relation to
statutory regulations in this country, then, is still uncle~r.

There remains for consideration the question of what status

the test might best be given in this context, and in
determining that issue a study of the approach adopted by
the Australian courts is both informative and helpful.
(c) Australia
Just as writers rather than judges must assume a large
share of responsibility for the present status of the
certainty test in England and New Zealand, so too an article
by B. Sugerman K.C. 106 appears to have paved the way for
reconsideration of the test in Australia.
(i) The early cases
Early application of the certainty test in Australia
was sporadic and inconclusive. As early as 1898 a bylaw
was held void by the Western Australia Supreme Court for
having 'no exact meaning which any reasonable person can

105. See e.g. Masterton Co-o erative Dair Co. Ltd v.

Wairarapa Milk Board 19 N.Z.L.R. 771, at 781
per McCarthy J.
106. 'Uncertainty in Delegated Legislation' (1945) 18
A.L.J. 330.
 18lo
understand, even after considerable study•, 107 but it

was also void for repugnancy to the general law. Again the

Full Court of that State in 1939 in Anchorage Butchers v •

.L 108 1n
~
· a maJOr1
. . t y dec1s1on
. . h e ld 1nva
. 1·1 d a b y1 aw requ1r1ng
. .

certain vehicles to be constructed of wood or 'approved'

metal. Northmore C.J. dissented, by inference likening his
brother judges to a Shakespearian caricature when he stated:
'only a Puckish will to find uncertainty can find it here•. 10 9
Clearly, the issue of unlawful delegation was also present
and it is likely that both Dwyer110 and Wolff JJ. 111 were
influenced by that consideration.
Neither case can be regarded as authority for the
operation of a test of certainty as an independent test
of validity of by~aws. Arguments based on·uncertainty were
put forward in a small number of cases up until the Second

107. Healy v. Dunne (1898) 1 W.A. ~9, per Hensman J. See

also Linson v. Walsh 23 March 1860 Argus Newspaper
(Victoria) (3 Australian Digest, 2nd ed.) (1964) 150
where it appears that a mining bylaw waa held void for
uncertainty for failing to specify the width of a claim
and how its boundaries were to be drawn.
lOS~ (1939) 42 W.A.L.R. 40. Mr Justice Hale, in 'Local
Government By-Laws and Ultra Vires' (1966) 7 Univ. of
West. Aust. L. Rev. 336, at 34o, points out that the
phrase impugned had been lifted from a model bylaw
promulgated under the Health Act, and had been presumed
therefore to be within power.
109. 42 W.A.L.R. 4o, at 48. Followed_in Barker v. ~
(1957) 59 W.A.L.R. 7.
110. Ibid., 43-44.
111. Ibid., 47. See per D'Arcy J. in Pearse v. City of South
Perth [1968] W.A.R. 130, at 132.
 182.
World War, 112 but apparently accepted in only one line of
cases, following Stewart v. City of Essendon. 113 In that
case, the local authority was authorised by bylaw to 'prescribe'
certain areas within the City as residential areas.
Weigall A.J. held that the failure of bylaw to specify
any such areas with sufficient certainty involved that there
had been no 'prescription', and that the bylaw was, therefore,
outside power. Thus, he preferred to regard uncertainty as
something less than an independent test of validity, relating
it instead to a consideration of whether the power had been
. d • 114
we 11 exercJ.se
(ii) Wartime price control, and extension to statutory

instruments
During the Second World War, Australians were faced
with price control measures imposed by the Federal Government.
The difficul t·ies involved in fixing prices for wide varieties

112. See e.g. (1903) 29 V.L.R. 152, at

158; Re District Council of Pros ect;
Ex parte 32 , at 329; ill1. v. City
of Prahran [1926] V.L.R. 410, at 413-414; ~ v. City of
Essendon [1926] V.L.R. 551, at 558 and see also ·
Brunswick Corporation v. Stewart (1941) 65 C.L.R. 88.
113. tl924] V.L.R. 219. Affirmed by the Victorian Full Court
in Corless v. City of Richmond (1924] V.L.R. 4o8, and
argued, although distinguishable in Barnes v. City of
Coburg [1928] V.L.R. 334, at 336 where coun~el
conceded that the 'preseription' was adequately certain.
114. (1924] V.L.R. 219, at 222-223.
and types of goods were so great that inevitably some
price orders became confused and jumbled, or left asses-
sments of prices to estimation and even conjecture. For the
sa~e of goods at prices in excess of those prescribed,
heavy penalties were provided under the Bl~ck Marketing
Acts.
The unsatisfactory nature of the National Security
(Prices) Regulations, and of the Price Orders made under
them, led to several challenges in the courts on the
grounds of uncertainty. Some challenges were successful/1 5
others were not,, 116 yet at no stage does it appear that
any particular consideration was given to the fact that a
rule formerly applied only to bylaws was now being extended
to statutory instruments. The first in the line of reported
cases, Vardon v. Commonwealthll? proceeded on a similar
basis to that of Stewart v. City of Essendon discussed
above. The Price Commissioner had been authorised to

Price orders were successfully at'tacked in Vardon v ..

The Commonwealth (1943) 6? C.L.R. 434; Ex parte Ryan,
Re Bellemore (1945) 46 S.R.(N.s.w.) 152; and statutory
regulations in Ex parte Zietsch, Re Craig (1944) 44
S.R.(N.s.w.) 360; Ex parte Gerard & Co. Ptz. Ltd, !!
Craig (1944) 44 S.R.(N.s.w.) 3?0; Ex parte Thomson,
Re Clarke (1945) 45 S.R.(N.S.W.) 193. Regulations
were also successfully challenged in the unreported
case of Cody v. Claxton (1945) 19 A.L.J. 206 [High Court].
116. Price orders were unsuccessfully attacked in Bendixen v.
Coleman (1943) 68 C.L.R. 401; Ex parte O'Sullivan; !!
Craig (1944) 44 S.R.(N.S.W.) 291; Ex parte McMillan,
Re Craig (1944) 45 S.R.(N.S.W.) 229; and in All Cars Ltd
v. McCann (1945) 19 A.L.J. 12~ Statutory regulations
were unsuccessfully attacked in Ex parte Callinan, Re
Russell (1945) 45 S.R. (N.s.w.) 358. . -
11?. (1943) 6? C.L.R. 434.
 184.
'fix and declare the maximum price' at which goods might
be held. The failure of his price order to set down with
certainty that maximum price, meant that his power to fix
prices had not been well exercised. No authority was
relied on by the High Court in arriving at this conclusion.
It will be seen that this is but a narrow application of
the certainty test, but subsequent cases tended to treat
certainty as an independent-test of validity that operated
regardless of the nature of the authorisation, and eKtended
its operation beyond price orders118 to regulations.
An example of this process is provided by the case of
Ex parte Sinderbe:gr, Re Reid119 which appears to be the
first case in which the test of certainty was applied to
statutory regulations in Australia. In the course of his
judgement, Jordan C.J. stated,
There is an elementary but well established
rule that, to be valid, a statutory regulation
must be certain, in the sense that it must
contain adequate information as to the duties
of those who are to obey it: ~ v. Finlay;l20
li• v. Broad;l21 Country Roads Board v. Neale Ads.

118. In Arnold v. Hunt (1943) 67 C.L.R. 429 the High Court

considered, (Bithough not Q,eciding the matt·er) that
price orders might better be regarded as executive,
r~ther than legislative instruments. See also
Kin~ Gee Clothing Co. Pty. Ltd v. The Commonwealth
(19 5) 71 C.L.R. 184, at 195, per Dixon J.
119. (1944) 44 S.R.(N.S.W.) 263 (Concerned not with price
control but with National Security (Man Power)
Regulations). ·
120. (1901) 85 L.T. 682, .at see supra p. 160
121. [1915] A.C. 1110, at 1112, and see supra P• 175
 Pty. Ltd; 122 Robert Baird.Ltd v. City of
Glasgow;l23 Page v. Harve~;124 Brunswick
Corporation v. Stewart;i2 Vardon v. The
Commonwealthl26. ---

Of the authorities cited, only Broad's case was

concerned with a statutory regulation, and the unsatisfactory
nature of that decision has already been considered. The
limited extent of the application of the certainty rule,
(narrower than is suggested by Jordan C.J.) in Vardon's
case to a price order, has also been discussed. All the
other cases relied on relate solely to bylaws.
Precisely two calendar months later, 127 Jordan C.J.
reiterated this 'we~l settled' rule, relying again on
Nash v. Fi?lay and the Sinderbearcase itself.
The application of the certainty test in this fashion
to statutory regulations and price orders continued until
the publication in the Australian Law Journal of Sugarman's
128
article, 1 Uncerl6ainty in Delegated Legislation•, which
contained an extremely thorough and exhaustive review of

122. (1930) 43 C.L.R. 126, at 132.

123. [1936] A.C. 32, at 44.
124. (1939] N.Z.L.R. 325, at 333.
125. (1941) 65 C.L.R. 88, at 99.
126. (1943) 6? c.t.R. 434, at 449.
127. In Ex parte O'Sullivan; Re Craig (1944) 44 S.R.
(N.s.w.) 291, at 296.
128. (1945) 18 Aust. L.J. 330. The article has since
been described as 'the best starting point for a
study of "uncertainty"' - see Mr Justice Hale, 'Local
Government By-laws and Ultra Vires' (1966) 7 Univ. of
West. Aust. 336, at 34o, and see also comments of
F. J. Pearson,~., 349.
 186.
the authorities on uncertainty. Sugerman K.C. (as he
then was) 129 had in fact acted as counsel~ for the Common-
wealth in a number of the cases in which price orders and
regulations were tested for uncertainty. 130 The effect of
his article was, through an analysis of the authorities on
the certainty test, to lay open the paucity of authority
for the action being taken by the Australian courts with
regard to statutory regulations. From his analysis he
derived two possible conclusions, first that uncertainty
did exist as an independent test of validity, but of such
an indefinite nature as to allow the courts a wide
discretion in disallowing del~gated legislation otherwise
within power, or alternatively, that it was not an independent
t es t •131 He suggested that the second was the correct
solution.
Some five months following the publication of that
article, the High Court of Australia handed down its
decision in King Gee Clothing Co. Pty. Ltd v. The Commonwealth1 3 2
in which Dixon J. expressed similar concern that the

129. He was appointed to the New South Wales Bench on 10

September 1947, and became President of the N.S.W.
Court of Appeal on 22 January 1970.
130. Ex parte O'Sullivan; Re Craig (1944) 44 S.R.(N.S.W.)
291; Ex parte Zietsch; Re Craig (1944) 44 S.R.(N.S.W.)
360; Ex parte Gerard & Co. Pty. Ltd; Re Craig (1944)
44 B.R.(N.s.w.) 370; Ex parte McMillan; Re Craig
(1944) 45 s.R.(N.s.w.) 229.
131. (1945) i8 A.E.J. at 337•
132. (1945) 71 C.L.R. 184.
authorities might not support the operation of certainty
as an independent test of validity. Afte,r a brief review
of the history of the test he stated,
But I cannot see how this history warrants the
courts in adopting as a general rule of law the
pDaposition that subordinate or delegated
legislation is invalid if uncertain. It appears
to me impossible to qualify the power conferred
on the Executive Government by ss.5 and 13A of
the National Security Act 1939-1943 by adding the
unexpressed condition that regulations made there-
under must be certain. I should have thought that,
in this matter, they stood on the same ground as
an Act of Parliament and were governed by the
same rules of construction.l33
Now it is a significant fact, central not only to
Dixon J.'s judgement134 but also to Sugerman's article,l35
that in Australia, the similar test of unreasonableness is
not regarded as an independent test of validity of bylaws. 1 3 6
It is there regarded simply as a question of power. In
those circumstance·s it would be anomalous to regard
uncertainty; with its far more dubious history, as an
independent test of validity. 1 3 7 Further, the infrequent

133. Ibid., 195. The views of Dixon J. on the operation of

~certainty test to bylaws are recorded in Gill v.
City of Prahran [1926] V.L.R. 410, at 413, (followed)
in Wright v. T.I.L. Services Pty. Ltd (1956) 56 S.R.
(N.S.W.) 413, at 424.)
134. Ibid., 194, 195.
135· OP:'Cit.' 330~331.
136. See e.g. Jones v. Metropolitan Meat Industry Board
(1925) 37 C.L.R. 252; at 259-260; Williams v.
Melbourne Corporation (1933) 49 C.L.R. 142, at 154,
155. But see in this country, McCarthy v. Madden
(1914) 33 N.Z.~.R. 1251.
137. Partieularly to Dixon J. who (at 194) saw the require-
ment that a bylaw be certain as an extension of the
reasonableness testo
 188.
application of the test by the Australian and English
courts to bylaws, together with its application to
regulations and price orders unsanctified by authority,
enabled a fresh start to be taken.
Dixon J. proceeded to state a test already applied
in Stewart's aad Vardon's case, relating uncertainty to the
specific authorisation. In King Gee it.self the authorisation
was to 'fix' prices. Dixon J. st~ted:

It needs no imagination to see that in drafting an

order for the fixing of prices for an important
trade many difficulties must be encountered, and
it would be impossible to avoid ambiguities and
uncertainties which are bound to arise both from
forms of expression and from the intrjcacies of the
subject. But it is not to matters of that sort
that I refer. They depend upon meaning of the
instrument and they must be resolved by construction
and interpretation as in the case of other documents.
They do not go to power. But it is another matter
when the basis of the price, however clearly described,
involves some matter which is not an ascertainable
fact or figure but a matter of estimate, assessment,
discretionary allocation, or apportionment resulting
in the attribution of an amount or figure as a matter
of judgement. When that is done, no certain objective
standard is prescribed; it is not a calculation
- a-nd -the-resu~t- is- not·a price fixed or -a -fixed price.
That, I think, means that the power has not been
pursued and is not well exercised.l38
That statutory regulations and executive orders should
be tested for certainty only when it is possible t6 imply

into the grant of power that certainty was intended to be

a condition of its valid exercise, has now been generally

138. 71 C.L.R. 184, at-197.

accepted bT the Australian cour,s.l39 But just as the

test of uncertainty in bylaws became so readily applied to

statutory instruments, so too has there been a tendency on
the part of some writers to assume that the decisions
involving statutory instruments require that a similar test
' 140
should operate in respect of bylaws. In fact, the writer
has been unable to discover any reported Australian cases
since the King Gee decision in which.bylaws have been tested
for certainty, so that the issue would appear still to be
open. It is likely, however, that should the issue arise
for decision, the same test will be applied to both bylaws
.
an·d regu 1 a t :Lons. 141

(d) Canada
The operation of the certainty test in Canada has
been sporadic, and although numbers of bylaws have been held

139. See e.g. Trief v. Charles Parsons & Co. Pty. Ltd (1946)
46 S.R.(N.S.W.) 265, at 268; Cann's Proprietary Ltd v.
Commonwealth (1946) 71 C.L.R. 210, at 217; Foster v.
·· Aloni [1951] V.L.R. 481, at 486; (followed in Hitchener
v.·Ham [1961] V.R. 97) Parry v. Osborn [1955] V.L.R.
152~t 154; Pearse v. South Perth [1968] W.A.R. 130,
at 132; Brudenell v. Nestle Co. (Aust.) Ltd [1971]
V.R. 215, at 224. See also Walpole v. Bywool Pty. Ltd
[1963] V.R. 157 (Proclamation of Governor General tested
for certainty) and Television Corporation Ltd v. Common-
wealth (1963) 37 A.L.J.R. 107, at 109- conditions
imposed on television broadcasting licence tested for
certainty).
140. See e.g. Mr Justice Hale in (1966) 7 Univ. of West.·Aust.
L.R. 336, 342; but see F. J. Pearson, ~., 349-350.
141. The King Gee test was applied to a Town Planning Scheme
in Pearse v. City of South Perth [1968] W.A.R. 130, at
132, and to conditions imposed upon a television broad-
casting licence in Television Corporation Ltd v.
Commonwealth (1963) 37 A.L.J.R. 107.
 190.
invalid on this ground, there does not appear to have developed
any consistent body of law.
Once again, the authorities relied upon by the Canadian
courts for testing bylaws for uncertainty, include the dictum
of Mathew J. in Kruse v. Johnson and the other early twentieth
142
century English decisions, either directly or through the
pages of Halsbury. 143 Sometimes, no authority at all is
u .1 1s c 1 ear t'~t
. d 144 b t 't .
a dvance, na th e t es t 1s
. accep t e d 1n
.

Canada now as a test of validity. On a number of occasions

bylaws have been held void for their failure to contain
adequate information as to the duties of those who are
bound, 145 although again it has been stres.sed that where the

142. See e.g. City of Montreal v. Morgan (1920) 54 D.L.R.

,165, at 173; Springbank Municipal Council v. Render
[1936] 4 D.L.R. 193, at 198; Re Surrey Zoning By-law
1954, No.l291; British Columbia Electric Co. Ltd v.
District of Surrey (1956)1 D.L.R. (2d) 717, at 720, 724;
Blue Haven Motel Ltd v. District of Burnabt (1965) 52
D.L.R. (2d) 464; Haddock v. District of North Cowichan
(1966) 59 D.L.R. (2d) 392.
ll.f-3_. j)~fL~·g_. Re Bunce and Town of Cobourg 0..26_31 29_J:)_.:i:J.~.
(2d) 513, at 516; City of Dartmouth v. s.s. Kresge Co.
Ltd (1966) 58·D.L.R. (2d) 229, at 237, but see also per
Fielding J. 253.
144. See e.g. Hirsch v. Town of Winnipeg Beach (1961) 26
D.L.R. (2d) 659, at 664; Re F. W. Woolworth Co. Ltd
& City of Hamilton (1965) 46 D.L.R. (2d) 602, at 608;
Marilyn Investments Ltd v. Rural Municipality of
Assiniboia (1965) 51 D.L.R. (2d) .711.
145• See e.g. Cook v. North Vancouver (1911) 16 B.C.R. 129;
Re Mitcherr-and Township of Saugeen (1919) 46 O.L.R.
279; Springbank Municipal District v. Render [1936]
4 D.L.R. 193; Re Surre Zonin B -law 19 4 No.l291
(1956) 1 D.L.R. 2d 717; Hirsch v. Town of Winnipeg
Beach (1961) 26 D.L.R. (2d) 659; . Re Bunce and Town of
Cob~urg (1963) 39 D.L.R. (2d) 513 (but see Re F. W.
Woolworth Co. Ltd and Cit of Hamilton (1965) 46 .
D.L.R. 2d 02, at 0 per Schroeder J.A.); Leach v.
Regina City (1964) 50 W.W.R. 129; [1965] Can. Abr.
Supp. 224; Marilyn Investments Ltd v. Rural
Municipality of Assiniboia (1965) 51 D.L.R. (2d) 711;
 191.
intention of the legislating body is' reasonably clear,
the court should strive to give effect to it. 146 A
somewhat stricter test appears to be applied in the case of
bylaws purporting to interfere with private property rights
however, where a high degree of certainty and clarity is
insisted upon._147
The writer has been unable to discover any instances of
challenge to statutory regulations in Canada on the ~rounds

. t y. 148
o f uncer t aJ.n
4. Uncertainty and Unreasonableness
Bylaws are frequently tested in the courts for unreason-
ableness, and because ·of the similarity of the two tests,

145. Cont.
and Blue Haven Motel Ltd v. District of Burnaby (1965)
52 D.L.R. (2d) 464. See also dissenting judgement of
Jessup J.A. in R. v. Bois (1970), 14 D.L.R. (3d) 269.
146. See e.g. !• v. Liggetts:Findlay Drug Stores Ltd (1919)
49 D.L.R. 491; Re B -law 92 Town of Winni e Beach
(1919) 50 D.L.R. 712; City of.Montreal v. Morgan. 1920)
54 D.L.R. 165, at 173; Re Vancouver Incorporation Act,
1921, Re Bentn[l940] 2 W.W.R. §97, at 702; Blue Haven
Motel Ltd v. Distr~ct of Burnaby ()upra, n.l42), at
466; and !• v. ~ (supra, n.l42 • .
See e.g. £..22!. v. North Vancouver (supra, n.l42); ~
Mitchell and Township ef Saugeen (supra npl42); Blue
Haven Motel Ltd v. District of Burnaby (supra n.Ili'2Y;
Haddock v. District of North Cowichan (1966) 59 D.L.R.
(2d) 392, ~firmed 5 D.L.R. (3rd) 147). It may be noted
that most, if not all Canadian state legislatures have
imposed limits upon the courts' jurisdiction in
summarily quashing by-laws: see Todd, 'The Quashing and
Attacking of Municipal By-Laws' (1960) 38 Can.Bai.Re~.
197, 200-202.
148. The test is not included or even mentioned in a survey
of the grounds upon which regulations may be challenged,
in Driedger, 'Subordinate Legislation'(l960) 38 Can.Bar.
Rev. 1, 7-27. See also, for survey of non-judicial
controls, H. Mcintosh, 'Controls on Federal Subordinate
Legislation' (1970-71) Sask.L.Rev. 63.
 192.
there has been a tendency to regard them as of similar
origin, status and operation. Lest it should be mistakenly
assumed that the history of the unreasonableness test is as
tenuous as that of uncertainty, (and also for the purposes
of further analysis in the following chapters) brief mention
must be made of the manner in which it has developed, and
its present status.
It will be recalled that bylaw making powers were vested
in England in the ancient guilds and corporations. The first
instance of a requirement that bylaws be reasonable appears
to arise from a statute of Henry VI directed against 'masters,
wardens, and fellowships of crafts or mysteries•. That Act,
of 1436, subsequently expired, but the requirement of reason-
ableness was revived and confirmed by a further statute in
1503. 149 Since that time down to the present day the courts
have applied the test regularly and consistently, extending
it, automatically it appears, to bylaws of municipal
_cor_porations. 1 ?? _____ _

Because of the differences in function that had developed

by the nineteenth century between municipal and trading
corporations however, a different standard of reasonableness

149. See Hardcastle, Statute Law 3rd ed. (1900) 294.

150. See for examples, II Comyn's Digest 5th ed. (1822) 303-
304; I .Bacon's Abridgement 7th ed. ( 1832) 802-812;
9 Halsbury's Laws of England 3rd ed. 43; 24 ~., .
517-518; and see also D. E. Paterson (infra, n.l5~)
and An Introduction to Administrative Law in New
Zealand (1967) 52-61.
 193·
came to be required of the bylaws of each. In Kruse v.
Johnson151 Lord Russell of Killowen C.J. stated the test
that has guided the courts in this century, when he considered
that municipal bylaws ought to be supp.orted if possible, and
'benevolently' interpreted. It appears now, that before a
bylaw in England may be upset on this ground, the evidence
of unreasonableness must be overwhelming. 1 5 2
The New Zealand courts, however, have not adhered as
strictly to the 'benevolent' test, holding that where other
controls over the reasonableness of bylaws (present in Kruse
v. Johnson but only to a limited extent in this country)
were absent, the courts might exercise greater powers of
review.l53

But the important point is that reasonableness, in

this country at least, is awarded the status of being a
condition precedent to the.validity of a bylaw. The court
need not, as in Australia, 154 conduct a review of the local
authority's authorisation in an effort to determine whether

151. [1898] 2 Q.B. 91, at 99.

152. See Associated Provincial Picture Houses Lta v.
Wednesbury Corporation [1948] 1 K.B. 223, at 230
per Lord Greene M.R.
153. See Grater v. Montagu (1904) 23 N.Z.L.R. 904 and McCarthy
v. Madden (1914) 33 N.Z.L.R. 1251, at 1268"1269 per
Denniston and Edwards J.J. But cf. Canadian view in
Re.Crabbe and Town of Swan River (1913) 9 D.L.R. 405,
where Haggart J.A., after quoting with approval the words
of Lord Russell in Kruse v. Johnson states, 'if these
comments wepe pertinent in the old land, they apply with
much stronger force in this new country where our municipal
institutions are in the moulding and where legal and
professional assistance is not always available.•
154. See n.132 supra.
 194.
Parliament intended reasonableness to govern its valid
exercise. It is a condition that the courts will infer
wherever possible, from the grant of power. 1 55

The courts have seldom been prepared, however, to draw

such an inference in the case of statutory regulations, 1 5 6
and it is clear that in this country today they will decline
to review the reasonableness of such instruments without
specific authorisation~l57

It is apparent then, that if certainty and reasonableness

were to be regarded as merely different aspects of the same
test, or even as overlapping, it would be difficult to
justify the application of the certainty test to statutory
regulations, and further, to deny that its application to
bylaws ought to be governed by the benevolent test. It is
submitted that the two tests are quite separate, but that
their similarities have sometimes caused confusion in
thought.
One source of confusion has been the connection

155. See Gisborne City v. J. E. Openshaw Ltd [1971] N.Z.L.R.

538. As to whether reasonableness might be regarded as
an independ~nt test of validity, or as an aspect of the
ultra vires rule, see D. E. Paterson, 'Aspects of
Unreasonableness in New Zealand Administrative Law'
(1968) 3 N.Z.Univ.L.Rev. 52, at 66-70.
156. But see the Court of Appeal decision in Broad v. ~·
(1914) 33 N.Z.L.R. 1275, and Stringer J. in Jorgensen v.
Ridings [1917] N.Z.L.R. 980.
157. See e.g. Carroll v. Attorney-General [1933] N.Z.L.R. 1461;
F. E. Jackson and Co. Ltd v. Collector of Customs [1939]
N.Z.L.R. 682, at 690, Kerridge Odeon Corporation Ltd v.
Auckland City [1966] N.Z.L.R. 266.
 195.
occasionally seen between the two in the situation where a
bylaw has used language capable of an interpretatien giving
it an effect wider than that envisaged by its authorising
statute. It may be that the court will be prepared to
uphold the bylaw by implying some necessary limitation.
This was done, for example, in the Tobacco-Pipe Makers Company
8
case1 5 where a byl~w of the Company provided 'that if any
person chosen to be warden should refuse to accept the
office of warden, he should forfeit to the co.mpany £6 13s 4d 1 •
An objection that the expression 'any person' was too wide
and indefinite, and might include ineligible persons, was
overruled. The condition of eligibility, ·said Lord
Tenterton C.J., was necessarily implied from the subject
matter. Where the language of a bylaw is wider than that
of its authorisation the question becomes not one of
uncertainty because of the width of the language, but of
whether the bylaw can be said to fall within the power.
Confusion is greatest however, where unreasonableness
is also alleged to exist in this context - unreasonableness
through a bylaw in its terms extending to a wide class of
person~, or over a wide area of operation. A recent example

158. (1825) 7 B. & C. 836, at 853; 108 E.R. 935, at 942.

See also n.l8 supra, and accompanying text. Similar
bylaws were saved by the implic~tion of limitations in
Poulters' Co. v. Phillips (184o). 6 Bing. N.C. 314;
133 E.R. 124; Collman v. Mills [1897] 1 Q.B. 396;
Gentel v. RBptj
[1902] 1 K.B. 16o (overruling Strickland
v. Hayes [1 9 1 Q.B. 290).
 196.
of this situation is provided by Strawbridge v. Simeonl59

where Hardie Boys J. was considering a regulation that

provided, 1 No person shall open toherqa in any place below
high water mark'. His Honour stated:
Here, the only uncertainty is wh.ether the
regulation can embrace acts performed miles
out at sea - a matter which goes rather to
the reasonableness than the scope of the
regulation. If I had to decide whether the
regulation was ultra vires because it was
uncertain, I would at least distinguish between
uncertainty that was only a matter of unreason-
ableness, and uncertainty of a kind which left
the subject in doubt whether or not a
punishable offence had been committed ••• l60

With respect, it is submitted that such a distinction

might well be illusory. It might be suggested that the
question of whether the regulation can embrace the acts
miles out at sea ought to be answered by first considering
the scope of the authorising statute. Then, if the
regulation in its temms is wider than the authorisation,
. 1'1cat'1on. 161 If not, the
may 1•t b e 1'1m1•t e d b y 1mp
regulation must fail. as uljra vires. The question of
certainty does nQt arise unless the language of the
regulation, even when its scope has been liQjited by
implication, still leaves the subject in doubt as to

159. (1959] N.Z.L.R. 4o5.

160 .. Ibid., 408.
161. ~learned judge appeared unwilling to imply that by
'in any place' was meant 'in any place in New Zealand' -
that is on land or at sea within three miles from
-
any part of the coast. (ibid., 407).
.
 19V.
whether a punishable offence has been com~itted.lGa The

question of reasonableness, it is submit~ed, is quite a

separate issue again. Assuming for argument's sake that a
regulation might be tested on this ground, its application
ought properly to be confined to a consideration of whether
the wide class of persons, or wide area prescribed, is so
great as to render the regulation oppressive or manifestly
unjust.
Approached in·this manner, the validity of subordinate
legislation is tested by three quite different and
independent methods~ each of which involves quite separate
considerations. Inevitably however, there must be some
overlapping.
One such area of overlap, which again causes confusion
and has led on occasion to the view that certainty is but
an aspect of the reasonableness test, 163 is where a bylaw
is said to be unreasonable because of the unfairness of
expecting persons to comply with its uncertain terms. This
is a more difficult concept to counter, but two considerations
would appear to point against it. First, the normal view

It is respectfully submitted that doubt as to the scope

of operation of the regulation in Strawbridge was more
than merely unreasonableness, for a person miles out at
sea.might still be in doubt as to his obligations
under it.
See e.g. King Gee Clothing Co. Pty. Ltd v. Commonwealth
(1945) ?1 C.L.R. 184, at 194 per Dixon J.
 198.
of unreasonableness would appear to be that its presence and
degree is to b.e observed from the operation of the bylaw
and the extent of its interference with existing rights,
rather than from internal considerations such as unclear
wording.
164 But secondly, and more importantly for the

purposes of this study, the judiciary of this ·Country has

generally preferred to regard the tests a1,3 separate,
applying each independently of the other. 165
The extent to which the .test of certainty is historically
dependent upon that of reasonableness is not clear, although
as has·been seen, most of the cases relied on by Lumley for
his wide proposition relate solely to unreasonableness, as
do all of those relied on by Mathew J. But both gentlemen
regarded the two tests as separate.
If both history and present usage support the view that
the two tests are separate and independent, they also indicate
that the two are very closely linked. Whether this close link
supports the view that each should operate in a similar
manner and be subject to similar restrictions, is a matter

164o Cf. the tests of unreasonableness of Lord Russell of

Killowen C.J. in Kruse v. Johnson [1898] 2 Q.B. 91,
at 98-99; and of Denniston and Edwards J.J. in
McCarthy v. Madden (1914) 33 N.Z.L.R. 1251, at 1268-
1269.
165. See e.g. Johnson v. Hammond (1888) 7 N.Z.L.R. 245;
Davidson v. Mayor of Auckland (1904) 24 N.Z.L.R. 250
[S.Ct], (1905) 25 N.Z.L.R. 497, [C.A.]~ Bo!d v.
Onehunfa Borough [1916] N.Z.L.R. 713 [C.A. ; Martin v.
Smith 1933] N.Z.L.R. 636; Page v. Har1ey [1939]
N.Z.L.R. 325; Masterton Co-o erative Dair Co. Ltd v.
Wairarapa Milk Board 19 N.Z.L.R. 771• But cf.
Stewart v. City of Essendon [1924] V.L.R. 219, at 224
per Weigall, A.-J.
 199 ..
for more detailed in consideration in follo.wing chapters ..
5. Conclusions
All the evidence points to the fact that the acceptance
by the courts this century of the test of certainty as a
condition of validity of bylaws, and its further extension
to 'statutory regulations, was almost wholly unjustified by
previous authority. It points to the conclusion that the
courts may have accepted too readily the statements of two
text-writers for whose wide views no authority existed.
And yet the requirement of certainty in bylaws is not with-
out merit, and it may be that this factor itself has
fostered the growth and development of the test. 166

166 •. Many judges, for example, have quite readily accepted

the test as 'axiomatic' and 'well settled' without
detailed consideration of the authorities; see e.g.
Wild C.J. in~ v. Marine Dept. 6 August, 1971
(unreported), and McCarthy J. in Masterton Co-operative
Dairy Co. Ltd v. Wairarapa Milk Board [1964] N.Z.L.R.
-771, at 783.
 200.
CHAPTER 8

THE STATUS AND EXTENT OF THE.REQUIREMENT

OF CERTAINTY

1. The Status of the Test

It is clear from the survey in the foregoing chapter
that the historical basis of a test of certainty in public
law is anything but sound. The courts of this country,
however, have not hesitated in accepting the test,
particularly in its application to bylaws of local
authorities. But there appears to have been no occasion
on which they have been required to pronounce upon the
relation between the certainty test and the doctrine of
ultra vires. Generally, however, there has been a
tendency to regard certainty as a requirement of validity
independent of vires. 1 It is respectfully submitted that
a preferable view is that which regards certainty as an
aspe~t of vires, but that any distinction is semantic only,
and has not been and is unlikely to be accorded any
practical significance by the courts.
These arguments may now be considered in greater detail.

1. See e.g. Brown v. Mcinnes (1896) 15 N.Z.L.R. 256;

Riddiford v. Collier (No.2) (1896) 15 N.Z.L.R. 344;
Davidson v. Mayor_etc. of Auckland (1904) 24 N.Z.L.R.
250, 252; R. v. Broad [1915] A.C. 1110; Martin. v.
Smith _[19331 N.Z.L.R. 636; Page v. Harvey [1939]
N.Z.L.R. 325; Courtvill!nv• Paull [1950] N.Z.L.R. 18;
Dwyer v. Hunter [1951] N~~L.R. 177; Everton v. Levin
Borough [1953] N.Z.L.R. 134; Masterton Co-operative
Dairy Co. Ltd v. Wairarapa Milk Board [1964] N.Z.L.R.
771.
 201.

(a) That any distinction is semantic only

Probably the greatest cause of confusion in this

respect arises from the nature of the ultra vires doctrine
itself. The expression is ambiguous, and is frequently
viewed in two distinctly different ways. There is first
the narrow view, which sees the role of the courts in
applying the doctrine as doing no more than ensuring that
in exercising his discretion an official has not exceeded
his authorisation as it stands. The court will ensure that
the official has not stepped outside the four corners of
his authorisation, eKcept perhaps to the extent that his
action may embrace activities regarded as reasonably
incidental. There is no concern here with questions of
the purposes or motiGTes of the official, but simply·with
whether or not the power has been exercised within its
statutory limits. Under this narrow view of ultra vires,
matters such as reasonableness and certainty could be
regarded as aspects of vires only in the event of an
authorisation stipulating their presence as a condition
precedent to the valid exercise of the power. Given that
such tests are regularly operated by the courts independently
of such express stipulation, it becomes necessary under a
narrow view of ultra vires; to designate them 'independent'

heads of validity.
But the courts have long held the narrow view of ultra
vires to provide an inadequate mode of control over official
 202.
action. They have, in addition to ensuring that official
action falls within the four corners of its authorisation,
tended to impose as a matter of statutory interpretation
various conditions upon the extent of the authorisation.
In this way a power thatmay appear to be wide and unfettered
may be confined, particularly in the manner of its exercise,
within narrow limits. Official action that strays outside
those limits is liable to be struck down as ultra vires -
as outside power in the sense of contravening a condition
imposed upon the valid exercise. of that power by the courts.
To equate the breach of these conditions with ultra
vires action is to accept the wide view of that doctrine.
The acceptance of this wide view appears·now to be more
general, 2 and indeed it provides a number of advantages.
It enables a more uniform approach to problems of judicial
review by regarding ultra vires as the sole basis of review,
and according other tests relating to procedures, motives
and purposes, reasonableness and certainty, the status of
component parts of the ultra vires doctrine itself.

2. The authorities are conveniently summarised by

s. A. de Smith, Judicial Review of Administrative
Action 2nd ed. (1968) Chapter 6, although de Smith
notes a possible exception to the use of ultra vires
in the wide sense in the case of exercise of prerogative
powers. (ibid., 272). See also H.W.R. Wade,
Administra't'I'Ve" Law 3rd e.d. (1971), .50-.51; and
D. G. Benjafield and H. Whitmore, Principles of
Australian Administrative Law 4th ed. (1971) 164-~7.5·
 203.
In this writer's submission, howe¥er, the question of
whether such tests are to be so regarded, or whether they

are to be accorded independent status, is dependent wholly

on whether one is adopting a wide or a narrow view of
ultra vires.
(b) The practical significance of the distinction
Given that the courts of this country have yet to
consider which view to take of the ultra vires doctrine in
relation to certainty, it is necessary to consider the
likelihood of the test being accorded differing effects
under either designation. In this regard it is proposed
to refer to three separate issues - to the past practice of
the New Zealand cou~ts, to certain possible distinctions
that have been suggested in the parallel case of reasonableness
and to the practice of other Commonwealth courts.
(i) Practice in New Zealand
As has been noted above, the practice of the New
Zealand courts has generally been to list certainty as a
test of validity independent of vires. In the early
decisions, in fact, no mention of ultra vires. is to be found,
the usual practice being simply to determine whether or
not the action was unreasonable or uncertain or repugnant. 3

See e.g. Brown v. Mcinnes (1896) 15 N.Z.L.R. 256;

Riddiford v. Collier (No.2) (1896) 15 N.Z.L.R. ~44;
Davidson v. Mayor etc. of Auckland (1904) 24 N.Z.L.R.
250; Hunter v. McLean (1907) 27 N.Z.L.R. 231; Waldegrave
v. Ma or etc. of Palmerston North (1909) 29 N.Z.L.R. 223.
And cf. Koetsveld v. Patrick 1902) 29 V.L.R. 152.
 204.
The later cases continue to accept this formulation but
with the addition of a test of ultra vires. On at least one
4
occasion such judicial attitudes were clearly influenced
by the formulation in Halsbury, which tends to view other
tests of validity of bylaws as independent of vires.5
On a number of other occasions however, the courts have
been content simply to accept counsel's formulation of
the issues, which formulation in turn is generally sim~lar
to that to be found in Halsbury. 6 Indeed, the two instances
that the writer has found of a judge accepting certainty as
a facet of vires, appear again to have derived largely from
counsel's formulation of the issues, rather than through
independent judicial consideration of the distinction. 7
On the other hand, it might be argued that the wording
of s.8(2) of the Bylaws Act 1910 supports the view of
certainty as an aspect of vires. That sub§ection provides:

4. Martin v. Smith [1933] N.Z.L.R. 636, although the

reference by McGregor J. to 13 Halsbury's Laws of
England 393-394 would appear to be in error~
See particular~y 9'Halsbury's Laws of England (3rd ed.),
42-44; 24 Halsbury's Laws of England, 515-519.
Lumley also clearly regards these tests as separate
(By-laws, 91).
6. See e.g. Courtville v. Paull [1950] N.Z.L.R. 18; Dwyer
v. Hunter [1951] N.Z.L.R. 177; Everton v. Levin Borough
[1953] N.Z.L.R. 134; Masterton Co-o erative Dair Co.
~ v. Wairarapa Milk Board 19 N.Z.L.R. 771. A
similar pattern is noted in the case of reasonableness
by D. E. Paterson, 'Aspects of Unreasonableness in
New Zealand Administrative Law' (1968) 3 N.Z.U.L.R.
52, at 67-68 (hereafter referred to as Paterpon).
McCormick v. McCout~ie [~933] N.Z.L.R. s.176 at s.178;
Ideal Laundry v. Petone Borough [1957] N.Z.L.R. 1038,
at 1042 per Turner J.
 205.

Notwithstanding confirmation under this Act, a

bylaw shall be invalid so far as its provisions
are repugnant to the laws of New Zealand, or
unreasonable, or ultra vires of the local
authority by which it is made.
Given that bylaws may be tested for certainty, and
that such a test is not expressly allowed by the section,
it may be argued that the test must be deemed to be an
aspect either of reasonableness or of ultra vires. The
latter would seem the more probable. 8 But the whole basis

of such an argum~~t is ii1conclustve. The subsection does

not purport to be exclusive, and it is more than possible
that the Legislature overlooked the certainty test when
formulating it.9

The lack of consistency on the part of the courts and

10
of writers would seem to indicate that the question is of
little significance, and that whether or not the test is an
aspect of the ultra vires doctrine is unlikely t,o bear upon
the effect of its application in any case.

8. The relationship between certainty and reasonableness

has already been considered, ~~'
9. It will be recalled that cl.l3 of-~he Bylaws Bill
had proposed the abolition of the certainty test but
that it was deleted by the Statutes Revision Committee.
Cf. s.17 of the. Act, which refers to bylaws that are
'invalid because they are ultra vires of the local
authority, or repugnant to the ~aws of New Zealand,
or unreasonable, or for any other cause whatever ••• •
(emphasis added).
10. See e.g. J. F. Northey, 'The Changing Face of
Administrative Law' (1969) 3 N.z.. U.L.R. 426, at 428
fo6tnote 14. (hereafter referred to as Northey),
and cf. references to Halsbury in footnote 5, supra.
 206.

(ii) Possible distinctions in the case of reasonableness

Similar inconsistencies have been noted by one writer
in the parallel case of the test of reasonableness. 11 He
maintains, nevertheless, that the question of whether that
test is independent or not is a matter of some significance:
If, for instance, a decision of an official performing
a judicial funct~on is unreasonable and is sought to
be quashed by a writ of certiorari on that ground,
the question of whether or not unreasonableness is
to be regarded as an aspect of ultra vires would be
very important because whilst there is no doubt
that certiorari will issue on the ground of ultra
vires there appears to be no precedent that it
would issue on the 'ground of unreasonableness
simpliciter. Again the question would be of
great significance if there was a statutory
provision excluding review by the courts except in
the case of ultra vires in any particular case
where official action was being challenged as'
unreasonable.
With the greatest respect, it is submitted that rieither
---------------------------

issue is in fact of practical significance, and that the

points made are, in addition, of at least questionable

validity.
The first relates to judicial officers and the issuance
o.f the writ of certiorari. When speaking )of the exercise
of judicial functions the common tendency appears to be to
talk in terms of 'jUrisdiction' rather than 'vires•, and
12
of 'excess of jurisdiction' rather than 'ultra vires•.

11. Paterson, 67.

12. See e.g. Anisminic Ltd v. Foreign Compensation
Commission [1969] 2 A.C. 147, and cf. de Smith
op.cit. Chapter 3, particularly at 96-99.
 207.
It is admitted that the distinction has probably served
more frequently to confuse than to enlighten, 1 3 but its
very existence is sufficient to call into question the
writer's assertion that 'there is no doubt that certiorari
will issue on the grounds of ultra vires', when it is clear
that certiorari is available only in respect of judicial
.
f unc t 1.ons.
14

But a more significant point is that there is considerable

doubt whether officials exercising judicial functions are
obliged to comply with requirements of reasonableness or
certainty.The majority in the House of Lords in Anisminic
~ v. Foreign Compensation Commission, 1 5 although not
purporting to be exhaustive in the tests that were enumerated,
did not appear to have regarded the absence of either as
rendering a determination in 'excess of jurisdiction'.
On the other hand, Richmond J. in this country in Lange
v. Town and Country Planning Appeal Board (No.2) 16 appears
to have taken the view that conditions imposed by the
Board upon consents to specified departure applications

JL~. See criticism.by Northey in this regard, Northey 428.

14. Bylaws may, of course, be quashed - but by Supreme
Court order, not certiorari: see s.l2, Bylaws Act,
1910.
15. Cl969] 2 A.C. 147, at 171 per Lord Reid; 195 per Lord
Pearce; 207 per Lord Wilberforce; 215 per Lord
Pearson (concurring on this point with Lords Reid,
Pearce and Wilberforce). See also Paterson, Introduction
to New Zealand Administrative Law (1967) 58, where the
learned writer states • ••• it seems always to have been
assumed that the courts could not impose a restriction
against unreasonableness upon officials performing
judicial functions.'
16. [1967] N.Z.L.R. 898.
 208.
under the Town and Country Planning Act 1953 might be
reviewed for unreasonableness, tho~gh of so seriqus a degree
as to render them 'in excess of jurisdiction•. 1 7 Although
this decision might be seen as lending support to the view
that judicial officers are subject to at least the reasonableness
test, it is submitted that this proposition must be approached
with caution. In applying this test,-Richmond J. relied

upon three English decisions, including the House" of Lords

dec~sion in Fawcett Properties Ltd v. Buckingham County
18
Counci1, and in addition, on a passage in Halsbury's Laws
1
of England J In none of those decisions was the function
under review judicial, and the passage from Halsbury refers
solely to administrative functions. 20 In the result, although
the learned Judge appears not to have considered the matter
specifically, it would appe,ar that his view must have been
that in imposing conditions the Board was acting in either
an administrative, or a legislative capacity. While there
can be no doubt that the Board does generally perform judicial

17. Ibid., 902. ,

18. ti9b1] A.C. 636. The other cases referred to were
Associated Provincial Picture Houses Ltd v. WednesburY
Corporation [1948] 1 K.B. 223, and Lu~! v. Newcastle-
under-Lyme Corporation [1964] 2 Q.B. · •
19. 11 Halsbury's Laws of England 3rd ed. 62.
20. The writer assumes that the passage ·of Halsbury to which
-the-l-earned J-udge refers. is that which states, 'If,
however, an administrative body comes to a decision
which no reasonable body could ever have come to, it
will be deemed to have exceeded its juris~iction, and
the Court can interfere.' (~., 62). Certain ot~er
statements on the same page must now be read in the
light of Anisminic Ltd v. Foreign Compensation Commission
[1969] 2 A.C. 147.
 209.
21
functions, it is possible that this would not be the
case where it operates under so wide a discretion as was
provided by its authorisation here, that is, to impose 'such
conditions as it thinks fit'. Unfortunately however, the
situation is again confused by the more recent judgement of
the same Judge as a member of the Court of Appeal in Turner
v. Allison, 22 where he does appear to accept the view that
under the same particular authorisation the Board's function
is judicial. His Honour was not in that case, however,
concerned to enquire into the reasonableness of the conditions
imposed.
While the question is admittedly of some considerable
difficulty, it is submitted that the cases do not support
the extension of thevreasonableness test to judicial action,
and that as a result nothing turns in this context on
whether reasonableness is an aspect of vires or an independent
test. What then of certainty?
There would appear to be no requirement that judicial
action should be certain. Although, as was discussed in
chapter six the Supreme Court has occasionally queried the
certainty of orders of inferior courts, yet on no occasion
does want of certainty appear to have induced invalidity
nor has the writer been able to discover insistence by the

21. See e.g. Turner v. Allison [1971] N.Z.L.R. 833.

22. [1971] N.Z.L.R. 833 at 856-857.
 210.
courts upon a requirement of certainty on the part of
tribunals or other judicial officers, 23 except where the
specific authorisation clearly authorises only official
action that is certain. 24
It is submitted therefore, that certiorari will not
in any event be available in the case of certainty, so
that in this context the question of whether it is an
aspect of ultra vires or an independent head of validity
becomes irrelevant.
The second possible matter of concern that was suggested
in the case of reasonableness, arises in the event of a
privative clause seeking to exclude review except in the
case of ultra vires. In fact, the New Zealand legislature
at least appears as a matter of practice to insert privative
clauses only where the functions protected by the clause
are of a judicial nature, and the usual form is then to
exclude review except for 'lack of jurisdiction•. 25 The

Although Richmond J. in Ljnge v. Town & Country Planning

A~peal Board (No.2) [1967 N.Z.L.R. 898, at 903, line
1 , appears to assume that uncertainty might operate to
take a condition imposed upon a planning consent out-
side the protection of the 'Wednesbury umbrella' ..
24. See e.g. R. v. Garvey, ex parte Henry (1888) 6
N.Z.L.R. b28.
25. See e.g. s.38 Air Services Licensing Act, 1951; s.l6
Criminal Injuries Compensation Act, 1963; s.25 Motor
Spirits Distribution Act, 1953; s.62 Police Act, 1958;
s.l9 Race Relations Act, 1971; s.ll Stabilisation of
Remuneration Act 1971; s.23 Trade Practices Act, 1958;
ss.l47, 164 Transport Act, 1962; s.45(4) Workers·'
Compensation Act 1956. Of. s •.41(4) Clerk of Works Act,
1944; s.l42 Customs Act, 1966; s.47 Industrial
Conciliation and Arbitration Aet, 1964; where an
exception is not expressly made in case of 'excess of
jurisdiction' (but see G. s. Orr, Report on Administrative
Justice in New Zealand (1964) 51-52). The modern ,
 211.
wide interpretation accorded that phrase by the House of
Lords recently 26 reflects the attitude of the judiciary to
privative clauseso Once again, the problem is likely to
arise only with regard to judicial functions, to which it
is submitted, tests of reasonableness and certainty are
inapplicable. The unlikelihood of a privative clause
arising in the context of administrative functions is
sufficiently remote, itis submitted, to render this distinction
too, if not invalid, then at least of little or no practical
significance. In the even:~ howeve:s it is likely that the
Courts will reflect and extend the views of the majDDity
in the House of Lords and hold both tests to be aspects of
ultra vires.
(iii) The practice in other Commonwealth courts
It might be argued that by regarding certainty in
terms of vires, the extent and application of the test is
accordingly limited, following certain remarks of Dixon J.

25. Coht.
tendency is to facilitate appeals from judicial officers
to the courts: see e.g. s.26 Milk Act, 1967 (appeal
to Magistrate's Court); ss.39(10) and (11) and s.4o
Dental Act, 1963; s.l9 Indecent Publications Act, 1963;
s.28 Inland Revenue Department Amendmemt Act, 1960;
(appeals to Supreme Court) and s.34 Animal Remedies
Act, 1969; s.2 Land Valuation Proceedings Amendment
Act, 1968; s.230 A, Sale of Liquor Act, 1952; s.5(4)
Land Settlement Promotion and Land Acquisition Act,
1952; s.42A Town and Country Planning Act 1953
(appeals to Administrative Division, Supreme Court).
26. Anisminic Ltd v. Foreign Compensation Commission
[1969] 2 A.C. 147.
 212.
in King Gee Clothing Ltd v. Commonwealtho 27 The learned
Judge there stated:
In the present case, the question whether the Order
is ultra vires of the Price Commissioner depends
upon the meaning and operatio.n of reg. 23(1) and (lA)
of the Prices Regulations, and, I think that, if the
meaning of those provisions is ascertained, it will
be found that there is no independent question of
uncertainty or vagueness as a ground affecting
the validity of the Order.
In that case the duty imposed, to 'fix and declare •••
maximum prices', was held not to have been satisfied by a
Price Regulation that left to the discretion and choice of
persons bound to comply with 'the Regulation essential
criteria in the ascertainment of maximum prices. It is
clear that Dixon J. was prepared to accept certainty as a
test of validity only when the nature of the power clearly
required certainty as an essent~al element of its exercise.
That is, although he was prepared to accept certainty as an
aspect of ultra vires, he preferred to take only tbe narrow
view of that doctrine.
But in this country there would appear to be no reason

why regarding certainty as an aspect of ultra vires should

result in a similar limitation. The courts here have proved
more ready than their Australian counterparts to infer from
the terms of an authorisation that Parliament intended the
valid exercise of the power conferred to be governed by

27. (1945) 71 C.L.R. 184, at 196.

 213.
considerations of certainty and reasonableness, particularly
where the authorisation is not to make regulations or
orders as was the case in King Gee, but to make bylaws. 28
If certainty is to be regarded as an aspect of ultra vires
then the New Zealand practice supports the view that this
shauld-be in the wide sense of that doctrine. Although the
position with respect to bylaws in Australia is unclear
there has been a tendency to adopt the narrow view of ultra
vires in that context as we11. 29 But Dixon J. in a later
case appears to take the view that the courts might be more
ready to make the inference that a power to make bylaws
requires certainty of ·expression as a condition of its valid
exercise.3° The English attitude, too, is far from clear.
There has been a tendency in recent years to view Lord
Denning's speech in Fawcett Properties Ltd v. Buckingham
County Council3l as an authoritative statement of the present
. 32
status of the certainty test in that country. His Lordship

stated there:

28. As to reasonableness, cf. the Australian High Court

decision in Williams v. Melbourne Corporation (1933)
49 C.L.R. 142, at 154, 155; and McCarthy v. Madden
(1914) 33 N.Z.L.R. 1251. As to certainty cf. the King
Gee Clothing case (supra) and Masterton Dairy Co-operative
Co. Ltd v. Wairarapa Milk Board [1964] N.Z.L.R. 771.
29. See e.g. Mr Justice Hale, 'Local Government Bylaws and
Ultra Vires' (1966) 7 Univ. of West. Aust. L.R. 336,
at 340-342.
30. In Cann's Proprietary Ltd v. The Commonwealth (1946)
71 C.L.R. 210, at 227-228.
31. [1961] A.C. 636, at 675-681. .
32. See e.g. Mixnam's Properties Ltd v. Chertsey U.D.C. [1964]
1 Q.B. 214, at 238 per Diplock L.J.; Hall & Col Ltd v.
Shoreham-By-Sea U.D.C. [1964] 1 W.L.R. 240, at 245 per
Willmer L.J.t 258~259 per Pearson L.J.
 214.
I can well understand that a by-law will be held
void for uncertainty if it can be given no meaning
or no sensible or ascertainable meaning. But if
the uncertainty stems only from the fact the words
of the by-law are ambiguous, it is well settled that
it must, if possible, be given such a meaning as to
make it reasonable and valid, rather.than unreasonable
and invalid. Lord Wensleydale said so in this House
in R. v. Saddlers' Co.33: "Asiin one sense of the
word the by-law is good and in the other not, the
rule is that it ought to be constructed so as to
make it valid, not to defeat it."34
But with respect, Lord Denning's statement must be viewed
in the light of a number of factors. The first is the
fact that of all the decisions of English and Commonwealth
courts on uncertainty as an invalidating factor in bylaws,
only Scott v. Pilliner35 was relied upon by counsel3 6

a decision which Lord Denning had little difficulty in

distinguishing. His Lordship appears then to have considered
the question to be free from authorityo
Secondly there is the fact that the instrument under
consideration was a planning condition whose terms
incorporated a clause taken directly from s.34 Housing Act,
19;o. This factor· ·was clearly regarded as being of
significance by the majority in the House of Lords, who

(1863) 10 H.L.C. 404, at 463; 11 E.R. 1083, at 1106.

[1961] A.c. 636, at 677.
[1904] 2 K.B. 855.
Although Counsel did cite Gill v. City of Prahran
[1926] V.L.R. 410, at 413-~and Russom v. Dutton (No.2)
(1911) 104 L.T. 601, at 602 in reply, neither is
referred to by Lord Denning.
 215.
considered the provision to be sufficiently certain.37
Lord Denning stated:
My Lords, it is a bold suggestion to make that
these words, taken as they are from a statute, are
void for uncertainty. There are. a few cases where
a statute has been held void. because it is meaning-
less but tnoJte because it was uncertain ••• But when a
statute has some meaning, even though it is obscure,
or several meanings, even though there is l~ttle
to choose between them, the courts have to say what
meanings the statute is to bear, rather than reject
it as a nullity.38

Theextent to which their Lordships were prepared to

equate invalidity of the planning condition with the
invalidity of the equivalent statutory section is sufficient,
it is respectfully submitted, to restrict the decision,
and in particular, Lord Denning's words, to the peculiar
facts that we.re under consideration.
A third factor is the reliance that Lord Denning
places, in the extract quoted earlier, upon the words of
Lord Wensleydale in li• v. Saddlers' Co. 39 With respect,
some confusion appears to have arisen between the concept of
ambiguity, on the one hand, with which Lord Wensleydale was
concerned, and with vagueness on the other hand, which was
the defect inherent in the planning condition in Fawcett

37· [1961] A.C. 636, at 662 (per Lord Cohen), 676 (per Lord
Denning) and 692 (per Lord Jenkins) •. See also in the
Court of Appeal: [1959] Ch.543 at 568 (per Lord Evershed
M.R.) and 574 (per Romer L.J.). Cf .. Lord Morton of
Henryton in the House of Lords, (supra, at 670)
(dissenting), and Holroyd Pearce L.J. in the Court of
Appeal (s6pra, at 577).
38. Ibid., 67 •
39. (1Bb3) 10 H.L.C. 404, at 463; 11 E.R. 1083, at 1106.
 216.
Properties. It has long been recognised that where a true
ambiguity exists, it may be. resolved by reference to a number
of external factors. Thus, if it occurs in a penal statute,
it is to be resolved in favour of the accused; 40 in a taxing
statute, in favour of the tax-payer; 41 and, in a bylaw, in
such a manner as will render the bylaw galid rather than
invalid. This is no more than the application of the maxim,
ut res magis valeat guam pereat. 42 But whether these canons
of construction are applicable in the case of mere vagueness
in a bylaw is another matter altogether. There appears no
authority for the proposition that the courts must adopt
such a course in that case. Lord Wensleydale clearly
contemplated the instance of ambiguity solely when he
stated, 'As in one sense of the word, the bylaw is good and
in the other it is not ••• •. It was an ambiguity that arose
from the use of 'insolvent', which was seen by the House of
Lords as capable of meaning either 'not paying', or
'incapable of paying•. 43

4o. London & North Eastern Railway Co. v. Berriman [1946]

A.C. 278, at 313-314 per Lord Simonds; and see Ex parte
Zietsch; Re Craig (1944) 44 S.R.(N.S.W.) 360, at 365
per Jordan, C.J.
41. Oriental Bank v. Wrig.ht (1880) 5 Ap.p.Cas. 842, at 856;
I.R.C. v. Ross and Coulter [1948] 1 All E.R. 616, at
625 per Lord Thankerton. .
42. See e.g. Poulters Co. v. Phillips (184o) 6 Bing. N.C.314;
133 E.R. 124; · and Widgeeshire Council v. Bonney (1907)
4 C.L.R. 977, at 983.
43. 10 H.L.C., .404, at 463; 11 E.R. 1083, at 1106. Cf.
Lord Thankerton in I.R.C. v. Ross & Coulter (supra) at
625: • ••• if the provision is capable of two alternative
meanings the courts will prefer that meaning more
favourable to the subject.•
 217.
The only answer appears to be that in England as in

this country, there is confusion over the status of the

certainty test. There has been in recent years, however, a

growing reluctance to recognise the test as 'independent',

that is, as a condition to be automatically implied into all

grants of bylaw making authority.

44 This reluctance is

accompanied by a similar desire to uphold bylaws wherever

. 45
possible - to apply the Kruse v. Johnson 'benevolent' test.

(c) Conclusions

It is respectfully submitted that much of the confusion

that has arisen is avmidable, and can be traced to misunder-

standings of the nature ~nd purpose of the ultra vires doctrine.

It would appear that two separate but closely related factors

are involved.

The first is the extent to which the courts will be

prepared to infer from the terms of a power that Parliament

intended certainty to be a condition of its valid exercise.

The Australian courts have required, so far as statutory

regulations at least are concerned, something positive in

the power itself, for example a power to 'fix' or to

'specify' or to 'determine'' or to 'describe' before

making such an.inference. The question then becomes not one

44. See e.g. per Lord Diplock in Mixn.Mmils Properties Ltd Vo

Chertsey U.D.C. [1964] 1 Q.B. 214, at 237~238; and the
Fawcett Properties case (supra) at 677-679 per Lord Denning.
See ~.g. Mi~nam's Properties Ltd v. Chertsey U.D.C. [1964]
1 Q~B. 214, at 226-227 per Willmer L.J.; 237-238 per Diplock
L.J.; and in the House of Lords, [1965] A.C. 735, at 760-
761 per Lord Guest; 765 per Lord Upjohn. This aspect bears
upon the extent or degree of uncertainty that is required
to invalidate a provision, and is discussed more fully
infra, at p. 236
of certainty as such at all, but of whether the precise

terms of the power have been complied with. The English

and New Zealand courts, on the other hand, have been less

reluctant to make the inference that Parliament intended

certainty to govern the valid exercise of a given power.

The second factor is the extent or degree of uncertainty

that is required to invalidate any provision, a question

which is studied more closely in the following chapter. The

inter-relation between the two factors can be demonstrated

by reference to the Kruse v. Johnson

46 test for unreasonableness :

that of such manifest arbitrariness, int}.ustice or partiality

that a court would say: 'Parliament never intended to give

authority to make such rules,; they are unreasonable and

ultra vires.'

The relationship would appear to resolve itself in

respect of certainty in this way - that Parliament cannot

be deemed to have intended that only bylaws absolutley free

from uncertainty should be valid, so that it becomes

necessary to draw the line between what should be permitted

and what should not. It is a matter for the court to draw

that line, and the point at which it is drawn is the point

which the court infers from the authorisation that Parliament

intended it to be drawn. Uncertainty that goes beyond that

point will render the instrument unauthorised or ultra vires.

46. [1898] 2 Q.B. 91; at 99-100 per Lord Russell C.J.

 219.
The attitude of the Australian courts would appear to

derive from an emphasis upon the first of these two factors,

while th~t of the English courts from their concern with the

second factor. As will be seen, recent decisions have drawn

the line at a significantly high point. As evidenced by

the Court 0f Appeal decision in Masterton Dairy Co-operative

Co. Ltd v. Wairarapa Milk Board,

47 however, the New Zealand

courts have yet to adopt consistently either the Australian

or English attitude.

But the difference in approach evident in the three

countries should not, it is submitted, be explained by taking

the view that in New Zealand th~ test is an 'independent'

test of validity. More satisfactory from the point of view

of consistency and logic, is the alternative explanation

that the courts of this country are more prepared to limit

by inference from an authorisation the area of movement

conferred by it upon an official, - that is, that they are

prepared, in the case of certainty at least, to take a wider

view of the ultra vires doctrine than their English and

Australian counterparts. Although the present situation is

confused and lacks consistency in practice, the preferable

view is that the test of certainty is an aspect of the

ultra vires doctrine.

47. [1964] N.Z.L.R. 771.

 220.

2. The Extent of Application of the Test

This question has already received some consideration

in chapter six, where possible extensions of the test beyond

bylaws were studied from an historical point of view. This

section, therefore, will look at the question more from the

point of view of vires. A second and closely related

question - that of the degree of uncertainty required to be

present in a provision to cause its invalidity - is considered

in the following chapter.

The most frequent application of the test in England,

Canada and New Zealand has been to bylaws of local authorities.

The history of the test as studied in chapter six would appear

to indicate that it was in the field of bylaws that the

test originated, and one would expect that any application

of the test beyond that field must be a deliberate extension

of it. In fact, however, on those early occasions when

statutory regulations were subjected to the test, no concern

would appear t o have b een ·

g~ven t o th"~s fact. 48

In only one New Zealand case does there appear to have

been any specific consideration of whether or not the test

does extend to direct delegated legislation, as opposed to

bylaws, but there Hardie Boys J. preferred to leave the

48o See e.g. Riddiford v. Collier (No.2) (1896) 15 N.Z.L.R.

344; li• v. Broad [1915] A.C. 1110; Ex parte
Sinderbergl; Re Reid (1944) 44 S.R.(N.s.w.) 263.
 221.
4
question open. 9 In the leading cases. in which the grounds

upon which the courts may review direct delegated legislation

have been considered by the courts, certainty appears never

to have been discussed. The approach typically adopted is outlined

in the following passage from Smith v. Wellington City (No.2)~ 0

where North P. (sitting as a Judge of the Supreme Court) in

determining the validity of a regulation made under s.6o,

Forest and Rural Fires Act, 1955, stated:

It will be observed that the Governor-General is

called upon to exercise a discretion, he is required
to form an opinion whether a particular regulation
is 'necessary' or 'expedient'. In this class of
case the Court will not usually inquire into the
reasonableness of the regulation but will content
itself by considering whether the regulation is
within the ambit of the Act. The leading case in
New Zealand is Carroll v. Attorney General for New
Zealand5~ In that case Myers C.J. in discussing
a submission made by the Solicitor-General, said:
(I agree at once that where the Governor-General
is given power to make such regulations as he thinks
necessary and any particular regulation he makes is
within the ambit of the Act, t~is Court would have
no power to interfere, or even to inquire into the
reasonableness of the regulation. But it is the
duty of this Court, when the validity of a regulation
is challenged, to consider the Act and to say whether
the regulation is within its ambit; and if upon the
true construction of the statute the Court comes
to the conclusion that the Act does not authorise
the regulation, then it must hold the regulation to
be ultra vires and void.'

The practice of the Law Draftsman in the country has

49. Strawbridge v. Simeon [1959] N.Z.L.R. 405.

50. Ll968] N.Z.L.R. 730, at 733.
51. [1933] N.Z.L.R. 1461, at.l478.
 222.

been, since 1960 at least, to refrain from vesting so wide

a power in the Governor~General, and from thereby making

him the judge of what regulations might be necessary or

expedient. Bearing this in mind, the Parliamentary Committee

on Delegated Legislation in its Report of 1962 was of opinion

that no need existed for more detailed political scrutiny

of delegated legislation.5 2 So long as power was restored to

the courts to review the necessity or expediency of any

regulation, further political control would be superfluous.

But it is by no means certain' that the courts have, as

a result, shown a readiness to go beyond narrow applications

of the ultra vires rule. Although North P., in the passage

quoted above, may appear to support an extension of the ambit

of the cou~t's surveillance where there is no highly

subjective power vested in the Attorney-General, a more

recent decision of t~e Chief Justice, in Martin v. Attorney-

General53 would appearto deny that this is so. Similarly,

a majority of the members of the House of Lords, in McEldowney

v. Forde5
4
rejected the submission~that a more extensive

application of the ultra vires doctrine might be operated by

the courts where the regulation-making authorisation is not

largely subjective.

52. Report of Parliamentary Committee on Delegated Legislation

(1962); 4 A.J.H.R. of 1962; I 18, at 8.
53. [1970] N.Z.L.R. 158. ·
54. [1971] A.C. 632, at 644 per Lord Hodson; 650 per Lord
Guest and 651 per Lord Pearce. But cf. the powerful
dissenting judgement of Lord Diplock on this point, at
66o-662o
 223.
Given this reluctance of the courts to extend their
powers of review beyond a mere 'four corners' approach it
is unlikely, it is submitted, that certainty will be firmly
accepted as a touchstone of validity of regulations.
The attitude of the Australian courts to this question
has already been considered. In rejecting eertainty as an
'independent' test of validity, the Australian courts have
nonetheless remained prepared to review regulations for
certainty when the requirement of certai~ty goes to power.55
This view, it is submitted, is one which would also be
adopted by the courts of this country should the occasion
.
ar1.se. 56

But the question of certainty may also be relevant to

the validity of regulations under a narrow view of ultra
vires in the situation demonstrated by McEldowney v. Forde. 5 7
In that case, although admittedly it is not altogether
clear, it appears that a majority at least of the House of

55. See e.g. the more recent decisions in Foster v. Aloni

[1951] V.L.R. 481, at 487; Parry v. Osborn [1955]
V.L.R. 152, at 154; Hitchener v. Ham [1961] V.L.R. 97,
at 103-104; Pearse v. City of Sout'ilPerth [1968] W.A.R.
130, at 132-133; Brudenell v. Nestle Co. (Australia) Ltd
[1971] V.R. 225, at 234.
56. Such an approach has already been adopted by the New
Zdaland courts in respect of other types of instruments,
including statutory notices; see e.g. Sharp v. ~
[1965] N.Z.L.R. 760, at 766; Dowling v. South Canterbury
Electric Power Board [1966] N.Z.L.R. 676, at 678; and
in respect of judicial orders, see e.g. !• v. Garvey;
Ex parte Henry (1888) 6 N.Z.L.R. 628.
57. [1971] A.C. 632.
 224.

Lords would accept that vagueness of such a nature as to

cause a statutory regulation to operate in a wholly

arbitrary manner could render it unauthorised. 58 But it is

clear that such a regulation would require to be sufficiently

arbitrary as to render it outside the ambit of the

authorising Act, 59 hence the concept is but a limited

extension, if it is an extension at all, of the narrow view

of ultra vires. It should be noted too, that it was a

regulation of a Minister with which the House of Lords was

concerned in that case, so that questions of the possibility

of bad faith, such as might be raised by a wholly arbitrary

regulation could be considered. The Australian High Court,

which the New Zealand courts might be exp~cted to follow on

this point, has held that no such questions may be permitted

to arise in the case of the exercise of powers by the

60
Governor-Genera1.

There is, it is submitted, little authority upon which

the courts of this country could extend the certainty test to

58o See ibid., 643, per Lord Hodson; 650 per Lord Guest;
653,--per Lord Pearce. Lord Diplock may not be far from
this position when he asserts, 'A regulation whose
meaning is.so vague that it cannot be ascertained with
reasonable certainty, cannot fall within the words of
delegation' (ibid., 665); but His Lordship also appears
to regard the~t as directly .applicable, when he
states, that the regulations 'are too vague and uncertain
in their meaning to be enforceable•' (idem.)
59. Ibid.,653-654, per Lord Pearce. ----
60o rn-Australian Communist Party v. Commonwealth (1951)
83 C.L.R. 1.
 225.
st~tutory regulations, beyond the extent to which consid-
.
erat ~ons o f cer t a~n
. t y come ~n
. t o a narrow .
v~ew
. o f ult ra .
v~res.
61

At same time, it must be conceded that lack of authority

t~e

appears se ld om t o h ave h ~n . .
. dere d var~ous ext ens~ons
. 62 and
6
interpretations 3 of the test in the past. The true position
is far from clear, and it is hoped that the Supreme Court
will.take the opportunity to provide a definite answer when
next the question arises for consideration.
It is significant that one Australian judge has taken
the view that a requirement of certain~exists with regard
to proclamations, as distinct from regulations, of the
64
Governor-General. In Walpole v. Bywool Pty. Ltd, O'Bryan J.

61. The conclusion reached in the text appears to be

supported by a recent Magistrate's Court decision
that has just come to hand. In Transport Department v.
Manawatti Ashphalts Ltd (1971) 13 M.C.D. 237, Mr J.R.P. Horn
S.M. was asked to rule upon the validity of a traffic
regulation prohibiting the emission from a motor vehicle
of lan. excessive amount of smoke'. After reviewing a
number of authorities on the topic, the learned
Mag1strate concludea, 'that any doctrine of invalidity
for uncertainty has no application to statutory
regulations in New Zealand' (ibid., 24o). His Worship
also makes the interesting po~that, since the Acts
Interpretation Act,. 1924; s.4 includes in its definition
of 'Act', all rules and regulations made under a
statute it may well conflict with the 'fair, large,
and liberal construction' provisions of s.5(j) of
that Act to hold a regulation void for uncertaintyo
62. See e.g. Ex parte Sinderberfli Re Reid (1944) 44 S.Ro
(N.S.W.) 263, and~ v. Marine Dept. Hamilton, 6
August 1970 (unreported).
See e.g. Fawcett Pro~erties Ltd v. Buckingham County
Council [1961] A.C. 36, at 662-663 per Lord Cohen;
668 per Lord Morton of Henryton; 677~679 per Lord
Denning; 687~688, 692~693 per Lord Jenkins.
64. [1963] Y.R. 157, at 16l-162o
stated:

The validity and interpretation of proclamations,

being subordinate legislation, are to be considered
in the same way as the validity and interpretation
of bylaws (see Hitchlner v. Ham [1961] V.R. 97,
at pp .. l03-104). , ~ - ·

But with respect, it is doubtful that the proposition

can stand. It does not appear in fact to be supported by

Hitchener v. Ham. It may, h&wever, be possible to support

a modified proposition that, where a proclamation has a

statutory basis and may therefore be capable of review under

a narrow application of the ultra vires rule, then certainty

may be relevant to that issue in the sense already considered.

It is possible indeed in the Au·stralian context that 0 'Bryan J.

intended to assert no more than this. But.as it stands, his

proposition could by no means be said to be accurately

descriptive of the principles of validity of proclamations

in this country ..

The courts have indicated clearly, however, that they

are prepared to apply the test to other public law instru-

ments dire~tly analogous to bylaws. There was little

difficulty, for example, in the Fawcett Properties 65 and

Mixnam's Properties 66 cases, in holding that conditions

imposed by local authorities upon planning consents should

65. [1961] A.C. 636. Though cf. comments of Lord Evershed

M.R. in the Court of Appeal, [1959] Ch. 543, at 566-567.
66. [1965] A.C. 735. And cf. Lamason v. McLean [1952] N.Z.L.R.
288. An interesting decision which at first sight
indicates an extension of the certainty test, is Foster
v. Aloni [1951] V.L.R. 481 where the Victorian Full
Court declared void or ineffective for uncertainty an
advertisement in the daily Press restricting the use of
electricity. It is submitted, however, that it was ¥,oid
 227.
be subject to the bylaw tests of reasonableness and

certainty, although the degree to which either must be

present in order to induce invalidity is still confused.

Generally speaking, however, the tests appear to be regarded

as aspects of the ultra vires doctrine, and the courts require

the presence of uncertainty or unreasonableness to a

substantial degree before they are prepared to hold conditions

unauthorised. 67

The extent to which other forms of official action may

be reviewed for certainty must depend upon the extent to

which the courts will be prepared to apply the ultra vires

doctrine to that form of official action. The question

appears to be, how readily will the courts infer that a

requirement of certainty should govern the valid exercise of
a given power? It is clear that the courts will not hold
68
a provision of a statute void for uncertainty, for example,
although there are isolated instances of nineteenth century
decisions where statutes quite devoid of meaning have been

66. Cont.
as a notice required under statute, rather than as an
advertisement per se.
The test in .this country is governed by LEnge v. ~
and Country Planning Appeal Board (No.2) •Jl~'~]:::z ..
N.Z.L.R. 898. The Appeal Board itself has on occasion
considered the validity from the point of view of
vires, notwithstanding its power to review conditions
on the merits (s.42(1A) Town & Country Planning Act,
1953); see e.g. Abbot v. Matamata County (1970)
3 N.Z.T.C.P.A. 281.
68. See Dunlop v. Milton Timber & Hardware Co. Ltd [196o]
N.z.L.R. 1096.
 228.

held unenforceable. 69 The likelihood of such an occurrence

today is extremely remote. At the other end of the scale,

one would expect a greater willingness on the part of the

courts to infer from powers conferred on local authorities

to impose conditions and to issue statutory notices that

the language used in their exercise should be readily

comprehensible. But at present there are few consistent

guidelines in this area of lawo

69. See e.g. !• v. King (1826) 2 C. & P. 412; 172 E.R.

186; Green v. Wood (1~45) 7 Q.B. 178, 115 E.R. 455;
Salmon v. Duncombe (1886) 11 App. Cas. 627.
 CHAPTER 9

THE OPERATION OF THE CERTAINTY TEST

1. Introduction

It is a matter of some significance that among those

judges who accept that subordinate legislation may be

tested for certainty there is a considerable diverg~nce in

approach to the problem of the degree of uncertainty that

will induce invalidity in any given provision. Four distinctly

different tests that have been advanced from time to time

are discussed in this ch,apter, and their application to

uncertainty arising from various causes considered. In

addition, a number of other factors that have from time to

time been accorded weight by different judges are examined.

But it would be a mistake to assume that there is any

consistency in their use.

There is however, general acceptance of the. fact

that it is beyond the capabilities of any legislative

body to formulate rules devoid of uncertainty, and that

it would be unrealistic for the courts to insist upon too

high a standard in subordinate legislation. In a Canadian

case decided earlier this century this concern was expressed

in this way:

It may be a counsel of perfection that in drafting

bylaws the use of words susceptible of more than
one interpretation should beawoided; but it is too
much to exact of municipal councils that such a
degree of certainty should always be attained.
It would be going quite too far to say that
 230.
merely because a term used in a bylaw may be
susceptible of more than one interpretation
the bylaw is necessarily bad for uncertaintyol

Because uncertainty is itself a highly relative concept

and may be caused by a number of different factors, a

decision as to where the line should be drawn in any case

is likely to be highly subjective. While it is clearly

impossible to provide a precise answer, it is possible to

indicate a number of factors that the courts have taken

into amcount on occasion when faced with this problem.

2. The ~est of Certainty

Most important of -these factors is the particular test

which the judge sees as applicable. At least four tests

have been applied from time to time, but on no occasion

have the courts of this country_ been required to consider
whether the diverge.nce in approach rei:ealed by past practice
might bear in a material manner upon the application of the

test. On some occasions, indeed, the adoption of different

tests by different judges has clearly had little bearing on
their conclusions, 2 but on other occasions di~fering approaches
have brought about vastly different results.3 For the purpose

1. City of Montreal v. Morgan (1920) 54 D.~.R. 165, at

173 per Anglin J.
2. See e.g. King Gee Clothing Co. Pty. Ltd v. The Commonwealth
(1945) 71 C.L.R. 184; Masterton Co-o e ative Dair Coo
Ltd v. Wairarapa Milk Board 19 N.Z.L.R. 771.
see e.g. Anchorage Butchers v. ~ (1939) 42 W.A.L.R. 40,
at 43 per Dwyer J., 47 per Wolff J., 48 per Northmore C.J.;
Fawcett Properties Ltd v. Buckingham County Council [1961]
A.C. 636, at 663 per Lord Cohen, 669-670 per Lord Morton
of Henryton, 671 per Lord Keith of Avonholm, 677 per Lord
Denning, 692 per Lord Jenkins; City of Dartmouth v.
 231.
of ease of reference it has been necessary to accord a
title to each of the four tests about to be studied. Each,
it is trusted, is reasonably self-explanatory.
(a) The 'Layman' test:
It may be recalled that in early formulations of the
test, the requirement was that the language of a provision
should be capable of being understood by those bound by
it. Grant, for example, thought that it should be 'in
such language as may readily be understood by those on
whom it is to operate•, 4 while Lumley similarly believed
it necessary that the provision 'afford complete direction
to those who are to obey•. 5 A number of the earlier New
Zealand cases follow this approach., 6 and it has also found
limited acceptance in other jurisdictions.? The requirement

3. Cont.
S.S. Kresge Co •. Ltd (1966) 58 D.L.R. (2d) 229 9 at
234 per Ilsley C.J., 263 per Fielding J.
4. Corporations (1850) 86.
5. An Essay on By~laws (1877) 93.
6. See e.g. Brown v. Mcinnes (1896) 15 N.Z.L.R. 256;
Riddiford v. Collier (No.2) (1896) 15 N.Z.L.R. 344;
~ v. Onehunga BorouEh [1916] N.Z.L.R. 713, at 727~
72~; Martin v. Smith 1933] N.Z.L.R. 636. And cf.
R. v. Broad [19m5J A.C. 1110, at 1122; Masterton Co-
operative Dairy Co. Ltd v. Wairarapa Milk Board [1964U
N.Z.L.R. 771, at 781, 783; Dowling v. South Canterbury
Electric Power Board [1966] N.Z.L.R. 676; Lee v. Marine
Department Supreme Court Hamilton 6-August 1970 (unreported).
7. See e.g. Ex parte Ryan; Re Bellemore (1945) 46 S.R.(N.S.W.)
152, at 157; Ex parte Callinan; Re Russell (1945) 45 S.R.
(N.s.w.) 358, at 362; Citf of Dartmouth v. s.s. Kresge
Co. 1td (1966) 58 D.L.R. 2d) 229, at 234; Haddock v.
District of North Cowichan (1966) 59 D.L~R. (2d) 392,
(Sup.Ct); 5 D.L.R. C3d) 147 (C.A.); Crisp From the Fens v.
Rutland County Council (1950) 114 J.P. 105, at 112.
 232.
under this test is that provisions be understandable to a
layman, unversed in the skills of construction or interpret-
ation of legal instruments.
(b) The 'Judiciary' test:
In expressing the view that certainty was a test of
validity of bylaws Mathew J. in Kruse v. Johnson8 stated
simply that a bylaw .•must contain adequate information as to
the duties of those who are to obey', without requiring that
the information be in a readily understandable form. Some
judges have since taken the view that it is sufficient that
a bylaw be in a form intelligible to themselves. 9 Thus,
they have on occasion insisted that they first attempt to
construe an uncertain bylaw and only when that process fails
to remove reasonable doubts as to its meaning, should it be
held invalid. 10 Whether or not this test is different from
the 'layman' test seems never to have been considered. Its
application has, however, led on occasion to some unusual
results. In Bendixen v. Coleman11 the Australian High Court
adopted the 'judiciary' approach in determining whether or
not a price order should fail for uncertainty. The majority

8. [1898] 2 Q.B. 91, at 108~

9. See e.g. Johnson v. Hammond (1888) 7 N.Z.L.R. 245;
Masterton Co-o erative Dair Co. Ltd v. Wairarapa Milk
Board 19 · N.Z.L.R. 771, at 77 per Hutchison J.
(S.C.); 783-784 per McCarthy J. (C.A.); Fawcett
Properties Ltd v. Buckingham County Council (1961)
A.C. 636, at 670 per Lord Keith of Av.onholm.
lOo See e.g. Ex parte Zietsch; Re Craig (1~44) S.R.(N.S.W.)
360, at 365-366; Foster v. A1oni [1951] V.R. 481.
11. (1943) 68 C.L.R. 401.
 233.
was prepared to accept that the concept of 'cost' was

sufficiently certain in its context in the order. 12 But,

as another judge later pointed out, they disagreed as to

its 'certain' meaning:

••• it must be kept in mind that accordint to the

most recent exposition of the subject, 'certain'
or 'clear' must be regarded as somewhat relative
terms, since in Bendixen v. Coleman five learned
judges took three different views as to the
meaning of the expression 'cost' as used in a
statutory order, and yet what the majority thought
to be the meaning was held to have been sufficiently
clear to enable three trades people to know what it
meant, so that they were liable to be convicted of
a criminal offence for having failed to comply
with the order.l3

Although it is likely that consistent application of

the 'judiciary' test would lead to fewer bylaws being found

uncertain than under the 'layman' test, simply through the

reluctance of some judges to be defeated by the unskilfulness

of a draftsman, the subjectivity of the test leads to wide

variation in its application. The question of at what point

it becomes preferable to hold a provision void, than to

'construe' it, is one that is incapable of an objective

answer. One suggestion that has received some support, is

to distinguish between uncertainty of application, on the

one hand, and uncertainty as to the concept enshrined in a

12. Ibid., at 417-418 per Latham C.J.; 419 per Rich J.,
}If:27j:-per McTiernan J •, 426 per Williams J. Cf. Starke J.
at 421.
13. Per Jordan C.J. in Ex parte O'Sullivan; Re Craig (1944)
44 S.R.(N.S.W.) 291, at 296. See also his observations
in Ex parte Zietsch; Re Craig (1944) 44 S.R.(N.S.W.)
360,. at 366.,
 234.
provision on the other. The test then becomes one of

whether sufficient criteria are given to enable a tribunal

of fact to determine whether the provision will apply in

. 1 ar case. 14
any par t 1cu

While such a formulation has the advantage of emphasising

that mere difficulties in application should not invalidate

a provision, it is respectfully submitted that it provides

no more s~ientific nor predictable a guide than had existed

previously.

(c) The 'Statute' test:

On some occasions the 'judiciary' test has been taken

a little further, resulting in the assertion that ~11

legislative provisions, be they enshrined in statutes or

bylaws, should be construed and applied in the same manner,

except that although unintelligibility might render a statute

1
unenforceable, a bylaw may instead be held invalid. 5 rn

14. See e.g. Gill v. City of Prahnan [1926] V.L.R. 410, at

413-414 per Dixon A-J.; Walpole v. Bywool Pty. Ltd (1963]
V.R. 157; and cf. Fawcett Properties Ltd v. Buckingham
County Council [1961] A.C. 636, at 670-671 per Lord Keith
of Avonholm; ·Brown v. Gould [1971] 3 W.L.R. 334, at
337-338 per Megarry J. and Masterton Co-operative Dairi
case (supra-~ at 784, per McCarthy J. ·
15. See e.g. Springbank Municipal District v. Render [1936]
4 D.L.R. 193, at 197-198 per McGillivray J.A.; Parry v •
. Osborn [1955] V.L.R. 152, at 154 per Scholl J.;
Fawcett Properties Ltd v. Buckingham County Council
[1961] A.C. 636, at 677 per Lore Denning; City of
Dartmoujh v. s.s. Kresge Co. Ltd (1966) 58 D.L.R. (2d)
229, at 253 per Fielding J.
 235.

other words, it is suggested that only a provision of

subordinate legislation that is quite without meaning can

validly be attacked for uncertainty. With one exception,

however, this assertion would appear to have been made in

isolation and without reference to the other cases where

uncertainty has operated as a head of validity. It appears,

moreover, despite the apparent conclusion that such an

approach must negate any test of certainty, that some judges

regard the certainty test as still operative, with

predictable resultant confusion.

16

The exception is Lord Denning, in the Fawcett Properties

case, who does have regard to authority, but there can be

little doubt that in his rigid formulation of the certainty

test the learned Judge was greatly influenced by the fact

that the provision in that case had been taken verbatim

from a statute.l7.

To apply to bylaws and other subordinate legislation

the rules relat~ng to validity of statutes is to deny the

existence of any 'test' of certainty. This, it is submitted,

cannot validly be done without consideration of the opposing

authorities. Those authorities support the application of

16. $ee e.g. Springbank Munici)al District Vo Render (supra)

and Parry v. Osborn (supra •
17. This, and other aspects of Lord Denning's speech in
that case have received more detailed consideration
supra, at p.213.
 .236.

a test based either upon the 'layman' or the 'judiciary'

approach. In applying those tests the courts have

occasionally had regard to another factor, which is of

sufficient significance to warrant its consideration as a

test in itself.
(d) The 'Benevolent' test; ·
18
Lord Russell of Killowen C.J. stated in Kruse v. Johnson
a test that has become widely accepted with relation to
alleged unreasonableness in the bylaws of public representative
bodies:
••• I think the consideration of such bylaws ought
to be approached from a different standpoint. They
ought to be supported if possible. They ought to
be, as has been said, 'benevolently' interpreted,
and credit ought to be given to those who have to
administer them that they will be reasonably
administered. This involves the introduc.tion of
no new canon of constructionQ

Lord Russell's words were not expressly limited to unreason-

ableness, and although it was not from his but from the
dissenting judgement of Mathew J. that the modern test of
20
certainty derived, yet courts in Canada, 1 9 England,

18. [1898] 2 Q.B. 91 9 at 99.

19. See e.g. Re Bylaw 92, Town of Winnipeg Beach (1919)
50 D.L.R. 712; City of Montreal v. Morgan (1920) 54
D.L.R. 165, at 173; Hirsch v. Town of Winnipeg Beach
(1961) 26 D.L.R. (2d) 659, at 664; City of Dartmouth
v. S.S. Kresge Co. Ltd (1966) 58 D.L.R. (2d) 229, at
234; Haddock v. District of North Cowichan (1966) 59
D.L.R. 392 ..
20. See e.g. Nash v. Finla~ (1901) 85 L.T. 682, at 683;
Ireland v:-wi'lson [193 ] 3 All E.R. 358; Townsend (Builders)
Ltd v. Cinema News and Property Management Ltd [1959] 1
All E.R. 7, at 10; Fawcett Properties Ltd v. Buckingham
County Council [1959] Cho 543, at 566 (C.A.)
 237.
Australia,
21 and this country 22 appear to have had little

hesitation in extending the benevolent test to certainty as

well. Applying this test the approach is typically to

attempt to attach a clear meaning to a provision through

processes of construction and interpretation, bearing in

mind that the bylaw should be upheld so far as possible.

Thus the approach adopted frequently bears a close resemblance

to that adopted under the 'judiciary' test.

Now, the benevolent test has operated for some time with

regard to reasonableness in bylaws, and in Britain at least,

it has been said that it would require something 'overwhelming'

in the way of unreasonableness before a hylaw could be held

invalid on this ground. 2 3 In New Zealand, however, the courts

have retained greater powers of review, particularly where

no other safeguards exist over the bylaw making authority,

24

and it is true to say that generally the benevolent test

has not received such rigorous application in this country.

21. See e.g. Brunswick Corporation v. Stewart (1941) 65 C.L.R.

88, at 98-99; Anchorage Butchers v. Law (1939) 42
W.A.L.R. 40, at 48. ----
22. See e.g. Williamson v. Christchurch City [1955] N.Z.L.R.
988, at 992; Masterton Co-o erative Dair Co. Ltd Vo
Wairarapa Milk Board 19 N.Z.L.R. 771, at 777 per
North P., 784 per McCarthy J.
23. See Associate Provincial Picture Houses Ltd v. Wednesbury
Corporation [1948] 1 K.B. 223 at 230 per Lord Greene M.R.
24. See e.g. Grater v. Monta'u (1904) 23 N.Z.L.R. 904, and
McCarthy v. Madden (1914 33 N.Z.L.R. 1251, at 1268-
1269 per Denniston and Edwards J.J.
 238.
The position with regard to certainty is similar. The

benevolent.test has seldom been applied in this country in

the situation where lack of certainty is an alleged defect

in a bylaw, and moreover, in those cases where it has been

used, its introduction has not been seen as a deliberate

extension of it. 25

The possibilit.y of its more freq~ent use, together with

its widespread acceptance in the context of uncertainty

overseas, however, requires that some consideration be

given in this work to its likely effect. It might appear

at first sight incongruous and contradictory that there

should be a rule requiring the cour~e to uphold bylaws

wherever possible, yet at the same time accept that the

validity of those bylaws is governed by the ultra vires

rule. Does the benevolent test amount to an abrogation

of the ultra vires rule?

In a number of instances it clearly has not. The

benevolent test has been cited by judges simply as authority

for their course of action in placing upon a provision a

26
construction that serves to render it valid. But the

manner in which the test has come to be applied in some

other jurisdictions, particularly in England, suggests that

25. See-cases cited in footnote 22 supra.

26. A ~ecent illustration is afforded by Gisborne City v.
J. E. Openshaw [1971] N.Z.L.R. 538.
 239o
it has had considerable influence upon the impact of the

ultra vires rule. It would appear to have made the courts

significantly more reluctant to infer from the terms of a

grant of power that it was ihtended by Parliament to place

close limits on the manner of its exercise. Clearly, it

was in these terms that Lord Russell of Killowen C.J. was

thinking when he considered in Kruse v. Johnson 2 7 how the

test of reasonableness ought to be conceived of:

If for instance, (bylaws] were found to be partial

and unequal in their operation as between different
classes; if they were manifestly unjust; if they
disclosed bad faith; if they involved such
oppressive or gratuitous interference with the
rights of those subject to them as could find no
justification in the minds of reasonable men, the
Court might well say, 'Parliament never intended
to give authority to make such rules; they are
unreasonable and ultra vires.•

But recent English decisions relating both to reasonable-

ness and certainty have gone further than this, and appear

now to be heading towards the situation where only a very

narrow view of ultra vires will be taken by the courts in

respect of the validity of all subordinate legislation.

Thus Diplock L.J. (as he then was) has stated that:

The various special grounds upon which subordinate

legislation has so~etimes been said to be ~oid -
for example because it is unreasonable; because it
is uncertain; because it is repugnant to the
general law or to some other statute - can, I think,
today be properly regarded as being particular
applications of the general rule that subordinate
legislation, to be valid, must be shown to be within
the powers contained by statute ••• if the courts can
declare subordinate legislation to be invalid for

27. [1898] 2 Q.B. 91, at 99-100.

 'uncertainty' as distinct from unenforceable, as
in the case of a clause in a statute to which it
is impossible to ascribe a meaning, this must be
because Parliament is to be presumed not to have
intended to authorise the subordinate legislation
authority to make changes in the existing law which
are uncertain.28

There is, it is submitted, nothing new in this approach.

But what is significant is the readiness of the courts to

infer from grants of powers that various conditions were

intended to govern their exercise. The Australian courts,

as has been seen, have adopted the position. of requiring

some specific indication in the authorisation itself, at

least so far as statutory regulations are concerned, and

it would appear that the English courts may be moving

towards this position with regard to all subordinate

legislation. 29

But New Zealand courts, by and large, appear to be

still ready to imply into the grant of any bylaw making

power the conditions that it be exercised reasonably and

with certainty. The benevolent test at present operates

probably more as a principle of construction of assistance

in borderline cases, than as ·a substantive rule of law

casting a severe limitation on powers of judicial review.3°

28. Mixnam's Properties Ltd v. Chertsey U.D.C. [1964] 1

Q.B. 214, at 237-23Bo
29. See e.g. Mixnam's Properties case (supra); Fawcett
Properties case (supra); Hall & Co. Ltd v. Shoreham-bj-Sea
U.D.C. [1964] 1 W.L.R. 240; Luby v. Newcastle-under-Lyme
Corporation [1964] 2 Q.B. 64, at 72.
30. See e.g. comments of Hutchison J. in Masterton Co-operative
Dairy Co. Lta v. Wairarapa Milk Board [1964] N.Z.L.R.
771, at 775.... 776.
 241.
3. Other Factors Taken Into Account

Because the courts have yet to adopt and apply

consistently any one test of certainty, there has been a

notable tendency to take into account any number of a wide

range of different factors in determining whether or not a

particu~ar provision should fail for uncertainty. Because of

the unpredictability of which of these factors will weigh

most heavily with a particular judge, it is possible to

regard them as no more than indecisive guidelines. They do,

however, require brief consideration.

One factor which kas weighed heavily with a number of

judges from time t6 time has been the presence and proximity

of sanctions laid down for breach of the legislative provision.

The fact that heavy penalties are provided for is seen as

an indication that Parliament could have intended only

clear and certain legislation to bring them into effect.3l

Or,'to put it another way, the more severe the likely penalties,

the more important it is to ensure that only clear language

is used.3 2 On occasion this consideration has brought about

31. See e.g. King Gee Clothing Co. Pty. Ltd v. Commonwealth
(1945) 71 C.L.R. 184, at 197 per Dixon J.; Fawcett
Properties Ltd v. Buckingham County Council [1959]
Ch. 543, at 567 per Lord Evershed M.R., and in the
House of Lords, [1961] A.C. 636, at 669 per ~ord
Morton of Henryton; Dowling v. South Canterbury
Electric Power Board [1966] N.Z.L.R. 676, at 6~.
32. See e.g. Masterton Co-o erative Dair Co. Ltd v.
Wairarapa Milk Board 19 N.Z.L.R. 771, at 781
per Turner J.
 242.
comparisons with conditions subsequent in trusts and wills, •
whose breach would work a forfeiture. It will be recalled
that the courts have insisted upon a high standard of certainty
in that situation. But the comparison has not always been
favourably received. 33 Similarly, the presence of sanctions
has on occasion brought into consideration the maxim of
interpretation that 'a man is not to be put in peril upon
an ambiguity•, 34 but only occasionally has this maxim been
seen of significance in this context.35 It is of more
relevance to the construction of an instrument, than to
6
questions surrounding its validity.3
Another factor which has received consideration on
occasion has been the extent to which a provision interferes
with private rights. The Canadian courts in particular have
insisted upon clear language as a condition precedent to
the validity of a bylaw that purports to interfere substantially
with private rights, and particularly rights of property.37

33· See e.g. Fawcett Properties case (sup6a) at 662, per Lord
Cohen, 6??-6?8 per Lord Denning, 692- 92 per Lord Jenkins.
34. Per Lord Simons, in London & North Eastern Railway Co. v.
Berriman [1946] A.C. 2?9, at 313-314.
35. See e.g. Fawcett Properties case (supra) at 668 per Lord
Morton of Henryton; McEldowney v. Forde [1971] A.C. 632,
pe 653 per Lord Pearce.
36. See the comments of Lord Denning in the Fawcett properties
case (supra) at 677.
37- See e.g. Cook v. North Vancouver (1911) 16 B.C.R. 129; Re
Mitchell ~Townshi of Sau een (1919) 46 O.L.R. 279; City
of Montreal v. Morgan 1920 5 D.L.R. 165, at 173; Blue
Haven Motel Ltd v. District of Burnaby (1965) 52 D.L.~2d)
464; Haddock v. District of North Cowichan (1966) 59
D.L.R. (2d) 392. And see also Fawcett Properties case,
[1959] Ch. 543, at 573 per Romer L.J.
 Other factors occasionally considered include the
extent of other controls available over the legislative body,3 8
or over officials exercising powers under the subordinate
legislation. 39 The courts have also had regard to whether
the subject matter of the provision was such as would enable
its rewording in more specific terms, or whether, on the other
hand, vagueness and uncertainty were inevitable and must be
40
deemed to have been authorised by Parliament. If clearer
wording would be possible, however, the courts have
occasionally seen invalidating a bylaw as a means of imposing
a sanction upon a local authority in order ·to ensure that
laxity in drafting should not be_en9ouraged. 41
Again, in determining whether or not a given provision
is uncertain, the courts have placed weight on earlier
decisions where similar wo~ding has been found to be either
certain42 or uncertain, 43 although they have generally

38. See e.g. Kruse v. Johnson [1898] 2 Q.B. 91, at 109

per Mathew J.
39. See e.g. Duncan v. Lawless (1901) 3 G.L.R. 472, at 473.
40. See e.g. Dwyer v. Hunter [195l]_N.Z.L.R. 177; Ideal
Laundry v. Petone Borough [1957] N.Z.L.R. 1038; United
Bill Posting Co. v. Somerset County Council {1926) 95
L.J.K.B. 899.
41. See e.g. Kruse v. Johnson [1898] 2 Q.B. 91, at 112 per
Mathew J.; Treasure and Co. v. Bermondsey Borough Council
(1904) 68 J.P. 206, at 207 per Lord Alverstone C.J.
42. See e.g. Ex parte O'Sullivan; Re Craig (1944) 44 S.R.
(N.S.W.) 219, at 296; Ex parte Zietsch; Re Craig (1944) 44
S.R.(N.S.W.) 360, at 366; Ex parte Callinan; Re Russell
(1945) 45 S~R.(N.S.W.) 358.
43. See e.g. Bendixen v. Coleman (1943) 68 C.L.R. 401,
at 416, 421. ·
 244.
recognised that meanings may vary considerably from context

to context. Also, in some cases, the courts have considered

whether ascertainment of a provision's meaning has caused

any difficulty to cit~zens in the past.

44
It appears too

that where the alleged uncertainty arises not in a

substantive prohibition itself, but in a section of a

provision which seeks to relax otherwise strict standards,

the courts will be less reluctant to find that the uncertainty

should induce invalidity. 45 It is possible also that there

will be reluctance to find a bylaw goid for uncertainty where

the local authority concerned is not a party to the

46
proceedings before the court.

One final factor which has occasionall~ been seen as

relevant to the issue of certainty calls for further comment,

however. This is the question of the facts or merits of the

case before the court. It has occasionally been suggested

that the fact that the party complaining of the uncertainty

has not himself been misled by it is of relevance to the issue

44. See e.g. R. v. Broad [1915] A.C. 1110; Fawcett Properties

Ltd v. Buckingham Coun~y Council (1959] Ch. 543, at
~per Lord Evershed M.R. And cf. Attorney-General
v. Denby [1925] Ch. 596, at 614, where an experienced
architect's evidence of difficulty in applying a bylaw
was accepted by the Court.
See e.g. Leyton U.D.C. v. Chew (1907] 2 K.B. 283; ~
parte Callinan; Re RussellU945) 45 S.R.(N.S.W.) 193,
at 198; Fawcett Properties case (1961] ~.c. 636, at
662-663 per Lord Cohen.
46. See Townsend (Builders) Ltd v• Cinema News and Property
Management Ltd [1959] 1 All E.R. 7, at 10 per Lord
Evershed M.R.
 245.
of validity. 47 This is a suggestion that must be viewed with

considerable misgiving. In a number of proceedings it will

be necessary to determine the validity of bylaws with no

disputed fact situation. Under section 12 of the Bylaws Act

1910, for example, provision is made for the quashing of

invalid bylaws on the motion of any person, thus providing

a means of direct attack.

It has been the long standing practice of the courts to

determine the validity of legislative instruments independently

of any fact situation that may have arisen under them. The

view is that the validity of a legislative instrument should

not be dependent upon the facts of a particular case. This

attitude is reflected in the judgement of McCarthy J. in

48
Masterton Co-operative Dairy Co. Ltd v. Wairarapa Milk Board,

where the learned Judge stated:

I do not intend to set out the facts of the case

at any length at all, for the question of validity
of the clause must be determined independently of
those facts.

There can be no authority for the proposition that

the validity of such a provision is dependent upon whether

the party alleging the uncertainty was himself misled by it.

h~: See e.g. Bendixen v. Coleman (1943) 68 C.L.R. 4ol,

at 414-415 .per Latham C.J.; Crisp From the Fens v.
Rutla~d County Council (1950) 114 J.P. 105, at 112 per
Denning L.J.; Williamson v. Christchurch.City [1955]
N.Z.L.R. 988, at 992.
48. [1964] N.Z.L.R. 771, at 781.
 246.
If there were, it would involve that validity would vary

from case to case. As with private law instruments, it can

be only the application, and not the validity of subordinate

legislation which is in any way dependent upon the facts of

a ,aase arising under ito

4. The Effect of Different Types of Uncertainty

It will be recalled that in Part One of this work the

concept of uncertainty was divided into a number of component

parts for the purpose of analysis. Uncertainty was found to

arise in the case of meaningless provisions, ambiguity,

inaccuracies, omissions, from delegation or reservation,

and from vagueness. In Part Two, the manner in which the

courts coped with these types of uncertainty in some private

law instruments was considered.

It is proposed now to examine the incidence of each

type of uncertainty in public law instruments, and to compare

the approach of the courts in resolving the uncertainty or

considering the validity of the instrument, with the approaches

already examined in the private law sphereo

(a) Meaningless provisions

As with private law, 00 meaninglessness' at public law is

an essentially relative matter. Given that there exist a

number of checks on subordinate legislation, particularly

in the case of legislation of a representative body, one

might expect that seldom would a court of law feel bound to

pronounce a provision meaningless or unintelligible. On those

occasions on which this has happened, it has generally been

in relation:to legislation that is contradictory or confused. 4 9

Thus, in an early Australian case,5° Hensman J. of the

Western Australian Supreme Court stated of a bylaw:

Also it is bad because it is meaningless in this

sense, that it has no exact meaning, which any
reasonable person can understand, even after
considerable study.

Less kind were the words, nearly fifty years later, of

Jordan C.J. who when speaking of a Price Control Order stated:

Clause 7 falls ludicrously short of enabling those

to whom it is addressed to know the nature and extent
of the legal duty which it imposes upon them, and
in my opinion it is therefore invalid. I find it
difficult to believe how any responsible person
could have promulgated such an impractical,
unintelligible jumble as a price-fixing measure. 51

With contracts and wills the courts have occasionally

taken the opportunity of labelling a provision 'meaningless'

so as to enable it to be severed from the remainder of the

instrument. This step has seldom proved necessary in public

law however, since merely holding a provision invalid - as

uncertain in a less emotional sense than is indicated by

meaninglessnes~ - need not render the remainder of a piece

of legislation invalid. It is probably true to say that

clauses of price orders, bylaws, regulations and planning

49. See e.g. Brown v. Mcinnes(l896) 15 N.Z.L.R. 256; Healy v.

Dunne (1898) 1 W.A. 29; Waldegrave v. Mayor etc. of
Palmerston North (1909) 29 N.Z.L.R. 223, at 226-227.
50. Healy v. Dunne (supra).
51. In Ex parte Ryan; Re Bellemore (1945) 46 S.R.(N.S.W.)
152, at 157.
 248.

conditions are more readily severable one from the other,

than maybathecase with, for example, contracts, where

clauses may, since they are dealing primarily with the one

transaction, be closely interrelated and interdependent.

The New Zealand case of Brown Ve Mcinnes 52 however,

affords an illustration of a clause of a bylaw not being

severable. Four of the bylaw's paragraphs were rendered,

by the fifth paragraph, subject to the· provisions of that

paragraph. Williams J. found that if that paragraph were

given a literal meaning it would render the whole bylaw

absurd and unreasonable, but that if it were not, then it

was unintelligible. It could not be severed however, since

the effect of the other four paragraphs depended upon the

construction placed on the fifth.

(b) Ambiguities

It may be recalled that in this work the expression

'ambiguous' is employed in its more narrow sense - that of

'having two or more distinctly different meanings.' It has

been seen that where ambiguities occur in contracts, trusts

and wills, the courts go to considerable lengths to resolve

them, taking into account not only contextual considerations,

but also extrinsic evidence, and possibly even direct

evidence of intention.53 Only where no evidence of this

52. (1896) 15 N.Z.L.R. 256.

53. See discussion at PP• 65, 92.
nature is available is it likely that an ambiguous provision

will fail. In wills especially, use may be made of a number

of 'last resort' canons of construction, so that even when

there is only the slightest reason for preferring one

construction to another, the choice of that construction

is likely to be seen as bei~g at least closer to the

testator's wishes than invalidity.

But the effects of invalidity at public law are some-

what different. Unlike a testator, a local authority whose

bylaw is held to be ambiguous and void is able to proceed

to reword it, and to promulgate new legislation. Unlike

a party to a contract, it is able to do this unilaterally.

While this process may be of some inconvenience to the local

authority, it is unlikely to interfere seriously with rights

of third parties.

So that it is with these considerations in mind that the

courts approach ambiguities in public law instruments, and it

appears that the result in any case is likely to depend to

a significant extent on the weight placed on those factors

by the judge.

In resolving ambiguities, the court is more limited in

the public law situation in the evidence it may receive.

Clearly, where the ambiguity is latent, evidence may be

received to establish its existence. 54 In the absence of

54. See e.g. E· v. Garvey, ex parte Henr~ (1888) 6 N.Z.L.R.

628; Brudenell v. Nestle Co. (Aust. Ltd [1971] V.R. 225.
 250o

such evidence, a court may be most reluctant to find that

any ambiguity exists. 55 But the extent to which a court may

legitimately go beyond purely contextual considerations in

resolving ambiguities is unclear. It has been suggested for

example, that evidence of trade usage may be relied on iP

resolving ambiguities. But the difficulties inherent in

such a course have been indicated in the Australian High

Court:

If evidence of trade meaning were held to remove

uncertainty in the cases in which such evidence
was given, then presumably the conclusion in each
of those cases would be that the order is valid.
If, however, in other cases no such evidence was
given, then, upon the basis that such evidence was
necessary to remove uncertainty, in those cases
the order would be held to be invalid. But the
same order cannot be held by the same court to be
certain and valid in one case, and also to be uncertain
and invalid in another case. These considerations
suggest that evidence of trade meaning is not relevant
to the certainty, but that it may perhaps be relevant
to the application of the order.56

The point is that the validity of a provision in a

public law instrument, unlike a provision of a private law

instrument, is liable to be tested on a number of occasions

in the same or in different courts, smmply because of its

likely widespread application. In these circumstances, it

would be unwise for a court to rely too heavily on evidence

available in a particular case as to the alleged uncertainty.

55. See e.g. Ex parte Ryan; Re Bowrey (1957) 57 S.R.

(N.S.W.) 438.
56. Bendixen v. Coleman (1943) 68 C.L.R. 401, at 415
per Latham L.J.
 251.
Instead, for the sake of consistency it is preferable that

the resolution of ambiguity be on the basis of largely

internal considerations.

Thus the courts have tended to resolve ambiguities by

reference to their context, and also through reference to

particular canons of construction. If one construction would

tend to render a bylaw outside power or otherwise invalid,

the other will be adopted, and the ambiguity thereby resolved.57

Similarly, if the provision is of a penal nature, the

construction which favours the accused person will be more

readily adopted.5B

The courts of this country, however, have shown a marked

reluctance to go very far in resolving ambiguous expressions,

and have been more willing than in the case of-private law

instruments to hold bylaws void. This attitude has been

summed up by one judge in the following terms:

The present is a case in which there are strong

reasons in favour of two interpretations as to the
extent to which the bylaw is to operate. In the
case of a statute, deed, or a will, the ambiguity
would have to be resolved if possible, but in the
case of a bylaw, according to the principles stated,
an ambiguity in the part sought to be enforced is
fatal to its validity.59

57. See e.g. Poulters Co. v. Phillits (1840) 6 Bing N.C. 314;
1;3 E.R. 124; Collman v. Millsl897] 1 Q.B. 396, at 399;
Widgeeshire Council v. Bonney (1907) 4 C.L.R. 977, at 988.
58. See e.g. Richardson v. Austin (1911) 12 C.L.R. 463, at 474;
Ingham v. Hie Lee (1912) 15 C.L.R. 267, at 271; E~parte
Zietsch; Re Craig (1944) 44 S.R.(N.S.W.) 360.
Boyd v. Onehunga Borough ~1916] N.Z.L.R. 713, at 728 per
Hosking J. See also Otekaike Drainage Board v. McKa1
[1919] N.Z.L.R. 669, where Sim J. declined to resolve
the ambiguity in a bylaw that cast an obligation upon
 252.
But the extent to which the courts in future will feel

bound to apply the id certum reddi potest maxim and strive

to resolve ambiguous bylaws and other public law instruments

is dependent largely upon the test for certainty that they

elect to adopt. Only under a llayman( test for certainty,

it is submitted, would the above passage be regarded as

accurate today.

(c) Inaccuracies

The degree of formality that surrounds the passage and

promulgation of subordinate legislation usually involves that

close scrutiny is applied, so that inaccuracies have little

chance of passing unnoticed. The occasional case has centred

around ungrammatical and infelicitous wording in bylaws

thatmay or may not have been the result of inaccuracy,

60

buy by and large the courts have not been bothered by this

defect.

On one ocaasion, however, the Magistrates' Court in

this country has had cause to comment upon an error in

numbering bylaws in the official printed copy, and upon the

59. Cont.
the 'owner or occupier' of land, but failed to
specify which of these was liable. Similar examples
are afforded by Brown v. Mcinnes (1896) 15 N.Z.L.R.
256; Hunter v. McLean (1907) 27 N.Z.L.R. 231;
Waldegrave v. Mayor etc. of Palmerston North (1909)
29 N.Z.L.R. 223; and R. v. Broad [1915] A.C. 1110.
6o. See e.g. Koetsvald v. Patrick (1903) 29 V.L.R. 152; ..
Waldegrave v. Mayor etc. of Palmerston North (supra).
 253.
61
miscitation of an authorising statute. The learned

Magistrate stated:

I could perhaps agree with counsel for the Borough,

that the first appearance of number 3205 is in mis-
print and should read 3203. These By-laws however,
have the authority of a Statute and should be correct,
and in my view the fact that there are two By-laws
numbered 3205 in the sealed copy produced to the
Court make [~] both By-laws invalid for uncertainty.

With respect, however, on this occasion the ut res magis

maxim might well have applied since the inaccuracy went not

to the substance of the bylaw, but only to its form.

(d) Omissions

Again, the checks to which subordinate legislation is

normally subjected tend to ensure that no patent physical

omissions will occur. In private law, it has been seen

that the courts may be pre·pared to imply terms when an

62
instrument allegedly omits some essential factor. It is

not uncommon, for example, for the courts to imply the

necessary terms as to settlement in land transactions, so

long as the agreement of the parties provides the essentials

of the contract. But it has been said that the court must

be able to 'collect from the four corners of the document

that something has been omitted and, further, collect with

sufficient precision the nature of the omission.r 3

6

61. Carterton Borough Council v. Harman, Magistrates' Court,

Masterton, C.R. 882, 883770. (Unreported), at p.5 of
decision of Rennie S.M.
See discussion at PP• 59-61 supra.
Re Whitrick, Sutcliffe v. Sutcliffe [1957] 1 W.L.R.
at 887 per Jenkins L.J.
 254.
The courts have demonstrated a reluctance to imply

terms into subordinate legislation in order to render it

more certain, particularly when approaching the matter

under the 'layman' test, which demands that the provision

physically contain adequate information as to the obligations

it imposes, in a manner that can be understood without

64
refined analysis. But generally, the problems raised

through possible omissions are considered in terms of their

effect - normally vagueness - rather than their cause. The

manner in which vagueness is approached by the courts will

receive consideration shortly.

(e) Delegationand reservation

It is by no means unusual for public law instruments to

purport to reserve to the legislative body, or to delegate

to some other person or body, various functions and powers

under the instrument. Indeed, the sheer inability of the

draftsman to forsee all possible fact situations and make

pr~vision for them frequently demands that flexibility be

provided by such a form of legislating. But objections

have been voiced on numerous occasions that the certain

element of such legislation diminishes as the discretionary

powers become more significant. In this situation, it may

64. See e.g. Strawbridge v. Simeon Ul959] N.Z.L.R. 405, where

Hardie Boys J. decided to imply a territorial limitation
as to the extent of operation of a statutory regulation.
And cf. R. v. Broad [1915] A.C. 1110; Hirsch v. Town of
Winnipeg-Beach (1961) 26 D.L.R. (2d) 659, at 663-664.
 255·
be alleged that the instrument becomes uncertain, in that

it fails to contain adequate information as to the duties of

those bound by it.

It may be recalled that similar objections of uncertainty

arise in this context with relation to private law instruments.

The issues that arise in contract law are different, however,

for there the question becomes one of whether there is a

concluded agreement between the parties. Provided that test

is met, there would appear no objection to delegating to one

party or to a third party the fixing of non-agreed terms.

Should parties wish to contract in this way, it is not the

function of the court to prevent them~ for that would be

unnecessary interference with freedom fuf contract. 5

6

But different con.siderations prevail where perso:D$3making

legal instruments do so under statutory authorisation, and

desire that the rights conferred by statute be enforced by

the courts. Thus, the courts have held that the power

conferred by the Wills Act 1837 to devise, bequeath, or

dispose of property, is a personal power that cannot be

wholly delegated.
66 Unless persons or objects to be

benef~tted under a will are indicated with sufficient

certainty, it is likely that the gift will fail. The

65. See discussion at PP• 70-72 supJf•

66. See e.g. Houston v. Burns [191 A.C. 342, at 343;
Re Hughes, Hughes v. Footner [1921] 2 Ch. 208, at
212.
 256.
question of certainty then goes to establishing the

extent of the delegation, but does not appear to be in itself

the test of validity.

At public law, on the other hand, each test is of

independent significance. The courts have long acted to

prevent extensive delegations of power, (and in particular

legislative power), applying the maxim delegatus non potest

delegare quite independently of questions of certainty. 6 7

In New Zealand, probably to a greater extent than in other

.
JUr~s . d.~c t•~ons, 68 th e cour t s h ave
. b een s 1 ow t o ~n
. f er f rom th e

terms in which a power is conferred that persons other than

those designated might validly exercise it. Where, however,

the power is not delegated whomly, but only partially, the

courts are more ready to uphold the delegation, particularly

when considerations upon which the subdelegate must base

6
his actions are clearly laid down. 9

It can be seen then that the issue is closely related

to the issue of certainty, since the more closely the

subdelegate's area of movement is defined, the more adequately

See e.g. Gera~hty v. Porter [1971] N.Z.L.R. 554; Mc~jy

v. Adams [192 ] N.Z.L.R. 518; Godkin v. Newman [192
N.Z.L.R. 593; F. E. Jackson & Co. Ltd v. Collector of
Customs [1939] N.Z.L.R. 682.
68. See e.g. Secretary for Law v. Tenalom [1965-1966]
P. & N.G.R. 414, at 427, where Ollerenshaw J. claims
to have found no general authoritative recognition or
adoption of the delegatus non potest maxim outside
New Zealand ..
See e.g. McKay v. Adams [1926] N.Z.L.R. 578.
 257.
will there be provided information for the citizen on the

extent of the legislation. Thus, in an early New Zealand

case, a regulation was held uncertain in its requirement that

dairy farmers should keep their milking sheds lighted,

ventilated and cleaned to the satisfaction of the local

Inspector of Milk and Dairies, since no indication was

provided of what standards would satisfy the Inspector.7°

The issue of delegation was apparently not discussed.

The legislation that was introduced early this century,

and whose history has already been discussed, 71 was effective

in placing considerable restrictions upon the extent to

which the courts could review subordinate legislation of

this type.

Section 390~b) of the Municipal Corporations Act 1954

now authorises wide reservations of power by bylaw .to the

Council itself, while Section 390(a) authorises the

reservation of somewhat narrower powers to 'the Council, or

any officer thereof, or other person•. 72 Moreover section 13

Bylaws Act 1910 authorises wide powers of reservation of

power in bylaws to the Council, its officer or servant or

any other person, but adds a proviso excluding protection

where the discretion left is so great as to be uhreasonable.

70. Riddiford v. Collier (Ho.2) (1896) 15 N.Z.L.R. 344.

71. See pp.l72-173 supra.
72. And see s.405 Counties Act 1956.
 258.
The two sections have received occasional consideration

by the courts. In Munt Cottrell & Co. v. Doyle73 it was

argued that a bylaw was bad for vagueness and uncertainty

in its reservation of power. In delivering the judgement of

the Supreme Court, 74 Cooper J. considered that without the

protection of the new section the bylaw would have been

defective. He stated:

These powers are very wide, and may, if not fairly

administered, result in hardship to particular
persons. They give to Municipal Councils a power
of enacting by resolution matters affecting the
public which previously could only have been regulated
by bylaws duly made with the publicity and safeguards
required under the former Act; but the Legislature
has thought it desirable to clothe Municipal Councils
w~th this additional authority, and it is our duty
to construe the statute according to its true intent
and meaning.75

The effect of the two sections on the common law rules

relating to delegation has been considered elsewhere 76 but

it appears that their effect on the certainty test in this

context has been rather more significant. They have

operated to prevent the courts from making the inference

in relation to grants of legislative power that Parliament

73. (1904~ 24 N.Z.L.R. 417.

74. Stout C.J., Cooper and Chapman J.J.
75. Supra, at 425.
76. By P. E. Kilbride, 'Regulation, Prohibition and
Subdelegation' (1965) 1 Otago L.R. 97, at 101; and
D. E. Paterson, Introduction to Administrative Law
in New Zealand (1967) 28.
 259.
still intended certainty to govern its exercise in this

manner. The question has now become not one of certainty at

all but of whether such legislation is authorised either by

the particular grant of power in question - for example, if

a bylaw purports to impose a prohibition coupled with a

dispensing power under an authorisation to regulate?? - or

by the above sections of the Municipal Corporations, Counties

and Bylaws Ac~ 78

It should be noted, however, that the sections protect

only bylaws, and not orders, special orders, r~solutions or

notices. But on no occasion does any such instrument appear

to have ·been rev-iewed by the Supreme Court for uncertainty

arising from the delegation or reservation or power.

Mention should be made too of section 2(2) Statutes

Amendment Act 1945, whose history and effect were considered

by the Court of Appeal in Hawke's Bay Raw Milk Producers

Co-operative Co. Ltd v. N.Z. Milk Board. 79 That section

provides:

77. See e.g. Hazeldon v. MeAra [1948] N.Z.L.R. 1087;

Chandler v. Hawkes Bay County [1961] N.Z.L.R. 746;
Wilton v. Mt Roskill Borough [1964] N.Z.L.R. 957.
78. See e.g. Munt Cottrell and Co. Ltd v. Doy§j (1904) 24
N.Z.L.R. 417; Meredith v. Whitehead [191 N.Z.L.R.
1041; Bremner v. Ruddenklan [1919] N.Z.L.R. 444;
Stanley v. Scott [1935] N.Z.L.R. s.l5; Trillo v.
Christchurch City [1935] N.Z.L.R. 64; Hanna v. Auckland
~ (1945] N.Z.L.R. 622.
79. [1961] N.Z.L.R. 218, at 224-226 per Cleary J. delivering
judgement of the Court (Gresson P., Cleary & McGregor J.J.).
 260.
No regulation shall be deemed to be invalid on
the ground that it delegates to or confers on the
Governor-General or on any Minister of the Crown
or on any other person or body any discretionary
authority.

It is not possible in this work to consider the

possible effects of the subsection on the common law rules

relating to delegation. 80 It does however,·appear to

prevent objections of uncertainty that might arise from

the reservation of discretionary power, from being raised

against statutory regulations.

The courts of this country appear no longer to regard

uncertainty per se as going to validity in cases of

resep.vatioh or delegation of discretionary power, although

it may possibly still go to the issue of whether a particular

discretion is, under section 13(2) Bylaws Act 1910, so

81
great as to be unreasonable.

In some other jurisdictions, however, it is possible

that there has been no similar legislative intervention.

The ~eports reveal the occasional and isolated instance of

certainty having been accepted as a factor ofv.alidity in

82
this context.

80. The reader is referred to the works mentioned in footnote

76 sutra, and also to C. C. Aikman, 'Subdelegation of the
Legis ative Power' (1960) 3 V.U.W.L.R. 69, at 99-105.
81. See e.g. Hanna v. Auckland City [1945] N.Z.L.R. 622, at 631.
82. See e.g. in Victoria: Miller v. City of Brighton [1928]
V.L.R. 375; in New South Wales: Stephen v. Naylor (1934)
35 S.R.(N.S.W.) 71, (but reversed by Privy Council on
appeal) (1937) 37 S.R.(N.S.W.) 127; In England; Williams
v. Weston-Super-Mare U.D.C. No.1 (1907) 96 L.T. 537;
Leyton U.D.C. v. Chew [1907] 2 K.B. 283; and in Canada:
Re Surrey Zoning Bylaw 1954, No.1291; British Columbia
 261.
(f) Vagueness

It is seldom that mere vagueness will deter the courts

from construing provision in contracts trusts and wills. Again,

however vague the provision may be, the courts approach its

construction with the purpose of sistilling from it what

meaning is possible, determined to fall back on invalidity

only in the case of unintelligibility.

In public law, there is evidence again of confusion

between adopting that approach, and in recognising that

the certainty test may provide an alternative to refined

analysis. What tends to determine whether or not vagueness

is fatal to the validity of a provision in a public law

instrument is the weight placed by the judge upon the

various factors outlined earlier in this chapter. By and

large, however, the certainty test has meant that vagueness

that would in a contract or a will be construed by the court,

may be fatal to a bylaw.

The provisions that the courts have demonstrated least

willingness to construe in public law instruments are those

that cohtain high order abstractions. They may for example

call for a value judgement on the part of those bound to

comply. A number of Canadian cases relating to 'early

closing' bylaws afford examples of this. In one case,

82. Cont.
Electric Co. Ltd v. District of Surrey (1956) 1 D.L.R.
(2d) 71A at 720, 724; Re Martin and Fort Garry (1957)
19 D.L.R. (2d) 578, at 583.
 262.
8
Re Bunce and Town of Cobourg 3 such a bylaw provided that

A shop whic~ specializes in the sale by retail of

small manufactured articles of small value in
personal or household adornment •••

might remain open after normal closing times. In addition

to its finding that the bylaw was discriminatory, the Ontario

Court of Appeal found the provision uncertain, asking

How small is 'small' as that word qualifies

both the size of the article and its value?84

Similarly, in City of Dartmou~h v. S.S. Kresge Co. Ltd 85

an d Mar~'1 yn I nves t men t s Ltd v. Rura1Mun~c~pa

. . l't · 'b~·
~ y o fA ss~n~ ~~~
86

a bylaw that excluded shops whose 'principal business carried

on' was one of eight businesses specified, and a bylaw that

required shops to remain closed until 'normal morning hours

of opening' respectively were held too uncertain to be valid.

Another Canadian example is afforded by Re Surrey Zoning

Bylaw 1954 No.1291 87 where a bylaw authorised the establish•

ment of utility tra~smission lines, so long as they would not

'adversely affect the orderly development' of the area through

which they passed. Again, vagueness was fatal to its validityo

Vagueness has but occasionally served to invalidate

83. (1963) 39 D.L.R. (2d) 513.

84. Ibid., 516. But cf. comments of Schroeder J.A. in
~. W. Woolworth Co. Ltd and Cit of Hamilton (1965)
D.L.R. 2d 02, at 0 •
85. (1966) 58 D.L.R. (2d) 229, at 234 per Ilsley J.
(Novia Scotia C.A.).
86. (1965) 51 D.L.R. (2d) 711. (Manitoba C.A.).
87. (1956) 1 D.L.R. (2d) 717 (Br. Co. Sup. Ct.);
affirmed on appeal; 5 D.L.R. (2d) 399.
bylaws in this country however. It was cited as a ground

of invalidity by Sir Mi-chael Myers C.J. in Page v. Harvey 88

(along with unreasonableness and repugnancy) in respect of

a bylaw that prohibited the presence of liquor in any public

hall 'at or during any function therein of which dancing

forms part'. Similarly McGregor J. in Martin v. Smith8 9

took the view that a bylaw that rendered it an offence to

'cause suffer or permit any damage or injury' to 'any

prepared or cultivated grass plot' might be bad for vagueness.

Again, however, the bylaw was found in addition to be

repugnant and unreasonable.

By and large, the New Zealand courts have attempted to

construe vague bylaws, 90 and there appears only one occasion

on which vagueness along has been held to induce invalidity.

In Masterton Co-operative Dairy Co. Ltd v. Wairarapa Milk

Board 91 the New Zealand Court of Appeal considered a bylaw

of the defendant Board that required a reapplication for a

milk licence from companies that experienced a change in

88. [1939] N.Z.L.R. 325. The bylaw still, however, appears

in the Dunedin City Bylaws. ·
89. [1933] N.Z.L.R. 636, at 642-643.
90. See e.g. Duncan v. Lawless (1901) 3 G.L.R. 472; uayor
etc. of Auckland v. Davidson (1905) 25 N.Z.L.R. 97;
McCormick v. McCo~rie [1933] N.Z.L.R. s.176 Courtville
v. Paull [1950] N.Z.L.R. 18; Williamson v. Christchurch
City [1955] N.Z.L.R. 988; BeJry v. Palmerston North
MetroJolitan Milk Board [1959 N.Z.L.R. 240.
91. [1964 N.Z.L.R. 771.
 264.
their 'effective management and control'. Hutchison J.

in the Supreme Court was prepared to construe the bylaw,

and held it sufficiently certain. 92 But the Court of Appeal

was unanimous in holding the bylaw too vague, in that i~

failed to state the criteria by which the change might be

measured. 93 McCarthy J. stated;

••• there are obviously a great number of companies

where it is difficult, if not impossible, to say
where effective management and control of the
business lies by virtue of the shareholding, except
perhaps to observe, in a generalJway, that it
must lie ultimately in all the shareholders
called together in a body.94

His Honour considered the difficulties inherent in applying

this bylaw with certainty to many companies to be too

substantial for the bylaw to be valid.

The Australian courts too have preferred generally to

adopt the course of construing allegedly vague provisions

so as to render them certain. Thus phrases such as

'substantially identica1• 95 and 'business of a class

normally carried on in a shop• 96 have been held on contextual

considerations to be sufficiently certain. But where the

context fails to provide adequate guidance, the courts there~

92. Ibid., 774.

93· 'I'b'id.,
at 778 per North P., 780-781 per Turner J.,
~per McCarthy J.
94. Ibid., 783.
95. FraSer Henlein's Pty. Ltd'v. Cody (1945) 70 C.L.R.
100, at 114.
96. Gill v. City of Pfahan [1926] V.L.R. 410.
too, have been prepared to hold subordinate legislation

uncertain and void. Thus a requirement to let a dwelling

house at 'a reasonable rental' has been held void, 97 while on

the other hand, an exemption from a prohibition imposed by

a regulation arising where a defendant supplied 'a reasonable

quantity of the declared goods' or made 'reasonable provision

for private consumption' has been held valid, the concept of

reasonableness apparently acquiring sufficient flavour from

its context. 98

But in adopting the narrow view of ultra vires, the

Australian courts have insisted that in the exercise of such

powers as to 'fix', 'specify' or 'define' prices or other

matters, resort cannot be had to purely subjective criteria. 99

A vague provision purportedly .promulgated under such a

power will thus be open to direct challenge in respect of

its vagueness. 100

It will be recalled that one factor that the courts

have on occasion taken into account in determining the

extent to which the validity of subordinate legislation

should be governed by considerations of certainty has been

97. Ex parte Thompson; Re Clarke (1945) 45 S.R.(N.S.W.)

193, at 198.
98. Ex parte Callinan; Re Russell (1945) 45 S.R.(N.S.W.)
358, at 362. Another import~nt factor there however, was
that the same Regulation had previously been the subjec~
of deliberation in the High Court, where no objection had
been raised to its validitye
99. See e.g. King Gee Clothing Pty. Co. Ltd v. Commonwealth
(1945) 71 C.L.R. 184; Cann's Pty. Ltd v. The Commonwealth
(1946) 71 C.L.R. 210e
100. See e.g. Trief v. Charles Parsons & Co. Ltd (1946) 46 S.R.
(N.S.W.) 265; Brudenell v. Nestle Co. (Aust.) Ltd [1971]
V.R. 225.
 266.

the practicability of insisting upon greater certainty.

Where the subject matter of a provision is incapable of

close definition the courts have accordingly tended to

allow a greater degree of vagueness. In particular has

this been so when questions of aesthetics, as might arise

.
un d er t own p 1 ann~ng . 1 a t"~on, are ~nvo
1 eg~s . 1 ve d • 101

5. Conclusions

The most striking feature of the certainty test in

public law is the wide variation in its application. It

is not surprising perhaps, given the subjective nature of

any assessment of degrees of uncertainty, that different

judges in the one case should hold quite different views

of its effect in that case. But it is another matter when

different judges adopt quite different basic approaches to

the problem. It is unfortunate that the courts of this

country have not yet'found it necessary to consider which

approach ought to be consistently adopted, and what other

cohsiderations ought to be balanced.

To this writer the present situation in public law

r•presents a clumsy compromise between the general private

law approach of regarding invalidity as a measure of the last

resort, and the original rigorous public law test propounded

101. See e.g. United Billposting Co. Ltd v. Somerset County

Council (1926) 95 L.J.K.B. B99; Robert Baird Ltd v.
City of Glasgow tl936] A.C. 32, at 44; Ideal Laundry
Ltd v. Petone Borough [1957] N.Z.L.R. 1038; Pearse v.
City of South Perth [1968] W.A.R. 130.
by Grant and Lumley.

The types of uncertainty that cause most difficulty in

public law are vagueness and ambiguity. Uncertainty arising

from delegation and reservation, and from so-called 'meaning-

less' provisions seems better regarded in terms of power,

rather than under the certainty test. One may perhaps be

forgiven too for the assumption that inaccuracies and

omissions, as a result of other controls over the exercise

of subordinate legislative powers, do not represent a serious

problem.

Vagueness and ambiguity, however, are inherent in spoken

and written language. Although careful drafting may serve

to minimise the risk of confusion, it is inevitable that in

any legislative provision both vagueness and ambiguity will

be present to some degree. In the context of a statute

there is no practical choice but to construe the defective

provision. Whether or not the alternative course available

in the case of some subordinate leg,islation is lo,gical, and

capable of sufficiently objective application is a difficult

question to answer. An attempt is made in the·following

chapter.
PART FOUR

CONCLUSIONS
 CHAPTER 10

CONCLUSIONS

1. Certainty and Judicial Attitudes

It is clear that in private law at least, the degree
of certainty that the courts will require in any given
provisi~m is dependent largely upon preconceived attitudes
towards and policies in respect of the 'type of provision
concerned. So far as contract is concerned, judicial policy
is to maintain freedom of contract, and not to place unneces-
sary restrictions upon the manner in which persons desiring
to bind one another may do so. This involves that the court
must strive to uphold contracts notwithstanding uncertainties
arising from their wording, and that as a result uncertainty
will seldom have the result of invalidating concluded
contracts.
In the case of wills, the inability of a testator to
make a fresh document in the event of his first oeing-held
invalid, has the result of causing the courts to strive to
an even greater extent, should that be possible, to uphold
testamentary instruments. But there are a number of
formal restrictions imposed on persons desiring to make

wills by statute. Uncertainty may therefore be relevant

to whether the will making power conferred by the Wills Act
183? has been properly exercised. Uncertainty in the
objects of the testator's bounty may mean that the testamentary
power has been delegated to too great an extent. Similar
difficulties arise in the case of trusts, where it was
thought for some years that the principl·e that trusts should
be capable of execution by the court in the event of trustees
defaulting, and that the court could execute it only by
ordering equal distribution demanded tha.t every member of a
class of objects intended te be benefitt.ed under a trust
power sheuld 'be readily ascertainable. But with the real-
isatio:m. ef the u:asound basis of this reason.ing, the degree
of aaetainty required was altered, so that now a significantly
less degree of certainty will not necessarily spell invalidity.
It is in the context of the rules relating to certainty
in conditions suosequent, on the one hand, and charitable
gifts on the other, however, that the dependence of the
certainty test upon judicial attitudes arising from other
factors becomes most apparent. The courts insist up~n a
high degree of certainty in conditions subsequent because of
the harsh or unconscionable way·in which they may work.
Their insistence is tempered also by the fact that many such
clauses are distasteful, operating to impose strict and
often unreasonable control over the behaviour of beneficiaries,
whose diverg~nce from the narrow path prescribed for them is
liable to result in the forfeiture of the gift. The develop-
ment of this attitude b.as been assisted by the fact that the
failure of a condition subsequent, unlike that of a condition
precedent, does :riot involve the failure of the gift. It may
be argued that this effect is likely to be at least closer to
 270.

the settl0r 1 s or testator's intention than the effect of

invalidity of any other part of his instrument.
It is the longstanding benevolent judi.cial attitude
towards charities, too, which dictates the requirements of
certainty in that context. A gift for charity will never
fail for uncertainty, for the courts will always ensure that
charity will benefit, even although it may be necessary for
the Attorney-General representing the Crown as parens patriae
to intervene and propound a scheme for the carrying out of
the trus:t;.
In all of the instances discussed above, judicial
attitudes towards specific types of provisions are clear,
and in some cases have remained unaltered for centuries.
It is submitted that the primary reason for the divergence
in application of the certainty test to subordinate
legislation is the lack of any such clear and longstanding
attitudes. In the case of bylaws for example, judicial
attitudes are clearly ambiguous. On the one hand there is
the view that the courts, being vested with inherent powers
over the legislation of local bodies, have a duty to ensure
that those bodies do not stray outside the powers conferred

upon them. The role of the courts is seen as one of

protecting the private rights of citizens by ensuring that
abuse er excess of power will lead,, inevitably to invalidity.
But on the other hand there is the benevolent view - that ~e

role of the court is to uphold bylaws unless it is quite

impossible to do so. Under this view the certainty test
 2'71.
becomes equated with that applied ~n the case of contract~ -
that only where a provision is incapable of being attributed
a sensible meaning will it fail. In all other cases the
requirement is that the language be so construed as to render
it certain, and within pow~r.

The conflict between those two approaches to the question

of the validity of bylaws generally has never been satisfactorily
resolved in this country. Its resolution in England has been
in favour of the latter approach, so that the courts there are
now consistent in requiring that only unreasonableness or
uncertainty of an overwhelming degree will render a bylaw out-
side power. A similar result pertains in Australia.
Only when a consistent approach to bylaw validity generally
is adopted in this country, it is submitted, is it likely that
the certainty test will lose its present aura of being a sueject-
ive test of validity, and its application to any bylaw cease
to be at the whim of the individual judge.

2. Some Anomalies of the Test in Public Law

If certainty as a test of validity is to retain any credib-
ility, it is clear that rationalisation of its mode and extent
of operation is necessary. It is undeniable that there is a
number of anomal~es that accompany the test as it has been
applied in public law. There is for example the fact that it
is a test which is applicable to bylaws yet inapplicable to
statutes. Ought the effect of uncertain language in the two types
of legislation to be quite different? There are a number of
 272.

possible distinctions between the two which might be seen

as justifying the different effects. Not the least of these

derives from the skill of the Parliamentary draftsman which

is seldom capable of being equalled with consistency by local
body legal advisers.

But the different effects of uncertainty in the two

types of legislation lead inevitably to anomolies as was

demonstrated clearly in Fawcett Properties Ltd v. Buckingham

County Council. 1 In that case, it may be recalled, the
wording of a planning condi~ion that was alleged to be

uncertain had been adopted verbatim by the local authority

from a statute. The basic issue was whether the falidity of
the condition should be governed by the principles relating

to bylaws, or the principles relating to statutes. The

diverg~nce in the approaches adopted in both the Court of

Appeal and the House of Lords demonstrates one anomaly of the

test.
A similar instance might be found in the case where a
contract incorporates into it the terms of a bylaw. The
same provision would then be subject to different tests of

validity depending upon whether it was tested in the context

of the contract, or of the bylaw. If 'ound invalid as a

bylaw, it is likely that it would continue to operate as a

1. [1961] A.C. 636 (H.L.); [1959] Ch. 543 (C.A.).

 273.
term of the contract, unless the.uncertainty were so great

as to induce invalidity in that context as we11. 2

In its original form the certainty test required of

bylaws that they contain.adequate information as to the

duties of those bound by them, and in such a form as might

be readily intelligible to those people. It might be

argued that such a requirement is anomalous today. It could

be said, for example, that the requirement springs from a
nineteenth century legal philosophy that saw law as a

series of commands backed by sanctions, so that compliance

with the law required a knowledge of its provisions in order
that behaviour might be moulded so as to avoid penalty. As

H.L.A. Hart so clearly demonstrated, however, this is not

a viable concept of law.3 Rarely are individuals aware of

the precise wording and details of laws affecting them. Is

there then any merit in requiring that that wording should
be in a form readily understandable to the layman~

It is respectfully submitted that there is. Particularly

is this so where the bylaw is concerned with technical
questions, and strict compliance with prescribed standards

is nece.ssary to avoid penalty. The bylaws relating to drainage

2. See e.g. Lindsay v. Union Steam Ship Co. of New Zealand Ltd
[1960] N.Z.L.R. 486, at 500-502 per F. B. Adams J. In
that case a bylaw void for unreasonableness was held
nontheless to bind parties who had incorporated it into
their contract.
3. Concept of Law, (1961) 18-25, 50-76.
 274.
a:nd sewage, and building bylaws, fa.r example, must serve

as specific guides to plumbers, engineers, architects and

builders planning construction work•

4 It is in this context

a salutary principle that vagueness and ambiguity should be

avoided wherever possible, despite the fact that the require-

ment of obtaining a building permit may serve as the buffer

on some occasions between noncompliance and the imposition

of sancti0ns.

But whether the application by the courts of a certainty

test to subordinate legislation is the best solution in all

the circumstances is a different matter.

3. The Future of the Test

It is proposed to study this question from two different

points of view. First, there is the likely future of the

test should its development continue in the hands of the

courts. Se_condly, there is the question of legislative

intervention and the possible effect this might have.

(a) Judicial development

It was the unsound history of-the test, together with

the subjectivity that tended to rule its application that led

the Australian High Court to reject iO as an independent test

of validity of subordinate legislation in 1945. Its future

•· Strenuous efforts are now being made by the New Zealand

Standards Association to persuade territorial local
authorities to adopt as a bylaw the Standard Building
Code (N.z.s. 1900) promulgated by_that body under the
Standards Act 1965.
 275.
in this country may be dependent upon the extent to which

these factors are seen in coming years as reflecting

adversely upon its status. It must be ne~essary in the

near future for the Supreme Court to give some thought to

t~e relationship between the tests of certainty and reasonable-

ness and repugnancy, and the ultra vires doctrine, and this

will bear upon the future of the certainty test. The

inconsistencies and anomalies noted in the application of

the test in this country may serve as a justification for

the courts to adopt the Australian approach. This. course,

it is submitted, is open in the ease of statutory instruments.

But for such an approach to be adopted in respect of all

subordinate legislation would require a re-evaluation and

probably the overruling of a number of Supreme Court, and

even Court of Appeal decisions, including that of 1964 in

Masterton Co-operative Dairy Co. Ltd v. Wairarapa Milk Board. 5

The presence of that decision, it is submitted, renders it

unlikely that so radical a course would be adopted.

If the test is to remain, however, it will be necessary

to give some consideration to the degree of uncertainty that

should operate to invalidate bylaws. In private law, as

has been seen, the question of degree varies considerably

depending upon the type of provision involved. Thus, the

courts might feel able in future bylaw cases, to be guided

by the cases relating to defeasance clauses in trusts and

5. [1964] N.Z.L.R. 771.

 276.
wills, or those relating to the interpretation of contracts.
It is submitted, however, that nei!her cousse is lik~ly to
be fully acceptable. A number of judges have already
6
rejected the defeasance clause analogy, whi&e their
acceptance of the latter course would involve the denial
of the existence of a certainty test.
Given the unsatisfactory and subjective nature of the
application and the test at present, it appears not unlikely
that its operation in the~/bylaw context will in future be
tempered to a greater extent by the presence of the benevolence
test. While the New Zealand courts have maintained for some
time that only in limited situations should the validity
bylaws be measured by the yardshick of benevolence, it is
doubtful if that attitude can remain uninfluenced by recent
trends in England. 7 There are signs already of the acceptance
of the 'Wednesbury umbrella' approach by New Zealand courts. 8
If this process is continued, there can be little doubt that
the onus upon any person seeking to upset a bylaw for
uncertainty will become increasingly heavy.

6. See e.g. Fawcett Pro~erties Ltd v. Buckingham County

Council [1961] A.C. 36, at 662 per Lord Cohen, 677~
678 per Lord Denning, 692~693 per Lord Jenkins.
7- As evidenced by Fawcett Properties case (surra) and
Mixnam's Properties Ltd v. Chertsey U.D.C. 1964]
1 Q.B. 214; Hall & Co. Ltd v. Shoreham-by-Sea U.D.C.
[1964] 1 W.L.R. 240; Laby v. Newcastle-under-Lynne
Corporation [1964] 2 Q.B. 64.
8. See e.g. La)g( v. Town and Countr Plannin A eal
Board· (No.2 1967 N.Z.L.R. 9 at 902 per Richmond J.
 277.
The extension of such a test to statutory instruments
was expressly left open by Hardie Boys J. in Strawbridge v.
Simeon, 9 so that a clear and decisive step would be needed
to establish the test here.
10 But should the certainty

test~ application to bylaws become restricted in the manner

described above, it is, it is submitted, unlikely to receive
ready accpetance as a yardstick of validity of statutory
instruments, except to the extent of its application by the
Australian courts.
(b) Legislative intervention
It will be recalled that statutory abolition of the
certainty te&t was proposed in this country in 1910, but
that the proposal was later dropped. It ·is submitted that
legislation bearing directly on the certainty test is not
warranted at this stage. Its confused and unsatisfactory
condition renders i~ a more likely object of judicial reform,
than might be the case had its application come to be
determined according to a set of hard and fast rules. As
Lord Wilberforce observed recently, the common law thrives
on ambiguity if sometimes uneonsciously, 11 enabling its
development to accord with future social needs.

9. [1959] N.Z.L.R. 405.

10. This is -assuming that the decision of Wild C.J. in
Lee v. Marine De~artment, Supreme Court, Hamilton,
1970 (unreported is accorded a narrow interpretation
or overlooked in later cases.
llo In Esso Petroleum Co. Ltd v. Harper's Garage (Stm!port)
~ [1968] A.C. 269, at 331.
 278.
But while direct interference with the extent of

judicial control may be undesirable, it is submitted that

strong reasons exist for closer controls of a political or

other indirect type over the wording of subordinate legis-

lation. It is conceded that from a political point of view,

closer non~judicial control over bylaws would not be easy to

achieve. The extent to which local bodies value their
antonomy and the jealousJy with which they strive to protect
is well enough known.
The Bylaws Act 1910 provides machinery whereby bylaw
making authorities are enabled to have bylaws confirmed by

the Minister of Internal Affairs. 12 The limitation that such

confirmation shall have.no bearing upon issues of validity

arising otherwise than from irregularities in adoption

procedure, 1 3 and the optional nature of the provisions,

however, have meant that local authorities have only

occasionally taken advantage of it.

A possible answer to the present problem would be to.

extend the protection extendei by the Minister's certificate

in such a manner as to exclude allattacks, including that

based on certainty, upon the validity of bylaws, while

retaining the optional ma~hinery. But it is highly

un.desirable that judicial review ought to be excluded in

12. Sections 3, 4, 5, 6 and 7.

13. See s.8.
such a manner, and it is clear that the courts would

strive to avoid the effect of such privative legislation. 14

The solution which suggests itself as most desirable

to this writer is the imposition of a requirement that bylaws

first receive the approval of a competent and skilled

drafting body, whose function it would be to ensure that the

standard of drafting was in line with that of statutory and

direct su~ordinate leg~slation. The Parliamentary Law

Drafting Office would appear to be an ideal body for this

purpose. While the political implications of such a move

may be thought to be strictly speaking outside the ambit of

this work, two practical advantages.,.call for brief comment.

The first.is the welcome possibility of the expenditure of

less public money in the defence of bylaws in the courts.

The second is the prospect of achieving a measure of

uniformity in local body legislation that is far from being

apparent today. It is noteworthy that all bylaws of English

local authorities require Ministerial approval, a require-

ment that is less frequently imposed by the legislature in

this country. One writer has observed that such approval

is in England rarely extended to bylaws that fail to follow

the model bylaws prepared by the supervising government

department. 1 5

14. It would be most difficult to effect a clause excluding

review on questions of vires:see e.g. Anisminic v. Foreign
Compensati.on Commission [1969] 2 A.C. 147.
15. K. J. Eddey, An Outline of Local Government Law (1969) 21.
 280.

Given that the original rationa~behind the test of

certainty was that bylaws should be clear and free from·

ambiguity, affording complete information to those bound

by them, it is submitted that such a result may well be more

effectively achieved through the method outlined above, than

through the occasional and unpredictable attack in the courts.

This is not to imply, however, that the judicial test should

be excluded. It was the presence of practical controls over

bylaws in England~ led Lord Russell of Killowen C.J. in

Kruse v. Johnson
16 to propose the benevolent approach to

bylaw validity in that country, and the absence of similar

controls in New Zealand 1MEdt led the Supreme Court here to

limit the extent of the benevolent test.

In the event of provision being made for closer checking

of local subordinate legislation by a central body, it is

likely that objections of uncertainty would rapidly come to

be regarded as subject to the full rigour of the benevolent

test in this country as well.

There is clearly a trend today towards more liberal

interpretation of private law instruments, and none of the

instances in that sphere where high degrees of certainty are

insisted upon has escaped criticism in recent years. Possible

hardships that might arise from a tren·d towards the more

liberal interpretation of bylaws and the possible decline of

16. [1898] 2 Q.B. 91, aj 98-lOOo

 281.

the certainty test, might, it is submitted, be beneficially

resolved through the strengthening of non-judicial controls

over their content.