It's the love of grammar-nerds and the subject of contempt
for Vampire Weekend, however the Oxford comma is also the subject
of a recent legal decision. The humble Oxford comma (or serial
comma) is used to denote whether the next item in a series of items
is a subset of the previous item or a continuation of that series.
The most famous example cited is the following fictitious book
dedication: To my parents, Ayn Rand and God. Without the
use of the Oxford comma, the sentence suggests that the book is
dedicated to the author's parents happen to be Ayn Rand and
God. Of course, in some situations including the Oxford comma can
create its own ambiguity, such as if the above example were
slightly modified to: To my mother, Ayn Rand and God.
A recent appeal to the First Circuit Court in the matter of
O'Connor v Oakhurst Dairy has brought the Oxford comma back
in to the spotlight. The case was in regards to whether a Dairy
business was required to pay overtime to its delivery drivers.
Maine's employment laws excluded the following activities from
The canning, processing, preserving, freezing, drying,
marketing, storing, packing for shipment or distribution
Meat and fish products; and
Oakhurst Dairy argued that the inclusion of "distribution
of..." meant that the milk delivery was an excluded activity.
The delivery drivers instead argued that the excluded activity was
specifically "packing for shipment or
distribution" and that distribution alone was a separate
activity. Barron J noted that had the legislation used an Oxford
comma after the word 'shipment' the intention would be
unambiguous and the Dairy's interpretation clearly the correct.
However without it there is uncertainty and in such cases the laws
are to be "construed liberally in order to accomplish their
remedial purpose" which, in this case meant an interpretation
favouring the drivers. At the beginning of his reasoning, Circuit
judge David Barron quipped "For want of a comma, we have this
Courts in Australia have proven less keen to consider the merits
of the Oxford comma. The definition of "trauma to the cervical
spine" in a Statement of Principles relating to Veteran
compensation originally made reference to "acute symptoms
and signs of pain, tenderness and altered mobility or range of
movement of the joint". In Harris v Repatriation Commission, the Federal Court
considered whether the lack of an Oxford Comma indicated that the
reference altered mobility needed to be an "acute
symptom". The grammatical construction was largely ignored in
favour of the interpretation in light of the context of the entire
document. Whitlam, Sackville and Mansfield JJ stated " No
doubt some might have inserted a so-called "Oxford" comma
after the word "tenderness", but its absence is
immaterial." The missing comma was later added to the offending
document to put all doubt to rest.
MZYXS v Minister for Immigration arguments involving commas
again reared their head as to the requirements when assessing
whether there are substantial grounds for believing that there is a
real risk of significant harm as drafted in the Migration Act 1958. In that case Riethmuller FM simply
referred to the 3rd edition of Fowler's Modern
English Usage noting that when it comes to using commas
"wide variation can be seen in the work of many
contemporary writers and, even more so, in that of earlier
centuries'. Essentially, one must look at more than how
commas are used to determine the writer's meaning.
Often the easiest way to avoid ambiguity when it comes to legal
drafting is to rely on nested lists to make one's intention
clear, where it can be plainly put that a group of items
and this item;
which includes this item; and
also this item;
but not where this applies; and
not where this applies.
and this item; and
also this one.
Of course, if you find yourself using commas and unsure what to
Australian Guide to Legal Citation suggests "...commas
should be used to separate items in a list of more than two
(including the last two items where necessary to avoid
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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In a recent NSW decision, the issue of preliminary discovery was clarified when the judge found in favour of the claim.
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