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  • Writer's pictureGavin Jayapal

Understanding the phrase 'mutatis mutandis'


Image credit: https://www.ign.com/articles/2018/08/28/top-25-mighty-morphin-power-rangers-episodes



For those who grew up in the 90s, you would know the Mighty Morphin Power Rangers. They consisted of 5 teenagers (whose names I cannot, for the life of me, remember) who had the ability to morph into a gigantic robot to stave-off attacks from otherworldly creatures. They were led by a bald, disembodied holographic head.


The 90s were truly a heady time.


The MMPR have uncanny links to the law, more specifically the term 'mutatis mutandis'.


Much like their ability to morph, the law has developed the term ‘mutatis mutandis’ to enable laws and rules to morph and fit different scenarios.


Mutatis mutandis


The term ‘mutatis mutandis’ is contained within very many statutes. A simple example would be the Societies Act 1966. S. 17(1)(e) of the Act specifies that where a society has its registration cancelled, the laws relating to winding-up and bankruptcy would apply.


A source of consternation for practitioners would be the term ‘mutatis mutandis’. Many assume that it means a ‘one to one’ (in toto) application. This would be incorrect.


‘Mutatis mutandis’ translates to “with things changed that should be changed”.


When one reads the laws relating to winding-up and bankruptcy in the context of S. 17(1)(e), there must be changes made to the laws relating to winding-up and bankruptcy to fit the law and scheme of the Societies Act 1966.


Case law


There are no cases in Malaysia that define the term ‘mutatis mutandis’. An analysis of Australian case law is instructive.


In Delnorth v State Bank of New South Wales (1995) 17 ACSR 379, Cohen J stated:


There is very little law as to the extent of the meaning of the phrase “mutatis mutandis“. Jowitt's Dictionary of English Law defines the phrase as meaning with the necessary changes in place of detail. Stroud does not deal with the expression, nor is it included in the words and phrases explained in Halsbury's Laws of England.
There has been one case in Australia dealing with the use of the phrase in statutory interpretation, Gill v State Planning Authority (1979) 20 SASR 580. There, under a statute relating to the vesting of land for the purpose of a particular undertaking, it was provided that sections of another statute “shall mutatis mutandis be applied to and in relation to the vesting of the land”. It was held that the sections specified in the Act were not to be applied without qualification but were to undergo such variations of substance as were implied by the expression mutatis mutandis, which in the circumstances meant with all modification and adaptations necessary to ensure that they, jointly and severally, have effect for the purposes of the Red Cliff Land Vesting Act 1973 (SA) (at 585). This case dealt with the interpretation of a statute and what was contemplated by the legislature. There seems to be no case in Australia which deals with the phrase when it is used in contracts.

Likewise in National Equity Financial Services v The Home Loans Group [2006] NSWSC 310, Einstein J stated as follows:

[55] His Honour also referred to Gill v State Planning Authority (1979) 20 SASR 580 where a statute relating to the vesting of land for the purpose of a particular undertaking had provided that sections of another statute "shall mutatis mutandis be applied to and in relation to the vesting of the land". It was held that the sections specified in the Act were not to be applied without qualification but were to undergo such variations of substance as were implied by the expression mutatis mutandis, which in the circumstances, meant with such modifications and adaptations necessary to ensure that they, jointly and severally, have effect for the purposes of the relevant Act.

Relatively recently, Robb J in Jaeger v Bowden (No. 2) [2016] NSWSC 897 quoted Cohen J from Delnorth and stated:


[522] This approach is consistent with the definition of the expression “mutatis mutandis” in Butterworths Australian Legal Dictionary:
When the appropriate changes have been made. Used when applying a principle or rule which needs modification to fit a new set of facts.

Considering the fine details


Premised upon the above, one cannot assume that just because an Act utilises the term ‘mutatis mutandis’, that a separate law or rule shall apply absolutely.


To further the Societies Act example, there is a stark difference between a society, a company and a bankrupt.


The law mandates that when a society has its registration cancelled, the society ceases to exist in law. There is no entity left to govern.


This is separate and distinct from a company and/or a bankrupt. Once a winding-up order is made, the company still exists in law (with the liquidator taking charge of its affairs). Likewise, a bankruptcy order does not remove the existence of a bankrupt.


If one was to apply the laws relating to winding-up and/or bankruptcy in toto, one would fall into error. This would be due to the fact that changes would need to be made to accommodate a de-registered society (which in law, no longer exists).


To blow my own trumpet a little, I dealt with a similar matter in Datuk Seri Maglin Dennis D’Cruz & 12 ors v Tan Sri M Kayveas & 9 ors. [2020] 1 LNS 1053. Ong Chee Kwan J very carefully distinguished between the ‘hats’ applicable when a society had its registration cancelled and noted that when a society has its registration cancelled, the personal rights of former members would crystallise (paragraph 52).


This learned Judge's decision was affirmed by the Court of Appeal (Civil Appeals No.: W-02(IM)NCC-125-01/2020, W-02(IM)NCC-181-01/2020 and W-02(IM)NCC-183-01/2020).


As with most things in life, go, go, Power Rangers.


GAVIN JAYAPAL

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