fundamentals of law (bl502) week 2 part 1 court judgements
TRANSCRIPT
Fundamentals of Law (BL502)
Week 2
Part 1
Court Judgements
Fundamentals of Law (BL502)
Stare Decisis
• Where a court has decided a case in a particular way, then subsequent cases involving similar facts should be decided in the same way
Fundamentals of Law (BL502)
Precedent Two types
Binding Persuasive
Binding Must be followed and applied
Persuasive Not binding. Considered by the Court and may be followed
Fundamentals of Law (BL502)
Precedent (Cont.) Persuasiveness depends on
quality of decision jurisdiction of the court that gave the
decision
Fundamentals of Law (BL502)
Rules of Precedent Lower courts must follow decisions of higher courts in
the same hierarchy A judge does not have to follow decisions of Judges
at the same level. However, will be persuasive. Judge does not have to follow decisions of higher
court in a different hierarchy although they will be persuasive
Highest court in hierarchy can overrule its previous decisions
Fundamentals of Law (BL502)
The Court’s Decision Two parts
Ratio Decidendi Obiter Dictum (Dicta)
Only Ratio Decidendi can be binding Obiter Dicta may be persuasive
Fundamentals of Law (BL502)
The Court’s Decision (Cont.) Ratio Decidendi
Consists of those parts of the decision that were necessary to decide that particular case
Obiter Dictum Statements made by Judge that are not
necessary to decide the case Remarks in passing
Fundamentals of Law (BL502)
Applying Ratio Decidendi Can be difficult to discern Commentators often dispute what is
decisions Ration Decidendi Can be widened or narrowed by later
decisions Facts are rarely exactly the same
Fundamentals of Law (BL502)
Example - Donoghue v Stevenson A drink manufacturer has a duty to persons who might drink
their product to take care that the bottle does not contain dead snails
A person has a duty to act in such a way that his or her conduct does not cause harm to others.
A manufacturer of food, drinks or medicines whose products are packaged in such a way that inspection of the product is not possible, has a duty to take reasonable care that the product does not contain a defect that will cause harm to the ultimate consumer.
People must take reasonable care to avoid acts or omissions that they could reasonably foresee as likely to injure persons who have a reasonable proximity to the wrongdoer.
Fundamentals of Law (BL502)
Terminology Affirm
Lower court decision in the same case Approve
Decision in previous case Reverse
Lower court decision in the same case Overrule
Decision in previous case Applied Followed Distinguished
The present case has different circumstances to the precedent such that precedent does not apply
“Judicial Diplomacy”
Fundamentals of Law (BL502)
Citing Cases Smith v Jones (2001) 145 CLR 203, 207
Name of parties Year of publication Volume number Report name First page of judgement Page on which specific passage appears
Fundamentals of Law (BL502)
Citing Cases (cont.) Smith v Jones [1945] 2 All ER 203, 207
Name of Parties Year of Volume Volume number if more than one volume in
a year Report name Page on which specific passage appears
Fundamentals of Law (BL502)
Citing Cases (cont.) Smith v Jones (2001) HCA 203, [20]
Medium neutral citation AKA Vendor Neutral Citations Designed for online documents which do not have
pages Now used by most Australian courts Elements
Year of decision Court designator Judgement number Paragraph number
Fundamentals of Law (BL502)
Week 2
Part 2
Legislation
Fundamentals of Law (BL502)
Form and Structure Number of the Act Table of Provisions Title of Act
Short Title Long Title
Date of Assent Often identifies starting date of law Unless Act specifies otherwise, Act starts 28 days
after Assent Proclamation date ie when published in
Government Gazette
Fundamentals of Law (BL502)
Form and Structure (Cont.) Internal Division
Part Division Section Sub sections Paragraphs
Purpose or Objects clause Older Acts have a Preamble
Fundamentals of Law (BL502)
Form and Structure (Cont.) Definitions Sections Headings
Allows easy reference and research
Fundamentals of Law (BL502)
Week 2
Part 3
Statutory Interpretation
Fundamentals of Law (BL502)
Approaches to Interpretation Literal
The Court will give the words of a Statute their ordinary meaning even if it produces an absurd, unjust, inconsistent or meaningless result
Dictionary meaning - but which dictionary? Sometimes the “legal” meaning is used More popular in the past
Fundamentals of Law (BL502)
Approaches to Interpretation (Cont.) The Golden Rule
“...the grammatical and ordinary use of the words is to be adhered to, unless that would lead to some absurdity, or some repugnance or inconsistency with the rest of the [document], in which case the grammatical and ordinary sense of the words may be modified so as to avoid that absurdity and inconsistency, but no further”
Grey v Pederson (1857) 10 ER 1216 per Lord Wensleydale
Fundamentals of Law (BL502)
Approaches to Interpretation (Cont.) Purpose Approach
Tries to determine the intention of Parliament when it passed the Act.
A development of the Mischief Rule that seeks to discover the wrong that Parliament tried to correct by the statute and interpret the Act accordingly.
Fundamentals of Law (BL502)
Approaches to Interpretation (Cont.) Purpose Approach (cont.)
4 elements to the Mischief Rule: What was the law before the Act? What mischief did the prior law not provide for? What remedy did Parliament establish to
remedy that mischief? How can the Court interpret the Act in order to
correct the mischief? How do you discover the intentions of
Parliament?
Fundamentals of Law (BL502)
Acts Interpretation Acts Commonwealth & State Act Adopts the Purpose Approach (section 15AA
- Cth) Provides for common interpretation problems
e.g. calculation of time Abolishes some old statutory interpretation
rules
Fundamentals of Law (BL502)
Acts Interpretation Acts (Cont.) Allows use of Extrinsic Materials (section 15AB -
Cth) All parts of the Act Royal Commissions, Law Reform Commission etc.
reports Report of Parliamentary Committee Treaty Explanatory memoranda Speeches in Parliament Parliamentary documents Other materials
Fundamentals of Law (BL502)
Acts Interpretation Acts (Cont.) Extrinsic materials are used to
Confirm ordinary meaning of words resolve ambiguities promote purpose of Act To be used with care
Fundamentals of Law (BL502)
Principles of Interpretation Act to be read as a whole Words to be presumed to have consistent
meanings throughout Act Technical words to be given technical
meaning Certain rules give rise to presumptions
Fundamentals of Law (BL502)
Principles of Interpretation (Cont.) Ejusdem Generis
“of the same kind” Noscitur a sociis
Words can be limited by the context in which they appear
similar to ejusdem generis Expressio Unius
where something is expressly referred to, everything else is excluded
Special provisions prevail over general provision
Fundamentals of Law (BL502)
Principles of Interpretation (Cont.) Statutes that should be construed narrowly
Penal statutes Taxation Acts Acts that change common law
Fundamentals of Law (BL502)
Principles of Interpretation (Cont.) Means v’s Includes
“Means” is an exhaustive definition “includes” is not exhaustive
Mandatory v’s Discretionary Mandatory - the thing must be done Discretionary - there is a choice “may” = discretion “shall” = mandatory