fundamentals of law (bl502) week 2 part 1 court judgements

Fundamentals of Law (BL502)

Week 2

Part 1

Court Judgements


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


Precedent Two types

Binding Persuasive

Binding Must be followed and applied

Persuasive Not binding. Considered by the Court and may be followed


Precedent (Cont.) Persuasiveness depends on

quality of decision jurisdiction of the court that gave the

decision


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


The Court’s Decision Two parts

Ratio Decidendi Obiter Dictum (Dicta)

Only Ratio Decidendi can be binding Obiter Dicta may be persuasive


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


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


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.


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”


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


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


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


Week 2

Part 2

Legislation


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


Form and Structure (Cont.) Internal Division

Part Division Section Sub sections Paragraphs

Purpose or Objects clause Older Acts have a Preamble


Form and Structure (Cont.) Definitions Sections Headings

Allows easy reference and research


Week 2

Part 3

Statutory Interpretation


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


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


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.


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?


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


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


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


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


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


Principles of Interpretation (Cont.) Statutes that should be construed narrowly

Penal statutes Taxation Acts Acts that change common law


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

fundamentals of law (bl502) week 2 part 1 court judgements

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