LEGAL METHOD SUMMARY Contents: Development of Common Law in England Receptions of English Law in Australia Federation, Political Institutions, Judiciary and the Courts Legal Reasoning and Case Analysis Precedent Theory and Case Analysis Following and Distinguishing Precedent Fundamental Legislative Principles Theories of Statutory Interpretation Statutory Interpretation The Commonwealth Queensland Ratio Decidendi in a Statutory Context Peldan v Anderson Kiamani v Captain Cook Cruises Carlill v Carbolic Smoke Ball Company Esanda Finance Corporation Ltd v Peat Marwick Hungerfords Hawkins v Clayton and Others Amos v Brisbane City Council King v Parsons Development of Common Law in England Customary law: non-written laws that develop from the customs within a particular society or within a group in a particular society. Customary law arises through and is enforced by its recognition and general acceptance. Varied across the pre-Norman Kingdoms in England because tribes had different habits and attitudes to life. Angles, Saxons and Jutes: Invaded Britain, Angle-Saxons brought own customary laws. The cultural difference b/w the Anglo-Saxons and the Celts meant that Anglo-Saxon customary law differed from the various forms of Celtic customary law. Invaded tribes shifted Celts to west of Britain (Wales and Scotland) Dooms: King of Wessex (Alfred) believed that unification of the different AngloSaxon kingdoms in England was necessary to ensure protection of the kingdoms from Danish invaders. Codification of parts of the existing Anglo-Saxon customary law would also strengthen the unity between the Anglo-Saxons kingdoms. Introduced dooms (contained laws) in an attempt to unify the kingdom. Norman Conquest – William the Conqueror defeated Harold at The Battle of Hastings 1066 becoming the King of England. He introduced feudalism and therefore a strong central government, allowing for a centralised system for the administration of justice, contributing to the emergence of a common law throughout England. Latin was introduced as the official language of England. This allowed the introduction of technical terms for legal purposes He didn’t replace the Anglo-Saxon law due to practical difficulties Use of precision in legal terminology through Latin formed part of the new administration of centralised justice in Norman England. A common law in England could NOT develop without a centralised system of justice in place. o Latin contributed to the information of the new system of centralised justice, necessary for a common law in England to develop. o Anglo-Norman provided the necessary flexibility within legal terminology to enable the development of a common law within a centralised system of justice. Feudal Tenure: o Brought to England by Normans as an essential part of the administration of government in the country. o Feudalism functions as a mechanism of protection of land from invaders. o Feudal systems: a system whereby local people sought protection and subsistence from the local lords, and in return, the local people provided services to the lord Local Lords gained control over land and political power. o Over time a body of land law developed that was applied throughout England o This body of land law was an important early influence on the emergence of a common law in England o Tenure holding of land by a tenant from a lord. Chief lords were sent by the King to maintain the law and order in the country. They were responsible for governing and protecting the local people. Rights given to chief lords to raise taxes and to demand military service. Subinfeudation: process where a chief lord gives land to a tenant for providing military services. Henry II introduced the writ system and created permanent courts with professional judges. The formalised writs were the basis of any action and influenced the development of the common law. However, they were strict and inflexible. Centralisation of the administration of justice o Necessary to provide the institutional structure through which royal judges could start to develop a systematic body of rules common law o Existing customary law in England varied across the country. Therefore a centralised structure could develop the existing body of customary law into a common law that applies consistently throughout England. o Development of common law also depended on the writ system. o The reign of Henry II provided the platform for its future development o The centralisation of justice in England was an important issue in the eventual development of a common law in England provided the platform for common law to develop o A strong central government provided the basis for a centralised system for the administration of justice in England o A centralised system for the administration of justice provided the basis for the unification of laws across England o However, at this time (1066-1087) a common law of England had not been created: Why? o Local customary laws still played a crucial role in everyday rural England Itinerant justices o Royal officials sent by kings to counties to investigate the conduct of local officials. Emerging English Legal System – trial by jury, the creation of the central courts and the writ system formed the basis of this emerging legal system. The Jury – a body of neighbours is summoned by some public officer to give upon oath a true answer to some question. Modes of trial before Jury o The ordeals: a person accused of committing a crime would be subjected to one of a variety of rituals in order to prove the innocence or guilt of the accused person. o Wager of law, trial by battle, trial by jury other modes The Writ System – a writ is a command to a person from a sovereign directing the person to do something or to refrain from doing something a common law action could NOT be commenced w/o obtaining the appropriate writ. o If a writ didn’t exist that covered the particular circumstances of the dispute, no action could be taken w/o the consent of the landholder. Rise of Constitutional law (the public and private law underpinning the constitution of a society) in England – Magna Carta (1215) introduced the rule of law and the beginning of parliament. o ‘No free man shall be seized or imprisoned, or stripped of his rights or possessions, or outlawed or exiled, or deprived of his standing in any other way, nor will we proceed with force against him, or send others to do so, except by the lawful judgement of his equals or by the law of the land.’ It established that no person can be charged with a criminal offence or be deprived of civil rights or possessions except through the due process of the law, and; o ‘To no one will sell, to no one deny or delay right or justice’. o Therefore (fundamental aspect) government (and Crown) is subject to the law. Emergence of Parliament - The world ‘parliament’ was not used in Norman England until the 13th century because there had been no sense of ‘nationhood’. Prior to this time nationhood did not exist because feudalism did not encourage trade between different parts of England. The developing wood trade in the early 13th century connected various parts of England and provided the platform for the emergence of a sense of nationhood. Provisions of Oxford (1258) prevented the monarch from writing new writs without the assent of parliament (24 persons – half chosen by King, half by Baronial Council). The Glorious Revolution (1688) promoted three fundamental principles: liberty, constitutional monarchy and parliamentary supremacy. The functioning of the Crown was now subject to far greater control by parliament. Took place when King James II fled England and was replaced by William of Orange and his wife Mary. Constitutional monarchy – (relationship b/w the crown + Parliament): following the Glorious revolution the crown and the parliament have roles in the functioning of government. o This new relationship between the Crown and parliament following the Glorious Revolution constituted a constitutional democracy with the functioning of the Crown subject to the Parliament to a far greater extent than prior to the Glorious Revolution. o The Commonwealth of Australia is a constitutional monarchy with a written Commonwealth Constitution (and unwritten constitutional conventions) and the English monarch as head of state in Australia. Parliamentary supremacy – the common law is subject to, and can be changed by, statutes. o The Crown’s prerogative powers were subject to the statue law enacted by Parliament. The Crown’s prerogative (exclusive) powers were its common law powers which did not have any statutory basis. Prerogative powers are the powers to conduct to foreign affairs, declare war and peace and enter into international treaties o The principle of the supremacy of parliament resulted in the Crown’s powers derived from the common law being subject to the elected Parliament. Parliamentary supremacy also means that the common law is subject to, and can be changed by, the statutes enacted by Parliament. o Operates in Australia. Equity – the main question for the emergence of equity was whether the common law’s failure to provide a remedy offended a general principle of justice. Separate common law and equity courts – Example: if the seller of a horse refused to go though with a sale, the law of contract (common law) would provide for an award of monetary compensation by way of damages. The law of contract could NOT, however, force the seller to go through with the sell (equity could do this if the horse is of a particular bloodline which the buyer would benefit from than just its market price) o Courts of equity had discretion as to whether to provide equitable relief o Equity was (and still is) a supplementary jurisdiction in the sense that it was only available where the common law did not provide an adequate remedy Common Law, Equity and Statute Law Equity is the side of law that is used to provide a solution when the common law cannot provide a remedy. Originally, an application was petitioned to the Chancellor and it was accepted if the common law’s failure to provide a remedy offended a general principle of justice. Examples include specific performance. The common law legal system is comprised of common law, equity (both judge made law) and statute law. Statute law prevails over both of these, as it is the intention of parliament to change a principle existing in common law. Equity prevails over common law in order to provide a remedy that the common law does not cater for (judges have discretion) Receptions of English Law in Australia Captain Cook, in finding Australia concluded that the land was inhabited along the entire east coast. He reported his findings to the British Admiralty who sent Captain Arthur Phillip to command the First Fleet and establish the first settlement in 1788. There is uncertainty to the content of the law received in Australia due to the principle of terra nullius. Terra Nullius – concept of ‘land belonging to no one’ or ‘uninhabited land’. Doctrine of Reception – (1) Settled colony: after establishing the land was terra nullius the law of the colonising nation applied in the territory following colonisation. E.g. British settlers coming to Australia (2) Ceded colony: if a territory was said to be acquired through cession (that is, by way of a treaty between the existing inhabitants and the colonising nation – the law of the existing inhabitants would continue to apply in the territory (3) Conquered colony: if a territory was acquired by a nation through conquest, the law of the conquered people would continue to apply until that law was formally changed by the conquering nation. E.g. Venezuela and Spain Whether or not a territory was terra nullius determined whether the law of the existing people or the law of the colonising nation applied in the territory following colonisation. Under international law at the time, if a territory such as New Holland (Australia) was considered by a nation such as Britain to be terra nullius, or uninhabited, then the law of the colonising nation would be applied in the new colony International Law and Colonisation – at the time of settlement in NSQ in 1788, the British were influence by contemporary ideas of international law concerning colonisation: for example, de Vattel’s The law of Nations (1758). According to de Vattel, under natural law wandering tribes could not be treated as owning land. This reflected the European notion of private ownership of property, which was closely connected to cultivation of the land. Cultivation was so closely connected to land ownership that, where cultivation of land was not undertaken by the existing people of a territory, this was an issue to consider in determining whether the territory was terra nullius. The important point to appreciate in this regard is that whether or not a territory was terra nullius determined whether the law of the existing people or the law of the colonising nation applied in the territory following colonisation. Aborigines didn’t cultivate their land therefore, deemed to be terra nullius and as such, English laws applied. However, Australia was a penal colony and it was difficult to see how this could apply. Read Campbell v Hall p25 Terra nullius and NSW – the decision in Cooper v Stuart provides a clear example of the view that the new penal colony of NSW was terra nullius at the time of settlement “a colony which consisted of a tract of territory practically unoccupied, without settled inhabitants or settled at the time when it was peacefully annexed to the British dominions. The colony of NSW belongs to this class. In the case of such a colony…the Imperial (of or relating to an empire) Parliament…may by statute declare what parts of the common and statute law of England shall have effect within its limits”. Empire: An extensive group of states or countries under a single supreme authority Reception of English Law English law in a penal colony The British assumed the new penal colony of NSW to be terra nullius for the purposes of determining whether the law of England should apply. o Consequently, under the doctrine of reception, English law applied in the colony. Penal colony: settlement used to exile prisoners and separate them from the general populace by placing them in a remote location Blackstone’s Proviso: Colonies carry with them only so much of the English law, as it applicable to their own situation and the conditions of an infant colony. Colonies in the statement above refers to plantations, in distant countries, are either such where the lands are claimed by right of occupancy only, finding them desert and uncultivated, and peopling them from the mothercountry; or where, when already cultivated, they have been either gained by conquest, or ceded to us by treaties. In view of the fact that New South Wales was a penal colony, in the context of Blackstone’s proviso what was the actual content of the received English law? In the years following the first British settlement, doubt existed as to the actual content of the received English law. The doubt concerned whether non-paramount English statutes and the principles of equity applied in the colony of NSW from the time of first settlement. o Despite the doubt that existed at the time, non-paramount English statutes were received in NSW at the time of first settlement. In contrast, the principles of equity were not received at the time of first settlement as equitable jurisdiction had to be ‘invested by statute’. Paramount: A statute which applied specifically to one or more of the colonies. Non-paramount: A statute of general application in England Australian Courts Act 1828 (IMP): Date enacted is 25 July 1828. How did reception happen? Equity did not arrive until May 1824 When the Supreme Courts were created and given equitable jurisdiction. “All laws” received (and statutes) at the time of settlement refers to the common law. After this date, new non-paramount statutes would not apply but paramount statutes would. The date of reception for the common law is 26 January 1788. Dormant Common Law – Blackstone’s important proviso that ‘such colonies carry with them only so much of the English law, as is applicable to their own situation’ raises the issue of whether, upon settlement, the common law can lay dormant (inactive) until the conditions of the new colony change so that it becomes applicable to the conditions of the new colony. State Government Insurance Commission v Trigwell o Parts of the common law can lay dormant until they become applicable. The conditions of the colony can change for a rule to become applicable. o A law never ceases to be part of that system because of changes in circumstances have rendered it unsuitable. Once the law becomes part of the law of the territory it remains so until it is repealed or amended by legislation. Colonial Laws Validity Act 1865 (IMP)- Reread p 32: A NSW statute which is repugnant to a paramount imperial statute will be void and inoperative. Colonial statutes may contravene non-paramount British statutes. A general principle against retrospective enactments as making something previously legal, illegal, is against natural justice. Federation, Political Institutions, Judiciary and the Courts Victoria was highly protectionist due to fears concerning its local manufacturing industry, and the issue of the imposition of colonial tariffs (between them and New Zealand) formed a significant part of the federation debate in Australia The 1880’s The imposition of tariffs to protect local industry remained a major issue in whether to form an Australian federation. Another issue was the division of levies from customs and excise. NSW, which opposed tariffs and supported free trade between the colonies, feared it would make the largest contribution to the proposed financial arrangements concerning the division of levies collected from customs and exercise but would receive the least back. The main tasks of the founders of the Australian federation are: To specify the political and legal institutions of the Commonwealth and the States To allocate powers of government between the Cth and the States To specify the interrelations b/w the Cth and State constitutions and laws To specify the interrelations b/w the Cth and the States as entities and between the governments To specify the methods of amending the federal system. Movement away from the United Kingdom since 1850s. Issues concerning federation – motives lay in trade and customs and security concerns with French/German activity in nearby regions. Lots of conferences and conventions in late 1800s. Victoria v NSW: disagreed based on own vested interests (manufacturing v agriculture). Tasks for founders of federation – specify political and legal institutions, allocate powers of governments, specify the interrelations between state and national laws and government, specify methods of amending the legal system. Political Institutions in Australia The powers of the Senate (upper house) are equal to the powers of the House of Representatives (lower house) except in relation to Bills concerning the authorisation of Commonwealth expenditure. Such Bills can only be introduced into the House of Representatives but the Senate can still refuse to pass Bills involving Commonwealth expenditure. Powers of the Senate The Senate is a part of the Parliament and, except as to laws appropriating revenue or money for the ordinary annual services of the Government or imposing taxation, is co-equal with the House of Representatives. Bills may originate and do originate in the Senate S53 of the Constitution makes it clear that the Senate is to have equal powers with the House of Representatives in respect of the Senate with those of the House of Representatives Role of the Senate The Senate was intended to represent the States, parts of the Commonwealth, as distinct from the House of Representatives which represents the electors throughout Australia. Commonwealth of Australia Constitution Act 1900 (UK). The preamble does not refer to Western Australia, as they had as yet not decided whether to join. The first 9 clauses are preliminary sections; the following 128 sections of the Act contain the Commonwealth Constitution. At this time, the Queen had the power to appoint a Governor-General for the Commonwealth. The inauguration took place on 1 January 1901. Balfour Declaration 1926 – Granted equal status to Britain and its dominions in terms of internal and external affairs. The principles were included in the Statute of Westminster Act 1931 (UK). The dominions were no longer under the authority of the British government but still under the authority of the Crown, with the English monarch being the Head of State. Statute of Westminster Adoption Act 1942 (CTH) – incorporates the Statute of Westminster Act 1931 (UK) in that no law passed by the parliament of the United Kingdom would apply except at the request and with the consent of the Dominion. This was a result of a feared Japanese invasion and the act was backdated to take effect from the outbreak of WW2 (September 1939). This act meant that the Colonial Laws Validity Act 1865 (Imp) did not apply to Commonwealth legislation but still applied to State legislation. The Commonwealth cannot make laws for the State (s9-1). This refers to the three levels of parliament (power sharing) and specific jurisdictions. If there is an overlap, the Commonwealth law shall prevail to the extent of the inconsistency (s109 of the Constitution). Australia Act 1986 (3 March 1986) – Removed any application of the Colonial Laws Validity Act 1865 (Imp). No British statute of any type would have any lingering or residual application. There would be no appeal to the Privy Council from State Supreme Courts (now to HCA). Significant step towards constitutional independence. Section 5 – Doesn’t apply to Statute of Westminster Adoption Act, Commonwealth Constitution and Constitution Act not affected. Political Institutions – s1 of the Constitution sets up ‘Parliament” which includes the Queen (Governor-General representation), a Senate and a House of Representatives. The Senate (s7) shall have equal powers to the House of Representatives (s24) except for revenue/taxation bills which will always be introduced into the lower house (the senate may not amend any proposed laws). Powers of the Commonwealth Parliament – s51 (P.121 of the Text) sets out concurrent powers, s52 sets out exclusive powers, s61 sets out executive powers (Crown .: GG). Queensland Government – abolished the Legislative Council (1922) therefore only has one house (the Legislative Assembly). Judicial power: “It is the power of a Court to decide and pronounce a judgment and carry it into effect between persons or parties who bring a case before it for decision.” Sir Samual Griffith said in s 71 Huddart, Parker & Co Pty Ltd v Moorehead: o Judicial power as used in s 71 of the Constitution mean the power which every sovereign authority must of necessity have to decide controversies between its subjects, or between itself and its subjects, whether the rights relate to life, liberty or property. The exercise of this power does not begin until some tribunal which has power to give a binding and authoritative decision (whether subject to appeal or not) is called upon to take action. Non-judicial power (review P.161): Can judge but not enforce eg arbitration court (parties agree to let an arbitrator decide dispute – through contract). Attorney General – the first law officer of the Crown, with the traditional functions of enforcing the law and advising and acting for the Crown in all matters to which the Crown is a party. The High Court – The final court. Original jurisdiction = matters that go straight to it eg constitutional issues, disputes between states. Appellate jurisdiction = appeals from State Courts of Appeal. Hierarchy – Magistrates Court (<50k and lesser criminal matters); Queensland District Court (50k - 250k and most criminal matters); Queensland Supreme Court (>250k); Queensland Court of Appeal (appeals allowed from Supreme Court); High Court of Australia (appeals allowed from Court of Appeal). Federal Magistrates Court; Federal Court of Australia and Family Court of Australia; High Court of Australia. Legal Reasoning and Case Analysis Legal reasoning or judicial method refers to the process through which a judge writes and justifies the conclusion or conclusions reached in his or her judgment that disposes of the legal dispute between the parties to legal proceedings in a civil trail. A magistrate determines he innocence or guilt of an accused in a trial where a summary offence is alleged to have been committed, and a jury determines the innocence or guilt of an accused in a criminal trial where an indictable or more serious offence is alleged. Law and logic Common law legal reasoning is often said to involve inductive reasoning, deductive reasoning and reasoning by analogy Inductive reasoning – going from the particular to the general (grouping decisions). Deductive reasoning – going from the general to the particular (applying a rule/principle to a particular case). Reasoning by analogy – involves the use of similar analogous circumstances to assist in the resolution of the issue at hand Predicate logic The syllogism, a major premise and a minor premise leading to a conclusion, is the starting point of any predicate logic. A syllogism involves reasoning on the basis of a belief in general or major premises and a belief in a particular or minor premise that leads to a conclusion based on major and minor premises. Propositional logic MacCormick uses propositional logic as part of his theory of legal reasoning. Propositional logic is a form of deductive reasoning. E.g. (a) A person born in Australia after 26 January 1949 and prior to 20 August 1986 is an Australian citizen (b) Jessie was born in Australia on 14 November 1985 (c) Jessie is an Australian citizen. Conclusion (c) is only valid if general proposition A and specific proposition B, are each valid. The use of deductive logic depends on the validity of the general and specific proportions used. MacCormick’s Theory of Legal Reasoning Constraint of formal justice - treating like cases alike and different cases differently. Specific conceptions of justice produce rules that are used to determine whether cases should be treated alike or treated differently. Doctrine of precedent – a body of positive law telling us what authority is to be ascribed to judicial precedents essentially means following previous decisions for like cases. MacCormick “A ratio decidendi is a ruling, expressly or impliedly given by a judge which is sufficient to settle a point of law put in dispute by the parties arguments in a case.” The ratio can only be in respect of the point of law that the parties put in argument. If a judge says something about a proposition – obiter dictum. The judge should not be giving a very broad statement of a proposition of law to settle a narrow point – no wider than necessary (hence word sufficient). Principles, Analogies and Coherence. Legal rules are specific manifestations of legal principles. Extension of law by analogy involves perceiving a rational principle within which two items compared can both be contained (must be within the context of general principles and not driven by policy factors). Coherence – for the legal system to make sense there needs to be coherence between the principles and rules (can’t be contradictory). D’Orta-Ekenaike v Victoria Legal Aid (Advocate’s Immunity) re-read P188 Received advice from barrister and another person. Pleaded guilty in magistrate’s hearing. Changed plea to not guilty in trial. Previous plea raised in court therefore convicted. Appeal – acquitted. Therefore sue for time in jail, income etc. “At common law, an advocate cannot be sued by his/her client for negligence in the conduct of a case in court, or in work out of court which leads to a decision affecting the conduct of a case in court.” Fundamental principle – principle of Finality of Litigation (system depends on it). Within the principle, there are certain legal rules. One of these rules is advocate’s immunity. Joint majority supported common law rule of advocate’s immunity. Res Judicata is a common law rule that where an action has been brought and judgment has been entered in that action, no other proceedings may be maintained on the same cause of action. This prevents secondary actions. This is another rule within principle of finality of litigation. Another rule: Issue Estoppel – once an issue before a court has been finally determined, it cannot be brought before the court again. Therefore the rule of advocate’s immunity is consistent with the need for finality of litigation. If sued for negligence, the court must re-hear the previous case which is against finality of litigation. Spectrum of Legal Reasoning: - Principle based judicial method (legal reasoning) Coherence-based incrementalism Policy based incrementalism Policy-based judicial method (legal reasoning) McHugh J and Coherence-based Incrementalism Incrementalism Incrementalism is a method of legal reasoning that is based on development of the law in novel cases on the basis of analogy with previous decisions rather than on the basis of underlying general principles of law. Brennan J in Sutherland Shire Council v Heyman: the law should develop novel categories of negligence incrementally and by analogy with established categories (how the common law should develop - this statement is classic obiter dictum), rather than by a massive extension of a prima facie duty of care restrained only by indefinable ‘considerations’ which ought to negative, or to reduce or limit the scope of the duty or the class of person to whom it is owed. McHugh J: A court bound by a previous decision whose ratio is not discernible, is bound to apply that decision when the circumstances of the instant case ‘are not reasonably distinguishable from those which gave rise to the decision’. In Giannarelli McHugh J analysed the reasoning of the majority judgment and concluded that Giannarelli contained no discernible ratio decidendi in ‘view of the difference in reasoning among the majority justices’. Policy-based Incrementalism (Kirby J) Floodgates Argument (decide based on the consequences – so everyone doesn’t start to sue) eg insurance anyway, deterrence, election time. This is said to be legal policy rather than principle. Kirby J – looks for ratio of previous decisions. If can’t find one – policy reasoning. In this case, identifies other ratio and links to ‘in court work’. This ratio is much narrower than in the actual case therefore don’t use it – use policy reasoning. Kirby J describes the process to finding the ratio decidendi of a judgment the following way: It is fundamental to the ascertainment of the binding rule of a judicial decision that it should be derived from (1) the reasons of the judges agreeing in the order disposing of the proceedings; (2) upon matter in issue in the proceedings; (3) upon which a decision is necessary to arrive at that order. Prospective Overruling Changing the law to apply in future. 3 previous matters in England went to appeal. Court decided they fell outside existing laws. House of Lords abolished immunity so it wouldn’t apply in the future (PO). Acting as a legislator. This is what a parliament should do. Against the separation of powers. Concept of ratio – settling a point of law put in dispute. This is what a judge should be doing, not changing law for the future. High Court of Australia The High Court of Australia has rejected the use of prospective overruling. Brannan CJ, McHugh, Gummow and Kirby JJ said in Ha v New South Wales this court has no power to overrule cases prospectively. Precedent Theory and Case Analysis Precedent theory involves an analysis of the different approaches to ratio decidendi and obiter dictum within a case. o Ratio decidendi refers to the legal reasoning that forms the basis of the decision in the case. o Obiter dictum refers to (1) any legal rule or principle included in a judgment which does not constitute part of the ratio or rationes of the case, and (2) any general observations made by a judge in his or her judgment. MacCormick’s description of ratio provides an approach that gets to the crux of the issue. Ask yourself: o What is the ruling in the judgment that is the basis for disposing of each disputed legal issue (more than one legal issue = more than one ratio) between the parties? Precedent theory Definition of Ratio Decidendi MacCormick “A ratio decidendi is a ruling, expressly or impliedly given by a judge which is sufficient to settle a point of law put in dispute by the parties arguments in a case, being a point on which a rule was necessary to his [or her] justification (or one of his [or her] alternative justifications) of the decisions of the case.” Glanville Williams has defined ratio decidendi as follows: English courts are obliged to follow previous decisions within more or less well-defined limits. This is called the doctrine of precedent. The part of the case that is said to possess authority is the ratio decidendi, that is to say, the rule of law upon which the decision is founded. Professor Rupert Cross described the ratio decidendi of a case as follows: The ratio decidendi of a case is any rule of law expressly or impliedly treated by the judge as a necessary step in reaching his conclusion, having regard to the line of reasoning adopted by him, or a necessary part of his direction to the jury. Remember when picking what the ratio decidendi of a case is, don’t make the mistake and pick the conclusion this is NOT the ratio. This is just showing how the ratio (principle) applies to the case. The Classical Theory Professor John Gray said: At the Common Law not every opinion expressed by a judge forms a Judicial Precedent. In order that an opinion may have the weight of precedent, two things might occur: 1. It must be, an opinion given by a judge 2. It must be an opinion the formation of which is necessary for the decision of a particular case it must NOT be obiter dictum Sir John Salmond defined ratio decidendi as: A precedent, therefore, is a judicial decision which contains in itself a principle. The underlying principle which thus forms its authoritative element is often termed the ratio decidendi. Ratio versus rule The ratio of an individual or joint judgment is the ruling or reason given by the judge(s) to dispose of a disputed legal issue between the litigants. To constitute ratio, the ruling must be made to dispose of a disputed legal issue. If a ruling is made on a point that is not in dispute between the litigants, this ruling cannot form part of the ratio of the judgment (this would then be part of the obiter dicta of the judgment). A judge might simply apply an existing rule of law to dispose the legal dispute between the litigants. This then would also constitute the ratio to dispose of the legal issue. A judge in a final court of appeal, which is not bound by previous decisions of the court, might however, modify an existing rule of law when he or she makes a ruling to dispose of a legal issue in dispute between the litigants. 1. The existing rule of law is then modified through the ratio that is applied in the present matter before the court. 2. In this sense, a rule of law flows from the ratio, as the ratio is the basis of the ruling to dispose of a legal dispute. Thus, existing rules of law can be modified through rulings or rationes of judgments. 3. Read P208 to 209 e.g. Donoghue v Stevenson 4. The ratio of the case from Donoghue (Lord Atkin’s ratio) constitutes the rule following from the case which can be applied to future cases. a. Look under Legal Reasoning on P.211. That’s how you are meant to answer an exam question. Principle versus policy A principle is applied to ensure internal coherence in an area of the law. An example in this regard is the application by Lord Atkin of his neighbour principle as a general principle to determine whether existing, recognised categories of negligence could be extended. Policy is goal-oriented, takes into account external considerations in the legal reasoning process. E.g. in relation to the law of negligence, legal policy could include risk spreading through society, loss distribution and issues of insurance. Obiter dictum or obiter dicta (the plural) refers to (1) any legal rule or principle included in a judgment which does not constitute part of the ratio or rationes of the case, and (2) any general observations made by the judge in his or her judgment. MacCormick said Arguments of legal principle and arguments evaluating other authorities or evaluating the consequences of the favoured ruling and its rivals, even though some such arguments are necessary to justify a ruling given, and even where only the very arguments actually advanced could justify the ruling, will then belong to the class of obiter dicta. The reasoning that leads to this ratio constitutes obiter dictum in the judgment. o Clear examples of dicta include where a judge gives an example to illustrate a point or where a judge analyses a legal issue that is not in dispute between the parties. Any such analysis cannot be part of the ratio as ratio must be in respect of a disputed legal point only. o Where a judge gives his/her views of how the common law should develop o Where a judge makes observations Important: the ratio or rationes of the case can only come from the individual or joint judgments in the majority. o The rationes of a dissenting judgment can only constitute obiter from the point of view of the case. Case analysis 1. Identify which judgments are joint judgments and which judgments are individual judgments. 2. Identify which judgments are in majority and which are in dissent (then you can exclude the ones in dissent as the ratio wont be in there) 3. Ascertain the material facts and the legal issues in dispute a. The materiality of a case can be a disputed issue. 4. Identification of the material facts then leads to identification of the legal issue(s) in dispute between the parties. 5. Carefully determine whether it is possible to ascertain the ratio or rationes of the case. a. This step involves whether there is sufficient commonality between the rulings of those in the majority. b. It also involves determining whether this commonality is found in a majority of the judges sitting on the case. Judge identifies relevant laws and prior judgment. Analysis of past cases, research etc. All of this leading up to the ratio is obiter dictum. The end point is the ratio. This is the ruling applied to answer the legal question. The analysis (obiter) is simply helping to get to the ratio. If a judge gives an example to illustrate a point, this is obiter dictum. If a judge/gives views on where common law should develop – obiter. If a judge/gives opinions on matters – obiter. If there is a point where you can say, this is the ratio, everything that follows is obiter. Ratio Decidendi – the reasons making up a ratio must be in majority (more than 4 out of 7 judges that are in the majority must use this reasoning) and dissenting judgments cannot form part of the ratio. If the facts of the case are identical and there is no discernible ratio, the court is bound to apply the decision of the judgment (the not reasonably distinguishable test). The high court is not bound by its previous decisions and it often does develop the law. It may modify or develop existing rules or principles in the law. The modified version of the past rule is the ratio. This is the ruling which is applied by the judge to settle the dispute between two parties. Following and Distinguishing Precedent A doctrine of precedent refers to the binding or persuasive nature of a previous decision within the same or within a different court hierarchy. A doctrine of precedent is different from a theory of precedent. A theory of precedent examines the actual concepts of ratio decidendi and obiter dictum. As a doctrine of precedent addresses the issue of whether a previous decision is binding or persuasive, the relevant court hierarchy must be considered also. o This chapter addresses the binding or persuasive nature of a past court decision in the context of the court hierarchy. Classical common law or declaratory theory of adjudication Under this explanation of the declaratory theory, the common law is based on custom and the decisions of the courts as reported in the law reports amount to evidence of the law, rather than constituting the law itself. Postema’s summary of the basis of the classical common law theory of precedent: o Individual cases are not thought to yield authoritative rules, but rather to illustrate the operation of weighing reasons, to exemplify the process of reasoning within this body of experience o Past cases invite and focus reasoning in new cases on the model of reasoning employed in the prior case. o Precedent cases do not in themselves constitute law and judges do not make law or lay down rules. The legal significance of past decisions resides in their status as examples of proper exercise of the process of legal reasoning. Binding precedent There is no room for any concept of binding precedent based on the approach given above, because a past decision is only evidence of the law, a judge can decide to not follow it if the judge concludes that the decision is erroneous (wrong) in view of ancient custom and the collective experience of the courts over a long period of time. Consequently, the classical declaratory theory of common law adjudication did not view particular past decisions as binding. Example of the declaratory approach in Australia, Isaacs J Chief Justice of Australia: A prior decision does not constitute the law, but is only a judicial declaration as to what the law is. Positivist Conception of Precedent According to legal positivists, the common law was not discovered but created. The important point to appreciate is that positivism recognises that the provisions of statutes and the decisions of courts constitute the common law. o Under legal positivism the decisions of the court and the statutes constitute the law This is a critical point of distinction between a positivist approach to adjudication and the classical or declaratory theory of adjudication that the law is not just mere evidence in the eyes of positivists. The fact that a judicial decision constitutes the law under a positivist approach enables the concept of binding precedent to develop. o Past decisions constitute the law therefore should be binding according to the positivists. The 18th Century Rationalists – thought of case law as being comprised (consist) of rational principles that justified the decisions of the courts. Lord Mansfield illustrates the rationalist view in Jones v Randall: The law of England would be a strange science indeed if it were decided upon precedents only. Precedents serve to illustrate principles, and to give them a fixed certainty. But the law of England, which is exclusive of positive law, enacted by statute, depends upon principles; and these principles run through all cases according as particular circumstances of each have been found to fall within the one or the other of them. His Lordship refers to statute law as being positive law. He recognises that statute law represents the law itself, whereas the case law of the courts is only evidence of the principles underlying precedent. These underlying principles constitute the actual law as found in the custom of the common law. o Took a view that there were fundamental underlying principles of law. Principles guided process of adjudication. Law reports therefore contained evidence of these fundamental principles. Believe when judges brought decisions down, only evidence of the law. During this time, increase in statutes. Rationalists thought statutes were the law itself. Formalists were more positivist in their approach. Judges decisions constituted the law. In novel cases, a formalist believes there should be reasoning by analogy and incrementalism. Rationalists would believe a novel case should be decided on a moral or general principle. These were judges who tended to view case-law as consisting of those doctrines and rules firmly established by their acceptance in the past by judges. Where the existing law implied necessity for an answer to a question without providing it, reason and analogy might be used to provide it. o The use of moral principle to expand the common law was not justified. The formalists would therefore resort, in novel cases, to reason by analogy with existing cases rather than, as a rationalist might do, resort to an underlying moral or general principle to decide the novel case. o The formalists believe that the role was to state the law as it was; the role was not to state the law as it ought to be. Stare decisis - under this practice of stare decisis (the decision stands), a court was required to follow a precedent that was relevant and applicable to the circumstances of the matter under consideration, irrespective of the court that decided the precedent. Practice consisted merely of following past decisions. Stare decisis did not involve a practice of following a past decision in the context of binding or persuasive precedent within a court hierarchy James Ram realised the importance of court hierarchy. Eg House of Lords is final court of appeal therefore all other courts should follow its decisions. Only in the 1820s that professional judges sat in the House of Lords. Only in 1812 when the House of Lords decisions began to be properly recorded. Chaotic system of appeal until 1830. All of this made it difficult to set precedents. o Ram emphasises the need for certainty in the law: to protect citizens who had relied on past decisions and to assist lawyers in the provision of advise to clients. He also argued that past decisions should be followed so that uniformity exists in court decisions. Following Precedent: A Doctrine or Practice? Three Rules of Precedent The view taken in this text is that the system of precedent within a particular court hierarchy is a practice rather than a rule of law (doctrine of precedent). Rupert Cross identifies three rules of precedent: 1. All courts must consider the relevant case law 2. Lower courts must follow the decisions of courts above them in the court hierarchy 3. Appellate courts are generally bound by their own decisions. The Concept of a Rule of Law The ratio of an individual or joint judgment is the ruling or reason given by the judge(s) to dispose of a disputed legal issue between the litigants. To constitute ratio the ruling must be made to dispose of a disputed legal issue. o If a ruling is made on a point that is not in dispute, then this ruling cannot form part of the ratio of the judgment. It must be part of the obiter dicta of the judgment. The authoritative value of an appellate court decision lies not in the ratio or rationes (if there are multiple legal disputes) of individual majority judgments BUT in the ratio or rationes of the case itself. A judge might simply apply an existing rule of law to dispose of the legal dispute between the litigants this then would constitute the ratio to dispose of the legal issue. Existing rules of law can be modified through the rulings or rationes of judgments. A modified version of the rule of law might be applied to dispose (resolve) of the legal issue in dispute and this modified rule constitutes the ratio that is the basis of the reason to dispose of the legal issue. o From this ratio a NEW rule of law might then flow. Lower courts cannot extend precedents as this develops the law. HC not bound by previous decisions. As it is so difficult to reach the HC, state Courts of Appeal are essentially final courts of appeal and should not be bound by their previous decisions. “Previous decisions are normally binding but these courts may depart from previous decisions when it appears right to do so” (.: practice not doctrine). “That shows conclusively that a rule as to precedent (which any court lays down for itself) is not a rule of law at all. It is simply a practice or usage laid down by the court itself; for its own guidance.” Hierarchy: Supreme Court and up are called ‘superior courts’ District courts are called the ‘intermediate court’ Magistrates court is called the ‘inferior court’. - Technically, only a superior court can create precedent (general proposition). Superior courts are ‘Courts of Record’ – authorised system of law reports. Decisions are binding downwards, persuasive upwards. Precedent can only be binding within the same court hierarchy. Between court hierarchies, precedent is only persuasive (QLD C of A does not bind NSW SC). HC decisions can be binding if they are general common law. HC decisions may not be binding if it is in regard of state jurisdictions e.g. different criminal codes in QLD/NSW. Does every case contain a ratio? The ratio decidendi of an appellate court decision can only be derived from the judgments of those judges who: (1) Form the majority from the point of the decision itself; and (2) Also form a majority of judges of the court as a whole. NOTE: A discernible ratio from the case on a disputed legal point can exist only if there is sufficient agreement between a majority of the judges sitting on the case as a whole. Discernible perceptible by sense or intellect If the 7 judges of the HC of Aus have heard an appeal and 5 judges are in majority and 2 are in dissent, at least 4 of the judges in the agreeing in the majority must agree on the basis of the reasoning. If only three of the judges in the majority agree in their reasoning this does not create a discernible ratio since it is not the majority of the 7 who are sitting. o Whether or not a case contains a discernible ratio is an important issue not only for the courts (as they cannot refer to this decision in future cases), but also for litigants (a person involved in the lawsuit) and the way in which lawyers acting on behalf of litigants conduct legal proceedings. One litigant might argue that a previous decision, which is favourable to the litigant’s position, must be followed as it constitutes a binding precedent in the legal proceedings before the court. The other litigant to the proceedings might then argue that this unfavourable previous decisions dos not, in fact constitute a binding precedent as the case from which it is said to come does not contain any discernible ratio due to the difference in reasoning of the judges in the majority. The ‘Not Reasonably Distinguishable’ Test A court, bound by a previous decision whose ratio decidendi is not discernible, is bound to apply that decision when the circumstances of the instant case ‘are not reasonably distinguishable from those which gave rise to the decision If circumstance not reasonably distinguishable then must follow precedent If reasonably distinguishable, then precedent does not apply Distinguishing Precedent Precedent can be avoided by distinguishing a past decision on the basis of a difference in the facts of the precedent and the facts of the matter under present consideration. Uncertainty as to the ratio will result in uncertainty as to whether a past decision must be followed within the context of the relevant court hierarchy. Per incuriam - ‘wrong in law’. A decision given per incuriam may be given in three categories of cases: (1) where a court has overlooked a relevant case authority; (2) where a court has overlooked a relevant statutory provision; and (3) where a court has clearly made an error. A decision made per incuriam means that the decision has been made ‘though want of care’. A decision made per incuriam involves some error by a previous court. It does not merely involve concluding that a previous decision can ‘be avoided’ where it appears necessary or convenient. According to Lord Simon in Milliango v George Frank (Textiles) Ltd: A court should only hold a judgment to have been per incuriam if it satisfied, first, that such judgment was given in inadvertence (ie given without proper reference) to some authority (judge-made, statutory or regulatory) apparently binding on the court giving such judgment, secondly, that, if the court giving such judgment had been advertent (given proper reference) to such authority, it would have decided otherwise than it did – would, in fact, have applied the authority. Even numbers sitting and even split. Appellate - court of appeal below’s decision will stand. Original - senior judge’s decision will be the total decision in the case. Fundamental Legislative Principles Look at P291. It states the types of matters that should only be implemented through an Act of Parliament. As opposed to pure common law, statute law is based on government policy. Primary legislation – act of parliament. This contains the law, sets it out. It is the framework for the law in that area. Delegated legislation – Delegated by the parliament to someone else (eg minister or department). This contains the detail. Parliament will look at overall legal concept. Eg medical specialists putting together detail of CLA. Does not have to go back to parliament to change. Parliament must put more important issues into statutes (not for delegated authorities to do) eg rules that have a significant impact on individual rights and liberties, money, taxes, amendments. Drafting of a bill is important to have certainty in a statute therefore be specific. There is a commencement date, an object section, first reading speech (introducing bill to parliament) a second reading speech (short, stating objectives – can be used for interpretation). QLD Legislative Standards Act – result of only one level of parliament and Fitzgerald Enquiry (also recommended EARC). Fundamental legislative principles are the principles relating to legislation that underlie a parliamentary democracy based on the rule of law. They have sufficient regard to (a) rights and liberties of individuals; and (b) the institution of Parliament. Whether a Bill has sufficient regard to the institution of Parliament depends on whether, for example, the Bill—(a) allows the delegation of legislative power only in appropriate cases and to appropriate persons; and (b) sufficiently subjects the exercise of a delegated legislative power to the scrutiny of the Legislative Assembly; and (c) authorises the amendment of an Act only by another Act. Delegated legislation: Thought to be legislative – part of a statute. Administrative nature – part of delegated legislation. “Perhaps the most commonly stated distinction between the two types of decision is that legislative decisions determine the content of rules of general, usually prospective, application whereas administrative decisions apply rules of that kind to particular cases.” Applying a statute to the particular circumstances – executive/administrative activity. Eg tax office applying rules to individuals. Powers should be delegated where there is agreement that a task must be performed and it cannot be effectively performed by the legislature without the assistance of a delegate or without an expenditure of time so great as to lead to neglect of equally important business. Delegation is most commonly indicated were the regulations to be regulated are highly technical or where their regulation requires a course of continuous decision. Legislative Instrument Act 2003 (Cth) - greatly improved system for the management and oversight of delegated legislation. Legislative scrutiny applies regardless of how an instrument is designated. It operates on the basis of what the instrument does, rather than what the instrument is called. QLD is confusing. Henry VIII clause (prohibited in Qld) is a clause in an Act of Parliament which enables the Act to be amended by subordinate or delegated legislation. Theories of Statutory Interpretation Rupert Cross says o Statutory interpretation is a ‘process by which the courts determine the meaning of a statutory purpose of applying it to the situation before them. There is a degree of overlap between the different theories. A spectrum of the theories would look like this: o At one end the restrictive textualist theories and at the other end the least restrictive approach the dynamic theories. Followed by the textualist theories, the intentionist theories would appear followed by the purposive interpretation. The Spirit or Equity of the Statute The earliest approach to statutory approach in England involved courts considering the spirit or equity of the statute to determine whether the particular circumstances in question fell within or outside the spirit of the statute o Eyston v Studd Plowden stated: it is not the words of the law, but the internal sense of it that makes the law, and our law consist of two parts, of body and soul, the letter of the law is the body of the law, and the sense and reason of the law is the soul of the law. There is a clash between the natural development of the common law through statutory influence (which are policy based). The HC has difficulty in stating the common law with great variation in state statutes (eg CLA). Textualist Theories Textualist theories of statutory interpretation emphasise the actual meaning of the words in the text of the statutory provisions. These theories place far greater emphasis on the meaning of the text than on the intention of Parliament concerning that meaning or the purpose of the statute. Textualist theories are based on the fact that the interpretation of a provision in a statute cannot change overtime the meaning of provision is the same at the time of enactment and at any time in the future. These theories constitute the most restrictive theory in the spectrum of theories of statutory interpretation. o Plain ordinary meaning of the words. Soft plain meaning theory involves historical influence. The hard plain meaning theory emphasises a direct textual interpretation (very restrictive). Soft Plain-Meaning Theory (Example of Textualist Theory) This theory considers the plain meaning of the statutory provision in question and considers the plain meaning within its historical context. The New Textualist Theory/Hard plain-meaning (Example of Textualist Theory) This theory emphasises that the actual text of the statute provides the only basis for the interpretation process. The emphasis on the meaning of the past principle ‘formed’ in the reasons of the joint majority judgment in New South Wales v Commonwealth is an example of this theory. This theory requires strict interpretation of the meaning of the text of the statutory interpretation. Intentionist Theories These theories follow the restrictive textualist theories spectrum of theories of statutory interpretation. These theories focus on the intention of the parliament. In interpreting the provision of a statute, the actual intention (whether subjective or objective intention) of the parliament that enacted the statute must be ascertained. o This would appear to require ascertaining the subjective intention of the individual members of the parliament who vote in favour of the Bill (this is impractical) therefore intentionist theories of statutory interpretation don’t take this approach The source to which Parliament must have intended the citizen to refer is the language of the Act itself. These are the words which Parliament has itself approved as accurately expressing its intentions. - Objective intention of the parliament overall – why was this introduced? “We often say that we are looking for the intention of Parliament, but that is not quite accurate. We are seeking the meaning of the words which Parliament used” (in an objective sense – why these words in this context?). The statute must be read in context to grasp the language used. Examples of intentionist theories of statutory interpretation Specific Intent Theory – The common law literal rule read the statute as a whole. “The literal approach fails to give sufficient weight to the object or purpose of the statute. It does, however, require words to be read in context as ‘intention has to be found by an examination of the language used in the statute as a whole’.” Amalgamated Society of Engineers v Adelaide Steamship Co Ltd Imaginative Reconstruction Theory – Imaginative reconstruction theory ‘reconstructs’ the reason for the enactment of a statute. The common law mischief approach to statutory interpretation is an example o The mischief approach was usually adopted when a literal interpretation resulted in ambiguity or inconsistency. Cross vesting schemes – Each State could exercise original or appellate jurisdiction with respect to State matters. Cross vesting schemes which transferred judicial power between jurisdictions, unconstitutional (Re Wakim case). Read page 338/9 Purposive Interpretation Theories – Emphasises the importance of the object or purpose of a statute when interpreting the meaning of a provision. (1) This approach prevails over the literal interpretation; the construction that promotes the purpose or object of the Act is to be used. (2) Context is critical as words do not exist in a vacuum. (3) The court can resort to extrinsic material to aid interpretation. Three interpretive principles 1. Purposive interpretation: a purposive and not a literal approach is the method of statutory construction that now prevails a. A search for the grammatical meaning still constitutes the starting point. But if the grammatical meaning o a provision does not give effect to the purpose of legislation, the grammatical meaning cannot prevail. It must give way to the construction which will promote the purpose or object of the Act.’ 2. Contextual interpretation: the meaning of words in legislation is not derived by taking a word in isolation and construing (interpret) it as if it existed in a vacuum. In a statute, a word (if undefined) normally takes its menaing from the surrounding text. 3. Access to extrinsic materials: Courts in construing contested statutory language, may have resort to extrinsic materials, in order to throw light on the meaning of that language and the purpose of Parliament. a. Extrinsic material helps solve ambiguity (second reading speech) 4. Technical legal words: the foregoing interpretive principles remain applicable where a term used in a statue has both a technical legal meaning and an ordinary meaning of everyday speech. Dynamic Theories The least restrictive theories in the spectrum These theories cover a variety of approaches from a normative perspective. A normative theory is concerned with what ‘ought to be’ over a period of time. Such theories do not restrict interpretation to the plain meaning of a statute at the time of enactment, or its purpose or the intention of parliament. o Dynamic normative theories approach statutory interpretation from the point of view of the evolving meaning of the statute in changing times. This requires a more flexible approach that takes into account a variety of ‘relevant’ factors and considerations. Examples of Dynamic Theories of statutory interpretation 1. Best Answer Theories These theories make an interconnection b/w law and morality. 2. Pragmatic theory Under this theory the process of statutory interpretation is multidimensional in that it does not focus on a single issue. 3. Critical Theories Critical theories are theories that deconstruct statutory texts, typically in order to show how particular readings are ideologically based rather than objectively grounded. The aim of critical theories is to analyse the statutory text from the stance that the actual words in the text only provide a starting point for the process of statutory interpretation. By revealing multiple possibilities, this method deconstructs the rule of law itself. - Best answer theory: connects law and morality. Pragmatic theory: multidimensional, look at various different things. Critical Legal Theory: ideological basis of the statute. Statutory Interpretation Courts in Australian jurisdictions are now required by statute to adopt a purposive approach to statutory interpretation. A qualification to the strict application of the common law literal approach was the common law golden rule. The common law purposive approach developed out of the common law mischief rule Common law presumptions are different from the common law literal and purposive approaches to interpretation. Common law presumptions include the presumption that statutes do not operate retrospectively, the presumption that penal statutes are construed narrowly, and the presumption that statutes do not bind the Crown. Section 14A(1) and (3) of the Acts Interpretation Acts 1954 (Qld) says ‘an interpretation that will best achieve the purpose of the Act is to be preferred to any other interpretation’, ‘despite any presumption or rule of interpretation’. Mischief Rule – Heydon’s Case In this case the court stated that the ‘sure and true interpretation of all statutes’ requires the consideration of four matters: (1) The state of the common law before the making of the statute now before the courts; (2) The mischief or defect for which the law prior to the statute failed to provide; (3) The remedy resolved by Parliament to cure the pre-existing mischief or defect; (4) The true reason for the remedy. The Literal Approach – Amalgamated Society of Engineers v Adelaide Steamship Co Ltd “The fundamental rule of interpretation, to which all others are subordinate, is that a statute is to be expounded according to the intent of the Parliament that made it; and that intention has to be found by an examination of the language used in the statute as a whole. The question is, what does the language mean; and when we find what the language means, in its ordinary and natural sense, it is our duty to obey that meaning, even if we think the result to be inconvenient or impolitic or improbable.” If giving the literal meaning to words gave an absurd result, this was too bad. This approach did not give sufficient weight to the object of purpose of the statute. The Golden Rule – The common law golden rule of interpretation developed in the 19 th century in England as a response to any absurd, repugnant or inconsistent construction resulting from a strict application of the literal approach. ‘A qualification to the literal approach’. This approach was used secondary to the literal approach. If using this approach gave an absurd interpretation, the judge would give an interpretation that did make sense. Becke v Smith – Classic explanation of the common law golden rule In the ascertainment of a statute, to adhere to the ordinary meaning of the words used, and to the grammatical construction, unless that is at variance with the intention of the legislature, to be collected from the statute itself, leads to any manifest absurdity or repugnance, in which case the language may be varied or modified, so as to avoid such inconvenience, but no further. The Purposive Approach – This was an extension of the mischief rule. Reaction to the literal approach not placing sufficient importance to the object/purpose of the statute. Common law purposive approach did not involve the use of extrinsic material. Secondly, could only be used if there was some absurdity in the interpretation (problem using literal approach). Note: This is a flow on from the mischief rule. Trying to find the aim of the statute and sort of correct it as such by finding the purpose of the statute. The object or purpose of an Act could be ascertained through analysing the section in question in the context of other sections and the Act as a whole. o The purposive approach did not, therefore, require use of extrinsic material. Kirby P said in Pambula District Hospital v Herriman: The proper approach to the giving of meaning to statutory provisions is to seek to derive that meaning not from a mechanical attempt to find the literal meaning of the words used, as they appear in isolation, but to determine the meaning after consideration of the context of the statutory provisions as a whole. Interpretation in Context – Act must be read as a whole (1) Immediate context (section); (2) Wider context (Act); (3) Contexts relating to other statutes in the common law generally. Reading in context ties in with reading the act as a whole. ‘Presumption that words are used consistently’. This second level refers to reading the Act as a whole. Presumption that words are used consistently There is a presumption that words are used consistently in statutes. If the same word is used in different parts of the statute, there is a presumption that it has the same meaning in the different provisions unless the statute expressly states that this is not so. This presumption also provides that where the same word could have been used but is not, and a different word is used in a different art of the statue, then the court will take the view that Parliament intended a different meaning to attach to each word in the context of each word’s usage in the statute. E.g. o If the word ‘medicine’ is used in some provisions of a statute but the word ‘drug’ is used in other provisions of the same statute. Plain ordinary meaning When considering statutory interpretation in context is that words are given their plam, ordinary meaning unless the statute indicates otherwise. Internal Aids In general, internal aids to statutory interpretation include: dictionary or definition parts in Acts, the long title, headings, schedules and examples, specific rules of statutory interpretation. Noscitur a Sociis (words of similar meaning) – Words take their meaning from the context in which they appear. This idea is different from reading a provision in its context. E.g. s 25 Markets Act 1890 (Vic) if any person sell or expose to sale any said articles or other proisions usually sold in markets in any streets lanes entries or other public passengers or places or other than the places which may be so appointed by the [municipal council]. o The defendant, Richardson, was charged under s25 with the offence of selling butter in a ‘place’ other than a ‘place’ approved by the municipal council. He was selling butter from private premises he owned. Ejusdem Generis (class rule) - specific, specific, general. The meaning of the general words should be interpreted in the context of the two specific words forming a class or genus (must have 2 or more specific words). Where there are two or more specific words in a provision of a statute followed by a general word or words, then the wide meaning of the general word/words is restricted to the same class, if any, constituted by the specific words. Ejusdem generis only operates where the two or more specific words form a class or genus. If no class or genus is formed by the specific words, this internal aid cannot be used to assist with the interpretation of a provision of a statute This aid cannot be used if there is one specific word only followed by a general word or general words. o One specific word cannot form a class or genus for the purposes of the rule Expressio Unius Est Exclusio Alterius (express inclusions/implied exclusions) - the intention of the court is to intentionally include and exclude words. Cannot assume that words that aren’t in there are implied. This aid provides that if one member of a class is mentioned expressly then other members in that class are impliedly excluded. o Where the parliament expressly includes one member of a class there is a reasonable implication that Parliament intended to exclude the other members of that class. o However the rule must be applied with caution. Specific Prevails Over General (generalia specialibus non derogant) - if there are multiple sections of a statute covering the same areas, the specific will override the general. Where one provision in a statute deals generally with a matter and another provision in the same or a different statue deals specifically with the same matter, the specific provision prevails over the general provision. Common Law Presumptions – concerning statutory interpretation The presumption that the common law is not overridden The presumption against interference with the liberty of a citizen The presumption against conferring a right to invade private property The presumption of conformity with international law The presumption that revenue or taxing statutes must be interpreted strictly in a taxpayer’s favour. Legislation does not bind the Crown. At common law there is a presumption in statutory interpretation that statutes do not bind the Crown (Governemnt/Parliament). The Queensland Parliament has, however, given statutory force to this common law presumption in relation to interpretation of Qld statutes through s13 of the Acts Interpretation Act 1954 (Qld). Legislation does not operate extra-territorially there is a common law presumption that Parliaments do not intend to enact legislation which has extraterritorial operation beyond the Parliament’s relevant jurisdiction. There is a common law presumption that statutes do NOT operate retrospectively Penal Provisions are interpreted narrowly. There is a presumption at common law that penal or criminal provisions of a statute are interpreted narrowly in favour of the accused person. There is an important common law presumption that Parliament DOES NOT interfere with fundamental and vested rights of individuals. The Commonwealth Statutory Purposive Approach s 15AA(1) of AIA 1901 (Cth) An interpretation that promotes (not best achieves) the purpose or object is preferred to one that does not promote the purpose or object. Extrinsic material may be used to insist in the interpretation of a provision (s 15AB AIA). Commencement s5 AIA 1. Date of Royal Assent (Cth – this occurs after passed by both house and signed by Governor General) 2. Date of proclamation (Governor General advised by relevant Government Department. Not uncommon for different parts for statute to start at different times. Eg 28th day after Royal Assent). 3. Starting date specified in the Statute (Not uncommon – eg possibly 1 July 2009 as this is the beginning of the new financial year) If nothing is specified in the statute, will automatically start on the 28 th day after Royal Assent unless some contrary intention is evident in the Act. Headings, Marginal Notes, Schedules and Examples (1) The headings of the Parts Divisions and Subdivisions into which any Act is divided shall be deemed to be part of the Act. (2) Every schedule to an Act shall be deemed to form part thereof. (3) No marginal note, footnote or endnote to an Act, and no heading to a section of an Act, shall be taken to be part of the Act. If something is excluded from the statute, can still be used as extrinsic material. Process If interpreting a statute and something does not make sense, you should: (1) Try to determine the plain, ordinary meaning of the words. (2) Try to make sense of the section(s) in the context of other sections. In the order of: immediate context, wider context and the act as a whole. (3) Look at the purpose or object of the statute (extrinsic material). This should be confirmation. (4) Other internal aids. Queensland Statutory Purposive Approach s14A AIA 1954 (Qld). In the interpretation of a provision of an Act, the interpretation that will best achieve the purpose of the Act is to be preferred to any other interpretation. This section applies to an Act passed after 30 June 1991 despite any presumption or rule of interpretation. Consideration may be given to extrinsic material if (1) the provision is ambiguous or obscure; (2) the ordinary meaning leads to an absurd or unreasonable result; or (3) to confirm the interpretation conveyed by the ordinary meaning. Commencement Acts Interpretation Act 1954 (Qld). 15A: An Act commences on the date of assent except so far as the Act otherwise expressly provides. 15B: If an Act or a provision of an Act commences on a day, it commences at the beginning of the day. 15D: If an Act or provisions of an Act is or are expressed to commence on a day to be fixed by proclamation or other instrument (a) a single day or time may be fixed; or (b) different days or times may be fixed for different provisions. 15DA If a postponed law has not commenced within 1 year of the assent day, it automatically commences on the next day. However, within 1 year of the assent day, a regulation may extend the period before commencement under subsection (2) to not more than 2 years of the assent day. Terms and References 32B In an Act, words indicating a gender include each other gender. 32CA Meaning of may and must etc. 32D In an Act, a reference to a person generally includes a reference to a corporation as well as an individual. Headings, Marginal Notes, Schedules and Examples 14 (1) A heading to a chapter, part, division or subdivision of an Act is part of the Act; (2) a heading to a section, subsection or another provision of an Act is part of the Act if the Act is enacted after 30 June 1991; (3) an example in an Act of the operation of a provision of the Act is part of the Act; (4) a note in an Act to the Act or to a provision of the Act, as opposed to a footnote, an editor’s note or an endnote, is part of the Act. 14D Examples Reckoning of Time, Age and Measurement of Distance Process Issue Interpretation (plain, ordinary meaning) Reading in context Analysis Statutory Purposive Approach Extrinsic/Intrinsic Material Conclusion Ratio Decidendi in a Statutory Context Process 1. Determine if act has commenced. 2. If this is not evident, state this and state that you are assuming it to be in force. 3. State the issue(s) 4. Interpretation in context (a) the act must be read as a whole (b) effect must be given to the whole act (c) keep in mind the presumption that words are used consistently (d) ascertain the plain, ordinary meaning of the sections in issue. 5. Internal aids to statutory interpretation (a) Keep in mind common law rules: words of similar meaning, class rule, express inclusions and implied exclusions, specific prevails over general. (b) Be aware of the jurisdiction concerning headings, marginal notes, schedules and examples. 6. Statutory Purposive Approach 7. Reasoning (possibility of competing arguments) 8. After careful consideration, state a conclusion. Peldan v Anderson ‘Effect Must be Given to the Whole Act’ (Tute questions for this case: the interpretation of the meaning of a section by a judge is the ratio). Joint unanimous judgment. Appealed from Kiefel J. Joint majority agreed with decision but not reasoning. Case dealt with Commonwealth Bankruptcy Act. Mrs Pinna died. Both owned matrimonial home. Owned it as joint tenants (like owning it as one – not divisible). If one dies, the entire property will go to the other tenant(s). If it was tenants in common – own a part of their property in their own right and can sell it off. Mr Pinna changed the format from joint tenancy to tenants in common. She died and he went into bankruptcy. Sequestration Order - Bankrupt persons property is taken out of their control. Home worth $600 000. Could get a hold of his $300k. Could the trustee get the wife’s $300k? Section in the act: transfer property, knowing they are heading into bankruptcy, the transfer is of no effect. Changing the status of the house – made it void. Looking at s121 (a) and (b) – Do not make sense. In the case there is a heading ‘Acceptable Construction’ where the HC rewrites the section – this is the ratio. They did this because the two paragraphs make no sense. A court faced with a problem, must make an interpretation. Thus, they had to rewrite some of the section. Kiamani v Captain Cook Cruises Accident on captain cook cruise ship in Sydney harbour. Sued CCC for injury. State of NSW controls what goes on within the harbour. Commonwealth parliament cannot pass a law directing how ferries operate within Sydney harbour. Defendant relied upon a defence to limit liability – merchant shipping act 1894 (imp) – before Australia became a federation therefore applied to the colonies. Section 104 Commonwealth Navigation Amendment Act (1980s) – amended this act. Original act concerned with coastal shipping. Amendment repealed part of original act – argument that the commonwealth didn’t have the power to do it therefore the section is void. Justice Brennan: Law is valid. Although not within constitutional power, at the time it was passed, the state of NSW did not have authority in respect of this particular issue. At the time, for NSW to amend the act, they had to get permission from the British government. Section 9-1 did not restrict what the commonwealth was doing because it was not under state jurisdiction. Merchant shipping act of 1894 applied to NSW therefore it was part of ‘the’ law of Australia therefore the commonwealth can pass the amendment act. If the state of NSW had received permission to change the act, it would have been under state power and Section 9-1 would have caught out the commonwealth’s amendment act. Carlill v Carbolic Smoke Ball Company Offer of 100lb reward if take smoke balls for two weeks and contract influenza (ad in newspaper). 1000lb deposit in bank to show intention. Making an offer to the world at large and whether or not an offer can be made to the world at large. 3 judges in majority (found for Mrs Carlill). Judges found it was not an advertising gimmick because of the 1000lb deposit. Shows intention to make contract. Also, court found it was not ‘vague’ as you can make an offer to world at large. Notification (1st) issue: Does proper acceptance of an offer to the world at large require notification of that acceptance? 2nd issue: Does performance of the specified act constitute consideration? “The person who makes the offer shrews by his language and from the nature of the transaction that he does not expect and does not require notice of the acceptance from notice of the performance.” Rule of contract law – acceptance must be communicated. Judge found – an offer to the world at large, you notify that you have gone through with the specified act (notice of performance). (Ratio I think) Justice found: performance of the specified act does constitute consideration (ratio). 2 pieces of ratio: 1 for the notification and 1 for the consideration. 2 of 3 judges say performance does not need to be notified, just accepted through performance. Therefore the ratio for the whole case is not needing to notify performance. Linley J’s view is therefore said to be obiter dictum (in needing to notify). Overall: “In an offer to the world at large which does not expressly or impliedly require notification of the performance, performance of specified conditions constitutes acceptance of the offer and consideration for the promise.” Esanda Finance Corporation Ltd v Peat Marwick Hungerfords EXCEL engaged auditors PMH to have ESANDA audited, to get tax information for the financial year. The audit was for statutory compliance. ESANDA gave EXCEL a loan and they subsequently liquidated. ESANDA cannot sue PMH for breach of contract, as there is no contract between them. Does PMH owe ESANDA a duty of care for a bad job? Therefore negligence? Brennan CJ: Where a plaintiff suffers pure economic loss by entering into a transaction in reliance on a statement made or advice given by a defendant, the plaintiff must allege and prove: 1. That the defendant knew or ought reasonably to have known that the information or advice would be communicated to the plaintiff, either individually or as a member of an identified class; 2. That the information or advice would be so communicated for a purpose that would be very likely to lead the plaintiff to enter into a transaction of the kind that the plaintiff does enter; an 3. That it would be very likely that the plaintiff would enter into such a transaction in reliance on the information or advice and thereby risk the incurring of economic loss if the statement should be untrue or the advice should be unsound. If any of these points do not exist, the plaintiff fails to prove the defendant owes a duty of care and is not liable for negligence. This is Brennan CJ’s ratio. Hawkins v Clayton and Others Lady wrote a will. Engaged solicitors. Died in 1975. Solicitors did not find any beneficiaries as they were retaining will. 5 or 6 years later – found Mr Hawkins (beneficiary). Main property (house) deteriorated and lost value. Mr Hawkins wife brought action as he died before case was heard. Question: whether or not a duty of care was owed by the solicitors to advise Mr Hawkins of the contents of the will? Is this negligence? 5 judges. Dissent: Mason CJ and Wilson J (joint dissenting judgment saying no duty of care was owed) Majority: Brennan J. Deane J. Gaudron J. (3 separate judgments concluding that a duty of care was owed by solicitors). Mason and Wilson – read Deane J and agreed except for one bit – fundamental to resolution of the case. The consequences of this will be far reaching – this will face every solicitor in custody of a will (note this is pure legal policy – coming to an opposite conclusion). “The obligation that thus arises could extend over many years and prove onerous indeed. In our view, these matters are neither irrelevant nor fanciful. On the contrary, they accurately test the correctness of determining liability in the present case on a finding that the respondents assumed custody of the testatrix’s testamentary intentions.” Brennan – Duty of care arises because there is a duty of disclosure from having custody of the will. Deane – duty of care existed because of the proximity in view of an assumption of responsibility and reliance. Gaudron – duty of care arises because of the reasonable expectation of the existence of a legal right (to the house). Reasoning of majority judges is different therefore this case does not seem to have a discernible ratio. If we apply the ‘not reasonably distinguishable test’ – a future lower court would conclude that if a firm of solicitors had custody of a will, they should chase up an intended beneficiary to advise them of the contents of the will. Amos v Brisbane City Council 3 judges – 3 in majority (joint decision – all agreeing with Muir J therefore his ratio is the ratio of the case) Person tripped on a footpath. Sued – assessed damages of $3000 but still found against the applicant on liability and dismissed the claim. The judge assessed damages based on the possibility of an appeal (trial judge assesses the quantum of damages). Personal Injuries Proceedings Act 2002 (Qld) – PIPA Act. Comes down to interpretation of s56 of the act. Legal issue: under s56 of the PIPA Act, does the court have power to award costs where the claim is under $30000 and the plaintiff is unsuccessful. “Subsections (2) and (3) of s 56 prescribe the costs orders to be made, in stated circumstances, by reference to the relationship which the damages award bears on mandatory final offers. Subsections (4) and (5) impose limitations on the power to order costs in specified circumstances. Subsection (6) gives a court power to relieve a party from the consequences of the application of subsections (2) and (3) in circumstances which the subsection stipulates.” The context of the words used and the purpose of the statutory provisions must be borne in mind: ‘The primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute. The meaning of the provision must be determined “by reference to the language of the instrument viewed as a whole”. In Commissioner for Railways (NSW) v Agalianos, Dixon CJ pointed out that “the context, the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning than the logic with which it is constructed”. Thus, the process of construction must always begin by examining the context of the provision that is being construed.’ Ratio: An award of damages in so far as courts are concerned, is an order of the court in favour of a successful plaintiff ordering the defendant to pay the sum determined by the court to be the damages for the wrong suffered by the plaintiff. The words of the subsection are quite incapable of accommodating an order dismissing a proceeding, with or without an assessment of damages to assist in the final disposition of the matter by an appellate court. Muir J comes to the conclusion in PG 17. He then checked the purposive approach with extrinsic material and it did not make any difference. He came to the conclusion through interpretation in context. King v Parsons Employed by postal corporation – on motorbike, swerved, missed car, missed tree, crashed. Accident caused by negligence on behalf of Suncorp Metway. Issue is whether the CLA applies to the circumstances. S5 shows there are exclusions in relation to employment – should be left to the Workers Comp Regime. Suncorp wanted CLA to apply, plaintiff did not (more damages). Judge says all hinges on s5(b). PG 8: to have a work related injury, the injury must fall under Workers’ Compensation and Rehabilitation Act 2003 (Qld). Worker, King, fell under a commonwealth thing, therefore not a ‘worker’ under WCRA. PG 9: “In my respectful opinion, the learned primary judge’s decision was correct for the second reason he gave … [I]n summary, I consider that, because the fact of Mr King’s employment by APC was relevant to Mr King’s claim for damages against the respondents, it could be said that Mr King’s claim was one for damages for injury suffered as a result of breach of duty where Mr King’s employment was a significant contributing factor to the injury the subject of the claim. On that basis, s 5(b) of the CLA would operate to exclude Mr King’s claim from the scope of the CLA.” Then says, to fall within 5(b), had to fall within QLD Act. King was not an injured worker for the purposes of the QLD Act therefore did not apply. Therefore circumstances were not excluded under 5(b) of the CLA, therefore the CLA applies and receives those level of damages – capped the damages payable to King. Sample Answer: The ratio of Keane JA can be found in para 9. This ratio can be stated as follows: Section 5(b) of the CLA operates to exclude a claim from the scope of the CLA where the claim is one for damages for injury suffered as a result of breach of duty where employment as recognized under the Workers’ Compensation and Rehabilitation Act of Queensland was a significant contributing factor to the injury the subject of the claim. This is the ratio because, in the terms of MacCormick, it is the ruling given by Keane JA which is sufficient to settle the point of law put in dispute by King and Suncorp Metway (that is, the operation of s 5(b)). This ratio was necessary to justify Keane JA’s decision in the case. For the reasons stated above, this is then the ratio of the case. This is an example of the statement of the ratio, applies to the circumstances and the plaintiff fails (twist).