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
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
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
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
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
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
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
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
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
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
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
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
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
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
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 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
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
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
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
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
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
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
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
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
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
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
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
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
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,
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
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
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
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
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
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
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
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
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
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
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).
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.
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.
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
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.
Acts Interpretation Act 1954 (Qld).
An Act commences on the date of assent except so far as the Act otherwise
expressly provides.
If an Act or a provision of an Act commences on a day, it commences at the
beginning of the day.
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
In an Act, words indicating a gender include each other gender.
32CA Meaning of may and must etc.
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
(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.
Reckoning of Time, Age and Measurement of Distance
Interpretation (plain, ordinary meaning)
Reading in context
Statutory Purposive Approach
Extrinsic/Intrinsic Material
Ratio Decidendi in a Statutory Context
1. Determine if act has commenced.
2. If this is not evident, state this and state that you are assuming it to be in
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
(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
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
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
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).

notes - The University of Queensland Law Society