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