1. Fundamentals of Law (BL502) Week 2 Part 1 Court Judgements

2. 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

3. 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

4. Fundamentals of Law (BL502) Precedent (Cont.)  Persuasiveness depends on  quality of decision  jurisdiction of the court that gave the decision

5. 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

6. 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

7. 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

8. 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

9. 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.

10. 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”

11. 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

12. 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

13. 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

14. Fundamentals of Law (BL502) Week 2 Part 2 Legislation

15. 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

16. 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

17. Fundamentals of Law (BL502) Form and Structure (Cont.)  Definitions Sections  Headings  Allows easy reference and research

18. Fundamentals of Law (BL502) Week 2 Part 3 Statutory Interpretation

19. 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

20. 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

21. 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.

22. 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?

23. 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

24. 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

25. 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

26. 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

27. 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

28. Fundamentals of Law (BL502) Principles of Interpretation (Cont.)  Statutes that should be construed narrowly  Penal statutes  Taxation Acts  Acts that change common law

29. 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