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legal-method-semester-1-2009

VIEWS: 9 PAGES: 30

									Development of C.L in England

Pre-Norman England
Customary law in England
     Enforced by recognition and general acceptance
     Anglo- Saxons, Celts, Jutes: very different customary laws co-existed
     Dooms (law) of Alfred, 9th C-unification of Anglo-saxons necessary to ensure protection, laws started to be
       written down

Norman England
William the Conqueror 1066
     Intro. Continental feudalism
            o Body of land law that can be applied consistently to disputes concerning land
     Intro strong central government
            o Centralized system for the administration of justice
     Latin official language
            o Develop. Legal language
            o Anglo-Saxon, Norman-French still used, necessary flexibility within legal terminology
     Separate ecclesiastical court-canon law
     Feudal tenure-holding of land by a tenant
            o Basis of real property law
            o System of protection
            o Economic basis

Henry II      1154-89
    Centralization of administration of justice
          o Institutional structure for royal judges
    Itinerant judges
          o General eyre, royal officials sent out to investigate conduct of royal officials
    Trial by jury
    Central courts
          o Curia regis (King’s court)

WRIT System
    Writ: command from sovereign directing person to d something or refrain from doing something
    C.L action could not commence without a writ
    Register of writs: basis for emergence of sep body of law-equity

Magna Carta
Rule of law’s origins
    1. No person charged except through process of law
    2. Crown subject to law

Henry III 13C
    Emergence of Parliament
            o Model parliament-Lords and Commoners
    Provisions of Oxford 1258
           o   24 members-half King, half baron council
           o   Prevented Chancellor from issuing any more C.L writs to cover new circumstances
           o   Therefore, dissatisfied people petitioned for relief      ‘Court of Chancery’ 15th C
           o   Chancellor’s jurisdiction excercised on basis of conscience-Equity
           o   Equity-supplementary jurisdiction to C.L, to provide adequate remedy
           o   Separate courts of equity, can force contracts whereas C.L can’t

Common Law < Statutes < Equity

Glorious Revolution of 1688
     Basis for constitutional monarchy
     Changed balance of power between Crown and Parliament



Reception of English Law in Autralia

Cook’s instructions
    Observe transit of Venus in Tahiti
    Find/explore coastline of NZ and eastern coastline of Australia to enable Britain to send convicts to a new
        penal colony

International Law in re. to colonization
     New/uninhabited: governed by laws of England
     Conquered: has right to govern people, laws and customs hold in place unless changed by conquering nation
     Inhabited: British law applies to British citizens, customary law still apply unless changed, change made in
        accordance with consent of Britain

Terra Nullis
     ‘uninhabited land’
     To be inhabited, land had to be cultivated
     De Vattel’s Law: wandering tribes can’t own land

NSW-Penal Colony
    Blackstone’s proviso “carry so much of Eng law as applicable to their situation”
                                                                      (confirmed in Cooper v Stuart 1889)
    Paramount: aimed specifically at 1< colonies    (Imp)
    Non-paramount: general application in England (domestic)
    Arrival of first fleet brought:
          o Rules of C.L
          o Blackstone’s proviso
          o Non-paramount statues
    Equity was later established in supreme courts
          o Van Diemen’s Land 10 May 1824
          o NSW                 17 May 1824

Section 24 Australian Courts Act 1828 (Imp)
     Clarified laws of NSW
       Non-paramount statutes passed after 25 July 1828 DID NOT APPLY in NSW
       Paramount statutes passed could still apply
       Duty of supreme court to determine whether law/statues in force after 25 July 1828 in England were
        applicable to conditions of colonies
       Dormant C.L: Gibbs J
            o C.L can lay dormant until conditions of new colony change so that it becomes applicable to
                conditions of new colony
            o Once it is part of law, it remains until amended by legislation

Colonial Law Validity Act 1865 (Imp)
     Colonial law void if repugnant to Act of British Parliament
     NSW statute contradicts Paramount statues then absolutely void
     NSW statue contravenes non-paramount statute then acceptable
     Local courts determine repugnancy but could be appealed in privy court for final decision
     Aim: develop a body of law conforming to British notions of justice but responsive to needs of colony
            o Phillips v Eyre

Federation in Australia
Mid 1800’s to now, gradual movement away from Great Britain
    Growing concern over French and German activities
    International trade concerns with exports/imports
    Commerce between the colonies

       Federation 1 Jan 1901

       Commonwealth of Australia constitution act 1900 (uk)
           o had to be approved by Britain
           o provide constitution for Aust
           o NSW, Vic, SA, QLD + Tasmania

Constitutional Independence

Treat of Versailles 1919
     First political treaty signed that recognized Australia as a Cth

Balfour Declaration 1926
     Britain and its Dominions were equal in status
     No longer under authority of British government
     Still under authority of crown

Statute of Westminister Adoption Act 1942 (Cth)
     3 Sep 1939 British declared war on Germany, Statute of Westminister Act (UK)
     To remove doubts as to validity of certain Cth legislation
     To remove delays
     Adopt sections 2-6 of Westminister Act 1931 (UK)
Section 2
      Abolished the Colonial Laws Validity Act
      Didn’t apply to any statue passed in Australia after 3 Sep 1939
      Got rid of issue of repugnancy

Section 9.1
     Cth Parliament can only pass a statue within its expressed/implied constitutional power, can’t impose power
        on the sate
     E.g criminal law in a state is not a constitutional power
     Concurrent power: Cth + State can both pass statutes

Australia Act 1986, effective 3 March
    Section 1:
            o “No Act of the Parliament of the UK passed after commencement of this act shall extend or be
                deemed to extend to Cth, State or Territory as part of the law”
            o After the 3 March 1986, British laws had no effect in Australia
    Section 3:
            o Colonial Laws Validity Act shall not apply after this act
            o Repugnancy made void. State can appeal or amend any Act a slong as its part of the law of State

Political Institutions in Australia

Commonwealth Constitution
The Parliament
Part 1 General

Section 1
     Federal parliament consists of: Queen, House of Reps, Senate
Section 2
     Governor General appointed to be Queen’s representative in he Cth of Australia
     S5:     power to hold sessions of Parliament as sees fit
          o Discontinue parliament and dissolve house of reps

Part 2
Senate
     S7: elected by proportional representation
          o 76 senators: 12 States + 2 mainland Territories
     Powers: co-equal to house of Reps. Except in relation to Bills concerning Cth expenditure
     S53: laws appropriating revenue or moneys or imposing taxation shall not originate in the Senate
     Role: intended to rep. the states, examines proposed laws from different standing point

Part 3
House of Representatives
     S24: composed of member directly chosen by the people, twice number of senators, 150 atm
     S28: continue up to 3 years or sooner dissolved by Gov G
     Role: make laws-start as bill
           o Determined the government-political party with most members becomes governing party
o   Scrutinizes govt administration
o   Represents the people
o   Controls govt expenditure
Judiciary and the Courts

9 separate court systems in Australia, each have own hierarchy with appeal procedures
                 1 high court
                 6 state court system
                 2 territory court systems
Hierarchy determines precedent, precedent is binding downwards, lower courts have to follow ratio decidendi of
higher courts

High Court
    1. Original Jurisdiction
           o Matters brought straight to high court
           o Matters concerning constitution
           o State v state
           o State v federal
    2. Appellant Jurisdiction
           o Matters brought by appeal from lower courts

Hierarchy in QLD:
     Magistrates court
                    Magistrate, no jury
                    Summary offences/minor criminal offences         i.e.shoplifting
                    Civil cases where damages sought $50 000 >
     District court
                    Judge, jury
                    Serious criminal offenders               i.e armed robbery, rape
                    Civil cases more than $50 000- $250 000 in dispute
     Supreme Court
                    Judge, jury
                    Serious criminal cases                   i.e. murder
                    Civil matters where more than $250 000 in dispute
     QLD Court of Appeal            (appeal division of High Court)
                    3/5 Supreme court judges
     High Court     (Canberra)

Judicial Independence
“Declarations of Principles on Judicial Independence 1997”
Decisions of judiciary should be impartial and not influenced by government, private or political interests. Secured
by giving judges:
     Long tenure: term of office lasts for holder’s lifetime or until statutory age of retirement (70yrs)
                      Insulate from external pressure, can’t be threatened with unemployment
     Not easily removable
                      parliament can withdraw commission of judge only if mentally incapable or commits a
                         criminal offence
     Judges selected by government on recommendations made by Attorney General
Judicial Power
Invested in:            High Court
                        Federal courts that Parliament creates
                        Other courts appointed by Governor Geneneral
       Power to enforce awards by penalties            powers J
       Enforceable decisions made by an authority constituted by law           Barton J
       Power of execution to enforce
       Power to impose
       Power to enforce judgment
       No agreement to go to court
       Judicial power appointed through constitution

Non-Judicial Power
    Proceedings without compulsive force             Barton J
    Both parties agree to go sort out dispute
    Arbitration court-set up under own statue
    Does not exist to settle existing rights, empowered to fix by award--->legislative powers
    Can create right



Legal Reasoning

       Process through which a judge justifies the conclusions reached in his/her judgment that disposes of the
        legal dispute
       Inductive: specific -general, indicate support for conclusion, not entail it
       Deductive: general -specific, premises lead to conclusion
       Reasoning by analogy-looks at prev. ruling and decides

Spectrum of legal reasoning
   1. Principle based judicial method
   2. Coherence based incrementalism
   3. Policy based incrementalism
   4. Policy based judicial method

Propositional Logic
    deductive reasoning
    propositions in form of a syllogism
    only conclusion valid if general + specific propositions are valid

Prospective Overruling
     court judges decide law should change for future cases and not just present cases
     high court says not acceptable in Australia
     occurs when courts make a decision that existing law should change, only applied to future cases
     practical difficulties
                    discrimination
                    arbitrary element into law
       outside constitutional limits of judicial function

D’orta Ekenaike v Victoria Legal Aid
     issue of advocate’s immunity: client can’t sue solicitor for negligence in relation to preparing or presenting a
        case in court
     Res judicata      (action esptoppel)
            o Once issue gets to highest court of appeal, can’t be brought up again
            o Prevents relitigation of same matter
            o E.e double jeopardy: can’t be tries twice for same matter
     Issue estoppels: same issue being decided can’t be brought up again
            o Once a def. is acquitted, can’t be brought before court again for same issue
     Court has inherent power to prevent abuse of process
            o E.g right to a fair hearing
            o Safeguard accused person from oppression or prejudice

Advocate’s immunity retained (Giannarelli v Wraith)
‘at C.L an advocate can’t be sued by his/her client for negligence in the conduct of a case in court or work out if court
which leads to decision affecting conduct of case’
      Otherwise would conflict with lawyer’s duty to the court, threatened to conform to lies, can’t knowingly
         support a lie-discourage others from the profession
      Res judicata and issue estoppels not sufficient as matter brought before court is different to negligence

       Formalism: activity which rigorously follows system of rules prev. defined
            o Facts conformed to fit the law
            o Thomas J “too rigid, sign of weakness”
       Activists: big leap in new directions
       Incrementalism: small steps to rep. a changing society and dynamics of law
       Judicial activism: judicial discretion and policy arguments emphasized over legal rules
       Brennan J:’judges make law’ V Law should be changed by parliament, not judges




Ratio Decidendi and Obiter Dictum

MacCormick’s model of Ratio Decidendi
    it is the ruling, expressly or impliedly, goven by a judge which is sufficient to settle in point of law out in issue
      by the parties arguments in a case
       Legal reasoning that forms the basis of decision of the case
       Concerned with ruling of judge rather than rule of law (classical)
       Can only come from majority judgments


       separate ratio for each point of law put into dispute, i.e. a case can have many ratios(plural: rationes)
       ratio on a point of law should be no wider/narrower than law, it is sufficient to settle dispute
       doctrine of precedent: ratio is binding on lower courts, courts give certain weight to prev. cases
      coherence between general principles and its specifities
      alike cases should be treated alike
      not every case has a ratio/Ruling of judge may/may not amount to a rule of law
      MacCormick’s approach alleviates need to consider generality of a ratio, i,e, reasoning reflects
       generalitynarrow reasoning, narrow ratio

Ratio v Rule

      Rule of law follows from ratio
      Existing rule of law can be modified through rationes of judgment

Ratio V Principle

      Principle: general norm from which specific rules are developed
      E.g. donoghue v Stevenson, Lord Atkins neighbour principle, from that derived ratio
      Ratio is a specific rule rather than a principle

Principle V Policy

      Principle: applied to ensure coherence in area o flaw i.e. Neighbour principle
      Policy:goal-orientated, takes into account external considerations in legal reasoning process



Precedent theory

Distinguished from doctrine of precedent

      Involves an analysis of different approaches to ratio decidendi and obiter dictum

Obiter Dictum

      Any legal rule or principle included in a judgment which does not constitute part of ratio
      And general observations made by the judge
      Dissenting judgements



Always ask.

“what is the ruling in the judgment that is the basis for disposing of each disputed legal issue between
the parties?”

The Not Reasonably Distinguishable Test

If circumstance not reasonably distinguishable then must follow precedent

If reasonably distinguishable, then precedent does not apply

Case Analysis
    1.   Identify joint and ind. Judgments
    2.   Which judgments in majority and which in dissent
    3.   Ascertain material factswho are the parties, facts
    4.   Analyse legal issues in dispute
    5.   Analyse majority decisions in appellant to ascertain ratio
    6.   Analyse dissenting judgments
    7.   Determine whether there is a ratio
    8.   Whether sufficient commonality between rulings of those in majority

Donoghue v Stevenson

Friend bought ginger beer and gave it to Donoghue

No contract between shop and donoghue, sued manufacturer

3 in majorityduty of care was owed

Lord atkins: one legal issue put into disputewhether manufacture owes a duty of care

Neighbour principle: his general conception of what constitutes duty of care in case of negligence

        Derived ratio from his principle
        Settled legal issue
        Development of rule



2 in dissent

Carlill v Carbolic Smoke Ball Co.

        Carbolic smoke made an offer to world at large, ‘ 100 pound reward if got sick using their inhaling
         treatment’
        Mrs Carlill used smokeballs 3X day for 2 weeks, got influenza
        Under contract, acceptance must be communicated
        Contract requires: offer + acceptance + intention to create legal relations + consideration
         (inconvenience/benefit)

2 issues: hence 2 rationes

        Notification issue: does proper acceptance of offer to world at large require proper notification of
         that offer
        Consideration: does performance of the specified act constitute consideration

3 judges: all in majority for Pl.

Lindley LJ:

        Under an offer to the world you have to specify that you have gone through the performance of the
         act
Bowen LJ:

      In using it as recommended this amount to consideration
Week 7                  Following and Distinguishing Precedent

A doctrine of precedent
     concerned with determining whether a court is bound to follow a decision made by court in the past
     refers to binding nature within same/different court hierarchy
A theory of precedent
     examines actual concept of ratio decidendi and obiter dictum

Following precedent is not a doctrine or rule of law, IT IS PRACTICE

Adjudication: process of what a judge is doing
Historically, 3 conceptions of precedent:
    1. Declaratory theory of adjudication
   1. Blackstone: CL was out there, judges declared what it is
   2. CL amounted to evidence of the law rather than constituting the law itself
   3. Judges did not make/create the law, rather declared what it is
   4. Postema: law now exists and has its authority by virtue of general use and acceptance
   5. Valued as precedent as judge did what was consistent with legal reasoning
                     o Past cases provide e.g of practical judicial reasoning
                     o Body of cases provide authoritative context of experience
Did not view particular past decisions as binding, approach did accept authority of past decisions as a whole in the
context of custom and experience of the courts

    2. Positivist Approach
     CL was not discovered, but created
     Provisions of statues and decisions of the courts constitute the CL
     Judges made the law, therefore it is precedent

    3. Conventionalist conception of precedent (combination of previous 2)

Rationalists:
     Underlying principles of law
     Law reports contained evidence of these principles, judge’s decision was evidence of the law
     Statutes did constitute actual law

Formalists:
    Judgments in law reports did constitute the law (positivist)
    In novel cases use reason by analogy, instrumentalist approach

End of 18th century: stare decisis:
Court required to follow precedent as relevant and applicable to circumstances irrespective of the court
(no court hierarchy)

19th century          court hierarchy starting to develop
     House of Lords bound by own decisions
     Court of appeal establish below
     System of precedent was formed, lower courts bound in hierarchy
3 Rules of Precedent
   1. All courts must consider relevant case law
   2. Lower courts must follow decision of courts above them in the same hierarchy
                   o Between different court hierarchies it is only persuasive
   3. Appellate courts are generally bound by their own decisions
                   o Matter of practice, not a rule of law
                   o High court states CL in Australia
                   o Judiciary act 1903 set up HC
                   o S23: when divided in opinion
                           a) Decision in CoA still stands even if divided
                           b) If there’s an even number, CJ (most senior judge) ruling stands

‘Avoiding’ precedent
     Distinguish a past decision on the basis of a difference on the facts of precedent and the facts of matter uner
        consideration
     After considered analysis of ratio decidendi of past decision in context of court hierarchy,
     does relevant practice of following precedent require application of rule from previous decision to be
        applied to circumstances of present appeal?
     Is ratio applicable to facts of this case?

Per Incuriam (wrong in law)
Decision made through ;want of care’
    1. Court has overlooked relevant case authority
    2. Court has overlooked relevant statutory provision
    3. Court clearly made an error
Involves some error by a previous court
Week 8                   Fundamental Legislative Principals; theories of statutory interpretation

Primary Legislation
     Acts of parliament
     Statutory interpretation is very important
     Office of parliamentary counsel is responsible for drafting legislation in consultation with relevant
       government agency
     Law set out in legislation
     E.g Civil Liability Act-statutory modification of law in negligence, ratio of statutes is judge interpretation
       heading towards identification of ratio, that reasoning process

Delegated Legislation
     Parliament delegates to a party/minister to look at details
     Often delegated as task needs assistance of a delegate e.g highly technical, need expert in field
     Parliament can devote more time to essential principles in legislation
     Allows delegated authority can reform, doesn’t have to go back to parliament, provides flexibility
     Contains detail, regulations
The fundamental difference between CL and statute law is that statute law is policy based upon policies that elected
governments implement
       Explanatory memorandum: explains reasons behind the statute

Legislative Process

Prior to sitting of Cth Parliament
    1. Ministers put a bid to the prime minister (bid-request that a proposed bill be added to legislation)
    2. Many sources of policy development: e.g. electoral mandates, proposals from ministerial council, report etc
    3. Proposed bill must have an appropriate level of approval
Types of Bills:
     Portfolio bills include minor amendments to legislation
     Separate bills for major new policy approvals, sensitive issues, tax, customs etc
     Government initiated bills
     Private Members’ Bill

Drafting Instructions
Understand actual nature of proposed bill
     Parliamentary drafting: have to put policy from government into statute
     Drafted in general principles (black-letter provisions)
     Need to have specifics for people to follow, i.e public services act

First Reading: Bill introduced into Parliament
Second Reading:
             Key policy objective given by minister
             Gets to point of key policy objective
             Explanatory memorandum accompanies Bill (not act), provides explanation of individual clauses and
                 any financial impact
Debate on bill adjourned and added to business agenda.
Fundamental Legislative Principals

Qld only state that has an act that deals with statutes because:
    1. Unicameral: only a lower house so easier to get legislation through, need an act to ensure scrutiny is not lost
    2. Fitzgerald Inquiry: recommended estb of criminal justice commission. Independent office of Parliamentary
        Counsel in Qld.

Legislation v Administrative
     Legislative:
                     involves general rules of future application, statutes
                     Determines context of rules of general
     Administrative:
                     application of rules to particular circumstances, regulation
                     apply rules to a particular case

Cth Legislation Act
     Covers delegation that may be of more legislative character, provides additional safeguards

Henry VIII Clause
    Section in a statute that allows a statute to be amended by legislation
    Allows others than parliament to change the statute
    QLD Legislative Standards Act 1992 prohibits these clauses in QLD



Theories of statutory interpretation

Statutory Interpretation: process by which courts determine the meaning of statutory provision for the purpose of
applying it to the situation before them
     find the meaning of a particular ambiguous/uncertain/change with time word or section
     Process of interpreting and applying legislation
     Judges/lawyers have many approaches to SI theories, most are practical

Kirby J: development of CL influenced by statute which is influenced by government policy, will impact judicial
method

       In Australia, one CL. However statutory modifications are state based therefore CL modified to different
        extent in states by statutes, starting to change
Relationship between CL and statute law must be seen as the relationship between TWO developing and moving
bodies of law

Textualist Theories           (most restrictive)
    Emphasize actual meaning of words in text of statutory provisions rather than intention of Parliament
    Interpretation can’t change over time
    Soft plain meaning: plain meaning within historical context

Intentionist Theories         (next restrictive)
     focus on intention of parliament
       objective intention, why it was introduced
       ‘We are seeking the meaning of the words which Parliament used’          p333
       Literalist: intention found through examinging the Act as a whole, language says in ordinary meaning,
       imaginative reconstruction: reconstructs reasons for enactment of the statute
            o (Similar to Mischief rule-what was problem with the rule, a fault/effect in the law?)
            o usually adopted when literal interpretation resulted in ambiguity
            o re Wakim, cross vesting schemes

Purposive Interpretation Theory                  (less restrictive)
      emphasizes importance of the object or purpose of the statute
      not based only on purpose/object of statute though
      this is the approach specified various Interpretation Acts in Australia, required by law in QLD and Cth
             o S15AA Acts Interpretation Act 1901 (Cth)
             o S14 A Acts Interpretation Act 1954 (Qld)
3 interpretive principles
    1. purposive interpretation: purposive and not a literal approach, a statutory requirement, interpretation is
       preferred to promote purpose of the act
    2. contextual interpretation: word looked at in context, sections looked at in context of whole act
    3. access to extrinsic materials: explanatory memorandum, 2nd reading speech etc

Dynamic Theories                               (least restrictive)
    Cover a variety of approaches from a normative perspective i.e. what ‘ought to be’ over a period of time
    Best Answer theory: interconnect morality and the law
    Pragmatic: use many approaches
    Critical: deconstructs text to show ideological values
    Subjective nature, least favoured
Week 10                 Statutory interpretation and Commonwealth Legislation
(no wk 9 due to public holiday)

Different statutory interpretation when analyzing Cth and QLD statute
Currently, statutory requirement in jurisdictions enforce the purposive approachemphasize importance of
object/purpose of statute. Cth 1981

Historically, developed at CL:
1980s: view that judges were statutes too narrowly, need to develop a way of statutory interpretation
                                   o Literal approach (strict application of this is know as golden rule)
                                   o Purposive approach        (modern form of mischief rule)



Mischief Rule (16th C)
Requires 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

Historical significance as influences current method
Statutes were created then to correct defects in the CL, now days statutes are passed which have no impact on CL

Literal Approach         (17th C)
     words of statute read in context
     if ambiguous, words given natural and ordinary sense
     statute read as a whole
     Problem: giving literal meaning to words in regard to statute as a whole can result in absurd results, which
         was just too bad

Golden Rule Approach/qualification to literal approach        (19th C)
    Applied only after literal approach has been taken, to work out absurd result and give an interpretation
       which is not absurd
    Trying to get rid of absurd consequences

Purposive Approach            (1970s)
    Cater for literal approach inability to place significance on intent/purpose of parliament
    Follows on from mischief rule, only used when absurd outcome was reached
    At CL, did not use extrinsic materials as analysed section in context of other sections and Act as a whole

Interpretation in context
3 levels on interpretation

    1. Immediate context of provision/statute, other provisions in relation
    2. Wider context: statute in relation to Act as a whole. Act must be read as a whole (Pelden v Anderson)
    3. Even wider context: use other statutes and CL to help interpret
Ratio of statute: explanation of the meaning/interpretation of the meaning of the section
     Presume words are used consistently; interpret same word in same way throughout the statute
     Words should be given plain and current ordinary meaning
Internal Aids to Statutory Interpretation

Dictionary, long title, specific rules of statutory interpretation
        Differences between jurisdictions

        Noscitur a sociis    (words of similar meaning)
            o Words take their meaning from context in which they appear
            o Different from reading provision in context, have a string of words and one word is unclear
            o Does not require identification of a class or genus in 2 or more specific words
            o Requires interpreting a word in context of other words in the provision

        Ejusdem Generis     (the class rule)
             o Where 2 or more specific words in a statute are followed by 1 or more general words
             o Wide meaning of general word is restricted to same class as constituted by specific words
             o Class/genus must be capable of identification

        Expressio Unius est Exclusio Alterius         (express inclusions and implied exclusions)
             o if one member of a class is mentioned expressly, other members of the class are impliedly excluded
             o parliament intends to expressly include one member and exclude others impliedly

        Specifics prevail over the General
            o Statute deals generally with a matter
            o Another provision in same/different statute deals specifically with same matter
            o Specific prevails over general

CL Presumptions

    1.   common law is not overridden
    2.   against interference with the liberty of a citizen
    3.   against conferring a right to invade private property
    4.   conformity with international law
    5.   revenue or taxing statutes must be interpreted strictly in a taxpayer’s favour

Statutes do not bind the crown          S13 of Acts Interpretation Act 1954 (Qld)
Penal provisions are interpreted narrowly in favour of the accussed
Parliament does not interfere with fundamental CL rights

Cth Statutes
Interpretation Act 1901 (Cth)
     S15 AA (1)        regard must be given to purpose/object of statute
            o A construction which promotes purpose of Act is preferred to one that does not
            o Does not require an interpretation that Best achieves the purpose, only promotion
            o Qld does require best
     S15 AB            Use extrinsic Material
           o   To confirm meaning or provision
           o   Help interpret ambiguous sections
           o   Absurd/unreasonable result



Commencement

   1. Date of royal assent
          o 28 days after bills is passed it comes into force
   2. Proclaimed in Government Gazette , by governor general
          o Puts out official announcements of parliament
          o Statute might be left to day of proclamation until organization ready
          o Different bits may start at different times
   3. Start on a date specified in statute itself
          o If nothing said about date of proclamation then automatically start on 28th day after royal assent



      Headings of Part divisions and subdivisions and schedules are part of the Act
      Marginal note, footnote, endnote to an act, headings of sections of an Act are not part of the Act

Process        (p437)
Interpreting Cth statute
    1. Read sections to try and determine plain, ordinary meaning of the words
    2. Make sense of section/s in context of other sections
             o Look at immediate context
             o Wider contextstatute as a whole
             o Reading extrinsic material
    3. Look at purpose/object of statute
             o S15 AA (1) one that promotes purposes as opposed to one that does not
             o Purposive approach-extrinsic materials
    4. Still unclear, Aids to interpretation
Tutorial 7: Q2 p345                                                                              11/5/09
Analyzing joint majority judgment in R v Lavender
Gleeson CJ, Mc Hugh, Gummow, Hayne JJ

Wilson v The Queen
Involuntary Manslaughterinvolves; neither intent to cause death or grievous bodily harm nor the mental elements
necessary for murder
    1. Manslaughter by an unlawful and dangerous act carrying with it an appreciable risk of serious injury
    2. Manslaughter by criminal negligence

Material Facts:
    alleged criminal negligence by the respondent in the driving of a front-end loader which ran over and killed a
       thirteen year old boy
    respondent was employed as the operator of a front-end loader at a sand mine (duty of care is one of a
       professional for his job)
    The driver’s vision was obscured by a bucket at the front-end
    4 boys playing on site, unfenced surrounded by thick vegetation, not meant to be there
    The respondent decided to chase them away. He drove the loader towards the boys.
    They ran into an area covered by thick vegetation. The respondent pursued them, driving the loader through
       the scrub.
    It was difficult for him to see where he was going. He ran over the victim, causing injuries resulting in death
    Counsel for the respondent described the test of criminal negligence as ‘objective’. In his argument on
       sentencing, he said the case was one of a ‘gross error of judgment’ on the part of the respondent
    Trial judge held: The inference is that he assumed that because he was driving a very large vehicle which was
       readily visible and very noisy at a very slow speed … the boys would have been able to readily avoid him. This
       was an assumption that no person in his position was entitled to make and the horrific consequences of
       this mistaken assumption were realised on this occasion
    The respondent was sentenced to imprisonment for four years with a non-parole period of eighteen months.
       He appealed against his conviction

Immaterial Facts:    (any facts that are not relevant)
    age of the boys
    names of people involved
    gender of plaintiff etc

Legal Issue:
Under Crimes Act s 18 Whether malice was a necessary element for manslaughter
     Court of Criminal Appeal of New South Wales (Hulme and Adams JJ, Giles JA dissenting) allowed the
         respondent’s appeal against a conviction for manslaughter by criminal negligence on the basis that, at trial,
         counsel for both the prosecution and the defence, and the trial judge, fundamentally misconceived the
         nature of the offence in question by failing to advert to what was said to be an essential element of the
         offence, that is to say, malice as (page 71) defined in s 5 of the Crimes Act
     prosecution appeals to this Court
Central to the present case is a question of the meaning of s 18(2)(a). At common law, the presence or absence of
malice was the point of difference between the two forms of unlawful homicide known as murder and manslaughter
    Section 18 provides:
    ‘(1)(a) Murder shall be taken to have been committed where the act of the accused, or thing by him or
    her omitted to be done, causing the death charged, was done or omitted with reckless indifference to
    human life, or with intent to kill or inflict grievous bodily harm upon some person, or done in an attempt
    to commit, or during or immediately after the commission, by the accused, or some accomplice with him
    or her, of a crime punishable by imprisonment for life or for 25 years.
    (b) Every other punishable homicide shall be taken to be manslaughter. (reflects CL)
    (2)(a) No act or omission which was not malicious, or for which the accused had lawful cause or excuse,
    shall be within this section. (S 1 a or whole of S18?)
    (b) No punishment or forfeiture shall be incurred by any person who kills another by misfortune only.

Defense argued:
S18 (2) uses clear words to import malice
Any ambiguity should be resolved in favour of the accusedcriminal statutes, historical practice
Textualist approach

Prosecution argued:
Malice not an element of involuntary manslaughter, understood in context

Order: appeal allowed, appeal to the Court of Criminal Appeal be dismissed

Ratio decidendi:
Malice was an element of murder not manslaughter
‘Malice not an element of involuntary manslaughter under the Crimes Act 1900 (NSW) nor at CL

QLD
Have a criminal code, rules for interpreting code is different to statutory interpretation, starting point is not CL, code
excludes the CL. Approach in QLD is different

Statutory interpretation of The crimes Act 1900
The issue is one of the meaning of the Crimes Act



Theoretical approach:
     started with textualist approach
     then looked at it in context, contextualist approach
     the meaning of the statutory provision is influenced powerfully by context. Looks at sections in context
     para 33, ‘this case provides an example of the importance of context I resolving questions of statutory
         construction’
              o immediate context: definitions, looked at Cl as no definition in division of the Act para 34
              o wider context: para 35 looked at in context of whole Crimes Act, Indictments: formal charge of crime
              o even wider: para 36 context in CL
              o Extrinsic materials with a historical context: looked at issue in relation to history of legislation-1883
                 Act
Similarities: Purposive Interpretation Theory-context and history to look at purpose/object of statute
Hinchy thinks this is a whole new theory
Tutorial 10: Q1 p439                                                                             18/5/09
Peldan v Anderson [2006] HCA 48
Unanimous joint decision
Material facts of case
     Mr and Mrs Pinna purchased a property in Carindale under the provisions of the Land Title Act 1994 as joint
        tenantsboth owe 100% of property so if one dies, other takes over whole property
     2003, Mr Pinna did unilateral severance the joint tendency and later Mrs Pinna died only entitled to one-half
        share of Carindale property
     changed to tenants in commononly own 50%each of property
     Mr Pinna went bankrupt, trustee took over Mr Pinna’s half, wanted Mrs Pinna’s half
     trustees contend that the unilateral severance of the joint tenancy was a transaction by Mr Pinna which is
        void against them by operation of s 121 of the Bankruptcy Act
             o Kiefel J rejected this submission
             o Reasons for doing so depart from Kiefel J in HC, the dismissal of appeal was held

Issue before the HC    (para 3)
     Mrs Pinna held a joint tendency now holds tenants in common
     S 121 (a) and (b) Bankruptcy Act
     Debate over the property over a property as was referred to in following section, property that existed
        before now doesn’t exist?
     121(1) together with s 121(9):
‘(1) A transfer of property by a person who later becomes a bankrupt (the
     transferor) to another person (the transferee) is void against the trustee in the
     transferor’s bankruptcy if:
    (a) the property would probably have become part of the transferor’s estate or
        would probably have been available to creditors if the property had not
        been transferred; and
    (b) the transferor’s main purpose in making the transfer was:
         (i)   to prevent the transferred property from becoming divisible among
               the transferor’s creditors; or
         (ii) to hinder or delay the process of making property available for
              division among the transferor’s creditors.
…
(9) For the purposes of this section:
    (a) transfer of property includes a payment of money; and
    (b) a person who does something that results in another person becoming the
        owner of property that did not previously exist is taken to have transferred
        the property to the other person; and
    (c) the market value of property transferred is its market value at the time of
        the transfer.’

       no issue that Mr Pinna’s main purpose could be taken to be that described in par (b)
       The controversy turns on whether par (a) of s 121(1) was satisfied
            o Kiefel J held that it was not void
What was the ‘apparent conundrum’ identified by the High Court when s 121(1)(b) and s 121(9)(b) of the Bankruptcy
Act 1966 (Cth) are read together?
     s 121(9)(b) takes ‘property that did not previously exist’ to be the transferred property
     121(1)(a) speaks of ‘the property’, the natural reading requires this to be construed as referring to the
       property which has been transferred under the transfer which is void against the trustee in bankruptcy
     if the act which is taken to have transferred the property did not occur, the ‘property that did not previously
       exist’ ex hypothesi would never have come into existence, and so could never ‘probably have become’ part
       of the bankrupt’s estate
     121(1)(b) if the expression ‘the transferred property’ is construed as referring to the property taken to have
       been transferred, which did not come into existence until the occurrence of the act which is taken to have
       transferred it,
            o how could the transferor’s main purpose be to prevent that property from becoming divisible among
                the creditors?
     2 sections are linked yet to make sense have to read them indepedndently

The joint majority stated, in obiter dicta comment, the way in which apparent conflict between two provisions of the
same statute should be alleviated. What did the joint majority conclude in this regard?

       By a process of construction, is it possible properly to resolve the contrariety identified above and render
        sub-ss (1) and (9) of s 121 capable of sensible concomitant operation
       May the words ‘the property’ in the opening words of par (a) of s 121(1) be construed as referring to
        something other than ‘the property that did not previously exist’?
       Para 40, Blue Sky Project: resolve conflict, adjust provisions in order to apply purpose of provisions

The joint majority rejected the trustees’ construction of s 121(1). What was the reason for this rejection?

       trustees submitted that the words ‘the property’ in par (a) of s 121(1) should be understood as referring to
        the property in the hands of the transferee prior to the deemed transfer
       This construction assumes both that the transferee’s interest would probably have come to the transferor,
        and that an act of the transferor resulted in a transformation of that interest
       Too narrow, good for this case but not practically applicable for further cases
       Kief J: departs too much from terms and structure, too broad

How did the trustees’ construction of s 121(1) differ from the construction adopted by Kiefel J in the Federal Court of
Australia?

       Kiefel J regarded the words ‘the property’, not as the ‘transferred property’, but as the property held by Mr
        Pinna before the relevant acts
       Trustees was very narrow in their favour, Kiefel’s too broad

Explain the basis of the joint majority’s construction of s 121(1)

       shift the emphasis of the inquiry in s 121(1)(a), and to focus not upon whether the ‘transferred property’
        would have become part of the transferor’s estate in bankruptcy, but upon whether that result would have
        obtained in respect of the transferor’s ‘property’ (as defined in s 5(1)) out of which the newly created
        property has been ‘carved’
       Such an outcome is consistent with the indications of legislative purpose seen in the Explanatory
        Memorandum to which reference has been made

The Bankruptcy Act 1966 (Cth) is a Commonwealth statute and, as such, s 15AA(1) of the Acts Interpretation Act
1901 (Cth) applies. Was the approach taken by the joint majority consistent with the requirements of s 15AA(1)?
Give reasons for your answer

S15AA(1): a construction that would promote the purpose or object underlying the Act shall be preferred to one that
does not
    Consistent with legislative purposes as seen in explanatory memorandum
    Not referred to by HC in this case
    HC interested in what would promote this section of Bankruptcy Act as a whole
            o Where 2 provisions in same section seem to be inconsistent, purpose we assign to one has to be
               consistent with other
    HC often approaches task of statutory interpretation in manner of facts rather than Acts Interpretation Act

Identify the ratio decidendi of the case. Provide reasons for your answer

       HC had to give own interpretation in order to make sense had to re-written
       The acceptable construction is best illustrated by setting out the paragraph as if it read in this
        manner:
        ‘(1) A transfer of property by a person who later becomes a bankrupt (the transferor) to another
        person (the transferee) is void against the trustee in the transferor’s bankruptcy if:

        (a) the property [in the hands of the transferor prior to the act taken to be the transfer] would
        probably have become part of the transferor’s estate or would probably have been available to
        creditors if the property [in the hands of the transferee after the act taken to be the transfer] had not
        been [taken to have been] transferred …’ [Bracketed words inserted.]

       Now look at at S9 in light of S121 (a) as they were meant to be dependent, make sense when read together
        now
       Trustees have no access to Mrs Pinna’s half.

S15(AA) of Cth Acts Interpretation Act
     One that promotes purpose of act preferred to one that doesn’t

The words in the act would not be changed, only relevant when precedent is binding, lower courts would use this
changed section but the actual words in the act would not change unless changed by parliament. Courts do not have
power to re-write statutes
     HC interpretation binding on lower courts
     Problem when defending self, wouldn’t know of HC decision. Would use words in Bankruptcy Act
Tutorial 11:                                                                                     25/5/09
Amos v Brisbane City Council p 410
Qld CoA        3 judges all in joint majority (Jerrard, Keane, Muir)

Facts of case:
     Applicant fell over and tripped on water valve and hit head on fire extinguisher on footpath
     Sued council
     Magistrate found against appellant, dismissed claim and ordered a cost of $10 000
Issue:
     Whether court had power to award costs of $10 000 when the damage was below $30 000
     Interpretation of s56 of Personal Injuries Proceedings Act 2002 (Qld)
            o Appellant: no power in courts to award costs
            o Respondent: costs can be awarded if pl. fails
Muir J interpretation:
     Looked at the word: award
     Used a literal interpretation
     Looked at section (1) in relation to (2) and(3)
     Looked at other sub-sections in immediate context
     Refers to other authorities looking at purpose and context
     Extrinsic material didn’t help with construction of meaning

Ratio of the case:
“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”
Q5 p447         Qld

1. determine whether the relevant sections are in operation  Commencement
     Motor Accident Insurance Act 1994 (Qld) was in operation when the collision occurred
     No information about commencement so state nothing here to indicate that the sections here have
        commenced

2. Issues to be determined
      Suzuki motor cycle covered by CTP insurance, Jane Citizen pillion passenger
      Collided with Kawasaki motor cycle which did not have CTP insurance
      Track was not a road and not a public place
      Citizen commenced proceedings for damages against both drivers
      Nominal defendant: A defendant who takes the place of the actual defendant. In terms of Compulsory Third
         Party insurance, the injured person takes action against the nominal defendant where the personal injury
         results from a motor vehicle accident involving an uninsured vehicle or an unidentified vehicle.
Whether the Kawasaki is a ‘motor vehicle’ for the purposes of being an ‘uninsured motor vehicle’

3. Interpretation in context
(a) read act as a whole (whatever you are given)
      Under Transport Operation Regulation 1999
             o motor vehicle means a vehicle built to be propelled by a motor that forms part of the vehicle
                              for which registration is required
             o s10 vehicles used on road must be registered
                       restrictions don’t apply
                       registration not required as the Kawasaki is off the road
(d) ascertain plain ordinary meaning
             o vehicle which is self propelled
             o motorbike means a motor vehicle with 2 wheels, and includes a 2 wheeled motor vehicle with
                a sidecar attached to it that is supported by a third wheel

4. Internal aids to statutory interpretation

5. Statutory purposive approach
      the purpose of this act is to promote the rehabilitation of claimants (d) and improve the system of CTP
        insurance (a)
      s14 A(1) in the interpretation of provision of act, one that promotes purpose is preferred to one that does
        not
      doesn’t aid interpretation

6. Reasoning
     (2) For an uninsured motor vehicle, subsection (1) applies only if the motor vehicle accident out of which the
        personal injury arises happens on a road or in a public place.
     The accident did not occur on a road or public place
     In extrinsic material, the second reading speech, responsible Minister stated that the act was to ensure CTP
        liability was restricted
     In keeping with the purposes of the act, the nominal defendant is not liable to pay damages as accident did
        not occur in public place or on a road, rather claim under public liability claims than CTP liability
     The Kawasaki is a motor vehicle for the purposes of being an ‘uninsured motor vehicle’ however section(1)
        does not apply as personal injury did not arise on a road or in a public place
     Kawasaki was not insured, therefore not a motor vehicle, not on required, didn’t require registration
            o
           At the time of the accident, Kawasaki was not on road therefore registration was not required, not a
           motor vehicle
    Nominal def. not liable as only liable if it were a motor vehicle
Q8 p458    Victoria

1. whether the relevant sections are commenced
     S 35 Transport Accident Act 1986 (vic) has commenced during the incident

2. State the issues
      Whether injury sustained by John Citizen when working on repairs to his son’s truck is a ‘Transport Accident’
      S3(1) transport accident: an ‘incident directly caused by the driving of a motor car or motor vehicle, a
         railway train or a tram

3. Interpretation in context
(a) act as whole
(d) plain ordinary meaning of section
      S3(3)(c) injury as a result or resulting from a transport accident is reference to an injury directly caused by
         driving of a motor vehicle
      Transport Accident Commission v Jewell:
             o (f) A claimant injured by a motor vehicle occurring after its driving must, however, demonstrate
                 either a temporal or other connection between the incident and the driving sufficient to prove that
                 the driving directly caused the incident

4. Purposive approach
     Establish a scheme of compensation in respect of persons who are injured or die as a result of transport
        accidents

5. Reasoning
     The tribunal based their decision on application of the ‘but for’ test and concluded that the time lapse
        between the parking of the vehicle and accident was not significant and thus it was a transport accident
     However my interpretation of the relevant case law is that the insertion of the word ‘directly’ connoted s a
        causal relationship and implies a more proximate and immediate connection
            o The time lapse was significant
     My interpretation of s3(3)(c) is that it is a requirement that an injury sustained must be directly caused by
        driving of a motor vehicle
            o Not a transport accident
     In keeping with purposive approach, this act aims to compensate those who are injured as a result of a
        transport accident hence this is not a transport accident so complies with purpose/intent of parliament
Q9 p459         Western Australia

1. whether the sections have commenced
     Motor Vehicle (third party insurance) Act 1943 (WA) and the word directly was inserted by Amendment Act
       1987
     Was relevant at time of incident, Amendements were relevant
            o The wording, ‘in use of or arising out of the use of’ must be deleted

2. Issues:
      Citizen was a passenger in prime mover
      Injured whilst helping driver fix a wheel
      Sued driver and employer
      Employer seeking indemnity as stated in s3 (7)
            o Must be a consequence of the driving of a motor vehicle
                    Implies moving vehicle
            o Directly caused by, or the driving of, the motor vehicle s4(1)
      Whether injury sustained in changing a wheel falls within the scope of the insurance policy

Plain ordinary meaning of ‘driving’
     Imports movement
     Check dictionary def, definition sections, how other cases define it

3. Interpretation in context
      3 (7) purposes of this Act, the death of or bodily injury to any person shall not be taken to have been caused
         by a vehicle if it is not a consequence of the driving of that vehicle or of the vehicle running out of control
      4(1) responsibility to any person who drives the motor vehicle to others who injured when driving the
         vehicle
      6(c) directly caused by the driving of the vehicle
             o Immediate context
      Upon reading the act as a whole, there is only reference to insurance for the owner when the vehicle is
         caused by driving of a vehicle
             o Wider context
      Supports this notion of movement

4. Purposive Approach
     Parliament thus intended that the liability of the Motor Vehicle Insurance Trust was to be limited to the
        payment of damages for injury or death sustained by persons in consequence of the negligent driving of
        motor vehicles

5. Reasoning
     Reading the act as whole and given the intention of parliament, the injury sustained by Citizen is not within
        the scope of the insurance policy as the vehicle was stationary when the injury occurred and the act implies
        the vehicle must be in motion whilst the driver is driving for the liability to be covered by the insurance
        policy
     This is in accordance with the second reading speech where insurance is ultimately bound to fall within ‘in
        use of a motor vehicle’

								
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