Week 1: Australia’s legal framework

Bedtime precedent...how future lawyers are made

Precedent: sources of law

 precedent

Sources of Law

statutes judicial decisions Custom

establishing principles of ‘gap filling’
enacted by relevant
legislative bodies common law & equity when no legislation or
precedent exists

Subsidiary legislative
enactments
e.g. rules and regulations
authorised by statute
 stare decisis principle & case law

stare decisis (Latin) = “to stand by things decided”

courts are (generally) bound by a prior decision on the same facts

“treat like cases alike”

• makes the law stable (ensures consistency)

• creates predictability for future planning
• increases judicial efficiency
courts don’t need to ‘reinvent’ legal principles for each case brought before them
 Stare Decisis & Precedent

Precedent = refers to the body of prior judicial decisions

cases previously decided = ‘binding authority”

for
• cases with the same facts
• w/in same court hierarchy

What other forms of law are ‘binding authority’?

statutes, constitutions, and regulations….other?

review: stare decisis = critical principle on which precedent rests

 Stare Decisis in Practice

High Court
of Australia

Federal Court Family Court

of Australia State Supreme of Australia
Court

Court of Criminal
Court of Appeal
Appeal

Privy Council
Division of
Supreme Court

House of Lords
(Supreme Court,2005 on)

District Court

Civil Criminal

Local/Magistrates’
Court
Binding

Persuasive
Civil Other Criminal Source: Griggs, Clark & Iredale 2003: 21
 cases of “first impression”: no precedent

What happens if there is no precedent ?

(cases of “first impression”)

When would you expect this to happen?

When no precedent exists, courts may refer to:

• analogous areas of law
• other jurisdictions
• customary practices
• public policy
• widely held social values
• other?
 Precedent
…
as sing
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A w ar same words, multiple meanings

1. Common Law = system of law 1. Civil Law = system of law (EU, etc)
(Anglo/US/Australian, etc)

2. common law = precedent

2. civil law = private actions
within Common law system
(also case law, judge made law)
cf: criminal law

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- Courts of equity
civil t is the
- Courts of common law
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 civil law vs criminal law
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civil law criminal law

Private actions – party vs party State vs individual

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 COMMON LAW
review: multiple meanings

SINO-SOVIET CIVIL LAW COMMON LAW ISLAMIC, HINDU &

LAW (Romano-Germanic) (sense 1) TALMUDIC LAW

COMMON LAW (sense 2) LEGISLATION

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Australia’s Legal System Checklist

Do you know:

• The relationship between the law, justice and morality?

• The justification for a legal system?

• The meaning of the rule of law?

• The different meanings of Common Law? Civil Law?

• The place of equity as distinct from Common Law?

• The role of custom in the law?

• The meaning & use of ‘precedent’, ‘stare decisis’, ‘hierarchy of courts’,

‘binding’ & distinguishable authority?
 Smiggens has joined your legal course. Generally the lecturer’s
policy is to:
• discuss issues with the class,
• explain why things are done in a certain way and,
• as far as possible take into account the students’ views.

Understanding General discussions have led to an acceptance that, for the

sake of equity, word limits are to be respected – plus or
minus 10% - and will be marked accordingly. There is no
Precedent written policy.

Although unwritten, students know this is the rule, and usually

go to great pains to adhere to the10% variation. The only
written rule is that there are NO extensions.

On one occasion, a student submits a paper over twice the

word limit and receives a very high grade. The next day other
students complain & demand an explanation.
 Precedent
2 more key terms and concepts

Ratio
Obiter
decidendi
dictum
 Extracting the Rule (ratio)
3 steps:

1. Identify the rule in case law.

2. State the rule in your own words and list each element that needs to be proven.

3. State the public policy behind the rule.

Problem ... judges often:

1. Do not explicitly state the rule and/or
2. Discuss different rules making identifying the ‘binding’ rule hard e.g., judges may
• explain other rules/principles/cases to show why they are not relevant (‘distinguish’)
• trace historical development of rule(s) within common law
• analysis of how the issue is treated in other jurisdictions

Bottom line: detective work....

• identify the rule by looking at how the court resolves the issue. Then

• generalise - form a rule that takes into account the facts of the case by making an inference from the holding of the
case.
 Example
Two dogs were fighting.
A man tried to separate the dogs with a Holding: The court rules:
stick. “no reasonable person in those
He was seriously hurt in the process. circumstances would have assumed the
risk of separating the dogs without
He sues the owner of the dogs for knowing that he might be hurt. Thus the
negligence. owner of the dogs is not liable.”

Extracting the Rule:

The Court has not stated a rule but has given a holding or judgment of the case which allows you
to infer the principles.

Subsequent cases would then be judged by the following principles:

1. the circumstances
2. what a reasonable person would do and
3. assuming a known risk means you can't hold another party liable for damages.
Precedent Exercise: you try it….
Monday 23 February 2022:

• Neal physically assaulted his cousin, Reg, by knocking him to

the ground, kicking and punching him.

• Reg was admitted to hospital following the attack, suffering a

fractured jaw and concussion.

• Neal was charged with assault occasioning actual bodily harm,

convicted and sentenced to jail for six months.

State the rule (ratio) from this case?

Precedent Exercise
Bearing the ratio in mind, which of the following cases would be
covered by it:

Rickardo is throwing stones into a pond when one skips across

the surface hitting Julia on the other side and causes a slight
graze to her leg.

Jackson throws a rock into a

crowded tram (Melbourne…!) and
hits Rickardo. Jackson had no idea
Rickardo was on the tram.
Julia throws a stick at Jackson
because she believes that
Jackson has been badmouthing
her at work. Jackson suffers a
scratch to the cheek.
Legal Reasoning

Method used by judges to reach a decision.

Many courts and lawyers frame decisions and briefs using

the IRAC format:
• Issue
• Rule
• Application (Analysis)
• and Conclusion
Precedent Checklist

Do you know:

• Why a precedent is binding on a court?

• How the ratio decidendi is formulated in given cases?

• How to distinguish between binding and persuasive precedents?

• The ways in which judges get around the strict application of the doctrine of
precedent to allow the law to develop and adapt to change?

• Whether higher courts are bound by their own precedent?

• The terminology used by courts when developing case law?

 What is a statute?
How does a Statute come into being?
What is the function of Statutes?
How do they interface with precedent?

Statutes:
What is a statute?

• Laws passed by Parliament and subsidiary bodies

• Supreme law
The Legislative
Process
 Statutes
• Laws passed by Parliament and subsidiary bodies
• Supreme law
• If in conflict with common law, statutes prevail
• Often re-affirm common law principles
• Can also modify or replace common law
• Faster to evolve - better reflect community standards
• Can be made retrospective (rare)

So how do lawyers make money with this level of clarity?

Lawyers are the only persons in whom ignorance of the law is not
punished.
- Jeremy Bentham

So what could possibly go

wrong?
Statute Interpretation:
the nature of language – ambiguity & perspective

Language itself –
1) drafting failures:
In case of fire do not use lifts

2) ambiguity
3) Conflicts between statutes and regulations – overlap

4) Facts to Language: Parliamentary Intent

language picks up more than intended purpose or evolves beyond initial
conceptions.

No vehicles in the park

No vehicles in the park...
“Segway company owner dies riding two-wheeled machine
off cliff
Jimi Heselden, the owner of the Segway company, has died
after riding one of the two-wheeled machines off a cliff
and into a river. The former miner Jimi Heselden made his
millions from defence contracts
The multi-millionaire businessman, 62, fell into the River
Wharfe while inspecting the grounds of his North Yorkshire
estate on a rugged country version of the Segway. The
Segway is a motorised scooter which use gyroscopes to
remain upright and is controlled by the direction in which
the rider leans. “

http://www.youtube.com/watch?v=pmLLGYn9Fo8

http://www.dailymail.co.uk/news/article-1315518/Segway-tycoon-Jimi-Heselden-
dies-cliff-plunge-scooters.html
Ambiguity and evolution

A Smiggens Moment:
 Facts to Language:
Parliamentary Intent
language picks up more than intended purpose
Law
No person shall by speaking,
shouting, singing, playing upon,
operating or sounding, any
musical or noisy instrument or
doing anything whatever, attract
together a number of persons in
any street so as to attract traffic.
Facts
Smiggens had been observed
strutting up and down Alice Street
acting like a chicken in a bid to
attract customers to her newly
opened take away food store.
Statutes: A technical interlude:
Tools of the trade – rules of interpretation

An intermittently
helpful little rule in
commercial Objects clauses and definitions sections in Acts
contexts:
Acts Interpretation Acts
Contra Proferentem • the interpretation that will best achieve the purpose of the Act is to
Rule be preferred to any other interpretation

Interpret the Statutory rules – common law interpretation,

harshest reading for
an ambiguously maxims, etc used historically by lawyers, judges,
worded clause drafters.
against the person
• See text: Purposive rule; Literal rule; Golden rule etc.
who drafted it.
Statutes
•Problemsmade
morereal....
broadly with
Statutes:

•Real Life issues for lawyers &

everyone else....
How to Read a Statute: real problems ...made real complex.

s. 18 ACL; schedule 2 Competition and

Consumer Law Act (CCA); formerly s. 52
of the TPA

Misleading or deceptive conduct

(1) A person must not, in trade or

commerce, engage in conduct that is
misleading or deceptive or is likely to
mislead or deceive.
What do lawyers ‘see’ when they
look at a provision?

• A person must not

• in trade or commerce
• engage in conduct that is
• misleading or deceptive or is likely
to mislead or deceive.
 Statute interpretation: main stream
fleshing out terms
S. 18 ACL (s. 4 CCA) A person (historically ‘corporation’: why?)
A person must not, in • How is this defined? What about
trade or commerce, companies? Partnerships? Services?
engage in conduct that is
misleading or deceptive
or is likely to mislead or
deceive. in trade or commerce
One off transactions? Private
Elements
transactions? Transactions between
1. A person;
commercial entities?
2. in trade or
commerce; Engage in conduct
3. Engages in Statement? Silence? Gestures? Physical
conduct; setting? Opinion? Future prediction?
4. Misleading or
deceptive or likely
to be
misleading or deceptive or likely to mislead
By whose standards? Intent? Relevant to
transaction/ materiality?
Statute Checklist
Do you know (see text or online material for re-enforcement):
• The role of parliament & the executive in the legislative
process?
• How legislation is drafted?
• How an Act of Parliament is passed?
• The role of judges in interpreting statutes?
• The ‘rules’ and maxims of statutory interpretation?
• The reasons for delegating lawmaking power?