Law Tutorial

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TUTORIAL WEEK 3

TOPIC: APPLYING THE LAW
LEARNING OBJECTIVE:
1. To understand how laws and the legal system are used to solve legal problems

A. COMMON LAW AND THE DOCTRINE OF PRECEDENT

1. The three meanings of the term common law
2. The concept of equity.
3. The doctrine of precedent; the concept of stare decisis a. binding precedent
b. persuasive precedent
c. ratio decidendi
d. obiter dictum
4. The rules of precedent
5. What is necessary to make precedent work?
e. law reports
f. a hierarchy of courts
6. Things to look for when studying a case
g. the material facts
h. the legal issue
i. the ratio decidendi
j. the actual decision
7. The process of legal reasoning
k. distinguishing
l. overruling
m. disapproving
n. following
o. per incuriam

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Reading: Chapter 2, pages 90 to 94; Chapter 3, pages 106 to 117

B. STATUTORY INTERPRETATION

1. Why do statutes have to be interpreted? (the problem with words) 2. General approaches to the interpretation of statutes. a. The “literal approach”.
i. ‘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.’ Higgins J. in Amalgamated Society of Engineers v Adelaide Steamship Co Ltd (1920) 28 CLR 129 at 161-2. (See text page 119) ii. Examples: Fisher v Bell (1961) 1QB 394 (page 118) b. The “golden rule” approach.

iii. ‘…the grammatical and ordinary sense 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 instrument, in which case the grammatical and ordinary sense of the words may be modified, so as to avoid that absurdity and inconsistency, but no farther.’ iv. per Lord Wensleydale in Grey v Pearson (1857) 10 ER 1216 ( see page 119) v. Example: Lee v Knapp [1967] 2 QB 442 (page 119) c. The mischief rule and the purposive approach

vi. S15AA, Acts Interpretation Act, 1901 (Cth).
(1) In the interpretation of a provision of an Act, a construction that would promote the purpose or object underlying the Act (Whether that purpose or object is expressly stated in the Act or not) shall be preferred to a construction that would not promote that purpose or object. vii. Example: Armstrong v Clarke [1957]. 2 QB 391(page 120) Smith v Hughes [1960] 1 All ER 859 (Page 122)

3. Rules of Interpretation.
d. The act must be read as a whole, Metropolitan Gas Co v Federated Gas Employees’ Industrial Union (1925) 35 CLR 449. e. Regard must be had to the section of the community to which the legislation is directed, Example: Fisher v Bell [1961] 1 QB 394. f. The class rule- Ejusdem generis- where words of a particular meaning are followed by words of a general meaning, the general words are limited to the same kind as the particular words, Example: DPP v Farrell [1978] IR 13 ( page 124) g. The context rule - Noscitur a sociis- the meaning of a word or a phrase is derived from its context, Example: R v Ann Harris (1836) 173 ER 198 ( page 124) h. The inclusions and exclusions rule Expressio unius est exclusio alterius- the express mention of one thing is the exclusion of another, i. The general and specific rule -Generalia specialibus non derogant- earlier statutory provisions which deal with a particular matter may not be impliedly repealed by...
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