Legal Method (LAW 131) Study Notes PDF

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LAW 131 Legal Method LEGAL METHOD CONTENTS Introduction to Legal Method 2 The New Zealand System of Government 5 The New Zealand System of Courts and the Doctrine of Stare Decisis 7 Logical Reasoning 13 Analysing Judgments in terms of Ratio and Obiter 17 Distinguishing, Extending and Following Prece...

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LAW 131 – Legal Method

LEGAL METHOD – CONTENTS

Introduction to Legal Method

2

The New Zealand System of Government

5

The New Zealand System of Courts and the Doctrine of Stare Decisis

7

Logical Reasoning

13

Analysing Judgments in terms of Ratio and Obiter

17

Distinguishing, Extending and Following Precedents

20

Reading and Briefing a Case

25

Cases Concerning the Common Law Protection of Privacy in New Zealand

29

Cases Concerning Wrongful Conception

41

Statutes and Legislative Process

48

Common Problems in Statutory Interpretation

55

Tools of Statutory Interpretation

57

Supplementary readings M’Alister (or Donoghue) v Stevenson [1932] AC 562

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LAW 131 – Legal Method

INTRODUCTION TO LEGAL METHOD What is law and why do we have it? Law is about regulating behaviour and society and the way in which society operates. The original idea was of a ‘command’ issued by the Sovereign – a command theory. The King or Queen controls the behaviour of their subjects in order to avoid chaos. Today, this has transferred to the notion of PARLIAMENTARY SOVEREIGNTY (also called parliamentary supremacy). Parliament passes laws in the role of the Sovereign. The Governor General, representing the Sovereign, signs off laws. What does the law consist of? Rules, regulations, bylaws, statutes, enactments, acts, formal process, instructions, boundaries, norms, commands, commandments, edicts, canons, codes, dictates, standards, ethics, conventions. But whose law dominates? Whose idea of law prevails? Whose interests are protected, those of the indigenous people, the commercial people or the most articulate people? When we talk about statutory interpretations we need to look at ambiguities. e.g. Signs in lecture theatres: ‘No Eating, Drinking or Smoking’ Does this mean if you don’t smoke, you can choose to eat or drink? Strictly speaking that it is the meaning the words convey, but the signs were put in place to inform you that you can neither eat, drink nor smoke in lecture theatres. Rules exist and someone has formulated them, with a reason. We always must look at the REASONING behind a decision, as it is just as important as the rule itself. The decisions of judges are often quite perplexing to us because judges have different thought processes. DIVISIONS OF LAW Divisions of law are made simply for ease of handling. It can be argued that they are artificial. The broadest divisions would be as follows:   

International Law: deals with relationships between different states Public Law: deals with relationships between the State and individuals Private Law: deals with relationships between individuals

PUBLIC Constitutional Law

LAW 211

Administrative Law

LAW 211 LAW 402 LAW 440

PRIVATE Criminal Law

LAW 201 LAW 406 LAW 482

Law of Property

Law of Obligations

Law of Persons

 Land  Personal Property

 Contract  Tort  Unjust Enrichment

   

LAW 301 LAW 471

LAW 231 LAW 241 LAW 451

LAW 426 LAW 407

Marriage Divorce Adoption Family

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LAW 131 – Legal Method

It is because we live in communities that the State puts in place rules to govern us. Nations also exist in communities, so there must be a set of rules to govern their relationships. The international law is in place to serve this function. Has the international law influenced how New Zealand law is developed? Do courts take into account international laws when making laws in New Zealand? Yes. We must acknowledge the four principal sources of law in New Zealand, which are: 1. Parliament / Legislature / The legislative branch of government

2. The courts / Judiciary / The judicial branch government

3. The Treaty of Waitangi

4. International Law

of

 The highest form of law.  Enacts statutes, which are ‘trumps’ – statute law. They override all other forms of law. In New Zealand the doctrine of continuing parliamentary sovereignty operates. This means that Parliament’s last word in statute will always prevail as the law.  Parliament can also delegate to subsidiaries the power to make statutory legislation, e.g. local councils can enact bylaws.  The courts make the common law [judge-made law].  The courts have a valuable role in clarifying statutes. They have a supplementary role in spelling out what the actual meaning of a statute is.  Both the courts and Parliament have complementary roles in establishing and developing the law in New Zealand.  Since laws have been passed, circumstances have changed. The courts have a role in bringing the law up to date.  e.g. Copyright Act – bringing it up to date with the latest technological advances (intellectual property law).  There are (two) different versions of the Treaty of Waitangi and this resulted in different understandings of what was meant for the future of New Zealand.  It was a contract for agreement so is relevant to international law.  Recently it has been asked what is meant by the phrase ‘the principles of the Treaty’. e.g. in the State Owned Enterprises Act, without any descriptions of what the principles actually are.  Includes treaties, conventions and instruments. We are particularly interested in those that are linked to the United Nations, e.g. International Covenant on Civil and Political Rights (ICCPR), the Convention on the Rights of the Child, United Nations Convention Relating to the Status of Refugees (Refugee Convention).  Explained example: The Refugee Convention has been part of our law since 1987. The Immigration Act 1987 was amended to allow for this. This convention was incorporated by statute into our law.  Even if treaties, conventions and instruments aren’t incorporated into our statutes, the courts will try to adhere to them, if we are we are signatories. Normally the Executive [e.g. a Cabinet minister] will sign a Treaty.  The Courts say that if New Zealand hasn’t signed up for something, it must be important. If they had it would be merely ‘window dressing’. The Courts try to make our Statutes consistent with international treaties. e.g. Privacy Act 1993 – we have to acknowledge international privacy conventions New Zealand is a party to, in order to make coherent laws.

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LAW 131 – Legal Method

The concept of THE RULE OF LAW There are five principal aspects of ‘The Rule of Law’. 1. All persons are subject to the law. ‘Persons’ can be natural persons but also ‘legal’ persons. Legal persons include the Crown, bodies corporate (companies), incorporated societies and bodies not corporate. Legal persons include administrative agencies, including the police. This principle means the State is subject to the law of the land. We can bring a case against the Crown for example because we don’t live in a totalitarian or tyrannical state. 2. All persons are equal before the law. No matter what a person’s status, no one particular individual is entitled to preferential treatment under the law. 3. The courts are available to all. Any citizen who has suffered a grievance has access to legal aid. The courts are not only open to the rich – although realistically most need money. 4. The legal process is conducted in public and accessible to all. There are exceptions to this principle, where there are confidentiality issues, e.g. in family courts/name suppression in some cases. These exceptions protect the rights of people. The decisions of the courts are available for anyone to access. All Acts of Parliament or bylaws are available for free. Because of the first principle, that ‘all persons are subject to the law’, we need to know what the law is, so we can ensure we do not breach it. 5. Decisions affecting people’s rights must be arrived at by following an established procedure or due process. When there is a court hearing, there is a series of procedures and formalities. e.g.1. both the plaintiff and defendant have a right to a say. e.g.2. the judge cannot have a relationship with/be connected to the plaintiff or defendant. Procedure is as important as the substantive outcome.

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LAW 131 – Legal Method

THE NEW ZEALAND SYSTEM OF GOVERNMENT There are 3 ways in which the law is made in New Zealand: 1.

THE LEGISLATURE Parliament, that creates Statutes [acts/enactments].

2.

THE EXECUTIVE A subset of Parliament, generally known as the ‘government’. Government ministers and officials have delegated authority from the Parliament to make laws, which are called statutory regulations or delegated legislation.

3.

THE JUDICIARY The Courts that create case law [common law] or judge-made law. The Courts try to interpret statutes in a way that is consistent with the principles of the Treaty of Waitangi and international law (two of our sources of law), even when they are not specified within the Statutes. The Treaty of Waitangi allowed English law to be imported and to become the basis of law in New Zealand.

A short constitutional history of New Zealand    

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New Zealand was originally administered by Britain. Our legal system is based on the British or Westminster style of government. Originally, Britain made New Zealand’s law. An Act was passed in 1852, called the New Zealand Constitution Act. This was an Act of the British Parliament. It provided for New Zealand to be administered by a Governor and a Parliament. The Parliament that was set up at the time is called a bicameral (one consisting of two houses of parliament, the House of Representatives and the Legislative Council). In addition, there were a number of provincial governments. So even though the number of inhabitants was comparatively small, we had quite a complex system of government/constitutional arrangement. In 1947, New Zealand became legally autonomous. This meant New Zealand could pass law for New Zealand. However it was still able to ask the Imperial Government to legislate for it. The Legislative Council was abolished in 1950. Only since 1950 have we had a single House of Parliament (‘the House’), making it a unicameral system. In 1986, New Zealand became fully independent, through the passing of the New Zealand Constitution Act 1986. Britain could no longer legislate for New Zealand.

New Zealand Constitution Act 1986   

The very first part of the Statute is called the Analysis or sometimes the Scheme of the Act. It shows how the Statute is constructed. This particular Act is divided into 5 parts: The Sovereign, The Executive, The Legislature, The Judiciary, Miscellaneous Provisions. As shown below the Analysis, this was the 114th Statute passed in 1986.

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LAW 131 – Legal Method

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The long title of the Act is shown directly below the Analysis: An Act to reform the constitutional law of New Zealand, to bring together into one enactment certain provisions of constitutional significance, and to provide that the New Zealand Constitution Act 1852 of the Parliament of the United Kingdom shall cease to have effect as part of the law of New Zealand. The long title indicates the purpose of the statute. It tells us what Parliament was intending to achieve. The long title tells us that this Act was to bring reforms for New Zealand and to do away with the 1852 Constitution Act. It shows we were ‘cutting the apron strings’ or cutting ourselves off from Mother England. This point is made clear in Section 26: ‘United Kingdom enactments ceasing to have effect as part of the law of New Zealand’; and Section 15, subsection 2: ‘No Act of the Parliament of the United Kingdom passed after the commencement of this Act shall extend to New Zealand as part of its law.’ The 1986 Constitution Act is only one aspect of our constitution. Unlike the US, we don’t have a single constitution. It exists, only in different places.

Where is New Zealand’s Constitution found?      

New Zealand Constitution Act 1986 conventions/customs/practices other statutes, e.g. Electoral Act, New Zealand Bill of Rights Act, Official Information Act, Treaty of Waitangi Act. the common law [through reading cases] the Treaty of Waitangi the doctrine of the rule of law

The Constitution Act 1986 sets out the main structural aspects of our government: the Sovereign, the Legislature, the Executive and the Judiciary. The Legislature comprises the whole of Parliament [House of Representatives] + the Governor General. So it comprises 121 persons [120 + 1]. The Governor General is required to sign off laws before they are taken into affect. The Governor General can withhold assent, which means the law cannot be passed. Typically the Governor General does not refuse to sign; they simply make suggestions as to how to amend problematic aspects of statutes. The Legislature, the Executive and the Judiciary constitute the 3 principle branches of Government. This leads to the notion of the separation of powers:  the 3 branches keep a check on one another.  we don’t want the same body making [E], applying [J] and enforcing [L] the law.  if we combine powers we run the risk of having a tyranny. Judges are protected under Section 23 of the Constitution Act: they can’t be removed even if particular peoples from the Executive/Legislative branches feel they should be for whatever reason. They can only be removed if they misbehave or are unable to perform their duties. Also, their salaries cannot be reduced [although increments are permitted]. The Legislature, or Parliament, is the most important branch. It is supreme. The law it makes is the highest form of law. Hence the notion of parliamentary sovereignty or parliamentary supremacy.

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LAW 131 – Legal Method

THE NEW ZEALAND SYSTEM OF COURTS AND THE DOCTRINE OF STARE DECISIS Why, if Parliament is supreme, do courts need to make law, as a supplementary body? 

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Sometimes statutes enacted by Parliament are incomplete. Aristotle: no drafter of law can predict future circumstances. The role of the courts is to update statutes in terms of their application to modern circumstances. Sometimes statutes enacted by Parliament are ambiguous. One of the roles of the courts is to decide which meaning or meanings of several meanings are the right meanings. Sometimes there is a need for law which Parliament will not pass, and for which judges feel obliged to introduce, e.g. the law of negligence (a tort), the law of contract.

The New Zealand hierarchy of courts and the rule of precedent Note: the Supreme Court has only existed since 2003 and has replaced the Privy Council. In Australia, the highest court is the High Court of Australia. There are many terminological peculiarities like this that we must deal with constantly. We are not concerned with the details of the specialist courts but with the details of courts that deal over a wide range of areas, e.g. High Court. The word ‘supreme’ suggests that the Supreme Court is the highest court. This is true in New Zealand and some other countries such as Canada [Supreme Court of Canada] and the United States of America [US Supreme Court]. But in New Zealand before the 1980s, the High Court was called the Supreme Court (we can call this ‘the then Supreme Court’). The District Courts also used to be called the Magistrates Courts. The New Zealand system of courts abides the rules of precedent. In broad terms the pattern of the rules of precedent in New Zealand is very simple: every court is bound by the decisions of courts above it: no court is bound by its own previous decisions. For example, if a decision is made by the Court of Appeal, the High Court will be bound by it. But if a decision is made by the High Court, the High Court will not be bound by it in the future. However wouldn’t it be more desirable to have consistency and predictability? This is where judicial comity comes in. Judicial Comity: even though not strictly bound, judges intend to follow precedents in order to be consistent and predictable, unless there is good reason for which they should not. We want to avoid arbitrariness and inconsistency in our laws. We need to know what the law is so we can organise our lives accordingly [because of the rule of law].

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LAW 131 – Legal Method

The concept of jurisdiction The word jurisdiction has numerous meanings:  sphere of influence/sphere of activity/realm  the things the court has authority to decide open  a whole country’s system of laws, e.g. US jurisdiction We need to make 2 distinctions within the concept: 1. Some courts have specialised jurisdiction [e.g. family court, narrow jurisdiction] while others have general jurisdiction [e.g. High Court/Court of Appeal, can decide on almost anything]. 2. Some courts have appellate jurisdiction while others have original jurisdiction. Courts with appellate jurisdiction cannot initiate proceedings; decisions already made can be appealed to them. The High Court, Court of Appeal and Privy Council have appellate jurisdiction. Courts with original jurisdiction can initiate proceedings. The High Court and the District Court have original jurisdiction. The High Court has appellate and original jurisdiction. How many judges are in the courts? In the High Court, there is generally only 1 judge. In the Court of Appeal, there are normally 3 judges, but sometimes 5 or even 7 if there is any significant new development. There is always an odd number of judges in the Court of Appeal, so a majority consensus can be reached. The Supreme Court/Privy Council Although the Supreme Court has replaced the Privy Council, particular cases heard some time ago can be still be appealed to the Privy Council, e.g. the David Bain case. The Privy Council is a group of lawyers who advise the Queen on matters [“we will humbly advise her Majesty…”]. They make recommendations to the Queen. The Privy Council is based in London but is not an English court. The Privy Council was originally the highest court in Canada and the United States. However both countries decided their highest courts needed to remain in their own countries. The Supreme Court is staffed by New Zealand judges. We can understand the Supreme Court by looking at the Supreme Court Act 2003. The establishment of the Supreme Court in New Zealand shows:  The determination of New Zealand to finally stand up on its own feet and cut itself off from the mother country, Great Britain.  The determination of New Zealand to have its own highest court in its own country.  The improvement of access to justice in New Zealand: it is cheaper to go to the Supreme Court in Wellington than to the Privy Council in London.  The much wider range of matters that the Supreme Court deals with, including some criminal matters. Note Section 3, Subsection 2 of the Supreme Court Act 2003. Even though Parliament itself passed the law, it has taken this opportunity to reaffirm its supremacy.

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LAW 131 – Legal Method

The 3 functions of the High Court 1. 2. 3.

Appellate Jurisdiction Original Jurisdiction Judicial review of administrative actions. The High Court is the only court that deals with this. Judges can review decisions made by ministers in the past. You will learn about this is LAW 211 (Public Law) and can choose to take an elective in it – LAW 402 (Administrative Law), LAW 440 (Judicial Review).

The doctrine of stare decisis In Latin, stare decisis means to stand by your decisions or the decision stands. It is also another way of saying the doctrine of binding precedent. Precedent in New Zealand In broad terms...