Summary Laying Down the Law tutorial work 1,2 - Case authorities for exam PDF

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AUTHORITIES: Principle: When dealing with a Commonwealth legislation or a common law principle, courts should follow decisions of coordinate courts in other jurisdictions unless ‘plainly wrong’ ‘There is no doubt that this Court has power to review and depart from its previous decisions. However, such a course is not lightly undertaken’ Obiter Dictum

Ratio? per incuriam-techniques to distinguish precedents

Authority: Farah Construction Pty Ltd v SayDee Pty Ltd (2007) 230 CLR 89)

John v Federal Commissioner of Taxation (1989) 166 CLR 417, 438

. authoritative dicta - Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89

not open for arguments in lower courts

The legislative power of the Commonwealth shall be vested in a Federal Parliament, which shall consist of the Queen, a Senate, and a House of Representatives and which is hereinafter called “the Parliament” or “The Parliament of the Commonwealth”’

Commonwealth of Australia Constitution Act 1900 (Cth) s 1

The Parliament shall have power to make laws in and for Victoria in all cases whatsoever’ Victorian commencement

Constitution Act 1975 (Vic) s 16

Commonwealth commencement Rise for interpretation: Victorian legilsation Rise for interpretation: commonwealth legislation Statutory interpretation: overaching prin iple

Interpretation of Legislation Act 1984 (Vic) s 10A: 1 year after royal assent Acts interpreptation act 1901 (cth) section 3A : 28 days after royal assent

Project Blue sky inc v Australian Broadcasting authority (1998) 194 CLR 355,

384 

The literal approach

“… the duty of the court is to give the words of a statutory provision the meaning that the legislature is taken to have intended them to have. Ordinarily, that meaning (the legal meaning) will correspond with the grammatical meaning of the provision. But not always. The context of the words, the consequences of a literal or grammatical construction, the purpose of the statute or the canons of construction may require the words of a legislative provision to be read in a way that does not correspond with the literal or grammatical meaning.”

Amalgamated Society of Engineers v Adelaide Steamship Co Ltd (1920) 28 CLR 129, 161 (Higgins J) ALSO

Higgin v O’Dea [1962] WAR 140: recall: the context of the words, the purpose of the statute and the consequences of a literal reading must now also be considered

Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355, 384

The golden rule

The literal meaning may be modified where it would lead to an absurdity or an inconsistency but only so as to avoid such result Grey v Pearson (1857) 10 ER 1216, 1234

The mischief rule

Courts should look for ‘the true reason of the remedy’ and make

‘such construction as shall suppress the mischief, and advance the remedy’ – Heydon’s Case (1584) 76 ER 637, 638

The Mischeif rule

•

The rule only applied where the literal approach created an ambiguity

•

Maritime Services Board of NSW v Poseidon Navigation Inc [1982] 1 NSWLR 72

The purposive approach under Cth legislation:

Acts Interpretation Act 1901 (Cth) s15AA provides:

The purposive approach under vic legislation: The modern purposive approach:

Interpretation of Legislation Act 1984 (Vic) s35(a) ‘[T]he literal rule of construction … must give way to a statutory injunction to prefer a construction which would promote the purpose of an Act… The approach required by s 35 needs no ambiguity or inconsistency; it allows a court to consider the purposes of an Act in determining whether there is more than one possible construction’ Mills v Meeking (1990) 169 CLR 214, 235, Dawson J)

courts are not permitted to ignore the actual words in the act

R v L (1994) 49 FCR 534

Can the court correct errors in the act?

Taylor v Owners – Strata Plan No 11564 [2014] HCA 9

The purpose ‘resides in the text and structure’ of the legislation Where two interpretations are open, the one that avoids ‘unreasonable consequences’ (or ‘absurd’, ‘unjust’, ‘irrational’ consequences) is to be preferred

Lacey v AG (Qld) (2011) 242 CLR 573, [44]. Federal Commissioner of Taxation v Barton (1957) 96 CLR 359.

The modern approach to statutory interpretation (a) insists that the context be considered in the first instance, not merely at some later stage when ambiguity might to thought to arise, and (b) uses ‘context’ in its widest sense’ All words are presumed to carry meaning

CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384, 408

Words are presumed to be used consistently throughout the act

Wilson v Commissioner of Stamp Duties (1986) 6 NSWLR 410, 418

Words are presumed to carry their current meaning

Deputy Commissioner of Taxation v Clark (2003) 57 NSWLR 113, 145

Noscitur a sociis

(‘a thing is known by its associates’)-look at the words around it.

Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355, 382

•

Ejusdem generis

(‘of the same kind’) •

Expressio unius est exclusio alterius

Eg. ‘burning, tearing or otherwise destroying the will’

(‘the mention of one thing is the exclusion of another’) •

Generalia specialibus non derogant

Eg. R v Ann Harris (1836) 173 ER 198: ‘stab, cut or wound’

Eg. Dean v Wiesengrund [1955] 2 QB 120

(‘general provisions do not override specific provisions’)

For the purpose of an act, ordinary words may be given a specific meaning:

Eg a trade meaning – ‘pastry’ in Herbert Adams Ltd v Federal Commissioner of Taxation (1932) 47 CLR 222

Dictionaries (ordinary meaning) may be used for assistance but are not conclusive

State Chamber of Commerce and Industry v Cth (1987) 163 CLR 329, 348

The words of a Minister must not be substituted for the text of the law’

Re Bolton, Ex parte Beane (1987) 162 CLR 514, 517 (Mason CJ, Wilson and Dawson JJ)

Commonwealth legislative use of extrinsic materials (threshold test)

Acts Interpretation Act 1901 (Cth) s 15AB:

Victorian legislation use of extrinsic materials Interpretation in the wider context: reference to a person in an act includes ‘a body politic or corporate as well as an individual’ CLP: Parliament does not interfere with fundamental rights

Interpretation of Legislation Act 1984 (Vic) s 35(b) ILA s 38; AIA s 2C(1)

CLP: All criminal offences have some form of mens rea

He Kaw Teh v The Queen (1985) 157 CLR 523

CLP: Penal provisions criminal provision with a penalty) are strictly construed

Beckwith v R (1976) 135 CLR 569

CLP: Statutes do not operate retrospectively

Exception: procedural matters Rodway v R (1990) 169 CLR 515

CLP: Legislation does not bind the Crown

Borpho v Western Australia (1990) 171 CLR 1

Coco v R (1994) 179 CLR 427

CLP: Legislation does not have extra ILA s 48; AIA s 21

territorial effect

CLP: Parliament intends to legislate in conformity with international law

Minister for Immigration & Ethnic Affairs v Teoh (1995) 183 CLR 273

CLP: Parliament does not abrogate the privilege against selfincrimination

Crafter v Kelly [1941] SASR 237

CLP: Parliament does not abrogate legal professional privilege

Daniels Corporation International Pty Ltd v ACCC (2002) 213 CLR 543

CLP: Parliament does not deprive people access to the courts

Plaintiff S1157/2002 v Commonwealth (2003) 211 CLR 476

CLP: Property rights are not taken away without compensation

Durham Holdings Pty Ltd v NSW (2001) 205 CLR 399

Statutory meaning of ‘may’ and ‘shall’

ILA s 45 and AIA s 33

an act performed in breach of an obligation is not necessarily invalid

Project Blue Sky case...