An Introduction to the Law and its Sources Susan Carter

Transcription

An Introduction to the Law and its Sources Susan Carter
An Introduction to
the Law and its
Sources
Susan Carter
Pepper Finance Corporation v
Williams

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
Common sense vs legal sense
Common knowledge or technical
knowledge
Essence of common law
Technical vocabulary
Specialised legal terms

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Words with specific legal meanings and little
if any use in everyday speech - ‘pure’ law
terms
Examples:
 Chose in action
 Chose in possession
 Fee simple
 Estoppel
 Codicil
General terms given special legal
meaning in particular contexts

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Words that are not ‘pure law’ terms but
acquire special legal definition in particular
contexts through
 the provisions of a statute
 the process of judicial interpretation
Example:
Competition and Consumer Act 2010 (Cth)

the meaning of the word ‘goods’ is defined in section
2 of Schedule 2; ‘consumer’ is defined in section 3 of
Schedule 2
Legal terms also found in everyday
speech
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Words with related legal and general meaning
Examples:
 land
 negligence
 nuisance
 assault
 offer
 agent
Legal terms also found in everyday
speech

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Words with different legal and general
meaning - legal meaning is entirely different
from usual English
Examples:
 consideration
 equity
 summary (as in ‘a summary offence’)
 execute (as in ‘to execute a document’)
 title (as in ‘title to goods’)
And not just English....
Latin
Meaning
ratio decidendi
/ratio
the essential reasoning for the decision of a case; the
binding precedent established by the case
obiter dictum /
dicta
an observation by a judge that is not essential to the
reasoning for the decision (distinguished from the ratio)
per curium
‘by the Court’ ( a proposition made by the judge)
coram
‘in the presence of’
cur adv vult
curia advisi vult =
the court wishes to consider the matter
ultra vires
beyond/in excess of legal power
in limine
‘on the threshold’/preliminary
(used to describe an objection or pleading)
semble
‘it appears’
Latin maxims
Latin
Meaning
Volenti non fit
injuria
there can be no injury
to the willing
Caveat emptor
let the buyer beware
Actus no facit
an act does not make
reum nisi mens a person guilty unless
sit rea
the mind is guilty
Cuis est solum
eius est usque
ad coelum et
ad inferos
‘land’ is the surface
and everything under
it to the centre of the
earth and everything
above it to the
heavens
Legal sense v ‘Common sense’

Pepper Finance Corporation v Williams [2008]
NSWSC 4
Law v Politics

“Judges are bound by legal texts and their
own prior precedents to a degree that
political actors are not. And crucially,
judges have an obligation to explain their
results as the product of legal judgement.”
Michael C. Dorf
To remember:
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Law is both a body of knowledge and a way of
thinking about that knowledge: it is important to
master both.
You are expected to know not just what the law
is, but why. Anytime you think about the
answer to a legal question – ask yourself, why
do I know that this is the answer? What is my
legal source or authority?
You may disagree with some or indeed all of the
substantive law which you are studying. But
you cannot change it simply by disagreeing with
it. If you want to change the law – that is turn
your policy into law – you need to understand
the law and its processes first.
Law v Policy
“Courts and judges are not meant to have
agendas, and judges are not meant to seek
popularity. They are expected to
administer justice according to law,
regardless of the consequences for their
approval ratings. A judicial decision that
pleases one side or the other of a partisan
conflict will always attract applause or
blame from some of the partisans, but
people expect judges to attend to the task
of administering justice and to leave
politics to politicians.”
Gleeson CJ
Law v Politics
“Behind the legal issues that the
Court must decide there often are
intensely political concerns. Yet the
Court is expected to resolve those
issues according to law, and adhering
to legal methodology. We expect
judges to decide issues after hearing
argument in specific cases.”
Gleeson CJ
Legal approach v personal opinion
“In Australia, one of the
responsibilities of the High Court is
to decide the constitutional validity
of federal or State legislation. The
public would be outraged if the
Justices advanced, as a reason for
holding legislation to be valid or
invalid, their approval or disapproval
of the policy of the legislation.”
Gleeson CJ
Latham CJ, First Uniform Tax case
"[T]he controversy before the Court is a legal
controversy, not a political controversy. It is not for
this or any court to prescribe policy or to seek to
give effect to any views or opinions upon policy. We
have nothing to do with the wisdom or expediency of
legislation. Such questions are for Parliaments and
the people ... The Court must consider and deal with
... [the] legal contention. But the Court is not
authorized to consider whether the Acts are fair and
just as between States - whether some States are
being forced, by a political combination against
them, to pay an undue share of Commonwealth
expenditure or to provide money which other States
ought fairly to provide. These are arguments to be
used in Parliament and before the people. They raise
questions of policy which it is not for the Court to
determine or even to consider."
Statute Law and Case
Law
Sources of law
• Statute –laws
made by
Parliament
• Case law –
laws made by
judges
Statutes v Case law
Statutes operate from the
general to the particular,
whereas cases operate from
the particular to the general.
CITATION OF STATUTES
• Statutes are always cited:
Title/Year/(Jurisdiction)
• Australian Sports Drug Agency Act
1990 (Cth)
• Exotic Diseases of Animals Act
1993 (WA) s6
• Methodist Church of Samoa in
Australia Property Trust Act 1998
(NSW) s4(2)(d)
STRUCTURE OF AN ACT
•
•
•
•
•
NUMBER
DATE
LONG TITLE
SHORT TITLE
PREAMBLE (OR PURPOSE CLAUSES
INSTEAD OF A PREAMBLE)
• Preamble always starts with “Whereas”
• TABLE OF CONTENTS
• PARTS OR CHAPTERS, DIVISIONS AND
HEADINGS
SYDNEY TURF CLUB ACT 1943
As at 13 November 2007
Act 22 of 1943 TABLE OF PROVISIONS
Long Title
An Act to constitute and incorporate a Sydney Turf Club
and to declare its objects, functions and powers; to
provide for the acquisition by that club of certain
racecourses and the equipment thereof; to provide for
the discontinuance of the licences of certain
racecourses; to provide for the establishment of a
Racing Compensation Fund in the Treasury; to amend
the Gaming and Betting Act 1912 and certain other
Acts; and for purposes connected therewith.
PART 1 - PRELIMINARY
1 Name of Act and commencement
(1) This Act may be cited as the Sydney Turf Club Act
1943 .
(2) This Act shall commence on a day to be appointed
by the Governor and notified by proclamation published
in the Gazette.
(Repealed)
3. Definitions
3A. Notes
PART 2 - SYDNEY TURF CLUB Division
1 - Incorporation and constitution
4. Constitution etc
5. Application of income etc
6. First members, directors and auditors
2.
Division 2 - Objects, functions and
powers
7. Objects and functions of Club
8. Acting secretary
Division 3 - Financial
9. Temporary accommodation
10. Power to borrow
11. Insurance, and payments out of funds
Division 4 - (Repealed) None
PART 3 - RACING COMPENSATION
FUND 15-18. (Repealed)
PART 4 - GENERAL
19. Members defaulting in payment of bets
not eligible to continue as members
20. Rights of member personal
21. By-laws
22. Commencement of by-laws
23. Public notification of by-laws
24. Offences etc
25. Exclusion of undesirable persons
26. Directors may fix tolls and charges
27. Power to let lands, buildings or tolls
28. Inspection
29. Club to repair etc
30. Indemnity
31. (Repealed)
32. Regulations
SCHEDULE 1
Schedule 2 (Repealed)
SCHEDULE 3
Three good sites for finding
legislation:
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http://www.comlaw.gov.au
http://www.austlii.edu.au
www.legislation.nsw.gov.au
The Section is the most
important part of an Act
Sections are sub-divided into:
SECTION
SUB-SECTION
PARAGRAPH
SUB-PARAGRAPH
s1
(2)
(a)
(v)
Australian Consumer Law
- s18
Misleading or deceptive conduct
(1) A person shall not, in trade or commerce,
engage in conduct that is misleading or
deceptive or is likely to mislead or deceive.
Elements of s18(1)
• Person
• Trade or commerce
• Engage in conduct
• Misleading or deceptive
Case law
Decision: relevant only to the parties
 Ratio decidendi
: reason for decision

: this answers the legal
question for decision
: creates the binding
law
CASE CITATION
Plaintiff’s Name v Defendant’s Name
(Civil case)
OR
R v Person charged with offence/Defendant
or Accused
(Criminal case)
THEN
• YEAR in which the case was
decided (in square or round
brackets depending on the
reporting system used)
• VOLUME in which the case has
been reported
• ABBREVIATION of the particular
report
• PAGE NUMBER at which the
report begins, and
• PAGE NUMBER from which you
are quoting (and name of judge)
Examples:
• Behrens v Bertram Mills Circus Ltd
[1957] 2QB 1
• Australian Broadcasting Corporation v
Lenah Game Meats Pty Ltd (2002)
208 CLR 199
• R v Brown [1994] 1 AC 212