Ratio decidendi ... 14
Identifying the Ratio ... 14
Example – Donoghue V Stevenson ... 14
Obiter Dictum ... 14
Stare Decisis ... 15
Jurisdiction Definition ... 15
Courts and their Abilities ... 15
The High Court ... 15
High Court’s Binding Jurisdiction ... 15
Departures from Own Precedent ... 15
Constitutional Cases ... 16
The Mason Era (1987 – 1995) ... 16
Post-Mason Era (1995-) ... 17
Federal Court of Australia ... 17
Cross-Vesting ... 17
Farah Constructions v Say-Dee PTY LTD [2007] HCA 22 at [151] ... 18
Federal Circuit Court ... 18
The Family Court ... 18
State Courts ... 18
Why are judges so hesitant to depart from precedence? ... 19
Full Court Decisions ... 19
EXAMPLE Interjurisdictional Usage of Legislation - CAL NO 14 v Motor Accidents Insurance Board (2009) 239 CLR 390 ... 19
Interjurisdictional Usage of Legislation... 19
“Plainly or Clearly Wrong – manifestly or materially incorrect” ... 20
Inferior Courts ... 20
Tribunals ... 20
International Judgements ... 20
When Judges Disagree ... 20
Judicial Reasoning – Superior Courts ... 21
Central Considerations ... 21
What if there is No Authority ... 21
Three Types of Judicial Reasoning ... 21
Formalism ... 21
Activism ... 21
Criminal Appeals, Qld Procedure ... 22
District and Supreme Courts ... 22
Civil Appeals ... 22
High Court Appeals ... 23
Appellate Jurisdiction of the HCA ... 23
Outcome of Appeal ... 23
Legislative Process ... 23
Governing Principles of Legislation ... 23
Legislative Process ... 24
Commencement Dates ... 24
Revival and Sunset Clauses ... 25
Retrospective Commencement ... 25
Amending Legislation ... 25
Repealing Legislation ... 25
Amending Regulation ... 26
Amending Constitution ... 26
Law Reporting ... 26
Reported ... 26
Unreported ... 26
Authorised Reports ... 26
Unauthorised Reports ... 26
Judicial ... 26
Tribunal... 26
Use of Law Reports ... 27
Catchwords ... 27
Head Note ... 27
Statutory Interpretation ... 27
Basics of Statutory Interpretation ... 27
Where Do We Find Definitions? ... 27
Statutory Interpretation Principles ... 27
Functions of Interpretation Legislation ... 28
Nuances of Statutory (Cth + Qld) Interpretation ... 28
Gender ... 28
Distance ... 28
Calculating Time ... 29
Obligations and Discretions ... 29
Common Law Rules ... 30
Doctrine of Precedent ... 30
Development of Common Law Rules ... 30
Statutory Interpretation Principles – Use when Legislation is believed to be Incorrectly Stated. ... 30
Literal Rule ... 30
Literal Absurdity ... 30
Golden Rule ... 31
Mischief Rule ... 31
Modern Day Mischief Rule ... 31
Statutory Interpretation - Problem Solving Process ... 32
Jurisdiction ... 32
In Force ... 32
Issues Which Arise ... 32
Analysis ... 32
Purpose... 32
Conclusion ... 33
Contexts of Statutory Interpretation ... 33
Intrinsic Materials ... 33
Long Title ... 33
Short Title ... 34
Preamble... 34
Objects Clause ... 34
Definitions ... 34
Headings ... 34
Schedule ... 35
Examples ... 35
Penalties ... 35
Meaning of Words ... 35
Ordinary Meaning ... 35
Technical or Legal Meaning ... 35
Drafting Errors... 36
Extrinsic Materials ... 36
Ordinary and Natural Meaning of Words ... 36
Stare Decisis
Old law upheld without legislation in place. If a judge does change the law by overruling or altering the principle, it has a range of unknown consequences If the court changes the law in the face of government policy, it is often criticised for “judicial activism”, and even of usurping executive or legislative power. Ultimately depends on the selection and application of a human actor, the role of values, bias, and personal histories comes into play.
Jurisdiction Definition
- Physical territories that are within a court’s power i.e. Qld, NSW.
- Jurisdiction is the authority which a court has to decide the range of matters that can be litigated before it.
Courts and their Abilities
The High Court
- The High Court is both an original and appellate jurisdiction.
Original – has matters taken to the court without needing to be appealed first.
Appellate – deals with any cases of appeal.
- The High Court is established pursuant to Constitutional and Statutory authority;
Constitution, s 71; High Court of Australia Act 1979 (Cth) - Single: matters of regional jurisdiction
- 3 -5: appeals
- Full 7: significant constitutional matters.
- Decisions binding on all State and Federal Courts.
- Even Obiter statements are to be followed by lower (subordinate) courts.
High Court’s Binding Jurisdiction
- A single judge is not bound by the decision of another single judge within the court.
- A single judge is bound by the decisions of two or more Justices of the HCA.
- The Full Court (5-7) is not bound by any decisions, including its own (with reluctance) - Appellate courts at the apex of the judicial hierarchy are always conservative. They
can depart; however, such a course is not lightly taken.
Departures from Own Precedent The HCA will overrule itself when;
- Johns v Federal Commissioner of Taxation (1989) 166 CLR 417 at 438
- Earlier decisions did not rest upon a principle carefully worked out in a significant succession of cases.
- Judges all reach an agreement, however their reasoning for their conclusions vary materially.
- The decision had achieved no useful result but had led to considerable inconvenience. Earlier decision made considerable confusion within the community.
Why are judges so hesitant to depart from precedence?
When there is no binding decision from the Court of Appeal or the High Court, it is the personal responsibility of the trial judge of that court to determine the case before them. This duty is not performed when the judge fails to determine that matter, preferring to simply follow an earlier decision on point of another member of the Court.
Where there is an earlier decision of a single judge of this Court on point, the judge noes not start with no basis. Proper regard must be given to the previous judgement. Considerations of comity, and the interest of justice, require the previous decision to be followed unless the judge attains a higher than usual standard of conviction that their contrary conclusion is correct.
Will this judge consult others with this contrary belief?
Who will they consult?
Is there a defined process involved?
Full Court Decisions
A state Supreme Full Court is bound by decision of the Full Court of the High Court. But not by single judge decisions of the High Court, or a State Supreme Court.
Generally, such courts should not otherwise depart from decisions of equivalent courts unless plainly wrong: Farah Constructions v Say-Dee PTY LTD
Queensland Supreme courts will be bound by Queensland Legislation and common law, however may be persuaded by legislation or common law form other jurisdictions.
EXAMPLE Interjurisdictional Usage of Legislation - CAL NO 14 v Motor Accidents Insurance Board (2009) 239 CLR 390
Interjurisdictional Usage of Legislation
Legislation from other jurisdictions can be used to clarify the natural and ordinary meaning of words. Judicial decisions that are able to be related to legislation from other jurisdictions can be used as guides – they cannot be used as substitutes for the text of legislation (Unless in cases where Commonwealth Legislation is discussed/ HCA decisions): McHugh in Marshall v Director General, DPT of Transport (2001) 205 CLR 603 [62].
