CH12 - The Courts

When does statutory interpretation occur

when there is a dispute over the meaning of words and phrases contained in an act of parliament and the case is brought before the courts

What is statutory interpretation

judges give meaning to unclear words and phrases, clarify what it means and how it can be applied, doesn’t change the actual words or phrases in the statute

Reasons for statutory interpretation

• resolving problems that occur during drafting

• bill might not have taken future circumstances into account

• intention of the bill might not have been clearly expressed

• mistakes in drafting

Resolving problems that occur during drafting

because drafting is complex task, the parliamentary counsel must gain info from a range of docs and work with gov agencies to clarify policy proposals and effective legislation

Bill might not have taken future circumstances into account

technology

Mistakes in drafting

• words may have been missed

• heading not included

• punctuation

• gender specific words or pronouns used where they shouldn’t have been

Resolving problems that occur during the application of statutes

• most legislation is drafted in general terms

• act became out of date or no longer reflects community vv

• ambiguous meaning of words

• silent on an issue and courts have to fill in the gaps

• meaning behind words can change

Most legislation is drafted in general terms

• so it can cover a large range of circumstances

• sometimes so broad they need to be interpreted before being applied to specific circumstances

act might be silent on an issue and the courts may need to fill in the gaps

• statutes try to cover all situations that might arise in relation to the issues covered but it may not be possible and there might be unforeseen gaps left

meaning of words can change

for example currency or money, now they need to decide if it extends to digital currency

effects of statutory interpretation

• the word or phrase contained are given meaning

• the courts decision on meaning is binding on both parties

• precedent

• the meaning is restricted or expanded

what is a precedent

a legal principle and reasoning behind a courts decision that must be followed in lower courts in future cases with similar material facts

reasons for the doctrine of precedent

• helps ensure common law is consistent and predictable

• upholds the rule of law

• ensures like cases are decided in like manner enabling parties to look back on previous cases to gain an idea for theirs

• judges have some guidance as they can refer to old cases and act accordingly

• decisions made by more experienced judges in higher courts are followed in lower courts

• so the same point isn’t being decided repeatedly

ratio decidendi

• binding part of a court judgement

• the legal reasoning behind the decision

stare decisis

• describes process of lower courts following the precedents of higher courts

• means to stand by what has been decided

• when appropriate and required, judges should stand by previous decisions to ensure common law is consistent and predictable

persuasive preedents

• might be an important relevant legal principle

• highly regarded by the judge and used to guide or sway their decision

• although not binding, in reality in order to maintain consistency judges will inevitably follow them

• HC exception who will not do so if it no longer considered the previous precedent to be a good law

obiter dictum

• a thing said by the way

• refers to statements made by a judge that aren’t part of the reason for the decision and is therefore not binding but may still be important

• statements made on obiter dictum contained in court judgements can also be considered persuasive

reversing a precedent in the same case or appeal

• a judge mat disagree and decide to change a previously established precedent set by a lower court

• when a court reverses an earlier decision in the same case or appeal a new precedent is created by the superiors court decision and becomes the one to be followed

overruling precedent in a different and later case

• they create a new precedent that makes the earlier one inapplicable

• similar to reversing except it only applies to changing a precedent in a different and later case

distinguishing a precedent

• judge can avoid following an existing binding precedent if they can find a difference between material facts

disapproving a precedent

• judges and magistrates in lower courts who are bound to follow precedents in superior courts may express their dissatisfaction

• while the statement doesn’t avoid following it it may be used in an appeal to indicate the original judge’s dissatisfaction

courts making law and juries

• establishing precedents and making law generally occurs during appeal so no jury

• a verdict given by a jury cannot create a precedent or establish a legal principle because juries determine only the facts no decide on points of law

• juries don’t give reasonings for their decisions whilst judges do

consistency and predictability - affects of precedents on law making

• a party that takes a case to court can look at past cases and anticipate how they law may be applied

• legal rep can give advice on how a court may decide their case

limitations of consistency and predictability

• difficulty and cost in locating relevant precedents, large volume, technical language, without headings

• difficulty identifying legal reasoning, must look at majority of judges

• difficulty predicting future developments, precedents can be RODD

flexibility - way precedents affect law making

• through RODD precedents change and develop over time allowing the gradual expansion of common law

• even if they don’t RIDD they have to interpret words and meaning

limitations of flexibility

• doctrine restricts ability of lower courts to change the law in cases where they’re bound by a previous precedent established by a higher court

• may lead to unjust outcome if precedent is outdated and party can’t afford appeal

way doctrine limits ability of courts to make law

• courts are reactive and only superior courts can make law

• judges in superior courts are restricted to making law that is needed to clarify some issue in the case

• judges make law ex post facto, case must be brought

• parliament is the supreme law making body and can abrogate common law

ex post facto

used to describe a law that is established in relation to an event that has already taken place

judicial conservatism

• the idea that the court should show restraint or caution when making decisions and rulings that could lead to significant changes in the law

• judges won’t go far beyond established law

• decisions are not based on their own views or political opinions or the community’s views

strength of judicial conservatism

helps maintain stability in the law because judges are cautious and show restraint when making decisions that could lead to significant changes in the law

weaknesses of judicial conservatism

• restricts ability of the courts to make major and controversial changes

• judges may not consider a range of social and political factors when making law

• may be seen as not being progressive and not factoring in 21st century views and values

judicial activism

the willingness of judges to consider a range of social and political factors including community views and the rights of people when interpreting the law

weaknesses of judicial activism

• some argue they make decisions arguably outside their legislative or constitutional power

• can lead courts to making more radical changes in the law that don’t reflect community’s values

• may lead to more appeals on the question of law

• judges are limited in being progressive or active given the nature of their role in deciding cases within the confines of material brought up

• parliament can abrogate decisions

role of lawyers and barristers in cases - costs of legal rep

• conduct research intoi the case including previously established precedents

• analyse evidence and documents

• interview and prepare witnesses

• present legal arguments and evidence in the court in accordance with strict rules of evidence and procedure

cost of elgal rep

legal rep and court fees, may deter people from making frivolous or trivial claims

court fees

• filing, hearing, jury fees

• july 1 2023 a standard application for leave to appeal in sup court is $2423.20 and hearing fees cost $896.80 for every day after the first

time involved with bringing a case to court strengths

• court can make law relatively quickly once a dispute has been brought to them

• judges aren’t required to follow lengthy procedures like developing, drafting and passing a bill through parliament

how time and costs hinder the development of law

• judges in superior courts must wait for cases to come before them to develop the law

• the time taken to appeal slows devleopment

• the reluctance of parties to pursue legal claims because of it means less opportunity for judges to develop law

standing

the party must have been directly affected by the issues or matters involved in the case to have the right to commence a legal proceeding in court

why is standing particularly important in the hc

• they generally only hear cases where a person has special interest meaning they are more affected than other members of the general public

• they must prove they are more affected by the law and will gain a greater material advantage other than winning or suffer a greater one besides losing

strengths of standing

• ensure cases are only passed by people who are greatly affected by an issue or matter, preventing wasting of time, money and personnel

• discourages frivolous actions

weakness of standing

• can prevent plaintiffs who have a general interest in a case from pursuing the matter on behalf of another person or in the interest of the general public

the supremacy of parliament

• can make and change any law within constitutional power

• codification and abrogation

• responsible for passing legislation to create the courts and determine their jurisdictional powers, 1989 vic mag

• can restrict courts but in accordance with the separation of powers must ensure it allows them to remain independent and act as a check on parliament

ability of courts to influence parliament

• obiter dicta comments from judges can inspire or encourage parliament to initiate law reform

• can influence change if lower court bound by a precedent considered a bad law by the community and is unwilling to overrule or reverse it

• highlight a problem or cause public outcry

codification of common law

• power to pass an act that assembles all the relevant law in a particular area both common and statute to create on all encompassing law

• allows parliament to pass legislation that reinforces principles established in court rulings and gives an opportunity to clarify, expand or reform relevant area

abrogation of common law

• power to pass legislation that abrogates decisions made by courts with the exception of hc on constitutional matters

• may be necessary in circumstances where parliament believes court misinterpreted statute

• argued that it could lead to an unjust law if parliament overrides a valid legal principle