MLL110 Legal Principles and Skills Topic 1: The Law in Practice The myths of legal practices

All lawyers earn a lot of money. In reality it is only the lawyers in the top-tier law firms that earn a significant salary. The majority of lawyers work in smaller firms. It would not be an exaggeration to say that those earning a lot of money work 60 to 80 hour weeks.

There is a right side and a wrong side in every legal dispute. As a lawyer your main concern should not be your profile as an advocate for justice, but rather be with your client and their needs. There are always at least two sides to every story and determining who is right or wrong is not simple.

A lawyer needs only to be good at arguing. Advocacy is about persuasion using logical, well-researched, well-reasoned points based on the relevant facts and law. You also have to negotiate.

Legal work is glamorous and exciting. The majority of work lawyers do is away from the courtroom and most spend their days in their office reading documents, interviewing clients, researching the law, and drafting letters, briefs and memorandums.

The realities of legal practices Lawyers help people. People come to lawyers to receive help on problems that they

cannot solve themselves. They are often involved in significant events in peoples lives.

Lawyers give clear advice about complicated issues. Lawyers need to be able to understand the relevant law and the system in which it can be used, analyse the law in the context of the particular problems being considered and apply the law to the clients issues so as to resolve their problems as effectively as possible.

Lawyers are negotiators and advocates. Lawyers need good communication skills, advocacy skills and negotiating skills.

Lawyers read a lot. They have to read cases, legislation, textbooks, legal encyclopaedias and journal articles.

Career Paths Solicitor:

o Interview clients o Provide legal advice and recommend courses of action o Draft contracts, deeds, trusts, wills, leases and other documents o Carry out investigations on behalf of a client o Prepare cases for court and arrange witnesses o Act as a trustee, a guardian or the executor of a clients will o Conduct legal research o Keep up to date with legal developments

Barrister: o Argue cases before civil, criminal and industrial torts o Argue cases before tribunals and arbitrators

o Provide advice and opinions about difficult legal questions o Confer with instructing solicitors o Speak with clients and witnesses prior to court proceedings o Draft court documents such as pleadings and affidavits o Draft a range of other legal documents o Conduct legal research o Keep up to date with legal developments

Private Sector: o Private practice. When a solicitor works for a law firm and a barrister is self-

employed they are in private practice. Small firms have no more than 5 partners, medium firms have from 5 to 20 partners, and large firms have more than 20 partners.

o In-house counsel. A lawyer who is employed by a large organisation to provide legal advice and representation within the organisation.

Public Sector: o Government. Government lawyers provide a broad range of legal servic3es

including the provision of legal advice, management of legal transactions, drafting of legislation and development of legal policy.

o Judiciary. Usually appointed from the ranks of practicing barristers and are appointed by the State Government acting on behalf of the relevant Attorney-General, or the Governor-General at Federal level.

o Legal aid. Government funded system that provides legal services to those who cannot afford it.

Community Legal Centre: o Provide advice, referral, limited representation, research into legal problems,

and community legal education, usually all free of charge. Alternative Dispute Resolution:

o The range of techniques, mediation, arbitration, and conciliation, that aim to resolve disputes without the need for litigation.

Legal Academic: o Teaching legal subjects whether at universities or other learning platforms.

They have to research, teach and service the university, the profession and the community.

Law Librarian: o Working in law libraries in universities, in the State and Federal courts, and in

the State and Federal parliaments. Legal Publishing:

o Range of opportunities including legal editors and sales positions. Legal Consultant:

o Self-employed lawyers who provide specialist legal advice as well as research, writing and analysis support to other lawyers in private and public sectors.

Paralegal: o Conduct routine legal searches o Complete routine property settlements

o Conduct basic legal research and investigations o Filling in and lodging legal forms o Conducting follow up interviews with clients o Drafting pro forma letters and clauses for contracts o Assisting with administrative matters o Preparing statements of evidence by witnesses o Organising witnesses to attend court o Putting together briefing papers when a barrister is being briefed o Assisting lawyers appearing in court

Contemporary Legal Education Must complete a Bachelor of Laws degree (LLB) or a Juris Doctor degree (JD)

taking 3 to 6 years. The Practical Legal Training (PLT) requirements, whether working in a firm assisted for 12 months or attending further education in less than 6 months, must also be met.

The Threshold Learning Outcomes for Law represent what a law student is expected to know, understand and practice.

o Knowledge o Ethics and professional responsibility o Thinking skills o Research skills o Communication and collaboration o Self-management

Professional Identity Involves how you see yourself as a lawyer and how others see you. It includes your

self-concept as a member of the legal profession and your internalised beliefs, values, expectations, motives and behaviours that arise from how you perceive yourself in your professional role.

From when you start law school you should develop a positive professional identity as anything you do will stay with and impact you.

Academic Integrity To plagiarise in law school is to demonstrate a lack of constant vigilance in abiding

by the ethical dictates of ones professional community. By not plagiarising, you show an in depth knowledge of the material, a commitment

to research and a breadth of reading. The relationship between law and ethics

Law and ethics both regulate human behaviour and guide human choices. Laws are rules of conduct made by the state and enforced by the prosecution of

litigation. Ethics are rules of conduct that either exist objectively or are constructed by humans

and are enforced by the judgement of God, the universe, the community or ones peers.

Ethical rules often influence the development of legal rules and vice versa. The ethical issues confronted by lawyers

Professional Conduct and Practice Rules 2005 o Confidentiality

o Conflict of interest o Stand to obtain a benefit o Not believing your clients innocence

The Victorian Bar Incorporated Practice Rules The duties of a lawyer

To the client. o You must follow your clients instructions and act in their best interests.

To the law. o You must at all times act within the law and uphold the law, whether you

agree with it or not. To the court.

o You are an officer of the court and thus, when engaged in legal proceedings, must not mislead the court, and act with integrity, honesty and candour.

To your colleagues. o You must be fair and honest in your dealings with other legal professionals.

The Admission to Practice requirements in Victoria Educational requirements

o Successful completion of an LLB or JD o Practical Legal Training

Character-based requirements o Good fame and character o Non-disclosure of prior impropriety upon admission

Topic 2: Law and Justice What is law?

The law is objective. The law is a system of rules made by the state and enforceable by prosecutors or

litigation. A system of rules:

o A rule is a statement of behavioural expectation. It tells people how they should or should not behave. To distinguish between a legal rule and a non-legal rule you need to consider the source.

Made by the state: o Legal rules are made by the state. Rules made by other organisations or

persons are non-legal rules. Enforceable by prosecution or litigation:

o There are legal consequences for those who do not obey the laws. o Prosecution is the process by which one may be accused by the state of

having committed a criminal offence if a criminal law is broken. o Litigation is the process by which the person who is harmed by the person

who contravenes a civil law is sued. The categories of law

Substantive and procedural law o Substantive law is the system of legal rules that set out the rights and

obligations of individuals and the state. I.e. whether a contract exists or whether your client is entitled to compensation because another person has defamed them.

o Procedural law is the system of legal rules that regulate legal process such as civil litigation or a criminal prosecution. I.e. whether your client is entitled to a jury at their trial and whether they are entitled to appeal to a higher court.

Public and private law o Public law is concerned with the relationship between the individual and the

state. The set of legal rules that establish the rights and obligations of the state when dealing with individuals and vice versa. I.e. constitutional law, administrative law, taxation law and criminal law.

o Private law is concerned with the relationships between persons within the community. The set of legal rules that establish the rights and obligations of individuals when dealing with other individuals. I.e. tort law, contract law, property law and company law.

o Generally applied to substantive law Criminal and civil law

o Criminal law establishes criminal offences and the penalties for their contraventions. The dispute is between the state, represented by the prosecutor, and the individual.

o Civil law establishes civil offences and the penalties for their contraventions. The dispute is between at least two individuals.

o Generally applied to procedural law

Domestic and international law o Domestic law is the law that regulates persons within a particular jurisdiction

such as a nation or a State. o International law:

Public international law is the set of rules regulating the relationships between states.

Private international law is the set of rules that determine which states laws should be applied to resolve a dispute between people in different states.

The need and purpose for law Resolving disputes. Maintaining social order. By establishing a clear set of rules which everyone must

follow, the law ensures that order is maintained. Reinforcing community values. Members of a community believe certain things to be

right and wrong and certain behaviours acceptable or unacceptable so the purpose of law is to ensure that these values are applied equitably and respected by all.

Helping the disadvantaged. Stabilising the economy. If there is a problem with the economy then the law is

changed to address the problem. I.e. an increase in taxes will result in less disposable income and thus will impact prices, inflation and interest rates.

Preventing the misuse of power. The natural law theory

What the law ought to be according to extrinsic standards. It is law from a morality point of view.

The laws of God The laws of nature The principles of justice Moral values Fundamental human rights Basic goods

Legal positivism Legal positivists insist that there is no necessary relationship between the law and the

extrinsic standards and that the law needs to comply with only intrinsic standards. Law from a more scientific and black and white point of view. The law is the law

because it is the law. Liberalism and Utilitarianism

Liberalism emphasises the importance and freedom of the individual and views certain values such as reason, rights, equality and private property as of paramount importance.

Utilitarianism emphasises the importance of the greatest happiness for the greatest number. E.g. speed limits.

Justice Justice is subjective. Law and justice cannot be used interchangeably as law is

objective whereas justice is subjective.

Mutual agreement. Justice is whatever the community agrees that it is. Consequentialism. Justice is the decision or action that has the best consequences for

total welfare. Divine command. Justice is the authoritative command of a deity such as the

Christian, Islamic or Jewish God. Natural law. Justice is a universal and absolute concept, an objective standard against

which all laws and legal processes can be judged. Positive law. Justice is whatever the law says.

The theories of justice Distributive justice is concerned with the fair and proper distribution within a group

or a community of things such as wealth, resources and power. o Egalitarianism. Resources should be distributed equally within the group or

community, either in terms of equality of opportunity or equality of outcome. o Desert theory. Resources should be distributed according to what each

member of the group or community deserves, the basis of which is not equality.

o Utilitarianism. Resources should be distributed so as to maximise the total or average happiness or welfare across all members of the group or community.

Procedural justice is achieved if a person receives a fair hearing or trial. Retributive justice is the proper response by the state to a wrongful act.

o Desert theory. Punishment should be decided according to what the offender deserves.

o Utilitarianism approaches to retributive justice, compensation and/or punishment is justified if it maximises the overall welfare of the community by:

Deterring other offenders Rehabilitating existing offenders Ensuring that the law is complied with

Accessing justice and its problems Ignorance:

o The obscurity of the law. Legal writing is difficult to read and understand. o The instability of the law. The law is always changing thus many people find

it difficult to keep up with the current state of the law. o The quantity of law. There are many laws in the forms of legislation,

regulations and by-laws, conventions and treaties, codes of conduct and judicial decisions. Thus many people say communities are over-regulated and it is impossible for a layperson to be aware of all of these laws.

o The portrayal of law in the media. The media often represent inaccurate and distorted descriptions of the law and portrayals of the legal system in the interests of brevity, sensationalism or telling an engaging story.

Cost. Legal advice and, in particular, litigation is very expensive. Thus often a poorer client is more likely to be convicted then a wealthier client.

Discrimination and disadvantage.

Accessing justice and its solutions Advertising by lawyers. This would allow people to become aware of when it is

appropriate to initiate legal proceedings Plain English. Interpreters and translators. Community legal centres. Legal aid. Pro bono legal work. Conditional costs agreements. An agreement that states that a clients payment of the

lawyers fees is conditional on the problem being resolved successfully. Litigation lending. Companies that take on more risky clients and operate on the

basis that they are paid an agreed proportion of any award of damages or settlement monies.

Self-representation. Alternative dispute resolution.

Social justice in regards to homelessness and immigration detention and the role of lawyers Homeless people are more likely to be charged with crimes such as theft or assault,

be a victim of crime, be involved in a dispute for unpaid rent or items, or be involved in family law proceedings.

Immigration detention also requires lawyers to provide advice on issues that may arise due to the detention such as claims for negligent treatment or wrongful detention.

It is therefore important for lawyers to provide pro bono work and for community legal centres to be available so that homeless people and those in immigration detention can access the much needed legal services that they require.

Topic 3: Legal History and the Australian Legal System Customary law and terra nullius

Customary law is much more than a body of rules used to resolve disputes, maintain social order, reinforce community values, help the disadvantaged.

It encompasses elements of law, spirituality, ceremony and business. Knowledge of the customary law is often kept secret. Disputes are usually settled by discussion and arguments, often under the supervision

of elders. Punishments include: o Verbal admonishment o No access to secret knowledge o Physical punishment (e.g. spearing) o Death

Due to the differences between customary law and British law, the British refused to accept customary law as a valid legal system and thus decided on the doctrine of terra nullius.

Terra nullius means empty land or land belonging to no-one and thus the settlers in the late 1700s declared the Australian continent to be terra nullius.

No treaty with the Indigenous Australians was seen to be necessary as they had no sovereignty to relinquish to the British.

British law recognised two types of colonies and as a result Australia was seen to be settled rather than conquered.

o Colonised territories that were previously uninhabited were categorised as settled territories or had primitive inhabitants without a civilised legal system.

o Colonised territories that were taken over by military force or ceded to the British were categorised as conquered territories.

The doctrine of reception is the act of the British ignoring the Indigenous legal system and applying their own.

Terra nullius was overturned in 1992 by the High Court of Australia. o Mabo v Queensland (no 2) [1992] 175 CLR 1

The Native Title Act 1993 (Cth) The current view is that Australia was not terra nullius at the time of British

settlement and that the Indigenous had their own legal system in the form of customary law. The doctrine of reception has not been overturned and Australias current laws still derive their validity from the British legal system.

The feudal system Under the feudal system the monarch is the ultimate owner of all the land in the

kingdom. The possession of this land was granted to barons who promised loyalty and support in exchange. The barons then granted the land to knights in return for their military service. In turn, the knights granted the land to peasants in exchange for either labour (the serfs) or rent (free peasants).

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The monarch is the source of all political power. They had the divine right of kings. They had the absolute right to rule from God and could do no wrong.

Magna Carta The Magna Carta is a constitutional document in which a range of fundamental rights

held by English citizens are acknowledged. With the signing of the Magna Carta, the rights of individuals began to be officially

acknowledged. It imposed a requirement upon the monarch that they summon and consult with the

Council prior to making certain laws. Executed by King John in 1215.

Bill of Rights The Bill of Rights granted English citizens certain rights and established Britain as a

constitutional monarchy, a system of government whereby the monarch acts on the advice of the parliament (the Westminster system).

The rights it granted included: o Freedom of speech in parliament o Freedom from cruel and unusual punishments and excessive bail o Freedom from fines and forfeitures with trial

Executed by King William III in 1689. Constitutional monarchy

A system whereby the head of state is a king or queen and they hold their position not by force of arms but according to the will of the people.

Separation of powers doctrine There is a distinction between the power to make law, the power to administer law

and the power to interpret law.

Legislature is made by parliament, whether Federal or State and Territory.

MonarchBarons

KnightsPeasants

Land

Loyal

ty

Government

Legislature Makes law

Executive Administers law

Judiciary Interprets law

Executive power is exercised by the executive government, i.e. the Prime Minister and other ministers within the Federal Government, the Premier etc.

Judicial power is exercised by the judiciary (the system of courts). The three arms of government should as far as possible remain functionally separate

in that: o The same person should not form part of more than one of the three arms. o One arm should not control or interfere with the functioning of another. o One arm should not exercise a function of another.

Social contract theory Recognition that the people in a community choose to submit to the authority of the

sovereign in order to avoid anarchy and to live peaceful lives and in return the sovereign is expected to rule with justice and wisdom.

Initially theorised by Thomas Hobbes in his 1651 book and developed by John Locke in 1689.

Common law and equity In the 12th century, judges began travelling around the country to administer royal

justice, initially basing their rulings on local customary law. A consistency with previous decisions in accordance with the doctrine of precedent was desired and thus by the 14th century a nationally consistent set of rules and principles had begun to emerge.

At first, common law could only be initiated by a writ of command from the king, then standard writs were issued which did not require the consent of the king.

Due to the rigidity of the common law and its inability to resolve many legal problems and provide justice, equity was developed.

English citizens unable to obtain a remedy from the common law courts could approach the monarch and seek royal justice directly.

Responsibility was designated to the Lord Chancellor, the monarchs chief adviser, who would make decisions based on his own ideas of fairness and justice and in the 1300s his own court had been established (the Court of Chancery).

A number of equitable principles were developed including: o Equity follows the (common) law o One who seeks equity must do equity o One who comes into equity must come with clean hands o Equity aids the vigilant o Equity does not assist a volunteer

Development of contemporary Australian legal system The origins of the contemporary Australian legal system are found in British law. When the British first settled in Australia they brought with them their laws as a

result of the doctrine of reception. As time passed, Australian parliament passed laws built on the British law which has

led to an emergence of a uniquely Australian system of law. The British government, represented by the Governor, controlled the colonies in

Australia and applied British law to colonial problems and disputes as appropriate. In 1865 the Colonial Laws Validity Act was passed by the British Parliament. This

stated that only Acts of the British Parliament that were expressly stated to apply to

Australia, or which necessarily applied, could not be amended or repealed by the colonial parliaments.

By the end of the 1800s six independent and self-governing colonies existed in Australia, each with its own constitution, legislature and court system.

In 1891 a National Australasian Convention was held in Sydney. There, they drafted a constitution for the Commonwealth of Australia.

The individual states would remain with their own constitution, legislature and court system, but a new federal level of government was created to execute legislative, executive and judicial power in relation to issues of national importance.

In 1901 the Commonwealth of Australia came in existence. In 1986 the Australian Law Reform Commission issued a report recognising

Aboriginal customary law. In 1915 the state had the power to remove any child without parental consent and

without a court order. In 1969 this power was removed. In 2008 an apology was issued to those affected by this power.

Executive branch of government Executive power is the power to administer the law, carry on the business of

government and maintain order and security. o The Governor-General and the State Governors. Executive power is formally

vested in the monarch and exercised by the monarchs representatives; the Governor-General and the State Governors.

They have a ceremonial role. They represent the nation or the State at important functions.

They have a legal role. They open and close parliamentary sessions, grant Royal Assent to all new legislation, and approve the appointment of senior judges and other officials.

o The Executive Council and the cabinet. Each minister on the various Executive Councils is responsible for a particular ministry and government department. They may be a member of either House of Parliament.

Cabinet: Senior ministersExecutive council: Senior ministers and junior ministersExecutive government: Executive council and public service

Topic 4: Legal Research Skills Types of authoritative legal resources

Primary legal material o Case law (common law): The principle of law arising from the decisions, and

reasons for decisions, made by judges in court. Decisions, or judgments, from superior courts and tribunals are available initially as an unreported judgment, with selected decisions subsequently recorded in law reports.

o Legislation: Statutes or Acts made by Parliament, and delegated or subordinate legislation made by office-holders or bodies parliament has delegated law-making power. Legislation is sourced from Commonwealth, State and Territory governments.

Secondary legal material o Databases o Journals

Key legal databases and resources Hard copy: Legal research is now almost always conducted online, but an

understanding of paper-based ways can be useful as a backup. Online: The three main online legal research tools used in Australia are those

provided by: o LexisNexis AU o Westlaw AU o CCH Australia

Legal Online AustLII CaseBase FirstPoint LawCite

Primary and secondary sources of law Primary sources are the first hand sources that had the initial information recorded

on. Secondary sources are the repeated information that restates, discusses or analyses

the first hand information. Authoritative primary sources of law

Primary sources of legal information are the most authoritative sources, and it is usually necessary to refer to them directly in legal research.

Hard copy: o Case law: There are a large number of law report series published in Australia

and overseas. o Legislation: Bound volumes in a library.

Online: o Case law: FirstPoint via Westlaw and Casebase via LexisNexis. o Legislation: The Commonwealth, State and Territory parliaments all make

their legislation available online.

Authoritative secondary sources of law The authority of secondary information depends on where they are from and who

created them. When accessing secondary sources it is essential to assume that they are credible and reliable.

Hard copy: Most libraries have a reference collection that contains legal dictionaries, encyclopaedias and other reference tools.

Online: A large range of secondary sources can now be found online. Applying legal research

In order to apply research, the results need to be organised. CIRAC should be used in legal problems. To come up with an appropriate legal conclusion, only the relevant law to the

material facts should be applied. This means that research needs to be performed accurately and selectively.

The application of the law should be done in two stages: o Consider how the relevant law relates to the material facts. o Consider how the law can be applied as part of the construction of a logical

legal argument on a point. Citing research is very important. It demonstrates academic integrity and establishes

authority for the argument or line of analysis.

Topic 5: Sources of Law Two primary sources of law

Legislation (statute law). The law made by parliament. Legislation differs from case law in that:

o Case law is reactive whereas legislation can be reactive but is more commonly prospective.

o Legislations applicability is much wider than that of case law. o Legislation is the dominant source of law, it takes precedence.

Case law. The law made by the courts. The role of judiciary and parliament

The parliament has the ultimate authority and power to make laws due to parliamentary sovereignty.

o The laws made by the parliament are not subject to any higher law such as principles of morality or common law.

o The parliament cannot make a law that binds future parliaments. o No person can override, ignore or disobey a valid law made by the

parliament. The parliament must make their laws in accordance with the terms of the Australian

Constitution and the various state Constitutions. The role of case law and legislation

Types of legislation: o Original Acts. An Act passed about a particular matter for the first time. o Amendment Acts. Changes made to existing Acts. o Repealing Acts. An Act that abolishes an existing Act. o Consolidating or reprinted Acts. An Act that brings all the statute law in a

particular area into a single Act or that consolidates an original Act with all of its subsequent amending Acts.

o Reviving Acts. An Act that revives or restores an Act that is no longer current.

Case law consists of the recorded decisions of judges. In accordance with the doctrine of precedent, case law decisions are often referred to and frequently followed by other judges.

Federal and Victorian court hierarchies Federal court system.

o High Court of Australia. Consists of seven Justices appointed by the Governor-General.

Sits as a single Justice to hear disputes about Federal law and sits as a panel of five to seven Justices to hear disputes regarding the constitutional validity of Federal legislation.

Appellate jurisdiction: Sits as a panel of three, five or seven Justices and hears appeals from the decisions of State and Territory Supreme Courts, the Federal Court and the Family Court.

o Federal Court of Australia. Deals with matters arising under Federal legislation.

Sits as a single judge. Appellate jurisdiction: Sits as a Full Court consisting of three judges

and hears appeals from the decisions of single Federal Court judges and from the Federal Magistrates Court.

o Family Court of Australia. Hears matters relating to the divorce process, property settlements and the maintenance and custody of children.

Sits as a single judge. Appellate jurisdiction: Sits as a Full Court and hears appeals from a

single judge of the Family Court, the Federal Magistrates Court and State and Territory magistrates.

State and Territory court systems o High Court of Australia. The final court of appeal from the decision of any

State or Territory court. o Supreme Courts. The highest court within each State or Territory.

Sits as a single judge with an optional jury of four, six or twelve in civil matters and with a compulsory jury of twelve in contested criminal matters.

Appellate jurisdiction: Sits as a Full Court or as a Court of Appeal usually constituted by three judges.

o Intermediate courts. District Courts or County Courts. Sits as a single judge with an optional jury of four or six in civil

matters and with a compulsory jury of twelve in contested criminal matters.

Appellate jurisdiction: Occasionally hears appeals from the lower courts.

o Lower courts. Local Courts or Magistrates Courts. Sits as a single magistrate.

Structure of the Federal and Victorian Parliament Federal Parliament.

o The House of Representatives. Each member is elected to represent a particular electorate (each containing the approximately the same amount of people). There are 150 members of the House of Representatives. They are appointed for a maximum of three years.

o The Senate. There are twelve senators from each state and two senators from each Territory, totalling 76 senators. They are appointed for a maximum of six years, although half are re-elected every three years.

Victorian Parliament. o Legislative Council (upper house). o Legislative Assembly (lower house).

Delegated Legislation Much of the legislation regulating business and personal lives in Australia today is

not made by the Federal and State/Territory parliaments. Instead the parliament passes parent legislation setting out the overarching principles and objectives of a particular regulatory scheme, and then delegates the authority.

The most common form of delegated legislation is regulations.

E.g. Vicroads. The doctrine of precedent

The doctrine of precedent requires that a judge who has to decide a question of law and who knows that the question has already been considered by an earlier court must decide the question in the same way as was done previously.

Only intermediate and superior courts can establish binding precedents. A binding precedent is a previous decision about a question of law that the judge

must follow. A persuasive precedent is a previous decision about a question of law that a judge

may follow, but does not have to follow. If the judge decides that it is appropriate to deviate from the precedent, this is known

as distinguishing the precedent. Judges also have the ability to overrule or reject a previous decision about a question

of law, provided the precedent was established by a court at the same or lower level. The doctrine of precedent:

o Ensures coherency o Promotes certainty o Promotes equality o Is efficient o Promotes the appearance of justice

Telstra Corporation v Treloar (2000) 102 FCR 595 Ratio decidendi and obiter dicta

The actual reason for the decision about the main question of law, the legal principle upon which the courts final decision was based, is known as the ratio decidendi.

The balance of the written decision, which makes up the majority of the written decision, is known as obiter dicta.

Judicial activism The rulings based on a judges personal opinion rather than precedent.

Topic 6: Legal Reasoning Legal reasoning

Legal reasoning is a way of thinking that is used by lawyers to solve legal problems, construct legal arguments or prepare advice about the legal consequences of a fctual situation.

It is the process of identifying the legal rules of relevance to a particular legal issue that has arisen in relation to a set of circumstances, working out how those rules apply to the circumstances and reaching a convincing conclusion.

CIRAC State the conclusion. Identify the legal issue (Issue): clearly and comprehensively state the legal question

that needs to be answered. Identify the relevant legal rules (Rules): identify the appropriate legal rules needed to

resolve the legal issue identified earlier. Apply the legal rules to the facts (Apply): apply the relevant legal rules to the facts of

the problem. Restate the conclusion (Conclusion): reach a conclusion, i.e. the guilt or innocence of

the party. Logical reasoning

Legal reasoning is a form of logical reasoning. Lawyers generally strive to construct arguments that are logical as well as consistent

with legal authority. The rules of logic:

o An argument should take the form of a series of premises followed by a conclusion.

o A sound argument is preferable to an unsound argument. An argument is only sound if the conclusion follows from the premises.

o A valid argument is preferable to an invalid argument. An argument is valid only if the argument is sound and the premises are true.

Types of logical reasoning: o Deductive reasoning: the process of using one or more general rules or

principles to conclude or predict a particular experience. Provided the premises are true, a conclusion reached using deductive reasoning is always true.

All Xs are Y This Z is X Therefore this Z is Y

o Inductive reasoning: the process of using a series of particular experiences either to conclude the existence of a general rule or principle or to predict a new experience. A conclusion reached using inductive reasoning is not always certain.

This X is Y This X is Y This X is Y

Therefore all Xs are Ys o Reasoning by analogy: predicting a particular fact or experience based upon

its similarities to previous facts or experience. A has characteristic X B is similar to or shares similar features with A Therefore B has characteristic X

Formal and Informal logic Formal logic: commonly used in the field of maths, philosophy and computer science

and is concerned with the workings of wholly abstract rules of logic. I.e. rules of logic that can be expressed without reference to any particular thing or property.

Informal logic: concerned with the interpretation, analysis and evaluation of both the form and content of arguments, and is often associated with critical thinking and the identification of informal fallacies.

Faulty reasoning Accident (or sweeping generalisation):

o Including an argument using deductive reasoning a premise that is subtly untrue because it is an oversimplification of the true state of affairs.

All Xs are Y (but this is an oversimplification) This Z is X Therefore, this Z is Y

Reverse accident (or hast generalisation) o Reaching a conclusion using inductive reasoning that is unsupported by the

premises usually because there are insufficient particular instances to support a prediction or the existence of a general rule.

This X is Y This X is Y This X is Y Therefore, all Xs are Y

Attacking the person (argumentum ad hominem): o Attacking the person making a claim or argument rather than the claim or

argument itself. Claim X was made by person A There is something objectionable about person A Therefore claim X is false

Appeal to authority (argumentum ad verecundiam): o Attempting to establish the truth of a claim by appealing to the authority,

knowledge or position of the person making the claim. Claim X was made by person A There is something positive about person A Therefore claim X is true

Appeal to majority (argumentum ad populum): o Establishing the truth of a claim by insisting that many people believe it to be

true. Many people believe claim X to be true Therefor claim X must be true

Affirming the consequent: o Attempting to establish the truth of a claim by reversing the elements in an

if-then premise. If P then Q P Therefore Q

Straw man argument: o Misrepresenting your opponents claim in an effort to undermine it. You have

set up a straw man if you describe a claim that superficially resembles your opponents claim but which is easier to refute, and you then attribute that claim to your opponent.

Person A makes claim X Person B ignores claim X and instead attacks claim Y, which is a

misrepresentation of claim X in that it: Exaggerates claim X Quotes part of claim X out of context Oversimplifies claim X

Correlation and causation (cum hoc ergo propter hoc): o Insisting that a correlation between two variables means that one has caused

the other. This is faulty as there may be an alternative explanation for the coincidence.

A frequently occurs in correlation with B Therefore B is the cause of A

Bias: o Confirmation bias: people tend to assume that events occur in a way

consistent with their own experience. o Availability bias: the tendency to attach unwarranted significance to

information that is most available. o Anchoring effect: when a person has to estimate a value, they are influenced

by the first estimate suggested. o Hindsight bias: the tendency to see events that have already occurred as

having been predictable. Legal reasoning and policy

The CIRAC method and similar approaches are formalistic in the sense that the emphasis is upon reasoning using a certain form.

The CIRAC method is also legalistic in that the emphasis is upon the use of legal rules to resolve legal issues.

A policy is a principle or objective that underlies a legal rule or that informs a legal decision. It can be understood as the practical or political reason why a rule or decision was made in a particular way.

o Many legal rules and decisions are informed not by a single policy but by a compromise or balancing of multiple policies

o When a parliament passes legislation, the reasons for the legislation are policy reasons rather than legal reasons.

It is useful to refer to the policies underlying legal rules if there is more than a single legal rule applicable to the factual scenario or of the applicability of the legal rule is otherwise unclear.

Critical thinking Critical thinking does not necessarily lead to a rejection of or disagreement with the

object of critique. Critical thinking is informed criticism. It is careful and thoughtful questioning of a claim, argument, rule, doctrine, decision

or action according to an explicit set of criteria or standards. Critical thinking can be defined as criteria-based judgement. Objects of critique: it is not only claims and arguments about which you can think

critically. You can think critically about almost anything. These include: o Legal claims o Legal arguments o Legal rules o Legal doctrines o Legal decisions o Legal actions

Criteria for judgement: critical thinking is judgement of the object of critique in terms of some explicit criteria or set of standards. These include:

o You can judge the object of critique according to the criterion of truth value. o You can judge the object of critique according to the criterion of

reasonableness. o You can judge the object of critique according to the criterion of objectivity. o You can judge the object of critique according to the criterion of consistency

with particular ideological standards or ideals. o You can judge the object of critique according to the criterion of consistency

with theoretical standards. o You can judge the object of critique according to the criteria of fairness and

equity. There are three categories of critical thinking:

o Type 1: judgement of law according to consistency with legal authority. o Type 2: judgement of the law according to consistency with theoretical,

ideological and ethical standards. o Type 3: judgement of law according to equity of outcome.

These types are not formed in a hierarchy. Critical thinking is skilful judgement. Uncovering unstated presumptions, interests

and ideologies within a legal claim or argument is a challenging process because these characteristics of the object of critique are often carefully concealed and even actively denied. There are 6 critical skills:

o Interpretation: ability to identify the surface meaning of the object of critique. o Analysis: ability to identify the hidden elements and structures of the object

of critique. o Evaluation: ability to assess the object of critique.

o Inference: ability to identify a reasonable and justifiable conclusion about the object of critique.

o Explanation: ability to effectively and persuasively communicate the results of your critical thinking to others.

o Self-regulation: ability to apply your critical skills to your own thinking in order to challenge, confirm or correct your own beliefs.

Critical thinking also requires a critical disposition, which is the set of personality traits needed in order to effectively practice criteria based judgement. The following personality traits characterise a critical disposition:

o Inquisitiveness o Alertness o Self-confidence o Open-mindedness o Flexibility o Fair-mindedness o Self-honesty o Prudence o Diligence o Persistence

The techniques to become a critical thinker include: o Modelling: model the behaviour of others. o Provocation: seek out readings and experience that make you feel

uncomfortable about the status quo and confront you with potentially upsetting examples of ignorance or poor thinking.

o Classroom experiences: debates and discussions. o Journaling: keeping a self-reflective journal of learning experiences.

Creative thinking Creative thinking is understood to be a way of looking at problems and situations

from a fresh perspective and identifying innovative and unorthodox situations and ideas.

Creativity is not something that is taught explicitly at law school. Legal education has traditionally focused upon developing the ability to engage in structured, logical and constrained forms of thinking.

The following are some of the factors contributing to the traditional lack of emphasis upon creativity in legal education and legal practice:

o Creative people dont do law: law is not perceived as a creative profession. o Law is a conservative discipline: the practice of law is often all about

preserving and protecting the status quo. o The legal profession is very hierarchal. o Taking risks is not encouraged. o Planning is preferred to spontaneity.

Many law firms are now turning to creative thinking experts to train their lawyers in the use of their creativity.

Topic 7: Interpretation Skills Importance of interpretation skills

To interpret a text is to identify and explain the meaning of the text. The ability to identify the possible the possible interpretations of any legal text, to

identify the best or most appropriate interpretation and to argue in favour of one particular interpretation is an essential skill for any legal practitioner.

It is also important to understand how legal decision makers, like judges, interpret legal texts.

Interpretation skills help to read and understand legislation, case law and other legal texts.

Key elements of an Act RADIO LICENCE FEES AMENDMENT ACT 2007 (NO. 69, 2007) An Act to amend the Radio Licence Fess Act 1964, and for related purposes

[Assented to 28 May 2007]

The Parliament of Australia enacts:

` 1 Short title This Act may be cited as the Radio Licence Fees Amendment Act 2007.

2 Commencement This Act commences on the day after it receives the Royal Assent.

3 Schedule(s) Each Act that is specified in Schedule to this Act is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this Act has effect according to its terms.

Number: The number of Acts that have been passed in that year so far. o E.g. No. 69, 2007. This means that this Act was the 69th Act passed by the

Commonwealth Parliament in 2007. Title and purpose: The long title sets out the purpose of the Act. The short tittle is

what the Act is usually known and referred to. o E.g. The long title of the Act is 'an act to amend the Radio License Fees Act

1964, and for related purposes'. The short title is the Radio Licence Fees Amendment Act 2007.

Date of assent: The date the act received assent from the governor-general. It is not the same as the date of commencement.

o E.g. The Act was assented to on 28 may 2007. Enacting words: Enacting words are a formality and not necessary for the validity of

legislation. o E.g. The words 'the parliament of Australia enacts' are the enacting words.

Commencement: Not every act contains an explicit commencement date. o According to s 2 of the act, the act commences operation on the day after

receiving assent; that is on May 27, 2007.

Statutory interpretation

Literal approach

Contextual approach

Purposive approach

Common law presumptions Statutory rules

Sections, subsections and paragraphs: acts are usually divided into numbered sections for convenience. The sections are numbered consecutively.

Parts and divisions: larger acts are usually divided into parts and divisions. A part may contain a number of divisions and a division contains a number of sections.

Marginal notes: older acts often included marginal notes. These were small notes that appeared in the margin of the page next to a section. They briefly described the contents of the section. They were not an official part of the act thus could not be used in interpreting the act.

Definitions sections: many acts contain a definitions or interpretation section. This is a section early on in the Act that sets out definitions of the term frequently used in the Act. Definitions may be:

o Comprehensive: X means Y. The description of Y is complete and anything that does not satisfy Y is not X.

o Inclusive: X includes Y. The description Y is an example of X but the definition of X is otherwise left open and something that does not specify Y but still be X.

Schedules: A parliamentary draftsperson may move procedural provisions, such as fees and charges, forms, technical descriptions and lists into a schedule of the act.

Role of the courts in interpreting legislation A number of rules and presumptions regarding the reading and interpretation of legal

texts have been developed in the context of statutory interpretation. Statutory interpretation is the interpretation by the courts of legislation when called

upon to decide whether the legislation applies to a particular set of facts or whether a particular statutory rule has been contravened.

These various rules and presumptions are not always consistent. They are best understood as a set of tools to be used as required by judges when applying legislation to particular facts or by lawyers when advocating and arguing on behalf of a client.

Judges have been interpreting and applying legislation for centuries, and since legislation today forms the major source of law, a large proportion of judges time is not spent engaged in statutory interpretation.

The literal approach: The traditional approach to interpreting legislation is to focus upon the actual words used in the legislation and to interpret them literally unless a literal interpretation is clearly absurd or inconsistent with the rest of the statute.

o The literal rule: When reading a statue, a court should interpret the statute literally, giving the words and phrases in the statute their ordinary and natural meanings.

E.g. If an author were to write Jims hands were freezing cold one would interpret this to mean that his hands were rather cold. A literal reading would take it to be that Jims hands were a temperature below zero and were in fact frozen solid.

Fisher v Bell [1961] 1 QB 394 o The golden rule: If a literal reading leads to a clearly absurd result or does not

clarify the meaning of the text at all then the court should modify the literal meaning so as to avoid the absurdity.

Adler v George (1964) 2 QB 7 Lee v Knapp [1967] 2 QB 422

The contextual approach: Rather than interpreting the words used in the Act individually and in isolation from each other; a court takes into account the various contexts of those words.

o Immediate context: The other words and phrases used in the same section or surrounding sections in the Act. The class rule, part of the immediate context, also states that where two or more specific words are followed by general words, the general words should be interpreted to accord with the class created by the specific words.

The People (DPP) v Farrell [1978] IR 13 R V Ann Harris (1836) 173 ER 198

o The Act as a whole: A statutory provision should be interpreted in the context of the Act in which it appears. The court takes into account various elements of the Act including the long and short titles, the preamble, the objects clause, the definition section, other sections of the Act, schedules to the Act and so on.

o Other legislation: If a word or phrase is interpreted in a particular way in one statute, it is not necessarily interpreted as having the same meaning in another statute. However, where the parliament passes a series of statutes all dealing with the same or similar issues, the court is likely to interpret words or phrases common to all of the statutes in a similar way.

o The prior law: Occasionally, consideration is given to the law that existed prior to the passing of the statute in question when interpreting a particular statutory provision. This is more likely to occur when the statute has been passed to replace a body of common law rules.

o The mischief being remedied: In the event of an ambiguity in a statutory provision, the court should consider the problem or mischief the statute was intended to address.

Heydons Case (1584) 76 ER 637 Smith v Hughes [1960] 2 All ER 859

The purposive approach: When interpreting a statutory provision, the court should refer to the apparent purpose of the parliament when passing the statute. This approach was created and is promoted by the legislature.

Interpretation of Legislation Act 1984 (Vic) Action Interpretation Act 1901 (Cth)

o Use of the purposive approach: The purposive approach can be criticised as an inappropriate and possibly even unconstitutional attempt by the legislature to intrude upon the judiciarys role in the interpretation of legislation. However, courts are still willing to use this approach.

o Correcting errors: It can be used to interpret a statute where it appears that the statute contains an error or an omission due to an oversight by the legislature. There are three requirements that must be satisfied if the purposive approach is to be used in this way:

The court must know the mischief with which the parliament was dealing.

The court must be satisfied that the parliament has inadvertently overlooked an eventuality that must be dealt with if the purpose of the Act is to be achieved.

The court must be able to state with certainty what words the parliament would have used to overcome the omission if its attention had been drawn to it.

o Ascertaining the purpose of a statute: Sometimes the Act itself contains an object or purpose clause. Older legislation may contain a preamble. In a situation where no such things are included, it may be useful to refer to something like the Ministers second reading speech in parliament to discover what parliament intended in passing the particular provision. This is an example of extrinsic materials. The courts were initially reluctant to use extrinsic materials to interpret legislation but they now are willing to consult extrinsic material in cases where there is ambiguity, but they are used to provide assistance only.

Action Interpretation Act 1901 (Cth) section 15AB Statutory rules: When legislation is to commence and clarify the circumstances in

which it is appropriate to refer to the purposes of the parliament and to extrinsic materials when interpreting legislation.

o Where the word may is used in a statutory provision, the provision is discretionary.

o Where the word shall is used in a statutory provision, the provision is mandatory.

o Where a statute refers to a gender they should be interpreted so as to include the other gender, and if the terms are expressed in the singular they should be interpreted so as to include the plural and vice versa.

How judges and lawyers interpret legal texts The traditional approach to the interpretation of contracts (a legal text) is the

objective approach. The court interprets each term of the contract from the point of view of the reasonable person.

Where there is an inconsistency between a written term and a verbal representation or promise, the court favours the written term and disregards the verbal representation or promise.

The parol evidence rule applies only if the written contract appears to be a complete record of the agreement.

o Van den Esschert v Chappell [1960] WAR 114 Courts have in recent years demonstrated a greater willingness to adopt a contextual

approach to the interpretation of contracts and to take into consideration the surrounding circumstances when interpreting the terms of the contract.

Courts generally prefer to interpret contracts so as to find them valid and enforceable, rather than invalid and unenforceable, and are frequently willing to imply a term or terms into a settled contract to fill the gaps, as long as it is obvious that the parties would have included the term themselves if they had only thought about it.

o Codelfa Constructions Pty Ltd v State Rail Authority of NSW [1982] HCA 24

Presumptions made by courts when interpreting statutes Common law presumptions:

o Words have their current meaning: Where the meaning of a particular word or phrase has changed over time, the court presumes that the meaning intended by the legislature is the contemporary meaning rather than the meaning applicable at the time the statutory provision was drafted.

o Words have their technical meaning: Words and phrases in a statutory provision are presumed to carry their technical meaning rather than their ordinary meaning. Where a word or phrase has acquired a technical legal meaning that differs from the ordinary meaning, the courts presume that the technical legal meaning was the meaning intended by the legislature.

o Words have consistent meanings: Where a statute uses the same word or phrase more than once, the courts presume that the legislature intended that the word or phrase have the same meaning each time.

o There is no surplusage: The court presumes that every word in a statutory provision was intended by the Parliament to have some meaning. Therefore, it favours an interpretation that does not render any word meaningless.

o The provision is constitutional: Where two interpretations of a provision in a statute are possible, one which is in accordance with the Constitution and the other which would make the provision unconstitutional, the court presumes that the interpretation that would make the provision constitutional to be the one intended by the parliament.

o The provision is consistent with international law: If Australia is a signatory to an international agreement, such as a treaty or a convention, and has enacted domestic legislation to give effect to that international agreement, and there is ambiguity in the domestic legislation, the court can resolve that ambiguity by referring to the international agreement and assuming that the domestic legislation was intended to be consistent with the international agreement.

o The provision is not extra-territorial: The court presumes that the statutory provision was not intended to apply outside the limits of the relevant jurisdiction.

o The provision is not retrospective: The legislation is empowered to pass legislation that is retrospective; that is, the legislation applies to circumstances that arose before it was passed.

o The provision does not contradict established rights: In the absence of a clear legislation intention to the contrary, the court presumes that the statutory provision was not intended to infringe established common law rights.

Al-Kateb v Godwin (2004) 208 ALR 124 o The provision does not bind the Crown: A court presumes that, in the absence

of a clear intent to the contrary, a statute is not intended to bind the Crown. o Penalties have limited application: Penal liability, that is the imposition of a

penalty upon a person such as a fine or imprisonment, is not inferred by the courts in the absence of clear and unambiguous words. Unless the statute clearly states otherwise, the court will favour a narrow interpretation of a statutory provision that imposes a penalty.

o Offences and penalties correspond: Where two offences are followed by two penalties, the first penalty is presumed to apply to the first offence and the second penalty is presumed to apply to the second offence. This is the rule of reddendo singular singulis (give each to each).

o Things not included are excluded: If a statutory provision expressly states that it is to apply to certain specific things, then things that are not expressly included are presumed to be excluded. This is the rule of expression unius est exclusion alterius (the express mention of one thing is the exclusion of another).

FAI Properties Pty Ltd v Apostolopoulos [2002] ACTSC 58 o Specific provisions override general provisions: If there are two inconsistent

statutory provisions, and one is general and the other specific, the specific provision is presumed to override the general provision. This is the rule of generalia specialibus non derogant (general things do not derogate from special things).

o Later provisions override earlier provisions: A later law is presumed to override and automatically repeal to the extent of any inconsistency an earlier law on the same topic. This is the rule of leges posteriors priores contrarias abrogant (later rules take priority over earlier inconsistent rules).

Ratio decidendi and obiter dicta of a case Ratio decidendi: Not all of the written decision is binding law. The only part of a

judges written decision that becomes binding precedent is the actual reason for the decision about the main question of law, that is, the legal principle upon which the courts final decision was based.

Obiter dicta: The balance of the written decision, which makes up the majority of the written decision. It is not binding on other judges but may be persuasive and may even become binding precedent if adopted and followed by later courts.

o Hedley Byrne & Co Ltd v Heller & Partners Ltd [1964] AC 465; [1963] UKHL 4

The rationale for the ratio and not the obiter being binding on other courts is that a court is more likely to take greater care when formulating the reason for its decision than when commenting upon the facts of the case, the history of the law etc.

The ratio decidendi is worked out by identifying the material facts and the legal issue or main question of law.

o E.g. (I)n the case of the ordinary shop, although goods are displayed and it is intended that customers should go and choose what they want, the contract is not completed until, the customer having indicated the articles that he needs, the shop-keeper or someone on his behalf accepts that offer.

Pharmaceutical Society of Great Britain v Boots Cash Chemists (Southern) Ltd [1953] 1 QB 401

o The rest of the decision of each judge, including the explanations of the consequences of their decision and the possible consequences of deciding that a contract is formed as soon as the customer takes the goods from the shelf, is obiter dicta.

MLL110 Legal Principles and Skills Adler v George (1964) 2 QB 7 Facts

Under the Official Secrets Act 1920 it was an offence to obstruct a member of the armed forces 'in the vicinity' of a prohibited palace.

The defendant was actually in the prohibited place, rather than 'in the vicinity' of it, at the time of obstruction.

Judgement The court applied the golden rule. It would be absurd for a person to be liable if they were near to a prohibited place and

not if they were actually in it. His conviction was therefore upheld.

Al-Kateb v Godwin (2004) 208 ALR 124 Facts

Al-Kateb was detained as an unlawful non-citizen with the meaning of section 14 of the Migration Act 1958 (Cth).

His application for a visa had been denied but no other country would take him. The issue was whether he should be freed from detention or detained indefinitely.

Judgement The common law right not to be detained indefinitely and the presumption that the

common law legislation is not intended to infringe common law rights was held not to apply because the words of the statute were clear.

Codelfa Constructions Pty Ltd v State Rail Authority of NSW [1982] HCA 24 Facts

The commissioner for Railways accepted a tender by Codelfa to excavate tunnels for a railway line in NSW.

The contract provided for Codelfa to complete works by certain dates and complete all work within 130 weeks.

Due to complaints, an injunction was imposed which slowed down the rate of work. At the time of contracting it was assumed that there would be no injunction based on faulty advice.

Codelfa claimed additional sums from the Commissioner to cover additional costs and lost profits as a result of the injunction.

Judgement All members of the High Court agreed that there was no implied term. The majority considered that the contract had been frustrated.

FAI Properties Pty Ltd v Apostolopoulos [2002] ACTSC 58 Facts

It was possible to appeal a decision of the Tribunal to the Supreme Court on questions of law.

The court had to decide whether it was possible to appeal a decision on questions of fact or questions of mixed law and fact.

This was not expressly excluded by the Act. Judgement

The court applied the rule expression unius est exclusion alterius and the appeals were not permitted.

Fisher v Bell [1961] 1 QB 394 Facts

The defendant had a flick knife displayed in his shop window with a price tag on it. Statute made it a criminal offence to 'offer' such flick knives for sale. His conviction was quashed as goods on display in shops are not 'offers' in the

technical sense but an invitation to treat. Judgement

The court applied the literal rule of statutory interpretation.

Hedley Byrne & Co Ltd v Heller & Partners Ltd [1964] AC 465; [1963] UKHL 4 Facts

Hedley Byrne was a firm of advertising agents. A customer, Easipower Ltd, put in a large order. Hedley Byrne wanted to check their financial position and subsequently asked their

bank to get a report from Easipowers bank, Heller & Partners, who replied in a letter.

Easipower went into liquidation and Hedley Byrne lost 17,000 on contracts. Hedley Byrne sued Heller & Partners for negligence, claiming that the information

was given negligently and was misleading. Heller & Partners argued there was no duty of care owed regarding the statements,

and in any case liability was excluded. Judgement

The disclaimer was found to be sufficient enough to discharge any duty created by Heller's actions.

Heydons Case (1584) 76 ER 637 Facts

In an action determining the validity of a lease the court formulated the mischief rule. In applying the mischief rule the court must discern and consider:

o What was the common law before making the Act? o What was the mischief and defect for which the common law did not

provide? o What was the remedy Parliament passed to cure the mischief? o What was the true reason for the remedy?

The role of the judge is to suppress the mischief and advance the remedy.

Lee v Knapp [1967] 2 QB 422 Facts

Knapp was charged with contravening section 77 after leaving the scene of a car accident.

Knapp argued that he did stop, he stopped momentarily when he had the accident. Judgement

The court rejected Knapps argument and interpreted the word stop to mean stop for long enough as to exchange details etc.

Pharmaceutical Society of Great Britain v Boots Cash Chemists (Southern) Ltd [1953] 1 QB 401 Facts

Boots operated a self-serve store which included a pharmacy department. When a drug was involved a pharmacist would supervise the sale. The pharmaceutical society alleged that they were illegally offering drugs for sale

unsupervised (Pharmacy and Poisons Act 1933). Judgement

The appeal was dismissed. Somervell LJ: an ordinary shop, although goods are displayed and it is intended

that customers should go and choose what they want, the contract is not completed until, the customer having indicated the articles which he needs, the shopkeeper, or someone on his behalf, accepts that offer. Then the contract is completed.

R V Ann Harris (1836) 173 ER 198 Facts

Harris bit off the end of another womans nose. Judgement

The courts interpreted the word wound to mean inflicted with some instrument and not with a body part.

Smith v Hughes [1960] 2 All ER 859 Facts

Smith sold Hughes some oats Hughes thought he was buying old oats but they were actually new oats

o Smith knew they were new oats but it is unclear whether he knew that Hughes thought they were old oats

Hughes refused to accept the oats when he discovered that they were new Smith sued for breach of contract

Judgement New trial ordered, on the ground that there is no legal obligation in a seller to inform

a buyer that the buyer is under a mistake, not induced by the seller. The trial judges direction did not make the distinction between agreeing to take the

oats under the belief that they were old, and agreeing to take the oats under the belief that the plaintiff contracted that they were old.

The People (DPP) v Farrell [1978] IR 13 Facts

Farrell was detained in a police car for a number of hours. Section 30 only stated that one could be detained at a station, in a prison or in some

other convenient place. Judgement

The court decided that some other convenient place applied to another sort of building and not a car.

Van den Esschert v Chappell [1960] WAR 114 Facts

Chappell agreed to purchase a house from Van den Esschert. Before signing the contract, a further oral promise was made. The promise turned out to be incorrect and Chappell sued for breach of contract.

Judgement The court decided that the parol evidence rule did not apply. The complete contract consisted of the written contract plus the verbal contract.

Notes_MLL110.pdfCase Notes_MLL110