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An Introduction to the Law and its Sources Susan Carter.

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1 An Introduction to the Law and its Sources Susan Carter

2 Pepper Finance Corporation v Williams Common sense vs legal sense Common sense vs legal sense Common knowledge or technical knowledge Common knowledge or technical knowledge Essence of common law Essence of common law Technical vocabulary Technical vocabulary

3 Specialised legal terms Words with specific legal meanings and little if any use in everyday speech - pure law terms Words with specific legal meanings and little if any use in everyday speech - pure law terms Examples: Examples: Chose in action Chose in action Chose in possession Chose in possession Fee simple Fee simple Estoppel Estoppel Codicil Codicil

4 General terms given special legal meaning in particular context s Words that are not pure law terms but acquire special legal definition in particular contexts through Words that are not pure law terms but acquire special legal definition in particular contexts through the provisions of a statute the provisions of a statute the process of judicial interpretation the process of judicial interpretation Example: Competition and Consumer Act 2010 (Cth) 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 the meaning of the word goods is defined in section 2 of Schedule 2; consumer is defined in section 3 of Schedule 2

5 Legal terms also found in everyday speech Words with related legal and general meaning Words with related legal and general meaning Examples: Examples: land land negligence negligence nuisance nuisance assault assault offer offer agent agent

6 Legal terms also found in everyday speech Words with different legal and general meaning - legal meaning is entirely different from usual English Words with different legal and general meaning - legal meaning is entirely different from usual English Examples: Examples: consideration consideration equity equity summary (as in a summary offence) summary (as in a summary offence) execute (as in to execute a document) execute (as in to execute a document) title (as in title to goods) title (as in title to goods)

7 And not just English.... LatinMeaning 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

8 Latin maxims LatinMeaning Volenti non fit injuria there can be no injury to the willing Caveat emptorlet the buyer beware Actus no facit reum nisi mens sit rea an act does not make a person guilty unless 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

9 Legal sense v Common sense Pepper Finance Corporation v Williams [2008] NSWSC 4 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

10 To remember: Law is both a body of knowledge and a way of thinking about that knowledge: it is important to master both. 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 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. 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.

11 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

12 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.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

13 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

14 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."

15 Statute Law and Case Law

16 Sources of law Statute –laws made by ParliamentStatute –laws made by Parliament Case law – laws made by judges

17 Statutes v Case law Statutes operate from the general to the particular, whereas cases operate from the particular to the general.

18 CITATION OF STATUTES Statutes are always cited:Statutes are always cited: Title/Year/(Jurisdiction) Australian Sports Drug Agency Act 1990 (Cth)Australian Sports Drug Agency Act 1990 (Cth) Exotic Diseases of Animals Act 1993 (WA) s6Exotic Diseases of Animals Act 1993 (WA) s6 Methodist Church of Samoa in Australia Property Trust Act 1998 (NSW) s4(2)(d)Methodist Church of Samoa in Australia Property Trust Act 1998 (NSW) s4(2)(d)

19 STRUCTURE OF AN ACT NUMBERNUMBER DATEDATE LONG TITLELONG TITLE SHORT TITLESHORT TITLE PREAMBLE (OR PURPOSE CLAUSES INSTEAD OF A PREAMBLE)PREAMBLE (OR PURPOSE CLAUSES INSTEAD OF A PREAMBLE) Preamble always starts with WhereasPreamble always starts with Whereas TABLE OF CONTENTSTABLE OF CONTENTS PARTS OR CHAPTERS, DIVISIONS AND HEADINGSPARTS OR CHAPTERS, DIVISIONS AND HEADINGS

20 SYDNEY TURF CLUB ACT 1943 As at 13 November 2007 Act 22 of 1943 TABLE OF PROVISIONS Long Title 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.

21 2. (Repealed) 3. Definitions 3A3A. Notes 3A PART 2 - SYDNEY TURF CLUB Division 1 - Incorporation and constitution 44. Constitution etc 4 55. Application of income etc 5 66. First members, directors and auditors 6

22 Division 2 - Objects, functions and powers 77. Objects and functions of Club 7 88. Acting secretary 8 Division 3 - Financial 99. Temporary accommodation 9 1010. Power to borrow 10 1111. Insurance, and payments out of funds 11 Division 4 - (Repealed) None PART 3 - RACING COMPENSATION FUND 15-18. (Repealed)

23 PART 4 - GENERAL 1919. Members defaulting in payment of bets not eligible to continue as members 19 2020. Rights of member personal 20 2121. By-laws 21 2222. Commencement of by-laws 22 2323. Public notification of by-laws 23 2424. Offences etc 24 2525. Exclusion of undesirable persons 25 2626. Directors may fix tolls and charges 26 2727. Power to let lands, buildings or tolls 27 2828. Inspection 28

24 2929. Club to repair etc 29 3030. Indemnity 30 31. (Repealed) 3232. Regulations 32 SCHEDULE 1 SCHEDULE 1 Schedule 2 (Repealed) SCHEDULE 3 SCHEDULE 3

25 Three good sites for finding legislation: http://www.comlaw.gov.au http://www.comlaw.gov.au http://www.comlaw.gov.au http://www.austlii.edu.au http://www.austlii.edu.au http://www.austlii.edu.au www.legislation.nsw.gov.au www.legislation.nsw.gov.au www.legislation.nsw.gov.au

26 The Section is the most important part of an Act Sections are sub-divided into: SECTION s1 SUB-SECTION(2) PARAGRAPH(a) SUB-PARAGRAPH(v)

27 Australian Consumer Law - s18 Misleading or deceptive conduct 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.

28 Elements of s18(1) PersonPerson Trade or commerceTrade or commerce Engage in conductEngage in conduct Misleading or deceptiveMisleading or deceptive

29 Case law : relevant only to the parties Decision: relevant only to the parties Ratio decidendi : for decision : reason for decision : this answers the legal question for decision : this answers the legal question for decision : creates the : creates the binding law

30 CASE CITATION Plaintiffs Name v Defendants Name (Civil case) (Civil case)OR R v Person charged with offence/Defendant or Accused (Criminal case) THEN

31 YEAR in which the case was decided (in square or round brackets depending on the reporting system used)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 reportedVOLUME in which the case has been reported ABBREVIATION of the particular reportABBREVIATION of the particular report PAGE NUMBER at which the report begins, andPAGE NUMBER at which the report begins, and PAGE NUMBER from which you are quoting (and name of judge)PAGE NUMBER from which you are quoting (and name of judge)

32 Examples : Behrens v Bertram Mills Circus Ltd [1957] 2QB 1Behrens v Bertram Mills Circus Ltd [1957] 2QB 1 Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2002) 208 CLR 199Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2002) 208 CLR 199 R v Brown [1994] 1 AC 212R v Brown [1994] 1 AC 212


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