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INTRODUCING LAW AND JUSTICE
CONTENTS
CASE INDEX
- Statutory Interpretation Topic Page Number - Overview of the Australian Legal System - The Court Hierarchy and Courts in Action
- The Modern Lawyer and Professional Identity
- Impact of Settlement on Indigenous Inhabitants - Development of Parliamentary Democracy - Classifying Law - Precedent and Change - Intentional Torts and the Rise of Negligence - In Re Edith Haynes Case Page Number - Kingston v Keprose - Lawson v Dunlevy - Potter v Minahan - Royal College of Nursing - Mabo and Ors v Queensland (No 2) - The Wik Peoples v Queensland - R v Wedge - Namatjira v Raabe - Milirrpum v Nabalco Pty Ltd - Prisoners A-XX - Union Steamship Co - Kable - Cooper v Stuart - Dugan v Mirror Newspapers - Attorney-General v Trethowan - Viro v The Queen
- Kable v Director of Public Prosecutions - R v Wacker - Harris v Digital Pulse - Dorset Yacht Co v Home Office - Donoghue v Stevenson - Hutchins v Maughan - Scott v Shepherd - Brion Rixon v Star City - Tuberville v Savage - Barton v Armstrong - Zanker v Vartzokas - Balmain New Ferry v Robertson - Marion’s Case - George and Wife v Skivington - Langridge v Levy - Heaven v Pender - R v Wright
- Trevorrow v State of South Australia - Wilkinson v Downton - Williams v Milotin - Winterbottom v Wright
(i) the provision is ambiguous or obscure; or (ii) the ordinary meaning conveyed by the text of the provision taking into account its context in the Act and the purpose or object underlying the Act leads to a result that is manifestly absurd or is unreasonable. Extrinsic materials can be used to assist in determining the meaning of the act:
- To confirm the meaning is the ordinary meaning of the text, taking context into account
- Determining the meaning when the provision is ambiguous TRADITIONAL (COMMON LAW) APPROACH Literal rule Intent of the parliament that made the statute Examination of the language used in the statute Obey the meaning of the language directly Understanding of the words in their context Golden rule Court modifies the meaning under the literal rule where the result would be inconsistent with the rest of the legislation Mischief rule Essence of the purposive approach Interpretation according to the intended purpose of the act
- Presumptions: o There is the presumption that parliament does not interfere with fundamental rights o Presumption against retrospective operation of the statute o Legislation does not bind the Crown o Parliament does not legislate extraterritorially o Presumption that later laws repeal earlier laws o Presumptions are rebuttable by evidence RESOLVING AMBIGUITY
- Take the literal approach , which is the clear and ordinary grammatical meaning which will prevail, but in the case of ambiguity;
- Take the purposive approach , by examining the purpose of the act in its context, but in the case of ambiguity;
- Use extrinsic materials to determine the intended purpose of the act, but in the case of ambiguity;
- Use common law rules and presumptions if and where relevant to the decision.
IN RE EDITH HAYNES
Case Citation In re Edith Haynes [1904] 6 WALR 209 Material Facts Edith Haynes sought to be admitted as a legal practitioner under the Legal Practitioners Act 1893. The Board refused to admit her on the grounds that she could not be admitted to practice under the Act. She obtained a rule nisi calling on the Board to show why a writ of mandamus should not issue directing the board to admit her to the examination. Legal Issues Can a woman be admitted as a legal practitioner? Legal Reasoning Parker J
- The idea of a woman practicing in the Supreme Court seems to me quite foreign to the legislation which has prevailed for years past, not only here but in the mother country
- I am not prepared myself to create a precedent by allowing the admission of a woman to the Bar of this Court
- If the Legislature desired that a woman should be capable of being admitted as a practitioner of this court… that they should have said so in express language
- The court has a perfect right to refuse Burnside J
- The Common Law of England has never recognised the right of women to be admitted to the Bar
- The Statute says “every person”… there is nothing conferring a right on women to be admitted as solicitors
- The Medical Act says “every person, male or female, may be a doctor”. Those are different words to what are used in the Legal Practitioners Act Outcome/Ratio Haynes’ request was denied, and she could not obtain a writ of mandamus to direct the board to admit her to the examination
KINGSTON V KEPROSE
Case Citation Kingston v Keprose (1987) 11 NSWLR 404 Material Facts N/A Legal Issues Whether the grammatical meaning gives effect to the intention of parliament Legal Reasoning McHugh JA “The rule of law enacted by a statute consists of a proposition… the proposition may be neatly contained in a single sentence, or it may be deducible from a number of sentences in a number of sections or paragraphs.” Lord Reid “if the words ‘are capable of more than one meaning, then you can choose between those two meanings, but beyond that you must not go” Purposive approach:
- Justice Cussen in Ah Sheung v Lindberg : “In its ordinary meaning immigration implies leaving an old home in one country to settle in a new home in another country” à considering someone an immigrant who is returning to their country of birth is a contradiction of the term
- Bryant (on behalf of the appellant): immigrating into Australia must be taken to mean entering Australia
- O’Connor J – “What is the scope and purpose of the act?” o To prevent the entry into Australia of persons from other countries whom the legislature has determined ought not… to be permitted to become members of the Australian community o “The foundation of law of the respondent’s case is the unimpeachable proposition that a person cannot be an immigrant into the country which is his home.” Legal Reasoning - O’Connor J – the respondent was not an immigrant by the definition of the word, and was not subject to the dictation test therefore the appeal failed
- O’Connor J – “I therefore agree in the conclusion on the facts that the respondent never did establish his permanent home in China, and that in returning to Australia he was coming back to the home which he had never abandoned….in my opinion the respondent was not an ‘immigrant’ within the meaning of the Immigration Restriction Act.” Outcome Appeal failed, since the respondent was not an immigrant
ROYAL COLLEGE OF NURSING OF THE UNITED KINGDOM V DEPARTMENT OF HEALTH AND
SOCIAL SECURITY
Case Citation Royal College of Nursing of the United Kingdom v Department of Health and Social Security [1981] AC 800; [1981] 1 All ER 545; [1981] 2 WLR 279 Material Facts - Abortion Act 1967 (UK) provided that no offense was committed when a pregnancy is terminated by a registered medical practitioner in certain circumstances
- When the method changed from surgical to chemical termination in 1972, this involved a doctor inserting a catheter into the uterus and a nurse administering a fluid drip through the catheter (the fluid caused the termination not the catheter itself) o A circular was issued by the Department of Health and Social Security to nurses which stated that no offense was committed by nurses who carried out this procedure (as they thought a nurse was considered under the title medical practitioner)
- The Royal College of Nursing disputed the view that a nurse was considered a medical practitioner as the act required Legal Issues The definition of medical practitioner
- The appellants contend that the Act is framed in sufficiently wide terms to authorise what the department says is lawful à their contention was that the words ‘pregnancy is terminated by a registered medical practitioner’ mean ‘pregnancy is terminated by treatment of a registered medical practitioner in accordance with recognised medical practice’
- For a nurse to engage in abortifacient acts cannot… be in accordance with recognised practice
- Lord Wilberforce – “I am unable to read the words ‘pregnancy terminated by a registered medical practitioner’ as extended or extensile to cover cases
where other persons, whether nurses, or midwives, or even lay persons, play a significant part in the process of termination” o “A new dimension has been introduced: this should not be sanctioned by judicial decision, but only by Parliament after proper consideration of the implications and necessary safeguards” Legal Reasoning - Note: Wilberforce dissenting Diplock
- Lord Wilberforce – “I am of opinion the development of prostaglandin induction methods invites, and indeed merits, the attention of Parliament… I agree with the judgments in the Court of Appeal that an extension of the Act of 1967 as to include all persons, including nurses…is not something which ought to, or can be, effected by judicial decision. I would dismiss the appeal.”
- Lord Diplock: “In my opinion in the context of the Act, what it requires is that a registered medical practitioner, whom I will refer to as a doctor, should accept responsibility for all stages of the treatment for the termination of the pregnancy… the doctor need not to do everything with his own hands… carried out in accordance with his directions and of which a registered medical practitioner remains in charge throughout… I would accordingly allow the appeal and restore the declaration by Woolf J.” Outcome/Ratio Appeal allowed
