Commerical Law
MarcusC1995
Topic2PoliticiansandJudges.Exercisinglegalskills2-111.pptx— Topic 2: Politicians and Judges; Exercising legal skills
Commercial Law
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Overview of this topic:
The legislature;
Parliament in operation;
The judiciary;
The doctrine of precedent;
Alternative dispute resolution;
Finding the law;
Reading the law;
Thinking like a lawyer; and
Writing like a lawyer.
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Learning Outcomes: Politicians and Judges
What is the role of parliament?
How do parliaments make law?
How does Australia’s court system operate?
What role is played by judges in the development of the law?
What dispute resolution methods do not involve going to court?
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Learning Outcomes: Exercising legal skills
How do you find the law? How do you locate case law, legislation and other sources of law?
Once you have found it, how do you read the law? What parts of a case report or Act of Parliament are important? How do you interpret a legal text?
How do you use the law? How do you think like a lawyer, and why is it useful to be able to do so? How do you solve legal problems?
How do you write like a lawyer? How do you write a legal letter, or draft a contract?
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Reading materials
Chapter 3 of Nickolas James's Business Law (Wiley, 5th ed, 2020)
Chapter 4 of Nickolas James's Business Law (Wiley, 5th ed, 2020)
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The legislature
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The parliament
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The legislature
The Legislature:
On a Federal level, s1 of the Australian Constitution provides:
“The legislative power of the Commonwealth shall be vested in the Federal Parliament, which shall consist of the Queen, A Senate, and a House of Representatives, and which is hereinafter called ‘The Parliament” or the Parliament of the Commonwealth’.
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The Legislature
Section 1 of the Constitution therefore is the section which enabled and gave rise to the very existence of the Commonwealth Parliament of Australia.
s 1 is also the section which created a bi-cameral form of Government – that is, a Government consisting of two Houses of Parliament.
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The legislature
Legislative power is the power to make law
In Australia and on a Federal level, this power is exercised by the Federal Parliament (that is, both Houses of Parliament).
On a State level, this power is exercised by the various State and Territory parliaments with the following qualification:
Queensland and the two Territories are single House Parliaments consisting only of a Legislative Assembly.
All other States are bi-cameral (two Houses of Parliament).
Law made by Parliament on a Federal, State or Territory level, is known as legislation – e.g. an Act of Parliament, or a Statute.
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The Legislature
Whether on a State, Territory or Federal level, law made by Parliament is ‘supreme’.
This means that if there is a contradiction or inconsistency between law made by Parliament (on any level) and a decision of any Court in the Australian Court hierarchy (on any level), to the extent of that contradiction or inconsistency, Parliamentary law will prevail.
This is known as the supremacy of Parliament (on any level of Government).
The supremacy of parliament therefore, means that Parliament is the ‘sovereign lawmaker’.
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The structure of parliament
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Lower House – Federal Parliament
The House of Representatives is the ‘people’s house’, providing equal representation for the people of Australia.
Australia is divided into electorates – about 150 – with roughly equal numbers of voters, each of which elects a representative.
The political party with the majority of members in the House of Representatives forms executive government.
The Prime Minister is traditionally a member of the lower house.
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Lower House: The House of Representatives
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Upper House – Federal Parliament
The Senate is the ‘States’ house’. It protects the rights of the States.
There is an equal number of Senators from each State (12) in order to protect the interests of the less populous States. The Territories are represented by 2 Senators each.
The founders of the Constitution recognised the danger that the Lower House would favour those States, and the composition of the Upper House addressed that risk by giving the States the opportunity to oppose any biased legislation.
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The Upper House The Senate
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Parliament in operation
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Parliament in Operation: Introducing Law into Parliament
Before a proposed law is approved and passed by both Houses of Parliament, it is referred to as a ‘Bill’.
Bills are drafted by Parliamentary Counsel – a team of government lawyers – the Office of Parliamentary Counsel - who specialize in drafting legislation.
To become law, a Bill must pass three ‘readings’ in each of the two Houses of Parliament.
It must then receive the Royal Assent.
This is achieved by being assented to (on a Federal level) by the Governor-General as the Queen’s representative.
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Parliament in Operation. The Three Readings of a Bill
The first reading is a formal reading of the Bill’s title and a distribution of the copies of the Bill. This usually takes place in the House of Representatives.
There is no debate.
The second reading. The relevant Minister delivers a speech outlining the content and objectives of the Bill and members debate the Bill.
The third reading involves voting on the Bill. If a majority votes for the Bill, the Bill is passed and is subsequently sent to the Senate - the Upper House where the same procedure is followed.
If the Bill is passed by a majority vote at the third reading, then it has passed both Houses of Parliament and is sent to the Governor-General for Royal Assent.
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Parliament in operation Royal Assent
A Bill that has been successfully passed by both Houses of Parliament is not law until it receives the Royal Assent of the Crown Representative.
On a Federal level, the Crown Representative (representing the Queen) is the Governor-General.
Traditionally, the Crown Representative acts on the advice of the executive government.
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Parliament in operation When does the new Act commence?
The Act will commence:
From the date specified in the Act, or
A date to be fixed by proclamation, or
If the Act is silent as to its commencement:
from the date of Royal Assent (State acts), or
28 days after Royal Assent (Federal acts).
Parliament has the power to declare an Act to be retrospective, but this power is used sparingly.
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Parliament in operation How to dissolve Federal Parliament
In relation to the Federal Parliament, S.57 of the Australian Constitution provides that:
if the Upper House fails to pass a Bill passed by the Lower House, and
after three months the Bill is once again passed by the Lower House and rejected by the Upper House,
the Governor-General is empowered to dissolve both Houses, known as a double dissolution.
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Parliament in operation: Proposal, Drafting and Submission to the Houses
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Three readings of a Bill
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The Legislature Creating new law or changing existing law
The decision to change existing law or to introduce new law may arise for three reasons:
The executive government decides to change the law or create a new law to implement its policies.
The executive government is pressured by one or more sources (shown in the transparency following) to do so.
A member of Parliament who is not a member of the executive government may initiate the proposed change to or creation of a new law. This is referred to as a Private Member’s Bill.
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Pressure to change the law
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Parliament in operation
If after the new Parliament is appointed the deadlock reoccurs, the Governor-General can convene a joint sitting of both Houses.
Double dissolutions are relatively rare.
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Types of legislation
Broadly speaking there are 5 types of Act:
Original Acts – Acts passed about a particular matter for the first time
Amendment Acts – Acts made by the legislature to amend the Original Acts
Repealing Acts – Acts which abolish existing Acts.
Consolidating or reprinted Acts – Acts which bring 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. The original Act and its amendments are repealed and a single, consolidating Act is passed.
Reviving Acts – Acts which revive or restore an Act that is no longer current.
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The judiciary
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The Judiciary
The Judiciary:
Judicial power is the power to interpret the law and to apply it in the resolution of particular disputes
Judicial power is exercised by the courts
Judicial decisions in the Australian Court System therefore, form one of the Sources of the law in Australia. The source is referred to as Common Law
Common law is another term for judge-made law or case law
All three terms refer to decisions made by judges in our Court System
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The judiciary
Judicial power is the power to interpret the law and to apply it in the resolution of particular disputes.
Judicial power is exercised by the courts.
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Court hierarchies
Court Hierarchies:
Within Australia there is a Federal court hierarchy.
Chapter 111 of the Australian Constitution provides for the creation of all Federal Courts including the High Court of Australia. There is also a court hierarchy on State and Territory levels. Each of the six States and two mainland Territories has its own court hierarchy;
A court hierarchy:
allows a system of appeals,
allows different forms of hearing according to the gravity of the case, and
facilitates the operation of the doctrine of precedent (explained later).
Each court in the hierarchy has its own jurisdiction.
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Federal court hierarchy
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State court hierarchy
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Jurisdiction
Jurisdiction refers to the scope of the court’s authority – either Federal or State.
Each of the Courts on either level has:
Original and appellate jurisdiction.
Criminal and civil jurisdiction.
The scope of jurisdiction also applies to:
Specialised courts, tribunals and decision-making bodies
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Court processes: The Adversarial System
The Adversarial System:
The system of dispute resolution used in modern Australian courts is called the adversarial system.
The parties ‘fight it out’ until one of them is declared a winner by an impartial referee in the form of a judge.
Within strict rules of procedure and evidence, the parties have complete responsibility for the conduct of their case.
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Court processes
The Court Processes:
The judge observes and listens to the proceedings, ensures that all rules of procedure and evidence are applied fairly and consistently, allows both parties to be heard and, unless there is a jury, decides the case.
The adversarial system can be contrasted with the inquisitorial system used in courts in civil law countries.
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Court processes
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Decision to litigate
Commencing proceedings
Pre-trial
The trial
The decision
Appeal
The trial process
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The doctrine of precedent
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Mabo v Queensland (No 2) (1992)
Rejected terra nullius
Recognised native title
Maintained doctrine of reception
Judicial activism ?
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The doctrine of precedent
The Doctrine of Precedent:
The decisions of most courts are recorded and published, leading to the creation of a second source of law: case law also known as judge-made law or common law.
According to the doctrine of precedent, in reaching a decision about a question of law the court must follow the decisions of courts higher than itself
in the same hierarchy of courts within the particular jurisdiction.
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The doctrine of precedent: Ratio and Obiter
But not everything a court says in a judgment is binding on lower courts in the same court hierarchy.
Only the ratio decidendi (ratio) of the case is binding on lower courts.
The ratio is that part of the court decision which provides the legal reasoning for the decision made on the facts before the court.
The obiter dicta is that part of the court’s decision which is not necessary for the decision made on the facts before the court.
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The doctrine of precedent: Ratio and Obiter
Obiter is a hypothetical example given by the court as to how it might have decided differently if the facts had been different.
Obiter is not therefore binding on lower courts in the same court hierarchy.
Obiter is persuasive only. This means that any court - higher or lower in the court hierarchy – has a choice as to whether or not to follow the obiter.
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The doctrine of precedent: Persuasive authority – meaning - Distinguishing cases
The Meaning of Persuasive Authority:
Decisions of courts outside the particular hierarchy are also not binding but may be persuasive.
Persuasive means that the Court has a choice as to whether or not to follow the non-binging aspect of the decision of the Court outside the particular court hierarchy.
There are also a number of ways by which a court can avoid having to follow a previous decision:
distinguishing involves the judge finding that the material facts of the two cases differ so significantly that the earlier decision is not binding authority.
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The doctrine of precedent Distinguishing precedent
Distinguishing Precedent:
To distinguish a case is not to question the validity of the decision made.
It is merely to argue that given the marked difference in law and/or fact between the two cases, the decision of the higher court which would normally be binding, does not apply.
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The doctrine of precedent rejecting and overruling precedent
Rejecting Or Overruling Precedent:
A court may also reject or overrule precedent about questions of law.
Distinguishing Common Law and Equity:
Within the extremely large body of case law that has developed, two important categories can be identified: common law and equity.
Common law and Equity are both jurisdictions exercisable by every judge sitting in the higher courts in the Australian court hierarchy.
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Common law and Equity Distinction lies in the remedies
Centuries ago, common law courts in England applied the law strictly and as a result, plaintiffs were denied their remedy.
The only remedy available was damages.
Plaintiffs complained to the reigning monarch’s representative – the Chancellor.
The complaints were so numerous that they gave rise to the creation of Courts of Chancery otherwise known as Courts of Equity.
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Common Law and Equity Distinction lies in the remedies
These (Equity) courts offered alternative remedies such as injunctions and specific performance.
Equitable remedies, however, are discretionary. This means they lie in the court’s discretion. The judge/s may decide whether or not granting an equitable remedy is appropriate in the circumstances.
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Common law and Equity Distinction lies in the remedies
The court will always administer the common law remedy of damages first.
It is only if that remedy is inadequate that the court will determine whether or not to exercise its equitable jurisdiction.
Eventually these jurisdictions merged. So judges in higher courts in the Australian court hierarchy now have the power to administer the remedies in both jurisdictions.
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Alternative dispute resolution
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Alternative dispute resolution
Alternative Dispute Resolution:
in commercial situations, it is often less destructive to on-going business relationships than litigation, and
it relieves the pressure on, and therefore the costs of, maintaining the court system.
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Alternative dispute resolution
Other Methods of Dispute Resolution:
Other methods that can be used to settle disputes include negotiation, mediation, conciliation and arbitration.
ADR is becoming increasingly common in Australia and other countries because:
it is generally cheaper, faster, more private and less stressful than going to court,
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Alternative dispute resolution
in commercial situations, it is often less destructive to on-going business relationships than litigation, and
it relieves the pressure on, and therefore the costs of, maintaining the court system.
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| Negotiation | Mediation | Litigation |
| Discussion Sharing interests/needs Voluntary Bargaining Compromise Win-win Parties have control Private (no 3rd party) | Neutral 3rd party intervention Facilitated negotiation Non-binding/advisory voluntary | Adjudication Based on the law Decisions by judge Adversarial Binding More Expensive Public proceedings Public interest concerns Slower 1 wins, 1 loses – binary Lawyers involved |
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Finding the law
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Legal research
To use the law to solve legal problems, you need to know where it can be found.
Relevant materials are:
primary legal materials;
case law;
legislation; and
secondary legal materials.
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Primary and secondary legal materials
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Primary legal materials
Primary legal materials are the direct sources of the law, being:
legislation, the law made by parliaments, and
case law, the law made by judges.
Be careful that the legislation has not been amended or repealed.
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Primary legal materials
Primary legal materials are the original sources of the law which were discussed in earlier lectures when dealing with the Sources of the Law:
Legislation: Law made by parliament on a Federal or State level.
Example: The Competition and Consumer Act 2010 (Cth) which appears in the next transparency.
Common Law: Law made by judges on the basis of a dispute before the court.
Example: Donoghue v Stevenson.
Reference to this case is found in transparency no. 10
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Legislation
Competition and Consumer Act 2010 (Cth)
Locating legislation online: www.austlii.edu.au
Short title
Date
Jurisdiction
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Case law
Donoghue v Stevenson [1932] AC 562
Locating case law online: www.austlii.edu.au
Parties
Pronounced ‘and’
Date
Law reports
Page number
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Secondary legal materials
Secondary legal materials are those materials that do not comprise the law itself but instead explain and expand upon the primary legal materials – the primary
Sources – the relevant legislation or the case law itself.
They are a commentary on the impact original Source has on the existing law or
Secondary legal materials are not binding law, but they can be persuasive.
Secondary legal material includes:
law textbooks; law journal articles; legal dictionaries; and legal encyclopaedias.
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Reading the law
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Legislation
Number
Title
Date of assent
Enacting words
Commencement
Sections, subsections and paragraphs
Parts and divisions
Marginal notes
Definitions sections
Schedules
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Case reports
Recall that ratio and obiter have been previously discussed.
By way of reminder, note their definitions:
The ratio decidendi (‘reason for the decision’) is that part of a judge’s decision which sets out the legal principle (legal reasoning) upon which the decision was based, on the facts before the court and which is binding precedent.
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Case reports
The obiter dicta (‘saying by the way’) is that part of a judge’s decision other than the legal principle upon which the decision was based, including the identification of the relevant evidence, and discussion of alternative legal principles, alternative decisions if the facts had been different, and the historical development of the legal principles used in reaching the final decision.
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Interpreting the law
Legal writing is notoriously difficult to read and understand, and legal texts are often criticised for being long, complex, and repetitive, and even badly organised, unnecessarily elaborate and confusing.
Many jurisdictions now require that certain documents be in plain language.
Example: consumer credit legislation requires contracts and notices by credit providers to be ‘easily legible’ and ‘clearly expressed’.
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Rules of interpretation
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GENERAL RULES
literal rule
golden rule
SPECIFIC RULES
context rule
purposive approach
class rule
inclusions and exclusions
give each to each
general and specific
earlier and later
RULES
Statutory interpretation
A number of general and specific rules 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 or not the legislation applies.
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Statutory interpretation: Significance
Statutory interpretation is a very precise method used by the judges when called upon to interpret a word, phrase, sentence, or an entire section or sections contained in legislation.
The need to be precise is obvious because the way in which a court interprets legislation will determine how narrowly or broadly that legislation will apply in the future and therefore, how it will impact society on a personal, business, and/or criminal and/or civil level.
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Statutory interpretation: Significance
Example: It may, depending on the way a provision is interpreted, determine the guilt or innocence of a person by deciding whether the provisions of a section have been breached in a way which attaches criminal guilt.
Seen in this way it becomes obvious that the methods used to interpret legislation have a significant impact on society – personally, commercially, in a criminal or civil sense, and even politically.
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Statutory interpretation General Rules: The Literal Rule
Literal rule: Always begin by reading a legal text literally, with words and phrases given their ordinary and natural meanings:
Fisher v Bell [1961] 1 QB 394:
In that case legislation provided that any person who sells or ‘offers’ for sale, a flick knife, was guilty of an offence and subject to a fine and/or imprisonment. The defendant displayed such a knife in his window and was charged with breaching the legislation.
The issue was whether, by displaying the knife, the defendant had ‘offered’ it ‘for sale’ within the meaning of the legislation.
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Statutory interpretation General Rules: The Literal Rule
It was held that the display of goods in a window did not constitute an ‘offer’ within the meaning of the legislation and that the defendant had not breached that legislation.
The court reached this decision by applying the literal rule and giving words their ordinary and natural meaning – to display something meant exactly that. It did not constitute the ‘offer’ of anything.
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Statutory interpretation General Rules: The Literal Rule
The defendant was therefore cleared of the charge made against him, thereby avoiding the possible penalty of paying a fine and/or going to jail.
Practical impact of Statutory interpretation:
This case provides a clear example of the actual impact which the interpretation of legislation has on the lives of individuals.
The way in which the legislation was interpreted and a decision reached, meant the difference between Bell’s acquittal or conviction under the legislation.
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Statutory interpretation General Rules: The Golden Rule
Golden rule - If reading a text literally leads to an absurd result, modify the literal meaning so as to avoid the absurdity:
Lee v Knapp [1967] 2 QB 442
In that case legislation provided that if a motor accident occurred, the driver of the vehicle had to ‘stop’. Knapp was charged with breaching this provision.
He argued that he had stopped – momentarily – when the accident occurred. And then he drove off.
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Statutory Interpretation General Rules: The Golden Rule
It was held that Knapp was in breach of the legislation In reaching its decision the court indicated that to interpret the legislation literally – which would mean an acceptance of Knapp’s argument - would lead to an absurd result.
It therefore applied the Golden rule and interpreted the word ‘stop’ as meaning having to stop for long enough to exchange contact details and any other necessary information and since this had not been done, Knapp was in breach of the legislation.
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Statutory interpretation General Rules: Purpose Rule
Purposive approach (Purpose Rule) - If reading the text literally does not reveal the meaning of the text, refer to the apparent purpose of the author when drafting the text:
Armstrong v Clark [1957] 2 QB 391
Sometimes the Act itself contains an object clause.
This clause states the object of the legislation. It provides an indication as to the purpose of the legislation – its intended aim.
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Statutory interpretation General Rules: Purpose Rule
Example:
The Competition and Consumer Act 2010 (Cth) contains an object clause which provides:
‘The object of this Act is to enhance the welfare of Australians through the promotion of competition and fair trading and provision for consumer protection’.
Any interpretation of provisions within this Act will, therefore, take into account the stated object when interpreting provisions within that Act and be read to give effect to the stated objects.
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Statutory interpretation General Rules: Purpose Rule
Such clauses can prove to be very helpful to a court when determining how to interpret legislation.
If there is a stated object or purpose, the court is going to take this into account when interpreting legislation.
The purpose rule also allows for the introduction of material which is outside the relevant piece of legislation which may help in interpretation.
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Statutory Interpretation General Rules: Purpose Rule
The courts are willing to admit this extrinsic material in cases where there is ambiguity:
Example:
Waramungu Land Claim which involved a claim by the Aboriginal Land Council pursuant to a Statute which provided that claims could not be made over roads. The land claimed by the Council included a stock route – a track along which stockmen moved sheep and cattle.
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Statutory interpretation General Rules: Purpose Rule
The court decided it was not clear from the relevant legislation whether the term ‘road’ included a stock route and that therefore it was appropriate to ascertain parliament’s purpose by referring to extrinsic materials.
This was done by referring to the minister’s second reading speech in which it was made clear that the Act was to exclude from land claims ‘roads over which the public had a right of way’.
The court decided that this referred to the general roadway system, and did not include stock routes.
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Statutory Interpretation Specific Rules: Contextual Approach
Specific Rules
The first three rules discussed – the literal, golden and purpose rules - are general rules of interpretation.
When using them to interpret legislation, the court allows for the use of more specific rules to aid in such interpretation:
Contextual approach
According to this approach, rather than interpret the words used in the Act individually, a court should take into account the various contexts of those words: Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355, 381.
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Statutory interpretation Specific Rules: Contextual Approach
These contexts may include:
The immediate context – that is, consideration may be given to the words and phrases used in the same section or surrounding sections in the Act.
R v Harris (1836) 173 ER 198, where an accused was charged for biting off the end of another’s nose. The legislation made it an offence to wound another through the use of an instrument.
The court held that what the accused had done did not come within the meaning of the legislation since no instrument was used to perpetrate the act committed.
He was acquitted of the charge under the legislation.
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Statutory interpretation Specific Rules: Contextual Approach
The Act as a whole – a provision should be read in the context of the Act as a whole.
Example: In the University of South Australia Act 1990 (SA) the reference to a ‘student’ in that Act does not refer to students generally but to a student who attends the South Australia University.
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Statutory interpretation Specific Rules: Contextual Approach
The prior law.
The legislation in question may allow for the referral to laws which existed – either common law or statutes – prior to the enactment of that legislation for guidance.
The mischief being remedied.
In interpreting the legislation, the court is able to give consideration to the issue which the legislation sought to address:
Smith v Hughes [1960] 1 WLR 830 where legislation made it a crime to ‘loiter and solicit’ clients in the street. Prostitutes then sought to achieve their aim by calling out to men from balconies or tapping on windows to attract their attention.
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Statutory Interpretation Specific Rules: Contextual Approach
Held: Since ‘mischief’ which the legislation sought to prevent was prostitution, it did not matter that the prostitutes were technically off the streets. Their actions still violated the ‘mischief’ which the legislation had sought to overcome.
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Statutory interpretation Specific Rules: The Class Rule
The Class Rule.
Also known as the ejusdem generis rule.
This rule provides that if specific words are used and are followed by general words, then the general words are restricted by the preceding specific words.
Example:‘Dog, cat, or any other animal’. Such a phrase would be interpreted to mean that the general words are to be interpreted as meaning ‘any other domestic animal’, since the preceding words refer to domesticated pets.
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Statutory interpretation Specific Rules: Inclusion and Exclusion
Inclusion and Exclusion
What is specifically included in legislation is what that legislation aims to cover.
It does not aim to cover what has been excluded from and is not referred to, in that legislation.
Example: A sign prohibiting parking at certain times, is by implication, not prohibiting parking at times outside the hours specified.
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Statutory interpretation Specific Rules: Give Each To Each
Give Each to Each
This term deals with attributing certain provisions in a Statute to certain other provisions mentioned in that Statute.
Example: If two offences are mentioned in a section, each attracting a different fine, then the first offence will attract the first fine, and the second offence, the second fine.
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Statutory Interpretation Specific Rules: Specific/General Provisions
Specific Provisions and General Provisions
This rule provides that if there are both specific and general provisions in a statute and there is an inconsistency between them, then the specific provision shall prevail over the general.
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Statutory interpretation Specific Rules: Later/Earlier Provisions
Later Provisions And Earlier Provisions
To the extent that there is any inconsistency between the two, later provisions take precedence over earlier provisions.
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Choosing the correct approach
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Statutory interpretation: Other Specific Rules
The Act should be read as a whole.
Words have current meaning.
Technical words should be given their technical meaning.
Interpret statutory provisions that impose a penalty narrowly.
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Statutory interpretation Other Specific Rules
We should presume that, in the absence of express words to the contrary, legislation is not intended to:
Be extra-territorial;
Be retrospective;
Contradict established principles of common law or infringe established common law rights;
Bind the Crown; and
Words have their current meaning.
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Thinking like a lawyer
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How to solve a legal problem
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How to Solve a Legal Problem
The importance of legal reasoning allows us to identify legal rules of relevance to the legal issue that has arisen.
Inductive or deductive reasoning?
Section 30 of the Offences Against the State Act 1939 provides that a suspect can be detained by the police for questioning at ‘a police station, a prison, or some other convenient place’. X is detained in a police car for a number of hours. Is this a lawful detention?
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Step 1: Identify the legal issue
Issue
Is a police car a ‘convenient place’ within the meaning of the OATS Act?
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Step 2: Identify the relevant legal rules
Legal rules – Relate the law
According to the literal rule, we should always begin by reading a legal text literally, with words and phrases given their ordinary and natural meanings. (Fisher v Bell)
One exception to the literal rule is the class rule. According to the class rule, where two or more specific words are followed by a general word, the general word is limited to the class created by the specific words. (DPP v Farrell [2010] IECCA 116.)
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Step 3: Apply the rules to the facts
Application – Apply the law to the facts
Applying the literal rule, a police car can be a ‘convenient place’.
However, applying the class rule to the phrase ‘a police station, a prison, or some other convenient place’, the general words ‘convenient place’ are limited to the class created by the specific words: a type of building.
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Step 4: Reach a conclusion
Conclusion
A police car is not a ‘convenient place’ within the meaning of the OATS Act.
The police are in breach of the OATS Act.
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Writing like a lawyer
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Formality and precision
Legal writing is formal rather than conversational.
The tone of the writing is serious, polite and respectful.
Do not use informal terms such as:
contractions such as ‘can’t’ or ‘wouldn’t’,
slang or colloquialisms, or
offensive terms.
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Clarity
In writing a legal text in plain language:
think about the structure,
think about the content of each sentence and paragraph,
think about the language used,
think about the choice of words, and
design the document to help the reader.
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Writing a letter of demand
Subject line
Background
Problem
Solution
Warning
Closing
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Drafting a simple contract
Recall that a contract is a legally enforceable agreement between two or more parties.
A contract contains the promises made by each of the parties.
If either party fails to keep those promises, they will be in breach of the contract.
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Drafting a simple contract
To draft a contract:
Step 1: prepare an outline.
Step 2: draft the contract by listing the topics in logical order with each topic in its own substantive clause.
Step 3: test and revise the contract.
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Takeaways from today?
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