Legal opinion assignment

Legal
Opinion
Assignment
Statutory
Interpretation
Winter
2015
Dear
Barrister,
Thank
you
for
agreeing
to
provide
an
opinion
about
the
operation
of
the
new
Judicial
Conduct
Commissioner
Act
2015
(SA).1
As
the
new
Judicial
Conduct
Commissioner
I
am
very
keen
to
understand
my
new
powers
before
proceeding.
I
have
three
major
concerns
for
your
consideration.
1. On
the
27th
March
2015
a
Supreme
Court
judge,
Justice
Spy
reportedly
made
a
secret
recording
of
a
heated
conversation
with
his
head
of
jurisdiction
during
a
meeting
in
which
the
then
Chief
Justice
Grumpy
allegedly
referred
to
the
state’s
judiciary
as
“scum”.
Justice
Spy
has
suggested
that
the
Chief
Justice
was
trying
to
change
standing
arrangements
for
who
should
be
sitting
on
the
Court
of
Disputed
Returns
at
the
upcoming
challenge
to
the
by-­‐election
result
from
the
seat
of
Fisher.
He
notes
that
Chief
Justice
Grumpy
was
appointed
by
the
sitting
government,
which
has
strengthened
its
position
as
a
consequence
of
the
by-­‐election
result
(should
it
stand).
Please
advise
as
to
what
steps
should
be
taken
to
address
this.
2. One
of
the
District
Court
judges
Judge
Tardy
has
been
turning
up
late
for
court
and
leaving
early.
Mrs
Defarge
who
regularly
attends
court
to
knit
and
observe
the
meting
out
of
just
punishment
is
scandalised
about
this
and
has
telephoned
my
office
to
complain.
She
does
not
wish
anyone
to
know
that
she
has
complained.
I
have
also
heard
rumours
that
Judge
Tardy
is
on
average
two
years
slower
than
the
average
District
Court
judge
in
handing
down
his
judgments.
It
was
reported
in
the
paper
that
litigants
in
one
case
held
a
party
to
celebrate
their
fourth
year
without
a
judgment.
I
have
briefly
mentioned
these
issues
to
the
chief
judge
of
the
District
Court
whose
response
was,
‘So
what?
Live
and
let
live,
I
say’.
Please
advise
as
to
how
I
can
handle
these
events
in
accordance
with
the
Act.
Should
these
matters
be
substantiated,
am
I
able
to
issue
a
public
reprimand
to
Judge
Tardy?
3. I
was
delighted
to
be
appointed
as
Judicial
Conduct
Commissioner
from
my
position
as
a
legal
academic.
I
had
held
this
position
at
the
University
1 Please assume the existing Judicial Conduct Commissioner Bill (as laid
on the table and read a first time, 18 March 2015) has been enacted and is
operation as of 1 July 2015. The Act is validly passed and there are no
constitutional issues worth mentioning (please).
of
Adelaide
since
being
admitted
to
the
profession
on
30th
June
2008.
I
have
since
that
date
held
a
practising
certificate.
Is
my
appointment
valid?
In
homage
to
my
former
career,
please
provide
a
fully
referenced
opinion
of
no
more
than
4500
words
(including
footnotes).
There
is
no
need
to
provide
a
bibliography
but
please
ensure
that
your
opinion
is
otherwise
AGLC
compliant.
I
would
be
grateful
(and
will
not
inflict
late
penalties)
if
your
opinion
is
provided
by
Thursday
13
August
at
2
pm.
Yours
faithfully,
Commissioner
Carmody

 

Practice Statutory Interpretation Question

 

Guide to answering the question

 

What follows is a guide. It demonstrates an approach to answering problem questions and has been designed to help you develop the analytical skills you will require. It is not a sample answer to this question. It is not in essay format – the format in which you will be required to present your answers. It contains a guide to the relevant law, and does not attempt to provide a full legal discussion of the question or full citations of any sources referred to. These questions help develop your analytical skills but are not a replacement for learning and applying the relevant law.

 

 

WORK OUT WHAT THE QUESTION IS ABOUT

 

Start by carefully reading the question to work out what it is about. If often helps to underline or highlight key words and phrases as you go through. This serves as a useful checklist to make sure you have covered all relevant material in your answer.

 

The Control of Domestic Animals to Prevent Injuries to Children and Vulnerable Citizens Act, 1995 (NSW)

(Assented to 1st June 1995)

 

 

s.1 Short Title

This Act may be cited as The Domestic Animals Act.

 

s.2 Interpretation

In this Act, unless the contrary intention appears

“domestic animal” means dog, cat, ferret, mouse, guinea pig, horse or other pet.

“owner” includes registered owner, or any other person in possession of the domestic animal; where a minor is in possession of a domestic animal, the parents or guardians of the minor will be deemed to be the owner

“restrained” means chained, secured on a lead, or attached to a fixed object.

“registered owner” means the adult person who has registered the domestic animal

 

s.3 All domestic animals must be registered.

 

  1. 4. The owner of any domestic animal in a metropolitan area shall restrain the domestic animal at all times.

 

s.5. The owner must control the domestic animal at all times.

 

s.6 Any person in possession of an unregistered domestic animal is guilty of an offence. (Penalty: 50 Penalty Units)

 

s.7 Any person in breach of sections 4 and 5 is guilty of an offence.( Penalty: 5000 Penalty Units)

 

s.8 Any alleged breach which, if successfully proven, would result in a potential liability in excess of 1000 Penalty Units shall be prosecuted in the Supreme Court of NSW.

 

Contemporaneous newspaper reports indicate that The Domestic Animals Act, 1995 (‘the Act’) was brought into force to deal with two social problems: Cats destroying native wildlife and injuries to children caused by dog attacks.

 

In R v Jones (District Court, 1996, unreported) the Court considered section 6 of the Act. Among other things, the Court found that a cockatoo was a domestic animal.

 

For the purposes of this question do not consider whether any other legislation may have been breached.

 

Citing and using the relevant rules of statutory interpretation, advise in relation to the following:

 

Question 1. ( 15 marks)

 

Richard lives in outback NSW and likes to hunt. He is President of his local Dog Obedience Club, and he and his dog Rover have won numerous awards in obedience competitions. He has trained Rover to hunt possums and other vermin. In March 2005 Richard and Rover were camping on a friend’s isolated property 50 km from the nearest small town.

 

The property has been overrun with possums. In return for the campsite, Richard agrees to hunt possums with Rover. Rover kills 25 possums.

 

Richard takes the possum skins into town to Mary’s sewing shop to have a possum skin rug made for his mother for Christmas. Mary’s husband is the local policeman. Noticing Mary’s new commission he inquires of Richard how the possum skins were obtained.

 

Richard is charged with breaching the Act. Advise Richard.

 

Question 2. ( 15 marks)

 

Beth has just moved to Orange, and is very excited because her registered dog Molly has just given birth to five pups. Beth needs to start her new job in the Orange Metropolitan Development Office but is confident that her puppies will be safe as her backyard is well fenced.

 

Gladys, the local neighbourhood watch captain, drops in while Beth is at work, to welcome her to the neighbourhood. Through the cyclone fence, she notices the puppies frolicking freely in Beth’s yard. She calls the police, and Beth is charged with breaching the Act. Advise Beth.

 

Question 3. ( 20 marks)

 

Frank loves his pet magpie, Maggie, which serves as the mascot for his U12 Sydney Football team. Maggie comes to all the games with Frank. In March 2004, Frank, watched by Maggie, is playing in the park at the end of his street with school friends. Unexpectedly, Maggie swoops and injures his friend. Frank runs home to fetch his mother for help.

 

Later that day, the police knock at Frank’s door and charge Frank’s parents with breaching sections 4 and 5 of the Act. Advise Frank and his family.

 

 

 

 

WHAT IS THE QUESTION IS ABOUT?

 

Richard, Beth and Frank’s parents are charged with an offence under the Domestic Animals Act. You need to understand the provisions of this Act and any rules of statutory interpretation so that you may properly advise them. The question may talk about control of pets, BUT IT IS ASKING YOU TO INTERPRET THE STATUTE. Be careful not to be distracted by red herrings.

 

STRUCTURE

 

The question is divided into three parts, each dealing with the same legislation, but each raising different questions based on different fact scenarios. You should adopt the structure of the question, and deal with each part separately. Any relevant law discussed in one question may be referred to in a subsequent question.

 

Question 1: Richard

 

WHAT MUST WE CONSIDER TO INTERPRET A STATUTE?

WHAT ARE THE ELEMENTS OF STATUTORY INTERPRETATION?

 

Preliminary matters

 

  • DATE: WHEN DID THE ACT COME INTO FORCE? IF THE ACT IS SILENT WHAT DOES THE RELEVANT INTERPRETATION LEGISLATION PROVIDE? WHEN DID THE PARTICULAR BEHAVIOUR OCCUR? IS IT CAUGHT BY THE ACT?

 

Royal assent: 1 June 1995

Commencement date: Act silent; consider Interpretation legislation – 28 day rule applies. (Remember, you need to determine which of the Interpretation Acts to use – we are interpreting a New South Wales Statute, so it will be the Interpretation Act 1987 (NSW) s23)

 

When was Richard arrested? Was the Act in force at the relevant time?

(This is an example of application. You have to show how the law applies to the particular facts in this question.)

 

  • JURISDICTION: DID THE RELEVANT PARLIAMENT HAVE POWER TO PASS THIS LAW?

 

This is an act of the NSW Parliament. Are there any issues with respect to jurisdiction? If there are no issues, this matter does not need to be dealt with.

 

 

Interpretation

 

  • FOCUS ON THE SECTION: WHAT SECTION ARE YOU DEALING WITH? WHAT ARE THE KEY WORDS IN THE SECTION WHICH NEED TO BE INTERPRETED?
  • APPROACH TO INTERPRETATION: COMMON LAW OR STATUTE? CONSIDER FIRST THE NATURAL AND ORDINARY MEANING OF THE WORDS. NOW CONSIDER WHETHER THE WORDS OF THE SECTION HAVE MORE THAN ONE MEANING? CONSIDER s15AA, AS INTERPRETED BY DAWSON J. IN MILLS v Does consideration of purpose open a second construction, which is to be preferred?

 

 

Which section is relevant to Richard? It could be s3 or s5. Why can’t it be s 4? Where is Richard?

 

Remember, to be guilty of an offence, Richard must satisfy every element (usually the key words) of the relevant section.

 

s.3 All domestic animals must be registered.

 

 

s.5. The owner must control the domestic animal at all times.

 

Section 3:

 

What are the elements of s3 which must be satisfied?

  • Domestic animal
  • Registered

 

Is Rover a domestic animal? Why?

How is “domestic animal” defined? Where is this definition? Which statutory interpretation tool are you using?

 

How does the law (i.e. what is a domestic animal) apply to the facts of Rover?

 

If Rover is a domestic animal, is it registered?

What information do we have about this matter? If it is unclear, then both alternatives should be mentioned.

 

If Richard is in breach of s 3 what is the penalty, and where in the Act would it be found?

 

Section 5:

What are the elements of s5 which must be satisfied?

 

  • Owner
  • Control
  • Domestic animal
  • At all times

 

Is Richard an “owner”? Why? What section are you referring to (s2?) and why? Have you considered how, on the facts, the provisions of this section have/not been met?

 

What does control mean? Is it defined in the Act? What other tools can you use to find the “natural and ordinary meaning” of this word? Can you use a dictionary? Why? What is your authority (legal reason) for this? (e.g. State Chamber of Commerce case?) What legal approach are you using here? Why? What is your authority?

Having determined the legal meaning of control, look at the facts. Was Richard in control of Rover? What facts suggest this? Why are you given details of Richard’s involvement in dog obedience clubs?

 

Is Rover a ‘domestic animal’?

This is a good example of an opportunity to refer to a previous discussion. This question has been dealt with extensively above, and so would not need to be considered again. You could simply refer to your previous discussion and incorporate the conclusion here.

 

If Richard was in control, was he in control “at all times”. What does this mean? Always or at all times when he is outside his property? Is this ambiguous? If it is, what legal tool does this suggest you should use? S34? Does extrinsic material help you to understand the meaning of “at all times”?

 

What is your conclusion?

 

Is it relevant that Rover has killed native animals? Where in the Act is this an offence?

 

Do we need to consider purpose at this point? What is the relevant law? What governs our approach to interpretation? Common law or statute? Consider s33 as interpreted by Dawson J in Mills v Meeking.

 

Does consideration of purpose open a second construction, which is to be preferred? Where would you look to determine the purpose of the legislation? (Remember, unless you have satisfied the tests for extrinsic material, you cannot use it. What intrinsic material can you refer to?)

CONSIDER WHETHER THE WORDS OF THE SECTION HAVE MORE THAN ONE MEANING.

 

What is your conclusion?

 

(Note the process we are using: find the meaning of the word (legal question) and then look at how/if on the facts, that legal test has been met. In other words, in solving a statutory interpretation problem we:

  1. Isolate the relevant section and its elements
  2. Determine the legal meaning of each of the elements, using the relevant legal tools of interpretation; and
  3. Then seek to apply the law to the facts, and test whether or not on the facts we have available to us, the relevant law has been satisfied/applies.

This approach will be common to any legal problem solving.)

 

 

Question 2: Beth

 

(Typically, different questions will raise different issues. While there will always be some overlap, be careful to spot the particular issues raised in the question, and discuss them, rather than just repeat your prior discussion.

 

Be careful also when referring to a previous discussion. You can always refer to a previous legal discussion, but you must make sure that you consider how the legal position applies to the different facts of each question.)

 

WHAT MUST WE CONSIDER TO INTERPRET A STATUTE?

WHAT ARE THE ELEMENTS OF STATUTORY INTERPRETATION?

 

Preliminary matters

 

DATE:

You may refer to your earlier legal discussion of when the Act came into force, but you can’t simply say it applies. You have to consider how/if it applies to the new facts of Beth’s question.

 

JURISDICTION:

This is an act of the NSW Parliament. Are there any issues with respect to jurisdiction? If there are no issues, this matter does not need to be dealt with.

 

 

Interpretation

  • FOCUS ON THE SECTION: WHAT SECTION ARE YOU DEALING WITH? WHAT ARE THE KEY WORDS IN THE SECTION WHICH NEED TO BE INTERPRETED?

 

Which section is relevant to Beth? It could be ss3, 4 or s5, so all will need to be considered.

 

Remember, to be guilty of an offence, Beth must satisfy every element (usually the key words) of the relevant section.

 

s.3 All domestic animals must be registered.

 

  1. 4. The owner of any domestic animal in a metropolitan area shall restrain the domestic animal at all times.

 

s.5. The owner must control the domestic animal at all times.

 

Section 3:

 

What are the elements of s3 which must be satisfied?

  • Domestic animal
  • Registered

 

There is no need to repeat your legal discussion of the meaning of these words – simply apply it to the new facts.

 

Is Molly a domestic animal? Are her puppies domestic animals? Why/ why not?

 

Is Molly registered? Are her puppies registered? What facts from the question support your conclusion?

 

Is Beth in breach of s3? With respect to Molly? With respect to her puppies?

 

Section 4:

 

What are the elements of s4 which must be satisfied?

  • Owner
  • Domestic animal
  • Metropolitan area
  • Restrain
  • At all times

 

The only two new elements in this section which need consideration are “metropolitan area” and “restrain”. It is not necessary to consider the legal meaning of any other elements – you may simply refer to your previous discussion, but must consider how/if these legally defined terms apply to the new facts. (You will not need to do this with domestic animal as you have already applied it to the facts when considering s3 above.)

 

What is your authority for referring to a prior discussion of the same words used in a different section of the same Act? What legal principle are you using? On what authority? (Presumption that all words in legislation will have a consistent meaning?)

 

What does metropolitan area mean? Is it defined in the Act? What other tools can you use to find the “natural and ordinary meaning” of this word? Having determined the legal meaning of metropolitan area, look at the facts. Were Beth and her dogs in a metropolitan area? What facts suggest this?

 

Look closely at the question. Why does it give you such detail about Beth’s new job? You are advised that her job is at the Orange Metropolitan Development Office. How are you going to use this information?

 

What does “restrain” mean? Is it defined in the Act? Where?

The statutory definition in s2 provides:

 

“restrained” means chained, secured on a lead, or attached to a fixed object.

 

What type of definition is this? Is it a list? What are the special principles of statutory construction we use with respect to lists? Which maxim is applicable here? Noscitur a sociis?

Are Molly and the puppies chained? Are they secured on a lead? Are they attached to a fixed object, as understood using a noscitur a sociis construction? Are Molly and the puppies restrained – not on a common sense view, but within the meaning of the law?

 

(Any use of a rebuttable presumption or a Latin maxim should be checked against the purpose of the legislation. Why? What is our legal authority for this?).

 

What does “at all times” mean? How does your legal definition apply to the present facts?

 

Is Beth in breach of s 4?

 

Section 5:

 

What are the elements of s5 which must be satisfied?

  • Owner
  • Control
  • Domestic animal
  • At all times

 

Remember, the legal meaning of all of these terms has been previously discussed, so you simply need to apply the law to the facts. The only new element to be considered is “control”.

 

What is your conclusion?

 

 

Question 3: Frank

 

WHAT MUST WE CONSIDER TO INTERPRET A STATUTE?

WHAT ARE THE ELEMENTS OF STATUTORY INTERPRETATION?

 

Preliminary matters

 

DATE:

You may refer to your earlier legal discussion of when the Act came into force, but you can’t simply say it applies. You have to consider how/if it applies to the new facts of Frank’s question.

 

JURISDICTION:

This is an act of the NSW Parliament. Are there any issues with respect to jurisdiction? If there are no issues, this matter does not need to be dealt with.

 

Interpretation

 

  • FOCUS ON THE SECTION: WHAT SECTION ARE YOU DEALING WITH? WHAT ARE THE KEY WORDS IN THE SECTION WHICH NEED TO BE INTERPRETED?

 

Which section is relevant to Frank? It could be ss3, 4 or 5 so all will need to be considered.

 

Remember, to be guilty of an offence, Frank must satisfy every element (usually the key words) of the relevant section.

s.3 All domestic animals must be registered.

 

  1. 4. The owner of any domestic animal in a metropolitan area shall restrain the domestic animal at all times.

 

s.5. The owner must control the domestic animal at all times.

 

Section 3:

 

What are the elements of s3 which must be satisfied?

  • Domestic animal
  • Registered

 

There is no need to repeat your legal discussion of the meaning of these words – simply apply it to the new facts.

 

But consider, what legal definition of “domestic animal” have you relied on previously? s2 relevantly provides:

 

“domestic animal” means dog, cat, ferret, mouse, guinea pig, horse or other pet.

 

What was Rover? What were Molly and her puppies? What animal are we dealing with in this question? This question will require a more careful consideration of the definition of “domestic animal”.

 

Is Maggie a domestic animal? Specifically is she an “other pet”? How we will interpret this general term which comes at the end of a list? Using the ejusdem generis maxim?

 

What is the class of dog, cat, ferret, mouse, guinea pig and horse? Will a two legged bird be part of a class of four legged mammals? Will Maggie be considered an “other pet”?

 

(Check your findings against purpose)

 

What other information do we have in the question about the meaning of “domestic animal”?

 

Note the judicial interpretation in R v Jones. Does this suggest a different interpretation of “domestic animal”?

 

Consider the rules of precedent. What court decided R v Jones? Is this decision binding? Why? Why not? What court will hear Frank’s parents’ case? What information do we have in the question? Consider ss7,8? Why are we given this information? In which court will Frank’s parents’ matter be heard? Is R v Jones binding?

 

What does “domestic animal” mean?

 

  • Consider purpose. (Why are we doing this? s33?) What intrinsic material can we refer to? Long Title? Does this help us? Can we refer to extrinsic material? What test has been satisfied? Statutory or common law? (You must state and apply any test, or else extrinsic material cannot be referred to.) IS THE ORDINARY MEANING OF THE SECTION AMBIGUOUS OR, OBSCURE, or does it lead to a result which is MANIFESTLY ABSURD OR UNREASONABLE? (Why are these words important? What are the tests they refer to? Where are these tests found?)

 

What extrinsic material is available?

 

The only material is a newspaper report. What does contemporaneous mean? Does the newspaper report fall within the categories specified in s34(2)? Consider s34(1). Does a contemporaneous newspaper report constitute extrinsic material “which is capable of assisting in the ascertainment of the meaning of the provision”? Does it really tell us what was in the mind of Parliament? How does it help us in the construction of “domestic animal”? Does it change or confirm our earlier interpretation?

 

Application of the above legal discussion: is Maggie a domestic animal?

 

Is Maggie registered? (Is she eligible for registration if she is not a domestic animal?)

 

What is your conclusion?

 

Section 4:

 

What are the elements of s4 which must be satisfied?

  • Owner
  • Domestic animal
  • Metropolitan area
  • Restrain
  • At all times

 

There is no need to repeat your legal discussion of the meaning of these words – simply apply it to the new facts.

 

Is Frank the owner? Or are his parents the owner? Refer to the definition in s2 and consider how this applies to the facts.

 

Is Maggie a domestic animal? (Refer to previous discussion)

 

Are they in a metropolitan area? Which facts will you refer to? For whom does Frank play football?

 

Is Maggie restrained? (Refer to your previous legal discussion and consider how this applies to the present facts.)

 

Are all the elements satisfied? What is your conclusion?

 

Section 5:

 

What are the elements of s5 which must be satisfied?

  • Owner
  • Control
  • Domestic animal
  • At all times

 

Remember, the legal meaning of all of these terms has been previously discussed, so you simply need to apply the law to the facts.

 

What is your conclusion?

 

 

 

 

 

 

 

 

 

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