Topic 1

Difference between law and policy/law and opinion

Pepper Finance Corporation Ltd v Williams [2008] NSWSC 4
Defendant argument is based on common sense not legal sense. Shes
educated but dont understand the application of law.
Policy are developed by Parliament voted by the people, which may be proactive,
prospective or reactive to an issue within society. Politician have agendas to
ensure that they stay in government. Case law respond to issue and deal with
the particular. Judges dont have agendas and have to explain their reasons for
the outcome in cases:
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
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
Judges dont make decisions based on personal opinion but based on the law and
precedents that was set by their comrade:
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
Case law
Statues law prevail when conflict occur.
See example: Competition and Consumer Act 2010 s46.
Example of setting aside previous ratio and development of new ratio:
Thornton v Shoe Lane Parking [1971] 2 QB 163
Citation of cases and statues must be underline when writing not italic. E.g.
Case: Thornton v Shoe Lane Parking [971] 2 QB 163
Statute: Australian Sports Drug Agency Act 1990 (Cth)

Statute
The section is the most important part of the Act.
When looking at section of statute. All elements of sections must be satisfied
for applicability.
e.g. Australian Consumer Law s18
(1) A person shall not, in trade or commerce, engage in conduct
that is misleading or deceptive or is likely to mislead or deceive.