A+ 131 Notes

LAW 131 A+ STUDENT SET OF NOTES
A normal assumption when looking at cases is that these are New Zealand cases, unless
otherwise stated. However, you could state this assumption in the exam to get a bit of credit
possibly.
There are four main things we are concerned with in legal method: Source of Law (legislature v
judiciary), Legal Reasoning (constructing arguments), Precedent (how principles become law
and how they are applied to future cases), and Statute reading and Interpretation.
Constitution
A constitution is a/set of documents detailing the state’s powers and structures. Our constitution
is uncodified, so we don’t have one document detailing those powers/structures. In our
constitutional monarchy, the queen is the head of state, with her prerogative powers used by the
Governor General, with a representative government (queen reigns but government rules as
Queen only acts on the advice of elected officials), following the rule of law (the law applies
equally to everyone, and limits the power of lawmakers. Our institutions of power mainly follow
the Westminster system, such as the role of parliamentary committees, etc.
We find our constitution in statute (eg constitution act, bill of rights act 1990), common law
(body of law in precedents, eg values), conventions (not enforceable legally), and international
treaties (eg ToW – not binding but aid interpretation)
Separation of powers
The legislature creates law through statute, with the executive initiating and administering law,
and the judiciary applying the law. This is separation of powers, reducing potential to abuse
power. The judiciary deals with disputes about fact and law independently of parliament,
interpreting/applying statute and creating precedent. The Constitution Act 1986 partially
describes the composition and function and powers branches of government hold, illustrating
separation of powers.
Hansard (record of parliamentary debate) is here: ​http://www.parliament.nz/en-nz​ , and
www.legislation.govt.nz​ has up to date statutes. Also, on the ministry websites, bills have
statements explaining what the government THINKS it means (judges decide what it actually
means).
We are only concerned about cases in official law reports – the “significant” cases are reported
there, not unsignificant ones – but that is a matter of opinion. In this case, the law is about when
Maori customary burial practices should be able to occur. The “held” section is a summary of
what the reporter thinks the judge says – that is NOT law – what the judge says in the judgment

is the actual law. Also, in criminal cases, it will be R v ______ for the first instance of the case,
with R meaning Rex (if male monarch) or Regina (if female monarch).
A reserving judgment means reserving the right to put forward one’s own judgment dissenting
with that of the majority. Also, in one’s judgment, you can refer to the other judgments and why
you think your own reasoning is better.
Cur adv vult – time was taken to consider the judgment – ie it needs to be given more weight
then a spontaneous judgment.
It is expected for the Supreme Court to make a large number of obiters regarding the ratio in a
general sense if they think it ought to be extended into a general principle. Although this is not
binding on lower courts, as it allows distinguishment (as only the ratio is binding), it is highly
persuasive. Also, the lack of such obiters is highly suggestive – indicating that the supreme court
didn’t intend for the case to make a general rule (meaning precedent value can be discarded in
different but related circumstances).
Public Law
- Dealings between individuals and the state
- Constitutional law (law about law – how laws are made, applied, what happens if there is
conflict between them, eg if Bill of Rights 1990 had been infringed)
- Administrative Law (deals with government departments (judicial reviews) and some non
governmental organisations, but are established by statute and given certain powers (eg NZ
law society))
- Criminal Law (state prosecutes people who have allegedly violated the law, with a
presumption of innocence and a right to silence)
- Revenue Law (deals with income tax, gst, all government revenue gathering)
Private Law
- Dealings between individual legal persons
- Contract (agreements between individual legal personalities)
- Tort (tort of negligence – provides that people must take care not to do something that could
foreseeably harm a person in a proximate relationship to them)
- Land and Property (land covers all relationships you can have with land, and what you can
do with it, and restrictions. Property covers all personal property, tangible and intangible)
- Family (covers all types of relationships between people – very broad and tends to be less
formal)
- Restitution (catch-all) (gaining benefit where none is justified (unjustified enrichment) – law
aims to reverse the unfairness of this)
International Law

- Deals with relations between countries, with international treaties and structures – but can be
hard to enforce (eg sanctions, etc but there is no obligation to make it part of your domestic
law).
Equity
- Not technically an area of law – influences many areas of law, with the aim to achieve
justice between parties (came from limitations of common law in England, eg lack of types
of compensations – idea that it is unfair, so this provides fairness)
- Often applied to trusts
Sources of Law
- Legislation: Statute
- Precedent: Treating like cases alike, with higher courts in the hierarchy imposing binding
precedent on lower courts. This helps provide certainty and predictability to the law, and
some flexibility where cases have no yet been covered, though this can slow law’s
development, and the outcome can be unjust in certain cases.
- Custom: Recognised by common law if it meets 3 conditions (universal, reasonable, long
standing). We recognise English custom law to retain existing practices, whereas we
recognise tikanga to support it in of itself. Due to this, new tikanga custom can be created
from long standing principles, supporting it.
- Treaties: They need to be adopted in statute to be legally binding in of themselves (unusual),
and are used as a tool in interpreting legislation, as we assume parliament did not intend to
ignore them (eg ToW)
Court Hierarchy and Stare Decisis
As seen here, there is a hierarchy of courts, with courts near the bottom tending to just have
jurisdiction for first instance, will some later ones only have appellant jurisdiction.

This hierarchy is important, as each court is bound by the decisions of courts above them in this
diagram, but no court is bound by their own indistinguishable precedents. This last part is false
for some English courts, and is very important for final appellant courts.
In the past, the final NZ court used to be the Court of Appeal, and due to restrictions on appeals
to the Supreme Court, still is the final court in a number of cases. Therefore, if previous
precedent from the court being applied would appear to be inappropriate, it would be appropriate
to be able to ignore it, to allow the law to develop, and as the Supreme Court may or may not
have the chance to overrule/overturn the decision. If in the past, the court was divided, if there
are conflicting decisions with a higher overseas court (mainly UK, Australia, Canada, Scotland),
if society has changed, and naturally if the decision was overruled or overturned, it is more likely
for the Court of Appeal to contradict past judgments, though there are no precise rules, they
would not do so lightly. There is a long line of precedent that the Court of Appeal can depart
from their own decisions, and the small number of judges makes it unlikely they will depart due
to intellectual differences.
The act establishing the Supreme Court has the aim stated the aim was to create a NZ final
appellant court, with an understanding of NZ conditions, with a focus on the ToW, and partially
on recognition of our independence. As The Privy Council was based in the UK, with few cases
being appealed there as a result, another aim of establishing the Supreme Court was to increase
the access to justice.
Stare Decisis translates to “the decision stands”, meaning like cases ought to be treated alike.
Whenever a judgment is made, the legal reasoning, or ratio decidendi, for coming to that

outcome is the precedent, not the judgment itself, and we obtain precedent from reported past
cases (not all cases are reported though). They are able to be overruled (if on appeal) /overturned
(different case). This is binding upon lower courts, and persuasive for higher courts. If a
precedent is highly persuasive, it ​must​ consider it, though it can contradict it, reasoning is
required. Similar to the idea of precedent, Stare Decisis provides continuity, predictability and
uniformity of cases, especially if there are a lot of judges possible – but “bad” decisions can be
binding.
For cases decided in lower courts, a higher court can follow (apply the same reasoning as the
lower court), overrule (replace the reasoning of the lower court with their own), and distinguish
(if there are enough factual differences so the same reasoning though it exists and can be applied,
need not apply due to case differences). Distinguishing, if it does not curtail the extent to which
an earlier ratio applies is non-restrictive, and is restrictive if there are new material facts that
must be met for it to apply (ie it is now less general then it was originally). Distinguishing can be
on the legal proposition, saying that the proposition does not apply (which can narrow the
original legal proposition, or not), or you can just distinguish the facts (ie they reached a different
outcome by applying the same test due to the different facts). If a court is deciding whether to
overrule, they take the following factors into account (as they don’t overrule lightly): weight and
priority were given to different reasons (different judges had different reasons for deciding the
same thing); whether certainty in the law or correction of a perceived error is more important; if
legislation is likely (in that case they will likely allow parliament to legislate to resolve the
issue); and if the issue relates to fundamental principles (aka human rights).
Note – Per Incuriam can be an argument made not to follow an ordinarily binding precedent, as
this means the precedent did not take into account correct/all points of law, eg not looking at a
relevant statute; they had made a mistake.
Note – if precedent that exists is completely unworkable, it is able to be ignored, even if it is
binding on that basis.
Privy Council Decisions
The Privy Council was until 2003 our final court of appeal (it still is for some countries),
replaced for us by our Supreme Court. Judgments of the Privy Council before 2003 for NZ (it
isn’t clear if non-NZ cases are binding or persuasive only) still bind the Court of Appeal,
unless/until overturned by the Supreme Court, which has the power to do so. In the past, you
could only depart from decisions of the Privy Council if they were not justified given NZ’s
circumstances. However, precedent prior to 2003 when it was NZ’s final court of appeal are still
highly persuasive for the Supreme Court, and ​must ​be considered, and are only overturned when
really necessary. For this to occur, the Supreme Court must not only believe the Privy Council is
wrong, but the Privy Council’s decision can’t be appropriate for the proper development of NZ
law (very vague, granting judicial discretion) – they can’t just ignore old Privy Council decisions
if they disagree. Decisions post 2003 from other jurisdictions are still very persuasive, but not
binding on any court, like any Commonwealth country’s final appellant court.

Decisions from the House of Lords, despite being the highest English court, never have been
binding upon NZ courts, though they were (and remain) persuasive. This is true for any
commonwealth country’s final appellant court.
Logic and Law
Logic is useful to help determine if decisions are valid or consistent given certain premises are
true. Due to this assumption, logic can only be used to see if an argument is valid or consistent –
it doesn’t mean it is correct. Logic gives law its authority.
Deductive reasoning involves starting with a general premise (rule), which when we apply to a
minor premise (fact), we can form a conclusion about those minor premises in relation to the
major premise (result). This is what we use when we use statute as a source of law – we need to
determine if the statute applies to the specific facts in hand. We can argue against this by denying
one of the two premises, either the facts or the general rule. Another way is to attack the
reasoning used, and whether the logic chain is correct (ie if the relationship between the fact and
rule allows that conclusion to be reached). Due to how complex this is, normally this is achieved
by logical analogy, looking at the basic form of the argument rather than the argument itself.
Finally, we can try to clarify the meaning of words, such as interpreting the statute, to try to
prevent the rule from applying to the factual circumstances.
Analogical reasoning is used if we want to compare two things, and say that as they are similar
in one regard, they will be similar in other ways as well. This tends to be rarer then the inductive
reasoning, but it tends to be an argument for extending a ratio, or creating a ratio based on one
that already exists (hence the analogy), justifying why the specific new ratio was constructed.
We can attack analogical reasoning by attacking the analogy, either by denying that they are
similar enough to form said conclusions, or by using a counter-analogy to try to gain a different
conclusion.
Inductive reasoning looks at a number of recurring situations, ie cases with similar material facts,
and the consequence (outcome), in order to derive a general rule (ratio decidendi) that we can
apply to our current case to justify the outcome. We can argue against this by trying to apply a
different ratio decidendi to the case in question by saying our facts don’t fit with the principle
drawn from earlier cases. Alternatively, we can disagree with the ratio derived from those cases
and propose an alternative ratio. This tends to be disagreement on how narrow or broad the ratio
is. Also, you can look at different cases instead or in addition to those considered, which can
result in a different ratio being determined.
The ratio decidendi (reason for deciding) is the precedent of the case, made up of the legal
principle of the case, the reason why the judge is making the decision they are for the case. They
tend to be phrased, given certain conditions (material facts), then this outcome results – therefore
the analysis of the judge, decision, issues and material facts are all required. Obiter Dicta are
points made (usually as hypothetical) that are not needed to determine the outcome for the case
at hand (material facts) , and thus have no legal force. The context of judgments as well as
judgment themselves (even if the ratio is just a definition) needs to be discussed (eg the relevant

legislation being argued under) – definitions could be different, etc. Opinions can differ wildly
on what a ratio decidendi is, and the general statement of the legal principle is able to be broad or
narrow, stated in many ways, and will be as broad as the issue it was constructed from (note – if
applying a narrow ratio, you may have to justify extending it due to material fact similarities).
We need to find the legal issues (NOT questions of fact, such as which party breached the
contract) and the material facts first – the ratio is closely tied to the legal issue. “if you agree with
the other bloke you say it is part of the ratio; if you don’t, you say it is part of the obiter with the
implication that he is a congenital idiot.”
It matters if issues are ones of facts rather then ones of law, as legal precedents are only binding
for questions of law, and if we are dealing with facts only, the precedent is only persuasive (as
obviously no two factual cases are identical). Due to this, only include issues of law in issues and
ratio – you can justify the resolution to a factual issue for justifying why something is a material
fact, but it is not a proper issue.
Judgment anatomy
A good judgment must discuss the facts of the case to determine what laws apply and how, and
will review the arguments made on behalf of the parties, analyse the possible relevant law to the
situation, and will have a decision based on the previous discussion.
The year on a case is the year it was decided in, not the year when the case started
Technically we could try to distil a central legal issue for the issue and ratio without relating it
closely to the conditions given in the material facts – ie extending the ratio. Personally, I don’t
like this overmuch – I prefer to make a ratio based on what is actually being decided, but it can
be useful if we are looking at numerous cases at once and trying to distil an overall ratio. I still
think that this is more obiter then ratio, as per this idea: Technically, if a judge in the judgment
predicts how the ratio may extend to other cases that are hypotheticals, or where the ratio may no
longer apply, it is an obiter – very persuasive if it is from a high court, but an obiter nonetheless.
Case briefs
A case brief is separating a case into the relevant information that we need to know, so we can
use the brief for quick reference. We need the name and citation of the case, the court it was in,
the statement of facts, the procedural history, the issues presented/grounds for appeal, summary
of court’s analysis, decision, and the order made by the court. Also, do note if cur ad vult (time
taken to consider) is present. It tends to be mainly focused on the court’s analysis of the law in
the case in question (normally not factual analysis – sometimes if it is discretionary this does
happen though).
Note – issue on appeal is likely to be slightly different to that in the original case – likely to be if
the justice erred in law for _____ (original issue).
Equity Stuff

History of Equity – Chancery Court developed completely separately to the common law courts,
and the Chancery Court’s equity principles (individual circumstances, fairness, morality, ethics,
what ought to happen – very subjective and reliant on discretion, not certain) could (and did)
conflict with common law principles. Even after the common law and chancery courts were
amalgamated into one, there was still conflict between the two principles – they don’t always sit
well together and principles did not merge. Today, only if there is a situation where the law
doesn’t fully cover, and the judge is free to use discretion, then equitable principles can be
applied in of themselves.
Injunctions tend to be extremely specific due to the impact they have – they never should have
any element of vagueness in them.
JUSTIFY why you have selected specific material facts, issues, and ratio, particularly if you
have a material fact that is very broad and is found by weighting a bunch of facts. You can put
the justification immediately afterwards. Use your own words in describing everything when
possible, to show that you understand what is being referred to. You MUST show you
understand why the judge constructed those specific issues, ratio, and material facts.
When deciding whether to extend or distinguish a ratio make sure you give both sides to the
argument. Also, it is better to justify extension then to make an overly general first ratio where
you can’t justify the generality based on the case.
If there is an issue (eg if a contract exists), that when it is decided, means that no other issue
needs to be considered, then any consideration outside of this one issue is obiter. However, it
generally is useful and done, to help provide non-binding guidance to lower courts in slightly
different factual circumstances. The multiple issues only really arise if this doesn’t occur, and
any one of the issues need to be answered to get an outcome.
To get A+, bring in external law at the end if you have time, such as the idea that bylaws that are
not reasonable can be struck down, interpreting to be consistent with common law, etc. However,
only do a little bit of this, completely nail the analysis inside the case first.
IRAC model of writing answers: issue, relevant law, application of law, conclusion. Ratio is the
reasoning used to reach the conclusion in a judgment.
Taking a view that a judge can only decide on the facts before them, and the ratio is fairly narrow
until it is extended in subsequent cases with new material facts is a more conservative view – it is
more liberal to assume the ratio is broad, and affirmed and followed in subsequent cases (eg
extent of Donoghue and Stevenson ratio on that case alone, without development). However,
both are acceptable.
If we have a ratio that says, given specific conditions, we need to reach a specific legal outcome,
if we have a case that denies one of the conditions, and using the same reasoning thus reaches a
different outcome, this is considered as applying the negative of the ratio (not really

distinguishing as it is the same legal argument, not really applying as you reach a different
outcome).
When looking at when a case is applied, you can look for signs if it is unwilling (ie rule is stated,
and we must follow it – we’re leaving it to a higher court to qualify/change it – suggests that an
appeal may result).
If a principle has long history, it is likely to be applied and not qualified (as it is of good standing
and has persisted).
Look at how times have changed, eg new statute recognising a concept that you want to qualify a
general principle. This can provide evidence for potentially applying a case where the rule is
significant.
Try to break up material facts into several (ie not just one big one – try for 4-6).
What does a court hold in respect of a case means to look at the case in hand, and identify/justify
how the case is either applied (or if the part of the case applied is obiter, we call that applying the
case’s reasoning), or distinguished. Also, another valid focus of the ratio is making it broad
enough to apply to enough factual circumstances to be applicable in future. When we look at the
ratio as a legal test, with certain conditions needing to be met for certain outcomes to result, that
test needs to be able to be applied/addressed most of the time in future cases. Still – be careful –
judges do not always correctly identify the ratio resulting from the legal issues in their cases (ie
obiter), and the tests they phrase may not be that which ought to be taken from the case in hand.
The reasoning element to a ratio probably should be separated distinctly from the ratio, eg a
justification of how you distilled the ratio coupled with a policy statement of why the ratio is
appropriate would be two aspects of the reasoning.
Where decisions are based solely on a small factual issue (eg a statement waiving responsibility),
it doesn’t prevent the judge from construing a broad general principle, and then finding that
factual issue as an exception to the rule. This would mean that the general principle would be
considered to be part of the ratio, and not entirely obiter, whereas generally the principle would
be obiter until adopted in a later case as ratio. Setting a general rule/test, and then showing that
due to a specific factual circumstance, they don’t meet it allows us to make a ratio from the
general principle and the factual circumstance, not just the factual circumstance.
The reasonable person test is more of a public policy thing, as the court says what it would
reasonably expect in law for someone to do – very discretionary. This gives them the power to
effectively decide what they feel the characteristics of a reasonable person to be.
Appeals and crossappeals at the same time means that one party is appealing one part of the
judgment, another party is appealing another bit.

There are two main ways of viewing development of the law. The first is that we should create
big, general principles, and look at accepting or rejecting whether the rule should apply to a
specific case based on how it agrees with the general principle. In contrast, the other method is to
try to avoid vague rules that apply very widely very quickly – with incremental widening of a
principle to new factual circumstances supported instead to promote consistency and certainty in
the law. Whereas the first method is more reliant on judicial discretion in individual cases, the
second is more built up from decisions over time (but you have to have a body of decisions to
begin with). Here, the categories are based solely on those already accepted, and slowly widened.
Applied differs slightly to follow, with applying a case occurring where the case’s ratio is
applied to a moderately or significantly different factual situation compared to the original case,
while following is where the current factual circumstances are very very similar to the original
case.
Mens Rea – Criminal intent – the idea that an action was not spontaneous, and the offender had a
state of mind that did not make them culpable. Traditionally, this was limited to intention, but
now this has been extended to have more of a focus on the conduct of the person, the
circumstances of the action, and the results of the action. However, although this is a necessary
element for criminal cases (except where the offence is strict liability, where ignorance is no
excuse), in civil cases, mens rea is not normally required.
Actus Reus – The voluntary action or lack of action that imposes criminal liability upon the
individual, with a clear chain of causation between what the individual has done and the criminal
action or lack of action. In short, the person must be responsible for and have committed the
criminal action. However, this does not need to be satisfied for absolute liability crimes (eg
mistakes of fact), such as in ​R v Larsonneur​. However, unless this is very clearly and
indisputably the intent of parliament, the courts would be unlikely to assume parliament intended
to ignore the principle of actus reus. Actus reus is an even more fundamental common law
principle then mens rea, and needs to be established before mens rea can even be considered
(Kilbride v Lake).
Novus Actus Interveniens is linked to the principle of actus reus, with the idea that the chain of
causation between the action or lack of action of an individual and the criminal action or lack of
action is broken, and hence the individual is not directly responsible for the criminal action or
inaction. For instance, if a person dies after an assault on them, and they die due to an unrelated
heart condition (possibly partially contributed to by the assault a little bit), it is likely to fall in
this category.
Corrective Justice – this is the idea that when one person is suffers loss due to the action or
inaction of another, it is the role of the law to compensate the injured party to the state they were
in before. Although in theory, this compensation restores the injured party to their state prior to
the loss, in reality, if the losses aren’t solely economic, it can be hard to correct for the loss.

Distributive Justice – the expectation of fair distribution of burdens and loss among society as
decided by the morals of society, given the circumstances in question. The aim is equality as
perceived by society, and thus not strictly always indemnifying all of the losses necessarily.
If a question is ambiguous in the test/exam, note what the ambiguity is and how you are
interpreting it at the beginning of that question.
When we have a legal test in one case, and we apply it to reach a different conclusion in a
different case, we say principle/legal test applied, but it is distinguished on the material facts
being different to the case at hand.
When applying to a new factual situation, look at the presumed material facts in the original case
that allowed the ratio – are any of them denied in the new case? If so, that may mean that the
legal test might not be met, and hence a different outcome might result. However – don’t get too
carried away with hypotheticals!
Look at the legal tests/material facts – is there anything in the new fact situation that could
change anything that is relevant? That is external law – its all hypothetical, but that is the A+ it.
After all, the process we need to go through it to find the law, state the law, apply the law, reach
a conclusion for the new fact situation. We can’t always assume the law will be applied the same
way in different facts.
Note – adopted is when a precedent from overseas jurisdictions is taken into NZ law
Can do procedural history in material facts
Obiter that later becomes ratio is still obiter later, but you would want to say it forms the basis
for the new ratio. Remember that the old judgment doesn’t change.
Can call refusing to follow old overseas decisions as distinguishing (however you would need to
elaborate, saying that now there is a strong precedent against that old decision being applied in
the legal system). You’re distinguishing on the facts, the age of the case etc.
INCLUDING IRRELEVANT INFORMATION WILL LOWER YOUR MARK!
Legal English Stuff for writing
Legal language is characterised by definitional language, trying to find precisely what is being
asked; explanatory language is similar to definitional, explaining what is covered; abstract
language to be general and cover a lot of situations; complex/detailed/technical language due to
the very precise and huge range of complex things the law needs to cover; flexible language, the
law can’t be changed every time a hard case comes along, so need flexibility for the law to
develop.
Rules, exceptions, and tests are all bundled up in the legal language.

5 commandments of legal writing – write plainly; avoid long sentences; use active voice instead
of passive; avoid archaic words; be precise.
Never just one answer exists for every question of interpretation, and there will always be
exceptions to every rule
Statutory interpretation
If a statute is too broad, it can be hard to tell whether that statute ought to apply when we look at
a very specific factual circumstance, meaning that interpretation is required. Similarly, if a
statute is too specific, we run into problems when we have a case that falls outside the explicit
boundaries, as we have to try to see if it fits the general principle. Therefore, interpretation is
required there too. Generally, statutes tend to need to strike a balance between being specific and
being general. Courts are able to fill in the gaps if the statute is very broad, and it is unclear
precisely where the lines are to be drawn.
To interpret statute, the first thing we need to do is to find the statutory meaning given to the
word/phrase in the statute in the interpretation section, if there is one. Also, we have a
presumption that parliament did not intend to breach international treaties and rights and interests
of individuals and the ToW, so if there is any ambiguity, provisions preserving these are adopted.
For instance, liberty restricting acts will be read with the benefit of the doubt in favour of the
defendant.
To save time, s means section and ss means sections, subsection is subs and subsections is subss
(ie for reference in exam).
The statutory interpretation act results in legislation being interpreted by the text and in light of
its purpose. In order to find the interpretation resulting from the textual and purposeful approach,
we have a number of methods that we can use to find these interpretations. First, we look at the
textual approach. We need to read the statute carefully, looking at punctuation, problematic word
meanings, and the definition meaning (ie using a dictionary to find the recognised meaning of the
word), looking at how words are expressed. In short, we are using common sense to try to find
the literal meaning of the statute, which we would address first in an interpretation answer.
Traditionally, this sort of literal approach was the main type of statute interpretation, with the
literal rule (looking solely at literal meaning of the statute), golden rule (adhering to the ordinary
meaning of words – issue if we meet a word not meant to be interpreted in its normal way).
However, another (albeit rare) traditional rule was the mischief rule (trying to find the mischief
legislation was aimed to correct, and interpreting it to fix the mischief). However, even with this
purposeful approach, which was very narrow and focused compared to the purposeful approach
we currently use, only looking at problems in the common law. Therefore, traditional
interpretation focused on the literal approach, trying to limit statute application as far as possible.
More recently, we have a greater emphasis of parliament’s intent, trying to interpret that statute
in a way that best expresses that intent so statutes work as parliament intended. However,

although this normally means that we examine the range of possible meanings in literal
interpretations of the statute, and choose that which is most closely aligned with parliament’s
intent, in extreme cases, a meaning outside those encompassed in literal meanings can be used.
For example, the Provocation defence had an “and” read as an “or”, essentially altering the literal
meanings, as it was the only way to avoid absurdity and express parliamentary purpose. This is
VERY rare however. Even taxation and criminal statutes are still read purposefully whereas in
the past, they were read far more narrowly (though the common law presumptions eg protecting
liberty still exist). However, we do still assume parliament intends words to mean what they say
most of the time – hence a reputable dictionary (Oxford Dictionary) is used to find the ordinary
meaning of the words, except where such an interpretation would be absurd, or at odds with
parliament’s intention.
Grammar is also important to derive meaning. Breaking up sentences into nouns, verbs, adverbs,
adjectives, etc can help to show us what the meaning is for very long sentences, trying to see
which bit relates to which. Again, commas indicate sub-sentences and we can figure out what
parts of the sentence refer to what subjects.
To find parliamentary purpose, we can look at intrinsic and extrinsic aids and presumptions, but
intrinsic aids tend to be more important. For instance, the long title of a statute can spell out or
hint at the parliamentary purpose to the act.
The order in which we use tools to try to derive the meaning of a statute is a literal approach
first, being pedantic, text not spirit, and then do the purposeful approach, and come to a
conclusion about what interpretation is more likely. This helps us cover all of the bases.
Canons of common law interpretation of statute – guides only, based on
common sense
Noscitur a Sociis – words are coloured by their association with other words, instead of
considering them individually. Descriptive words like adjectives and adverbs surrounding the
word in question gives us an idea of what is being discussed. We can also look at the headings,
etc to derive meaning. Normally, this is useful when an ambiguous word (NOT a catchall) is
used in a list, and its meaning needs to be derived. Eg if the word “indecent behaviour” in the
context of riotous or violent in a list, creating a disturbance would likely be the behaviour meant
by indecent.
Ejusdem Generis – if you have a general catchall at the end of a list, you use the terms in the list
to help define the extent of the catchall. As Parliament normally intends to cover a wide number
of circumstances, they tend to use catchalls, but we need to determine precisely what they do and
don’t encompass.
There is a lot of overlap between Ejusdem Generis and Noscitur a Sociis – if we have a
complicated case where we are only concerned with one words, Noscitur a Sociis is used, but
Ejusdem Generis tends to be used more normally as you get the catchalls.

Expressio Unius (specific example excludes general) – if there is a list of specific words only or
just a specific word used, the statute will only apply to those specific words, not more broadly
(narrow sort of idea – trying to help protect liberty, etc). Courts do not apply this rule if it leads
to injustice however! Normally, this rule will be used, as if Parliament uses a specific word
(excluding lists for now), they don’t want application beyond that item.
Reddendo singula singulis (apply parts respectively) – basic grammar – if we refer to items in a
certain order in a sentence, then reference to them respectively will be in the same order – when
alternatives are given. If 1 or 2, then 3 or 4. 1 refers to 3 and 2 refers to 4. If a conjunctive and is
used, there is no need for this rule – both 3 and 4 apply to each of 1 and 2
Generalia specialibus (specific prevails over general) A more specific phrase will prevail over a
general phrase, for inside the same act or between different acts. The idea is that we try to avoid
implied repeal, so the specific case is an exception to the general rule. The specific
statute/section is earlier and the general statute is later – as if it is the other way around, the
specific statute is an obvious exception
Application Hints of Interpretation Canons
Make sure you quote the cannon used when you use it! Also, we could say that we are given
insufficient information regarding parliamentary purpose to try to find the parliamentary intent to
help guide interpretation, and explain how that would impact meaning. Also, if there are multiple
interpretations possible, it is good to weight up which ones you can come to, why, and what
overall meaning is most likely.
Presumptions of common law AGAINST (here due to the nature of the law – more recently
justified by the idea that it is unlikely these will be the intent of parliament)
- altering the common law (so, if we are given a statute and common law judgment in the
exam, we try to figure out how they are impacted by one another, and try to read them
together if possible, so they both have effect – NOTE – the order that the judgment and
statute occur in can be suggestive for intent. We assume if parliament wants to destroy the
common law, they will say so.)
- wide construction of penal statutes (protecting people’s liberty)
- infringement of international law/ToW (well, why did they sign them if they didn’t want to
uphold them?)
- deprivation of property (historical basis – high regard for property)
- exclusion of jurisdiction (courts do NOT like having their jurisdiction removed, so they will
try not to let that happen)
- retrospective effect of statute (highly unfair, as people would not have known at the time –
eg if law changes in the interim before the offence and court hearing, you are charged with
the old law)
- implicit repeal of earlier statutes by later ones (convenience – parliament doesn’t try to tear
up the book of statutes all of the time, and they ought to say they are repealing if they are
doing that)

- binding the crown (very rare parliament wants to do this)
- interference with personal liberty (similar to the penal statute one)
- legislation applying before NZ (issue is that there are some crimes that occur overseas and
they come here, but in other countries you expect to be bound by their law, not by a country
you aren’t in)
- Mens Rea – the idea that a guilty mind (criminal intent) is required for criminal statute
ONLY is presumed – BUT there are some statutes (strict liability) which use the word
“deemed” that this doesn’t apply to. This is an A+ thing.
Extrinsic Aid – eg case law can deal with the problematic word or phrase
Can make assumptions where information given is insufficient – eg if a ground must be met for
part of a statute to apply, and we don’t know if it does, and it is obviously not what we are meant
to talk mostly about, we can say how that lack of information can impact the case for/against.
Different aspects you can consider for statutory interpretation
You can consider if there are other remedies open, such as under different statutes, etc if there is
ambiguity in the ambit of the statute for how far it extends (ie if the topic is already covered,
parliament may not have intended for it to be covered again). However, do explain why there is
ambiguity in the statute’s extension to the different factual circumstances.
In extreme circumstances that are unlikely to have been predicted by parliament (eg police
officers chasing criminals), we can probably assume parliament did not intend to regulate such
extreme circumstances in absurd ways, and hence go for common sense for if the statute ought to
extend that far.
S(6) interpretation act 1999 “An enactment applies to circumstances as they arise” – if we still
have old statutes, we use them in the new circumstances that parliament could not have foreseen,
trying to give effect to the statute in the new circumstances as parliament intended (eg old statute
applying to old means of transport applying to new means)
You can end up with 2 contradictory purposes for parliamentary intent for a particular
circumstance – in that case you need to balance between the two purposes, to find which course
of action is more persuasive.
You can mention policy considerations of statutory interpretation in a certain way if you have
time. This involves potential impacts in wider circumstances of interpreting legislation in a
particular way, and how the statute in question fits into the wider legislative framework.
When we have a verb applied to a list of nouns in a statute, you would expect that regardless of
the item in the list, the verb ought to apply (or else why have the item in the list – Noscitter a
Sociis). Therefore, if the verb would ordinarily have a meaning that is narrow enough to exclude
some specifically mentioned terms in the list, it would be likely parliament had intended a

oader meaning to be read (assuming that it is obvious exceptions were not meant to be read
into the list).
You are also able to consider how an interpretation of an act could apply to wider circumstances,
and if an absurdity occurs, that meaning should not be adopted, as it would lead to absurdity in
other, obvious cases – unlikely to be intended by parliament. For instance, if allowing feral cats
to be classed as pests which bounties are given for their deaths, people could kill household cats
as they are impossible to distinguish from ferals, which is unlikely to have been intended by
parliament. This is normally done by courts, particularly the higher ones. Likewise, looking at
parliamentary intent, we can also see if parliament had intended the situation at hand to be inside
or outside the ambit of the statute as a whole, or a specific section.
A systematic approach we can take to interpretation is to begin with identifying any
problematic/ambiguous words/phrases that allow different interpretations for the factual
circumstance. Now, we need to actually find what the most appropriate interpretation out of
those available is. Start with textual analysis – definitions, all words in section, grammar and
canons of interpretation – and the intent of parliament. Move onto considering relevance of
presumptions of law – if any are rebutted. Finally, look at extrinsic aids, such as case law,
Hansard, etc to try to solve any remaining issues.
Judicial review is in administrative law, used when you wish to contest a decision made by a
government department, etc. The test is if no reasonable person would have made the decision in
question – trying to discourage judicial review, and there is a wide range of approaches to
decisions made by government departments.
Issues with dictionary definitions could arise if the dictionary definition is from another country,
and there is a different localised meaning. Therefore, it might not be applicable. Similarly,
differing expert opinion for definitions of words can show that there is no one definite meaning,
and hence we need to look to parliamentary intent, as we can not assume they had intended the
obvious meaning.
We can also for intrinsic aids to meaning look at how the statute deals with related items when
they are mentioned in different parts, to try to see what was intended. This isn’t really finding
parliamentary intent for the section in question, but ideas such as if they have dealt with it in one
place, why deal with it again in another. Another thing is the role of exceptions at different
points – suggesting distinctions/meanings. We need to explain any ambiguities very clearly +
assumptions
Sometimes, although a statute states its primary purposes in the interpretation section, there are
secondary purposes which are not mentioned. Although these need to be proven to be purposes
of the statute, these secondary meanings are able to be used for the purposeful approach (also
taking primary aims into account) so interpretations consistent with the legislative intent can be
used for the circumstances at hand. For instance, attempting to control export/import products is
often not stated as an aim of a statute, but it can be a secondary aim.

If a word/phrase is used in two places in a statute, with no obvious intent of the drafter (eg
different stated definitions) that they mean different things in different parts of the statute), then
it is highly unlikely that they were intended to mean different things in the different places. This
can be useful if the word is used in slightly different contexts, where one use has some ambiguity
in how far it extends. For instance, if injury to a “person” is referred to in one place, and loss of
property of a “person” is referred to elsewhere, an unborn child would be unlikely to fit into
either reference. This is a variant of Noscitur a soccis. However, it is not always true, but you
need a very strong argument to prove the assumption false. This can be particularly useful for
looking at generic words like “any” in problematic phrases, to see if it has restricted meaning
elsewhere (if so, the same restricted meaning will likely apply).
If there is a policy/moral element to interpretation of a statute, and especially if there are
potential consequences for future use of the statute, the courts are able to look to overseas
jurisdictions for indications of how they have interpreted such terms, their arguments for doing
so, and the impacts of doing so. Although this is not binding, it can provide a useful indication.
If for statutory interpretation, we are given a case as a resource, or we need to phrase our answer
in a judgment form, there is a very big difference in the content and layout of appeal and prima
facie cases. Appeal cases tent to restrict themselves to looking at the appealed elements of the
original case, and how they were treated, and tend not to be factual based (and they are legal
issue based normally). In contrast, prima facie cases tend to have more of a case overview. In
both of these resources being provided, they can give us examples of how statutes have been
applied on law, giving us interpretations, and guides of how the statute applies to specific facts.
This is especially true if the case law is binding. Cases can be used under multiple points – eg
distinguishing them for one part of the statute applied to the facts under contention, and applying
them as another (especially if they are being used as examples of how a test is used).
Expressio Unius can mean that if certain things are covered in one part of the statute specifically,
then they are not intended to be covered elsewhere, so where reference elsewhere may refer to
things covered earlier, we can assume those are excluded.
You can use the same canon for the same phrase in different ways in the same argument – eg
Ejusdem Generis if there are two genus’s available, highlighting that there is discretion available.
If a person is being charged under one provision of an act, and we feel another would be more
suitable, we can recommend them being charged under a different provision, BUT we still need
to analyse the section we are told to do.
Supreme Court in Brooker v Police said that criminal law ought to be certain – the idea that it
should not change fast, so people know what the law is. This can be cited, to make it clear such
interpretation is preferable. Similarly, the same case used the role of the New Zealand Bill of
Rights Act 1990 – we try to interpret legislation to be consistent with that where it is at all
possible. However, before citing it, ensure that the case/statute was present after 1990, as before
then, the rights were supported by the courts, with legislation read consistently where possible,
but not in such a formalised manner.

Discuss the general statutory interpretation canon and what it is very briefly before you use it, so
the examiner knows that you understand what the canon is used for.
When a statute lists exceptions to a general rule, we are able to use Expressio Unius to say the
exceptions are specific, and ought to be restricted to their specific meaning, as only those
specific exceptions were intended to not be covered by the general rule. However, if doing so is
obviously absurd and contradicts parliamentary intent, that can provide a strong
counterargument.
Mention the obvious stuff! If it is really obvious only one part of a statute applies to the facts,
explain why the other parts of the statute do not apply to the facts. Similarly, we can state very
obvious grammar where important adjectives are used, such as “exclusive”, and state which noun
it refers to.
Case Law Stuff
You definitely can’t use the general issue in the case as your legal issue (eg to grant resource
consent or not). Instead, your legal issues must be constructed so these are the questions that
must be addressed to form a conclusion about the overall general issue.
To get away from saying per incuriam, “not follow” could be used as a substitute, with an
explanation that they should be bound, and expressed in the judgment with logical reasoning
why the original one was not sufficient. However, if it is clear that the judge thinks that the
judgment was wrong in law, you need to call it per incuriam.
Even if a judgment does not specifically mention that they are using a canon of interpretation, we
can mention them if we think they are using them – eg looking at the context of the words,
Noscitur a sociis.
Redendo can be used loosely if we are looking at the relationship between two aspects of a
statute. However, as Reddendo is a grammatical tool, it needs to be restricted to the grammatical
ordering/phrases used in the statute. If we are looking at the wider context of a statute, Noscitur a
Sociis is more appropriate, as we are interpreting words in relation to their context.
State the facts we need to answer the question properly – what we don’t have, for the purpose of
assumptions etc.
You can raise theoretical options, such as appealing decisions made in the facts, but don’t spend
too long considering them if they are not directly on point.
Judicial consistency is important to promote – a good reason for adopting a persuasive (but non
binding) argument.

If we need to consider an interim injunction, we can attach qualifications to them (eg in place
until recovery of a person occurs).
If common law principles are balanced when interpreting a statute in a case, we need to take this
into account for the ratio. We could say a ratio is “given a statute on ____ topic, it must be
interpreted with regard to ___ common law provision”.
Be very careful for when you are applying the case to the new fact situation and there are
multiple ratios, as you will need to address all of the ratios application/distinguishing, + any
obiter and extra stuff.
EXAM info
2 questions – 10 minutes reading, both 50 marks and 1 hour
The two questions will be answered in separate answer books, as they will have different
markers – and we MUST write the stream on each.
It sounds like we will be given definitions (technical/dictionary) for statutory interpretation
where necessary.
What will we get in the questions?
Both will have some elements of case analysis and statutory interpretation (both combine case
analysis and statutory interpretation – do it in different ways).
Q1 looks like test except case is discussing interpretation of statute – will have application of the
case to a new fact scenario and analysis of the case at hand.
Q2 will be an exercise in statutory interpretation and applying it to a new fact situation – will be
given some relevant case law. Therefore when we come to apply the statutory provisions to the
new fact situation, we will also apply case law that helped interpret problematic words and
phrases.
If in Q2, we are asked to write a judgment, the reason is to organise your answer, sorting case
analysis, applying cases, etc under the different points in contention.
To get full marks, you need to be BROAD – MUST mention every possible point, as if you miss
any, you lose half a grade at least. Although depth is not aimed for in law 131, points do need to
be developed sufficiently for high grades. However, if you bring in irrelevant material, you lose
about the same amount as if you don’t cover everything. You also need sufficient case specific
details – do not be too general (yet don’t be too specific).
Structure and organisation, pinpointing issues exactly will help marginally lift the grade.

Ensure that the legal issues are found in the application of the law paragraphs of the relevant
judgment.
If we are only given a few marks for treatment of a case, and it is very clear it is distinguished,
“distinguished” may be a sufficient full mark answer. HOWEVER – this is based on the mark
allocation!
If a question uses a plural, like approaches, methods, etc – you MUST use more than one to
possibly get full marks.