Topic 9 – Traditional Common Law Approaches

Traditional Common Law Approaches

Where more than one interpretation is open, it may be appropriate to select the one that is consonant with the common law and/or equity.

The common law approaches are:

• textualism –the literal rule
• contextualism –the golden rule
• purposivism –the mischief rule

Latin maxims may be used but care should be taken to ensure they do not override a contextual and purposive approach.

Noscitur a sociis

The meaning of a word of phrase can be determined by surrounding words.

Based on the general philosophy of reading a statute as a whole, this is essentially the modern contextual approach: that the meaning of a word or expression can be established through a consideration of its context.

Ejusdem gerenis

The meaning of a general phrase is limited by proceeding specific words.

Listing a number of specifics followed by a general phrase is common in legislation..

Identify the commality between the specific words in the phrase (known as the ‘class’ or ‘genus’), and then decide whether the word you have comes within the identified class.

CAUTION: Situations where there is only one word before a general phrase may be reasoned in the negative, in the sense that the general phrase must cover something different from the specific word.

See DPP v Williams (1998) 104 A Crim R 65 for an example of one specific word in front of a general word.

Expressio unius est exclusio alterius

The express mention of one thing is to the exclusion of another.

See FAI Properties Pty Limited v John & Evangelia Apostopoulos [2002] ACTSC 58 which considered the Tenancy Tribunal Act 1994 (ACT) which conferred the right to appeal on questions of law. Using the maxim the right to appeal excludes questions of fact (or questions of fact and law).

Expressum facit cessare tacitum

If a procedure has been designated that procedure should be followed to the exclusion of other procedures.

CAUTION: the question for the courts is not whether the maxim applies but whether Parliament intended the maxim to apply.

Generalia specialibus non derogant

General things do not derogate from special things.

If two provisions are in conflict, the more specific one will prevail of the more general one.

CAUTION: If the two provisions deal with different topics when the maxim can not be applied. See Sue v Hill (1999) 199 CLR 462, where Gaudron J said at {128} “{the maxim] applies only when the general provision would otherwise encompass the matter dealt with by the special or more limited provision”.