The Ratio Decidendi
The ratio decidendi of a judgment is the judge’s reasons for arriving at a particular conclusion based on the facts of the case. Under the hierarchal structure of the courts and the doctrine of precedents, lower courts are obliged to follow the ratio decidendi of the higher court in their respective hierarchies. By contrast, the obiter dictum, which is a statement made by the judge in a “by the way” manner is not binding on the lower courts. Giller v Procopets provides useful guidance on the operation of the doctrine of the ratio decidendi in Australia’s legal system.
In this case, the court allowed damages for claims made by a de facto wife under the law of tort and equity in property. Two heads of damages were founded on the torts of a breach of confidence and assault. The third head was founded on the equitable principle of constructive trust in a property adjustment claim. The judge at first instance dismissed the appellant’s claim for an interest in the realty under Part IX of the Property Law Act 1958 and the claim in respect of the tort of breach of confidence.
The appellant appealed the rulings in this regard and further argued that the damages for the tort of assault were inadequate. The real property claim fell under Section 285 of the 1958 Act. The judge at first instance ruled against a property adjustment on the grounds that the contributions made following the separation could not be allowed under the Act of 1958 and the contributions made during the relationship were statute-barred. In allowing the property adjustment which would take into account the contributions to the welfare of the family after the separation and thereby circumventing the two year’s limitation, Neave J.
looked to Australia’s uniform law under the Family Law Act 1975. The Act refers to married couples and was construed by Australia’s full court to extend to contributions toward the family’s welfare following the couple’s separation. His Lordship reasoned that since the wording of Section 79 of the 1975 Act was virtually identical to Section 285 of the Law of Property Act 1958 the latter would be interpreted to include contributions to the family’s welfare following separation in the same way.
This reasoning by application of a vastly similar laws interpreted by another high court represents the ratio decidendi of the court’s ruling with respect to a property adjustment under Section 285 of the Property Law Act 1958. Aside from the property adjustment order in the Victorian court, an order was made for damages for breach of confidence despite the lower court’s finding that Section 38 of the Supreme Court Act 1986 did not permit damages unless an application for an injunction was made, “mere distress” was not recoverable and proof for psychiatric injury was necessary.
The ratio decidendi was that the remedies for damages and an injunction must be viewed as an equitable remedy. Section 38 of the 1986 Act is interpreted so that a judge can award damages either together with or in lieu of injunctive relief. Relying on judgments of the House of Lords it was held that damages for distress was compensable. Moreover, insisting on proof of psychiatric injury was tantamount to denying a claimant a remedy for breach of confidentiality. Under, Section 38 of the Supreme Court Act 1986, a claimant does not have to prove psychiatric harm or the likelihood of psychiatric harm in order to obtain injunctive relief.
The Victorian Court of Appeal basically invoked a “social proposition” as a basis for formulating and altering pre-existing legal rule through the auspices of the principles of the ratio decidendi. Social propositions are used to explain the reason for legal rules. Essentially, this was the approach taken by the Victorian Court of Appeal with respect to the ratio decidendi in the Giller case. The court explained the reason for the legal rules and applied it accordingly. Part IX of the Law of Property Act 1958
In justifying the court’s reliance on decisions of the Court of Appeal of New South Wales with respect to the property adjustment under part IX of the Law of Property Act 1958, the Victorian Court of appeal looked at the comparable purpose of the 1958 Act and the New South Wales legislation. The purpose of both pieces of legislation, according to Neave J. is to ensure that non-financial contributions to family property do not go unrewarded or unaccounted for following the disintegration of a de facto relationship.
In further justification of court’s reliance on precedents from the New South Wales’ Court of Appeal, Neave explained that Section 20 of the Property (Relationships) Act 1984(NSW) is virtually “identical to that” of Section 285 of the Law of Property Act 1958 (Vic). In this regard the New South Wales Court of Appeal construed Section 20 as intending to make a property adjustment by reference to both contributions made during the “cohabitation and after its cessation. ” Having made this connection Neave J cited the New South Wales Court of Appeal in Foster v Evans Sc (NSW), No.
4439/95 (Unreported, 31 October, 1997). In Foster v Evans, it was held that there is nothing in the wording of Section 20 of the New South Wales legislation that limits the relevant period for which contributions to the family welfare may be taken account of for the purpose of property adjustments. The New South Wales Court explained that even after a de facto relationship ends, one partner continues to care for another and certainly, the legislators could not have intended for contributions in those circumstances to be ignored.
The Giller Court of Appeal went on to cite a number of decisions of the Court of Appeal of New South Wales in support of the rationale that contributions toward the family’s welfare both before and after the de facto relationship ought to be taken into account. The case of Jones v Grech [2001] 27 Fam LR 711 concerned the interpretation of Section 20 of the New South Wales legislation. In that case, the court ruled that Section 20 clearly does not exclude considering contributions made toward the welfare of the family either before or after the commencement of a de facto relationship.
Considering that Section 20 is identical to Section 285 of the Law of Property Act 1958, the court in Jones v Grech with uniform authority is taken to be binding on all lower courts and its ratio decidendi would bind lower courts. In this regard, Neave J pointed out, that the lower court erred in refusing to apply this ratio in Giller’s trial at first instance. Neave J. explained that decisions by an “intermediate” court of appeal are binding on lower courts with respect to “uniform legislation” and cannot be ignored unless “clearly wrong.
” This approach taken with respect to the binding nature of decisions by an intermediate appellate court on a lower court speaks to the significance of the doctrine of precedent in the hierarchy of the Australian legal system. Although there may have been a relaxation of the significance of judicial precedents in common law country it remains “at the heart of the Australian legal system” It continues to drive the way “Australian lawyers” engage in day to day practice. Significance of the Ratio Decidendi for Future Cases
The ratio decidendi of the Giller case is significant for its construction of statutory and common law principles with respect to the equitable interests in realty of de facto partners and for the measure of damages in respect of privacy rights in the current information age. The lower court’s approach was primarily vested in a strict approach to interpretation of the current laws in both areas of law and by taking this approach, the result was somewhat absurd. For instance, the judge at first instance took the position that Section 285 of the Law of Property Act 1958 did not allow for property adjustment in post-de facto relationships.
The Court of Appeal, by cross-referencing comparable legislation in another jurisdiction, took a purposive approach to the interpretation of Section 285 of the Law of Property Act 1958. The purposive approach involves looking beyond the plain meaning of the statutory provision and looking to the purpose and intent of the lawmakers. The general tone of the judgment in the Giller case expressed a collective view that the purpose of Section 285 of the Law of Property Act 1958 was to ensure a just and equitable property adjustment of realty among partners in a de facto marriage.
In assessing what is just and equitable, the court reasoned that contributions toward the welfare of the family after one partner left the shared residence was a matter to be taken into account. The ratio decidendi also set forth the principle that just because one partner breaks from cohabitation does not automatically mean the de facto relationship comes to an end. Therefore, future courts will be minded to look at parental contributions post-cohabitation if the evidence suggests the de facto relationship continued so that the absent partner continued to contribute to the family’s welfare.
The Giller court also reasoned that domestic violence can play a role in the value of the respective partners’ contribution toward the family’s welfare for the purposes of a property adjustment under Part IX of the Law of Property Act 1958. While domestic violence will not be used to devalue the contributions made by the offending partner, it will be used to take account the likely arduous impact on the victim’s ability to contribute.
This aspect of the ratio decidendi of the Giller case is important for assisting future courts in determining what factors to take into account when considering the non-financial contributions of a partner in a de facto relationship and how to assess those factors. The rationale in the Giller case was to avoid an unjust and absurd result with respect to interpreting Section 285 of the Law of Property Act 1958. This in essence is the general purpose of the law of equity. Likewise, the ratio decidendi with respect to a breach of confidence is equally significant for future trial judges.
The tone of the trial judge in Giller suggest a predisposition on the part of Australian judges to limit damages for breach of confidence based on Section 38 of the Supreme Court Act 1986 and to proof of psychiatric injury. By debunking these approaches and maintaining that damages could be obtained in the absence of an and application for an injunction, and that proof of psychiatric injury was not necessary for recovery of damages, the Giller court effectively widened the concept of the tort of protection of privacy in Australia.
As it is, the protection of privacy in Australian has remained in a state of uncertainty for years. The ratio decidendi in Giller reasons that Section 38 does not limit damages so that an injunction must be sort, otherwise, persons suffering injury as a result of breach of confidence would have no recourse prior to obtaining injunctive relief. The court also reasoned that since proof of psychiatric injury was not necessary for obtaining injunctive relief, it therefore followed that the same line of thinking would apply to an application for damages.
By applying this rationale, future courts relying on the ratio decidendi of Giller will be more disposed to permit a wider range of damages for breach of confidence thereby fortifying the protection of privacy in Australia. Neave J v Ashley J’s Approach to the Interpretation of Part IX of the Law of Property Act 1958 The approaches taken by Neave J and Ashley J in the Giller case are distinguished by Neave J’s purposive approach and Ashley J’s somewhat textual approach to Part IX of the Law of Property Act 1958.
A textual approach is characterized by a judge’s reliance on the “nearly conclusive primacy” of the “statutory text. ” In this regard Ashley J appears to prefer the traditional judicial method of property adjustment between de facto partners. To this end, greater weight was placed on the fact that the respondent acquired the property prior to his involvement with the appellant and the relationship was relatively short. These factors, at least as far as Ashley J was concerned offset any non-financial contributions that the appellant made toward the welfare of the family.
Ultimately, Ashley J did not think that given the relatively short run of the relationship, and the appellant’s contribution toward the family welfare post-cohabitation justified making a property adjustment in favour of the appellant. Moreover, the right to a property adjustment with respect to the post-cohabitation period was an exception rather than the rule. The learned judge took the view, that both the respondent and the appellant provided equal contributions toward the welfare of the family and that the respondent made far greater financial contributions toward the property in question during the cohabitation period.
Additionally, Ashley J took the position that assaults could not generally give rise to a claim under Section 285 of the Law of Property Act 1958 and should only be permitted in sparse circumstances. In this regard Ashley J did not agree that the domestic violence complained of were such that they made the appellant’s contribution to the family’s welfare more burdensome. Over all, Ashley J’s approach can be viewed as primarily one of staunch commitment to judicial precedent and rather textual in nature.
The judge was minded to follow the statute and previous interpretations in a very strict sense and was unwilling to interpret these established laws in the context of current social and political developments. This approach is tantamount to strict adherence to the rule of law, an approach which “operates as a bar to untrammeled discretionary power. ” Neave J, on the other hand, not only took a purposive approach to the interpretation and application of Part IX of the Property Law Act 1958, but displayed a greater propensity to embrace the concept of judicial activism.
In this regard, Neave J employed judicial activism to modify existing tenets of both common law and judicial interpretation of statutes. Judicial activism refers to a decision by a judge which effectively alters existing law or refuses to apply current law. Although, Neave J. did not outright modify the existing law with respect to Part IX of the Law of Property Act 1958, she used her judicial discretion to extend the circumstances in which non-financial contributions toward a family’s welfare could be considered in property adjustment after the break down of a de facto relationship.
In other words, Neave J took a rather broad approach to the Law of Property Act 1958, taking into account the overall consequences for societal reforms, a key characteristic of judicial activism. This approach, as history dictates is necessary for the development of common law. Ashley J, on the other hand was more inclined to exercise judicial restraint, a key characteristic of judges predisposed to adhere to the practice of legalism. General Principles Applied by the Court Under Part IX of the Property Law Act 1958
In making a property adjustment under Part IX of the Property Law Act 1958, the court conducts an investigation and “balancing of the contributions” each of the partners made to “the acquisition, conservation or improvement” of the relevant property. Contributions may be either financial or non-financial and can be toward both the property and the “other party to the relationship or to the welfare of the broader family. ” The property adjustment process within the ambit of Part IX of the Property Law Act 1958 is founded on general principles of equity.
Equity developed as a means of achieving fairness and justice when “unforeseen” facts and “the general rules produce substantial unfairness. ” The general principles of equity are therefore seen as a “moral virtue” which “qualifies, moderates, and reforms the rigour, hardness, and edge of the law. ” Broadly speaking, equity comes to the rescue in instances where the common law is “weak” and “defective”. In this regard, the common law and statutory laws generally mandate that when a person’s name appears on the face of a deed of title, the automatic presumption is that this person is the sole owner of the property.
The deed of title will not reflect the contributions made by another to the improvement of the property, or toward the repayment of a mortgage held against the property, with the tacit or express encouragement of the titled owner. Likewise, a household member may have taken on a number of responsibilities, financial or otherwise which systematically freed the titled owner’s disposable income, making it possible for him or her to make improvements on or toward the purchase of the property. Equitable principles dictate that account be taken of these factors and a distinction is thereby made between legal and equitable interests in land.
Neave J explained the general principles and purposes of Section 285 of Part IX of the Property Law Act 1958 and its general equitable purpose. Those equitable principles are manifested by the general purpose of Section 285 to rectify the injustice that arises from the law’s “limited capacity” to “recognize non-financial contributions in dividing property after the breakdown of a de facto relationship. ” In accentuating the equitable principles entailed in property adjustments under Part IX of the Property Law Act 1958, the trial judge in the Giller case maintained that the quality of the contributions are to be evaluated.
According to the judge at first instance, the assessment must be made “in terms of its true worth to the building up of assets. ” Neave J however, explained that this particular approach takes an entirely different turn when assessing the value of the homemaker or parent’s contribution within the meaning of Section 285 of Part IX of the Property Law Act 1958. It is not necessary to make a connection between the homemaker or parent’s contribution and the property. The proper approach is to make a connection between the homemaker or parent’s contribution and the welfare of the family or other de facto partner.
In addition to evaluating the merits of a property adjustment claim, Part IX of the Property Law Act 1958 imposes a time limited for lodging such a claim. The approach taken to an application for leave to file a claim out of time are guided by the principle rule that financial matters should be resolved as soon as possible after the dissolution of a de facto relationship. However, this rule is guided by principles of equity which dictate that leave to file a claim out of the time stipulated for doing so can be granted in certain circumstances.
First, leave may be granted if the “court is satisfied” denying leave may cause greater hardship to the partner seeking leave than it would cause the “other partner if leave were granted. ” Guided by these principles of law, the court seized of the matter is required to take account of the respondent’s financial situation at the time the application for leave to file a claim out of time is lodged. Likewise, the court seized of the matter is also obliged to require a reasonable explanation for the applicant’s delay in filing a claim under Part IX of the Property Law Act, 1958.
However, the explanation provided is not strictly scrutinized. The courts are generally instructed to apply a “standard of reasonableness” and allow “for the emotional and human factors involved in domestic arrangements” as well as the “complex factors involved in such arrangements. ” Likewise, the courts are also instructed to evaluate the merits of the applicant’s claim for a property adjustment under Part IX of the Property Law Act 1958. Typically, if the claim for a property adjustment is made out, an extension of the time limited for filing such a claim will be allowed.
A three-prong test is applied in this regard and is relevant to the broader question of whether or not a property adjustment should be made at all. This three-prong test commences with the “identification and evaluation” of the relevant party and is calculated to ascertain “the divisible pool of property”. The second part of the test involves the “evaluation and balancing” of each of the parties’ contributions to the property’s acquisition or improvement or to the family’s welfare. The third prong of the test is an assessment of the appropriate order, one that will correspond with the claimant’s contributions.
What can be gleaned from all of this is that the courts, in seeking to do justice between the parties following the dissolution of a de facto relationship will be guided by general principles of equity. Those principles require a fair and just approach to the actual relationship, the demands on the parties to sustaining the familial relations and the demands on the actual financial contributions toward the property. In this regard, investments in the relationship are viewed as investments in the property to be adjusted under Part IX of the Property Law Act 1958.
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