occur in statute law because statute law has a defined and identifiable text.
Common law, by contrast, is restated on each occasion that a rule arises in a
judgment. There is no formal stricture against a judge restating a rule using a
novel formula, as they often do. In these cases a court has some room to “re-
express the law”.
283
Whenever this happens, there are two or more version of a
rule.
To explain this ambiguity, take the simple case of just two versions. There is
one text of a judgment stating (or inferring) one version of a rule of law and
another piece of text stating another version. Different words or formulas are
used to describe the same rule. Hence there is ambiguity. Which is correct,
one version, the other or possibly both if they can operate together?
This ambiguity, then, consists of one piece of a text of a judgment saying that
the law is one thing and another piece of a text of a judgment saying that the
law is another thing (and there may, of course, be more than two versions).
These pieces of text may be in different judgments in different cases, different
judgments in same case (where there is an appellate court with several judges
who can each give a different judgment), or even sometimes in the same
judgment.
284
On each occasion on which the rule is stated, regardless of where
it is stated, it may be stated in a way that is different to any previous statement
of the rule. This ambiguity, we can now see, is one of the major reasons that
precedent does not confine a court in common law as strictly as it might first
seem. As Lord Wright has expressed it "notwithstanding all the apparatus of
authority, the judge has nearly always some degree of choice”.
285
In one sense this ambiguity occurs because courts have formulated two or
more versions of a rule. Generally they do not need a reason or special
opportunity to do so because the pervasive or inherent looseness of common
law compared to statute law makes other versions both possible and likely. It
is just so easy for a judge to frame a rule using a slightly different formula.
Obviously, therefore, the key thing is to be aware that two or more versions of
a rule constitute a form of ambiguity. It may help to understand it, however, to
indicate a number of cases where there is a clear explanation as to how and
why the two versions were formed. To do so will assist in working with the
ambiguity. It will enable us better to handle it –
to detect it, to identify the
versions constituting the ambiguity, and to formulate arguments to resolve it.
283
Retirement of Sir Garfield Barwick as Chief Justice (1981) 148 CLR v, ix
284
See Cross (1977A), Cross (1977B), McKinley (1987).
285
Lord Wright (1939) p xxv
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