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Step 4: Decision. See what the court's decision was, that is,
which meaning or meanings of the ambiguous provision it chose as the legally
correct meaning. Consider whether another meaning might have been a better
choice.
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To emphasise the point, Steps 2, 3 and 4 function at two levels:
(1)
Actual Decision. They look at what the court actually did. This is the
basis for analysing a past case as it stands.
(2)
Alternative Decision. They also look at all the options, those that the
court did not take up, as well as those that it did. This is the basis for arguing
and predicting a future case.
To take this discussion further we proceed through four steps. Three of these
steps are taken from the model for interpretation. The additional step (Step 1:
Issue) is a preliminary step. It involves identifying the issues as a necessary
prelude to using the model for interpretation to resolve the issue.
Step 1: Issue
A case came to court on a question of interpretation because there was an
issue. That is, there was doubt as to whether the law applied to the facts. This
doubt arose because the particular legal provision was ambiguous and so had
at least two meanings. According to one meaning it applied to the facts, while
according to the other meaning it did not apply.
Therefore the first task in reading a case is to identify and frame the issue
which came before the court. Often a judgment will do this but it may not, or it
may not do it correctly or clearly. In this case you have to do it for yourself.
This involves several steps.
First, read the facts in the case and make sure that you understand them.
Usually the facts will be set out in the headnote and in the judgment (or in an
appellate case, in one of the judgments). If the facts have not been clearly set
out in the case it is necessary for you to do so. Usually it is best to arrange
facts in chronological order and by reference to major incidents or
transactions. Sometimes it helps in understanding the facts to summarise them
in a diagram.
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This description of the process reveals how the model for interpreting law
operates in two ways. Used for interpretation the model looks forward
to what a
court might do or should do when interpreting. Used for as a guide for reading a
case the model looks back
to see what the court actually has done. Therefore one
uses the model for interpreting law but with some adjustment for the different
perspective.
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There is an illustration of a diagram organising facts in Enright (2002)
Appendix 2.
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