Common LawSources of Contemporary Australian Law

British Origins of Common Law The common-law

system first developed in England, and is there fore often referred to as ‘English common law’

Other countries using this system include: Great Britain, Canada, New Zealand and the USA

Common law is a collection of legal principles and rules derived from the decisions of judges in higher courts

Basically – it is law developed by judges, not law imposed by parliament

Judges are required to obey statute law (law made in parliament.

If no statute law exists, judges use common law principles to resolve the dispute.

A judge can use common law to interpret statute law.

If both common law and statute law exist, the statute law must be followed.

Development of Common Law From the 6th to the 11th

century, law was enforced locally

Crimes were treated as wrongs for which the offender had to compensate the victim

Both parties would have to “swear an oath”

If there were witnesses, the accused may be required to undertake a trial by ordeal.

Administer a uniform set of laws

Report any threats to the throne to the

King

Assess the wealth of the country to determine what

taxes can be afforded

Common law developed after the Norman invasion of England in the 11th century.William the Conqueror sent judges around the country to consolidate his position:

By the end of the 12th century, it was common to send judges “on circuits” around the country to ensure decisions were similar – which led to the notion of precedent.In 1258 the Provisions of Oxford were written – this required cases to fit into precedent before they would be heard.

Equity By the 15th century, people were going to

the King, claiming that Common Law Courts had made the wrong decision – he asked his Chancellor to deal with these petitions.

The Chancellor was a priest as well as a judge, so his decisions were often influenced by Christianity.

This branch of law, which aimed to deal with injustices, was called Equity.

Court of Chancery looked at the features of each case to decide what was just or fair

It used moral principles – the rules of equity

Main principles of equity

To modify a remedy in common law that is deficient, or to create a new remedy

To develop remedies for wrongs that the common law doesn’t recognise

Equity and common law co-existed for several hundred years, though not always peacefully.

In 1873, the two legal systems were combined, creating the Supreme Court of Judicature.

Courts were instructed to consider equity when considering common law.

Common Law Equity

A complete legal system A series of isolated principals

Common law rights are extended to all people

Rights of equity are valid only to those people specified by court

Common law remedies are enforceable at any time (within limitation)

Equitable remedies must be applied for promptly

Common law is non-discretionary and must follow precedent

Equity is discretionary

The System of Precedent

Describe One of the main features of common

law is the doctrine of precedent. A precedent is “a judgement made by a

court that establishes a point of law”. It means that judges must resolve

disputes on the basis of decisions made in similar cases.

It can also be known as stare decisis – the decision stands

Explain The purpose of precedent is to ensure

that people are treated fairly and that the law develops consistently and coherently

Old cases retain authority, and their decisions can be used for the basis of modern-day decisions

Precedent stops judges from being “creative” when making decisions

Making Precedent

Two main ways precedent is developed1. When there is no existing law

Judges must rely on common sense and the principles of law for guidance in making their decision.

Many laws regarding murder have been created in this way: eg: provocation and self-defence

2. When legislation is interpreted

Parliament is responsible for creating legislation, but courts must interpret it, or establish the meaning of certain words.

In Vic, a person can only be guilty of burglary if they enter a “building” – the court must decide what constitutes a building

Rules of Precedent

Binding Precedent Where binding precedent occurs, a court

MUST follow the precedent already set, whether it believes the decision is correct, or not.

In NSW, a precedent is binding if it has been set by a higher court, in similar cases.

A judge is only bound by the ratio dicidendi. Obiter dicta do not create precedent.

Definitions

Ratio dicidendi A statement by the

judge about the reason for their decision

It creates a precedent that lower courts must follow

Obiter dicta Other statements

made by judges, such as their personal opinions.

These create no immediate precedent, but can be used later to justify a precedent

Persuasive Precedent May influence a decision, but a court is

not required to follow it Could include statements made by a

judge, or decisions made by courts in other jurisdictions (eg: a NSW judge may quote a judge who heard a similar case in the UK.)

How persuasive a precedent is depends on the judge and the court.

Court Binding Precedent Persuasive Precedent

High Court All state and federal courts High Courts and courts in some other countries

Full Court of Federal Court

Single judge of Federal Court and Full Court of Federal Court

High Court and courts in other hierarchies

Single judge of Federal Court

Single judge of Federal Court

Courts in other hierarchies

Courts of Appeal (NSW, Vic, Qld), Full Bench and Full Court of Supreme Court

Single judge of Supreme Court, District Court (County Court in Vic.) and Magistrate’s Court in same jurisdiction

High Court and courts in other hierarchies

State Supreme Courts

District Court (County Court in Vic.) and Local Court in same jurisdiction

High Court and courts in other hierarchies

Privy Council (UK) None in Australia All Australian Courts

House of Lords (UK)

None in Australia All Australian Courts

Critically analyse precedent

Advantages Disadvantages

Evaluate precedent

The Adversarial System

Two opposing sides

Each side introduces its own evidence and

witnesses

One opposing side may test the opposition’s

evidence through cross-examination and by introducing evidence

The judge or jury will not test the validity of the

evidence

Two opposing sides argue their case before a court, which is presided over by a neutral third party

Each side can introduce evidence and call witnesses

The opposing side then tests the evidence by asking questions of witnesses (cross-examining), and by introducing its own witnesses and evidence

At the conclusion of the case, the presider (judge) or jury will decide which version of events they believe

Neither the presider nor jury has any role in testing the evidence