Published on February 16, 2014
Common Law Sources 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.
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: 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 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 nondiscretionary 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
Two main ways precedent is developed 1. 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 High Court and courts in Court, District Court (County other hierarchies Court in Vic.) and Magistrate‟s Court in same jurisdiction 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
The Adversarial System
Two opposing sides Each side introduces its own evidence and witnesses The judge or jury will not test the validity of the evidence One opposing side may test the opposition‟s evidence through crossexamination and by introducing 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 (crossexamining), 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
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