Sources of Contemporary Australian LawCommon 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