Week 1: Classification of Law
Public versus private law:
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Public law includes administrative, constitutional, criminal, industrial and taxation law.
Private law includes contract, tort and administrative law
There are three senses of the common law:
1.
2.
3.
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The common law as a system of law
Adversarial as opposed to inquisitorial
Precedent is important as opposed to civil law systems which rely on codes
The common law as a source of law
Law made by judges as opposed to that made by parliament
The common law as a division of law
The rules of common law as distinct from the principles of equity or statutes
Common Law
English customary law
Origins
Legislation
Legal
writing and
doctrine
Legal
education
Judges
Very specific and aimed at limiting
judicial power, strict methods of
statutory interpretation used
Less popular and focuses on examining
and categorising judgements
Civil Law
Roman law, codes and legislation
which are applied to new cases
Legislation is most important, with
judicial decisions filling in gaps and
aiding interpretation
Common and very influential on
legal principles and legislation
Cases
Codes and doctrine
Appointed after service as lawyers
Diverge into apprenticeship after
university
Legislation based
Judicial
Precedent based
decisions
Judgements Long-winded and well known
Anonymous and very short
Week 2: Development of the Common Law
Customary Law in Pre-Norman England
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Customary law is based on customs and the spoken word
Existence and survival was harsh and difficult at the time, and this is reflected in the law
The Celts ruled in Britain prior to the Roman invasion in AD 43
o The Celts lived in different tribes, ruled by different chiefs, each with a different customary
law
o Romans brought with them sophisticated, codified law, however is only applied to Romans
in Britain
The Angles, Saxons and Jutes invaded England and brought with them their own forms of
customary law. They become the Anglo-Saxons.
The Dooms
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Dooms is the Anglo-Saxon word for law
In the 9th century Alfred the Great attempts to unify the Anglo-Saxon kingdoms out of concern
about Danish invaders
This was the reason for the attempts to codify Anglo-Saxon law
These attempts were called the ‘Dooms of Alfred’
The dooms were more procedural than substantive
That is, rather than specific ideas or rules, the focussed on legal proceedings and processes
Despite this attempt to codify Anglo-Saxon law, there was not yet a common law because there
was not yet any centralisation of the administration of justice
This became a very important issue in the eventual development of an English Common law
Battle of Hastings 1066
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Anglo-Saxon King Harold is defeated by William, Duke of Normandy
William the first becomes the first Norman king of England
He did not make any significant change to Anglo-Saxon law because it would have been impractical
However, he changed the position in relation to land
Brought with him continental feudalism, Norman land law and ‘King’s Courts’
o Disputes relating to Norman land law were heard in the King’s courts
o Over time, a body of land developed throughout England, which was the beginning of the
common law
The government became more centralised following the Norman conquest
The central government formed the basis for a centralised system for the administration of justice
(in Westminster)
At this time there was still no common law, and local customary law still played a crucial role
Henry the Second
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Under Henry II, there was still no common law, but important reforms were made
Juries, central courts and the writ system
o A ‘body of neighbours’ summoned to ‘give upon oath a true answer to some question’
o Trial by ordeal (reach into boiling water, innocent if no blisters), wager of law (group of
people decide if you seem innocent), trial by battle
o 13th century: juries common, presenting jury (witnesses) and petty jury (give verdict)
Central Courts
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Centralised administrative bodies begin to exist in Anglo-Saxon times
E.g. royal household takes care of daily adiministrative matters
National assembly (nobles from across England) meet to discuss important issues
CURIA REGIS/King’s Court provides advice on matters of government (including justice)
Becomes exclusively judicial
Itinerant justices become common (Justices in Eyre)
13th Century: Court of the King’s Bench evolves
Court of Common Pleas: emerging common law
The Writ System
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Writs set out available ‘causes of action’
o Issued by the Lord Chancellor (the King’s secretary)
o The system became very technical with time
o This was the basis of early common law
Inflexibility in this emerging common law brings about the development of ‘equity’
Equity was and still is a supplementary body of law
The Rise of Constitutional Law
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Magna Carta 1215
o The reign of Henry II (1154-89) was followed by his sons, Richard I (1189-1199) and John
(1199-1216).
o King Richard I spent much of his reign overseas and King John’s reign was troubled by a
disastrous war abroad and civil war.
o King John’s reign created a great deal of instability and it was during this period that Barons
and Knights rose up against the King.
o King John met the dissatisfied Barons and Knights finally at Runnymede on 15 June 1215 and
verbal agreement over many issues concerning the role of the crown was reached. This
verbal agreement was recorded in the Great Charter of 1215; that is, the Magna Carta.
Chapter 39 providesthat no person can be charged with a criminal offence or be deprived of civil
rights or possessions except through the due process of the law.
Taken together, Chapters 39 and 40 meant that the Crown was subject to the law. This is another
fundamental aspect of the rule of law which remains in existence today: the government is subject
to the law.
Emergence of Parliament
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The world ‘parliament’ was not used in Norman England until the 13th century because there had
been no sense of ‘nationhood’.
Prior to this time nationhood did not exist because feudalism did not encourage trade between
different parts of England.
The developing wood trade in the early 13th century connected various parts of England and
provided the platform for the emergence of a sense of nationhood.
Provisions of Oxford
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The provisions of Oxford have some impact on Common Law writs
The state the chancellor cannot issue new special writs covering new circumstances without the
permission of the King and the King’s Council
These were repealed in 1266
Glorious Revolution
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England became a constitutional monarchy, which changed the relationship between the crown
and the parliament
Parliamentary supremacy, however the crown retained its prerogative powers (e.g. foreign affairs,
war and peace, treaties, and appointment of ministers of government)
In Australia these are subject to the Commonwealth Constitutions and statute law
PS – the common law is subject to and can be changed by the statutes enacted in Parliament (for
example, the CLA)
Equity
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Separate courts, so it was important to choose the right one
Courts of equity had discretion as to whether to provide equitable relief
Judicature Acts of 1873 and 1875 created a Supreme Court of Judicature which could hear disputes
in Common Law or in Equity (like today)
Equity may give an order of specific performance (which is not available in common law)
Statute law > equity > common law
Walton Stores v Maher
Week 3: Reception of English Law in Australia
The theme running through the reception of English law in Australia was doubt and uncertainty which
followed the arrival of the first fleet.
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Captain Cook claimed the Eastern part of Australia for the Queen
Considered terra nullius
This was an important element of international law and colonisation in the 18th century
Land which was cultivated was considered inhabited
This applied in relation to the doctrine of reception, which dictated what law applied in the new
colony
Colony Type
Settled colony
Ceded colony
Conquered colony
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Acquisition
Acquired by discovery – i.e.
was terra nullius
Gained by contract
Won by warfare
Law
So much English law as was
relevant to their situation
Local law applies until
changed by parliament
It was unclear exactly what law applied in Australia
Being a penal colony, run by the military, military law applied
This caused doubt as to what degree English law would be received by the colonies
o Paramount legislation was made by the imperial parliament of Britain
o Non-paramount legislation was made by the parliament sitting to address colonial issues
25 July 1828: Australian Courts Act 1828
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This was an attempt to clarify the laws of Australia
Section 24: all law of England (which technically did not include the principles of equity) applies
equally in NSW and Van Diemen’s land
An English non-paramount statute passed after this date DID NOT automatically apply to NSW and
Van Diemen’s land
Any paramount statutes which were intended to apply did apply
Dormant Common Law
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SGIC v Trigwell: a farmer owns sheep next to a highway, 2 sheep wander onto the highway and
cause a car accident.
Negligence was alleged but there was an English common law rule from the case of Searle v
Wallbank that owners of animals are not liable for the damage those animals cause in straying onto
roadways
At trial, dismissed, but appealed to the High Court
High Court holds that in 1836 there had been no highways, so the highway rule was only received
when it was needed
It has been abolished in every state except QLD by statute
Week 4: Lawmaking and the Organs of Constitutional Government
Basic Features of the Australian Constitutional System
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Australia is a federation of 6 states
o Legislative powers shared between Commonwealth/State governments
o There are state/federal courts with the High Court at the apex of the hierarchy
o Some disputes go straight to the High Court because it has both appellant and original
jurisdiction
There is representative democracy at both levels
o Legislatures except in Queensland are bicameral with each house elected
o Universal suffrage
o The ‘upper house’ is intended to be a ‘house of review’
The executive is responsible to parliament for the conduct of the government
o PM and the premiers are commissioned because they have the support of the lower house,
and lose office when this confidence is lost (e.g. no confidence vote, supply blocked, lose
the general election)
Judicial and non-judicial power is separated
Full judicial review
o Legislation and/or executive action can be invalidated on constitutional grounds
Constitutional stability
o Constitution cannot be amended except by referendum
o There must be a majority of people and a majority of states
o That is, 55% of people and 3 states (because ACT and NT are not states)
The Australian Judiciary
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An independent, impartial, competent and respected judiciary
o Independence: security of tenure of judges, non-interference by government and
favourable conditions of service
o Impartiality: judicial traditions, common law rules of natural justice, possibility of appeal,
vigilant legal profession and public confidence
o Competence: sound legal education, appointment on merit, competence in auxiliary
services, fair procedures, system of appeals and public/academic discussion
o Respect: public confidence and perceptions of independence, impartiality and competence
allow disappointed litigants to accept judgments
o Accessibility: cost of litigation, competition in legal services sector and legal aid
The Australian Judicial Hierarchy
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Original jurisdiction
o First to hear a case
o Commenced by a statement of claim/charge laid
o This is where the facts are found and the law applied to them
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Appellate jurisdiction
o Review an original decision
o Errors of law or key facts
Special leave
o Needed in order to appeal to the High Court from a state Supreme Court
o It is not usually granted unless there is a question of law of public and general importance, it
is necessary to resolve differences of opinion between courts as to the state of the law OR it
is in the interest of the administration of justice
Court hierarchy
o Every state has its own hierarchy with the HCA at the apex
o The state courts belong to the federal hierarchy and are vested with some federal judicial
power
The magistrates’ court only has original jurisdiction (minor offences and cases up to $150,000)
District court has both original and appellate jurisdiction (may hear cases up to $750,000)
Supreme (original and appellate) court more than $750,000
Superior courts can create precedent
High Court of Australia
- Appellate jurisdiction
- Original jurisdiction on
constitutional matters
State Supreme Court
Matters of $750,000 +
Appellate/original
Superior Court
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District Court
Matters $150,000 to
$750,000
Appellate/original
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Magistrates Court
Matters up to $150,000
Original jurisdiction
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Federal Court of Australia
- Superior court
- Federal matters
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Family Court
Superior court
Appeal to the ‘Full Court
of the Family Court’
Federal Circuit Courts
Federal and family matters
Modes of Lawmaking
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The primary method of lawmaking is legislation
Primary of delegated (subordinate) legislation
Primary legislation
o Acts of parliament
o General rules applying to everyone
o Alters existing legal relations prospectively
o Creates statutory authorites
Subordinate legislation
o Regulations, rules, by-laws etc
o Made by the executive branch
o Can only be made on authority delegated by an act of parliament
o Often placed before parliament for approval
Why this system?
o Parliament has no time to supply all the detail
o Does not have the technical expertise
o This allows for speed and flexibility, because minor changes are needed frequently
Legislative Standards Act 1992 (QLD)
- Sets out ‘fundamental legislative principles e.g. Subsection (4):
(4) Whether a Bill has sufficient regard to the institution of Parliament depends on whether, for
example, the Bill—
(a) allows the delegation of legislative power only in appropriate cases and to appropriate persons;
and
(b) sufficiently subjects the exercise of a delegated legislative power to the scrutiny of the
Legislative Assembly; and
(c) authorises the amendment of an Act only by another Act. (Condemns Henry VIII Clauses)
- This Act is not a constitutional provision and it is often ignored by legislators
Quasi-judicial Decisions
- Acts of parliament grant the executive power to create rights and impose duties in specific cases
- Quasi-judicial decisions only affect specific parties
- E.g. granting licenses, allowing applications etc
- Unlike purely administrative decisions that do not affect anyone’s rights
- Can be challenged in administrative law (judicial review)
Judicial Power and Judicial Lawmaking
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Definition of judicial power: Griffith CJ in Huddart Parker v Moorehead
1. There must be a controversy or dispute
2. Controversy must affect existing rights, liberities, persons or property of persons
3. Court must decide according to pre-existing law
4. The decision must be conclusive’
5. Judicial power arises by operation of law as opposed to some agreement of parties as in
arbitration
Whereas a quasi-judicial decision creates new rights and duties, whereas a judicial decision
determines what rights and duties exist in law
Judges Making Law
- Only the decisions of appellate courts are authoritative.
- There is a difference between statutory interpretation and common law precedent
Interpretation of Legislation
- Needed when language is unclear or it is unclear whether a new event or object falls within that
language
- Authoritative interpretation (by appellate courts) determines what the law is
- Must interpret statute as intended by parliament
- Must declare unconstitutional if found to be so
Common Law Development
- Apply or distinguish precedent
- Sometimes there are ‘hard cases’
Hard Cases
- No clear precedent/statute or conflicting precedents
- HLA Hart: judge becomes a deputy legislator and makes a new rule
- Ronald Dworkin: the law consists of rules and principles, and when rules run out, a principle must
be distilled from the whole body of law.
- Dworkin said judges must ensure coherence in the law, providing rules that are consistent with
those which already exist
Judicial Restraint
- An arbitrary change to the law makes it difficult to live life according to the law
- Law cannot guide conduct when it is inconsistent
- The authority of law depends on public confidence, and defeating expectations erodes this
Week 5: Legal Reasoning and Case Analysis
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The answer to the legal question put before the court is the ratio
This occurs in the context of a novel case
Inductive reasoning involves the derivation of a general legal principle or rule, and involves analysis
of past decisions
MacCormick
- A legal principle is a normative expression of the underlying reason for specific rules of law
- A legal rule is a more specific expression of a general principle of law
- Extension of the law through analogy: legal principles, as expressions of the underlying reasons for
specific rules, provide a justified basis for any extension of existing laws
- Laws consistent with legal principles = coherence in the law
MacCormick’s Definitio of Ratio Decidendi
- ([a] ratio decidendi is a ruling expressly or impliedly given by a judge which is sufficient to settle a
point of law put in issue by the parties’ arguments in a case, being a point on which a ruling was
necessary to his [or her] justification (or one of his [or her] alternative justifications) of the
decisions of the case.)
Obiter Dictum
- Everything in the judgement except for the outline of facts, the procedural history and the order of
the court
- ‘Arguments of legal principle and arguments evaluating other authorities or evaluating the
consequences of the favoured ruling and its rivals, even though some such arguments are
necessary to justify a ruling given, and even where only the very arguments actually advanced could
justify the ruling, will then belong to the class of obiter dicta.’ – MacCormick
- Case analysis steps:
o How many judges are sitting?
o How many judgements are there?
o How many joint/individual judgements?
o Concurring judgements?
o Who is in the majority or dissent?
o What are the legal issues?
o Work through each judgement to find ratio
- Nothing said by a judge in dissent is part of the ratio
Week 6: Ratio Decideni
Does every case contain a ratio?
- To have a ratio there must be a majority of ALL JUDGES SITTING (not just all judges in the majority)
who are in agreement
- Two schools of thought:
- Sir Anthony Mason (former High Court CJ): EVERY case has a ratio even if that is no more than the
facts and the decision.
- Privy Council: If there is no easily found ratio, then the decision is irrelevant as precedent.
- Intermediate position (McHugh J): Even though there may be no ratio, the decision should be
followed in circumstances that are ‘not reasonably distinguishable’
- This still allows for grey areas
Week 7: Following and Distinguishing Precedent
Historical Background to Precedent
- Two historical conceptions of precedent
o Traditional or classical common law conception
o Positivist conception
- The practice of following and distinguishing precedent has changed over time
- Are judges decisions law, or evidence of law?
Declaratory Theory of Adjudication (classical)
- Customs and past decisions are only evidence of the law
- The law has authority because it is generally used and accepted
o Past decisions have authority because they form part of a recognised body of experience
o Individual cases exemplify legal rules
o Past cases ‘focus’ reasoning rather than removing a need for it
o Decisions are not ‘final’
- No SINGLE case is considered binding, however the wider body of experience is
Positivist Conception of Precedent
- The common law is ‘created’ not discovered
- Decisions therefore constitute the law
- The point of law is decided and therefore the law had been laid down
- Rules are authoritative
- This provides certainty and predictability of decisions
Precedent in the 18th Century
- Rationalists: decisions are evidence of the law, real law is created by parliament
- Formalists: decisions represent the law itself
- A formalist judge states the law as it is, a rationalist judge states it as it ought to be
At the End of the 18th Century
- A practise of following precedent existed: stare decisis or ‘ the decision stands’, meaning a court
was required to follow precedent which was on point
- However, it was not the only method for deciding cases, and was not strict or based on a court
hierarchy
In the 19th Century
o 1812 the decisions of the House of Lords begin being recorded
o 1820s professional judges sit on the house of laws
o 1830s there is a chaotic system of appeals
o 1875 Court of Appeal created – clearer line of appeal
o 1898 the House of Lords decides in London Tramways that it is bound by its previous decisions
o Begins a practise of following precedent in a structured court system, and sets the stage for
the doctrine of precedent
- Legal positivism gains support and in England the importance of certainty in the law in daily life
grows
- Positivism and structural changes have a major effect
Doctrine or practice?
- Professor Cross’s three ‘rules’ of precedent:
1. all courts must consider the relevant case-law; (This rule is not controversial.)
2. lower courts must follow the decisions of courts above them in the court hierarchy; and
3. appellate courts are generally bound by their own decisions.
- Rule 2 more of a law in that it is important in maintaining the smooth operating of the hierarchical
court system
- This also applies in Australia
- In the decision by the Court of Appeal of Queensland in Fangrove Pty Ltd v Tod Group Holdings Pty
Ltd, de Jersey CJ referred to decisions of the High Court of Australia as ‘the law which binds us’.
- Rule 3 is more of a practise
- The joint majority of the High Court of Australia in Nguyen v Nguyen takes the view that the issue of
whether a State or Territory appellate court departs from its own previous decision is a matter of
practice, not a rule of law
Distinguishing Precedent
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The question is not: how can we avoid precedent? But: does precedent need to be applied here?
With regard to the facts of the past decision, sometimes it need not.
- This is different to a per incuriam decision
Per Incuriam
- Per incuriam means the decision was literally incorrect
- There are three relevant categories
o Where relevant case law has been overlooked
o Where relevant statutory provisions have been overlooked
o Where the court has made an error
- A decision per incuriam means declaring the previous court has made an error, and is not simply a
way to ‘get out’ of principle