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The Australian Legal System and the Common Law ‘ Downunder ’. Yesterday:. Introduction Common law vs Civil Law Common law vs Statute Common law vs Equity Norman Invasion of England Itinerant justices (of Eyre and of Assize) Curia Regis: the origin of Westminster courts
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The Australian Legal System and the Common Law ‘Downunder’
Common law vs Civil Law
Common law vs Statute
Common law vs Equity
Norman Invasion of England
Itinerant justices (of Eyre and of Assize)
Curia Regis: the origin of Westminster courts
Writ System and sclerosis of the common law
Development of Modern Parliamentary Democracy
Development of Modern Parliamentary Democracy and the rise of the statute
Doctrine of Precedent
Australian Legal System:
Colonisation and Development
An Australian Republic?
The jurisdiction of The Court of Chancery
Lord Chancellor: King’s principal legal officer and “the keeper of the King’s conscience.”
English not Latin or Norman French
Focus on merits of the claims regardless of the technicality of forms/writs
Its earlier decisions were binding upon itself.
“The Office of the Chancellor is to correct Men’s consciences for Frauds, Breach of Trusts, Wrongs and oppressions, of what ever Nature soever they be, and to soften and mollify the Extremity of the Law … [W]hen a judgment is obtained by Oppression, Wrong and a hard Conscience, the Chancellor will frustrate it and set it aside, not for any error or Defect in the Judgment, but for the hard Conscience of the Party.”
The Earl of Oxford’s Case (1615) 21 ER 485
Banking & Finance (securities clearing systems, unit trusts, custodianship of investments, bond issues)
Commercial (business trusts, nominee shareholders)
Wills & Estates (testamentary trusts)
Charities (charitable purpose trusts)
Family (family trusts, equitable interest of man and woman in family home)
Tax “minimisation” strategies
Superannuation & pensions
A device by which one person (trustee) holds property (trust property) for the benefit of another person (beneficiary) or for certain lawful purposes.
Abolished both the Court of Chancery and the common law courts
Created one court – the High Court of Judicature with five divisions:
Queen’s Bench, Exchequer, Common Pleas, Chancery & Probate, Divorce & Admiralty
‘Our common law system consists in the applying to new combinations and circumstances those rules of law which we derive from legal principles and judicial precedents; and for the sake of obtaining uniformity, consistency and certainty we must apply those rules where they are not plainly unreasonable and inconvenient, to all cases which arise; and we are not at liberty to reject them, and to abandon all analogy to them, in those to which they have not been judicially applied, because we think that the rules are not as convenient and reasonable as we ourselves could have devised.’
Each court is bound by decisions of courts in its hierarchy
A decision of a court in a different hierarchy or lower in the same hierarchy may be persuasive, it will not be binding
Generally a court will not consider itself bound by its own past decisions but will depart from them only reluctantly
Only the ratio decidendi of a past decision is binding
Obiter dicta are not binding but may be persuasive
Precedents do not lose their force by lapse of time
Distinguish it on the facts
Eg Thornton v Shoe Lane Parking  2 QB 163
Statement of law is too wide
eg Attorney-General for New South Wales v Mundey  2 NSWLR887
Ex parte Attorney-General; Re Truth and Sportsman Ltd  SR(NSW) 484
‘any statements or comment dealing with the case and propounding views as to its proper determination are calculated to obstruct, or tend to obstruct, the administration of justice and to make the task of the court entertaining the appeal both difficult and embarrassing.”
Statement of law is obiter dictum
Changed social conditions
R v L (1991) 174 CLR 379 http://www.austlii.edu.au/au/cases/cth/HCA/1991/48.html
R v. R.  1 AC 599, 612-623 http://www.bailii.org/uk/cases/UKHL/1990/9.html
Precedent is wrongly decided
But what about when there is no precedent?
SYSTEM: the common law ‘downunder’
1622: British East India Company ship The Tryall wrecks on the west coast
1642: Abel Tasman (Dutch) sighted Tasmania on the way to discovering New Zealand, Fiji and visiting New Guinea
1688: William Dampier (English), landed on the west coast
19 April 1770: Captain James Cook in The Endeavour sighted the east coast of Australia and ten days later landed in a bay now located in Sydney's south
22 August 1770: Cook took possession of most of the East coast for the British – with an undefined western boundary.
26 January 1788: First Fleet arrived in Sydney
Other colonies established thereafter
Australian colonies established largely as a place to deposit convicts whose death penalties had been commuted to transportation
‘[Aboriginal Australians] may truly be said to be in the pure state of nature, and may appear to some to be the most wretched upon the earth; but in reality they are far happier than ... we Europeans.’
Captain James Cook
23 August 1770
‘It has been held that if an uninhabited country be discovered and planted by English subjects all the English laws then in being, which are the birthright of every English subject, are immediately there in force.
But this must be understood with very many and very great restrictions. Such colonists carry with them only so much of the English law as is applicable to their new situation as the condition of an infant colony…’
The Australia Acts enacted by both the Australian and in the United Kingdom Parliament in 1986