1. Sources of
Contemporary
Australian Law
Common Law

2. 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

3. 

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

4.  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.

5. 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.

6. 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.

7. 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.

8.  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

9. 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

10.  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.

11. 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