1. Common Law
Sources of Contemporary
Australian 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

12. The System of Precedent

13. 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

14. 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

15. Making Precedent

16. 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

17. Rules of Precedent

18. 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.

19. 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

20. 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.

21. 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

22. Critically analyse precedent
Advantages
Disadvantages

23. Evaluate precedent

24. The
Adversarial
System

25. 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

26. 




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