Common Law, Equity and Statute: A Complex Entangled System

Australia Title

This strikingly original book explains how the Australian legal system is structured, and how that structure informs the way novel questions of law are argued and decided.

One of this book’s themes is that, in the minority of litigation which involves the determination of a question of law, it often makes sense to regard the legal system as an entangled product of statute and judge-made law, within which common law and equity are separate components. Another is that the actual workings of the legal system are far more complex than appears in most accounts, and within that complexity lies the scope for principled development. A third is that an appreciation of legal history will almost always assist in the resolution of novel questions of law, mostly by lightening the weight of precedent.

The book analyses what is meant by the “common law of Australia”, what is the relationship between judge-made law and statutes, and how courts resolve novel questions of law. It explains why some questions are best regarded as aspects of the common law, why others are best regarded as questions of statutory construction, why some are difficult to characterise, and why this matters. It also explains why equity continues to be a distinct component of judge-made law, with a different relationship with statute. And it gives a nuanced account of precedent and the role of authority from different jurisdictions. The ideas in some of the chapters are illustrated by dialogues between a teacher and students, replicating a once common form of legal literature, including St Germain’s Doctor and Student, published half a millennium ago.

table of content

Preface
An advocacy check-list
Table of cases
Table of statutes

Opening Dialogue

Chapter 1 – Introduction
1.1 The interaction of common law, equity and statute
1.2 The complex entanglement of the interaction
1.3 This work’s main claims
1.4 Two examples of the interaction between common law, equity and statute
1.5 Law-making by courts
1.6 Conclusion

Chapter 2 – Understanding “Common Law” and “Equity”
2.1 Introduction
2.2 Law’s unavoidable ambiguity
2.3 The early history of “common law” and “equity”
2.4 “Common law” and “equity” as bodies of rules and principles
2.5 “Common law” considered alone was and is seriously defective
2.6 “Common law” emerging from decisions on statutes
2.7 “Common law” and “equity” as survivors of an evolutionary process
2.8 Working definitions of “common law” and “equity”

Chapter 3 – The Variety of Statutes
3.1 Introduction
3.2 Statutory precedents
3.3 The nature of the problem of the volume and variety of statutes
3.4 Classification depends on purpose
3.5 Four distinctions within statutes

Chapter 4 – The Entangled Complexity of Statute Law and Judge-made Law
4.1 Introduction
4.2 A simple example of entanglement – a plaintiff slips on a council footpath
4.3 Why exactly must a testator of sound mind “know and approve” of a will?
4.4 Decisions on s 26(a) of the Income Tax Assessment Act 1936 (Cth)
4.5 The differences between judgments and statutes
4.6 The interaction between judge-made law and statute law
4.7 The impact of statute law on judge-made law
4.9 Conclusion

Chapter 5 – Five Judicature Fallacies

Chapter 6 – Equity and the Judicature Legislation
6.1 Introduction
6.2 Bleak House described an unreformed chancery
6.3 A snapshot of the position in 1872
6.4 The operation of the Judicature legislation
6.5 The effect of ss 24 and 25 of the Judicature Act 1873
6.6 Attempts at legislative reform in New South Wales
6.7 Judicature legislation in New South Wales
6.8 The historical meanings of “fusion”

Chapter 7 – Equity’s Continuing Distinctiveness after the Judicature Legislation
7.1 Introduction
7.2 Different conception of law-making
7.3 The role of history
7.4 Common law’s self-sufficiency and equity’s supplemental nature
7.5 Statutes reinforcing the existence of a distinct body of equity
7.6 Different judicial technique
7.7 Two modern examples
7.6 Conclusion: Equity’s distinctiveness in the 21st century

Chapter 8 – “There is but one common law of Australia”: Fact or Fallacy?

Chapter 9 – The Structure of Judge-made Law in Australia
9.1 Introduction
9.2 There is “but one common law of Australia” is a recent development
9.3 Divergence in colonial and State statutes
9.4 The (in)significance of rights of appeal
9.5 The reasoning in Lange that there is “but one common law of Australia”
9.6 The proposition that there is but one common law challenged: Lipohar v The Queen
9.7 Conclusion

Chapter 10 – Consequences of the Structure of Judge-made Law in Australia
10.1 Introduction
10.2 Different precedential effect of common law and statutory precedents
10.3 Sections 79 and 80 of the Judiciary Act – introduction
10.4 The former approach to ss 79 and 80 and criticisms of that approach
10.5 Rizeq v Western Australia
10.6 How in light of Rizeq should s 80 be construed?
10.7 The legislative history of ss 79 and 80 of the Judiciary Act
10.8 Conclusions on s 80

Epilogue

Concluding dialogue

Index