Common Law (HSC SSCE Legal Studies): Revision Notes
Common Law
Common law is one of the fundamental sources of Australian law. Understanding common law requires knowing its multiple meanings, historical development, and how it operates today through the doctrine of precedent.
What is common law?
The term "common law" has three distinct meanings in the Australian legal system, and it's important to understand each context in which it is used.
First, common law refers to law made by judges in courts, rather than law created by parliament (statute law). When judges decide cases, they create legal principles that form part of our law. This is often called judge-made law or case law.
Second, common law distinguishes the law developed by common law courts from the law developed by courts of equity. Historically, these were separate court systems with different approaches to justice. Common law courts followed strict rules and procedures, while courts of equity were more flexible and based their decisions on moral principles and fairness.
Courts of equity were historically courts whose decisions were more discretionary and based on moral principles, serving as an antidote to the inflexibility of common law courts. This distinction between common law courts and equity courts shaped the development of the entire legal system.
Third, common law describes the entire legal system used in countries like Australia, which inherited the English legal tradition. This system is used throughout the United Kingdom and many of its former colonies, including New Zealand, Canada, and the United States. This distinguishes these countries from nations using civil law systems (like France or Germany).
Historical development of common law
The British legal system, which Australia inherited, developed gradually over many centuries. Understanding this history helps explain why our legal system operates the way it does today.
Anglo-Saxon England and local customs
Before the Norman Conquest in the 11th century, Anglo-Saxon England had a decentralised legal system. Questions about rights and obligations were decided based on local custom, with disputes resolved by local courts. Different regions had different customs and practices, meaning there was no uniform law across England.
The Norman system and travelling judges
When the Normans invaded England in 1066, they began transforming the legal system. William the Conqueror introduced a system of travelling judges who moved around the country applying a common set of laws to all areas. These judges (also called magistrates or justices) had three main responsibilities:
- Administering a consistent set of laws throughout the country
- Reporting on any threats to the throne
- Assessing the country's wealth for taxation purposes
People who believed local courts had treated them unjustly could petition these travelling judges. The judges operated on the principle that similar cases should be treated similarly. Their decisions became standards (precedents) for deciding future cases with similar facts.
Consolidation under Henry II
When Henry II became king in 1154, the practice of sending royal justices throughout the countryside was well-established. These judges listened to disputes, worked out solutions, applied punishments, and ensured consistent rulings were made across England. Crucially, they had authority to make decisions when hearing new types of cases they hadn't encountered before.
Through this process, a set of uniform laws gradually developed throughout England. This is why we call it "common" law - it was common to all of England, replacing the patchwork of local customs. This judge-made law evolved from decisions based on tradition, custom, and precedent.
Trial by ordeal
In early medieval England (6th to 11th centuries), legal cases were handled quite differently from today. The law was enforced by various local bodies including the king's appointees, the church, and local landlords. Crimes were treated as wrongs requiring the offender to compensate the victim.
When a court accepted a case, both the plaintiff (the person claiming to be wronged) and the defendant (the accused person) had to swear an oath. The defendant could bring "oath-helpers" - people willing to swear to their innocence. If the court found the defendant's oath believable, they could simply go free.
Trial by ordeal was a medieval practice where the accused had to complete painful or dangerous tasks to prove their innocence. This reflected the belief that divine intervention would protect the innocent from harm during these ordeals.
However, if the plaintiff had witnesses who would swear the defendant committed the act, the defendant might face a trial by ordeal. This involved completing painful or dangerous tasks, such as:
- Carrying a red-hot iron bar
- Retrieving a stone from boiling water
- Putting a hand into flame
- Being thrown into water
If the person completed the task without injury, if their wounds healed quickly, or if they sank in water, they were considered innocent. Otherwise, execution typically followed.
The church eventually condemned trial by ordeal in 1215, and it was abolished by royal decree in 1219. This marked an important step in developing more rational legal procedures and moving away from superstition-based justice.
Transfer to Australia
The British legal system, including common law principles, was brought to Australia with the First Fleet in 1788. Over time, Australia has developed its own body of statute law and common law. However, many fundamental British legal principles remain in the Australian system, particularly the principles of natural justice - the idea that legal procedures must be fair and unbiased.
Development of equity
While common law developed to create consistency, its rigid formality sometimes produced unjust results. Equity developed as a system to correct these injustices.
Problems with common law
The common law courts followed extremely rigid procedures. In Anglo-Saxon times, failing to follow prescribed steps could cause a person to lose their case entirely, regardless of the merits. Later, common law held that people were bound by contracts even if they had made a mistake or been tricked into signing them. The system was becoming too inflexible to deliver justice in all circumstances.
The inflexibility of common law created situations where following the letter of the law produced manifestly unfair outcomes. This rigidity eventually necessitated the development of a parallel system based on fairness and conscience rather than strict procedural rules.
The role of the Chancellor
By the 15th century, people began bringing petitions to the king claiming that common law courts had made unjust decisions. The Chancellor, one of the king's senior advisers, was given responsibility for dealing with these petitions.
For many years, Chancellors were priests as well as judges. Unlike common law judges, Chancellors didn't base their judgments strictly on precedent and formal procedures. Instead, they were influenced by Christian principles of mercy, fairness, and conscience. They looked at the specific features of each case to decide what was fair and just in those particular circumstances.
This new body of law, which developed to address the injustices in common law, became known as equity. The Court of Chancery became the main court administering equitable principles.
Equity is the body of law that supplements common law and corrects injustices by judging each case on its merits and applying principles of fairness. It developed as a parallel system to address situations where strict application of common law rules would lead to unjust outcomes.
Equitable remedies
Equity developed remedies (legal solutions) for wrongs that common law didn't recognise. Many equitable remedies are non-financial. For example, a court exercising equity might:
- Order someone to do what they promised but failed to do (specific performance)
- Set aside an unfair contract
- Prevent someone from doing something that would cause harm (injunction)
- Order someone to account for profits they shouldn't have received
The moral principles that guided equitable decisions were called the rules (or maxims) of equity, and these principles are still used in Australian courts today.
Conflict between common law and equity
The two systems of common law and equity coexisted but didn't always work harmoniously together. In the early 17th century, a major dispute arose between the Chancellor and the Chief Justice of the King's Bench. King James I personally intervened, calling a conference of judges to resolve the matter.
The judges concluded that when common law and equity conflict, equity should prevail. This principle remains fundamental today - equitable rules always override common law rules when they conflict. This ensures that fairness and justice take priority over rigid procedural rules.
Merger of courts
In the 1870s, the British Parliament passed legislation merging the courts of common law and the courts of equity. This meant judges could apply rules from either system (or both) in any particular case. The Australian colonies passed similar legislation, creating a unified court system. Today, Australian judges can apply both common law and equitable principles, with equity taking priority where there is conflict.
The doctrine of precedent
Precedent is the system by which judges use previous court decisions to guide their decisions in current cases. This is perhaps the most important feature of how common law operates today.
What is precedent?
Common law develops through judicial decisions. When judges decide cases, they create legal principles that other courts must or should follow in similar future cases. A judgment that is followed in this way is called a precedent.
Precedent is a judgment that provides authority for a legal principle and serves to guide decisions in cases with similar facts. This system ensures consistency and predictability in the law while allowing for gradual development and adaptation.
The doctrine of precedent is also known by its Latin name, stare decisis, meaning "the decision stands." This captures the idea that once a court has decided a legal issue, that decision should be followed by other courts facing the same issue.
Purpose of precedent
The doctrine of precedent serves several important purposes in the legal system:
-
Fairness and consistency: People in similar situations should be treated similarly by the law. Precedent ensures that judges don't simply decide cases based on personal preference
-
Predictability: When previous decisions guide future cases, people can better predict how courts will resolve legal disputes, making the law more certain
-
Coherent development: The law develops in a logical, step-by-step fashion rather than changing randomly from case to case
-
Limited judicial creativity: Precedent constrains judges from being overly creative or arbitrary in their decisions
Making and following precedent
Understanding how precedents are created and applied is essential to understanding common law.
Creating new precedents
New precedents are created in two main ways.
First, when a court faces a case where no previous decision provides guidance, the judge must create a new precedent. The judge uses principles from existing common law and statute law, pays attention to social developments and common sense, and makes a decision. This new decision becomes a precedent for future similar cases.
Creating new precedents allows the law to evolve and adapt to changing social conditions and new situations that previous courts haven't encountered. This flexibility is one of the key strengths of the common law system.
Second, precedents are created through judicial interpretation of legislation. When there is a dispute about what a statute means or how it applies, a court may need to resolve the question. For example, if legislation requires council approval for removing "trees" from land, does this include dead trees? A court would need to interpret the word "trees" to resolve this question.
While courts aren't strictly bound to follow other courts' interpretations of statutes, they usually do. If Parliament hasn't changed legislation after a court interprets it, this suggests Parliament is satisfied with that interpretation.
Structure of a judgment
When a judge delivers a decision, it contains two distinct parts:
Ratio decidendi (plural: rationes decidendi) - This Latin term means "the reason for the decision." It's the essential legal reasoning that explains why the judge reached their conclusion. The ratio decidendi is the part that creates binding precedent on lower courts. Only this part of the judgment must be followed.
Obiter dicta (singular: obiter dictum) - This Latin term means "things said by the way." These are other remarks the judge makes that aren't directly relevant to deciding the case. For example, a judge might comment on the credibility of a witness or discuss hypothetical scenarios. Obiter dicta don't form part of the decision and therefore don't create binding precedent.
Rules of precedent
Not all precedents have the same force. Some must be followed (binding precedent), while others merely influence decisions (persuasive precedent).
Binding precedent
Binding precedent requires lower courts to follow decisions of superior courts, regardless of whether the judge believes the higher court's decision is correct. This follows from the court hierarchy system.
Binding Precedent in Action:
- New South Wales Local Courts and District Court must follow decisions of the New South Wales Supreme Court
- All state and federal courts in Australia must follow decisions of the High Court of Australia
- Only the ratio decidendi (not obiter dicta) of the superior court is binding
An important exception exists for the High Court of Australia - it is not strictly bound by its own previous decisions, though it usually follows them. This allows the highest court to change the law when necessary to adapt to new circumstances.
Persuasive precedent
Persuasive precedent means a court may use a decision to help make its own decision, but is not required to follow it. Persuasive precedent includes:
- Decisions from lower courts (higher courts can consider but need not follow them)
- Obiter dicta from judges in higher courts
- Decisions from other Australian states
- Decisions from other common law countries like the United Kingdom, United States, Canada, or New Zealand
The higher the court in its own hierarchy, the more persuasive its precedent will be in other jurisdictions.
Jurisdiction refers to the powers of a court, depending on its geographic area, the types of matters it can decide, and the types of remedies it can award. Understanding jurisdiction is essential to knowing which precedents apply in any given situation.
When precedent doesn't have to be followed
While the doctrine of precedent creates stability, it also includes mechanisms for flexibility and development of the law.
Distinguishing
If the facts or relevant points of law in a current case are significantly different from a previous case, the court may distinguish the current case from the earlier one. When a case is distinguished, its ratio decidendi doesn't have to be followed because the cases are materially different.
Reversing
When a higher court upholds an appeal against a lower court's decision, the lower court's decision is reversed. This means the higher court decides the lower court made an error and changes the outcome for the parties involved.
Appeal is an application to have a higher court reconsider a lower court's decision on the basis of an error of law. The appeals process provides a mechanism for correcting errors and ensuring consistent application of legal principles.
Overruling
A court may refuse to follow a decision from another court at a lower or equal level in the hierarchy. This is called overruling the decision. When a precedent is overruled, it loses its authority and will no longer be followed in future cases.
Case study: Gutnick v Dow Jones & Co. Inc. [2001] VSC 305
This case demonstrates how the doctrine of precedent operates in practice and shows how courts create new precedents to address modern issues.
Facts of the case
Joseph Gutnick, a prominent Melbourne businessman, argued that he had been defamed by an article published online. Dow Jones, the defendant, publishes an online news magazine that published an article discussing Gutnick's business dealings. The article alleged that he was involved in money laundering and fraud.
The legal issue
The key legal question was: where did the defamation occur? The article originated in New York, but Gutnick argued he was defamed in Melbourne because more than 300 people accessed the article there.
Defamation is the act of making statements or suggestions that cause damage to a person's reputation in the community. It can occur through various forms of communication, including print media, broadcast, and online publications.
The decision
The Supreme Court of Victoria held that publication occurs when an article is downloaded, not when it is uploaded. Therefore, a plaintiff can bring defamation proceedings in any jurisdiction where the offending statements can be accessed.
Impact of the Gutnick Decision:
The court's reasoning established that:
Step 1: Publication in defamation occurs at the point of download/access, not upload
Step 2: This means defamation can occur in multiple jurisdictions simultaneously
Step 3: A plaintiff may choose to bring proceedings in any jurisdiction where the material was accessed
This created significant implications for online publishers who must now consider defamation laws in every jurisdiction where their content can be accessed.
Significance as precedent
This was one of the first legal cases to examine the internet as a source of defamation. It set an important precedent for several reasons:
- It established that defamation claims can be brought across jurisdictional boundaries when internet content is involved
- It clarified that internet communication is subject to the same defamation laws as other forms of communication
- It attracted significant international interest because it addressed how traditional laws apply to new technology
The decision created a binding precedent for Victorian courts and persuasive precedent for courts in other Australian states and internationally. It demonstrates how courts use the doctrine of precedent to develop law that addresses contemporary issues, even when previous cases didn't specifically deal with internet technology.
Exam technique: analysing common law development
When exam questions ask you to analyse or evaluate aspects of common law:
Understanding Command Words:
-
Analyse: Break down the concept into its components. Explain how different elements work together. For common law, you might discuss how precedent, court hierarchy, and the distinction between ratio decidendi and obiter dicta create a coherent system.
-
Evaluate: Make judgments about effectiveness or limitations. Consider both strengths (consistency, predictability) and weaknesses (potential rigidity, slow adaptation to change) of common law principles.
-
Assess: Weigh up different factors. When assessing the doctrine of precedent, you might discuss how it balances stability (through binding precedent) with flexibility (through distinguishing and overruling).
Always support your points with specific examples, such as the Gutnick case, to demonstrate understanding of how principles operate in practice.
Key Points to Remember:
-
Common law has three meanings: judge-made law, law from common law courts (as opposed to equity), and the legal system used in former British colonies
-
Equity developed to correct injustices in common law and is based on fairness and moral principles; when common law and equity conflict, equity prevails
-
Precedent means judges must follow decisions from higher courts in similar cases; this is called stare decisis ("the decision stands")
-
Ratio decidendi (reason for decision) creates binding precedent; obiter dicta (remarks made in passing) only creates persuasive precedent
-
Binding precedent must be followed by lower courts; persuasive precedent may influence decisions but need not be followed
-
Courts can avoid following precedent by distinguishing cases (showing material differences), reversing decisions on appeal, or overruling decisions from equal or lower courts
Key Terms:
- Precedent: A judgment providing authority for a legal principle
- Stare decisis: "The decision stands" - the doctrine that decisions must be followed by lower courts
- Ratio decidendi: The legal reason for a judge's decision
- Obiter dicta: Comments not directly relevant to the case
- Equity: Law that supplements common law by applying fairness principles
- Jurisdiction: The powers of a court based on geography, matter type, and available remedies
- Appeal: Application to have a higher court reconsider a lower court's decision