David Yangs ILJ Notes

FOUNDATIONS
OF LAW
DAVID YANG
Table of Contents
The Overview of the Australian Legal System.......................................................................................... 2
The Courts in Action .................................................................................................................................. 4
Common Law Courts: History and Method .............................................................................................. 8
The Royal Courts and the Development of a Common Law ...................................................................... 8
The Early Lawyers and the Development of Law Reporting .................................................................... 11
The Doctrine of Precedent and the Development of the Common Law ................................................... 14
Introduction to Intentional Torts ............................................................................................................... 16
The Rise of the Tort of Negligence .......................................................................................................... 22
Introduction to Statutory Interpretation .................................................................................................. 25
Conflicts between King, Parliament and the Common Law .................................................................. 29
The Idea of Law in the Civil War and the Glorious Revolution ................................................................. 29
The Development of the Idea of the Rule of Law..................................................................................... 32
The Impact of Settlement on the Indigenous Inhabitants ...................................................................... 34
The Settlement of NSW and the Reception of English Law ................................................................... 38
The Development of Parliamentary Democracy and the Federation .................................................... 41
The Constitutional Framework of the States and the Move to Independence .......................................... 41
The Commonwealth Constitution and Federalism in Action..................................................................... 44
Precedent and Change ............................................................................................................................. 49
Independent Attitudes, Race and Justice ................................................................................................ 49
Theories of Judicial Decision Making and the Doctrine of Precedent ...................................................... 53
Theories of Judicial Decision Making and Classification of Australian Law........................................ 55
The Public/Private Distinction and the Role of Public Policy .................................................................... 55
The Modern Distinction between Law and Equity .................................................................................... 57
Page 1 of 59
Overview of the Australian Legal System
Required reading
Prue Vines, Law and Justice in Australia: Foundations of the Legal System (Oxford University Press, 2nd
ed, Melbourne, 2009), pp. 3-16 (Chapter 1); pp. 17-32 (Chapter 2).
Introduction (pp. 3-4)

The purpose of law is to ensure justice. A basic principle of justice is the doctrine of the rule of law which
aims to prevent the arbitrary use of power.
Henry and Susannah Kable
The Kables were prisoners being transported to Australia. They deposited money with their ship’s
captain but the money disappeared.
Under English law, the Kables were ‘civilly dead’ due to the doctrine of attainder.
However, they were allowed to sue and this because the first civil case in Australia.
A snapshot of the current Australian legal system (pp. 5-8)

Much of Australian law is derived from Britain.
A system of representative democracy using parliaments to make laws
Australia uses a system of representative democracy whereby people vote for representatives
who sit in parliament and make laws.
A legal profession divided either formally or informally into solicitors and barristers
There is an informal distinction between solicitors, who advise clients and barrister, who appear in
court.
A ‘common law’ system
The term ‘common law’ has three meanings:
1. The common law legal system which is a legal system derived from England as opposed
to civil law (French, Germany etc.) or other legal systems.
2. Common law also refers to the fact that judges make law based on decided cases. This is
known as the system of precedent.
3. Common law also refers to particular branches of law:
Common law.
Equity.
Decision-making in courts after an adversarial trial
The adversarial system use juries to decide matters of fact.
A court system for dispute resolution
Disputes are resolved in courts through juries and judges.
The distinctiveness of Australian law (pp. 8-9)

A federal system made up of a Commonwealth and states and territories
Australia became a federation in 1901. This federal structure divides power between the state and
Commonwealth parliaments.
Limited recognition of Indigenous customary law
There is limited recognition of Indigenous customary law in Australia.
Since Mabo v Queensland (No 2),1 the High Court overruled the doctrine of terra nullius
and allowed for a system of native title rights.
R v Wedge [1976] 1 NSWLR 581
Affirmed the decision in R v Murrell,2 that the plea of no jurisdiction has no substance.
1
(1992) 175 CLR 1.
Page 2 of 59
‘The civil rights of all subjects of the King in NSW whether white or Aboriginal, were equally
entitled to the protection of the criminal law; and secondly, that the jurisdiction of the
Supreme Court of NSW extended to all persons in NSW’.
Australian law as an example of a common law system among other systems

of law (pp. 17-22)
Legal traditions
Each legal system has unique characteristics; many characteristics are also shared. Examples of
other legal systems include:
Islamic law:
Muslim law which is derived from the religious teachings of Islam. This body of law is
known as the Sharia or the path of life to follow.
Talmudic law:
Law derived from the first five books of the Bible.
Civil law: (Germany, France, Italy etc.)
Civil law legal systems use the inquisitorial process of trial rather than the
adversarial system.
Most law is codified and it does not recognise the role of judges as a source of law.
Customary law:
Refers to the legal system of Indigenous peoples. This is often based off spiritual and
cultural connections to the land.
International law (pp. 23-32)

International law refers to the law between countries or states. It is derived from:
Customary international law.
Treaty (or convention) law.
Signing a treaty does not bind the state. It requires the ratification:
This involves lodging a formal document with the body nominated in the treaty.
International law and its relationship with municipal law
There are two basic theories about the relationship between municipal and international law:
Monism: international law automatically binds a country domestically and enters into the
domestic law of the country because all law is part of a universal legal order.
Dualism: the two legal systems are entirely distinct and so before an international treaty can
become part of the domestic law; it normally has to be incorporated into domestic legislation.
Most countries such as Australia, UK and Canada take the dualist view.
Minister of State for Immigration and Ethnic Affairs v Ah Hin Teoh (1995) 183 CLR 273
The ratification of an international convention can be the basis of a legitimate expectation as
parliament, prima facie, intends to give effect to it. Therefore, if a decision-maker’s ruling is
inconsistent with a legitimate expectation; procedural fairness requires that persons affected will
be given notice and an adequate opportunity to contest that course of action.
Note: the High Court has been reluctant to follow Teoh.
However, in Plaintiff S 157/2002 v Commonwealth,3 Gleeson CJ referred to Teoh
when he observed: ‘First, where legislation has been enacted pursuant to, or in
contemplation of, the assumption of international obligations under a treaty or
international convention, in cases of ambiguity a court should favour a construction
which accords with Australia’s obligations’.
2
(1836) 1 Legge 72.
3
(2003) 211 CLR 476, [29] (Gleeson CJ).
Page 3 of 59
The Courts in Action
Required reading
Prue Vines, Law and Justice: Foundations of the Legal System (Oxford University Press, 2nd ed,
Melbourne, 2009), pp. 269-272 (Chapter 11); pp. 295-327 (Chapter 12).
Adversarial and inquisitorial procedures (pp. 269-272)

Adversarial
A type of legal system found in common law jurisdictions that is characterised by opposing
parties arguing their case before a neutral third party (a magistrate, judge and/or jury).
Complex rules regarding evidence – judges make rulings on admissibility of evidence.
Courts are not permitted to make enquiries or use their own personal bias.
Where there is a jury, the judge directs them on the law that they should apply to the facts..
Inquisitorial
A type of legal system found in civil law jurisdictions that is characterised by a judicial offer having
responsibility for the pre-trial investigations, and the conduct of the trial.
The judge has an active role and may:
Direct parties to present witnesses or collect evidence.
Question witnesses.
Minimal rules of evidence.
Juries are rarely used.
Jurisdiction (pp. 297-299)

Jurisdiction refers to the scope of a body’s power to hear a matter, determine what the facts are, and apply
the law to make a judgement.
It includes the range of power and the territorial boundaries for the use of such power.
No court can hear a matter over which is does not have jurisdiction.
Jurisdiction is defined by statutes.
In NSW, the Supreme Court jurisdiction is unlimited.4
State courts (pp. 299-303)

Supreme courts
The Supreme Court is a superior court of record with general jurisdiction.
It has unlimited jurisdiction unless a statute limits it.
It has an inherent power to regulate its own procedures, the right of the audience before it
and to grant bail.
Its decisions cannot be void; they must be set aside by writ of error or appeal.
It deals with very serious indictable offences such as murder and treason.
It deals with civil matters which are outside the jurisdiction of lower courts.
In the civil sphere, the court may hear appeals as a single judge or as the constituted Court of
Appeal.
In the criminal sphere, appellate jurisdiction is exercised by the Court of Criminal Appeal.
It may hear appeals from tribunals and specialist courts.
Intermediate courts
District or County Courts are intermediate courts of record with jurisdiction limited by their enabling
act.5
4
Supreme Court Act 1970 (NSW) s 23 – ‘The Court shall have all jurisdiction which may be necessary for the administration of justice in New South
Wales’.
5
District Court Act 1973 (NSW).
Page 4 of 59
Original jurisdiction:
Criminal: most indictable offences.
Civil: monetary value up to $750,000 unless both parties consent.
Unlimited jurisdiction over motor accident matters.
Appellate jurisdiction:
Not all intermediate courts have appellate jurisdiction.
The larger states – Qld and NSW allow appeals from the Magistrates (local) Court.
Magistrates (local) courts
Magistrates (local) courts are inferior courts and are where the majority of cases are heard. Its
jurisdiction is limited by its enabling act.6
Criminal:
Summary offences.
Committal hearings for indictable offences.
Coronial issues (Coroner’s Court).
Children’s issues (Children’s Court).
Traffic matters.
Civil: small claims up to a monetary value of $60,000 unless both parties consent.
State tribunals and specialist courts
Each state tribunal will have legislation pertaining to its jurisdiction and the process of appeal.
Examples include the Drug Court in NSW.
Federal courts (pp. 304-308)

The High Court
The High Court is a superior court of record with a defined jurisdiction. It is the highest point of
appeal.
Original jurisdiction:7
Matters arising under any treaty.
Matters affecting consuls or representatives of other countries.
Matters where the Commonwealth is a party.
Matters between states or between residents of different states.
Matters in which a writ of Mandamus or prohibition or an injunction is sought against a
Commonwealth officer.
Appellate jurisdiction: over any matter which has been granted special leave to appeal and
requires:
A question of law that is of public importance.
A necessity to resolve differences of opinion in lower courts.
A determination for the administration of justice.
The Federal Court of Australia
The Federal Court is a superior court of record of law and equity with defined jurisdiction.
Original jurisdiction: in areas including: (Note: its criminal division is minor and incidental).
Bankruptcy.
Trade practices.
Federal administrative law.
Admiralty.
Corporations law.
Civil jurisdiction over tax disputes.
Native title.
6
Local Courts Act 1982 (NSW).
7
Commonwealth Constitution s 75.
Page 5 of 59
Intellectual property.
From a single judge as of right.
From the Norfolk Island Supreme Court.
From the Federal Magistrates Service (in non-family law matters) as of right.
From State Supreme Courts exercising federal jurisdiction.
Leave to appeal must be sought in interlocutory matters.
The Federal Court also has accrued jurisdiction which means that matters of state jurisdiction but
are related to a Federal Court claim. This means the Federal Court can decide cases provided:
It is within its jurisdiction.
The ground is genuine and material.
It is not completely separate from issues which are not within its jurisdiction.
Federal Magistrates Court
The Federal Magistrates Court was established in 1999 and exercises only civil jurisdiction.8
It has the power to award up to $750,000 in damages.
Family law, child support, parenting orders and determination of parentage.
Property disputes with a monetary value less than $300,000 unless both parties consent.
Concurrent jurisdiction with Federal Court on matters of administrative law, bankruptcy,
human rights, piracy and trade practices.
Family Court
The Family Court is a federal superior court with limited jurisdiction.9
It has accrued jurisdiction at times.10
Matrimonial causes.
Marriage.
Custody of children.
Maintenance of spouses and children (and adoption in ACT and Norfolk Island).
Appeals from the Federal Magistrates Court as of right.
Appeals from a single judge in the Family Court.
Federal tribunals
Tribunals exercise administrative, not judicial power and have a statute outlining jurisdiction.
They are subject to review in the Federal Court of Australia.
Examples: Administrative Appeals Tribunal and the Social Security Appeals Tribunal.
Federal-state court interaction (pp. 309-310)

State and federal jurisdiction often overlap:
The state court will have jurisdiction as s77 of the Commonwealth Constitution provides for state
courts to exercise federal jurisdiction (“autochthonous expedient”) unless a statute has removed
jurisdiction.
Federal courts cannot be vested with non-federal jurisdiction (the Cross Vesting Scheme which
vested state courts with federal jurisdiction and federal courts with state jurisdiction was
invalidated.11 Federal courts cannot hear a non-accrued state matter.
8
Federal Magistrates Act 1999 (Cth).
9
Family Law Act 1975 (Cth).
10
Smith v Smith (1985) 8 Fam LR 283; Smith v Smith (1986) 161 CLR 217.
11
Re Wakim: Ex parte McNally (1999) 163 ALR 270.
Page 6 of 59
Adversarialism and the court experience (pp. 318-326)
Equity and access
Equal access to justice is an important aspect of the legal studies.
The main issues regarding to access are costs and cultural and language barriers.
The court is a foreign place due to the complexity of the legal language and procedures.
The courtroom is designed to exemplify the structure of power:
Judges sit in elevated positions underneath a coat of arms.
Juries sit above the rest of the room but below the judge.
Judges and barristers wear robes or wigs.
The accused sits in the dock.
Rights to interpreters
The Australian common law recognises some limited rights to interpreters and judges exercise
discretion as to whether or not an interpreter is used.
In criminal cases, the test is whether the accused will receive a fair trial (including the need
for juries and the accused to hear and understand evidence).
In civil cases, there is no automatic right to an interpreter except for where a statute has
ensured it.
Witnesses have even less rights to interpreters. The judge uses discretion to determine if it is
needed so that evidence can be put fairly and fully before a court.
Judges are not qualified to asses language proficiency. Research suggests that most migrants do
not possess the level of efficiency required for court and that judges overestimate language abilities.
Issues with interpreters:
Expensive.
Interpreting puts another person in between the court and the witness. It stops the court from
forming its own view about the testimony of a witness.
Non-verbal communication and cultural patterns in the courtroom
Non-verbal communication such as eye-contact and facial expression. These differ between
cultures and may be misunderstood in court.
For example it is conventional to look at a person when talking in western culture, however
in Asian and Indigenous cultures, it is rude to do so. Shifting eye contact may be construed
as dishonesty.
It is extremely important for judges to be aware of their cultural biases and be careful about
assumptions regarding body language.
Thee advantage of seeing and hearing a witness is that the trial judge is in a better position
to determine credibility than an appellant judge. Therefore, unless the trial judge has “failed
to use or palpably misused his advantage” the finding of fact by the trial judge will stand.12
12
Devries v Australian National Railways Commission (1993) 177 CLR 472; Rosenberg v Percival (2001) 178 ALR 577.
Page 7 of 59
The Royal Courts and the Development of a Common Law
Required reading
Prue Vines, Law and Justice: Foundations of the Legal System (Oxford University Press, 2nd ed,
Melbourne, 2009), pp. 35-58 (Chapter 3); pp. 60-62 (Chapter 3).
Introduction (pp. 35-36)

The common law was developed in English by a series of courts in 1066:
The Romans left few traces on the legal system.
The Anglo-Saxons left the writ, the sheriff, the notion that the king and the people were all subject
to law and the King’s Peace.
The effect of Norman Conquest (pp. 36-38)

The Norman Conquest had a profound effect on the English legal system:
Feudalism is a system of mixed landholding and lordship, so that the landholder owed duties to the
lord whose land he held, and the lord offers protection.
The system is pyramidal – the ultimate lord was the King of England because all of the land
was his and the lords hold it of him.
He kept control of administration, politics, military, marriage and succession.
Manorial justice developed as a system in which the lord held court for the peasants.
Baronial justice developed as a system for tenants further up in the feudal pyramid.
Royal justice (pp. 39-42)

Royal justice would be used when local dispute resolution failed.
The Curia Regis (p. 42)

The Curia Regis is the King’s Court which consisted of a group of advisers including judges and barons.
Operated in his absence but by his authority.
The royal justice system (pp. 43-44)

Henry ll added to the royal justice system:
He added to the itinerant justice system of sending judges in ‘eyre’. This consisted of sending
judges to investigate the administration of the country. They examined the sheriff’s accounts, the
coroner’s’ activities, payment of taxes and judicial work.
5 judges remained at Westminster to hear matters (‘Justices of Westminster’).
In 1215, the Royal Courts were:
The Exchequer: finance.
The Court of Common Pleas: heard matters about land (held a monopoly on all actions
about land), recovery of property and debt.
The King’s Bench: followed the King and heard matters such as trespass and felonies
(breaches of the King’s Peace).
Trial by jury (pp. 44-46)

In Medieval England, proof was based on religion that God would ensure that the right prevailed.
The Normans brought trial by battle.
Henry ll chose ‘recognition’ or trial by jury by 12 knights, the ‘grand assize’ (this was only
available in the royal courts).
Page 8 of 59
The Magna Carta 1215 (pp. 47-48)
The Magna Carta (‘Great Charter’) is the foundation of English constitutional law and remains part of the
law in all the Australian jurisdictions. Its purpose is to limit the arbitrary use of power.
King John was forced to sign it in 1215 as he abused many powers of the Crown.
The document demonstrated that even the king could be restrained.
Chapter 39 “No freeman shall be taken or/and imprisoned or disseised, or exiled, or in any way destroyed
nor will we go upon him nor will we send upon him, except by the lawful judgement of his peers or/and by
the law of the land.”
Modern parliaments and lawyers interpret clause 39 to mean the right to trial by jury and as a
rhetorical call for freedom.
Prisoners A-XX (inclusive) v NSW (1995) 38 NSWLR 622
Facts:
50 prisoners brought an action seeking access to condoms while they were in jail. They
argued that this contravened ch 29 of the Magna Carta 1215.
However, this did not ‘provide a statutory basis for saying that the denial by prison authorities of
access by prisoners to condoms is unlawful.
The link between not supplying condoms and denying justice is too far. The framers of the
Magna Carta 1215 did not have this in mind.
The church (pp. 51-53)

Ecclesiastical courts
Religion was heavily embedded in medieval England. William separated the courts into spiritual
(church) and temporal (non-church) courts.
The Church or ecclesiastical courts applied canon law (derived from Roman law and was
based on the Bible and statutes of the Church).
The Church courts had jurisdiction in relation to marriage, divorce, legitimacy of
children, wills and passing of personal property on death and punishment of mortal
sins (such as gluttony, adultery and fornication).
The Church courts tried to claim jurisdiction of all matters involving clerics
Henry ll wished to assert his supremacy to the Pope by creating the Constitutions of Clarendon
1164 and appointing Thomas a’Beckett to Archbishop of Canterbury.
a’Beckett opposed Henry ll’s claim of control over the Church courts.
He was murdered by royalists and renounced parts of Clarendon that offended the church.
Benefit of the clergy
If an accused could recite a passage of the psalter, they were registered as clergy and escaped a
death sentence.
Sanctuary and abjuration
Trial or confess (in writing) to the coroner, and then take an oath to ‘abjure the realm’. If he took the
oath, he would be allowed to go safely to a designated port, then leave within a set time, or be
hanged.
The legal effect was same as execution – goods were forfeited and wife was regarded as a widow.
Women’s place (pp. 54-55)

Until the Married Women’s Property Acts (in the UK from 1870; in Australia from 1878), women were
classed as femes covert which meant that by marriage, the husband and wife are one person in law.
Page 9 of 59
Major divisions of Anglo-Australian law: the rise of equity and the
civil/criminal distinction (pp. 58-62)
Equity
Until the 14th century, if justice did not appear to be done, a litigant appealed to the King in Council
(‘Curia Regis’) who referred this to the courts of equity (or the Chancery).
The Lord Chancellor’s court decoded matters on the basis of conscience rather than common law
and exercised royal power which allowed him to make almost any judgement.
By the 18th and 19th centuries, Equity became a rigid and complex set of rules which were enforced
by different courts. Litigants had to choose whether they will seek a remedy in the common law
courts of equity courts.
This created difficulties as many cases involved common law and equity.
Women and equity
Equity recognised married women’s separate estate, and in relation to that restate recognised the
married woman’s rights of disposition and testation.
Crime
There is a clear distinction between criminal and civil law:
Criminal: action instigated by a state authority with the view of determining beyond
reasonable doubt the guilty of a person alleged to have committed a crime.
Civil: action instigated by individuals or groups of individuals. The State acts as a neutral
arbiter.
In the time of Henry ll, a system of writs, procedures and common law arose. A writ of trespass
replaced trial by appeal and allowed litigants to collect damages and placed the initiation of criminal
trials at the hands of the King.
The King’s Peace:
Extended to everyone.
When one committed a crime, he was disturbing the King’s Peace.
State prosecuted.
Serious crimes were no longer considered as torts which only required compensation, but as
a crime against society.
Page 10 of 59
The Early Lawyers and the Development of Law Reporting
Required reading
The forms of action (pp. 63-68)

In order to access royal justice, complainants were required to pay for a writ from the Chancery which
authorised the proceedings.
Litigants were required to have the correct writ – the particular court must recognise the writ and the
facts on which the litigant wished to base an action upon must match the form of writ.
A person who could not find a writ to suit his problem could not attain a remedy.
JURISDICTION OF THE ROYAL COURTS
King’s Bench Common Pleas Exchequer
13th Century Actions against the King Recovery of property or Debts to the Crown.
(e.g. trespass). debts not involving the Actions by or against
Debt recovery. King. exchequer officials.
Errors of courts of Monopoly on land.
record. Trespass.
Actions were the sheriff
was located.
15th Century As above. As above. As above.
Actions of ejectment (for Fictional servants of
recovery of land) and exchequer.
action on the case (for
non-payment of debt).
A court’s revenue depended on how many cases they hear. This meant that each court wanted to expand
its jurisdiction.
The King’s Bench heard relatively few cases as it did not have jurisdiction over land or debt
recovery. It expanded its jurisdiction to include these in the 15th century.
Used a bill of procedure which was a petition directly addressed to a court to commence an
action. These bills were available in jurisdictions where the sheriff was located.
Forms of action become causes of action
Parliament abolished writs in the 19th century. This evolved to become causes of action:
The cause of action must fit certain required elements for it to be heard.
For example, assault or battery may be causes of action.
Trespass and case
Trespass referred to any wrong to a person. At the time of writs, trespass mainly referred to
trespass vi et armis (with force and arms), which meant violence against the King’s Peace (violent
crimes).
Trespass on the case provided an action for indirect harm.
The distinction between trespass and case remains however - harm must be proved for an action
on the case, while for trespass one need only to prove the act itself.
The rise of the legal profession and the doctrine of precedent (pp. 68-70)
During the time of Henry ll, parties in the common law courts appeared themselves or were represented by
a friend or answerer (a responsalis). During the 13th century, attorneys began to act as agents for the
litigants:
13th century attorney – brought the writ and got access to the court and did the pleadings.
Late 13th century – attorney’s role is split:
Page 11 of 59
Attorney: preparatory work.
Narrator: oral work.
15th century – ‘serjeants-at-law’ and barristers emerged.
Judges could only be chosen from Serjeants.
Barristers had the right of audience in the King’s Bench and could call in a serjeant for a
difficult case.
Lawyers learnt through sitting in the court and listening.
They progressed from apprentice of the law inner barrister outer barrister readers
benchers serjeant-at-law and judges.
Early legal procedures
Procedure and technicalities were very important at the time of the writs. The process was as
follows:
Began with a count – had to stick closely to the writ.
The defendant would argue exceptions to the writ or the facts. The plaintiff would then
respond (‘replication’).
If the replication was successful, the defendant would have to ‘traverse’ (deny the facts) or
to ‘confess and avoid’ (acknowledge some facts and deny others).
If the plaintiff was defeated on one point of law he was ‘non-suited’.
This process was designed to bring the parties to a:
Joinder of issue: a single fact which could be turned over to the jury.
Demurrer: a single legal issue which the parties agreed on and would allow the judge to
determine it.
Law reporting (pp. 73-78)

Since the common law system employs precedent, it is very important to report the decisions of the court.
In England the Council of Law Reporting reported cases by the superior courts.
These cases were checked by courts before publications, and thus these reports are called
the authorised reports.
The law reports of today are a comprehensive account of the facts, issues, arguments and the
judge’s reasoning and conclusion.
J P Dawson13
Before the introduction of authorised reports, Judges and lawyers mostly cited cases from their own
memory.
The main law reporters were:
Edmund Plowden: first English lawyer to public a set of reports with a high standard of care
and accuracy.
These were written during the shift from oral to written reports.
Sir James Dyer: these reports were private notes and were not intended for publication. But
they gave good insight into the private world of judges.
Sir Edward Coke: these reports concluded with the set of rules the judges adopted and the
precedents set.
The need for law reform (pp. 78-79)

By the 19th century, the rigidity of the forms of action made courts difficult to use. The distinction between
common law and equity brought up similar difficulties (common law cases couldn’t be heard in equity
courts, and vice versa). Thus, if someone brought a form of action in both areas, they would have to work
through both courts. This was expensive, time-consuming and often useless. To solve these difficulties, the
following reforms were implemented:
13
J P Dawson, The Oracles of the Law (University of Michigan Law School, 1968) 8.
Page 12 of 59
Forms of action were abolished by the Uniformity of Process Act 1832, whereby there was one form
of writ in which the plaintiff could insert a form of action.
By the Common Law Procedure Act 1852, different causes of action could be joined together in the
one writ, and the same writ could be used in any of the royal courts.
The Judicature Act 1873 abolished the central courts and created a single High Court in England. It
also provided that common law courts could administer equity, and vice versa. All the
Australian jurisdictions took up the Judicature Act at varying times, NSW being the last with its
Supreme Court Act 1970.
Forms of action were replaced by causes of action. The difference is that today it is possible to
plead an alternative so that if the pleadings in one cause of action fail, the court can, at the same
time, consider whether the facts meet the requirements of the alternative cause of action.
Page 13 of 59
The Doctrine of Precedent and the Development of the Common Law
Required reading
ed, Melbourne, 2009), pp. 328-337 (Chapter 13).
Introduction (p. 328)

The doctrine of precedent refers to the way judges make ‘common law’ and decide cases by referring to
previous decisions.
This is known as stare decisis.
The classic formation (pp. 328-331)

The formal rule of precedent is that courts must apply or follow the ratio decidendi of higher courts in the
same hierarchy.
Ratio Decidendi
Refers to the reason for the decision or rule.
The ratio (precedent) may be:
Applied or followed.
Distinguished.
Overruled.
Considered.
Cited: referred to the case without consideration.
Obiter Dicta
Refers to comments made that do not form the ratio.
What is binding? (pp. 321-332)

In some cases, several judges provide rulings on the case. The outcome is decided by the majority opinion.
However, the ratio can be difficult to identify when multiple judges agree on the same outcome with
different reasoning.
The ratio will usually be the narrowest version of the rule which most judges agreed with and which
led to the same outcome.
‘Determining the ratio decidendi of a judicial decision becomes a more complex task when multiple
concurring reasons are published by several judges for joining in the court’s orders in a given case.
In such case, the ratio must be derived from the essential areas of agreement legally necessary
to the decision, found within the reasons of the judges in the majority. Sometimes, as the Privy
Council observed of a High Court decision, this can be a doubtful or even impossible exercise’.14
The hierarchy of authority (pp. 332-333)

Courts are bound by the decisions of higher courts in the same hierarchy.
Decisions from different hierarchies will provide a persuasive precedent which may or may not be
followed.
Precedent and change (pp. 334-337)

Laws change and adapt to different social circumstances. The central paradox of the doctrine of precedent
is that consistency in cases can also lead to significant changes.
14
Michael Kirby, Precedent Law, Practice and Trends in Australia.
Page 14 of 59
Dorset Yacht Co Ltd v Home Office [1970] AC 1004
‘This function, which judges hesitate to acknowledge as law-making, plays a most a minor role in
the decision of the great majority of cases…’
The first step is an inquiry of existing authorities as new law ‘[does] not spring into existence
overnight’.15
15
Hedley Byrne & Co Ltd v Heller & Partners Ltd [1964] AC 465, 525 (Lord Devlin).
Page 15 of 59
Introduction to Intentional Torts
Required reading
‘Introduction to Intentional Torts’ and ‘Defences to Intentional Torts’ in Sappideen, Vines, Grant & Watson,
Torts: Commentary and Materials (Lawbook Company, 10th Ed, Sydney, 2009)
Tuberville v Savage (1796) 1 Mod 3

Scott v Shepherd (1773) 3 Wils 403
Barton v Armstrong [1969] 2 NSWR, 451
Zanker v Vartzokas (1998) 34 A Crim R 11
Rixon v Star City Pty Ltd [2001] NSWCA 265 (28 September 2001)
Balmain New Ferry Co Ltd v Robertson (1906) 4 CLR 379
Introduction to intentional torts

A tort is a civil wrong.
‘The law of torts concerns the obligations of persons living in a crowded society to respect the
safety, property, and personality of their neighbours’.
Historical background:
Two main types of interference with the person:
Trespass
Action on the case
Main distinction was between direct and indirect harm.
‘If a man throws a log into the highway, and in that act it hits me; I may maintain trespass,
because it is an immediate wrong; but it as it lies there I tumble over it, and receive an injury
I must being an action upon the case’.16
Intentional torts
A category of torts that requires defendants to possess intention:
Intentional torts against persons.
Assault
Battery
False imprisonment
Intentional torts against property
Note: the main distinction in modern torts is whether the action was intentional.
Defences to intentional torts

Consent
Consent is the primary defence to an intentional tort. There are two types of consent:
a) Express: signing a consent form.
b) Implied: depending on circumstances.
“In respect of physical contact arising from the exigencies of everyday life – jostling in
a street, social contact and the like – there is an implied consent ‘by all who move in
society and so expose themselves to the risk of bodily contact’, or that such
encounters fall ‘within a general exception embracing all physical contact which is
generally acceptance in the ordinary conduct of daily life.”17
Consent must be real and freely given.
16
Reynolds v Clarke (1726) 93 ER 747, 748 (Fortescue CJ).
17
Marion’s Case (1992) 175 CLR 218, 310-11 (Mason CJ, Dawson, Toohey and Gaudron JJ).
Page 16 of 59
Real consent refers to the individual having sufficient knowledge to understand the
interference that they are consenting to.
Freely given refers to consent given without misleading information or fraud.
Individuals must have a legal capacity to consent.
Self defence
Two elements must be established for self defence:
a) Reasonable apprehension of physical aggression to himself or herself or another person.
b) The forced used must not exceed what is reasonably necessary.
Self defence exists if the defendant believed their conduct was necessary (even if they were
wrong) and as long as the response was proportionate to the situation.
a) ‘It is whether the accused believed upon reasonable grounds that it was necessary in self-
defence to do what he did.’18
Assault
Assault is defined as ‘a direct threat by the defendant that causes the plaintiff reasonably to apprehend
some imminent contact with his or her person’.19
Conditional threats can constitute an assault.
Police v Greaves: the defendant pointed a knife and said ‘don’t you move. You come a step
closer and you will get this straight through your guts’.20
Battery
Battery is defined as ‘a direct act by the defendant causing bodily contact with the plaintiff without his or her
consent’.21
False imprisonment
False imprisonment is defined as a ‘direct act by the defendant that totally deprives the plaintiff of his or her
liberty without lawful justification’.22
Fullagar J described the ‘mere interference with the plaintiff’s person and liberty’ as prima facie
constituting ‘a grave infringement on the most elementary and important of all common law rights’.23
A plaintiff can still be successful in a claim for false imprisonment even in circumstances where the
plaintiff was, during the time of imprisonment, not conscious of that fact the he or she was
imprisoned.24
Tuberville v Savage (1796) 1 Mod 3

Reasoning, Rules ‘If it were not assize-time, I would not take such language from you’.
and Resources This demonstrated a lack of intention.
If one intends to assault, strikes at him but misses, it is assault because there was
intention.
Conclusion There was no assault.
Ratio Decidendi Words can negate what would otherwise be an assault.
Intention is necessary for there to be an action for assault.
Scott v Shepherd (1773) 3 Wils 403
Material Facts The defendant threw a lighted squib containing gunpowder and other combustible
materials into the marketplace. The squib fell upon the stall of William Yates.
James Willis, in preventing injury to himself and to Yates threw the squib away. It
18
Zecevic v Director of Public Prosecutions (Vic) (1987) 162 CLR 645, 661 (Wilson, Dawson and Toohey JJ).
19
Davies and Malkin, Torts, p 548.
20
[1964] NZLR 295.
21
Davies and Malkin, Torts, p 544.
22
Davies and Malkin, Torts.
23
Trobridge v Hardy (1955) 94 CLR 147, 152 (Fullagar J).
24
Meering v Grahame-White Aviation Co Ltd (1919) 122 LT 44.
Page 17 of 59
landed at the stall of James Ryall. Ryall, in preventing injury to himself and his
property threw it away where it hit the plaintiff in the eye.
Issues Whether an trespass vi et armis lies upon the defendant.
Whether the damages sustained was a direct cause of the defendant’s act
or whether it was consequential.
Whether James Ryall should be held liable for the damages.
Reasoning, Rules Analogies:
and Resources Nares J: ‘If a man turns out a mad bull, ox, or any other wild or mischievous
beast towards A who turns the brute towards B who turns it again towards
C whom it hurts, he who was the first actor and turned out the beast is
answerable in trespass vi et armis’.
Reasoning:
Nares J: ‘the nature of the act, the time and the place when and where it
was done, make it highly probably that some personal damage would
happen there’.
Nares J: ‘the defendant is the only wrong doer; his act put Willis and Ryall
under an inevitable necessity of acting as they did, so neither of them is
liable…’
Conclusion Judgement for the plaintiff.
Ratio Decidendi Where there is, or is not intent to cause harm to someone, and harm is caused to
another by the first act of a person (and intervention is by a necessity to protect
themselves or their property), there is no novus actus intervenis (‘new intervening
act’). It will constitute a continuation of the initial act (i.e. considered a single act
by whom initiated it).
In order for a novus actus intervenis to exist, the intervening act must have been
done by a free agent (and not someone acting out of necessity).
Case applied or Ruddock and Others v Taylor [2003] NSWCA 262
followed by The Minister who cancelled the visas (without cause) were the ‘real’ and
‘proximal’ cause of detention and therefore liable for false imprisonment.
Barton v Armstrong [1969] 2 NSWR 451
Material Facts The defendant was a member of the Legislative Council. He threatened the plaintiff
with death if he did not sign a business contract. Continuous threats were made
over the telephone at night time.
Issues Whether the defendant is liable for damages in an action for assault.
Whether threats over the telephone can constitute an assault.
Whether the threat or apprehension of harm must be immediate.
Whether the defendant had the means or ability to carry out the threat.
Reasoning, Rules Four elements of assault:
and Resources 1. There must in every case be a present ability on the part of a defendant to
carry out the threat.25
2. Threatening acts do not constitute an assault unless they are of such a
nature as to put the plaintiff in fear or apprehension of imminent violence.
3. Words accompanying an act may render harmless that which otherwise
would be an assault.26
4. The intent to do violence must be expressed in the threatening acts not
merely threatening speech.
The essence of assault is the expectation raised in the mind of the victim of
physical contact from the threat of the defendant.
Non-immediate threats:
Taylor J: ‘Some threats are not capable of arousing apprehension of violence in
the mind of a reasonable person unless there is an immediate prospect of the
25
Stephens v Myers (1830) 172 ER 735.
26
Tuberville v Savage (1796) 86 ER 684
Page 18 of 59
threat… Others… can create the apprehension even if it is made clear that the
violence may occur in the future’.
Dependent on the circumstances of each case.
In the present case:
To constantly telephone a person in the early hours of the morning, and to
threaten him, not in a conversational tone, but in an atmosphere of drama
and suspense will instil fear in a reasonable person and there for constitute
an assault.
Note the reasonable person test: would a reasonable person in the plaintiff’s
position honestly and genuinely fear imminent (or in some cases, future) harm.
Conclusion Judgement in favour of the plaintiff.
Ratio Decidendi Threats constitute an assault as they affect the victim psychologically.
Threats over the telephone can constitute assault.
There does not need to be actual means or intent to carry out the threat. It
is sufficient that the victim reasonably perceived the means or intent.
The feared or apprehended harm does not have to be of an immediate nature.
Taylor J: ‘[Some threats] can create the apprehension even if it is made
clear that the violence may occur in the future, at times unspecified and
uncertain’
Taylor J: ‘The effect on the victims mind is the material factor and not
whether the defendant had the intention or means to follow it up’.
Obiter Dicta ‘Physical violence and death can be produced by acts done at a distance by
people who are out of sight and agents hired for that purpose’.
Zanker v Vartzokas (1988) 34 A Crim R 11
Material Facts A young woman accepted a lift from the defendant. As the van accelerated, the
defendant offered her money and asked for sexual favours. She refused and the
defendant threatened: ‘I’m going to take you to my mate’s house. He will really fix
you up’. The young woman jumped out of the moving van, suffering bodily harm.
The Magistrate held that the fear induced was not immediate, but was fear of
future conduct. This did not amount to an assault.
Issues Whether the circumstances of this case amounted to an assault.
Reasoning, Rules Analogy:
and Resources ‘I asked counsel to assume that the defendant was threatening the victim in
a remote scrub area where he was stalking her and calling out threats to
rape her if and when he caught her. I also asked counsel to assume that
the defendant could catch her and carry out his threat [at any time]. While
he was taking no immediate steps to carry out his threats he continued to
pursue her because he enjoyed the prolongation of her fear. I expressed
the opinion that his original words uttered in those circumstances
constituted an assault’
Continuing fear induced by his original words in a situation where
he remained in a position of dominance.
‘The fearful victim of future physical harm was not at liberty but always at
the mercy of the defendant. One analogy is that she was in the captive
position of a mouse to which a playful cat poses a continuing threat of injury
or death at a time to be decided by the cat. There was no escape, no
reasonably possibility of a novus actus interveniens to break the causal link
between the threat and the expected infliction of harm’.
Conclusion Appeal allowed. The defendant (or respondent) was found guilty of assault.
Ratio Decidendi An assault can exist even if the fear or apprehension was not of immediate harm
as long as there is a continuing fear.
‘The young woman was in immediate and continuing fear so long as she
was imprisoned by the defendant’.
False imprisonment and assault are separate offences. Being guilty of unlawful
imprisonment does not imply guilty in assault [also citing MacPherson v Brown
Page 19 of 59
(1975) 12 ASR 184].
Case applied or R v Mostyn (2004) 145 A Crim R 304; [2004] NSWCCA 97
followed by A verbal threat is sufficient to raise a reasonable apprehension of violence.
Fisher v Police (2004) 154 A Crim R511; [2004] SASC 232
Rixon v Star City Pty Ltd [2001] NSWCA 265 (28 September 2001)
Material Facts On 13 June 1996, the defendant issued the plaintiff with an exclusion order
prohibiting him from entering the casino. On 25 November 1996, the plaintiff was
playing roulette in the casino. The plaintiff was escorted by security to an interview
room until police officers arrived.
Issues Whether the circumstances of the case constituted an assault, battery or false
imprisonment.
Reasoning, Rules Battery:
and Resources ‘Nobody can complain of the jostling which is inevitable from his presence
in, for example, a supermarket, an underground station or a busy street;
nor can a person who attends a party complain if his hand is seized in
friendship, or even if his back is, within reason, slapped’.
‘The fundamental principle, plain and incontestable [is] that every person’s
body is inviolate, and that any touching of another person, however slight
may amount to a battery [quoting Collins v Wilcock [1984] 1 WLR 1172,
1177-8 (Robert Goff LJ)].
There are two issues:
Whether the conduct generally acceptable in everyday life or in the
present circumstances.
Whether the conduct was within reason (i.e. touching someone
gently to get their attention is within reason. Punching someone
may not).
Assault:
The traditional definition of assault is an overt act indicating an immediate
intention to commit a battery, coupled with the capacity of carrying that
intention into effect.
However, the irrelevance of the intention to carry out the battery is
demonstrated by analogy: if a person presents an unloaded firearm,
where if loaded, its discharge would have been likely to cause
injury, the fact that it is empty does not mean it is not assault.
False imprisonment
Statutory authority for holding the plaintiff.
Conclusion Appeal dismissed.
Ratio Decidendi Touching does not amount to battery if it is generally acceptable in the ordinary
conduct of daily life, such as for the purposes of engaging in their attention.
Proof of assault requires an intention to create in another person an apprehension

of imminent harmful or offensive contact.
Does not require proof of an intention to follow it up or carry it through.
Obiter Dicta Rejected the notion that for battery to exist, there must be an element of ‘hostility’
or ‘anger’.
‘The absence of anger or hostile attitude by the person touching another is not a
satisfactory basis for concluding that the touching was not a battery’ [Re F (Mental
Patient: Sterilisation) [1980] 2 AC 1, 73 (Lord Goff).
Case applied or Cranston v Consolidated Meat Group Pty Ltd & Another [2008] QSC 41
followed by Proof of intention to follow it up or carry it through is not necessary.
Balmain New Ferry Co Ltd v Robertson (1906) 4 CLR 379
Material Facts The plaintiff (Robertson) paid one penny to enter the defendant’s what in order to
catch a ferry. Upon seeing that the next ferry would not leave for 20minutes, the
plaintiff wished to leave. He was prevented from doing so by a turnstile. In order to
Page 20 of 59
pass, he was required to pay another penny. The plaintiff refused to pay and was
forcibly prevent from leaving the wharf by the defendant.
Issues Whether the defendant was liable for false imprisonment.
Reasoning, Rules ‘But the abridgement of a man’s liberty is not under all circumstances actionable.
and Resources He may enter into a contract which necessarily involves the surrender of a portion
of his liberty for a certain period, and if the act complained of is nothing more than
a restrain in accordance with that surrender he cannot complain’ (per O’Connor J).
‘As the plaintiff was free to leave the premises by water I think that there was no
imprisonment’ [citing Bird v Jones (1845) 7 QB 742].
The plaintiff was free to pass out through the turnstile at any time (by paying one
penny). He had only himself to blame for his detention.
A means of escape will be unreasonable if it involves ‘risk to life or limb’

[McFadzean v CFMEU [2004] VSC 289].
Conclusion Appeal allowed. No false imprisonment existed.
Ratio Decidendi There will not be a total deprivation of liberty in cases where there is reasonable
means of escape.
Fulfilment of a person’s contractual obligation is a reasonable means of
escape.
Page 21 of 59
The Rise of the Tort of Negligence
Required reading
Langridge v Levy 2 Meeson & Welsby 519 (1837).

Winterbottom v Wright (1842) 152 ER 402.
George and Wife v Skivington (1869) LR 5 Ex 1.
Heaven v Pender (1883) 11 QBD 503.
M’Alister (or Donoghue) v Stevenson [1932] AC 562.
Forms of action to causes of action

The modern law of torts have developed out of two main writs or forms of action
i. Writ of trespass.
Applied to direct and forcible interference.
Actionable without proof of damage.
ii. Writ of trespass on the case
Applied to consequential (indirect) injury.
Damage must be proven.
These forms of action have been abolished and replaced with causes of action. Courts require all the
elements of a cause of action to be proven.
i. Intentional torts: derived from ‘trespass’.
ii. Unintentional torts: derived from ‘case’.
The development of negligence

Langridge v Levy 2 Meeson & Welsby 519 (1837)
Material Facts The plaintiff’s father bought a gun from the defendant who fraudulently stated the
gun was made by a reputable company and was of high quality. The defendant
was told the gun was for the plaintiff. The gun was defective and exploded, causing
the plaintiff’s arm to be amputated.
Issues Whether the defendant owed a duty of care to the plaintiff who was not a party to
the contract.
Reasoning, Rules Pasley v Freeman:
and Resources If an item is delivered to the plaintiff, for the purposes of using it, with an
accompanying representation that it is safe, and that representation is a
falsehood (that is known by the defendant) and injury arises from the use of
the item then the defendant is liable.
Since the item was bought by the father for the purposes of use by a third party
(the plaintiff) and the misrepresentation was communicated and acted upon, the
principle applies.
Arguments or Plaintiff:
Application The law imposes upon the defendant a duty of reasonable care when
supplying dangerous commodities.
The defendant knew the gun was defective.
Defendant:
There was no duty of care as the doctrine of privity prevents third parties
initiating a civil suit for damages in relation to a contract.
The article was not dangerous as it was delivered unloaded.
Ratio Decidendi Where injury is caused as a result of fraud, the party guilty of the fraud is liable for
the damage caused.
Obiter Dicta The court refused to set a precedent by imposing duty of care to third parties as it
Page 22 of 59
might result in indefinite liability.
Winterbottom v Wright (1842) 152 ER 402
Material Facts The defendant had a contract with the Postmaster-General (PMG). Atkinson had a
contract with PMG to convey the coaches and to supply horses and coachmen.
The plaintiff was employed by Atkinson and was injured when a coach broke down.
the contract.
Reasoning, Rules Langridge v Levy:
and Resources The court refused to extend the principle of this decision.
If the plaintiff be allowed to sue then every passenger who was injured may be
allowed to bring an action. This would result in “absurd and outrageous
consequences” with limitless liability.
Arguments or No right to recover:
Application No fraud.
There was no privity between the plaintiff and the defendant and therefore
the defendant did not possess a duty of care to the plaintiff.
Conclusion Judgement for the defendant.
Ratio Decidendi Only those who enter into a contract have the right to recover for damages.
Obiter Dicta “Hard cases, it has been frequently observed, are apt to introduce bad law” (Rolfe
B).
The court refused to set a precedent by imposing duty of care to third parties as it
might result in indefinite liability.
George and Wife v Skivington (1869) LR 5 Ex 1
Material Facts The plaintiff purchases a hair care product from the defendant for his wife. The
defendant was aware it was being purchased for the wife. The product caused
injury to the wife.
the contract.
Reasoning, Rules The ingredients were only known to the defendant and he represented it to be of
and Resources good quality.
Langridge v Levy:
“Substitute the word “negligence” and “fraud”, and the analogy between
Langridge v Levy and this case is complete.”
The defendant knew the purpose for which, and the person for whom the product
was bought. Therefore, there is a duty on the defendant to use ordinary care in
compounding the product.
Arguments or Plaintiff:
Application The defendant knew the purpose for which, and the person for whom the
product was bought and should have taken reasonable care.
Defendant:
No warranty either express or implied towards the purchaser,
Ratio Decidendi Where injury is caused as a result of negligence or misrepresentation, the party
guilty of the fraud is liable for the damage caused.
Obiter Dicta If a chemist sells a drug without any knowledge of the purpose to which it is to be
applied, which is only fit for an adult and is given to a child and causes injury, the
chemist is not liable.
Heaven v Pender (1883) 11 QBD 503
Material Facts The defendant owned a drydock. The plaintiff was employed by Gray who had a
contract with the owner of a ship to paint the ship in the drydock. The owner of the
ship had a contract with the defendant to allow the ship into the drydock. The
plaintiff was injured due to defective ropes at the drydock.
the contract.
Reasoning, Rules “If a man opens his shop or warehouse to customers it is said that he invites them
Page 23 of 59
and Resources to enter, and that this invitation raises the relation between them which imposes on
the inviter the duty to use reasonable care so to keep his house or warehouse that
it may not endanger the person or property of the person invited.” (Brett MR).
(relying on the authorities of Smith v London and St Katherine Docks Co;
Indermaur v Dames).
Arguments or Proximity issue applies in this case. The plaintiff was “invited” or “permitted to
Application enter” and therefore was owed a reasonable duty of care.
Ratio Decidendi One man may owe a duty to another even though there is no contract between
them. If one man is near to another, or is near to the property of another, a duty
lies upon him not to do that which may cause a personal injury to that other, or
may injure his property.
Duty exists even without an implied contract or fraud.

Obiter Dicta If the plaintiff is to be considered a volunteer there would be no implied request or
invitation to him by the defendant to, use the dock and the appliances provided
(Blackmore v Bristol and Exeter Ry Co).
M’Alister (or Donoghue) v Stevenson [1932] AC 562
Material Facts A friend bought Donoghue an icecream soda manufactured by the defendant. She
drank some and then found remains of a decomposing snail. She suffered severe
nervous shock and gastroenteritis.
the contract.
Reasoning, Rules Le Lievre v Gould and Heaven v Pender – issues regarding proximity “If one man
and Resources is near to another, or is near to the property of another, a duty lies upon him not to
do that which may cause a personal injury to that other, or may injure his property.”
If a manufacturer puts an article of food in a container which he knows will be

opened by the customer and there can be no inspection by the purchaser and no
reasonable preliminary inspection by the consumer, then the manufacturer is liable
for injury.
It was argued that there could be no remedy for negligence against the
manufacturer.
The judge determined that if there were no remedy, it would be “a grave
defect in the law” (Lord Atkin).
Arguments or Dissenting argument of Lord Buckmaster:
Application Winterbottom v Wright – the manufacturer of any article is not liable to a
third party injured.
Bates v Batey & Co – the defendants were held not liable to a consumer for
injury occasioned by the bottle bursting as a result of a defect that they did
not know about, but which by the exercise of reasonable care they could
have discovered.
Distinguished Heaven v Pender.
Conclusion Judgement for the plaintiff. The case was remitted to trial. Stevenson died before
the trial could take place and the case was settled.
Ratio Decidendi A person owes a duty of care to those who he can reasonably foresee will be
affected by his actions.
Obiter Dicta Lord Atkin’s “neighbour principle”:
“The rule that you are to love your neighbour becomes in law, you must not
injure your neighbour… but who then is my neighbour? The answer seems
to be – persons who are so closely and directly affected by my act that I
ought reasonably to have them in contemplation as being so affected when
I am directing my mind to the acts or omissions which are called into
question”.
Page 24 of 59
Introduction to Statutory Interpretation
Required reading
ed, Melbourne, 2009), pp. 387-422 (Chapter 15); pp. 80-82; 86 (Chapter 4).
Introduction
In the legal system, judges are required to interpret statutes.
Statutes that are passed must be within the power of parliament.
The High Court may determine that a statue is beyond the power (ultra vires) of parliament.
Parliament in action: how a bill goes through parliament

Before a bill becomes an act of parliament, it goes through several processes:
1. The idea or policy for a bill is developed (usually by a government department, law reform
commission or a private member).
2. The bill is drafted by specialist lawyers.
3. The bill must pass through both houses of parliament:
House of Representatives:
i. Notice of motion.
ii. Introduction and first reading.
iii. Second reading.
iv. Debate.
v. Committee Stage
vi. Third reading.
Senate:
i. First reading.
ii. Second reading.
iii. Committee on the whole.
iv. Third reading.
4. Royal assent.
5. Commencement: the act will come into force according to the rules of each jurisdiction.
After 28 days in Commonwealth, NSW and Victoria (unless some other provision is made in
the statute).
If the bill is passed with amendments, both houses must try to reach an agreement. If this fails, the bill may
be set aside, put to a referendum or it may become a double dissolution trigger.27
Classification of statutes
Public and private
Most statutes are public acts intended to operate on the public at large.
Private acts must include a provision establishing it as a private act. These are rare.
Subordinate or delegated legislation
Acts can contain authority for another body to make delegated legislation:
Ordinances: laws made for territories.
By-laws: made by municipal councils.
Rules: dealing with the administration of government departments.
Regulations: general laws made through the Governor-General-in-Council (Cabinet).
27
Page 25 of 59
Codes and consolidated statutes
Codes: incorporates not only the legislation but also the common law so that the code now
exhaustively states the law for that subject area.
Consolidated statutes: brings together a number of statutes that cover the same subject. This
repeals the existing legislation and replaces it with law which represents the law as it has been
amended.
Structure of an act
All statutes in Australia have a similar structure:
Long title: states the purpose of an act.
Short title: the title by which the act is cited.
Sections: the body of the act which specifies the law (can be divided into parts and divisions).
Headings and margin notes are used, but these are not operative parts of the act and cannot be used to
determine meaning.
The relationship between common law and statute

Due to parliamentary sovereignty, common law is overwritten by statute when there is a conflict.
However, judges interpret statutes according to strict rules of interpretation.
The traditional rules of interpretation

There are three general rules of interpretation:
1. Literal rule: interpretation according to the literal meaning of the words
‘The fundamental rule of interpretation, to which all others are subordinate, is that a statute is
to be expounded according to the intent of the parliament that made it; and that intention has
to be found by an examination of the language used in the statute as a whole… when we
find what the language means, in its ordinary and natural sense, it is our duty to obey that
meaning, even if we think the result to be inconvenient or impolitic or improbable’.28
2. Golden rule: the court could modify the meaning produced under the literal rule if the result would
be absurd, repugnant or inconsistent with the rest of the legislation.29
3. Mischief rule (purposive approach): interpretation according to the intention of parliament. This
looked at the ‘mischief’ that the parliament was intending to prevent.30
There are also a number of specific rules:
1. Noscitur a sociis: words are limited by the context in which they appear.
2. Ejusdem generis: ‘of the same kind’ – where there is a general phrase and specific words of the
same kind, we read the general phrase in light of the specific list.
A list indicates a ‘genus’ or class of items – e.g. “lions, tigers, snakes and other animals”: the
class is dangerous wild animals and this would not include a sheep.
3. Expressio unius est exclusio alterius: if something is expressly referred to, that will exclude other
matters.
Regina v Ojibway (1965) 8 Criminal Law Quarterly 137 – FICTIONAL
The fictional Small Birds Act 1960 defines a ‘small bird’ as a ‘two legged animal covered with
features’.
The defendant was convicted of killing a horse under this act as it had at least two legs and
in this instance, it had a feathery pillow on his back, and therefore had feathers.
This absurd interpretation would mean that the horse is a small bird.
28
Amalgamated Society of Engineers v Adelaide Steamship Co Ltd (1920) 29 CLR 129, 161-2 (Higgins J).
29
Grey v Pearson (1857) 6 HL Cas 61, 106 (Lord Wensleydale).
30
Heydon’s Case (1584) 3 Co Rep 7a.
Page 26 of 59
Presumptions
There are a number of assumptions when interpreting statutes:
Parliament does not interfere with fundamental rights (‘principle of legality’).31
No retrospective operation of the statute.
Legislation does not bind the Crown.
Parliament does not legislate extraterritorially.32
Later laws repeal earlier laws.
Potter v Minahan (1908) 7 CLR 227
Mason CJ, Deane, Dawson, Toohey, Gaudron and McHugh JJ: “In the last degree improbable that
the legislature would overthrow fundamental principles, infringe rights, or depart from the general
system of law, without expressing its intention with irresistible clearness; and to give any such effect
to general words, simply because they have that meaning in their widest, or usual, or natural sense,
would be to give them a meaning in which they were not really used…”33
Coco v The Queen (1994) 179 CLR 427
Mason, Brennan, Gaudron and McHugh JJ: “the courts should not impute to the legislature an
intention to interfere with fundamental rights. Such intention must be clearly manifested by
unmistakable and unambiguous language.”34
Quoting Brennan J in Re Bolton; Ex parte Beane: “Unless the Parliament makes unmistakeably
clear its intention to abrogate or suspend a fundamental freedom, the courts will not construe a
statute as having that operation.”35
R v Home Secretary; Ex parte Pierson [1998] AC 539
Lord Steyn: “Parliament does not legislate in a vacuum. Parliament legislations for a European
liberal democracy founded on the principles and traditions of common law. And the courts may
approach legislation on this initial assumption.”36
R v Home Secretary; Ex parte Simms [2000] 2 AC 115
Lord Hoffman: “In the absence of express language or necessary implication to the contrary, the
courts... presume that even the most genera words were intended to be subject to the basic rights
of the individual.”37
Royal College of Nursing of the United Kingdom v Department of Health and Social Security [1981]
1 All ER 545
Facts:
The British Parliament passed the Abortion Act 1967 (UK) which provided that no offence
was committed ‘when a pregnancy is terminated by a registered medical practitioner’. The
question was whether nurses were considered to be a ‘registered medical practitioner’.
Majority (Lord Diplock):
The treatment for the termination of pregnancies should take place in ordinary hospitals,
Parliament contemplated that it would be undertaken as a team effort in which, acting
according to the instructions of the doctor in charge of the treatment, junior doctors, nurses
and others would participate.
The doctor should be available to be consulted or called on for assistance but need
not perform the entire procedure.
Dissenting (Lord Wilberforce):
When interpreting an act, it is necessary to have regard to the state of affairs existing, and
known by the Parliament to exist, at any time.
31
Coco v The Queen (1994) 179 CLR 427; See also Crafter v Kelly [1941] SASR 237; Corporate Affairs Commission of New South Wales v Yuill
(1991) 172 CLR 319; He Kaw The v The Queen (1985) 157 CLR 523.
32
Jumbunna Coal Mine NL v Victorian Coal Miners’ Association (1908) 6 CLR 309, 363 (O’Connor J).
33
Potter v Minahan (1908) 7 CLR 227, 304 (Mason CJ, Deane, Dawson, Toohey, Gaudeon and McHugh JJ).
34
Coco v The Queen (1994) 179 CLR 427, 437 (Mason, Brennan, Gaudron and McHugh JJ).
35
Coco v The Queen (1994) 179 CLR 427, 437 quoting Re Bolton; Ex parte Beane (1987) 162 CLR 514, 523 (Brennan J).
36
R v Home Secretary; Ex parte Pierson [1998] AC 539, 587 (Lord Steyn).
37
R v Home Secretary; Ex parte Simms [2000] 2 AC 115, 131 (Lord Hoffmann).
Page 27 of 59
Due to controversial subject of the Act, it should be construed with caution.
Must be terminated by Doctors alone.
The statutes of interpretation: the modern approach

Statutes have been created which overrule the common law approaches to interpretation.
The statutes require courts to use the purposive approach if there is any ambiguity.
E.g. “In the interpretation of a provision of an Act, a construction that would promote the
purpose of object underlying the Act (whether that purpose or object is expressly stated in
the Act or not) shall be preferred to a construction that would not promote the purpose or
object.”38
The statutes allow extrinsic material to assist in interpretation,39 including:
Royal commission or inquiry reports.
Parliamentary committee reports.
Treaties or international agreements.
Second reading speech of the minister responsible for the act.
The meanings of “may” and “shall”:
May: “In any Act or instrument, the word “may”, if used to confer a power, indicates that the power
may be exercised or not, at discretion.40
Shall: “In any Act or instrument, the word “shall”, if used to impose a duty, indicates that the duty
must be performed.41
This means that courts will interpret statutes in this way:
1. Literal rule.
2. Golden rule.
3. Purposive approach.
4. Extrinsic materials.
Kingston v Keprose (1987) 11 NSWLR 404
McHugh JA:
Where the text of the legislative provision embodies the proposition is grammatically capable
of only one meaning and neither the context, the purpose of the provision nor the general
purpose of the Act throws any real doubt on that meaning, the grammatical meaning must be
taken as representing Parliament’s intention as to the meaning of the law.
Quoting Mason and Wilson JJ in Cooper Brookes Pty Ltd v Federal Commissioner of
Taxation,42 departing from the literal rule extends to any situation in which… a literal reading
does not conform to the legislative intent’.
Lord Diplock: If the application of the literal meaning would defeat the purpose of the
legislation, the court may read words into the legislation. Three conditions are
required:43
1. The court must know the mischief that the Act was dealing with.
2. The court must be satisfied that Parliament inadvertently overlooked the
defect.
3. The court must be able to state with certainty what words Parliament would
have used to overcome the omission.
A grammatical meaning that does not give effect to the purpose of the legislation will not
prevail. It must give way to the construction that would promote the purpose or object of
the act.44
38
Acts Interpretation Act 1901 (Cth) s 15AA.
39
Acts Interpretation Act (Cth) s 15AB.
40
Acts Interpretation Act 1987 (NSW) s 9(1).
41
Acts Interpretation Act 1987 (NSW) s 9(2).
42
(1981) 147 CLR 297, 321 (Mason and Wilson JJ).
43
Jones v Wrotham Park Settled Estates [1980] AC 74, 105 (Lord Diplock).
44
Acts Interpretation Act 1901 (Cth) s 15AA; Acts Interpretation Act 1987 (NSW) s 33.
Page 28 of 59
The Idea of Law in the Civil War and the Glorious Revolution
Required reading
The king versus the common law (pp. 88-102)

In 1958, James l wrote The Trew Law of Free Monarchies, setting out the divine right of kings.
James l: ‘Kings are justly called Gods, for that they exercise a manner or resemblance of Divine
power upon earth…’
This was supported by the attorney-general, Sir Francis Bacon. He argued that:
According to natural law, only absolute monarchy could ‘avoid confusion and dissolution’.
The King could govern by prerogative alone, parliamentary powers are allowed only by
tolerance of the King.
The supporters of the King’s view were called royalists or absolutists.
Main opponent was Sir Edward Coke.
J P Sommerville45
Sir Edward Coke held that the law imposed rigid restrictions upon the King’s authority.
In 1608, Coke offended James l by denying that the King had the ultimate right to interpret
laws; he also denied that the King could stop common law proceedings.
Coke was influenced by Sir John Fortescue, who argued that the purpose of government
was the protection of persons and property of the governed.
This purpose was best served by a King who could not levy taxes without the
permission of his subjects.
He argued for a constitutional monarch.
The essence of common law thinking centred around:
The ideas of custom:
The common law was derived from ancient customs.
The common law was unwritten and subject to change.
They were precepts of reason, ‘drawn out of the Law of Nature’ and they were also
general rules derived from and applicable to a vast mass of particular cases.
The rationality of English law:
Because the common law was derived from ancient custom, it was supremely
rational.
It is ‘tried reason’.
The sacrosanctity of private property:
Natural law theorists held that the aim of government was welfare, while common law
lawyers held that it was for the protection of property.
The legislative sovereignty of parliament:
Parliament’s supreme legislative authority overarched all of these ideas. From the
dual view of reason and custom came the ideas of the fundamental liberties of every
subject – that they could not judge their own case; and that they could not be
deprived of their property or bound to a new law without their consent.
Thomas Heldy in 1610 said that the Parliament derived its powers from the common
law and therefore could not abolish the common law without abolishing itself.
However a power of judicial review would end legislative sovereignty.
45
J P Sommerville, Politics and Ideology in England, 1603-1640, (Longman, London, 1989) 87-95.
Page 29 of 59
1. The common law forbade legislation without consent of subject – but if the
judges were supreme interpreters of the law, then by interpreting they might
change it – and so legislate without the subject’s consent.
2. Judges are appointed by the government, and thus are usually under political
pressure.
Dr Bonham’s case (1610) Hil 7 Jac 1
Coke attempted to assert the right of judges to strike down laws which are repugnant to the
common law (judicial review).
Coke CJ: ‘and it appears in our books, that in many cases, the common law will control Acts of
Parliament, and sometimes adjudge them to be utterly void: for when an Act of Parliament is against
common right and reason, or repugnant, or impossible to be performed, the common law will control
it, and adjudge such as to be void.
J P Sommerville46
The common law and royal prerogative:
Absolutists believed that the King’s power was derived from God and therefore he
possessed absolute, extra-legal rights.
Common law lawyers believed that the King’s prerogative was those rights he possessed at
law.
The most dangerous of these was the power granted in times of crisis (such as war)
in which he had absolute power.
The lawyers argued that the King could never abrogate common law. He could
dispense with statute, but not common law.
The King’s prerogative included:
Right to design coins.
King cannot be prosecuted.
Power to veto legislation.
King, parliament and common law (pp. 102-105)

Prerogative power was made up of rights of the king, which ‘acknowledged his superior position and
enabled him to discharge the task of governing’.47
The Tudors understood prerogative as defined by law.
The Stuarts saw prerogative as rights bestowed by God.
Case of Prohibitions (1607) 12 Co Rep 63
‘The King is his own person cannot adjudge any case… but this ought to be determined and
adjudged in some Court of Justice, according to the law and custom of England…’
Cases are not determined by natural reason but by artificial reason which the King is not qualified
in.
This meant that the King could not sit as a judge in courts. However, he could hear matters
on appeal and reverse decisions with the approval of the other members of parliament.
Case of Proclamations (1611) 12 Co Rep 74
‘The King, by his proclamations cannot create any offence which was not an offence before…’
The King cannot make laws without Parliament.
‘The law of England is divided into three parts, common law, statute law, and custom. But the King’s
proclamation is none of them’.
The King’s power is derived from common law and statute law.
Parliament and the civil war (p. 105)

Tensions escalated during the time of Charles l, who attempted to govern without parliament from 1629-40.
46
J P Sommerville, Politics and Ideology in England, 1603-1640, (Longman, London, 1989) 87-95.
47
G R Elton, The Tudor Constitution (Cambridge University Press, 1962) 17.
Page 30 of 59
He recalled Parliament when he ran out of money and was forced to accept the Petition of Right
which restricted the King from imposing taxes without the consent of parliament, as well as from
imprisoning subjects without cause or impose martial law.
Parliament won the civil war and Charles l was put on trial and executed.
Charles l argued that as lawful King, the parliament had no rights over him.
In 1949-60, England was ruled by parliament (without a king). This was known as the ‘Interregnum’.
England had its only written constitution at this time.
Parliament asserted its right to legislate, and attempted to codify the law.
The ‘Restoration’ and the Glorious Revolution (pp. 106-107)

The Parliament invited Charles ll back to rule (the ‘Restoration’) in 1660 where he ruled with political
adeptness.
But his successor James ll aggravated both parliament and the Church.
He appointed Catholics to the Church, army, universities and used his prerogative power to
remove the Test Act oath.
These actions were tolerated as James ll did not have a Catholic heir.
When James ll had a son who has baptised as Catholic, parliament invited William of Orange to
assume the throne.
James ll knew he was beaten and fled London (thus, the Glorious (bloodless) revolution).
William’s accession to the throne was condition upon his assent to the Bill of Rights which limited
the power of the monarch.
Bill of Rights 1689 (pp. 108-110)

The Bill of Rights severely limited the power of the monarchy and increased the powers of parliament. The
right to suspend legislation was illegal. It also included:
The King must seek Parliament’s consent when suspending or dispensing with laws.
Levying taxes without consent of Parliament is illegal.
The King cannot keep a standing army without consent of Parliament.
Elections of MPs should be free.
Excessive fines, imprisonments and punishments are illegal.
Juries should be freeholders.
Fines/forfeitures cannot be made before conviction.
Parliament should be held freely.
Page 31 of 59
The Development of the Idea of the Rule of Law
Required reading
The rule of law (pp. 111-112)

The rule of law prevents the arbitrary abuse of power. AV Dicey’s classic statement of the rule of law has
three main features:48
1. No one can be punished except for a breach of law proved in an ordinary court.
2. No one is above the law and everyone is equal before the law.
3. The rule of law includes the results of judicial decisions determining the rights of private persons.
The Secretary-General of the United Nations defines the rule of law as:
‘A principle of governance in which all persons, institutions and entitles, public and private, including
the State itself, are accountable to laws that are publicly promulgated, equally enforced and
independently adjudicated, and which are consistent with international human rights norms and
standards. It requires, as well, measures to ensure adherence to the principles of supremacy of law,
equality before the law, accountability to the law, fairness in the application of the law, separation of
powers, participation in decision-making, legal certainty, avoidance of arbitrariness and procedural
and legal transparency’.
John Locke:
‘The end of law, is not abolish or restrain, but to preserve and enlarge freedom’.
Theodore Roosevelt:
‘No man is above the law and no man is below it; nor do we ask any man’s permission when we ask
him to obey it. Obedience to the law is demanded as a right; not asked as a favour’.
Sir Ninian Stephen described the rule of law in four main principles:49
1. Governments are under the law.
2. Administrators of law (judges) must be independent from government.
3. There should be ready access to the courts of law.
4. The law should be certain, general and equal in its operation
In Australian Communist Party v Commonwealth, Dixon J stated that the Constitution was ‘framed in
accordance with many traditional conceptions’, some of which ‘are simply assumed’. He went on to say
‘[a]mong these I think it may fairly be said that the rule of law forms an assumption’.50
The rule of law is an implicit but undefined part of the Australian constitutional framework.
Rule of law (supplementary materials)

Elements of the rule of law
Scope:
There should be no privileged exemptions to the rule of law. Everyone comes within the
scope of law. This has two aspects:
Political aspect: governments and public officials are subject to existing laws.
Social aspect: citizens are equal before the law.
Character:
Laws must guide behaviour. In order to do so, laws must exist in the form of general
requirements that people can consult before they act.
Institutions:
48
AV Dicey, Introduction to the Study of the Law of the Constitution (Macmillan, 1st ed, 1885, 10th ed, 1959), 202-3.
49
Sir Ninian Stephen, ‘The Rule of Law’ (2003) 22(2) Dialogue (Academy of the Social Sciences in Australia) 8.
50
83 CLR 1, 193 (Dixon J).
Page 32 of 59
The institutions that administer the law must be independent from those who make the law.
They must also be shielded from interference. This is known as the separation of powers.
Furthermore, institutional measures must guarantee a fair hearing and ready access
to courts.
The value of the rule of law
The rule of law constrains power and is a protector of individual liberty.
Justice
The rule of law provides certain basic conditions for a society to exist free of certain fears and
informed of certain things.
Joseph Raz: ‘the rule of law is a purely negative value. It is merely designed to minimise the
harms to freedom and dignity’.
Ronald Dworkin: the rule of law ‘is the ideal of rule by an accurate public conception of
individual rights’.
Page 33 of 59
The Impact of Settlement on the Indigenous Inhabitants
Required reading
Sovereignty and proprietorship (pp. 118-122)

The treatment and dispossession of Aboriginal inhabitants by the British was not a matter of the weak
giving way to the strong. It was a matter of international law. William Blackstone created three categories
of possible events when a foreign power entered a land:
1. Conquest: a forcible invasion of occupied land.
Pre-existing laws continue until altered by the conqueror.51
2. Cession: treaty over occupied land.
Pre-existing laws continue until altered by the new government.
3. Settlement: settlement of land that is ‘desert and uninhabited’, sparsely populated, or inhabited by
‘backwards people’ who did not cultivate their land.
The laws of the settling nation operate insofar as they are applicable to the circumstances.
William Blackstone advanced a legal theory in regards to possession of land which became widely
accepted:
To be an occupier, one had to manifest a will to possess the land as one’s own.
Aboriginal people were in a state of ‘primeval simplicity’; they did not permanently own the land,
but had transient possession.
Aboriginal people did not cultivate the land because they were nomadic hunters.
Colonial attitudes (pp. 123-128)

Many settlers thought that the Aborigines should not be regarded as British subjects.
Only the Crown had the right to make a land grant and therefore the Aborigines could not sell it.
The letters patent for establishing South Australia provided Aborigines with the right to occupy and use the
lands that they possessed.
This was ignored by the colonists.
The Indigenous peoples were deprived of many rights. In South Australia, they were governed by the
Aborigines Act 1911 (SA) which allowed Indigenous people to be declared ‘wards of the state’.
The Aborigines Protection Board to make a declaration of exemption based on ‘character and
standard of intelligence and development’. This would mean that the person would ‘cease to be an
aborigine for the purposes of the Act’.
Namatjira v Raabe (1959) 100 CLR 664
Facts:
Namatjira was given a declaration of exemption from the laws barring Aborigines from
drinking liquor. He allegedly supplied alcohol to Raberaba, who was classified as a ‘ward of
the state’.
Section 14 of the Welfare Ordinance 1953-1957 (NT) allows the Administrator to declare a person a
ward and sub-s 1 requires that notice be given for an opportunity to appeal. Raberaba did not
appeal the declaration and therefore he is a ‘ward’ within the meaning of s 6.
The Administrator had the power to authorise ‘block’ declaration that persons are wards.
51
Campbell v Hall (1774) Lofft 655 (Lord Mansfield).
Page 34 of 59
Land and life (pp. 129-130)
Aboriginal people were dispossessed from their traditional lands. This was significant because the land
supported them with food, shelter and was an integral part of their system of customary law.
Milirrpum v Nabalco (1971) 17 FLR 141
Facts:
The government granted mining leases without consulting the Yirrkala people of Arnhem
Land. The plaintiffs sought declarations that they were entitled to occupy the land without
interference and that the doctrine of terra nullius should be overturned.
The Aboriginals had a ‘religious’ or ‘spiritual’ connection with the land, but not a proprietary one.
Property generally implies ‘the right to use, or enjoy, or the right to exclude others and the
right to alienate’.
The clan’s right to exclude others was not apparent.
The clan’s relationship to the land was not proprietary.
The court recognised the existence of Aboriginal laws:
‘The evidence shows a subtle and elaborate system highly adapted to the country in which
people led their lives, which provided a stable order of society and was remarkably free from
the vagaries of personal whim or influence’.
The court was not willing to overturn terra nullius as no sovereign government existed.
Social justice and the legacies of 1788 (pp. 131-136)

Social statistics
Indigenous people are the most disadvantaged group in Australia:
Die at twice the rate of non-indigenous people.
Life expectancies for Indigenous people are 56 for males and 63 for females
compared to 77 for non-indigenous males and 82 for non-indigenous females.
External causes (accidents, assaults and self-harm) account for 17% of Indigenous deaths
compared to 6% of non-Indigenous.
Mortality rates of Indigenous babies (11 per 1000) are double non-indigenous rates.
Indigenous people and social security
Indigenous people are disadvantaged in terms of social security:
They were completely excluded until 1966.
Aborigines have a much higher rate of ‘breaching’ (failure to comply with the rules regarding
benefits). Several factors contribute to this:
High illiteracy, meaning Indigenous people do not always understand rules and
letters.
No consultation between Centrelink and Indigenous liaison people.
Indigenous people are less likely to lodge appeals.
Aboriginal deaths in custody
The Royal Commission into Aboriginal Deaths in Custody reported that Aboriginal people were
seriously over-represented in prison.
Aboriginals make up about 1.46% of the general population and 14.6% of the prison
population.
The over-representation of Aboriginals is even worse with women (20 times more likely than
non-Indigenous people).
The rate of Aboriginal deaths in custody remains stable.
Removing children: the stolen generations (pp. 137-152)

The Australian government had a policy of removing children from their family, particularly if they were
mixed-blood to allow the Aboriginal race to die out.
The justification for this was that children needed ‘protection’ from their culture.
Page 35 of 59
The children of those removed could also have been removed. Factors that contributed to this
included:
A low level of job vacancies.
Absence of child care.
Association with Aboriginal kin and with their traditional culture.
Lack of life skills.
The policy ended in 1970.52
Attempts to claim compensation for the removal of children had been largely unsuccessful.
This is because it was government policy to remove children.
Child removal laws were held to be constitutionally valid.53
The first case to succeed was Trevorrow v State of South Australia.54
Trevorrow v State of South Australia [2007] SASC 285
Material Facts In 1949 and 1954, the State of South Australia, through its agencies, the
Aborigines Protection Board (APB) and the Children’s Welfare and Public Relief
Board (CWPRB) removed the plaintiff from his natural family. They did not follow
the statutory processes (namely, the approval of two statutory boards, or
alternatively a court order).
Issues Whether the State of South Australia was liable in damages for breach of fiduciary
duties, wrongful imprisonment, acting ultra vires, acting with an improper purpose,
acting in bad faith, denying procedural fairness, misfeasance in public office and
breaches of duty of care.
Reasoning, Rules Gray J:
and Resources The Aborigines Act 1934-1939 and the Maintenance Act 1926-1937
contained express statutory processes to be followed if the APB wished to
remove a child. These processes were not followed.
The removal and placement of the plaintiff was conduct undertaken
without lawful authority.
Misfeasance in public office:
The tort of misfeasance in public office requires ‘an act which the public
official knows is beyond power and which involves a foreseeable risk of
harm but noted also that… misfeasance extends to the situation of a public
official recklessly disregarding the means of ascertaining the extent of his
or her power’ [Sanders v Snell (1998) 196 CLR 329, [37]-[38] (Gleeson CJ,
Kirby and Hayne JJ)].
The government was aware that removals and placements were
taking place in a manner contrary to the advices of Crown Solicitors.
As there was a material risk of injury and that risk was
reasonably foreseeable, the state was liable for misfeasance.
Wrongful imprisonment:
Wrongful imprisonment is committed when one person directly subjects
another to total deprivation of freedom of movement without lawful
justification.
If imprisonment is proved, it is for the defendant to prove lawful
justification either at common law or by statute [Ruddock v Taylor
(2005) 222 CLR 612, [97] (Fullagar J)].
The state did not act with lawful authority and is liable for wrongful
imprisonment.
Fiduciary duty:
The state continued as a fiduciary throughout his placement and until he
attained his majority in 1974.
The state failed to ensure that the plaintiff was given full information
as to the circumstances of his removal. The state also failed to
ensure that the plaintiff was given access to professional advice.
52
For example, Community Welfare Act 1972 (SA); Aborigines Act 1969 (NSW).
53
Kruger v Commonwealth (1997) 146 ALR 126.
54
[2007] SASC 285.
Page 36 of 59
Negligence:
Legislation has the authority forbid the imposition of a duty of care.
Nothing in either statute excludes the imposition of a duty of care.
The general rule in relation to negligence is that ‘when statutory powers are
conferred they must be exercised with reasonable care…’ [Pyrenees Shire
Council v Day (1998) 192 CLR 330, [177] (Gummow J)].
The consequence of injury in relation to removal and long term
separation from natural parents was readily and reasonably
foreseeable.
The State was dealing with a vulnerable child (with mental
disorders) and therefore had a duty to guard against the risk of
injuries that may arise.
Due to the significant risk of injury, if removal was to be undertaken, it
should have been undertaken in accordance with statutory processes. The
following characteristics form the breach of duty:
Severing the attachment between mother and child would give rise
to a material risk to the child.
Nothing was done to reunite the plaintiff with his mother.
The return of the plaintiff to his mother 10 years later occurred in
unsatisfactory circumstances.
Causation:
All causes of action had at their genesis the plaintiff’s removal from
his natural family and the severing of the attachment between
mother and child.
Cultural identity:
Cultural loss is compensable [Cubillo v Commonwealth (No 2) (2000) 103
FCR 1, [1499] (O’Loughlin J)].
The plaintiff lost ties to his Indigenous community.
The plaintiff has not developed a cultural identity with his people.
Note This case differs substantially from most cases regarding the stolen generation.
The distinguishing factor is that the State did not act in accordance with the
statutory provisions.
Under normal circumstances, cases would not succeed as the removal of
children was a matter of government policy.
Conclusion The State was found liable for causing injury and damage to the plaintiff. The
plaintiff was awarded $450,000.00 for injuries and losses as well $75,000 for
exemplary damages in relation to his unlawful removal and detention.
Ratio Decidendi As the removal of children from natural parents presents a reasonably foreseeable
risk of injury, the State must act in accordance with statutory provisions.
The state may be liable for damages if it fails to act in accordance with
statutory provisions.
Page 37 of 59
The Settlement of NSW and the Reception of English Law
Required reading
The cruelty of the criminal law (pp. 156-157)

The English criminal law was extremely severe as prisoners could be sentenced to death for minor crimes.
The death penalty applied even though prisoners had no right to defence counsel or to give
evidence.
Prison officials owned their offices and they charged fees for goods and services to the inmates.
Severely disadvantaged the poor if they could not pay for food or bedding.
The court system was overcrowded with only 12 superior judges hearing 10,000 cases each year.
The courts dealt with these cases by using extreme formality and speed.
The first fleet (pp. 157-158)

Captain Arthur Phillip (of the Royal Navy, and Captain of the first fleet) was appointed Governor of the new
colony in NSW by an exercise of royal prerogative.
The first fleet carried 1036 people, of whom 736 were convicts.
After the expiration of a convict’s sentence they were entitled to 30 acres if he was on his own, 50
acres if he had a wife and 10 additional acres for every child.
Women were not given land grants.
From 1801, Governors had the right to issue ‘tickets-of-leave’ to convicts which allowed them to
work and live by themselves as long as they stayed in the colony until the expiration of the original
sentence (basically a conditional pardon).
The early legal system (pp. 158-162)

The first Charter of Justice 1786 established two courts:
Court of Judicature: criminal cases.
A military court consisting of a Judge-Advocate (who drew up the indictments, sat on the
bench, directed the jury and voted on guilty or innocence) and six officers.
Sentences of death or corporal punishment.
Court of Civil Jurisdiction: civil cases.
Consisted of a Judge-Advocate and two others appointed by the governor.
Right of appeal to the governor, or if the matter was worth more than £300, to the Privy
Council.
The doctrine of attainder was an English rule whereby a person convicted of a felony was regarded as
‘civilly dead’ and could not sue in civil proceedings.
William Blackstone said that the law of England would apply in a settled colony insofar as it was
applicable to the new circumstances.
To deny civil rights to the convicts would have made the development of the colony
impossible.
However, the law of attaint came to the colony in 1801, whereby assigned convicts could
only sue or be sued in the magistrates’ court.
In 1820, the Supreme Court held that convicts and even people who had been pardon did not have
civil rights. A pardon would only be effective when issued under the Great Seal of the UK.
Page 38 of 59
The powers of the governor (pp. 162-163)
The first Charter of Justice 1788 gave the governor practically unlimited powers (limited only by the
directions of Britain through the Secretary of State for the colonies). The governor was the sole source of
legislative and executive power and the final court of civil appeal.
The Second Charter of Justice 1814 established a Supreme Court with civil, criminal and equitable
jurisdictions. It included a judge and two magistrates.
Appeals could still be made to the governor, or to the Privy Council.
Emancipists versus exclusivists (pp. 163-164)

According to David Neal,55 there were three main groups of people in the new colony:
Aborigines.
Exclusivists: people who came to the colony as military officers or free settlers.
Wished to dominate and to have certain institutions remain at their own hands.
Emancipists: mainly people who came as convicts (and their children) as well as free settlers who
sympathised with their aims or felt abused by the military dominance in the colony.
Wanted to extend power and be allowed to be involved in the organs of power in the colony.
Both these groups campaigned to move the colony from a penal to a free colony with trial by jury, and
representative government.
The fight for trial by jury (pp. 166-167)

One of the ‘birthrights’ of Englishmen which the colonists wished to ensure was the right to trial by jury.
The emancipists sent representatives to London arguing that ‘[the criminal court was a military court
and]… not at all calculated to administer and distribute impartial justice to the free and respectable
population of the colony…’
Criminal cases consisted of a military jury (both colonists and military personnel objected to this).
The New South Wales Act 1823 (4 Geo IV c 96) provided that the governor’s pardon was equivalent a
pardon under the Great Seal.
Permitted for juries in civil cases only if both parties agreed.
Emancipists were excluded from juries until the 1830 amendment of the Jury Act 1829 (NSW).
Juries for criminal trials were attained in 1833.
The governor’s powers and the evolution of an independent court (pp. 167-
169)
In the early colony (1788-1814), the governor had absolute power as the court of appeal, and judges were
direct subordinates of the governor.
The New South Wales Act 1823 (Imp) established the Supreme Court which was more
independent.
Section 29 required that no law could be passed unless the Chief Justice of the Supreme
Court certified that the law was not repugnant to the laws of England.
The Australian Courts Act 1828 (Imp) abolished appeals to the governor from the Supreme Court, and in its
place was a direct appeal to the Privy Council.
The governor’s powers and the fight for representation (pp. 170-173)
The governor’s legislative powers were conferred by the New South Wales Act 1823 (Imp).
This also required judges to invalidate laws if they were repugnant to English law.
Colonists wanted a representative government.
55
David Neal, The Rule of Law in a Penal Colony: Law and Power in Early New South Wales (Cambridge University Press, 1991) 17.
Page 39 of 59
The New South Wales Act 1823 (Imp) allowed ‘representation’ consisting of 5 to 7 unelected
members, appointed by the Crown.
This was extended to 15 members by the Australian Courts Act 1828 (Imp).
The first NSW Constitution (Australian Constitutions Act (No 1) 1842) increased the size of the
Legislative Council to 36, of whom 24 were elected.
To stand for election, candidates had to have significant property qualifications.
In 1852, it was extended to 54 members, of whom 36 were elected.
Other colonies separated from NSW and created their own legislatures, similar to that of NSW.
The Australian Constitutions Act (No 2) 1850 (Imp) separated Victoria and NSW.
Bicameral parliaments were introduced and state constitutions were submitted to London for
approval.
The NSW Constitution was approved in 1855.
Reception of English law (pp. 174-175)

English law applies to the colony insofar as it was applicable to the colony’s circumstances.
Section 24 of the Australian Courts Act 1828 (Imp) made it clear that all English law in force on 28
July 1828 (the ‘date of reception’) was in force insofar as it was applicable.
Phillips v Eyre56 held that any English act which was applicable to a colony ‘by express words or
necessary intendment would be in force in the colony’.
The Colonial Laws Validity Act 1865 (Imp) formalised the doctrines of repugnancy and paramount force.
Which laws were received and which apply today? (pp. 175-178)
Cooper v Stuart (1889) 14 App Cas 286
Lord Watson:
The extent to which English law is introduced in to a British Colony and the manner of its
introduction must necessarily vary according to its circumstances.
Sir William Blackstone (1 Comm 107): ‘if an uninhabited country be discovered and planted
by English subjects, all the English law is then in being, which are the birthright of every
English subject, are immediately there in force… Such colonists carry with them only so
much of the English law as is applicable to the condition of an infant colony’.
As population, wealth, and commerce of the Colony increase, many rules and principles of
English law, which were unsuitable to its infancy, will gradually be attracted to it.
Ratio: English law applies to colonies insofar as they are relevant to the circumstances of the
Colony at a particular time.
56
(1870) LR 6 QB 1.
Page 40 of 59
The Constitutional Framework of the States and the Move to
Independence
Required reading
The constitutional framework of the states and the relationship with Britain
(pp. 185-186)
The constitutional framework of the states was based on British doctrines, including:
Doctrine of parliamentary sovereignty: Parliament has the right to make or unmake any law, and
that no person or body is allowed to override or set aside the law of Parliament.57
Doctrine of responsible government: individual ministers were to be held responsible for their
personal acts, the general conduct of their departments, and the acts or omissions of their
departments.
Section 64: ‘no Minister of State shall hold office for a longer period than three months
unless he is or becomes a senator or a member of the House of Representatives’.58
Bicameralism (p. 187)

In Australia, all states, except Queensland have a bicameral legislature (two houses of parliament).
A ‘house of restraint’ (usually the upper house) will act to check excessive power and operate to
protect minorities.
The powers of parliament (pp. 188-192)

All the state constitutions of Australia give the parliament the power to make laws with respect to the
‘peace, welfare (or ‘order’) and good government’ of the state.
Union Steamship Co of Australia Pty v King (1988) 82 ALR 43
The ‘peace, welfare and good government’ formula has no special semantic significance, but is
simply the conventional formula used by the Imperial Parliament when it wished to confer plenary
power.
A power to make laws for the ‘peace, welfare and good government’ of a territory as
‘connoting, in British constitutional language, the widest-lawmaking powers appropriate to a
Sovereign’.59
Limiting power (pp. 192-193)

Until 1986, there were significant limits on state legislative power.
The Colonial Laws Validity Act 1865 (Imp) applied the several doctrines:
Doctrine of paramount force: the Imperial Parliament could disallow colonial law.
Doctrine of repugnancy: if an Act of Parliament was inconsistent with an Act of the Imperial
Parliament, it was invalid.
Doctrine of extraterritoriality: colonies could not legislate outside its territories.
Changing the constitution – manner and form (pp. 193-197)

State constitutions are flexible and can be changed using statutes. This power is derived from s 5 of the
Colonial Laws Validity Act 1865 (Imp), but is now found in s 6 of the Australia Act (1986):
57
AV Dicey, Introduction to the Study of the Law of the Constitution (Macmillan, 1st ed, 1885, 10th ed, 1959).
58
59
Union Steamship Co of Australia Pty v King (1988) 82 ALR 43, [15] quoting Ibralebbe v The Queen [1964] AC 900, 923.
Page 41 of 59
‘A law made… by the Parliament of a State respecting the constitution, powers or procedure of
the Parliament shall be of no force or effect unless it is made in such manner and form as may
from time to time be required…’
Attorney-General (NSW) v Trethowan (1931) 44 CLR 395
The Legislature of NSW is not sovereignty, and no analogy can be drawn from the position of the
British Parliament. It has a purely statutory origin.
The legislature has full power to regulate its own constitution.
‘There is no reason why a Parliament representing the people should be powerless to
determine whether the constitutional salvation of the State is to be reached by cautious and
well considered steps rather than by rash and ill-considered measures’.60
Section 5 of the Colonial Laws Validity Act 1865 (Imp) allows the legislature to make laws
respecting its own constitution, its own powers and its own procedure.
This power enables legislature to deal with its own nature and composition. The power to
make laws respecting its own procedures enables it to prescribe rules which have force of
law.
If Parliament makes a law about the constitution, powers or procedures of parliament, it may
prescribe a manner and form requirement through double entrenchment.
For example:
(1) Parliament must have a Legislative Council.
(a) Section (1) may only be repealed by referendum.
(b) Section (1) and subsection (a) may only be altered or repealed by
referendum.
Dissenting (Gavan Duffy CJ and McTiernan J):
‘It renders the King, the Legislative Council and the Legislative Assembly assembled in
Parliament powerless to repeal the section unless an external body intervenes and approves
of the repeal. In my opinion, the Legislature, consisting of its three constituent elements in
Parliament assembled, may under s 5 of the Colonial Validity Act, resume the power to
repeal s 7A’.61
This case was affirmed by the Privy Council in Attorney-General for New South Wales v Trethowan
[1932] AC 526.
Moving towards independence (pp. 200-206)

The Privy Council (Appeals from the High Court) Act 1975 (Cth) terminated appeals to the Privy Council
except in s 74 certificate matters.
Viro v The Queen (1978) 141 CLR 88
Issue:
Whether the High Court of Australia is bound to follow the decision of the Privy Council.
Gibbs J: “The modern English rule is said to be that ‘every court is bound to follow any case decided
by a court above it in the hierarchy’ (Cross, Precedent in English Law, 2nd ed, 1968). If this rule is to
be applied the result will be that this Court is no longer bound by the decisions of the Privy Council,
which now does not occupy a position above this Court in the judicial hierarchy”.62
Mason J: ‘The High Court has a unique capacity to decide whether a particular rule or principle of
law is appropriate or adapted to Australian conditions and circumstances, to interpret and apply
Australian statutes in the light of Australian circumstances and to apply Australian law as it has
developed…’.63
Ratio:
60
McCawley’s Case [1920] AC 691, 703-4.
61
Attorney-General (NSW) v Trethowan (1931) 44 CLR 395, 442 (McTiernan J).
62
Viro v The Queen (1978) 141 CLR 88, [24] (Gibbs J).
63
Viro v The Queen (1978) 141 CLR 88, [5] (Mason J).
Page 42 of 59
The High Court of Australia is not bound to follow decisions from the Privy Council. However,
these cases will be highly persuasive.
The Australia Acts
The Australia Act 1986 (Cth) severed all legal ties with the United Kingdom.
Section 1 removed the ability of the British Parliament to legislate for Australia.
Section 2 removed the doctrine of extraterritoriality for the State Parliaments.
Section 3 removed the doctrine of repugnancy for the State Parliaments.
Section 11 removed the ability to appeal to the Privy Council.
In Sue v Hill,64 the High Court held that for the purposes of the Constitution, the United Kingdom is a
‘foreign power’.
64
(1999) 199 CLR 462.
Page 43 of 59
The Commonwealth Constitution and Federalism in Action
Required reading
Fardon v Attorney-General for the State of Queensland (2004) 223 CLR 575.
South Australia v Totani [2010] HCA 39.
Moving towards federation

Before Australian federation could occur people had to vote for it. Federation was fuelled by:
Defence concerns (Germany’s annexation of New Guinea).
Trade concerns (push towards free trade between colonies).
Immigration concerns.
A growing sense of national identity.
The right to vote in Australia

Indigenous Australians
NSW and Vic had no legislation barring Aborigines from voting – but NSW disenfranchised those
who lived in reserves.65
Qld barred Aborigines from voting – but ‘half castes’ could vote.66
WA barred Aborigines from voting67 – but Aboriginals that were made ‘citizens’68 or servicing in the
military could vote.69
SA had no specific legislation barring Aborigines from voting – but the requirement to reside in a
particular place for a specified time disenfranchised most.
The official policy in Tas was that Aborigines had died out.
NT barred Aborigines from voting – unless they were a member of the military or not regarded as
wards.70
Commonwealth Franchise Act 1902 – universal adult suffrage for Commonwealth elections.
Commonwealth Electoral Act 1962 – gave Aborigines the right to vote.
Women
Women received the right to vote and stand for Federal elections in 1902.
Right to Vote Right to Stand for Parliament
SA 1894 1894
WA 1899 1920
NSW 1902 1918
TAS 1903 1921
QLD 1905 1915
VIC 1908 1923
The federal Constitution

At the time of federation, Australia remained a dominion of Britain and was subject to the Colonial Laws
Validity Act 1865 (Imp).
The Statute of Westminster 1931 (Imp) severed the control of the Imperial Parliament over the
Commonwealth in 1942 (retrospective to 1939).
65
Parliamentary Electorates and Elections Act 1912 (NSW).
66
Aboriginal Preservation and Protection Act 1939-1946 (Qld).
67
Constitution Act Amendment Act 1893 (WA).
68
Natives (Citizenship Rights) Act 1944 (WA).
69
Native Administration Act Amendment Act 1954 (WA).
70
Welfare Ordinance 1953-60.
Page 44 of 59
Power and the constitution
The Constitution creates and limits the powers of government.
Responsible government71 – modelled after the Westminster system.
Houses of parliament – modelled after the American Parliament.
Separation of powers:72
The constitution vests the powers of government into separate branches – the legislature,
the executive and the judiciary – which work independently to prevent abuse of power.
Commonwealth and state powers

The Constitution sets out the division of powers between the Commonwealth and State governments
States are bound by the Commonwealth Constitution (ss 106 and 107).
Commonwealth powers are outlined in ss 51 and 52.
State powers are general – but are limited by several constitutional provisions:
States cannot impost customs and excise (s 90).
States cannot raise defence forces (s 114).
If there is an inconsistency between State and Commonwealth laws, the former will be
invalid (s 109).
Rights in the Constitution

Unlike the US Constitution, the Australian Constitution protects only a few rights:
Trial by jury (s 80).
Religious tolerance (s 116).
Equal treatment of state residents (s 117).
Acquisition of property on just terms (s 51(xxxi)).
Implied right to vote.73
Section 41 is a transitional provision which guarantees that adults (over 21) who were
entitled to vote in their own state in 1902 the right to vote in federal elections.74
Implied right of political free speech.75
Changing the Constitution

The Constitution provides a manner and form provision for amending it.
Section 128 requires a majority in each house of parliament and then a referendum requiring the
majority of electors in a majority of states.
Federalism in Action
The doctrine of the separation of powers does not operate at the state level – however, because states
operate in the federal framework and state courts exercise federal jurisdiction, this doctrine has some
application at the state level.
Kable v Director of Public Prosecutions (NSW) (1997) 189 CLR 51
Material Facts The Community Protection Act 1994 (NSW) permitted the Supreme Court to issue
a preventative detention order if it was satisfied on reasonable grounds that a
person is a threat of the community.
Issues Whether this act was an exercise of judicial power by the NSW parliament.
Reasoning, Rules The Act permits the Supreme Court to order a preventative detention order where
and Resources there is not determination of guilty for a criminal offence.
71
72
Commonwealth Constitution ss 1, 61 and 71.
73
Roach v Electoral Commissioner (2007) 233 CLR 162; Rowe v Electoral Commissioner [2010] HCA 46.
74
R v Pearson; ex parte Spika (1983) 152 CLR 254.
75
Nationwide News Pty Ltd v Wills (1992) 177 CLR 1; Australia Capital Television Pty Ltd v Commonwealth (1992) 177 CLR 106; Lange v
Australian Broadcasting Corporation (1997) 189 CLR 520.
Page 45 of 59
This violates the separation of powers because the role of the judiciary is to
determine guilt – thus protecting litigants as their interests are determined
by judges independent from legislature.
Low degree of proof ‘more likely than not’.
The Act was also targeted at one person.
Arguments or Brennan CJ and Dawson J dissented:
Application The doctrine of the separation of powers is not in operation in the State of
NSW. The NSW Constitution is ‘uncontrolled’ and therefore an Act of
Parliament can disregard the doctrine imposed by the Commonwealth
Constitution.
Conclusion The Act was declared invalid as it was inconsistent with Chapter 3 of the
Constitution.
It required the Supreme Court to participate in the making of a
preventative detention order where no breach of the criminal law is
alleged and where there has been no determination of guilty.
Ratio Decidendi An act that requires a court to exercise the judicial power of the Commonwealth in
a manner that is inconsistent with the traditional judicial process (where no breach
of criminal law is alleged and no determination of guilty) is inconsistent with the
separation of powers.
Obiter Dicta The doctrine of the separation of powers does not operate in NSW.
Fardon v Attorney-General (Qld) (2004) 223 CLR 575
Material Facts The Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) allowed continuing
detention of serious offenders who have served their sentences if they were a
serious danger to the community.
Issues Whether this Act confers a jurisdiction upon the Supreme Court which is
inconsistent with the separation of powers.
Reasoning, Rules Decision in Kable was distinguished:
and Resources The legislative plan in Kable was to ‘conscript’ the Supreme Court to
imprison the appellant in a manner which was inconsistent with the
‘traditional judicial processes’.
The intention in this act was not punitive – it was aimed at community
protection.
Unlike Kable (‘more likely than not’), there is a high onus of proof – s 13(3)(b) ‘to a
high degree of probability… that the evince is of sufficient weight to justify the
decision’.
Section 13 is thus, condition on there being an unacceptable risk that the
person will commit a serious sexual offence.
Arguments or Kirby J dissented:
Application Imprisonment without the safeguards of a judicial trial is inconsistent with
the ‘traditional judicial processes’.
Imprisonment must be punitive after final proof of crime and cannot
be used for crimes feared, anticipated or predicted in future.
The law also purports to allow a valid form of double jeopardy by punishing
an offender twice.
Conclusion The Act was not invalid for inconsistency and as within the legislative powers of the
State of Queensland.
Ratio Decidendi Acts designed to achieve a legitimate, preventative, non-punitive purpose in the
public interests with due regard to the conventional judicial process (including
appellate review) are not inconsistent with Ch 3 of the Constitution.
Obiter Dicta See Kirby J’s dissenting judgement.
South Australia v Totani [2010] HCA 39
Material Facts The Finks Motorcycle Club was the subject of a declaration made by the Attorney-
General under s 10(1) of the Serious and Organised Crime (Control) Act 2008 (SA)
(‘SOCC’). The Magistrates Court issued a control order pursuant to s 14(1).
Section 10(1) permits the Attorney-General to ‘make a declaration’ if satisfied of

two criteria:
Page 46 of 59
Members of the organisation associate for the purpose of committing
crimes.
The organisation represents a risk to public safety.
Section 13 states that the Attorney-General does not need to provide reasons for
his or her decision, and is prohibited from disclosing ‘criminal intelligence’.
Section 14(1) requires the Magistrates Court to issue a control ‘if the Court is
satisfied that the defendant is a member of the declared organisation’. This order
will prohibit the defendant from associating with other members of the declared
organisation and possessing articles which is an offence under s 15 of the
Summary Offences Act 1953 (SA).
Issues Whether s 14(1) impairs the institutional integrity of the Magistrates Court of South
Australia, contrary to the requirements of a Ch 3 Court.
Reasoning, Rules French CJ: (agreed with the decisions of Gummow, Crennan, Bell and Kiefel JJ).
and Resources Described three assumptions from the text and structure of Ch 3 which
underlie the adoption of the mechanism reflected in s 77(iii):
1. The universal application of the rule of law which is an assumption
‘upon which the Constitution depends for its efficacy’ [Thomas v
Mowbray76].
2. State courts must be fit to be entrusted with federal jurisdiction.
3. State courts must bear the defining characteristics of courts –
particularly, independence, impartiality, fairness and adherence
to the open-court principle.
The consequences of the constitutional placement of State courts in the
integrated system include:
1. A State legislature cannot confer upon a court a function that
substantially impairs its institutional integrity.
2. Legislation impairs institutional integrity if it confers a function which
is incompatible with the exercise of the judicial power of the
Commonwealth.
3. Institutional integrity requires independence and impartiality.
4. The principle in Kable does not constitute a codification of the limits
of State legislative power. Legislation must be decided on a case-
by-case basis.
State Parliaments may create a law requiring courts to make specific orders
if conditions are met.
It does not permit laws which subject a court to direction from the
executive as to the content of judicial decisions.
The executive action involves findings about a number of factual matters
including the commission of criminal offences. The SOCC Act does not
require these matters to be disclosed to the Court, nor its evidence upon
which such findings were based.
In the exercise of this function, the Magistrates Court loses the
appearance of independence and impartiality.
Hayne J:
The SOCC Act exhibits three features:
1. The court does not ascertain, declare or enforce any right or liability
that exists at the time the proceedings are instituted.
2. The court order creates restrictions on association.
3. The court makes a finding without making any inquiry for itself.
Hayne J summarised the requirements of s 14(1): all these features are
incompatible with the institutional integrity of the court:
1. The court must make a control order against a person shown to be
a member of a declared organisation.
2. The control order imposes significant restrictions on freedom of
76
(2007) 233 CLR 307, 342 (Gummow and Crennan JJ).
Page 47 of 59
association.
3. The control order must be imposed without any judicial
determination that the defendant has, will or may engage in
criminal conduct.
4. A control order will preclude association with others in respect of
whom there has been no judicial determination.
5. A control order creates new norms of conduct, contravention of
which is a crime.
6. Making a control order does not ascertain, declare or enforce any
right or liability.
The definition of ‘member’ in s 3 is so wide that it would go beyond those
who maintain formal membership of the relevant organisation.
Courts may be required to impose sanctions on any person who
falls within that extended definition, regardless of what the person
has or has not done, and regardless of what purposes that person
has had, or may now or later harbour, for having a connection with
the organisation.
Arguments or Dissenting Argument (Heydon J):
Application To invalidate laws enacted by legislature is a ‘serious step’ as it obstructs
the legislator’s duty to procure legislation to prevent crime.
Section 14(1) does not impair the court’s ability to make a decision:
The court must inquire whether the defendant is a member of a
declared organisation.
Conclusion Section 14(1) is invalid as it impairs the institutional integrity of the Magistrates
Court. This is because s 14(1) authorises the executive to enlist the Magistrates
Court to implement decisions of the executive in a manner that is incompatible with
the requirements of a Ch 3 court.
In this case, the Magistrates Court lost the appearance of independence
and impartiality as Section 14(1) imposed a duty that required an action
without any real judicial decision.
The appeal was dismissed, with costs (against the State of South Australia).
Ratio Decidendi Legislation that impairs the institutional integrity of a court will be invalid.
Obiter Dicta Whether the impugned legislation provides for an adjudicative process does not
determine the question whether it impairs the institutional integrity of courts. The
laws held invalid in Kable and International Finance Trust Co Ltd77 both allowed for
an adjudicative process by the court.
Wainohu v The State of New South Wales [2011] HCA 24
Material Facts The Crimes (Criminal Organisations Control) Act 2009 (NSW) allows the
Commissioner of Police to apply to an ‘eligible judge’ for a declaration under pt 2.
Under s 13(2), the eligible judge had no obligation to provide reasons for making or
refusing to make a declaration. If a declaration was made, the Supreme Court was
empowered to make control orders against individual members.
Issues Whether this act impaired the institutional integrity of the NSW Supreme Court
Conclusion The act impaired the institutional integrity of the Supreme court due to the absence
of an obligation to give reasons for the declaration.
Ratio Decidendi Legislation that impairs the institutional integrity of a court will be invalid.
77
(2009) 240 CLR 319.
Page 48 of 59
Independent Attitudes, Race and Justice
Required reading
ed, Melbourne, 2009), pp. 231-263 (Chapter 10)
Mabo & Ors v Queensland (No 2) (1992) 175 CLR 1

Facts
The Murray Islanders imitated an action against Queensland, arguing that they owned their land
and had always owned it. The Queensland Parliament enacted the Queensland Coast Islands
Declaratory Act 1985 which retrospectively annexed the islands in the Torres Strait which also
extinguished all Indigenous land rights. Mabo (No 1) (1986) held that the act was invalid.
Early contact with Europeans
The Meriam people occupied the island for generations before the first European contact.
According to Moynihan J: ‘Communal life based on group membership seems to have been
the predominant feature of life’. The findings show that Meriam society was regulated more
by custom than by law.
E.g. Malo’s law.
The theory of universal and absolute Crown ownership
According to the judgement in Attorney-General v Brown,78 the Crown acquired absolute beneficial
ownership of all land in the territory. This rests on a number of bases:
The Crown is the absolute owner because there is no other proprietor.
The common law applied to the colonies included the feudal doctrine of tenure.
The Crown acquired ownership of the patrimony on behalf of the nation.
The doctrine of exclusive Crown ownership of all land in the Australian colonies was affirmed by
New South Wales v The Commonwealth.79
The Court is not able to adopt rules that accord with contemporary notions of justice and human
rights if their adoption would fracture the skeleton of principle which gives the body of our law its
shape and internal consistency.
No case can command unquestioning adherence if the rule it expresses seriously offends
the values of justice and human rights (especially equality before the law).
The acquisition of sovereignty
The manner in which a sovereign state might acquire new territory is governed by international law:
Conquest.
Cession.
Settlement – occupation of territory that was terra nullius.
Justified by the notion that Indigenous peoples were ‘backwards peoples’ and that
the territory was uncultivated.
Reception of the common law
When ‘desert uninhabited countries’ were colonised, English settlers brought with them ‘so much of
the English law as was applicable to their own situation and condition of an infant colony’.80
The Indigenous inhabitants had no recognised sovereignty – otherwise the territory could
only have been acquired by conquest or cession.
The Meriam people in 1879 became British subjects and were entitled to such rights and
privileges subject to such liabilities and the common law and statutes provided.
78
(1847) 1 Legge 312.
79
(1975) 135 CLR 337.
80
Commentaries, Bk 1, ch 4, p. 107; State Government Insurance Commissioner v Trigwell (1979) 142 CLR 612, 625.
Page 49 of 59
The basis of the theory of universal and absolute Crown ownership
The Court had the choice to apply existing authorities and determine whether the Meriam people
are higher ‘in the scale of social organisation’ than the Australian Aborigines whose claims were
disregarded or the Court could overrule the existing authorities.
‘A common law doctrine founded on unjust discrimination in the enjoyment of civil and
political rights demands reconsideration. It is contrary both to international standards and to
the fundamental values of our common law to entrench a discriminatory rule which, because
of the supposed position on the scale of social organisation of the Indigenous inhabitants of
a settled colony, denies them a right to occupy their traditional lands.’81
The feudal basis of the proposition of absolute Crown ownership
There is a natural assumption that the doctrine of tenure is the basis of the law of the land. It is a
doctrine that cannot be overturned without fracturing the skeleton principle.82
Land in Australia which has been granted by the Crown is held on a tenure of some kind and
the title acquired under the accepted land law cannot be disturbed.
The notion of radical title allows the Crown to become the absolute beneficial owner.
A mere change in sovereignty does not extinguish native title to land.
‘The common law of this country would perpetuate injustice if it were to continue to embrace
the enlarged notion of terra nullius and to persist in characterising the Indigenous inhabitants
of Australian colonies as people too low in the scale of social organisation to be
acknowledged in possessing rights and interests in land’.83
The nature and incidents of native title
If there are no pre-existing laws which provide for the alienation of interests in land, the rights and
interests which constitutes a native title can be possessed only by the Indigenous inhabitants.
Where a clan has continued to acknowledge the laws and (so far as practicable) to observe
the customs, whereby the traditional connection with the land has been substantially
maintained, native title remains in existence.
However ‘when the tide of history has washed away any real acknowledgement of traditional
law and any real observance of traditional customs, the foundations of native title has
disappeared’.84
The extinguishing of native title
The exercise of a power to extinguish native title must reveal a clear and plain intention to do so.
Summary of Australian common in relation to native title
1. The Crown’s acquisition of sovereignty over several parts of Australia cannot be challenged in an
Australian municipal court.
2. The Crown acquired radical title to the land.
3. Native title survived the Crown’s acquisition of sovereignty and radical title.
4. Where the Crown has validly alienated land by granting an interest that is inconsistent with a right to
enjoy native title, native title is extinguished to the extent of the inconsistency.
5. Where the Crown has validly appropriated land to itself and the appropriation is inconsistent with a
right to enjoy native title, native title is extinguished to the extent of the inconsistency.
6. Native title is ascertained according to the laws and customs of the Indigenous people who, by
those laws and customs, have a connection with the land.
7. Native title is extinguished if the clan ceases to acknowledge traditional laws, observe those
customs, loses its connection with the land or on the death of the last member.
8. Native title can be surrendered voluntarily to the Crown.
9. If native title is extinguished, the Crown becomes the absolute beneficial owner.
81
Mabo & Ors v Queensland (No 2) (1992) 175 CLR 1, [42].
82
83
84
Page 50 of 59
Conclusion
The Meriam people are entitled to possession, occupation, use and enjoyment of the island of Mer.
Ratio
The Crown did not assume full beneficial ownership upon arrival. Instead, it acquired radical title.
Native title rights can exist when:
Indigenous people can prove a continuing spiritual connection with the land through
traditional customs.
Native title has not been extinguished by legislation.
Native title after Mabo

The Keating Government passed the Native Title Act 1993 (Cth) to establish a legislative framework for the
principles stated in Mabo.
The Wik Peoples v Queensland (1996) 187 CLR 1

Facts
The Wik People sought native title over an area of land in which pastoral leases had been granted
by the Crown to non-Aboriginal lessees.
Majority (Gummow, Gaudron, Kirby and Toohey JJ)
The authorities in English expressed concern that the grant of pastoral leases should not be used to
prevent Aborigines from using the land for subsistence purposes.
In 1900, the Northern Protector of Aborigines warned against dispossession of blacks from
their hunting-grounds and sources of water supply.
Against the background, it is unlikely that legislature in authorising the grant intended to
exclude Aboriginals from their traditional rights of hunting and gathering.
There was nothing in the statute or the lease which conferred on the grantee rights to exclusive
possession.
Dissenting argument (Brennan CJ, McHugh and Dawson JJ)
The rights of the lessee and the rights of native title holders cannot be fully exercised at the same
time.
In Hamlet of Bake Lake v Minister of Indian Affairs, Mahoney J said with reference to Indian
land rights in Canada that ‘the coexistence of an aboriginal tittle with the estate of the
ordinary private land holder is readily recognised as an absurdity’.85
If the rights conferred on the lessee of a pastoral lease are inconsistent with a continue right to
enjoy native title, native title is extinguished.
Conclusion
There was no extinguishment of native title rights by reason of the grant of pastoral leases under
the Acts in question (The Land Act 1910 (Qld) and The Land Act 1962-1974 (Qld)).
Ratio
Pastoral leases will not necessarily extinguish native title. The rights and obligations of the grantee
(of the lease) will depend upon the terms of the grant of the pastoral lease and upon the statute that
authorised it.
If inconsistency is held to exist between the rights and interests conferred by native title and
the rights conferred under the statutory grants, those rights and interest must yield, to that
extent, to the rights of the grantees.
85
(1979) 107 CLR (3a) 513, 549 (Mahoney J).
Page 51 of 59
‘Native Title in the HCA a decade after Mabo’86
In Members of the Yorta Yorta Aboriginal Community v Victoria,87 the High Court considered under what
circumstances Indigenous connection to land will warrant recognition in Western law as native title.
Mabo created a perception that Indigenous groups would need to demonstrate a basic continuity
of traditional identification with and connection to land.
In Yorta Yorta, the High Court refused recognition of native title:
The Yorta Yorta’s relationship lacked ‘traditional’ character and that the ‘interruptions’ to
traditional life severed the necessary connection between the original people and the Yorta
Yorta society of today.
Acknowledgement and observance of traditional law and custom ‘must have continued
substantially uninterrupted since sovereignty’.88
‘The Interaction of WA Law with Aboriginal Law and Culture’89

Aboriginal people emphasised that their traditional law was a part of everything, was within everyone and
governed all aspects of their lives.
This includes their rights and responsibilities as well as the land and natural resources.
Who is bound by customary law?
Voluntariness is the guiding principle in the application of customary law.
Do conflict between Aboriginal customary law and international law create a barrier to recognition?
There are three main areas of potential conflict between customary law and international human
rights law:
Specific recognition of the laws of a section of society would violate the principle of equality
before the law.
The recognition of particular Aboriginal customary practices may contravene international
laws (such as spearing and non-consensual child marriage).
The recognition of collective rights as against the individual rights of women under
international law.
The threshold for recognition is that customary law must be consistent with international human
rights standards.
Functional recognition
Functional recognition refers to recognition of Aboriginal customary law for particular purposes in
defined areas of law. This is achieved by reforms such as:
Introduction of statutory provisions requiring courts and other agencies to consider aboriginal
customary law in the exercise of their discretion.
Introduction of methods of self-governance.
Recognition and removal of existing cultural biases.
Recognition of traditional Aboriginal marriage.
The empowerment of Aboriginal Elders to play an active role in the administration of justice.
Reconciliatory recognition
Recommendations that address the decline in cultural authority among Aboriginal people and
communities.
These include symbolic reforms such as acknowledging the cultural heritage of Aborigines in
the Constitution.
86
S Brennan, ‘Native Title in the High Court of Australia a decade after Mabo’, (2003) 14 Public Law Review 209, 213.
87
[2002] HCA 58.
88
[2002] HCA 58, [87] (Gleeson CJ, Gummow and Hayne JJ).
89
WA Law Reform Commission, Final Report The Interaction of WA Law with Aboriginal Law and Culture, 2006, Chapter 4: ‘Recognition of
Aboriginal Customary Law’.
Page 52 of 59
Theories of Judicial Decision Making and the Doctrine of Precedent
Required reading
ed, Melbourne, 2009), pp. 337-359 (Chapter 13); pp.178-182 (Chapter 7).
Theories about precedent (pp. 337-342)

Natural law refers to a system of law common to all people, derived from the supreme force in the
universe, or God.
Recognised the relationship between law and morality.
Positivism is the belief in a system of law created by men.
Positivists argued for law as a science.
Austin defined law as one ‘set by a sovereign person… to a member of that political society wherein
that person or body is sovereign or supreme’.
This is known as the ‘command theory’ of law.
Out of positivism emerged legal formalism which refers to a system of ‘continuity, objectivity and absence
of controversy, attributes calculated to induce public confidence in the administration of justice and respect
for the law’.90
This view is connected to the ‘declaratory theory’ of law, based on the idea that judges engage in
a kind of detective work and after investigating previous cases ‘find’ the law and then declare what it
is and what it has always been.
One of the most important counter-theories to legal formalism was legal realism which refers to the
general trend of the time away from the metaphysical understanding of truth and to an understanding of
truth based on observation and experience.91
Realism recognised that formalist theories did not answer the question of how judges decide which
cases are alike.
Critical legal studies (CLS) refer to a set of theories regarding deconstruction to show that there are
always many alternative arguments that can be used in a legal case.
CLS is a leftist response to the conservative tradition.
While the declaratory theory of law has been rejected, some people are concerned about judicial
activism. But in Mabo (No 2), Brennan J argued that changes being made were legitimate and set out the
bounds of legitimate change:
‘In discharging its duty to declare the common law of Australia, this Court is not free to adopt rules
that accord with contemporary notions of law and justice if their adoption would fracture the
skeleton of principle which gives the body of our law its shape and internal consistency’.92
Using legal argument (pp. 343-357)

The fact that a judge has to give reasons for his or her decisions helps to prevent the decision from being
merely arbitrary.
Dugan v Mirror Newspapers (1979) 142 CLR 583
Facts:
Dugan was sentenced to death for the felony of wounding with intent to murder. The
sentence was commuted to imprisonment for life. While serving his sentence, he
commenced an action against Mirror Newspapers, which he alleged had defamed him. At
trial, Dugan was held to be attained because he had been sentenced to death.
Majority (Jacobs J – Barwick CJ, Mason, Aickin and Gibbs JJ):
90
Sir Anthony Mason, ‘Future Directions in Australian Law’ (1987) 13 Mon ULR 149, 156.
91
John Dewey, ‘Logical Method and Law’ (1924) 10 Cornell Law Quarterly 17.
92
Mabo v Queensland (No 2) (1992) 175 CLR 1, [29] (Brennan J).
Page 53 of 59
A man convicted of a felony and duly sentenced to death was attained so long as the
attainder endured.
The death penalty was abolished in NSW in 1955. Thereafter attainder became
obsolete in NSW.
Sections 467 and 469 of the Crimes Act 1900 (NSW) were repealed in 1974 and
1970 respectively but until then they stood in statute law of NSW as a recognition
that there was a disability at least in an attained felon to sue.
Application for special leave to appeal refused with costs.
Dissenting (Murphy J): adopted a human rights approach.
The principles of attainder are contradictory to the rule of law and due process.93 It is also
contrary to international human rights standard, in particular the rights to recognition before
the law and the right to access the judiciary.
The doctrine of attainder does not accord with modern standards in Australia.94
The doctrine is anachronistic and even if it applied in the common law of NSW in the past,
it no longer applies.
This is because of parliamentary history which seems to contradict the existence of
the doctrine of attainder.
95
James Boyle
Precedential, rule-based and interpretive arguments:
Purposive interpretation vs. formalist interpretation:
Formalist: explaining the meaning of the word out of context.
Purposive: to find the purpose which lies behind the rule and define the words in light
of this purpose.
Broad rule vs. narrow rule:
Narrow rule: tie the rule to the facts of the particular case so that it would not be
capable of deciding a case in which the facts were even marginally different.
Broad rule: take each of the phenomena in the case and make them as ‘abstract’ as
you can.
General manipulation of precedent:
To make cases seem more or less relevant.
Non-precedential or ‘policy’ arguments:
Firm rule:
By laying down a standard which can be easily administered and will enable citizens
to order their affairs in the knowledge of what the law is.
Contrastingly, the rule is harsh and of a rigid standard which is unfair.
Institutional competence:
This issue is uniquely suitable for the courts.
This issue cannot be decided by the courts as it’s a matter which should be left for
the legislature.
Moral arguments:
On the ‘formal’ classification of the dispute.
On the ‘substantive’ relative social power of the people involved.
Deterrence or social utility arguments: deter bad conduct.
Flexibility.
Stability.
Economic arguments:
Encompasses a cost-benefit analysis.
93
Ex parte Hull (1940) 312 US 546; Bounds v Smith (1977) 430 US 817.
94
Report of the Royal Commission into New South Wales Prisons.
95
James Boyle, ‘Anatomy of a Torts Class’ (1985) 34 American University Law Review 1003, 1051-63.
Page 54 of 59
The Public/Private Distinction and the Role of Public Policy
Required reading
The public/private law distinction

Two of the strongest classificatory divisions in Australian law are the division between public and private
law.
Public law: deals with the relationships between government organisations and ordinary citizens.
Constitutional law
Administrative law
Criminal law
Private law: deals with the relationships between ordinary people in everyday transactions.
Contract law
Tort law
Family law
Property law
Equity.
R v Wright [1999] VSCA 145

Material Facts Wright and Watson were 17 years old when they stole a van while intoxicated.
Wright did not have a licence and was travelling at 97-100km/p. The van hit a tree
and Watson died. Wright was charged with culpable driving causing death (which
includes gross negligence).
Issues Whether the trial judge erred in his discretion to the jury on gross negligence.
Reasoning, Rules ‘The form of culpability charged in the presentment was negligence… the applicant
and Resources failed unjustifiably and to a gross degree to observe the standard of care which a
reasonable person would have observed in all circumstances of the case’ (Section
318(2)(b) Crimes Act 1958 (Vic)).
R v Shields [1981] VR 717, 724:

‘the Crown must prove that the accused failed unjustifiably and to a gross degree
to observe the standard of care which a reasonable person would have observed
in all the circumstances of the case’.
Andrews v DPP [1937] AC 576:

‘In a civil case once negligence is proved the degree of negligence is irrelevant…
In a criminal court, the amount and degree of negligence are the determining
question’.
‘In order to establish criminal liability the facts must be such that, in the opinion of
the jury, the negligence of the accused went beyond a mere matter of
compensation between subjects and showed such disregard for the life and safety
of others as to amount to a crime against the state and conduct deserving
punishment’.
Conclusion The conviction was upheld, but the appeal as to sentence was allowed and parole
was recommended.
Ratio Decidendi Negligence in civil law and criminal law are significantly different. As the criminal
law protects citizens, and includes harsher sanctions, the standard of proof is
much higher.
R v Wacker [2003] QB 1207
Page 55 of 59
Material Facts The defendant drove a lorry which 60 Chinese people hidden in a container,
attempting to facilitate the entry of illegal immigrants. When customs inspected the
lorry, 58 of the immigrants had suffocated and Wacker was charged with 58 counts
of manslaughter.
Issues Whether the civil law rule that duty of care would arise in a joint illegal activity in a
case of criminally negligent manslaughter.
Reasoning, Rules In civil cases, ‘no action arises out of a dishonourable cause’. As a matter of public
and Resources policy the courts will not ‘promote or countenance a nefarious object or bargain
which it is bound to condemn’ (Saunders v Edwards [1987] 1 WLR 1116, 1134).
The criminal law has as its function the protection of citizens and will not hesitate to
act to prevent serious injury or death even where the persons subjected to such
injury or death may have consented to or willingly accepted the risk of actual injury
or death.
For example, the criminal law makes assisted suicide a criminal offence.
As a matter of public policy, the criminal law will not hold a person criminal
responsible even if death was because the two were engaged in some joint
unlawful activity.
Conclusion The conviction was upheld and the appeal was dismissed.
Ratio Decidendi Negligence in civil law and criminal law are significantly different. As a matter of
public policy, the criminal law will hold individuals responsible regardless of the civil
law ‘defence of illegality’.
Page 56 of 59
The Modern Distinction between Law and Equity
Required reading
The modern distinction between law and equity (pp. 278-294)

Equity is a body of law that arose to correct and modify the harshness and inflexibility of the common law.
Equitable remedies will be given where:
An equitable right is infringed.
Where it is thought that the common law remedy is inadequate.
Equitable remedies include:
Specific performance.
Injunction.
Declaration: declare a contract void.
Estoppel.
In 1870-72, the English Judicature Act reformed the law so that both law and equity could be done in the
same court. All Australian jurisdictions except Tasmania and NSW adopted this reform by 1883.96
Tasmania – 1934.97
New South Wales – 1972.98
The equitable maxims include:
Equity will not suffer a wrong to be without a remedy.
Equity follows the law.
Where there is equal equity the law shall prevail.
Where the equities are equal, the first in time prevails.
He who seeks equity must do equity.
He who comes to equity must come with clean hands.
Delay defeats equity.
Equity looks to the intent rather than to the form.
Equity looks on that as done which ought to be done.
Equity imputes an intention to fulfil an obligation.
Equity acts in personam (or against a person’s obligations and actions).
There are still significant differences between equity and common law – particular whether punitive
damages can be awarded in equity.
Ashburner said ‘the two streams of jurisdiction, though they run in the same channel, run side by
side, and do not mingle their waters’.99
Meagher, Gummow and Lehane refer to: ‘the fusion fallacy [which] involves the administration of a
remedy, not previously available either at law or in equity; or the modification of principles in one
branch of the jurisdiction by concepts which are imported from the other and thus are foreign’.100
In New Zealand, in Aquaculture Corp v New Zealand Green Mussel Co Ltd,101 it has been held that
the principles of compensation for common law damages and for breach of equitable duties are
equivalent.
Harris v Digital Pulse Pty Ltd (2003) 56 NSWLR 298
Material Facts Harris and Eden were employees of Digital Pulse. Under their employment
96
Supreme Court Act 1880 (WA); Judicature Act 1883 (Vic); Supreme Court Act 1978 (SA); Judicature Act 1876 (Qld).
97
Judicature Act 1932 (Tas).
98
Supreme Court Act 1970 (NSW).
99
W Ashburner, Principles of Equity (Butterworths, London, 2nd ed, 1933) 18.
100
R P Meagher, W M C Gummow and J R Lehane, Equity: doctrines and remedies (Butterworths, Sydney, 3rd ed, 1992) 47.
101
[1990] 3 NZLR 299.
Page 57 of 59
contracts, they were not permitted to compete with the company. However, they
started their own business and took some of Digital Pulse’s clients. They also
misused confidential information.
Issues Whether punitive damages should be awarded in the equity jurisdiction.
Reasoning, Rules Spigelman CJ:
and Resources Breach of fiduciary duty is analogous to breach of contract.
Punitive damages are not recoverable for breach of contract [Gray v
Motor Accident Commission (1998) 1996 CLR 1].
Equity requires a balancing exercise.
‘Equity is concerned with the conscience of both parties, so that a
balancing exercise is always required… It is by reason of a
balancing process of what is just inter partes (between the parties),
that a subsidiary principle to the effect that equity does not punish...’
[See especially Vyse v Foster (1872) LR 8 Ch App 309, 333]
An award of punitive damages would be incompatible with the principles
applicable to the contract both at common law and in equity.
Nothing suggests that, in cases of a contract enforceable at
common law, equity would intervene to override the application of
the common law doctrine of penalties.
Common law and equity are distinct:
‘Each of tort, contract and equity, constitute distinct bodies of
doctrine with their own history. There is an interaction between each
area of law and the lines are often blurred, but they remain distinct
bodies of doctrine’.
Heydon JA:
Equity does not punish.
The aims of exemplary damages are to punish, to deter and to
vindicate the victim’s feelings and thereby abate the urge for self-
help or violent retribution.
To award punitive damages in equity would ‘confuse the function of the civil
law with the function of criminal law’.
Arguments or Mason P dissenting:
Application The concept of a ‘fusion fallacy’ is fallacious and historically unsound.
Both equity and common law had ‘adequate powers to adopt and
adapt concepts from each other…’
The flexibility to do justice is one the defining features of equity –
‘in its auxiliary jurisdiction, equity has embraced the role of
supplementing the inadequacies of common law remedies. It has
always claimed a right of intervention if appropriate to achieve a just
result’.
Policy reasons in favour of breaking the barriers of separation between law
and equity:
Need for coherence: ‘the availability of exemplary damages should
be coextensive with the rationale of the remedy. That rationale is
the composite goal of punishing, deterring and vindicating a person
who is the victim of wrongdoing…’
Ability to do justice: ‘[it is] absurd to think that a plaintiff whose life
savings were stolen by a solicitor would have any difference sense
of outrage depending upon whether the defendant was sued at
common law for deceit or in equity for breach of fiduciary duty…’
Conclusion Judgement in favour of the appellant.
Ratio Decidendi Narrow ratio – the law of NSW does not recognise a power to award exemplary
(punitive) damages for equitable wrongs of the type involved in the circumstances
of this case (breach of fiduciary duty which is derived from contractual obligations).
Obiter Dicta Leaves open the possibility of awarding punitive damages in equity – however this
should be done by the High Court.
Page 58 of 59
Page 59 of 59

David Yangs ILJ Notes

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FOUNDATIONS

Introduction (pp. 3-4)

A snapshot of the current Australian legal system (pp. 5-8)

The distinctiveness of Australian law (pp. 8-9)

Australian law as an example of a common law system among other systems

International law (pp. 23-32)

Adversarial and inquisitorial procedures (pp. 269-272)

Jurisdiction (pp. 297-299)

State courts (pp. 299-303)

Federal courts (pp. 304-308)

Federal-state court interaction (pp. 309-310)

Introduction (pp. 35-36)

The effect of Norman Conquest (pp. 36-38)

Royal justice (pp. 39-42)

The Curia Regis (p. 42)

The royal justice system (pp. 43-44)

Trial by jury (pp. 44-46)

The church (pp. 51-53)

Women’s place (pp. 54-55)

The forms of action (pp. 63-68)

Law reporting (pp. 73-78)

The need for law reform (pp. 78-79)

Introduction (p. 328)

The classic formation (pp. 328-331)

What is binding? (pp. 321-332)

The hierarchy of authority (pp. 332-333)

Precedent and change (pp. 334-337)

Tuberville v Savage (1796) 1 Mod 3

Introduction to intentional torts

Defences to intentional torts

Tuberville v Savage (1796) 1 Mod 3

Proof of assault requires an intention to create in another person an apprehension

A means of escape will be unreasonable if it involves ‘risk to life or limb’

Langridge v Levy 2 Meeson & Welsby 519 (1837).

Forms of action to causes of action

The development of negligence

Duty exists even without an implied contract or fraud.

If a manufacturer puts an article of food in a container which he knows will be

Parliament in action: how a bill goes through parliament

The relationship between common law and statute

The traditional rules of interpretation

The statutes of interpretation: the modern approach

The king versus the common law (pp. 88-102)

King, parliament and common law (pp. 102-105)

Parliament and the civil war (p. 105)

The ‘Restoration’ and the Glorious Revolution (pp. 106-107)

Bill of Rights 1689 (pp. 108-110)

The rule of law (pp. 111-112)

Rule of law (supplementary materials)

Sovereignty and proprietorship (pp. 118-122)

Colonial attitudes (pp. 123-128)

Social justice and the legacies of 1788 (pp. 131-136)

Removing children: the stolen generations (pp. 137-152)

The cruelty of the criminal law (pp. 156-157)

The first fleet (pp. 157-158)

The early legal system (pp. 158-162)

Emancipists versus exclusivists (pp. 163-164)

The fight for trial by jury (pp. 166-167)

Reception of English law (pp. 174-175)

Bicameralism (p. 187)

The powers of parliament (pp. 188-192)

Limiting power (pp. 192-193)