Module 3: Development

of Anglo-Australian Law

Colonisation to
federation
What is Common Law?
Video One
Common law
● The laws created, developed and applied by judges sitting in court deciding on civil or criminal
cases
● Laws created by the judiciary
● Broad: legal principles articulated by judges in individual cases by court: emanates from individual
cases
● Doctrine of Precedent: Judges following the decisions of other judges in previous cases
○ What principles and reasoning was applied
● Documented in law reports/books→ create precedent and applied in new cases
History
● 13th cent: each shire had their own customs and laws, enforced in different ways under the feudal
system
● Local courts- informal public assembly “trial by ordeal” (activities to est truth eg picking up red hot
iron)
○ If a person was innocent God would intervene
○ More acquittal than convictions
○ By 13th century it was condemned by the church
● 1066: William the Conqueror
○ Invades Britain and first king → tried to produce a unified system of law throughout UK:
unitary
○ Needed a central system of justice to make sure he had power, obedience and est order in
unruly kingdom
● Curia Regis: The King’s Court
○ Court of law + royal household involving king and trusted advisors
 ○ People would bring disputes here for king to resolve
○ In order to maintain authority over country, King+court would travel across country (go on
tour)
■ Citizens come and bring their disputes, complaints, accusations
○ King + advisors would make a decision + make a ruling
■ Court of King’s Bench
○ Beginning of centralised system of law
● Jury system: royal ministers/justices would travel around to determine the value of manorial estates
for taxation calculations
○ Called 12 free men to testify the value of each estate
○ Jury responsible for finding facts in civil and criminal cases
● 12th Century
● Roughly when vendetta/blood feuds ended (coincided with
1154: Henry II the Angevin king took the throne
● Wanted to regain stability and deal with rampant crime during a turbulent era
● Judges were sent out on circuit
○ 18 judges in the entire country: 5 stayed in london (kings bench of judges in Westminster)
■ Less likely for corruption/influence since they did not know people in the local area
● Declaration of Assize: (lasted till 1971)
■ Continuing circuit system
○ Dispensing the King’s justice: applied laws made in Westminster
○ Local law was replaced with laws that were common to all
○ Decisions of judges soon became recorded and published→ past precedence was applied
and cited in later cases
■ Spread of common law to the entire country
● Used jury to deal with criminal cases: 12 good lawful men brought together to identify criminals in
the community
● 1272 Edward I: the yearbooks→principal source of materials for the development of legal
doctrines, concepts and methods
○ Common law developed into the recognisable form
■ Written in french/latin
■ Local laws and customs faded away
■ Rights to property, violence
● 1765-1769→18th century: Blackstone was the first to bring together all of the common law of
England, to state the entire corpus of the entire law
● William Blackstone: “the common law is to be found in the records of our several courts of justice,
in book reports and judicial decisions, in treatises, prescribed and handed down to us from the times
of ancient antiquity. Which gave rise to a collection of maxims and customs ”
● Idea that innocent people should not be punished
Reflections
● The courts:
○ Punished criminals
○ Peaceful dispute resolution instead of violence
■ Bring grievances to be remedied in public forum
■ Courts underpinned social order and supported tranquillity of the states (social
harmony)

● Equity: the rules developed to mitigate the severity of constraints of the common law
 ○ Developed as comp then
○ Merged with common law in the 19th cet with judicature acts
15th cent: development of equity
● Common law courts had issues
○ slow, expensive, technical
○ Juries used in civil and criminal cases
■ Could be influenced by intimidation/bribes
○ System of writs→ ridgid
● Writ: Permission a person needs to have their case heard by king
○ When people felt like the common law court did not resolve the issue they would petition
the king:
■ plead directly with him
■ Appeal to the king’s conscious for a remedy
○ King is the fountainhead of justice
● Court of Chancery
○ King passed/delegated the petition to the chancellor
■ (clergymen, bishop (learnt civil and canon law)) → set up court of chancery
○ Rather than looking at precedents, they would morally right and what seemed fair to
specific circumstances + effect of the case
○ Drew on equitable maxims (legal principles), but not as strict as the common law
approach
○ More fluid, flexible and broad approach

● 1474: independence of the court of chancery separately from the King's Court
○ Separate court
○ New procedure, rights and remedies
○ Alternative system of law
● Equity recognised ideas of trusts: an individual could hold legal titles on behalf of someone else
● Equity of redemption: offering remedies common law courts couldn’t offer
● Conditions for person seeking help;
○ Prove they would not be able to attain justice in common law courts
○ Plaintiff must be blameless: come to the court with clean hands
● Remedies,
○ Devise a way to make things right
○ Compensation (money): common law
○ Specific performance
■ Order from court ro make someone do an action
○ Rectification
○ Injunction
■ Order from court prohibiting something
○ Rescission
● Offers something more valuable than compensation
19th Century: issues arose in court of chancery
● Some decisions were arbitrary
● Expensive and lengthy cases= traumatic for victims seeking remedies
1873 Common law and equity courts were combined
● Judicature acts 1873-1875
● All courts deal with both remedies