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Foundations Of Law Notes

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? Unreported judgment: name, year, court identifier, judgment number. ___________________________________________________________________________ What was the development of the Royal Courts and the Common Law through history- chapter 3?
? Anglo Saxons ruled. They left us with the writ, the sheriff, a court officer, the notion all are subject under the law and the notion of the King's peace. Alfred the Great unified the Anglo Saxons into one kingdom. They had local law that did not apply to the whole country and customary law rather than written law.
? 1066: William of Normandy invaded England and became king, an absolute monarch with no limits. o The effects: The Normans introduced a feudal society. Landholding was mixed with lordship. The King owned all the land and granted it to those bellow him. In return, an obligation to the King was owed. It turned on the person directly above and bellow you. o William added laws in an ad hoc way. Henry I and Henry II developed the common law more. o There was trial by battle or ordeal or jury. Henry II made jury the normal standard of trial. o The King's court was called the Curia Regis. They were advisers to the king, similar to the witanegemot of the Anglo Saxons. It later became the courts that operated in the King's absence.
? 12th century: o Henry II developed a system of sending judges in eyre to places at particular times. Judges went to see if taxes and fines had been paid and to hear disputes. The king's justice was applied and consistency occurred because local courts were not only relied on o People started running away to hide so 5 judges stayed at Westminster to hear matters. The royal justice system was consistent, it had the same judges and consistent principles developed. The Court of Common Pleas was developed to hear land disputes. The Exchequer managed finances and heard disputes. The Chancery coordinated the departments.
? 1200s: Exchequer was divided into Exchequer of Receipt (took money) and the Exchequer of Pleas (summoned defendants through writs).
? 1215: Royal Courts that stayed in England= Exchequer (revenue, taxes), King's Bench (followed the king) and the Court of Common Pleas (trespass and debt- had a monopoly on cases). On Eyre still occurred.
? The Church: A spiritual and temporal court (ecclesiastical courts) was established (went till 1857) where cannon law was applied. o Softer punishments were used and ordeal was abolished in 1215. o It provided for sanctuary and abjuration where a criminal could go to a church for 40 days before going to the trial or confessing. If you confessed you were hanged or could leave England. You were executed in the eyes of the law. o You could avoid capital punishment if you were sentenced under these courts.
? Trial by jury was based on the belief that God would ensure the innocent prevailed. 12 knights were available for royal courts. In other cases, 12 jury were chosen based on those who knew the matter and they went and investigated.
? Women who were married could not make a will, sue or be sued. The only protection was a dower giving her 1/3 of her husband's possessions.
? Equity was a parallel system to the common law. The Lord Chancellor, the king's chief administration officer, could make differing decisions from the royal courts. There were no precedents and it was entirely subjective. He was a member of clergy and trained under cannon law or the law of maxims (broad principles). He had many remedies and resolved the tension about unfairness while keeping the


king's authority in tact. It became the Court of Chancery. No decisions were recorded until the 18th century. He protected wealthy women. Women could be recognised as having a separate estate set up by strict settlement but she was restricted in how she could use it. 1215: Magna Carta. King John was forced to sign it. Most classes of people were involved in obtaining the Magna Carta. It demonstrated that the king can be restrained and that the judgment of one's peers should decide the law. It mainly dealt with land because it was a feudal society.

Page 48 Prisoners A-XX (inclusive) v NSW (1995)- A recent case that raised the issue of Magna Carta. Facts:
? 50 prisoners brought an action seeking condoms in jail.
? The Department of Corrective Services refused by using their power under the Prisons Act (NSW) Remedy sought:
? The prisoners want condoms available in prisons. Prior Proceedings:
? The prisoners are appealing in the CA NSW. Argument:
? The failure to supply or permit condoms is contravened under the chapter 29 of the Magna Carta- "no freeman shall be taken or imprisoned...but by lawful judgment of his peers, or by the law of the land. We will sell to no man, we will deny or defer to any man either justice or right".
? Issacs J in Ex parte Walsh and Johnson said the chapter recognises that every man has an inherent individual right to his life...,individual rights must always yield to the necessities of the general welfare at the will of the state and the law of the land is the only mode by which the State can so declare its will.
? The department had breached a duty of care by not supplying condoms. Outcome:
? Appeal dismissed with costs. Prisoners lost. Legal reasoning:
? Sheller JA argued that the Magna Carta does not provide a statutory basis in this case. It cannot be read like a piece of contemporary legislation. It is hard to see the relevance to this case. Ratio decidendi:
? The Magna Carta can not be read like a piece of contemporary legislation. The Idea of Law in the Civil War and Glorious Revolution- chapter 5 The King v the Parliament v the courts: King Parliament Common Law
? James I described
? Magna Carta was an act
? Sir Edward Coke was the leading lawyer the power of the passed by Parliament and in 1552-1634. He was a CJ of the king. Kings were showed the fundamental Court of Common Pleas and the parallel to God. They liberties of the subject. King's Bench and speaker in the exercised divine House of Commons. In 1608 he
? The House of Commons power upon Earth. offended the king in the Privy Council represented the broad mass by denying that the ultimate right of
? Sir Francis Bacon, of English people. interpreting laws lay with his majesty the attorney general ? Parliament had a small role (he recorded this in the Case of argued that the king until Tudor times. Prohibitions- 1607). He reasoned that alone was sovereign. ? In 1265 the first Parliament the law was the golden met-wand He had unlimited was called. They were called and measure to try the causes of the prerogative powers. when the monarch needed


The king could govern by prerogative alone because he could dismiss Parliament. The king cannot breach the law. He is above the law. If a King's action is wrong then someone else is to blame. He is immune to persecution. He had supremacy with no limits. Lawyers could point out what the law was but if the judge found it appropriate, he could rule outside or against the known law. The king could rule accordingly in peace if he declared they were in war. The king had the dispensing power to stop the operation of a statute or exempt someone from it.?

funds. subjects, and which protected his majesty in safety and peace. James Parliament could reverse said these words were treasonable judge's orders but they only and that he was not under the law. met at the king's pleasure. Coke answered the king is under no Hobbes disagreed with Coke. man but under God and the law. He He wrote that the law does denied that the King could stop not originate in lawyer's common law proceedings through reasoning but in the will of writ. the sovereign. To requireFortescue wrote in 1537 that the laws be reasonable for them customary laws of the land had to be enforceable would lead remained unchanged since the days to disobedience by every of ancient Britons. None of the man who thought they were conquering nations had changed more reasonable. English laws, this showed its excellence. In England, the king ruled as a Constitutional monarch. A king who ruled over free subjects was likely to be wealthier and more powerful than a nation of impoverished slaves like France.
? The lawyers notion of custom elevated the common law. If practice existed long enough, then it was ideally suited to the needs of England. To go against a custom that had proved its worth over ages would be dangerous. The common law was the best because it was an ancient custom.
? The common law exceeded other human forms of rationality. This corresponded to the supremely rational laws of God. This reason must be 'artificial reason' acquired over years of training.
? The common law was better suited to the English people because it did not come from an arbitrary decree.
? Judge's decisions are distilled by the wisdom of past generations. It had been refined by the most learned men.
? Parliaments power was drawn from the common law so it could not abolish the common law without abolishing itself. Parliament can just correct common law deficiencies. They interpret the law and alter laws as they pleased is what Coke argued.
? The parliament is too easily subjected to political pressure by the king.

? Allegiance binds the subject only to obey the law and not the king's extra legal commands argued Coke. Page 97 Bonham's case (1610) - Coke tried to assert the power of the Courts to overrule statute. Facts:
? Bonham, was found insufficient to practise medicine in London by the College of Physicians.
? When Bonham continued to practice, he was fined and ultimately ordered into prison.
? Bonham argued that he had taken the degree of Doctor of Physic in the University of Cambridge and therefore was entitled to practise and the college had no authority over him. Outcome:
? Bonham won. Legal reasoning:
? Coke CJ, Warburton and Daniel JJ reasoned that the college did not have the power to fine or imprison someone in England when they were practicing medicine in a good manner. The common law will control acts of Parliament and sometimes find them to be utterly void. When the 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 an Act to be void. Ratio decidendi:
? The common law has the power of judicial review. A judge can declare an act void if it is repugnant and against all reason. Civil War:
? The fight between Parliament and the King grew into battle during the reign of Charles I.
? Charles attempted to reign without parliament from 1229-40 but he recalled it only when he ran out of funds. To do this he had to accept the demand of the Petition of Right in 1628. There had to be no taxation without the consent of Parliament. He could also not imprison people without due cause.
? Parliament won the civil war and put Charles I on trial in 1649. This was the first time that a British monarch had been trialled by his own subjects. He said they had no right to trial them, that it was against their jurisdiction. He was executed three days after the trial.
? 135 members of parliament acted as judges and jury. The king was accused of treason.
? England became ruled by parliament which was headed by Oliver Cromwell for the next eleven years, 1649-60.
? England had its own written constitution during this period. There was an attempt to codify the law and get female suffrage. Parliament legislated on everything.
? However restoration occurred and Charles II was invited back to the crown. Glorious Revolution
? Occurred in the seventeenth century.
? There was a conflict between Parliament and James II (1685-88). He appointed Catholics to the Church, army and universities where they had previously been barred.
? He used royal prerogative to establish a court (Court of Ecclesiastical Commission).
? In 1687, he suspended that operation of all religious penal laws- those they discriminated against Catholics and Protestant non conformists.


During this time, James only had two protestant daughters. Mary was his eldest daughter and married to William, the Protestant ruler of the Netherlands.
? But James' second wife gave birth to a son and he became Catholic.
? Parliament sent William an invitation to be king. He got his forces together.
? In 1688, A Bill of Rights was drafted and Mary and William became king and queen.
? It was found that Mary should share the crown with William and that it would go to Anne even if he had children by a second wife.
? The Bill of Rights trimmed the royal prerogative but it did not establish parliamentary sovereignty in its fullest sense. The royal prerogative still allowed the king to choose and dismiss ministers, to summon and dissolve parliament and complete authority over foreign affairs. The monarch was no longer an absolute monarch but more of a figure head. Bill of Rights:
? No excessive bail or cruel punishment. This gave rights to defendants. Punishment must be predictable.
? Petitioning the king by his subjects is not illegal. This allowed Parliament to petition the king freely.
? Protestants can bear arms. Enforcing protestant rights over catholic rights. Stop Catholics taking power.
? No army in peacetime without Parliament's permission. To prevent army taking over Parliament's power.
? Grants and fines cannot occur before conviction.
? Parliament elections should be free. There was still a property requirement.
? Parliaments should be held frequently.
? Monarch cannot suspend laws.
? Parliament has an assured freedom of speech. Parliamentary privilege. ___________________________________________________________________ What was the history of English law in Australia- chapter 7?
? Emancipists were those who came to the colony as convicts and were freed. The exclusivists were those who were military officers or free settlers.
? The first charter of justice gave the governor extensive powers, limited only by British directions. It was a similar position to the kings in England before 1649 (Glorious Revolution). They could make laws, levy tax, confer jurisdiction on judges, hear court appeals, make land grants, proclaim martial law, grant pardons and to control commerce.
? What law was in force in the Australian colony?
o Australian Courts Act 1828, s.24 made it clear that all English law applied as far as it was applicable to the colony. This was known as the date of reception (28 July 1828). All English laws applied before this time. Statutes after this time do not automatically apply to the colony. o Until 1865, the doctrines of repugnancy and paramount force applied. Any laws passed that were repugnant to English law, were void. o The common law came in after 1828. However using the declaratory theory a legal fiction was created. Common law in England applied to Australia because judges were meant to declare law that had always been there. E.g. negligence in Donahue v Stevenson came to England in 1928 but applied to Australia. o Only laws before 1828, that were relevant to the prison colony applied. o Paramount force meant England could apply a statute to Australia after

1828. Page 175 Cooper v Stuart (1889) - The colony is settled. English law applies until it is abrogated and modified.

Facts:In 1882 a park was created through proclamation. It was subject to a 1923 land grant. The grant contained a clause said ten acres was reserved for His Majesty for public purposes.
? Cooper who had the title to the land argued that the 1823 clause was invalid because it went against the law of perpetuities.
? Stuart argued that the law of perpetuities was not a part of NSW law in 1823 and so the grant was valid. Remedy Sought:
? Cooper does not want the park built on his land. Prior Proceedings:
? Cooper lost at the Supreme Court. He is appealing to the Privy Council under Lord Watson. Outcome:
? Appeal dismissed. Legal reasoning:
? Lord Watson argued that there is much difference between and conquered and a settled country. The law of England must become the law from the outset of the colony and when it is applicable, English law must prevail unless it is changed by statute. He referred to Blackstone.
? The government needs to retain the right to use a portion of the land because when giving out grants, they do not know if the land will be needed when the population increases. A rule that rests on public policy should apply. The law of perpetuities in England was inapplicable in 1823 to Crown grants. Ratio decidendi:
? English law applies in a settled colony until it is abrogated or modified. It doesn't apply if it is not applicable to the colony. Page 178 Dugan v Mirror Newspapers Ltd (1979)- The debate about whether English laws apply to Australia. Facts:
? Dugan was sentenced to death. It was commuted to Australian imprisonment for life. Remedy sought:
? Dugan is suing Mirror for defamation. Prior Proceedings:
? Dugan lost at the Court of Appeal. He is after leave to appeal to the High Court. Arguments:
? Dugan was attainted because he had been sentenced to death for a felony. This prevented him from suing until his term of imprisonment expired or he obtained a pardon.
? Australia is a prison colony. The English doctrine of attainder does not apply to Australia's circumstances. Legal Issue:
? In a penal colony, does the English doctrine of attainder apply?
? Dugan lost. Legal reasoning:
? Jacobs J argued that the Doctrine of Attainder was never removed in NSW. Dugan cannot bring a civil action while the attaint remains. An emancipated convict is not out of the protection of the king when they go to a colony so there is no reason why the doctrine of attainder should not apply to NSW.
? Murphy J dissented- he referred to International Human Rights and argued the rule of attainder was not acceptable and should not be accepted in modern Australia. Ratio Decidendi:


The English Doctrine of Attainder exists in Australia. It does apply to the circumstances of the colony.

Page 200 Viro v the Queen (1978)- Before the Australia Acts there was difficulty in having two courts of appeal, the HC and the PC. This made it difficult for the SC to know which precedent to apply to a case. In this case there are two opposite choices of precedent that the trial judge had to choose from. The High Court asserts its power as the ultimate court of appeal in Australia. Facts:
? Viro tried to rob a man while on Heroin.
? The man resisted and Viro murdered him in self defence. Remedy sought:
? Viro pleaded not guilty with the defence of self defence. Prior Proceedings:
? Viro lost at the Court of Criminal Appeal. He is applying for leave to appeal to the High Court. Arguments:
? The Heroin Viro was on prevented him from having the serious intent to kill.
? The Judge directed the jury incorrectly. He did not use the High Court precedent in R v Howe (1955) where it was found that where a plea of self defence to a murder charge fails only because of excessive force, the verdict should be manslaughter.
? The trial judge instead used the Privy Council precedent in Palmer v The Queen (1971) which held that where the defence fails only because of excessive force, the verdict should be murder. Legal Issue:
? Should lower courts apply High Court precedents or Privy Council precedents when the rules of law differ?
? Viro won. The High Court decided to apply the R v Howe (1955) precedent. Legal Reasoning:
? Gibbs J argued that the Privy Council decided a question of general law without indicating it was laying down a peculiar principle to the dominion from where the appeal was brought. Situations have changed and there are now two final courts of appeal neither of which is subordinate to the other. However, the High Court has been given power under s. 74 of the Constitution and should therefore have the power to determine the decision of any other court. Yet this court will not differ from a Privy Council decision readily and it is still highly persuasive. If the High Court deliberately goes against a Privy Council decision, then the state courts are bound to follow this decision.
? Mason J argued that Privy Council decisions should be respected but it is ultimately the High Court's responsibility to determine what the appropriate law is for Australia. The HC is better able to apply its knowledge of Australian conditions and circumstances. Ratio Decidendi:
? Where a High Court and Privy Council precedent differ, all lower courts are bound to follow the High Court decision. The Privy Council precedents are instead highly persuasive and respected. Year 1786 (befor e settle ment)

Source First Charter of Justice (Issued by Letters Patent as part of the Royal Prerogative) Executive: The governor is very powerful.

Criminal Court of Judicature. Only sentenced a person to death or corporal punishment.

Civil Court of Civil Jurisdiction. Judge Advocate and 2 others appointed by the governor.

Appeal Right of appeal to the governor. Appeal to the Privy Council in London for

Jury There was no jury. It was a prison colony- they only wanted control. The

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