Common Law in the Age of Statutes: The Equity of the Statute
An insightful analysis of the modern intersection of legislation and the common law
This topical book provides an insightful analysis of the increasing prominance of the statute in Australia’s inherited common law system. It examines the integration of the two sources of law, with specific reference to the operation of claims for damages under the two sources of law and the concept of the equity of the statute. The author addresses how the common law can develop in the current environment and discusses the modern relationship between legislation and judge-made law.
Two interlinked themes are presented. First, as most new law is sourced from statute, an understanding of the law of obligations is incomplete without a consideration of how statute is affecting traditional legal obligations. The example of damages under the Australian Consumer Law is analysed in detail. The statutory regime has the potential to render irrelevant significant parts of the traditional law of contract, tort and equity, which traditionally have had detailed remedial schemes. This potential will be examined in the book. The second theme is an investigation of the unification of private and public law and the important role that the Equity of the Statute (via statutory interpretation and analogical reasoning) can play in this development.
This book will be of particular relevance to legal practitioners, courts and anyone faced with managing legal matters in the current legal environment, for whom a deep knowledge of the interrelationship of the two sources can inform their approach to private law remedies. It will also engage researchers, legal theorists, scholars and anyone interested in the modern operation of the Australian legal system.
• Accessible treatment of complex structure of Australia’s modern legal system
• Highlights the role of statutory interpretation in the common law system
• Offers guidance as to assessment of appropriate remedies
Pearce & Geddes, Statutory Interpretation in Australia, 8th ed, 2014
David Wright is a Senior Lecturer at the University of Adelaide Law School. He has been a Visiting Professor, University of Tokyo and Visiting Research Scholar, Kings’ College London. He is admitted as a barrister in the Supreme Court of South Australia, the Supreme Court of the Northern Territory, the Supreme Court of Tasmania, the Federal Court and the High Court, as well as a solicitor in NSW. Most of his research involves Equity and Remedies, and David has published widely in these areas. He is the title editor of the Equity volumes in the Laws of Australia and the editor of the Australian Succession and Trusts Law Reports.
Table of Contents
Part I Introduction
Chapter 1 The Scope and Purpose of this Book
Part II Current operation of the common law and statutes — oil and water
Chapter 2 Very limited interaction of common law and statutes
Part III The current operation of the legal system — a comparative example
Chapter 3 Damages under the Australian Consumer Law and at common law
Chapter 4 Main points of difference
Part IV The impact of legislation on private law
Chapter 5 Two impacts identified
Chapter 6 The first effect — the ACL and causes of action
Chapter 7 The second effect — remedial effects of the ACL
Chapter 8 Conclusion and caution on the effect of ACL upon the common law
Part V Unification and the equity of the statute — statutory interpretation and analogical reasoning
Chapter 9 The equity of the statute doctrine
Chapter 10 Statutory Interpretation — direct impact
Chapter 11 The analogical use of statutes — the indirect effect
Part VI Conclusion
Chapter 12 Putting it all together