David Wright of the Adelaide Law School has released a new book – Common Law in the Age of Statute:The Equity of the Statute.
For more information and to order the book, click here.
Common Law in the Age of Statute-The Equity of the Statute
David Wright
LexisNexis, 2015
The great areas of Common Law includes topics like contracts, torts, equity and property. The role in statute in these Common Law areas is usually limited to looking at only the direct impact of the statute; that is, does the statute directly apply? If it doesn’t directly impact (if the answer is “no the statute does not directly apply”) it is frequently assumed that this is end of the relevance of the statute to the Common Law. This book challenges this assumption. With the support of much case law, it is shown it is false today and it has been false for centuries.
This book provides an analysis of the increasing prominence of the statute in Australia’s inherited common law system. It examines the integration of statute and common law, by using the example of the operation of claims for damages under these two sources of law. The author addresses how the common law can develop in the current legal 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 Competition and Consumer Act 2010 (Cth) (‘CCA’) is analysed in detail. The CCA has the potential to render irrelevant significant parts of the traditional law of contract, tort and equity, which traditionally have had own detailed remedial schemes. The second theme is an investigation of the unification of private and public law and the important role that the old doctrine of the “Equity of the Statute” (via statutory interpretation and analogical reasoning) can play in this development. This doctrine, through those its key aspects, is extremely useful in understanding the correct approach to legislation in the modern legal system. The first aspect involves the purposive interpretation of legislation and the role of judge-made law in this interpretation. The second aspect is the development and evolution of the law through analogical reasoning. Recent decisions of Australian courts concerning the analogical use of statutes in the common law are examined.
Hopefully, this book will be of particular relevance to legal practitioners, the judiciary and anyone seeking private law remedies in the current legal environment. It will also be of great interest to researchers, legal theorists, scholars and anyone seeking to understand the modern operation of the Australian legal system.
