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Common Law, Equity and Statute

A Complex Entangled System




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AUD $180.00 gst included

This strikingly original book explains how the Australian legal system is structured, and how that structure informs the way novel questions of law are argued and decided.

One of this book’s themes is that, in the minority of litigation which involves the determination of a question of law, it often makes sense to regard the legal system as an entangled product of statute and judge-made law, within which common law and equity are separate components. Another is that the actual workings of the legal system are far more complex than appears in most accounts, and within that complexity lies the scope for principled development. A third is that an appreciation of legal history will almost always assist in the resolution of novel questions of law, mostly by lightening the weight of precedent.

The book analyses what is meant by the “common law of Australia”, what is the relationship between judge-made law and statutes, and how courts resolve novel questions of law. It explains why some questions are best regarded as aspects of the common law, why others are best regarded as questions of statutory construction, why some are difficult to characterise, and why this matters. It also explains why equity continues to be a distinct component of judge-made law, with a different relationship with statute. And it gives a nuanced account of precedent and the role of authority from different jurisdictions. The ideas in some of the chapters are illustrated by dialogues between a teacher and students, replicating a once common form of legal literature, including St Germain’s Doctor and Student, published half a millennium ago.

An advocacy check-list
Table of cases
Table of statutes

Opening Dialogue

Chapter 1 – Introduction
1.1 The interaction of common law, equity and statute
1.2 The complex entanglement of the interaction
1.3 This work’s main claims
1.4 Two examples of the interaction between common law, equity and statute
1.5 Law-making by courts
1.6 Conclusion

Chapter 2 – Understanding “Common Law” and “Equity”
2.1 Introduction
2.2 Law’s unavoidable ambiguity
2.3 The early history of “common law” and “equity”
2.4 “Common law” and “equity” as bodies of rules and principles
2.5 “Common law” considered alone was and is seriously defective
2.6 “Common law” emerging from decisions on statutes
2.7 “Common law” and “equity” as survivors of an evolutionary process
2.8 Working definitions of “common law” and “equity”

Chapter 3 – The Variety of Statutes
3.1 Introduction
3.2 Statutory precedents
3.3 The nature of the problem of the volume and variety of statutes
3.4 Classification depends on purpose
3.5 Four distinctions within statutes

Chapter 4 – The Entangled Complexity of Statute Law and Judge-made Law
4.1 Introduction
4.2 A simple example of entanglement – a plaintiff slips on a council footpath
4.3 Why exactly must a testator of sound mind “know and approve” of a will?
4.4 Decisions on s 26(a) of the Income Tax Assessment Act 1936 (Cth)
4.5 The differences between judgments and statutes
4.6 The interaction between judge-made law and statute law
4.7 The impact of statute law on judge-made law
4.9 Conclusion

Chapter 5 – Five Judicature Fallacies

Chapter 6 – Equity and the Judicature Legislation
6.1 Introduction
6.2 Bleak House described an unreformed chancery
6.3 A snapshot of the position in 1872
6.4 The operation of the Judicature legislation
6.5 The effect of ss 24 and 25 of the Judicature Act 1873
6.6 Attempts at legislative reform in New South Wales
6.7 Judicature legislation in New South Wales
6.8 The historical meanings of “fusion”

Chapter 7 – Equity’s Continuing Distinctiveness after the Judicature Legislation
7.1 Introduction
7.2 Different conception of law-making
7.3 The role of history
7.4 Common law’s self-sufficiency and equity’s supplemental nature
7.5 Statutes reinforcing the existence of a distinct body of equity
7.6 Different judicial technique
7.7 Two modern examples
7.6 Conclusion: Equity’s distinctiveness in the 21st century

Chapter 8 – “There is but one common law of Australia”: Fact or Fallacy?

Chapter 9 – The Structure of Judge-made Law in Australia
9.1 Introduction
9.2 There is “but one common law of Australia” is a recent development
9.3 Divergence in colonial and State statutes
9.4 The (in)significance of rights of appeal
9.5 The reasoning in Lange that there is “but one common law of Australia”
9.6 The proposition that there is but one common law challenged: Lipohar v The Queen
9.7 Conclusion

Chapter 10 – Consequences of the Structure of Judge-made Law in Australia
10.1 Introduction
10.2 Different precedential effect of common law and statutory precedents
10.3 Sections 79 and 80 of the Judiciary Act – introduction
10.4 The former approach to ss 79 and 80 and criticisms of that approach
10.5 Rizeq v Western Australia
10.6 How in light of Rizeq should s 80 be construed?
10.7 The legislative history of ss 79 and 80 of the Judiciary Act
10.8 Conclusions on s 80


Concluding dialogue


Read the Opening Dialogue from Common Law, Equity and Statute

Read Chapter 1 – Introduction from Common Law, Equity and Statute

Read the full Review Essay published in the Sydney Law Review (2023) 45(4) by Robert Stevens, Professor of English Private Law, University of Oxford.

The text offers an intellectually gripping insight into the history of equity, common law and statute from one of the top judicial minds of the 21st century. It is a must-read for all.

J Sargent, Queensland Law Reporter – [2023] 49 QLR

How do judges make law? This is the central question of this fascinating book by Justice Mark Leeming of the New South Wales Court of Appeal.

… To answer the question posed, the historical excursion one takes on reading this book begins with Christopher St German, and his work on chancery procedure, A Little Treatise Concerning Writs of Subpoena (1523). It passes through the sinking of the convict ship The Juliana in the Thames (1814), … It moves on to the High Court’s consideration of the true characterisation of Bankstown City Council’s liability for the flooding of land in Alamando (2005), before taking up incoming Chief Justice Gageler’s 2011 extracurial observation that the law which is applied in most modern cases ‘has its source in the text of a statute’…

Ultimately, the charm of this work is its accessibility and readability, while retaining the essential features of both a scholarly work (with over 1,400 footnotes) and also serving as a practical text for advocates. The work starts, creatively, with an opening dialogue between a teacher and two students, provided as a transcript rather than prose – which sparks interest and curiosity in the themes to be developed as the book unfolds. The use of similar dialogues marks the start of distinct parts of the book, and it ends in a similar vein with a closing dialogue.

If ever a case were to be made for the difficulty of applying Artificial Intelligence to dispute resolution, this work makes out that case, by demonstrating that the courts, in striving to determine ‘the real justice of the case’, must undertake a principled, informed and yet creative untangling of the complex interaction of statute, common law and equity. For these reasons this work is highly recommended.

Tim Castle SC, Bar News, Summer 2023

We ought to welcome any contribution that helps to clarify equity’s place and role in our system of justice. When it comes from one of the pre-eminent scholars and jurists of equity practice in the common law world, it deserves celebration. Mark Leeming’s Common Law, Equity and Statute: A Complex Entangled System responds to the need for such an analysis, lifting the veil of imprecision which surrounds equity’s simultaneous yet distinguishable role in contemporary Anglo-Australian jurisprudence, restoring it to its rightful position as part of that tripartite system. But Leeming does more than that: the book not only establishes equity’s importance in that structure, but also demonstrates its relationship to the other two elements in that system — common law and statute. It is, then, an exposition of the Anglo-Australian system of justice, which Leeming reminds us comprises three components. Of course, that does not change the fact that the relationship between the three is formidably, Byzantinely, labyrinthine. For Leeming, though, that is part of the beauty of the system; thus, ‘sophisticated participants in and commentators on the legal system will benefit from an account of its quotidian unnoticed complexities’.

Leeming’s book eminently deserves our careful attention. It restores equity to its proper place in the tripartite system which it forms with common law and statute, highlighting both the distinctiveness of each of the three elements and the complexity of their integrated entanglement in the Anglo-Australian legal system. This matters for the property lawyer who, too often, either forgets or misunderstands the role which equity plays in the contemporary law. More importantly, for readers of this journal, it matters for the property lawyer because, in recounting the story, Leeming reveals the path to which the law may develop in order to meet new conditions while maintaining continuity with the past — itself the hallmark of Anglo-Australian law.

PT Babie (2023) Conceptual fission: Understanding common law, equity, and statute 31 Australian Property Law Journal at 66

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