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Common Law Pleadings in New South Wales
COMMON LAW PLEADINGS IN NEW SOUTH WALES AND HOW THEY GOT HERE John P. Bryson * Advantages and disadvantages para 1 Practice before 1972 para 17 The Texts para 21 Pleadings after the Reform legislation para 26 The system in England before Reform legislation para 63 Recurring difficulties before Reform legislation para 81 The Process of Change in England para 98 How the system reached New South Wales para 103 Procedure in the Court in Banco para 121 Court and Chambers para 124 Diverse Statutes and Procedures para 126 Every-day workings of the system of pleading para 127 Anachronism and Catastrophe para 132 The End para 137 Advantages and disadvantages 1. There can have been few stranger things in the legal history of New South Wales than the continuation until 30 June 1972 of the system of Common Law pleading, discarded in England in 1875 after evolving planlessly over the previous seven Centuries. The Judicature System in England was the culmination of half a century of reform in the procedures and constitution of the courts, prominent among rapid transformations in British economy, politics, industry and society in the Nineteenth Century. With the clamant warning of revolutions in France, the end of the all- engrossing Napoleonic Wars and the enhanced representative character of the House of Commons, the British Parliament and community shook themselves and changed the institutions of society; lest a worse thing happen. As well as reforming itself, the British Parliament in a few decades radically reformed the law relating to the procedure and organisation of the courts, the Established Church, municipal corporations and local government, lower courts, Magistrates and police, 1 corporations and economic organisations, the Army, Public Education, Universities and many other things. -
Fusion – Fission – Fusion Pre-Judicature Equity Jurisdiction In
M Leeming, “Fusion-Fission-Fusion: Pre-Judicature Equity Jurisdiction in New South Wales 1824- 1972 in J Goldberg et al (eds), Equity and Law: Fusion and Fission (Cambridge UP 2019), 118-143. Fusion – Fission – Fusion Pre-Judicature Equity Jurisdiction in New South Wales 1824 - 1972 Mark Leeming* Introduction Here is a vivid account of the pre-Judicature Act system which prevailed in New South Wales at the end of the nineteenth century and its origins: To the litigant who sought damages before an Equity Judge, a grant of Probate before a Divorce Judge or an injunction before a Common Law Judge, there could be no remedy. He had come to the wrong Court, so it was said. He might well have enquired on what historical basis he could thus be denied justice. It cannot be questioned that the Court required specialization to function properly and that a case obviously falling within one jurisdiction ought not to be heard by a Judge sitting in another jurisdiction. Yet from this the fallacious extension was made that a Judge sitting in one jurisdiction could not in any circumstances hear a case which ought to have originated in another jurisdiction.1 The words are those of the distinguished Australian legal historian J.M. Bennett. There is no doubt that the jurisdictions at common law and in equity came to be treated in many respects as if they were separate courts, despite the failure of sustained efforts to create a separate equity court; despite it being clear that there was a single Supreme Court of New South Wales with full jurisdiction at common law and in equity; and despite efforts by its first Chief Justice, Sir Francis Forbes, in the opposite direction. -
Introduction to Statutory Interpretation
1 1 INTRODUCTION TO STATUTORY INTERPRETATION We live in an exciting time of transition. The great commons of the common law are being engulfed by a tsunami of legislation. 1 1 K Mason, ‘The Intent of Legislators: How Judges Discern It and What They Do if They Find It’, in Statutory Interpretation: Principles and Pragmatism for a New Age ( Judicial Commission of New South Wales, 2007) 33 at 44. Oxford University Press Sample Chapter 01_SAN_SI_2e_04577_TXT_SI.indd 1 18/04/2016 4:45 pm 2 STATUTORY INTERPRETATION Legislation is the predominant source of law applied by judges in the common law world today. This is because, even though the doctrine of precedent allows for the development of law by judges through cases, most areas of law are now set down in statutes, and cases primarily concerning their interpretation. Accordingly, advanced skills in statutory interpretation are essential for all legally trained people. No longer is it adequate to have a vague memory of approaches to interpretation learned during first- year law. Through legislation, Parliament communicates, to individuals and corporations alike, what it expects them to do and refrain from doing, and what procedures they must follow to effect certain outcomes. Being able to properly advise clients on the way legislation applies to their professional or personal circumstances can reduce the incidence of litigation, and being able to succinctly advocate for a particular interpretation during a court case can reduce the length, and therefore the cost, of hearings. Statutory interpretation is not just one extra skill for lawyers to have. It is a central, essential skill—an area of law in itself.2 James Spigelman, when he was Chief Justice of the Supreme Court of New South Wales, stated that ‘the law of statutory interpretation has become the most important single aspect of legal practice. -
Forbes Flyerflyer
ForbesForbes FlyerFlyer THE NEWSLETTER OF THE FRANCIS FORBES SOCIETY FOR AUSTRALIAN LEGAL HISTORY ISSUE 7 • DECEMBER 2004 History reports itself The Lives of While the year may be rapidly drawing to a close, there Australian is still much activity happening on the publishing front. Chief Justices Following on from the successful third annual Forbes Society lecture, the Forbes Society in conjunction with the Council of Law Reporting for New South Wales will Dr John Bennett continues his remarkable project, publish Dowling's Select Cases, as edited by Tim Castle Lives of Australian Chief Justices with the publication and Bruce Kercher. Chief Justice Spigelman AC will of Sir Henry Wrenfordsley: Second Chief Justice of supply the foreword. Details as to the release of this Western Australia 1880-1883. publication will be available in the New Year. This issue of the Forbes Flyer contains an extract A further development in legal history is the Macquarie discussing Sir Henry Wrenfordsley's appointment Law Monographs: Studies in Law and History, to be as second Chief Justice of Western Australia. edited by Dr Andrew Buck of Macquarie University, and published by Australian Scholarly Publishing. The first In Professor Roy M. Mersky's words (in the Foreword title in the series will be The Poor Man by A.R. Buck and to the book): Nancy E. Wright, and will be available in March 2005. If the life of the law has not been logic, but Dr Buck has advised that the monographs will focus on rather experience, then judicial biography has topics such as legal biographies and the historical a great deal to tell us about the law, and in development of substantive law. -
SIR WILLIAM DENISON Papers, 1846-64 Reels M606-607, M671
AUSTRALIAN JOINT COPYING PROJECT SIR WILLIAM DENISON Papers, 1846-64 Reels M606-607, M671 Col. W.M.W. Denison Newark Nottinghamshire National Library of Australia State Library of New South Wales Filmed: 1960 BIOGRAPHICAL NOTE William Thomas Denison (1804-1871) was born in London and attended Eton and the Royal Military College. He graduated in 1826 as a lieutenant in the Royal Engineers. He served in Canada and later worked on harbour defences in southern England. In 1838 he married Caroline Hornby and they had six sons and four daughters. He was promoted to the rank of captain in 1841. In 1846, following the dismissal of Sir John Eardley-Wilmot, he was appointed Lieutenant-Governor of Van Diemen’s Land. He was knighted in the same year and awarded a KCB in 1856. He arrived in the colony in January 1847 and held the office for eight years. A strong supporter of the continuance of convict transportation, he clashed with the nominated Legislative Council and two of the judges. The publication of some of his despatches, criticising the colonists generally, added to his unpopularity. His powers were reduced following the creation of an elected Legislative Council in 1850 and, with the cessation of transportation, his later years in Tasmania were more harmonious. In January 1855 Denison was appointed Governor of New South Wales and was given the additional title of ‘Governor-General of Australia’. Prompted by the Crimean War, he immediately reorganised the defences of Sydney Harbour. He presided over the introduction of responsible government in the colony in 1856 and had to deal with considerable political instability, with three ministries formed in the first year. -
Law Reform Committee
LAW REFORM COMMITTEE Jury Service in Victoria FINAL REPORT Volume 3 DECEMBER 1997 PARLIAMENT OF VICTORIA LAW REFORM COMMITTEE Jury Service in Victoria FINAL REPORT VOLUME 3 REPORT ON RESEARCH PROJECTS Ordered to be Printed Melbourne Government Printer December 1997 N° 76 Session 1996–97 COMMITTEE M EMBERS CHAIRMAN Mr Victor Perton, MP DEPUTY CHAIR Mr Neil Cole, MP MEMBERS Mr Florian Andrighetto, MP Hon Carlo Furletti, MLC Hon Monica Gould, MLC Mr Peter Loney, MP Mr Noel Maughan, MP Mr Alister Paterson, MP Mr John Thwaites, MP The Committee's address is — Level 8, 35 Spring Street MELBOURNE VICTORIA 3000 Telephone inquiries — (03) 9651 3644 Facsimile — (03) 9651 3674 Email — [email protected] Internet— http://www.vicnet.net.au/~lawref COMMITTEE S TAFF EXECUTIVE OFFICER and DIRECTOR OF RESEARCH Mr Douglas Trapnell RESEARCH OFFICERS Mr Mark Cowie (until 10 November 1995) Ms Padma Raman (from 3 March 1997) Ms Rebecca Waechter (until 18 November 1997) ADDITIONAL RESEARCH ASSISTANCE Ms Angelene Falk OFFICE MANAGERS Mrs Rhonda MacMahon (until 18 October 1996) Ms Lyn Petersen (from 2 December 1996 to 1 June 1997) Ms Angelica Vergara (from 11 August 1997) CONTENTS Committee Membership ........................................................................................................ iii Committee Staff ......................................................................................................................v Functions of the Committee...................................................................................................xi -
Crown and Sword: Executive Power and the Use of Force by The
CROWN AND SWORD EXECUTIVE POWER AND THE USE OF FORCE BY THE AUSTRALIAN DEFENCE FORCE CROWN AND SWORD EXECUTIVE POWER AND THE USE OF FORCE BY THE AUSTRALIAN DEFENCE FORCE CAMERON MOORE Published by ANU Press The Australian National University Acton ACT 2601, Australia Email: [email protected] This title is also available online at press.anu.edu.au National Library of Australia Cataloguing-in-Publication entry Creator: Moore, Cameron, author. Title: Crown and sword : executive power and the use of force by the Australian Defence Force / Cameron Moore. ISBN: 9781760461553 (paperback) 9781760461560 (ebook) Subjects: Australia. Department of Defence. Executive power--Australia. Internal security--Australia. Australia--Armed Forces. All rights reserved. No part of this publication may be reproduced, stored in a retrieval system or transmitted in any form or by any means, electronic, mechanical, photocopying or otherwise, without the prior permission of the publisher. Cover design and layout by ANU Press. Cover photographs by Søren Niedziella flic.kr/p/ ahroZv and Kurtis Garbutt flic.kr/p/9krqeu. This edition © 2017 ANU Press Contents Prefatory Notes . vii List of Maps . ix Introduction . 1 1 . What is Executive Power? . 7 2 . The Australian Defence Force within the Executive . 79 3 . Martial Law . 129 4 . Internal Security . 165 5 . War . 205 6 . External Security . 253 Conclusion: What are the Limits? . 307 Bibliography . 313 Prefatory Notes Acknowledgement I would like to acknowledge the tremendous and unflagging support of my family and friends, my supervisors and my colleagues in the writing of this book. It has been a long journey and I offer my profound thanks. -
Index to Compilation of Speeches Delivered by the Hon. J J Spigelman, AC, Chief Justice of NSW in 2002
Index to compilation of speeches delivered by the Hon. J J Spigelman, AC, Chief Justice of NSW in 2002 Page number Date speech Description reference within delivered pdf compilation Foundations of the freedom of the press in 20 November 2002 Australia - The Inaugural Australian Press Page 2 of 194 Council address Re-dedication of the honour roll in the original 11 November 2002 Page 18 of 194 Supreme Court building Address upon the occasion of the retirement of 8 November 2002 Page 20 of 194 the Honourable Mr Justice Philip Powell AM Are Lawyers Lemons? Competition Principles 29 October 2002 Page 24 of 194 and Professional Regulation 12 October 2002 The Idea of a University Page 41 of 194 8 October 2002 Becket and Henry II: Exile Page 44 of 194 Convergence and the Judicial Role: Recent Developments in China - Address to the XVIth 16 July 2002 Page 68 of 194 Congress of the International Academy of Comparative Law Convergence and the Judicial Role: Recent 11 July 2002 Developments in China - Address to the China Page 91 of 194 Education Centre, University of Sydney June 2002 Guide to Judicial Conduct Page 113 of 194 17 May 2002 The Maintenance of Institutional Values Page 155 of 194 Negligence: The Last Outpost of the Welfare 27 April 2002 Page 162 of 194 State Negligence: The Last Outpost of the Welfare 27 April 2002 Page 164 of 194 State (Summary) Formal Opening Ceremony Court of Criminal 8 February 2002 Page 180 of 194 Appeal at Dubbo 29 January 2002 Opening to Law Term Dinner 2002 Page 186 of 194 Foreward to G Lindsay, No Mere Mouthpiece: 2002 Servants of All Yet of None, Chatswood, Page 191 of 194 LexisNexis Butterworths, 2002 Foreward to J Anderson, J Hunter and N Williams, The New Evidence Law: Annotations 2002 Page 193 of 194 and Commentary on the Uniform Evidence Acts, Sydney, LexisNexis 2002 Foundations of the Freedom of the Press in Australia - The Inaugural Australian Press .. -
2300-Forbes Flyer DEC03-5
ForbesForbes FlyerFlyer THE NEWSLETTER OF THE FRANCIS FORBES SOCIETY FOR AUSTRALIAN LEGAL HISTORY ISSUE 3 DECEMBER 2003 History reports itself Making History It is a curious aspect of contemporary culture that the Australian Investigating the South public venerate their sporting heroes and pop idols with such Australian Independent Bar* enthusiasm but spare little thought the men and women who make a significant contribution to government or public service. Of the 150 or so barristers in That is not to say that other nations do not celebrate sporting South Australia, John Emerson or cultural achievements, but in Europe, Canada and America hopes to interview around 100 there is also a certain ethos reserved for great political and legal of them to gain the broadest figures that arguably adds much to the national life. possible perspective for the book The oddity of it is that lack of interest is no explanation. he is writing on the history of the Biographies of the significant politicians or judges of the United South Australian Independent Bar. States of America and Great Britain frequently grace Australian A chance meeting with Justice bookshelves, and names like Oliver Wendell Holmes Jr and Lord John Emerson Tom Gray in 2001 led to discussion Denning have resonance all over the globe. Such is the interest about the history of the Chief in these figures that they have developed their own legend Justices of South Australia, which John was subsequently beyond the community of lawyers. As I write I can be confident commissioned to write (through the John Bray Law that historians somewhere are industriously re-visiting earlier Chapter of the Alumni Association of the University of works and revising, re-interpreting and re-writing the lives and Adelaide). -
Public Law - an Australian Perspective
Public Law - An Australian Perspective Chief Justice Robert French AC Scottish Public Law Group 6 July 2012, Edinburgh Introduction Taxonomical disputes can arouse passions among lawyers out of proportion if not inversely proportional to the significance of their subject matter. The term 'Public Law' is a taxonomic term which does occasion debate about its scope and content. I will avoid entering into any debate on that question in this jurisdiction. My working definition for the purposes of this presentation is: that area of the law which is concerned with the scope, content and limits of official power, be it legislative, executive or judicial. So public law encompasses constitutional law and administrative law. In the Australian setting of written Commonwealth and State Constitutions, it is informed by the principle that there is no such thing as unlimited official power. There is therefore, no such thing as a power to make laws on any topic and for any purpose. There is no such thing as an unfettered discretion. Official discretions conferred by statute must be exercised consistently with the scope, objects and subject matter of the statute. Public law in Australia is manifested in the following ways: 1. By judicial review of the validity of legislation in direct or collateral challenges to: • A law of the Commonwealth Parliament on the basis that the law is not within its legislative competency as defined in the Constitution or otherwise transgresses constitutional prohibitions or guarantees; • A law of the State Parliament on the basis that the law is a law with respect to a subject matter exclusively within Commonwealth 2 legislative competency or otherwise transgresses constitutional prohibitions or guarantees. -
1: Theories of Law
1: Theories of Law.................................................................................................................................5 1.1 Theories of Law......................................................................................................................................5 1.1.1 Natural Law Theory.................................................................................................................5 1.1.2 Legal Positivism.......................................................................................................................6 1.1.3 Feminist Jurisprudence............................................................................................................7 1.1.4 Economic Analysis of the Law................................................................................................8 1.1.5 Critical Legal Theory...............................................................................................................8 2: Origins of Law....................................................................................................................................9 2.1 Development of Different Legal Systems.............................................................................................9 2.1.1 Civil Law System.....................................................................................................................9 2.1.2 Common Law System..............................................................................................................9 -
Sir Alfred Stephen.Pdf
2447 BOOK REVIEW Sir Alfred Stephen: Third Chief Justice of New South Wales 1844-1873 By J.M. Bennett (Lives of the Australian Chief Justices series). Australian Bar Review The Hon. Michael Kirby AC CMG AUSTRALIAN BAR REVIEW BOOK REVIEWS J.M. Bennett, Sir Alfred Stephen: Third Chief Justice of New South Wales 1844-1873 (Lives of the Australian Chief Justices series) The Federation Press, 2009, ISBN 978 186287 754 2 (Hbk) In his opening acknowledgements, the author of this new biography, Dr. John Bennett AM, puts his finger on one of the problems that haunts legal history. „It is too legal for historians and too historical for lawyers‟. This feature may help to explain the decline in the teaching of legal history at Australian law schools1. If there are occasional glimmers of light, as in this book and in the recent publication of the Kercher Reports (Federation Press, Sydney, 2009), edited by Bruce Kercher and Brent Salter for the Francis Forbes Society of Australian Legal History, it is no small thanks to the efforts of Dr. Bennett and a small team of dedicated Australian lawyers, one of whom is the editor of this Journal. This is the thirteenth volume in Dr. Bennett‟s Lives of the Australian Chief Justices. The many references throughout this volume to Sir Samuel Way, Chief Justice of South Australia, at the time when Sir Alfred Stephen served as the third chief justice of New South Wales, suggests that there are interesting volumes still to come. All believers amongst us must pray for Dr. Bennett‟s long life.