if i've got a statutory authority that's liable under common law and perhaps a statute, would the statute override common law? or would it work together with common law in that it limits the liability the stat authority would face?
-
Finished your HSC? Check out our University Discussion, Non-School forums or help out next year's HSC students! -
YOU can help the next generation of students in the community! Share your trial papers and notes on our Notes & Resources page
Common law & statute - what is applicable? (1 Viewer)
- Thread starter dissipate
- Start date
Re: common law and statute
Statute always overrides common law, and under s 109 of the Constitution, Commonwealth statutes override any conflicting state statutes.
Common law can be used to interpret statutory provisions; it's the role of the Judiciary to give effect to what Parliament intended. For example, with an open definition ('x includes ...'), the role of a court could be to figure out what fits into it.
Statute always overrides common law, and under s 109 of the Constitution, Commonwealth statutes override any conflicting state statutes.
Common law can be used to interpret statutory provisions; it's the role of the Judiciary to give effect to what Parliament intended. For example, with an open definition ('x includes ...'), the role of a court could be to figure out what fits into it.
to clarify:-
legislative supremacy: statute always overrides the case law. the only tricky part is, case law governs the statutory interpretation of statute.
so, for example, parliament enacts the No Public Holidays Act 2006 (NSW). now, the courts can construe, in their decision of cases, the meaning of provisions within the Act, and, by the doctrine of precedent thus affect the future interpretation of the same. in other words, case law builds on statute.
'last in time': later statute implicitly repeals earlier statute to the extent of the inconsistency
later case law preferred over earlier
[i've forgotten the authority for all these propositions.]
legislative supremacy: statute always overrides the case law. the only tricky part is, case law governs the statutory interpretation of statute.
so, for example, parliament enacts the No Public Holidays Act 2006 (NSW). now, the courts can construe, in their decision of cases, the meaning of provisions within the Act, and, by the doctrine of precedent thus affect the future interpretation of the same. in other words, case law builds on statute.
'last in time': later statute implicitly repeals earlier statute to the extent of the inconsistency
later case law preferred over earlier
[i've forgotten the authority for all these propositions.]
Last edited:
i think it writing an answer for a legal question/problem would be no different to writing an essay. of course, often first and second drafts would be slightly over the word limit, but after that it's a matter of clarifying your expression and checking whether you've answered beyond the question. 
El Misterio
Member
- Joined
- Mar 5, 2006
- Messages
- 33
- Gender
- Female
- HSC
- 1998
Some of the rules that need to be used in this situation have been accurately described here, but it's very important to remember that the extent to which any particular statute overrides the common law or works with it is a question of statutory interpretation and will vary between statute. Often it's not clear to what extent the pre-existing common law in the relevant area may still apply, and reasonable minds may well differ as to the interaction between statute and common law in any particular situation.
Good luck with your assignment.
Good luck with your assignment.
hYperTrOphY
Member
When determining the duty of care for a statutory authority you have to look to what the common law has prescribed specifically for statutory/public authorites. There are additional considerations which are made in comparison to other tort cases. Most of the same commonl law principles will apply, but there are certain exceptions you should be aware of.dissipate said:
thanks for the tips!
also, when determining the duty of care for a stat authority, what if the stat authority is related to the plaintiff in more than one way? if for example the stat authority owns a shopping centre.. would i be looking at the tests for a stat authority as well as common law tests for an occupier?
also, when determining the duty of care for a stat authority, what if the stat authority is related to the plaintiff in more than one way? if for example the stat authority owns a shopping centre.. would i be looking at the tests for a stat authority as well as common law tests for an occupier?