The Common Law System In Australia's Legal System

Worldwide, the legal systems of nearly all countries are generally modelled upon five main types: civil law, common law, customary law, mixed or pluralistic law and religious law (CIA, 2015). In the CIA’s listing, Australia’s legal system is described as a “common law system” based on the English model.

Historically, the common law system began in England in the 11th century with the establishment of Kings Courts by William the Conqueror. The courts presided over local disputes where local customs were applied to make decisions. Over time, these customs became rules and were the basis for later courts to make decisions on similar disputes. As the range and type of dispute broadened, so did the range of decisions. The accumulation of judges’

It is based on principles and doctrines such as separation of powers, procedural fairness, and judicial precedent (Akpet, 2011 p73). Judicial precedent is more commonly known as the doctrine of precedent, where judges are bound by to decide each case along the lines of similar earlier cases and decisions. If the facts of the earlier cases were not exactly the same, the judge could still compare the situations and apply a common principle or develop a new, reasonably similar principle for the new facts. In Australia where there is a hierarchy of courts, a decision of a higher court is binding on lower courts (James, Muston & Rice, 2014)

Under a common-law system, disputes are settled through an adversarial exchange of arguments and evidence. Both parties and/or their legal representatives, present their cases before a neutral fact gatherer, either a judge (or judge and jury). The judge or jury evaluates the evidence, applies the appropriate law to the facts, and renders a judgment in favour of one of the parties. Following the decision, either party may appeal the decision to a higher court. Appellate courts in a common-law system may review only findings of law, not determinations of fact (TheFreeDictionary.com,