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27 results

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  • 28 - Civil Wrongs

  • from VI - Social Ordering
  • Edited by Peter Cane, University of Cambridge, Lisa Ford, University of New South Wales, Sydney, Mark McMillan
  • Book:
    The Cambridge Legal History of Australia
    Published online:
    04 August 2022
    Print publication:
    18 August 2022, pp 651-670

  • Summary

    Since the beginning of white settlement in Australia, the law of civil wrongs has reflected a tension between the constraints imposed by being part of an imperial structure which formally mandated ‘one common law’ for the empire with the need for the law of civil wrongs to be appropriate to the different social and environmental conditions in Australia. For much of this history, genuine attempts by Australian legislatures and courts to adapt the law of civil wrongs were masked by the self-identification of Australian lawyers as members of the British race, of which the common law was a cultural artefact, and the resultant need to identify local legal development as within that tradition. This chapter attempts to unpack the rhetoric from the reality. It argues that, from the very first, there was a distinct pluralism that operated within the law of civil wrongs in Australia, one that allowed for Australian exceptionalism that remained within the accepted limits of the one common law approach.

A History of Australian Tort Law 1901–1945
  • England's Obedient Servant?
  • Mark Lunney
  • Published online:
    19 December 2017
    Print publication:
    19 December 2017
  • Little attention has been paid to the development of Australian private law throughout the first half of the twentieth century. Using the law of tort as an example, Mark Lunney argues that Australian contributions to common law development need to be viewed in the context of the British race patriotism that characterised the intellectual and cultural milieu of Australian legal practitioners. Using not only primary legal materials but also newspapers and other secondary sources, he traces Australian developments to what Australian lawyers viewed as British common law. The interaction between formal legal doctrine and the wider Australian contexts in which that doctrine applied provided considerable opportunities for nuanced innovation in both the legal rules themselves and in their application. This book will be of interest to both lawyers and historians keen to see how notions of Australian identity have contributed to the development of an Australian law.

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