CLASSIFICATION OF CLASSIFICATION OF LAW AND LAW AND

INTRODUCTION TO INTRODUCTION TO LEGAL PROBLEM-LEGAL PROBLEM-

SOLVINGSOLVING

Topic 5Topic 5

Classification of lawClassification of law

Private/publicPrivate/public Private: torts, contractsPrivate: torts, contracts Public: constitutional, Public: constitutional, criminal, administrativecriminal, administrative

Classification of lawClassification of law

Commercial lawCommercial law National/International National/International lawlaw

The Common lawThe Common law

and civil lawand civil lawand statuteand statuteand equityand equity

Criminal lawCriminal law

Different to civil lawDifferent to civil law State always a partyState always a party

R vR v DPP vDPP v The Commonwealth v The Commonwealth v ACCC vACCC v

Punishment – imprisonment or fine – Punishment – imprisonment or fine – rather than remedyrather than remedy

Standard of proofStandard of proof

Conference with Mavis Stewart and Conference with Mavis Stewart and Kylie Berg: new client.Kylie Berg: new client.

Mavis Stewart attended our office today with her Mavis Stewart attended our office today with her daughter Kylie Berg and a coffee cake, baked that daughter Kylie Berg and a coffee cake, baked that morning. Ms Stewart is a keen cook and has a number of morning. Ms Stewart is a keen cook and has a number of legal problems arising from a recent kitchen renovation, legal problems arising from a recent kitchen renovation, in respect of which she seeks our advice.in respect of which she seeks our advice.

The kitchen renovation included new flooring. Mavis was The kitchen renovation included new flooring. Mavis was particularly interested in flooring as she had difficulties particularly interested in flooring as she had difficulties keeping her slate tiles clean. She searched for low keeping her slate tiles clean. She searched for low maintenance flooring and after extensive shopping maintenance flooring and after extensive shopping decided on single sheet vinyl flooring. She saw just the decided on single sheet vinyl flooring. She saw just the thing at Discount Lino Barn, close to Kylie’s home. Kylie thing at Discount Lino Barn, close to Kylie’s home. Kylie indicated that she didn’t share her mother’s preference indicated that she didn’t share her mother’s preference for vinyl flooring as it was cold underfoot and had for vinyl flooring as it was cold underfoot and had suggested kitchen carpet. Kylie and Mavis spoke to Mike suggested kitchen carpet. Kylie and Mavis spoke to Mike at Discount Lino Barn who suggested under-floor heating at Discount Lino Barn who suggested under-floor heating could address Kylie’s temperature issues. could address Kylie’s temperature issues.

Kylie provided details of the under Kylie provided details of the under floor heating options while her mother floor heating options while her mother left the conference room to offer left the conference room to offer slices of her coffee cake to the other slices of her coffee cake to the other staff. She also advised that her staff. She also advised that her mother was having problems with mother was having problems with Whitegoods World from which she had Whitegoods World from which she had bought her fridge. Kylie advised that bought her fridge. Kylie advised that her mother required a “French door” her mother required a “French door” fridge with freezer drawers fridge with freezer drawers underneath to accommodate the large underneath to accommodate the large baking trays she used for her cakes. baking trays she used for her cakes. She had ordered the fridge she She had ordered the fridge she needed from Whitegoods World but needed from Whitegoods World but had experienced delivery problems. had experienced delivery problems.

Mavis returned to the conference room. She Mavis returned to the conference room. She advised that she had had to make a large advised that she had had to make a large coffee cake that morning, even though her coffee cake that morning, even though her preference would have been to make cup-preference would have been to make cup-cakes. In fact, one of her legal problems was cakes. In fact, one of her legal problems was her cup-cake oven. Cake Cookers is a her cup-cake oven. Cake Cookers is a specialist retailer which sells products specialist retailer which sells products designed for those who like to cook cakes. It designed for those who like to cook cakes. It retails a number of specialist pans and other retails a number of specialist pans and other baking utensils – many imported from baking utensils – many imported from America and not readily available in America and not readily available in Australia, as well as a special range of cake Australia, as well as a special range of cake ovens. They are located in Broome – and ovens. They are located in Broome – and Mavis lives in NSW, but Cake Cookers sells Mavis lives in NSW, but Cake Cookers sells throughout Australia by catalogue. Mavis throughout Australia by catalogue. Mavis wanted a special cake oven in her new wanted a special cake oven in her new kitchen. She saw an oven that looked perfect kitchen. She saw an oven that looked perfect for her in their catalogue – the picture for her in their catalogue – the picture showed 8 slide out patty pan trays instead of showed 8 slide out patty pan trays instead of oven trays – exactly what she wanted. She oven trays – exactly what she wanted. She rang the store and spoke to Cathy.rang the store and spoke to Cathy.

She told Cathy all about her cupcakes, her She told Cathy all about her cupcakes, her favourite recipes, and her interest in the patty favourite recipes, and her interest in the patty pan oven in their catalogue. Cathy told her pan oven in their catalogue. Cathy told her that the patty pan oven had eight slide out that the patty pan oven had eight slide out patty pan holders – instead of oven racks – patty pan holders – instead of oven racks – and that each patty pan holder would take and that each patty pan holder would take one dozen patty pans. Even better, they came one dozen patty pans. Even better, they came with self cleaning silicone inserts. Mavis was with self cleaning silicone inserts. Mavis was delighted about the self cleaning but delighted about the self cleaning but concerned that each tray would only take one concerned that each tray would only take one dozen patty pans. Although after discussion dozen patty pans. Although after discussion with Cathy, she was convinced that the with Cathy, she was convinced that the overall capacity of the oven was appropriate, overall capacity of the oven was appropriate, and so she placed an order.and so she placed an order.

Her oven purchase was much more successful than Her oven purchase was much more successful than her fridge which, on the very day it was due to be her fridge which, on the very day it was due to be delivered – not only did not arrive, but the shop delivered – not only did not arrive, but the shop called her to advise that delivery was delayed for called her to advise that delivery was delayed for one month. Mavis said to the shop keeper: “Well one month. Mavis said to the shop keeper: “Well that’s no good to me. I ordered that fridge for that’s no good to me. I ordered that fridge for today. I need that fridge today. I told you when I today. I need that fridge today. I told you when I needed the fridge. The only reason I ordered from needed the fridge. The only reason I ordered from you was that you told me I could have it today. If you was that you told me I could have it today. If you can’t give it to me today, you can just keep your you can’t give it to me today, you can just keep your fridge!! I don’t want it anymore.” Mavis then rang fridge!! I don’t want it anymore.” Mavis then rang Quick Fridge and ordered and received another Quick Fridge and ordered and received another fridge that afternoon– suitable for her requirements. fridge that afternoon– suitable for her requirements. However, one month later, Whitegoods World However, one month later, Whitegoods World delivered the fridge originally ordered and delivered the fridge originally ordered and demanded payment. Mavis told them she no longer demanded payment. Mavis told them she no longer wanted the fridge and had cancelled the order. wanted the fridge and had cancelled the order. Whitegoods World denied the order was cancelled – Whitegoods World denied the order was cancelled – as their policy is no cancellations after an order has as their policy is no cancellations after an order has been placed. They are threatening to sue Mavis for been placed. They are threatening to sue Mavis for the price of the fridge - $5,500.the price of the fridge - $5,500.

As well, Mavis is being threatened with legal As well, Mavis is being threatened with legal action by Chrissie Saranrap. Chrissie was action by Chrissie Saranrap. Chrissie was married a month ago and was expecting married a month ago and was expecting Mavis to provide her specialty – the Mavis to provide her specialty – the “nouveau doveau” - a tiered tower of “nouveau doveau” - a tiered tower of cupcakes, iced in white and arranged to cupcakes, iced in white and arranged to resemble the wings of doves – as the resemble the wings of doves – as the centrepiece cake for her wedding reception. centrepiece cake for her wedding reception. Mavis loves doing cakes for weddings – in Mavis loves doing cakes for weddings – in fact she now makes more money from doing fact she now makes more money from doing wedding cakes than she does from her wedding cakes than she does from her regular cooking classes, although she does regular cooking classes, although she does find a number of her brides returning for find a number of her brides returning for cooking classes. cooking classes.

Chrissie read information about Mavis’ cake Chrissie read information about Mavis’ cake services in an article in the local paper, and called services in an article in the local paper, and called round to see Mavis, and look at the different cakes round to see Mavis, and look at the different cakes she could make. They discussed possibilities and she could make. They discussed possibilities and pricing and Chrissie left with a price list. pricing and Chrissie left with a price list. Apparently, Chrissie called and left Mavis a Apparently, Chrissie called and left Mavis a message on the answering machine ordering the message on the answering machine ordering the “nouveau doveau” for her wedding, to be delivered “nouveau doveau” for her wedding, to be delivered on 2nd May at the wedding reception, for $2,000 on 2nd May at the wedding reception, for $2,000 COD. In her message, Chrissie had said: “If I don’t COD. In her message, Chrissie had said: “If I don’t hear to the contrary, I’ll assume everything is OK. hear to the contrary, I’ll assume everything is OK. Call me if there is a problem – otherwise I will see Call me if there is a problem – otherwise I will see you on the 2nd. Looking forward to your lovely you on the 2nd. Looking forward to your lovely creation.” Unfortunately, because of all the work creation.” Unfortunately, because of all the work being done to the kitchen and problems with being done to the kitchen and problems with electrical work and electrical supply, Mavis had electrical work and electrical supply, Mavis had experienced a number of black outs which had experienced a number of black outs which had interrupted her answering machine. Mavis – never interrupted her answering machine. Mavis – never received the message from Chrissie, and so of received the message from Chrissie, and so of course, had not provided the cake. course, had not provided the cake.

Chrissie is very angry and claims her wedding Chrissie is very angry and claims her wedding was ruined without the cake. She has was ruined without the cake. She has threatened to sue Mavis. threatened to sue Mavis. Mavis advised that even if she had known Mavis advised that even if she had known about the cake order she would have had about the cake order she would have had difficulty fulfilling it because of problems with difficulty fulfilling it because of problems with her newly installed cake oven. When the oven her newly installed cake oven. When the oven arrived she saw that instead of Australian arrived she saw that instead of Australian sized delicate patty pan holders, the cake sized delicate patty pan holders, the cake trays were American size muffin holders – and trays were American size muffin holders – and two trays were even jumbo sized Texas muffin two trays were even jumbo sized Texas muffin size holders. This is not what Mavis wanted at size holders. This is not what Mavis wanted at all. Mavis rang Cathy and told her the oven all. Mavis rang Cathy and told her the oven was not what she had wanted at all, and not was not what she had wanted at all, and not suitable for the cakes in which she specialised. suitable for the cakes in which she specialised. Cathy said she was sorry that Mavis was Cathy said she was sorry that Mavis was disappointed, but there is nothing that they disappointed, but there is nothing that they can do about it. Mavis wants to know if she still can do about it. Mavis wants to know if she still has to pay the $8,000 for the special cake has to pay the $8,000 for the special cake oven. oven.

She is also angry about the flooring she has had She is also angry about the flooring she has had installed. Despite Kylie’s protests she went with the installed. Despite Kylie’s protests she went with the single sheet vinyl, and did not have under floor single sheet vinyl, and did not have under floor heating installed. The vinyl, while easier to clean heating installed. The vinyl, while easier to clean than the slate, is marking and scuffing badly than the slate, is marking and scuffing badly however. She has only had it down 6 months, and however. She has only had it down 6 months, and already there are a number of wear marks. Her already there are a number of wear marks. Her cupcake classes – which she runs 5 times a week cupcake classes – which she runs 5 times a week and more often in school holidays – are now so and more often in school holidays – are now so popular that she has at least 20 students per class. popular that she has at least 20 students per class. Because of her renovations she has room for them Because of her renovations she has room for them all around her lovely new island bench, but the vinyl all around her lovely new island bench, but the vinyl around the island bench almost looks like a race around the island bench almost looks like a race track. It is as if her students have worn a path track. It is as if her students have worn a path around the bench – and in only 6 months. The vinyl around the bench – and in only 6 months. The vinyl was quite expensive – as she had heavy grade was quite expensive – as she had heavy grade domestic installed – so Mavis is very unhappy. She domestic installed – so Mavis is very unhappy. She hasn’t yet paid the bill for the vinyl as she has been hasn’t yet paid the bill for the vinyl as she has been arguing with the company. They are, according to arguing with the company. They are, according to Mavis, now getting nasty, and want their $45,000 Mavis, now getting nasty, and want their $45,000 immediately. Advise Mavisimmediately. Advise Mavis

Problem solving methodologyProblem solving methodology

IssueIssue Law (Rule)Law (Rule) ApplicationApplication ConclusionConclusion ““advise”advise”

STATE GOVERNMENT STATE GOVERNMENT INSURANCE INSURANCE

COMMISSION v COMMISSION v TRIGWELLTRIGWELL

(1979) 142 CLR 617(1979) 142 CLR 617

[629][629]MASON J. This is an appeal from a decision of the Supreme Court of MASON J. This is an appeal from a decision of the Supreme Court of South Australia (King J.) in which judgment was entered for the first South Australia (King J.) in which judgment was entered for the first respondents ("the Trigwells") against the appellant Insurance respondents ("the Trigwells") against the appellant Insurance Commission.Commission.The Trigwells had brought an action for damages for personal The Trigwells had brought an action for damages for personal injuries which they had sustained when the vehicle in which they injuries which they had sustained when the vehicle in which they were travelling was involved in an accident with a vehicle driven were travelling was involved in an accident with a vehicle driven by one Christine Avis Rooke. By their statement of claim, the by one Christine Avis Rooke. By their statement of claim, the Trigwells alleged negligence on the part of Miss Rooke. Miss Rooke Trigwells alleged negligence on the part of Miss Rooke. Miss Rooke had been killed in the accident and the appellant was sued as her had been killed in the accident and the appellant was sued as her compulsory third party insurer.compulsory third party insurer.The second respondents ("the Kerins") were also joined as The second respondents ("the Kerins") were also joined as defendants in the action. By their statement of claim, the Trigwells defendants in the action. By their statement of claim, the Trigwells alleged that Miss Rooke had collided with two sheep on the alleged that Miss Rooke had collided with two sheep on the highway immediately before the accident and that, as a result highway immediately before the accident and that, as a result [630][630] of, or in an attempt to avoid, the collision with the sheep, of, or in an attempt to avoid, the collision with the sheep, she had collided with the Trigwells. It was alleged that the she had collided with the Trigwells. It was alleged that the presence of the sheep on the highway was the result of negligence presence of the sheep on the highway was the result of negligence on the part of the Kerins and further, or in the alternative, that the on the part of the Kerins and further, or in the alternative, that the presence of the sheep constituted a nuisance which the Kerins had presence of the sheep constituted a nuisance which the Kerins had failed to prevent. The Kerins were sued as the occupiers of land failed to prevent. The Kerins were sued as the occupiers of land adjoining the highway on which the accident had occurred.adjoining the highway on which the accident had occurred.The Trigwells claimed that either the deceased driver or the Kerins The Trigwells claimed that either the deceased driver or the Kerins or both had been responsible for the accident.or both had been responsible for the accident.

By its defence, the appellant denied that there had been By its defence, the appellant denied that there had been negligence on the part of the deceased driver and alleged that, negligence on the part of the deceased driver and alleged that, even if there were such negligence, the respondent Eric Gerald even if there were such negligence, the respondent Eric Gerald Trigwell, who had been driving the Trigwells' vehicle at the Trigwell, who had been driving the Trigwells' vehicle at the time of the accident, was guilty of contributory negligence. The time of the accident, was guilty of contributory negligence. The appellants also issued a third party notice for contribution appellants also issued a third party notice for contribution against the Kerins.against the Kerins.The Kerins denied the allegations of negligence and nuisance. The Kerins denied the allegations of negligence and nuisance. They maintained that, by virtue of the rule in They maintained that, by virtue of the rule in Searle v. Searle v. WallbankWallbank , they were not liable in negligence for the loss and , they were not liable in negligence for the loss and damage suffered by the Trigwells in the accident. They also damage suffered by the Trigwells in the accident. They also denied that they were under any duty to prevent any nuisance denied that they were under any duty to prevent any nuisance which might be found to have existed.which might be found to have existed.The Kerins alleged that there had been contributory The Kerins alleged that there had been contributory negligence on the part of Eric Gerald Trigwell, an allegation negligence on the part of Eric Gerald Trigwell, an allegation which he denied, and issued a third party notice for which he denied, and issued a third party notice for contribution against the appellant.contribution against the appellant.King J. held that the deceased driver had been guilty of King J. held that the deceased driver had been guilty of negligence, thereby causing the accident in which the negligence, thereby causing the accident in which the Trigwells had been injured, and that the Trigwells were Trigwells had been injured, and that the Trigwells were therefore entitled to succeed against the appellant Insurance therefore entitled to succeed against the appellant Insurance Commission. He held that there had been no negligence on the Commission. He held that there had been no negligence on the part of the respondent Eric Geraldpart of the respondent Eric Gerald Trigwell.Trigwell.

His Honour concluded that the Kerins were under no liability His Honour concluded that the Kerins were under no liability in either nuisance or negligence. His Honour held that the in either nuisance or negligence. His Honour held that the presence of the two sheep on the highway was incapable of presence of the two sheep on the highway was incapable of constituting a public nuisance for which the Kerins were constituting a public nuisance for which the Kerins were responsible. Moreover, he held that, applying the rule in responsible. Moreover, he held that, applying the rule in Searle v. WallbankSearle v. Wallbank, in the circumstances of the case, the , in the circumstances of the case, the Kerins were under no duty of care to prevent the sheep Kerins were under no duty of care to prevent the sheep from straying on to the highway and hence that no from straying on to the highway and hence that no negligence on the part of the Kerins could be established. negligence on the part of the Kerins could be established. His Honour followed the decision of the Full Court of the His Honour followed the decision of the Full Court of the Supreme Court of South Australia in Supreme Court of South Australia in Bagshaw Bagshaw [631][631] v. v. TaylorTaylor which held that the rule in which held that the rule in Searle v.Searle v. WallbankWallbank was was applicable in South Australia.applicable in South Australia. In the result, then, judgment was entered for the Trigwells In the result, then, judgment was entered for the Trigwells against the appellant Insurance Commission. In this Court, against the appellant Insurance Commission. In this Court, the appellant challenged the finding that there had been the appellant challenged the finding that there had been negligence on the part of the deceased driver. The negligence on the part of the deceased driver. The appellant also contested the conclusion of the Supreme appellant also contested the conclusion of the Supreme Court that the Kerins were under no liability in negligence. Court that the Kerins were under no liability in negligence. It was submitted that the rule in Searle v. Wallbank did not It was submitted that the rule in Searle v. Wallbank did not form part of the law of South Australia and that, form part of the law of South Australia and that, accordingly, upon the evidence, there should have been a accordingly, upon the evidence, there should have been a finding of negligence made against the Kerins.finding of negligence made against the Kerins.

In the alternative, it was argued that, if the rule in In the alternative, it was argued that, if the rule in Searle v. Wallbank Searle v. Wallbank did form part of the law of South did form part of the law of South Australia, there were, in this case, "special Australia, there were, in this case, "special circumstances" within the meaning of the rule which circumstances" within the meaning of the rule which justified a finding of negligence against the Kerins. justified a finding of negligence against the Kerins. Finally, the appellant contended that the Supreme Finally, the appellant contended that the Supreme Court had erred in concluding that the Kerins were Court had erred in concluding that the Kerins were not guilty of nuisance. The Trigwells, who cross-not guilty of nuisance. The Trigwells, who cross-appealed, supported the appellant's case against the appealed, supported the appellant's case against the Kerins.Kerins.It will be convenient to consider first the liability of It will be convenient to consider first the liability of the Kerins in negligence. This depends very largely the Kerins in negligence. This depends very largely on what was decided in on what was decided in Searle v. WallbankSearle v. Wallbank. Bray C.J. . Bray C.J. in in Bagshaw v. TaylorBagshaw v. Taylor has examined the effect of the has examined the effect of the decision and the operation in Australia of the decision and the operation in Australia of the principle which it enunciates. However, as this case principle which it enunciates. However, as this case is in effect an appeal against is in effect an appeal against Bagshaw v. TaylorBagshaw v. Taylor and and as this Court has greater freedom to depart from a as this Court has greater freedom to depart from a decision of the House of Lords than the Supreme decision of the House of Lords than the Supreme Court of a State, it is necessary that I say something Court of a State, it is necessary that I say something of of Searle v. WallbankSearle v. Wallbank..

There the House of Lords decided that the owner There the House of Lords decided that the owner or occupier of a property adjoining the highway is or occupier of a property adjoining the highway is under no legal obligation to users of it so to keep under no legal obligation to users of it so to keep and maintain his hedges, fences and gates as to and maintain his hedges, fences and gates as to prevent animals from straying on to it, and that prevent animals from straying on to it, and that he is not under any duty as between himself and he is not under any duty as between himself and users of it to take reasonable care to prevent any users of it to take reasonable care to prevent any of his animals, not known to be dangerous, from of his animals, not known to be dangerous, from straying on to it The decision has been much straying on to it The decision has been much discussed, indeed criticized, but its effect is to discussed, indeed criticized, but its effect is to settle what has been the common law of England settle what has been the common law of England from early times.from early times.We were invited to hold that the case was We were invited to hold that the case was wrongly decided and to say that the earlier cases wrongly decided and to say that the earlier cases supported the view that the landowner or supported the view that the landowner or occupier of land was not immune from liability to occupier of land was not immune from liability to negligence arising from his failure to fence negligence arising from his failure to fence securely his land so as to prevent stock from securely his land so as to prevent stock from straying and causing injury to users of the straying and causing injury to users of the highway. It is not an invitation to which I would highway. It is not an invitation to which I would accede…..accede…..

[632] [632] Salmond on Torts, 17th ed. (1977), p. Salmond on Torts, 17th ed. (1977), p. 344, refers to the rule as "long-standing" 344, refers to the rule as "long-standing" and as one which "was founded upon our and as one which "was founded upon our ancient social conditions and was in no way ancient social conditions and was in no way related to, or liable to be qualified by, such related to, or liable to be qualified by, such matters as the relative levels of fields and matters as the relative levels of fields and highway, the nature of the highway, or the highway, the nature of the highway, or the amount of traffic upon it". The author cites amount of traffic upon it". The author cites Brock v. RichardsBrock v. Richards as authority for this as authority for this statement.statement.It has been suggested that the rule is of It has been suggested that the rule is of modern or recent origin, notably by Lord modern or recent origin, notably by Lord Wright in Wright in Brackenborough v. Spalding Urban Brackenborough v. Spalding Urban District CouncilDistrict Council, in a speech to which Lord , in a speech to which Lord Greene M.R. called attention in Greene M.R. called attention in Hughes v. Hughes v. WilliamsWilliams. However, an examination of the . However, an examination of the authorities shows that its antecedents are authorities shows that its antecedents are ancient.ancient.

The attack on The attack on Searle v. WallbankSearle v. Wallbank was chiefly founded was chiefly founded on the claim that the rule which it enunciated is on the claim that the rule which it enunciated is illogical and that the conditions on which it was illogical and that the conditions on which it was based historically have altered in a fundamental way. based historically have altered in a fundamental way. According to the appellant, it is illogical that the According to the appellant, it is illogical that the occupier of land should be liable for damage done to occupier of land should be liable for damage done to a neighbour's property by reason of his animals a neighbour's property by reason of his animals straying and that he should be immune from liability straying and that he should be immune from liability for personal injury done by his animals (not known to for personal injury done by his animals (not known to be dangerous) straying on to the be dangerous) straying on to the [633] [633] highway highway through his failure to maintain his fences. The through his failure to maintain his fences. The explanation for this apparent illogicality is, of course, explanation for this apparent illogicality is, of course, to be found in the historical facts. As Neville J. said in to be found in the historical facts. As Neville J. said in Heath’s Garage Ltd. v. Hodges Heath’s Garage Ltd. v. Hodges : “In my opinion the : “In my opinion the experience of centuries has shown that the presence experience of centuries has shown that the presence of domestic animals upon the highway is not of domestic animals upon the highway is not inconsistent with the reasonable safety of the public inconsistent with the reasonable safety of the public using the road.”using the road.”

It is then said that as there was a radical change in the It is then said that as there was a radical change in the relevant conditions, a change brought about by the relevant conditions, a change brought about by the development of roads and highways, the growth of fast-development of roads and highways, the growth of fast-moving motor traffic on a large scale and a substantial moving motor traffic on a large scale and a substantial increase in the fencing of properties, the House of Lords increase in the fencing of properties, the House of Lords should have held that the rule was no longer should have held that the rule was no longer appropriate to modern circumstances and that the appropriate to modern circumstances and that the ordinary principles of negligence should apply to the ordinary principles of negligence should apply to the occupier of land whose straying animals caused occupier of land whose straying animals caused accidents on the highway. In short, it is argued that the accidents on the highway. In short, it is argued that the House of Lords should have reviewed the existing law in House of Lords should have reviewed the existing law in conformity with the suggestions made by the Court of conformity with the suggestions made by the Court of Appeal inAppeal in Hughes v. Williams Hughes v. Williams I do not doubt that there are some cases in which an I do not doubt that there are some cases in which an ultimate court of appeal can and should vary or modify ultimate court of appeal can and should vary or modify that which has been thought to be a settled rule or that which has been thought to be a settled rule or principle of the common law on the ground that it is ill-principle of the common law on the ground that it is ill-adapted to modern circumstances. If it should emerge adapted to modern circumstances. If it should emerge that a specific common law rule was based on the that a specific common law rule was based on the existence of particular conditions or circumstances, existence of particular conditions or circumstances, whether social or economic, and that they have whether social or economic, and that they have undergone a radical change, then in a simple or clear undergone a radical change, then in a simple or clear case the court may be justified in moulding the rule to case the court may be justified in moulding the rule to meet the new conditions and circumstances. But there meet the new conditions and circumstances. But there are very powerful reasons why the court should be are very powerful reasons why the court should be reluctant to engage in such an exercise.reluctant to engage in such an exercise.

The court is neither a legislature nor a law reform The court is neither a legislature nor a law reform agency. Its responsibility is to decide cases by applying agency. Its responsibility is to decide cases by applying the law to the facts as found. The courts facility, the law to the facts as found. The courts facility, techniques and procedures are adapted to that techniques and procedures are adapted to that responsibility; they are not adapted to legislative responsibility; they are not adapted to legislative functions or to law reform activities. The court does functions or to law reform activities. The court does not, and cannot, carry out investigations or enquiries not, and cannot, carry out investigations or enquiries with a view to ascertaining whether particular common with a view to ascertaining whether particular common law rules are working well, whether they are adjusted law rules are working well, whether they are adjusted to the needs of the community and whether they to the needs of the community and whether they command popular assent. Nor can the court call for and command popular assent. Nor can the court call for and examine, submissions from groups and individuals who examine, submissions from groups and individuals who may be vitally interested in the making of changes to may be vitally interested in the making of changes to the law. In short the court cannot, and does not, the law. In short the court cannot, and does not, engage in the wide-ranging inquiries and assessments engage in the wide-ranging inquiries and assessments which are made by governments and law reform which are made by governments and law reform agencies as a desirable, if not essential, preliminary to agencies as a desirable, if not essential, preliminary to the enactment of legislation by an elected legislature. the enactment of legislation by an elected legislature. [634][634]These considerations must deter a court from departing These considerations must deter a court from departing too readily from a settled rule of the common law and too readily from a settled rule of the common law and from replacing it with a new rule. Certainly, in this case from replacing it with a new rule. Certainly, in this case they lead to the conclusion that the desirability of they lead to the conclusion that the desirability of departing from the rule in departing from the rule in Searle v. Wallbank Searle v. Wallbank is a is a matter which should be left to Parliament.matter which should be left to Parliament.

It is beyond question that the conditions which brought It is beyond question that the conditions which brought the rule into existence have changed markedly. But it the rule into existence have changed markedly. But it seems to me that in the division between the legislative seems to me that in the division between the legislative and the judicial functions it is appropriately the and the judicial functions it is appropriately the responsibility of Parliament to decide whether the rule responsibility of Parliament to decide whether the rule should be replaced and, if so, by what it should be should be replaced and, if so, by what it should be replaced. The determination of that issue requires an replaced. The determination of that issue requires an assessment and an adjustment of the competing assessment and an adjustment of the competing interests of motorists and landowners; it might even interests of motorists and landowners; it might even result in one rule for urban areas and another for rural result in one rule for urban areas and another for rural areas. It is a complicated task, not one which the court is areas. It is a complicated task, not one which the court is equipped to undertake. equipped to undertake. My conclusion is, then, that we should accept that what My conclusion is, then, that we should accept that what was and has been the common law for England was was and has been the common law for England was correctly decided by correctly decided by Searle v. WallbankSearle v. Wallbank. The next . The next question is whether the law as declared by the House of question is whether the law as declared by the House of Lords in that case represents the law of South Australia. Lords in that case represents the law of South Australia. The proper approach to a determination of such a The proper approach to a determination of such a question was adopted by the Supreme Court of Victoria in question was adopted by the Supreme Court of Victoria in Brisbane v. CrossBrisbane v. Cross, and by the Supreme Court of South , and by the Supreme Court of South Australia in Australia in Bagshaw v. TaylorBagshaw v. Taylor. Accordingly, the inquiry . Accordingly, the inquiry must be whether the law in must be whether the law in Searle v. Wallbank Searle v. Wallbank was was applicable in the colony of South Australia upon its applicable in the colony of South Australia upon its settlement and further, whether the law, if so applicable, settlement and further, whether the law, if so applicable, has been varied or abolished by subsequent local has been varied or abolished by subsequent local legislation.legislation.

It is a well-established principle that, in settled It is a well-established principle that, in settled colonies, so much of the common law of England colonies, so much of the common law of England is introduced as is applicable to the situation of is introduced as is applicable to the situation of the colonists and the condition of the colony (see the colonists and the condition of the colony (see Halsburys Laws of EnglandHalsburys Laws of England, 4th ed., vol. 6, p. 589; , 4th ed., vol. 6, p. 589; Cooper v. StuartCooper v. Stuart). The applicability of the law in ). The applicability of the law in question depends not upon whether the court question depends not upon whether the court considers the law suitable or beneficial for the considers the law suitable or beneficial for the colony, but upon whether the law is capable of colony, but upon whether the law is capable of application in the colony (application in the colony (Delohery v. Permanent Delohery v. Permanent Trustee Co. of N.S.W.Trustee Co. of N.S.W.). The date upon which the ). The date upon which the applicabili ty of the English common law to the applicabili ty of the English common law to the settled colony of South Australia falls to be settled colony of South Australia falls to be considered has been fixed by local enactment. considered has been fixed by local enactment. Section 3 of Act No. 9 of 1872 (S.A.) provides that Section 3 of Act No. 9 of 1872 (S.A.) provides that "In all questions as to the applicability of any laws "In all questions as to the applicability of any laws or statutes of England to the Province of South or statutes of England to the Province of South Australia, the said province Australia, the said province [635] [635] shall be shall be deemed to have been established on the 28th deemed to have been established on the 28th day of December 1836".day of December 1836".

The issue, then, is whether the common law of The issue, then, is whether the common law of England, as settled by the decision of the House of England, as settled by the decision of the House of Lords in Lords in Searle v. WallbankSearle v. Wallbank, was applicable, in the , was applicable, in the relevant sense, to the colony of South Australia on relevant sense, to the colony of South Australia on 28th December 1836. There is no reason for holding 28th December 1836. There is no reason for holding that the rule in that the rule in Searle v. WallbankSearle v. Wallbank was inapplicable in was inapplicable in South Australia on that date. The physical conditions South Australia on that date. The physical conditions obtaining in the colony—those relating to the state of obtaining in the colony—those relating to the state of the roads and fencing of land, and to the presence of the roads and fencing of land, and to the presence of straying stock upon the highways—were not so straying stock upon the highways—were not so markedly different from those existing in England that markedly different from those existing in England that the law could be said to be inapplicable to the colony. the law could be said to be inapplicable to the colony. There was nothing in the legislation in force in the There was nothing in the legislation in force in the colony as at 28th December 1836 that had the effect colony as at 28th December 1836 that had the effect of making the relevant common law inapplicable to of making the relevant common law inapplicable to the colony.the colony.Subsequent statutory provisions such as s. 14 (2) of Subsequent statutory provisions such as s. 14 (2) of the the Impounding ActImpounding Act, 1920 (S.A.), permitting the , 1920 (S.A.), permitting the impounding of cattle wandering or straying upon the impounding of cattle wandering or straying upon the road and, in effect, the imposition of a penalty upon road and, in effect, the imposition of a penalty upon the owner of the cattle, have not displaced the the owner of the cattle, have not displaced the common law because they confer no private right of common law because they confer no private right of action upon a person injured by the straying cattle action upon a person injured by the straying cattle (see (see Searle v. WallbankSearle v. Wallbank). ).

There has been no counterpart in South Australia to There has been no counterpart in South Australia to the legislation in Western Australia which required and the legislation in Western Australia which required and encouraged the fencing of properties, legislation which encouraged the fencing of properties, legislation which was relied upon by the Supreme Court of Western was relied upon by the Supreme Court of Western Australia to justify the conclusion that the rule in Australia to justify the conclusion that the rule in Searle Searle v Wallbankv Wallbank is not part of the law of that State (see is not part of the law of that State (see Thomson v. NixThomson v. Nix).).The view might be taken that conditions prevailing in The view might be taken that conditions prevailing in Australia, or some parts of Australia, are more suited to Australia, or some parts of Australia, are more suited to the the [636] [636] retention of the rule in retention of the rule in Searle v WallbankSearle v Wallbank than the conditions which prevail in the United than the conditions which prevail in the United Kingdom. Not only is Australia predominantly rural in Kingdom. Not only is Australia predominantly rural in character but its rural interests centre very character but its rural interests centre very substantially around the raising and keeping of substantially around the raising and keeping of livestock. I mention these considerations, not with a livestock. I mention these considerations, not with a view to saying that the rule ought to be retained, but view to saying that the rule ought to be retained, but so as to emphasize the point that the issue of retention so as to emphasize the point that the issue of retention or abolition calls for an assessment and a adjustment or abolition calls for an assessment and a adjustment of conflicting interests, the principal interests being of conflicting interests, the principal interests being those of the rural landowner and occupier and those of those of the rural landowner and occupier and those of the motorist.the motorist.

The fact that the United Kingdom Parliament has The fact that the United Kingdom Parliament has abolished the rule has no relevance for us, except abolished the rule has no relevance for us, except to confirm my opinion that the question should be to confirm my opinion that the question should be left to Parliament. As conditions here differ from left to Parliament. As conditions here differ from those which prevail in the United Kingdom we those which prevail in the United Kingdom we cannot automatically assume that all Australian cannot automatically assume that all Australian legislatures, or that the South Australian legislatures, or that the South Australian Parliament in particular, would take the same Parliament in particular, would take the same view as that which has been taken in England. view as that which has been taken in England. With great respect to Samuels J.A. who thought With great respect to Samuels J.A. who thought otherwise in otherwise in Kelly v. SweeneyKelly v. Sweeney I do not consider I do not consider that the abolition of the rule by the United that the abolition of the rule by the United Kingdom Parliament on the recommendation of Kingdom Parliament on the recommendation of the English Law Commission is a relevant the English Law Commission is a relevant consideration for this Court.consideration for this Court.We must proceed, therefore, on the footing that We must proceed, therefore, on the footing that Searle v. WallbankSearle v. Wallbank forms part of the law of South forms part of the law of South Australia.Australia.