In time these equitable rules became as fixed as

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In time, these equitable rules became as fixed as common law rules because of the tendency, by Chancellors as well as judges, to decide cases in accordance with precedent. Equity and common law, though, remained as separate bodies of rules, administered in separate courts in England, until the 1870s. Legislation of that period, later copied in Australian States and Territories, provided for the ‘fusion’ of common law and equity. All courts would apply principles of common law and equity to each matter that came before them; in cases where the principles were inconsistent, the equitable rules were to prevail. In this way, then, English law recognized certain matters as being within the province of the common law courts, and others as being within the province of the Chancellery. Thus, ‘common law’ and ‘equity’ developed as two streams of legal rules and procedures. And this distinction was received in Australia as part of the English legal system. Even since the fusion, ‘equity’ still exists as a specialized and identifiable body of legal rules and principles. But now that all courts apply both sets of principles, the distinction between the two is often blurred, since it may not matter in practice whether a particular rule is derived from common law or equity. (R. Chisholm & G. Nettheim, Understanding Law, Butterworths, 6th ed., 2002, pp. 24-30) 50
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CO5119:03 Business Law SUBJECT MATERIALS >> SCHOOL OF LAW JAMES COOK UNIVERSITY 3.2 Common Law as a Source of Law Of the two sources of law - case law and legislation - case law is increasingly losing some of its importance. There are three reasons for this: (1) Judges can only make law about cases that come before them, whereas the legislature can make law about any subject, at any time, subject only to constitutional constraints (in Australia, for example, the Federal Parliament can only make laws about those matters which are listed in the Constitution - these, however, are very wide); (2) In the event of a conflict between them, statute law prevails over case law; and (3) Legislatures are increasingly enacting legislation over a great range of topics, hence reducing the impact of case law in those areas. Nonetheless, the role of case law is still significant. Let us now examine the development and operation of this source of the law from the following extract from P. Gillies, Business Law, Federation Press, 7th ed., 2001, pp. 14-20, 24-27. Judge-Made Law and Statute Law As it has been seen, law falls into two categories, in the technical sense, judge-made law and statute law. Judge-made law may be referred to very generally as ‘common law’, but for both historical and functional reasons it is appropriate to divide judge-made law into two categories - the common law proper, which represents the principles settled by the common law courts of England, as modified over time, and equity, which represents those principles settled by the Chancery Court in England, also as modified over time. For this reason the common law and equity will be discussed separately, following which statute law will be reviewed.
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