By David Barker
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Additional info for Essential Australian Law (Australian Essentials)
Sample text
This means that, unless there is anything to the contrary: 34 PRIMARY SOURCES OF LAW • words importing the masculine gender include females; • words in the singular include the plural and words in the plural include the singular; • the expression ‘person’ includes a body corporate; • expressions referring to writing are construed as including references to printing, lithography, photography and other modes of representing or reproducing words in a visible form. Modern federal statutes and statutory instruments frequently include a section expressly incorporating the Acts Interpretation Act 1901 (Cth).
Neither more nor less than the usages of merchants and traders ... ratified by the decisions of the courts of law which, upon such usages being proved before them, have adopted them as settled law. 13 ESSENTIAL AUSTRALIAN LAW History of the law merchant The law merchant in medieval times was applied in (a) maritime courts found in coastal towns, and (b) local courts found in certain market towns. Maritime courts Maritime courts applied the customary maritime law which operated generally in western Europe and which was derived from the Laws of Oleron, the Consolato del Mare, the Laws of Wisby and other Mediterranean maritime laws.
The judge must declare what the rule should be by arguing from analogous cases. Since the common law is ‘complete’ and is capable of providing a remedy for every wrong, then, where there is no apparent rule, the judge is expected to act creatively in deciding what that rule should be, using the common law, equity or jurisprudence. Obviously, no two cases are identical. This fact enables a judge to point to some material difference which is justification for refusing to apply a rule of law previously laid down.