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Common law in peril

Common law in peril

Australia's common law is at risk and requires the urgent attention of judges and members of the practising profession, according to Brian Sully SC, a retired judge of the NSW Supreme Court.As…

Australia's common law is at risk and requires the urgent attention of judges and members of the practising profession, according to Brian Sully SC, a retired judge of the NSW Supreme Court.

As the keynote speaker at the annual Australian Lawyers Alliance ACT Branch Conference on Friday (24 June), which focused primarily on the issues affecting the rights of the injured, Sully discussed the durability of the common law in the 21st century in his address, The Common Law: Whither or Wither?

Referencing Sir Winston Churchill's words to the Queen early in her reign ("Always remember that the further back you can look, the further forward you can see") as the essence of the common law, Sully went on to warn that the common law is being "hollowed out" by the billable hour and budget demands.

"And what are we to say of the profession itself when in far too many instances ... professional pride and professional commitment, deriving in large from a living awareness of the mighty inheritance of the common law, have been hollowed out by the billable hour and the overarching obligation to 'make budget'?" asked Sully.

Quoting Nobel Prize winner Aleksandr Solzhenitsyn, Sully said hastiness and superficiality is as much a psychic disease in the 21st century as it was in the 20th century, blaming the growing addiction amongst society to "electronic gadgets which are destroying whatever concentration span has been left by television".

If such issues remain ignored, according to Sully, the common law and the protections which it has built up over time are "very much at risk".

But despite these threats to the common law, it has two great forces on its side, according to Sully, including its ability to accommodate change.

"It is true that the common law has not always been in the vanguard of change, but the common law has always been both able and willing to accommodate change," said Sully.

Other speakers at the ALA conference included barristers John Purnell SC and Clare Carnell, who discussed 10 significant criminal law cases of recent times, as well as barrister Steven Hausfeld and Members of the Legislative Assembly, Shane Rattenbury and Brendan Smyth, who led a panel discussion on ways to improve schemes set up to serve injured people.

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