Trespass, The Action on the Case and Tort

Abstract

"Do not tell me that the Plantagenets matter not to us in Australia. Or that the clanking chains of English legal history can be ignored by contemporary Australian lawyers." Nowhere is this statement by retired High Court judge Michael Kirby more true than in the law of obligations in Australia. To a modern reader, a chapter entitled as is this chapter will seem something of an oddity. The action on the case will most likely be unfamiliar, and a distinction between 'trespass' and 'tort' may seem misconceived: in the modern law trespass is a tort. We Can only try to understand these categories by returning to the mindset of the lawyers who used these terms and to do that requires us to understand the legal regime of 14th century England. That legal regime had two characteristics that have no modern parallel: a diffuse and decentralised court structure, and a formal system of procedure that dictated substantive legal development.