Date: Tue, 12 Dec 2006 09:33:44 +1100

From: Neil Foster

Subject: The Scope of Private Law

Dear Jason et al;

John is of course right that it depends on your reason for asking. But when I teach non-law students about the law I tell them that there is a general division between "private" and "public" law in that private law is that part of the law which deals with legal obligations and remedies between individuals as opposed to the involvement of the State. Even though it may be broadly true to say that "public" law often involves statutes this is not always so; eg Criminal Law is part of public law but in NSW at least a large part of the criminal law is still found in the common law of court decisions. So I would include statutes as part of private law - certainly in our jurisdiction the Civil Liability Act 2002, and other statutory limits on negligence in motor accident and workplace litigation; but even in areas we often think of as "pure" private law statutes have changed things. The law of contributory negligence, for example, is invariably statutory where it allows apportionment instead of it being a complete defence. In another area I teach, Property, the law of adverse possession in its modern form only operates because of the specific provisions of limitation of actions legislation.

Of the matters you mention, Jason, I would say the law of civil procedure and conflicts of laws are definitely in the "private law" area. The law of evidence is clearly one that crosses the boundary between private and public, but even there I would have thought there is a body of evidence law that clearly relates to civil litigation, and a body that relates to criminal litigation. (There is also a common bit that relates to both, I guess; the law of hearsay, for example, although since this is not my area I am only guessing.)

Regards Neil F

Neil Foster
Lecturer & LLB Program Convenor
School of Law
Faculty of Business & Law
University of Newcastle
Callaghan NSW 2308
AUSTRALIA
ph 02 4921 7430
fax 02 4921 6931

>>> John Swan 12/12/06 6:35 >>>

Jason,

I don't think that your question can be answered as you have phrased it. The important question to a common lawyer would be, why do you want to know? If you were to ask, e.g., whether a plaintiff has pleaded a cause of action in contract, i.e., a question relevant under the Rules of Civil Procedure, you would have to ask investigate the statement of claim to see if the plaintiff had alleged a contract and its breach. Since the answer to the question whether the plaintiff has shown a cause of action, involves both the provisions of an Ontario regulation and the requirements of the common law for a valid contract, the question whether private law is involved or not has to be yes — at least to some extent. But then too is public law equally involved.

Similarly the rules of evidence regarding, say, the ability of a court to get evidence from a witness in a foreign jurisdiction, have both a public and a private law dimension; public because the power of an Ontario court to make the request is based on legislation and private because the evidence may be important to establish, for example, that there is (or is not) a contract.

I don’t think that those answers are particularly helpful but, if they give you an answer to your question, so much the better. In other words, I don't think that it is possible to answer your questions in the abstract. Abstract questions like yours are too reminiscent of the kind of questions I get asked by my tax partners where the question, "Why to you want to know?", can't be answered or, more often is irrelevant.

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