Equity Principles Practice and Procedure

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I Introduction, 1 Over several years before 1973 the second year Law of Property course for law. students at the Australian National University had acquired a reputation as a bogeyman. subject Successive generations of students had stumbled upon its high failure rates. before they had even contemplated course content They were beaten before they. 2 That was the problem that the late Professor Douglas Whalan confronted when in 1973. he became ANU s lecturer in property law He tackled the problem in the undergraduate. hothouse by cooling the temperature He encouraged everybody to relax and having. relaxed to experience the joy of learning On 1 April 1973 he delivered an entire lecture. on the profound ramifications of a non existent Law Reform Commission Report that had. recommended he said that the archaic concept of fee simple be abolished He was a. natural born teacher, 3 For many practising lawyers the study of Equity still awaits a Professor Whalan Equity. is not everywhere taught as a separate subject It is at times hidden away as ancillary to. other subjects such as property law As great as they are leading Equity texts and the. judgments upon which their analyses are based appear often to glory in the esoteric. and distinctions which if not obscure are elusive, 4 That is no less so because in the years since Owen Dixon in Parker v The Queen. 1963 liberated Australian jurisprudence from the self imposed shackles of blind. adherence to English precedent the Australian legal system has stridently embraced. independence of thought Having determined that there is such a thing as the common. law for Australia the High Court of Australia has set about defining its content. Inevitably in the search for principle in the Equity arena there have been tensions. between those actively searching for unifying concepts such as Mason CJ and Deane. J and those such as Gummow J for whom the genius of Equity is its intellectual. resistance to such concepts and its defiance of systemization. The New South Wales Bar Association Professional Development Department Page 2 of 35. 5 The object of this paper is not to repeat what can be found in standard Equity texts but. to encourage readers to look to those texts to provide guidance on how to read the. texts and perhaps to provide information or at least insights to Equity practice that. are not readily found there The paper is predicated upon an opinion not novel that. even a summary practical guide to the Equity jurisdiction must be informed by an. understanding of its history and the philosophical tensions that define both its content. and the manner of its exercise, 6 For any reader who doubts the practical importance of an understanding of the history of. Equity and its philosophical foundations the recent judgments of the High Court of. Australia in Tanwar Enterprises Pty Ltd v Cauchi 2003 HCA 57 77 ALJ 1853 21 ALR. 359 and Romanos v Pentagold Investments Pty Ltd 2003 HCA 58 77 ALJR 1882 201. ALR 399 are required reading There the Court examined the concept of conduct. against good conscience which it preferred to describe as unconscientious rather. than unconscionable in the context of applications for equitable relief against. forfeiture for breach of contract The Court s emphasis on a need to ground equitable. relief on a finding of unconscientious conduct rather than a general notion of what would. be a fair result reflects a deep seated concern amongst many Equity lawyers about. broad appeals to discretionary justice wherever unfairness can be characterized as. unconscionable There is judicial resistance to the idea that unconscionable conduct. is in Equity the equivalent of negligence at Common Law. 7 For anybody who thinks Equity lawyers lack passion a close examination of Harris v. Digital Pulse Pty Ltd 2003 56 NSWLR 298 is highly recommended There the Court of. Appeal by a majority held that a punitive award of money cannot be made in Equity by. analogy with an award of exemplary damages in tort for breach of a fiduciary duty at. least Spigelman CJ held where the duty arises in the context of a contractual. relationship The competing judgments of Hayden JA in the majority and Mason P in. dissent are fine examples of different philosophical approaches to the development of. equitable principles as is the moderating judgment of the Chief Justice Echoes of Lord. Eldon representing orthodoxy and Lord Mansfield representing liberalism can be. heard more than faintly, The New South Wales Bar Association Professional Development Department Page 3 of 35.
8 The didactic point to be made here is that none of these judgments can be fully. appreciated if understood without a thorough grounding in the history and philosophy of. the Equity jurisdiction inherited from England faithfully preserved and developed in New. South Wales and the subject of divergence in the common law diaspora Buried in law. reports sometimes more revered than read are profound debates between gifted. professionals about law life and society,II An Historical Perspective of Equity. II 1 The NSW Perspective, 9 For those practitioners who take the trouble to delve into its history and rationale the. Equity jurisdiction can be a source of fascination and fulfilment. 10 However not everybody has that turn of mind In fact there is historical justification for. the view that the legal profession of NSW owes its present strong tradition in Equity to. the fact that in the early years of the Supreme Court of NSW the Equity jurisdiction was. an unwanted if not illegitimate child, 11 Upon its establishment in 1824 pursuant to the Third Charter of Justice issued under. the authority of the New South Wales Act 1823 UK the Court was a tribunal exercising. plenary power Although the powers of its judges to sit alone without a Full Bench or. assessors or with a jury were constrained the Court was empowered to administer both. Law and Equity In the view of some eminent lawyers but it must be said not others. the Court s structure was similar to that introduced in England by the Judicature Acts of. 1873 and 1875 to permit English judges to administer Law and Equity concurrently As. is common knowledge in Australian legal circles for a hundred years after 1875 NSW. steadfastly rejected the Judicature Act system and held to a court structure in which Law. and Equity were administered separately by distinct branches of the Supreme Court of. 12 How and why did the Supreme Court of NSW come to reject what is sometimes. described always controversially in New South Wales as the fusion of Law and. Equity when almost all the common law world in England Australia Canada New. Zealand and the United States was for it How and why did New South Wales. The New South Wales Bar Association Professional Development Department Page 4 of 35. lawyers maintain their opposition to the Judicature Act system until the commencement. of the Supreme Court Act 1970 NSW in 1972 Why is the echo of that opposition in. passionate debate about fusion fallacies still important to an understanding of the. Equity jurisdiction, 13 These questions are too large for anything but a superficial answer in this paper A solid. Equity tradition having been established in the colony between 1837 and 1880 New. South Wales practitioners deliberately rejected the Judicature Act model when. Parliament enacted the Equity Act 1880 NSW They reaffirmed their adherence to the. separate administration of Law and Equity when the Equity Act 1901 NSW was. enacted to consolidate subsequent developments They successfully resisted. antagonism to the NSW system in early judgments of the High Court of Australia And. they outlasted several campaigns for the enactment of legislation on the Judicature Act. model until Herron CJ in the 1960s put in train the proposals and a Law Reform. Commission structure that led to enactment of the Supreme Court Act 1970 J D. Heydon The Role of the Equity Bar in the Judicature Era in Lindsay and Webster No. Mere Mouthpice 2002 71 at 71 72, 14 Perhaps the resilience of Equity in New South Wales owes much to the succession of.
Equity practitioners who taught the subject at what was between 1890 and 1971 the. State s only university law school at the University of Sydney In a publication to. celebrate the Law School s centenary in 1990 Gummow J attributed much to the fact. that throughout the history of the Law School the teaching of Equity had been marked by. the involvement of practitioners who later joined the Bench themselves then to deliver. judgments which served to instruct subsequent generations of students He singled out. the enduring contribution of Frederick Jordan who lectured in Equity from 1909 and. maintained a direct link with the University until his death in 1949 As Chief Justice of. NSW 1934 1949 Jordan contributed to the sixth and last edition as he had to earlier. editions of his revised lecture notes Chapters on Equity in New South Wales 1947. With the support of R P Meagher QC those notes were republished in 1983. 15 Given the pre eminence of Meagher Gummow and Lehane s Equity Doctrines and. Remedies of which Heydon J is a current editor the presence of Gummow and. Heydon JJ on the High Court the presence of Meagher JA on the NSW Court of Appeal. The New South Wales Bar Association Professional Development Department Page 5 of 35. and the service of the late John Lehane on the Federal Court of Australia no Australian. practitioner can ignore the Gummow thesis on the strength of the Equity tradition in. NSW Each judge was a product and producer of the Sydney Law School tradition. 16 The Gummow thesis is persuasive for the period post 1890 when the Law School was. established However it says nothing about the earlier period when without the Law. School NSW deliberately choose not to embrace the Judicature Acts To attribute the. NSW attitude to innate conservatism which seems to be a common explanation for. what is characterized as delay in adopting to the Judicature Acts system is too easy. It does not explain why a conservative colonial mindset on this topic deliberately. declined to follow as it and other colonies generally did follow the mother country s. lead Part of the answer might be found in the fact that the formative period in NSW s. legal system the colony was taken by the Australian Courts Act 1828 UK to have. received English law as it stood on 25 July 1828 but its engagement with the rule of law. and Equity of a sort commenced with the First European Settlement in 1788 coincided. with the birth of modern Equity during Lord Eldon s chancellorships which came to an. end in 1827 However that does not explain the position in places such as Tasmania. South Australia or Illinois where a theory based upon conditions prevailing at the time of. a colony s birth provides no consistent story As fascinating or insightful as such. theories might be history like Equity defies neat explanations. 17 It should not be thought however that it was only Equity practitioners who supported the. preservation of the Equity jurisdiction as a separate phenomenon in New South Wales. The State s Common Law practitioners themselves were anxious to preserve a the. formulary system of pleading that was abolished in favour of Equity pleadings by the. Supreme Court Act 1970 and b the common law system of trial by jury for which. political campaigns had been fought in colonial New South Wales in the name of. democracy and which only began to be restricted in 1965 Perhaps the common. lawyers simply did not like Equity work, 18 Francis Forbes the first Chief Justice of New South Wales 1824 1837 was certainly in. that mould He discouraged the Chancery side of the Supreme Court s jurisdiction In. 1827 he wrote In an early stage of society there is comparatively but little occasion for. resorting to a Court of Equity Resort to Equity which was had despite doubts about. The New South Wales Bar Association Professional Development Department Page 6 of 35. jurisdiction to the Supreme Court s predecessor declined for a decade following the. establishment of the Court under Forbes Chief Justiceship in 1824 and it was only after. Forbes retirement that the concept of an Equity judge took root. 19 Upon Forbes retirement James Dowling was appointed Chief Justice He served in that. office between 1837 1844 His promotion to Chief Justice created a vacancy on the. Court which was filled by John Walpole Willis Willis J who arrived in the Colony in. 1837 was a controversial judge who lacked a judicial temperament and what would. today be described as inter personal skills Pushy and abrasive he was ostracized by. his fellow judges on the Court and he created havoc wherever he served in the British. Empire Nevertheless on him perhaps lies the mantle of the Father of Equity in New. South Wales He was de facto the State s first Equity Judge the first judge of the. Court enthusiastic for the Equity jurisdiction, 20 Willis J was a knowledgeable Equity lawyer who came to New South Wales with. ambitions to sit in Equity and a reluctance to waste his talents on common law work. Between 1837 and 1840 his fellow judges humoured him to the extent that they. acquiesced in him exercising the Court s Equity jurisdiction alone despite the fact that. strictly the Court s jurisdiction in Equity could only be exercised by a Full Bench In that. irregular way he was the Court s first Equity Judge. 21 His abrasive nature served him ill in 1840 when upon enactment of the Administration of. Equity Principles Practice and Procedure By Geoff Lindsay SC 25 November 2003 Revised 20 September 2007 Topic Page I INTRODUCTION 2 4 II AN HISTORICAL PERSPECTIVE OF EQUITY 4 17 II 1 The NSW Perspective 4 8 II 2 Historical Differences between Law and Equity 8 10 II 3 The Historical Origins and Traditions of English Equity 10 16 III THE MEANING OF EQUITY 17 20 IV THE AMBIT OF

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