Society of Trust and Estate Practitioners The Interface between Equitable Principles and Public Law


Equity – A Body of Law Historically Defined



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Equity – A Body of Law Historically Defined
The traditional definition of equity for lawyers was historical and institutional in its terms. It was as the dictionary says:

… the part of English law originally administered by the Lord Chancellor and later by the Court of Chancery.21

Courts of Equity did not enjoy a general jurisdiction to correct, modify or supersede positive law.22 Like the courts of common law, they decided new cases as they arose by principles derived from precedent and developed or elaborated upon them. Those principles were said to be:

… as fixed and certain as the principles on which the courts of common law proceed.23

Maitland called equity 'supplementary law':

If we suppose all our law put into systematic order, we shall find that some chapters of it have been copiously glossed by equity, while others are quite free from equitable glosses.24

Equity engaged closely with Contract and Property law supplying both with 'equitable appendices' including the law of trusts. As Maitland said:

The bond which kept these various appendixes together under the head of Equity was the jurisdictional and procedural bond. All these matters were within the cognizance of Courts of Equity and they were not within the cognizance of the courts of common law.25

In light of the Judicature Acts, however, he predicted that:

The day will come when lawyers will cease to inquire whether a given rule be a rule of equity or a rule of common law: suffice that it is a well established rule administered by the High Court of Justice.26

Equity today is a distinctive part of the unwritten law of Australia administered by most, if not all, Courts of the land albeit it retains its distinctive character and functions shaped by its historical roots. Its general aim is the prevention and remediation of unconscientious or unconscionable conduct. Professor Hardingham put it succinctly in 1985 when he said that the overriding aim of all equitable principle is the prevention of unconscionable conduct.27 Gummow and Hayne JJ in Australian Competition and Consumer Commission v CG Berbatis Pty Ltd wrote:

It will be unconscientious for a party to refuse to accept the position which is required by the doctrines of equity.28

It is proper to acknowledge, as their Honours did, that observations of such generality have little practical utility for they may mask rather than illustrate underlying principles.29 The aim of equity, however, should be kept in mind in conjunction with its specific doctrines when considering their possible intersections with public or administrative law. Such intersections have existed as a matter of history and continue to exist to some extent in the application of equitable doctrines to aspects of the exercise of public power. Equity also informs, at least by analogy, the definition of limits upon the exercise of statutory powers which might be said to place their repository in a relationship of fiduciary nature with those affected by the exercise of those powers.


Directory: assets -> publications -> speeches -> current-justices -> frenchcj
frenchcj -> Australian Bar Association Conference Why Rome and not Hong Kong — the Australian Bar at Large
frenchcj -> John Curtin Prime Ministerial Library 2013 Anniversary Lecture If they could see us now — what would the founders say?
frenchcj -> Inglis Clark — a living Force Andrew Inglis Clark and the Building of the Australian Nation Conference
frenchcj -> The Fine Art of Giving and Taking Offence Birkenhead Lecture
frenchcj -> The High Court, The Constitution and Australian Politics Book Launch
frenchcj -> Washington University in St Louis School of Law Liberty and Law in Australia
frenchcj -> The Courts and the Parliament
frenchcj -> Bending Words: The Fine Art of Interpretation University of Western Australia, Faculty of Law, Guest Lecture Series
frenchcj -> Australasian Law Teachers' Association Conference Legal Education in Australia – a never Ending Story Chief Justice Robert French ac
frenchcj -> The Tax Institute's 27th National Convention dg hill Memorial Lecture Tax and the Constitution


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