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



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Equitable Remedies
A substantial part of the contribution of equity to administrative law has come from the use of the equitable remedies of injunction and declaration. The injunction is available to restrain threatened official conduct which is beyond power or otherwise unlawful. Interlocutory injunctions are an indispensable tool by which the status quo is maintained in judicial review applications pending their final hearing and determination.

The place of the injunction in administrative law in Australia is secured by s 75(v) of the Constitution. That provision has become a bulwark of the rule of law. The injunction for which it provides stands as a constitutional remedy against unlawful executive action along with the constitutional writs of mandamus and prohibition.

The injunction and declaration are species of equitable relief available in all manner of litigation coming before both federal and State courts. It is not necessary that claims for such relief be conjoined with other prerogative or statutory remedies. In Corporation of the City of Enfield v Development Assessment Commission58 the Council of the City of Enfield contended that a development plan consent granted by the Development Assessment Commission was invalid by reason of the misclassification of the proposed development as other than a 'special industry'. It claimed injunctive and declaratory relief in the Supreme Court.

The Council’s action invoked a jurisdiction of the Supreme Court which was characterised in the joint judgment of Gleeson CJ, Gummow, Kirby and Hayne JJ as:

… its jurisdiction as a court of equity to grant equitable relief to restrain apprehended breaches of the law and to declare rights and obligations in respect thereto.59 (footnote omitted)

Their Honours pointed to the differences between the availability in public law of equitable remedies on the one hand and judicial review by mandamus, prohibition and certiorari on the other.60 An applicant with standing to apply for prohibition or certiorari could fail to obtain an order absolute for reasons which would not have precluded the availability of a declaration. So although in FAI Insurances Ltd v Winneke61 certiorari and mandamus were not available against the Governor in Council, a declaration could be made against the Attorney-General of Victoria as representative of the Crown.62

Gaudron J, who agreed with the joint judgment, added some observations about the inadequacies of the prerogative writs as general remedies to compel executive government and administrative bodies to operate within the limits of their powers.63 She said:

Equitable remedies are available in the field of public law precisely because of the inadequacies of the prerogative writs. Thus… it is not incongruous that equitable relief should be available although prerogative relief is not.64 (footnote omitted)

The application of the equitable injunction and declaration in public law may also be influenced by the modern availability of statutory remedies which, because they are seen as serving the public interest, may not impose any particular standing requirement. Section 80 of the Trade Practices Act 1974 (Cth) which provides that injunctive relief to restrain contraventions of the Act can be sought by any person is the leading case in point. Its constitutional validity was considered in the decision of the High Court in Truth About Motorways Pty Ltd v Macquarie Infrastructure Investment Management Ltd.65 In his reasons for judgment in support of validity, Gummow J returned to the role of equity in public law which he had considered in the Bateman’s Bay case. He pointed out that in Chancery a plaintiff would seek to lay out facts and circumstances demonstrating the equity to the relief claimed. That equity might arise from the violation or apprehended violation of rights secured in equity’s exclusive jurisdiction or because of the inadequacy of legal remedies to vindicate legal rights or as a defensive equity to resist legal claims. The legal rights, interests and remedies in question might come from common law or from statute. Equity could intervene to protect statutory rights. Alternatively, where statute conferred obligations upon administrators or particular sections of the community it might provide no means or inadequate means for enforcement of the obligation or the restraint of ultra vires activity. His Honour said:

This led to the engagement of the equity jurisdiction in matters of public law.66

David Wright, writing in the March 2001 edition of the Public Law Review, referred to the indirect effect of analogical reasoning between equitable and like statutory remedies. In this respect he concluded:

… the role of equitable remedies is being reinvigorated particularly with regard to cases understood as public law matters.67

He described equitable remedies as now a potent force for the unification of private and public law.


Directory: assets -> publications -> speeches -> current-justices -> frenchcj
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