Fusion of Equity

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If an Australian lawyer were asked about the significance of 1975 in the development of Australian law, he or she would no doubt point to the famous constitutional crisis that culminated, on Armistice Day of that year, in the use by the Governor-General of the ‘reserve powers’ to dismiss the government of the day. That event generated great legal and political controversy for many years, and ‘left many unresolved problems’.[2] Yet, except as an issue in the now muted republican debate,[3] it is not currently a matter of focus in constitutional law; nor is it part of the consciousness of young Australians. Another, less dramatic, event in 1975 has had a more profound and lasting effect on the fabric of Australian law: the publication of the first edition of Meagher, Gummow and Lehane ’s Equity, Doctrines and Remedies (‘Meagher, Gummow and Lehane’), now in its fourth edition.[4] Writing extra-curially, Justice Heydon has said that ‘no greater legal work has been written by Australians.’[5] The book has, indeed, been extremely influential throughout the common law world in arresting the decline of the serious study of legal doctrine, and of the unique contribution of equity jurisprudence in particular. Its great strength is its advocacy of the importance of an appreciation of the historical development of doctrine to the understanding, and shaping, of the modern legal system. And, as Spigelman CJ has recently reminded us, the method of common law systems demands that lawyers ‘acknowledge and respect the collective wisdom of our predecessors’,[6] a comment that is, of course, as applicable in equity as it is at law.

Arguably the greatest legacy of Meagher, Gummow and Lehane, certainly its most renowned feature, is its exposition of the ‘fusion fallacy’, which seeks to define the relationship between law and equity in a judicature world (that is, in a common law system in which, emulating the Judicature Act 1873 (UK), law and equity are...
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