Fusion Fallacy

Powerful Essays
Equity Essay

1. Introduction
Two jurisdictions of law exist in Australia: equity and common law. ‘Equity is ‘the body of law developed by the Court of Chancery in England before 1873. Its justification was that it corrected, supplemented and amended the common law. It softened and modified many of the injustices at common law, and provided remedies where, at law, they were either inadequate or non-existent.’[1] Common law is ‘the unwritten law derived from the traditional law of England as developed by judicial precedence, interpretation, expansion and modification.’[2] The complete fusion of these jurisdictions has not yet occurred. The two “streams” of jurisdiction have merged in some areas as the law has developed, but are technically still separate. This essay will prove this claim using the equitable doctrines of estoppel and fiduciary obligations and will then discuss remedies.

2. History of Equity
Prior to the enactment of the Judicature Act 1873, the administration of common law and equity was completely separated. The principles of equity developed in the Court of the Chancery where a ‘petitioner could seek relief from the harsh or unjust operation of the law’.[3] The Chancery Court was a court of conscience charged with ‘an extraordinary power to prevent the injustices and supply the deficiencies that were perceived in the operation of the Common Law’.[4] The disadvantage of this system was that courts of law refused to recognise equitable rights or interests. The Judicature Act 1873 was enacted in order to merge the administration of law and equity. The effect of the Act was the abolition of the old courts and the creation of a new High Court of Justice that combined the jurisdiction of the old courts.[5] The judicature system was implemented in WA by enacting in the Supreme Court Act 1880 (WA) provisions equivalent to the Act. These provisions are now located in sections 16(1), 24 and 25 of the Supreme Court Act 1935 (WA).

3. What is the

You May Also Find These Documents Helpful

  • Good Essays

    In Australia the Adversary System is used as a way of ensuring justice is achieved fairly, equally and easily accessed. This system was inherited from Britain and concerns two contrasting parties presenting their evidence before a neutral third party. This system of trial is successful in accomplishing several aspects of the legal system, such as protecting individual’s rights, meeting society’s needs and applying the rule of law. Conversely, the adversary system is also ineffective in regards to resource efficiency, accessibility and responsiveness. Nonetheless some of these aspects also cross over between strengths and limitations of achieving justice such as accessibility and protection of individual’s rights.…

    • 1260 Words
    • 6 Pages
    Good Essays
  • Good Essays

    Court Report

    • 1537 Words
    • 7 Pages

    Equal access to justice is critical if the Rule of Law is to have any substantive value in the Australian judicial system. Justice institutions must enables citizens to protect their rights against infringements by other people or groups…

    • 1537 Words
    • 7 Pages
    Good Essays
  • Good Essays

    The Australian legal system doesn't deliver justice equally for all Australians. In this essay, the issues of the relationship between laws to ethics, morals and values, access to the legal system and issues of fairness in the law will be discussed. There are several relevant examples that have influenced the viewpoint of this essay. The case of Dame Elizabeth Butler-Sloss, the case of Amy vs Adam (www.lawcouncil.asn.au) and the case of Brendan Dassey.…

    • 862 Words
    • 4 Pages
    Good Essays
  • Best Essays

    [ 39 ]. Tony Blackshield and George Williams, Australian Constitutional Law: Law and Theory (The Federation Press, 5th ed: 2010), 9.…

    • 4001 Words
    • 17 Pages
    Best Essays
  • Good Essays

    As times change, laws are forced to undergo change. This process is known as law reform and is done to suit today’s contemporary society. Australia has undergone various changes to its laws to suit society; however the effectiveness of such changes can be questionable. The issues revolving around native title and sexual assaults are still developing today in order to balance an individual’s rights and values.…

    • 530 Words
    • 3 Pages
    Good Essays
  • Powerful Essays

    Work Choices Case

    • 4012 Words
    • 17 Pages

    5 Tony Blackshield and George Williams, Australian Constitutional Law and Theory: Commentary and Materials (4th ed, 2006) 296.…

    • 4012 Words
    • 17 Pages
    Powerful Essays
  • Powerful Essays

    The Australian constitution amongst its express rights also contains implied rights, and the adequacy of these implied rights is rather debatable, as it becomes increasingly apparent that the extraction of our individual rights and freedoms from constitutional implications is an inconsistent and primitive way of dealing with rights, as the essence is lost somewhere down the track, and we find our freedoms being questioned and removed at the hands of the judicial system.…

    • 2521 Words
    • 11 Pages
    Powerful Essays
  • Best Essays

    [ 14 ]. Tony Blackshield and George Williams, Australian Constitutional Law and Theory (Federation Press, Fifth ed, 2010)…

    • 2525 Words
    • 11 Pages
    Best Essays
  • Good Essays

    The legal system continuously endeavours and reforms to provide effective legislative remedies and modify existing legislation to reflect the changing nature of the Australian family structure. Family law has always been a colossal aspect of Australian society with many effective measures in place for family matters. Numerous values and their effectiveness have been debated through various features of family law, and these debates continue to the present day.…

    • 867 Words
    • 4 Pages
    Good Essays
  • Good Essays

    The procedural history of the case: the Supreme Court of South Australia, the High Court of Australia.…

    • 729 Words
    • 3 Pages
    Good Essays
  • Good Essays

    Australia 's Federal System is dynamic and the division of lawmaking power between the Commonwealth and State since 1901 has changed dramatically; Critically discuss, focussing on the major reasons for those changes.…

    • 1258 Words
    • 4 Pages
    Good Essays
  • Good Essays

    Legal Law Reform Essay

    • 927 Words
    • 4 Pages

    It could be argued that both the international and the Australian domestic legal systems have both been effective in responding to the need for law reform in modern society. There are four key conditions that have been identified as influencing the need for change to law. Both the parliament through statute law and the courts through common law have important roles to play in bringing about effective change.…

    • 927 Words
    • 4 Pages
    Good Essays
  • Best Essays

    Ever since its inception, one of the High Court’s primary duties has been to interpret the Australian Constitution. There have been many methodologies used to do so and many schools of thought (have been adopted by different judges) in approximately the last hundred years, but so far there still isn’t one consistent and cohesive way of interpretation . In this essay three types of options or methodologies that have been more commonly used by High Court judges will be discussed. They include: literalism/legalism, originalism and progressivism. Other options that may be considered by the High Court will also be examined in this paper.…

    • 1645 Words
    • 7 Pages
    Best Essays
  • Better Essays

    Common Law Dbq

    • 968 Words
    • 4 Pages

    Equity was developed over centuries but initially as a reaction to the “harshness of the common law or lack of developments in common law”. Furthermore, the common law system went unchanged for centuries and was a system were petitions were presented to the King for his grace in some complaint where “the usual royal answer was let him sue in common law”. In addition, complainants often complained about officials in respect of misconduct and unfairness.…

    • 968 Words
    • 4 Pages
    Better Essays
  • Powerful Essays

    Court Repot

    • 1336 Words
    • 6 Pages

    References: Chisholm, R. & Nettheim, G. (2007) Understanding law: An introduction to Australia‟s Legal System (7th Ed) Chatswood: Reed International Books Australia (LexisNexis).…

    • 1336 Words
    • 6 Pages
    Powerful Essays

Related Topics