The Persuasiveness of Modern English Decisions on Australian Equity (Part II)

Abstract

Legal history is important for the proper understanding of legal doctrines, particularly equitable doctrines. A correct appreciation of history of equitable doctrines is important to the elaboration of equitable doctrines. However, it is imperative that the proper recognition of legal history does not stifle the development of equitable doctrines. Australian law is based on English law, so it is appropriate to refer old English authorities. But there has been a habit to defer to modern English authorities to develop Australian equitable doctrines. The first part of this article demonstrates that this is inappropriate as there has been a divergence in a large number of specific equitable doctrines between England and Australia. Moreover this divergence frequently involves fundamental considerations. Although real, the separation is complex and often subtle. Further, the importance of legal history must be acknowledged. Finally, adding to the complexity in properly understanding this separation, in both jurisdictions there are supporters for the position that frequently does not prevail in that country. The second part argues that this divergence is primarily the result of recent history and because England had its own considerations which were not shared to the same extent elsewhere. Finally, this article will argue that there are, at least, four important consequences of this diminishing importance of English authority to Australian equity.

Keywords: Equity, Equitable Doctrines, Equitable Remedies, English authority, judicial reasoning

JEL Classification: K11