‘A Turbid Admixture’: The Long Shadow of the Common Law Procedure Act 1854

Abstract

The innovations of the pre-judicature period continue to haunt us. In the 1850s, in response to agitation for procedural fusion, reforms were introduced to allow for the grafting of equitable remedies onto common law courts and vice versa. This well-intentioned blending of jurisdiction spawned two novel remedies that are with us to this day: equitable damages and the lesser known 'common law injunction'. This article explores the Australian jurisprudence that has coalesced around the common law injunction and surveys the difficult theoretical problems that come to the fore when attempting to define its nature and scope. * BEc, LLB (Hons) (Syd); Senior Associate, Banki Haddock Fiora. The author thanks the three anonymous reviewers for their comments.

Keywords: common law injunction, Common Law Procedure Act 1854, common law, equity, injunctions, auxiliary jurisdiction, equitable injunction, equitable auxiliary injunction, equitable damages, fusion, Judicature Acts, Lord Cairns Act, David Dudley Field, statutory injunction, remedies, inadequacy of damages, irreparable injury, Smethurst