Thursday, October 28, 2010

Research Paper: The Christian Conscience of Equity

Research Paper: The Christian Conscience of Equity
Suzannah Rowntree
(If you have no prior legal knowledge you may find this definition of equity helpful.)

How do we ensure the spirit of the law is carried out, rather than the letter only?

This is the great question of equity, and the nature and purpose of equity has preoccupied great and small minds alike from the earliest days of western civilisation to the present, with each period leaving its mark on the question without quite resolving it.

The problem may seem dry, not worth getting excited about. Yet as I researched the foundations of modern equity, I found a passionate centuries-long debate between idealists and pragmatists, theologians and philosophers, skeptics and visionaries. From noted thinkers like Cicero, John Calvin, or Charles Darwin to the ordinary people who heard and espoused their views, equity was a recurring cultural preoccupation. Though public imagination no longer runs hot on the subject, the questions remain. What is equity? How should law and equity work together? And why even care that equity should be done?

A reason for this debate may be the difficulty in deciding how equity is to be applied in different circumstances. Because it was so hard to predict how equity would be applied in a given case, equity has been called a 'rogue', (1) a 'wanderer', (2) or likened to a fog.(3) Upon examining the nature of equity, the reason becomes apparent. Equity prevents things being done in the letter of the law but against its spirit to such a degree as to grieve the conscience—it is activated when the conscience is grieved.(4) Consciences are subjective: so, to a degree, is equity. In addition, equity corrects rigidity in the common law,(5) being by nature adaptable to the circumstances of particular cases, and therefore impossible to predict.

Accordingly, much of the debate over equity has centred on its uncertainty, and on conscience as the arbiter of equity. Selden in a famous aphorism blamed equity's uncertainty on the uncertainty of the Lord Chancellor's conscience, 'and as yt is larger or narrower, soe is equity.'(6) Yet this, apparently the single most influential thing ever said about equity, was said sometime in the early seventeenth century!(7) Three hundred years have passed since: is equity really facing the same challenges today? Is equity still so influenced by individual consciences?

Equity and conscience—a brief history

The subject, and the secularisation of modern society, demands that we take another look at the theological concept of 'conscience'. By defining 'conscience' historically and currently we can not only understand equity, but also isolate some of the problems with equitable uncertainty and see our way to a solution.

The centuries-long dialogue on conscience and its place in the law of equity begins with the religious transformation of Europe after the fall of the Roman empire. St Augustine recorded an early, if curt opinion that God's equity is 'so secret that it is beyond the reach of all human understanding.'(8) This opinion is notable for two reasons. The first is that Augustine placed the fount of equity where it remained for most of the next millenium, with God; the second is that he did not expect human equity to duplicate or even approach divine equity. Augustine's skepticism did not spread to later jurists. An early Christian work on politics and law, John of Salisbury's Policraticus, is much more optimistic. John's equity appears as the muse or guiding light of law and is, according to John, the real thing of which the law is only a physical form. By 'equity' he meant that will of God which St Augustine considered so ineffable and in Book VIII of the Policraticus he sings the praises of this theological equity:
[T]he law is a gift of God, the likeness of equity, the norm of justice, the image of the divine will, the custodian of security, the unity and confirmation of a people, the standard of duties, the excluder and exterminator of vices, and the punishment of violence and all injuries. It is attacked either by violence or by deceit and, one might say, it is either ravaged by the savagery of the lion or overthrown by the snares of the serpent. In whatever manner this happens, the grace of God is plainly being assailed and God is in a certain fashion being challenged to a battle.(9)
John of Salisbury explained that God's will is made clear to the righteous ruler by the enlightenment of the Holy Spirit. Ultimately, however, equity developed not with the Holy Spirit but with the conscience as its guide: Thomas Aquinas, the influential medieval philosopher, characterised divine law as natural law, accessible through human reason and conscience.(10) Yet despite the shift in emphasis from God to man, the conscience in question was to remain grounded on the law of God.(11)

By the Reformation in sixteenth-century England, equity had developed from these ideals into the more practical form we recognise today. Equity as a jurisprudence was first sundered from the common law in the reign of Richard II.(12) It was the Reformation, however, that not only confirmed the crystallisation of equity into a discrete jurisprudence with its own body of precedents, but also revived the early medieval preoccupation with the religious aspects of equity. King James's Authorised Version of the Bible made liberal use of the word 'equity' and the concept became a hot topic among the trendy Reformed.(13) The theologian John Calvin saw equity as the practice of the golden rule to do as you would be done by, and in The Earl of Oxford's Case Lord Ellesmere approved this view.(14) An influential Puritan, William Perkins, called Christian equity 'a rare and excellent virtue, whereby men use a true mean and equall moderation in all their affairs and dealings with men.' Unlike the medieval scholars, Perkins classified equity into two interactive branches: the personal, which 'is Christianity', and the public, which is 'the ministry of equity'.(15) If personal equity is Christianity in practice then the public ministry of equity requires the Chancellor to exercise those same Christian ideals in the public sector.

Judges of the period shared Perkins's views. Lord Cowper remarked that 'equity is no part of the law, but a moral virtue',(16) while Lord Nottingham later confirmed and developed the theme, saying:
[T]he rule must always hold that it is not fit for a court of equity to do everything that is fit to be done: for there is a twofold conscience, viz. Conscientia politica et civilis et conscientia naturalis et interna. Many things are against natural and inward conscience which cannot be reformed by the regular and political administration of equity. For if equity be tied to no rule all other laws are dissolved and everything becomes arbitrary.(17)
Here Nottingham connects the dots of equity, conscience, and certainty. Conscience not only informs equity, but constitutes the one rule by which equity must always abide. So if equity goes beyond flexibility into arbitrariness, the problem lies in the conscience. The problem is that equity relies on the operation of a conscience. It is not to be the judge's personal conscience, Nottingham proposes, but the objective civil conscience, which is to inform equity and thus provide stability and certainty for those who apply to Chancery.(18)

In an effort to stabilise equity, the conscience of equity was further distanced from private virtue as the seventeenth century progressed. Lord Nottingham's declaration as quoted above and in Cook v Fountain(19) became good authority that the political and civil conscience of the judge was to be kept distinct from the individual's arbitrary internal conscience. Around the same time, equity began to pay heed to precedent.(20)

This was the historical context into which Selden dropped his comment, sometime in the early seventeenth century just before equity began the move to precedent. The problem was that consciences varied from one chancellor to another, even in a culture which like none other must have required the Chancellor to behave with the most transparent rectitude.(21)

As religious fervour waned, so did interest in the conscience of equity. When William Blackstone wrote his commentary on the laws of England in the early eighteenth century equity had become precedent-bound and firm enough that it had not just a spirit to enforce but also a letter to interpret.(22) Blackstone made the interesting point that both common law and equity were required to administer the spirit, not the letter of the law: equity applied to equity, if you will.(23)

In the early nineteenth century equity became definitely hard and the grounds for equitable relief were closed.(24) This stroke to equity was largely due to the then Chancellor, Lord Eldon, who said, 'Nothing would inflict on me greater pain in quitting this place, than the recollection that I had done anything to justify the reproach that the equity of this court varies like the Chancellor's foot.'(25) In the two hundred years since Selden's comment, equity had bound itself and thrown away the key.

The Judicature Acts

Relief was sixty years in the coming. Relief it was from a rigid system that had ceased to be beneficial: Dickens attacked it mercilessly in Bleak House(26) and the judicature commission was harsh in its assessment: 'The evils of this double system of judicature […] have long been known and acknowledged.'(27) Even so, the debate over the merging of common-law and equitable judicature(28) was prolonged and equity again gripped the public imagination. While Joseph Parkes criticised the hardening of equity,(29) WM Best lamented the fact that equity had ever been sundered from the common law, declaring that the courts of equity and common law administered 'substantially the same system.'(30) Another commentator, GW Hemming, declared that 'the hard, technical doctrines of the Law must be merged and swallowed up in the higher, broader, and more refined principles of Equity.'(31)

The debate over the Judicature Acts was characterised by those who wished Equity to remain separate, and hard, and those who like Hemming wished to see Equity return to the fluidity of the days when it was an overriding ideal rather than an impersonal system.(32) The Judicature reforms, however, changed only the procedural aspects of equity, not its substantive aspects.(33)

Into this confusion a new factor crept when Charles Darwin published The Origin of Species. Immediately the English-speaking world grasped the ramifications of his hypothesis. Frances Power Cobb, an early women's rights activist, was one of many disturbed by Darwin's view of conscience as arising out of social conditioning: this reduced conscience to “an earth-born instinct”, which could have no authority beyond that of the society which fostered it.(34)

The Victorians faced a dilemma: on one hand, the necessity of conscience in ensuring equity could remain flexible; on the other, a new morality with no divine authority to lean on. The Judicature Acts passed anyway. Equity was in too bad a state to be left alone.

By the time of the Judicature Acts, both equity and common law courts operated in substantially the same way, with each judge bound by precedent but required to administer the spirit of the law.(35) Bound by precedent, equity no longer had the freedom to make the kind of decision that drew Selden's notice and it is safe to assume that the general duty to administer the equitable spirit of the law—a duty which the common law was always under, even before the Judicature Acts—was taken simply to mean the conscientious application of precedent. It is important to realise that though the Judicature Acts restored a little of equity's flexibility, their main effect was to render equity more accessible; they did not reverse the process whereby equity became bound by precedent.(36)

The Judicature Acts' main effect was to make equity available from every court. The common-law courts could no longer refuse to recognise trusts, wrongs arising from unconscionable conduct, or undue influence; instead, they were to apply equitable precedent, where applicable, in preference to the common law. From the beginning, the new judicature system worked well: equity and common-law had been subsisting together with very little conflict for centuries, and in the new judicature the standing arrangements continued with equity characterised as an appendix to the law, not an alternative to it.(37)

Thus, though equity still remained its own body of law, it once more became a practical tool for righting rigidity in the law. Before the reforms, if unconscionable rigidity was found in the law, one must dare the court of Chancery to have it remedied. Now every judge could apply the laws of equity. The closed categories of equitable appeal and reliance on precedent inhibited the development of new causes of equitable action, but at least equity was now accessible to all.

Conscience in contemporary equity

As we have seen, it was Lord Nottingham, 'the father of systematic equity',(38) who introduced the theory of the personal and civil conscience into equity. In Nottingham's model, matters of the conscience which had no external effect were not to be rearranged by equity. This was more of a guideline than a rule: for example, in a series of constructive trust cases,(39) the purchasers of trust properties with notice of the plaintiff's prior claim were held, by their knowledge, to have acted unconscionably; while purchasers who had escaped knowledge had not. The 'notice' component of their activity was purely internal, but on this they won or lost their case.

Another characteristic of Nottingham's civil conscience is that it is not overtly religious. He said that 'In suits in equity the Lord Chancellor must order his conscience after the rules and grounds of the laws of this realm.' Nottingham's conscience model can and does work equally well in the modern secular society, where 'conscience' has become the secular idea of 'sincere or “authentic” moral sentiment or intuition' rather than an intellectual grip on divine or natural law.(40)

It is to Lord Nottingham that the modern theories of equitable conscience owe their greatest debt. The modern equitable conscience is as hard to define as ever, but appears to contain the following elements:

1. The conscience is the secular humanistic concept of intuitive morality;(41)
2. Alternatively, the conscience has been formed by outer societal forces and derives its authority from that of society (Darwin's theory);(42)
3. Equity looks to the conscience of the judge to provide a remedy for the plaintiff against the defendant's bad conscience;(43)
4. Conscience is what equity does: good conscience is satisfied simply by the application of the body of equitable law (the positivist theory).(44)

In his article 'Equity and Conscience' Mike MacNair concludes that the modern conscience is not substantive but procedural: the body of equitable rules and precedents has been formed, and in order to act in good conscience, all the judge needs to do is apply that law.(45) In this understanding, both religious and secular notions of substantive conscience, whether we owe them to St Thomas Aquinas or Charles Darwin, have become irrelevant as long as we accept the current body of equitable law. This approach is not new. The ancient Roman concept of equity only looked to the spirit of the law and never inquired into what the law ought to be: it enforced the law as it was, rather than rehabilitating the law to reflect a perfect divine law, as Christian equity sought to do.(46) The modern positivist view of conscience is thus an unusual beast: secular, positivist procedure applied to a body of law developed by devout believers in search of an ideal divine law.

Although this may seem a strange way of doing things, the fact remains that the secular conscience has, at present, no good basis for its own moral code; no ideal to point to and say, 'This is how things should be', and thus, no solution but the positivist one, which is simply to enforce that which is in place. The late Peter Birks, a prominent scholar of equity and an atheist, attacked the notion of the secular intuitive conscience strongly, saying--
'Conscience, undisciplined by the apparatus of reason, is an alias for the will of those in power. They have only to believe that what they are doing is right, and conscience will justify them, at the same time blinding them to the possibility of error. […] If your intuition tells you that you are right, you will not be able to see that you may be wrong or, in a plural society, that others may think you wrong.' (47)
If the intuitive conscience is unworkable, then all we have is Darwin's positivist theory that conscience is conditioned by a society, exists under the authority of the society, and reinforces that society's acknowledged values. Having nothing with which to replace them, modern equity has been forced to rely on maxims and precedents formulated by reference to divine law.

Certainty in contemporary equity

As we have seen, Selden's comment was not the last word on equity, though it has unfortunately been treated with that level of reverence. Rightly or wrongly, within a century of Selden's making that remark Chancery had committed itself to precedent and equity remains, to the present, as strongly bound by precedent as it was in Lord Eldon's day.(48)

This is not to say that equity no longer has room for discretion. On the contrary: judges have as much discretion as they have always had to ensure that the maxims of equity are carried out and to create new precedent. Writing in 1994, Sir Anthony Mason said,
The ecclesiastical natural law foundations of equity, its concern with standards of conscience, fairness, equality and its protection of relationships of trust and confidence, as well as its discretionary approach to the grant of relief, stand in marked contrast to the more rigid formulae applied by the common law and equip it better to meet the needs of the type of liberal democratic society which has evolved in the twentieth century. (49)
And, to lend weight to Sir Anthony's comment, there is no doubt that some new equitable doctrines have emerged since the Judicature reforms,(50) developing in the same way as common law.
But the exercising of equitable discretion has become bound to precedent, so that it may only be exercised in certain situations: equity is no longer the exercise of conscience, but of conscientious principles. See, for example, the recent UK Court of Appeal decision of Jaggard v Sawyer.(51) In this case, s 50 of the Supreme Court Act 1981 [UK] allowed the court wide discretionary power to grant injunctions, but instead of making use of this power the Court felt bound to follow narrower equitable precedent. Fortier says that “equity serves different masters as circumstances afford”(52)--but with the greatest respect, a necessary corollary is that precedent, as binding and settled as that of common law, is a circumstance never to be overlooked. With this in mind, it becomes hard to see how equity can still be called a 'wanderer'.(53)

Today, a plaintiff approaching equity may be as reasonably sure of the outcome as he might be if his case involved contracts or torts rather than trusts or fiduciaries. The question that should arise in the equity student's mind becomes rather whether equity has ossified beyond usefulness. The question should arise—but it should not puzzle him long. The equitable maxims: 'Equity only assists those who come with clean hands', 'Equity looks to intent, not form', 'Equity deems that to be done which ought to be done'(54)--these and the rest prevent equity from becoming entirely rigid, however rigidly they may themselves be applied.

This does not mean that there have not been recent attempts to loosen equity's bonds a little. We have seen this occurring in the recent discussions of fusion in Canada and Australia particularly. Fusion is the blurring of the divide between equity and common law: the slackening of the principles of the one in response to the principles of the other and most practically the application of equitable remedies to the common law, and common-law remedies to equity.(55) For example, the decision in Walsh v Lonsdale(56) that an agreement to lease may be enforced like a lease, or the granting of an equitable injunction to restrain trespass.(57) At first glance, this seems to be a happy return to older ideas of equity as the conscientious higher principle underlying all law, and a surprising movement away from centuries' worth of established precedent.(58)

An interesting exchange took place recently between Justice Kirby of the High Court and Justice Keane of the Queensland Court of Appeal. In the 2008 WA Lee Lecture in Equity,(59) Justice Kirby set out to deny the idea that the doctrines of equity in modern Australia are closed and fixed. The 2009 WA Lee Lecture from Justice Keane(60) challenged Kirby's assumptions that the Canadian model of equitable remedies applied to common law wrongs and vice versa was the most natural fulfilment of equity's purpose.

Kirby draws our attention to the discussion of fusion, historically regarded as a fallacy(61) in Australia but in the United Kingdom as a happy ending to the combined-judicature story by such luminaries as Lord Diplock, who claimed that equity and common law were almost as indistinguishable as mixed waters in a river(62) and Lord Denning, who found it 'not helpful' to approach equity and common law as distinct entities(63) and made sundry changes to equity—notably, the Mareva injunction.(64) The strongest objections to this fusion of equity and common law have come from Australia, where cases such as Harris v Digital Pulse Pty Ltd,(65) Yerkey v Jones(66) and Garcia v National Australia Bank Ltd,(67) Breen v Williams,(68) and Farah Constructions Pty Ltd v Say-Dee Constructions Pty Ltd(69) affirm, if with a strongly-dissenting minority, the undesirability of fusion, while countries such as New Zealand and Canada have meekly followed in the English lead.(70)

Justice Kirby is one of a new generation of dissenters to the current consensus. In Pilmer v Duke Group Ltd, he pointed out that, for instance, the category of fiduciaries is not closed.(71) In Burke v LFOT, he pointed out that the categories of coordinate liability are not closed(72) and in ACCC v Berbatis and Garcia v National Australia Bank Ltd he reiterated his point that equitable principles are in a constant state of evolution.(73) Quite reasonably, of course: so is the common law, and to insist that equity not change at all would be to make it more rigid than the common law: a strange result, yet one which commentators such as Meagher, Gummow, and Lehane seem to approve! So far so good; but Kirby went further, criticising the decision in Harris for not according exemplary damages for breach of fiduciary duty and the decision in Farah for insisting on the requirement of notice before recipient liability could be activated.(74)

Kirby's views as expressed in the 2008 WA Lee Lecture drew great acclaim,(75) suggesting a change in the wind. But the following year, Justice Keane's lecture raised some well-founded criticisms of Kirby's views. Keane argued that a more flexible fusion of equity with the common law, however desirable, simply does not honour the fundamental principles of equity and expressed his concern that equity could not continue to be done if its practice was divorced from its principles.

The principles Keane sees as most challenged by a fusion of equity with the common law are derived from equity's ecclesiastical roots. They are:
[E]quity operates by way of exception to the legal order of the realm, equity is more concerned to restrain the exercise of rights than to promote them, and the notion of "conscience", which is of central importance to its mission, is not about the state of mind of the defendant.(76)
That the conscience of equity is the judge's conscience is clearly presumed in Selden's aphorism and Nottingham's theory of the civil conscience.(77) That equity operates as an exception, or appendix, to the common law is a well-known principle.(78) That equity restrains rights rather than enforcing them is a little harder to find explicit authority for, but it is latent in the maxim that equity seeks equality and that equity is not punitive; equity, argues Keane, has historically been the virtue of forbearance, not enforcement.(79) The plaintiff at equity must do equity; he must be willing to return the defendant to his original position.(80) Note, for example, Deane J's comment in The Commonwealth v Verwayen(81) that a plaintiff cannot seek a remedy out of proportion to the detriment that would befall him should his case fail, or Kirby J's comment in Maguire v Makaronis(82) that 'the purpose of equity's relief is not punishment.' In response to Kirby's criticism of the decision in Harris,(83) Keane argues that in keeping with the history of equity punitive common-law remedies such as exemplary damages can never be applied at equity.(84)

Farah is another case in which the High Court rejected a fusionist approach.(85) The NSW Court of Appeal had held that recipient liability under a trust can be activated without knowledge by the buyer, an idea having more to do with the law of unjust enrichment than equity. It is against equity's conscience, Keane argues in support of the High Court's decision to overturn the Court of Appeal decision, to hold a bona fide third party liable as a recipient, especially when the plaintiff has acted carelessly in disposing of his property.(86)

If Keane's observations regarding the nature of equity are correct, then fusion of the kind rejected in Farah and Harris does indeed pose a serious threat to equity as a functional and even-handed remedy. Our increasingly litigious society, jealous of rights and willing to take as much damages as possible, may not be the best atmosphere for a slackening of equitable principles. Yet I am not convinced that equity in its purest form is so hostile to the idea of enforcement of rights. Aristotle defined epikeia as the virtue of refraining from insisting on one's full legal rights(87)—but at no point in our equitable history has there been a working model whereby the defendant himself dispenses equity through gracious waiver of his own rights.(88) Instead, the defendant seeks to defend his rights before a judge, and the judge makes a decision and imposes it upon the defendant.

In practice, our administration of equity owes far more to the early medieval religious ideal of an appeal to divine law. Then, equity was delivered from the heavens, as it were, through the mouthpiece of a human judge; and to do some unconscionable deed was, in John of Salisbury's words, to 'challenge God to a battle'.(89) In the early medieval model, upon which modern equity is more closely based than upon Aristotle, equity loses some of its peacefulness and becomes a way of enforcing rights. Indeed equity may be used to enforce rights even today—for example, to seek specific performance of a contract for land.

Conclusion

This could hardly be called an in-depth analysis of equity's history and current state with regard to conscience and certainty. But even from this brief survey, it is obvious that Selden's criticism of equity no longer applies—if, indeed, it ever did. The problem troubling us today is that equity is hard enough to profit from some flexibility. In fact, if the two recent WA Lee lectures are to be believed, the question is not whether equity should wander, but how far and in what direction. While Kirby argues for greater integration with the common law, with common law remedies available in equity, Keane advocates a more cautious approach, mindful of equity's non-punitive nature. Such is the long history of equity that both sides can find historical support for their arguments.

Yet even if Kirby's approach seems more fundamental to the nature of equity, Birks's caution should not be ignored. Equity needs a moral basis upon which to function. At present it has an ecclesiastical moral basis, and the modern secular conscience is too undeveloped to clean the slate and start again.(90)

How will equity develop in the future? Only time will tell. It is likely that future generations of judges will espouse Justice Kirby's views, but it is to be hoped that they will not ignore the profound and pertinent ethical questions surrounding equity and the doctrine of conscience.

Footnotes

1. 'Table Talk: Being the Discourses of John Selden, Esq … Relating Especially to Religion and State' (1689) in John Selden, Table Talk of John Selden, SW Singer (ed), 1977.
2. Mark Fortier, The Culture Of Equity In Early Modern England (2005) Ashgate, 1-2.
3.Charles Dickens, Bleak House (1853). 'Fog everywhere ... and hard ... at the very heart of the fog, sits the Lord High Chancellor in his High Court of Chancery.'
4. See for example PA Keane, The Conscience of Equity (2009), a paper presented at the 2009 W A Lee Lecture in Equity on Monday, 2 November 2009 at 7. 'The plaintiff had to be able to stake a claim on the conscience of equity; and merely having one's legal rights infringed would not do.'
5. William Blackstone, Commentaries (1765) Vol III, at 429.
6. Selden, above n 1.
7. Selden was born in 1584 and died in 1654.
8. Augustine, Responses to Various Questions from Simplicianus [Ad Simplicianum de Diversis Quaestiones] Vol I, 2, 6.
9. John of Salisbury, Policraticus: Of the frivolities of courtiers and the footprints of philosophers (1990) CJ Nederman (ed), Book VIII, 17.
10. Guenther Horst Haas, The Concept of Equity in Calvin's Ethics (1997) 30.
11. 'St Germain's doctor', adapted from TFT Plucknett and JL Barton (eds), St Germain's Doctor and Student (1974), 97, Dialogue 1, Chapter 16, at 101.
12. Challoner William Chute, Equity under the Judicature Act (1874), 3.
13. Richard II reigned 1377-1399.
14. See for example, Fortier, above n 2, 34.
15. Ibid 5.
16. Ibid 43.
17. Lord Dudley v Lady Dudley (1705) Prec Ch 241, 244.
18. Heneage Finch, Lord Nottingham, Prolegomena (1965) DEC Yale (ed), 194.
19. See, for instance. Cook v Fountain (1676), 1, 371, in which Nottingham declared that 'With such a conscience which is only naturalis et interna this Court hath nothing to do; the conscience by which I am to proceed is merely civilis et politica, and tied to certain measures.'
20. Ibid.
21. Dennis R Klinck, 'Lord Nottingham and the Conscience of Equity' (2006) Vol 67 (1) Journal of the History of Ideas 123, 144.Ibid 123. The period is known informally in certain circles as the 'Age of Conscience' by reason of the great importance attached to personal piety among other conscience-related issues.
22. Blackstone, above n 5.
23. Ibid.
24. See, for example, Samantha Hepburn, Principles of Equity and Trusts (4th ed, 2009) 28; or Classic Encyclopedia, based on the 11th edition of the Encyclopedia Britannica (pub. 1911), Equity (1911) > at 28 April 2010, which says that 'The point at which the introduction of new principles of equity finally stopped is fixed by Sir Henry Maine in the chancellorship of Lord Eldon, who held that the doctrines of the court ought to be as well settled and made as uniform almost as those of the common law. From that time certainly equity, like common law, has professed to take its principles wholly from recorded decisions and statute law.'
25. Gee v Pritchard (1818) 2 Swans 402, 414.
26. Dickens, above n 3.
27. Classic Encyclopedia, above n 24.
28. This debate culminated in the passage of the Judicature Act in 1873; see Hepburn, above n 24.
29. Joseph Parkes, in A History of the Court of Chancery (1828) 459, said 'Chancery is no longer a Court of Equity, but of Cases'.
30. WM Best, 'The Common Law of England; with an Examination of Some False Principles of Law Reform,' Papers Read Before the Judicial Society 1855-1858 (1858) 399-434; 400
31. GW Hemming, Thoughts on the Proposed Fusion of Common Law and Equity (1873), 18.
32. Simon Petch, 'Law, Equity, and Conscience in Victorian England' (1997) Vol 25(1), Victorian Literature and Culture 123.
33. See, for example, the 1911 Encyclopedia Britannica, above n 24. The Judicature reforms made equity available from all tribunals but did not loosen equity from precedent or rework the doctrine of separation of public and private consciences.
34. Petch, above n 32, 131-132.
35. Blackstone, above n 5.
36. Classic Encyclopedia, above n 24.
37. FW Maitland, Equity: A course of Lectures (1910) 17, 18.
38. Klinck, above n 20, 124.
39. Yale, DEC ed., Lord Nottingham's Chancery Cases (1961) vol 1 and 2. See specifically Salisbury v Bagott, Botham v Townsend, Green v Gardner, and Jennings v Gorges.
40. Klinck, above n 20, 147 argues that personal religious and civil conscience must be related to each other and inform each other. The civil conscience today is still informed by the personal conscience, but it seems obvious that the contemporary personal conscience is more secular than religious.
41. Ibid. See also below for Peter Birks's views on the secular intuitive conscience.
42. Petch, above n 32.
43. Mike MacNair, 'Equity and Conscience' (2007) 27(4) Oxford Journal of Legal Studies 659; 660.
44. Ibid 663.
45. Ibid.
46. Haas, above n 10, 24.
47. Peter Birks, 'Equity, Conscience, and Unjust Enrichment' (1999), 23 Melbourne University Law Review 1.
48. Classic Encyclopedia, above n 24. 'From that time [Lord Eldon's chancellorship] certainly equity, like common law, has professed to take its principles wholly from recorded decisions and statute law.'
49. A Mason, “The Place of Equity and Equitable Remedies in the Contemporary Common Law World” (1994) 110 Law Quarterly Review 238; 239.
50. For example, estoppel by conduct, the Australian development of which Lord Denning praised highly. See Thompson v Palmer (1933) 49 CLR 501; Grundt v Great Boulder Proprietary Gold Mines Ltd (1937) 59 CLR 641. See A M Gleeson, 'Australia’s contribution to the common law' (2008) 82 Australian Law Journal 247; 250.
51. (1995) 1 WLR 269.
52. Fortier, above n 2.
53. In fact I am not persuaded that Fortier referred to the present day when he called equity a 'wanderer', since in the very next sentence he goes on to remark, still using the present tense, 'It [equity] is, in early modern England, on the loose.'
54. Hepburn, above n 24, 13-19.
55. Michael Kirby, Equity's Australian Isolationism (2008), a paper presented at the 2008 W A Lee Lecture in Equity on 19 November 2008 at 4.
56. (1882) 21 Ch D 9.
57. Kirby, above n 55, 5.
58. For example, see Justice Kirby's remark in Pilmer v Duke Group Ltd (In Liq) (2001) 207 CLR 165 at 231 [173] that 'the substantive rules of equity have retained their identity as a part of a separate and coherent body of principles'.
59. Kirby, above n 55.
60. Keane, above n 4.
61. It is helpful to adopt the definition of fusion fallacy in RD Meagher, WMC Gummow and M Leeming, Meagher, Gummow & Lehane’s Equity: Doctrines and Remedies (4th ed, 2002) 57 [2-135]: '[The fusion fallacy] involves the conclusion that the new system was not devised to administer law and equity concurrently but to “fuse” them into a new body of principles comprising rules neither of law nor equity but of some new jurisprudence.'
62. United Scientific Holdings Ltd v Burnley Borough Council (1978) AC 904 at 925.
63. Central London Property Trust Ltd v High Trees House Ltd (1956) 1 All ER 256 at 259.
64. Mareva Compania Naviera SA v International Bulk Carriers SA (1980) 1 All ER 213. See the discussion of Lord Denning's other developments of the law of equity in Kirby, above n 55, 32-34.
65. (2003) 56 NSWLR 298.
66. (1939) 6 CLR 649.
67. (1998) 194 CLR 395.
68. (1996) 186 CLR 71.
69. (2007) 230 CLR 89.
70. See the discussion of the English approach to fusion generally in Kirby, above n 55, and the mention of New Zealand at p 8.
71. Pilmer v Duke Group Limited (In Liquidation) (2001) 207 CLR 165 at 217 [136].
72. Burke v LFOT Pty Ltd (2002) 209 CLR 282 at 326 [121].
73. ACCC v Berbatis Holdings Pty Ltd (2003) 214 CLR 51 at 98 [116].
74. Kirby, above n 55.
75. Keane, above n 4, 1.
76. Ibid, 3.
77. Also see MacNair, above n 37.
78. See Maitland, above n 43.
79. Keane, above n 4, 7-8.
80. Mayfair Trading Co Pty Ltd v Dreyer (1958) 101 CLR 428; 454.
81. (1990) 170 CLR 394 at 441.
82. (1997) 188 CLR 449 at 496.
83. Kirby, above n 55, 8-10.
84. Keane, above n 4, 22-24.
85. Farah Constructions Pty Ltd v Say-Dee Constructions Pty Ltd (2007) 230 CLR 89.
86. Keane, above n 4, 24-28.
87. Hepburn, above n 24, 3-5.
88. Except as a function of the personal conscience in Perkins's theory of the practice of Christianity, above n 15. The very definition of the equitable conscience as distinct from the personal conscience means that in practice, those who deal out equity on their own initiative will never come before the courts and the courts will never have to adjudicate a defendant who exercises forbearance. If so, the case would have settled long ago.
89. Selden, above n 9.
90. See Birks, above n 47.

1 comment:

Anonymous said...

Nice work Suzzannah. My prediction is that equity will follow the humanist UN Charter of Human Rights/ Darwinist direction as the general conscience of "society" continues to lean that way, it's not rocket-science. Equity in the former-USSR would be an interesting study, and the *sham* basis for it's jurisprudence, keeping in mind that if ever there was a basis in Divine Law under the Tsarist system (which I range from unsure to doubtful about), it was wiped out entirely between 1917-1923. But regarding our situation it will be a race to the bottom I think as to whether in coming decades society becomes ungovernable before equity reaches a trough in the "soviet" style. (That is my prognostication, but in these times the Church will become the light as much as it ever was in the earliest days of the faith in Christ, that Yeshua speaks of, because the Divine Law will be in the hearts of the believers, and written on their minds.)

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