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How overlapping doctrines and/or remedies at common law and equity continue to form an important part of the modern Australian legal system

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Overlapping Claims at Common Law and in Equity

Overlapping claims have played an important in the Australian court system. Despite the possibility of elimination, the claims form a perfect reflection of the historical truth that the Australian legal system has had several bodies which are administered by different courts. The extent of overlap in the Australian legal system is more than what the topic conveys. The overlapping claims are not only found at the common law but also in the jurisdictions, the rules and the remedies1.Historically, the overlapping claims have been witnessed between different bodies of law which are administered by different courts.

A good example can be the case when a member of a private company enters into a contract to sell his shares in a price that will be paid in a period of 6 months. However, before the cumulative amount of the sale of the shares is given to the purchase, the seller and the other party involved in the contract agrees to extent the period and vary the price. They do this orally2. They introduce a clause in the contract that the contract can only be varied by a deed. The purchaser of the shares then pays for them at an increased price but she agrees to only pay the difference under a protest after then the shares are transferred to her.

After a while, the purchaser of the shares realizes that the seller availed false information regarding the value of the company and does she wishes to rescind the contract. She has sufficient ground to justify that the seller was lying or acted recklessly when giving information about the value of the company.

Fraudulent misrepresentation and informal variation are common in commerce and commercial litigation. Analysing the legal position in the above mentioned cases can only be achieved through the consideration of the historical overlapping rights and remedies at a common law and in equity and the extent in which the differences between the three have been resolved.

In the above case, the legal position is clear.

  1. A deed can only be varied by another deed at a common law. In this case, the deed can be considered effective in equity now that the variation was supported by a valuable consideration.

  2. The entire clause introduced in the contract does not make any difference to the outcome because it is reflection of a policy choice.3 In policy choice, equity permits the parties through variable consideration to vary their bargains

Section 25(11) of the judicature act 1873 is used to resolve conflicting outcomes pertaining equity and the efficacy of the oral variation. According to this act, the equity position usually prevails. Recision is usually applied both at law and equity when dealing with a fraudulent misrepresentation. In the example above, he client was supposed to reinstate the position prior to the contract. This would have helped to achieve the restitution in intergroup which is considered a central consideration. Recision for fraudulent misrepresentation is however available at narrower circumstances when it comes to law and equity. This happens because of the restitution intergroup requirement and the limited options availed by the law pertaining the ability of adjusting or restoring the account to achieve the practical justice. In the case Erlanger v New Sombrero4 phosphate company. Lord Blackburn established there is no mechanism at common law which can be used to return the vendor to the legal ownership. Recession is only available in the case of equity.

In the case of Alati Vs Kruger, the authoritative statement of principles is explained in details in scenarios that involves contrasting the position at common law with that in equity. The principles states that equity has means that the common lacks when it comes ascertaining and providing adjustments that are necessary between the parties involved.

The principles from the Alati v Kruger case highlights the different forms in which rescission can be applied in the case of a common law or equity. It is good to note that there are different rules when it comes to law and equity. From the case mentioned earlier, the purchaser disaffirmation will be vindicated at common law at other rights of action will eventually rise. In the case of equity, the operative order of the court would prevail. The difference in regards to the application of rescission at common law and equity were worked out during the judicature legislation5. The legislation was made in Haldane speech in reference to Nocton and Lord Ashburton case.

The case above addressed the conflict that exists between the different approaches at law and in equity which were extensively resolved by the application of the judicature legislation. The overlap between rescission at law and in equity however continues up to this day6. There has been a continues debate between the lawyers with the biggest question being the possibility of resolving the overlaps or leaving them as alternatives. There have been divergent views in regards to that and also about the effect of the judicature legislation. The most important thing to consider is the difference that exists between the litigation process and the academic work. The litigation work is usually guided by precedence

The case addressed earlier solved the difference that exists between the approaches applied at common law and equity. The conflicting parts were however not resolved in the second part. It still important however to note the overlapping ways in which the same legal problem was addressed. This makes it possible to understand the law as it is.

In the case of Louinder v Leis, the jury concluded that the operation of 13 converts the character of time stipulation from essential to non-essential cannot change the terms of construction. In this case, section 13 of the conveying act was applied and in this case it was relatively important to understand the difference between the common law and equity. The Australian courts have a tendency of resolving points only when an appropriate dispute is presented before the court. Many decades may pass thereafter before a proper question is presented before the court for resolution.

There are other ways in which the common law, the equity and statute overlap in the modern commercial law. There have been a lot of analysis in matters of commercial law which have majorly been informed by the centuries of history. It is often said that the only way to know where we are going is to first of all understand how we arrived at the present. Looking back into the anglo-australian legal system, you discover that there is nothing new about the Australian legal system. A lot of has already been done regarding the historical overlap of courts within the Australian legal systems. One of the notable figures who has helped in discovering this is Adam Smith. He was able to uncover this using the language of rival ship, A language that directly resonates with the modern competition law. Adam Smith stated the principle that the similarities of the proceedings at the court is one of the ways through which the liberty of the people is supported.

Information about competition of courts is wide and it is not possible to summarize it all in this paper. The apparent weakness in majority of the accounts is the tendency to ignore courts other than the superior courts at a common law. Ignoring this courts implies an impasse neglect of the majority of the litigation.Wiliam Houston is a researcher who studied the history of the courts and according to his findings, majority of the courts of requests do good but they only do it for comparison. They find it better to offer something closer to justice than having nothing at all. The small courts have still forms important aspect of the commercial life.

As a British Colony, it is evident that the nascent Australian legal system inherited much of the jurisdictional complexity of the English legal system. The existence of the powerful forces of fusion led to the creation of superior courts. The apparent characteristic exhibited by the superior courts is their jurisdiction which is defined by reference to the jurisdictions of the superior courts at law and equity. A good example in Australia is the existence of the supreme court of New South Wales.

Inferior Courts present in Australia also act according to the good conscience and equity. When they were established in the year 1824, the colonial legislation required this type of courts to always determine matters in a summarized way. They were expected to exhibit equity and act with good conscience. In a case involving convict who wanted to claim his debt, he was referred to as Civiliter mortuus and thus he lacked the ground to sue.7 The ruling was correct on the ground that the court of requests was a court of conscience and in the event that defense would have been given to the to the convict, it would have shocked all the conscience.

A good example of court overlaps was also exhibited in the court of claims that was created in the year 1833.The court of claims was specifically created to help resolve a number of informal grant titles. The problem with those courts is that they were never recognized by the Supreme Court. According to Professor Shaunnagh Dorsett, majority of this cases were resolved by adjudication process by a specialized court which directly reported to the governor. The judication process resolved disputes in two major ways, first of all according to the English law or in a streamlined process which was referred to as the commissioner’s court of equity.

Determination of cases according to equity and good conscience were introduced into the Australian legal system in the first half of the 19th century but they remain applicable up to date even in some of the busiest jurisdictions in South wales. Constitutional considerations still intrude at the federal level but there are several facilities which allows for the resolvement of disputes without the exercise of judicial power. A good example is the compensation jurisdiction of the district court of New South Wales. In this type of courts, the appeals are limited and they are usually not bound to follow a strict legal precedent.8 There is also the existence of the Dust diseases tribunal of the New South Wales. This is a court of record usually with unlimited monetary jurisdiction. It handles claims for the type from individuals who suffer from dust related conditions. This conditions are usually taken to a breach of duty.

The application of equity according to conscience is highly dependent on the context. This was exhibited in the Qantas airways Ltd vs Gubbins.This has however varied over the years and currently, it can be said that such like terms cannot authorize decision making but can only do so according to the law. In the Case Sue vs Hill, the high court stated that similar provision in accordance to the court of disputed returns cannot prevent the court from applying the substantive rules of the law. This decisions contradicts with what was held earlier that the law courts were not courts at law or at equity.

Regardless of the existence of the concept of the overlapping claims, “The common law is not alphabetic to concurrent liability’ ’this according to Lord Goff.9 This can be justified with the following three cases. In Barclays bank ltd vs Quist close investment limited the effect of a loan transaction that resulted into a legal action for debt was excluded from the implication of any trust. The Australian courts have constantly rejected conceptualism. This has been labeled as antipathy to the mode of reasoning. The principle argument is that generalization may mislead. This was evident in Fistar vs Riverwood and community club Ltd.

  1. I pass over the difficulties in distinguishing between substance and procedure: John Pfeiffer Pty Ltd v Rogerson [2000] HCA 36; 203 CLR 503 [97]-[100], [131]; Rizeq v Western Australia [2017] HCA 23 [83]↩︎

  2. See Civil and Administrative Act 2013 (NSW), s 38(4)) and Local Court Act 2007 (NSW), s 35(2)). See also the Workers Compensation Commission (Workplace Injury Management and Workers Compensation Act 1998 (NSW), s 354(3)) and arbitrators to whom a dispute has been referred by a court in accordance with the Civil Procedure Act 2005 (NSW) (see s 49(2))↩︎

  3. (1992) 28 NSWLR 26 at 30 (“are not terms of art and have no fixed legal meaning independent of the statutory context in which they are found”).↩︎

  4. Erlanger v New Sombrero phosphate compan [1999] HCA 30; 199 CLR 462 [42].↩︎

  5. See the “modest and constrained role” of courts in reformulating existing legal rules and principles to which French CJ, Kiefel, Bell and Keane JJ referred in D’Arcy v Myriad Genetics Inc [2015] HCA 35; 258 CLR 334 at [26] and contrast, by way of recent example, Lifeplan Australia Friendly Society Ltd v Ancient Order of Foresters in Victoria Friendly Society Ltd [2017] FCAFC 74 [82] (“The architectural brutalism of that submission contains its flaw.”)↩︎

  6. Restitution (Hart, 2006), 26-28; W Swain, “Unjust Enrichment and the Role of Legal History in England and Australia” (2013) 36 UNSWLJ 1030, 1044-46.↩︎

  7. 1764) 3 Burr 1583; 97 ER 993, cited by W Swain, Moses v Macferlan in C Mitchell and P Mitchell (eds), Landmark Cases in the Law of Restitution (Hart, 2006), at 25.↩︎

  8. C Radcliffe, “The Place of Law Courts in Society” in Not in Feather Beds (1968) 29. He added “The statutes as a whole do not share any common legal principles; often it is hard enough to find any general legal conception that prevails even in a single statute.” See also R French, “Trusts and Statutes” (2015) 39 MULR 629↩︎

  9. M Leeming, “Fusion – Fission – Fusion: Pre-Judicature Equity Jurisdiction in New South Wales 1824 – 1972” to be published in J Goldberg, H Smith and P Turner (eds), Equity and Law: Fusion and Fission (Cambridge University Press, forthcoming).↩︎

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