Equity

EQUITY’S AUSTRALIAN ISOLATIONISM*
THE HON JUSTICE MICHAEL KIRBY AC CMG**

In this essay, delivered as the WA Lee Equity Lecture 2008, the author begins with a reminder of the history and original purposes of equitable doctrines and remedies. Skirting around the ‘fusion’ controversy that followed the Judicature Act reforms, starting in the 1870s, he examines the disinclination of Australian courts to develop the rules and remedies of equity by the techniques of analogous reasoning: a common engine for growth and change in the common law. By reference to several recent cases he suggests that a special Australian hostility to the development of equitable doctrine has emerged: Garcia v National Australia Bank;1 Farah Constructions Pty Ltd v SayDee Pty Ltd2 and Breen v Williams.3 After reviewing judicial and academic responses to these and other cases, he calls for a change to this attitude. He urges a restoration of the former functional approach to the ambit of the binding rule established by decisions of the High Court of Australia and recognition of the proper and necessary function of Australia’s intermediate courts in developing judge-made law by analogous reasoning. Finally, he supports calls for a restoration of civility in judicial discourse in order to maintain respect for the appellate process and to recognise the debatable character of many appellate decisions and what they stand for. I A VITAL SOURCE OF PRINCIPLE

It is a privilege to deliver the W A Lee Equity Lecture. I have known Tony Lee for 30 years. I pay tribute to his scholarship and his teaching of the law to generations of Australian lawyers. My thoughts are, like Caesar’s Gaul, divided into three parts. First, I will speak against the opinion that equity’s doctrines in Australia are closed and hostile to growth and adaptation. Secondly, I will reflect on an application of that opinion as it affects particular developments in the law of unjust enrichment. And thirdly, I will conclude with...