The Recent Development of the Australian Equity Law by the High Court - Essay Example

Running Heading: Australian Equity Law Australian Equity Law Name Institution Date of Submission Australian Equity Law Originally the equity law was developed to correct or rather bridge the gap that the common law seemed to fall short either through the rights it conceded or the remedies it gave. It has been known to be a productive source of legal principle in Australia, as it universally applies to problems that keep recurring. This fact was reinforced in 1994, by Sir Anthony Mason who praised equity law to have an enduring vitality contrast to the common law which applies rigid formulae in its approach to legal matters. However, it is evident that this vitality of equity law is dependent on the willingness of high court and the intermediate courts to apply equity law in addressing modern prevailing needs and conditions. In addition lawyers have a key role of renewing doctrines and remedies of equity law (Hudson, 2003). The Australian legal system has failed equity law. The Australian law for instance, identifies equity law as a detached and an articulate body of principles. This view has vehemently dominated as considered by Dr.Simone Degeling and Dr James Edelman due to the adherence of deep legal scholarship. Initially there was the question of equity law being fused with common law which brought about judicial deliberations with the likes of Meagher, Lehane and Gummow describing this as a ‘fused fallacy’. This issue of fusion brought division in the court of appeal of New South Wale in 2004.This was in the trial judge’s decision over Digital Pulse Pty Ltd v Harris case where the chief justice Spigelman and justice Heydon overturned the decision of giving typical damages for a proven fiduciary duty breach (Degeling & Edelman, 2005). The court failed to acknowledge that a new remedy of exemplary damages could be developed by equity law. This shows how the Australian High Court has relaxed in matters involving invention and expansion of equitable remedies and doctrines. This has been recurrent for a number of years. For instance, the High courts approach on matters of Yerkey principle shows a lot of reluctance. Concerning Garcia v National Australia Bank Ltd, the ruling has been really criticized and said to be inherently discriminatory in terms of gender and relationships. This principle presumes in the modern society married women to have an inferior position. Critics describe this rule to be patronizing. This principle is out of date socially and still some judges insisted on the application of the unaltered Yerkey v Jones principle. This can be explained by the fact that some judges take Justice Dixon’s words as unquestionable and to be the holy truth. Kirby in his speech acknowledged that Justice Dixon’s principle should be adapted to the current modern society to enhance its relevance. This would suit the role of the Australian modern woman which has changed over 6 decades. However, majority of the High court insisted on the Yerkey v Jones principle with the claim that it may be applied in relationships common today. This approach displays how High Court of Australia has shown reluctance towards the invention and expansion of equitable doctrines. In Barclays Bank PLC V O’Brien, the supposed equity rule was rejected by the House of Lords. Lord Browne- Wilkinson invented a rule that dealt with the claim of a married woman. This rule was formulated at an utmost level of generality as it was not confined to marriage neither to women. According to Kirby this rule is too broad and ignores the Australian women’s diverse experience. He proposed a gender-neutral and a relationship inclusive approach by reformulating Lord Browne Wilkinson’s principle. Nevertheless, High court dismissed an application by the Victorian court of Appeal in Kranz v National Australia Bank Ltd on the case on the relationship between two brothers in law. Another approach which shows reluctance in expanding the fiduciary obligations in the context of a doctor patient relationship which was rejected by the New South Wales Court of Appeal in Breen v Williams. The case involved the patient accessing the original information from a doctor’s file. The court of appeal maintained that a relationship between a medical practitioner and a patient did not create fiduciary obligations. However, this is contrary to the ruling of the Supreme Court in Canada in Mclnerney v MacDonald it was concluded that there was fiduciary obligation between the medical practitioner and the patient. This is a clear illustration of how Australian law is reluctant to enlarging equitable obligations into more indeterminate field of personal rights and obligations. It is unfortunate that the High Court did not take the opportunity to initiate the equitable jurisdiction according to the changing social relationships. In Farah Construction Pty Limited v Say- Dee Pty Limited case, the Australian High Court showed hostility to restitutionary remedies. This law of restitution is criticized and apparently alleged to have come from the United Kingdom. This was an undisputed decision of five members of High Court of Australia who were antagonistic towards the introduction of restitutionary remedies. The decision was concluded rather a substantial rebuff to the restitution industry. This led to a lot of criticism leaving the Australian law in an intellectual limbo. United Kingdom has greatly accepted the unjust enrichment approach to recipient liability as reflected in the extra judicial writings and judicial obiter dicta. This approach has greatly expanded beyond majority in the House of Lords. Due to this unsatisfactory state of the law Lord Nicholls suggests rationalization of the law by the House of Lords or Privy Council. All these approaches display total reluctance of the High court and the intermediate courts to embrace equity law. As a point of emphasis, as far as equity in commercial affairs is concerned, this was a transaction was carried out by two main individuals. They needed to be just to one another. There was no proof to the Court about their agreement but if the doctrine of equity had been established, then, the case would be simple to deal with. If an equitable doctrine had to be followed, then the husband would have been questioned as the head of the family. He is entitled to plan for his home affairs. In fact, he had promised that if they won’t get money to refund then he would offer gold in return to pay the loan. The wife would have been relieved. On the other hand, it was very unreasonable for the bank to fail to elaborate to Madam Garcia concerning this loan i.e. the dangers of failing to honor the agreement. They needed to have enquired more about the support her husband would offer. Madam Garcia would have put into consideration the implications that would come forth if the husband failed to support him to refund. Related to this, was the case of Yerkey and Jones. Mr. Jones wanted to get a place to raise poultry. It is so unfortunate that he forces the wife to sign a mortgage contract. When the case was reported, the court relieved the husband. We can indeed major on a recent incident where the company of Sam had a business operation with a bank in Western Australia. The company was to be given a consolidated bank amenities as it was done to them earlier times. The company failed to pay back as agreed. It requested for more time before returning the loan of which the bank accepted. The bank demanded for a refinance which was unreasonable. The Sam’s company wanted to refund to some amount of money as per law of equity. The bank disapproved this and decided to report the disagreement to a court. The court did not act fairly to protect the two parties as per the policies set to administer business deals. This took place between May 2007 and April 2009.The courts are to protect business operations by ensuring that justice is accorded to all parties in case a disagreement occurs. The features depicted from the cases above are so unpleasant. One would argue the courts to be strict and practice justice for the development of individuals and the country as a whole. Internationally, it is failing. Commonwealth declarations are stronger that the internal laws thus making it to be incoherent (Degeling & Edelman, 2005). From statistics (Holdsworth, 1903), it has been seen that Australia has a great number of people who are old. They need to be protected. The Government should educate the aged persons on their rights. There are certain rights which are guaranteed to the old such as retirement benefits and health services.In the Australia Government, two cases among others were reported concerning two aged men. The first one was between a Commercial bank in the country and an elderly man who was misled by young person into a business deal. He was given full information about the deal and ended up losing some money. The second man, made his wife and children lose his will which he had prepared to permit them to inherit his property simply because he sold his piece of land to his nephew (Arnold-Baker, 2001). In Australia, many issues confirm that the High Court together with the intermediary courts is not ready to protect the elderly. The aged may give gifts, belongings to their friends, relatives unconsciously. They may be supported to meet their needs and choose to appreciate them. They can also transfer their possessions. They can easily do the above things without considering any implications that may come in the future. When disputes concerning all these, many are the times you will find that the other party was aware and wanted to benefit from this. Judges have been reluctant to stand and protect after listen to these disputes. Indeed the other party takes advantage of the old because he had known the result. The recommendation to the courts is that they should be careful when dealing with the aged people. They have special needs such as mental, memory, hearing and even sight problems that need to be addressed. They should therefore set laws to protect them and amend some which have been set. In financial matters, the aged should be advised appropriately and if some victims are reported to have taken advantage over them to be punished accordable. Financial institutes should seek for individual disadvantage specifics from them to know their current status in order to protect them (Hudson, 2003). The courts have not protected the women. Most of the women have complained about employment terms that they have been subjected to. The rights set to protect them have not been followed. Girls aren’t given opportunities to go to school as required. When the ladies realize that they are not highly valued, they defend themselves by keeping quiet. They are treated as beings that cannot do much to cause development in Australia. At their work places, they are mistreated. They receive limited pay. Compared to the men’s remuneration, usually, it is lesser. They are not guaranteed protection measures in their working zones. When they are taking leave for maternal purposes, some employers don’t pay them for the time they don’t show to work. Some of them don’t allow them to have some break in the course of the year to rest. Normally, they are induced to harsh labor environment are very restricted. This limits some women the freedom to attend to some of the urgent needs in the family. Employers ought to make their workforce feel comfortable. The employer need to agree with the employee and allow her to attend the very demanding and complicated family issues. When disagreements occur in the working zone, there is a need to solve it in the most appropriate way and proficient one.Women have also complained about mistreatments in their place of work. They cannot be permitted to bargain about the pay they receive. Statistics indicate that women rights have not been honored despite the formation of a commission set to see into the matters concerning them. These include the gender insensitivity where ladies are treated as a weak being. This has been cause by the reluctance of the courts, where the judges and magistrates reluctant to follow the set policies. We can evaluate this government against with America. America has improvised law of equity. In employment, though there has been a pay drop in female payments, the difference is minimal (Atiyah, 1979). The united States of American are working out to balance payment ration between the men and women. They are creating jobs to ladies. Women are supported, permitted to go school for formal learning. They are working out to make sure payments are equalized. In USA, the states have ensured that land ownership regulations have been respected. Any disputes are solved quickly. Generally, USA has put systems which protect people rights. In marriages there are courts which deal with family conflicts such as separation and divorce (Grantham & Rickett, 2000). In commercial affairs, through good governance, USA has sheltered home trade where traders’ disputes are soundly investigated and ruling done in fast way to safeguard time as a resource. They have linked with other countries and made agreements to improve exportation of products and services. The aged are treated with a lot of respect and shown love. They suffer unalterable corporeal, intellectual, and physiological changes. USA has rules set apart to assist them. The aged wellbeing is catered for. They have come up with security benefits where some money set a side to be given to a person at his old age after he retires from working. If the beneficiary dies, the money is given to the spouse. There are medical insurance covers to the aged. This allows them to access medical services at their old age. Health services assist them to boost their immunity to disease and hence live longer. In Australia, courts have not implemented the law of equity in the same manner as USA has done. Australia is a country that has autonomous means governing itself. The structure, which was established in courts, is firm. The duties that have been set to govern them are self-explanatory. They have been developed to protect all the areas that require security. It all began with recognition of common laws by the people who owned the land of Australia before colonization. Through amendments, the customary and native regulations, the native persons began to appreciate the rights that would lead to a peaceful way of living. During colonization age, they realized that they were very weak and needed to come together for to redefine their own laws that would assist them to attain liberty from the hands of their colonizers. They joined their hands, worked hard to come up with a constitution that was to help to formally write down the laws to be followed.People noted that they required have strategized ways which facilitate them to resolve disputes. The idea gave birth to the rise of courts. The courts have received many cases of business, land, marriage, employment among other disputes (Hedley& Halliwell, 2002). The courts seem to be reluctant towards the law of equity. They have not practiced justice as it can be seen from some of the highlighted cases. References Arnold-Baker, C. (2001). The Companion to British History, s.v. "English Law”. London: Routledge. Atiyah, P. (1979).The Rise and Fall of Freedom of Contract. Oxford: Oxford University Press, 1979 at 388-397 Birks. (2003). Unjust Enrichment. Oxford: Oxford University Press. Degeling, S. & Edelman, J. (2005). Equity in Commercial Law. Sydney: Lawbook Co. Grantham, R. & Rickett, C. (2000). Enrichment and Restitution in New Zealand. Oxford & Portland: Hart Publishing. Hedley, S. & Halliwell, M. (2002). The Law of Restitution. London: Butterworths, 2002. Holdsworth, W. (1903). A History of English Law. London & Methuen: Sweet and Maxwell. Hudson, A. (2003). Equity and Trusts (3rd ed.). London: Cavendish Publishing. Lerrick, A. & Mian, Q. (1984). Saudi Arabia Business and Labor Law. Saudi Arabia: Hejailan Publishers. Mahmoud A. (2006). Islamic Finance: Law, Economics, and Practice. Cambridge University Press. Read More