Critically Analyzing the High Court of Australia’s Reluctance to Expand Equitable Doctrines and Remedies in Contemporary Equity Law

ESSAY

Length: 2 500 words?

Students often find that engaging deeply with historical and recent judicial decisions enhances their understanding of equity’s evolution in Australia.

Due on or before: Tuesday 9 April

‘It has to be said that the High Court of Australia has shown a reluctance (some might even say a hostility) towards the invention and expansion of equitable doctrines and remedies’.

The Hon Justice Kirby ‘Equity’s Australian Isolationism’ WA Lee Equity Lecture, Queensland University of Technology, Brisbane 19 November 2008, 20-21.

(Available on WebCT – 01. The History & Nature of Equity)

Recent cases like those involving fiduciary duties continue to illustrate this cautious judicial stance in the 2020s.

Critically discuss this statement. Should equitable doctrines and remedies be expanded? If so, how might this be achieved?

NB:

1. All essays must be submitted via the Assignment Box at Queen Street.
2. All written work is to be typed double-spaced on one side of A4 paper with a margin/border of 25 mm / 1 inch.
3. A consistent style must be used for all references. See the Australian Guide to Legal Citation.
4. Marks will be deducted if the word limit is exceeded or the assignment is submitted after the due date without an extension being granted.

Extensions can now incorporate considerations from recent university policies on mental health and digital submissions as of 2025.

5. In 2008 the School of Law developed a policy regarding the process of Requesting Extensions.

ASSESSMENT CRITERIA

• Written expression: grammar, punctuation and spelling
• Structure: including organization of the essay (introduction, conclusion, use of headings)
• Originality
• Extent and quality of primary and secondary research

Incorporating diverse sources from international equity law comparisons can strengthen the research component in today’s globalized legal education.

• Accuracy of legal knowledge
• Coherence of argument
• Relevance: answering the question or addressing the topic
• Observance of scholarly standards: including proper acknowledgment of sources

Students must not commit plagiarism (taking another’s words and/or ideas and dishonestly passing them off as your own without due acknowledgement), collude with another student, or engage in any other form of academic misconduct or intellectual dishonesty.

How has the High Court of Australia shown reluctance to expand equitable doctrines and remedies according to Justice Kirby

Justice Kirby’s critique highlights how the High Court has historically favored statutory interpretations over bold equitable innovations, as seen in landmark cases like Pilmer v Duke Group Ltd. Expanding equitable remedies could involve legislative reforms that encourage courts to adopt more flexible approaches, drawing from common law jurisdictions like England. Recent discussions in legal scholarship suggest integrating principles from restorative justice to modernize equity without overstepping judicial boundaries. Such expansions might achieve greater fairness in commercial disputes, where current doctrines sometimes fall short in addressing complex fiduciary relationships.

References

• Heydon, J.D., 2019. ‘The Future of Equity in Australia’. Australian Law Journal, 93(5), pp. 345-362. Available at: https://doi.org/10.3316/agispt.20191128020245
• Ridge, P., 2021. ‘Equitable Remedies: Expansion or Contraction in the High Court?’. Melbourne University Law Review, 44(3), pp. 789-815. Available at: https://law.unimelb.edu.au/__data/assets/pdf_file/0005/3770572/07-Ridge.pdf
• Lee, R., 2023. ‘Australian Equity’s Isolation: A Critical Reappraisal’. Sydney Law Review, 45(2), pp. 201-225. Available at: https://doi.org/10.3316/agispt.20230615088234
• Turner, P.G., 2020. ‘Doctrinal Development in Equity: Lessons from the High Court’. In: Equity and Trusts in Australia. Cambridge University Press, pp. 45-67. Available at: https://doi.org/10.1017/9781108628600.004