Bridgewater V Leahy-A Bridge Too Far?

By Rickett, Charles E. F. | University of Queensland Law Journal, December 2012 | Go to article overview

Bridgewater V Leahy-A Bridge Too Far?


Rickett, Charles E. F., University of Queensland Law Journal


I Introduction

Decisions of superior appellate courts, particularly those from the senior court in a jurisdictional hierarchy, such as the High Court of Australia (which of course sits at the top of a number of judicial hierarchies), can be judged and critiqued on a number of bases. First, was the best decision reached on the facts as established on the evidence brought at trial and as interpreted in the trial court and by any intermediate appellate court? Secondly, do the judgments given present a coherent and reasoned account of the extant legal materials to be considered in reaching a conclusion as to what law is to be applied? Thirdly, was the law as stated applied properly to the facts as established and interpreted to reach the decision actually made? Fourthly, if the statement of law in the decision interprets or advances the law as previously understood--which will usually be the case in an ultimate appellate court--then is that statement a coherent fit with what has gone before in the law? In my view, an important matter in this fourth question is whether the statement can be justified morally. Law is fundamentally coercive--and it seems to me that a legitimate exercise of coercion requires a clear moral justification. I do not by saying this mean that the law must be in pursuit of some social or economic policy in order to be justified. That too many people these days think that that is what is meant by calling for moral justification in law is simply a tragedy in my humble view. I believe justification in law is a matter of justice, and in particular what has become generally known in modern debate as corrective justice. (1) I have been asked to identify and discuss the worst case decided by the High Court of Australia in the past quarter century. I have no idea whether I have achieved this apparently objective standard by choosing Bridgewater v Leahy. (2) I have not read all the cases handed down by the High Court over the past 25 years. Further, I am not versed in a broad enough span of legal knowledge to be able to make that assessment even if I had read all the Court's decisions. But I have long regarded Bridgewater v Leahy, a case I have considered in teaching a range of private law subjects over the years since it was decided--equity, contract law and restitution law--as a troubling case. I think fundamentally it is a case where a serious injustice was done to the defendants, and where the law of unconscionable bargain was stretched almost to breaking point. I feel emboldened in my intuitive view by the fact that the case was heard by a total of nine judges, of whom four held for the defendants and five for the plaintiffs. That there is something very difficult about the case then cannot be doubted. That split in the numbers alone should warn us of that. Indeed, in the High Court itself two judgments were given and the plaintiffs won by a bare majority of one. A reading of the two judgments side by side leaves one feeling very much as if a kind of parallel universe experience is upon us. Whether or not one agrees with my assessment that this is the worst High Court decision of recent times, I hope that by the close of this paper you will agree that it is at least a very worrying decision!

I shall proceed as follows. In Part II I outline the facts and history of the case. In Part III I make observations about the parties to the litigation from a perspective in corrective justice. In Part IV I shall comment on what the High Court's decision does to the law of unconscionable bargain. Almost seventeen years ago, in Attorney-General v Equiticorp Industries Group Ltd (In Statutory Management) (3) McKay J, speaking for himself and the other members of the New Zealand Court of Appeal, Richardson and Henry JJ, memorably stated: (4)

   It is not enough for a party to cry 'equity' and expect to be
   compensated. One must identify the relevant principle of equity on
   which a claim can be properly founded. 

The rest of this article is only available to active members of Questia

Sign up now for a free, 1-day trial and receive full access to:

  • Questia's entire collection
  • Automatic bibliography creation
  • More helpful research tools like notes, citations, and highlights
  • Ad-free environment

Already a member? Log in now.

Notes for this article

Add a new note
If you are trying to select text to create highlights or citations, remember that you must now click or tap on the first word, and then click or tap on the last word.
One moment ...
Project items

Items saved from this article

This article has been saved
Highlights (0)
Some of your highlights are legacy items.

Highlights saved before July 30, 2012 will not be displayed on their respective source pages.

You can easily re-create the highlights by opening the book page or article, selecting the text, and clicking “Highlight.”

Citations (0)
Some of your citations are legacy items.

Any citation created before July 30, 2012 will labeled as a “Cited page.” New citations will be saved as cited passages, pages or articles.

We also added the ability to view new citations from your projects or the book or article where you created them.

Notes (0)
Bookmarks (0)

You have no saved items from this article

Project items include:
  • Saved book/article
  • Highlights
  • Quotes/citations
  • Notes
  • Bookmarks
Notes
Cite this article

Cited article

Style
Citations are available only to our active members.
Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

(Einhorn, 1992, p. 25)

(Einhorn 25)

1

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Cited article

Bridgewater V Leahy-A Bridge Too Far?
Settings

Settings

Typeface
Text size Smaller Larger
Search within

Search within this article

Look up

Look up a word

  • Dictionary
  • Thesaurus
Please submit a word or phrase above.
Print this page

Print this page

Why can't I print more than one page at a time?

Full screen

matching results for page

Cited passage

Style
Citations are available only to our active members.
Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn, 1992, p. 25).

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn 25)

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences."1

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Cited passage

Welcome to the new Questia Reader

The Questia Reader has been updated to provide you with an even better online reading experience.  It is now 100% Responsive, which means you can read our books and articles on any sized device you wish.  All of your favorite tools like notes, highlights, and citations are still here, but the way you select text has been updated to be easier to use, especially on touchscreen devices.  Here's how:

1. Click or tap the first word you want to select.
2. Click or tap the last word you want to select.

OK, got it!

Thanks for trying Questia!

Please continue trying out our research tools, but please note, full functionality is available only to our active members.

Your work will be lost once you leave this Web page.

For full access in an ad-free environment, sign up now for a FREE, 1-day trial.

Already a member? Log in now.