Academic journal article Melbourne University Law Review

Common Law Divergences

Academic journal article Melbourne University Law Review

Common Law Divergences

Article excerpt

When Sir Owen Dixon commented in 1942 that no good could come of 'divergences' between the common law administered in English and Australian courts, the then orthodoxy was that the common law of England was the common law to be applied in Australia. Over 40 years later and in a much changed constitutional and legal environment, Sir Anthony Mason highlighted the need to fashion a common law for Australia that was best suited to our conditions and circumstances. The common law of England, like the law of other jurisdictions, was simply a possible source of law in Australia. The assistance properly to be derived from that source is a recurrent issue for our courts. The recent decision of the Full Court of the Federal Court in Grimaldi v Chameleon Mining NL [No 2] provides an extended illustration. This lecture focuses primarily upon equitable doctrine and remedy in Australia and England both to illustrate significant differences between the two legal systems and to explain at least some of the causes. Reference necessarily will be made to how divergence is reflected in the differing extents to which commercial dealings are regulated in the two jurisdictions; to the debates about unjust enrichment and its province; and to the significance statutes have in contriving the context in which Australia's common law is evolving.


I    Introduction
II   The Unconscionable Dealings Doctrine
III  Undue Influence
IV   Australian Fiduciary Law
V    Estoppel in Equity
VI   The Constructive Trust
VII  The Statutory Context
VIII Conclusion


Let me begin by setting the scene for what follows. The story of the changes in the formal character of the common law in Australia is well-known and requires little elaboration. Seventy years ago, ours was the common law of England. So much was this felt to be so that Sir Owen Dixon could state uncontroversially:

   We are studious to avoid establishing doctrine which English courts
   would disavow. For we believe that no good can come of divergences
   between the common law as administered in one jurisdiction of the
   British Commonwealth and as administered in another. (1)

Thus, it was that the rules of contract law were the rules of English contract law. This was their justification. That was sufficient. (2)

Forty-five years later, but in a changed Australia, Sir Anthony Mason gave his imprimatur to a process which was then well in train:

   There is ... every reason why we should fashion a common law for
   Australia that is best suited to our conditions and
   circumstances.... The value of English judgments, like Canadian,
   New Zealand and for that matter United States judgments, depends on
   the persuasive force of their reasoning. (3)

A year later the transition from the common law of England to the common law of Australia was belatedly formalised for all practical purposes in the amendment made to s 80 of the Judiciary Act 1903 (Cth). (4) As Justice James Allsop neatly put it extra-curially: 'The common law of England had ceased, literally overnight, to be law, but had become a source of law for legal development'. (5)

Today, it is abundantly clear that there are separate bodies of English and Australian common law. (6) And there are clear divergences' reflected, not merely in isolated and specific court rulings, but also in differing casts of mind, distinctive methodologies and markedly different contexts (particularly legislative ones) in which the respective bodies of common law do their work. My purpose in this lecture is to illustrate these matters.

If I have a message it is this. We have in the past borrowed, and will continue to borrow, from abroad in the endeavour of making our own law. But to adapt the language of a great Californian Chief Justice and jurist, Roger Traynor, we must, of necessity, 'subject [foreign decisions] to inspection at the border to determine their adaptability to native soil'. …

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