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Role And Impact of Rule Equity in Australias Legal System


Discuss about the Role And Impact of Rule Equity in Australias Legal System.



Equity can be defined as a branch of English law that was developed when the plaintiff would go to the king and raise complain of harsh rules of the common law that mostly prevented justice from prevailing. It is the rule that is based on the assessment of judicial fairness unlike the common law which was rigid and strict(Chisholmand Nettheim 2012). Mostly the role of equity is to address the judicial concerns that fall outside the jurisdiction of the common law. It began in the United Kingdom to respond to the rigidity of the common law at around thirteenth century. Judges of the England courts were using common law to accept and decline cases based on the principle of law that was developed from previous cases. Pleading became quite complicated, and only specific causes of action would be deemed qualified for redress. Citizens were not happy with these and complained of cases being dismissed due to their failure to meet the pleading standards or techniques.

A complaint either dismissed, or relief was denied due to lack of controlling decree or precedent. The king, when approached by the frustrated complainants, referred their requests for a reprieve to a royal court that was known as Chancery. Equity rules became known as claims for which monetary reprieve was not adequate(Coumarelos et al 2012). One of the most important distinctions between equity and law is the right of the plaintiff to jury trials in a civil case. Where the complainant is seeking a remedy of monetary value damages, the complainant is given the right to a tribunal trial as long as the amount being sought has not exceeded an amount that is specified by the statute.

Australia is a common law state where the legal system is based on the English common law. However, equity rules have also found a place in the Australia’s legal system. This essay would discuss the roles and impact of rule of Equity in the legal system of Australia. In Australia, Equity remains a separate rule of law with specific practitioners. The modern Equity rules in Australia include;

Laws that are related to the resulting, express and constructive trust.

The fiduciary law where one person holds the ethical relationship of trust or legal trust with another party.

Reprieve against penalties as well as forfeiture

The doctrine of subrogation, marshaling and contribution.

Equitable set-off.

Equitable estoppels that include promissory and proprietary.

Equity remains the cornerstone of the private laws of Australia. Some cases in the Australia legal system in the early 1980s led to the re-affirmation of the traditional equitable doctrines in her legal system(Feldman, and Smith 2014). In the recent years, the high court affirmed the significant of Equity and rejected the opinion that unjust enrichment has illustrative power about traditional doctrines of equity such as subrogation. In the year 1984, Sydney school of law and judges shaped Equity doctrines and remedies. It the remains the most significant and highly regarded practitioner text in the state of Australia.

Equity in the Australia legal system demands fairness and just application of laws. It emphasizes on the application of justice to all without fear or favor. Equity also is used to assess whether one has acted according to what is right as opposed to what is lawful or legal. It states that a man must be governed by Equity as well as according to tradition(Greenberg, and Cohen 2014). Equity gives the courts knowledge to judge other or decides the case by looking at what is good for everyone in the society.

Moreover, equity makes the legal system of Australia to be efficiently comprehensive and also universal as well as to be sufficiently just and fair to everyone in the society.

The idea of equity in the legal system of Australia is usually associated with common law system which applies the courts of equity for that function(Kratochwil 2014). Equity is used as both means and ends to which the legal system of Australia evolves. It acts as principle means of moderating all the demands of laws so as to ensure that the law and legal system reach fair as well as right ends in any given case. Judges are obliged to act with equity and to ensure a fair and just application of law.

In Australia legal system, there are some maxims of equity that is used to decide cases.

First, Equity sees that as done what ought to be done(Lerner and Lerner 2013). This means that if parties are required to perform the certain act by their own agreement or by law, equity will regard that act to having been performed as it ought to have been done even if it has not actually occurred or performed(Liscow 2013). This means that if one party breaches the agreement, the other party will be entitled to an equitable remedy because he or she had an equitable interest in the outcome of their contract.

This maxim has been used by the legal system of Australia to protect sellers of property and goods against a possible loss if the buyer fails to honor the agreement.

Secondly, there is a maxim that equity will not suffer a wrong without a remedy. This means that the victim is given a stronger hand in seeking equitable reprieve. The victim is given a right to ask for a legal remedy. The remedy in equity in this maxim would be specific performance or injunction(Martin 2013). These remedies are not always provided by the common laws. It further says that where there is a right, there is a remedy.

Thirdly, equity delights in equality. This means that where there is an equal right to property, the property will have to be divided(Milsom 2014). This maxim has been significant to the legal system of Australia in solving property rights especially those disputes among divorced couples.

Fourth, equality is equity. This maxim is important in most of the court decisions in Australia, ordinary or common law can give one party an upper hand over the other. But in courts of equity, the litigating parties would be subjected to the footing of equality.

Five, one who seeks equity, must come with a clean hand. This means that whoever seeking for equitable relief must first complete obligation on their part(Nanda and Pring 2012). This maxim gives the Australian legal system knowledge of deciding a case where the party or the plaintiff must be cleaned in the eyes of equity before his or her remedies are rewarded. One cannot claim remedy to act in which they have played or made to happen.

Further, equity aids the vigilant, not those who slumber on their rights. The maxim here explains that the victim or plaintiff must act quickly to preserve their right, or they will be guilty of laches(Perelman 2012). Delay defeats equity and therefore this maxim advises people to act quickly and present their grievances to the courts as soon as possible so that their cases can be heard. The impact of this maxim in Australian legal system is that it makes the perpetrator to be brought to the book they escape to hiding.

Consequently, equity imputes intent to fulfill an obligation. If there were an agreement between parties in the performance of a specific act, near performance would be considered sufficient unless stated otherwise by the law(Tamanaha and Woolcock 2012). For example, when a debtor leaves the legacy to his creditor, it is considered greater than his obligation. Such a gift would be considered as an alternative to the performance of the obligation. The creditor, therefore cannot claim both the payment of debt and the legacy, he must accept one.

Lastly, equity follows the law and therefore will not permit a remedy that contradicts the law. This shows that however, equity was to be the alternative to common laws. It follows the constitution of the said country and cannot allow a remedy that would be ambiguous to the laws of the country. It was developed not to destroy laws but to fulfill the law. It will be applied as a supplement of the law and would not supersede the law(Tamanaha and Woolcock 2012). In Australian legal system, it was applied hand in hand with the existing laws to make the laws more just and fair to all member of the society.

In conclusion, rules of equity have been used as an alternative to common laws in Australian legal system. It makes the judges apply laws in a fair and just manner without favoring one party over the other. Their impacts are the obligations that it makes judges and the society to abide by. One is considered for a remedy they have been assessed and found that they acted with equity in performing their obligation. It brought fairness in the legal system and decision in some judgment. The Australian system used the common law for quite a long time and due to its rigidity and reliance on previous cases and judgment, people were not getting justice. Victims would suffer when the court rejects their cases due to the technicalities presented by common laws. Equity, therefore, reversed the situation and victims, as well as the perpetrators, were evaluated suing the maxims of equity, and therefore justice and fairness was brought to the legal system.


Chisholm, R. and Nettheim, G., 2012. Understanding law: an introduction to Australia's legal system. LexisNexis Butterworths.

Coumarelos, C., Macourt, D., People, J., McDonald, H.M., Wei, Z., Iriana, R. and Ramsey, S., 2012. Legal Australia-wide survey: Legal need in Australia (Vol. 8). Law and Justice Foundation.

Feldman, Y. and Smith, H.E., 2014. Behavioral equity. Journal of Institutional and Theoretical Economics JITE, 170(1), pp.137-159.

Greenberg, J. and Cohen, R.L. eds., 2014. Equity and justice in social behavior. Academic Press.

Kratochwil, F., 2014. The status of law in world society: Meditations on the role and rule of law (Vol. 129). Cambridge University Press.

Lerner, M.J. and Lerner, S.C. eds., 2013. The justice motive in social behavior: Adapting to times of scarcity and change. Springer Science & Business Media.

Liscow, Z., 2013. Reducing Inequality on the Cheap: When Legal Rule Design Should Incorporate Equity as Well as Efficiency. Yale LJ, 123, p.2478.

Martin, J., 2013. The English Legal System, eBook ePub. Hachette UK.

Milsom, S.F.C., 2014. Historical foundations of the common law. Butterworth-Heinemann.

Nanda, V. and Pring, G.R., 2012. International environmental law and policy for the 21st century. Martinus Nijhoff Publishers.

Perelman, C., 2012. Justice, law, and argument: essays on moral and legal reasoning (Vol. 142). Springer Science & Business Media.

Tamanaha, B.Z., Sage, C. and Woolcock, M., 2012. Legal pluralism and development: scholars and practitioners in dialogue. Cambridge University Press. is known for providing well-regarded coursework writing services that exactly meet the students’ needs. Our each assignment is customized as per the provided guidelines and maintains originality involving latest information on the researched topic. Hence, students receive 100% plagiarism-free top-quality well-structured coursework help solutions from us. In addition, we offer 24x7 live support to ensure that students get uninterrupted coursework writing help when they need it most.  

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