The Common Law and Equity: Are England and Australia a World Apart?

Abstract

When decisions are made in the High Court of Australia in the areas of common law and equity, lawyers in England often cast their eyes over the decisions in Australia to consider in which direction those in the former colonies are taking the laws bequeathed to them, or received by them, depending on one's perspective. There was little divergence until relatively lately as the Australian High Court felt obligated to be bound by the decisions of the House of Lords until 1963 and the Privy Council until 1978. Yet, there remains in England an expectation that Australia should continue to follow the example of the mother country, perhaps to keep the common law as much as possible, common. It is argued that it is unrealistic to keep looking at what Australia does as somehow not following the example of England as lead in areas of law that it developed over nearly a millennium. Will it hurt the common law and equity to have strong separate traditions reflecting matters that are uniquely Australian? Can Australia be left to have the ability to be diametrically opposite if it wishes to be, inasmuch as it is antipodean geographically, without some feeling it has let the 'team' down?