Although simplistic views of jurisprudence may be an invitation to error, an insight into Equity can be obtained be remembering that:

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1 Equity: Summary Lecture Notes G C Lindsay SC, Revised July 1999, 20 September 2007 An Introduction to Equity Historical analyses of the role of the Lord Chancellor and the interaction between Equity and Common Law courts remain critical to a proper understanding of equitable jurisdiction. Although simplistic views of jurisprudence may be an invitation to error, an insight into Equity can be obtained be remembering that: Equity courts focus on the restraint of unconscionable conduct and on the compulsion of performance of duties. This is reflected in Equity s principal remedies, injunctions and orders for specific performance. Courts exercising Common Law jurisdiction provide a contrast. Common Law courts tend to leave each party freedom of action, allowing the Court s principal remedy (damages) to be viewed by a bold party as a price to be paid for breach of his or her obligations. This simplistic analysis must, however, be modified in the light of modern approaches to injunctive relief. Not only Equity judges have jurisdiction to grant injunctions: sometimes an interlocutory injunction can more readily be obtained from a Common Law judge than from an Equity judge. The availability of Mareva injunctions limits the extent to which the commercial effect of a damages award can be rendered nugatory. Equitable relief is generally discretionary (albeit that the courts discretion must be exercised judicially) whereas, at least in theory, courts exercising Common Law jurisdiction adjudicate on claims of right. This distinction in important. Equitable relief can be moulded (eg by the imposition of conditions) more readily than can Common Law relief. (c) Equity is not simply to be equated with the Equity Division of the Supreme Court of NSW, although it is there that equitable principles will most often be discussed overtly. Be aware of other jurisdictions, including particularly the Federal Court of Australia, the Family Court of Australia, and the Commercial Division of the NSW Supreme Court. Recent amendments to the District Court Act 1973 may make that Court an important forum for some types of Equity case. Experience will need to inform us of that. In the Page 1 of 7

2 meantime it may be important to check the District Court s jurisdiction specifically in each case. The District Court has long had power to grant Mareva injunctions (as well as limited equitable jurisdiction): District Court Act 1973, s46. Equitable defences are available generally in inferior courts: Law Reform (Law & Equity) Act 1972, ss6-7. (d) Equitable principles provide an insight into other areas of modern law, particularly those involving an exercise discretion. Legislation such as the Contracts Review Act 1980, and the developing law of unjust enrichment, provide occasions for the infusion of equitable principles into Common Law problems. (e) Although advocacy skills can be, and usually are, capable of adaptation from one jurisdiction to another, the techniques employed by an Equity advocate are not necessarily those of the Common Law advocate. There is often a greater emphasis in Equity on the marshalling of documents and legal argument whereas, at Common Law, there is often a greater emphasis on crossexamination and findings of fact. (f) Having regard particularly to the discretionary nature of equitable relief, an advocate before an Equity judge should endeavour to act (and to be seen as acting) fairly in all proceedings. Although the content of the duty may differ from case to case, and be difficult to define in all cases, advocates have a duty to assist the court to achieve a just solution to litigation; perhaps more to the point in practice, the advocate should not engage in, or condone, sharp practice. Texts Precedent books: Neville & Ashe, Equity Proceedings with Precedents (NSW) (Butterworths 1981). Miller & Horsel, Equity Forms & Precedents (NSW) (1934). Mason & Weston, Precedents in Equity (1915). Practice books: Registrar Leslie, Equity - Practice and Procedure in NSW (Legal Books loose-leaf service). Ritchie s Supreme Court Procedure (NSW) Page 2 of 7

3 Thomson Civil Practice and Procedure Parker, The Practice in Equity (NSW) (2nd ed.) Main textbooks: Meagher, Gummow & Lehane, Equity: Doctrines and Remedies (3rd ed. 1992, Butterworths). Jacobs Law of Trusts (6th ed. 1997, Butterworths). Sir Frederick Jordan, Chapters on Equity in NSW, reprinted by Legal Books Pty Ltd in a book entitled: Sir Frederick Jordan, Select Legal Papers (1983). Preparing for Court: Build around all available documents, whether acting for a claimant or a respondent. If possible, inspect and analyse all documentation before preparing affidavits. Bear in mind what documents are likely to be subpoenaed by your opponent at future hearings, whether interlocutory or final. Master all pleadings, court process, and statements of issues. Ensure that issues are clearly defined and that the orders sought in court process truly reflect the relief sought. Ensure that there is some jurisdictional and factual basis for all relief claimed. (c) (d) Discovery and interrogatories: are they necessary? Check discovered documents and answers to interrogatories specifically. Summons or statement of claim; affidavits or oral evidence? Consider the merits of each procedure. Ensure that the court is prepared to receive affidavits or oral evidence (as the case may be). On interlocutory hearings (in particular), the court may insist that evidence be reduced to affidavit form and that cross-examination be strictly regulated, if allowed at all. (e) Where affidavits are to be read: Prepare a list of the affidavits expected to be relied upon by each party. Where there are many affidavits (or parts of affidavits) to be relied upon by you, prepare a summary list to hand up to the court and to your opponent. Page 3 of 7

4 Prepare a list of objections to your opponent s affidavits. That list should specifically define the parts objected to and the grounds of the objection. Annotate your copies of affidavits accordingly. If there are a lot of objections, consider preparing a summary list to be handed up to the court and to your opponent. Prepare a list of answers to potential objections by the other side to your affidavits. Be prepared to argue questions of admissibility generally. Annotate your copies of affidavits accordingly. (f) Generally: Prepare a list of court process, including originating process, subpoenas, notices to produce, affidavits and answers to interrogatories. This will enable you to keep a ready record of the process and evidence before the court. Prepare in written form an outline of your argument (if not formal written submissions). Whether or not you use it, have a short typewritten version of your outline for handing up to the court and to your opponent. You should have, for your own use, a version of the outline which is annotated with precise page references to authorities and precise references to evidence (transcript, affidavits, exhibits), if possible. Keep running lists of exhibits tendered in evidence and documents marked for identification. when transcript is available note transcript references to the exhibit and M.F.I. s (or at least, the pages where the exhibits were admitted into evidence and M.F.I. s were marked). If all the primary documentation is not annexed to affidavits, consider preparing a bundle of the documents to be tendered (or, at least, a list of the documents to be tendered). A bundle of documents should be paginated and should contain an index or table of contents. (v) (vi) All lengthy affidavits should be paginated. This is particularly important where bulky documents are annexed to an affidavit. Each page of each annexure should be included in the general scheme of pagination. prepare one or more chronologies. Page 4 of 7

5 Where the proceedings have involved complex or numerous interlocutory steps a separate chronology might usefully be prepared to deal with procedural matters. In any event, you should have available a chronology setting out the main dates to be referred to in the evidence. Whether or not any of these chronologies is to be handed up to the court depends on the nature and complexity of the proceedings. (vii) Prepare a list of witnesses/deponents to be relied upon be each side of the record. Ensure that your opponent s deponents have been given notice to attend for cross-examination, preferably (but not necessarily) in writing. (viii) (ix) (x) Prepare a list of cross-examination topics (including, if appropriate, specific questions) preferably for each witness. Prepare a list of Answers to Interrogatories you propose to tender (and check problems likely to arise from your opponent s tender of your client s answers). Prepare list(s) of authorities; be selective; prepare a short list and a longer list if need be. Have photocopies of cases available where expedient to do so (eg because of belated preparation of your lists or the fact that you are before the duty judge). Although reliance on textbooks (without reference to cases) is appropriate only in relatively simple proceedings, selected references from authoritative texts may be very effective. Review a number of texts on any substantive legal argument. (xi) Prepare a short minutes of orders, embodying any directions (eg timetable) or relief (final or interlocutory) sought. Competing drafting Short Minutes may often be used to structure debate before a judge, Associate Judge or registrar. Forum In each case specifically check the jurisdiction of judge, Associate Judge or registrar (as the case may be). In the Supreme Court this means essentially that Schedule D to the Supreme Court Rules 1970 and the Delegations to Registrars under the Civil Procedure Act 2005 must be checked. Enquire (if need be of a Registrar, Associate Judge or Judge) whether there is a practice in the court that certain applications are ordinarily to be dealt with at one level or another. Page 5 of 7

6 (c) Consistently with and, generally seek to have proceedings dealt with at the lower end of the judicial hierarchy. If a registrar can deal with proceedings have a registrar deal with them. If a registrar cannot, but an Associate Judge can, have an Associate Judge deal with the proceedings. Approach a judge only if a judge is necessary. Save judge-time where possible. Selected problems: Undertaking as to damages: Get express instructions. Consider the balance of convenience generally; who is to be restrained and who is to bear the risk of having to obtain and enforce a damages award? Consider the need for, or availability of, security for undertakings as to damages. Ensure that your client knows that injunctions are granted as of right and that they come at a price (involving, at least, an undertaking to the court as to damages). Interlocutory disputes generally: Avoid unnecessarily approaching the court for injunctive, or other coercive relief. Consider whether there is some self-help remedy conveniently and properly available to your client. With a view to preparing proceedings for an early final hearing at the least possible cost, consider giving undertakings or submitting to injunctions (or taking other appropriate steps) expressly without admissions. Only fight battles worth fighting. (c) Interest in property - equitable relief, in fact if not in theory, still focuses on claims made in respect of property: There may be a claim to an equitable interest in property as well as a claim in debt or otherwise at Common Law. The old distinction between Equity s exclusive jurisdiction and its auxiliary jurisdiction should be borne in mind. (d) Consider the long-term tactical implications of instituting proceedings. Consider whether undertakings (with or without security) in lieu of a receiver may be agreed, accepted or proffered. Page 6 of 7

7 An application for the appointment of a receiver may be difficult to resist, where both parties claim an interest in a business (eg a partnership business) which requires day-to-day management. An appointment should be made not merely of a receiver but of a receiver and manager. Set out the powers of a receiver and manager expressly. Costs might be reduced if the receiver/manager is empowered to retain the services of parties. (v) When applying for the appointment of a receiver (as when seeking an injunction) obtain instructions to give to the court an undertaking as to damages. A receiver is an officer of the court. He can seek directions from the court. Interference with him or his conduct of a receivership is contempt of court. If possible, a receiver should endeavour to have one or other of the parties apply for directions or to enforce receivership orders. (vi) A receiver/manager should endeavour, as soon as practicable after his appointment to take control of the property in respect of which he has been appointed. (e) (f) Section 66G Cases: consider whether parties can agree on a sale: if not then, unless there is some cross-claim relating to entitlements to the property the subject of the proceedings, can orders under s66g be opposed? F.P.A. proceedings: place evidence before the court cheaply and as conveniently as possible, remembering that in most proceedings the relief to be sought is discretionary. Hesitate before engaging in prolonged cross-examination or backyard disputes ; it may be counter-productive to do so. Consider whether, by moulding relief, the interests of various claimants can be accommodated. (g) Estoppel: Read the article by Handley QC in Bar News (Summer 1985 Edition), entitled Res Judicature or How a Final Injunction in the Equity Division Can Bar Recovery of Damages. The article focuses on the operation of principles of estoppel discussed in Port of Melbourne Authority v Anshun Pty Ltd (No.2) (1981) 147 CLR 58. Page 7 of 7