Bartlett, Will --- "Common Law in the Age of Statutes The Equity of the Statute" [2015] UTasLawRw 21; (2015) 34(2) University of Tasmania Law Review 153

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Common Law in the Age of Statutes – The Equity of the Statute

David Wright

LexisNexis Butterworths, 2015, ISBN: 9780409341300, RRP: $79.00

David Wright’s Common Law in the Age of Statutes: The Equity of the Statute cogently and convincingly argues that the Australian common law is developed by analogy to statute. Offering a principled analysis of contemporary Australian jurisprudence and legisprudence to support his position, Wright’s argument is developed by the exploration of two key trends. The first is that traditional private law obligations at common law and in equity are increasingly being directly and indirectly affected by the ambit of statutory obligations. The second trend is that Australian law is in a state of unification, with the underlying drivers of such statutory, common law and equitable unification being purposive statutory interpretation and the curial revival of the doctrine of ‘the equity of the statute’ through analogical reasoning. This second issue is, as Wright notes, more ‘contentious’,^[1] but it provides the book’s most substantial contribution to the literature and is developed throughout Part V. Wright’s thesis therefore provides a unique layered insight into the functional interaction between common law and statute in Australian law.

The book fills a lacuna in the literature,^[2] in part due to its close doctrinal evaluation of differences between common law damages and Australian Consumer Law (ACL) damages (Chapter Four), but primarily with respect to its evaluation of the doctrine of the ‘equity of the statute’. This doctrine posits that the common law can develop by analogy to statute, as the latter provides a steady guide to judges in their law-making role.^[3] In respect of this doctrine, the book draws together legal theory,^[4] Australian jurisprudence^[5] and critical analysis by commentators to provide a reasoned insight into the potential re-emergence of this doctrine in the Australian common law. In Part V, Wright weaves these threads together and argues that the analogical reasoning is in fact a bedrock principle of the ‘doctrine of continuity’, a normative doctrine which ‘suggests that the various elements of the legal system should coalesce as much as possible’.^[6] Enlivening broader legal issues of legal and equitable fusion,^[7] uniformity in Australian jurisprudence^[8] and the High Court’s constitutionally entrenched role as the final court of appeal, Wright argues that the doctrine of continuity underwrites the gradual coalescence of traditional legal obligations in the Australian legal system.

This conclusion is perhaps slightly overstated for two reasons. First, Wright places heavy reliance on a limited number of authorities,^[9] which are not unanimous decisions. Second, the distinction Part V attempts to draw between the doctrine of precedent and the doctrine of continuity seems somewhat artificial and not supported by authority.

Structurally, Wright’s logic of gradually narrowing the scope of the inquiry by using a series of cascading Parts cannot be faulted, as it effectively mirrors the process of inductive legal reasoning.^[10] Beginning with a pointed introduction in Part I, Part II then examines the current operation of the common law and statute, narrowing into a doctrinal analysis of the specific differences between damages at common law and under the ACL^[11] in Part III. Part IV further examines the ACL’s effect on traditional private law obligations, before Part V provides a reasoned defence of analogical reasoning by reference to statute. A consistent articulation throughout each Part is the repudiation of the idea that judge-made law (Wright’s preferred label for the common law and equity) and statute are ‘oil and water’,^[12] which is an analysis that finds curial support.^[13]

Addressing the first key issue, Chapter Four analyses the differences between the tests for causation at common law (contract and tort) and the causation tests under the ACL. Wright illustrates how the operation and effect of the ACL has widened the scope of the tests, enabling litigants to be able to recover in respect of pure economic loss for instance.^[14] For example, Wright takes a strong position against curial generalisation of common law damages perfectly equalling loss, arguing that this is ‘extremely dangerous’^[15] as it would render common law damages effectively redundant, in spite of the High Court’s attempts^[16] to prevent the tort of negligence subsuming other torts.

Chapter 11’s detailed analysis of analogical reasoning addresses the second key issue of unification and is Wright’s most important contribution to the literature. Initially this is due to Wright’s deployment of comparative jurisprudence which has used analogical reasoning to imply a term into a service contract,^[17] which sets a precedent that could be followed in Australia. Most instructive however is the synthesis of relatively recent Australian jurisprudence on this point.^[18] Wright clearly articulates the effect of this jurisprudence and cites later obiter dicta^[19] of the High Court in support of this fundamental contention that analogical reasoning is becoming more prevalent in Australia. Chapter 11 then provides a necessary counterpoint to this position however by enumerating limitations which act as constraints on any potentially abrupt changes in the common law precipitated by analogical reasoning. Wright derives three specific limitations (primarily from Esso) on analogical reasoning: whether there is a discernible legislative policy, whether that policy is part of a steady trend towards a particular conception of the public interest, and whether that trend is widespread across Australian jurisdictions.

The book’s most prominent shortcoming lies in its somewhat myopic selection of only the ACL to provide illustration of the effect of legislation on the common law and equity in Parts II and III. Wright acknowledges that ‘many other statutes could have been selected’,^[20] but does not footnote this statement to provide examples. The overall tenor of the book’s argument would have been strengthened by reference to further instances of the effects of statute on contractual and tortious obligations. For example, discussion of statute’s effect on the law of restitution in Australia could have provided further useful illustration of the unification of the private law of obligations.

Wright’s book provides a reasoned insight into the potential unification of Australian law, with its close comparative analysis of the ACL and common law obligations filling a lacuna in the literature. Despite Wright’s acknowledgement of the contentious nature of his argument, the analysis and exploration of the equity of the statute doctrine and the concept of analogical reasoning is an original contribution to the discourse on Australian private law.

Will Bartlett^[*]

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^[1] David Wright, Common Law in the Age of Statute: The Equity of the Statute (LexisNexis, 2015) 156.

^[2] See, eg, J Beatson, ‘The Role of Statute in the Development of the Common Law Doctrine’ (2001) 117 Law Quarterly Review 247; S Gageler, ‘Common Law Statutes and Judicial Legislation: Statutory Interpretation as a Common Law Process’ [2011] MonashULawRw 17; (2011) 37 Monash University Law Review 1; A S Burrows, ‘The Relationship between Common Law and Statute in the Law of Obligations’ (2012) 128 Law Quarterly Review 232.

^[3] W H Loyd, ‘The Equity of the Statute’ (1910) 58 University of Pennsylvania Law Review 76, 82.

^[4] R Pound, ‘Common Law and Legislation’ (1908) 21 Harvard Law Review 383; P Birks, ‘Equity in the Modern Law: An Exercise in Taxonomy’ (1996) 26 Western Australian Law Review 1.

^[5] See Adeels Palance Pty Ltd v Mourbarak; Adeels Palace Pty Ltd v Bou Najem [2009] HCA 48; (2009) 239 CLR 420; Burke v LFOT Pty Ltd [2002] HCA 17; (2002) 209 CLR 282; Esso Australia Resources Ltd v Commissioner of Taxation (Cth) [1999] HCA 67; (1999) 201 CLR 49.

^[6] Wright, above n 1, 156.

^[7] A Mason, ‘Fusion’ in S Degeling and J Edelman (eds), Equity in Commercial Law (2005) 11; M Tilbury, ‘Fallacy or Furphy? Fusion in a Judicature World’ [2003] UNSWLawJl 31; (2003) 26 University of New South Wales Law Journal 357, 637; A Mason, ‘The Place of Equity and Equitable Remedies in the Contemporary Common Law World’ (1994) 110 Law Quarterly Review 238.

^[8] Lange v Australian Broadcasting Corporation [1997] HCA 25; (1997) 189 CLR 520, 564 (Brennan CJ, Dawson, Toohey, Gaudron, McHugh, Gummow and Kirby JJ).

^[9] See fn 13.

^[10] Wright warns against the dangers of deductive, or ‘top-down’, legal reasoning at 5. For a strong curial statement supporting this logic see: Lumbers v W Cook Builders Pty Ltd (in Liq) [2008] HCA 27; (2008) 232 CLR 635, 662 [78] (Gummow, Hayne, Crennan and Kiefel JJ).

^[11] Competition and Consumer Act 2010 (Cth) sch 2 (‘ACL’).

^[12] Wright, above n 1, 11.

^[13] Adeels Palance Pty Ltd v Mourbarak; Adeels Palace Pty Ltd v Bou Najem [2009] HCA 48; (2009) 239 CLR 420; Burke v LFOT Pty Ltd [2002] HCA 17; (2002) 209 CLR 282; Esso Australia Resources Ltd v Commissioner of Taxation (Cth) [1999] HCA 67; (1999) 201 CLR 49.

^[14] Marks v GIO Holdings Australia Ltd [1998] HCA 69; (1998) 196 CLR 494.

^[15] Wright, above n 1, 36.

^[16] See, eg, Barclay v Penberthy (2012) 246 CLR 258.

^[17] Wong Mee Wan v Kwan Kin Travel Service [1996] 1 WLR 38.

^[18] Tasita Pty Ltd v Sovereign State of Papua New Guinea (1991) 34 NSWLR 691; Adelaide Steamship Co Ltd v Spalvins [1998] FCA 144; (1998) 81 FCR 360.

^[19] Gifford v Strang Patrick (2003) 214 CLR 269, 300 [83] (Gummow and Kirby JJ).

^[20] Wright, above n 1, 15.

^[*] Fourth year BA/LLB student at the University of Tasmania, member of the University of Tasmania Law Review editorial board and co-student editor of the Journal of Law, Information and Science in 2015.