Abstracts Law

Legal argument and the separateness of equity in New South Wales, 1824-1900

by Justine Eloise Rogers

When New South Wales was on the verge of adopting a judicature system by the Supreme Court Act 1970 (NSW), Jacobs J described the move as 'a great leap forward to 1875, 1 referring to the year that England had adopted the last of its Judicature Acts. The judicature system is defined as the 'system of administration of common law and equity ... under which common law and equitable matters may be heard by the same court.' England introduced this system in 1873 in order to, amongst other things, end the system of separate courts of common law and equity. The merits for the change were that consolidation would put an end to all conflicts of jurisdiction, and no suitor could be defeated for commencing a suit in the wrong court. Thereafter, the administration of justice passed to a single court, the High Court of Justice. But why did New South Wales even need to introduce a Judicature Act in 1972? Back in 1823, the Supreme Court of New South Wales was vested by the New South Wales Act (Act 4 Geo IV c 96) with jurisdictions both at common law8 and in equity. According to certain measurements, the circumstance of a single court with both jurisdictions meant that New South Wales possessed the unified system that would be achieved in England fifty years later. The simple explanation is that in the Supreme Court of New South Wales, at some point between 1824 and the end of the nineteenth century, there commenced a practice akin to England's separate courts scenario. Equity moved away from common law. The practice developed and was entrenched despite the vast reform in the mother country. Assuming the words of the New South Wales Act 1823 promulgated a judicature system, if the overall judicial practice followed a different course, how was the practice justified? In other words, if there was a cleft between law as a piece of legislative text and law as procedure, tradition or custom, was it legitimate'?