ABSTRACT
In this chapter, we examine the jurisdictional relationship between common law and the body of principles referred to as equity. This requires a consideration of the essential purpose of equity and its true functioning under the Judicature system. It is important to understand properly the jurisdictional dynamic operating between the common law and the equitable jurisdiction. Equitable principles exist in a number of different areas where the common law operates either inadequately, or not at all. The objective of the equitable jurisdiction has always been to embellish the existing law; this has often meant that equity has had to create principles not formally recognised by the common law or develop remedies to deal with particular common law inadequacies. The relationship between law and equity was intended to be one of mutuality but, as we shall see, this has not always been the case. The introduction of the Judicature system was intended to formalise an administrative union between the two bodies of law. Unfortunately, its application has tended to obscure the true character of the legal/equitable alliance. In modern times, references to jurisdictional interaction, fusion and fusion fallacy have produced a great deal of uncertainty about the actual objectives of the Judicature system and the current status of the relationship between common law and equity.
