Statutory remedies and equitable remedies
Dietrich, Joachim, and Middleton, Thomas (2006) Statutory remedies and equitable remedies. Australian Bar Review, 28 (2). pp. 136-170.
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Most spheres of life are now regulated by statute. Many such statutes give courts both specific and wide-ranging general remedial powers in contexts where, potentially, general law, mainly equitable, remedies also apply. This article seeks to explore the relationship between statutory remedial schemes contained in such Acts as the Trade Practices Act, Corporations Act and ASIC Act, and remedies at general law. A number of possibilities may arise. Statutory remedies may abrogate general law remedies entirely or in part, or may be alternative to general law remedies. In many cases, the relationship between the general law and statutory remedies is not clear. Whichever is the case, many important questions arise: Are the statutory remedies broader or narrower in scope than similar equitable remedies? What are the practical advantages and disadvantages of the different remedies? Do the statutory remedies help our understanding of, or influence the development of, equitable remedies? Do equitable concepts continue to play a role in shaping the statutory remedies (eg, are broad injunctive powers subject to equitable limits?) Where statutes are silent as to the meaning of key concepts, are equitable or common law approaches to remedy more relevantly applicable? Alternatively, should those concepts be interpreted in light of the regulatory objectives being pursued by the regulator, and general law approaches be disregarded where the technical rules inherent under those approaches frustrate the achievement of the regulatory objectives? Given the predominance of statute, these are important questions that will shed light on the ongoing relevance and importance of equitable remedies, and on the ongoing debates about fusion, remedial discretion and taxonomy. Conversely, the uncertain operation of equitable remedies suggests the importance of legislation expressly spelling out the relationship of equitable remedies to a particular statutory remedy.
|Item Type:||Article (Refereed Research - C1)|
Reproduced with permission from LexisNexis. Published in Australian Bar Review. Dietrich, Joachim, and Middleton, Thomas (2006) Statutory remedies and equitable remedies. Australian Bar Review, 28 (2). pp. 136-170
|Date Deposited:||17 Oct 2009 23:36|
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