Wednesday, November 17, 2004

High Court Latest: Private Law Fans Despair!

The Third Branch has just read the latest Australian Law Journal, and we can’t help but agree with the editor—Young CJ in Eq of the NSW Supreme Court—that the High Court pays insufficient attention to private law, certainly in comparison with the House of Lords’ treatment of the same subject matter. The judge notes that “[c]riminal cases, negligence cases, immigration cases, and constitutional cases appear to take up the majority of the court’s time”, to the detriment of cases about trusts law, equity, property and the like.

While not endorsing judicial activism, the Editor writes that

The vital point is that proper development of private law, particularly equity and property law, must not be shackled to High Court (or Full Court) decisions which have passed their use-by date.

Here at the Branch, we heartily concur.