Melbourne Law School - Theses
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ItemFusion development between law and equity( 1994)This thesis attempts to present a structured definition of the concept of fusion in a modern legal environment. It examines the forces and influences which have encouraged and shaped fusion developments and goes on to consider the manifestations of actual and potential fusions occurring in a variety of different legal and equitable doctrines. The recognition and acceptance of fusion does not necessarily signify the automatic destruction of all jurisdictional distinctions between law and equity and it is hoped that a systematic analysis of what fusion refers to and how it is evidenced within our legal infrastructure will allay this fear. Fusion is literally defined as a close union of things. The intimacy of this union is variable; it can range from a complete blending of two separate objects to a close interaction between those objects. When considering fusion in the context of the growing intimacy between the common law and equity jurisdiction, the same principles apply. There are different measures of fusion which are continually occurring between legal and equitable doctrines and not all fusion involves a complete meltdown of jurisdictional distinctions. Some fusion simply encourages a change in attitude or approach to a principle. This sort of fusion is an interactive rather than a merging fusion because it influences related doctrines instead of subsuming them. Some of the main jurisdictional difficulties encountered within a modern Judicature system are increasingly being addressed through fusion developments. Common concerns experienced by the courts include the perpetuation of doctrinal and discretionary inconsistencies between law and equity which are outdated and unnecessary and the artificial imposition of jurisdictional constraints in the application of remedy. Fusion can offer a rationalised, interactive alternative to strict jurisdictional segregation thereby providing a viable method for the resolution of these concerns. The difficulty in implementing fusion stems, however, from a lack of understanding about the nature of consequences of the concept. If fusion is constantly perceived to be an absolute merger rather than a discrete integrating process then inevitably any reference to fusion will be considered radical and unjustified. (From Introduction)
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ItemLegal professional privilege: its rationale and exceptions( 1984)The object of this thesis is to critically examine the rationale of legal professional privilege and its common law and statutory exceptions. It is contended that the effect of the privilege in excluding relevant and otherwise admissible evidence is justifiable so long as the privilege is applied consistently with its underlying rationale and is closely confined by its exceptions. The traditiona1 rationale of the privilege and the 'lawyer's brief' theory are discussed. The approach of the High Court of Australia to the privilege is analysed in light of recent decisions. It is noted that the privilege is no longer a mere rule of evidence but a general and substantive principle. An important aim in examining the common law and statutory exceptions to the privilege is to consider the extent to which the exceptions can be reconciled with the policy of the privilege. Some common law exceptions have yet to be recognized in Australia. The third party exception, however, which appears to be accepted in this country, conflicts with the rationale of the privilege and should be abolished. With regard to the statutory exceptions, provisions expressly abrogating the privilege are rare. There is also legislation which may arguably override the privilege by necessary implication. The principles applied by courts in construing such legislation are discussed. The increasing regulation of society coupled with the vesting of wide investigative powers on administrative officers have posed a major challenge to the continued existence of the privi1ege. It is necessary that the privilege be preserved. The functioning of our legal system depends on protecting the freedom of communication between legal advisers and their clients.