Associate Professor Pauline Ridge - Participatory Liability and Finn’s ‘Australian Equity’ - 29 May

The Hon. Paul Finn was a Professor of Law at the Australian National University and then served on the Federal Court of Australia from 1995 to 2012. His academic and judicial work ranges across private law and public law, but he is particularly renowned for his understanding of equitable principle and equitable judicial method. The first objective of this paper is to identify the distinctive features denoting excellence – ‘hallmarks’ – of Australian equity (principle and method) that Paul Finn has espoused in his extra-judicial writing.

Equitable participatory liability has not yet been comprehensively considered by the High Court of Australia. The law is commonly formulated in terms of the ‘two limbs of Barnes v Addy’ (knowing receipt of misappropriated trust property and knowing assistance in a dishonest and fraudulent breach of trust), but this formulation fails to explain the diverse circumstances in which liability might apply and the principles that should guide the determination of liability. The second objective of this paper is to consider and critically evaluate the embodiment of Finn’s hallmarks of Australian equity in the Federal Court’s decision in Grimaldi v Chameleon Mining NL (No 2) [2012] FCAFC 6 (Finn, Stone and Perram JJ) concerning equitable participatory liability.

The third objective of the paper is to speculate upon how the High Court might embrace Finn’s vision of ‘Australian equity’ in any future case concerning the development of equitable participatory liability.