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The Price of Coherence in
Estoppels
Jessica Hudson*
Abstract
Various reform proposals have been suggested in respect of common law
estoppels and equitable estoppels in the pursuit of coherence between doctrine
and norm. Before any decisive steps are taken, it is important to be sure of the
true normative foundations informing common law estoppels. This article offers
an alternative account of those foundations, with a view to arguing that within
the realm of estoppels, coherence is best served by a rational separation of the
categories of estoppels, rather than unification. Common law estoppels and
equitable estoppels do not share a common purpose or themes upon which a
unified doctrine of estoppel can be built. This article concludes by exploring the
implications arising from maintenance of the division between the categories of
estoppels, including the control mechanisms that limit the operation and effect of
common law estoppels and, in particular, estoppels in pais.
I Introduction
Law should be coherent.' This article understands coherence2 as the alignment
between an individual doctrine of law and its underlying rationale(s).3 Coherence in
LLB/BA (UNSW), BCL (Oxon), Senior Lecturer, UNSW Law. I am very grateful to Elise Bant,
Simone Degeling, Matthew Harding, Ben McFarlane, Andrew Robertson, Philip Santucci, Peter
Turner, Greg Weeks and Sarah Worthington for their assistance in earlier drafts of this article and
for the helpful comments of the anonymous referees. All errors remain my own.
How coherence is achieved is a different matter that may be the subject of debate, but lies beyond
the scope of this article, see, eg, Sullivan v Moody (2001) 207 CLR 562, 576 [42], 579-80 [50], 581
[55] (Gleeson CJ, Gaudron, McHugh, Hayne and Callinan JJ); Agricultural & Rural Finance Pty Ltd
v Gardiner (2008) 238 CLR 570, 602 [100] (Gummow, Hayne and Kiefel JJ); Equuscorp Pty Ltd v
Haxton (2012) 246 CLR 498, 513 [23], 523 [45] (French CJ, Crennan and Kiefel JJ); McFarlane v
Tayside Health Board [2000] 2 AC 59, 83 (Lord Steyn), 108 (Lord Millett); Ernest J Weinrib,
The Idea of Private Law (Harvard University Press, 1995) 8-14, 32-6; Neil MacCormick, Legal
Reasoning and Legal Theory (Clarendon Press, 1978) 152; Barbara Baum Levenbook, 'The Role of
Coherence in Legal Reasoning' (1984) 3(3) Law and Philosophy 355, 360; Andrew Burrows, 'The
Relationship Between Common Law and Statute in the Law of Obligations' (2012) 128 (April) Law
Quarterly Review 232, 233; Elise Bant, 'Statute and Common Law: Interaction and Influence in Light
of the Principle of Coherence' (2015) 38(1) University of New South Wales Law Journal 367,
367-9; Elise Bant and Michael Bryan, 'Fact, Future and Fiction: Risk and Reasonable Reliance in
Estoppel' (2015) 35(3) Oxford Journal of Legal Studies 427, 430, 452.
2 For an account of the different forms of coherence and its role in private law, see, eg, Andrew
Robertson, 'Constraints on Policy-Based Reasoning in Private Law' in Andrew Robertson and Tang
Hang Wu (eds), The Goals of Private Law (Hart Publishing, 2009) 261; Keith Mason, 'Strong
Coherence, Strong Fusion, Continuing Categorical Confusion: The High Court's Latest
Contributions to the Law of Restitution' (2015) 39(3) Australian Bar Review 284, 296.
3 See also Australian Financial Services & Leasing Pty Ltd v Hills Industries Ltd (2014) 253 CLR 560,
623-4 [153] (Gageler J) ('Australian Financial Services & Leasing'). Outside estoppels, see](ViewImageLocal?handle=hein.journals/sydney39&div=1&collection=&method=preview&ext=.png&size=3)
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