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39 Sydney L. Rev. 1 (2017)

handle is hein.journals/sydney39 and id is 1 raw text is: 







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

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