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To say that equity seeks to assist the law rather than create it implies that equity is not a form of law on its own. For many years, the argument about the relationship between common law and equity has created a highly polarized situation in the academic world of law. There are those that believe that equity and common law can be combined, those that disagree with this position and those that identify the two as entirely different from each other.
After the 1873 Judicature Act was enacted, legal experts began having issues determining whether the statute had facilitated the fusion of equity and common law. The impact of fusion of these two aspects of law would be the creation of legal remedies that applied to equitable rights. However, those that hold a different view hold that the Act did not intend to create such a fusion.
The Act seems to advocate for the fusion of the administrative function of both common law and equity. Common law and equity are very parallel. They work well hand in hand but can never merge.
This paper is centered on looking at the equity-common law relationship in three perspectives: to merge equity and common law there would be need for the creation of a statute that cements such a relationship, merging the two will create a shift from the foundations of both common law and equity, and third that the merge would lead to an inconsistent treatment of cases.
Impact of the Judicature Act
One of the issues that was attributed to the Judicature Act was whether it allowed for common law to apply equitable remedies. Notably, that the fusion was not limited to remedies but to case law as well which recognizes that equitable defenses can be used to remedy a common law dispute. For instance, acquiescence and laches can be relied upon in a claim for breach of copyright which is classified under common law. One argument is that equity is not meant to create law or destroy it but merely supplement it.
There are a number of international cases that have remedies which required the fusion of common law and equity. In the case of Aquaculture Corporation v NZ Mussel Company Limited, the Court of Appeal awarded exemplary damages for breach of confidence where the conduct of the defendant was so contemptible that compensation in the form of damages would not be adequate enough.
There is also case law in Canada that has applied the same rationale of fusion of equity and common law to provide a sufficient remedy. Those that dissent with the position that the two jurisdictions can be fused have influenced precedent where common law is applied. In Harris v Digital Pulse Pty Ltd (Harris) the New South Wales Court of Appeal reversed the decision of the trial court which determined that the defendant’s should pay equitable compensation or if the plaintiff so preferred, they could account for profits.
The trial judge further made an award of exemplary damages against the defendants for the breach of their fiduciary duty. Spigelman CJ and Heydon JA determined that the trial court did not have the power to award exemplary damages for the breach of the fiduciary relationship that the defendant had. Majority of the Court of Appeal Bench chose this position based on the argument that equitable relief does not apply to penal objectives. However Mason P held a different position from the other two reasoning that legal policies which resonated with a particular remedy in equity and applied to tort required the award of exemplary damages to remedy the breach of a fiduciary duty.
The other argument is that the purpose of the Judicature Act was to merge the procedures of both equity and old common law thereby doing away with the common law system of pleading as well as old tribunals; the latter of which would be replaced by a single tribunal that had jurisdiction over equity and administrative law. It was also meant to establish the power of equity over common law in cases where the two aspects of law were in conflict. The impact therefore would not include a change in the substantive rules for both jurisdictions but only to create a single tribunal that would have jurisdiction to apply both common law and equity. This therefore defeats the argument that the two jurisdictions were fused into one.
Historical distinctions of Equity and Common law
Equity and Common law have been in existence from as far back as the Seventeenth century. This is one of the reasons why the argument that the two cannot be fused into one jurisdiction persists to date in spite of the changes that the legal system has experienced over time. Those that hold this position hold fast to the principle that equity has had a more superior position in law since the early seventeenth century.
Fusion of equity and common law is therefore regarded as impossible as it would disconnect equity from its historical foundations. This approach was applied in Harris v Digital Pulse where the decision by the trial court to award exemplary damages for the breach of a fiduciary duty was reversed by the Court of Appeal. In his dissent, Mason P. determined that the decision by the majority of the bench overlooked the evolving nature of the law and the need to be able to provide answers to solve present legal problems that are in no way related to historical doctrines that have been passed down from one generation to another.
Therefore while equity was meant to substitute common law where it seemed to lack remedies, it by no means implies that applying it in a case where common law remedies were insufficient would result in common law being sidelined or overruled in any way. The purpose of equitable remedies is to supplement common law to ensure that no gaps exist in common law[]. In Aquaculture Corporation v New Zealand Green Mussel Co. Ltd, the court of appeal showed that it is possible to apply common law remedies for the breach of an equitable duty therefore why should it not be possible to apply an equitable remedy to a duty identified under common law? The purists narrow it down to one thing; the process.
The courts of common law have the power to prescribe a common law remedy for the breach of an equitable principle but lack the jurisdiction to prescribe an equitable remedy. The assumption however would be that since the court administering both the equity and common law systems has been merged, it would be occur for them to apply either of the above approaches.
Notably, the courts seem to lean towards a narrow approach in as far as the application of common law remedies to a breach in an equitable principle[]. This narrow approach is meant to preserve the historical foundations that separate equity and common law. However, the result is that the remedies available are unsatisfactory in as far as the tortious breach of a fiduciary duty is concerned. Though the facts of the case showed that the defendant was at contributory fault, Kirby J was unwilling to accommodate the unifying concepts of Common law with respect to contributor negligence and the equitable remedies that applied on the premise that this would create a disconnect with the historical foundations that distinguish the two concepts.
The slippery slope effect in the event that the court chose this approach would be to create more challenges for judges in future when dealing with cases where similar fact in law were in issue. The result is courts giving an unsatisfactory response which does not match up to the standards of justice that equity is meant to encourage. The concept of fusion of common law and equity is meant to prevent situations where the law is unsatisfactory or silent on issues that require the courts to present a remedy that ensures that fairness is maintained.
The power of the courts to create a fusion of equity and common law
Heydon JA and Sir Mason P lean towards the possibility of fusion of the doctrines of equity and common law through the creation of statute with that particular objective in mind[]. Both judges seem to agree on the position that the legislation is what is capable of creating a fusion of the two doctrines. Heydon JA opined that awarding a common law remedy in support of an equitable principle is only possible if legislation specifically authorizes such a remedy.
The argument by purists seems to imply that the courts lack the jurisdiction to handle issues where fusion is bound to be a question that arises and that they lack the statutory authority to determine that such fusion exist. This supports their core objective which is to ensure that the courts do not create ‘bad law’. Purists also hold that fusion of the two jurisdictions will lead to importation of foreign maxims and applied in cases where they do not fit. Burrows however argues that fusion cannot be entirely avoided in instances where the two jurisdictions do not co-exist such as monetary remedies for civil wrongs. He holds that fusion is not altogether a bad thing in cases where it will result in a more beneficial outcome that is fair for both parties.
The arguments for and against fusion have their weaknesses. one of the notable factors that we the audience are made aware of is the dangers that are associated with readily altering a remedy as it can lead to the fusion of the rights that underpin those particular remedies.However, given the ever evolving nature of the law, Ashburner’s metaphor of the two jurisdictions having a parallel relationship that ensured no mingling is too restrictive and cannot stand in the 21st century. It is inevitable that the courts will have to face other cases in future that challenge their interpretation of the fusion fallacy. This is all the more reason why a conscious effort should be made to establish rules and remedies that allow the jurisdictions of common law and equity to merge where it is clear that the most appropriate remedy can only be achieved through such an approach.
Conclusion
The Judicature Act of 1873 did not give a green light for fusion of equity and common jurisdictions. After the 1873 Judicature Act was enacted, legal experts began having issues determining whether the statute had facilitated the fusion of equity and common law. The impact of fusion of these two aspects of law would be the creation of legal remedies that applied to equitable rights. However, those that hold a different view hold that the Act did not intend to create such a fusion. The Act seems to advocate for the fusion of the administrative function of both common law and equity.
However, this does not mean that such a fusion cannot occur in the future. The pre-occupation of many common law jurisdictions such as Australia with the history and the fear that fusion will create a disconnect with the historical foundations of these two doctrines lacks substance especially when considering the views of Professor Tilbury who identifies the ever evolving nature of society and therefore the need for the law to be flexible enough to change even if this translates to the intertwining of equity and common law jurisdictions.
Notably, the courts seem to lean towards a narrow approach in as far as the application of common law remedies to a breach in an equitable principle. This narrow approach is meant to preserve the historical foundations that separate equity and common law. However, the result is that the remedies available are unsatisfactory in as far as the tortious breach of a fiduciary duty is concerned. Rather than focusing on where the laws came from, the courts should concern themselves with what can be done with the rules to ensure that they remain relevant in an ever changing society.
References
Burrows, A., We do this at Common Law but that in Equity, Oxford journal of Legal Studies, Vol. 22, No. 1, 2002, p.1-16
Burrows, A., Fusing Common Law and Equity: Remedies, Restitution and Reform (2001)
Dietrich, J., Attempting Fusion: Professor Worthington’s Equity and its Integration with the Common Law, Common Law World Review, Vol. 34 No. 1, 2005, p.62-84
Edelman, J. and Degeling, S., Fusion: The Interaction of Common Law and Equity, Australian Bar Review, Vol. 25, No. 3, 2004, p.195-204
Hughes, D. A., A Classification of Fusion after Harris v Digital Pulse, University of New South wales Law Journal, Vol. 29, No.6, 2006
Lynch, A., Equitable Compensation for breach of Fiduciary Duty: Causation and Contribution – The High Court Dodges a fusion Fallacy in Pilmer, Australian Bar Review, Vol.29, 2001, p.173-190
It has been referred by many probably as one of the most lucrative insider trading scheme that has ever been charged. The criminal indictment shows that the former SAC Capital advisors Hedge fund portfolio manager Mathew Martoma committed a lot of securities fraud as well as conspiracy when he decided to trade security based on material, non-public information which concerned the testing of an experimental Alzheimer’s disease drug that is known as bapineuzumab. Therefore, as a result of this illegal trading, Mathew dumped the stock due to the drugs ineffectiveness and the hedge fund realized profits and consequently avoided significant losses. The Company did not have effective internal controls for controlling fraud.
Internal control is the combination of the activities, arrangements, feelings, policies, structures, resources and endeavors of the people of an association working together to provide sound assurance that the association will achieve its goals and mission In order for the management to handle and safeguard an organization’s resources and assets, it designs methods and procedures to be followed by the employees. Internal controls are, therefore, employed by management to prevent the organization against loss due to fraud, waste, errors, and abuse. There are two primary goals of internal controls. The first one is to ensure that the organization develops and maintain timely, reliable financial and operational reports. The other goal is to promote efficient and effective operations, which are economical and orderly.
The Sarbanes-Oxley Act was enacted in 2002 by U.S. Congress to protect American investors from becoming the victims of fraudulent accounting by corporations (Anand, 2008).
The mandated requirements for legal compliance and the requirements which apply to the Mathew Martoma case.
The requirements for legal compliance involve these areas; protection of consumers, promotion of safety and equity, regulation of competition, protection of the environment and the incentives to encourage compliance in organizations.
In regulating competition, one must first consider the effects of rivalry and competition in business. In the Mathew Martoma case, the main focus that he had was to grow and gain entry into new markets with the profits that he had acquired illegally. It became obsessed with increasing profits at the expense of ethics, he used information that was not public and colluded with the drug company’s officials in order for his hedge fund to gain more money and avoid losses. The company had a role to play in ensuring that they acted in the best interest of their customers.
The Sarbanes-Oxley Act was meant to help in reducing the chances of any professional auditor failing to notice irregularities in accounting. It reinforces the supervision of financing irregularities thus improving in-house control. It also made it possible for independent consultants or companies to oversee accounting practices and ensure their correctness. It also strengthened the independence of auditors and encouraged and maintained financial admission. This would lead to the protection of the people who do the auditing (Ferrell, 2011).
The Sarbanes-Oxley Act also increased the penalties for legal and ethical misconduct. Giving false and misleading information in the accounting records could lead to severe criminal and monetary punishments.
One provision that could have been useful to the company is section 203 of that Act. According to the section on auditor partner rotation, auditors are supposed to the rotate the partners assigned to different clients. This ensures that the work done in the past is reviewed by a different set of eyes, thus reducing the chances of the information in the records being falsified. Such a move could have prevented the insider trading of Mathew. There could have been a red flag about how he dumped the shares too quickly.
This makes the whole process of auditing more transparent and makes it possible for shareholders and other interested parties to see all that is happening in the company. These rules and regulations would have led to a different outcome of the Mathew case, thus preventing the unethical practices.
The company that Mathew worked for failed to pay attention to the auditing practices and this led to it’s to its name being tarnished. Sarbanes-Oxley places much emphasis on auditor independence, quality and the restriction of the ability of accounting firms to provide both non-audit and audit services for same clients. It also requires periodic reviews to be carried out by the audit firms. The Sarbanes-Oxley does not interfere with the free market, as all it does is regulate companies and ensure that they all fall in line with the regulations that exist in the industry.
The importance of accounting for a business cannot be overemphasized. Financial accounting forms the backbone of any business. Businesses every day rely on accounting to make important decisions regarding the business. Accounting can simply be defined as the processes of systematically keeping financial records. Financial records are essential to business owners and stakeholders as they assess the performance of the business at a given time. Information about if the business is making a loss or profit, amount of capital or liabilities, cash flow of the business and much more can be assessed from financial records. This is what is referred to as financial reporting; it is a process of using financial records to provide business information to people who need it.
The law is not too strict on White Collar crime, there is, for this reason, a need to ensure that legislation in this field is increased and more especially that fraud that relates to Wall Street fraud. Most White- Collar crimes are not seen as criminal and if they are, the perpetrators are either given probation or small jail terms. For this reason, and the risk that they cause on a business, I would support legislation on white-collar crime. This will ensure that it decreases significantly, and the perpetrators understand the repercussions that will meet them when they engage in practice that have been banned.
International accounting bodies like IMA and IFAC are mandated in the investigation of accounting fraud and sometimes prosecution. They try to maintain a strong ethical stand by arguing that any qualified accountant should possess four major ethical qualities: One is competence, which refer to the ability of maintaining high standards and exhibit professional expertise. The second is integrity that refers to the ability of an accountant to refrain from activities that violate ethical and legal issues. The third is credibility that refers to provide information objectively, and the last is confidentiality that refers to the ability of refraining from the use of confidential data unethically (Tulsian, 2002).
In the United States, the government has formed bodies that are charged with the responsibility of protecting public from exploitation by companies and organizations. Also, these bodies are charged with a responsibility for ensuring that companies comply with the accounting regulations. These bodies include Financial Accounting Standards Board (FASB), United States Securities and Exchange Commission (USSEC), and Public Company Accounting Oversight Board (PCAOB).
However, these companies do not have enough power when it comes to regulation, and this had made white collar crime more prominent as compared to before. More accountants are facing legal issues and ethical issues in things that they do not sometimes understands. This leads to persons like Mathew to get away with crimes right under the eyes of accountants and auditors.
Accountants day to day face ethical challenges while reviewing businesses for the purpose of financial reporting. These ethical issues are brought about by a variety of factors. One of the most common factors is performance pressure. The aim of any business or organization is to succeed, and it is the work of the accountant to determine business performance (Tulsian, 2002). Accountants fall the temptation of altering financial records in order to keep up with the management prospects. Pressure from the management may at times force fraud accountants to change the business profits, liabilities or assets so as to satisfy the management needs.
Accountants also face the ethical challenge of reporting violation of accounting rules to the necessary authorities. Companies and organizations may at times a doctor financial records in order to appease stakeholders. It falls into the duty of the accountant to report such matters though there are various ethical issues associated with it as bad press, jail terms for the culprits and the accountant forming enemies within the company.
Accountants also face the ethical dilemma of omitting financial records if his or her employee tells him or her to do so. Employers at times force their accountants to omit financial records in order to attract investors. In omitting financial records, the accountant is faced with the ethical obligation of either submitting to his or her employer demands or ends the risk of losing the job (Tulsian, 2002).
In the accounting profession, every accountant should be conversant with the laws of the land so as not to land into problems with the law. As businesses today are becoming more and more complex, so is the legal part. New laws are being formulated to cope with changes that are occurring in the business sector.
Corporations have been known to tolerate fraud and doctoring financial records in order to improve their image in the stock markets. It is up to accountants to use ethical judgment so as not to conflict with the law. Most company unethical business practices are often illegal and have adverse effects on both the accountant and the company. Both the accountant and the business may be subjected to criminal and civil charges. Therefore, it is up to the accountant to ensure that the accounting methods used are as per the requirement of the accounting acceptable practice.
Omitting financial records whether intentional or not intended is a violation the law. Accountants should ensure that they have mistakenly or deliberately omitted financial records (Tulsian, 2002).
Another factor that land accountants into problems with the law is greed. Accountants who their only desire is to make money may end up ignoring ethical practices. These accountants tend to be more concentrated in the money that is entering their bank accounts rather than the organization's balance sheet. This also applies to businesses and organizations. Businesses and organizations that are interested in making money than serving the customers are bound to break the law (Tulsian, 2002). For example, businesses have been known to evade tax or break environmental regulations.
One of the legal issues in accounting is misuse of business assets. Most employers tend to use business assets for personal use. Employees will tend to ignore this behavior even though they know that the behavior is inappropriate due to fear of confronting their employers.
I agree with the Court for sentencing Mathew Martoma for nine years for collusion, this will serve as a lesson to other white collar criminals.
References
Anand, S. (2010). The Sarbanes-Oxley Act. NY: Van Haren Publishing.
Patel, Z (2010), Technology’s Impact on Financial Reporting.
Tulsian, P, (2002), Financial Accounting. NY: Pearson Education
Ferrell, L. (2011). Business ethics. Ohio: Cengage.
Tatiana Tarasoff’s parents (plaintiffs) argued that the four psychiatrists at Cowell Memorial Hospital of the University of California had a duty to warn their daughter or even them of threats that made by their patient who was referred to as Prosenjit Poddar. Poddar had expressed his intention to kill Tatiana and had confided this information to his therapist, Dr. Lawrence Moore. The therapist had warned the campus police regarding the intentions of Poddar, and the police had briefly detained him.
The court determined that there is a need for therapists to protect the public, and this is important than protecting the client-therapist confidentiality. Therefore, when it comes to dangerous persons that can cause harm to others there is a need for the therapist to protect the intended victims by either warning the victims in a direct manner or taking necessary steps in order to prevent harm (Laves, 1979).
There are major problems with Tarasoff’s decision; the first is that it requires therapists to decide how serious a threat it (Mangalmurti, 1994). However, there is no known way in which a therapist can be able to understand the extent o the threat. It is critical to understand that breaching confidentiality is a serious matter, and it can in many instances severely undermine the trust that the patients have in their therapists.
It is also essential to realize that the kind of violence that the patient intends to engage in might be extremely hard for the therapist to judge. Whether a Tarasoff warning should only apply when a patient threatens death or even serious injury is another contentious matter (Mangalmurti, 1994). This is because there is the question of whether there should be a breach of confidentiality if the patient threatens to destroy someone’s car or house.
A breach of trust is a big issue when it comes to the therapist-client relationship. It is of the essence to realize that if a the client knows that he or she cannot tell the therapist his or her thoughts because there is the danger of the police coming after him, will mean that the therapy session will not be fruitful (Roth, 1981). Therefore, there is the question of how the therapists can be able to maintain an open forum whereas at the same time taking down incriminating notes as evidence to use against their patient. Therefore, if the therapists are required to breach confidentiality, they can be said to be walking a thin line between the protection of confidentiality and the protection of the potential victim (Roth, 1981).
If the therapists do indeed decide to breach confidentiality, he or she might face a malpractice complaint from a patient that is outraged insisting that he was never serious (Laves, 1979). On the other hand, the therapist might face a death suit that is wrongful because he did not act in time. Perhaps more importantly is to understand that the Tarasoff laws might at times turn therapists into the agents of the state that are required and obliged by law to report anything that might lead to a crime happening.
There are those that argue that the case of Tarasoff was a day in the court for the law, but it was not meant to be for mental health professions. This is because if the psychologist had accepted the view of inviolate confidentiality, there is some hope that he might have been able to keep Poddar in treatment and consequently saved Tatiana’s life.
Reference
Laves, R (1979). Tarasoff vs the regents of the university of California et al - the mental health worker as expert in the prediction of violent behavior. Journal of Forensic Psychology, 7, 1, 39-54.
Mangalmurti, V. S. (1994). Psychotherapists' fear of Tarasoff: all in the mind?. The Journal of Psychiatry & Law, 22, 3, 379-409.
Roth, M. D. (1981). Tarasoff: patient privacy vs. public protection. Maryland State Medical Journal, 30, 4, 40-50.
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