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Law of Equity
Unenacted law is made by the Courts without direct Parliamentary authority.
The unenacted law is often called 'Common Law'. Strictly speaking, the Common Law is but a part of the unenacted law - the part developed mainly in three particular English Royal Courts, called Queen's (or Kings') bench, Common Pleas and Exchequer. There were other Royal Courts which attended to other types of cases, and built up other rule systems, such as the Court of Admiralty, which created a good deal of law concerning shipping; the most important of these other courts was the Court of Chancery, which created the system called 'Equity'. Equity to some extent supplemented and to some extent competed with the Common Law, and its rules could produce different results in a particular case from those which would have been produced by Common Law rules. In the nineteenth century, the Parliament at Westminster legislated to abolish the many historical superior Courts, merging them in a single set of Courts - the High Court of Justice. In the final stage of this process (1873-5), the Judicature Act also 'merged' or 'fused' all the various kinds of unenacted law; in particular Common Law and Equity with express provision in the latter case that where the inherited rules of the two systems conflicted, those of Equity should prevail. Victoria soon adopted this reform in full. (Sawer, Geoffrey, The Australian and the Law, Penguin Books, 1972.)
In A Dictionary of English Law 1882, (P.316) Charles Sweet LLB explained equity thus:
...the most important sense of the word equity is that in which it denotes a part of the general law of England, as opposed to what is called the common law (q.v.). The distinction is purely historical, and arose from the fact that in former times the common law Courts provided no remedy in many cases where one was required. Hence the custom grew up of applying for redress in such cases either to the king in parliament or to the king in council, who referred the matters to the chancellor. In later times petitions were presented to the chancellor direct. The chancellor, being an ecclesiastic, and keeper of the king's conscience, did not feel bound to follow the rules of the common law, but gave such relief as he thought the petitioner or plaintiff entitled to "in equity and good conscience." For a long time "equity" was a indefinite standard of right and wrong, and was regarded as having the function of mitigating the rigour and supplying the defects of the common law without any limitation except the personal opinions of each chancellor; but in more modern times equity become as fixed in its principles, and as incapable of introducing new remedies without the authority of parliament, as the common law itself.
The Supreme Court in Equity ruled on matters including complicated land ownership, complex financial arrangements, execution of intestate estates where there was no apparent heir, and cases where the plaintiff was a minor. Prior to the establishment of the Supreme Court of Victoria, the Supreme Court of New South Wales for the District of Port Phillip (VA 914) was responsible for civil and criminal justice, including the hearing of Equity cases. The Supreme Court in Equity and its administration were the responsibility of the Master in Equity.
Master in Equity
The Master in Equity also held various other positions. Duties associated with these positions included:
as Registrar, preserving and lodging all documents given in evidence; attending Court; making notes on decisions and giving effect to them by settling decrees or orders
as Taxing Officer and Accountant General, arranging payment of costs in equity proceedings, conveyancing and other business of the Court
undertaking duties of the Custodian of Wills
as Master in Lunacy, being responsible for administering the estates of "lunatics, minors and fools."
Until a separation of the offices in 1859, the Master in Equity had also held the position of Chief Commissioner of Insolvent Estates. From 1867 to 1923 the Master in Equity was also known as the Master in Equity and Lunacy.
The Master in Equity, as Master in Lunacy, controlled and supervised the administration of the estates of:
persons found to be lunatic by inquisition (their estates were managed by individuals known as "committees" who were appointed by the Court following an enquiry by the Master in Equity)
persons admitted to public mental hospitals or mental homes
persons incapable of managing their own affairs, but not admitted to an institution, and who were of unsound mind. The Master was not able to assume control of the estates of persons who were not of unsound mind but who were nevertheless incapable of managing their own estates due to senility or illness.
In some areas of the Master's responsibility concerning lunatics, persons of unsound mind, and those incapable of managing their own affairs, decisions required the prior approval of a Judge.
The Public Trustee Act 1939 (No.4654) amalgamated the offices of the Curator of Estates of Deceased Persons and those functions of the Master in Equity which concerned the administration of estates of patients in mental hospitals and persons incapable of managing their own affairs. These functions were assumed by the Public Trustee (VA 719). The Master in Equity continued to supervise the granting of probates and administration and the work of "committees". The Master in Equity was also responsible for the control and administration of the Probate Office and the Registrar of Probates received direction from the Master.
In 1883 under the Judicature Act (No.761) the position of Chief Clerk of the Supreme Court of Victoria had been established to relieve the Master in Equity of those responsibilities associated with the administration of matters not related to Equity. The Chief Clerk's functions were initially to assist the Judges, to take accounts and conduct investigations. The Chief Clerk later assumed responsibility for the Equity functions of the Master in Equity who was then primarily concerned with the control and management of estates, probate and administration and other business of the Court.
The Master of the Supreme Court Act 1948 (No.5329) amalgamated the offices of the Master in Equity and the Chief Clerk of the Supreme Court of Victoria and created the position of Master of the Supreme Court (VA 2613).
Location of Records
For records of the Master of Equity see also List of Holdings 2nd edition 1985, sections 2.2.1 (Master in Equity), 2.2.3 (Registrar of Probate) and 3.4.10 (Master in Equity).