Latin smackdown

It is unnecessary to recount the facts of Nicholls v Michael Wilson and Partners Limited [2010] NSWCA 222.  It is sufficient to observe that Einstein J, having determined that binding authority prevented him from awarding "exemplary damages" for breach of an equitable obligation, nonetheless decided to add a cool $4 million to the award of what was otherwise assessed as compensatory damages.

On appeal from that decision, Young JA had this to say:

In the instant case, the primary judge added $4,000,000 to his award for equitable compensation under the guise of being robust and also because of the alleged “principle” which the primary judge expressed as nullus commodum capere potest de injuria sua propria (no one can obtain an advantage by his own wrong).

It is odd for the primary judge to have chosen Latin to express this “principle” and the fact that Latin was used disguises the fact that there probably is no such principle. I say “probably” as little argument was actually addressed to this matter in submissions.

Apart from the savagery with which this rebuke was delivered, it is also a little odd and, according to Young JA’s own writings, incorrect. 

Justice Young is a well-known equity lawyer and somewhat of a pedant and a stickler.  Indeed, he is one of the authors of the latest Australian text on equity jurisprudence, called On Equity.  Page 202 of that text refers to the maxim “equity will not allow a person to take advantage of his or her own wrong”, which is then discussed under the heading "Profiting from one’s own inquity or wrongdoing” on the following page. 

The authority referred to by Young JA in his textbook is the decision of the NSW Court of Appeal in Ruthol Pty Ltd v Mills in which Sheller JA undertook a comprehensive analysis of the “maxim”.  At first instance in that case Palmer J had referred to “the principle of the common law which deprives a wrongdoer of the advantage of his or her wrongdoing” and continued on to refer to “that principle” as being explained by Coke in the 17^th century under the maxim “nullus commodum capere potest de injuria sua propria”.  He then noted that equity applies “the principle” because equity follows the law.  No doubt is cast by Sheller JA on the description of the maxim as a “principle”.  Nor did Young JA’s son, who appeared as counsel in the appeal in that case, challenge the existence of the maxim, or the description of it as a “principle”.

One other authority discussed in relation to this maxim in Young JA’s textbook is Beneficial Finance Corporation Ltd v Multiplex Constructions Pty Ltd, one of Young JA’s own decisions as a puisne judge.  In that case (at page 534) his Honour records that “it has been argued before me that there is a corresponding common law principle which flows from the maxim that no-one can take advantage of his or her own wrong.” 

His Honour then records: “THERE IS NO DOUBT THAT SUCH A PRINCIPLE EXISTS”.