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Editors --- "Book Reviews" [2004] IntTBLawRw 10; (2004) 9 International Trade and Business Law Review 243

Book Reviews

Philip Ayres, Own Dixon, The Miegunyah Press, Melbourne, 2003 ISBN o 522 850456

From time to time a great legal mind comes onto the judicial scene and Sir Owen Dixon was one of those. By the time of his death, in 1972 it was well accepted that his decisions in the High Court of Australia had shaped much of the common law world. The Chief Justice of NSW said of him:

Sir Owen Dixon possessed the most formidable legal mind in all of our (Australian) history. … [H]is particular genius for reasoning and power and clarity of expression placed him in the first rank.1

Associate Professor Philip Ayres sets out this genius of Dixon’s in commendable detail in his book, Owen Dixon, published in 2003, well described as a book of ‘profound scholarship’.[2] The book is written from the personal diaries kept by Dixon. These diaries are extensive and detailed and reveal aspects and judgments on the personalities of other major actors in his circle that are incisive and often devastatingly critical. The author skilfully allows the diaries to speak for themselves so that the reader is able to draw conclusions from the published material rather than through the author’s views of the material.

Philip Ayres is Head of English Literature at Monash University, Australia. He is not legally trained and close reading of the legal aspects of the book reflect this. However, his work brings the considerable literary skills that probably would not be found in a legal author.[3] The result is an excellent book. As Dixon spanned a long period of professional activity, in peace and wartime, in legal practice, judicial office and diplomatic roles a summary of his life is appropriate.

Dixon was born in Melbourne in 1886, his parents’ only child. His father and mother were both of English background and at the time of Dixon’s birth his father was a practising Melbourne barrister. When his father went deaf he left the bar and joined his own brother in a solicitors’ practice in Melbourne. Later, driven by bouts of depression, Dixon’s father developed a serious alcohol problem.

Dixon was educated at Hawthorn College where he shone as a scholar. During this time he found a love of the Greek classics that never left him and to which he returned after retirement from the bench. At Melbourne University he achieved outstanding results in his arts honours degree, especially in the classics. His family’s financial hardship prevented post-graduate studies at Oxford or Cambridge, which would have been the norm, and required him to go straight on to his law degree, which he obtained in 1908. His university years were ‘full of worry’[4] as his father declined in spirit, health and income. Dixon had to help the family finances by working in his uncle’s firm. He also helped care for his father during his bouts of alcoholism. Dixon swore to his mother he would never drink and nor did he.

In 1910 Dixon started at the Melbourne Bar and life was hard. However, because of his abilities he steadily gained reputation and income. Whilst at university and the junior bar, Dixon had professional contact with the people that interacted with him all his life. Robert Menzies, subsequently Victorian Solicitor-General and Australian prime minister, was his pupil. John Latham was later Commonwealth Attorney-General and Chief Justice of the High Court, appointed by Menzies, who also later appointed Dixon as Chief Justice. There were others. So it went on with a Melbourne coterie supporting each other into high office.

In 1920 Dixon married Alice Brooksbank, daughter of Reverend Hubert Brooksbank and his wife Alice. In 1922, aged 36, he took silk, by which time he was regularly appearing in the High Court. Later that year he travelled to London to appear before the Privy Council seeking leave to appeal in the Engineers case,[5] one of Australia’s major constitutional cases. In his various Privy Council cases Dixon came to know many of the leading British legal actors, including Sir Edward Pollock KC, Sir John Simon KC, WS Holdsworth (Vinerian Professor of Law) and Sir Douglas Hogg (later Lord Hailsham).

Professor Ayres’s book and the diaries go on to develop further Dixon’s career over the 1920s, including a period as an acting justice of the Victorian Supreme Court, after which he noted that judicial office was not to his liking. Despite this Dixon accepted an appointment to the High Court in 1929 (from Latham as Attorney-General), replacing Higgins J. He joined Knox CJ, Isaacs, Duffy, Powers,[6] Rich and Starke JJ (married to Duffy’s niece). He found a court where ‘everybody seemed to dislike everybody else’.[7]

Penetrating insights into the actual workings of the High Court are provided by Dixon’s diaries. Dixon’s first written judgment was for Rich J about a case on which Dixon had not sat.[8] (Rich J later transgressed proper judicial conduct even further by having the judge from whom the appeal came write a draft judgment for him.)[9] If the court was stressed as a working legal bench when Dixon joined it in 1929, it became almost dysfunctional after Evatt and McTiernan, two politicians appointed by direction of the Labour Party Caucus, joined it in 1930.[10] Dixon recorded that he wished to resign and that Starke treated them with contempt and, later, Starke ceased all communication with them.[11] Dixon’s diaries show that he was frequently critical of Evatt and over the decade (the 1930s) lost faith in his probity.[12] Notwithstanding this, in 1940, when Evatt resigned to enter politics again, he asked Dixon to prepare Evatt’s outstanding judgments ‘for propriety’s sake’.[13] Dixon had the extraordinary ability of being liked and respected by, and being able to work with, people for whom he had a low regard.

Australia went to war in 1939 in Europe, Africa and in the Pacific, along with much of the rest of the world. Dixon, who had recently returned from leave in England seeking medical assistance for the eyesight of one of his sons, offered Prime Minister Menzies his services. He was immediately appointed to the Central Wool Committee. Wool was a most important commodity in the war effort and Dixon had extensive experience having acted for many years for the Wool Board.[14]

In 1942 Prime Minister Curtin and Minister for Foreign Affairs Evatt offered Dixon the task of Australia’s ambassadorship to the USA, a vital position in the dark days of war in the Pacific and Europe. Dixon served in that post until 1944 and his diaries reveal his work with the world’s political leaders, including Roosevelt, Acheson and Churchill. He formed a close friendship with Dean Acheson that lasted for the remainder of their lives. During the war years Dixon served with great distinction as a minister in Washington in assisting the war effort and Australia’s part in it.

His head of Chancery was Alan Watt and Keith Aitkin was his assistant[15] . During these years the diaries reveal that Dixon was much hampered by Evatt’s conduct as Minister for External Affairs. Dixon reported direct to Prime Minister Curtin. The book reveals that Dixon’s daughter Elizabeth, aged 14 at the time, recorded that whilst Evatt was staying at the Australian chancery with the Dixon family Evatt ‘behaved like a pig’.[16]

In 1944 Dixon returned to Australia with Alice and his children and resumed sitting in the High Court in November.[17] He was sitting in Sydney about a year later when the final surrender was announced (15 August 1945). Later, in 1950, Dixon agreed to serve in a further diplomatic post, in this case to be the United Nations mediator in the dispute between India and Pakistan over Kashmir. His diaries reveal the enormous amount of work and travel he put into the task over some five months.[18] In this endeavour he was, like so many others, unsuccessful. On completion he returned to his judicial work in the High Court.

In 1952 Menzies telephoned Dixon to offer him the position of Chief Justice. He accepted, noting that Menzies considered that the court already had ‘two passengers’.[19] The author describes Dixon’s tenure as Chief Justice as the ‘golden age’ of the court20 and it is hard to disagree. Dixon steadily worked to bring it from a place where most members so disliked each other that they could not work together to one where the work of the court was done efficiently and harmoniously. In the view of Lord Denning, the court under Dixon ‘established a reputation which overtopped even that of the House of Lords’.[21] Never one to lack confidence, this was a view with which Dixon was in accord, as he had a poor view of the work ethic and legal abilities of many of the members of the House of Lords.[22]

It should be emphasised that the book uses many sources to detail those years and Dixon’s diaries supplement them.[23] There is no doubt that Dixon’s outstanding intelligence and industry led to his being one of the world’s dominant jurists in these years. The author develops this view and Dixon’s diaries reveal how he worked so successfully over the 12 years during which he was Chief Justice (1952–64).

Sir Owen Dixon retired from the High Court in 1964 and died in 1972 of congestive heart failure.[24] He was buried at Kew, Melbourne, beside his wife Alice (d 1971) and parents. His four children survived him.

So what conclusions can one draw from this long discursis on Dixon, his diaries and the book written by Professor Ayres. One can certainly advance the view that the book has a new and somewhat depressing view of the workings of the High Court, certainly over the years 1930–52. One can also draw out that the overwhelming positioning and scheming of many people to be appointed to the High Court, apart from Dixon, who was appointed on merit, brought them little credit. Finally, one can posit that the internal, almost closet, relationships of the Melbourne legal establishment over these years, especially between Menzies, Latham and Dixon, raise concerns about self-serving mutual admiration societies supporting each other to attain positions of high public office.

A note about the future of this treasure of legal and diplomatic diaries. There is no present plan for publication of the full diaries. If this were done it would, indeed, be a contribution to history. If Dixon’s surviving daughter, Mrs Betty Danby, would allow it, perhaps they could be published in two parts. The period of diplomacy by Dixon should be edited, if he would agree, by Professor Ayres so that he could bring his deep knowledge of the subject and his literary skills to the fore once more. The periods at the bar and on the bench, however, would best be edited by someone of legally qualified and experienced so that the nuances of the major arguments and decisions could be highlighted and developed.

In conclusion, this book Owen Dixon by Philip Ayres is a significant contribution to legal history and scholarship and the author is to be congratulated on the skill and learning with which he has presented the Dixon diaries.

Michael White

Edited by Tony Blackshiel, Coper and George Williams, The Oxform Companion to the High Court of Australia Oxford University Press, 2001 RRP $A150hb, $NS195, 804pp, ISBNo-19-554022-O

This single-volume reference work about the High Court of Australia was officially launched in Canberra on 13 February 2002 by the Chief Justice of Australia, The Hon Murray Gleeson AC, who cogently described it as ‘a monumental work on the history and role of the Court’.25 Indeed, it is a credit to Professors Blackshield, Coper and Williams – three leading constitutional scholars in Australia – that they had the perspicacity to appreciate the worth of a comprehensive and scholarly publication that examines the Court in Australian law, politics and society, encompassing the cases it has decided and the people who have been involved in its operation. Moreover, it is the first work in the 99 years since the Court commenced sitting (on 6 October 1903) that has subjected it to a sustained and contextual examination of its decisions, justices, procedure and culture, as well as its role as the third arm of the Federal Government.

The introductory material relates that Michael Coper, Professor of Law at the Australian National University, from 1994 developed the ‘ANU High Court project’, gaining the support of the Australian Research Council, the National Council for the Centenary of Federation, and the Faculty of Law at the Australian National University.[26]

The Companion has 435 expertly compressed entries, in traditional alphabetical order, totalling about 650,000 words, which have been developed from the suggestions made by more than 60 people.[27] It ranges over the entire record of the Court since Federation and is structured around themes: the development of the Court under each Chief Justice (starting with ‘the Griffith Court’[28] ); the appointment of justices29 (including appointments that might have been but did not eventuate); their judicial work/abilities (albeit at times more flattering to contemporaries than long dead predecessors); relations between the Court and the community (including politicians); summaries of its most important decisions and the development of substantive law in numerous areas of the civil and criminal law; as well as a jurimetrical analysis (jurimetrics is a branch of legal logic; concerning ‘the use of scientific methods in the study of legal matters’) of the Court’s voting pattern.[30] Also included are issues such as how the Court has been affected by liberalism,31 feminism,[32] socialism,[33] cultural diversity,34 sex[35] and sexual preferences.[36] In addition, there are accounts of various aspects of the internal workings of the Court, such as the role of associates,[37] the preparation of judgments and the fiscal responsibilities and administration of the Court. Other entries cover the Court’s strike in 1905,[38] the Chamberlain case,39 the Murphy ‘affair’ of the 1980s[40] and even the Australian movie ‘The Castle’ rates a mention.[41]

Black-letter legal analysis is dispersed with what some may consider trivia, which is nevertheless interesting and often reflects the operation of the Court in a certain milieu. There are several tables, one of which records the number of times justices of the Court – as recorded in the Commonwealth Law Reports – appeared as counsel before the Court.[42] At the head of the list is Sir Hayden Starke with 211 appearances – 141 times more than the present Chief Justice (Gleeson). However, Sir Hayden’s numbers can be seen as inflated if reference is made to the original jurisdiction of the Court when it dealt with matters (eg tax, intellectual property) that, from 1976 onwards, now fall within the purview of the Federal Court. And while it does not take into account cases that did not make the Commonwealth Law Reports, it is nonetheless interesting and provides a degree of insight into the workings of the Court.

Such entries demonstrate the fecundity of the minds that contributed to the project, which features the informed commentary of 225 of Australia’s leading experts on all aspects of the Court’s work. While the largest single group of authors consists of law academics, the editors have widened the scope to include a number of current and ex-High Court justices, judges, solicitors-general, legal practitioners, journalists and even an ex-prime minister. Of these, many contribute their personal insights. For example, the first entry under ‘W’ is for Sir Cyril Ambrose Walsh (1909–73), the son of a labourer who later became a justice of the High Court and a privy councillor.[43] The entry was composed by John Kennedy McLaughlin, a master at the Supreme Court of NSW, who served as Sir Cyril’s associate, thereby enabling him to provide a unique insight into the latter’s habits and personal life.

Moreover, such entries tell us a great deal not only about the make-up of the Court at certain times but about social mobility in Australian society. While E Neumann and F Dominello, the authors of the entry ‘Background of Justices’,[44] contend that the justices of the Court are products of the upper-middle-class, thereby suggesting (despite a disclaimer) a linkage between class and position, of the present Justices, none comes from a family with a background in law (as Gleeson CJ pointed out at the Companion’s launch). Indeed, at a time when class structure was more firmly entrenched in Australian society, Sir Cyril’s rise suggests that appointment based on merit, rather than class, is a stronger analytical component when exploring the selection process. A connection between class and appointments should not be assumed. In view of the Companion’s social commentary, an entry worthy of inclusion would have been the social conditions under Prime Minister Menzies that contributed to the make-up of the present Court.

Nevertheless, very little of relevance or interest concerning the Court seems to be absent. A challenge for those less directed readers of the Companion will be the lack of narrative flow, making it necessary to draw together the snippets of information which, in combination, reveal the history of the Court during the 20th century. On the other hand, what is interesting is the overlap between the various subjects that have been superbly cross-referenced in the text. It is possible to contrast what different contributors have to say about the same or similar topics. For example, contrast ‘Joint Judgments and Separate Judgements’[45] with ‘Dissenting Judgments’,[46] ‘Collective Responsibility’47 and ‘Concurring Judgements’.[48]

Of course, many entries are based on interpretations, a great deal of which is open to debate. Yet this is not surprising in a work that does not merely present information, but analyses, criticises and reflects, thus providing new insights into the role of the Court. Indeed, the editors point out that the publication is not authorised by the Court, with most of those mentioned who are still alive having no opportunity to read in advance what was said about them.

The broad treatment of topics gives the Companion a scope far beyond the professional concerns of legal practice. Hence this work will not only benefit lawyers and law students, but also prove to be a valuable resource for journalists, political scientists, historians and those interested in the history and workings of the Court. Indeed, it goes a long way to filling the need for a wider and deeper understanding of this institution and the part it plays in the life of the nation. While in many ways it is rivalled by The Oxford Companion to the Supreme Court of the United States of America, it documents the development of a uniquely Australian, and truly independent, legal system. On the eve of the High Court’s centenary, this book deserves to be regarded as the definitive compendium.

Michael R Young

Ysaiah Ross and Peter Macfarlane, Lawyers’ Responsibility and Accountability Cases, Problems and Commentary, (2nd edn) (LexisNexis Australia: Butterworths, 2002) pp i – xxix, 1 – 427 ISBN 0 409 31709 8
Gino E Dal Pont, Lawyers’ Professional Responsibility in Australia and New Zealand, (2nd edn) (Sydney: LBC Information Services, 2001) pp i – cxxi, 1 – 658, ISBN 0 455 21754 8

Recent important decisions and changes in the area of lawyers’ professional and ethical obligations and responsibilities have prompted second edition publications of two popular books. Both books highlight the need to be aware of the ethical framework in which to practise and will assist law students and practitioners in defining and resolving questions of professional legal ethics and responsibility.

Lawyers’ Responsibility and Accountability provides a comprehensive discussion of cases, problems and commentary on professional responsibility in Australia. The authors intend this book to fill a gap in teaching a course on professional responsibility. Ross and Macfarlane suggest the text is to be used in conjunction with Ross, Ethics in Law: Lawyers’ Responsibility and Accountability in Australia, (2nd edn) (Sydney: Butterworths, 1998), but also point out the book can be used on its own. This edition contains four parts. The first part contains useful chapters on the relationship of lawyers to ethical problems and outlines codes of ethics adopted by the New South Wales Law Society. The second part concerns structure and regulation and identifies the debate over what is the best structural arrangement for lawyers. Chapters 5 and 6 then examine the regulation of admission to the profession and the various powers available to discipline lawyers respectively.

The third part defines the lawyer-client relationship and contains chapters on the duties of representation, communication and control, competence and care, confidentiality and conflict of interest. The fourth and final part includes a chapter on the adversary system and considers the role of the judge and the lawyer therein. The final chapter discusses the duties of fairness and candour, including those applying in the criminal trial. In addition, the authors have included a table of cases, statutes, and an index of all the topical references used in the book.

The benefits of the second edition can be found in its up to date incorporation of the recent decisions in the areas of legal professional privilege and conflicts of interest. For example, Peter Macfarlane, the author responsible for chapters 10–13, notes the High Court’s decision in Esso Australia Resources Limited v Commissioner of Taxation of the Commonwealth of Australia [1999] HCA 67; (1999) 201 CLR 49. In this case the High Court overturned Grant v Downs [1976] HCA 63; (1976) 135 CLR 674 by applying the ‘dominant purpose test’ as opposed to the long standing ‘sole purpose test’. In the area of conflict of interest, chapter 11 clearly outlines a number of recent case extracts concerning the reliability of ‘Chinese walls’ as a means of insulating the interests of one client from those of another. The author is quick to identify the unease the Australian courts are feeling in this area.

Ysaiah Ross, the author responsible for chapters 1–9, successfully challenges the law student as well as the lawyer by inviting comment throughout the chapters. In addition, a pleasing feature of the book is the objective style with reference to what constitutes an amoral and moral act. For example, issues of individual preference are without the author’s personal views to influence the reader’s judgment.

Lawyers’ Professional Responsibility in Australia and New Zealand provides a more detailed and lengthier analysis of the law than the first edition published five years ago. This up to date edition includes the latest cases, statutes and rules with a number of significantly extended chapters. Notably, these are chapters 5 (negligence), 9 (successive conflicts), 14 (lawyers employed by non-lawyers), 15 (disclosure and recovery of costs), 18 (solicitors’ liens), 19 (lawyers’ duty to the court), 20 (particular applications of lawyers’ duty to the administration of justice), 22 (conduct of practice) and 25 (lawyers’ discipline generally).

The text also boasts a comprehensive discussion of three chapters concerning lawyers’ responsibilities to third parties and the community. In addition, four chapters are devoted to the law of costs, which is an essential area for any lawyer as an appropriate means of understanding costing and protecting entitlement to costs. The author contends that ‘one of the principal reasons for public disrespect for the legal profession concerns the matter of legal costs’.

This text also identifies the new development of lawyers’ professional responsibility by observing the emergence of the subject ‘legal ethics’ in mainstream undergraduate legal education in Australia. The author notes legal ethics is a subject mentioned in the Priestley 11 and is therefore a precondition in many jurisdictions to admission to practise. As a result, this text continues to demonstrate its worth as an invaluable learning aid for all future and present lawyers.

The continuing relevance and importance of professional responsibility has justified the publication of these two texts. Both texts demonstrate the growing need for law students to learn and lawyers to develop good moral judgment in practice. Both books are an essential tool for building the professional lawyer.

Josh Clifford

John Trone, Federal Constitutions and International Relations, (Brisbane: University of Queensland Press, 2001) ISBN 0702232416

Once it was said that the law followed the flag. Now, international law is everywhere. Its influence increases.’[49]

In this age of globalisation the external affairs powers of federal governments have assumed great prominence. This is not surprising. In the last 50 years international trade, commerce and travel have increased rapidly. The internet has changed society. Today no nation is immune from the rules, expectations and views of other nations. As Sir Gerard Brennan AC KBE, the former Chief Justice of Australia states in his foreword to Dr Trone’s Federal Constitutions and International Relations:

Globalisation is a phenomenon that affects contemporary thinking. For the lawyer globalisation describes those changes in domestic legal systems that respond to concepts arising from external or transitional phenomena. The most influential are found in treaties and in the norms of customary international law.

Section 51(xxix) of the Constitution of the Commonwealth of Australia gives the Commonwealth Parliament the power to ‘make laws for the peace, order, and good government of the Commonwealth with respect to external affairs’. The external affairs power of the Commonwealth has been the subject of considerable argument before the High Court of Australia: see Koowarta v Bjelke-Petersen [1982] HCA 27; (1982) 153 CLR 168; The Tasmanian Dam Case [1983] HCA 21; (1983) 158 CLR 1; Richardson v Forestry Commission [1988] HCA 10; (1988) 164 CLR 261; Mabo v Queensland (1988) 166 CLR 186, commonly known as ‘Mabo [No 1]’; and Queensland v The Commonwealth [1989] HCA 36; (1989) 167 CLR 232.

In Koowarta v Bjelke-Peterson [1982] HCA 27; (1982) 153 CLR 168 at 259–60, Sir Gerard stated that:

The international quality of the subject is established by its effect or likely effect upon Australia’s external relations and that effect or likely effect is sufficiently established by the acceptance of a treaty obligation with respect to that subject.

Dr Trone’s book examines the legal principles that provide the basis for the relationship between treaty provisions and the powers of the branches of government in federations. The jurisdictions examined in this work are far-reaching and include: Australia, the US, Canada, Germany, Switzerland, Austria, India and Malaysia. This wide-ranging international perspective provides the foundation for a detailed consideration of comparative constitutional law.

This work is an informative well-researched treatise. It is an accurate statement of the interlocking principles of international and domestic law.

Dr John Trone is a graduate of arts and law and holds a Doctorate of Philosophy from the University of Queensland. He is the co-author of the 6th edition of Lumb and Moens’s The Constitution of the Commonwealth of Australia Annotated (2001). He has also written numerous articles concerning constitutional and international law.

Dominic Henley Katter

Carl Michael von Qu itzow, State Measures Distorting Free Competition in the EC (The Hague: Kluwer Law International, 2001) ISBN: 90–411–1466–1

The European Community (EC) is a somewhat unique example of a modern, organised and consensual regrouping of nations. The result is a new quasi-federation of countries that had been independent economically and culturally for centuries. Dr von Quitzow’s recent work addresses the current problem of distortions of cross-border competition in the EC.

According to the Spaark Report the aim of the predecessor to the EC Treaty was the institution of a common market system. Despite this fundamental ideal there is still a need for strong policy preventing anti-competitive strategies. The book focuses on man-made distortions that create differences in competition prerequisites or actions creating divergences in the capacity of countries to compete on the EC market.

The fundamental economic theory is that the market is the most efficient means of allocating resources and thus promotes the aim of the EC Treaty in creating an effective common market. Specifically the book examines which measures adversely affect cross-border competition and whether each example is capable of being construed as compatible with a market designed on undistorted competition. The author does not propose that all state measures affecting competition should be eliminated. This is a reasonable approach because the EC was not designed to amalgamate member states into a unified nation. Rather the achievable goal is to curtail distortions which are deemed to have effects that are inconsistent with the goals of the EC.

The topic addressed by the book is especially important in the context of the European and Monetary Union (EMU). It had previously been advanced that member states could manipulate exchange rates in order to protect the competitiveness of internal production. With the implementation of the EMU the author suggests that member states will be tempted to increase protection through competition distortions in an effort to protect inefficient production.

The book is divided into four major sections. Part A informs the reader of definitions for the terminology used in the work and outlines the scope of the study and the methodology employed. In Part B Dr von Quitzow presents a thorough discussion of particular measures that are used to create competition distortions as well as an extensive review of the provisions in the EC Treaty that deal directly with the topic. Part B also discusses the relevant case law as decided by the European Court of Justice. The author concludes that one problem is that the current court has not displayed an economic agenda; instead, decisions have focused on constitutional issues with the collateral result of increasing the threshold of tolerance for local regulation of competition. Part C deals with the conclusions of the author as well as a detailed chronological survey of the case law. After convincing the reader of the need for reform Dr von Quitzow advances his ideas for possible future developments concerning state measures in Part D. Primarily the author recommends that there is a definite requirement for the EC to adopt strict policy against anti-competitive strategies employed by member states in order to achieve the common market ideal outlined in the EC Treaty especially in the environment of the EMU.

Dr von Quitzow takes a systematic and almost scientific approach in his unique investigation into the problems presented by competition distortions in the EC. It will undoubtedly raise both academic interest and comment as well as provide a framework for future debate.

Sonja Brown

Adrian Briggs and Peter Rees, Civil Jurisdiction and Judgments (3rd edn) (LLP, 2002) ISBN 1 85978 374 0

This book is extremely timely and was necessitated by the recent introduction of the new Regulation by the Council of the European Union on 1 March 2002. In the preface the author’s state ‘just when it seemed that the law on civil jurisdiction had settled down, everything was turned upside down again’. The authors are referring to the fact that four separate rules are now in place to determine the civil jurisdiction of the courts in England. These are the new Regulation of the European Union, the Brussels Convention, the Lugano Convention and the common law.

The book focuses and has achieved its purpose of demonstrating how the various systems of jurisdiction work and fit together and it also demonstrates which rules have priority over others. As the authors indicate, at this present stage, no one law governs the civil jurisdiction of the English courts.

Given the length of over 600 pages, it is unlikely that individuals from a nonlegal background and even individuals from a legal background would read the book from cover to cover. Its usefulness will lie in its comprehensive index, logical and descriptive topic and sub-headings, and its succinct analysis of cases.

The authors provide a comprehensive analysis of the different jurisdictional rules and focus on the fact that the common law could not push back the frontiers of the European instruments. The authors establish that these instruments, and the courts who possess the authority to rule on their interpretation, can push back the frontiers of the common law. The authors rightly state that it would be useless to pretend otherwise.

The authors then proceed to list the applicable rules and in chapters 2 and 3 examine the actual and impending jurisdiction of the rules taking effect in England through the enactment of the Regulation. The authors set out succinctly three main questions that need to be asked before a case is brought before the courts of the United Kingdom. The issue of service of process is discussed separately. The work contains a comprehensive analysis of 14 questions listed by the authors that determine whether the English courts have jurisdiction over a particular defendant. The authors provided an extremely useful analysis of relevant cases, in user-friendly language. The book also extensively analyses and examines the issue of domicile.

In chapter 3, the authors provide a very interesting and useful introduction into the two conventions. The chapter also offers a comparison between the conventions and the regulations.

The authors then proceed in chapter 4 to consider and explain in detail what happens when the traditional jurisdictional rules of common law are permitted to apply. The appropriate forum to bring cases and the issue of service within and out of the jurisdiction are also discussed effectively in this chapter. The authors comprehensively examine the civil procedure rule relating to proceedings by service outside the jurisdiction.

Chapter 5 contains an in-depth analysis of the civil procedure rules relating to bringing a claim in court. This is a useful chapter and provides a good and succinct summary of these rules. The authors then contrast this summary with an analysis of the actions that may be taken by a party being sued overseas, who believes that the action should be brought in another jurisdiction. Furthermore, in chapter 6, the authors detail the various interim and interlocutory measures that can be obtained during the course of litigation. In chapter 7, the authors pay close attention to whether a judgment is capable of being enforced elsewhere, ie in another jurisdiction.

Chapter 8 deals in summary with the admiralty jurisdiction. It is acknowledged by the authors that this jurisdiction is large subject, and not one for comprehensive analysis in this book.

The authors conclude their book in chapter 9 by taking account of the practice of commercial dispute resolution, in particular the arbitration process. The earlier chapters of the book are dominated by consideration of the process and the manipulation of the process of a court proceeding and this chapter is a fitting end to the book, due to the increasing popularity of alternative dispute resolution methods. One of the other advantages of the book is that the appendices contain the script of the relevant regulations and conventions discussed throughout the book.

Civil Jurisdiction and Judgments is undoubtedly an excellent and comprehensive book for anyone wanting to gain an in-depth knowledge of the current state of the civil jurisdiction in Europe and the UK.

Niti Prakash

WMC Gummow, Change and Continuity: Statute, Equity, and Federalism (Oxford, New York: Oxford University Press, 1999) pp I–xx, 1-122 ISBN 0 19 829823 4

In this book, The Hon Justice William Gummow AC looks in retrospect at the tensions that arose in Australia between the goals of continuity of, and changes to, the law. Such changes to the established principles were inevitable from the outset of the parliamentary systems in the 1850s. Before this time, all laws in force in England were applied in the administration of justice in the colony of New South Wales and what later became Tasmania. After the establishment of self-government, life-style in the various colonies called for legal recognition of relationships and rights on a scale and nature not then seen in England. In particular, grants of Crown land were by, or pursuant to, local statute.

Justice Gummow follows the interwoven threads linking statute, common law and equity that were to form the fabric of the law of the land after the federation of the states in 1901. His examination of the tensions between the threads as manifested in Australia draws comparison with other common law jurisdictions.

The work is divided into three parts that are appropriately titled ‘lectures’. The subject matter is presented as though it is addressed to a body of academics. Justice Gummow draws on judicial and scholastic writings to illustrate the significance of the conflicting goals in the development of legal doctrines but does not venture an opinion as to the merits of any resolution. Notwithstanding, a preference for case law as the more appropriate ‘bridge across which society moves from the past to the future’ is reflected in the opinions of the authorities cited.

The starting point of each discussion is to place the modern legal system within a historical context. In the first lecture, Justice Gummow explores a variety of issues that have arisen from the coalescence of statute and the common law; namely, the use of analogy, the equity of a statute, legislative intention, interpretation by the executive and adoption of policy, and the statutory creation of new private rights are discussed.

This examination is followed by a comparison between equity and the law. The lecture focuses on the precept that ‘equity follows the law’ with the view to more accurately defining the relationship between the two concepts. Justice Gummow then addresses the role of equity ‘in an age of statutes’; in particular, the operation of equitable doctrines in the application of rights and obligations created solely by statute.

Finally, in the third lecture, the author looks at the ‘concomitant of a federal structure of government’ in terms of legalism, parliamentary supremacy and legislative competence. The discussion extends beyond the practice of federalism in Australia and makes reference, in particular, to the operation of Community law in the European Union and the effect of devolution in Scotland. By interpreting the dynamics within the context of the legal systems as a whole, this lecture is useful by bringing together the previous discussions concerning the interaction between equity and law, and between common law and statute.

The strength of Justice Gummow’s work is its detailed and authoritative discussion concerning the various approaches used to develop and adapt the law. The table of cases and index are convenient additions to the text. Change and Continuity: Statute, Equity, and Federalism is thought-provoking reading and offers an informative perspective of the nature of law and doctrinal development.

Shanan Dunstan

Peter Luxton, The Law of Charities (Oxford: University Press, 2001) pp i–1xxxiv, 1–997 ISBN 0 19 826783 5 i-1xxxiv, 1-997 ISBN 0 19 8267835

In the preface to his book, Peter Luxton states ‘[f]or the professional lawyer and for other professional persons involved with charities, the growth in importance of charity law over the last decade has seen a remarkable phenomenon…[t]he tension in charity law between principles of property law on the one hand, and of company and commercial law on the other, is an issue of major significance to the practitioner and of considerable interest to the academic lawyer’ (pp vii, viii).

A stated by the author, the thrust of the work is ‘to present a picture of charity law’ (p viii) that highlights the modern-day effects of company law more than the influences of property-based enacted rules. In addition to dealing with matters of legal structure and governance, the text offers a valuable discussion on the advantages and disadvantages of establishing the charitable status. In particular, the tax exemptions enjoyed by charities are outlined in chapter 3.

The development and changing status of the Charity Commissioners, since their inception in 1853 to the enactment of the present day Charities Act 1993, reflect the variation of society’s conscience and provide the focus for discussion regarding the supervision and control of charities. The Commissioners’ role has been broadly to carry out supervisory, advisory, quasi-judicial and policing duties. Over the years, with changes to the parameters of social attitudes, the last two functions have assumed greater importance to the Commission in making decisions and penalising breaches.

Peter Luxton helpfully provides a chapter that examines the intricacy and meaning of charity, placing its definitive function in the context of other chapters concerning the body politic and judicature. It is coincidental that after years in its preparation the work was published in 2001, ‘a year marking the 400th anniversary of the enactment of the Statute of Elizabeth 1601 whose preamble, probably the most celebrated in English law, is still sometimes referred to by the court in determining whether a purpose is charitable’ (p vii).

Throughout the text, the author considers the various statutes which have altered the features of charity law including the Human Rights Act 1998, the Finance Act 2000 and, more recently, the Trustee Act 2000, which is provided in full in the appendices.

One of the strengths of the work is its functional approach to examining this area of law. Notably, the Charity Law Association Model Documents (Trust Deed for a Charitable Trust; Constitution for a Charitable Unincorporated Association; and Memorandum and Articles for a Charitable Company Limited by Guarantee) are of considerable practical use and offer a convenient reference for practitioners and business-persons alike. The Law of Charities provides a comprehensive and interesting study, adequately case-quoted and footnoted. This text will add value to both professional and academic libraries.

Shanan Dunstan

Edited by Eva Micheler and DD Prentice, Joint Ventures in English and German Law (Oxford: Hart Publishing, 2000) ISBN 1 84113 106 7

As business between England and Germany continues to prosper into the 21st century a team of lawyers and academics from both countries have come together to share their expertise and practical insight from many years of experience from their fields of speciality. The contributors’ specialities include advice to leading banks and industrial and commercial companies from both jurisdictions.

The information in this book is taken from the papers presented at the 1999 Anglo-German Law Conference and which have been revised and edited for this publication. This particular edition examines the legal framework of joint ventures between English and German companies. This book takes a comparative approach, where each major aspect of joint venture law and practice from the view point of both English and German law, but also compares and contrasts the two. As a result it provides much practical insight, which many new practitioners may overlook.

The book is divided into four parts. Part One deals with the formation of joint venture companies. It discusses the types of companies that are usually used to establish joint ventures as well as the rights and obligations of members. It also addresses the law and legal practice relating to memoranda of understanding, warranties and indemnities, joint venture agreements and the valuation of contributors. Part Two deals with the management aspect of joint venture companies and employment law. It analyses how the shareholders can influence management decisions, the rights and obligations of directors and parent companies, as well as the legal position of minority shareholders. Part Three addresses the European Union as well as English and Germany competition law. The Fourth and final part deals with the termination of joint ventures.

The writers for each part of this book come from a team of leading English and German lawyers who are specialists in their fields, both academically and professionally. The approach taken by the writers separates this book from traditional legal texts as it takes a comparative approach rather than taking the typical form of many legal books of merely discussing the technical examination of existing law and practices. This approach makes the presentation of the material concise and easy to understand.

This book is therefore highly recommended to practising lawyers and in-house counsel whose practice is in the area of Anglo-German business affairs. Academics and students with a legal interest in relation to EU, European commercial or comparative law should also find this book a useful resource for study and research. However, this book should not be limited to those with a legal background. It is also recommended to business academics and students who are in international business, particularly in England and Germany.

Nga Pham

Wayne C Booth, Gregory G Colomb and Joseph M Williams, The Craft of Research (2nd edn) (Chicago: The University of Chicago Press, 2003) ISBN 0226 06568 5 329 pp (paperback)

No matter the text that one reads on research there is always that fundamental question, ‘Why do research?’ There are a number of ways to answer this question and most responses are framed in the context of a working environment. For example, a secondary or undergraduate student may tell you that research is important for a passing grade; post-graduate students may have developed a real interest in a subject and wish to pursue a greater knowledge of it; alternatively, if one is already in the workforce, the ability to undertake research may determine funding for the organisation, career advancement or professional recognition. All of these responses are valid and no doubt readers could add to them but perhaps the most difficult part of any research is where to begin. The Craft of Research is a text that promotes the value of research and encourages students to develop potential questions for their research. The authors state that their work embraces all levels of research (from high school, tertiary students and experienced researchers).

In chapter 2 (Connecting with Your Reader) the authors have highlighted a key feature of research; this is that your work will have an audience. This sounds obvious, but no doubt we can all recall wading through journal articles, reports and studies that have been anything but engaging to the reader. The authors point out that research can be a solitary venture but that the art of conversation is a ‘social activity’. This is a crucial observation for those embarking upon research. A relationship is created between you and your readers and like it or not your work will be judged, in part, by how well you present your work to an audience. Any marketing manager will tell his or her staff that a product must be ‘pitched’ to a certain group. In other words, when embarking upon research you must know the audience that will be reviewing and reading your work.

The authors also make a number of other valuable observations. The authors’ checklist on p 32 is a great tool for referring back to throughout the writing of your piece of research. Part 2 of the text examines the planning stages of research. The authors provide a four-point process when planning a research task (pp 37–38). In chapter 5 (From Problems to Sources), the authors begin to examine how to collect data and some of the pitfalls when doing so. The ‘Ethics of Research’ is discussed in Part 5 of the text.

The book covers some important issues such as reliability and the use of the internet, but only in summary form. In future issues I would suggest that the book should examine in detail issues such as sampling; levels of measurement; how to conduct an interview or design a questionnaire; the issue of bias in research; probability; benefits of qualitative and quantitative studies; and data analysis.

The text also provides a good review of how to present material visually (pp 241–62). Students need to know that what they are presenting is accurate and reliable data. Chapter 9 (Reasons and Evidence) states that readers want ‘… your evidence to be accurate, sufficient and representative, and precise’ (p166).

Towards the end of the text the authors look at the need for revision (Chapter 13

– Revising Your Organisation and Argument). Once again this is a valuable exercise. For undergraduates and workplace assignments this view of revision may prove to be an excellent approach when questioning how best to convey one’s argument and findings.

In summary, this book will assist students in upper secondary schools and undergraduates. It is a useful guide for those in organisations who need to present seminars, prepare reports or submissions. The authors provide a well-written and easy to follow text. The Craft of Research is written for a North American audience and thus provides an excellent bibliography for readers in that region. The text will be helpful for all areas of research, but it is perhaps best suited to the humanities and social sciences. It should be utilised as an introductory text before exploring research methodology in depth.

Simon Brown

[1] Hon. JJ Spigelman AC, Chief Justice of NSW, in an address to launch the book on 22 May 2003; see and see prompts under ‘Speeches’ (visited 16 June 2003).

[2] Geoff Lindsay SC, Owen Dixon: A Biography, in a review of the book in (2003) 23 Australian Bar Review 198.

[3] The author had taken much trouble to seek the assistance of a number of highly regarded legal scholars and jurists to work with him.

[4] Ayres, P, Owen Dixon, p 14.

[5] Amalgamated Society of Engineers v Adelaide Steamship Co Ltd [1920] HCA 54; (1920) 28 CLR 129; see also [1921] HCA 30; (1921) 29 CLR 406; (1921) 29 CLR 406.

[6] For some details on Powers J, see White, M and Rahumtula, A, (eds), contributions in Queensland Judges in the High Court, to be published AQ update??? October 2003, Queensland Supreme Court Publication.

[7] Letter Dixon to Latham, 7 April 1964, see Chapter 5, fn 1.

[8] Book p 57.

[9] Ibid, p 191. It was in 1949 and the judge was Clyne J of the Federal Court of Bankruptcy; Isaacs v McKinnon [1949] HCA 64; (1949) 80 CLR 502, where Rich J joined the majority in dismissing the appeal. Dixon dissented.

[10] Book p 58.

[11] Ibid, p 59.

[12] Ibid, p 62.

[13] Ibid, p 123.

[14] Ibid, p 115.

[15] Generally see Book, chapter 8.

[16] Book, p 165.

[17] Ibid, p 177.

[18] Generally described in Book, chapter 10.

[19] Book p 229.

[20] Ibid, p 231.

[21] Ibid, p 231, citing Denning’s Fifth Wilfred Fullagar Memorial Lecture: Let Justice Be Done, p 3.

[22] Under Dixon CJ the Australian High Court first held that it was not to be bound by decisions of the House of Lords, see Parker v The Queen [1963] HCA 14; (1963) 111 CLR 610. Dixon wrote: ‘Having carefully studied Director of Public Prosecutions v Smith [1961] AC 290 I think we cannot adhere to that view or policy. There are propositions laid down in the judgment which I believe to be misconceived and wrong.’ See 111 CLR at pp 611, 632.

[23] To illustrate the extent of the sources that supplement the diaries, one notes that the table of cases extends over seven pages, the notes (References to the chapters) over 63 pages and the bibliography over 15 pages. For completeness one mentions that the text is comprised of 294 pages; there is an informative preface by the author, a list of illustrations and a complete and very useful index.

[24] Book, p 291.

[25] For a transcript of this speech, see ‘The Oxford Companion to the High Court of Australia’, Canberra Book Launch, 13 February 2002, at cj_oxford.htm.

[26] See Blackshield et al, The Oxford Companion to the High Court of Australia, Oxford, University Press, 2001, at xi.

[27] Ibid, at vii. 28 Ibid, at 311. 29 Ibid, at 19. 30 Ibid, at 381. 31 Ibid, at 432. 32 Ibid, at 277. 33 Ibid, at 625. 34 Ibid, at 186. 35 Ibid, at 620. 36 Ibid, at 622. 37 Ibid, at 34. 38 Ibid, at 650. 39 Ibid, at 85. 40 Ibid, at 486. 41 Ibid, at 82. 42 Ibid, at 164–65.

[43] Ibid, at 702. 44 Ibid, at 45. 45 Ibid, at 367. 46 Ibid, at 216. 47 Ibid, at 109. 48 Ibid, at 129.

[49] Kirby, ‘The growing rapprochement between international law and national law’ in Sturgess and Anghie (eds) Visions of the Legal Order in the 21st Century: Essays to Honour His Excellency Judge CJ Weeramantry, 1998, The Hague: Kluwer International. Parts of this contribution appeared in an earlier form in the paper by the author ‘The Impact of International Human Rights Norms: “A Law Undergoing Evolution”’ (1995) 25 Western Australian Law Review 1.

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