Publisher: Korda Mentha Forensic
Reviewer: Adrian Duffy
KordaMentha Forensic has recently launched a new publication titled Expert Evidence: Recent Cases.
Led by one of the Sydney partners, Andrew Ross the editorial team reviewed over 1,000 judgments on expert evidence handed down in Australian Courts in 2013 and 2014. The book includes detailed case summaries of over 30 of those cases. The case summaries identify the key aspects of the decision and its relevance to the central theme of the publication. Where appropriate, extracts from the relevant decision are included.
The publication also includes case lists (summarised by jurisdiction and topic) relating to over 140 cases relating to expert evidence. There are some longer articles on related topics as well, including a comparative study on expert witness immunity and an excellent discussion on the questions of expert conclaves and “hot-tubbing”.
A very comprehensive foreward has been written by barristers Dr Ian Freckelton QC and Hugh Selby, two of Australia’s leading experts on expert evidence.
The publication is one that is presented from the perspective of those who are experienced in the preparation and presentation of expert evidence, rather that from a lawyer’s perspective. That is the strength of the publication and its usefulness to lawyers who are involved in the calling of such evidence.
The publication is of excellent quality and an extremely useful resource. It is described by its editor as the first edition, so we can look forward to updated editions in the future.
The book is not for sale, but those interested in obtaining a copy should contact Korda Mentha parrners, Brian Wood bwood@kordamentha.com or David Van Homrigh dvanhomrigh@kordamentha.com
Author: J R S Forbes
Publisher: The Federation Press
Reviewer: Alexis N. Gage
“Knowledge is Power!” — Auntie Mame 1
Brilliant. Dr. Forbes does it again with another brilliantly written book.
I was given a wonderful opportunity to review Dr. Forbes’ Justice in Tribunals (4th ed.) and I would highly recommend it.
Also, in my humble opinion, Justice in Tribunals should be a required textbook for law schools teaching advocacy and litigation as a class. Dr. Forbes’ table of cases is complete and comprehensive. His research of case law applied in each chapter’s themes is done exceptionally.
The book is organized into 17 chapters and Dr. Forbes outlines the content of those chapters within chapter 1. Overall, the chapters in this book are well organized and comprehensible.
Chapter 2 focuses on an in-depth understanding of the manner in which courts assume jurisdiction over statutory tribunals.
Chapter 3 examines the courts’ limited control of private decision-makers excluding decisions affecting the plaintiff’s economic interests.
Chapter 4 deals with decisions resulting in expulsion, suspension, imposition of fines, or refusal or cancellation of a license for members of associations or licensees.
Chapter 5 provides further in-depth understanding of the nature of private tribunals and their significance in matters of social or economic importance. The chapter also deals with the legislation that allows for statutory appeal against some of those decisions of private tribunals to a court or a public tribunal.
Chapter 6 focuses on legal error and the courts’ control over public and private tribunals in circumstances not involving an appeal on the merits.
Chapter 7 focuses on the historical importance of and the meaning of natural justice.
Chapters 8 to 14 elaborate on audi alteram partem (right to be heard), the first principle of natural justice.
Chapter 12 centers on the law governing hearings in public and private tribunals.
Chapter 13 considers whether there is any duty at common law for tribunals to provide reasons.
Chapter 14 considers whether fairness requires some form of internal appeal from decisions of primary tribunals.
Chapter 15 investigates the second of the “twin pillars” of natural justice, namely, the right to be heard by a decision-maker whose mind is open to persuasion. The concept of a reasonable suspicion of bias is addressed and its application is distinguished as between a statutory tribunal and a private tribunal.
Chapter 16 provides a summary of procedural remedies afforded in actions against public and private tribunals.
To conclude, chapter 17 reflects the judicial control of Royal Commissions and other public inquiries.
In conclusion, I believe Justice in Tribunals is a wonderful investment for any set of chambers.
Author: John Levingston
Publisher: The Federation Press 2013
Reviewer: Patricia Feeney, Queensland Bar
“The Law of Affidavits” is a text which could well be said to be long overdue. Although a crucial part of almost all aspects of modern civil litigation (not to mention hearings in Coronial Courts and the wide variety of Tribunals), affidavits have been given little attention in the teaching of legal skills and in legal publications. The extremely variable (and some may argue declining) quality of affidavits filed daily in courts and tribunals makes Mr Levingston’s publication very welcome.
The text covers the fundamentals of affidavits including their history, definition and form together with the practical requirements of swearing, filing and serving. The author provides a thorough discussion of the process of obtaining instructions and preparing an affidavit. It is particularly pleasing to see that Mr Levingston pays specific attention to the ethical obligations associated with preparing and relying on affidavit evidence.
Questions which frequently arise in practice such as the admissibility of affidavit material and objections that can be taken to such evidence; the attendance and cross-examination of deponents; and the extent to which opinion evidence can properly be included are all dealt with in a comprehensive but accessible way.
Across all topics, Mr Levingston has made liberal use of checklists which are equally beneficial to the novice and the experienced practitioner. The appendices to the text are also of extremely practical benefit containing, as they do, summaries of the rules and regulations relating to the various jurisdictions of Australian and New Zealand Courts together with a number of useful precedents.
The Law of Affidavits provides a comprehensive foundation course for all new lawyers beginning to develop skills in the drafting of affidavits. Its usefulness, however, also extends to more experienced practitioners dealing with the arguments which often arise over the admissibility of affidavit material. It is an essential addition to the library shelves of all legal practitioners.
Patricia Feeney
Chambers
(Second Edition)
Author: Ken Mackie
Publisher: LexisNexis Butterworths
Reviewed by Dominic Katter
The High Court of Australia has decided relatively few succession-related matters in recent years. Much succession law throughout the various jurisdictions is articulated through primary determination and alternative dispute resolution mechanisms. Principles of Australian Succession Law is published against that background.
The first edition of Principles of Australian Succession Law was published in 2007. This second edition is current to 1 February 2013.
The author, Ken Mackie, is a Senior Lecturer in law and Sub-Dean at the Law School of the University of Tasmania. Mackie is also responsible for co-authoring the comprehensive Law of Succession, 2013, also published by LexisNexis.
This monograph, though retaining detailed footnotes, is narrower in scope than Law of Succession and is primarily aimed at the undergraduate student who is unacquainted with the fundamental principles of succession law. However, the text may provide a quick reference guide to the practitioner, particularly, as to initial consideration of matters from another jurisdiction.
This second edition includes two additional chapters, addressing statutory wills and survivorship, beyond the chapters of the first edition.
There is a detailed examination of the foundational principles of succession law, namely: the meaning and scope of succession law; the general nature of a will; the mental elements required to ‘make’ a will; requisite formal requirements; revocation and alteration; re-publication and revival; construction of wills, gifts by will; distribution on intestacy; family provision, personal representatives; grants of representation and the administrative process as it relates to personal representatives.
The work is comprehensively and appropriate referenced. The table of cases and statutes is relatively significant at some 35 pages.
Simple fact descriptions are used to explain succession law principles in an efficient manner without the loss of accuracy. Frequent references to relevant and recent case law allow the reader to use the book as a starting point as to further research.
Principles of Australian Succession Law is 392 pages in length and retails for approximately $100.00.
Dominic Katter
Editor: Neil Williams
Publisher: The Federation Press 2014
Reviewer: Patricia Feeney, Queensland Bar
This publication is a collection of essays prepared for the Constitutional and Administrative Law Section of the New South Wales Bar Association. In each essay, the author discusses an issue of uncertainty or controversy in current Administrative or Constitutional Law.
The volume is introduced by a paper delivered by the Honourable Patrick Keane to the New South Wales Bar Association: “Some Reflections on the Role of Courts in Public Law”. With his faultless precision of perception, tempered by his accessible style and humour, Justice Keane confronts the boundaries of judicial intervention into the provinces of the executive and legislative branches of government.
The issue is explored further in “Judicial Review of Executive Action: Tiers of Scrutiny or Tears of Frustration?” by the Honourable John Basten and “The Rationale for the Grant of Relief by Way of Judicial Review and Potential Areas for Future Development” by Kristen Stern QC. In different but equally informative ways, these two essays provide analyses of the aetiology of judicial review and the capacity for development of the jurisdiction as may be suggested by recent decisions both in Australia and overseas.
The topic of the progression of Administrative Law is expanded in the Honourable Alan Robertson’s studied and insightful essay “Nothing Like the Curate’s Egg”, a consideration of the Administrative Review Council’s 2012 Report which deals with the relationship between the Administrative Decisions (Judicial Review) Act 1977 (Cth) and section 75(v) of the Constitution.
Several of the essays focus on topics directly relevant to the practical aspects of Administrative Law and judicial review. These essays include “The Concept of Jurisdictional Error” by Jeremy Kirk SC; “Satisfaction as a Jurisdictional Fact — A Consideration of the Implications of SZMDS” by James Hutton; Theresa Baw’s paper “Illogicality, Irrationality and Unreasonableness in Judicial Review”; “The Use of the Blue Pencil — Partial Invalidity” by Stephen Lloyd SC and Houda Younan; and “Evidence in Public Law Cases” by Neil Williams SC and Alan Shearer. In concert, these essays provide a comprehensive analysis of recent case law and the developments in interpretation of relevant legislation. The pragmatic approach taken by all the authors provides constructive guidance for the resolution of problems faced in daily practice and demonstrates the extensive experience of those authors.
Two of the essays appear to address very specific sub-sets of Administrative Law, namely, “Constitutional and Administrative Law Aspects of Tax” by Geoffrey Kennett SC and David FC Thomas and “The Relevancy Grounds in Environmental and Administrative Law” by Richard Lancaster SC and Stephen Free. However, in addition to the niche topics to which they are addressed, the information provided in these essays remains relevant to a much broader range of subjects.
First Parliamentary Counsel Peter Quiggin PSM focuses on various aspects of legislative drafting in his essay “Statutory Construction: How to Construct and Construe, a Statute”. The commentary on this paper by Justice Nye Perram ably addresses the challenges faced by those charged with interpreting legislation in the context of individual cases rather than the eclectic policy considerations paramount in the minds of those drafting and introducing it.
The essays collected in this publication are uniformly well considered and well written. The authors focus on matters directly relevant to daily practice. The volume has been intelligently edited by Neil Williams SC and contains an erudite forward by Chief Justice Allsop of the Federal Court of Australia. It provides an invaluable resource to any practitioner whether highly experienced in public law or coming to it as a beginner.
Patricia Feeney
Chambers
Professor John Mo’s 5th Edition of International Commercial Law is a timely and useful addition to any domestic litigator’s toolkit.
As cross-border business grows, so too does cross-border litigation. Litigants include private parties and States. These disputes are not always finally resolved in the private confines of an arbitration and some have recently reached the ultimate Courts of Appeal in both Australia and the United Kingdom (see, for example, TCL Air Conditioner (Zhong Shan) Co Ltd v The Judges of the Federal Court of Australia (2013) 295 ALR 596; [2013] HCA 5 and British Telecommunications plc v Telefonica O2 UK Ltd & Ors [2014] UKSC 42).
Other disputes between states and involving states have recently attracted wide attention (Timor-Leste v Australia, Permanent Court of Arbitration and Phillip Morris Asia Limited (Hong Kong) v The Commonwealth of Australia, Permanent Court of Arbitration).
Disputes of this nature will become more frequent and more complex. Bathurst CJ recently observed:
Unfortunately, the increasing internationalization of commerce and the ability of business to conduct operations smoothly across national borders stands in sharp contrast to the complexity, difficulties and risk that attend the resolution of cross-border disputes which inevitably arise. Efforts to promote convergence of commercial legal systems provide an important mechanism by which to reduce these legally related transactional costs. By convergence, I am referring to the harmonisation of substantive legal principle and civil procedure amongst nation states, to increasing uniformity in conflict of law rules, and to development of similarity and shared approaches to dispute resolution amongst judicial systems. (Hon. T F Bathurst ‘The importance of developing convergent commercial law systems, procedurally and substantively’ [2013] NSWJSchol 41).
Professor Mo explains the steps towards ‘convergence’ in international commercial litigation in Chapter 2 of his work, dealing with the United Nations Convention on Contracts for the International Sale of Goods and the important UNIDROIT Principles of International Commercial Contracts (UNIDROIT Principles).
Professor Finn described the UNIDROIT Principles as ‘principled, coherent and intelligible’ (P Finn ‘Symposium Paper: The UNIDROIT Principles: An Australian Prospective’ (2010) 17 Australian International Law Journal 193). He observed that the principles gave parties an ‘expansive capacity to determine the content of their contract and of the rules which are to be applicable to it’ (Ibid, 194). Professor Mo’s summary of the UNIDROIT Principles is particularly concise and focused.
Possibly the next most useful chapter in Professor Mo’s book is Chapter 9 — Settlement of International Commercial Disputes. He reviews the subjects which are likely to arise for an Australian domestic practitioner in this context such as conflicts of laws, the enforcement of foreign judgments in Australia and aspects of international commercial arbitration. There are extensive references to cases, academic commentary and recognised texts.
Professor Mo’s examination of complex and expansive areas of the law is not necessarily exhaustive, but that is not his aim.
The other chapters are:
1. International Commercial Contracts under Domestic Law
2. …
3. Contracts for Carriage by Sea, Air and Land
4. Means of Payment in International Trade
5. Marine Insurance, Aviation Insurance and International Trade
6. Foreign Investment Law
7. The World Trade Organisation
8. Regional Trade Agreements and Free Trade Agreements
9. …
10. New Developments in International Commercial Law
English law is by far the most frequently employed law by entities and private individuals doing cross-border business (The Economist, Exorbitant Privilege — American and English Law and lawyers have a strangle hold on cross-border business. That may not last. 10 May 2014).
Australian lawyers with similar training to our English counterparts are therefore well placed to vie for the litigious work flowing from the exponential increase in international trade and investment in the Asia-Pacific region. The Economist observed that almost two thirds of litigants in English commercial courts are foreign and that 1.5% of British GDP comes from the legal sector. Australian courts, like UK courts, share similar features which should attract regional litigants to Australia, to local practitioner’s direct benefit and to the benefit of the Australian economy. Will Australian lawyers continue the ‘pivot’ towards our regional neighbours?
Professor Mo’s work is an essential addition to the Australian practitioner’s library as a useful first reference tool. Highly recommended.
Chris Tam
The collected texts of these lectures stand as a tribute to the distinguished academic and mentor, Mr Tony Lee, who has the rare distinction of having taught trust law and succession law to many practitioners and members of the judiciary in this State, and who has devoted many years of research to the production of the seminal text Ford and Lee on the Law of Trusts. This volume provides an engaging reflection on current trends in trust and succession law. It is hard not to be drawn in, and to be enthused once again, with the importance of these areas of everyday practice.
The inaugural WA Lee Equity Lecture was delivered on 2 November 2000 by Tony Lee, himself, on the topic of Trustee Investing: Homes and Hedges. This lecture examined trustee investment powers and duties following the introduction of a more liberal investment regime for trustees. Tony discussed the principles of modern portfolio theory and the balancing of risk and reward, together with the challenges posed by the employment of professional fund managers.
Since that first lecture, there have been 13 more in the series, delivered by members of judiciary, leading academics and practitioners: Mr Hubert Picarda QC (England and Wales), the Hon. William Gummow AC, Justice Margaret White, Justice Bruce McPherson, Professor Malcolm Cope, Professor Charles Rickett, Justice Ken Handley, the Hon. Michel Kirby, Justice Patrick Keane, Chief Justice Paul de Jersey, Justice Margaret McMurdo, Justice James Douglas and Justice Susan Kiefel.
The common thread that runs through the lectures is the importance of trusts and succession law in everyday practice.
These lectures have been published in law journals, but this is the first time that they have been collected together. Each is prefaced by a short introduction by Professor Malcolm Cope that sets the topic in context, and summarises the key propositions.
This book is rounded off by three personal tributes to Tony Lee, by Professor Michael Bryan, the Hon. Paul de Jersey AC and Dr John de Groot. Each speaks of their admiration for Tony and their appreciation of his dedication to the pursuit of research and writing in the areas of trusts and succession law.
This collection is a fitting tribute to Tony Lee’s many years of scholarship and encouragement to students of equity and succession law. Practitioners in the areas of trusts and succession law can derive much from reflecting on the themes that are examined in these lectures.
Richard Williams
