Ladies and gentleman — or I should more accurately say, Colleagues — tonight we attend a most unusual and significant event — the launch of a major legal text whose authors are practising members of the Bar,The Law of Rescission by Dominic O’Sullivan of Counsel, and his co-authors Steven Elliott and Rafal Zakrzewski.
And Dominic O’Sullivan of Counsel is, significantly, a member of our own Bar.
An event of this nature, that is, the launch of a major legal text book written by a member of the Queensland Bar is unusual, and, I venture to suggest, almost unique in the achievement of members of the Queensland Bar in the forty years since the publication of Bruce McPherson’s The Law of Company Liquidation, which is now justly recognised throughout the common law world as the classic work on its subject.
I say “almost unique” because Father Frank Brennan SJ AO, who is a member of the Queensland Bar, though he rarely practises, is a prolific author on subjects of legal interest. Of course, his books are, in his Jesuitical way, usually directed to the destabilisation of democratically elected governments.
The Law of Rescission is not about governments but the rights and duties of private citizens, and, of course. it is directed not at a political audience, but at students, judges and practising lawyers.
It is because the law of rescission is overwhelmingly judge-made law, that there is a strong need for a work which deals comprehensively with the vast body of judicial decisions, digests those decisions, and then organises them in terms of principle as integral aspects of a coherent system of law.
I venture to suggest that the major beneficiaries of this book will be practising lawyers. Without reliable text books the risk is greater than ever that the case law will explode into an unintelligible myriad of unreconciled and irreconcilable single instances.
Even the most powerful intellects among practising lawyers benefit from the application of a powerful organising intelligence of the kind exhibited in this book.
In this regard, one is reminded of the incident recounted in David Marr’s biography of Sir Garfield Barwick where the young Barwick was briefed to appear with the legendary Jack Cassidy QC. Barwick arrived at Cassidy’s chambers having read all the cases relevant to the matters in issue in the case and proceeded to expound his view of the principles that emerged. Cassidy asked Barwick what the text writers said. Barwick said that he didn’t bother reading text books. Cassidy replied: “Pity! There’s a lot of wisdom in text books.” And then Cassidy went off and won the case with an argument Barwick hadn’t thought of.
There is a lot of wisdom in The Law of Rescission. It deals with the doctrines which justify rescission; it elucidates the important distinction between rescission by act of a party and by order of the court. It examines the principles which inform the requirement of “restitution integrum” both at common law and in equity. It addresses the implications of rescission for third parties and the implications of the rights of third parties for rescission. It deals comprehensively with the bars to rescission. And along the way it exposes judicial heresies.
To mention one particular example by way of a teaser, I commend to you the authors’ analysis of the decisions of the High Court in Commercial Bank of Australia Ltd v Amadio (1983) 151 CLR 447, Vadasz v Pioneer Concrete (SA) Pty Ltd (1995) 184 CLR 102 and Maguire v Makaronis (1996) 188 CLR 449 and their synthesis of the principles correctly to be derived therefrom.
This wisdom collected in this book means that it will also be of value to judges — for whom it serves as a reminder that the doctrines which are given effect by the remedy of rescission are concerned with the restoration of parties — both parties to their position prior to the transaction — not with compensating an injured party for a bad bargain or punishing a party who has acted in a way of which the judge disapproves.
The Law of Rescission is truly a magnum opus. In its 677 pages of text, it collects all the important Australian and English decisions and puts them in their proper place as a coherent part of the law common to England and Wales and Australia. That its avowed concern is to state the English law, it will not be of any less value to Australian lawyers and judges.
One cannot but admire the energy of the authors and the lucidity of their exposition. Dr Johnson remarked of women preachers that, “like dogs dancing, it is not done well, but the wonder is that it is done at all.”
I can say with unfeigned admiration of Dominic O’Sullivan and his co-authors’ production of this book, while at the same time conducting a practice at the Bar, the wonder is, not only that it has been done at all. It has been done very well; and, indeed, it is a wonder.
I congratulate Dominic most warmly, and am emboldened to do so on behalf of our Bar because this book, like McPherson’s, will inevitably add lustre to the reputation of the Queensland Bar.
I commend the book to you all, and hereby launch The Law of Rescission.
Thank you for your attention.
The Hon. Justice Keane
