B O O K RE V IEWS

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INPRINTThis month’s reviews cover former High Court Chief Justice Murray Gleeson’s biography, a crime fiction novel set along the Great Ocean Road, affidavits, civil procedure, appeals, constitutional law, mortgage law and private international law.

The Law of Affidavits

John Levingston, The Law of Affidavits, The Federation Press, 2013, pb $145

For many practitioners, the task of prepar-ing and settling an affidavit often represents the culmination (and summation) of many months of work. John Levingston’s The Law of Affidavits is accordingly a very wel-come resource, published by the Federation Press as “the first work on affidavits in Australia”.

As the book itself acknowledges, the skill associated with preparing an affidavit to comply with the Rules of Evidence and the formalities of a particular court (while sur-viving the many bases for objection) is often developed through an informal apprentice-ship of drafting under the guidance of a more experienced practitioner. The use of earlier references and precedents is often an inte-gral part of that process. This book aims (and succeeds) in providing a comprehensive and cohesive summary of many of those drafting practices. Although the rules and formalities relating to affidavits can vary significantly between jurisdictions, the analysis of the historical development of their use in court proceedings provides a real insight into the underlying similarities.

The book is written in a very easy and straightforward way, notwithstanding the broad and complex challenge of identifying the many different sources of the law in the

various Australian jurisdictions. In addition to providing a reference for the evidentiary, formal and procedural rules relating to affi-davits, the book contains some very helpful precedents. It also sets out “jurisdiction sum-maries” relating to courts and tribunals at federal and state levels, while dealing with practical issues such as taking instructions, assessing a deponent’s capacity, and the proper use of exhibits and attachments.

As both a substantive text and guide, this book will provide assistance not just in the drafting of an affidavit, but in the assessment of the extent to which another party’s affida-vit can properly be the subject of objection. Where stringent case management creates increasing pressures for compliance, with short timetables for the preparation and filing of affidavits, this book will be a very welcome addition to the library of most litigators.

ADRIAN STONEGOLD STONE FAMILY LAWYERS

The Annotated Rules of Court

Richard Cook, The Annotated Rules of Court (12th edn), 2014, Australian Legal Books, pb vol 1 $125, vol 2 $85

The Annotated Rules of Court is a two-volume paperback on civil procedure in Victorian courts. The first edition was published in 1996 as a one-volume edition.

Volume 1 contains the Supreme Court and County Court Rules while volume 2 con-tains the Magistrates’ Court Rules. This

division into two volumes is necessary as the Magistrates’ Court Rules and practice differ markedly from the practice and pro-cedure in the Supreme Court and County Court. With these differences in mind, Mr Cook skilfully and, in an economy of lan-guage, provides clear notes on each Order. The Notes include details on the source of the court legislation and other relevant Victorian legislation. Any amendments are noted in italics at the end of the relevant Order. The notes to each Order contain an explanation of the Order and its requirements, including reference to relevant UK, Victorian and other Australian case law that has considered the equivalent or similar Order. A comprehen-sive table of cases referred to the volume is included as is the text of the Civil Procedure Act 2010. This is partially annotated. For example, there is no mention of Yara Australia Pty Ltd v Oswal [2013] VSCA 14 in the con-text of any of the overarching obligations. Part II contains the court forms applica-ble in the Supreme and County Courts. The latest scale of costs is also included, as is a comprehensive index.

Volume 2 contains the Magistrates’ Court Rules. The format of this volume follows the format in Volume 1. There is a separate table of cases that are relevant to the Magistrates’ Court Rules. The Civil Procedure Act 2010 is also conveniently reproduced in this vol-ume. The court forms and scale of costs are also reproduced.

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B O O K RE V IEWS

MURRAY GLEESON: THE SMILER

Michael Pelly, Murray Gleeson: The Smiler, 2014, The Federation Press, hb $60

The author has produced a very interest-ing biography of the man who sat as Chief Justice of the High Court for a significant portion of most current practitioners’ careers. As a result, Gleeson’s influence has been felt in many areas of law and policy, including the treatment of asylum seekers.

The book abounds with interesting anecdotes, from recounted childhood memories to incidents while sitting on the High Court. It is clear that the author has interviewed those close to Gleeson exten-sively and has gleaned a real insight into the life and personality of his subject.

As one would expect, many of the epi-sodes involving Gleeson which have formed part of Australia’s history or become an integral part of Australia’s legal development are covered. These

include the “Fine Cotton” horse-racing scandal and the decisions in R v Birks and Egan v Willis, but the book goes well beyond an assessment of the legal analysis contained in such decisions, and incor-porates something of the man himself, demonstrating Gleeson to have a strong belief in the separation of powers and the accountability of professionals and politicians.

Gleeson’s opinions, attitudes, and even his sense of humour are explored through the presentation of statements made through the years, and occasion-ally through the transcript of proceedings (including banter between Gleeson and his fellow members of the High Court). An example is the incident involving a discussion relating to the size of a particu-lar gun which had been brought into the court for a demonstration, and Gleeson’s quip directed to David Peek QC, “if you are going to point it at us would you mind pointing it in the direction of Justice Callinan”.The book’s style is informative, insight-ful and entertaining. It is difficult to do

it justice in a brief review such as this. A great deal of detail is provided in relation to key events, so that readers come away from the book with a sense that they have come to know something substantial of the personality, the humour and the intel-lect of its subject. In achieving this, Pelly has achieved an excellent legal biography.

DOUGLAS J JAMESBARRISTER

The division into two volumes is ideal for the busy practitioner who is able to easily take the relevant volume to court, replacing the need to tote a large looseleaf volume.

DAVID C TURNEROWEN DIXON CHAMBERS WEST

Appeals and Appellate Courts in Australia and New Zealand

M J Beazley, P T Vout and S E Fitzgerald, Appeals and Appellate Courts in Australia and New Zealand, 2014, LexisNexis Butterworths, hb $160

This is an ambitious book. It sets out to cover appellate work in the multitude of Australian and New Zealand courts and tribunals, including those inferior courts and tribunals which have received little attention in a sin-gle volume in the past. The eminently learned authors certainly achieve that end. The result is a review of practice and procedure in each jurisdiction, rather than a deeper jurispru-dential analysis of any particular court or tribunal. It should not be mistaken for pro-viding the latter. However, the book’s utility is in the breadth of its analysis. The text is divided into three major parts: structure and policy of appeals; practice and methodology of appeals; and appeals from specific courts.

Part one provides an interesting analysis of the historical development of appellate courts, structures, and the principles of stare decisis and ratio decidendi. Part two includes helpful precedent grounds of appeal, along with a review of leading authorities in support of each ground. The material in this chapter would make an excellent starting point for drawing grounds of appeal. The final part of the book canvasses the bare procedural ele-ments of appeals from each Australian and New Zealand court and tribunal. Each of the parts is accessible, well-cited and provides an authoritative overview of the respective area of inquiry.

Appeals and Appellate Courts will be a valu-able text for students and practitioners alike. In particular, the various practical chapters will be of interest to those who are new to appellate practice or to more experienced advocates appearing in unfamiliar jurisdic-tions. It seems that it might be a book better suited to a small loose-leaf service, rather than a bound volume, given regular reforms to practice and procedure. However, regular updated editions will overcome this and this useful book will no doubt continue to be a pri-mary reference text.

ADAM V CHERNOKVICTORIAN BAR

Blackshield & Williams Australian Constitutional Law & Theory

George Williams, Sean Brennan and Andrew Lynch, Blackshield & Williams Australian Constitutional Law & Theory: Commentary & Materials (6th edn), 2014, The Federation Press, pb $145

The latest edition of this seminal consti-tutional law textbook has been updated to include a suite of new High Court con-stitutional cases. It has also undergone a significant structural reworking with some chapters merged, new chapters added and a division of the chapters into thematic parts.

It remains a great resource for practi-tioners wanting an authoritative guide to Australian constitutional law or a quick ref-erence if a constitutional issue pops up in your practice. However, Blackshield & Williams also manages to touch on the larger issues surrounding our constitution and Australia’s governmental traditions: our colonial history and the path to independence; the influences of other federations; the status and influence of our Indigenous peoples; the integration of Westminster traditions and unwritten prac-tices; the effect of the makeup of the High

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B O O K RE V IEWS

Quota

Jock Serong, Quota, 2014, Text Publishing, pb $30

Jock Serong writes with a surfer’s love of the water. The cold, the pulse and the power loom over this book.

Charlie Jardim is a Junior on the verge of a nervous breakdown who makes an

outrageous attack on a magistrate in court. The outburst has left him briefless, facing a disciplinary proceeding and with a bro-ken engagement.

Out of the blue, Charlie gets a brief for the OPP led by Harlan Weir QC, a noted jury advocate and eccentric who plays his cello on Sunday mornings with his phone off the hook.

This is a crime fiction novel which offers a great deal of familiarity to Melbourne lawyers with its descriptions of the courts, chambers, AFL football, the Great Ocean Road and the beach.

Charlie is sent away from his broken relationship, away from the chambers’ gossip and out into the underworld of abalone and drug smuggling in the small town, Dauphin, which it seems is hell bent on him getting to the truth.

Although it is a very Melbourne book, much of the action takes place in Dauphin. Dauphin feels very much like Apollo Bay

with its description of the shops and nearby Lavers Hill, and the unabashed nostalgia of dim sims and landlines.

There are some interesting supporting characters – Les the bartender of the local pub Norman’s Woe, who is kinda mean and kinda not, the small town matriarch Delvene Murchison, no doubt to be played by Jacki Weaver in the telemovie alongside Patrick Brammall’s Charlie Jardim.

Lovers of this kind of book will no doubt have read Shane Maloney’s won-derful book Something Fishy, the Murray Whelan adventure set in Lorne. This book sits somewhere between there and John Saffran’s SMH article from 26 June 2014 A Town Called Malice by way of adven-ture and subject matter.

There will no doubt be more Charlie Jardim novels.

TASMAN ASH FLEMINGBARRISTER

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Court on the interpretation of the constitu-tion, and the Court’s relationship with the Parliament and executive government.

Despite murmurings about constitutional reform, our constitution remains largely unchanged since its enactment in 1901, but the High Court’s interpretation of it contin-ues to develop. In the last couple of years the Court has moved away from the character-isation of s51 federal legislative powers. It has instead focused on the bigger concep-tual questions of federalism, the scope and separation of judicial power, implied free-doms and the limitations on the legislative power of states and Commonwealth alike, and explored the scope of the federal gov-ernment’s executive and spending powers. Translating these constitutional concepts into practical solutions to disputes coming

before it has kept the High Court very busy in recent years.

Blackshield & Williams remains a must-have for law students who would like more depth of analysis and longer case notes than are provided in many of the comparable constitu-tional law texts. For practitioners, it is a great book to have on the shelf – you can dip into it when a constitutional issue arises and it will guide you to the key cases if you need more.

SKY MYKYTAMANAGING PRINCIPAL SOLICITOR

VICTORIAN GOVERNMENT SOLICITOR’S OFFICE

The Essential Guide to Mortgage Law in Australia

Matthew Bransgrove and Marcus Young, The Essential Guide to Mortgage Law in Australia (2nd edn), 2014, LexisNexis Butterworths, pb $185

The second edition of this book expands from the first edition dealing with the law of mortgages in New South Wales to a prac-tical manual of mortgage law throughout Australia.

The aim of the authors to create a ready ref-erence manual that will answer 90 per cent of issues that arise in day-to-day mortgage prac-tice is readily achieved.

Starting with a review of the Torrens Mortgage Title, a useful background is pro-vided to the development of the mortgage and the mortgage in the Torrens system. Key areas of practical application are then covered including priorities between mort-gagees, drafting mortgages, variation and assignment, the rights of mortgagors and mortgagees, external dispute resolution, rem-edies for the mortgagee and defences for the mortgagor.

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B O O K RE V IEWS

REVIEWERS WANTED

If you are interested in reviewing books for the LIJ, please email your contact details and areas of interest to Libby Brown at lbrown@liv.asn.au.

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LIV BookshopLAW FORMS, BOOKS & TEXTS

The Modern Contract of Employment

By Ian Neil SC & David Chin. $195 Focusing specifically on the law of employment contracts, it offers in-depth analysis of the modern common law of the contract of employment. It is written in a succinct way that aims

to provide answers, not more questions. Specific chapters on difficult areas such as the fiduciary obligation of loyalty, and mutual trust and confidence are critical reading for practitioners.

Contract Law in Australia

By J W Carter. 6th edn. $325 This ground-breaking text is an invaluable addition to existing Australian corporate law knowledge, and it is an essential resource for practising lawyers, company directors,

company secretaries, in-house counsel and academics, as well as those with an interest in corporate governance.

Company Directors: Principles of Law & Corporate Governance

By Austin, Ford, & Ramsay. $312 The economic importance of directors, the increasing intensity of debate about their functions and accountability, and the continuing public interest in the subject of company

directors make this authoritative text a timely publication. In particular, the duties of company directors, remedies for breach of these duties, and the structure and operations of the board of directors are examined.

referred to by the High Court (e.g. Pozniak v Smith (1982) 151 CLR 38; Akai Pty Ltd v The People’s Insurance Company Ltd (1996) 188 CLR 418; Sweedman v Transport Accident Commission (2006) 226 CLR 362).

In this edition, the authors have contin-ued their philosophy of honouring Dr Nygh’s original text, to the extent possible, but at the same time updating and expanding the material so that it is up to date with recent developments in the law. This will ensure that the book remains a valuable resource for practitioners and academics alike.

The book is divided into 43 chapters cover-ing topics such as Jurisdiction in Personam (Chapter 3), Cross-Vested Jurisdiction (Chapter 6), Forum Selection and Arbitration Agreements (Chapter 7), Corporations (Chapter 35) and Choice of Law in Arbitration (Chapter 39). These chapters are but a snap-shot of the various topics examined in the book, all of which are comprehensively considered.

Importantly, the new edition includes com-mon law developments both in Australia and overseas which have arisen since the last edition. For example, it considers recent High Court decisions regarding foreign state immunity and federal jurisdiction. It also considers the latest legislative developments such as the Trans-Tasman Proceedings Act 2010 (Cth) and the Australian Consumer Law, and the applicable court rules of the Federal Court of Australia and the Supreme Courts of the states and territories.

This latest edition maintains what the previous editions were able to achieve – to explain complex concepts in a simple and succinct manner. It reaffirms the book’s rep-utation as an authoritative text in private international law in Australia. l

DAVID KIMBARRISTER

The chapter on drafting mortgages contains a succinct summary of the dangers in widely drafted all moneys clauses and the perils of locating loan covenants in extraneous doc-uments outside of the registered mortgage through the possible loss of indefeasibility.

The 2012 decision of the High Court in the Andrews case, which held that fees payable by bank customers may constitute penalties, irrespective of whether or not they are pay-able upon a breach of the mortgage or loan agreement, is discussed as part of the explo-ration of penalties and the techniques to ensure covenants to pay are not void.

The discussion of external dispute res-olution contains a practical summary of the requirements for lenders to belong to a scheme and the ability of borrowers to seek redress through such schemes.

The work is well designed to assist the busy practitioner. Case law and legislation are comprehensively cited and lists and tables are effectively used to summarise the essen-tial elements of particular points. Pro forma pleadings and affidavits for remedies availa-ble to a mortgagee is also a useful feature. The book is clearly written and well structured, with the use of practical heading descriptions making the work easy to navigate.

The practical approach of this work will not only appeal to the specialist banking law-yer but also to property lawyers and general practitioners.

JAMIE BOLICCOLES GROUP

Nygh’s Conflict of Laws in Australia

M Davies, A Bell and PLG Brereton, Nygh’s Conflict of Laws in Australia (9th edn), 2014, LexisNexis Butterworths, pb $176

Since its first publication in 1968, Nygh’s Conflict of Laws in Australia has been an icon of the Australian legal literature scene, influencing the practice and development of private international law in Australia. Indeed, it has on numerous occasions been

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