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Cite as: (2003) 77(8) LIJ, p.78

Finance law, a history of Victoria’s first Chief Justice and a guide for teachers are the subjects of this month’s reviews.

Australian Finance Law

Mallesons Stephen Jaques, Australian Finance Law (5th edn), 2003, Lawbook Co, paperback $116.60.

This book of almost 800 pages contains a wealth of knowledge across many areas of finance law.

The origin of the book was a series of summer school seminars conducted by lawyers at Mallesons and the National Australia Bank in 1988 and 1991. The book is now in its fifth edition.

It is made up of chapters contributed by 44 Mallesons staff, mostly senior associates and partners, with almost a third of the chapters acknowledging the input of either former staff or generally more junior staff in the firm. Each chapter appears under the name of the author(s). The appearance of a second specialised law firm book like this, following the new book by about 20 Clayton Utz staff entitled The Essential Guide to Financial Services Reform (2002), prompts the question of what has happened to the solo academic commercial law textbook authors such as Harold Ford, Ken Sutton and Ted Sykes?

The book consists of 30 chapters, which are grouped into several parts. The first part contains chapters dealing with regulation and supervision of the financial system, payment and clearing systems, derivatives regulation and consumer credit. It is interesting that cheques hardly rate a mention.

The second part on capital markets has chapters dealing with fundraising and disclosure, domestic and international debt capital markets and securitisation.

Part three on debt finance includes chapters dealing with loans and bank finance, multi-lender financing, aircraft finance, infrastructure financing, inventory finance and trade financing.

The part on tax considerations comprises chapters on stamp duty issues in financial transactions and GST in financial transactions.

Part five deals with security techniques, charges, personal property securities including a reminder of bills of sale, security over ships and intellectual property and dematerialised securities.

Part six looks at insolvent transactions, directors’ duties to creditors and corporate insolvency.

The book concludes with chapters on other current issues such as the banker’s duty of confidentiality and privacy, and responsibility for financial advice.

The foreword acknowledges the contribution of David Allan, formerly Dean of Law at Monash University and now an Emeritus Professor at Bond University, who edited the book, and its many authors in Mallesons’ offices across Australia.

Paul Latimer
Associate Professor of Law,
Department of Business Law and Taxation,
Monash University

Horgan’s Law of Financial Services

Sharon Horgan, Horgan’s Law of Financial Services, 2003, Lawbook Co, paperback $104.

This book provides an introduction of about 350 pages to the Financial Services Reform Act, which is being implemented from March 2002 to March 2004.

The author, described as a senior lawyer in the Financial Services Regulation Directorate at the Australian Securities and Investments Commission (ASIC) in Sydney, opens and closes this book with some useful theory on and policy underlying the changes – including reference to economic functionality and consistent uniform regulation.

The book provides a competent description of the regulation of financial services, markets and products, licensing, disclosure, conduct and misconduct requirements. Other issues dealt with include title and transfer, privilege and codes of conduct, but there is little attempt to explain “what it means”.

There is an excellent table of cases (two pages) and table of statutes (18 pages) and an 11-page index, but “lay” names like CHESS, principal trading (s991E) and staff trading (s991F) will not be found in it. For example, are ASIC releases PS172 or LIC60 discussed or not, and if so, how would a reader find them?

This book competes with three others in this market: Hutley, Bennett and Russell, An Introduction to the Financial Services Reform Act (Butterworths – about 100 pages, but with no “section finding list”/table of statutes), the Clayton Utz The Essential Guide to Financial Services Reform (CCH – about 600 pages, with very helpful “checklists”, “tips” and “cautions”) and the long-awaited 2003 edition of Baxt, Black and Hanrahan, Securities and Financial Services Law (about 550 pages). The financial services market is big enough for all four, and each will have its followers.

Paul Latimer
Associate Professor of Law,
Department of Business Law and Taxation,
Monash University

Lives of the Australian Chief Justices: Sir William a’Beckett

Dr JM Bennett, Lives of the Australian Chief Justices: Sir William a’Beckett, 2001, The Federation Press, hardback $49.50.

The historian who sets out to write a series of biographies of a series of lawyers because each held a particular office faces a serious danger. The danger is that merely because the subject achieved a particular position in the legal hierarchy does not guarantee that the subject will provide an interesting life story.

In this context, the task Bennett has set himself appears all the more formidable when it is appreciated that he has set out to write individual volumes on each of the colonial chief justices of Australia – regardless of how interesting their lives may appear on a cursory glance.

In the case of the volume on Victoria’s first Chief Justice, Sir William a’Beckett, early signs indicate that Bennett had a hard task. Even on the first page of this biography, in the foreword by Justice Kirby, it is noted that at his death a’Beckett, who had returned to England, was considered a “colonial nonentity” and today lies buried in an “undistinguished burial ground in suburban London”.

And yet a’Beckett was Chief Justice at a most important time for Victoria. He was the “resident judge” when the colony was proclaimed in 1850, the man who swore in Governor La Trobe, and the judge who endured a period “in limbo” (as it were), providing justice in a very uncertain environment until the colonial legislature finally decided it was time to create the Supreme Court in 1852. Perhaps of more topical interest, however, is the fact that it was a’Beckett who presided over the trials which followed in the wake of the Eureka Stockade rebellion. In fact, it is probably in its discussion of this event’s legal coda that this volume will be of most interest to readers because, as Bennett notes, the history of the trials have been all but ignored by historians of this “enchanted ground”.

In these affairs and others, a picture of a’Beckett’s career comes through, but not necessarily one which was to the liking of all. It is clear that he was not everybody’s friend. For example, the press of the 1850s was regular in its criticism of his handling of trials. Similarly, the denial to him on his retirement of his anticipated full pension also suggests a lack of thanks in high places.

It is such details as these which fill out this volume. Perhaps it is not for all readers. However, it does present glimpses of a man who is to most Victorian lawyers little more than a name appearing at the head of rarely referred judgments in the older Victorian Law Reports. This biography gives the man an identity.

Andrew Field
Lecturer,
Department of Business Law and Taxation,
Monash University

Teachers, Students and the Law: A quick reference guide for teachers

Hopkins, D, Teachers, Students and the Law: A quick reference guide for teachers (national edn), 2002, Victoria Law Foundation, paperback $6.50.

The title and subtitle of this work briskly describe the purpose, content and style of this pioneering reference.

The first noticeable thing is the compact size of the edition: it would fit neatly into a coat pocket or a handbag – ideal for carrying while on yard duty at the school. The contents are logically and neatly divided into four parts: duty of care, discipline and physical contact, provision of educational services and welfare, family and crime. These provide the framework on which is constructed 66 pages of easily understood, comprehensive advice for the intended audience.

According to the acknowledgments, the first edition of this book was published in 2000 for Victorian school teachers. The various teacher unions were obviously so impressed with the publication that more than 60,000 copies were produced and distributed. A similar market and success can be guaranteed for this first national edition.

Newspapers are full of stories of litigation involving schools, teachers and their students. This is an essential manual for a profession whose members’ working lives are coming more and more into contact with the legal system.

Most lawyers would be concerned that their clients take steps to prevent future litigation. This publication is ideally suited to that end. Each chapter finishes with a checklist which will ensure that appropriate plans and procedures are in place to minimise harm to students and reduce the likelihood of disputes. School administrators should ensure that the appropriate policies on such matters as discipline, bullying, child abuse, emergencies and first aid etc. are comprehensive, and disseminated through staff meetings and noticeboards.

The advantage of this national publication is that it highlights the differences in the law between states for example in the areas of discipline and physical contact and reporting child abuse. Legislators and the Australian public should question why corporal punishment is permitted in some circumstances in the Northern Territory but not in the other states.

At first sight, this reviewer was puzzled why chapters on defamation and family law problems should be included in a publication of this type. However, the author has obviously had wide experience in the classroom and is able to give examples of these topics in the day-to-day running of an educational institution.

Essential homework reading for teachers.

Alan Ray
Springvale Monash Legal Service Inc


books@liv.asn.au

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