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Cite as: (2003) 77(7) LIJ, p.80

Principles of equity, child support, the prosecution of corporations and a history of early Australian criminal law are the subjects of this month’s reviews.

Principles of equity, child support, the prosecution of corporations and a history of early Australian criminal law are the subjects of this month’s reviews.

The Principles of Equity

Patrick Parkinson (ed), The Principles of Equity (2nd edn), 2002, Thomson Legal, paperback $139.49.

The first edition of this work in 1996 brought together 20 different authors with essays on the varied aspects of equity. It is a tribute to those authors that it has been necessary, a mere six years after the original edition, to prepare a second edition because of what is described by the editor as a “renaissance” of equity in Canada, New Zealand, Australia and, particularly, the UK.

The renaissance is attributed to changing community attitudes which are being reflected in the decisions of the courts.

The text is an important reminder that what started as a system of remedies to the inflexibility of the common law system has now become a vital ingredient to a properly functioning legal system.

It is divided into six parts covering the history and nature of equity, unfair dealing, obligations of trust and confidence, assurances and assignments, remedies and defences and equitable set off.

These parts contain 30 separate essays by a number of academics and practitioners which allow you to dip and browse on various issues that attract your interest.

The four chapters that make up Part 1 should almost be compulsory annual reading for any practising lawyer because they cover the fundamental principles of equity and are a reminder of why these principles were developed in the first instance.

The five chapters dealing with unfair dealing are a useful summary of the law as it stands at this time. An analysis of unconscientious dealing in equity and through statute and a comparison of the remedies available through equity and statute are included.

Fiduciary obligations, breach of confidence and undue influence are also carefully analysed and considered.

This is an important area of the law because the categories of fiduciaries are not closed and there are constant issues where people have exercised undue influence over others to their detriment.

The final part deals with defences that apply when the defendant admits the technical aspects of the plaintiff’s claim but says the claim should be varied or set aside because of other factors such as delay or waiver on the part of the plaintiff.

What is most striking about the text is that it makes it clear that equity is alive and well in Australia and continues to develop and respond to the myriad of situations that the world throws up.

It is also clear that equity always attempts to provide a solution based on the most fundamental principle underlying equity, that is that conduct contrary to the conscience should not be allowed to prevail.

Mark Harrick
Ponte Earle Harrick

Child Support: A practitioner’s guide

J Bowen, Child Support: A practitioner’s guide (2nd edn), 2002, Lawbook Co, paperback $88.

This book is not an annotated commentary on the Child Support (Assessment) Act 1989 or the Child Support (Registration and Collection) Act 1988, nor is it a learned treatise on the reported cases.

It is, according to the preface, intended to be a ready reference rather than a detailed and technical account of the law.

The guide, according to the author, is “designed to help those non-family law practitioners in particular, first to understand a complex piece of legislation and then to communicate it in a way that their clients will understand”.

Only 87 pages are devoted to commentary and the balance of the 420-page book is five appendices and an index. Appendix 1 is a glossary, appendix 2 is a list of child support contacts, appendix 3 contains the forms and appendices 4 and 5 are the text of the two Acts.

The book succeeds admirably in presenting a commentary in a logical, structured way. Many complain that the Acts are convoluted and hopelessly interconnected. The commentary breaks completely with that legislative straitjacket and answers, in a logical sequence, all questions likely to be asked by a client. It begins with an overview and then moves through assessments and agreements, to changing assessments, objections and enforcement.

Another excellent aspect of this publication is that the relevant government agency was involved. This cooperation has ensured that the forms are reproduced in the text. The book comes with a CD-Rom which contains the relevant forms and legislation.

Flowcharts which assist with understanding court procedures and general litigation pathways would improve the text. Although some “checklists” have been included, more extensive use of these would make for an even more valuable resource.

This reviewer would also like to see a graduated income child support table, which would answer the first question any client has: “How much do I have to pay/how much will I get?”.

However, this book fulfils the aims of its author admirably.

Alan Ray
Springvale Monash Legal Service Inc

The Prosecution of Corporations

Jonathon Clough and Carmel Mulhern, The Prosecution of Corporations, 2002, Oxford University Press, paperback $75.

In Environment Protection Authority v Caltex Refining Pty Ltd (1993) 178 CLR 477, Mason CJ and Toohey J said: “The doctrine of the corporation as a separate legal entity and the complexity of many corporate structures and arrangements have made corporate crime and complex fraud one of the most difficult areas for the state to regulate effectively”. As the authors of this work demonstrate, that statement remains pertinent 10 years on.

The book is a practical guide to the law underpinning corporate prosecutions, albeit with a strong academic bent.

The attachment of criminal liability to a corporate entity is a difficult concept and issues of proving liability are dealt with in the book’s two central chapters. The authors explicitly recognise that criminal liability is a relatively immature branch of the law, and refer to past reforms as “often unprincipled and piecemeal”.

Chapter 3 outlines general principles of corporate criminal liability, providing an exegesis of its origins and development. It analyses the arguments for and against such liability, and addresses how the common law has created vicarious and direct liability in corporations.

A separate chapter is devoted to statutory criminal liability of corporations and their officers. It analyses the US Model Penal Code as it applies to corporations, and Part 2.5 of the Criminal Code Act 1995 (Cth). It explains the interaction of corporate criminal liability with the civil penalty regimes in the Corporations Act 1995 (Cth) and the Trade Practices Act 1975 (Cth). Finally, it comments on the attempts made by the common law and various statutes to create liability in corporations for manslaughter.

Chapter 6 of the book rounds out the analysis of the prosecution process by explaining the final step in a successful prosecution: sentencing.

While some may find the book’s consistent forays into academic theory distracting from its practical discussions, those parts of the book provide a solid foundation for the recommendations for reform made in a short final chapter entitled “The way forward”. As a result, the book is a thorough, interesting and well-structured analysis of the principles of corporate criminal prosecution. It will be a useful addition to the library of a practitioner working in one of the many areas where corporations can incur criminal sanctions.

Stewart Maiden
Barrister

A History of Criminal Law in New South Wales: The colonial period 1788-1900

GD Woods, A History of Criminal Law in New South Wales: The colonial period 1788-1900, 2002, The Federation Press, hardback $69.50.

How does a legal system deal with the problem of credibility of witnesses when more than half of the population is made up of convicts and ex-convicts? In the early days of the law in New South Wales this was a real difficulty. Under the law inherited from England when Captain Arthur Phillip landed at Port Jackson, ex-felons were denied any legal standing. They could not appear as witnesses if English law was strictly applied and they had no rights to sue or own property. The difficulties such law imposed on a growing settlement where ex-convicts would hopefully become good citizens after release – and in which many such people did make good – were many. Fortunately, as is explained in this book by Judge GD Woods of the New South Wales District Court, such difficulties were overcome.

Justice in the first days of European settlement in Australia was a rough affair. In 1788, the key legal office was that of Deputy Judge Advocate, first filled by David Collins (subsequently founder of the colony at Tasmania). In that capacity, he would sit as judge in criminal trials with six other officers as a military court and dispense justice. However, he was in a difficult position, torn between any notions of judicial independence and his commission to follow orders “as you shall receive from our Governor”, and insofar as he was effectively acting as both judge and prosecutor.

Yet, despite these difficulties, the author notes that Collins did his best to act fairly and lawfully, without pre-judging and acting on evidence.

Judge Woods charts a number of developments in this book, dealing with not just the development of the criminal law, but also the system administering it and the punishments it delivered where considered necessary.

This is a wide-ranging volume and the personalities who filter through its pages are an eclectic lot, ranging from Bligh and Macarthur and their ilk, through to the early judges Stephen and Forbes, right up to the criminal baby farmers, the Makins, and their backyard which became a graveyard for the infants they murdered.

This is an interesting and readable work and well worth pursuing.

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


books@liv.asn.au

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