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This month’s reviews cover employment law, musings on the practice of law, taxation of trusts and estates, and a biography of John Mortimer.

This month’s reviews cover employment law, musings on the practice of law, taxation of trusts and estates, and a biography of John Mortimer.

Stewart’s Guide to Employment Law
Andrew Stewart, Stewart’s Guide to Employment Law, 2008, The Federation Press, pb $59.95.

The fact that the author’s name appears in the title of this book reflects his widely-acknowledged expertise in Australian labour law. Professor Stewart’s work is well-known to academics and law students in particular, with his highly-regarded book, Australian Labour Law, jointly authored with Breen Creighton, now in its 4th edition. That book, along with many others dealing with Australian employment law, is out of date as a result of the changes introduced by WorkChoices and the election of a Labor government with a new labour law agenda. These factors make the publication of a new up-to-date book very welcome.

Professor Stewart’s book provides a comprehensive overview of the principal aspects of Australia’s employment laws. All the important aspects are covered: the formation, content and termination of contracts of employment; awards and workplace agreements; the Fair Pay and Conditions Standard, leave standards and pay scales; and dispute resolution and industrial action. It also briefly deals with anti-discrimination and occupational health and safety laws, which are topics often left out of general employment law books. It clearly explains the transitional arrangements following the WorkChoices amendments and anticipates the impact of the changes to the law proposed by the new Labor government.

The complexity of Australian employment law has resulted principally from the sharing of regulation between the states and the Commonwealth, the nature of federal power and the massive changes to the role played by awards and individuals and collective agreements over the past two decades. Guide to Employment Lawcuts through this complexity and explains all the principal features of the law in a concise and eminently readable fashion. It also provides brief but insightful commentary and analyses of many key issues, such as casual employment and the developing good faith duty on employers.

The book is clearly organised and well-presented. It dispenses with footnotes and a bibliography, making it less useful to readers who want to follow up some of the policy issues raised. There are, however, suggestions for further reading at the end of each chapter. This bookis highly recommended for anyone coming to this subject for the first time, or who needs to refresh their knowledge of this stimulating area of Australian law.

Karen Wheelwright
Faculty of Law, Monash University

The Making of a Lawyer
Geoffrey Gibson, The Making of a Lawyer: What they didn’t teach you at law school, 2008, Hardie Grant Books, hb $89.95.

Like its author, this book is intelligent, learned and eccentric. It is in some ways a summation of 40 years of the author’s experience in both practice of the law and the living of life. It is also an attempt to pass on to a younger generation of lawyers the author’s distilled wisdom, and an eclectic array of anecdotes about the law and a wide range of other human activities. When I went to the Bar, he warned me against two occupational hazards of barristers – pomposity and alcoholism. I don’t think that particular piece of advice appears in the book, but many others, equally worthwhile, do.

This book contains a series of discursions on legal method, reasoning and ethics. The author’s outlook is progressive in the sense that he thinks that the legal system can and should be changed for the better, yet conservative in the sense that he looks back to a (possibly mythical) golden past when legal writing was more direct, legal reasoning clearer and lawyers more interested in justice than money.

The prose style is clipped and concise – a hearkening back to the simplicity, clarity, elegance and short sentences of his hero Lord Denning. You may find parts of the book a little dense at first, but this is because it deals with some unashamedly hard concepts.

Among the most interesting and enjoyable sections are the pen portraits of the author’s judicial heroes Sir Owen Dixon, Lord Denning, Oliver Wendell Holmes and Mr Justice TW Smith. Also worth reading are his views about the modern litigation process (including the evils of oppressively large and expensive discovery and other interlocutory processes) and his general advice for lawyers.

This book would be more useful to young lawyers than many of the handbooks they are given. It also contains a good deal for slightly longer in the tooth practitioners.
It doesn’t tell you how to make money or how to run your practice more efficiently, but it may help you to achieve greater satisfaction from your professional activities, and even to become a better lawyer and person.

Michael Gronow
Victorian Bar

Trusts and Estates
Bernard Marks, Trusts and Estates: Taxation and practice, 2007, Taxation Institute of Australia, pb $320.

Very comprehensive is the best way to describe this book. Focused is another word that comes to mind. This is not a general text on trusts and estates. It deals only with tax issues relating to trusts and estates.

The book is designed to be used as a reference. I put it to the test by using it as part of my research in a number of different trust taxation problems. In each case I was able to find the relevant part of the text quickly and easily. The only difficulty I had was when I was searching for “trust re-settlements” and “re-settlement of trust”. The term “re-settlement” is commonly used but was not in the index. However, I found the information under trust variations fairly easily. A lengthy index, table of cases, table of statutes, table of determinations and rulings and a comprehensive table of contents provide many avenues for quickly finding the information.

Throughout the book there are many references to cases and published Australian Tax Office views. To provide practical tax advice it is important to be aware of the Commissioner of Taxation’s views. Therefore it is extremely pleasing that the book constantly refers to the Commissioner’s practice and views. However, the author does not always accept the Commissioner’s views and expresses a contrary view where, in his opinion, they may not be sustainable.

The book is designed around the life cycle of a trust and covers a myriad of topics, including CGT and the CGT small business concessions; tax issues relating to the creation and variation of trusts; a number of tax issues relating to the operation of trusts including personal services income; dividends and franking credits; and value shifting. Trust mergers, takeovers and de-mergers are also covered, as are the tax issues relating to deceased estates and testamentary trusts and trusts in a marriage and family breakdown. Foreign trusts and various other international aspects are also dealt with. There are good discussions on absolute entitlement, distributions of income and capital, and definition of income clauses, as well as distributions to corporate beneficiaries.

For anyone advising clients on trusts and estates and tax this is a valuable resource.

Rob Warnock
Macpherson + Kelley Lawyers

A Voyage Round John Mortimer
Valerie Grove, A Voyage Round John Mortimer:
The authorized biography, 2007, Viking, hb $55.

The title of this book is derived from John Mortimer’s A Voyage Round My Father, a stage play about his father, Clifford Mortimer. It’s an apt title because the blind, eccentric barrister father was a dominant force in his son’s life and consequently a dominant one in this biography.

Clifford was, in fact, the source of a great deal of material for John Mortimer’s writings, the most notable being that of the charming and irascible Horace Rumpole. However, unlike Rumpole, Clifford was a divorce barrister, hence his son’s comment that he had been “raised, fed, sheltered, clothed and educated on the proceeds of adultery, cruelty, desertion and wilful refusal to consummate”.

As the blurb says, Mortimer has led an extraordinarily rich life.

He was a lonely, only child, described by his father as “the most cheerful and entertaining of companions”, who was nonetheless sent away to school (because that was the done thing – something he later did with his own children), where he took solace in writing and the theatre.

He had two wives, both called Penelope, and fathered several children. He took silk and was later knighted.

Valerie Grove has captured this life with consistent vivacity.

Of particular delight is the chapter detailing the trial (and appeal) of university magazine for obscenity in 1971, in which Mortimer (by now a QC) appeared with the young up-and-coming Geoffrey Robertson. The charge was “conspiracy to corrupt and deprave the morals of the young of the realm” and carried a maximum sentence of life imprisonment.

Reminiscent of the Lady Chatterley’s Lover case, the Court saw a diverse range of witnesses, from the comedian Marty Feldman to the philosopher Edward de Bono and Oxford Professor of Jurisprudence, Ronald Dworkin.

The trial ran for six weeks and Mortimer’s closing speech took six hours. In Rumpolian fashion he opened with: “Ladies and gentlemen of the jury, we have sat here while the best of the summer has passed us by”. And concluded: “One may be tempted to feel that the prosecution is like some nervous public official who, when a child puts out a tongue at him in the street, calls out the army”.

This candid and entertaining book is highly recommended.

Jennifer Digby
Victorian Bar


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