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Cite as: March 2011 85(3) LIJ, p.68

This month’s reviews cover a biography of former High Court judge Mary Gaudron, amending final judgments and orders, animal law and European civil law systems.

From Moree to Mabo

Pamela Burton, From Moree to Mabo: The Mary Gaudron story, 2010, UWA Publishing, pb $49.95.

This is an excellent book. It is the more remarkable in that the author, a Canberra practitioner, was denied the cooperation of the subject – the first woman appointed to the High Court – and refused access to archival papers. Like her subject, the author displays erudition, humour and careful research. The result is a delight, an insightful treatment of a remarkable woman who, like her American counterpart Sandra Day O’Connor, was told early in her career that she should learn to touch-type.

Burton examines the tortuous path of Mary Gaudron’s career: just six years at the Bar, during which she handled high profile cases with remarkable skill and success; appointment to the Arbitration Commission at the age of 31; resignation six years later over the Staples affair; Solicitor-General of New South Wales during the stormy years of the Wran government; appointment at the age of 44 to the High Court and service during the activist years of the Mason court.

Gaudron is unconventional, feisty, independent, passionate, outspoken, irreverent and empathetic. She was nevertheless popular and respected by her more conservative brethren. The use of emotive language in the joint judgment of Justices Deane and Gaudron in the Mabo case (“legacy of unutterable shame” etc.) has been criticised. Its genesis becomes clear when one reads of Gaudron’s childhood in working-class Moree. There she observed at first hand discrimination against Aborigines, who were not even allowed to visit some parts of the town. She later experienced the unequal treatment of women, especially within the legal profession. Thus began her quest for equal justice.

Among Gaudron’s impressive qualities has been her perseverance, which helps to explain how a railway fettler’s daughter was able to win scholarships and a university medal and progress so swiftly in a challenging profession. She did so despite competing demands of motherhood – she made one appearance during an advanced stage of pregnancy, to the consternation of Sir Harry Gibbs who ordered a doctor to be stationed nearby. A newspaper noted that there was a “pregnant pause” in the proceedings. Gaudron was not amused.

Graham Fricke QC, Retired County Court judge

Amending Final Judgments and Orders

John Tarrant, Amending Final Judgments and Orders, 2010, The Federation Press, hb $125.

This book is an interesting and detailed account of the power of courts to amend final judgments and orders. Its focus is the well-known slip rule, the rule of procedure which allows a court to reopen orders after they have been entered. The book gives many examples which attest to the rule’s significance.

The main substantive topics addressed are the jurisdiction to correct errors; the elements of the slip rule; the errors, slips and omissions which lie within the scope of the rule; the orders which are capable of being corrected; and discretionary considerations. The book also examines in depth the controversy over the use of the rule to retrospectively extend a statutory deadline, and various practical considerations. The detail includes discussion of application of the rule to criminal proceedings and similar statutory rules applying to tribunals.

The book is primarily a description of the current law. Discussions commence with a general proposition. However, it is not dry but scholarly and readable. Cases are carefully examined, judiciously quoted and considered. The historical and juridical context of the slip rule is also explored. The book discusses current pressures on the rule, including the possible effect of overarching purpose provisions in court rules.

A theme throughout is the slippery nature of the underlying principle, and the rationale for the rule’s operation – the enforcement of the court’s “intention” behind the impugned judgment or order.

The book is well written. The author underpins the analysis with a careful statement of relevant concepts including “inherent jurisdiction”, “implied power”, courts of “unlimited jurisdiction”, “judgment” and “order”. He notes the inapplicability of the rule to interlocutory orders, liberty to apply, and to cases involving deliberate decisions, afterthoughts and substantive matters not raised at trial. This supports his point that the invocation of the slip rule is an exceptional power which applies in limited circumstances only.

I found the book illuminating. At a shade over 200 pages, it will no doubt be a welcome addition to court libraries as well as being an essential resource for all practitioners, especially those involved in civil litigation.

Jeffrey Barnes, School of Law, La Trobe University

Animal Law in Australia and New Zealand

Deborah Cao, Animal Law in Australia and New Zealand, 2010, Thomson Reuters (Professional), pb $85.

In the foreword to this textbook, former High Court judge Michael Kirby writes that “there is nothing so powerful in the world as an idea whose time has come”. Animal Law in Australia and New Zealand is ostensibly a black-letter exposition of legislation and case law relating to animals. However, as Michael Kirby perceptively appreciates, it is also a sign that animal protection discourse may have finally achieved mainstream status.

The overall purpose of this text is to present animal legislation and jurisprudence dispassionately. Those looking for stinging critiques of animal laws are unlikely to find them here, except that merely outlining the actual laws is often sufficient to highlight their inadequacy. Instead, this text is an essential reference for students, academics and practitioners in animal law.

Part 1 provides an overview of the evolution of modern attitudes towards animals, and how our laws evolved alongside our philosophies to extend protection to animals from cruelty. Part 2 examines animal statutes across New Zealand and each Australian state and territory and how these statutes protect (or, usually, fail to protect) animals. This discussion covers companion, farm, wild and research animals.

There are a couple of unique features that make this book most valuable. The first is that it synthesises relevant legislative provisions and regulatory regimes from different jurisdictions; it is therefore a one-stop reference for comparative legal analysis. The second is that it intersperses the analysis of statutes with an extensive collection of case law, including a number of unreported Magistrates’ Court decisions that would otherwise remain unknown and unanalysed.

Animal law is, quite rightly, commonly subjected to critique for its weak cruelty protection, unprincipled exemptions and poor enforcement mechanisms. This existing body of critical literature may be inadequate for those looking for a basic introduction to what animal statutes actually say, and how they are interpreted and applied by the courts. This book fills the gap. Given the rising interest in animal law activism, its release is not a moment too soon.

David Glasgow, Vice-president, Lawyers for Animals Inc.

Fundamentals of European Civil Law (2nd edn)

Martin Vranken, Fundamentals of European Civil Law (2nd edn), The Federation Press, pb $74.95.

This book is a concise and lucid introduction to the civil law systems of Europe. Clearly written with the common law reader in mind, it commences with an historical overview and brief introduction to the field of comparative law. This helpfully identifies the key features of civil law systems. Those trained in the common law are often mystified by the emphasis placed on statutes, or codes, in civil law systems. Consisting of a small number of short, open-textured provisions, codes are intended to regulate entire areas of law, such as contracts or torts. Previous court decisions are not regarded as a binding source of law. This may seem alien – until one remembers that the doctrine of precedent does not apply in many tribunals in Australia and other common law countries.

Focusing primarily on the legal systems of France and Germany, Dr Vranken argues that European civil law is rapidly evolving. Change is particularly evident at the supra-national level, due to the impact of the European Union on the substantive law of its constituent members.

In terms of substantive law, the book is necessarily brief and selective in its coverage. Developments in contract law, torts, labour law, commercial law and court procedure in several European countries are covered. These examples are used to illustrate the author’s thesis that not all civil law systems are alike. He refers to civil law as a “family” of legal systems, with each having a distinct history and unique features.

This work is a valuable contribution to the field of comparative law. Recent advances in global interconnectedness mean we can no longer be provincial in our outlook. This book should be read by those wanting a general introduction to the civil law systems of Europe, and anyone wishing to expand their horizons of knowledge.

Bill Swannie, Tenants Union of Victoria

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