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Cite as: May 2015 89 (5) LIJ, p.63

This month's books cover punishment in our criminal justice system,  tales from the legal profession and the trial of Oscar Pistorius.

Voidable Transactions in Company Insolvency

Farid Assaf, Brett Shields, Hilary Kincaid, Voidable Transactions in Company Insolvency, LexisNexis Butterworths, 2015, hb $285

The scene is common enough – a client has tried to collect an overdue account, been told by the company debtor that things are “tight” and would they accept payment by way of instalments. The client accepts but before too long a liquidator calls them to advise that the debtor is now in liquidation – not only will the balance of the instalments never be paid but your client has been asked to disgorge what they have received already. Welcome to the wonderful world of voidable transactions.

This is the first edition of a detailed text book prepared by two barristers and a solicitor from Sydney. The title betrays the narrow focus of the work on part 5.7B of the Corporations Act 2001. This is the part of the Act which outlines the powers of liquidators to set aside transactions that occurred prior to their appointment, and thereby “claw back” assets into the company.

This book follows fairly closely the structure of part 5.7B. The text commences with a detailed examination of the essential elements to establish a voidable transaction – insolvency; relation-back days; and the concept of one creditor being “preferred” over others. At the heart of part 5.7B is the concept of pari passu – that is, all unsecured creditors should be treated equally in liquidation, without preferential treatment to the more diligent or forceful ones.

After a chapter dealing with what constitutes a transaction, the text examines each of the four types of voidable transactions, then director-related transactions. It then has chapters discussing how a Court can deal with voidable transactions, avoiding and vesting of security interests, and the civil and criminal liability of directors. This chapter deals primarily with insolvent trading actions against directors, which is the natural corollary to some creditors being preferred while directors try to keep their business afloat.

The text concludes with a useful chapter which details the practice and procedure of “preference” actions, and a closing chapter on cross-border insolvency aspects of voidable transactions.

Overall, the text is thorough and written in a readily comprehensible if understandably dry style, with a good combination of text and footnotes, plentiful reference to current case law, an easy to use table of contents and reasonable index which prefers brevity to depth. It is a useful addition for any lawyer whose practice includes insolvency or acting for clients affected by liquidators’ claims.

MARK WORSNOP Kahns Lawyers

Commonwealth Criminal Law

Troy Anderson, Commonwealth Criminal Law, The Federation Press, 2014, hb $125

There are frequent prosecutions in Victorian courts for offences arising under Commonwealth legislation. This excellent book, comprising some 242 pages, will be of assistance to practitioners involved in that process.

The introductory chapter explains the constitutional and statutory basis for Commonwealth criminal legislation as well as exploring how it interacts with legislation in the states and territories. There is then a very useful chapter on principles of Commonwealth criminal responsibility as identified in the Criminal Code, which is contained in the Schedule to the Criminal Code Act 1995 (Cth). Inchoate offences, including conspiracy, are explained, as is the High Court judgment in Agius (2013) 248 CLR 601. The physical and fault elements of Commonwealth offences are well explained. Those elements are considered later in the book by reference to particular Commonwealth offences, producing an overall cohesiveness to the text.

The main subject areas of Commonwealth offences are delineated in separate chapters – offences against the Commonwealth and those arising under the Corporations Act 2001 (Cth), money laundering and proceeds of crime, counter-terrorism, serious drug and child exploitation offences. It is inevitable that, given the breadth and size of the code, some areas are not considered including people smuggling and the offence of bribery of a foreign overseas official ( Divisions 73 and 70 respectively). Certainly in the case of the latter, this may well be because of the absence to date of any criminal conviction.

The areas covered make full reference to the code and recent authority from all states and territories. Where appropriate, a comparative assessment is conducted between the elements of a Commonwealth “non-code offence” and the relevant terms of the code. Thus the different meanings of “dishonesty” in s184 of the Corporations Act and Chapter 7 of the code are considered.

The role of the common law and Part 1B of the Crimes Act 1914 (Cth) in sentencing are fully considered as is a consideration of that form of sentencing peculiar to Commonwealth offending, the recognisance release order. The book concludes with a chapter on extradition. There is also an excellent index.

I found this book readable, accessible and informative.

CAHAL FAIRFIELD Barrister

Statutory Interpretation in Australia

Dennis C Pearce and Robert S Geddes, Statutory Interpretation in Australia (8th edn), 2014, LexisNexis Butterworths, hb $250

The eighth edition of the text by Pearce and Geddes marks the 40th anniversary of the first edition – a remarkable accomplishment for the authors, and Professor Pearce in particular (Professor Geddes having joined for the third edition in 1988).

Over the 40 years there have been many changes, both in the law and in the text. Whereas the first edition gave emphasis to the literal rule, the text now emphasises the modern, contextual approach propounded in CIC Insurance Ltd v Bankstown Football Club Ltd (High Court, 1997). The main changes to the previous edition (2011) are of two kinds. First, there is updating. Examples are to incorporate the extensive changes made by the Acts Interpretation Amendment Act 2011 (Cth) (chapter 6), and developments relating to the making of implications in chapter 2 (Taylor v Owners – Strata Plan No 11564, High Court, 2014). The other change is to the presentation of the text. An example is a new Table of Recognised Principles, Rights and Privileges, in chapter 5 dealing with the Principle of Legality. However, curiously, the copious references remain in the body of the text. Some passages contain so many references that it is difficult to read the text by itself. Perhaps this could be reconsidered for the next edition.

The latest edition contains an interesting foreword by Chief Justice French. In the foreword to the first edition his predecessor, Barwick CJ, wrote: “Rarely can the ‘rules’ be definitive of interpretation. Perhaps it may be said that they denote elements of approach to construction which a well-furnished Judge will almost intuitively carry in mind as possible factors in his endeavour to discover meaning”. Ought the contemporary practitioner be expected to carry in his or her head the law of interpretation? To some extent, yes. Much of it, such as the linguistic canons, is basic, common sense, and familiar. But there are a number of complex and developing areas of the law for which Pearce and Geddes is particularly useful, such as the rights which attract the principle of legality, the law on retrospectivity, and arcane aspects of the Interpretation Acts.

DR JEFFREY BARNES La Trobe University

Old Law, New Law

Keith Mason, Old Law, New Law: A Second Australian Legal Miscellany. The Federation Press, 2014, hb $59.95

Written by former NSW Solicitor-General and Court of Appeal President the Hon Keith Mason, this book is a follow-up volume to his book, Lawyers Then and Now.

Old Law, New Law continues with the same theme as Mason’s earlier book of interesting and illustrative stories about Australian law and legal history. There is a difference between the two books and to quote from the author’s preface in Old Law, New Law: “If there is any change in focus, this work uses the prism of legal doctrines and practices to look at the quirkier, ever fallible folk of the law”.

The author certainly achieves this change of focus through the range of topics chosen. Examples of these quirky subjects include:

  • the practice in early Australian colonial history of getting out of a marriage through the processes of wife sale and bigamy. Apparently this practice developed because of the existing harsh divorce laws. According to the author, there was an example of wife sale as late as 1881;
  • the role that food and drink has played in litigation in Australian courts and the rich pickings that this subject has provided for lawyers. The author writes about a greasy potato chip that made its way to the High Court and the legal issues of cannibalism in Papua New Guinea courts;
  • whether a will written on a wall could be admitted to Probate as a valid will; and
  • how judges rebuke each other in judgments, with the author giving examples of a number of vigorous rebukes between judges in different courts. He describes one exchange between judges in their different judgments as “trading blows”.
  • The book is worth reading not only for the unusual subjects but for the many entertaining and memorable phrases the writer uses. For example, in one chapter when referring to judgment writing, the author states: “Some judges are hawks for the lengthy sentences they imposed on convicted criminals. Others inflict horribly long sentences on their readers”. The author then gives examples.

    This is a book that should appeal to lawyers and anyone interested in Australian law and the often lesser known aspects of Australian legal history and legal lore.

    SCOTT WHITECHURCH Lecturer, College of Law

    The Trials of Oscar Pistorius: Chase Your Shadow

    John Carlin, The Trials of Oscar Pistorius: Chase Your Shadow, Allen & Unwin, 2014, pb $30

    South African paralympian Oscar Pistorius killed his girlfriend, model Reeva Steenkamp, on Valentine’s Day 2013 by shooting her four times through the bathroom door of his home with a 9mm pistol. He claimed it was a terrible accident and that he had mistaken her for an intruder, however he was subsequently charged with her murder. A guilty verdict seemed the most likely outcome of the trial. Certainly the view of many in the South African legal community was that, even on Pistorius’ own version of events, he had shot to kill and was therefore guilty of murder.

    And yet Pistorius was found not guilty of murder, either of his girlfriend or the unknown intruder he claimed to think he was shooting through the bathroom door. Instead he was found guilty of the lesser charge of culpable homicide (manslaughter) and sentenced to five years imprisonment. On his lawyer’s estimate, this should translate to 10 months behind bars before Pistorius will be eligible for release into house arrest.

    Was this the correct outcome based on the evidence that was presented to the court? The time Carlin’s book spends on the trial itself is fascinating, shedding as it does a light on the South African justice system and the country itself. Carlin knows it well; he lived and worked there as a journalist and has previously written a book about Nelson Mandela’s life after his release from prison. He describes the changes since apartheid ended, changes that have resulted in a country with a highly functional, objective legal system. It is, he suggests, a system that treats black and white, rich and poor equally. Crime rates are on the way down and black social mobility is on the way up – exemplified for Carlin by the fact that the judge in Pistorius’ trial was a black woman – Judge Thokozile Matilda Masipa.

    However, the book focuses more on the childhood and career of the man accused of the murder than on an examination of the details of the crime and Pistorius’ subsequent trial. It leaves the reader wanting to know more about the complexities of the case, the evidence put before the court, and the judgment.

    AMANDA MORRISON Murray Mallee Community Legal Service

    Crime and Punishment

    Russell Marks, Crime & Punishment: Offenders and Victims in a Broken Justice System, Black Inc., 2015, pb $20

    The main thrust of this book is aptly given on p179 where it is noted that “. . . the more restorative, the more therapeutic and the less punishment-focused our criminal justice system becomes, the better we will be at prevention and rehabilitation . . . ” That message is given in unmistakeable terms. The notion is that we should move away from the “personal responsibility” of offenders to instead focus on prevention. While one cannot disagree with that proposition, there is still the issue of how one distinguishes the irresistible impulse from the unresisted one. In the book the point is made strongly that punishment is guided more by legalities and precedent, rather than by evidence. Further, the relationship of crime to disadvantage is made most strongly.

    We rightly deplore the stain on the Aboriginal character in that Indigenous Australians form a grossly disproportionate number of those convicted of a crime. There may also be elements of the legacy of colonialism in our treatment of the Indigenous but that is not the sole explanation. Yet more research is needed.

    Much is made of the valuable existence of Koori courts, circle sentencing and drug courts. Rather less is made of general mental health courts which every Australian jurisdiction has except Tasmania, and even there Court Mandated Diversion Programs are used.

    With respect to the text, one would have to say that the account is forceful yet discursive. How effective prison is as a deterrent is a topic most worthy of engagement. From this reviewer’s perspective it would have been desirable to have the propositions set out clearly at the beginning of the book. This valuable work does have notes that give the basis of conclusions, but there is no index. That, and a statement of basic propositions, would make this contribution yet more valuable for the busy practitioner.

    RONALD D FRANCIS Professor Emeritus, College of Law & Justice, Victoria University

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