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Cite as: September 2012 86 (09) LIJ, p.68

This month’s reviews cover the disqualification principle, defamation law, the practice of law in Australia, and the history of legal expressions.

Disqualification For Bias

John Tarrant, Disqualification for Bias, 2012, The Federation Press, hb $165.

This book focuses on the scope and application of the disqualification for bias principle pertaining to a decision-maker. In the words of the author, the book “is designed to provide both a historical development of this area of the law as well as a practical guide to the application of the disqualification principle”. Measured against this aim, the book is a success. It first provides an excellent introduction to the area of law, and then takes the reader into in-depth discussions.

Although most of the content focuses on the law relating to judges, the book provides valuable commentary concerning decision-makers in general, including administrative decision-makers, tribunals, arbitrators and local government.

It is divided into nine chapters. The first chapter introduces the disqualification principle, with a primary focus on the judiciary. The text then considers the historical development of judicial bias (Chapter 2) and examines the legal test for bias (Chapter 3), with the main focus on English and Australian case law. Approximately one-third of the book is devoted to considering the factors that could give rise to a disqualification for bias (Chapter 4). The book finishes with a discussion of some practical issues (Chapter 7) and possible future developments in the area of the law (Chapter 9).

The book purports to provide the status of the law as of 16 March 2012. There is comprehensive discussion of Australian and international case law, as well as references to recent legal text and commentary. Throughout the book there is extensive use of quotes from judicial decisions. Although the use of quotes is at times lengthy, for the most part their use is invaluable. Indeed, in an area of the law where the application of the principle is far from black-and-white, the book clearly demonstrates that it is imperative for one to consider the direct language employed by the judiciary.

The book is well-suited for academics, practitioners and decision-makers. Overall, the author seems to have achieved the fine balance between academic discourse and practical applicability.

DAVID KIM, BARRISTER

Defamation Law in Australia

Patrick George, Defamation Law in Australia (2nd edn), 2012, LexisNexis Butterworths, $180.

Defamation Law in Australia is a comprehensive textbook of Australian defamation law. It includes a detailed history of defamation law and extensive references to the law of defamation prior to the introduction of the uniform Defamation Acts. The author divides the book into five sections.

First, there is an historical analysis of English common law of defamation and the law of defamation in Australia. These chapters cover topics as diverse as Roman law, duelling and the application of defamation law to the internet.

Secondly, the general principles and elements of the cause of action for defamation are examined. This section also describes a number of related causes of action which may be considered alternatives to defamation. There is a chapter on the developing area of privacy.

Thirdly, there is a short section on alternative dispute resolution in the context of the Defamation Acts.

Fourthly, there is a detailed discussion of the defences available both under the uniform legislation and at common law and other matters that arise in defamation litigation. This section covers matters taken into account by the courts in assessing damages.

Finally, there is an analysis of miscellaneous matters including evidentiary issues and criminal defamation.

Set out in appendixes are the Defamation Act 2005 (NSW), extracts from the Uniform Civil Procedure Rules 2005 (NSW) and comparative tables.

Defamation Law in Australia contains valuable discussions of the relevant historical context and development of defamation practice and procedure in Australia. It is a useful reference.

ANDREW WESTCOTT, HWL EBSWORTH

Lawyers in Australia

Ainslie Lamb and John Littrich, Lawyers in Australia (2nd edn), 2011, The Federation Press, pb $75.

There is a great distance a student must travel between graduating from law and practising it. Unfortunately there is no app to navigate it. There is, however, the second edition of Lamb and Littrich’s Lawyers in Australia which offers to contextualise the practice and responsibilities of becoming a lawyer. Practitioners who already have the first edition may be interested in the updates on the National Legal Profession Project.

The authors have experience both as practising lawyers and in training lawyers for legal practice at the University of Wollongong. Lamb has experience as a lecturer at the Leo Cussen Institute and in development of the Bar Admission Course in Ontario, Canada.

Many legal reference texts have evolved as of need (Ross on Crime springs to mind). Lamb and Littrich both taught the subject Lawyers and Australian Society at the University of Wollongong and the concept for this book evolved out of that subject.

Many of the topics covered are the subject of longstanding academic and social debates. There are topics which new lawyers may need guidance in, such as pursuit of work–life balance and the role of legal aid.

There are two parts. Part 1 deals with the sociological context of practising as a lawyer and covers everything from who lawyers are and what it is they do, to the war against terror and the balance of civil liberties. Part 2 covers the ethical context, from whether ethics can be taught to the self-represented litigant.

This text would be ideal on the primary or recommended reading list for legal practice courses or professional responsibility courses. It would be a useful reference tool for law trainees and new lawyers as well as a go to resource for the office or chambers.

TASMAN FLEMING, BARRISTER

Lawtalk

JE Clapp, EG Thornburg, M Galanter and F Shapiro, Lawtalk: The unknown stories behind familiar legal expressions, 2011, Yale University Press; hb $59.95.

Shakespeare and Dickens demonstrate how legal expressions often become part of everyday parlance. Lawtalk highlights the nexus between the lex and the lexical. Its four authors are all distinguished legal scholars and lexicographers.

Consider this passage: The shyster/rainmaker engaged in a fishing expedition to obtain blood money from a defendant with a deep pocket, leading to a paper chase, multiple billable hours and the extraction of pounds of flesh.

All of the nouns in that passage are examined and elucidated in this book, with great erudition. Errors such as the confusion between corpus (as in “corpus delicti”) and corpse are exposed.

Sidebars add to the entertainment: In the section on the age of consent, the story is told of a policeman on late night patrol stopping at a car to observe a couple in separate seats. He asks the young man in the front seat what he is doing. “I’m reading a magazine”, the youth replies. The constable points to the back seat and asks the youth what she is doing. “I think she’s knitting,” the young man replies. “How old are you?” asks the policeman. “I’m 19,” replies the youth. “And how old is she?” asks the officer. The young man looks at his watch and replies, “She’ll be 16 in 12 minutes”.

The origin of expressions such as jailbait, third degree, boilerplate and rap are also entertainingly elucidated. Colourful expressions such as blackmail, blue laws and green cards are explained.

Another sidebar under the heading of “Billable hour” is taken from a judgment in an American federal case. A deceased lawyer arrives at the Pearly Gates (a rare occurrence according to another sidebar). St Peter tells him he is pleased to welcome him, particularly because he lived to the wonderful age of 165. The lawyer corrects him and insists that he died at the age of 78. St Peter consults his scrolls and replies, “I see where we made our mistake. We just added up your time sheets.”

GRAHAM FRICKE QC, RETIRED COUNTY COURT JUDGE

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