Hassall, Douglas --- "Dal Pont: Law of Agency" [2003] IntTBLawRw 15; (2003) 8 International Trade and Business Law Review 429

By GE Dal Pont (Foreword by The Hon Justice Kevin Lindgren), Law of Agency, Butterworths, Sydney, 2001, ISBN 0 409 31655 5

This is a superb new book on the law of agency in Australia. It fills what hitherto has been, apart from some excellent but shorter treatments of the same topic, a noticeable gap in Australian commercial law publications. It is comprehensive, based, as its author indicates in the Preface, on ‘the reading of all 20th century Australian agency cases, as well as a significant proportion of English, Canadian and New Zealand cases of the same period. Frequent reference and citation [being made] to English case law from the 19th century and earlier’. This ‘and earlier’ will be welcome to those legal practitioners and judicial officers who, in the search for good expositions of fundamental principle, seek beyond the usual historicist focus upon the 19th century. The latter is rather like the all too ready identification of Victoriana with the truly ‘antique’. As in equity, many of the genuinely ‘classic’ judicial statements on the law of agency were first made in the 18th century, or even earlier.

If the overemphasis on 19th century decisions is perhaps an understandable tendency of the lawyers of nations like Australia, which came of age and also to self-government during that century, the book is not guilty of this. Instead, Dal Pont’s mode of proceeding is the sound one of providing a very clear and concise exposition of the law, using a careful balance of the most up-to-date contemporary, the earlier modern and the premodern case law. Whilst arrangement of the text into manageable numbered paragraphs is by no means new, the author has followed the commendable path taken in Australian legal writing by works such as Meagher, Gummow & Lehane’s Equity: Doctrines and Remedies and by (then Professor) Justice PD Finn, of the Federal Court of Australia, and others. This endeavour is to state briefly the essence of the principle animating the law or rule, referring to relevant case law and indicating the nature of exceptions and qualifications; and being alert to the best—including even venerable—expositions of a principle, but without unduly dwelling on the merely historical discussion of its development.

The book is structured in 26 chapters, arranged into eight parts under the headings as follows: an introductory discussion on the ‘Context’ [of the law of agency]; ‘Creation of Agency’; ‘Agent’s Authority’; ‘Agent’s Duties’; ‘Agent’s Rights’; ‘Principal’s Relationship with Third Parties’; ‘Agent’s Relationship with Third Parties’; and lastly, ‘Termination of Agency’, including an additional chapter on the ‘Revocation of Powers of Attorney’. All chapters are equipped with detailed footnotes referring to case law, statutory provisions, relevant legal texts and learned articles. The whole work is characterised by a wide sweep of view, extending across not only the Australian and English cases (although naturally these predominate), but also taking in Canada and New Zealand. The parts on creation and termination of agency are straightforward, direct and brisk. The former is notable for its admirable setting of the law of agency into context, by means of discussions on ‘Definition’, ‘Comparisons to Other Legal Relationships’, and the question of ‘Capacity’; likewise Part III on ‘Express and Implied Authority and Non-Delegation’.

The three succeeding parts: on ‘Agents’ Duties’ and ‘Rights’ and on the ‘Principal’s Relationship to Third Parties’, make up the bulk of the book. These parts each contain a detailed exposition of the state of the law in contemporary Australia, illustrated by detailed references to (and quotation of key extracts from) the case law, both leading and incidental. A notable feature of the author’s treatment is the strength of his discussion of the role of equitable principles and remedies in relation to agency, seen particularly in Chapter 12 on ‘Duties in Equity’. Another notable feature, welcome to Australian practitioners, is the discussion of Secret Commissions Legislation in the Australian States and Territories. Practitioners, and especially advocates, will find the author’s discussion of the agent’s standard of care, and the question of the extent to which Counsel can, or cannot, be regarded as an ‘agent’ of the client, of interest. In this regard, the author refers, inter alia, to the judgment of Fullagar J in Hansen v Marco Engineering (Aust) Pty Ltd [1948] VR 198, (at 203).

Dal Pont acknowledges in the Preface that the law of agency is never static, and he points to some very recent major Australian decisions whose effect could not be taken into account in this first edition, but which will fall to be dealt with in the second edition. These include the decision given by the Federal Court of Australia in November 2000 in NMFM Property Pty Ltd v Citibank Ltd (No 10) [2000] FCA 1558. Some kind of concluding chapter on ‘possible directions and emerging developments’ might have rounded off the work, but many of those aspects are quite adequately indicated in the relevant chapters. It may well be that our (very busy and productive) author will have the opportunity to add something along those lines to the second edition. The book’s production is in the familiar format of Butterworth’s legal textbooks series, and its notably high standard is a credit to the publisher.

The author, Dal Pont, teaches in the Faculty of Law in the University of Tasmania at Hobart. In 1996, his book, Lawyers’ Professional Responsibility in Australia and New Zealand, performed a similar and very welcome service for Antipodean lawyers and legal scholars to that of the present book. That book amounted to the first truly comprehensive, very well organised and thematic treatment of its subject, containing a wealth of references to relevant and up-to-date case law, statutory materials and legal professional bodies’ guidelines. It can be expected that this new book on the Law of Agency in Australia will be equally well received, and likewise, referred to often by judges and much consulted by practitioners.

Speaking at the recent launch of the Oxford University Companion to the High Court of Australia, a project celebrating both that Court’s upcoming centenary 1903– 2002 and also, incidentally, the centenary of Australia’s Federation in 1901, Chief Justice of Australia, Hon Murray Gleeson AC noted the pressing need in Australia, as elsewhere, for much more ‘bridge-building’ between legal practice and the academic study of law. These two fields are not strictly exclusive and autonomous, despite what some, upon each side of that particular divide, would have us all believe. Weisbrot reminded us in his Australian Lawyers (1990) p 123 of Max Weber’s wry observation, as early as 1905, on the tendency of some forms of law teaching in modern times towards the ‘emancipation [sic] of legal thinking from the everyday needs of the public’. That was then, and still is, a very curious and, indeed, disturbing development.

It is sound, well informed and well rounded legal scholarship like that found in the present work which will make permanent and positive contributions to the rule of law in civil society and to the public good. Dal Pont has proved himself an excellent bridge-builder, using durable materials and a solid structural sense to give us a legal work over which the needful traffic of ordinary commercial activities can be safely guided. It is not usual to comment on book dedications. However, in this case it seems to me that the manner and occasion thereof illustrates something of the author’s solid grounding in the realities of justice and of community, which appears to inform and balance his discussion on the law of agency. Like Sir Isaac Isaacs (a great Australian expositor of principles in equity), Dal Pont has reflected there a heartfelt filial piety for his late mother: Sapeva poco della lege, ma conosceva delle cose piu importanti (she knew little of the law, but she knew about the most important things). This is a welcome and eminently useful addition to the bookshelf of the commercial lawyer.

Douglas Hassall