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Editors --- "Reviews" [1994] JlLawInfoSci 10; (1994) 5(1) Journal of Law, Information and Science 125

Book review

Australian Corporate Insolvency Law

by ROMAN TOMASIC

Butterworths, Sydney, 1993 xlviii, 367 pp including bibliography and index. $55.00 (pbk)

This is a text that is long overdue in Australia. The recession has highlighted business and personal financial failure and insolvency courses have mushroomed in the universities and further education facilities around Australia. Indeed this reviewer was requested some four years ago to introduce a one semester unit on personal and corporate insolvency at the University of Tasmania. In researching this topic it became clear that while personal insolvency was given a broad coverage with texts such as Australian Bankruptcy Law, corporate insolvency was only treated as an adjunct to the more traditional areas of corporate law such as director’s duties and minority shareholder remedies. There were of course very detailed texts on particular areas of corporate insolvency such as receivership and liquidation; but there was no general text. However recently a number of texts on insolvency, both personal and corporate have recently been released, including this excellent book by Tomasic.

The text is intended for students in law schools and business schools offering specialised courses in corporate insolvency law and contains 13 chapters:

- The Principles of Corporate Insolvency Law,

- Appointment of Receivers and Other Controllers of Property of the Corporation,

- The Effects of the Appointment of a Receiver,

- The Duties and Responsibilities of Receivers and Other Controllers,

- Arrangements and Reconstructions,

- The Deed of Company Arrangement Procedure,

- Winding Up on the Ground of Insolvency,

- The Court and the Winding Up Process,

- Some Effects of Court Ordered Winding Up Proceedings,

- Voluntary Winding Up and Dissolution,

- Proof and the Ranking of Claims,

- Liquidators,

- Examinations, Offences and Penalties.

Each chapter is well structured with a number of sub-headings throughout. Importantly significant extracts of articles and cases are used. As a student and teaching text this is to be applauded. It enables the reader to gain a feel for legal reasoning and writing whilst still providing the stimulus for further research. To complement this further references are amply provided. These extracts also allow the lecturer to use the monograph as a basis for a Socratic teaching method. Furthermore the policy basis for the legislation is considered enabling a critical analysis and discussion of the reasons for the introduction of the law. The learning process is further assisted by numerous diagrams, statistical information and flow charts.

To illustrate the comprehensive nature of the text the chapter on the deed of company arrangement contains the following sub-headings:

- The commencement and termination of administration,

- The appointment of an administrator,

- Qualifications of administrators,

- First meeting of creditors,

- The committee of creditors,

- The second meeting of creditors,

- Functions of the administrator,

- Investigation of the affairs of the company,

- Protection of the company’s property during administrations,

- Rights of chargee, owner or lessor,

- Specific powers of the administrator,

- Qualified privilege,

- Liability of the administrator for debts of the administration,

- Indemnification of the administrator for debts of the administration,

- Execution and effect of deed of company arrangement,

- Variation, termination and avoidance of deed,

- Transition to a creditors’ voluntary winding up,

- Powers of the Court,

- Removal, replacement and remuneration of administrator,

- Stamp duty on deeds of company arrangement.

The chapter begins with a significant extract from the second reading speech from the then Attorney-General; followed by some comments from the Harmer Report. The Explanatory Memorandum is also noted. These aspects are significant in that they allow the policy basis for the introduction of the legislation to be considered and questioned where appropriate. Under the heading of the appointment of an administrator the comparable English cases are noted and discussed. Throughout the remainder of the chapter detailed commentary is provided on the operation of this new legislation with apposite reference to the explanatory memorandum and overseas authorities where they may be relevant. Where cases are mentioned they are often utilised with a significant extract from the judgment. Another reason for the importance of this is that many students will not have ready access to primary legal materials.

All chapters follow a similar format and give the same comprehensive treatment. Overall this text fills a niche in the market place in Australia and should do extremely well.

Lynden Griggs, Lecturer in Law, University of Tasmania.

BOOK REVIEW

Joint Ventures Law in Australia

by W.D. DUNCAN

The Federation Press, Leichhardt, NSW, 1994 $75, 467 pages, (hbk)

In many ways the development of commercial law doctrines lags behind the implementation of new business structures. The law in Australia relating to joint ventures is one example of this. Unlike in the United States where there is a coherent body of joint venture law, Australia has only just begun to develop a specialised body of law applicable to joint ventures, which considering their use in natural resource projects is somewhat surprising. Because of this reason this text is long overdue.

The text has two aims: one, as a primary work to describe and analyse joint ventures and two, to consider other areas of law which influence the way joint ventures operate. In achieving this the book provides a comprehensive coverage of the areas relating to joint ventures.

The text contains fourteen chapters, each written by a different author(s), covering the following topics:

• Introduction,

• The Nature of the Joint Venture,

• Joint Ventures and Equity - Fiduciary Aspects,

• Negotiating Joint Ventures,

• Financing Joint Ventures,

• The Incorporated Joint Venture,

• Tax Aspects of Joint Ventures,

• Joint Ventures and the Trade Practices Act,

• Default, Deadlock and Resolution,

• Some Practical Aspects of Resources Joint Ventures,

• International Joint Ventures,

• Joint Ventures and the Environment,

• Joint Ventures With Government,

• Intellectual Property and Joint Venture.

Though this book is written by a number of authors, the text does have a coherent structure.

After the introduction in chapter one, the historical setting of the joint venture is analysed. A comparison is made with other forms of business enterprise together with a consideration of the joint venture as it exists in other jurisdictions. Chapter three considers the relationship of equity, fiduciary obligations and the joint venture. In many situations the joint venture will be seen as a partnership and fiduciary obligations will flow from that partnership. In other circumstances where the joint venture is not seen as a partnership, fiduciary obligations may still apply. Obviously if this does occur, it again demonstrates the continuing importance of equity into commercial relationships, a point emphasised in this chapter.

Chapter four looks at two broad areas, the negotiation of joint ventures, with aspects such as letters of intent and heads of agreement being considered. The second area of this chapter considers the three principal forms of joint venture, the unincorporated joint venture, the incorporated joint venture and unit trust joint venture. These three forms and the financing of each are discussed in the next chapter; together with the liability of participants in the joint venture. The content of finance agreements is also covered with attention being paid to issues such as insolvency, stamp duty and security.

Chapter six looks particularly at the incorporated joint venture and some of the issues peculiar to this vehicle. As the agreement is incorporated the Corporations Law is obviously significant and there is an examination of topics such as oppression, winding up and the statutory contract. Another aspect discussed is the position of directors and shadow directors.

Chapter seven considers the taxation of joint ventures whereas chapter eight provides an overview of Trade Practice Act implications of the joint venture. Anti-competitive practices are raised, such as the consequences of joint venture being seen as lessening competition.

The next chapter examines common default provisions and concerns such as deadlock and impasse in performance. The important topic of alternative dispute resolution in joint venture disputes is canvassed with emphasis on each of the elements, these being negotiation, mediation, conciliation, mini-trials and expert determination and appraisal.

The practical aspects of resources joint ventures are highlighted in chapter ten with chapter eleven considering international joint ventures. In this topic the choice of law principle is raised and the situation where parties fail to stipulate the choice of law. Joint ventures and the environment is given a separate chapter, which considering the importance of this issue in Australia today, the focus is timely. The potential for criminal and civil liability is examined. Chapter thirteen looks at the relationship of joint ventures involving government and another participant. Aspects peculiar to government contracts are raised. The book concludes with a chapter on intellectual property and joint ventures with emphasis on the connection between intellectual property and the joint venture documentation.

The book is well written, comprehensive, well structured and long overdue in Australia. For any practitioner or academic working in this area the text will be the first point to consider in researching any aspect of joint venture law.

Lynden Griggs, Lecturer in Law, University of Tasmania.

BOOK REVIEW

Securities Industry Law

by R. BAXT, H.A.J. FORD AND A.J. BLACK

Butterworths (fourth edition), 1993, xl, 340 pages

This book is described as a ‘concise and practical reference for lawyers, accountants, bankers, corporate officers, brokers, financial analysts and investment advisers.’ It is also considered that it will be ‘a valuable guide to students who wish to obtain an understanding of the law in this increasingly complex area.’

The text, while introductory, fulfils this aim. It transverses an exceedingly complex and technical area and provides to the reader a starting point from which a more in depth analysis can be undertaken. Furthermore this edition provides a greater coverage and emphasis on the prospectus rules than in previous editions. It must be noted that this is an area that may be altered should the Corporate Law Reform Bill 1993 pass into legislation.

Each chapter of the monograph is structured in such a way as to be user-friendly to the reader. Liberal use is made of headings, sub-headings and each paragraph is numbered. Lists of points are also used where appropriate. The footnotes provide a reference to further articles and loose-leaf services in the area.

Chapter 1 examines the background to the introduction of the Corporations Law, the role, functions and investigatory powers of the Australian Securities Commission. Chapter 2 explores the definition of security, the concept of debenture, prescribed interest and concludes with a number of general propositions about prescribed interests.

Chapter 3 looks at the regulation of offerings of securities and considers closely the prospectus provisions, reference being made to the relevant provisions of the Corporations Law. This chapter also considers the disclosure requirements of the legislation. This topic is examined in depth in the next chapter ‘Liability for Misstatements and Non-disclosure about Securities’. The major parts of this chapter are divided as follows:

- Liability under the Corporations Law: General Concepts,

- Liability under the Corporations Law for Misleading and Deceptive Conduct,

- Liability under the Corporations Law for Prospectuses,

- Liability under the Corporations Law for Misstatements in Takeovers: ss 704 and 705,

- Liability under the Corporations Law for Disseminating False or Misleading Information: s 999,

- Liability under the Corporations Law for Improperly Inducing Dealing s 1000,

- Relief from Civil Liability under the Corporations Law,

- Other Criminal Liability under the Corporations Law,

- Remedies and Liability under Case Law,

- Civil Liability under Other Legislation and

- Criminal Liability under Other Legislation.

Chapter 5 and 6 examines the internal and external regulation of the stock exchange with chapter 7 titled ‘Licensing of Securities Dealers and Investment Advisers’. This has three major areas:

- Client’s Right to Rescind Contracts Made with Persons Dealing in Securities without a Licence,

- Representatives of Dealers and Investment Advisers and

- Exclusion of Persons from the Securities Industry.

Chapter 8 looks at two major topics, the duties and rights of stockbrokers, the next chapter the conduct of the securities business and chapter 10 the National Guarantee Fund. The final two chapters examines various categories of improper conduct, shortselling, false trading, fraudulent trading and insider trading.

As a whole the text provides a solid foundation to a very technical and complex area of the law. The cases are not discussed with any significant analysis, the monograph aiming to provide a more practical reference rather than constituting a detailed treatise of the subject area. This text completes the objective that it outlined for itself, it is indeed a concise and practical reference in the subject area.

Lynden Griggs, Lecturer in Law, University of Tasmania.

BOOK REVIEW

An Introduction to Advocacy

by LEE STUESSER

Law Book Company 1993, 44-50 Waterloo Road, North Ryde, NSW, Australia 2113; ph: 02 887 0177; fax: 02 888 2287; 145 pgs plus index and appendices; $A 40.

This work is an excellent introduction to the skills of advocacy required in the courtroom. The work is divided into two major parts: Preparing for the trial; and Running the Trial.

Part I, Preparing for the Trial is comprised of four chapters. Chapter 1 stress the importance of having a theory for the case upon which hangs one's evidence and around which one build's a trial strategy. Stuesser stresses the point that while it is possible to have alternative theories, the lawyer should not base the case upon conflicting theories which do not complement one another. A nice feature of the book is that each chapter ends with a set of propositions which summarise the key points. For example the following propositions are listed after Chapter 1:

"Trials demand thorough preparation.

The preparation begins early.

You need a plan, a theory (or theories for the case).

The theory of the case melds the facts, the law and the evidence into a credible explanation for the judge or jury.

Never do anything inconsistent with your theory of the case.

Identify critical evidence issues that will arise at trial.

Beware conflicting theories."

Chapter 2 is concerned with organising for trial. The author suggests the use of a trial book which contains: a title page listing all the details of the action (court number, parties etc); fact summary and calendar of events; trial chart incorporating overall plan, outline of examination-in-chief, outline of areas for cross-examination; critical areas of evidence

Chapter 3 covers the preparation of witnesses for trial. Here the author tells readers how to ensure that witnesses are informed without being coached. Special attention is given to expert witnesses and how to ensure that their testimony is simple yet credible.

Chapter 4 explains how lawyers should prepare themselves for trial. The author counsels students to spend sufficient time observing trials and making notes so that they know what is going on. Even experienced advocates who are appearing in a particular court for the first time will 'scout the court', because they know that: "each court has its own ambience, procedures and customs, whether it be the Bail Court, Magistrates Court, Small Claims Court or the High Court. By seeing these courts in action in advance you know what to expect and will be more comfortable and confident.[1]

Below is an example of the type of advice given throughout this highly readable book:

"Simple submissions, simply stated

Your primary task in making any submission is to educate the listener. You are the expert, as to the law and facts of your case. Some judges will be more knowledgeable than others, but few will be as knowledgeable as you on the law and none will know the facts of your case as well as you. You must educate the judge. You educate by being simple.

The late Professor Irving Younger, in his essay, "In Praise of Simplicity", wrote:

'Ladies and gentlemen, I am here to speak up for simplicity. I lament the law's lack of it. I condemn the perversion that turns it into a sin. I preach the faith that simplicity is good in itself.'

Be simple. Use simple language. There is a freshness and strength in being simple. . . ."[2]

The five remaining chapters deal with the running of the trial.

Chapter 5 considers the opening address. The author not only discusses basic principles underlying an effective opening, but also provides useful examples of effective openings.

Chapter 6 explains how the advocate should conduct the examination-in-chief. Among the topics covered in this chapter are: the order of evidence; principles of examination-in-chief, use of exhibits; and re-examination. As with other chapters, a sample examination-in-chief is also provided.

Chapter 7 explains the art/science of cross-examination. Here the author explains the purpose of cross-examination; how to prepare for cross-examination; basic principles underlying successful cross-examination; how to contradict the witness; and the procedure for using prior inconsistent statements.

Chapter 8 treats the topic of making objections at trial. This chapters tells beginning advocates how to object, when to object and to what to object.

Chapter 9 considers the closing address. The author explains the general principles; how to structure the argument; how to address the facts; how to cover the relevant law; how to address underlying policy; how to deal with questions from the judge; and how to conclude the address.

In conclusion, Lee Stuesser has produced a practical, entertaining and highly readable book. It is an excellent introduction to the topic of advocacy and is highly recommended.

Professor Eugene Clark, University of Canberra.

BOOK REVIEW

Financial Institutions Law and Practice

by JOHN A GREIG

Law Book Company 1993, 44-50 Waterloo Road, North Ryde, NSW, Australia 2113; ph: 02 887 0177; fax: 02 888 2287; (one volume loose-leaf plus 12 month update); $A 320

The banking and finance industry is among the most active and progressive users of new technology. Accordingly, it is appropriate for a journal such as this to review John Greig's impressive new work. Financial Institutions Law and Practice arose out of the establishment in 1992 in Australia of uniform legislation and regulations governing non-banking financial institutions, ie building societies, credit unions, etc. This new legislative scheme replaced the piecemeal and fragmented legislation which differed widely among Australia's various jurisdictions.

Despite the rapid growth and increasing popularity of such institutions there had been little commentary on the laws governing their operations and practice. Greig's work goes a long way toward filling that gap. Wisely, the author and publishers have adopted a loose-leaf format which will enable them to add further commentary and legislative updates as they become available.

Financial Institutions Law and Practice is divided into six major parts. In Part I, the author provides a brief legislative history of the new regime governing non-banking financial institutions.

Part II, is entitled, "Australian Financial Institutions Commission". It presents an overview of the main elements of the legislation. This includes a detailed treatment of the Australian Financial Institutions Commission (AFIC) and its board. Among the topics covered are: establishment and general functions and powers of the AFIC; establishment and composition of the AFIC's Board; prudential standards; special service providers; industry funded liquidity support arrangements for societies; provisions related to state supervisory authorities; enforcement powers of the supervisory authorities; review of decisions of the supervisory authorities; accountability and financial matters; provisions relating to the Board of the AFIC; and the establishment of the scheme.

Part III is entitled “The Financial Institutions Code” and provides readers with a copy of the text of the code and accompanying regulations. Unfortunately, there is little commentary provided at present, but the author notes that this will be provided in later supplements to the loose-leaf service.

Part IV of Financial Institutions Law & Practice sets out the various prudential standards established under the new legislation. These include prudential standards for state-based financial institutions; State Supervisory Authorities standards; prudential standards for building societies; prudential standards for credit unions; and prudential standards for special service providers. Special service contracts, arrangements or understandings involve the provision of such services as computer bureau and management information services to non-banking financial institutions.

Part V contains the text of the new legislation as adopted first in Queensland and then in all the other Australian States and Territories. Applicable regulations are also included.

Part VI contains the legislation governing the establishment of the State Supervising Authority in each jurisdiction.

Finally, Part VII provides a collection of rules and useful forms. The rules were developed by the Interstate Consultative Committee. The adoption of the rules by non-banking financial institutions is not compulsory, but such a course of action is highly recommended given the fact that the rules are designed to promote compliance with the new legislation. These rules cover such topics as: registration of the non-banking financial institution; objects and legal capacity; liability of members; shares; membership and application of funds; general meetings; voting rights; proxies; board of directors; meetings of board of directors; accounts; audit; financial accommodation; etc.

In summary, I have only a few minor criticisms of this otherwise extremely valuable work. First, the title is misleading. It does not, as the title "Financial Institutions Law & Practice" suggests deal with all financial institutions, but only non-banking financial institutions. In other words the text does not cover - banks, the other major group of financial institutions Secondly, while the work is certainly comprehensive, I would like to have seen more use made of diagrams, practice pointers, checklists etc.

Professor Eugene Clark, University of Canberra.

BOOK REVIEW

Plain Language for Lawyers

by MICHELE M ASPREY

Federation Press 1991, PO Box 45, Annandale, NSW 2038, Australia; ph: (Australia) 02 552 2200; fax: 02 552 1681; $A 25; 178 pgs plus index

One approaches with trepidation the task of reviewing such a book. The reason is that the review may not live up to the high standards advocated by the author of a work on plain language. One of the principles advocated by Asprey is that the most important message should come at the beginning. Accordingly, let me say at the outset that this is an excellent book which should be compulsory reading for law students, lawyers, drafters of legislation and anyone who deals regularly with 'words' in a legal context.

In essence, the book makes a plea for better communication--something which is much needed as most readers of a standard mortgage or insurance contract would realise. Why bother with putting legal documents and other legal writing in plain English? The answer is that convoluted language often disguises unclear and sloppy thinking. Moreover, there will be fewer complaints, fewer misunderstandings and fewer lawsuits if people understand what they read. Banks, law firms, insurance companies and governments are beginning to realise that this not only makes sense, but saves dollars as well.[3]

In Chapter 2, the author makes the point that the book is deliberately entitled "Plain Language" as opposed to "Plain English". In multi-cultural Australia this is most appropriate. Asprey makes the further point that plain language is not the sae as simplistic language. Rather, plain language "means straightforward, clear precise."[4]

Chapter 4 sets forth the fundamentals principles involved in using plain language. These include:[5]

1. Consider the reader. This may include the client, the judge, the board of management, etc.

2. Play to your audience. "If a client has instructed you to prepare a document, the client has a right to be able to read the document."[6]

3. Tone and Formality. The tone and formality of language must match the audience, the purpose and the context.

4. Take a professional approach: don't patronise. "Taking a professional approach involves recognising the duty we have as lawyers to assist our readers to understand the law as it affects them. It involves being sensitive to the difficulties the reader may be experiencing; recognising the level of understanding."[7]

5. Courtesy. "Taking a professional approach also involves courtesy. No matter how acrimonious the dispute is, our writing should always reflect the fact that we are professionals conveying our client's instructions."[8]

Chapters 5 and 7 considers the topic of structure. Good writing is the product of clear thinking and planning. The ultimate structure employed must take into account the purpose of writing, the nature of the audience and so on. Among the topics covered under structure are: the use of numbering, indexes, sub-paragraphs, appendices; highlighting, sentence structure and length, and use of symbols. Chapter 7 admonishes lawyers to avoid certain grammatical structures. These include overuse of the future tense, passive voice, subjunctive mood, and negative sentence construction. Asprey also gives some useful advice about the best way to write in gender neutral terms.

Chapters 6, 8, 9, 10, and 11 deal with various aspects of words. In chapter 6, Asprey acknowledges that sometimes a lawyer must use a technical word because it is a term of art and one accompanied by a whole host of legal precedent defining its limits. An example of such a word is "indemnify".[9] Other technical words are convenient short-hand expressions which save time and which would require much additional explanation should they have to be explained in any other way. Examples of such words are: "injunction", "affidavit" and "subpoena".[10]

Chapter 8 describes various "legal affectations and other nasty habits" which lawyers are all too prone to. Many of these phrases come from the lawyers love affair with law Latin. Examples are: "ab initio", "mutatis mutandis", "sui generis", and "ex parte". "All of these expressions, and the other Latin expressions we use when we write or talk to other lawyers, can be readily translated into English when they are going into documents that are to be read by non-Roman non-lawyers and they should be."[11] Other affectations include: overuse of the word "where" for "when" or "if"; use of "above" or "below"; overuse of "any", "each", "every" and "all"; unnecessary use of "the same", "the said" and "such"; and overuse of "whereas", "hereafter" and "pursuant to".

Chapter 9 urges lawyers to rid themselves of overused words and formulas. For example, in writing letters, Asprey suggests the following are 'tired openings":

"1 We act for . . .and are in receipt of your letter of. . .

2 We refer to your letter of . . .

3 Please find enclosed. . .

4 We refer to previous correspondence in this matter"[12]

The author suggest the following as livelier alternatives:

"1 Thank you for your letter asking us to advise you about land tax. We would be delighted to help.

2 In your letter dated 17 July 1991, you asked us four questions about your family trust. Here are the answers:

1.. . . .

2. . . . . [etc]

3 Here is the document you asked us to prepare. . .

4 Over the last few weeks we have been gathering evidence for the case. . ."

Chapter 10 deals with special problem words, such as "and/or", "shall", and "may", etc. The author notes that lawyers tend to use the word "shall" to show legal obligation, a practice which can produce ambiguity and be difficult to use correctly. This is especially so given the tendency of lawyers to write in the future tense. Asprey recommends instead the use of the word "must". "Must is one word that can do the same work as the imperative shall ."[13]

In Chapter 11, readers are presented with a very useful checklist of words to avoid and their plain language equivalent. Examples are:

all and singular - all

devise - give

employ - use

endeavour -try

hereafter- after, from the date of this agreement

hereunto - on it

in the event of - if

is entitled to - may

is authorised to - may

prior to - before

quantum - amount

with a view to - to

Finally, chapter 12 gives a brief introduction to the topic of statutory interpretation by the courts and how the plain language movement and principles have been treated by the courts. The author concludes that "the rules of interpretation are perfectly compatible with the practice of plain language drafting. And the case histories of those who have adopted a policy of plain language drafting bear this out. They have consistently reported less, not more, time spent in court interpreting documents."[14]

In summary, by the examples and discussion above, I hope to have given readers a 'feel' for how readable and practical is Asprey's Plain Language for Lawyers . If we lawyers follow its dictates, we will no doubt all be better communicators and provide a better service to our clients and the public generally.

Professor Eugene Clark, University of Canberra.

BOOK REVIEW

Advocacy Basics for Solicitors

by KEITH TRONC AND IDAN DEARDEN

Law Book Company 1993, 44-50 Waterloo Road, North Ryde, NSW, Australia 2113; ph: 02 887 0177; fax: 02 888 2287; 410 pgs plus index and appendices; $A 75.

This book is designed to serve as a beginner's advocacy manual for solicitors and articled clerks. It is a timely work, especially given, recent developments which seek to blur the distinctions between the work of barristers and solicitors. This means that it is more likely than ever before that solicitors will be called upon to assume an advocate role.

Among the various contexts covered are: bail applications, pleas of guilty, committal hearings, trials, and chamber applications. Most of these are dealt with in the context of the Brisbane Courts, although chapter 8 covers advocacy in Commonwealth Courts and chapter 10 refers to other tribunals.

Illustrative of the practical nature of this work are the following keypoints regarding the cross-examination of expert witnesses:

"Keypoint

To destroy the impact of the other side's expert witness, look for the opportunities (where relevant) to suggest in your closing address, that there had been a theory constructed into which the facts had been fitted, rather than the more appropriate and scientific way of developing a theory from the facts, after examining the facts independently.

Keypoint

The background, consultancy patterns, and economic allegiances of an opposing expert witness can sometimes be used to attack the credibility of the other side's expert opinions during your summing up.

Keypoint

Ensure that your expert witness does not stray in his or her report out of his or her field of expertise, to make legal judgments or other inadmissible opinion.

Keypoint

If attacking the credibility of an opposing expert witness during cross-examination, a basic and often successful strategy is to first obtain agreement:

• that he or she has completed training of a high reputation

• that it is important to base opinions on, and draw conclusions from, the maximum amount of information

• that data must generally be gathered as soon as possible after the event

• that an unbiased mind is crucial

then show ways in which these criteria have not been met.

Keypoint

Useful phrases:

• "capable of alternative explanation"

• "capable of innocent explanation"

• "not unknown"

• "is not necessarily the case"

• "open to dispute"

• "not unusual"

• "intellectually open to an alternative view"[15]

In summary, the strengths of this work are its practical, how-to approach and its many useful checklists and examples. Its weaknesses, in my view, are twofold. First, the discussion relates too specifically, at times, to the Queensland or Brisbane practice context. It would have been useful for the authors to have at referred readers, at least by footnote references, to similar rules in other jurisdictions. Secondly, the book would have benefited by some reference to recent developments in communication theory and social psychology which have been applied to a legal setting. Notwithstanding these shortcomings, Advocacy Basics for Solicitors presents a very practical and useful guide to advocacy which will be of great use to legal practitioners, especially those that are just beginning their legal careers.

Professor Eugene Clark, University of Canberra.

BOOK REVIEW

Fundamentals of Trial Techniques (Australian Edition)

by THOMAS A. MAUET AND LES MCCRIMMON

Longman Professional Publishing, Longman House, Kings Gardens, 95 Coventry Street, Melbourne 3205, Australia; ph: 03 697 0666; fax: 03 699 2041; 268 pgs plus index. RRP $51.00.

This book, written by Les McCrimmon to account for Australian legal conditions, presents readers with an "Australian" edition of Thomas Mauet's classic work on Fundamentals of Trial Techniques which has already demonstrated wide popularity in the United States, Canada and New Zealand.

Individual chapters are presented on: preparation for trial; jury selection; opening addresses; examination-in-chief; exhibits; cross-examination; closing arguments; and objections.

One feature of this excellent work is its practicality. For example, the chapter on trial preparation discusses different types of trial notebook and explains how they are compiled; what they contain and why they are useful. All of the chapters provide many useful preparation guides which no doubt will prove insightful to all who are learning the art/science of advocacy for the first time or reviewing fundamentals. Most importantly, this work gives all students of the law a powerful heuristic by which to evaluate their advocacy skills with a view to continual improvement.

Despite its many strengths, in my view, the book could be improved by: a) greater use of diagrams and other visuals; b) exercises at the end of each chapter; c) more references to other literature on particular topics for readers who want to go deeper; and d) more use made of the literature from psychology, sociology and other disciplines which have systematically studied the art/science of communication.

Fundamentals of Trial Techniques should prove to be an invaluable aid to both practicing lawyers and law students who are learning the art of advocacy.

Professor Eugene Clark, University of Canberra.

BOOK REVIEW

Internationalizing Business Education: Meeting the Challenge

Edited by PROFESSOR S. TAMER CAVUSGIL

Director, Center for International Business Education, Michigan State University (1993) Michigan State University Press, 1405 South Harrison Road, Suite 25 Manly Miles Building, East Lansing, Michigan, US 48823-5202; ph: 517-355-9543; fax: 800 678 2120; 336 pgs plus index, $US 39.95.

The world of computers and information science generally is one which is inextricably bound up with international trade. As communication technology has become more pervasive and countries have come to participate in a global economy, a demand has been created for governments, business and educational institutions to be more internationally focused.

Internationalizing Business Education presents a collection of readings in which some of the leading business schools in the US, Europe and Australia tell how they have responded to the challenge of internationalizing business education in their institutions. The book is a treasure chest of valuable insights into what worked and did not work, as well as the challenges ahead. It should be compulsory reading for department heads, deans and university administrators (whether in Business or other areas) who seek to bring an international focus to their programs. Many insights also exist for senior management. For example, Cavusgil points out that many

"US multinationals are missing out on the Viking spirit of many freshly graduated American MBAs (international recruiting is generally confined to natives of countries where subsidiaries are located). Instead, an American MBA is typically offered an overseas assignment several years later, when that special spirit has gone out of the individual and s/he is a spouse in a dual-career marriage. As part of their outreach programs B-schools need to educate the US business community on this important point. . . .As long as business does not hire fresh graduates for international assignments, there is clearly a major market for postgraduate international executive programs."[16]

Below are just a few of the many points made in this excellent collection of articles:

• The time for asking why "internationalize" is past. The focus now is on the best strategies and plans to achieve an international focus;

• Internationalization is a multi-faceted process involving curriculum reform; resource allocation; research; linkages with other institutions; training; post-graduate education; executive continuing education programs; scholarships; overseas exchanges of students and staff; faculty development; etc. In otherwords, there must be a coherent, well thought out institutional strategy which accounts for long term as well as short term goals.

• Programs need to be institutionally based. A program too reliant on particular individuals will collapse should those individuals leave or lose enthusiasm.

• While strategies should be institution specific, there is much to be learned from the successes and failures of programs elsewhere.

• In some countries (eg US and Australia) there has been too much 'warfare' among rival programs. There is a need for much more cooperation and collaborative work.

• There needs to be much more assessment and solid research regarding the 'fit' between what tertiary institutions teach and the skills/training/education actually needed by business. Related to this point is the need for more critical evaluation of the success of various international undertakings.

• More coordination is also required at all levels: primary, secondary, tertiary and continuing education to account for and reflet the reality that education is a lifelong process.

• The internationalization discourse has been too ethnocentric and discipline specific. US businesses must realise that there is much to be learned from non-US businesses; business faculties must learn that other disciplines also have much to contribute to internationalization.

• There needs to be much more development of a research focus which takes more account of the 'messy' reality which business managers must confront.

• There is also an urgent need for more teaching materials which are international in focus; related to real-life business contexts, and able to be utilised via distance education as well as traditional classroom instruction.

• Existing faculty must be encouraged to participate in exchanges, collaborate with colleagues in other countries etc. New faculty members should recruited who can contribute to internationalization.

These and many other examples and ideas in this important book will help educators, business people, and policy makers meet the challenge of participating fully and effectively in today's global market place.

These and other guidelines are accompanied by examples and illustrations of programs which have attempted to put such principles in to practice.

Professor Eugene Clark, University of Canberra.

BOOK REVIEW

Remedies - Commentary And Materials

by TILBURY M., NOONE M. & KERCHER B.

2nd. Edition 1993, Law Book Co. 871 pgs. Hc $130; Sc $96.

The object of this text is to provide a collection of primary and secondary materials for the use in the teaching of a remedies course in Australian law schools. There is no doubt that the book fulfils this aim.

The text has nine chapters; the nature, scope and goals of remedial law, remedies, compensation, restitution, punishment, coercion, the injunction in public law, pre-judgment enforcement and post-judgment enforcement. Each chapter is then divided into a number of categories. For example the chapter on remedies is split into tort, contract, self-help money remedies and alternative dispute resolution. The chapter on restitution is segregated into wrongs generating restitutionary responses, the measurement of the defendant's belief and proprietary relief.

Each chapter is structured whereby a general account of the area is given with more specific commentary at the start of each category. Case extracts are then provided, followed in the most part, by an extensive series of notes and questions.

There is no doubt in this reviewer's opinion that this text remains the most comprehensive treatise for the use of the teaching of remedies in Australia. For the academic the monograph provides a structured outline for the presentation of the course in addition to further topics for discussion and research. The law student will also be satisfied by this text. The commentary is written in such a way that it will be easily understood and yet the notes and questions add the foundation for a lively debate on the various areas. The legal practitioner will also find this to be a comprehensive guide to the area as well as interacting the substantive with the procedural law.

This edition whilst carrying on from the excellent first edition has, by introducing material on alternative dispute resolution and expanding the discussion on restitution, reflected the increasing importance of these topics. The case extracts are also sufficiently detailed to allow full coverage of the relevant issue, without subjecting the reader to superfluous detail. The notes and questions will be useful for the academic as reference material for tutorials and seminars.

One suspects that this text will be prescribed reading in most, if not all, law courses in remedies, a position that the book thoroughly deserves.

Lynden Griggs, Lecturer in Law, University of Tasmania.

BOOK REVIEW

Australian And New Zealand Small Business Manual

by JANEK RATNATUNGA AND JOHN DIXON (editors), DAVID TWEED (associate editor - New Zealand)

CCH Australia Limited PO Box 230 North Ryde NSW 2113, 350 pgs plus bibliography and index. ($?).

'Small business is Australia's biggest business, as indeed it is in New Zealand.'[17] 'In Australia, small business produces around one-third of the national income, employs half of the private sector workforce, and is a major source of innovation, new products and services.'[18] With this amount of influence over the economy the aim of this book is to provide a manual for those embarking on a career in small business.

The book is divided into three sections, The Setting Up Process, Operating a Small Business, Small Business - Areas of Special Interest. Easy to read, the book is, as the title suggests, a manual for one pursuing that course. The first two sections have the usual topics that appear in most small business books. However, it is the third section that makes this book a bit different from the rest. Section three involves areas such as Protecting Your Business Against Theft, Fraud and Avoidable Losses, The Control and Uses of Premises, The Use of Computers in a Small Business, Restrictive Trade Practices, Venture and Development Capital, Risk Management and Insurance, Sales Tax in Australia, Employee Health and Safety, and Trading Internationally. These areas generally are not covered in most small business books and certainly an area that a person in small business should be aware of.

The book was written by many contributing authors with expertise in the area and many of which have had practical experience, too. The book is worth the investment for anyone interested in pursuing a small business career and it will also provide a useful reference for professionals such as accountants and lawyers who provide service to small business clients.

Pat Clark, Department of Accounting and Finance, University of Tasmania.

BOOK REVIEW

The Law of Securities

by E. SYKES & S. WALKER

5th edition, 1993, Law Book Co.

1070 pp; HC $160, SC $110

This text is divided into four parts. Part 1 is Introductory, Part 2 considers Securities over Land, Part 3, Securities over Personal Property and Part 4 looks at a number of common considerations relevant to securities. Within each part all topics are dealt with extensively.

Chapter one of Part 1 discusses the general nature of security interests, the meaning of security and how securities are created and classified. Judgments, executions and liens are also defined. Obviously this is an important beginning for any person unfamiliar with the topic.

In Part 2 an expansive treatment is given to legal/equitable mortgages, redemption, foreclosure and non-mortgage securities over old titled land. A similar treatment is given to Torrens title land and to priorities between the various categories of interests.

Part 3 concentrates on securities over personal property with consideration given to the Bill of Sales Legislation and to the impact of recent credit legislation. The various categories of interests in respect of personal property such as mortgages, charges, hire-purchase and conditional sale are viewed in depth. This same level of treatment is provided in respect of securities over livestock, wool, crops, ships, corporeal chattels, choses in action and priority issues.

Part 4 looks at a number of related areas including bankruptcy, limitation of actions, corporate securities, credit control and conflict of laws.

In all areas the book looks at the legislation existing in all States and Territories as well as appropriate Federal legislation. Consideration of all areas is detailed and complete. For example the discussion on deferred and immediate indefeasibility fully considers the development of this debate after providing explanations of how the result of various transactions would differ under each theory. Not only are the major authorities looked at, lesser known cases are also raised. A similar treatment is given to priority issues where many single instance judgments, not generally discussed, are considered.

This text is comprehensive and authoritative and for practitioners and academics working in this area, essential.

Lynden Griggs, Lecturer in Law, University of Tasmania.

BOOK REVIEW

Securities over Personality

by MICHAEL GILLOOLY (ed.)

Federation Press, 1994, 319 pages

At the time of writing the Federal Government had just released the report on Access to Justice. One way quickly and simply to reduce the cost of compliance with the law would be to abolish the nine separate legal systems that we presently have; (six states, a commonwealth and two territories) and replace them with one judicial system. One area where this would result in a marked reduction in legal costs is that area covered by this monograph. As is stated in the Introduction, “The law in Australia relating to securities over personalty is in a confused and uncertain state. Under the current regime, the legal position of security holders is determined by reference to a patchwork of State and Federal legislation, superimposed on a fabric of often outmoded principles of case law.” This text represents the proceedings that took place at a conference on this area in July 1993 at the Centre for Commercial and Resources Law of the University of Western Australia and Murdoch University; a conference that was timely considering the state of the current law and the reforms that have been mooted in this area.

The book has two major areas. The first part considering current law has chapters on the floating charge, equitable liens, securities over receivables, priorities and pledges. The second part of the text examines reforms of the law relating to company security interests, trans-tasman perspectives, reform of personal property security law in Australia and a chapter on economic considerations in reforming the law.

In the opening chapter the characteristics of the floating charge are considered and its historical development. The author then considers charges by individuals, automatic crystallisation, ordinary course of business, miscellaneous problems and statutory interpretation. In Chapter two the equitable lien is considered. The features of the equitable lien are considered, its non-possessory nature, its operation over personalty and realty, its enforceability and how it operates. The circumstances in which the equitable lien will arise are outlined. Professor John Phillips closely examines the High Court authority on this area and concludes that the opinions of the Court may lead to a significant expansion of the operation of liens. The dangers of extensions in this area are also noted.

Four problems are outlined by Professor Everett in her consideration of the granting of securities over receivables. The validity of securities, the determination of priority disputes, difficulties created by set-off and conflicts of laws problems. The writer concludes by considering that a national system is required that would outline the requirements for taking security over all choses in action generated by commercial activity. In Chapter four the editor considers the problem that arises where a number of parties have inconsistent securities over one piece of property. He considers that the problem of circularity can be placed in two categories. First, those caused by variation of priority agreements and those due to inconsistent rules. After examining the current state of the law Gillooly argues that the rules should be ranked according to their source with full effect being given to a higher ranked rule before a lower ranked principle.

Chapter’s five and six examines pledges. Its advantages in simplicity, ease of creation and the conferring of possession on the pledgee are noted, as is its priority as a legal interest. Professor Palmer also considers the disadvantages including the fact the while legal possession may be with the pledgee, physical control may be with the pledgor. The incidents attached to pledged goods are raised, such as the enforceability of the pledgee’s interest against third parties, its assignability and the pledgee’s right to insure the property. A comparison is also drawn between the pledge and other forms of security and discussion in made concerning the equitable pledge. A commentary on Professor Palmer’s paper is made by John Naughton.

The second part of the book concentrates on reform. This gives the text an important theoretical as well as practical focus, ensuring its relevance to academics as well as practitioners. John Farrar begins by examining the various reform proposals from a trans-Tasman perspective. Farrar considers that the proposed New Zealand legislation would eliminate many of the defects outlined in the Australian Corporations Law. A detailed analysis of the reform proposals is also undertaken in the next chapter. Attention is paid to four key areas of reform; the scope of the proposed reform, the system of registration and computerisation, the priority rules and the rights and remedies on default. Economic considerations are then dealt with by Professor Anthony Duggan followed by a commentary on the chapters dealing with reform.

The book deals with a specialist and important topic. It is an area worthy of closer consideration within undergraduate and postgraduate law courses and will also appeal to practitioners who may have an interest (or a problem) in the area. The text brings together the expertise of a number of people and is a valuable and important addition to the library held by any person looking at commercial law.

Lynden Griggs, Lecturer in Law, University of Tasmania.


[1] p. 27.

[2] p. 41.

[3] see chapter 3.

[4] at p. 10.

[5] pgs 50-56.

[6] p. 51.

[7] p. 53-54.

[8] p. 55.

[9] p. 82.

[10] id.

[11] p. 119.

[12] p. 140.

[13] p. 152.

[14] p. 173.

[15] p. 224-225.

[16] At p. xv.

[17] p. iii.

[18] ibid.


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