Manyam, Joel; Midson, Brenda; Milroy, Stephanie; Tappenden, Sue --- "Book Reviews" [2001] WkoLawRw 11; (2001) 9 Waikato Law Review 293

• Book Reviews

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BOOK REVIEWS

AUSTRALIAN COMMERCIAL LAW (Twenty Third Edition), by Clive Turner, Sydney, Law Book Company, 1049pp. New Zealand price $97.80 plus gst.

Clive Turner’s book is a welcome addition for readers seeking more than just a discourse on the traditional areas of commercial law in Australia. The book is a valiant attempt to marshal, in one handy volume, subject matter that the reader would normally find by referring to a number of texts.

Despite the size and detailed contents of the book, the presentation of the commentary is admirable and designed to be user friendly. There is good use of specific cross-referencing throughout the text to topics and page references where related material has been discussed either at a prior or subsequent point in the book. There is a very handy five page glossary at the beginning of p xci of foreign – mainly Latin – terms used in the book. Each of the chapters begins by listing the main headings and page references within the chapter where discussion under the respective headings begins. The headings in the body of the chapter are in bold text. Each main heading in the text is broken down into sub-headings under which the text of each chapter is presented. Straight after the list of main headings at the beginning of each chapter is an introductory paragraph headed “Introduction”. These introductions accurately encapsulate what the chapter seeks to convey to the reader. At the end of the text in each chapter is a list of further reading references that includes specialist and in some cases leading texts in the particular area. For example Chapter 21 on ‘Bailments’ at p 489 refers in its commentary to Professor Palmer’s classic text on Bailments which is also listed at the end of the chapter in the list for further reading. Also at the end of each chapter, where appropriate, is a list of Internet sites and journal references for access by interested readers.

The book begins with a fairly full introduction to the Australian legal system in the only chapter in Part One. The introduction deals with the essential ingredients of Australia’s constitutional and legal system. It discusses subject matter under headings which include the nature of law, the Australian constitutional system, the sources of law, the doctrine of precedent and the hierarchy of courts in the judicial system and finally alternative methods of dispute resolution. To the New Zealand reader, the discussion of Australia’s constitutional arrangements and Federal Court system present an interesting contrast. The introductory chapter presents a wealth of useful background material that provides the reader with a context in which the remaining Parts and 31 chapters of the book unfold.

Part Two of the book contains the next 12 chapters and deals with the various elements of contract law. Usually material found in this Part is in a separate specialist contract law text and a commercial law text assumes that a reader of commercial law has prior knowledge of the principles of contract law. However the inclusion of a treatise on contract law in a commercial law text is another hallmark of Clive Turner’s book. Not only does Part Two serve the practical purpose of being a ready reference if needed, but has a more deliberate purpose in relation to the central theme of the book which is a discourse on commercial law itself. The author explains the link between contract law and commercial law in the introduction to Part Two as follows:

The law of contract is the basis of commercial law. Much of the law governing the sale of goods, agency, negotiable instruments, insurance, partnerships and so on discussed later in this work concerns the application of general contract principles to specialised areas of commercial law.

Due to the predominantly common law landscape of contract law in Australia, extensive case law is referred to, and a number of decisions are examined in some detail. The discussion of a case is highlighted in bold with a vertical line running parallel to the text of the case in the margin marked with the notation “case” to indicate that an actual case reference is being discussed. This notation is particularly helpful when cases are discussed successively in bold type and can be distinguished from each other by the parallel vertical lines and notation “case” in the margin. It also serves to distinguish the text of the case from the author’s commentary. This method, of distinguishing cases that are discussed, flows throughout the book.

Part Three of the book deals with commercial law matters, beginning with Chapter 14 on Agency. This is helpful in understanding Chapter 25 on Insurance, in its discussion of the general principles of agency law in regard to the liability of insurers for their agents and employees. Chapter 15 deals with the law on sale of goods, whether the contract is a commercial contract or a consumer contract and outlining, where appropriate, statutory provisions which imply conditions in consumer contracts.

A chapter on the law of electronic commerce appears as Chapter 16 with a discussion of the Commonwealth Electronic Transactions Act 1999 which came into operation on 24 March 2001. It is on this legislation that New Zealand’s Electronic Transactions Bill is largely based. The chapter helpfully discusses issues which include encryption, digital signatures and authentification, electronic banking and privacy as well as data protection initiatives. There is also discussion on conflict of laws and internet jurisdiction.

Chapters 17 to 24 deal with consumer protection, restrictive trade practices, the law in relation to credit, guarantees, bailments, personal and real property, and negotiable instruments. The final and second largest chapter, on the core commercial law component in Part Three, is a 55-page chapter on insurance law and is a reflection of the practical importance of the insurance of risk in commercial transactions.

Part Four of the book contains chapters which deal with partnership and company law. Partnerships and companies are perhaps the most commonly used structures for setting up and engaging in trading operations. The commentary on these two types of business structures, provides a fairly good account – particularly chapter 27 on companies – of the law relating to these business organizations without the reader having to access separate works on partnership law and company law.

Part Five, entitled “Allied Areas of Law” is recognition that commercial transactions occur in a practical context where the law of tort for instance exists to provide redress in cases of unlawful interference with an individual’s property and economic or commercial interests. Trusts today play an increasingly prominent role in the management of commercial affairs. Intellectual property law can no longer be regarded as a field devoid of its direct connections to commercial transactions. Design law which seeks to protect industrial designs, and trade marks law which protects a trader’s individual mark or symbol, are indispensable components of commercial dealings in the modern trading environment. Bankruptcy law is heavily resorted to in the case of partnerships which do not enjoy a separate legal identity and where the partners as individuals are subject to bankruptcy law in the event of insolvency. The need to distinguish the partner’s private personal estate in bankruptcy as distinct from the partnership estate becomes important for the purposes of meeting creditor claims for both categories of estate. Finally, the significance of employment law in modern day business activity is brought into sharp focus in the last chapter in the book.

Overall, the book is very readable and engaging despite its sheer volume, complexity, depth and range of subject matter. There is a sense of lingering reverence at the pace and extent of developments in Australian commercial law. The book will certainly interest Australasian practitioners and scholars wishing to keep abreast of developments across the Tasman in the challenging area of Australian commercial Law.

JOEL MANYAM[*]

COMMERCIAL LAW IN PRINCIPLE, by Helen Ryan, Andy Gibson, Sophie Rigby and Gary Tamsitt, Sydney, Law Book Company, 2001. New Zealand price $60.75 plus gst.

This is the first edition of a most welcome study companion to accompany Clive Turner’s Australian Commercial Law (hereinafter referred to as the “Turner Text”). Although directly modelled on the Turner Text, this book has sufficient flexibility to enable it to be used with any textbook on commercial law. While the student seeking to excel in the area of Australian law on commercial matters may feel engulfed by the Turner Text, the companion serves as a lifeline. It provides a useful framework for methodically following through the detailed contents of the Turner Text. The companion serves as a sieve enabling the reader to glean the nuggets within each chapter with a view to mastering their application by having to answer practice questions. The singular objective of the companion is to facilitate the learning of commercial law by practically applying its principles. The companion distils the points which students need to focus on, in order to follow and competently deal with commercial law principles.

It is worth noting that the Turner Text ,now in its 23rd edition, has for the first time had a companion published. This is indicative of the increasingly significant role of commercial activity and efforts at its regulation. It is also recognition of the growing complexity of the subject matter and the need therefore to assist students seeking to gain mastery of its principles and rules.

This book is a vivid reminder of law as a discipline and an area of study. In order fully to appreciate its operation, its various principles need to be applied to varying fact situations. In this vein, the book serves as an excellent tool for revising for examinations. Thus, at the end of each of the chapters, is a set of practical questions under the title, “Practice Questions”, which are designed to facilitate learning by doing or application. The set of “Practice Questions” is then followed by “Answers to Practice Questions” so that each practice question asked is then answered. It is this feature of providing answers to accompany the questions that considerably enhances the value of the book to the student. It provides the student with a degree of choice when assessing his or her level of understanding. Instead of answering all the “Practice Questions” in each set, the student is able to choose particular questions which can be attempted. The responses can then be checked against the answers provided and thus serve as a useful means of self-evaluation.

The book is also useful as an aid in preparing students for lectures and tutorials. For lectures, students are assisted by the summaries at the beginning of each chapter which provide a template for lecture material to follow. Besides the “Practice Questions” and answers provided as helpful aids for tutorial preparation, there is a list of “Tutorial Questions” accompanying most of the chapters. The “Tutorial Questions” are divided between “Discussion Questions” and “Problem Questions”. The “Discussion Questions” seek to focus students’ attention on the sub-topics raised for discussion. Having captured the students’ attention on the subject matter, the book provides “Problem Questions” which directly test their skill and aptitude in answering more engaging questions.

Another distinct strength of the book is its deliberate focus on examination technique. The all-important warning is clearly conveyed that first and foremost students must carefully read the question and understand what is being asked. Having followed this preliminary warning, the student is then introduced to a template for formulating a coherent answer by identifying the relevant facts, law and legal principles, briefly stating the law, applying the law to the facts, and coming to a conclusion. There is also a reminder of the nature of closed-book and open book exams. The skill of answering questions is conveyed within the context of timeliness. The pitfalls of open-book exams are consequently highlighted with the warning to treat them as closed-book exams, using material taken into the exam only to check a candidate’s answers after having written answers to the exam questions. This provides help particularly to the distance learner who does not have access to lectures, tutorials or other forms of close interaction with the lecturer, tutor or other students.

Each chapter begins with a list of sub-topics to be discussed, accompanied by the appropriate page reference within the chapter at which they are to be found. This is followed by reference to appropriate reading material which invariably is the correlative chapter in the Turner Text. This direct linkage helps the student in identifying parts of the Turner Text that relate to appropriate portions in the Companion. The appropriate reading reference is then followed by a list of aims for each chapter. This is useful in breaking down material in a chapter into its component parts, thus enabling the reader to focus on smaller and particular aspects of each chapter. This makes the overall understanding of the whole chapter a much more manageable and indeed rewarding task. Each chapter also has a “Guide to Problem Solving” (‘the Guide’) which comes immediately after the contents of each chapter and immediately before the list of “Practice Questions”. The Guide neatly encapsulates the chapter and highlights various aspects of its contents with which the student reader needs to become particularly familiar. So, for example, in regard to chapter 1, the reader is informed of the constitutional and legal system in Australia. Accordingly, the Guide alerts the reader that questions based on the first chapter in the Turner Text will typically be based on issues such as jurisdiction to legislate, statutory interpretation, case law and dispute resolution.

A distinctive feature of the Guides is the very helpful manner in which they crystallise a large and rather complex body of law in an area by providing a number of salient points. The Guide in Chapter 2 is a prime example. It alerts the reader to the five main types of questions likely to be raised in dealing with any aspect of contract law. These questions provide mental hooks on which the voluminous detail of contract law can be methodically hung. The questions cover whether the plaintiff and the defendant are in a contractual relationship, whether the plaintiff can get damages for breach of contract, whether the plaintiff can “get out” of the contract, whether the plaintiff can end the contract, and whether there are alternative remedies that the plaintiff may pursue. These five points serve as an attempt to encapsulate the law of contract contained in just over a third of the Turner Text. The five points also illustrate the flexibility of the book as a tool for getting a grasp of contract law in other jurisdictions. Contract law generally is laden with its particular concentration of case law, and this five-point construct helps pigeonhole what can otherwise appear as an unwieldy body of case law.

Chapter 2 contains a commendable list of 24 terms or phrases that the reader is most likely to encounter in studying contract law. This in an invaluable feature, especially when the Turner Text proceeds on the premise that a good understanding of commercial law principles demands as a prerequisite a sound grasp of contract law. The use of “terminology sections” is however very rare throughout the book, and is contained in only four other chapters.

The 32 chapters are followed by a table of cases with references to paragraph numbers within the text where they are discussed or referred to. This is followed by a Table of Statutes which outlines relevant Commonwealth and State Statutes. There is also listed the United Kingdom Contracts (Rights of Third Parties) Act 1999. The book concludes with an index containing references made to paragraph numbers rather than to page numbers within the text. The system of page numbering throughout the whole book is in terms of page numbers referable to the number of a particular chapter. Thus, for example, Chapter 25 on ‘Insurance’ begins on page 25-1 and ends on page 25-3.

Another important aid employed in presenting the contents of the book and indirectly the details of the Turner Text is the liberal use of diagrams, flow charts and tables. For example, the introductory chapter provides diagrams on the areas of legislative jurisdiction reposed in the Commonwealth and State Parliaments, the approach to statutory interpretation under the Acts Interpretation Acts., the Australian court hierarchy, and the nature of civil legal proceedings and alternative dispute resolution mechanisms. The immense value in using diagrammatic illustrations or tabulated forms for conveying legal concepts is portrayed by the “Guide to Problem Solving” section in Chapter 7. The Companion does not have any tables or diagrammatic illustrations for Chapter 13 on Restitution, Chapter 26 on Partnership and Chapter 32 on Work Place Relations. Despite this, one is left with the distinct impression that effective use of the Turner Text and Companion, in tandem, leaves little room for any lingering doubts about the contents of any chapter.

The tables and figures serve as ideal resource material for lecturers in contract or commercial law classes. The tables and figures used certainly make this book an attractive teaching aid as well. It is also worth mentioning that additional teaching aids that are available are PowerPoint slides for lectures and a Teachers’ Manual that includes answers to problems, supplementary questions and lecture outlines.

The book provides several learning options. Those that find that a mere reading of the Turner Text is sufficient before attempting to answer questions on the particular chapter in this companion can do so. Others who prefer to read relevant chapters in this book, including the visual aids in each chapter in addition to the Turner Text, are also catered for. Still others may, on reading the Turner Text, only wish to examine the diagrams and illustrations in this book as a means of consolidating what they have read.

This book lends itself to the student reader in another most useful way. The Turner Text is voluminous and this companion acutely recognises this by the elaborate degree to which it makes cross-references to the Text. The cross-referencing is manifest on at least three levels. First, there is referencing in various chapters of this book to their counterparts in the Turner Text. Secondly, there is referencing in this book to other chapters within the Turner Text. Finally, there is referencing in chapters in one Part of the Turner Text to another Part of the Text. It is this final type of cross-referencing that closely knits the five Parts into a complete whole considering the voluminous nature of the work. One other welcome form of cross referencing is the mentioning of a case citation in this book and then a reference to the exact page in the Turner Text where it is discussed and on occasion at some length. Due to the size of the Text, these examples of detailed cross-referencing enhances, in considerable measure, the value of the Text and this companion to the reader.

This book is invaluable as a self-study guide for students seeking to excel in the area of commercial law. Quite detailed subject matter is made manageable, and the focus is one of helping the student to master technique rather than content. This is undoubtedly the singular strength of the book and will be useful to student, lecturer and academic alike.

JOEL MANYAM

A GUIDE TO BUSINESS LAW 2001 (Fourteenth Edition) by Warwick Dowler and Christine Miles, Sydney, Law Book Company, 624 pp. New Zealand price $89.50 plus gst.

The book’s title should serve as a salutary reminder to the serious law student or practitioner that this is not a specialised text book on any of the range of business law topics it seeks to address. The book seems to be aimed primarily at students reading towards a Diploma or Certificate in Business Studies or a Diploma in Accounting that requires a degree of familiarisation with business law concepts and principles. Indeed the Preface states that this is a useful book for business law subjects in courses such as management, advertising, retailing and other business courses. The book is limited in scope in that its discussion of the law is primarily that of the Commonwealth of Australia and the State of New South Wales.

Despite these caveats on its contents, there is much that the book can be commended for, particularly as a guide for first year law students and for the reader with a general interest in law. There are lessons for the academic in the legal aspects covered, and also tips on how to present legal educational material so as to maximise learning and understanding.

There are seven pages devoted to the contents’ section of the book which consists of 25 chapters. Each chapter, as listed in the contents, has a main heading which in turn is helpfully broken down into logical sub-headings which serve as valuable signposts to the reader of what may initially be quite unfamiliar subject matter. Consistent with the book’s primary focus of aiding students to master exam technique is a nine-page section which follows the contents pages entitled, “Answering legal questions”. This section is invaluable for first year law degree students on the types of questions in law exams and how each type should be answered.

Following this preliminary section on exam technique are the 25 chapters of the book. To assist the reader, the text of each chapter begins by re-listing the sub-topics to be discussed and page references within the chapter where the commentary begins. This is followed by a list of learning outcomes listed in bullet point form providing the reader with a sense of focus on what to expect from each chapter. Each chapter concludes with revision questions and model answers, enabling the book to be used as a self-study manual.

After the contents of the last chapter, there is an 11-page glossary of various legal words and phrases which serves as a helpful aid to the student seeking to understand the basics of business law. The glossary is followed by a list of useful contacts and web sites, a table of cases, a table of statutes, and finally the index which has references to appropriate paragraph numbers in the text rather than to respective pages.

Chapter one provides a snapshot of the Australian legal system, discussing its history and continuing evolution. Sources of law are discussed, namely, statute law and judge-made law and the relationship between the two. Also discussed are the principles of statutory interpretation, the doctrine of separation of powers, and international law and the impetus it provided for the landmark decision in Mabo. The classification of law into public and private law is discussed and helpfully illustrated by a diagram.

Chapter two continues the introductory theme with the focus being Australia’s legal institutions. The reader is introduced to the adversarial nature of court proceedings, the New South Wales justice system and the federal legal system. The doctrine of precedent, the jury system and the legal profession are additional topics introduced to the reader, as well as coverage albeit briefly of the Court system in States and Territories outside New South Wales.

Chapter three contains subject matter much closer to the theme of business law, as it outlines the various types of entities through which trading activities can be conducted. The chapter is an outline of these legal entities and distinguishes between them on the basis of the non-corporate and corporate divide. There is a useful diagram highlighting the non-corporate entities namely sole trader, partnership, trust and unincorporated association.

Chapter four serves as a significant introduction to a core component of the book which is the law of contracts. It provides an overview of the law in this area, aspects of which form the subject matter of subsequent chapters. For the newcomer, the elements required for a valid contract are listed and well explained. Matters regarding enforceability and validity, discharge of contract, rescission and remedies for breach are usefully commented on.

The six essential elements of contract formation outlined in chapter four, each forms the subject matter of the following chapters. The chapters in fact follow in the order in which the six essential elements have been stipulated and so provide a distinctive thread which links the chapters for the reader. Hence the student reader should not be surprised to discover that chapter five deals with intention, and chapter six with offer and acceptance or agreement to contract. A particular highlight of chapter six at p 118 is the only illustration in it, which is a copy of the actual advertisement which appeared in the London newspaper that ultimately led to the events in the celebrated decision on unilateral contracts in Carlill v Carbolic Smoke Ball Company [1893] 1 QB 256.

Consideration is the subject of chapter seven, and capacity to contract is dealt with at the end of chapter eight. Chapter eight mainly deals with the issue of privity of contract and the assignment of contractual rights and liabilities. Real or genuine consent is the subject matter of chapter ten, which deals with matters such as contractual mistakes, misrepresentation, the effects of duress, undue influence and unconscionable conduct. Of considerable use is the diagram on p 199 dealing with the categories of false statement and the consequences which flow from each.

The sixth essential ingredient of legality of purpose is the subject of chapter eleven. Chapters twelve and thirteen conclude the coverage of contractual law matters by discussing the topics of discharge of contract and remedies for breach respectively.

Chapter fourteen introduces the student to the law of torts with coverage of the elements of a tort, intentional torts, the tort of negligence and defences to an action in tort. Defamation is also helpfully discussed towards the end of the chapter. Chapter fifteen introduces the reader to a range of speciality contracts. These include leases, residential tenancies and franchise agreements.

The important business law topic of insurance is dealt with in chapter sixteen which clearly outlines the special features of insurance law. The reader’s attention is then drawn to the wide ranging reforms that have been made to insurance practices in Australia as a direct consequence of recommendations made by Australia’s Law Reform Commission. There is also commentary on the bodies with oversight of the insurance industry in Australia. The classification of insurance contracts into indemnity and contingency insurance is brought to the reader’s attention.

The law of cheques is the subject of chapter seventeen and the law on sale of goods covered in chapter eighteen. Chapter twenty outlines the law on restrictive trade practices. Important concepts in this area namely those of the market, competition, contracts, arrangements or understandings affecting competition and the misuse of market power, receive fairly good coverage and indeed provide a helpful insight into Australian competition law.

Chapter twenty-one on bankruptcy provides a good discussion of what property comes within the bankrupt’s estate, a question which logically must be determined prior to the commencement of its distribution to the pool of creditors. The chapter certainly lends prominence to the whole aspect of bankruptcy and its impact on business law.

Chapter twenty two introduces the reader to the law of agency and deals with the rights and duties of an agent, the liability of agents to third parties and various types of specific agents like mercantile agents.

Chapter twenty three is in essence specific commentary on partnerships. At p 500 is a vivid illustration of a map of Australia divided into Australia’s six States and two Territories with their respective Partnership Acts. Unfortunately the map needs updating so as to accurately reflect the fact that since 1997, the Northern Territory has had its own Partnership Act of 1997 and has not been subject to the law of its former administrator, South Australia for almost four years.

The penultimate chapter is a twenty three page discussion of some of the significant intellectual property issues most likely to arise in business transactions. The reader is introduced to the concepts of copyright, designs, patents, trademarks and confidential information with the chapter’s emphasis on designs, copyright and confidential information.

The final chapter of the book discusses the importance of the relationship in the workplace between employer and employee as well as important statutory modifications of the relationship. There is coverage of anti-discrimination legislation as well as informative commentary on the industrial system in New South Wales.

The book, as its title suggests, is a guide to the complex and detailed subject matter of business law. It certainly provides a fleeting familiarisation tour through a wide range of topics, shorn of much of the detailed discussion which a textbook on the area would have contained. Its contents are especially well presented with illustrations designed to capture and retain the reader’s interest and attention. The book is accompanied by a Study Guide which students will find invaluable for revision purposes. The book could also serve as a ready reference point on the bookshelves of academics. Those reading the book and desiring a fuller treatment of the subject matter will find the twenty third edition of Clive Turner’s book, Australian Commercial Law, its ideal companion.

JOEL MANYAM

THE LAW OF PARTNERSHIP IN AUSTRALIA AND NEW ZEALAND (Eighth edition), by Keith L Fletcher, Sydney, Law Book Company, 2001, 383 pp. New Zealand price $113.40 plus gst.

The concept of partnership has become well established as a vehicle for individuals to carry on an enterprise. A preliminary and significant question when dealing with partnership law is: when can a partnership be said to exist? The leading case of Cox v Hickman [1860] EngR 1068; (1860) 8 HL Cas 268 at 312-313; [1860] EngR 1068; 11 ER 431 at 449 indicates the test for ascertaining this. This case establishes that a partnership involves a contract by individuals to conduct a trade where the individuals share in the profits and losses of the trading activity and act as agents of each other in conducting such activity.

Keith Fletcher’s book is a welcome addition to this area of scholarship and practice. It is a useful book for practitioners, students and academics alike. Its strength is its treatment of partnership law from an Australasian perspective. The book deals with the Acts of the Australian Territories and various Australian States, as well as the New Zealand Act. The book at p xxxvii contains a helpful comparative Table of Partnership Acts of the seven Australian States and Territories as well as the Acts of the United Kingdom and New Zealand. Of much practical use is a 17-page Appendix with a checklist and forms of various Partnership Agreements, as well as a sample Deed of Dissolution.

Part I is an invaluable introduction to the concept of partnership and the distinctive features which single it out from other types of associations like sports clubs and joint ventures. Significantly, the book discusses the important features which distinguish a partnership from a public trading corporation, namely, identification of the individual partners with the firm, unlimited personal liability of partners, non-transferability of a partner’s interest, and the right of each partner to participate in management. These features characterise the participatory model of the partnership structure in contrast to the regimented structure which divides managers and investors in the corporate model.

Part II, being the core of the book, deals with matters covered by the respective Partnership Acts. This Part helpfully discusses topics such as the nature of partnerships, the contract of partnership, fiduciary obligations of partners, partnership property, relations of partners with persons dealing with them, and the technical procedures and effect of dissolution and winding up of partnerships. The chapter on the contract of partnership is one which the student and researcher will find of assistance, especially for the clarity of the commentary contained in the chapter. The book deals with the ever-practical question of the demarcation lines between partnership property on the one hand and private property of each individual partner, and also lucidly explains the significant difference between joint liability and several liability. Of interest in relation to the section on winding up a partnership is the New Zealand Court of Appeal decision in Sew Hoy v Sew Hoy [2000] NZCA 314; [2001] 1 NZLR 391, decided 4 months after the law as stated by the author. The last chapter of Part II deals with what the various Australian Acts term “Limited” Partnerships but which the New Zealand Partnership Act 1908 in its Part II refers to as “Special” Partnerships.

Part III, as the final part of the book, deals with important aspects of partnership law which are not provided for in the respective Partnership Acts. These topics deal with the effect of bankruptcy on both the individual and personal estates of the partners on the one hand and the joint partnership estate on the other. There is also treatment of the technical procedural rules for the commencement of legal proceedings by and against partners in the firm’s name. Of relevance here are the respective Rules of Court of the Australian States and the High Court of New Zealand. The final chapter discusses the question of the regulation of firms’ names, as for instance where a firm conducts its trade using a name which does not include all of the partners of the firm.

This book certainly provides a much-needed update of this area of law in Australasia. It will certainly prove a useful addition to the bookshelves of those with an interest in the law of partnerships and its development in Australasia.

Joel Manyam

PRINCIPLES OF CRIMINAL LAW, by Simon Bronitt and Bernadette McSherry, Sydney, Law Book Company, 2001, lxxxv and 900 pp, including index. New Zealand price $137.50 plus gst (softcover).

Authors Simon Bronitt and Bernadette McSherry set themselves “the daunting task of describing criminal laws across every Australian jurisdiction and, wherever possible, challenging these accounts from interdisciplinary vantage points” (p v). The result is some 880 pages of text (excluding the preface, tables of cases and legislation, and bibliography). Notwithstanding the overwhelming nature of the task, Bronitt and McSherry have achieved their aim, and achieved it well.

In fact, the most notable feature of this book is its inclusion of a broad range of perspectives including criminological, feminist, historical, medical, psychological, sociological, and human rights’ viewpoints. This ensures that the book will function well as a text for students and as a reference for anyone with an interest in the broader implications of criminal law.

The book is divided into four parts. Part I is entitled “Theory and Principles”, and Chapter One begins with the sub-heading “What is Theory? And Who Really Cares?”. The authors point out that, beyond the introductory criminal law lecture, theory is usually relegated to individual pursuit for those students who choose to do so. Bronitt and McSherry thus view the resultant chapter as an essay on the value of theory in constructing and reconstructing the criminal law, a distinction that includes both explanatory and normative perspectives. Thus, in “constructing” criminal law, legal positivism is a predominant theory from both the explanatory and normative perspective. In terms of “reconstructing” the criminal law, the authors suggest that the dichotomy between explanatory and normative theory becomes more conflated, with liberalism playing a significant role both in terms of how the law works and how it ought to work.

Bronitt and McSherry’s tendency to foster a discussion of law in context is demonstrated in this chapter by critiquing technocratic models of justice in respect of the decriminalisation of cannabis use. For example, the infringement notices’ schemes for minor drug offences in South Australia and the Australian Capital Territory have resulted in more prosecutions (an unintended consequence) for non-payment of fines.

The authors point out in Chapter Two that “general principles” also perform explanatory and normative functions. The general principles that Chapter Two focuses on are territoriality, fairness, equality, and privacy.

In keeping with the all-encompassing nature of the text, the authors also pay specific attention to the procedural and practical operation of criminal law. In doing so, procedure is not detached from a discussion of the body of criminal law. As the authors point out (at p 79):

Many criminal law courses and textbooks examine process issues in a cursory and descriptive fashion. There is little attempt to examine how legal rules and principles impinge, if at all, on law enforcement practices and trial procedures. Criminal procedure is typically marginal to criminal law, represented as having practical rather than academic significance.

In rejecting this marginalisation, Bronitt and McSherry, using empirical data in support, incorporate process issues within an analysis of the principle of fairness. They canvas the constitutional right to trial by jury and follow this with a discussion of the classification of offences into summary and indictable offences and conclude the section with an analysis of the fair trial principle.

The inclusion of different perspectives becomes particularly apparent at this point. For example, a feminist perspective on the “fair trial” principle points out that the notion of a fair balance between the state and the individual accused is reinforced in legal iconography whereby the scales of justice are held by a woman. Yet there are few female judges, and also a fair balance between the state and the accused excludes, from the notion of justice, the interests of victims, their families and the wider communities.

The principle of equality before the law is also given critical treatment, in the context of indigenous customary law, and mention is made of the potential provided by Mabo v Queensland (No 2) [1992] HCA 23; (1992) 175 CLR 1 for an argument that indigenous customary law may have survived British occupation. The text also provides a cultural perspective on the notion of “payback”, a concept apparently similar to the MŠori concept of utu, and discusses the extent to which some jurisdictions recognise “payback” in sentencing decisions.

Part II deals with Justifications and Excuses, canvassing the traditional defences and expanding into areas that are incrementally impacting on the criminal law, for example battered women’s syndrome. The book also provides information that is useful to students but generally not easily accessible through other means. An example is provided by Bronitt and McSherry’s discussion of the traditional legal test for insanity, referred to as the M’Naghten Rules and based upon the case of Daniel M’Naghten. In addition to providing the factual background to this fundamental case in the study of the defence of insanity, as an aside the text provides a paragraph on the spelling of M’Naghten, a name with which students, lecturers and commentators alike have much difficulty.

The section on mental impairment (which, in terms of New Zealand law, would incorporate insanity and automatism) also deals with an issue currently causing much confusion in mental health and legal systems. In New Zealand, personality disorders are not generally considered to meet the legal test of insanity. Under the Criminal Code Act 1995 (Cth), the definition of “mental impairment” includes “severe personality disorder”. However, as McSherry points out, even though antisocial personality disorder is the disorder most linked to criminal conduct, it should not be associated with mental impairment, on the basis that those with antisocial personality disorders are able to deal with reality and are able to reason. This is interesting in the light of New Zealand’s own experience with criminal offending and antisocial personality disorder, and a further factor to consider is the apparent inability of the mental health system to deal with these types of offenders.

Part III, “Extending Criminal Responsibility”, covers both complicity (derivative or secondary liability) and inchoate crimes (attempts and conspiracy). Part IV deals with specific offences — unlawful killing, offences against the person, sexual offences, property offences, public order offences, and drug offences.

Because of Bronitt and McSherry’s mission to incorporate the social, economic and historical context of criminal law, the book contains perspectives not usually addressed in criminal law texts. For example, Chapter 10 (Unlawful Killing) contains a section on euthanasia. As the authors point out, the debate over voluntary euthanasia became prominent in Australia because of the Rights of the Terminally Ill Act 1995 (NT) (since repealed). However, one suspects that, even had that piece of legislation not contributed to the visibility of the euthanasia issue, the authors would still have included the section in their text, in keeping with their undertaking to be comprehensive and to provide an analysis of law in context.

This comprehensiveness also includes a dedication to integrate more recent issues impacting upon the criminal law. Thus, the chapter on unlawful killing also includes a section on culpable driving, as all Australian jurisdictions excluding the Northern Territory have enacted specific offences relating to driving causing death. Chapter Nine, Offences Against the Person, discusses the public health perspective on HIV/AIDS and grievous bodily harm; the cultural perspective on female genital mutilation; consent in the context of sadomasochism; and a psychiatric perspective on the relatively new offence of stalking.

In terms of sexual offences, Chapter Nine contains an interesting case study entitled “The Legitimacy of ‘Rough Sex’ in Rape and Indecent Assault Cases” in which the authors point out the inconsistency that it is generally irrelevant in terms of culpability that a victim consents to an assault, yet when a victim is subjected to very serious injury during sex, consent is still an issue that the prosecution must disprove. Case studies such as this demonstrate the utility that this book has in terms of a reference material. Not only does the text contain a discussion of substantive criminal law and analysis, it also contains reference to a wide range of other material. As well as case law, references to journal articles, legislation and other texts feature prominently, allowing the student to “engage independently with the original material” (p v).

The sheer coverage and depth of research might leave students feeling a little overwhelmed at first glance, and the language is quite technical in places. However, by using perspective sections, case studies, “asides boxes”, tables and diagrams, the authors combine form and content to ensure relative ease of reading.

While the text focuses on laws across Australia, its broader jurisprudential and interdisciplinary approach ensures that it also has relevance to the study of criminal law in any jurisdiction.

BRENDA MIDSON[*]

HE HINATORE KI TE AO M€ORI: A GLIMPSE INTO THE M€ORI WORLD, Ministry of Justice, Wellington, 2001, 232 pp. New Zealand price $30 including gst.

Many MŠori commentators have in the past criticised the monocultural nature of the justice system and its part in depriving MŠori of their land. Since the establishment of the Waitangi Tribunal, the decision of the Court of Appeal in New Zealand MŠori Council v Attorney-General [1987] 1 NZLR 641 and following cases, and the incorporation of reference to the principles of the Treaty of Waitangi in a number of statutes, the justice system has, by small increments, been prepared to consider MŠori perspectives on justice. Indeed “MŠori perspectives on Justice” is the subtitle of this most interesting publication from the Ministry of Justice.

The foreword states that the purpose of the project is to “help develop an understanding of traditional MŠori perspectives on justice” (p iii), but does not venture to suggest how that could or should impact on the present criminal justice system. That reticence is understandable. The project is one sponsored by the Ministry responsible for the present system. One need only consider the response of the then Minister of Justice to MŠori and the Criminal Justice System: He Whaipaanga Hou – A New Perspective by Moana Jackson, which suggested a parallel legal system for MŠori which could properly adopt a MŠori perspective on justice, to see that any future projects were sure to have boundaries calculated not to arouse too much controversy. However, in engaging in such a project, questions are inevitably raised about the options available for changing the system to take more account of MŠori culture and needs. He Hinatore is intended to influence policy, not by setting out the options, but by ensuring that we have well-informed policy makers and advisers – by giving them “an understanding of MŠori society, tikanga, and behaviour” (p iii). However, changing the system to address MŠori needs in appropriate ways needs more than understanding; it also requires the political will and commitment of those who have the power to make such changes, and that depends on where the government’s priorities lie.

Nevertheless, the purpose of the project is in itself a worthy one. The book is divided into three parts. Part One sets out the conceptual basis for the MŠori worldview. The discussion of these matters takes seventy-nine pages, and is a distillation of the available literature, the oral tradition and information obtained from kaumatua. The ideas in this section are complex, dealing as it does with MŠori perceptions of the inter-relationship between “the spiritual world, the living world and the natural world” (p 9). This involves a consideration of MŠori cosmogony, which provides a blueprint for the values by which MŠori govern their world. MŠori social structures are also described, together with basic values such as mana, tapu, utu and muru.

It was pleasing to see that the most important MŠori goddesses were included in this section, as the importance of women in MŠori society was consistently underrated by early anthropologists. However, apart from the descriptions of the most significant powers and events in the life of the goddesses, there is no discussion of gender or the role of MŠori women in the book. The descriptions of MŠori society are gender neutral, thus disguising the gender issues that are very live topics in MŠori society today. Clearly it was not part of the brief for the project to set out to correct some of the misconceptions that Pakeha might have regarding the role of MŠori women, but those misconceptions need to be addressed since they materially affect the way in which MŠori women are perceived in the justice system. Of course gender issues also need resolution within MŠori society, but that is another project.

One other important reservation needs to be noted regarding Part One. A whole library could be devoted to the MŠori worldview and, as the project team itself noted, they were “merely scratching the surface” (p v). This should be taken as a very real warning to readers that they are being given only a “glimpse”, as the title to the book says, of the MŠori world. A real understanding of MŠori life will involve not only reading this book but doing further research and, most importantly, going on to listen to and live with MŠori people.

Part Two is a fascinating case study analysis of the practical application of the values and controls described in Part One. Eight examples are given, based on interviews with kaumatua about their personal experiences of living in rural, predominantly MŠori communities around World War 2, when MŠori communities still strongly espoused “traditional” MŠori values. After each story is an analysis of the case in terms of the values displayed in it. These analyses are very useful for tying in the complex and abstract notions discussed in Part One to the practices discussed in Part Two, especially if the reader is unfamiliar with MŠori culture and rather confused by the discussion in Part One.

The project team make the point that the way of life portrayed in the case studies “might sound quite foreign” to those not brought up in such close MŠori communities (p 85). They go on to say that MŠori communities have changed since those times and that different methods of resolution might be used nowadays. It should also be noted that even in the 1940s MŠori culture and society had been affected for at least 100 years by contact with settler culture. The influence of Christianity alone had wrought great changes. For example, the followers of Rua Kenana changed a number of MŠori customs in line with Rua’s teachings, which had some basis in the Bible. Thus, even at that time there would have been MŠori communities who would not have reacted in the way described in the stories. Case study 3 is an example of a woman who was physically abused by her husband for committing adultery. She returned to her people, who then came to extract muru from her abuser’s community. Rather than hand over the offender to the wife’s people, the abuser’s community offered the contents of the local shop to restore balance to the relationship between the communities. That sort of practice would have become unusual even in the 1940s, at least in relation to domestic violence. The story also illustrates the depth of the changes wrought on MŠori society since the 1940s, so that not only are the dispute resolution methods different now, but some of those used in the 1940s would no longer be possible. The methods depended on adherence to a set of values and community structures to make them effective – many MŠori have lost some or all of those values and structures.

It would also have been helpful if the case studies had indicated the tribal area where the events in them occurred. Different hapu have their own ways of doing things and the case studies may give the impression that tikanga is the same all over Aotearoa. This is not the case, but those unfamiliar with MŠori culture may well be misled into thinking that what applies in one area applies in them all. The underlying values are the same but they are abstract and other general guidance for behaviour - the way those values are evinced in day to day life will naturally differ in different environments.

Part Three is a “Collection of Behaviours, Philosophies, Emotions and Cultural Influences” as captured by a series of whakatauki (proverbs) and kupu (phrases, expressions). The project team’s purpose in this part is to give “an insight into the MŠori psyche, both positive and negative forms” (p 143). This section discusses “positive” and “negative” behaviours. These terms may have been used to get away from the idea that some of these behaviours are “good” and some “bad”. If so, they do not work. One must question why, for instance, whakama is seen as a negative behaviour. It certainly means that one feels ashamed or embarrassed, but this may have positive results in terms of character building for the person feeling whakama, and in terms of dispute resolution. Another example is manawa wera, which is also grouped with the negative behaviours. The discussion shows that, whilst it involves insulting challenges, it can also be a way to release pent up emotions. That in turn may have poor results or good results. Certainly in Case Study 3 discussed in Part Two the performance of the manawa wera by the wife’s people alerted the husband’s people to the seriousness of the issue that was being brought for discussion. Possibly the fault with this section lies in that it seems to use the terms without giving the full contexts in which they may be used. That of course would be impossible to do in what is intended to be a “glimpse” of the MŠori world. As it is, Part Three reads rather like an extended dictionary. However, it is also good to see these whakatauki brought together in an accessible way.

The book ends with informative and useful appendices which set out the chronology of the project, the terms of reference, the framework of disputes adopted by the team, the analytical framework used on the case studies and the methodology used to gather the information from kaumatua and experts. The book ends with an extensive and useful glossary.

In conclusion, the book is an interesting introduction to MŠori customs and values. Reading the book would not make anyone an expert on MŠori – but it is a start. The MŠori world is holistic in outlook, something which is very difficult to capture in a book, let alone a book written in a language which is not of the culture. Hopefully the audience to whom the book is addressed will recognise these limitations and enjoy the insights that it gives. Readers should also recognise what a privilege it is to be given such information – the knowledge contained in this book is very precious and not to be approached lightly.

Ahakoa he iti he pounamu (No matter how small, it is a treasure).

STEPHANIE MILROY[*]

AN INTRODUCTION TO PROPERTY LAW IN AUSTRALIA, by R Chambers, Sydney, Law Book Company, 2001, 524 pp, including index. New Zealand price $100 plus gst.

The title does not do justice to the wealth of knowledge that is contained in this relatively small book. Although it is aimed at an Australian audience and the cases cited are largely taken from the Australian jurisdiction, there is much more to this book than a simple outline of Land Law that the title might suggest. Its relevance exceeds the boundaries of Australia and the author has succeeded in breaking down barriers that students often perceive to exist between the different “subjects” in law. Robert Chambers describes property law as “an enjoyable and worthwhile subject of study”, and says that “it is a useful way to pull together and build a framework for understanding other areas of law, such as contract and tort” (p4). This theme is continued throughout the text, and the relationships between different, seemingly unrelated, areas of law are explored in such an interesting way that the reader is immediately engaged. The author sets out to create an enjoyable experience and succeeds admirably. He sees the acquisition of a firm understanding of property law as a foundation for the study of areas that can be dry and not readily comprehensible to the student, like trusts and restitution. This book is a great aid to acquiring such an understanding.

Although I believe that the book is primarily aimed at students embarking on the study of law, because of the author’s insight into the theory of property law, much of the book is equally useful to students at a later stage in their careers. The main strength of this book is its breadth. It reaches across subject areas and Chambers takes his illustrations and quotations from a wide variety of jurisprudential sources. The themes and topics dealt with are diverse but contained within an integrated whole. For example, as early as chapter 2, the concepts of in rem and in personam are tackled and explained with a simple, everyday example; but this is immediately followed by a brief analysis of the theory of property rights expounded by Wesley Hofeld. Any illusion that this book is going to be a simple introduction is soon dispelled by the complexity of some of the issues tackled. Chapter 3 examines property rights to such things as living and dead human tissue and information in the context of rights to bodily autonomy and freedom in a democratic society.

Chapter 4 centres the book as an inquiry into the analytical issues that occur in property, rather than a treatise on the justification of Australian society in its method of property distribution or allocation of wealth. However, these issues are acknowledged and the debate is set out for the student who may wish to explore those issues further. This is an illustration of the success of this book. It exposes issues which go far deeper than any introductory book could, and gives the reader the tools with which to explore further. It also makes me pause to ask why the author chose the title he did, since the book does so much more than the title suggests.

In the section dealing with the concept of possession, the relationships between property law and torts, such as trespass, conversion and detinue, are dealt with very successfully. The difference between the right to possession and the control of property as a basis for a competing right are carefully explained and form a cogent basis for the later chapter on estates in land. Similarly, the concept of ownership is dealt with before the student embarks upon an analysis of tenure. This discussion leads quite naturally into a succinct explanation of equitable rights over property, which is in turn followed by chapters on security rights and shared rights. All of these topics are examined using a logical contextual approach, and the author achieves a depth of analysis rare in an introductory text. This is another illustration of the misleading nature of the title.

As a teacher both of Equity and Land Law I was especially impressed by the way in which the doctrines of detrimental reliance, unjust enrichment, constructive trust, restitution and tracing were covered. Too often it seems to me that books aimed at property lawyers in a Torrens system of land registration tend to ignore or undervalue equitable doctrines. In this book the doctrines are placed at the heart of the text, and are investigated prior to the sections on the Torrens system and priorities in legal title. They are clearly explained and illustrated with examples of their benefits in practice and their limitations.

The chapters on registration of interests in land come right at the end of this book and it is stated that these chapters are intended to complete the picture of property law by explaining the effect of registration of property rights. The final chapter deals with the Torrens system as it has developed in Australia, with considerable reference to the themes and topics dealt with in the earlier parts of the book. This has the effect of tying the whole book together in a complete package, and it is a very satisfying conclusion.

My only wish is that the author had included the Torrens system as it applies in New Zealand. If that had been the case this book would become compulsory reading in any Land law course I teach.

SUE TAPPENDEN[*]

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[*] Senior Lecturer in Law, University of Waikato.

[*] Lecturer in Law, University of Waikato.

[*] Senior Lecturer in Law, University of Waikato.

[*] Lecturer in Law, University of Waikato.