2022-3 Fellow Spotlight
A selection of books, conference presentations and other contributions to the law from Fellows of the Academy.
Academy Fellows Professor Greg Tolhurst and the Hon Justice Elisabeth Peden have had published the 3rd edition of Furmston and Tolhurst on Contract Formation, by Oxford University Press.
The book provides
· A comprehensive coverage of the legal principles governing contract formation
· Answers practical and difficult issues facing practitioners in the area of contract formation
· Incorporates discussion of cases from England, Australia, Canada, the USA, Singapore, and New Zealand
New to this edition is:
· Consideration of the development of contract formation in England through cases such as Devani v Wells  which considered the extent to which implied terms can be used to overcome issues of uncertainty and completeness.
· Examination of Crown Melbourne Ltd v Cosmopolitan Hotel (Vic) Pty Ltd  and how contract formation can involve issues of law or fact.
Further details about the book are available from Oxford University Press.
Academy Fellow Professor Michael Legg, along with James Metzger, has had published The Australian Class Action, an edited collection of essays marking the 30th anniversary of the introduction of class actions law in Australia.
"Class actions are one of the most controversial forms of litigation, being both loved and loathed. Class actions were introduced into Australia by Part IVA of the Federal Court of Australia Act 1976 (Cth) which commenced on 4 March 1992. This book uses the 30th anniversary as an opportunity to reflect on the major themes and controversies that have arisen during its operation.
The text examines the initial objectives for the procedure, such as access to justice and the efficient resolution of multiple claims. It also focuses on how the core requirements of the justice system, namely procedural fairness, open justice and finality, apply in the class action context. The text then explores the role of lawyers and litigation funders as necessary contributors of expertise and financing. Lastly, the text examines the class action through a number of theoretical lenses, such as law and economics, comparative law and politics.
The book features chapters from leading Australian and international academics and Australian jurists, including Emeritus Professor Peta Spender, Professor Rachel Mulheron, Justice Jayne Jagot and Justice Michael Lee.
‘All who have to participate in or think about the conduct of such cases now and in the future (whether as practitioner, scholar, student or the legislature) will benefit from this collection of essays.’: The Hon Michelle Gordon AC, Justice of the High Court of Australia".
Academy Fellow Professor Ian Ramsay has written a second edition of Company Directors: Principles of Law and Corporate Governance.
The text is described as
“a detailed, scholarly and comprehensive analysis of corporate law and governance principles as they relate to Australian company directors.
This major work is an invaluable addition to existing Australian corporate law knowledge, and is an essential resource for practising lawyers, company directors, company secretaries, inhouse counsel and academics, as well as those with an interest in company directors and corporate governance.
… this second edition covers important areas, in particular, the duties of company directors, remedies for breach of these duties, and the structure and operations of the board of directors are examined. Expert commentary on corporate governance, as it relates to company directors, is also provided. This second edition incorporates the extensive legislative and case law developments that have occurred since the first edition was published in 2005”: see Company Directors: Principles of Law and Corporate Governance, 2nd edition | LexisNexis Australia.
2022 Fellow Spotlight
Academy Fellow Michael Murray has co-authored the 9th edition of the Annotated Bankruptcy Act 1966, with Paul Nichols, barrister of Perth WA.
The text brings the law up to date as at July 2022 including the Bankruptcy Regulations 2021, and the rules of the new Federal Circuit and Family Court. The Act is comprehensively annotated with latest case law and practice guidance.
The text is published by Lexis Nexis.
Academy Fellows Professor Elizabeth Fisher, Professor of Environmental Law at Corpus Christi College at the University of Oxford, and the Hon Justice Brian Preston, Chief Judge of the Land and Environment Court of New South Wales, have published An Environmental Court in Action: Function, Doctrine and Process, being a critical assessment of the New South Wales Land and Environmental Court (NSWLEC).
Effective adjudication has become a key consideration for environmental lawyers. One of the most important questions is whether environmental law frameworks need their own courts, with the conclusion being: yes they do.
Here, a pioneer of such a court, the NSWLEC is forensically examined to see what it might teach other such courts.
Showing a court 'in action' it suggests models that practitioners and policy makers might follow.
It also speaks to the environmental law scholars, setting out a conceptual framework for studying such courts as legal institutions.
This multi-faceted collection is invaluable to scholars and practitioners alike.
The sixteen chapters of the book cover many aspects of the NSWLEC including its proactive decision-making, its place in the planning system of New South Wales, climate law and Gloucester Resources v Minister for Planning, international comparisons, biodiversity, environmental principles, the recognition of indigenous peoples' environmental rights, administrative law expertise of the Court, criminal proceedings for offences against environmental laws, access to justice and ADR.
An Environmental Court in Action: Function, Doctrine and Process: Elizabeth Fisher: Hart Publishing (bloomsbury.com)
Academy Fellow Neil Williams SC and Alison Hammond of the NSW Bar have written Learning to Litigate - A Guide for Young Lawyers, published by Federation Press.
As the publisher notes, while it is “sometimes said that great advocates are born, not made … the central tenet of this book is that such assertions are dangerous nonsense”, explaining that
“modern litigation is a sophisticated business, requiring a wide range of organisational, procedural, presentational and technical legal skills. Whether it be a plea of guilty before a magistrate or a multi-party commercial dispute involving billions of dollars and dozens of lawyers for each party, each stage in the preparation and presentation of a case requires skills that must be learned, then honed” ….
Read further: Learning to Litigate - The Federation Press
The book is aimed at younger lawyers and those mentoring them. As Chief Justice Kiefel writes in the Foreword,
“The work is essential reading for young litigators and their mentors… I wish that I had been fortunate enough to have had access to a guide such as this when I commenced my career in litigation.”.
Neil Williams has been a Fellow of the Academy of Law since 2014. Chief Justice Kiefel is Patron of the Academy.
Academy Fellow Professor Michael Legg has written a second edition of his Case Management and Complex Civil Litigation, published through Federation Press.
As explained by the publisher
“… The purpose of Case Management and Complex Civil Litigation is to examine the case management tools available to the modern-day judge for dealing with crucial aspects of complex civil litigation, such as pleadings, discovery, expert evidence, alternative dispute resolution, summary judgment and the separate question procedure. The text also addresses the role of the overriding or overarching purpose with its command that civil litigation is to be conducted in a manner which achieves justice while minimising cost and delay as this has major significance for complex cases. The text considers the use of costs and sanctions as a way in which to encourage and enforce compliance with civil procedure requirements in complex litigation. Concerns voiced about case management, such as ensuring procedural fairness, are examined. ...".
The Hon Justice Steven Rares of the Federal Court of Australia, also an Academy Fellow, has written a foreword to the text, saying that Professor Legg has “impressively surveyed, synthesised and compared” the various rules and practices of Australian, English and US courts in managing complex litigation, revealing “as one might expect, that there is more than one way to approach any problem”.
Further details are here: Case Management and Complex Civil Litigation - The Federation Press
5 October 2022, AAL.
Professor Michael Legg
Academy Fellow Professor Miranda Stewart’s new book, Tax and Government in the 21st Century, was launched by the Hon Dr Andrew Leigh MP at the Australia Institute’s Revenue Summit 22 on 6 October 2022 at Parliament House Canberra. His speech for the launch is here: Speech launching Miranda Stewart's book 'Tax and Government in the 21st Century' - Andrew Leigh MP
As the publisher Cambridge University Press explains:
“With an accessible style and clear structure, Miranda Stewart explains how taxation finances government in the twenty-first century, exploring tax law in its historical, economic, and social context. Today, democratic tax states face an array of challenges, including the changing nature of work, the digitalisation and globalisation of the economy, and rebuilding after the fiscal crisis of the COVID-19 pandemic. ….”.
See further at 9781107483507_Tax and Government in the 21st Century_Flyer.pdf
Professor Miranda Stewart
Emeritus Professor David Barker AM FAAL has written a history of the Australian Academy of Law - A Sense of Common Purpose, published by Federation Press.
The book recounts the history and development of the Academy from its early beginnings in 1996, through its official launch in July 2007 at Government House in Brisbane to the end of 2020. It traces the influence on its development of the recommendations of the Australian Law Reform Commission in 2000 in its Report Managing Justice – A Review of the Federal Civil Justice System (ALRC Report 89), which recommended the establishment of such an Academy.
Sponsored by the Academy, the book has the advantage that its author, David Barker, has been involved with the organization from the beginning, then later as a Foundation Fellow and as its Secretary to the present time. His early involvement has meant that he has been able to observe the influence on its development exercised by both its Foundation and current Fellows, its three Presidents, all of whom have been Judges of the Federal Court of Australia, and its three Patrons, all of whom have been Chief Justices of the High Court of Australia.
The book will be of great interest to those concerned with the Academy’s role since its inception in promoting discussion on important issues within the Australian legal system and in supporting the future development of law in Australia.
The book was launched on 21 June 2022 by the Hon Chief Justice James Allsop AO, Chief Justice of the Federal Court of Australia, and the event was chaired by the Hon Melissa Perry, a Judge of the Federal Court.
The speech of the Chief Justice is at this link.
Other details about the book are on the Federation Press website.
Professor David Barker, Justice Melissa Perry and Chief Justice James Allsop
29 July 2022
Academy fellows Mr Michael Murray and Professor Jason Harris have published the 11th edition of Keay’s Insolvency which has become a recognised text on personal and corporate insolvency law and practice in Australia. It is widely used by practitioners, academics, students and policy makers, and it is regularly cited in court judgments.
This edition explains Australian insolvency law under the Bankruptcy Act 1966 and the Corporations Act 2001, in light of the substantial case law and practice developments flowing from the changes made by the Insolvency Law Reform Act 2016. The changes include new powers of the courts and the regulators, ASIC and AFSA, and new practitioner registration and regulation regimes. Further changes to the law in relation to safe harbour, ‘ipso facto’ and phoenix companies, and debt agreements, and then further reforms again as a consequence of the economic and social impacts of COVID-19, are also explained.
While Keay’s Insolvency continues with the authors’ views on the need for major reform of insolvency law and practice, in chapter 1, they explain what they see as initial structural reforms necessary to address significant gaps and deficiencies in the operation of insolvency law in Australia. These were the subject of the authors’ presentation to an Academy roundtable in August 2021: see Australian Academy of Law - Sydney Insolvency Roundtable.
Keays is now approaching its 30th year of publication with this, its 11th edition. The original first edition was written by Professor Andrew Keay, now of the University of Leeds in the UK. Michael Murray has been involved since the 4th edition and Jason Harris since the 7th edition.
Further details can be found here: Keay's Insolvency: Personal & Corporate Law and Practice, 11th Edition – Thomson Reuters Australia
27 July 2022
Allegiance, Citizenship and the Law - The Enigma of Belonging has recently been published by Academy Fellow , Professor Emerita Helen Irving, of Sydney Law School.
“Weaving together theoretical, historical, and legal approaches, this book offers a fresh perspective on the concept of allegiance and its revival in recent times, identifying and contextualising its evolving association with theories of citizenship.
The book is published by Edward Elgar Publishing: for purchase and other details please see this link: Allegiance, Citizenship and the Law (e-elgar.com)
19 July 2022
Professor Irving’s comment on the recent High Court of Australia decision in Alexander v Minister for Home Affairs  HCA 19 (8 June 2022) concerning the invalidity of section 36B of the Australian Citizenship Act 2007, as to the cessation of a person’s citizenship if certain conduct “demonstrates that the person has repudiated their allegiance to Australia”, is on the Australian Public Law blog.
Zines and Stellios's The High Court and the Constitution, 7th edition by James Stellios
It has been seven years since the publication of the 6th edition of Professor Zines’s classic book on Australian constitutional law, The High Court and the Constitution. In that time the High Court has handed down a range of important decisions transforming, extending and developing existing constitutional law principles.
The 7th edition of the book, by Professor James Stellios, contains analysis and critique of the High Court’s jurisprudence over that period. Revisions have been made to almost all chapters to update the existing law. The most significant revisions relate to:
Published by Federation Press: full details here.
8 July 2022
Academy Fellow Professor Matthew Groves of Deakin University has co-edited a new book - The Ombudsman in the Modern State - with Professor Anita Stuhmcke of UTS.
Ombudsmen are a global phenomenon. They are also a critical part of the public law frameworks of modern liberal democracies. This is the first edited collection to examine the place of the ombudsman in the modern state.
In its sixteen chapters, it brings together key international scholars to discuss current and future challenges for the Ombudsman institution and the systems of government within which they operate, with its authors heralding from most continents - Canada, the Netherlands, the United Kingdom, Australia, New Zealand, Hong Kong, South Africa, Germany, and Austria.
Professor Groves and Professor Stuhmcke open the collection with a joint chapter on the evolution and future of the ombudsman. Academy fellow Professor John McMillan of the ANU also provides a chapter, on Complaint Handling Effectiveness: What Can We Learn from Industry-Based Ombudsmen Schemes?
This global analysis is both in-depth and expansive in its coverage of the operation of Ombudsmen across civil and common law legal systems.
The book has two key themes:
- the enduring question of the location and operation of Ombudsmen within public law systems in a changing state, and
- the challenges faced by Ombudsmen in contemporary governance.
This collection adds to the public law scholarship by addressing a common problem faced by all avenues of public law review – the evolving nature of modern public administration.
The book is published through Bloomsbury at this link The Ombudsman in the Modern State: : Matthew Groves: Hart Publishing (bloomsbury.com)
7 July 2022
A number of fellows of the Australian Academy of Law are attending or have papers at the quadrennial conference in London of INSOL International, from 25-28 June 2022. INSOL is the world-wide federation of national associations of accountants and lawyers who specialise in turnaround and insolvency.
Academy fellow Mr Scott Atkins, of Norton Rose Fulbright, is the President of INSOL International and as such is responsible for the organisation of what is the 40th anniversary of INSOL International itself, with over 930 delegates attending the conference comprising judges, regulators, academics and practitioners from all over the globe.
INSOL comprises 45 Member Associations with over 10,500 professional members. INSOL also has ancillary groups that represent the judiciary, regulators, financiers, academics, insolvency mediators and arbitrators, each of which has individual sessions at the conference.
At the Academics Colloquium, Academy fellow Professor Christopher Symes (Adelaide) has a paper jointly authored with his colleague Dr Sulette Lombard (Uni SA), as presenter, on their insolvency litigation funding project.
Academy fellows Adjunct Professor Rosalind Mason (QUT) and Mr Michael Murray have jointly authored a paper with Professor Paula Moffatt of Nottingham Law School, Nottingham Trent University, comparing insolvency practitioner regulation in the UK and Australia, the paper being presented by Professor Moffatt, with Professor Mason.
Both topics – litigation funding, and practitioner regulation - are of current significance in Australian law reform.