Journal of Law, Information and Science
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BY JASON ROMNEY
Melbourne, Law Press, 1996, pp x, 230+, $32.50
Computers loom large in many areas of Australian life. Arguably the legal profession relies, or soon will rely, on computers more than most other professions, or business, industry, and government. According to Jason Romney, lawyer and Associate Editor (computers) for the Sydney Morning Herald, the rapidly changing nature of the legal profession requires lawyers to diversify their skills and the acquisition of new skills in the area of computers and on-line technology will soon become crucial to the success of their careers. Eschewing philosophical debates, his book is intended to give lawyers ‘a solid grounding in the practical technological and communication issues’ needed to understand and ‘to flourish in the legal landscape of the next century. Tomorrow’s lawyer will need to develop an ability to communicate through computers and, in my view, that means buying a personal computer and getting on-line today’. Moreover, before the end of 1996, the Internet ‘will be the only place you will find some information. Within two years, this should apply to a substantial and fast growing amount of information’.
Romney maintains that computers will help lawyers ‘deliver a substantially superior service’ by enhancing and magnifying their skills. For example, a firm’s network will allow lawyers to ‘retrieve better information faster and maintain a potent client and litigation management database’. Becoming adept at using computers will allow lawyers to retrieve, amend, and print documents while they are travelling and gain information when they are far from a library. In the more exciting on-line world, the ‘main benefit’ will be to help with ‘the generation of marketing magic’ by using e-mail and creating imaginative and informative World Wide Web pages. Romney spells out ‘what goals you can achieve with technology, what paths you might choose to attain those goals, what dangers you will meet along the way, and how to solve problems in tight spots’. For those with no time to read his book from cover to cover, he suggests ways of finding information on specific topics, such as ‘I am locked in battle with the office computer boffins and want to know the unbiased truth’ (one suspects that Romney sees the computer specialists employed in law firms as the enemy and wants to help lawyers break free from their clutches).
Romney advises lawyers to spend a large amount of money on a range of high quality equipment. This includes a desktop computer for home, a notebook or laptop computer for use in court or while travelling, a Personal Digital Assistant (PDA) to be carried at all times, and ‘a powerful, robust constellation of on-line services’. Romney believes that lawyers need ‘a fully-rounded understanding of computer equipment and software before they can hope to master the intricacies of the on-line world’. This is the focus of the early chapters. In chapter 2 we are told of the advantages of pocket PDAs, with the 275 Psion 3a singled out as the best all round option. Romney suggests that lawyers learn touch typing by using the Australian developed program called TYPEQUICK. For the ‘keyboard-allergic lawyer’ a popular alternative to typing is a voice to text translation program, such as Dragon Dictate. The internationalisation of legal practice sometimes requires documents to be written and translated in languages other than English and Romney describes computer programs to facilitate such work.
Chapter 3 will probably be the key chapter for most lawyers. It covers all the issues that anyone intending to buy a computer should consider. He raises issues like network security and integrity, innovation versus security, and whether to buy a PC or an Apple computer. He advises that a computer should be compatible with the firm’s computers but that Apple computers work ‘somewhat better with IBM-style PCs than the reverse’, with the Performa 630 and Power Mac 6100/66 Dos compatible computers receiving praise. In terms of notebook computers, Romney concentrates on two - the IBM ThinkPad and the Mac PowerBook. He admitted that, ’while I may have been irretrievably drawn into the PC-Windows world for historical reasons, I have to acknowledge that if I had my time again, I’d probably go Apple’. Whatever the choice, Romney advises not to skimp on RAM (16MB is best) and hard disk space (540MB as a minimum) as this enables the running of Windows 95 and, crucial for lawyers who use computers in court, will aid speed. Choosing a dealer is an important decision. A good dealer will invite calls on a mobile phone, will find time to discuss problems, software and upgrades, and has a sound technical knowledge. Romney goes into modems, monitors, hard disks, keyboards, printers, scanners, wireless computing, and mobile phones and computing. Whether the average lawyer would bother to read the detail provided here is doubtful, but the chapter is useful for reference.
In chapter 4 uses other than word processing are canvassed. These uses include personal information managers, the best being InfoSelect; text retrieval using Total Research produced by the Melbourne barrister and computer programmer Chris Priestly; and programs such as Acrobat from Adobe and Envoy from Novell, which allow lawyers to exchange documents with others ‘with all the special formatting and graphics perfectly preserved - irrespective of whatever software may be installed on the document recipient’s computer’.
Chapters 5 to 8 delve into the on-line world. Romney argues that lawyers need to use the Internet to keep up with competitors, to circulate information about their services, and to communicate with clients. The role of Internet Service Producers, building a web page, using e-mail programs such as Eudora, and Internet navigators such as Netscape, the value of search engines such as Yahoo and Alta Vista to find relevant information on the Internet, and the advantages of intranet within law firms are given due consideration. Romney describes a number of Australian web sites and rightly raves about AustLII (the Australasian Legal Information Institute) and LawNet originated by the Melbourne QC Peter Faris. These two sites are as good as (if not better than) any legal sites on the Web. Romney claims that the NSW Law Foundation site includes the full text of Commonwealth, State, and Territory legislation and regulations, decisions of the High Court, Federal Courts and Tribunals, State Supreme Courts, and other state courts. He should have said that this site will include this information but at the moment this is an aspiration, not an achievement. The Appendix lists Internet Service Providers, divided into National and State providers but omitting mention of Tasmania, despite the existence of a number here.
Lawyers should not feel daunted by the thought of wading through pools of jargon. Romney avoids technical terms where possible and provides explanations or definitions in the text, in footnotes or in a seventeen page glossary. He does not gloss over problems and is refreshingly willing to give his opinion about the hardware and software he notes. While the prices he lists will obviously change, the practical issues he raises will be relevant for some time to come. Anyone involved with a law firm or legal organization will find this book a useful source of advice and information to launch into the brave new world of technology.
Review by Stefan Petrow, Law Librarian, University of Tasmania
BOOK REVIEW
BY ANDREW CHRISTIE
The Law Book Company Limited, 1995, 394 pages
What do bodiless mummies, rabbit pie and integrated circuits have in common? Not much, until you dip into this easy-to-read and thorough treatise which looks from an international and comparative perspective at the legal protection of integrated circuits.
Andrew Christie, a senior lecturer at the University of Melbourne Law School, wrote this book based on his doctoral studies. The aim of his research was to explore how different intellectual property laws deal with integrated circuits and their design in the context of the overlap between protection for hardware and software. The result is a logical and scholarly comparison of the various legal protections in each jurisdiction. One of the particular strengths of the book is the author’s considerable efforts to explain the technical nature and function of integrated circuits in a way that even the uninitiated can understand.
Perhaps because this is one of the first comprehensive legal text dealing specifically with the protection of integrated circuits, the author spends time in the introductory section in Part 1 placing the current legal protections for integrated circuits in an economic and historical context. Some interesting facts and figures - one commentator estimates that the world market for integrated circuits will be valued at US$180 billion by the year 2000 and although development of an integrated circuit may cost US$100 million, the cost of copying may be less than US$50,000 - a potential goldmine for counterfeiters and the reason why the USA in particular has insisted on reciprocal international protection for integrated circuits.
The remainder of Part 1 is an explanation of the technology of integrated circuits and also deals with the economics of the integrated circuit market. Although the technological aspects are dealt with in summarised form (a much more comprehensive treatment being given in Appendix A), the reader is introduced to the crucial elements of and kinds of integrated circuit and the essential concept that integrated circuit design comprises both physical and functional aspects capable of individual protection.
Part 2 of the book deals with the substantive sui generis protection of integrated circuits. The author comparatively analyses the U.S. Semiconductor Chip Protection Act, design right in the U.K. Copyright Designs and Patents Act, and the U.K. Topography Regulations, the E.C. Directive on Legal Protection of Topographies of Semi-conductor Products, the W.I.P.O. Treaty on the Protection of Intellectual Protection In Respect Of Integrated Circuits and the Australian Circuit Layouts Act. The comparison is made in the context of essential concept areas and the provisions of each statute, directive or treaty are considered individually under the headings - “Subject Matter”, “Originality”, “Jurisdictional Requirements and Formalities”, “Ownership and Duration of Rights”, “Infringement”, “Idea and Expression Defence”, “Reverse Engineering Defence”, “Other Defences”, “Remedies” and “Commercial Dealings”.
The meat of the book is contained in Part 2 and provides a comprehensive and comparative analysis of the essential concepts and provisions while highlighting the differences in the scope and standard of protection between the U.K., U.S.A., Australia, the E.C. Directive and the W.I.P.O. Treaty. Each chapter in this Part is introduced or summed up by useful general comments on the key concepts being dealt with, an important feature in a comparative work of this type which can otherwise too easily fall into a state of confusion or dislocation. The result is a clear outline of the relevant provisions in each jurisdiction and a truly comparative analysis of each law, making it a useful section for academics and students seeking an understanding of the relevant law in each jurisdiction and a practical guide for practitioners advising clients in the IT industry.
One of the particularly interesting aspects of this book is the author’s discussion of protection of form (the layout of the components) versus function (the logic operations performed) of integrated circuits. While sui generis protection focuses on protecting the form, copyright and patent law can also protect the individual functions of integrated circuits. Part 3 offers an instructive and sometimes controversial analysis of comparative copyright and patent protection of form and function.
In particular the author queries the established teaching of copyright law that a three dimensional object cannot be the reproduction in a material form of literary work which describes or represents that object. He argues that although the well-known rabbit pie from Cuisenaire v Reed [1963] VicRp 96; [1963] V. R. 719 (at 736), constitutes a “use” of the rabbit pie recipe and is not a reproduction in a material form of the recipe, it does not necessarily follow that making an article to a written description will never infringe copyright in a literary work. If he is correct then it may be possible, at least in the U.K. or Australia, for copyright in layout data to be infringed by a design drawing, photograph or by an integrated circuit.
However the examples given of works which are infringed by something which is not literary in nature are not persuasive. The written words of a song reproduced by an unauthorised recording is an example of literal infringement by plain reproduction of the song’s words. The infringement of copyright in a novel’s plot by a film made to that plot may be an example of non literal copying, but still amounts to a substantial copying of the sequence of events comprising the novel’s plot. In both cases the “infringing expression” (the words of the song or the sequence of events in the film) is in a different medium, but is not in a fundamentally different form. It is a very long jump to argue that a design drawing for an integrated circuit might infringe copyright in layout data, when the design drawing is not only in a different medium, but is also in a fundamentally different form from the original expression.
In this writer’s opinion and from an Anglo/Australian perspective, the author is rather more persuasive with his original “bodyless mummy” analogy of the idea/expression dichotomy (see chapters 8 and 13), although this may seem a little remote for U.S. readers raised on a more concrete distinction between mere ideas and protectable expression.
The book is completed by a succinct “Findings and Proposals” chapter which summarises the scope of protection in each jurisdiction and makes various recommendations including that sui generis protection regimes should be extended in line with the W.I.P.O. Treaty to clearly embrace non-traditional integrated circuits.
This is a thought provoking and useful work which has been carefully structured to appeal to practitioners and academics alike and is a timely and important addition to the growing collection of text concerning the protection of software and new technologies.
Review by Alistair Payne, Mallesons Stephen Jaques
BOOK REVIEW
BY JONATHAN ROSENOER
Springer, 1997, Heidelberg, Germany, 362pp. including index and table of cases. Hardcover DM54.00 (available in Australia from DA Books & Journals, PO Box 163, Mitcham Vic. 3132)
No doubt one of the most prominent developments in society in the last decade is the Internet. The commercial and personal use has increased at a phenomenal rate and not surprisingly, as with many areas of the law, the legal principles to govern this area have lagged behind. As stated in the book jacket, the text aims to provide a comprehensive guide to the legal issues which have arisen as a result of the explosive growth of the Internet and the World Wide Web. It has 16 chapters covering the following areas:
1. Copyright
2. Trademark
3. Defamation
4. Privacy
5. Duty of Care
6. Criminal Liability
7. Procedural Issues
8. Electronic Contracts and Digital Signatures
9. Misappropriation of Information
10. Civil Rights
11. Tax
12. Evidence
13. Ethics
14. Legal Developments (1990-1996)
15. Glossary
16. Recommended Reading.
The monograph is clearly written with comprehensive referencing. For this reason alone it will be invaluable both to the academic (who is looking to a text with research possibilities in mind) and the practitioner (who will need a concise statement of the principles). Furthermore students will find the text progressing from a simple descriptive analysis of the present position to a discussion of possible future developments. Importantly the monograph also contains a glossary and further recommended readings, essential where the language under discussion is of a specialist character.
The book does have one major disadvantage, particularly for the Australian lawyer, and this is the United States focus of the material. Whilst this is understandable, given the market audience and the fact that the author is a California lawyer, it does mean that for this jurisdiction the book has limited potential.
Each chapter provides a brief description of the subject matter, obviously against the background of computer use. For example in the copyright chapter the sub-headings are as follows:
A. Exclusive Rights
B. Subject Matter of Copyright
C. Formalities
D. Infringement
E. Sources of Risk
F. World Wide Web Sites
G. Hypertext Links
H. Graphical Elements
I. E-Mail
J. Postings
K. Criminal Liability
L. Fair Use
M. First Amendment
N. Software Rental
O. Proposals for Change.
At the conclusion of a number of chapters (Copyright, Trademark, Defamation, Privacy, Criminal Liability, Electronic Contracts and Digital Signatures and Ethics) there is an appendix which contains a discussion of a number of legal cases or legislation pertaining to that area. To structure the text in this way is unusual. Most books either opt for the traditional 'cases and materials' or the more encyclopaedic approach.
Despite initial reservations I thought that the approach adopted in this text worked well - in fact, I would go so far as to describe as a superior way to provide a text suited to all people involved in the legal industry, (this being practitioners, academics, students, government regulators etc.) than any other form. It was an easily readable and convenient way to ascertain the principles and then to gauge the application of those principles through the medium of the cases.
Importantly the author does not just provide a brief outline of the facts followed by an extract of the case, but instead he provides the circumstances that led to the dispute followed by a discussion of the action taken, the arguments made by counsel and then a discussion of the case. For example many readers would be familiar with the screen saver that features 'Flying Toasters' produced by Berkeley Systems. A competitor Delrina Corporation published a module called 'Death Toasters'. This featured a cartoon character firing a shotgun at flying toasters who then fly in formation and launch an attack of their own, either by firing toast or diving from above to knock the cartoon character down. The product contained the following statement:
"This product contains a parody of Berkeley Systems, Inc's Flying Toaster Design. Delrina's product is not produced, sponsored or approved by Berkeley Systems, Inc. We poke fun at, but are not attempting to insult either that company or its products."
Despite the existence of this statement and the fact that the toasters were different (Delrina's toasters were four-legged, with stubby wings and they flew in formation whereas the Berkeley toasters were 1950's style toaster with large angel wings flying in a random manner), Berkeley took action for copyright and trademark infringement as well as unfair competition.
After providing these facts, Rosenoer provides a summary of the arguments made by counsel (an aspect sadly lacking in most cases and materials texts) and then outlines the opinion of the court, (the court finding in favour of Berkeley) before highlighting the policy implications of the judgment. The author states:
"In this case, it is deeply troubling not only that free speech values received such little attention but that the Death Toasters were effectively banned without a jury's consideration. If the First Amendments' guarantee of free speech and intent to prohibit the government from acting as censor is to have substantive content in copyright cases, at the very least there should be more deference to allowing juries to determine factual questions and less reliance on presumptions that prejudice the outcome in favor of private, commercial interests."
Personally, I consider that it is vital that counsel arguments be provided (without these it is difficult, if not impossible to consider the basis for the judgement) and that the policy implications also be considered - to this extent the text can only be highly recommended. It is an aspect that many Australian cases and materials texts could learn from.
I suspect that this text has achieved great popularity in the United States. It is one of those few monographs that would appeal across the spectrum of legal personnel. In Australia it probably is of limited value, but it does foreshadow the likely litigious developments in this country in this area. For an academic or practitioner working in this area, it would be worthwhile to have on the shelf - one would hope though that the Australian equivalent will appear shortly.
Review by Lynden Griggs, Lecturer in Law, University of Tasmania
BOOK REVIEW
BY K A LAUGHLAND AND MARLENE J LEBRUN
Butterworths 1996
This book is on of the Butterworth’s Skills Series and appears to be aimed primarily at an undergraduate audience, notwithstanding the authors expressed intention that it is equally applicable to practitioners as well. In essence, the book provides students with the theoretical knowledge and contextual framework from which forays into the practical exercises postulated in the book might be undertaken.
The book adopts a comprehensive approach to the development and demonstration of this legal skill. In doing so it embarks upon its task with two further philosophical supports: firstly, the creed of “client centredness”, which sensibly suggests that the true focus of at least this aspect of the legal process is the client and not the solicitor; secondly, the more questionable notion that the skill may be developed in a theoretical vacuum, and as thus developed, adaptable to a wide range of scenarios.
These theoretical platforms will at once make the book easily digestable by students, but less palatable to practitioners. Students will appreciate the clear logical approach to analysis, the several distinct stages articulated, and the clear distinction drawn between good and poor practice. Conversely practitioners may find it difficulty to contemplate a direct application of the theories in the text, which draws heavily upon non-legal disciplines to support the approaches which are advocated.
In suggesting that the work tends to generality, it should not be overlooked that throughout the text is embroidered with a particular factual scenario which is helpfully used as an illusatration of the points being made at the time, but at no stage does that scenario develop beyond an illustration only, or even pretend to be in itself, an analysis.
Because the book focuses primarily upon the context of the interview, and addresses the content only by concept and no particularly, it does not in truth equip the student with anything other than a broad appreciation of interviewing, which is presented as discrete legal skill, and not as part of a coninuum of either dispute resolution or the delivery of legal services or products gererally. Doubtless if it were to have done so, it would need to have been a more voluminous work, and would have lost much of its student appeal.
The strengths of the work are its clear logical analysis of the theory of interviewing, its easily digested style, the use of check lists, the insistence on focus on the client rather than the practitioner, and the emphasis upon critical evaluation of the process of interviewing rather than merely getting ticks in boxes. Conversely, on the opposite side of the ledger, its weaknesses are that at times it focuses too much upon counselling rather than the production of legal services, at times creates an unattainable “best practice” ideal, without acknowledging that that is what it is (for instance, the suggestion that all interviews should be planned in advance), and finally, fails to assimilate interviewing into the continuum of legal services and products.
These strengths and weaknesses have perhaps been in part influenced by two things, firstly the current focus and debate in law schools about the appropriatness and conduct of skills instruction, and secondly, the current enthusiasm of both law schools and students alike for client interviewing competitions. For those who are uninitiated to the latter, for some years now, a national client interviewing competition has been conducted amongst most of Australian’s leading legal education institutions, based primarily abou the scenario of an initial interview with a client. Whilst now is not the time nor place to debate either of these two recent phenomena, against that background the text fills a particularly important need.
The work will in due course become a standard if not prescribed work for all students of legal interviewing in Australia. It deserves to achieve that status, but at the same time ought be aknowledged that the work has its limitations, particularly in application beyond the classroom.
Review by Peter Tree, Lecturer in Law, University of Tasmania
BOOK REVIEW
MOSHINSKY N. & MALLAM P.
1996 Edition, Butterworths Annotated Acts. 253 pages plus index, RRP $39
This book, by its very format, is designed for a specialist market of students and busy practitioners working in the area of Commonwealth administrative law. The work can be used as a stand alone item despite the text being extracted from Butterworth’s three volume looseleaf service “Practice and Procedure High Court and Federal Court of Australia.
As a relatively inexpensive legal text this slim line volume contains sufficient information to serve the purpose of a quick reference guide for lawyers, non-lawyers and advocates who appear before the Administrative Appeals Tribunal or are called upon to use the Administrative Decisions (Judicial Review) Act. A number of my former students, now working for Commonwealth agencies, regard this book as an invaluable on the spot reference book if called upon to respond to points raised by tribunal members. In addition because of its clear language, short but informative summaries and cross references this volume would be a valuable once off purchase for the non-lawyer who wanted to present their own case before the AAT.
The text, in line with the purpose of this series, is a compilation of annotated legislation including the Administrative Appeals Tribunal Act and Regulations and the Administrative Decisions (Judicial Review) Act and Regulations which is current as of May 1996.
A number of features improve the utility of this book. These features include the inclusion of historical notes, legislative histories, general commentary and detailed commentary on particular subsections. In addition, by extending the coverage of the work to include the Regulations, the authors have granted easy access to the up to date forms for the AAT.
A work of this kind which has a limited shelf life and is specifically designed to be inexpensive and designed for a niche market will always be deficient in some areas. The Commonwealth administrative law system was designed as a package of four Acts of which only two are covered by this work. The Freedom of Information and Ombudsman Acts are excluded to keep this volume as inexpensive as possible. Yet many of the matters for which the AAT or AD(JR) Acts will be used for will have arisen out of the other two pieces of legislation. Therefore practitioners will need access to a companion or alternative volume.
A second shortcoming, and impossible to avoid in such a work, is that this text is a trap for the unwary or the lazy. Enough material is presented to give the reader a feeling of solid authority but not enough guides to contrary cases or dissenting opinions. Therefore in 90% of cases sole reliance on this text would be justified in terms of reliability and accuracy. However at critical times this work will need supplementing but it rarely provides indications of when that will be necessary.
In many ways this work is a specialist stepping stone in the Butterworths coverage of the Administrative Law market. On the one hand the company caters for a general introduction to the area with Allars, Introduction to Administrative Law 1990 and Ardagh, Butterworths’ Student Companions Administrative Law 2nd ed, 1994. Alternatively Butterworths offers its more expensive looseleaf services to professionals who operate daily in this area.
Review by Rick Snell, Lectuer in Law, University of Tasmania
BOOK REVIEW
BY WJ GOUGH
Butterworths, 2nd. ed., London, 1996
1236 pages (including index, table of statutes, comparative table of statutes and table of cases), HC, $250.00
Legal textbooks generally come in one of two major forms. There is the traditional cases and materials providing a summary of the facts from particular decisions, together with the holding of the judge with some additional commentary linking the various points. The principles from the particular area are thus explained by way of reasoning and analysis from the reported cases. It is a type of text ideally suited to a Socratic teaching method within a university. The second type of textbook will already have undertaken the reasoning. These monographs provide a detailed treatment of the legal principles with the author already having distilled the tenets from the case authorities and the legislation. Reference to the facts and the reasoning of the judge will only be undertaken where it is necessary to elaborate on a point. This text is aimed both at the practitioner and the academic.
This text fits within the latter category. It is a detailed analysis of the area of company charges, in fact to describe it as detailed is perhaps an understatement. It is a comprehensive work. The text is massive, some 42 chapters, 1200+ pages and detailed referencing throughout. It is now in its second edition, differences from the first include additional material on title security, disguised charges, foreign charges, constructive trusts and subordinated debt, just to name a few.
The 42 chapters are divided into eight parts:
1) Charge Creation
2) Floating Charge
3) Charges Registration System
4) Heads of Charge
5) Registration Compliance
6) Registration Effect
7) Separate Registration
8) Charge Priority.
The text is designed as a complete reference for the practitioner working in this area. To this aim it satisfies. It could also be used by academics and insolvency practitioners. However as a teaching text its depth would be daunting.
The text is written primarily for the English practitioner - significant differences between Australia and New Zealand are noted in separate sections. This in no way detracts from the fact that it will also be invaluable for people working in these jurisdictions - in this way the comparative table of corporations and insolvency statues will assist.
In addition to providing a detailed description of the present law the author does not shy away from critically analysing and commenting on those areas that he considers needs improvement. For example in relation to the Australian voluntary administration procedure Gough states (at pp. 971 - 4) that: "The new Australian system is useless as a solution for negative pledge lenders in cases of larger group collapse where group management denies insolvency, resists all moves for creditor intervention and refuses lenders effective and realistic information....[The Australian model] unnecessarily limits the range of available enforcement and reconstruction options, in a context where clearly flexibility is desirable." This type of critical analysis is rare in the text written for the legal practitioner, the author is to be applauded for doing this.
The monograph, despite its cost, is a must for those working in the area. Its detail and comprehensiveness is outstanding - a text that will remain the standard reference for those working in the area.
Review by Lynden Griggs, Lecturer in Law, University of Tasmania
BOOK REVIEW
BALKIN, R.P. AND DAVIS, J.L.R.
Butterworths Sydney, 2nd ed. 1996. Hardback or softbound. $125 hardbound, $92 paperback
The second edition of Balkin and Davis’ impressive text seeks, like the first edition, not simply to present a comprehensive exposition of the law of torts in Australia and New Zealand. It also presents a description of recurring themes and problems with the law. As the authors note in the preface to the book, the second edition is shorter than the first. This is due largely to the High Court’s abandonment of the principle in Beaudesert Shire Council v Smith (in Northern Territory v Mengel), together with the enveloping of Rylands v Fletcher liability within general negligence principles. Having said that, at 851 pages Balin and Davis’ book is still a weighty tome.
The book provides an impressive coverage of common law and statutory torts. The manuscript is divided into eight parts: An introductory section; a section entitled Intentional Invasion of Personal and Property Interests (which includes chapters onbattery, assault, conversion, detinue, trespass to land and defences to intentional torts); a section on Negligent Invasions of Personal, Property and Financial Interests (including chapters on the existence of a duty of care, breach of that duty, causation and remoteness of damage, defences to negligence, compensation for personal injury, and actions for “pure economic loss”); a section on Invasion of
Personal and Property Interests by Conduct not Necessarily Intentional or Negligent (including chapters on nuisance, animals and “violation of interests protected by statute”); a section on Protection of Interests in Reputation (including chapters on the elements of defamation, defences to defamation and available remedies); a section on Protection of Trading or Business Interests (including chapters on interference with trade or business, actions arising out of the Trade Practices Act or Fair Trading Acts, injurious falsehood, passing-off and deceit); a section entitled “Other Interests Meriting Protection” (covering seduction, loss of services and misuse of process) and a final section on remedies and parties (including chapters on vicarious liability, remedies, parties and extinction of remedies). The book is meticulously referenced, clear and concise. In short, it is a pleasure to read.
Some of the impressive features of this work include the fact that it has been written taking into account all the Australian and New Zealand jurisdictions. Comparisons can thus readily be made between jurisdictions and the book may obviously be used by practitioners in any Australian or New Zealand jurisdiction. The descriptions of the underlying rationale of the rules provides an catalyst for easy undertanding of some difficult concepts. The writing style used by authors in consistent and allows for easy accessibility both by practitioner and student alike.
From a teacher’s point of view, the chapter on causation and remoteness could usefully be expanded. Both topics are areas which students find hard to grasp. Similarly, the brief (3 pages) accorded to workers’ compensation schemes could be “fleshed out”. The section of the book on nervous shock, while impressive, might perhaps be enhanced by referring readers particularly interested in this area to Mullany and Handford’s manuscript on Tort Liability for Psychiatric Damage.
While this book is remarkably up-to-date, sadly time has “marched on” in respect of a couple of aspects of the book. Balkin and Davis make reference in their book to the Criminal Code 1995 (Qld.) which is at yet unproclaimed and seems destined to be repealed by the present government. Similarly, the next edition of the work may presumably need to include reference to the decision of the New South Wales Court of Appeal in CES v Superclinics (1995) 38 N.S.W.L.R. 47. These trifling matters in no way detract from the overall quality of the work.
Overall, this is a first rate book and is a worthy successor to the first edition. It heartily deserves the plaudits which greeted the first edition.
Review by Associate Professor John Devereux, University of Tasmania
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