Hearsay ... the Journal of the Bar Association of Queensland
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Issue 18: June 2007
Book Reviews Print E-mail

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Colonial Law Lords by JM Bennett

Jacob's Law of Trusts in Australia, 7th Edition

  

Colonial Law Lords

By JM Bennett

The Federation Press

John Bennett, in conjunction with the Heritage Committee of the Supreme Court of New South Wales, has produced an intriguing insight into the early history of the judiciary in New South Wales and its interaction with the Executive in that State. 

The book begins with the swearing in of Stuart Alexander Donaldson as the first Premier of New South Wales in June, 1856.  This action freed the fledgling colony from the supervision and intrusion of the Colonial Office and allowed New South Wales to operate with a bi-cameral legislature.

book-review-colonialRather bizarrely, an invitation was issued to the four Justices of the Supreme Court to join the Legislative Council.  Stephen CJ even agreed to be the first President of the Council.  In what was not the last example of northern sensibility proving to be ahead of its time, Mr Justice Milford, who then sat primarily on circuit in Brisbane (and later became the first Resident Judge at Moreton Bay), declined the invitation.

Bennett, faithfully, details the history which followed for this group of legislator-judges, and the political debate which their presence on the Council ignited.  To citizens accustomed to near perfection in the operation of the doctrine of separation of powers, it is fascinating to recount its flawed beginnings in this country.

The Judges were variously referred to as “Bunyip Law Lords” and met a great deal of criticism from the press of the day.  Indeed, it is a remarkable testament to the character of these men that, while empowered to act in ways whereby they may have been able to silence their critics, it was generally accepted that they executed their duties faithfully and without the slightest suggestion of misconduct.

The book moves on to detail a later clash between the Executive and the Judiciary.  It was the 1880s and the Government of Henry Parkes had determined to stop the further inflow of Chinese immigrants into the colony. 

In a series of cases frightfully reminiscent of the recent immigration debate in this country, Bennett informs the reader of the outcome of the clash and the personalities and principles which ultimately held the day. 

The book is only short (some 50 pages) but is a worthwhile read for anyone interested in some of the lesser known judicial history in this country.  Given recent events regarding immigration, it is also a timely reminder of the need to learn from this history, rather than to repeat it. 

Gary Coveney

 

book-review-law_of_trustsJacob's Law of Trusts in Australia, 7th Edition

By JD Heydon and MJ Lemming

LexisNexis Butterworths

“A trust is an institution developed by equity and cognisable by a court of equity.  A trust is not a juristic person with a legal personality distinct from that of the trustee and beneficiary, not is it merely descriptive of an equitable right or obligation.  Instead, it is a relation between trustee and beneficiary in respect of certain property…” 1

Thus begins the seventh edition of this important and authoritative work on the law of trusts. The seventh edition sees two new authors of the text, the Hon Justice J D Heydon AC, and M J Leeming, member of the New South Wales Bar and Challis Lecturer in Equity at the University of Sydney.  This is the first edition of the work since the second edition in 1967 with which the Hon R P Meagher QC has had no association, and the first since 1971 (the third edition) with which the Hon Justice W M C Gummow AC has had no association.  The learned authors nevertheless adopt the style of previous authors.

The opening words of the text are reflective of the work as a whole.  The text is notable for the precise, clear and direct language which is used.  Explanations of various issues, many of which are by their very nature complex, are clear and, where possible, concise.  Chapter lengths follow the adage in being as short as possible but as long as necessary.  Of the text’s 29 chapters only five are 50 pages or more in length.  Of the remaining chapters, the average page length is approximately 16 pages, with some chapters running to only three pages.  The style and structure of the book makes it very accessible, and is something to be emulated by authors and editors of other legal texts.

As the publishers note, the seventh edition of Jacobs’ Law of Trusts in Australia responds to developments in all Australian jurisdictions in the 10 year period since the sixth edition was published.  In that regard, particular attention has been given to the areas of charitable, resulting and constructive trusts; the duties and liabilities of trustees; and tracing trust property.

The authors have eschewed dividing the text into divisions, as occurred with previous editions.  The title and content of chapters, however, broadly follows that used in the sixth edition.  While no longer formally divided into divisions, chapters 1 to 4 deal with the nature and classification of trusts, the distinction between trusts and other legal institutions, and the capacity to create trusts.  Chapters 5 to 9 deal with express trusts, whilst chapters 10 and 11 deal with charitable trusts and purpose trusts respectively.  Chapter 12 sets out the law with respect to resulting trusts and chapter 13, constructive trusts.

Chapters 14 to 22 articulate the law with respect to the capacities, duties, powers and rights of trustees.  Chapter 23 deals with the rights of beneficiaries, whilst chapters 24 to 27 deal with trust property.

Chapters 28 and 29 are new and useful additions to the book.  Chapter 28 deals with trusts in the conflict of laws.  It examines and analyses the provisions of the Trusts (Hague Convention) Act 1991 (Commonwealth) and the associated Hague Convention2.  The authors also comment upon matters not dealt with by the Convention.  Chapter 29 is a very useful summary of the trust aspects of superannuation.

Ten years have elapsed since the last edition of Jacobs’ Law of Trusts in Australia was published.  The wait has been worthwhile.  The seventh edition of Jacobs’ Law of Trusts in Australia is a masterful exposition of the law in this area.

Cameron Dick

Endnotes

  1. Heydon, J. D. and Leeming, M. J., Jacobs’ Law of Trusts in Australia (Seventh Edition), LexisNexis Butterworths, Chatswood, New South Wales, 2006 at page 1, which references Registrar of the Accident Compensation Tribunal v Federal Commissioner of Taxation (1993) CLR 145 at 175.
  2. The Convention on the law applicable to trusts and on their recognition, done at The Hague on 1 July 1985.  the full text of the Convention, including a PDF version, may be found at http://www.hcch.net/index_en.php?act=conventions.text&cid=59.

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Adrian Duffy
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