The Honourable James Jacob Spigelman, AC

The 2008 McPherson Lectures series was presented byThe Honourable James Jacob Spigelman AC, Chief Justice of New South Wales, on the 10th to 12th March.

His Honour presented three lectures under the topic, “Statutory Interpretation and Human Rights”.

The first lecture titled “The Common Law Bill of Rights” considered the protection of human rights by the common law principles of statutory interpretation. The second lecture titled “The Application of Quasi-constitutional Laws”, considered the developing jurisprudence of the application of the special interpretive provision in human rights legislation. The Series concluded with the third lecture, titled “Legitimate and Spurious Interpretation” considering the difficulties posed for interpretation by the need to balance conflicting human rights.

The 2008 series will form a published monograph available to purchase later this year. Please refer to the monographs page for Publishers contact details.

Chief Justice of New South Wales

The Honourable James Jacob Spigelman AC holds Arts and Law degrees from the University of Sydney.  From 1972 he was Senior Advisor and Principal Private Secretary to Prime Minister Whitlam, before being appointed as Permanent Secretary of the Department of Media in 1975.  He served as a member of the Australian Law Reform Commission then commenced practice at the New South Wales Bar in 1980.  He was appointed as Queen’s Counsel in 1986 and Acting Solicitor General of New South Wales in 1997.  He was appointed as Chief Justice of New South Wales and Lieutenant Governor in 1998.  Prior to his appointment as Chief Justice, he was on the boards of a range of public institutions devoted to the arts and education.   He is the author of Secrecy (1972), Becket and Henry (2004) and co-author of The Nuclear Barons (1981).   He is married with three children.

 

The McPherson Lecture Series 2007 was presented by Professor Peter Cane on the 19, 20 and 22 March 2007 at the Banco Court, George Street Brisbane.

The theme for the 2007 three lectures series was: 'The Political Economy of Personal Injury Law'.

Professor Peter Cane

Australian National University

Peter Cane has been Professor of Law in the Research School of Social Sciences at the Australian National University since 1997. For 20 years prior to this he taught at Corpus Christi College, Oxford, successively as a lecturer, reader and professor.

His main research interests lie in the law of obligations (focussing on tort law), and in public law (focussing on administrative law).

He is author of An Introduction to Administrative Law (3rd ed, 1996), Tort Law and Economic Interests (2nd ed, 1996), The Anatomy of Tort Law (1997), Atiyah's Accidents, Compensation and the Law (6th ed, 1999), The Law of Torts in Australia (4th ed, 2007) with Francis Trindade & Mark Lunney, and Responsibility in Law and Morality (2002). He is co-editor (with Mark Tushnet, Georgetown) of the Oxford Handbook of Legal Studies (2003). He has also published numerous articles, casenotes and book reviews.

Some academics still hanker after radical, and politically utopian, reforms that would see the tort system replaced by a state-run social insurance or welfare scheme. Those who don't, tend to be sympathetic to plaintiffs and consistently critical of statutory limitations of tort liability. Public debate is dominated by the crude and polarised arguments of plaintiffs' lawyers on the one hand and liability insurers on the other. These lectures will argue that the time has come to re-think constructively the role of tort law as a form of social provision for the injured and disabled.

In particular, since tort law appears to be here to stay, we need to ask whether it performs valuable functions that other forms of provision cannot; and if so, how much society should spend on realising the benefits that only tort law can provide.

Each seminar addressed various questions raised above.

Seminar 1 – “Politics” on Monday March 19 explained the highly political nature of personal injury law.

Seminar 2 – “Economics” on Tuesday March 20 outlined how important an appreciation of the economics of provision for the injured and disabled is.

Seminar 3 – “The Political Economy of a Mixed System” on Thursday March 22 assessed the strengths and weaknesses of tort law and the case for its continued role as an element of society's provision for the injured and disabled.

 

The 2006 Series was launched by The Rt Hon Lord Millett of St Marylebone, a former Lord of Appeal in Ordinary.

The Rt Hon Lord Millett

The Right Hon Lord Millett was appointed Queen’s Counsel in 1973. He served as a Judge of the High Court of Justice from 1986-94; a Lord Justice of Appeal from 1994-98 and a Lord of Appeal in Ordinary from 1998-2004. He continues to sit on the Court of Final Appeal of Hong Kong, having been appointed in 2000. Lord Millett has published numerous influential articles in equity and commercial law including, as Queen’s Counsel, “The Quistclose Trust: Who Can Enforce it?” (1985) 101 LQR 269 and his very influential article on Lister v Stubbs (1890) 45 Ch D 1 “Tracing the Proceeds of Fraud” (1991) 107 LQR 71 which was heavily relied upon by the Privy Council in departing from that decision in Attorney General for Hong Kong v Reid [1994] 1 AC 324. Other major contributions include “Restitution and Constructive Trusts” published in a book of essays in honour of Professor Gareth Jones, Cornish et al (eds) Restitution Past, Present & Future (Hart Publishing, 1998). Lord Millett is widely considered to be the leading equity judge of his generation in England.

• ‘Theft of Identity’ - Monday 6 March 2006

  Lord Millett considers fraudulent impersonation, its escalation and its effect on contract in the modern era as transactions become increasingly reliant on pins, codes, and account numbers, rather than by name and the other factors that traditionally determine identity.
  
  But false impersonation, or theft of identity, gives rise to a fundamental problem in the law of contract. A makes an offer to B. B accepts it, believing that he is dealing with C. A knows of B’s mistake, and may have deliberately caused it. What is the result of the transaction? Is there a contract at all? There is obviously no contract with C, who is not a party to the transaction and knows nothing of it. But is there a contract with A? And if so is it void or merely voidable?

• ‘Villainy in Venice’ - Tuesday 7 March 2006
  
  

  Taking Shakespeare’s classic play, The Merchant of Venice, as this lecture’s theme and centrepiece, Lord Millett deconstructs the pivotal trial scene in which Portia, posing as a judge, uses adversarial techniques to decide the case; and how the law of contract and equity is manipulated by Portia when determining the outcome of the now oft-quoted ‘pound of flesh’ bond.
  
  Yet a careful reading of the text yields a darker tale. For Portia is not an advocate. She has no business to be cross-examining Shylock at all. She is not, as the audience might assume, counsel for Antonio. She is the Judge; and far from seeking to give a just and impartial verdict, she deliberately sets out to ruin Shylock and makes fraudulent use of the justice system to achieve her purpose.

• ‘Circular Money Movements’ - Thursday 9 March 2006
  
  

  Taking as his premise the question, “Can two penniless tramps lend each other one million pounds?” Lord Millett examines the nature of circular transactions and traces the case law from the early years to the modern era. He considers the effect of such transactions on schemes concerned with the provision or application of a company’s share capital and tax avoidance schemes.
  
  When appearing for the Inland Revenue in the Court of Appeal I once posed the question: “Can two penniless tramps sitting on a bench in the park lend each other £1 million? (One lends the other £1 million repayable on demand; the recipient promptly deposits the sum borrowed with the other on call). Templeman LJ, a Chancery judge who later became a Law Lord, replied: “No; of course they can’t”; Donaldson LJ, a Commercial judge who later became Master of the Rolls, replied: “Yes; of course they can; that’s banking.”