When first I was invited to participate in this colloquium, I was given the title of “Constitutional difficulties to the introduction of a system of administrative law,” which I take to imply a full administrative jurisdiction. That subject was, in a sense, not exciting, except as a challenge to produce legal difficulties, under a system such as our own, to doing anything at all. Difficulties undoubtedly do exist, but they exist in the realm of psychology, not of rules of law. Even so they are important. A constitution does not live by legal logic alone, and the positive changes in law which the introduction of such a system would involve run counter to received, but unexamined, notions or myths, particularly those relating to Parliament. Such notions have surprising strength. It would have been difficult to persuade the Pontifex Maximus to lead the other Pontiffs into proclaiming the inadequacy of their mythology, let alone to lead them into propounding the virtues of a rival. Yet under our cult of Parliament this is precisely what the Prime Minister or the alternative Pontifex Maximus has to do. This change is beyond the scope of those subtle shifts which we can achieve by stealth, in the way in which we transferred power from King to Ministers. While these difficulties are real and must be mentioned, I take it that in the form in which the subject is now posed it is broader and that I can treat of the constitutional advantages as well as, and rather more than, these political difficulties.

“yet from those flames No light, but rather darkness visible” (Milton)

The foreseeable consequences of spilling a large quantity of furnace oil from the ss. Wagon Mound into Sydney Harbour have been in dispute now in two separate appeals to the Judicial Committee of the Privy Council. The cases will go down to posterity as The Wagon Mound (No. 1) and The Wagon Mound (No. 2). What was certainly not foreseeable was the complex forensic tangle to which the decisions have led.

Over two centuries ago, in the first reported case of its kind, Lord Hardwicke held the “committee-men” or directors of the Charitable Corporation guilty of “breaches of trust,” for which they had to account to the corporation. The concept of the director as a trustee persists through the cases and the textbooks to this day, but its origin is ill-explained and its modern relevance imperfectly understood. Why is the director called a trustee? Is it because he once was a trustee in the full technical sense? In what respects does the position of a director resemble, and in what respects does it differ from that of a trustee? How far has the law acknowledged these differences? Is the law, in so far as it is based on trust principles, adequate to ensure the proper discharge by directors of their responsibilities?

Throughout the Rhodesian crisis it has been repeatedly asserted that the Unilateral Declaration of Independence constituted treason. In the House of Commons on 12 November 1965, the Attorney-General himself said:

It is right that I should point out in general terms that there is abundant authority for the conclusion that the conduct of the kind that has taken place is treasonable.

Coke said of the Statute of Treasons 1351: “this Act is to be understood of a king in possession of the crown and kingdom,” and “the other [king] that hath right and is out of possession is not within this Act.” In other words, treason can be committed solely against the monarch in possession, and, conversely, breach of allegiance to the monarch in possession is treason. This doctrine is repeated, with varying degrees of enthusiasm and elaboration, by the later writers, for example, Hale, Hawkins, Foster, Bacon and East, and it appears in the modern books. Only Blackstone expresses a doubt: he thinks the law does not go further than to excuse obedience to a king de facto without commanding opposition to a king de jure who is out of possession.

When petrol rationing ended in 1950, the Anglo-American Oil Co. Ltd. (the predecessor of Esso Petroleum Co. Ltd.) introduced into Britain the “solus” or “tied garage” system of petrol supply, and by the end of 1951 all the principal suppliers of petrol had adopted this system. The solus agreement between supplier and retailer which is the foundation of the system differs in detail from one supplier to another, and some of the terms of an agreement may be negotiated between supplier and individual retailer, but essentially the agreement is couched in a standard contract of which the principal features are similar throughout the trade. In terms of this contract the retailer undertakes to sell the supplying company's brands of motor fuel exclusively for a fixed period, in consideration of a special rebate off the wholesale price of the motor fuels purchased. The retailer is required, in the event of sale or transfer of his business, to secure the acquirer's acceptance of the obligations under the solus contract (this is called the “continuity clause”), and the supplier sometimes reserves a right of pre-emption in the event of intended sale of the business. At the same time as a solus agreement is concluded there is commonly an advance of money by the supplier to the retailer which may be an advance of the solus rebate or a capital loan. The loan agreement may be made as a separate contract, or the loan and supply arrangements may be incorporated in a single document.

The reading was an integral part of the education of the medieval law student, and a necessary exercise for the utter barrister who cast covetous eyes to the Bench of his Inn, the Order of the Coif and a judgeship in the Common Pleas or King's Bench. At one time each reader discoursed on one of the “old” statutes before Edward III (especially Magna Carta, Merton, Marlborough, Westminster I, Gloucester and Westminster II) but during the sixteenth century readers acquired a wider range of choice; so Coke and Bacon were to read on the Statute of Uses 1535 and Moore on the Statute of Charitable Uses 1601. The “antient readings” are said to have served the apprentices well, particularly as an introduction to the dark intricacies of medieval land law. Coke esteemed them as having five excellent qualities:

First, they declared what the common law was before the making of the statute, as here it appeareth. Secondly, they opened the true sense and meaning of the statute. Thirdly, their cases were briefe, having at the most one poynt of the common law and another upon the statute. Fourthly, plaine and perspicuous, for then the honour of the reader was to excell others in authorities, arguments, and reasons for proofe of his opinion, and for confutation of the objections against it. Fifthly, they read, to suppresse subtill inventions to creepe out of the statute.

How more favourable than their modern counterparts, mused Coke, which

having lost the said former qualities, have lost also their former authorities: for now the cases are long, obscure, and intricate, full of new conceits, liker rather to riddles than lectures, which when they are opened they vanish away like smoke, and the readers are like to lapwings, who seeme to bee neerest their nests, when they are farthest from them, and all their studie is to find nice evasions out of the statute.

The law concerning misrepresentations inducing contracts has been the subject of criticism for some years, and in 1959, the then Lord Chancellor, Viscount Kilmuir, referred the matter to the Law Reform Committee. Their Report, published in 1962, had a mixed reception. A learned commentator, writing in this journal, gave it a rather chilly welcome, on the ground that it went too far; on the other hand, Mr. Diamond, writing in the pages ofLaw Reform Now, complained that the Report did not go far enough, and suggested that the subtle distinction between a mere representation and a term of the contract should be abolished. In 1967 the Misrepresentation Act was passed, to give effect, with certain modifications, to such of the recommendations of the Law Reform Committee as had not yet been implemented.