Opening Remarks
| Author | Paul Finn |
| DOI | 10.22145/flr.27.2.1 |
| Published date | 01 June 1999 |
| Date | 01 June 1999 |
| Subject Matter | Article |
OPENING
REMARKS
PaulFinn*
Whether I
am
an
appropriate person to
open
aseminar "celebrating"-well perhaps
at
least noting the occasion
of-the
lOOth
anniversary of
Salomon
v
Salomon
&
Co
LttP
is, I
suspect, questionable. Ihave long been
an
unashamed admirer of the scholarship (not
only
in
company
law
and
in
partnership) of Nathaniel Lindley. He, of course, was a
member of the
Court
of Appeal
that
the House of Lords found to have got
it
so wrong.
Ialso
am
aperson
who
strongly holds as arule to purposive construction of
legislation.
And
was Lindley
LJ
so palpably
wrong
when
he
said:
There
can
be
no
doubt
that
in
this case
an
attempt
has
been
made
to
use
the machinery of
the
Companies
Act, 1862, for a
purpose
for which
it
never
was
intended.2
It seems to
me
the principal justification for favouring aliteral as against apurposive
interpretation of astatute is that the purpose
in
question offends against values the
common
law
seeks to
uphold
so
that
if
parliament is to strike
at
them
it
must
do so
plainly
and
unmistakably. Butwas
Salomon
such acase?
Because Ialways have less
than
revered the House of Lord's decision, Iintend to
devote some
part
of
my
remarks to the counter-revolution to the steps taken by the
courts to take away with one
hand
what,
in
Salomon,
they gave with the other.
And
this
they surely
had
to do. But Iwill leave
that
for the moment.
First I
want
briefly to narrate afar less well-known,
but
probably more just,
conferral of separate legal
and
corporate personality
on
what
previously were
regarded as unincorporated groups. Irefer to the judicial bestowal of corporate status
on
statutory boards
and
trusts
in
the first half of the nineteenth century. If Ican speak
somewhat
anachronistically
it
was this event that permitted the evolution
in
doctrine
that
allowed the citizen to make
wide
use of the tort of negligence against statutory
bodies engaged
in
public works
and
in
the provision of public services. The
landmark
decision
in
this arena was
that
of the House of Lords
in
The
Mersey
Docks
Trustees
v
Gibbs.3
A
DIGRESSION
It is appropriate
in
this setting
and
on
this occasion to speak of the corporate form
in
the public sector. Governments have rediscovered it, exploited
it
and,
on
occasion,
*
1
2
3
Judge
of
the
Federal
Court
of Australia.
[1897] AC 22.
Broderip
v
Salomon
[1895] 2
Ch
323
at
337.
(1866) LR 1HL
93.
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