A History of Company Law in Colonial Australia (

Only available on StudyMode
  • Download(s) : 62
  • Published : January 14, 2011
Open Document
Text Preview
A HISTORY OF COMPANY LAW IN COLONIAL AUSTRALIA: ECONOMIC DEVELOPMENT AND LEGAL EVOLUTION PHILLIP LIPTON∗
[The history of Australian company law has attracted remarkably little attention in academic literature, perhaps because it has mainly been seen as a copy of English law with few, if any, noteworthy features. This article points out several interesting and significant aspects of the evolution of Australian company law and considers this evolution in the context of the economic development of colonial Australia. Australian company law is an example of the transplantation of English law, raising the question of whether this transplant was successful. The central contention of this article is that although a substantial part of Australia’s company law was transplanted from England, its evolution was innovative and responsive to the economic needs of Australian society at the time. In particular, Australia’s company law was instrumental in financing the development of the mining industry, which played an important role in the economic success of colonial Australia.]

CONTENTS
I II III IV V VI VII VIII IX Introduction............................................................................................................. 805 Pre-Legislative Development of Companies .......................................................... 808 Early Experiments in Limited Liability .................................................................. 811 The Transplanting of the Companies Act 1862, 25 & 26 Vict, c 89 ....................... 814 The No Liability Legislation for Mining Companies ............................................. 818 The Reforms of the 1890s....................................................................................... 822 The ‘Transplant Effect’........................................................................................... 828 Legal Autonomy Versus Functionalism.................................................................. 831 Conclusion .............................................................................................................. 836

I INTRODUCTION The interaction between economic development and the evolution of company law in colonial Australia presents an interesting case study of a company law transplant because this interaction can be examined in the development of a capitalist society over a relatively short period of time. Little has been written about the history of Australian company law,1 possibly because it has been regarded as a mere copy of the English legislation with few, if any, distinguishing features apart from some local innovations in the 1870s and 1890s. This article looks at the history and evolution of company law in Department of Business Law and Taxation, Monash University. I am grateful to Richard Mitchell, whose insightful comments and stimulating discussions were of invaluable assistance. 1 See, eg, the brief discussions in R P Austin and I M Ramsay, Ford’s Principles of Corporations Law (12th ed, 2005) 42–5; Paul Redmond, Companies and Securities Law: Commentary and Materials (4th ed, 2005) 44–6; R Tomasic, J Jackson and R H Woellner, Corporations Law: Principles, Policy and Process (4th ed, 2002) 12–13; Robert Baxt, Keith Fletcher and Saul Fridman, Corporations and Associations: Cases and Materials (9th ed, 2003) 138–9. For a history of the law of business corporations in Canada: see R C B Risk, ‘The Nineteenth-Century Foundations of the Business Corporation in Ontario’ (1973) 23 University of Toronto Law Journal 270. ∗ BCom, LLB (Melb), DipEd (State College of Victoria), LLM (Melb); Senior Lecturer,

805

806

Melbourne University Law Review

[Vol 31

colonial Australia and finds several noteworthy features that defy claims that the Australian developments were largely a wholesale imitation of the law in England. In fact, there were innovative features in the development of company law which were specific to the Australian...
tracking img