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Cite as: April 2014 88 (04) LIJ, p.67

This month’s reviews cover Indigenous people and the criminal justice process, construction disputes, long term contracts, documentary evidence and liability insurance.

Best Practice in Construction Disputes

Paula Gerber and Brennan J Ong, Best Practice in Construction Disputes, 2013, The Federation Press, hb $125

The construction industry is renowned for its ravenous appetite for writs. No matter how small or large the project, disputes blossom in our forests of reinforced concrete. As a result, the construction industry has found ingenious ways to avoid the burden of traditional litigation.

This book does not seek to educate the reader about the current framework of legislation and common law. It aims higher, trawling the world for the best ways to avoid, manage and resolve disputes in the context of construction, and then applying these techniques to the real world.

The authors concede (quite properly) that some of the practices detailed in the book are radical. But that is what makes this book so interesting and provoking: it pushes the reader to question the entire legal framework and how it can be improved. It looks at the different techniques that have been developed around the world that build trust between principals and contractors rather than creating an adversarial environment.

The book begins with an analysis of the anatomy of a conflict, and sets out ways that disagreements can be harnessed to benefit the project. Conflicts are inevitable when the financial interests of the parties are diametrically opposed. This, of course, is the natural relationship between principal/contractor. Gerber and Ong look at the cultural setting of a building site and discuss how the contractual and legal frameworks can assist to align the interests of the parties and avoid conflicts turning into disputes.

The authors then set out the options for alternative dispute resolution (or, as they call it, appropriate dispute resolution). Finally, the topic of mortal combat is addressed: security for costs, litigation and arbitration. Again, this book is not about rules and regulations, it is about explaining the options available to parties to resolve their differences with a minimum of cost to their relationship and their bottom line.

Lawyers are constantly told to consider the commercial context of their advice. Likewise, any client dealing with lawyers should understand the tools that are at their lawyers’ disposal. This book provides both lawyers (of all levels) and clients a tremendous leap forward in that understanding.

BEN PATRICK, Senior Associate, Holding Redlich

Long Term Contracts

Kanaga Dharmananda and Leon Firios (eds), Long Term Contracts, 2013, The Federation Press, hb $225

This book is essentially a collection of conference papers relevant to long-term contracts in the mining sector. It is a great credit to the editors that they have integrated these papers into a cohesive book that should have appeal well beyond its obvious audience.

The 400 page book is divided into eight chapters. Important chapters such as “Drafting”, “Remedies” and “Dispute Resolution and Enforcement” include several essays. Each essay is short enough to read in a brief break, but many reward closer study.

Like all edited books, the quality of essays varies. The good essays however, are very good. There are notable contributions from the judiciary (Martin CJ, McLure P and the Honourable Paul Finn), academia (Professors David Campbell and George Triantis), and numerous prominent barristers, solicitors and in-house counsel. Given the variety of contributions, readers will find different chapters more appealing.

I especially enjoyed the chapter on remedies. Dharmananda provides a concise and thoughtful summary of the law of damages for breach of contract. This foreshadows essays on the design and calculation of damages. The only disappointment here, perhaps, is that the authors were not able to take proper account of the implications Andrews v Australia and New Zealand Banking Group Ltd ((2012) 247 CLR 245) holds for abatement regimes, performance liquidated damages and the like.

Other readers may like the essays on Chinese and Japanese perspectives on long-term contracts. Or perhaps the chapter on drafting, which includes helpful tables, case studies and sample drafting.

For yet other readers, the 50-page appendix of sample clauses drawn from public sources will be the most useful part of the book. (For my part, the varying quality of the drafting and the lack of accompanying commentary make them less useful.)

What unites the disparate essays is a common focus on rigorous but practical advice dispensed in a lively tone, with generous use of examples, tables and summaries. In short, this book holds something of interest for all readers.

WAYNE JOCIC, Senior Lecturer, Melbourne Law School

Documentary Evidence: The Laws of Australia

Roger Brown, Documentary Evidence: The Laws of Australia (2nd edn), 2013, Thomson Reuters, pb $139.95

This title addresses the admissibility and use of documentary evidence and computer-produced evidence in court proceedings in Australia. It takes a well ordered approach to the subject at hand, dealing first with the varieties of records that may constitute a “document” and explaining the important statutory and common law definitions which come into play in treating the written word, photographs, films and tapes, public documents, statutory certificates and others.

Broad concepts such as the evidentiary effect of documents and the “best evidence” and hearsay rules are addressed in a manner that gives the reader the “big picture” (and an historical perspective) with respect to issues of admissibility, before delving into the more detailed and specific rules, concepts and intricacies contained in the contemporary legislation governing admissibility of documentary evidence.

The text gives balanced attention to both the Uniform Evidence Acts (which apply in all Commonwealth Courts as well as throughout Victoria, New South Wales, Tasmania, the ACT and the Northern Territory) and to the various other jurisdictions which are yet to adopt the uniform approach. Where differences arise between the rules applicable in criminal and civil proceedings, the reader’s attention is drawn to the differences.

Because of the important role played by business records, banking records and other books of account in litigation, particular consideration is also given to these areas. The book also addresses “computer-produced” records, and their admissibility in proceedings, again, both under the Uniform Evidence Acts, and in the remaining jurisdictions.

Throughout the book clear and concise treatment is given to each subject, and the use of examples drawn from the common law point the reader in the direction of a correct understanding of the statutory rules being explained where this is necessary. As is to be expected, there is an extensive use of important case law, including recent decisions throughout the text, bringing matters of particular import or potential confusion to the reader’s attention.

DOUGLAS J JAMES, Barrister

The Law of Liability Insurance, Vols 1 and 2

Derrington, The Honourable Desmond, and Ashton, Ronald, The Law of Liability Insurance Volumes 1 and 2 (3rd edn), 2013, LexisNexis, hb $395

Since it first appeared in 1990 The Law of Liability Insurance has been an indispensable resource for Australian insurance lawyers. For many, it has long been their first point of reference. The publication of the third edition was therefore keenly awaited.

The third edition exhibits what is referred to in the publishing industry as page inflation. Whereas the publishers managed to fit the second edition into one heavy volume, this was simply not possible for the third edition. It numbers a staggering 3437 pages, not including the table of cases, which in itself is over 200 pages long. Per page, per kilogram, it is great value for money.

The learned authors have done their utmost to leave no stone unturned. Somewhere within the two volumes, lawyers can be confident of discovering sufficient details to allow them to unravel almost any liability insurance issue that comes their way, no matter how complex.

Nevertheless, the enormous level of detail may for some practitioners come at a cost. It is not a work for someone who has only a passing or infrequent interest in insurance law. The hard copy is not for those with bad backs who wish to sling it into their backpacks for a stint of weekend work. Thankfully, it is also available as an eBook.

As with the second edition, there are thirteen chapters. Several chapters relate not only to liability insurance but to insurance law generally, for instance the nature of insurance contracts, the construction of insurance contracts, the duty of utmost good faith, the duty of disclosure, the proposal form and misrepresentation, and election, waiver and estoppel. Then there are chapters which relate more specifically to liability insurance, including the form of cover that is provided, conditions and exclusions found in liability policies, and specific forms of liability insurance cover, such as professional indemnity insurance, directors’ and officers’ insurance, and products liability insurance.

There are thousands of footnotes. These refer not only to Australian and common law authorities but also to copious American authorities, as does the text. American jurisprudence may be of limited interest to those practitioners who are seeking quick, practical and definitive answers. In their foreword, the authors saw fit to comment on this, stating that they would not offer any apology, and that “it would be a proud mind which would reject what is said in America [when considering] an issue which is novel in its own jurisdiction”.

Insurance lawyers are indebted to the authors for their enormous display of scholarship, erudition and stamina.

JOHN TESARSCH, Barrister

Indigenous People, Crime and Punishment

Thalia Anthony, Indigenous People, Crime and Punishment, 2013, Routledge, hb $173

It is unfortunately an uncomfortable – and persistent – fact of the administration of criminal justice in Australia that Indigenous persons are over-represented at all stages of the criminal justice process. This is despite the findings and 339 recommendations that emanated from the historic Royal Commission into Aboriginal Deaths in Custody.

Indigenous People, Crime and Punishment is an attempt to render a more complex understanding of not only the reasons for offending that occurs in Indigenous communities, but also to understand the “response” by the non-Indigenous community and the “sovereign” institutions such as the legal system and parliament.

The depth of analysis in this work is impressive. The author has taken what may be described as the “long view” to her subject. That is, she has not been content to rely on the more formal aspects of the criminal justice system represented by statutes and case law (although that is covered), but to frame, and restore, the issue of Indigenous crime and punishment back to its original source: the dispossession and colonisation of Indigenous communities.

This is an attempt to capture and retrieve that history and to expose how it is still relevant and how sentencing courts construct that history when sentencing Indigenous persons. What is clear is that the understanding of that history is framed from the perspective of the dominant, non-Indigenous community. Accordingly, she subjects the criminal law and the punishment of Indigenous offenders to a sustained critique.

This is an important work. And the strength lies in the telling of a different way of understanding Indigenous punishment in Australia. In that analysis the law is neither objective nor necessarily fair. Instead, it is connected to the longer course of history between non-Indigenous and Indigenous communities; with the latter subject to not only the laws of the former, but also to an imposed “understanding” by the non-Indigenous community that has yet to properly reckon with the legacy and enduring effects of colonial dispossession in Indigenous communities.

RICHARD EDNEY, Barrister



REVIEWERS WANTED

If you are interested in reviewing books for the LIJ, please email your contact details and areas of interest to Libby Brown at lbrown@liv.asn.au.

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