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Every Issue

Cite as: July 2012 86 (07) LIJ, p.70

This month’s reviews cover contract law and consumer protection, elder law, civil procedure, and mental health tribunals in Australia.

Unfair Contract Terms in Australia

Jeannie Paterson, Unfair Contract Terms in Australia, 2012, Thomson Reuters, pb $150.

By now practitioners will know that in 2010 the Australian Government introduced the Australian Consumer Law (ACL). The task for practitioners is to become familiar with the terms of and application of this legislation. Many practitioners will find the ACL provides a “green field” – a new area of practice – while others will ignore it to their peril. Dr Paterson’s text will assist practitioners and students alike.

The ACL includes provisions governing Unfair Contract Terms Law (UCTL) and consumer guarantees. Dr Paterson’s text consists of 13 chapters; each addressing a readily recognisable discrete topic.

The first three chapters of the text provide the author’s description of the rational, constitutional basis for, and a jurisdictional comparison of, the Australian Consumer Law. While of value and interest, some busy practitioners may care to browse these chapters.

Practitioners will find the chapters which focus upon the ambit and operation of UCTL immediately relevant to practice, including succinct chapters on “Contracts to which the UCTL applies” and “Enforcement, effect and remedies”.

Of particular interest to this reviewer was the author’s treatment of the Consumer Guarantee Law. While Victorian practitioners may find the unfair contract terms provisions resonate with Part 2B of the Fair Trading Act 1999 (Vic), the same practitioners may find the Consumer Guarantee Law significantly different to familiar provisions of the Goods Act 1958 (Vic). The author’s treatment of Consumer Guarantee Law is most useful.

The text is a total of 221 pages, includes a subject index and case index, and is well set out. Dr Paterson’s text will assist many practitioners who are interested in or who are obliged to be interested in the operation and application of the unfair contract terms provisions and, to a lesser extent, the consumer guarantee provisions.



Elder Law in Australia

Rodney Lewis, Elder Law in Australia (2nd edn), 2012, LexisNexis, pb $175.

Over the last few years there has been a significant increase in the life expectancy of the Australian population aged 60 years and over, a trend that is expected to continue in the coming decades. As result, the subject of elder law has become one of the most evolving areas of the law.

The second edition of Elder Law in Australia is a comprehensive text on the subject. It is practical in its approach and provides a detailed discussion of the many changes that have occurred in the area since the publication of the first edition in 2004.

The book’s coverage is broad, dealing with issues such as: the policymaking considerations; the legislative framework; elder abuse; privacy and confidentiality issues; discrimination; liability issues in elder law; issues of life and death; elders in family law; care and accommodation for elders, delegation and substitute decision-making; capacity; financial issues; wills and family provision, and estate litigation.

Of particular interest is the chapter on “Issues of life and death”. In this chapter, Lewis presents a thorough analysis of euthanasia and mercy killing and the policy reasons for withholding the right to kill under certain circumstances. He also addresses the issue of withdrawal of treatment and the current position in Australia regarding this issue. Useful case law is referred to.

The appeal of this book lies in its practical approach. It will be a useful companion for lawyers who are seeking a better understanding of elder law. It is well written and easy to read. The author’s periodic reference to the law, as well as landmark cases, puts the subject matter in context. This book contributes to a growing area of law and should be added to the library of all lawyers engaged in private practice.



Australian Civil Procedure

Bernard Cairns, Australian Civil Procedure (9th edn), 2011, Thomson Reuters, pb $140.

The subject of civil procedure is detailed and complex. The relevant legislation, rules of court, practice notes and case law vary between the Commonwealth and the various states and territories. Texts have been published by academics and practitioners on many individual civil procedure topics. Other texts have been published on the civil procedure applicable to particular courts and tribunals. An author covering civil procedure across all of Australia cannot be exhaustive, but must seek to identify fundamental and generally applicable principles and trends and explain the most significant differences. This is what Dr Cairns does in Australian Civil Procedure.

Increasingly, practitioners need to be familiar with the civil procedure of multiple Australian jurisdictions. As this book provides a useful comparison of the various procedures of Australian courts, it can be a helpful starting point for practitioners wanting to resolve a civil procedure problem. The author identifies many essential differences between the procedures applicable in different jurisdictions. The text may also provide a useful introduction to practitioners inexperienced in civil procedure.

The ninth edition makes reference to a number of the most important recent developments in civil procedure, including the Federal Court Rules 2011 (Cth), the Civil Dispute Resolution Act 2011 (Cth) and the Civil Procedure Act 2010 (Vic). The Civil Dispute Resolution Act 2011 requires litigants in most Federal Court proceedings to file a statement as to what steps were taken to resolve the dispute before the proceeding was commenced. The Civil Procedure Act 2010 imposes overarching obligations on the parties to litigation. Parties must certify that they have been advised of these.

The ninth edition also contains a review of legal professional privilege in the context of discovery, interrogatories and inspection. This is certainly a significant area of civil procedure for many practitioners. The analysis is of the common law authorities, which apply in Commonwealth courts,but does not refer to the provisions of the Evidence Act 1995 (NSW) and the Evidence Act 2008 (Vic) which apply in the courts of those states in this context.

Overall, this book provides a good overview of Australian civil procedure and can be useful in conjunction with more specialised texts.



Australian Mental Health Tribunals

Terry Carney et al, Australian Mental Health Tribunals: Space for fairness, freedom, protection & treatment?, 2011, Themis Press, pb $74.95.

Arising from an Australian Research Council Linkage Project, this monograph examines the workings of three mental health tribunals (MHTs) across New South Wales, Victoria and the Australian Capital Territory. The essential question posited is whether Australian MHTs create “space” for fairness, freedom, protection and treatment. Aspects of space considered include the physical space where hearings are conducted, the jurisdictional space in which the MHTs operate, symbolic space and space for system reform.

The authors contextualise the question by providing an overview of human rights laws, concentrating on rights and freedoms especially impacted by involuntary treatment. In a space where economic, social and cultural rights are significant considerations, the way in which these rights inform hearings and systems of involuntary treatment more generally are primary concerns. Included is an interesting discussion about the right to health and whether there should be an onus to prove the optimal health outcomes of treatment and how hearings can create the space for the realisation of this right.

The methodology of the study, being a synthesis of quantitative and qualitative data, and its constraints are documented in detail. With current debates around the Charter of Human Rights and Responsibilities Act 2006, this study makes a strong case for how inclusion of economic, social and cultural rights can make a real difference to the hearing process by making it more of a therapeutic experience for all participants. This monograph is especially useful for policy and law makers, advocates and MHTs in reflecting upon practice and informing new systems design as anticipated under the proposed Mental Health Act.



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