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Cite as: (2004) 78(10) LIJ, p. 66

This month’s reviews look at competition law, damages for psychiatric injuries, patents, e-litigation, defamation defences, the Constitution, income tax and charting your sea change.

Competition Law in Australia (3rd edn)

SG Corones, Competition Law in Australia (3rd edn), 2004, Lawbook Co, paperback $114.95.

Since the publication of the 2nd edition of this book in 1999, there have been seven reviews of the provisions relating to anti-competitive conduct and access, the latest being the Review of the Competition Provisions of the Trade Practices Act by the Dawson Committee in 2003.

In addition, there have been a number of public inquiries by the Productivity Commission. A series of important cases have also clarified the provisions of the Trade Practices Act (the Act).

Given the dynamism of the subject matter, this new edition is a welcome addition to the resources available to the academic or practitioner.

The main focus of the work is the regulation of anti-competitive conduct and the denial of access to essential services. While an effective competition policy also includes concerns of unjustified regulatory restrictions on competition, the inappropriate structure of public monopolies, monopoly pricing and competitive neutrality, these concerns could not be addressed in this work.

Part A of the text deals with concepts underlying the Act. Chapter 1 provides the broad context of the provisions of the Act, then compares different views on regulation, providing an overview of the integration of economic thought in court and tribunal decisions. This is fascinating reading for a non-economist. Chapter 2 is devoted to analyses of economic terms necessary for the interpretation of the provisions of the Act, and as there have been a number of recent cases contributing to this analysis it is again critical reading. The more traditional legal history of the legislation, and the administrative and court structure ensuring its implementation, begin in chapter 3. Chapter 4 deals with the field of application of the Act. This discussion highlights the achievements of the Hilmer reforms, and is particularly topical in its analysis of the application of the Act to the Crown. This section could usefully have been longer.

Part B mainly provides analyses of the provisions regulating anti-competitive conduct. However, chapter 11 alters this approach by concentrating on the range of issues arising in franchising arrangements, fleshing out the application of the anti-competition provisions. Similarly, chapter 12 deals with intellectual property licences, as an area requiring the balancing of disparate objectives. Chapter 13 provides a short excursus into the application of the anti-competition provisions to telecommunications markets.

Part C deals with access to essential services, and integrates the report of the Parer Review Committee which recommended the creation of a National Energy Regulator. Part D deals with remedies and analyses public and private remedies and enforcement issues.

In many areas more could be said, but this is an excellent text, providing a good balance between depth and breadth of analysis.

Francine Rochford
Lecturer in law, Department of Business, La Trobe University, Bendigo

Damages for Psychiatric Injuries

Des Butler, Damages for Psychiatric Injuries, 2004, The Federation Press, hardback $75.

In personal injuries, conditions such as post-traumatic stress disorder (PTSD), anxiety, depression and the various forms of disorders and descriptions, are spoken about in the community far more frequently than previously. As a direct consequence, lawyers are having to deal with people with these conditions in many categories of claims and the publication of this book is timely.

As with many areas in the medical arena, it is very difficult to understand the terminology. The author has included a chapter explaining in simple terms the medical basis and history of psychiatric conditions and injuries and the use of diagnostic tools such as the Diagnostic and Statistical Manual of Mental Disorders (DSM-IV-TR). It is against this background that the author has written about the history and development of the jurisprudence, drawing not only on English cases but also on those from the US and Canada and, importantly, relating them to the evolution of the Australian authorities.

Throughout the text the author has provided helpful examples of the concepts and explanations of “tags” often used in this area. This should assist practitioners when seeking to understand medical reports which are often threaded with tags or descriptions that become common parlance, such as PTSD.

The history of the development of liability for psychiatric injury is thoroughly explored. This becomes important when the differences between the approaches are addressed later in the text and when the author discusses the impact of the Review of the Law of Negligence Final Report (the Ipp Report) and in particular the recommendations affecting recovery for mental harm.

The reader will also be aided by the author expressing his own views on decisions and the impact of legislative changes in Australian states following the lpp Report. For Victorian lawyers, the amendments to the Wrongs Act 1958 need to be considered, particularly in the light of the common law position that may have been affected. A section in Chapter 6 specifically addresses this development.

In a recent article in the LIJ, “Persisting difficulties with ‘serious injury’ applications” (June 2004, page 36), the authors make reference to issues of psychiatric injuries and in particular the attitude of courts. Damages for Psychiatric Injuries gives practitioners a valuable resource when considering such issues and can assist in formulating arguments that may influence the courts to develop an appropriate approach to these difficult concepts.

Tim Mcfarlane
Mcfarlane Legal

Patents: A guide

Barry Fox, Patents: A guide, 2003, Barry Fox, paperback $100.

Master of the Rolls Lord Esher once said: “A man had better ... have anything happen to him in this world, short of losing all his family by influenza, than have a dispute about a patent”. While this statement reflects the frustration which may be felt by the parties to a patent dispute, it also reflects the potential difficulty inherent in this area for legal advisers. If you practise in this area, I suggest you consider using this book to guide you through any difficulties that may arise.

This book is a simple and easy-to-read guide to Australian patent law. Its major strength is that it conveys complex legal principles in a clear and concise manner. The general principles of patent law are presented in a bullet-point format with a separate paragraph for each proposition. Each paragraph is well-supported, usually by reference to an important case or section of the Patents Act 1990 (Cth). The layout makes it particularly easy to find a useful quote or authority to support a proposition.

The book is logically arranged in 10 chapters following the life cycle of a patent. The first chapter deals with preliminary issues such as inventors, inventions and types of patents. Subsequent chapters follow the patent process up until grant. Remaining chapters deal with infringement, defences to actions for infringement, remedies and legal proceedings.

A good mix of technical information is discussed, such as novelty, inventive step and fair basis. The inclusion of information on procedural issues such as discovery and the grant of injunctions provides the book with a solid practical perspective. An aide-memoir for analysing patent disputes is also included, which is a useful checklist of issues that commonly arise in patent litigation.

This book will be of great assistance to anyone practising or studying patent law. It is ideal for practitioners who are looking to convey potentially complicated issues of patent law to their clients, experts, opponents and the courts in a straightforward and concise way.

Ian Horak
Barrister and Patent Attorney

E-litigation

Allison Stanfield, E-litigation, 2003, Lawbook Co, paperback $129.

Allison Stanfield rightly claims that “in the future, the term electronic litigation will become redundant. Rather, litigation will be conducted with a number of ‘electronic’ tools, as a matter of course”. E-litigation provides an over-view of the use of technology in litigation by describing current tools and emerging trends.

The book discusses electronic filing, discovery, litigation management, and electronic tools used in trials and appeals.

The final chapter discusses some emerging trends and initiatives in electronic litigation which have not yet been fully realised in practice. Detailed appendices reproduce relevant practice notes and court directions in each Australian jurisdiction.

The bulk of the book provides a plain English introduction to concepts which are now crucial to the management of every large piece of litigation. The author readily admits that, for now, electronic discovery and trial management tools are not suitable for every proceeding issued. However, she also recognises that electronic filing and service mechanisms could make all litigation, large and small, cheaper and faster.

The chapter on discovery deals not only with the practical aspects of using technology to manage discovery, but with the difficulties in making discovery of electronic information and the problems inherent in preserving electronic information so as to ensure it can be discovered. The brief but informative discussion of the latter concept should be read by all litigators. Digitally-stored information is ubiquitous, inherently transient and difficult to capture “in state” without forward planning. It is almost universally accompanied by metadata (information about information) which is invisible to the everyday user of a computer but potentially invaluable to a litigant. The difficulties in identifying, preserving, replicating and using such data in litigation must be recognised in order that its full potential can be realised.

This is a short book, of most use to solicitors involved in the management of large-scale litigation. Insofar as it describes particular tools, methods and protocols, its lifespan will be limited – in technology, as in law, obsolescence comes with the territory. However, the book’s greatest use lies in the practical insight provided by an author who has been intimately involved in the development and use of the tools which she describes, and in its wide-ranging, plain-language explanation of the key concepts which drive the management of electronic litigation. Those concepts will survive technological advances.

Stewart Maiden
Barrister

The Third Man: Reform of the Australasian defamation defences

Michael Gillooly, The Third Man: Reform of the Australasian defamation defences, 2004, The Federation Press, hardback $75.

Dr Gillooly’s thesis is that the interests of the recipient of defamatory material is a neglected policy objective of defamation law. Instead of the usual approach of balancing the reputation of the defamed against the author’s right to free speech, Gillooly investigates defences that would maximise the flow of relevant, good quality information to the recipient of published material. The recipient, with whose interests the author is concerned, is dubbed “The Third Man”, which is taken from Graham Greene’s novel and Carol Reed’s film of that title.

The up-to-date, detailed comparative analysis of each of the Australian and New Zealand defamation defences undertaken in this book is valuable in itself and adds substantially to the author’s earlier work, The Law of Defamation in Australia and New Zealand (1998).

Gillooly argues for and supplies a concise model code of defamation defences, which will be useful for anyone attempting to reform defamation defences in Australia. Although the model code is original, it draws on the defences of each Australian jurisdiction, New Zealand and the UK. The strongest influence seems to be the Defamation Act (NSW). One of the most striking proposals is that the defence of qualified privilege be abolished and replaced witha defence of “mistake”, available only in conjunction with a defence of justification or of comment. If enacted nationally, this alone would significantly simplify the law of defamation.

The case for greater attention to the perspective of the recipient of defamatory matter is well made. Major statutory provisions in Australia which protect recipients of information from misleading conduct are confined to the commercial context, which leaves significant work for defamation law and other torts to do. The author’s thesis deserves further consideration in relation to remedies and the elements of libel and slander. However, the idea can be taken too far. In many defamation cases, the interests of the recipient are insignificant compared with those of the person whose reputation is at stake and of the publisher. Ultimately, the interests of the recipient is an important perspective to take into account, but does not necessarily resolve the tension between freedom of speech and the vindication of reputation.

Andrew Westcott
Clayton Utz

It’s Your Constitution: Governing Australia today (2nd edn)

Cheryl Saunders, It’s Your Constitution: Governing Australia today (2nd edn), 2003, The Federation Press, paperback $22.95.

Professor Saunders is well-known in constitutional law circles in Australia as a distinguished and erudite scholar of the commonwealth Constitution. In this work she distils the results of decades of precise and painstaking scholarship and makes them available to a broad audience: the legally-trained, laypeople, the politically astute and those beginning the process of becoming citizens, young and old. She has taken on a difficult task, but one to which the text of her book proves she is more than equal.

The book, like its predecessor of 1998, is divided into three main sections which reflect Professor Saunders’ chosen questions: what kind of say do I have as a citizen?; how are decisions made in the nation?; and what are the limits on governmental action vis a vis the citizenry? The introductory part of the book concisely explains what a constitution is, how a constitution comes into being and what the significant contents are.

The balance of the book is devoted to providing answers to the three main questions under the headings “Having a say”, “Making decisions” and “Limits on government”.

At a time early in a new millennium when Australian citizens look out at the world through the flickering lens of television to see conflict, bloodshed, terrorist acts, and abundant political rhetoric associated with all of these, it is important to ask what tools we have to analyse the role of governments in relation to their citizens at home as well as abroad. The third part of the book, which addresses some of the significant theoretical underpinnings of constitutional governance – the rule of law, the separation of powers and the protection of citizen rights, addresses these concerns. The sections are well-written in a clear, inclusive style.

The earlier parts of the work focus on the workings of Australian democratic governance at the federal level. Under the heading “Having a say”, the reader is informed about the federal Parliamentary structure, democratic rights and the important referendum provision in s128 of the Constitution for amending the text of the Constitution.

The second part explains the process of government decision making and the role and functions of executive government and the courts.

Professor Saunders has managed very effectively to encapsulate the key features of the Constitution in a readable text under 200 pages.

Katherine Lindsay
Deputy Head, School of Law, University of Newcastle

Concise Income Tax (3rd edn)

Julie Cassidy, Concise Income Tax (3rd edn), 2004, The Federation Press, paperback $59.95.

It is a mammoth effort to reduce something as complex and voluminous as the 10,000-plus pages of the two Income Tax Assessment Acts into a 430-page text. This is precisely what Julie Cassidy has done, and has done well.

In the preface she states that the purpose of the text is “to provide a comprehensive yet succinct examination of the most significant areas of taxation law”. While her examination is succinct, it covers all major aspects of income tax law and with some depth.

In a plain English, no nonsense style, the author gets to the heart of each matter quickly and supports each explanation or proposition with relevant section and case references as well as references to Tax Office rulings. Where appropriate, major cases are summarised and leading judicial statements quoted.

The first two chapters deal with the history and purpose of Australia’s tax laws and how the taxation system is administered.

In many taxation texts, tax avoidance is dealt with towards the end. It is refreshing to see it dealt with early on in this text to signify its importance in the Australian tax landscape. (An example of this is the most recent High Court decision in FCT v Hart, which has been the subject of much press and commentary.)

The chapters on “Income according to ordinary concepts”, “Businesses and profit making schemes” and “General deductions” examine the historical development of the tax law in these areas to help the reader understand their application in today’s environment. These are areas that are heavily based on common law precedent and the appropriate use of leading judicial statements and case summaries help the reader understand the relevant concepts.

Chapters on “Residence and source”, “Capital gains tax”, “Tax accounting and trading stock” and “Repairs and depreciation” are also well covered. Unfortunately, it appears that space limitations mean that capital gains tax (CGT) can only be covered in a summary manner. The CGT provisions of the Tax Act are intricate, and although nearly 20 years old, are just coming to prominence as part of the Tax Office compliance activities.

The final three chapters deal with the taxation of partnerships, trusts and companies respectively.

Like the other topics, the main issues are dealt with concisely and comprehensively.

There is a detailed contents list, an adequate index and tables of cases and legislation.

Overall, this book is a good reference for legal practitioners who do not specialise in taxation but want a good grounding in taxation law. Students will also find it valuable.

Robert Warnock
Legal Counsel, National Tax & Accountants Association

Leaving the Rat Race to Get a Life: A map for charting your sea change

Philomena Tan, Leaving the Rat Race to Get a Life: A map for charting your sea change, 2004, John Wiley & Sons Australia Ltd, paperback $29.95.

According to Dr Tan, a Melbourne psychologist and psychotherapist who underwent her own sea change before writing this book, a sea change is about re-evaluating your life and the role that work plays in it. It is about reconfiguring your lifestyle so that you have a greater chance of finding happiness, which means different things to different people.

This self-help book does not seek to provide a formula or a step-by-step guide to making the necessary adjustments to our lives to find fulfilment. Instead, it gives a broad view of what some people experienced when they underwent their sea change and tried to learn from it. Examples and quotes from sea changers abound, highlighting their different experiences. In some cases the sea change was swift, following a major crisis; others took longer, sometimes years, to reach the conclusion that their lives needed adjustment. In some cases it was simply about slowing down to a less demanding job, rather than leaving an existing life for a new one.

To assist readers wanting to assess their own life situations, 30 exercises are provided to prompt and guide through each of the four stages that Dr Tan considers the sea change map to contain. These exercises are not just about the emotional side of our lives, but also focus on practical things such as how much money we really need to live, and how a sea change is likely to affect loved ones.

This is a very practical yet thoughtful account of how someone can evaluate their life and how they might be able to reconfigure it. So don’t start packing the station wagon just yet – you might need to do a bit of thinking first.

Evy Papadopoulos
Legal Counsel, SPI PowerNet Pty Ltd

books@liv.asn.au

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