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Every Issue

Cite as: October 2012 86 (10) LIJ, p.62.

This month's reviews cover management of electronic information, statutory demands and winding up, commercial law principles in Australia, and mediation. 

Electronic Information and The Law

Margaret Jackson and Marita Shelly, Electronic Information and The Law, 2011, Thomson Reuters (Professional), pb $165.

In an environment where e-commerce and electronic information sharing is becoming the norm, it is important for legal professionals to understand the landscape governing the storage, sharing and use of such information. The capacity for electronic information to be instantly disseminated worldwide has legal implications for those who provide the information and those who access, collect and store it.

Electronic information is defined in the book as information “created, recorded, transmitted or stored in digital or other intangible format by electronic, magnetic or optical means”. This book aims to identify the different forms of electronic information, discuss the problems associated with electronic information and outline the relevant law.

Electronic information may be generated by individuals, private organisations or governments. It may be shared privately or publicly through social media, websites or other online forums. Generating, storing, using and sharing this information is governed by contract law, copyright law, privacy law and defamation, among others.

The book considers several contemporary issues regarding the management of electronic information in Australia. One issue is the federal government’s proposed Personally Controlled Electronic Health Records system. This system demonstrates how the effective management of electronic information is essential to the development of both government and private initiatives. To be successful, the e-health system will need to address issues of consent, information privacy, security and access. Issues of data quality, ownership, liability and indemnity must also be considered.

This book is of interest to inhouse and private practice legal advisers who are involved with the management of electronic information. Privacy lawyers and inhouse counsel will appreciate the overview of the relevant legal regimes. This book will also be a valuable resource to students and information technology professionals who are seeking a general understanding of this evolving area of law.

Electronic Information and the Law provides comprehensive coverage of the legal issues associated with electronic information. It will assist those interested in informing themselves or their clients about the evolving challenges associated with working with electronic information.


Statutory Demands and Winding Up in Insolvency

Farid Assaf, Statutory Demands and Winding Up in Insolvency (2nd edn), 2012, LexisNexis, hb $199.

Unlike the law relating to the natural person equivalent, the bankruptcy notice, (Division 3 of Part 5.4 of the Corporations Act) provides a specific statutory code for the resolution of disputes in relation to statutory demands. Failure to comply with a statutory demand will also create a presumption of insolvency. Therefore, a text that covers both statutory demands and winding-up in insolvency and the relationship between those concepts is invaluable.

This second edition of Mr Assaf’s excellent text is up-to-date, scholarly and uses plain English. It is well set out and analyses inconsistent authorities in a digestible way in relation to some deceptively simple questions including whether a creditor may issue multiple statutory demands; whether a claim in a statutory demand for an amount in a foreign currency is a claim in debt or a claim for damages; and whether a claim which includes an amount which is not “due and payable” is a “defect”.

Equally, in the context of winding-up applications, the text notes the uncertainty as to the correct interpretation of s459S(2) and, in that context, extracts and comments upon the recent observations of the High Court in ASIC v Lanepoint Enterprises Pty Ltd (2011) 244 CLR 1.

The text also manages to be practical with chapters that helpfully delineate the issues. It is well-indexed, readable and contains useful checklists for statutory demands as well as precedent forms in winding-up matters.

While the purpose of statutory demands within the insolvency regime is to act as a method of creating the presumption of insolvency, in reality the statutory demand is often used by creditors as a powerful and effective debt-collection mechanism. Such a demand may be issued for the recovery of a relatively modest sum (the statutory minimum is $2000). Statutory demands are often prepared by general practitioners.

General practitioners new to the area will find the book invaluable while those more experienced in the field will find it a useful reference guide to principles and cases.


Business And Law In Australia

Shayne Davenport and David Parker, Business And Law In Australia, 2012, Thomson Reuters Professional, pb $112.

This book is principally targeted to business students undertaking law subjects for the first time. It seeks to build upon the previous works contained in Commercial Law: In Principle, a legal textbook by Andy Gibson.

This academic text provides an overall grounding in fundamental commercial law principles applicable within Australia. Topics outlined include the Australian legal system; essential contract law principles; sale of goods; agency; bailment; electronic commerce; consumer protection; competition law; credit law; negotiable instruments; property; insurance; business entities; trusts; intellectual property; torts; crime; and business ethics.

The text is logical and well-structured, with “snap-shot” case law commentary and illustrative “mind-mapping” diagrams/flow-charts. Written in plain English, its practical approach facilitates an understanding of the applied nature of the legal principles canvassed. The student readers of this book will be assisted with the practical, problem-solving guides and revision practice questions and answers contained in each chapter. An online teaching and learning service is also available providing additional learning materials and revision questions, as well as individualised academic–student group communications. While this book makes a worthy attempt to address topics relevant to business law, it could have benefited from the inclusion of some additional topics and commentary. For example, further consideration of the legal profession and the regulatory requirements concerning the provision of legal advice (significant for non-lawyer professionals providing financial advice; conveyancing services) may have been appropriate, as well as consideration of administrative law given its continual expansion and relevance to commercial activities (e.g. specialised government tribunals; government contracts). Further to the book’s discussion of negotiable instruments, an outline of banking law, securities and prudential regulation and employment law considerations would also have been worthwhile inclusions.

As well as its intended audience, law students at the early stages of their LLB studies and paralegal and senior legal support may also find this book to be of use as a “back to basics” overview of fundamental commercial law principles.


The Mediation Handbook

Peter Condliffe, The Mediation Handbook: A Guide for Lawyers (2nd edn), pb $55.

The Mediation Handbook: A Guide for Lawyers is utilised in specialist training courses for lawyer mediators. In addition to being a training tool, it is a very useful resource for lawyers who practise in this field. The author has included a helpful explanation of the National Mediator Accreditation System and its role in the developing area of mediation practice, together with a short history of the development of ADR in Australia.

As a text, the handbook is very instructive in the process – not simply the steps involved, but the rationale and, where appropriate, the reasoning or psychology behind the various elements. Dotted throughout the handbook are short and useful practical examples of what is being discussed by the author.

In addition to the practical aspects, the author has also incorporated a number of chapters on the emerging law in this area, covering issues such as dispute resolution clauses, formalisation of the agreement (i.e. terms of settlement) and the power to order mediation.

As any practitioner in the ADR field will appreciate, there are perennial issues that are constantly confronted including ethics, confidentiality, admissibility and dealing with lawyers. These are discussed with recent case law together with the practice standards that are evolving.

The Mediation Handbook is a useful and valuable resource for practitioners, even for those with many years’ experience. It serves to remind mediators of the theory and rationale behind what is done in seeking to assist parties in conflict, regardless of the jurisdiction, court or tribunal in which they may find themselves.



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