The Federal Court of Australia has declared a number of contractual terms appearing in some 26,000 standard form contracts entered into by JJ Richards & Sons Pty Ltd to be void for unfairness under the Australian Consumer Law Unfair Contract Terms scheme.
Typically medical specialists must submit their credentials in order to provide services at a hospital. This way, health service organisations are able to ensure that practitioners are sufficiently qualified and experienced to practice with that particular organisation within a defined scope of practice (commonly referred to as an ‘accredited practitioner’). In applying to be accredited, practitioners will often be required to agree to abide by a range of by-laws, codes of conduct and policies. The question is; does this agreement create a contract? And if a contract is created, what are the implications for the health service?
Electronic signature technologies are increasingly used to execute documents used in commercial transactions. In this case, the New South Wales Court of Appeal held that a genuine electronic signature affixed to a personal guarantee by an unauthorised (and unknown) individual was ineffective to bind the apparent signatory. The implications of this case may appear concerning because it could be difficult for clients to determine whether a genuine electronic signature was affixed properly (binding) or improperly (non-binding). However, it should be noted that the case concerned a personal guarantee, not a document executed by an individual in their capacity as an officer of a company. Nevertheless, the case stands as a salient reminder to ensure that clients are aware of the nature of the parties with whom they are dealing. More specifically, to ensure that personal guarantees are properly executed by, or with the full knowledge of, the putative signatory.