The Obiter Issue 4

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Trimester Two2012

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Practical legal training at Anu Legal Workshop Your Pathway to Legal Practice Information law.anu.edu.au/legalworkshop T 02 6125 4463 E lwsa@law.anu.edu.au CRICOS# 00120C | 110412COL

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The ANU Legal Workshop is Australia’s largest university-based legal practice program. We provide practical legal training in the Graduate Diploma in Legal Practice (GDLP).

Becoming a Practitioner (BAP) is the first part of the program and is a 5 day pre-requisite face-to-face intensive offered in cities Australia wide.

We also offer: > flexible on-line delivery > concurrent enrolment with your LLB & JD studies > your choice of 20, 40, 60 or 80 day Legal Practice Experience > direct or reciprocal admission to legal practice nationally > Substantial credit towards an ANU LLM. We have an efficient and friendly administrative team who are available to answer any questions students may have about the program. Many of our academic staff are practising lawyers.

Becoming a Practitioner (BAP) face-to-face intensives for 2012: Adelaide 28 May 2012 Darwin 18 June 2012 Melbourne & Sydney 25 June 2012 Brisbane & Canberra 2 July 2012 Melbourne 3 Sep 2012 Canberra 10 Sep 2012 Canberra & Townsville 19 Nov 2012 Perth & Sydney 26 Nov 2012 Toowoomba 26 Nov 2012 (may be subject to change) Adelaide 17 Dec 2012

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>> Following UniSA’s triumph in the 2012 Trivarsity Witness Examination Competition against Adelaide and Flinders Law Schools, Flinders said that they had ‘lost’ the WitEx Trophy. USALSA decided it would send the USALSA Ninja (what self-respecting Law School doesn’t have a Ninja?) on a reconnaissance mission to track it down. Alas, it wasn’t found.

But, many a hijinks was had on the Flinders Campus.

acknowledgements the obiter team would like to acknowledge the support of USALSA, ANU Legal Workshop, Caldicott & Co & the UniSA School of Law. Furthermore, we would be lost without the guidance of Quentin the Unicorn of Obligation & Norbert the Numbat of Notice.

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The views and opinions expressed in this publication are those of the individual authors and not those of the UniSA School of Law or USALSA Inc.

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contents

From the Editors Our Team & Guest Contributors Coming Events

billablehours

Billable Hours

features

An Early Morning Stroll for Justice

news

Abigail Khoo & Esther Lam

extra

Fundraising a Walk in the Park

jonesj

Amy Niedorfer

precedent

There’s a New Sheriff in Town

identityparade

profile

Abeir Zaid

They must have been Bonkers Meredith Hennessy

Private Law - A Rich Discipline

Jane Knowler & Professor Charles Rickett

Looking at the World through Iron bars Phoebe Bowden

Who says we have no history?

Matthew Doran

The Extra-Curricular Quandry: Celubrious Celery can Counter Corrupt Cats... Granola Russell Jones

enjoy reading

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the magazine for Law students at UniSA

Confessions of a Corporate Drop-out A. N. Onymous

Identity Parade

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from the editors billablehours profile

There has been a shake up behind the scenes at the Obiter.

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We have spent the last few weeks trying to infiltrate The Advertiser building in the hopes of secretly moving our operations into a storage closet. With the exception of one Eastern European janitor, no one suspects a thing. We will endeavour to keep you updated on the operation.

news extra jonesj precedent identityparade

This issue we bring you our usual blend of seriousness and humour.

We are happy to announce this is the first issue of the Obiter with a staff contribution.

Professor Charles Rickett and Jane Knowler will be highlighting the importance of private law in legal practice.

Further featured in this issue is a profile of the new Dean of Law at UniSA (pages 14-15), an article on Mental Health and the Law (pages 16-18), as well as a brief history of the building that houses the law school and the land it is built on (pages 24-25).

There are also reports from the Walk For Justice (pages 10-12) and the Prisoner Art Exhibit (pages 22-23), as well as the notes of a

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Corporate Law Drop Out (page 29).

Jones J’s regular column is back (pages 26-28), as well as your advice column, Billable Hours (page 9) In other news the current editorial team will be taking a step back in the next edition. Having built this magazine from the ground up, we believe it is time for some fresh eyes.

New blood will be taking the helm and we will be there to guide them through this process like a coyote wolf-spirit to an intoxicated shaman (wait, what?).

If you’re looking at your CV and thinking you need some more extra-curriculars to beef it up, think about getting involved in the editorial process or writing for The Obiter. Send an email to theobiter@ usalsa.org.

We are unpaid and student run.

And law-firms love extracurriculars. Not as much as they love billable units, but every bit helps!

Your hard-working Editors, Royce, Phoebe & Matthew

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our team

Meredith Hennessy Writer Abeir Zaid Writer Abigail Khoo Writer

A. N. Onymous

Amy Niedorfer

Esther Lam

Matthew Doran Deputy Editor & Designer

Alanna Wilson Billable Hours

Stephanie Hastie Marketing Director

^ Guest Contributors this edition

Phoebe Bowden Editor

Lauren Eacott Billable Hours

Russell Jones Columnist

Royce Kurmelovs Editor

Want to get involved in the obiter? Drop us an email at theobiter@usalsa.org Go on...you know you want to...

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coming events July to December2012

July Monday 2nd - Tuesday 24th - SALSC Clerkship Scheme Application Period (see page 19) Monday 9th - Monday 16th - ALSA Conference, Melbourne

October Wednesday 3rd - First Year Moot Competition Training (to be confirmed) Monday 8th - Friday 12th - First Year Moot Competition (to be confirmed)

Friday 20th - USALSA Annual General Meetings

Saturday 20th - SALSC Law Ball, Adelaide Town Hall

August

November

Thursday 9th - Law School Opportunities & Career Options Seminar, 10am-12pm, venue TBC

Friday 16th - Criminal Law Cider Night (to be confirmed) Friday 23rd - Trimester Three PubCrawl (to be confirmed)

Friday 10th - Trimester Two PubCrawl Monday 20th - Friday 31st - Trimester Two Exam Period

December September

Wednesday 5th - DAY OF THE NINJA!!!

Wednesday 19th - Trimester Three Lipman Karas Welcome Back BBQ

Monday 3rd - Friday 14th - Trimester Three Exam Period

Keep an eye out for the latest news & updates on events through your emails, as well as on the USALSA Facebook group and on Twitter... facebook.com/groups/26119087577/ twitter.com/usalsa

elections on now! page8

Check your emails and Facebook for how to vote. Join us at the USALSA AGM to see your new committee and find out everything that your student association has been doing for you!

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Ask all your important questions - theobiter@usalsa.org

...because we really care with Lauren Eacott & Alanna Wilson Dear Billable Hours, Since joining the Law School, I have inexplicably become addicted to Morris Dancing. Is there a cure for this terrible affliction? Please help me!

Morrismania SA Dear Morrismania, Morris Dancing is a somewhat unforeseen and yet necessary rite of passage upon entering the Law School, especially when taking the subjects Criminal Law and Evidence. You cannot escape it, as the term seems to be mentioned at least daily, often more.

What you can do is embrace it! Even if the topic makes you cringe and the sight of the words makes you want to throw your exam paper at the invigilator and run, mention to Dr D. Plater that you are a fan and you will almost certainly earn yourself a HD as well as a drinking partner!

BH Dear Billable Hours, My fellow mature age students cannot keep quiet during lectures and tutes? Must we hear their 2 cents worth on every point of law?

Can the lecturer start playing music to drown them out after 30 seconds, much like they do at the Oscars ceremonies?

Your reasonably talkative, law friendly mature age student, SA

school

Dear Reasonably Talkative, Unfortunately law school is nowhere near as classy as the Oscars, and most of the men aren’t nearly as dapper. Therefore the music is not an option.

Also, surely YOU, as a mature aged student yourself, realise the struggles these people are facing? They really just have SO MUCH

KNOWLEDGE and are just trying to do the right thing by enlightening us all with it!

Honestly I’m surprised the lecturers just don’t hand over their roles sometimes, because mature aged students are often older, and make it quite clear they are wiser.

On another note, it can be fun to try and think of interesting ways to halt their chatter. Ideas include faking a fire alarm (using your voice) and secretly calling the police to arrive halfway through the lecture with a noise complaint.

However, if the snores of the other students don’t put them off, there’s no stopping them.

Just sit back, prop a text book in front of your face, and enjoy.

BH Dear Billable Hours, I am nearing the completion of my degree and I can only remember something about a slug in Donoghue v Stephenson and terra something in Mabo. As you can see, I can’t even remember the full citations. Is this selective memory loss or will it all come back to me one day?

Anon, SA Dear Anon, From someone who has been there, it will never come back to you. You and that information are like ships in the night, and will almost definitely never meet again.

Don’t even worry about clogging your head with useless cases when it could be used for far more important things. Like planning your pub crawl schedule. Take full advantage of being able to take notes in to your exams and enjoy your free time!

Disclaimer: BH takes no responsibility for grades that may occur as a result of taking this advice.

BH

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An Early Mornin

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words Abigail Khoo & Esther Lam images Esther Lam

MAY 15 On a chilly seven-degree morning over 300 people took part in the Walk for Justice.

After dragging themselves out of bed, the walkers gathered at 7.30am at the University of Adelaide Law courtyard.

This was not in the name of exercise, but rather to raise awareness and funds for JusticeNet, South Australia’s pro bono clearing house.

The scenic 3km route took the walkers down Frome Road, along the Torrens River and up King William Street towards Victoria Square.

Chief Justice John Doyle, one of the lead walkers, said it was one of the best turnouts.

“I think there was a very good spirit and everyone enjoyed it. [It was] a bit of exercise, which is good for people but the main thing is that they are raising funds for JusticeNet,” Doyle said.

Participants included law students, law firms and representatives from various organisations.

Educational officer at the Legal Services Commission Liz Ahern said the Walk celebrates pro bono work in the legal profession.

“There’s a nice spectrum of all these services that

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work together and cooperate and try and give access to justice to people in South Australia,” Ahern said.

“There’s the commission, there are the community legal centres, the Litigation Assistance fund…the ones they can’t help are the ones JusticeNet often can.”

Support for the not-for-profit organisation has been growing steadily in the private sector, encouraging more lawyers to get involved.

John Kain, from Kain C+C Lawyers, said his firm has been part of many community projects such as a housing legal clinic for the homeless on Hutt Street, building homes for orphans in Uganda and running a mentoring program for disadvantaged youth.

“So what we are doing through JusticeNet is consistent with the core underlying focus of the business to actually contribute to the community,” Kain said.

“So that’s really the catalyst for us getting involved.”

Hannah Watson, from Thomson Lawyers, said it was her first time joining the Walk for Justice.

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ng Stroll for Justice Fast Facts

“It’s a fantastic cause. It’s nice to be able to get out and be involved in something that you might not necessarily encounter in your day-to-day work.”

The walk finished with a light breakfast at the Hilton Hotel.

Robyn Layton QC, South Australian of the Year 2012 and a lead walker, gave an inspiring speech to end the morning.

“JusticeNet is a very fledgling organisation. It only started in 2009, but already in that time, over one million dollars of free bona fide legal aid has been given and that’s an astounding outcome,” said Layton.

But she said a stronger support base is needed to give the best advantage to people who fall through the gaps.

“We’ve got to get more people involved both in contributing and also being prepared to do pro bono legal advice and assistance so it’s not the same firms that are doing them all of the time,” Layton said.

“It’s a wonderful organisation and the fact that the legal profession which sometimes doesn’t have such a great reputation can be seen to be doing it for others, is a wonderful thing.”

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This is the fifth year for the Walk

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Adelaide’s Grand Total: $19, 568

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Last year, the Walk raised $34,000 nationally

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It is held on National Pro Bono Day

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The walk is based on the London Legal Walk

Some of the other lead walkers...

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Greens Spokesperson for Legal Affairs, Senator Penny Wright

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SA Shadow Attorney General, the Hon. Stephen Wade MLC

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President of the Law Society of South Australia, Ralph Bönig

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President of the SA Bar Association, Mark Livesey QC

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Chief Magistrate, of South Australia, Elizabeth Bolton

“Legal assistance is very important and JusticeNet does a good job and I would like to support it.”

Chief Justice John Doyle “We have raised over $17,000 in South Australia alone. We have serious bragging rights over the other states.”

Tim Graham More on the Walk for Justice over the page...

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Fundraising, a walk in the park

words Amy Niedorfer

Raising over $4,500, Fisher Jeffries Barristers and Solicitors took out the title of highest fundraising team in this year’s JusticeNet SA’s Walk for Justice, with a lead of over $2500.

Fisher Jeffries partner and team captain, Nick Linke, says the whole firm got behind the cause, with staff revealing their competitive side.

“It has become a bit of a competition within the firm to raise the most money, it’s been really good,” Linke said.

“We do a fair bit of pro bono work anyway.

Especially the young graduates… “[They] are really into social justice and they have really taken to it too.”

Linke, who has been involved with JusticeNet SA since its launch in June 2009, recognises the value of the work they do and the need for financial support, saying he has every intention to continue to be involved and support the cause.

“It’s something that everyone appreciates that there is a gap in the ability of the system, not everyone can afford legal advice there are little gaps and JusticeNet provides that safety net so we’ll keep doing it,” he said.

Taking every opportunity to fundraise Fisher Jefferies created a cake auction, which involved staff bringing in cakes to support the walking team, and raised an additional $550.

“The whole firm stopped at morning tea time and … came in and bid on cakes,” said Linke “There was a fair bit of pressure to buy the cake of the person you were supporting.”

Although recognising the importance of the cause, Linke says taking a fun approach was the best way to get everyone involved.

“We turned it into fun…people really got on board with great enthusiasm,” he said.

First time walker, Cristal Opacic even recruited

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assistance from family to raise money for Walk for Justice.

“We had Grandma make some cakes which we auctioned off,” Opacic said.

Crediting the generosity of her grandmother and friends, Opacic was not only the highest fundraiser for the Fisher Jefferies’ team, raising almost $800, but the highest fundraiser overall.

“I’ve got some generous friends, kind friends, that were more than happy to donate,” she said.

The competition to raise money spread beyond staff to other firms and family members.

Opacic’s brother Michael, who works for the Crown Solicitor’s Office, also enlisted the help of their grandmother.

“There has been some sibling rivalry because Cristal’s brother works at the Crown Solicitor’s Office…Grandma went in there first and did a cake bake there…so we’ve been competing… to make sure Cristal beats her brother,” Linke said.

However, at the end of the day, Opacic said it is all in good fun and for a great cause. “[JusticeNet SA] is fantastic, and a cause that is necessary and one that we must support. “[Michael and I] did walk all the way together,” she said.

With the recent Walk for Justice being so successful, raising almost $20,000, Linke predicts that future events will be even bigger and better.

“South Australia is smashing it this year, raising more than anyone else and I think we will continue to grow as well,” Linke said.

“I think it will get bigger and better, not just our firm but all of the involvement in all of the firms and other organisations.

“There will probably be a bit more competition between the firms.” the Obiter

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There’s a new Sheriff in Town

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the Obiter sits down with the man charged with taking South Australia’s youngest law school into its next era

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words Abeir Zaid image courtesy of the UniSA School of Law, edited by the Obiter

From growing up in Sydney, to undertaking research in the United States and working in countries like Hong Kong and England, renowned international and corporate academic Professor Roman Tomasic is the newly appointed Dean of Law at the University of South Australia.

Coming from Durham University in the United Kingdom, Professor Tomasic says his five year experience at such a prestigious university will enable him to provide the UniSA’s Law School with fresh ideas for its development.

“It is important to draw lessons from that kind of university...that benefit the new law schools, such as what we have here,” he explains.

Asked why he made the move to Adelaide, Professor Tomasic says that being an academic specialising in corporate and commercial law it is always good to shake things up and broaden horizons.

“Incorporating international connections, just like law students that do their law degree...might do masters, might do something overseas just to keep their degree interesting, academics are the same.”

Professor Tomasic wants to build an institution. He says that while UniSA offers exciting leadership and teaching positions, what excites him the most is that there is so much potential for further development.

“I am trying to build an even better law school at the University of South Australia” say Professor Tomasic.

UniSA Law School is not Professor Tomasic’s first project; he was also involved in the development of the University of Canberra and Victoria University’s law schools.

“I would like to see [UniSA Law School] in the top 10 Law Schools in Australia and internationally I want it to be recognised that there is an important sector for legal education in the University of South Australia,” says Professor Tomasic when asked where he would like to see the UniSA Law School five years from now.

The new Dean believes strongly that the law school will develop vastly in regards to his interest in commercial and corporate law.

Development will include more staff and new programs, including masters programs for commercial law and international trade law.

“I think the time will see a more substantial foot print of law in the University,” he says.

Even though it is something many law students find maintaining a good balance between study and social life, Professor Tomasic believes the best advice he can give to students is to keep a healthy, balanced life.

However, before you head out to the pub, the new Dean says good academic performance should be a priority.

“At the end of the day what does count is your performance in the subjects you do... keep a good position to try and maximise performance in this stage of your life.” the Obiter

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They must have been bonkers A look at how mental illness is treated in the legal system

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words Meredith Hennessy

“She went crazy.”

“They must have been bonkers.”

“What an insane thing to do!”

Whenever we talk about crime it is these terms that are often used. However, the treatment of mental illness in our legal system is widely misunderstood.

Consequently, society continues to marginalise and perpetuate stereotypes of mentally ill accused.

Though life in prison is heavily depicted in the media, TV Shows, documentaries and books there is still much confusion as to

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what becomes of offenders who are found to be not guilty on the grounds of insanity.

The answer is; they become forensic patients.

In South Australia, forensic patients undergo treatment through involuntary admission at James Nash House.

The facility in Oakden has recently come under fire from the Law Society of South Australia and the Australian Medical Association (AMA) for failing to meet the demand for beds in secure mental health care.

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features Less than 10 per cent of prisoners who require acute mental health care are able to be admitted to James Nash House. When the facility is full, prisoners are taken to the Royal Adelaide Hospital instead.

The history of insanity as a legal defence dates back to Ancient Greece and Rome. In modern law the first complete transcript of a trial where insanity was used as a defence was in 1724.

“Potentially these people will remain incarcerated beyond their parole period because they’re not getting adequate care,” Law Society President Ralph Bonig said.

The history of insanity as a legal defence dates back to Ancient Greece and Rome. In modern law the first complete transcript of a trial where insanity was used as a defence was in 1724.

“Alternatively, if we release them without having proper treatment or their condition under control, there’s a chance of reoffending.”

The Law Society has taken a stand on the treatment of mentally ill prisoners.

The M’Naghten Rules, a series of hypothetical questions on the defence of insanity asked by the House of Lords in 1843, provide the historical legal basis to the insanity defence in most common law countries.

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As law students, we have a responsibility to understand mental illness as much, or more so, than the rest of the community.

Those who follow careers in Criminal law will come into contact with people who have suffered from some form of mental illness.

And even within our own profession, levels of depression and anxiety are higher than other occupations.

A person may also be found to be mentally unfit to stand trial. Psychological assessment must be sought before either provision can be applied.

On Wednesday the 23rd of May, I spoke to the Executive Director of SANE Australia Barbara Hocking OAM. Hocking works to reduce the stigma surrounding mental illness through community education.

Meredith Hennessy: Many people perceive those who suffer from a serious mental illness as a physical threat to other people.

It has been shown that a person suffering from a severe mental illness, such as schizophrenia, is no more likely to be violent

towards others than any other person. Why do you think this myth exists?

Barbara Hocking: It is little known that those who suffer from severe mental illnesses are much more likely to be a victim of violence than a perpetrator. The people who do commit violent offences are often those who have not relieved any treatment for their illness. This may be because their families may have tried to and were refused, or they simply may have been unaware of what was happening to them. It is in fact, males between the ages of 18 to 30 who have a history of drug or alcohol abuse that are most likely to commit violence.

MH: And yet, young men who drink are

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What I would like to see is services made available as early as possible and as long as needed

somewhat glorified in our culture?

BH: Yes, and unfortunately, those with undiagnosed mental illnesses often try to self-medicate with readily available substances.

MH: Why do you think it is that mental illness is treated differently than tonsillitis or a broken leg?

BH: People are not yet as informed and understanding towards, mental illness as they are towards tonsillitis. The fact that most mental illnesses do not follow the standard pattern of – condition – diagnosistreatment – cure means that disorders such as depression are not understood as illnesses that can be treated and recovered from. People who have a mental illness are just a capable at leading a full, normal life as others; they just need to manage their illness. They just require extra help and support.

considering mental illness as a defence or a mitigating factor is entirely justifiable but the media’s irresponsible reporting can lead to confusion and fear.

For example, one headline I read some time ago was “Mental Illness gets Hijacker off the Hook”. This is wrong on so many levels.

The first being, that I would not consider involuntary admission at a secure mental health facility “off the hook’. The second was that had the person’s mental illness received any treatment previous to the offence, they would never have ended up committing the hijacking in the first place.

MH: Do you think the current treatment offered to forensic patients encourages recovery?

BH: Yes, in fact. Forensic patients receive the most well-funded and strictly enforced mental health care of any. Recovery is more encouraged there than anywhere else.

Another reason this attitude towards mental illness exists is that until recently the only information people heard in regard to mental illness was in association with violent crime. This word association by the media is very powerful. The amount of reporting of violent mentally ill people is completely disproportionate o the number of sufferers.

The media ignores people diagnosed with mental illnesses who manage their illness and continue to contribute in the workplace and in their communities. Only in recent years has more positive and accurate reporting started to change these attitudes found previously in the community.

MH: Do you believe law students, such as myself, should receive more education of mental health?

MH: Do you believe that the reporting on mentally ill defendants in Australia’s legal system contribute positively or negatively to the community’s attitude towards mental illness?

BH: What I would like to see is services made available as early as possible and as long as needed and the community to understand that there should not be any shame in seeking treatment for mental illness.

BH: When it is used appropriately, I believe

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BH: That is a possibility, as your future profession is heavily affected by it.

Lawyers have some of the highest rates of depression and anxiety, but as they are good communicators and organisers are usually able to seek successful treatment. The community at large should be offered more education in regards to mental health.

MH: And finally, if you could change one thing in regards to everything we have talked about today, what would it be?

SANE Australia is a national charity working for a better life for people affected by mental illness – through campaigning, education and research. For more information visit www.sane.org

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2012 South Australian Law Students’ Council Clerkship Scheme The Clerkship Scheme aims to achieve uniform clerkship application dates, making it easier for students to know when their applications are due.

This year, the key dates are: Applications Open: Monday 2 July 2012 Submissions of applications close: Tuesday 24 July 2012 (5pm) Commencement of interviews: Tuesday 7 August 2012 Offers of clerkship: Tuesday 4 September 2012 (9am) Communication of decision: Wednesday 5 September 2012 (9am)

Participating Firms:

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from the desk of Knowler & Rickett...

UniSA School of Law’s favourite double act explain the value of private law

“PRIVATE LAW -A RICH DISCIPLINE”

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words Jane Knowler & Professor Charles Rickett images UniSA School of Law

In Learning the Law, Professor Glanville Williams states that ‘law is the cement of society and also an essential medium of change.’

He adds that ‘one of the layman’s inveterate errors is to suppose that the lawyer is largely – even exclusively – concerned with criminal law… In fact the law is divided into two great branches, the criminal and the civil, and of these much the greater is the civil.’

These statements are as true today as they were when he published the first edition of his book in 1945. But the uninitiated, whether lay person or commencing law student, might well doubt this assertion. After all criminal law is the visible, sexy face of law; its ubiquitous presence in films, TV shows, novels, plays and newspapers gives it an undoubted prominence in contemporary society. But is that prominence deserved? Unequivocally not!

As most law students discover, the law is divided into two main branches – private law and public law. Private law is about the law

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that governs the relations between citizens in the community and determines how we transact with each other.

Public law concerns the relations between the various organs of the State and its citizens.

Constitutional and administrative law fall into the latter. So too does criminal law. But, speeding offences and parking infringements aside, it is unlikely that many of us will come into contact with criminal law whereas we will all, every day of our lives, come into contact with private law.

Private law is about real life stories which happen daily. On a typical morning I park my car in the Wilson car park, hare off to the gym and then buy a much needed coffee from Phat. All of those events involve me in the private law of contract – my monthly gym membership; my daily parking ticket; my three-hourly coffee purchase!

I work hard at UniSA all day (employment law; contract law). At the end of the day I go back to my version of ‘the Castle’ – a small cottage

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that I own (property law) next to a railway line with very noisy screeching trains (the noise is a nuisance (tort law)).

with $10,000 which I gleefully withdrew and spent. The bank then discovered its error and sent me a letter saying I had to repay it.

My driving skills aren’t great – yesterday I scraped the side of someone’s car while reversing. Of course the other driver will sue me for damaging her car (tort law) but fortunately I have insurance (contract)...

Can I turn round and say ‘Tough luck Bank – your problem.’ Unfortunately not. I was unjustly enriched at the Bank’s expense – unjustness in this context meaning the mistake made by the bank.

I guess by now you have got the drift. Private law, not criminal law, is ubiquitous. It is the staple of our daily lives. It consists of the events that happen in real life and not on TV. It comes to us from common law judges who, over hundreds of years, have articulated law in their judgments.

All these events embody the rights and duties of parties. If you fail to perform the duty you owe to me then I can go to court and seek an order that you perform your duty. In that way I am able to vindicate my right.

Lawyers tend to list the different areas of private law by putting them into discrete boxes – contracts, torts, trusts, property, agency, corporate law etc. But as Professors Birks and Rickett have demonstrated, there is a more intellectually satisfying way of conceptualising Private Law. Instead of listing categories of different subject matters look instead at the nature of the events which underlie these areas. One important event is consent. Our society is based on individual freedoms – we give priority to the autonomy of individuals. Consent/intention maximises our freedoms.

Contracts and express trusts are underpinned by consent - they manifest our freedom to interact with each other.

Another event is wrongdoing. When I breach a contract with you or negligently drive my car and injure you I commit a wrong against you (breach of contract /tort of negligence) which gives you legal redress against me.

Rights and duties matter. Their exposition by the courts and by you as scholars of the law ensure that we will continue to live in a system where, in the words of Atticus Finch, decisions are made in the courts of law and not in the courts of men’s hearts.

The development of our system of law which gives us security in property and contract is one of the greatest achievements of the human intellect. You are now part of that tradition.

It’s exciting!

Editor’s Note the Obiter never thought it would see the day when the term ‘unjust enrichment’ was used in one of its articles - at least without some sort of pun or innuendo...my, how we’ve matured.

A third event is unjust enrichment. Assume that a bank mistakenly credited my account

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Looking at theWorld

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words Phoebe Bowden images taken at the Art by Prisoners Exhibition

Unlike most exhibitions on opening night, the artists were notably absent.

words “prisoners” and “artists”.

A model motorbike caught my eye.

Intricately detailed, it shined like pressed metal.

The exhibition is part of a Flinders University study into the impact art has on prisoner’s lives during and beyond their incarceration.

The description read: “I made this trike out of matchsticks and paddle pop sticks which I cut with nail clippers.”

“People tend to think of prisoners in terms of their deficits, needs and risks,” said project coordinator Jeremy Ryder.

“[I] then painted and varnished. I made holes with a paper clip heated with a lighter, used Coke can bottoms for the back rims and foil off coffee tins for the wheels.”

“This is a project that tries to look at what prisoners’ strengths are, and tries to recognise and reward those strengths by displaying their art in public and giving them a certificate of acknowledgement.”

This person’s impressive.

resourcefulness

was

It was the first of many times that night I found my assumptions were incorrect.

Entries were received from seven South Australian prisons and thirty-two entries were chosen to be on display. All the participants were interviewed beforehand.

No theme linked those who had contributed work. Instead it was just the interchangeable

“I asked questions like what it means for them to create art,” said Ryder.

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through IronBars

Mostly they explained how art allowed them to express themselves and feel a sense of achievement.

“I paint because it’s the only thing I have left in the world that I can truly call my own,” said one participant.

“I’ve been in and out of jail for most of my life so I know that art is something us black fellas need. It helps us in so many ways,” said another.

An independent panel of artists praised the high level of work and have given twentytwo awards.

The project is based on the Koestler Trust’s Art by Prisoners Program in the UK, which celebrates its 50th year in 2012.

It taps into the art classes offered in the Offender Development Program run by the Department of Correctional services.

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There are many benefits of prisoners being involved in art classes.

“In Port Augusta, art classes are used as an incentive to get people into literacy and numeracy classes. A number of the literacy and numerously programs are targeted at indigenous people,” said Ryder.

While the standard of the entries was high and not all entries were displayed.

“This project is about being inclusive, it’s not about trying to make the cut it’s about participation,” Ryder said.

“If all goes well there is scope to implement this project, hopefully as an annual event.”

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WHO SAYSWE HA words Matthew Doran images courtesy of the UniSA Architecture Museum

T

The building on the corner of Hindley and George Streets sits on one of the first allotments sold after the City of Adelaide was established in the 1836.

South Australia was still a very young colony and much was being done to encourage free settlers to pack up their lives and make a fresh start at “the end of the earth”.

A far cry from the West End we know today, the land was originally used for housing, small workshops and stables.

But it is the people who have owned and occupied ‘Town Acre 58’ who make the building’s story so interesting.

Looking back to the mid 1800’s, the landowners were Edward Meade Bagot and Sir Richard Chaffey-Baker.

Edward Meade Bagot was a pastoralist and stock agent from County Clare, Ireland. Soon after he and his family emigrated to Australia, he became a director of the South Kapunda Mine.

He transferred his ownership of the land to his nephew, John Bagot in 1885.

John Bagot was a well known pastoralist whose father, Charles Hervey Bagot, was one of the first settlers of South Australia.

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Part of a well-known North Adelaide family, John Bagot was also a member of the House of Assembly.

John went on to marry Lucy Ayers, daughter of Sir Henry Ayers and joined the family responsible for Ayers House, the mansion that sits across from the Royal Adelaide Hospital along North Terrace.

John and Lucy’s son, Walter Hervey Bagot, became an architect. Some of his most notable work includes Bonython Hall and the Barr Smith Library at the University of Adelaide.

Walter Hervey Bagot was a founding partner of Woods and Bagot, now known as the global design firm Woods Bagot.

The firm used to be known as Woods, Bagot, Jory & Laybourne Smith – with UniSA now encompassing the Louis Laybourne Smith School of Architecture.

As well as numerous high-profile international projects Woods Bagot is best known for its current integrated design work on the new South Australian Health and Medical Research Institute (SAHMRI) being built across from City West campus on North Terrace.

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AVE NO HISTORY?

A close conexion Sir Richard Chaffey-Baker was educated at Eton and Trinity College, Cambridge.

He became a barrister at Lincoln’s Inn in London before returning home to practice in 1864.

Upon his return to Adelaide, ChaffeyBaker practiced as a barrister before becoming the first South Australian-born member of the colonial legislature.

In the late nineteenth century, Chaffey-Baker took a keen interest in the federation movement among Australia’s colonies. He was elected as a representative of South Australia in the constitutional conventions of the late 1890’s, before running for the first Australian Senate.

And he was successful, becoming the first President of the Australian Senate.

Chaffey-Baker sold the land in 1905.

Beer

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the headquarters of the South Australian Brewing Company, a company with a long history dating back to the original West End Brewery in Hindley Street who are responsible for the “West End” brand.

Heritage-listed, the building is highly regarded for its design and structural integrity.

The old West End Brewery sat on the south side of Hindley Street but was demolished in the early 1980’s.

Tertiary incarnation The building that now houses the School of Law was then sold to the Australian Institute of Management (AIM), an organisation providing professional development courses and post-graduate qualifications in management.

AIM owned the building until 2007 when UniSA decided it would be a fitting home for their new law school.

The land changed hands a few more times before the building as we know it today was constructed in 1941 by prominent architect Kenneth Milne.

So now, law students at UniSA not only have a grand building to work and learn in, but also something talk about with those who claim our school lacks an interesting history.

Milne had been commissioned to design

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The Extra-Curricular Quandry: Celubrious Celery can Counter Corrupt Cats... Granola

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words & images Russell Jones

It was after a quiet and peaceful walk that I decided to take stock of my life. The crisp autumn weather soothed my ticking mind as I strolled through the beautiful falling leaves.

The stresses of law had left me feeling down.

The continued pressure and competitive nature of the field had me worried about future job prospects.

I needed help.

On my walk I sought counsel from my confidant, Felicity the talking burrito. After an awkward moment where I suggested we discuss this over Mexican food we got to talking. It was there Felicity dug into my

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soul and found the salsa-infused goodness within.

I needed more extra-curricular activities on my CV. I must admit that by the time Felicity was able to communicate this to me (English is not her native tongue) I had already figured this out. At this point I was merely indulging her.

But what should I participate in?

Luckily at that exact moment a friend of mine called me up telling me to enter the USALSA Mooting Competition, explaining that it would be the perfect opportunity to hone my advocacy skills and get something on my CV that would set me apart from others.

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jones j It seemed strangely convenient, especially as I hadn’t voiced my concerns to him at all, but I felt it was best not to question a good thing.

So Mooting it was!

My previous mooting experience consisted of nothing more than dressing up in a suit, standing in front of a mirror with Boston Legal playing in the background and singing sentencing pleas into a hairbrush…

You know, the kind of stuff every teenage girl does.

So I clearly had enough experience, but that did not stop the nerves. The thought of being caught out on a point of law, standing there with nothing to say to a room full of judging faces (conveniently titled something like “judge”) and laughing peers was enough to make my frijoles curdle.

“

were rather intense and stressful. Felicity got many a call over those two days.

By the time Wednesday (the day of the moot) came around my mind was a collective pile of case law, statutory law and a line by line recount of every Will Smith movie, ever.

His non-offensive brand of family rap makes me smile, ok?

I was ready, confident and looking damn fine in my suit. This all changed the moment the competition began.

Hanging around the moot court just before the competition my nerves hit boiling point as I saw everyone else with their much more impressive looking notes. I began calculating what illness I could fake that could get me out of the situation.

”

“Screw extra-curricular activities!” My mind screamed at me, “Just move to Hawaii

But deep inside I knew I would never be able to keep up with the fast-paced life of a bartender. Law would have to do.

I called some friends who had experienced it before, looking for reassurance.

“The questions they throw at us won’t be that bad will they? I mean, they know we’re only beginners right, so they won’t be too harsh?”

I hopefully asked my so-called “friend”.

“Oh no, it’s just as bad as you think it’s going to be, but as long as you know your stuff you should be ok,” he responded.

You mean I have to actually read all of these damn cases and know them inside out?

What am I, a lawyer?!

I had one week. One week to get my head around all of the relevant case law, form a decent argument and get all of my regular uni work done. There was only one way.

Rocky training montage.

But by Sunday all I’d done was work out and punch frozen meat, so Monday and Tuesday

and become a bartender, there will be less pressure, more sun and the biggest problem you’ll have in life is what is in a vodka and lemonade.”

But deep inside I knew I would never be able to keep up with the fast-paced life of a bartender. Law would have to do.

Sitting at the bench I looked behind me I noticed that Felicity had come to cheer me on. I knew it was a special occasion as she was wearing her brand new spicy salsa dressing. At this point I was beginning to think I was hallucinating, but my junior council Reginald the Space Iguana assured me I was good to go.

I should catch up more with Reginald, he’s such a nice guy. I mean, all he talks about is his space exploration and compares how ‘crap’ Earth is to the rest of the universe, but he’s always there to lend a hand and is always a laugh at parties.

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jones j That reminds me, it feels like I have plans this weekend but I can’t remember. I really need to know as well because Peter the overly polite penguin invited me to his igloo this weekend and I’m not sure if I can go or not… Or maybe that was my plan? And why are all of my friends personified animals and/or food stuffs?

Anyway, no time for this. I’m in the middle of a moot. Are we starting yet? Oh crap it’s my turn!

I could hear my heart beat ringing through my ears. My stomach felt like it was going to leap out of my mouth if it wasn’t scared off by the intimidating atmosphere in the room.

I reached the podium, put my notes down, took what I thought would be my last breath on this Earth and then...

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It all came pouring out. Who would have guessed all of the study, knowledge and practice would actually pay off. Mind you it wasn’t at the level of my Boston Legal fantasies, but for a first attempt that I was afraid would end in me on the floor in the foetal position, it wasn’t bad.

As I walked out of the room with my head held high and a place in the next round of the competition somehow achieved, I gleefully headed to the pub for a celebratory drink.

On my way home, after a delightful chat with other competitors, there was the realisation that I would have to do it all over again.

Crap. the Obiter

words A.N. Onymous, LLB

“Jackets are to be worn only when meeting clients” said the firm’s policy guide.

Nah, I thought, this place can’t be that draconian. I was sitting in the cold, windowless dungeon of an office to which the lowly clerks were banished, huddled in the beer stained suit I had only previously required for twentyfirsts.

My supervisor appeared in the doorway, fixed me with a glare and asked “Why are you wearing your jacket?” as if I had committed some great act of blasphemy. Such was my introduction to law firm life. My supervisor subsequently forgot about me until 7pm, at which time I was allowed to leave, passing two young associates returning to the office with take-away dinner.

But we must pay our dues, right? It gets better... right? I sought reassurance from a recently hired associate, aged 35. He told me his first assignment was to locate a beachfront property in Tasmania for the managing partner, with “somewhere to park the yacht.”

My duties were not much better. They consisted mainly of murdering trees via photocopier at the Supreme Court Library, because apparently barristers can’t read LexisNexis printouts.

As I stapled the warm pages together I thought, when does the reward come?

When, figuratively speaking, do I get my yacht?

Turns out, it would take longer than I was prepared to wait.

Things will be different in a smaller firm, I told myself, when I started my graduate job. From one look at my prospective employer I knew he would be trouble. Trust your first impressions, kids.

On my first day the office manager set up a meeting just to warn me about my new boss, who I will call Mussolini.

The meeting went for 45 minutes.

Nah, I thought, he can’t be that draconian. I was banished to another cold, windowless dungeon and didn’t see a client for the next year. By this time a window had replaced a yacht as the object of my career aspirations. But at least I could wear my jacket.

After three months of probation, Mussolini opened with “I’m surprised how little you know.” Other choice Mussolini quotes during those dark times included, “You’re not a lawyer, I’ll tell you when you’re a lawyer”, “You may leave if you have nothing intelligent left to add” and, “You would be better off as a housewife.”

Things had to, and did, change.

After exactly one year - so as to have something on my CV to show for my ordeal - I quit and effed off to Europe for seven weeks.

Much soul-searching ensued. Sure, I had experienced things that made the recent film “Horrible Bosses” look like Sesame Street, but I realised it was the mercenary nature of private practice that I disliked. To survive long enough to make partner you must love the law itself, in any setting. And I did not.

However, I realised law school was not wasted; I still had one of the best general educations money could buy.

For those of you who are still reading and care, I am now working in-house and much happier. Choose your first job wisely, disregard the expectations of others. Your law degree is more versatile than you think.

Confessions of a Corporate Drop-out

J

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the Obiter Editorial Note - Please note the opinions expressed in this article are that of the author, who was not a UniSA Law student. The article is not intended to reflect the attitudes or experiences of the Obiter Staff, USALSA or UniSA Law Students.

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identityparade < Lawn Bowls Night Camilla Jeffries & Esther-Luoise Burgess

Lawn Bowls Night <

Jason Leonardis

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<

Comps 2012 - Russell Jones & Nicholas Cutts

< PubCrawl - Alanna Wilson, Kirsty Trimper & Angela Dimopoulos

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all the usual suspects, snapped whilst out and about Lawn Bowls Night - The whole crew

identityparade

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Careers Speed Dating

<

<

PubCrawl - Eleanor WhishWilson, Natalie Simpson & Tamara Economou

PubCrawl - Melissa Beasley, Melissa Davies, Callum McPherson, James Catley & Micky Drew

Careers Speed Dating Nicholas Twohig

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obiter is the new the

student magazine for law students at UniSA.

While created by a core group of students, we can’t do it all...

that’s why we need your help.

We want your contributions to this magazine to ensure it really is a magazine for all law students.

Ifknow youofhave ideas for columns, an issue that needs addressing, or want to submit a story yourself, we want to hear from you... get in touch with our friendly team...normally creating a ruckus in the library or ‘studying’ at the pub

or drop us an email at theobiter@usalsa.org

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a USALSA publication © 2012