Summer 2024 Edition

LAW SOCIETY OF THE ACT JOURNAL

JOURNAL

Including a hearing-impaired juror: an Australian first

Reasonable working hours: our culture of overwork

2024 Ethics Series

Connecting

Capital Gains Tax Gains Tax

CGT was introduced in Australia on 20 September 1985 and, broadly, applies to capital gains realised on the disposal of ‘CGT assets’ acquired after that date.

CGT assets take many forms and include real property, shares in a company, units in a unit trust, goodwill, contractual rights, foreign currency and cryptocurrency.

CGT is typically triggered on the occurrence of transaction types known as ‘CGT events’. CGT law lists numerous CGT events, most of which involve a taxpayer disposing of their interest in an asset.

CGT is not a separate tax, rather CGT laws serve to determine the extent to which a capital gain is subject to income tax.

The amount of the capital gain realised is calculated by deducting the CGT asset’s cost base from the consideration received, or deemed to be received in some cases. If the asset has been held for longer than 12 months, the capital gain is generally discounted by 50 per cent.

Before applying the general discount, capital losses must be deducted from the gross capital gain. The resulting net capital gain is then aggregated with the taxpayer’s other taxable income and taxed at the rates ordinarily applicable to that kind of taxpayer.

Taxpayers such as small businesses might be entitled to avail themselves of other concessions to further reduce the extent to which the capital gain is taxable. Exemptions may also be available for certain types of assets such as homes and motor vehicles.

actlawsociety.asn.au

EXECUTIVE COMMITTEE

President Rob Reis

Vice-Presidents Andrew Allan Vik Sundar

Secretary Kevin Robinson

Treasurer Mark Tigwell

Council-elected member Amanda Wescombe

Immediate Past President Lisa Quilty

COUNCILLORS

Catherine Coles Chris Donohue

Andrew Giddings Suzanne Howarth

Liz Hug Sarah Milson-Mahy

Louise Morris Daniel Paterson

Adam Peppinck Amanda Wescombe

STAFF

Chief Executive Officer Simone Carton

Executive Officer Rebecca Wakefield

Operations

Finance & Business Services Manager Lea McLean

Bookkeeper Kathleen Lui

Database Administrator & IT Support Officer Casey Magnussen

Administrative Support Janette Graham

Regulatory Services

Regulatory Services Manager Greg Williams

Licensing Officer Nicole Crossley

Regulatory Support Officer Tara Rimes

The taxpayer’s tax residency status is also relevant.

The law requires CGT-relevant records to be retained for 5 years after the disposal of a CGT asset. If an asset has been held for 20 years, records relating to its acquisition must therefore be held for 25 years.

Nexia’s tax law specialists have in-depth knowledge of taxation law to assist legal practitioners, accountants, taxpayers – and tax-exempt entities – to navigate CGT and other complex taxing regimes, to ensure compliance, and to minimise tax liabilities, where lawfully permissible.

Our Tax Law Specialists Roger Karlsson

Regulatory Support Officer Praju Pradhan

Engagement

Manager Engagement/Deputy CEO Jaime Shields

Senior Policy Officer Elsa Sengstock

Member Engagement and Events Manager Kara O'Brien

Communications Officer Brian McIver

Member Engagement Officer Olivia Ng

Committee Administration

Coordinator Jayden Alderman

Office Administrator Tina Ryan

CONTACT

Outgoing President's Report

‘Thank you for your hard work and support.’

Welcome to the Summer edition of Ethos, the last for 2024 and my last as the outgoing President of the Society. I welcome Rob Reis to the role and congratulate him on his election. I will continue to serve the Society’s Council and membership as Immediate Past President.

The Christmas period is a time when we traditionally take stock of what has happened over the last twelve months and look ahead to the coming year.

During my address at the Commencement of the Legal Year Ceremonial Sitting in January, I outlined three areas of members’ work/lives that the Society sees as being crucial to the success of our profession:

The appropriate balance between professional and private lives

Much of the Society's work this year has been in (or at least informed by) the member wellbeing space. This work has been significantly underpinned by the results of our Biennial Member Survey in 2023. Balancing personal and professional lives is a challenge not without its complexities, requiring attention, intention and, sometimes, compromise. Being sensitive to our member’s emotional needs remains a top priority for the Society, and I remind all members of the Society’s Employee Assistance Program.

Dedicated adherence to a high standard of ethics and ethical practices.

This year the Society facilitated a four-part series of Ethics seminars, covering fundamentals including obligations of disclosure, ethical supervision of junior staff, ethical practice for solicitors, and navigating confidentiality and conflict of interest. Sessions were led by recognised experts in the topic areas, and the overarching feedback from attendees was that the lessons learnt would prove invaluable for their careers. Readers can find more information on the Ethics Series in our article on page 16.

It goes without saying, that ethics within the legal profession forms the foundation of trust between lawyers, their clients, and the public, ensuring the integrity and credibility of the legal profession. Lawyers hold significant power in advocating for clients, many of whom may never have engaged with legal processes before.

Adherence to ethical standards ensures that this power is not used for personal gain or to manipulate legal processes for improper ends.

The promotion of collegiality and mentorship

In this respect, 2024 has seen a continuation of the previous years’ tradition of regular networking and social events open to all members and an additional suite of events created specifically for new lawyers. I would especially like to draw attention to the Practitioner Support List (which can be found here); the List comprises senior practitioners who volunteer their time to give informal advice and support, especially for matters that you might not be able to discuss with colleagues or a supervising partner. This is a completely free and confidential resource, and I am extremely grateful that we have been able to implement it.

I personally have had the incredible privilege as President to meet with many of our members at events throughout the year, who are at all stages of their careers and working in varying aspects of the law in the ACT, be it private or public practice. A particular highlight was recognising those practitioners who received acknowledgement of 40 years’ service to the profession at the Spring Members Dinner. I was in very esteemed company indeed.

Lastly, I would like to thank the Council, the Executive and the membership for their support this year. Whether in-person or online, it has been considerable and very much appreciated.

Of special note has been the Society’s staff, who have delivered an extensive range of services to members. Your efforts, often behind the scenes, have played a pivotal role in the success of our initiatives, and I am truly thankful to each of you. It has been a distinct privilege to work with such a capable and hardworking team, and I am profoundly grateful for the partnership we have shared.

With my very best wishes for a safe and happy Christmas period, Lisa Quilty,

IMMEDIATE

PAST PRESIDENT, ACT LAW SOCIETY

Incoming President's Report

‘Being there for you in 2025’

Dear members of our great local ACT legal profession.

This is the first of my messages to you in Ethos as President of the ACT Law Society. You will find that throughout my time as President I will be providing you with a consistent message of strengthening the bond and partnership between your Law Society and you. The strength and influence of the Law Society on your behalf will always be the best reflection of our endeavours to serve and support you, our members, towards your goal of providing excellent legal services to the ACT community and beyond.

I echo Lisa’s welcome to the latest edition of your magazine. It has certainly been a busy year and I am full of positive anticipation for 2025 as we strive towards and thrive in supporting you in the practice of law.

Ethos, your flagship magazine published each quarter, brings you many of the current issues and matters of interest to our profession for your personal and professional reflection and contemplation. The aspiration of the Law Society, led by your Council, is that the content will provide you with a useful mixture of new information, insight, education and, dare I say, enlightenment and entertainment, all of which also reflects what the Law Society plans towards and aspires for your benefit as members.

The Society moves into its new location at 5 Constitution Avenue in February 2025 which will be a most exciting, albeit uber-busy time, for Society employees. The open-plan layout and designated event space will serve our refreshed CPD series in March very well. Formerly a two-day intensive event, the series has been rebranded as “March Mastery” and will run across the entire month of March, affording all members ample opportunity to fulfil their CPD requirements.

The Society regards member wellbeing as vitally important to the health of our local profession and has the Employee Assistance Program (EAP) in place to support you. I would also like to emphasise that all members can contact the Law Society

directly through the dedicated Member Connect number 6274 0333 or email Member Connect. This provides members with access to dedicated staff to assist you with your enquiries regarding membership, practice certificates, and other enquiries and feedback.

I also look forward to continuing our strong tradition of regular social and networking events. As President, I wholeheartedly invite you all to participate in these events, especially if you have yet to attend one. Professionally and personally, I greatly benefit from meeting as many members as is possible at these and other events. I believe you too would benefit both professionally and personally. We in the ACT have the unique benefit of belonging to a small enough profession to positively grow appropriate collegiality whether in practice or ‘in play’. I encourage you to come along and meet your professional peers in a different and otherwise more amenable setting. I guarantee you will enjoy meeting someone you have not previously known or perhaps not met face-to-face despite professional dealings. And, as I have experienced many times, you may learn something interesting or perhaps even useful from a ‘legacy’ or new lawyer regardless of the category to which you may belong. Regularly engaging with your peers in this way positively impacts your mental health at work and in the profession and notably helps to support our new lawyers in the first stages of their careers.

Finally I wish you a safe, restful, and well-earned and deserved break during this important season for family, friends, and yourselves. I look forward to personally meeting as many of you as possible in 2025 and wish you all that you are positively expecting for 2025.

Rob Reis PRESIDENT, ACT LAW SOCIETY

Membership Spotlight

SPECIALIST CONNECT LINES

The Law Society has a contract with Acacia Connection to provide a confidential counselling program (called an employee assistance program, or EAP) for its members. Acacia Connection operates 24 hours a day.

An employee assistance program is a confidential counselling and support service to help members deal with personal or work related problems in a positive way.

Acacia will provide confidential counselling services to people who approach them and identify themselves as a member of the ACT Law Society or as an immediate family member of a member of the ACT Law Society. The program involves short term counselling of up to three hours counselling per member, per year.

The services provided through the program will remain confidential and independent of the Law Society. The Society will not request, and will not be entitled to be told, any particulars of individual members who have used the service.

Below are some of areas where members may benefit from accessing the counselling service:

• Relationship and marriage difficulties

• Family and parenting related issues

Managing grief or loss

Family illness

Depression and anxiety

Stress management

Addictions

Work related issues

Financial Support Service –helps with managing financial difficulties and budgeting

And any other issues you may be faced with in your work or personal life.

It’s easy to connect with EAP Download our App

1. Use the QR code to access our website.

2. Save our website to your homescreen.

3. Open the icon and ‘Chat Now’ from the green panel at the bottom of the screen.

Including a hearing-impaired juror: Case

study of an Australian first

In Australia, jurors are chosen randomly from the electoral roll – if you’re enrolled to vote, you can be called up for jury duty. But up until recently, many disabled Australians have been excluded from fulfilling this vital role in our justice system because of a legal principle that prevents a ‘13th person’ –an interpreter or support person – from being present in the jury room.

Australian-first support

With changes to the local Juries Act in 2018, the ACT became the first Australian jurisdiction to allow ‘reasonable support because of insufficient understanding or disability’. This means that if a person with a disability, or with insufficient fluency in English, is summoned for jury duty, the judge can, where appropriate, make support available to enable them to discharge that duty.

The change removed a barrier that prevented disabled people from fully participating in the justice system, and allows juries in the ACT to be more representative of our local community.

Changes to the ACT Juries Act

In March 2018 the ACT Government made several amendments to the Juries Act 1967 (Juries Act). The amendments

aimed to modernise and streamline jury processes, including reforms to better support the inclusion of people with a disability as jurors.

Introducing the amendments, the thenAttorney-General Gordon Ramsay said that: “Following these reforms, ACT jury provisions will be among the most inclusive in Australia. Disability should not stand in the way of someone being able to participate in jury service.”

Relevantly, the amendments replaced section 16, adding provision for reasonable support to jurors who may require it in order to properly discharge their duties as a juror and added new sections 45A and 45B introducing an oath for interpreters and support people.

The updated section 16 of the Juries Act reads:

Reasonable support because of insufficient understanding or disability

(1) This section applies if a judge is satisfied that a person summoned or

appointed to attend to serve as a juror, and who has not claimed an exemption or otherwise been excused from attendance, may be unable to properly discharge the duties of a juror, because the person—

(a) has an insufficient understanding of the English language; or (b) is suffering from a mental or physical disability.

(2) The judge— (a) must consider if support that would enable the person to properly discharge the duties of a juror can reasonably be given; and

(b) if satisfied that support that would enable the person to properly discharge the duties of a juror can reasonably be given, must make a direction that the support be given.

Lucy McCallum, Chief Justice of the Supreme Court of the ACT.

Examples—support

(1) an interpreter, including an Auslan interpreter

(2) an assistance animal, disability aid or support person

Note An example is part of the Act, is not exhaustive and may extend, but does not limit, the meaning of the provision in which it appears (see Legislation Act, s 126 and s 132).

(3) To determine if support can reasonably be given, the judge may consider the following:

(a) whether the support would impose a disproportionate or undue burden on court resources, facilities and time frames;

(b) if the support would require a non-juror being present during jury deliberations, whether the non juror’s presence would inhibit or restrict discussion, or unduly pressure or influence any juror;

(c) any other issue the judge considers relevant.

(4) If the judge makes a direction allowing an interpreter or support person to assist the person to properly discharge the duties of a juror—

(a) the common law rule against having a non-juror in the jury room is not a relevant consideration; and

(b) a direction to allow a non-juror to be present during jury deliberations is solely for assisting the person to properly discharge the duties of a juror; and

(c) the direction is subject to the interpreter or support person agreeing to make an oath or affirmation in accordance with schedule 1, part 1.1A or part 1.1B.

(5) If the judge is not satisfied that support that would enable the person to properly discharge the duties of a juror can reasonably be given, the judge may discharge that person from further attendance on the Supreme Court under that summons or appointment.

The addition of sections 45A and 45B introduced an oath for interpreters and support people:

45A Oath by interpreter

Before assisting a juror to properly discharge the duties of a juror, an interpreter must make an oath or affirmation in the form stated in schedule 1, part 1.1A.

45B Oath by support person

Before assisting a juror to properly discharge the duties of a juror, a support person must make an oath or affirmation in the form stated in schedule 1, part 1.1B.

The oaths and affirmations are as follows:

Interpreter’s oath

I swear (or the person taking the oath may promise) by Almighty God (or the person may name a god recognised by the person’s religion) that I will well and truly interpret the proceedings and the jury’s deliberations and that I will not otherwise participate in the jury’s deliberations or disclose anything about those deliberations, except as allowed or required by law.

Interpreter’s affirmation

I solemnly and sincerely declare and affirm that I will well and truly interpret the proceedings and the jury’s deliberations and that I will not otherwise participate in the jury’s deliberations or disclose anything about those deliberations, except as allowed or required by law.

Supporter’s oath

I swear (or the person taking the oath may promise) by Almighty God (or the person may name a god recognised by the person’s religion) that I will well and truly support the juror to discharge the juror’s duties, and that I will not otherwise participate in the jury’s deliberations or disclose anything about those deliberations, except as allowed or required by law.

Supporter’s affirmation

I solemnly and sincerely declare and affirm that I will well and truly support the juror to discharge the juror’s duties, and that I will not otherwise participate in the jury’s deliberations or disclose anything about those deliberations, except as allowed or required by law.

ACTCT Disability Action and Inclusion Plan

The ACT Courts and Tribunal (ACTCT) have implemented a Plan to improve inclusive practice.

The ACTCT already has a range of services to assist people with a disability, including a court and tribunal assistance officer, pre-hearing tours of our facilities, access to the National Relay Service, Auslan interpreters, hearing loops, options for transcripts, assistance animals and modified security screening.

The Plan aims to expand on the services already in place, listening to feedback and making improvements to assist people with a disability to access ACTCT services.

Application by a person summoned for jury service for support

The new law was tested in December 2022, when a person with a hearing impairment was summoned for jury service in the ACT Supreme Court. This potential juror asked for the support of Australian Sign Language (Auslan) interpreters.

Jury summons

In August 2022, the ACT Sheriff summoned a person for jury service for a week in December. Through an interpreter service, this potential juror called the Sheriff to advise that they have a hearing impairment and they would require an Auslan interpreter when undertaking jury service.

Following ACT Court procedure, the Sheriff sought information regarding the support required, including costings to provide the support, before making a recommendation to the Chief Justice.

The decision

In an Australian-first decision1 Chief Justice McCallum gave her reasons for directing a jury member be provided with Auslan interpreting services during the empanelment process and, should they be empanelled, the duration of the relevant trial.

The Chief Justice was satisfied that, with the support of Auslan interpreters from the moment of arrival in the Court precinct, during the empanelment process and (if selected) throughout the trial, and provided those interpreters were in turn given appropriate support by the Court, the juror would be able to properly discharge their duties.

As this was the first such determination in the ACT, and indeed in Australia, her Honour published her reasons for reaching those conclusions. Her Honour noted:

“In the ACT, the fact that a person summoned for jury duty has impaired hearing is not of itself a basis for exclusion from jury service.”2

Her Honour determined that Section 16 of the Juries Act was intended to make persons such as this potential juror equally liable to serve in that role, provided the necessary support could reasonably be provided. The section was introduced by the Courts and Other Justice Legislation Amendment Act 2018 (ACT) following a series of inquiries that had recommended legislative change to facilitate jury service by persons with disability.

In a Queensland decision, it had been held that a person with a hearing impairment who required an Auslan interpreter was “incapable of effectively performing the functions of a juror and therefore ineligible for jury service”3 . The principal basis for that conclusion was that, while an Auslan interpreter could be provided to assist the juror in Court during the trial, there was no power to permit that person to assist the juror in the jury room during the jury deliberations, nor any explicit power to require such an interpreter to make an oath or affirmation to maintain the secrecy of the jury’s deliberations. The ACT statute addressed these concerns. Prior to the amendment of s 16 in 2018, the Juries Act conferred a discretion on the trial judge to discharge persons “suffering such mental or physical disability as to be incapacitated for the proper discharge of the duties of a juror” without requiring consideration of support that may allow them to fulfill those duties. However, this was recognised by the ACT Legislative Assembly as inimical to the right of people with disabilities to be protected from discrimination.

While the amendments to the Juries Act sought to address the right of people with any form of disability to be protected from discrimination on that basis, particular focus was placed on ensuring that persons whose hearing is impaired could serve as jurors if they wished to do so.

It may readily be accepted that a person whose hearing is impaired to the extent of requiring Auslan interpretation may be unable, without support, to properly discharge the duties of a juror. Jury trials are mostly conducted orally. Without support, a deaf person would be unable to attend to the evidence, counsel’s addresses, and the judge’s directions. They would also be unable to participate effectively in jury deliberations. That said, the Juries Act expressly contemplates the

provision of an Auslan interpreter as a possible means of supporting a juror to discharge their duties.

In that light, her Honour dismissed the premise that hearing is essential to the proper discharge of the duties of a juror in every case, although she noted there may be particular trials where that might be the case.

Accommodations and costs

In her decision, the Chief Justice considered the accommodations which would need to be made in order for the potential juror to participate in the process.

The Sheriff’s report recommended the provision of two Auslan interpreters for the juror, on rotation for the empanelment process and, if selected as a juror, for the duration of the trial.

It was necessary to hire two interpreters concurrently as they alternate in 15- to 30minute intervals, owing to the intensity of the work. As interpreters were not available in the ACT, travel and accommodation costs were also to be incurred.

At a minimum, the interpreters would be required for the first day of the criminal sittings to provide support during the empanelment process. If the potential juror was empanelled, the Court would then require the interpreters for the duration of the trial.

For the sittings in question and allowing for one day of jury deliberations, the interpreters were to be required for about five days. The total cost was to be in the order of about $10,000 per interpreter plus travel and accommodation.

Her Honour was satisfied that this would not be a disproportionate or undue burden on the Court’s resources or facilities.

The use of Auslan interpreters may have a minor impact on the flow of the trial due to the need to allow time for the interpretation of all words said. As noted in the National Standards for Working with Interpreters in Courts and Tribunals , this may involve repeating some statements, pausing to allow the interpreter to correct an error, or explaining a concept or term to the interpreter. However, unlike interpreters for foreign languages who require the speaker to pause before translating, Auslan interpreters ordinarily translate almost in real time.

Her Honour was satisfied that the effect of providing such support would have a small impact on the estimated time frame of the trial.

The Court also has the facilities to accommodate Auslan interpreters, who are required by the nature of their work to be situated directly opposite the person whose hearing is impaired. There is ample space in front of the public gallery for an interpreter to face the jury pool during empanelment, and between the jury box and bar table for an interpreter to face the juror during the trial. In the jury deliberation room itself there is a large table which has sufficient space for the interpreter to sit opposite the juror. The jury deliberation room also has the necessary facilities for interpreters to rest during their breaks.

Her Honour did not think the presence of the interpreters during jury deliberations would inhibit or restrict discussion, or pressure or influence any juror. The proficiency of Auslan interpreters will ensure that the jury deliberations will not suffer significant delay. Section 16(4)(a) of the Juries Act displaces the common law rule against having a non-juror present in the jury room, and there is now also provision for the interpreters to take an appropriate oath.

The institution of trial by jury relies on jurors complying with their oath or affirmation made at the outset of a trial to give “a true verdict according to the evidence”2 . There is no reason not to place the same reliance on interpreters to adhere to the promise in their oath.

For those reasons, the Chief Justice was satisfied that support in the form of Auslan interpreters could reasonably be given to enable a person to properly discharge the duties of a juror.

Working with interpreters

With approval from the Chief Justice, the Sheriff was able to book interpreters.

Prior to the day of empanelment the Sheriff had ongoing discussions with the interpreter service and provided them with the contact details of the potential juror so they could make arrangements to meet up with them on the morning of empanelling.

On the morning of empanelment the potential juror was processed in the same manner as all other panel members with the assistance of two Auslan interpreters.

The Sheriff met with the interpreters and provided them with the Code of Conduct the Court had developed, and ran through an induction with them regarding the court process.

A meeting between one of the interpreters and the Chief Justice was also arranged to discuss how the empanelment process would proceed. The Chief Justice also provided the interpreter with a copy of the comments she would be making in the courtroom regarding the presence of the interpreters so the interpreter could review them prior to the court commencing.

The interpreter was also provided with a copy of the charges the person was being arraigned for. This was important as the interpreter advised that there are few words in Auslan that cover court language, including indictment, arraignment etc.

The interpreter needed time to consider how to interpret the arraignment and empanelment process.

2 sch 1 pt1.1 of the Juries Act 1967 (ACT)

After discussions in chambers, the Sheriff and the interpreters attended the courtroom to discuss the best way to set the court up to suit the needs of the interpreter and to have minimal impact on the other court users.

Postscript

The juror in question complied with the summons and attended Court for jury duty. Auslan interpreters were present from the time they reported for jury duty, and assisted both with the induction of jurors in the Sheriff’s office, and with the empanelment process in open court.

During that process, it transpired that the juror was unsuitable for jury duty for reasons unrelated to their hearing impairment and they were excused.

Lessons learned

Although the Court successfully held an empanelment process with Auslan interpreters, the process was not tested in relation to having a person serve on a jury that required ongoing use of interpreters. Until that happens, we don’t know how other jurors would take to having an interpreter present during the trial. There may also be other issues that would need to be addressed throughout the duration of the trial.

The Sheriff noted that there is no way to maintain the privacy of the panel member (apart from not disclosing their name). Every member of the panel and the people present in court knew who the panel member was who required an interpreter.

Lastly, additional time needs to be factored into the process when accommodating interpreters. This included making arrangements to meet with the interpreters when they arrived, to meet with the Chief Justice before court to clarify legal terms, and to take a tour of the courtroom and make any additional arrangements before the court proceedings commenced.

Lucy McCallum

is the Chief Justice of the Supreme Court of the ACT.

Reasonable working hours: our culture of overwork

Earlier this year, junior doctors in Canberra reached a record breaking $31.5 million settlement with the ACT Government and Calvary Health Care, compensating them for unpaid overtime and excessive hours worked over the span of eight years.

On a smaller scale, in 2023 Federal MP Monique Ryan’s former chief of staff Sally Rugg received a settlement of $100,000, following allegations that she was dismissed for refusing to work 70 hour plus work weeks.

These cases, and other ongoing proceedings, have underscored wider concerns about workplace cultures and the reasonableness of excess working hours in Australia. Such concerns have been heightened following recent decided litigation, and the enactment of the right to disconnect in the Fair Work Act 2009 (Cth). However, uncertainty persists – what are reasonable additional hours that an employer can expect an employee to work?

These are issues of acute relevance to the legal profession – both as employer lawyers advising other workplaces, and because of the culture of over-work within the law. It is timely, then, to consider the current legislative framework and recent cases on how many hours an employee can be expected to work.

Context

Today, it may be commonplace – particularly in what are traditionally considered white collar sectors – to accept lengthy (and unpaid) overtime hours. That stands in stark contrast to the historical fight for fairer working conditions that began in Australia over 150 years ago.

In 1856, stonemasons in Melbourne walked off the job in protest of their employer’s refusal to accept their demands for a shorter working day. At the time, many Australians worked up to 14-hour days, 6 days a week and were not afforded leave for illness or holidays.

This protest would define the working landscape over the next two decades. As the union argued for “eight hours labour, eight hours recreation, eight hours rest”, the eight-hour movement was ignited. 60 years later, the Eight Hours Act passed in Victoria and New South Wales. It was not for another 30 years that the Commonwealth Court of Conciliation and Arbitration approved 40-hour, 5-day working weeks for all Australians, a landmark decision that shaped workplace relations in the country for decades to come.

Since then, Australia’s industrial landscape has transformed dramatically. There is now greater flexibility in part time and casual employment, increased wages, improved work health and safety regulations and improvements towards gender equality at work.

However, Australians find themselves increasingly working long hours, without sufficient compensation. Often justified by way of higher salaries or career advancement, an 8-hour working day has become an exception rather than the norm, with the international organisation the OECD reporting Australians work considerably more overtime than the global average1.

A recent report conducted by the Australian Institute, Short Changed: Unsatisfactory Working Hours and Unpaid Overtime found that employees perform an average of 5.4 hours of unpaid overtime per week, amounting to $11,055 per year of forgone salary. Collectively, this unpaid labour is worth annually over $130 billion nationwide.

It is clear that many Australians are suffering as a result. Burn out rates are high, and the rise in legal action signals widespread dissatisfaction. Despite this, unclear legislation makes regulating and addressing this issue a complex challenge, leaving both employees and employers in the dark.

Legislative framework

The current legislative framework, as outlined in section 62 of the Fair Work Act, provides that an employer must not request or require a full-time employee to work more than 38 hours in a week unless the additional hours are reasonable.

What is reasonable? Therein lies the problem. As Justice Mortimer (now Chief Justice of the Federal Court) noted in interlocutory proceedings in the Rugg case, ‘the construction and operation of s 62 of the Fair Work Act has rarely been the subject of any Work-life balance OECD Better Life Index. Available at: https://www.oecdbetterlifeindex.org/topics/ work-life-balance/ (Accessed: 21 October 2024).

judicial analysis and has a number of complexities.2

The Fair Work Act sets out 10 factors which a court must take into consideration in assessing whether additional hours are reasonable. These factors are, at s 62(2):

(a) any risk to employee health and safety from working the additional hours;

(b) the employee’s personal circumstances, including family responsibilities;

(c) the needs of the workplace or enterprise in which the employee is employed;

(d) whether the employee is entitled to receive overtime payments, penalty rates or other compensation for, or a level of remuneration that reflects an expectation of, working additional hours;

(e) any notice given by the employer of any request or requirement to work the additional hours;

(f) any notice given by the employee of his or her intention to refuse to work the additional hours;

(g) the usual patterns of work in the industry, or the part of an industry, in which the employee works;

(h) the nature of the employee’s role, and the employee’s level of responsibility;

(i) whether the additional hours are in accordance with averaging terms included … in a modern award or enterprise agreement that applies to the employee, or with an averaging arrangement agreed to by the employer and employee.

Case Law

The limited case law on the operation of these provisions means there is little judicial guidance. Those cases that have been decided are therefore

2

valuable in the insight they offer employers (and their advisors).

One such case is Australasian Meat Industry Employees Union v Dick Stone Pty Ltd3 , in which the Federal Court considered whether the additional hours worked by Mr Boateng, an employee of a NSW meatworks were unreasonable and therefore contravened s 62.

Mr Boateng commenced work as a newly arrived immigrant in Australia. Unfamiliar with Australian law, his employment contract described his ordinary hours of work to be 50 hours per week, from the hours of 2 am to 11:30 am on weekdays and 2 am to 7 am on Saturdays. The contract failed to mention overtime rates and the relevant award. Mr Boateng was paid somewhere between the ordinary rate and the overtime rate for the additional hours he worked.

Justice Katzmann outlined that ‘what is reasonable in any given case depends on an evaluation of the particular circumstances of both the employee and the employer having regard to all relevant matters including those matters mandated for consideration in [s 62].’

In determining reasonableness, the court considered the health and safety risks associated with Mr Boateng’s job, where the use of knives was a requirement and thus, fatigue from long shifts posed a significant danger. Ultimately the court decided that Dick Stone had unreasonably required Mr Boateng to work an additional 12 hours from the recognised national standard and consequently ordered the payment of $93,000 in penalties.

This decision demonstrates that even in instances where an employee agrees to work additional hours, they may be unreasonable. Additionally, employers 3 [2022] FCA 512.

Kieran Pender John Wilson

should take care in ensuring the health and safety of employees is paramount – especially with recent changes to legislation under the Work Health and Safety Amendment (Managing Psychosocial Risk and Other Measures) Regulations 2022.

In a contrasting outcome, the 2016 case of Gorval v Employsure1 involved full time lawyers seeking compensation for unpaid overtime. Their contract required them to work hours which were “reasonably necessary to fulfill the requirements of [their] role.” The lawyers argued that they were entitled to compensation for unpaid overtime as they were regularly working 45-hour weeks.

However, the employer countered that as the employees took a one-hour lunch break, they effectively worked 40 hours per week – only two hours more than the standard 38 hour week. Given the nature of the work and the culture of the legal industry, the Federal Circuit Court judge did not consider working two additional hours to be unreasonable.

These disparate outcomes underscore the context-specific analysis which must be undertaken in determining the reasonableness or otherwise of excess hours.

Also of note are a number of highprofile cases that are yet to be determined, but may – if decided – shed important new light on the question. In March last year, the Finance Sector Union launched a test case pertaining to excessive hours against the National Bank of Australia on behalf of four managers who were allegedly made to work 55-80 hours a week. The union secretary said at the time that ‘the excessive hours are having a profound impact on the lives of our members, affecting their health, Gorval & Ors v Employsure [2016] FCCA 231.

their relationships, the time available to spend with their families and overall quality of life,’2 which the union argued was a serious contravention of the Fair Work Act

Similarly, the Public Service Association of NSW lodged a statement of claim in December 2023 that contends that Rural Fire Services employees were not paid overtime loading rates for their work on weekends and outside of normal work hours, in contravention of the award. The Shop Distributive and Allied Employees union have also filed a statement of claim alleging that McDonalds owe $25,000 to managers and supervisors for work they undertook before and after their rostered shift for free.

This surge in litigation around what constitutes reasonable additional hours is only likely to increase, while a new front will open with the right to disconnect enacted this year by the Albanese government with amendments to the Fair Work Act.

Conclusion

What is reasonable at work is a socially-informed question, and in a constant state of evolution – as the stonemasons demonstrated all those years ago. Further litigation, and judicial guidance, is to be anticipated in the years to come as Australia grapples with appropriate working hours and boundaries around being online and offline.

In the interim, both employers and employees should be mindful of this growing issue. Establishing clear policies and open communication regarding expectations is essential. Where an employer does require an employee to perform additional hours,

2 David Marin-Guzman, 'NAB faces big test case over excessive work hours', Australian Financial Review (8 March 2023).

care should be taken to avoid potential liability, not to mention WH&S and workers’ compensation risk.

Lawyers and law firms should be particularly mindful. In a speech at the Minds Count Annual Lecture, Justice Jayne Jagot of the High Court noted that ‘if the main driver of profit is the leveraging of the time of others, particularly young lawyers who cost far less than they make, you need to take care to avoid a culture of exploitation developing.’3 Excess work hours raise difficult legal questions, in light of the uncertainty in the Fair Work Act. They raise even more difficult cultural questions, within professions and individual workplaces.

John Wilson is the managing legal director at BAL Lawyers and an accredited specialist in industrial relations and employment law. Kieran Pender is an honorary senior lecturer at the ANU College of Law and a consultant at BAL Lawyers. The authors thank Esther Bornstein for her assistance preparing this article.

3 Remarks of the Hon Justice Jagot at the Mind Counts Annual Lecture 2023.

ACT Human Rights Commission Complaints Pathway

What are human rights without an accessible remedy? This was the questions posed by members of the Canberra community in 2021 when a group of advocates and lawyers, led by the late Sophie Trevitt OAM, petitioned the legislative assembly to introduce a human rights complaints conciliation process. (Tragically, Ms Trevitt passed away before seeing the government’s response.)

The petition called for the Assembly to “enable a complaint about any breach of the Human Rights Act to be made to the Human Rights Commission for confidential conciliation, and if conciliation is unsuccessful, enable a complaint about a breach of the Human Rights Act to be made to the ACT Civil and Administrative Tribunal for resolution”. This responded to community feedback that the existing avenues under s 40C of the Human Rights Act 2004 (HR Act), being a direct right of action to the Supreme Court, or relying on rights in other existing legal proceedings, were too formal, complex, expensive and inaccessible.

In contrast, taking a complaint to an independent conciliatory body was considered a more timely, efficient avenue to deal with alleged human rights breaches, and hopefully resolve them in a conciliatory process involving a facilitated dialogue between and individual and a public authority.

The Government agreed with the premise that it would be beneficial to widen the ACT Human Rights Commission’s jurisdiction to allow it to take human rights complaints, following in the footsteps of Queensland, which introduced a human rights complaints pathway when it enacted its Human Rights Act 2019.

The human rights complaints pathway

With the introduction of the Human Rights (Complaints) Legislation Amendment Act 2023, the Government opened a pathway for individuals to raise human rights breaches directly with the public authority or agency and then to the Commission. The second part of the petition, that complaints made to the Commission be able to be referred to ACAT for determination, was not adopted by Government.

The provisions in s 41D of the Human Rights Commission Act 2005 (HRC Act) commenced on 11 June 2024. Section 41D provides that “a person may complain to the commission about a public authority of the person believes the public authority has acted in contravention of … section 40B” public authority obligations. The public authority obligations are the duty to act consistently with human rights (known in the jurisprudence as the ‘substantive limb’) and the duty to give proper consideration to human rights (or alternatively the ‘procedural limb’).1

By linking the human rights obligations and the Commission’s existing complaints conciliation process, the Government has

established a tried and tested pathway for individual advocacy, and for Commission-initiated investigations and systemic oversight. This may serve to further build a human rights culture of awareness across ACT agencies, the legal profession and community advocacy services.

Importantly, the conciliation function means that such awareness can be improved via a dialogue between the individual and operational areas of government agencies, facilitated by the Commission, rather than residing solely in the Courts and confined to a traditional adversarial process.

While the Commission does not have any determinative function in relation to human rights complaint, and referral to ACAT is not possible, the Commission anticipates that more complaints will be able to be worked through, conciliated and resolved at an earlier stage, hopefully averting recourse to more significant legal action.

Important considerations for practitioners

There are some practical points to note for legal practitioners. While the complaints pathway is intended to provide opportunities for individuals to self-advocate by making complaints and engaging in the Commission’s complaint handling and conciliation process, these steps do not preclude subsequent litigation through the pre-existing s 40C rights of action in the Supreme Court and or as part of other legal claims actions in lower courts or ACAT.

Section 40C(4) provides that a Court (including ACAT) may order an extension of time to file a s 40C application beyond the 12-month limitation period, if taking into account the fact that the person has made a human rights complaint to the

Commission within the 12 months, it would be unreasonable to apply a strict 12-month limitation. Further, because making a complaint does not extinguish any cause of action, making a complaint may be a useful preliminary step to assess or narrow any issues prior to commencing litigation. While information obtained in the course of conciliation is inadmissible the information may help in assessing with the complainant the prospects of any case. However, the Commission is unlikely to accept or deal with a human rights complaint where the substance of a complaint has already been considered by a Court or tribunal.1

In respect of the process for lodging a human rights complaint, s 41D HRC Act provides that complaints must be lodged first with the respondent public authority to the complaint. The public authority then has 45 days to provide a response. If the complainant does not receive a response with 45 days or is not satisfied by any response received, the complaint can then be made to the Commission.

However, exceptions apply to allow a complaint to be brought directly to the Commission, where a complaint has been or could be made under another Commission jurisdiction, for example under the Discrimination Act 1991 or regarding health services, vulnerable people or elder abuse. Matters may also be considered for direct acceptance by the Commission, where the subject matter is urgent or there is an immediate and serious impact on the complainant’s safety, health, education, housing or other timedependent concern. In

Existing complaints handling processes adopted by the Commission under its legislation will apply to human rights complaints. Those existing processes include an initial complaints investigation where the Commission can seek information from both the complainant and the respondent agency, assess whether conciliation is likely to be feasible and beneficial and facilitate conciliation and further exchange of information or undertakings as assists to resolve the complaint.

If conciliation is unsuccessful, the complaint will be closed, or dealt with under other complaint jurisdictions.

The Commission can also initiate own-motion Commission initiated considerations of human rights concerns where no individual complaint has been made, but where the Commission determines that an act, service or conduct could warrant a complaint; or in relation to any other matter related to the Commission’s functions, where a complaint is lodged but withdrawn and where the Commission is satisfied that it is in the public interest to consider the complaint.2 Complaints may be considered jointly in a single complaint, or be received as a representative complaint.3 The Commission has powers to ask for information or documents and may require attendance. Privileges against self-incrimination and exposure to civil penalty apply. 4

Conciliation is compulsory between parties who are in the usual course unrepresented. It takes place in the way the Commission decides. Where a complaint is resolved in conciliation, the Commission may help the parties to make a written record of the agreement 2

reached. If an agreement is reached it may not be tendered in court and parties are immune from civil liability in relation to conciliation participation.

In both cases where conciliation is attempted unsuccessfully or where it is not appropriate, and a complaint is to be closed, the Commission may provide a final report that includes recommendations to the respondent or to a third party.2 Those recommendations are enforceable – non-complying entities may commit an offence or may be otherwise be publicly named. Reports may also be provided to the Minister who is required to table them in the Assembly.3These powers may provide some impetus to change agency practice or policy or to highlight systemic issues, even where a human rights complaint is unable to be resolved through conciliation or consideration.

Initial perspectives from the Commission

In the first three months of the operation of the pathway, the Commission has seen a slow but steady trickle of human rights complaints, relating in particular to issues experienced by detainees in the Alexander Maconochie Centre, and in relation to privacy complaints that have also been transferred to the Commission from 1 August 2024. This followed a handover of the functions under the Information Privacy Act 2014 previously held by the Office of the Australian Information Commissioner.

The Commission is undertaking outreach training across government and in the community to highlight the new complaints pathway and to highlight the increasing intersectionality of socio-legal issues being experienced in the community and how conciliatory dispute resolution methods are better suited to assisting the community.

In our experience the complaints and conciliation functions of the Commission can help individuals get traction and attention within government, while also educating the community about the myriad considerations that government is required to undertake when considering and balancing rights of the community with other legitimate public interest.

Even when a complaint is not sustained, the process of agencies hearing and responding directly to individuals may assist with restorative outcomes for individuals. It can also avoid more costly and consuming adversarial legal action for matters that may be difficult for even the most creative legal practitioners to fit within our legal framework and procedures.

Alex Jorgensen-Hull is a Legal Adviser at the ACT Human Rights Commission.

2024 Ethics Series: A retrospective

In 2024, the Professional Ethics Committee delivered a four-part series exploring critical legal ethics topics. Each session delved into various aspects of ethical practice, providing valuable insights and practical guidance for legal professionals. Below, we break down each of the sessions and further explore the topics of ethical obligations in disclosure and fundamentals of ethical practice for solicitors through specific case studies. The ethics webinars can be downloaded here until 31 December 2024.

The Ethical Dimension of Supervision in Legal Practice

Athol Opas, Debra Parker

This session covered ethical supervision within legal practice, exploring what constitutes effective and appropriate supervision, with a focus on enhancing the ethical development of junior practitioners. Key topics included:

• The critical importance of adequate supervision in legal practice.

• Obligations of junior practitioners to report mistakes, whether their own or those of others.

• Identifying and addressing wrongdoing within the practice.

• Strategies for maintaining ethical standards under supervision.

• The supervisor's role in guiding and supporting the ethical development of junior practitioners.

• Obligations under the Solicitors Conduct Rules and the Legal Profession Act 2006

Session facilitators Athol Opas and Debra Parker provided insights and practical advice on how supervisors can create a supportive and ethically robust environment and foster a culture of integrity and excellence in legal practices.

Navigating Ethical Obligations in Disclosure

Kim Chapman, Hannah von Forell

Providing full and frank disclosure is a cornerstone of maintaining ethical standards in legal practice. In this seminar, we looked at the ethical implications and best practices related to two quite different, but equally important, kinds of disclosure: legal cost disclosures and the duty to report the improper conduct of another solicitor.

This seminar covered:

• Essential disclosures to clients about legal costs.

• Crafting transparent cost agreements

• Ethical billing practices

• Consequences of failing to disclose costs

• The statutory obligation (or lack thereof) requiring a solicitor to report concerns about the professional conduct of another solicitor

• Considerations for lawyers whistleblowing

Kim Chapman and Hannah von Forell offered in-depth insights and practical guidance to help enhance legal practices’ integrity and trustworthiness.

CASE STUDY

ETHICAL OBLIGATIONS OF LAWYERS IN DISCLOSURE

Jane discovers that her colleague Joe has been providing legal advice and representing clients without holding a valid practising certificate. Joe's certificate expired six months ago, and he has yet to renew it due to financial difficulties. Despite this, he continues to work at the same private law firm as her and interacts with clients under the guise of being a qualified solicitor. Jane is unsure whether she has a legal obligation to report Joe to the ACT Law Society.

Legal and Ethical Considerations

Chapter 2 of the Legal Profession Act 2006 sets out the general requirements for engaging in legal practice, which includes an offence of engaging in legal practice if the person is not an Australian legal practitioner holding a current local or interstate practising certificate.

Solicitors are not subject to a statutory obligation that requires them to report another solicitor's improper conduct, including practising without a valid certificate, unless it concerns a trust fund irregularity. Jane is however bound by her obligations as an officer of the court (rule 3 of the Legal Profession (Solicitors) Conduct Rules 2015), which requires solicitors to act in a manner that upholds the administration of justice.

Allowing Joe to continue representing clients without a certificate could mislead the court, undermine the integrity of legal proceedings, and harm public confidence in the legal profession. Additionally, Jane

Ethics

in

Gerald

must consider her professional duty to the firm and its clients. If Joe's actions are discovered, it could result in significant consequences for the firm, including reputational damage and potential liability and insurance issues.

Actions and Implications

To address the issue ethically and professionally, Jane decides to first discuss her concerns directly with Joe and encourages him to rectify the situation immediately by renewing his practising certificate and halting any legal work until this is resolved. In response, Joe gets frustrated and tells Jane that it is none of her business.

Jane next reports her concerns to the firm's managing partner, outlining the potential risks of Joe's continued practice without a certificate. This internal action prioritises resolving the issue within the firm before escalating externally.

Time passes, and the situation does not appear to be addressed. Jane decides to ask the ACT Law Society about making a complaint. She does this by submitting an online enquiry on the Society’s website and shortly after is contacted by a member of the Regulatory Services Team, who provides her with guidance on her options. However, before Jane could lodge a formal complaint with the Society, Joe rectified the problem by renewing his practising certificate.

Confidentiality and Conflict of Interest for Legal Practitioners

Santucci, Katie Binstock

Join us for an enlightening seminar on the crucial ethical obligations surrounding confidentiality and conflict of interest in legal practice. This seminar explored:

• The expansive duty of maintaining client confidentiality beyond legal professional privilege.

• The inherent fiduciary responsibilities that underpin a practitioner's obligation to protect client information.

• Strategies for avoiding conflicts of interest between duties owed to current and former clients.

• Navigating conflicts involving a solicitor's own interests.

Attendees gained valuable insights from experienced speakers who provided practical advice on upholding these ethical standards. Learning included how to manage and mitigate conflicts effectively while ensuring the confidentiality of your clients' affairs is uncompromised.

Fundamentals of Ethical Practice for Solicitors

Lauren Smith, Sam Harper

As a solicitor, your duty to the court and the administration of justice is paramount, even above your obligations to clients. This insightful seminar delved into the core ethical principles that guide legal practitioners.

Key topics included:

• The precedence of a solicitor's duty to the court and the administration of justice over other duties.

• The importance of acting in the best interests of your clients in all matters.

• Maintaining honesty and courtesy in all professional dealings.

• Providing legal services with competence, diligence, and promptness.

• Upholding integrity and professional independence without compromise.

• Adherence to professional rules and the law.

• Fair and good faith treatment of clients, recognising their dependency on your expertise and the trust they place in you.

Our experienced speakers provided practical advice and real-world examples to help navigate these essential ethical duties.

CASE STUDY

ETHICAL PRACTICE FOR SOLICITORS

Steve accepted instructions to act for an executor (Bob) of a deceased estate (for Bob’s mother). Shortly after Steve accepted instructions, Bob paid an amount of $300,000.00 into Steve’s trust account in discharge of a personal loan from the deceased to him. The estate assets were valued at $450,000.00.

The beneficiaries were the deceased’s three children who were to receive equal shares. After probate was granted, Bob instructed Steve that his mother had given him the option to borrow more funds from her after repaying the initial loan. Steve did not seek any proof of this, and despite having concerns as to the efficacy and enforceability of the loan option accepted Bob’s instructions to make a payment to a third party about a business venture he had entered into. The amount paid to the third party exceeded Bob’s one-third interest ($150,000) in the estate. Steve did not inform the other two beneficiaries nor obtain their consent. Steve did not give any advice to Bob regarding the validity of the loan option. In consequence, after the payment to the third party, each beneficiary was to receive well less than their one-third entitlement of $150,000.

Later, and prior to the grant, Bob was removed as executor and one of the other beneficiaries was appointed by the court. Orders were made that Bob was to deliver estate documents and the grant of probate to the new executor, Joan. At some stage later, Steve wrote to two banks in response to correspondence sent by the banks to Bob about account balances in the deceased’s name and in so doing purported to be the estate’s lawyer.

Several months later, and belatedly, Steve wrote to Joan providing the estate documents and a cheque representing the balance of the monies held in trust for the estate. Steve had first, without any authority from Joan, transferred his fees and disbursements from the trust to his office account.

Complaint

Joan lodged a complaint with the Law Society regarding Steve’s conduct in acting for the estate. This led to a formal disciplinary action under section 419 of the LPA in which Steve was charged, inter alia, with a breach of Rules 3, 4.1.1, 4.1.2, 4.1.3 and Rule 7.

Ethical Considerations

Rule 3 of the Solicitors Conduct Rules 2015 (ACT)

(the Rules) provides that a legal practitioner has a paramount duty to the court and the administration of justice. Other fundamental ethical duties are set out in Rule 4, including the duty to act in the client’s best interests, to deliver legal services competently and to avoid any compromise to their integrity and professional independence.

The obligation to provide clear and timely advice under Rule 7 also arises for consideration in this case.

Outcome

Steve was found guilty of professional misconduct (four charges) and unsatisfactory professional conduct (two charges) for all breaches. He was reprimanded, ordered to pay a fine, and ordered to pay the Commissioner’s costs of $15,000.00. Steve was at the end of his career and agreed that he would not seek to renew his practising certificate when it expired on 30 June 2024.

What Steve did right

Steve cooperated with the investigation and was open and frank in his response and in negotiating the proposed penalties.

• He explained that he was under immense pressure and having health issues at the time of the above conduct. He correctly acknowledged, however, that he should have withstood the pressure from his client.

• He made admissions early in the investigation thereby saving time and cost to the Commissioner.

• He expressed sincere remorse for his conduct.

The Tribunal in its published decision noted that the degree of incompetence displayed, and the disregard of the court’s orders might, in other cases, have led to serious sanctions including suspension or strike-off.

Takeaways

Despite his experience, Steve displayed a serious lapse of judgment in relation to various aspects of his retainer with Bob.

Practitioners should always take stock of any concerns they have and seek advice, either from a colleague or the Law Society, if they are unsure of what to do. If a client is putting pressure on you, take a step back and consider the situation, and provide the client with advice, including as to the lawfulness of the steps the client is instructing you to take, if there are any issues in that regard.

PROGRAM OF EVENTS

As a result of our upcoming move to new, purpose-built offices, we are introducing a reimagined approach to our continuing professional development (CPD) program. Our previous two-day Intensive Conference has been rebranded as the month-long March Mastery

March Mastery events offer an enriching and interactive source of knowledge to deepen your expertise in particular areas of law or broaden your understanding of industry trends, as well as providing an opportunity to fulfil your annual CPD requirements.

Highlights

Over 25 dynamic sessions: Personalise your CPD experience by selecting from a wide variety of events.

Esteemed presenters: Learn from respected industry leaders and legal experts.

Complete your CPD requirements: Earn the CPD points you need to fulfill your professional development obligations by the March 31 deadline.

Tailored learning experience: Whether in-person or from the comfort of your home or office, you can access the sessions that best suit your learning style.

Networking opportunities: Connect with fellow legal professionals

Details WHEN March 2025 WHERE: ACT Law Society

COST: Early bird pricing (available until Monday 6 January 2025) 10-pack ticket $650 members-only offering (Includes access to 10 CPD points, redeemable across events (in-person or online). Choose from a variety of sessions to accumulate your 10 points

REGISTER: https://www.actlawsociety.asn.au/ events/2025-march-mastery

Office launch and keynote presentation by Meggie Palmer

International Women's Day CPD Morning

ACT Legal Ethics Decisions: Year in Review

New Lawyers Professional Development

Jeffrey Goldberger Contract Law Masterclass

Property Law Intensive

Family Law Morning

Keynote speaker Meggie Palmer

Working with the Courts

AI Essentials

Elder and Succession Law Intensive

Mental Health First Aid

Events

Nexia Canberra is proud to support the Members Meetup events, especially the Annual Dinner. Our team enjoyed celebrating many years of dedication with members of the ACT Law Society.

WE KNOW PEOPLE

As recruitment specialists, we marry up the qualities that matter most for lasting workplace relationships. Organisational culture is our bread and butter. We get compatibility. Forming genuine connections is the benchmark of our success.

PROFESSIONAL MATCHMAKERS

Our consultative approach brings people together. We cut through the fluff to verbalise the desires of all parties. We scout sought-after skills and pair complementary personalities, shying away from subpar, slapdash and stopgap matches, always.

2024 Newly admitted lawyers

What aspects of your job have you found surprisingly rewarding?

Being able to do seemingly small things (like writing a letter or preparing a document) that makes a substantial difference and has great meaning in people’s lives. go home from work very happy when I know I’ve made a positive difference in someone’s life. It’s why I love family law; I get the privilege to use my knowledge and skills to help guide people through a difficult time, and to ultimately assist people to move through conflict to the next phase of their lives. I love that I need to understand the law; and that understanding people and how they communicate with each other is just as important.

What surprised you the most about working as a lawyer in your first year?

How much I enjoy it. I’m enjoying my work on the most basic and simple of tasks. Listening to a client, understanding their needs, and translating that into a simple Will or EPOA that gives them confidence as they embark on travel or change their family structure feels rewarding. I’m also still enjoying my work when there’s sometimes more tasks than day available, everything is urgent, there’s vicarious trauma and the printer has gotten its fourth paper-jam of the day. The only time I was a bit worried the enjoyment of work might stop was the day the coffee machine had a slight tantrum, and had to switch to the plunger for an afternoon.

What was the biggest difference between law school and the real-world practice of law that you encountered?

Brevity is the soul of wit in the real world. Also, think this is the longest period I’ve gone without touching my AGLC4 referencing guide in a few years.

What advice would you give to law students or recent grads entering their first year of practice?

If you’re still studying, take at least one subject just for interest. Enjoy the law, enjoy learning things and use the library access to read as much as you can. If you’ve finished study – keep reading decisions and engage your colleagues in discussion. You keep learning, debate is healthy, and you can learn how your senior and experienced colleagues think about legal issues in real time.

Megan Baker-Goldsmith, Solicitor at Mazengarb Family Lawyers

Newly admitted lawyers

What aspects of your job have you found surprisingly rewarding?

I really enjoy the client facing aspect of my role as a family lawyer. I often deal with people who are going through some of the most incredibly difficult periods of their lives and if I am able to assist them even a little bit during this time and make their life a little bit brighter then that is enough for me.

What surprised you the most about working as a lawyer in your first year?

That the learning never stops! As lawyers we are continually faced with new (and sometimes complicated) matters that means we have to consider the law and its application in a new way. It seems as though no matter how many years you work in the industry you will be regularly challenged with the issues that present in any given matter and the way you problem solve to fix them.

What was the biggest difference between law school and the real-world practice of law that you encountered?

I feel as though law school encourages a competitive environment by which young lawyers feel as though they are pitted against one another to get the best grades, internships or clerkships out there. I think that there is still an element of competitiveness in the legal field post-law school, but there also comes an understanding that some matters are better resolved through collegiality instead.

What advice would you give to law students or recent grads entering their first year of practice?

Full-time work, particularly in the legal field, is no joke. As young lawyers we are consistently learning, whether that be about the best way to draft letters and documents, about the application of the law to our relevant practice areas or even how to navigate working in an office environment. My advice would be to embrace the learning. Ask for feedback, take on board any constructive criticism you receive and understand that you are just starting so its okay to make mistakes. However, with how much work your brain is doing all the time, be prepared to be tired and make sure you let yourself rest and find good ways to destress!

Cecilia Drumore, Lawyer at Dobinson Davey Clifford Simpson Lawyers

A year in review: Good policy comes to those who don't wait

As the end of the year draws closer, there is an opportunity for reflection on the Society’s efforts to lobby for ‘good law’ and the effective and efficient operation of the legal and justice system.

The volume and pace of consultation on, and implementation of, legislative reform at the local and national level has been consistently high throughout the year. In part this has been due to the October 2024 ACT Election, and a forecasted early Federal Election in 2025. Governments have been keen to demonstrate their responsiveness to progressing amendments across a wide range of issues, many of which have an impact on the legal profession, and the wider justice sector.

The Society is grateful for the ongoing assistance and invaluable expertise provided by volunteer members of our special interest Committees. Their contributions are integral to the success of the Society’s lobbying efforts, amplifying its impact and influence.

Our Annual Report 2023-24 set out the policy and practice activities that the Society has been engaged in over the financial year. You can access the Annual Report via the Society’s website (click here). The Society also provides regular updates on policy and practice changes via its monthly newsletter Hearsay – past Policy and Law Reform Updates can be accessed from here.

Looking forward

The Society’s 2024 Call to Parties – issued ahead of the ACT Election – will provide a framework for the development of policy and law reform that is evidence-based, upholds the rule of law – including promoting human rights and access to justice – and adequately resources and evaluates the implementation of policies. The Society intends to use this framework to hold the incoming government to account over the next four years and ensure the efficient, effective, and just operation of the ACT legal system.

The 2024 ACT Election returned a Labor government for the seventh consecutive term. As a minority government, Labor will need to retain the support of the crossbench (Greens party and Independents) to progress key measures. Labor’s 2024 election platform, and the Supply and Confidence agreements with the crossbench, inform our understanding of the likely policy and law reform priorities for the law and justice sector over the next four years. The following list of matters, grouped by practice area, also incorporates

existing bodies of work underway (at the local and national level).

Children and young people

• Continuing to develop therapeutic supports for children and young people who engaged in harmful behaviour in readiness for the minimum age of criminal responsibility to be raised to 14 from 1 July 2024.

• Completing the modernisation of the Children and Young People Act 2008 to deliver a trauma-informed, efficient, and effective response to children and young people who are at risk of harm. reforms

• Awaiting the Federal Government's response to the Australian Human Rights Commission report Help way earlier! How Australia can transform child justice to improve safety and wellbeing.

• Awaiting the report of the federal Parliament Committee inquiry into Australia’s youth justice and incarceration system (due 1 July 2025).

Criminal justice

• Strengthening criminal justice responses to dangerous driving and anti-social road behaviour, as well as vilification and hate crime.

• Implementing reforms related to prosecution disclosure obligations (due to commence on 19 June 2025).

• Exploring potential reforms to sentencing in relation to convicted child sex offenders.

• Reviewing the impact of amendments made by the Crimes (Consent) Amendment Act 2022.

• Improving the way in which victims/ witnesses receive information throughout the criminal justice process (e.g., in relation to court outcomes, and changes to bail conditions).

• Awaiting the Government's response to the ACT Legislative Assembly Justice and Community Safety Committee’s report as part of its inquiry into bail administration in the ACT.

• Supporting an expansion of restorative justice accessibility criteria.

• Implementing evidence-based policies to reduce recidivism, including the investment in programs to break the cycle of offending.

• Awaiting the report of the Independent Review (Stage 2) into the Overrepresentation of First Nations People in the ACT Criminal Justice System (due early 2025).

• Establishing Legislative Assembly Committee reviews into the ACT’s criminal justice system, including investigating rates of reoffending, youth offending and diversion, policing approaches and resources, justice reinvestment and corrections.

Dispute resolution

• Ongoing transition to the new Australian Mediator and Dispute Resolution System standards (the operative date is 1 July 2025).

Elder and Succession law

• Consulting on the Second National Action Plan to Response to the Abuse of Older Australians.

• Seeking greater consistency in laws for financial enduring powers of attorney.

• Addressing issues related to agreements for, and the operation of, Retirement Villages.

Employment Law

• Exploring potential prohibitions on the use of non-disclosure agreements in sexual harassment claims.

• Supporting up-to-date and modern approaches to workplace health and safety regulations, codes of practice and guidelines.

• Implementing reforms to the Commonwealth Fair Work Act 2009, including the right to disconnect (which extends to small business employers on 26 August 2025).

Family law

• Implementing the second tranche of reforms to the Family Law Act 1975, including consideration of family violence in property settlement, the regulation of Children’s Contact Services, and changes to case management and procedure.

• Independent Review of the Federal Circuit and Family Court of Australia Act 2011 (due March 2025).

Family, domestic and sexual violence

• Strengthening policing capabilities to enable effective intervention in domestic violence situations.

• Addressing issues relating to affecting personal service of protection orders.

• Trialling electronic monitoring of persons convicted of domestic and family violence offences.

• Continuing educational efforts to promote a better understanding of coercive control, moving towards its criminalisation.

• Extending communication privilege to non-counselling domestic and family violence services.

• Awaiting the report of the Australian Law Reform Commission as part of its inquiry into Justice Responses to Sexual Violence (due 22 January 2025).

Human rights

• Implementing the Voluntary Assisted Dying scheme which commences on 3 November 2025.

• Implementing human-rights-related reforms including the new right to a healthy environment, a conciliation mechanism for the ACT Human Rights Commission, and more comprehensive functions and powers for the National Prevention Mechanism in the ACT.

• Finalising a roadmap and timeline for the inclusion of the remaining rights contained in the International Covenant on Economic, Social and Cultural Rights in the Human Rights Act 2004.

Property Law

• Implementing the Property Developer’s Act 2024 and reforms to rental tenancies and unit title management.

• Establishing a Strata Commissioner to protect the interests of people in apartments, townhouses, and other strata-titled dwellings, with retirement villages included in its remit.

• Improving minimum standards for rental properties and establishing a Rental Ombudsman or Commissioner.

• Supporting e-conveyancing for all property-related transactions in the ACT.

• Making planning and zooming changes to support low-rise missing middle housing in existing residential areas including RZ1 zones.

• Progressively removing stamp duty for certain cohorts and property types (e.g., first home buyers, off-the-plan unit development.

• Monitoring and evaluating the new planning system to ensure it is achieving intended outcomes.

The ACT Government has also committed to continuing support for the ACT legal assistance sector, including working with the federal government regarding funding models and increasing funding.

The Society will also continue to work with the Law Council of Australia to support the profession to understand and comply with their obligations under the Anti-Money Laundering and Counter-Terrorism Financing Act 2006 (with reforms commencing 1 July 2026).

In addition to engaging with the matters mentioned above, the Society will also seek to progress proactive reforms identified by our special interest Committees. We will also continue to work closely with ACT Courts and Tribunal, and the Family Court, on practice and procedure issues.

If you want to be involved in, or have any questions about, the Society’s policy and law reform work, please contact policy@actlawsociety.asn.au.

High Court Judgments

STATUTORY CONSTRUCTION

Imposition of criminal liability on body politic

In Chief Executive Officer, Aboriginal Areas Protection Authority v Director of National Parks [2024] HCA 16 (8 May 2024) the High Court allowed an appeal from the Full Court of the Supreme Court of Northern Territory and held that The Director of National Parks (DNP) could be criminally liable for carrying out works on a sacred site.

Section 34(1) of the Northern Territory Aboriginal Sacred Sites Act 1989 (NT) (Sacred Sites Act) prohibits carrying out work on a “sacred site” within the meaning of the Aboriginal Land Rites (Northern Territory) Act 1976 (Cth).

The central question for the High Court was whether the DNP, established under the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBCA), was entitled to benefit from the presumption stated in Cain v Doyle (1946) 72 CLR 409 and therefore able to avoid criminal liability for a breach of the prohibition under s34 of the Sacred Sites Act

The DNP is established as a body corporate under s514E(1)(a) of the EPBCA. The High Court (Gageler CJ and BeechJones JJ) stated (at [26]):

“. . . the underlying principle provides no justification for treating the common law presumption as anything more than a presumption against construing a statute to impose criminal liability on a body politic. To extend the presumption to an executive officer of a body politic would be to invert the constitutional principle which prevents such an officer

from claiming immunity from criminal liability by claiming to have acted under the authority of the Crown. To extend the presumption to a corporate instrumentality of a body politic would involve an equivalent inversion of principle”.

CRIMINAL LAW

Sentence – whether expectation that parole would be refused warranted lesser sentence

In The King v Hatahet [2024] HCA 23 (12 June 2024) the High Court allowed an appeal by the Commonwealth Director of Public Prosecutions of a conviction of the respondent for engaging in a hostile activity pursuant to s6 of the Crimes (Foreign Incursions and Recruitment) Act 1978 (Cth), and found the Court of Criminal Appeal of New South Wales was wrong to find that the sentencing judge erred in failing to take into account the low probability of parole on sentence. The respondent had pleaded guilty to the offences arising from activities undertaken in Syria and was sentenced to five years’ imprisonment with a three year non-parole period.

The sentencing judge took into account a range of factors on sentence pursuant to s16A of the Crimes Act 1914 (Cth) (Crimes Act) including the conditions the respondent had been held in and the restrictions pursuant to COVID-19, but did not take into account the likelihood of whether the respondent would be granted parole at the end of the non-parole period.

Pursuant to s19ALB of the Crimes Act, parole is required to be refused unless the Attorney-General is satisfied that

exceptional circumstances exist to justify making a parole order.

The respondent served three years’ imprisonment and was refused parole.

The respondent successfully appealed to the Court of Criminal Appeal of New South Wales on the basis that the sentence was manifestly excessive. The Director then sought leave to appeal to the High Court. Gordon ACJ, Steward and Gleeson JJ cited the principles enunciated in Hoare v The Queen (1989) 167 CLR 348 that “the general principle is that the prospect of securing release on parole or of obtaining remissions is not relevant to the judicial task of sentencing” (at [21]), and three underlying conclusions: First, that a prisoner has no right to a remission and there cannot be a guarantee of a remission. Second, that the sentence should not exceed what is proportionate to the crime.

Third, that increasing sentences because of future remissions, or decreasing sentences because of low probability, would turn it on its head (at [22]-[24]).

Their Honours (at [20]) distinguished between sentencing and parole and cited the principle enunciated in Minogue v Victoria 2019 268 CLR 1.

“In the case of the plaintiff, at all times, there remained only one sentence − imprisonment for life. The fixing of the non-parole period of 28 years said nothing about whether the plaintiff would be released on parole at the end of that non-parole period. It left his life sentence unaffected as a judicial assessment of the gravity of the offence committed. Indeed, the plaintiff has no right to be released on parole and may be required to serve the whole of the head sentence. At best, the nonparole period provided the plaintiff with hope of an earlier conditional release

but always subject to and in accordance with legislation in existence at the time governing consideration of any application for parole. Put in different terms, the fixing of a non-parole period does no more than provide a ‘factum by reference to which the parole system’ in existence at any one time will operate" (Kiefel CJ, Bell, Keane, Nettle and Gordon JJ in Minogue v Victoria 2019 268 CLR 1 (at [16]-[17]).

PRIVATE INTERNATIONAL LAW

Foreign state immunity

In Greylag Goose Leasing 1410 Designated Activity Company v PT Garuda Indonesia Ltd [2024] HCA 21 (5 June 2024) the High Court dismissed an appeal from the Supreme Court of New South Wales with costs.

PT Garuda International Ltd (Garuda) is the national airline for the Republic of Indonesia and a registered foreign company under Div 2 of Pt 5B.2 of the Corporations Act 2001 (Cth) (Corporations Act)

Greylag Goose Leasing 1410 Designated Activity Company and Greylag Goose Leasing 1446 Designated Activity Company, together referred to as Greylag Goose, are companies incorporated in Ireland, leasing aircraft to Garuda.

Greylag Goose sought orders in the Supreme Court of New South Wales to wind up Garuda pursuant to Part 5.7 of the Corporations Act.

Garuda sought orders by way of Notice of Motion that the originating process be set aside on the basis of a lack of jurisdiction, specifically ss9 and 22 of the Foreign State Immunities Act 1985 (Cth) (Immunities Act) which confer immunity from jurisdiction on a separate entity of a foreign state unless an exception apply.

Greylag Goose argued in the Supreme Court of New South Wales that the

exception in ss14(3)(a) and 22 of the Immunities Act applied to the Part 5.7 proceeding.

Hammerschlag CJ at first instance rejected the argument that the exception applied, found in favour of Garuda and set aside the originating process. Greylag Goose subsequently appealed to the Court of Appeal of the Supreme Court of New South Wales which upheld the order setting aside the originating process.

Greylag Goose then sought leave to appeal to the High Court of Australia.

Greylag Goose relied on the obiter ex tempore judgment of Hayne J that the operation of s14(3) on s22 was “strongly arguable” in Adeang v The Nauru Phosphate Royalties Trust (unreported, Supreme Court of Victoria, 8 July 1992).

To provide background as to the intention of the Commission in framing the effect of s14(3) in its recommendations, the High Court cited the Australian Law Reform Commission, Foreign State Immunity, Report No 24 1984.

Gordon and Steward JJ jointly held in dissent (at [88]) that: “A separate entity that is involved in commercial activity in Australia has chosen to submit itself to the requirements of the Corporations Act by choosing to carry on that business in Australia. Such activities are not immune from jurisdiction . .”

The High Court per the majority (Gageler CJ, Gleeson J, Jagot J and Beech-Jones JJ) held (at [61]):

“Sections 9 and 22 of the Immunities Act render a body corporate that is a separate entity of a foreign State immune from the jurisdiction of an Australian court in a proceeding. Sections 14(3) (a) and 22 create an exception from that immunity. The exception applies to a Part 5.7 proceeding only if and in so far as the proceeding concerns the winding up of another body corporate”.

ARBITRATION

UNCITRAL Rules – proportionate liability

In Tesseract International Pty Ltd v Pascale Construction Pty Ltd [2024] HCA 24 (7 August 2024) the High Court allowed an appeal from the Court of Appeal of the Supreme Court of South Australia.

The proceedings related to an arbitration concerning whether proportionate liability schemes apply to arbitrations.

“The proportionate liability laws, in substance, limit a defendant's liability for the plaintiff's loss according to the defendant's responsibility for that loss. Proportionate liability, as provided for by the proportionate liability laws, represents a departure from the common law principle of ‘solidary liability‘, under which a defendant whose tortious conduct caused loss or damage to a plaintiff was liable to compensate the plaintiff for the whole of that loss or damage . . .” (Gordon and Gleeson JJ at [108]).

The arbitrator referred the parties to seek clarification under s27J of the Commercial Arbitration Act 2011 (SA) to determine a question of law, being whether the Law Reform (Contributory Negligence and Apportionment of Liability) Act 2001 (SA) applied to an arbitration being conducted pursuant to the Commercial Arbitration Act 2011 (SA).

Article 28 of the UNCITRAL Model Rules requires the arbitral tribunal to decide which law the parties have chosen to apply, which must be be construed unless otherwise expressly agreed as the law of the state of territory. Under Article 34(2) (b)(i) an arbitral award can be set aside under Article 34(2)(b)(ii) if the law is in conflict with the public policy of the state.

Gageler CJ stated: “Article 28 of the Model Law should not be construed to compel an arbitral tribunal to engage in the futile exercise of applying the substantive law to produce an award which . . would be liable to be set aside by a supervising court under Art 34(2)(b)(i) or (ii) of the Model Law applying the law or public policy of the . . place of the arbitration” (at [45]).

Jagot and Beech-Jones JJ stated: “. . The only limits on the substantive law of South Australia . . . applying in the arbitration are those which result from party choice or from the conflict of laws rules and . . . from the arbitrability of the dispute and the public policy of South Australia” (at [290]).

Edelman J dissented stating: “The conclusion of the majority . . . does not necessarily apply to every arbitration agreement which provides for an arbitration to be governed by the substantive law of an Australian State. The interpretation of the arbitration agreement in this case might be relevant to, but cannot dictate, the interpretation of any other arbitration agreement . . .” (at [225]).

CRIMINAL LAW

Sexual offences - child

complainant – cross-examination of complainant – s293(3) of the Criminal Procedure Act 1986 (NSW)

In Cook (a pseudonym) v The King [2024] HCA 26 (7 August 2024) the High Court allowed an appeal in part.

The appellant was convicted of 17 charges: (i) sexual intercourse with a child under 10 years contrary to s66A(1) (count 1 and counts 6-11); (ii) indecent assault of a person under 16 years contrary to s61M(2)

(counts 2-5); and (iii) sexual assault of a person under 16 years contrary to s61J(1) (counts 12-17).

The complainant had been the subject of sexual offences by the de facto partner of an aunt in 2008 and 2009 while living with them in Queensland. The de facto partner was charged and convicted but the matter went to the Court of Appeal, with the convictions overturned and the de facto partner ultimately pleading guilty to four counts of indecent treatment of a child under the age of 12.

The appellant sought to cross-examine the complainant on these offences.

In relation to evidence relating to sexual experience, pursuant to s293(3) of the Criminal Procedure Act 1986 (NSW) (Act) “(3) Evidence that discloses or implies – (a) that the complainant has or may have had sexual experience or a lack of sexual experience, or (b) has or may have taken part or not taken part in any sexual activity, is inadmissible”. The exception is found in s293(4).

The trial judge held that s293(3) applied but not any exceptions. Nevertheless, the trial judge allowed the appellant by way of expedience to crossexamine the complainant on what were euphemistically called “physical assaults”.

The appellant was convicted of all 17 charges and appealed to the Court of Criminal Appeal arguing that the judge had misled the jury by allowing the offending in Queensland to be referred to as physical assaults.

The appellant appealed to the High Court on the following grounds: Ground 1 that the Court of Appeal had erred in its construction of s293(4) of the Act; Ground 2 that some or all of the evidence was inadmissible and that the jury had been misled; and in the alternative,

ground 3 that the Court of Appeal had erred in ordering a retrial.

The High Court held in majority that the exceptions under s293(4)(b) may apply on appeal on ground 1 and in part on ground 3.

The High Court in majority applied distinction between sexual experience and sexual activity, per Harrison J, in GEH v The Queen 2012 NSWCCA 150 as a characterisation that can persist separately from a particular sexual act (at [39]) in relation to the first limb of s293(4) (a) of the Act.

In relation to the second limb in s293(4) (a) of the Act, whether the evidence “is of events that are alleged to form part of a connected set of circumstances in which the alleged prescribed sexual offence was committed”, the majority held that “none of the Queensland evidence was, in this sense, ‘part‘ of a set of circumstances ‘in which’ the alleged sexual offences were committed” (at [46]).

Jagot J, in dissent, would have dismissed on all grounds: “I reject the submission for the accused that this case is an example of ‘categories of frequently excluded evidence that were not anticipated by the legislature’ . . . The Queensland evidence ruled to be inadmissible . . . under s293(3) was evidence proposed to be adduced from the complainant in cross examination . . As the respondent submitted, this is ‘the very type of distressing cross examination which the legislature sought to preclude‘, because such questioning ‘has been a potent cause of reluctance [of victims] to report sexual assault’" (at [74]).

ARBITRATION

Setting aside an award – s34(2)(a) (iii) of the Commercial Arbitration Act 2012 (WA) – UNCITRAL Rules

In CBI Constructors Pty Ltd v Chevron Australia Pty Ltd [2024] HCA 28 (14 August 2024) the High Court dismissed an appeal from the Supreme Court of Western Australia. There were two issues on appeal – whether the Supreme Court can set aside an arbitral award under s34(2)(a)(iii) of the Commercial Arbitration Act 2012 (WA) and what is the test and standard to be applied. The arbitral tribunal made an award deciding all issues of liability. The subsequent award was appealed to the Supreme Court of Western Australia on the basis that the arbitral tribunal was acting functus officio

The majority held that the Supreme Court of Western Australia could set aside the subsequent award if they found de novo that the arbitral tribunal was acting functus officio

The case concerned an oil and gas project operated by the respondent. The appellant provided staff for the operation and claimed that there were underpayments by the respondent. The respondent counter-claimed that they had been overcharged for the cost of staffing.

The respondent then successfully applied the Supreme Court of Western Australia to set aside the second arbitral award. The appellant appealed to the Supreme Court of Western Australia and ultimately the High Court of Australia.

The majority held: “The standard of review to be applied is a de novo review of the decision of the arbitral tribunal as to its jurisdiction” (per Gageler CJ, Gordon, Edelman, Steward and Gleeson JJ, at [43]).

Jagot and Beech-Jones JJ dissented and would have allowed the appeal. On the point of functus officio, their Honours stated: “. . . A conclusion that a body is functus officio must be justified, rather than asserted. Such a conclusion can only be ‘reached by close examination of the particular circumstances, and the nature of the power, function or duty in question‘. This is so regardless of whether a public or private power or duty is exercised or performed . . . The same applies to an arbitral tribunal operating under the Arbitration Act, which derives its jurisdiction from the consent of the parties but has its determinations given the force of law by statute and enforced by curial order” (at (72]).

NEGLIGENCE

Duty of care – pure economic loss

In Mallonland Pty Ltd v Advanta Seeds Pty Ltd [2024] HCA 25 (7 August 2024) the High Court dismissed an appeal from the Court of Appeal of the Supreme Court of Queensland with costs.

Advanta Seeds Pty Ltd (Advanta) is a seed producer. Mallonland Pty Ltd (Mallonland) is a farming company growing sorghum crops. The issue before the Court was whether Advanta owed Mallonland a duty of care to take reasonable care in production to avoid risk of economic loss to Mallonland.

Mallonland purchased bags of sorghum seeds from an Advanta authorised distributor to sow in the 2010/2011 planting season. There was a hidden defect. The bags of sorghum contained another very similar looking seed mixed in with the sorghum. This seed was called shattercane, a genetically related seed, so called because the seedhead shatters and distributes the seeds.

Mallonland was required to undertake costly action to remove the contamination.

There were minimum standards of purity on the bags of sorghum, including a warning to purchasers. Relevantly, the warning contained a statement to the purchaser: “. . . If the product in this bag does not comply with its description . . liability . . will be limited . . . to cost of replacement” and “the producer will not be liable . . . for any injury, loss or damage” (at [9]).

Advanta had acknowledged that it was common for other seeds to be mixed into the bags and that economic losses were reasonably foreseeable.

Both the Trial Judge and the Court of Appeal of the Supreme Court of Queensland found that Advanta did not owe a duty of care to Mallonland.

The High Court applied Caltex Oil (Australia) Pty Ltd v The Dredge "Willemstad" (1976) 136 CLR 529, and the principle: “As a general rule, damages are not recoverable in negligence for pure economic loss, that is, for loss that is not consequential upon injury to person or property . . .” (at [30]).

The High Court noted that the salient features approach had been criticised since the decision in Sullivan and Moody (2001) 207 CLR 562, but neither Mallonland nor Advanta argued that it did not apply and the High Court applied the salient features approach (at [36]).

Mallonland argued a number of salient features as to why a duty of care existed, including “. . . the producer's knowledge of the risks of economic loss to which the growers were exposed if reasonable care was not taken in seed production . . .” (at [42]). The Court held that none of the salient features gave rise to a duty of care.

CRIMINAL LAW

Evidence – expertise

In BQ v The King [2024] HCA 29 (14 August 2024) the High Court dismissed an appeal from the New South Wales Court of Criminal Appeal. BQ was convicted in the District Court of New South Wales of multiple counts of child sexual offences against two nieces. BQ appealed to the Court of Criminal Appeal. BQ was successful on a number of grounds, but was refused leave to appeal on the ground that a failure to properly direct the jury about the potential misuse of expert evidence occasioned a miscarriage of justice and dismissed a ground of appeal on the admissibility of the expert evidence.

The Crown adduced expert evidence from Associate Professor Rita Shackel (Expert), an Associate Professor and Associate Dean in the law school of the University of Sydney. She holds Bachelor’s degrees in Law and Psychology, a Master’s in Psychology and a PHD in Law. Her thesis looked at expert evidence in child sexual assault cases, "how victims of child sexual assault respond to their victimisation" and “how well-understood victims' responses are in the community".

The Expert gave evidence that in intrafamilial child sexual assault, the abuse could occur during the course of day-to-day activities where “. . . there was a blurring of ‘normal interaction and appropriate interaction’with ‘touching’" (at [15]).

BQ argued, both at trial and on appeal, that this was outside the scope of the Expert’s expertise, that it was an opinion of behaviour of perpretrators rather than the responses of victims of abuse. However, the Expert was not crossexamined and counsel for BQ did not refer to the Expert’s evidence in closing. Although the Trial Judge made some

comments about the Expert’s evidence in summarising the closing address of the Crown for the jury, counsel for BQ did not seek any direction of the jury.

The High Court distinguished two recent decisions of the Court of Criminal Appeal (which had both relied on the evidence of the Expert, Aziz (a pseudonym) v The Queen (2022) 110 NSWLR 317 (Aziz) and AJ v The Queen (2022) 110 NSWLR 339 (AJ ). In Aziz the New South Wales Court of Criminal Appeal rejected an appeal on the grounds that the evidence should be excluded as opinion or credibility evidence as it was not an expert opinion but a form of literature review. In AJ, the Court of Criminal Appeal applied Aziz, however, found that in that instance the Expert did not have the required specialised expertise.

CRIMINAL LAW

Evidence – hearsay –interlocutory appeal

In Steven Moore (a pseudonym) v The King [2024] HCA 30 (14 August 2024) the High Court dismissed an appeal from the Court of Appeal of the Supreme Court of Victoria.

Moore was due to stand trial for seven offences against one complainant. The evidence subject of the appeal was evidence of representations made by the complainant. The complainant subsequently died in circumstances not related to the proceedings. The Trial Judge ruled that the evidence was admissible and refused to exclude the evidence. Moore was granted leave to appeal to the Court of Appeal which subsequently confirmed the Trial Judge’s ruling.

In appeal to the High Court, Moore accepted that the probative value of the evidence was high but outweighed by unfair prejudice, including inability to cross-examine the complainant:

• hearsay evidence is not admissible unless it falls under one of the exceptions. Section 65 of the Evidence Act 2008 (Vic) (Act) is an exception to the hearsay rule, where the speaker is unavailable in criminal proceedings

• the court must exclude evidence where there is a danger of unfair prejudice if the evidence were admitted pursuant to s137 of the Act.

The representations which the Crown sought to adduce consisted of a number of statements made on the day the offences were alleged to have occurred, including one made to the Complainant’s mother via telephone, a 000 call, footage from a police body-worn camera and a signed statement taken by another police officer (Evidence).

The Trial Judge ruled that the Evidence was admissible and held that s65(2) (b) of the Act was satisfied, that the statements were made shortly after the events occurred and it was unlikely that they were fabrications. Further, the statements were made in circumstances that made them unlikely to be fabrications pursuant to s65(2)(c) of the Act and certified that if the Evidence were not adduced the prosecution case would be eliminated or substantially weakened (Certification).

A question before the High Court was whether the Court of Appeal was required to apply the House standard (House v The King (1936) 55 CLR 499) or the correctness standard (SZVFW (2018) 264 CLR 541 (SZVFW ) (559-560)).

The House standard requires the Court of Appeal to intervene “. . . where the trial judge: acted upon a wrong principle, or allowed extraneous or irrelevant matters to affect the decision; mistook the facts; failed to take into account some material consideration; or made a decision that was unreasonable or plainly unjust . . .” (at [14]).

Under the correctness standard “. . the appellate court determines for itself the correct outcome while making due allowance for such ‘advantages’ as may have been enjoyed by the judge who conducted the trial or hearing . . .” (at [14].

The High Court referred to the decisions in R v Dennis Bauer (a pseudonym) (2018) 266 CLR 56 and Aytugrul v The Queen (2012) 247 CLR 170.

“[T]he determination turns on whether the legal criterion to be applied ‘demands a unique outcome, in which case the correctness standard applies, or tolerates a range of outcomes, in which case the House v The King standard applies” (at [15]) quoting SZVFW (563).

The High Court rejected submissions distinguishing interlocutory appeals and appeals on conviction as held in DAO v The Queen (2011) 81 NSWLR 568 and followed in McCartney (2012) 38 VR 1. The High Court only had one outcome open to it, given the Certification. It analogised the assessment of the tendency evidence in R v Dennis Bauer (a pseudonym) (2018) 266 CLR 56 and, therefore, held that the correctness standard applied.

CRIMINAL LAW

Introductory meeting – risk of irregularity – miscarriage of justice

In Director of Public Prosecutions v Smith [2024] HCA 32 (11 September 2024), the High Court allowed an appeal from the Court of Appeal of the Supreme Court of Victoria.

The accused was charged with three offences of sexual assault of a child under 16 years pursuant to s49D(1) and one offence of sexual penetration of a child under 16 years pursuant to s49B(1) of the Crimes Act 1958 (Vic). The accused

indicated that he would enter a plea of not guilty.

The complainant was a minor and an intermediary was appointed under s389J(1) of the Criminal Procedure Act 2009 (Vic) (Criminal Procedure Act).

The intermediary prepared a report that recommended a meeting between the judge and complainant take place prior to giving evidence at a special hearing, to assist the complainant’s confidence. There was no objection from counsel for the accused to this proposal.

Prior to the special hearing, the judge met with the complainant along with counsel for the prosecution and counsel for the accused at the office of the Child Witness Service. The accused was not present, and the private meeting was not recorded.

Following the special hearing, the Court of Appeal of the Supreme Court of Victoria published reasons for judgment in the matter of Alec (a pseudonym) v the King (2023) 72 VR 161. In Alec, the trial judge met with the witness privately without the presence of counsel for the parties or the accused. The Court of Appeal set aside a conviction and ordered a retrial on the basis that there had been a substantial miscarriage of justice as a result of an error or irregularity pursuant to 276(1)(b) of the Criminal Procedure Act. The trial judge in Alec had met with the witness privately.

Counsel for the accused in Smith submitted that the recording of the special hearing was inadmissible in light of the decision in Alec. The prosecution submitted that, given counsel for both accused and prosecution were present, the recording of the special hearing was admissible and applied for the County Court of Victoria to reserve a question of law arising before the trial for determination by the Court of Appeal.

The Court of Appeal answered that the private meeting infringed on the principle of open justice in Alec The prosecution

then appealed to the High Court, and the majority held: “. . the issue is not lack of power, but (as the reasoning in Alec correctly exposes) the apprehension of bias that ordinarily would arise if a judge met a witness in the absence of legal representatives for all parties” (at [83]).

On the question of whether the private meeting represented a fundamental irregularity constituting a serious departure from the trial process, the majority held:

“In these circumstances it cannot be said that a fair minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of any question the judge is required to decide in the criminal proceeding.” (at [95])

Edelman J, in minority, rejected that s389E(1) empowered the court to direct that a private meeting take place excluding the accused and stated that the decision conferred, “. . . a discretion upon the Victorian judiciary to give directions for private meetings between a judge and a witness but excluding the accused, at least where those private meetings are also attended by counsel” (at [167]).

CONTRACT LAW

Construction – condition precedent

In Attorney-General (Tas) v Casimaty [2024] HCA 31, the High Court unanimously allowed an appeal from the Full Court of the Supreme Court of Tasmania with costs. The question before the court was whether a condition precedent gave rise to an obligation enforceable by a court.

Section 16(1) of the Public Works Committee Act 1914 (Tas) (Act) stipulates a condition precedent to public works to be undertaken by the state government department or authority – in this case, the Parliamentary Standing Committee

on Public Works, a Joint Committee of Members of the Legislative Council and House of Assembly.

In 2017, the Tasmanian government’s Department of State Growth proposed a new interchange near the Hobart Airport, which was referred to and reported on by the committee. The Department of State Growth then retained Hazell Bros. Group to construct the interchange. Casimaty claims an interest in land adjacent to the site.

In 2020, Casimaty commenced proceedings in the Supreme Court of Victoria arguing that the condition precedent had not been met and seeking an injunction restraining the construction until it was. The basis for the claim in summary was that the approved construction differed from the proposal Hazell Bros. were engaged to implement on the cost of construction, being $46 million estimated rather than $28.08 million to $29.99 million, and that the final plans differed.

The Attorney-General of Tasmania was joined as a party and sought orders to strike out the claim and otherwise dismiss the proceedings. The matter was heard by Blow CJ, who dismissed the proceedings. Casimaty successfully appealed to the Full Court of the Supreme Court. The Attorney-General successfully appealed to the High Court.

The High Court looked at the origins of the Act in the Public Works Act 1888 (NSW) and the purpose behind it “. . . to ensure that members should have needful information on public works proposals” (at [15]).

The majority held that, on its proper construction, s16(1) of the Act did not create a condition precedent that is enforceable by a court:

“The consequence of non compliance is political, such that compliance is to be enforceable by the House of Assembly and

the Legislative Council, not legal, such that compliance is to be enforceable by a court.” (at [40])

The majority gave two further reasons: the traditional view that courts should not interfere with parliament and the inconvenience to private contractors who are tasked with carrying out these types of public works and the public (at [43]).

CRIMINAL LAW

Evidence – public interest immunity – adequate reasons for decision

In Chief Commissioner of Police v Crupi [2024] HCA 34, the High Court granted special leave, allowed an appeal and remitted the matter to the Supreme Court of Victoria for determination.

Pursuant to s130 of the Evidence Act 2008, a court may direct that evidence is not to be adduced if the public interest in admitting into evidence information that relates to matters of state is outweighed by the public interest in preserving secrecy or confidentiality. This applies to information and to documents.

The accused was charged with the murder of Giuseppe “Pino” Acquaro, a solicitor, in 2016. Mr Acquaro had provided information to police. It was likely at trial that the accused would argue that there were other parties that had a motive to kill Mr Acquaro. There were a substantial number of documents disclosed by the Chief Commissioner. However, the Chief Commissioner claimed public interest immunity (PII) over around 600 pages of documents on the basis that their disclosure could reveal the identity of an informer, Informer Z. The primary judge rejected the claim for PII and ordered that, aside for some documents to be provided redacted, the documents were to be disclosed in full.

The primary judge gave very brief reasons for rejecting the claim for PII. The reasons did not disclose the process of weighing the competing public interest for and against, and are set out in the High Court judgment:

“I am persuaded by the written submissions and the oral submissions of the amici that in relation to [Informer Z] that there is good reason to think that should that information . . . be disclosed to the defence, that it may be of substantial assistance to the defence in the conduct of their case.” (at [5])

The High Court cited the observations in AB (a pseudonym) v CD (a pseudonym) [2018] HCA 58, that the requirement to give publicly available reasons in these matters needs to be balanced, “. . . and an extremely weighty consideration in that exercise is whether the material sought to be disclosed has any tendency to reveal the identity of a police informer, especially in circumstances where there is a risk to the informer’s safety from disclosure” (at [20]).

The High Court held that the primary judge also had a duty beyond giving reasons relating to the weighing exercise to set out what documents could be disclosed and in what form, that is redacted or otherwise, that “. . . there would still need to be a separate document by document (or class of document by class of document) analysis undertaken as to what documents were required to be produced and in what form” (at [24]).

Tasman Ash Fleming is a Victorian barrister and mediator practising in general practice with a focus on estate matters; 0430 490 161 or fleming@vicbar. com.au. The numbers in square brackets in the text refer to the paragraph numbers in the judgement. The full version of these judgements can be found at www.austlii. edu.au

Federal Court Judgments

SEPTEMBER 2024 / DECEMBER 2024 LIJ

MIGRATION LAW

Judicial review of decision to cancel visa on character grounds under s501(3A) of the Migration Act 1958 (Cth) – whether to grant leave to amend notice of appeal to raise new grounds on appeal to the Full Court

In Pewhairangi v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCAFC 94 (15 July 2024) the Full Court heard an appeal from a decision of a single judge dismissing the appellant’s application for judicial review of a decision made by the Administrative Appeals Tribunal (AAT). The AAT’s decision affirmed a decision of the delegate of the Minister not to revoke a decision made under s501(3A) of the Migration Act 1958 (Cth) to cancel the appellant’s visa.

Prior to the hearing of the appeal, the appellant sought leave to file an amended notice of appeal raising proposed new grounds and amended grounds of appeal (at [3]). The Full Court set out the key cases and principles as to whether the appellant should have leave to amend his notice of appeal to raise the new grounds (at [45]-[49]).

Leave to argue a ground of appeal not raised before the primary judge should only be granted if it is expedient in the interests of justice to do so. The interests of justice include consideration of the serious personal consequences for the appellant that may result from an adverse decision. Wigney, Halley and Dowling JJ considered that the new grounds were of doubtful merits and there was no adequate explanation for the failure to take the point before the primary judge (at [48]). The Full Court noted authority that “there will be cases where, whatever the inadequacy of the explanation for not raising the point below, the interests of justice require that an administrative decision that is plainly affected by jurisdictional error should not remain standing” (at [49]).

On the basis that the parties properly accepted that the merits of the amended grounds were a paramount or primary consideration in the assessment of whether leave should be granted, the Full Court held that it was not expedient in the interests of justice to grant leave to amend the notice of appeal (at [51]).

PRACTICE AND PROCEDURE

Contraventions of civil penalty provisions – whether judge making findings on liability should recuse himself from penalty hearing

In Australian Securities and Investments Commission v Sunshine Loans Pty Ltd (No 3) [2024] FCA 786 (18 July 2024) there was an application for recusal of the judge after his judgment on liability and before the hearing on penalty. The Australian Securities and Investments Commission (ASIC) sought relief against Sunshine Loans Pty Ltd (Sunshine Loans) for alleged contraventions of the National Consumer Credit Protection Act 2009 (Cth) (NCCPA). In a judgment on liability ([2024] FCA 345), findings were made to the effect that Sunshine Loans had, on numerous occasions, contravened certain provisions of the National Credit Code, being Sch 1 to the NCCPA (Credit Code).

Sunshine Loans filed an application seeking that the judge recuse himself from conducting the penalty hearing in which ASIC sought penalties totalling $10.5 million. Sunshine Loans’ approach to establishing apprehended bias appeared to be that, as a result of the previous findings that certain directors and officers of Sunshine Loans had been untruthful when giving their previous evidence, it would be apprehended that the Court might not bring an impartial mind to bear in relation to the issue of penalty. The Court rejected this position (at [22]). Sunshine Loans’ complaint appeared to be that the manner of the Court’s expression in the liability judgment reflected an animus, or the possibility of it, against Sunshine Loans, which would carry over into the penalty hearing (at [23]). Sunshine Loans relied on passages from the liability judgment in support of its allegation of apprehended bias (at [24]-[39]). The Court held Sunshine Loans did not identify any logical connection between the impugned passages and an apprehension that the Court would deviate from deciding the question of penalty on its merits (at [40]).

Derrington J explained: “A fair-minded lay observer would accept that it is part of the function and duty of a court to make findings about the veracity of the evidence which is advanced to it. That is particularly so where, as in the present case, submissions were made that the evidence of certain witnesses should not be accepted. A fair-minded lay observer, having knowledge of the circumstances of the case, would also accept that findings made in the liability part of a proceeding for the imposition of a civil penalty are relevant to the question of penalty. They would accept that it is relevant whether the contraventions were intentional and, if so, whether the alleged contraveners are likely to engage in conduct of that nature in the future.

Necessarily, that must go to the question of specific deterrence. Similarly, a court is entitled to conclude that a party who advances various submissions with minimal prospects of success might well be attempting to delay or prolong the proceedings for their own purposes, and that is also relevant to the question of specific deterrence when the question of penalty is assessed” (at [43]).

However, on the morning of the recusal application the judge was informed by counsel for ASIC that Mr Powe, a director of Sunshine Loans who had filed an affidavit for the purposes of the penalty hearing, would be cross-examined including as to his credit. Mr Powe had given evidence in the liability hearing as to whether the alleged contraventions of the Credit Code had occurred, and the judge reached an adverse view of his credibility in the liability judgment (at [19]). Derrington J recused himself on the basis that as he had made adverse credit findings in relation to the directors of Sunshine Loans in the reasons for judgment on liability, it would be inappropriate to conduct the penalty hearing in circumstances where he would again be required to assess the credibility of one or more of them (at [5]), based on the principles regarding a second determination of the credit of a witness (at [14]-[18]).

The Court addressed the position in civil penalty cases and the pragmatism of “splitting” civil penalty proceedings was not doubted (at [51]). The difficulties in a judge hearing a civil penalty action being required to recuse themselves after making a determination on liability, merely because credit findings have been made and the same witnesses may give evidence in the penalty phase of the proceedings, and their credibility may again be put in issue were explained (at [56]). Derrington J observed: “The tension between the orthodox principles relating to recusal

and the usual way civil penalty proceedings are conducted is evident. It may be that the Court should adopt a protocol for the hearing of such matters which takes the orthodox recusal principles into account. How that might be achieved is unclear, though it may necessitate the parties accepting the most unpalatable proposition that the judge may be called on to determine the creditworthiness of a witness against whom they have already formed strong views. Alternatively, the Court might require the parties to put all evidence going to contravention and penalty before it prior to any decision being made . . Indeed, the difficulties of this issue may require legislative intervention of some description” (at [58]).

COSTS

Appeals to Full Court – costs in public interest litigation

In Environment Council of Central Queensland Inc v Minister for the Environment and Water (No 2) [2024] FCAFC 97 (17 July 2024) the Full Court made costs orders following the dismissal of appeals brought by the appellant, a not-for-profit charitable organisation, in litigation under the Environment Protection and Biodiversity Conservation Act 1999 (Cth).

The Full Court held there be no order as to the costs of the appeals. Mortimer CJ gave consideration and clarification of obiter remarks of principles as to costs in public interest litigation (at [7]-[21]). The principles were applied in relation to the costs of the Minister (at [22]-[30]) and the private respondents (at [31]-[58]).

In separate reasons, Colvin and Horan JJ also held that in the particular circumstances before the Court it was appropriate for the parties to bear their own costs of the appeals.

Dan Star KC is a Senior Counsel at the Victorian Bar, ph (03) 9225 8757 or email danstar@vicbar.com.au. The full version of these judgments can be found at www.austlii.edu.au. Numbers in square brackets refer to a paragraph number in the judgment.

INDUSTRIAL LAW

Employment contracts satisfied requirements under enterprise agreement of agreement to be paid average annualised wage and even if there had been no agreement for purposes of enterprise agreement then set-off would have been permitted

In Construction, Forestry, Maritime, Mining and Energy Union v Fremantle Port Authority [2024] FCA 848 (1 August 2024) the Federal Court of Australia (Colvin J) dismissed an application by the Construction, Forestry, Maritime, Mining and Energy Union (Union) that the Fremantle Port Authority (Employer) had underpaid employees because the Employer had not achieved the requisite agreement to pay each relevant employee an average annualised salary pursuant to the terms of the relevant enterprise agreement (at [2] and [6]).

The dispute concerned provisions in two enterprise agreements that permitted the Employer to pay an employee an “average annualised salary” (which incorporated payment for ordinary hours of work, rostered overtime, shift penalties and allowances) if the Employer obtained the agreement of the relevant employee. If an average annualised salary did not apply, then an employee would be paid by the “ordinary wages method” (meaning the employee would be paid on the basis of hours worked with the applicable loadings and allowances) (at [6]).

The average annualised salary provided equal payments each fortnight. The ordinary wages method provided fluctuating payments each fortnight (at [7]).

At a high level, the Union argued that the agreement required for the Employer to pay an employee an average annualised salary required the employee to make a “real, effective and informed choice” between the average annualised salary method versus the ordinary wages method (at [8]). As this had not occurred, the Employer had underpaid the relevant employees in the pay periods where the Employer had paid the employees less than they would have received pursuant to the ordinary wages method (at [10]).

The Employer argued that the agreement required for the Employer to pay an employee an average annualised salary was simply an agreement by the employee to be paid an annual salary and this is the agreement that the Employer had achieved (at [9]).

The Court was prepared to accept that the relevant employees had agreed to an average annualised salary (at [15]).

The Court construed language in a relevant enterprise agreement which provided that an average annualised salary could apply “[b]y agreement between the employer and an affected employee”. The Union and Employer agreed that this agreement needed to be an enforceable contract at law (at [34]). The Union made multiple arguments about why the contracts of employment entered into between the Employer and the relevant employees could not constitute the requisite agreement (at [54]-[56]). However, the Court did not accept these arguments. The Court held that the agreement required by the terms of the enterprise agreement could occur via the terms of the contracts of employment between the Employer and each relevant employee (at [60]).

If the Employer had been required to pay employees pursuant to the ordinary

wages method, then the Court would have been prepared to accept the Employer’s “set-of defence”. This defence provided that the amounts that the Employer paid to the employees that was more than what the Employer was required to pay in relevant pay periods pursuant to the ordinary wages method could be set off against the shortfall in the pay periods when the Employer paid the employees less than the Employer had been required to pay pursuant to the ordinary wages method (at [13]).

ADMINISTRATIVE LAW

Administrative Appeals Tribunal failed to consider the wellbeing and safety of children and community expectations when reinstating the registration of a teacher that was convicted of driving with excess blood alcohol and found guilty without conviction of persistent contravention of a family violence intervention order

In Victorian Institute of Teaching v Rachelle [2024] FCA 958 (23 August 2024) the Federal Court of Australia (McEvoy J) allowed an appeal by the Victorian Institute of Teaching (Institute) from a decision of the Administrative Appeals Tribunal (AAT). The AAT had set aside a decision of the Institute to cancel the teaching registration of the respondent (Teacher) (at [1] and [3]).

The Teacher had previously been convicted of charges involving driving with excess blood alcohol in New Zealand (at [5]).

The Teacher’s registration as a teacher was cancelled in New Zealand (at [6]).

The Teacher applied to the Institute to have her Victorian registration renewed. The Teacher did not disclose her criminal convictions or the cancellation of her registration in New Zealand (at [7]).

The Teacher was found guilty without conviction of persistent contravention of a family violence intervention order (at [8]).

The Institute cancelled the Teacher’s registration to teach in Victoria after the Institute learned about the range of criminal charges against the Teacher in Australia and the cancellation of the Teacher’s registration to teach in New Zealand due to the Teacher’s criminal convictions (at [9]).

The Institute refused an application from the Teacher to have her registration to teach in Victoria reinstated (at [10]) (Institute Decision). The Teacher sought review of the Institute Decision in the AAT (at [12]).

The AAT reinstated the Teacher’s cancelled registration (at [13]).

The appeal was based on multiple questions of law. One of the questions of law was whether the AAT failed to have regard to s2.6.3(1A) of the Education and Training Reform Act 2006 (Vic) (ETR Act) in determining that it was appropriate to reinstate the Teacher’s registration (at [16]). Section 2.6.3(1A) requires consideration of the wellbeing and safety of children, including by taking into account community expectations (at [25]).

The Court accepted that the AAT had failed to take into account this mandatory relevant consideration as a result of the lack of reference to the consideration in the relevant reasons as well as after the Court read the relevant reasons as whole (at [33]).

As a result, the matter was remitted to the AAT to be considered afresh (at [34]).

PRACTICE AND PROCEDURE

Orders for substituted service made after it was deemed not practicable to effect personal service on 268 individual respondents In General Manager, Fair Work Commission v Construction, Forestry and Maritime Employees Union (Substituted Service) [2024] FCA 875 (6 August 2024) the Federal Court of Australia (Wheelahan

J) made orders for substituted service after it was determined to be “not practicable” to effect personal service on the 268 individual respondents named in the originating application for the purposes of r10.24 of the Federal Court Rules 2011 (Cth).

The applicant argued that it would be expensive and difficult to locate each of the respondents to effect service personally (at [3]).

The Court held that the likely reporting of the proceeding would make its existence a matter of common knowledge among the officials of the relevant division of the Construction, Forestry and Maritime Employees Union and therefore ameliorate any disadvantages of the proposed order for substituted service (at [7]).

Nadia Stojanova is a barrister at the Victorian Bar, ph 0480 254 662 or email nadia.stojanova@vicbar.com.au. The full version of these judgments can be found at www.austlii.edu.au Numbers in square brackets refer to a paragraph number in the judgment.

PRACTICE AND PROCEDURE

Discovery – lengthy trial – whether to permit cross-examination of deponents of affidavits relating to discovery

In INPEX Operations Australia Pty Ltd v AkzoNobel NV (No 3) [2024] FCA 1221 (22 October 2024), the Court heard an application relating to whether INPEX should be permitted to cross examine deponents of affidavits relating to discovery.

The context was “mega litigation” and concerned the supply and use of a protective coating product on piping and equipment used in a gas field onshore project in Darwin. The coating degraded, and the cost of rectification was said to be in the billions of dollars. Which party should bear that cost is in issue. The applicants allege the respondents made misleading or deceptive representations to the effect that coating product was capable of providing a protective barrier against the external environment of the kind existing at Bladin

Point, Darwin, when applied to steelwork, and was suitable for use on the project.

The application for cross-examination regarding discovery was brought during the closing stages of a long and complex trial on liability. There remained some discrete matters to be addressed, including potential further oral closing submissions, evidence from a further witness and written closing submissions.

This litigation involved events over about a decade, but in particular between 2011 and 2017. The Court accepted that problems with document identification and retention are bound to arise in proceedings of this scale, and some mistakes are inevitable (at [19]). The application was prompted by the production of nearly 3000 documents by a respondent (ANIP) during the 11 week period of the liability trial and the contents of the relevant affidavits filed by ANIP. The application also relied on what were said to be inadequate or ambiguous explanations as to why repositories of certain documents apparently no longer exist (at [24]).

Banks-Smith J observed about the deponents who INPEX sought to cross-examine (at [50]): “None of the affidavits sworn by the deponents are of the nature of the familiar standard discovery affidavits that attach and verify lists of documents said to have been in the possession, custody or control of a party. Rather, they are affidavits that respond to bespoke requests for further documents or seek to provide explanations as to an absence of documents or late production . . [T]his distinction is important. It reveals the need to approach with caution the application of a long line of authorities that suggest that cross-examination on discovery affidavits is not ordinarily permitted. It is important to have regard to broader statements of principle in relation to cross examination of the deponents of affidavits on interlocutory applications.”

With this in mind, the Court addressed the authorities relating to crossexamining a deponent relating to discovery (at [51]–[62]). Banks-Smith J stated (at [63]): “. . . it is apparent from the authorities that it is open to the Court to permit the deponents of affidavits to be cross-examined in special circumstances.

These include where there are reasonable grounds for being fairly certain that there are other relevant documents, where there is concern about the legitimacy of the discovery process, or where the only process by which the deficiencies can be exposed or to ensure that injustice is not done is by cross-examination.” The Court preferred the view that, in the context of this application, pursuant to s27 of the Evidence Act 1995 (Cth), INPEX did not require leave to cross-examine deponents of the affidavits (at [65]).

The Court held that there were special circumstances that would justify a grant of leave (if it were required) and that persuade the Court to permit cross-examination in any event (at [66]).

Banks-Smith J concluded (at [76]):

“The central point of this application, to adopt what was said in Mango Boulevard, is to ensure that all the pleaded issues between the parties are tried fairly. And to adopt what was said in Olympic Airways, an injustice might be done if documents of relevance to the proceeding do exist but are not discovered. The Court will be assisted in guarding against the risk of such injustice by permitting cross-examination. A party cannot be permitted to gain a forensic advantage by failing to give proper disclosure, nor by giving ambiguous, incomplete or artificially-confined explanations for any such failure or the absence or destruction of documents without the capacity for the explanations to be tested. Cross examination is the manner by which such explanations might be tested.”

However, the Court also noted that crossexamination relating to an interlocutory process (such as discovery) is more strictly controlled than during a trial and, where permitted, tends to be limited to the issues of the application. Thus, permitting cross examination would not provide an opportunity for free-range cross-examination on any matter in issue (at [88]).

Banks-Smith J observed that the decision to permit cross-examination was not premised on any view or assumption as to any inappropriate conduct by the deponents of the affidavits and stated he

had not formed such views or made any such assumptions (at [117]).

PRACTICE AND PROCEDURE

Suppression and non-publication orders over pleadings – whether disclosure of pleadings might imperil mediation

In Saw v Seven Network (Operations) Ltd [2024] FCA 1210 (18 October 2024), Ms Saw issued proceedings for relief for contraventions of the Fair Work Act 2009 (Cth) arising from her employment by Seven. Seven filed an application for suppression and non-publication orders to prevent Ms Saw’s statement of claim and amended statement of claim until the mediation between it and Ms Saw took place or until its defence was filed.

A suppression or non-publication order can only be made if the requirements of s37AG(1) of the Federal Court of Australia Act 1976 (Cth) (FCA Act) are satisfied. Seven relied upon s37AG(1) (a) – that is, that suppression and non-publication orders are necessary to prevent prejudice to the proper administration of justice.

Perram J observed (at [8]): “The resources of the Court are finite. Every case which is not settled must be heard and determined. Consequently, the Court encourages parties to settle their litigation and it is in the interests of the administration of justice that they do so. Where proceedings have been settled, it has been accepted by many judges of this Court that non-publication and suppression orders may be made over documents on the Court file so that parties can be assured that settled proceedings remain confidential.”

Perram J further stated that the same policy considerations that support the making of such an order after the settlement of a proceeding would, in an appropriate case, justify the making of such an order before a mediation, at least where the mediation is imminent and one party believes keeping the matter confidential will increase the chances of settlement (at [9]).

The Court was cognisant that the proceedings had attracted attention in the media, and it was likely that if the pleadings are made public then their contents will be widely reported. That this may be embarrassing to Seven (and potentially the third parties) was irrelevant to the power to make a suppression or non-publication order, as it was wellestablished that mere embarrassment was not sufficient to justify the making of such an order (at [13], with reference to authorities).

However, Perram J concluded (at [14]):

“Seven puts its case on the basis that the chances of settlement will be enhanced if Ms Saw’s allegations are not aired publicly before the mediation. Ms Saw submits that this is not so and that the prospects of settlement will not be materially affected by any such press coverage. Ms Saw’s submission is unrealistic. The continued maintenance of confidentiality is something which may be of value to Seven at any mediation and hence also to Ms Saw. To be crude about it, keeping the details of Ms Saw’s allegations out of the news is something Ms Saw can offer to Seven in their settlement negotiations. Once the allegations are public . . that bargaining chip will be off the table. Thus, I accept that there is a risk – which I would rate as significant – that the publication of the pleadings will deleteriously affect the prospects of the mediation succeeding.”

The Court held that effect would be prejudicial to the proper administration of justice within the meaning of s 37AG(1) (a) of the FCA Act. In reaching that conclusion, the Court took into account that a primary objective of the administration of justice is to safeguard the public interest in open justice.

Perram J made observations on the words “open justice” in s37AE of the FCA Act, stating (at [17]): “At common law, the principle of open justice does not require that access be granted to a document on the court file where the document has not been used in open court: John Fairfax Publications Pty Ltd v Ryde Local Court [2005] NSWCA 101; 62 NSWLR 512 at 526 [65] per Spigelman CJ (Mason P agreeing at 533 [100] and Beazley JA agreeing at 533 [101]). Thus, if the

reference to open justice in s37AE is to the common law principle of open justice, then the principle has no application in this case because the pleadings in question have not been used in open court (other than for the purposes of this application).”

Perram J explained why he respectfully disagreed with certain statements of Rangiah J in Ryan v Transurban Limited [2024] FCA 994 regarding the expression “the public interest in open justice” in s37AE and its relationship with r2.32(2) of the Federal Court Rules 2011 (Cth) (at [18]–[21]).

PRACTICE AND PROCEDURE

Security for costs of appeal – stay application

In Lehrmann v Network Ten Pty Limited [2024] FCA 1226 (23 October 2024), before the Court were two interlocutory applications: (1) The respondents sought an order that the appellant provide security for the respondents’ costs of the appeal proceeding. (2) The appellant sought to stay the costs order made by the primary judge requiring he pay $2 million to the first respondent.

Abraham J refused the respondents’ application for security of costs and granted the appellant’s application for a stay on the primary judge’s cost order until the appeal in this proceeding is determined.

The well-established principles relevant to security for costs were summarised at [16]–[26]. The principles relevant to a stay order pending an appeal were summarised at [27]–[32].

PRACTICE AND PROCEDURE

Judicial notice

In Mastercard Asia/Pacific Pte Ltd v Australian Competition and Consumer Commission [2024] FCA 1237 (17 October 2024), the Court dismissed the application for leave to appeal brought by the Mastercard parties against orders made by the primary judge that, pursuant

Family Court Judgments

SEPTEMBER 2024 / DECEMBER 2024

PROPERTY

Declaration of de facto relationship contained error as it included an unnecessary commencement date –De facto relationship existed where parties did not live together in the traditional sense but their use of a hotel room did form a “quasi-common residence”

In Yoxall & Eide [2024] FedCFamC1A 200 (29 October 2024), the Full Court (Austin, Gill & Baumann JJ) heard a de facto husband’s appeal against a declaration by Williams J that the parties had lived in a de facto relationship between March 2017 and December 2020.

The Full Court said (from [54]):

“... It was unnecessary for the primary judge to determine the length of the parties’ de facto relationship because the birth of their child made the duration of their relationship irrelevant to the existence of jurisdiction…

( … )

[69] The primary judge concluded that … their use of the J Hotel formed a 'quasi-common residence'. The primary judge then reasoned that the concept of residence should be considered in the light of the parties’ 'preferences to live a luxurious lifestyle in which travel, and holidays were at the fore' ... [and] that this constituted 'shared life as a couple with their daughter, although in an unusual and unorthodox manner' (at [152]).

( … )

[73] Although there was no intermingling of their finances, the primary judge found that the respondent was financially

dependent upon the appellant during the relationship… ( … )

[115] Under circumstances where the end of the relationship was uncontroversial, once the aggregation of factors had led to the conclusion that there was a de facto relationship, little reasoning was necessary to determine the end date of the relationship.

[116] However, a more explicit reasoning process was necessary to establish a particular date early in the relationship as forming an adequate conglomeration of factors. That was not done, and so the basis on which March 2017 was perceived by the primary judge to be the start of the de facto relationship was not adequately exposed.”

The appeal was allowed and the Full Court set aside the offending order, substituting another order declaring “ … [T]hat a de facto relationship existed between the parties, ending in December 2020” ([2]). Costs certificates were ordered.

CHILDREN

Contravention – Conflation of different burdens of proof borne by the parties – Family Law Amendment Act 2023 (Cth) only applies to contraventions that occurred on or after 6 May 2024 – The repealed Division 13A of Part VII applies to pre- 6 May contraventions

In Hatfield & Rivas [2024] FedCFamC1A 202 (31 October 2024) Austin J, sitting in the appellate jurisdiction of the Federal Circuit and Family Court of Australia,

heard a father’s appeal from a dismissal of his contravention application.

At the hearing, the father alleged five counts of breach by the mother. The trial judge dismissed each count and found that the father’s evidence did not establish that the mother either intentionally breached the orders or made no reasonable attempt to comply ([7], [10]). The father appealed. Austin J said (from [32]):

“His Honour confused the father’s initial obligation to prove the lack of any reasonable attempt by the mother to comply with the orders (s 70NAC(1)(a)(ii)) with the mother’s separate subsequent obligation to prove a reasonable excuse for breaching the order (s 70NADA). There is a material difference between, on the one hand, no reasonable attempt to comply with an order and, on the other, a reasonable excuse for not having complied with it.”

His Honour continued (from [67]):

“The contraventions alleged against the mother were confined to the period between April 2023 and December 2023. The contravention application was heard in June 2024. In the interregnum, on 6 May 2024, the provisions of Pt VII, Div 13A of the Act were substantially amended by the Family Law Amendment Act 2023 (Cth) (“the Amendment Act”). (

[72] … [A]bsent express legislative intention for the new provisions of Pt VII, Div 13A to apply to contraventions alleged to have occurred whilst the old Pt VII, Div 13A was operable, the old provisions must still apply to such historic contraventions.

[73] … [T]he primary judge expressly applied the new, rather than the old, provisions of Pt VII, Div 13A of the Act (at [14])…”.

The appeal was allowed and the dismissal orders set aside. The matter was remitted for rehearing and a costs certificate was granted to the father.

PROPERTY

A finding that wife’s parents sold a farming property to the parties for less than market value held to be in error where wife had failed to obtain a retrospective valuation of the property

In Perna [2024] FedCFamC1A 183 (15 October 2024), McClelland DCJ, sitting in the appellate jurisdiction of the Federal Circuit and Family Court of Australia, heard a husband’s appeal from property orders.

The major assets were two rural farming properties (“Property C” and “Property D”) which were intergenerationally farmed by the wife’s family. Property D was sold by the wife’s parents to the parties and other family members during the relationship ([2]).

No retrospective valuation was obtained of Property D. The trial judge found that Property D was sold to the parties at 20 per cent below market value. The husband appealed.

McClelland DCJ said (from [39]):

“

… [T]he primary judge was not in a position to determine the market value of Property D at the time of its sale from the wife’s parents to the wife and her siblings in 2009 in circumstances where the primary judge had not been provided with evidence from an appropriately qualified expert with specialised knowledge of the valuation of farming properties. …

[40] I accept … that, ordinarily, in undertaking the task of assessing contributions, it is unnecessary to place a precise value on any particular

contribution, however it was necessary to do so in respect to Property D … because the finding by the primary judge that the property was sold to the wife and her siblings at 20 per cent less than market value was a significant finding in respect to his ultimate conclusion that the appellant and the respondent had benefited from the generosity of the wife’s parents…

[41] In those circumstances, the error was material to the assessment of the primary judge that the wife was entitled to a 4 per cent adjustment in her favour … as a result of contributions … including the generosity by her parents as so found. … I am satisfied that the error was material to the outcome of the proceeding…”

The appeal was allowed, the final property orders set aside and the proceedings remitted for rehearing. A costs certificate was granted to the husband. No costs certificate was granted to the wife.

CHILDREN

Order for no time – Father carried out “retributive attempted suicide” at mother’s place of work and used the trial process to inflict further psychological harm on mother –Father was “devoid of the capacity for reflection, insight and remorse”

In Batas & Gaire (No 2) [2024] FedCFamC1F 672 (18 October 2024) Kari J heard a father’s parenting application for time with the parties daughter born in 2011 (“X”). The father was a perpetrator of significant family violence, coercive and controlling behaviour and had carried out a “retributive attempted suicide” at the mother’s place of work ([3]).

Kari J said (from [8]):

“

… I am satisfied that the father used the trial process itself to inflict further psychological harm on the mother. I have made findings throughout these reasons about the serious family violence perpetrated by the father and endured by the mother, quite separate from the retributive attempted suicide. … ( … )

[89] In all, the father impressed as a person incapable of taking responsibility for his actions and the impact his actions have had upon the mother.

[90] Importantly the father provided little evidence of substance to the Court as to the work that he has done in the post separation period, and importantly since the release of Dr B’s report to address the significant risks presented by the family violence he has perpetrated. ( … )

[102] I am satisfied from all of the evidence that the mother continues to suffer from PTSD, anxiety and depression, which presents with symptoms that are intrusive and significantly debilitate and impact the mother’s functioning. ( … )

[105] I also accept that the mother is unable to cope with any form of communication or time spending between the father and X. ( … )

[114] I am satisfied from the evidence that the retributive attempted suicide was not an impulsive and isolated incident. … ( … )

[125] In light of these findings, I am satisfied that the father presents an unacceptable risk of harm to the mother and X and particularly if there was to be any form of time spending between the father and X.”

Orders were made as sought by the mother and supported by the ICL.

PROPERTY

Stanford distinguished – Husband lived in aged care but the parties had separated – Court did not err by considering s 90SM(4) when determining that it was just and equitable to divide the parties’ property

In Costello & Langdon [2024] FedCFamC1A 168 (24 September 2024) the Full Court (Aldridge, Austin & Tree JJ) heard a de facto wife’s appeal from property orders following a 41 year relationship which ended when the de facto husband entered aged care in 2021. The trial judge ordered a 64:36 adjustment in favour of the de facto wife.

The Full Court said (from [21]):

“… [I]n Stanford the parties had not separated in the sense that the relationship had ended – the parties were involuntarily living apart because of the illness of one of them. Here, there was an unchallenged finding that the parties had separated…

[22] … [T]he parties each accepted that it was just and equitable for there to be an order under s 90SM.

( … )

[37] … [W]here the relationship has not broken down the explicit and implicit assumptions about the parties’ mutual use of their property remain in place. Ordinarily, such assumptions would include the use of the parties’ income and property for each party to be provided for properly. Thus … those needs might be satisfied by orders for spousal maintenance but where they would not then those unmet needs might make it just and equitable to make a property settlement order.

[38] Considerations under s 90SM(4) of the Act may therefore inform both the exercise of the discretion in deciding whether it is just and proper to make an order… (

)

[40] It follows that the primary judge did not err by taking into account Mr Langdon’s unmet needs for better care when deciding it was just and equitable for there to be a division of the parties’ property.”

The appeal was dismissed and a costs order was made in favour of the litigation guardian for the husband in the sum of $14,707.

PROCEDURE

Inaccurate list of legal authorities tendered by town agent – List was generated by LEAP software utilising artificial intelligence – Agent given a month to make submissions as to why he ought not be referred to the Victorian Legal Services Board and Commissioner in relation to the list of authorities

In Handa & Mallick [2024] FedCFamC2F 957 (19 July 2024) Judge A. Humphreys considered the conduct of the husband’s legal representative during the wife’s application for enforcement of property orders.

The husband’s solicitor (“Ms Aus Lawyers”) filed a Notice of Address for Service and instructed a town agent (“Mr B”) to appear. Mr B provided the Court with a list of authorities which neither Her Honour nor her associates could locate. Judge A. Humphreys said (from [7]): “ … I asked Mr B if the list of authorities had been provided using artificial intelligence. He informed me the list had been prepared from LEAP, being a legal software package, as I understand it, used for legal practice management and

other purposes. I asked if LEAP relies on artificial intelligence. He indicated that it does…

[8] I informed the parties and their legal representatives this morning that as a concern had arisen in relation to the veracity of information provided in the list of authorities, a concern had in turn been raised in relation to the competency and ethics of Mr B… ( … )

[10] I have foreshadowed … making an order providing Mr B an opportunity to respond to the court's proposal to refer his conduct in tendering the apparently inaccurate list of authorities today, to the Legal Services Board and Commissioner for investigation. Beyond that, I will not be making an assessment or a determination in relation to that conduct. That will be a matter for the legal professional body if a referral is made. The purpose of the order I make is for Mr B to be afforded procedural fairness in relation to my proposal to make that referral. I will provide him with one month to do that… ( … )

[14] … I will make the orders foreshadowed and Mr B can address the veracity of information provided in the list of authorities in his written submissions if he wishes to do so.”

The proceedings were adjourned.

PROPERTY

Application for consent orders refused – Mentally disabled wife was in aged care but marriage had not broken down – Court was not satisfied that the proposed property orders were just and equitable

In Giordano [2024] FCWA 182 (2 September 2024) O’Brien J heard an application for consent orders where the disabled wife required full time care. The husband and the Public Trustee as case guardian for the wife proposed consent orders in which the family home was to be transferred from the wife to the names of both parties as joint tenants. The parties were otherwise retaining their respective assets ([1]).

O’Brien J said (from [5]):

“There can be no suggestion that the absence of a breakdown in the marital relationship means that the jurisdiction of the Court is not enlivened.

[6] There can be circumstances other than ‘a voluntary separation of the parties marking the breakdown of their marital relationship’ in which the Court is nevertheless satisfied that it is just and equitable to make an order for the alteration of property interests … ( … )

[23] I cannot be satisfied on the available evidence that it is just and equitable to make any order for alteration of property interests, let alone that the orders presently proposed are just and equitable in all the circumstances.

[24] I do not know whether the questions which emerge from the papers have been adequately considered by the Public Trustee in the exercise of his protective duties to the wife. I accept that they may well have been - but the evidence does not presently permit that conclusion to be drawn. [25] … [I]t is not at all clear that the parties have adequately considered

the fact that there is but one exercise of the Court's power to alter property interests. While the marriage has not broken down, the wife's needs are apparently presently being met and the husband desires security of accommodation, the making of orders now would (subject only to the possible application of s 79A) preclude the making of further orders for alteration of property interests should the relationship end."

The application was adjourned to allow the parties a reasonable period to consider their options and adduce further evidence ([28]).

PROCEDURE

Father’s application for release from Harman undertaking to use expert evidence in his criminal defence dismissed, as he failed to establish that his proposed use of report would contribute to the administration of justice

In Kuang [2024] FedCFamC2F 1191 (29 August 2024) Judge Murdoch heard a father’s application for leave to be released from his Harman undertaking in respect of a single expert report prepared for parenting proceedings. He was facing criminal charges in the District Court and sought to use the material in those proceedings.

The single expert report was prepared by a psychiatrist and pertained to the welfare of the children.

Judge Murdoch said (from [15]):

“ … [T]he pre-eminent consideration is whether there is a real possibility that the expert reports may contribute to the administration of justice in the father’s criminal proceedings. ( … )

[24] I am not satisfied the father has discharged his onus to establish that he and his legal advisors should be released

from the ‘Harman Undertaking’ … because:

• No evidence was provided by the father to demonstrate that the expert is on notice as to the application for leave…

• The father has not established how an untested hearsay opinion based from material that would not appear to be adduced in the criminal proceedings … will likely contribute to achieving justice.

• The father has not established how untested alleged conversations that are potentially hearsay and given with the assistance of an interpreter will likely contribute to achieving justice…

• The father has not engaged in any meaningful manner with the best interests of the children… There is no evidence as to how the release of this report to be used in the father’s criminal proceedings will impact on the children. I accept the mother’s submissions that in the event the single expert were to give evidence in the father’s defence in the criminal proceedings it would be inappropriate for him to continue as the single expert in these proceedings. This would cause significant delay in the parenting proceedings and the children’s involvement in the preparation of a second expert report. This is not in their best interests.”

The father’s application was dismissed and the mother’s costs reserved for 28 days.

Supreme Court Judgments

SEPTEMBER 2024 / DECEMBER 2024

APPEAL

Decision to protect the public and maintain the high standards of the ACT legal profession.

In Law Society (ACT) v Bangura [2024] ACTSCFC 1 (30 October 2024), the ACT Supreme Court (Mossop J, McWilliam J and Ainslie-Wallace AJ) ordered that the Respondent be struck off the Roll of Legal Practitioners in the ACT on the basis that he was not a fit and proper person to be a legal practitioner of the Supreme Court. The Applicant brought proceedings alleging that the Respondent was likely to be unfit to practice in the indefinite future. In making its assessment, the Court considered whether a criminal conviction involving dishonesty would render the practitioner unfit to practice.

The facts involved a fraudulent insurance claim for $700,000 made by the Respondent in 2015 after he was involved in motor vehicle accident . After submitting the claim, the Respondent attended a number of medical examinations and, in doing so, made false claims about the extent of his injuries and their impact on his ability to work 2 . In 2017, the Respondent was arrested and charged with attempting dishonestly to obtain a financial advantage. He pleaded not guilty but was convicted and sentenced to two years’ imprisonment with a non-parole period of nine months. The Respondent appealed his conviction, with the NSW Court of Appeal ultimately dismissing his action with costs3 . Lower court findings Law Society (ACT) v Bangura [2024] ACTSCFC at [22].

2 (n 1)[23]-[24].

3 See Bangura v Director of

included that the Respondent had made false representations to the doctors who examined him, and had asked solicitors who worked with him to lie on his behalf 4

In deciding this case, the Court noted that removing a solicitor’s name from the Roll was the ‘most serious protective order’ available 5 , and that other protective orders would usually be appropriate unless the ‘reason for unfitness is permanent, or at least of indefinite duration6 .’ Noting the Respondent’s dishonesty was ‘prolonged and persistent’ and involved ‘compounding lies to professionals and to the court which commenced in the pursuit of monetary gain’7, the Court noted that convictions involving dishonesty are more likely to render a practitioner unfit because of the ‘high degree of trust and confidence’ that the community and the courts place in members of the profession8 . The Court also pointed out that, in these types of proceedings, its role is not to punish the practitioner but, rather, to protect the public and maintain the high standards of the legal profession9 . As such, while the facts of each case ‘may be unfortunate and evoke sympathy, they should not detract from the core purpose of public protection10 .’

The Respondent was unsuccessful in arguing that the Court should suspend him from the Roll rather than strike him off indefinitely. The Court accepted character references to the effect that the 4 (n 1) at [29]-[30].

5 (n 1)[58]

6 (n 1)[59]

7 Law Society (ACT) v Bangura [2024] ACTSCFC [63]

8 (n 1)[12]

9 (n 1)[60]

10 (n 1)[13]

Respondent was ‘valued and held in high regard by the community11’ but ultimately gave them little weight. It concluded that the Respondent’s conduct was ‘neither isolated, nor of short duration’12 and amounted to an attempt to ‘pervert the course of justice’, demonstrating a ‘defect in character clearly incompatible with membership of the legal profession’13 . Because of the severity of the Respondent’s misconduct, the Court decided that a lesser sanction would not achieve its protective role of safeguarding the legal profession. In doing so, the Court reaffirmed its approval of Spigelman CJ’s judgment in New South Wales Bar Association v Cummins, in which his Honour emphasised the public interest in ensuring members of the legal profession are held to high standards of honesty and integrity14

Judgement summary prepared by Damien Kelly and Kendall Mutton