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Practical Legal Training in Darwin Activate your graduates’ careers. Leading, and in tune with the profession, The College of Law helps graduates kick-start their career with the largest range of flexible, purpose-driven programs. • • •

Graduates are trained to solve problems in a task-based format Only 5 days onsite in Darwin – less time out of the office Legal Business Skills option covers important skills such as time and work management, communication, client service and developing a commercial mindset

As part of our relationship with Charles Darwin University, we are offering full and part-time courses in Darwin.

Callum Lee Conveyancing Paralegal, LifeLaw Solutions Graduate of the Practical Legal Training program

Next courses starting

13 July 2020

Marco Piazza, Head of Course NT, with our Practical Legals Training students in Darwin, December 2019.

Email mpiazza@collaw.edu.au or call 02 9965 7066 to find out how we can work with your firm.


Law Society nt 3/6 Lindsay Street Darwin NT 0800 GPO Box 2388 Darwin NT 0801 T (08) 8981 5104 F (08) 8941 1623 lawsoc@lawsocietynt.asn.au www.lawsocietynt.asn.au Balance subscriptions $165 annually within Australia – enquiries: balance@lawsocietynt.asn.au

Contents

BALANCE 1|20

COLUMNS PRESIDENT: Let’s do this 2020!

4

© Law Society Northern Territory

CEO: A new adventure awaits

6

Except as permitted under the Copyright Act 1968 (Cth), no part of this publication may be reproduced without the specific written permission of the Law Society NT.

CLANT: The NT election we cannot afford to have

8

Balance is the official journal of the Law Society NT and is published quarterly. The Society reserves the right to refuse to publish submitted advertisements, articles and photographs upon their discretion. All contributions, letters, advertising and enquiries should be forwarded via email to: balance@lawsocietynt.asn.au Unless it is clearly indicated, the views expressed in Balance are not to be taken as those of, or endorsed by, the Law Society NT. No responsibility whatsoever is accepted by the Law Society NT for any opinion, information or advertisement contained within Balance.

NTWLA: News and updates

10

NTYL: News and updates

14

STORIES Meet your 2020 Council members

16

CDU Indigenous Pre-law Program 2020

18

CYBER insurance for law firms: yes, no or maybe?

20

6 painless steps to keeping your law firm cyber-safe

22

Step up: Integrating emotional intelligence with professional practice

24

2020 Opening of the Legal Year 2020 pictorial legalsuper: More changes for insurance in super 2020 Start at the top Family Law Conference pictorial

Content deadlines 1/2020: 19 February 2/2020: 20 May 3/2020: 19 August 4/2020: 18 November Send all Balance enquiries and submissions to: balance@lawsocietynt.asn.au Magazine layout and design Evie Buffon, Law Society NT

Events calendar

26-27 28 30-31 32

Noticeboard 33 Joint Practice Direction: JPD1 of 2020. Core Principles in the Case Management of Family Law Matters.

34

CASE NOTES Family law judgments

36

High Court judgments

41

Federal Court judgments

53

LAW SOCIETY NT

1


LAW SOCIETY NT Executive Maria Savvas President Carly Ingles Vice-President Emma Farnell Treasurer Victoria Bell Secretary

Councillors Anna Gill Glen Dooley

Connect with us.

Richard Henschke Dr Guzyal Hill Fiona Kepert Matthew Littlejohn Ruth Morley Lisa O’Donoghue Bernadette Raumteen Sarah Strzelecki Leonique Swart Josine Wynberg

Secretariat Kellie Grainger Chief Executive Officer Julie Davis Corporate Services Manager Aislinn McIntyre Manager Regulatory Services

/lawsocietynt

Patrick Berends Complaints Investigator Marian Wilson Senior Policy Lawyer & Pro Bono Coordinator Chantal May Executive Assistant

/lawsocietynt

Evie Buffon Publications & Communications Officer Heather Traeger Professional Development Officer Carolyn Zombolas Membership & Events Coordinator

lawsocietynt.asn.au

Leonie Stokes Licensing Officer Afaisa Hicks Reception & Administration Assistant

be informed 2

BALANCE EDITION 1|20


Chief Justice Grant to address

Hellenic Australian Lawyers Association (HAL) International Conference Rhodes, Greece | 5–10 July 2020 REGISTER NOW

HAL is hosting its second International Legal Conference on:

Themes in Democracy – Liberty, Justice and Human Rights.

Law Week is going to be a little bit different in 2020... The traditional Law Week Lunch will not be held but some of your favourite events will return. Planning is underway for these events and other activities, including an event which is also a CPD. A full calendar of events with further information will be released to practitioners closer to Law Week.

The Conference venue is the Sheraton Rhodes Resort. HAL is privileged to have the Hon Justice Stephen Gageler AC as the keynote speaker. HAL is also honoured to have as speakers several chief justices and other eminent jurists from Australia and overseas, including Chief Justice Grant. Those wishing to attend are encouraged to register without delay to avoid missing out as the number of places available is limited. A number of optional tours, which are different to the 2018 Conference tours, are included in the registration fee, and have been organised for delegates and accompanying persons. Family members are welcome to attend the tours at a nominal cost.

Further details are available at: www.hal.asn.au/rhodes2020/

SUNDAY 17 MAY 2020 LAW SOCIETY NT

MONDAY 18 MAY 2020 NT YOUNG LAWYERS

TUESDAY 19 MAY 2020 LAW SOCIETY NT

Are you holding any Law Week activities or events? Do you want to be included in the calendar of events and in notifications sent to the NT legal community ahead of Law Week? If the answer if yes, let us know by emailing details to lawsoc@lawsocietynt.asn.au. Keep an eye on social media The Practitioner e-newsletter for updates as the occur! LAW SOCIETY NT

3


from the president

Let’s do this 2020! MARIA SAVVAS PRESIDENT, LAW SOCIETY NT

Welcome everyone to 2020. This is the Society’s first edition on Balance via a digital format, and we hope that the transition from a printed publication will be embraced by our members. We’re already two months into the year and it’s clear that 2020 is shaping up to be another busy year for the Society. This year the Opening of the Legal Year was held in Darwin on 6 February 2020 and on 7 February 2020 in Alice Springs, and both events were well‑attended by our members and distinguished guests. I would also like to thank the Chief Justice for speaking at the OLY dinner and Justice Southwood for speaking at the luncheon in Darwin to mark the opening of the new legal year. I would also like to thank the members for supporting these functions. The current President of the Law Council of Australia (LCA), Pauline Wright, was our guest speaker at both events. Ms Wright delivered a thought provoking speech about the need to focus on the challenges faced in the regions, youth detention and the shameful incarceration rates of Indigenous Australians. My genuine hope is that we can work with the LCA to successfully advocate Indigenous justice issues. While some members might wonder what significance the LCA is to our profession in the Territory, I can say that in the last two years I have

4

BALANCE EDITION 1|20

developed a greater appreciation of its role in lobbying governments on issues relevant to the entire profession. We have been fortunate that the former and current President have both prioritised focusing on the challenging legal issues of regional Australia and we continue to work with the LCA in developing strategies which benefit our local profession and community. Though it’s early days, the NT Pro Bono Relief Scheme developed by the LCA and the Society which sees members of interstate bars offering their pro bono services to the NTLAC and NAAJA seems to have gained some traction. The Society has received expressions of interest from senior members of the Victorian and NSW Bars and we’re hopeful that this will continue into the future with a view to alleviating some of the under-resourcing and under-funding issues. The Council recently held a Strategic Planning session, independently facilitated, to review the Society’s last Strategic Plan and develop the next Strategic Plan for 2020–22. This session provided

Maria Savvas & Pauline Wright


us with an opportunity to reflect on our achievements and challenges over 2017–19. Some of the Society’s goals that were achieved over the past three years were celebrated and removed as objectives for the new Strategic Plan, and new goals including ensuring the health and wellbeing of our members were adopted. Of course, we recognise that there is still a lot of work to be done on existing goals such as strengthening member engagement across the Territory and responding efficiently to regulatory demands, and we hope to develop better strategies to achieve these goals. There is no doubt that with a new Council there comes new ideas and a change in objectives, and I’m confident that the current diversity of councillors will be advantageous in progressing issues across all sectors of the profession. While some of our objectives have been achieved, the Society continues to focus advancing the following priorities: ●● advocating for increased funding to NTLAC to enable, amongst other things, an increase in remuneration payable to private practitioners doing legal aid work; ●● advocating for legislative reform, including the review of the Judicial Commission Bill; ●● developing a mentoring scheme or arrangement for young lawyers;

●● reviewing the Society’s budget to ensure the long‑term survival of the fidelity fund; and ●● improving efficiencies in dealing with regulatory matters. This year will also be a year of change for the Secretariat as we farewell our beloved CEO Kellie Grainger and welcome another well-respected member of our profession, Kelvin Strange as the Society’s new CEO. I would like to express my thanks and gratitude to Kellie for her hard work and the support she has provided to Council not only in her role as the CEO but also in her former role as the Manager Regulatory Services. Kellie has done a remarkable job in improving the work of the Society. She has gained the well-deserved respect of the legal profession and in my view, has done so by prioritising the interests of the members. The Council and members of the Secretariat wish Kellie all the best in her future endeavours. I also take this opportunity to congratulate Kelvin on joining the Society. I have no doubt that Kelvin’s 30+ years of experience as a Territory lawyer and manager will ensure the continued success of the Society.

Important dates for practitioners in 2020 CPD Certificates Tuesday, 31 March Annual CPD Certificates due Tuesday, 30 June Supplementary CPD Certificates due PC renewals Wednesday, 1 April PC renewal period starts Tuesday, 2 June PC late fee period starts TUESDAY, 30 JuNE PC renewal period ends Law practice Thursday, 9 April Annual Trust Money Statement Part A due Trust accounts Thursday, 23 April Annual Trust Money Statement Part B due Thursday, 23 April Notification 72 due Monday, 1 June External Examiners Report due Tuesday, 4 August Persons Authorised to Effect Withdrawals due

May 2020 bring us all good fortune, good health and success! I can be contacted through the Society or via email:

% maria.savvas@savvaslegal.com

LAW SOCIETY NT

5


from the chief executive officer

A new adventure awaits KELLIE GRAINGER CEO, LAW SOCIETY NT

And into the roaring 20s we head! There is no doubt that the coming decade will be one of much change, with plenty of challenges and opportunities for the legal profession and the broader community. The Society is implementing some significant changes of its own over the course of this year as we move into a new Strategic Plan for the organisation, taking professional indemnity arrangements for NT law practices in a new direction, re-focussing our Continuing Professional Development Program and continuing to work toward efficient and effective regulatory responses. This is also a year of change for the Secretariat— we are settling into our new premises, there will be a new CEO leading the team and there are other changes with the Secretariat staff happening over the coming months.

I have very much enjoyed my time working at the Society’s Secretariat, in my roles as Manager Regulatory Services and CEO. It has been rewarding, at times challenging, but always fulfilling. Whilst the legal profession in the NT is small by number, in my observation it serves the community with passion and compassion. There are many dedicated practitioners not only working in their clients’ best interests but also contributing to law reform and advocacy for the benefit of the community more broadly. I have relished the opportunity as CEO to spend time with our regional members in Katherine and Alice Springs and hear directly from them about their experience of practising law in the Northern Territory. I am routinely in awe of the high calibre work undertaken by many of our practitioners under difficult and under-resourced circumstances.

Sadly this will be my last message to you in Balance. As I work to wrap things up before my departure from the Secretariat and prepare for a handover to Kelvin Strange as incoming CEO, I’ve reflected on my time with the Society and my interaction with many of the Society’s members.

2019 Members’ Christmas Drinks, Darwin

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BALANCE EDITION 1|20


Northern Territory legislation INTRODUCED

Even though I am leaving the Territory and looking to explore new opportunities in Brisbane, rest assured I will promote the great work you do any chance I get!

Return to Work Legislation Amendment Bill 2020

19/02/20

Financial Management Amendment Bill 2020^

19/02/20

Firearms Legislation Amendment Bill 2020^^

19/02/20

Judicial Commission Bill 2020

13/02/20

Liquor Amendment Bill 2020

13/02/20

Transport Legislation Amendment Bill 2020

13/02/20

Planning Amendment Bill 2020

13/02/20

Treaty Commissioner Bill 2020

12/02/20

Sexual Offences (Evidence and Procedure) Amendment Bill 2019

28/11/19

Petroleum Legislation Miscellaneous Amendments Bill 28/11/19 Ports Legislation Amendment Bill 2019

28/11/19

I extend my thanks to all of the Councillors and committee members I have had the pleasure of working with over my eight years at the Society. Particular thanks go to the three Presidents I have worked under over that time—Peggy Cheong, Tass Liveris and Maria Savvas.

Justice Legislation Amendment (Domestic and Family Violence) Bill 2019

28/11/19

Burial and Cremation Bill 2019*

7/08/19

I also want to take this opportunity to publicly thank the exceptionally hard-working team at the Secretariat. It has been my honour to work with you and lead you. You are a wonderful bunch of humans and are to be congratulated for the contribution you make to the smooth operation of the Society and its efforts to support the legal profession.

% ceo@lawsocietynt.asn.au ! (08) 8981 5104

PASSED Marine Pollution Legislation Amendment Bill 2019**

20/02/20

Licensing (Director-General) Repeal Bill 2019

19/02/20

Residential Tenancies Legislation Amendment Bill 2019**

18/02/20

Criminal Property Forfeiture Amendment Bill 2019**

13/02/20

Mental Health and Related Services Amendment Bill 2019**

13/02/20

National Disability Insurance Scheme (Worker Clearance) Bill 2019**

12/02/20

Courts Legislation Amendment Bill 2019**

11/02/20

Evidence and Other Legislation Amendment Bill 2019**

11/02/20

^ Private Member’s Bill - Negatived 19/02/2020 ^^ Private Member’s Bill * Withdrawn ** Amendments made Sourced 8.35 pm, 27 September 2019 from: legislation.nt.gov.au/en/LegislationPortal/Bills/By-Session

LAW SOCIETY NT

7


criminal law yers association of the northern territory

The NT election we cannot afford to have MARTY AUST PRESIDENT, CLANT

We, the people of the Northern Territory, cannot afford a ‘Law and Order’ or ‘Tough on Crime’ election. We cannot afford hysteria. We cannot afford retribution. We need an honest dialogue with the community and evidence based policy reform. Unfortunately across at least the last 20 years, successive governments in the Northern Territory have persisted in introducing some of the most devastating law reform policy in the entirety of Australian criminal law jurisdictions. Time and time again our general community, our business owners, our children and importantly our most vulnerable members—the homeless, the sick, the uneducated, the English as a second language speakers—have been let down through punitive and short cited policy that doesn’t address underlying criminogenic risk factors. Policy reform that doesn’t promote rehabilitation and that does not reduce recidivism in any meaningful way. Broadly speaking, across the past 10 years crime rates in both youth and adult jurisdictions have been steady or have reduced. Unfortunately we have crime and we have issues with youth offending. The issues are entrenched and often underpinned by socio economic disadvantage; including unsafe and unsettled family environments, lack of appropriate housing and

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BALANCE EDITION 1|20

education and in particular, early interventions for mental health and drug or alcohol issues. These issues cannot be resolved overnight. They cannot be resolved by a few strong words aimed at alarming an already misinformed and frightened community that wants a quick fix that is simply not possible. Community involvement and consultation is crucial. Undoubtedly there are currently issues with property offending in Alice Springs. I have met with a number of MLAs including from Central Australia. It seems that a cohort of very young children, aged between 6 and 12 years, are causing the majority of the trouble, and that largely the trouble is occurring during day time hours as opposed to late at night. As an aside; generally speaking, children of this age group are not criminally responsible1 and would fall outside the scope of our criminal justice system. We need to remember that we had a $40m+ Royal Commission into the Detention and Protection of Children in the NT. The starting point for policy reform in the youth space is to adopt and enact in legislation all 209 of the recommendations from the final report. Sensible and responsible policy reform is to acknowledge the issue is not a quick fix and that a collaborative approach between departments and investment in the sector is required to address the underlying issues. We need to engage at risk youths with services and create consequences for offending behaviour that involve rehabilitation and alternatives


before they reach our failed adult system of ongoing mandatory sentencing and jail with no through care or adequate assistances. I am hearing from political hopefuls that victims of crime are put last. That is simply not the case. The Northern Territory criminal justice system has very strong legislative safe guards for witnesses and victims of crime. The voices of victims are paramount in our sentencing process and a requirement in every sentencing exercise. There are specific protections afforded that do not allow for certain victims to be called at committal proceedings, there are protections that govern the manner of giving evidence, pre-recording of statements and limits on cross examination. Victims and witnesses are provided with information

and referrals to counselling services and are assisted by dedicated specialist witness assistance officers. These are but a few aspects of our system that put victims’ front and centre and try to limit the impact and trauma associated with the court process. Further victims are able to access compensation payments and often restitution orders will be made. We cannot afford to regress and allow the community to be misinformed and manipulated. The best policy is to be honest with the community. We need to reintroduce community courts and specialist drug and alcohol courts. We need parole reform, to abolish all mandatory sentencing, to implement the recommendations of the Royal Commission, to create jobs and infrastructure in both communities and

urban centres and to tackle both mental health and drug and alcohol issues as medical issues. The current Draft Aboriginal Justice Agreement can have no practical effect or impact unless the palpable current legislative barriers that exist are removed. It doesn’t matter who forms government after the next election, as long as they are committed to these sensible evidence based policies over a ten year period. We need long-term solutions, not rhetoric, if we truly want to see a reduction in crime rates, increases in education, employment and productivity and greater money available to the treasury to further invest in positive policy reform for the Northern Territory in the long-term.

ï www.clant.org.au 1.

Our current age of criminal responsibility is 10 years of age; we also have the presumption of doli incapax for children aged below 14 years of age.

LAW SOCIETY NT

9


northern territory women law yers association

News and updates TRACI KEYS PRESIDENT, NTWLA

A big thank you to all our members who joined us in Darwin for our end of year Christmas Party at the new Law Society NT premises. Christmas time is a hectic time for everyone and we appreciate that you made time in your busy schedule to come celebrate with us. Alice Springs members finished up 2019 with End of Year Patron’s Drinks which was held on the balcony of the Supreme Court with Her Honour Justice Blokland. I am told it was overall a lovely evening with many new faces.

Vice-President (Darwin): Caitlin Weatherby-Fell

The end of year also meant it was time for our annual general meeting, which saw some changes to the Committee. Most notable was a change in President, with Bronwyn Haack finishing up in this role. Bronwyn has been integral in further expanding the work of the association to meet the diverse needs of members; including the development of CPDs relevant to female practitioners, significant progress on developing mentoring (to be progressed this year—so watch this space), contributions to significant policy and law reform, as well as continuing our usual opportunities for social get-togethers. She has been an inspiring President and has left the Association in a positive state. I know I speak for the entire Committee when I thank Bronwyn for her commitment and her quality leadership.

Secretary: Cheerian Eecan

As the incoming President, I feel honoured and excited to be able to lead an incredible group of women into 2020. Supporting me will be:

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Top End Women’s Legal Service

Vice-President (Alice Springs): Tierneigh Parnell Department of the Chief Minister

Treasurer: Nicki Petrou senior practitioner

law student

Public Officer: Frieda Evans Supreme Court NT

General Committee members: Bronwyn Haack Solicitor for the NT, Legal Policy Ros Chenoweth Crime Victims Services Unit Anna Davis Territory Families Kendra Few Cozens Johansen Nhi Tran Territory Families Leanne Gordon Darwin Local Court Ashlea Begg North Australian Aboriginal Justice Agency Alex andra Craig Central Land Council


It’s great to see some new faces and the continuation of past Committee members. We do however say goodbye to some of our long‑term members. In particular, our two Vice‑Presidents, Jessica Holgersson and Julia Parkin. Both big contributors to the Association and both big losses. The Committee wishes them both well and thanks them both for the time and commitment they each gave. I note that Julia is also departing the NT to take up a role with the Women’s Legal Service in Victoria. We wish her well and thank her for being such a welcoming face to female practitioners in Alice Springs. Also leaving in 2020 was Asta Hill (NT Legal Aid commission, Alice Springs), Rebecca Everitt and Michaela Malone (Director of Public Prosecutions). We look forward to meeting Asta and Michaela’s new bubs in 2020.

Lastly while not leaving (which I am very thankful for) is Frieda Evans who has been the Treasurer for NTWLA for a considerable period of the Associations existence. Frieda has been the backbone of NTWLA, making considerable contributions both behind the scenes as well as being a familiar face at every function. This year Frieda will step down from this long-term role, but will remain on the executive as Public Officer. The Committee thanks her for her dedication, commitment and pragmatism. As the new President, this year has already started off as a very busy one. We are currently working with NTYL to host a breakfast for International Women’s Day on Friday 6 March 2020. This was an extremely popular event last year and very positively received. I am pleased we are able to partner with NTYL in 2020 to run the event for a second year. Tickets are available on Facebook, so to avoid disappointment, book your tickets soon—in 2019 this event sold out well before the day.

The Alice Springs branch of the Committee have also been working hard to put together the International Women’s Day Law-N-Bowls event (in conjunction with NTYL). Being held at 5.30 pm on Thursday 5 March at the Alice Springs Golf Club, the event will include barefoot bowls followed by a Q&A panel discussion with distinguished guests Chief Judge Morris and Judge Huntingford, with perhaps the best view of the ranges Alice Springs has to offer. Tickets are available through local Committee members: Ashlea Begg, Tierneigh Parnell and Alexandra Craig.

LAW SOCIETY NT

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NTWLA 2020 EVENTS CALENDAR WET SEASON 2020 LAUNCH + WELCOME ASP: THURSDAY 5 MARCH International Women’s Day event NTWLA + NTYL DWN: FRIDAY 6 MARCH International Women’s Day Breakfast NTWLA + NTYL DWN: APRIL NTWLA event Welcome + launch of 2020 Mentoring Pilot DRY SEASON MENTORING + CAREER DEVELOPMENT ASP & DWN: MAY NTWLA CPD, members only ASP: JUNE NTWLA CPD Katherine + Alice Springs DWN: JUNE 2020 Mentoring Pilot DWN: JULY/AUGUST NTWLA Patron’s Drinks (anticipated) ASP & DWN: JULY/AUGUST Announcement of AWL scholarship AWL Conference 28‑29 August, Melbourne BUILD-UP & WET SEASON HEALTH + WELLBEING ASP & DWN: SEPTEMBER NTWLA CPD, members only ASP & DWN: SEPTEMBER NTWLA event Women’s Health Week ASP & DWN: OCTOBER NTWLA CPD, members only ASP: NOVEMBER/DECEMBER NTWLA Patron’s Drinks (anticipated) ASP & DWN: NOVEMBER/DECEMBER NTWLA AGM + end of year event

The Committee also had a planning day in February 2020 to put together a road map of events and focuses for the next year. We have I believe developed an exciting and ambitious list of events for 2020 in both Darwin and Alice Springs. We have broken the year into three themes – welcome, mentoring and careers and health and wellbeing. We will continue run our annual events and continue our free CPDs for members throughout the year.

In Darwin we hope to: ●● In March, host International Women’s Day breakfast with NTYL; ●● Hold a welcome event in April, which will launch our mentoring pilot; ●● Run a mentoring pilot in June (watch this space...); ●● 3 CPDs for members only – including an event for Women’s Health Week.

BALANCE EDITION 1|20

I am looking forward to a very positive 2020, and am keen to meet members at our functions. As President I want what we offer to appeal to the diverse array of women and roles within the legal profession and would like to see our membership expand accordingly. So if you know a women working in the law who has not been to our events please encourage them to come along, everyone is welcome. Membership applications are always available via email or message to our Facebook page.

In Alice Springs: ●● In March, International Women’s day Event (Law-n Bowls – Thursday 5 March 2020), with Chief Judge Morris to open and address the event; ●● A meet and greet with the newest member of the Local Court judiciary, Judge Huntingford (timing TBA); ●● Yoga in the Park (September).

% ntwomenlawyersassoc@gmail.com G facebook.com/ntwomenlawyers

12

We are also looking forward the Australian Women’s Lawyers Conference in Melbourne details can be found at https:// australianwomenlawyers. com.au/event/awl-nationalconference-2020-vision-infocus/. We will again this year look at providing a scholarship to support a female lawyer attend this event. More to come on this.


Need CPD points? CPD point accrual rate

Max per Max per activity annum

Preparing or giving a presentation: 0.5 points per 30 mins

5 points

No limit

Attending a seminar: 0.5 points per 30 mins

No limit

No limit

Private study using audio or visual material: 0.5 points per 30 mins

No limit

5 points

Preparing or giving a lecture: 0.5 points per 30 mins

5 points

No limit

Writing an article: 0.5 points per 500 words

No limit

5 points

Refereeing or structural editing of an article: 0.5 points per 500 words

No limit

5 points

Committee participation: 0.5 points per 60 minutes of meeting attendance / other work

No limit

3 points

Attending lectures as part of post-graduate studies: 0.5 points per 30 mins

No limit

5 points

Writing assignments or a thesis as part of post-graduate studies: 0.5 points per 500 words

Tierneigh Parnell, NTWLA Vice-President, Alice Springs

No limit

5 points

Note: CPD points cannot be claimed in respect of an article that deals with substantially the same content as a presentation for which CPD points have been claimed.

LAW SOCIETY NT

13


northern territory young law yers

News and updates SARAH STRZELECKI PRESIDENT, NTYL

Annual General Meeting (AGM) On 15 November 2019, the NTYL held our AGM where the 2020 Committee was elected. We congratulate the following members: President: Sarah Strzelecki Solicitor for the NT Vice-President (Darwin): K ate Bremner Solicitor for the NT Vice-President (Regional): Alex andra Craig Central Land Council Treasurer: Nicholas Salagaras Hall & Wilcox Secretary: Linda Farantouris NT Legal Aid Commission General Committee members: Yiannis Roubos Povey Stirk Kirralee Pavy Halfpennys Lang Williamson Solicitor for the NT Michael Vailas Bowden McCormack Chris Teng Ward Keller Elizabeth Halikos Halikos Group At this AGM the Committee noted the new Young Lawyer Committee By-Law passed by the Law Society NT Council in October 2019. The By-Law took effect from 1 January 2020. Any changes that affect members will be circulated in due course via our mailing list. Email ntyl.committee@gmail.com to get on it today!

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BALANCE EDITION 1|20

2019 Christmas Party The NTYL events calendar for 2019 concluded with Christmas parties being held in Darwin and Alice Springs. In Darwin, an event was held after the AGM at the Cavenagh Hotel with great attendance from our members. Alice Springs brought in the festive season on Friday 13 December 2019 at Monte’s Lounge, while Tennant Creek young lawyers gathered together on Thursday 14 November 2019 for their end of year celebration. NTYL would like to thank all those who attended and supported our events held across the Territory throughout 2019, and we look forward to an even bigger 2020.


NTYL 2020 EVENTS CALENDAR FEBRUARY Welcome Drinks Darwin, Tennant Creek & Alice Springs MARCH 5 March: Law-N-Bowls Alice Springs 6 March: International Women’s Day Breakfast with NTWLA Darwin APRIL CPD - Topic TBC

2020 Events

MAY

Welcome Drinks

18 May: Great Debate Darwin SC Judge Discussion Alice Springs CPD - Topic TBC JUNE Fundraiser Trivia Night Darwin JULY CPD - Topic TBC Dry season Event Darwin & Alice Springs AUGUST Event Darwin NT Golden Gavel Darwin with AVL to Alice Springs OCTOBER CPD - Topic TBC DECEMBER Christmas Drinks Darwin, Tennant Creek & Alice Springs

The first event will be Welcome Drinks on 21 February 2020 at Snapper Rocks in Darwin. Events in Tennant Creek and Alice Springs are yet to be confirmed.

International Women’s Day (IWD)Events After a successful IWD Breakfast last year, NTYL are pleased to announce that they will again partner with the Northern Territory Women Lawyers Association to host/present two IWD events to kick-start 2020. Darwin: Breakfast at the Hilton on Friday 6 March 2020 (6.309.00 am) with a panel discussion chaired by her Honour Elisabeth Armitage. Panellists Sophie Cleveland, Susan Cox QC, Merran Short and Lindy Morgan will discuss this years’ topic #EachforEqual

Alice Springs: Law-N-Bowls in Alice Springs on Thursday 5 March (from 5.00 pm) with a Q&A session with their Honours Chief Judge Elizabeth Morris and Judge Meredith Huntingford on their take of this years’ theme. Tickets and how to purchase them will be circulated via email. For further details on NTYL’s upcoming events, ‘like’ our Facebook page or email us to be added to our mailing list. To become an NTYL member, email the Law Society NT today! Details below.

% NTYL.Committee@gmail.com G www.facebook.com/NTYLpage NT YL membership:

% lawsoc@lawsocietynt.asn.au

Tickets are $38 for adults and $15 for children 12 and under and can be purchased through Eventbrite. LAW SOCIETY NT

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NEWS FROM THE SECRETARIAT

Meet your 2020 Council members

16

CONTACT US

Maria Savvas pRESIDENT

Carly Ingles VICE-PRESIDENT

Emma Farnell TREASURER

Victoria Bell SECRETARY

Maria Savvas Lawyer

Northern Territory Legal Aid Commission

Department of Primary Industry & Resources

Tindall Gask Bentley Lawyers

Anna Gill cOUNCILLOR

Glen Dooley COUNCILLOR

Richard Henschke COUNCILLOR

Dr Guzyal Hill cOUNCILLOR

North Australian Aboriginal Justice Agency

Director of Public Prosecutions Regional Representative

Halfpennys

Guzyal Hill

Fiona Kepert cOUNCILLOR

Matthew Littlejohn Councillor

Ruth Morley COUNCILLOR

Lisa O’Donoghue COUNCILLOR

Northern Territory Legal Aid Commission

William Forster Chambers Nominated by NTBA

Ruth Morley Legal Services Regional Representative

O’Donoghue’s First National Real Estate

Bernadette Raumteen COUNCILLOR

Sarah Strzelecki Councillor

Leonique Swart COUNCILLOR

Josine Wynberg COUNCILLOR

Maher Raumteen Solicitors

Solicitor for the NT Nominated by NTYL

Department of the Attorney-General & Justice

Department of the Attorney-General & Justice

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Manager Regulatory Services Full-time, 6–12 month contract position – Darwin The Law Society Northern Territory (Society) is seeking to appoint a Manager Regulatory Services to carry out the work necessary for the Society to fulfil the exercise of its regulatory functions under the Legal Profession Act. This is a unique opportunity to make an important and meaningful contribution to the legal profession and the general community. Responsibilities include ●● Acting as Solicitor on the record in matters involving the Society or in which the Society has a statutory right of appearance in the Supreme Court and Legal Practitioners Disciplinary Tribunal ●● Prepare briefing papers for Council and the Ethics Committee on regulatory matters ●● Oversight of the management and investigation of complaints and enquiries about legal practitioners’ conduct ●● Development of policies and procedures to facilitate the transparent and accountable delivery of the Society’s regulatory functions Requirements ●● Admission in an Australian Supreme Court as a Lawyer ●● 5 years of post-admission legal experience, preferably specialising in litigation ●● Current holder of an unrestricted practising certificate or eligibility to obtain a NT unrestricted practising certificate

spo@lawsocietynt.asn.au

In joining us, you would be stepping into a vibrant, professional and inclusive group of people who pride ourselves on the standard of service provided. The Society team is cooperative and inclusive and seeks to ensure that team members feel supported and appreciated. The wealth of experience amongst its ranks ensures that there are opportunities to grow, learn and upskill. To view the position description and apply, please go to the Society’s website or click here. LAW SOCIETY NT

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EDUCATION

CDU Indigenous Pre-law Program 2020 BEN GRIMES LECTURER IN LAW, CHARLES DARWIN UNIVERSITY

In early February 2020 nine Aboriginal participants successfully completed the four‑week intensive pre-law program in January and February this year, gaining them a place in the CDU law degree. All nine of those participants intend to begin their law studies in Semester 1 2020, which starts in early March. This year marked the third year of the re‑invigorated pre-law program, which has been made possible through a grant from the Law Society Public Purposes Trust. The program runs in close partnership with the Bilata Aboriginal Pathways Program and the Winkiku Rrumbangi NT Indigenous Lawyers association. Nineteen Aboriginal applicants applied for the 2020 program, with a number then withdrawing before the intensive began. Interestingly, a number of those who were not able to start the program said that their main difficulty was that they were not able to get four weeks leave approved from their place of employment. This reflects feedback we received from the 2019 program, and in 2020 we’ll be focusing on meeting with a range of employers to make it easier for future applicants to be granted study leave. At the other end of the spectrum, NAAJA continues to lead the way in providing support for its employees, offering a range of study leave and other support mechanisms to encourage the professional development of its Aboriginal staff. This year seven participants came from outside of Darwin, including three from remote communities.

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Pre-law student Tristan Mungatopi presenting his arguments in the Supreme Court of the Northern Territory

Twelve participants started the program, with nine successfully completing all the required assessment tasks and activities. Assessment tasks included an oral presentation on a significant case or area of law reform, a written quiz about foundations of Australian law and courts, a 1000‑word research essay using AGLC referencing, a 1.5‑hour written exam where students had to provide legal advice based on a scenario and supplied legislation and cases, and a debate in the Supreme Court before His Honour Justice Hiley. The two debate topics this year were ‘The primary barrier to economic and social development in remote NT Aboriginal communities is government interference and over-regulation’ and ‘A treaty between the NT Government and Aboriginal Territorians is a waste of time and money.’ We thank Justice Hiley for generously giving his time to adjudicate two debates and provide feedback to the students.


Pre-law students working on answering written problem scenario questions

Pre-law student Mililma May

Students also visited a number of law firms and courts to directly observe and interact with practitioners. In particular we thank the following people for hosting the students and providing valuable input: ●● Justice Barr, Justice Hiley and Xavier La Canna of the NT Supreme Court ●● Chief Judge Elizabeth Morris and Rebecca Plummer of the NT Local Court ●● David Woodroffe, Nick Espie, John Rawnsley, James Parfitt and John Birrel of NAAJA ●● Peter Kilduff and Alex Clunies-Ross of the NLC ●● Sean Bowden and Dominic McCormack of Bowden McCormack Lawyers and Advisers ●● Matthew Nathan, NT DPP ●● Joshua Ingrames, Barrister at William Forster Chambers ●● Justine Davis, Mediator

This year we were also able to benefit from the growing cohort of local Aboriginal law students who are already part way through their degree. A number of these students met with the pre‑law students to provide real‑world advice about studying law and the demands of balancing work, life and family. During the program, pre‑law students also received specialist lectures from CDU law academics on topics including intellectual property law, constitutional law and federalism, international law, evidence law, statutory interpretation, legal research, torts, and commercial law. Many students commented on how the combination of lectures across a wide range of topics, plus site visits to a variety of firms, significantly expanded their understanding of how broad the law is and the variety of opportunities that exist for people with a law degree.

Although we continue to refine the program and materials, it seems that the range of activities and learning materials that have been developed for the program are successful in terms of increasing participants’ motivation to study law, providing background legal studies information to fill in any existing gaps in knowledge, stretching participants’ ability to engage with complex and technical legal information, developing core skills such as legal reasoning, research and writing, and creating a support network for students who progress into the law degree. The CDU law discipline continues to seek practitioners and lawyers who are interested in becoming a tutor for our growing cohort of Aboriginal law students. If you are interested in becoming a tutor, please contact Ben Grimes.

% ben.grimes@cdu.edu.au

CDU Law is proud that we now have over 70 Aboriginal law students. Approximately half of those students are based interstate and half are local to the NT.

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technology

CYBER insurance for law firms: yes, no or maybe? EJ WISE PRINCIPAL, WISELAW

Let’s talk about what we mean by cyber risk. Then with that understanding we can talk about insuring against that risk with cyber insurance.

What is my law firm’s cyber risk?

Is this cyber thing really necessary? ...

1. What is our client’s data worth to our clients or their competitors?

Consider the following questions:

2. What is our client data worth to my firm or others from a financial perspective? 3. How easy is it to obtain my firm’s data?

Our law firm has always managed just fine without it. “Cyber attacks on law firms of all sizes, but particularly smaller practices without the necessary safety measures in place, are on the increase. It is everyone’s problem.” Law Institute Journal Dec 2019 p63.

4. How prepared is my firm relative to my peers? 5. What is the probability of any of my ‘defences’ being bypassed by cyber criminals? 6. What percent of other law firms have not defined their most sensitive or ‘crown jewel; data? 7. What is my risk of being breached? 8. What are the consequences of being breached? E-Sentire infographic-defend-your-data Nov 2019.

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Law firms manage risk every day. How is cyber risk any different?

Isn’t cyber covered by my compulsory PII insurance?

Cyber risk is new(ish) and lawyers trust their technology as a tool to get their work done. Technology is not the passive tool like the suite of those used by lawyers in the past (think word processors, dictaphones, telephones). Indeed technology is twice as likely to be benefiting from the user as the user is to benefit from it: for example a ‘Google’ search reveals saleable data about a consumer which Google does indeed record and re-sell. Perhaps an acceptable risk in your personal life is it equally fine in the life of your law firm when you are searching topics related to your confidential client matters?

The insurance covered under compulsory insurer differs in each State and Territory in Australia. In Victoria the insurance is for the ‘injury’ for the third party (i.e. the client of the law firm) not the first party (i.e. the damage and loss sustained by the law firm itself). In NSW the compulsory insurer, Lawcover, includes at no extra charge cyber insurance for either first party or third party risk capped at $50 000 but leaves it to the individual firm to determine their unique cyber risk as to whether additional cyber insurance should be purchased.

What additional cyber insurance offers: Cyber liability coverage can help a law firm to cover the costs related to a data breach, including: ●● privacy breach ●● notification expenses ●● litigation ●● loss of income and/or business interruption

Where a law firm does make the decision to purchase an additional cyber insurance policy one of the great benefits is the inclusion of 24/7 access to an ‘Incident Response Team’ which will assist your firm in halting the breach and retrieving, repairing and remediating the damage: as a time is of the essence experience for any breached law firm it is no time to be testing the market on cyber security providers.

What can’t a cyber insurance policy do? Make up for your firm’s negligence or lack of: 1. an Incident response plan; 2. a Risk management policy; 3. a Cyber and IT policy which includes ensuring your firm does: a. regular data back ups and check of the backup, b. regular updating of systems and software updates/patching, and c. training for all members of the firm in social engineering, passwords, e-mail fraud, phishing, ransomware and malware attacks; 4. a person who is responsible for cyber security within the firm.

What can I do to reduce the cost? Know your law firm’s risk and cyber risk profile and insure to fit.

●● incident response ●● data asset loss ●● extortion ●● computer crime/social engineering money loss ●● regulatory defence, fines and penalties; and ●● other expenses.

EJ is Principle of WiseLaw, an Australian law firm specialising in cyber security law. We have specialist, legal in confidence, cyber audit for law firms.

% info@wiselaw.com.au ! (03) 9070 9898 ï www.wiselaw.com.au There is also further information from the Australian Government: cyber.gov.au; esafety.gov.au.

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technology

6 painless steps to keeping your law firm cyber-safe GIDEON STEIN CYBER LAW INTERN, WISELAW

WiseLaw likes to keep things simple. Here’s our 6 easy steps to keeping your firm safe that won’t cost you a cent. Step 1 Ensure the physical security of your office How easy is it for an unknown person to physically access your hardware, files and other items in your office? Are your doors locked? Who has a key? Do you have a security system? This step may seem simple but it’s very important. If a criminal can get to your hardware, the records of your entire business can be easily stolen or compromised.

Step 2 Maintain information privacy If an unknown person calls your business number, what information can they obtain? Do you or your staff know what information they can disclose and communicate to unknown people? If the wrong information - including names, addresses, client records - gets into the wrong hands, your privacy and your reputation as a legal practice is at risk.

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Step 3 Investigate if your emails have been hacked Check both your email and that of your staff at ‘www.haveibeenpwned.com’. In seconds, this website will tell you whether your emails have been hacked. If they have, you must change that email’s password and associated passwords immediately to prevent the possibility of criminals accessing your systems.

Step 4 Secure your business online with strong passwords Passwords are the primary line of defence in your business’s online presence. Here is a link explaining in depth, how to create strong passwords: https://www.howtogeek.com/195430/how-tocreate-a-strong-password-and-remember-it/. Protip: Do not use the name of your pet, date of birth or your mother’s maiden name – as these types of passwords can be easily brute-force hacked by criminals.


Step 5 Create an Incident Response Plan (IRP) to cyber‑attacks and privacy threats If a hacker has stolen your information and is holding it as ransom, what are you going to do? If you notice a USB missing or confidential files having been accessed by the wrong person, what steps will you take? Having an IRP readily available to all employees in hard copy may end up saving your business a lot time, money and stress when an incident occurs.

Step 6 Implement Multifactor Authentication of your office software system Multifactor authentication is a method of authentication where successfully presenting two or more pieces of evidence is required to grant access to a system. Your office software system is what your business primarily uses to draft, write and save documents and files. Implementing multifactor authentication makes it exceedingly harder to get hacked.

spo@lawsocietynt.asn.au

The WiseLaw opinion is act now to ensure your business is cyber‑safe.

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health & wellbeing program

Step up: Integrating emotional intelligence with professional practice DR SIMON MOSS ASSOCIATE PROFESSOR IN PSYCHOLOGY, CHARLES DARWIN UNIVERSITY

Dr Moss recently delivered a CPD to Society members on emotional intelligence (EI), as it is key to one’s success in any role. Dr Moss presented a sequence of practices, each validated scientifically, that can be applied to develop EI and overall wellbeing.

Life can be hard, sometimes very hard. If you are anything like the majority of people, you may have read many articles, watched many videos, or listened to many people offer advice on how individuals can enhance their wellbeing. You might have read or heard about how you can manage your stress, develop your resilience, or boost your motivation. But yet, despite all this advice, most people do not feel quite as fulfilled as they had hoped. Most people do not skip along the road, singing “If you’re happy and you know it, clap your hands”, while smiling incessantly. The mental health exercises they attempt, from meditation to positive thoughts, seem to improve their lives only fleetingly or marginally. Fortunately, if individuals can develop two habits, their wellbeing is more likely to improve enduringly and appreciably.

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So, what are the habits you need to develop and how can you really enhance your wellbeing? First, you need to embrace activities that elicit a blend of positive feelings and negative feelings at the same time, called ambivalent emotions. You might, for example, deliberately choose to pursue stressful activities or challenging adventures— such as assert a contentious opinion in public or attempt an unfamiliar sport. You might write about the lessons you learned from a traumatic event in your past. You might acknowledge your faults and limitations to other people, honestly and candidly. All these activities evoke a combination of positive emotions and negative emotions simultaneously. Challenging adventures elicit a blend of anxiety and excitement. Reflections about traumatic events foster a feeling of sadness but hope. A disclosure of personal faults can evoke both shame but also relief. And, whenever people experience these ambivalent emotions, their life tends to improve gradually over time. They are often more resilient in response to challenges and complications. They become more creative, unearthing novel solutions to lasting problems. They feel more content and joyful.


So, why do ambivalent emotions improve wellbeing? According to one theory, positive emotion and negative emotions tend to activate distinct circuits in the brain. When people experience positive emotions and negative emotions at the same time, these distinct circuits are activated simultaneously and tend to complement one another. For example, feelings of dejection tend to enhance the capacity of people to formulate plans. Feelings of contentment tend to enhance the degree to which people are attuned to their values. A blend of dejection and contentment, therefore, enables people to formulate plans that resonate with their values. The individuals become more inclined to pursue their plans. They are thus more likely to accomplish their goals.

The second habit you should develop is to choose activities that seem vital to your future. Sometimes, people appreciate how their life and activities now are relevant to their future aspirations. These individuals, consequently, are more inclined to refrain from activities that could damage this future. They will, for example, tend to abstain from unhealthy activities or irresponsible behaviour, like substance abuse, problem gambling, or physical inactivity, for example. Instead, they will gravitate to behaviours that could benefit their future. They will develop their skills. They will improve their qualities. They will even perceive criticisms and obstacles as opportunities to cultivate these skills and worries. They will thus embrace these challenges, manifesting as resilience and fortitude. In contrast, on other occasions, individuals feel their future seems vague and uncertain. They are not sure of how they would like their life to unfold—

which roles they would like to pursue or which aspirations they would like to achieve. They cannot imagine their future vividly. This future image of themselves seems like another person, like a stranger. On these occasions, individuals are not as willing to sacrifice their pleasure now to benefit this future—this stranger. These individuals, therefore, live an unhealthier lifestyle. They often behave irresponsibly. They tend to reject, rather than embrace, criticism and feedback. Fortunately, you can readily learn to choose activities that seem vital to your future. A range of exercises and activities have been shown to achieve this goal. To illustrate, on every second or third day, over several weeks, record some events you enjoyed, goals you achieved, or people to whom you are grateful. In addition, record two or three of your strengths or talents—such as skills you have mastered or knowledge you have acquired. Second,

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while clenching your left hand for several minutes, contemplate the aspirations you would really like to achieve—or the life you would like to lead—over the next five to ten years. This unusual exercise has been shown to help individuals clarify the future they would like to pursue. Third, develop a list of skills or qualities you would like to develop—and, in particular, skills or qualities that might help you achieve these aspirations. Every week or so, formulate plans on how you will progress, even if only gradually, on these skills or qualities. You might decide to read 4 to 6 articles a fortnight or to practice a skill for 3 to 4 hours a week. You might attempt to integrate these pursuits with your daily tasks at work or at home. You should also consider the precise time, location, or setting in which you will pursue these goals. These activities might not seem especially novel and surprising. But, if you practice these activities, you will learn to elicit ambivalent emotions and undertake activities that seem vital to your future

aspirations. Consequently, your motivation will gradually rise. Your resilience will improve. And your life may start to resemble the dreams you had envisaged. Dr Simon Moss is the Associate Professor in Psychology at Charles Darwin University. His primary research interest concerns how characteristics or organisations and societies, such as inequality of income or instability of jobs, influence the neural functioning and ultimately the mood, creativity, intuition, engagement, honesty and altruism of individuals. He has published several books and articles in the fields of personality, motivation, integrity, perception, attention and stress. Dr Moss was a co-founder of Zenith professional Development, a company that has collated every scientific discovery that contradicts prevailing management beliefs and practices. Using this database he developed a tool that identifies misconceptions in management. In addition, Simon has presented training programs that are designed to redress these misconceptions.

% simon.moss@cdu.edu.au ! (08) 8946 6818

OPENING OF THE LEGAL YEAR 6 & 7 FEBRUARY 2020

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Can’t keep your feet on the ground?

LawCare: Caring for the legal profession in the NT The Society funds a professional, confidential and free counselling service for our members and their immediate family, provided through Employee Assistance Service Australia (EASA). If you are experiencing workplace, personal or emotional issues which are affecting your work or personal life, please call LawCare via the EASA Program 24-hour support line on 1800 193 123 or visit their website at www.easa.org.au. When booking an appointment, please inform the operator that you are a Law Society NT member. This service is completely confidential. The Society will only receive statistical information on the numbers accessing the service.

OPENING OF THE LEGAL YEAR 6 & 7 FEBRUARY 2020

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FINANCE

More changes for insurance in super ANDREW PROEBSTL CHIEF EXECUTIVE, LEGALSUPER

Default insurance cover for many young super fund members and people with low super account balances will be changed as of 1 April 2020. More changes are coming for the default insurance cover of young super fund members and members with low super balances under new laws passed by Federal Parliament.

Under the new laws, which were passed by Federal Parliament in September last year, members aged under 25 with account balances less than $6000 will only be provided insurance if they opt-in to the insurance offered by their super fund or take out insurance outside super.

The Treasury Laws Amendment (Putting Members’ Interests First) Act 20191 means that as of 1 April 2020:

Benefits of the changes

●● On joining a super fund, automatic insurance will no longer be provided to: »» People aged less than 25 years »» New accounts with a balance less than $6000; and ●● Existing accounts with insurance and balances less than $6000 on 1 November 2019 will have that insurance cancelled—unless the member opts to retain the insurance cover by 1 April 2020. A dangerous occupations exception may apply whereby members will remain ‘opted-into’ insurance if the member’s occupation is in the riskiest quintile of Australian occupations or they are defined as an emergency services worker.

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Currently, most new members joining a super fund are typically automatically provided death and total and permanent disability insurance. Some super funds also automatically provide members salary continuance insurance (or income protection).

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The key benefit of the changes is younger super fund members and members just starting to build their super savings will no longer have their balances reduced by insurance premiums (fees). As a result, they will more quickly build their super balance. A further potential benefit is the removal of insurance for younger members is appropriate given they are less likely to need the type of cover provided by death and total and permanent disability insurance.


Potential downsides

Notifying affected members

While there are views that younger members may be less likely to need insurance, these views may be open to question.

Pursuant to the Treasury Laws Amendment (Putting Members’ Interests First) Act 2019, by 1 December last year all super funds were required to write to members with a less than $6000 balance as at 1 November 2019, informing them any insurance they have via their super fund will be cancelled on 1 April 2020 unless the member elects to opt-in and continue their cover. The 1 April 2020 date replaces an earlier proposed date for this (and the other changes covered in this column) of 1 October 2019.

What cannot be questioned, however, is that deciding to not take out or continue with suitable levels and types of insurance carries with it some very real and possibly significant risks. Any young super fund member or member with a low account balance with no insurance who suffers a misfortune will find themselves without the protections, supports and financial benefits provided by these types of policies. Writing in the Australian Financial Review on 14 May 2018, the Chief Executive of the Association of Superannuation Funds of Australia (ASFA), Dr Martin Fahy, said of the then proposed changes: “It will be the families and dependants of young Australians suffering misfortune who will be left to pick up the pieces if the measures pass.”2

The benefits of taking out insurance via your super fund Young super fund members and members with low balances who want to take out insurance will need to actively choose between cover offered by their super fund or retail insurers. In considering these options, keep in mind that premiums for insurance via your super fund, in most instances, will be lower compared to retail insurers as super funds can offer insurance on a ‘group’ basis across many members. Many super funds automatically accept you for cover without requiring a health check and you can vary the amount for which you are covered or cancel the cover entirely.

Super fund members who will be affected by these changes should contact their fund for more information. Employers may also wish to contact their super fund to arrange a workplace visit to explain the changes to their staff. Andrew Proebstl is Chief Executive of legalsuper, Australia’s industry super fund for the legal community.

% aproebstl@legalsuper.com.au ! (03) 9602 0101 This information is of a general nature only and does not take into account your objectives, financial situation or needs. You should therefore consider the appropriateness of the information and obtain and read the relevant legalsuper Product Disclosure Statement before making any decision. Legal Super Pty Ltd ABN 37 004 455 789, AFSL 246315 is the Trustee of legalsuper ABN 60 346 078 879.

1 See https://www.aph.gov.au/Parliamentary_Business/Bills_ Legislation/Bills_Search_Results/Result?bId=r6331 2 See https://www.afr.com/opinion/columnists/federal-budget2018-changing-super-cover-means-less-insured-for-a-higherprice-20180513-h0zzwe

Taking out insurance via your super fund is usually easier and more convenient to manage. Insurance premiums are automatically deducted from your super account rather than your hip pocket. Most super funds will also pass on the tax benefit of the deduction for premiums. Automatic deduction of premiums ensures you avoid a time of crisis of not having cover as payment of premiums was overlooked. LAW SOCIETY NT

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START AT THE TOP FAMILY L AW CONFERENCE 23 & 24 JANUARY 2020

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START AT THE TOP FAMILY L AW CONFERENCE 23 & 24 JANUARY 2020

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EVENTS CALENDAR

Dates , locations and times subject to change. Save the date Law Week 17-23 May 2020 Marsh Cricket Match Sunday 17 May 2020 | Darwin Host: Law Society NT Great Debate, Senior v Junior Lawyers Monday 18 May 2020 | Darwin Host: NT Young Lawyers Tug of Law Competition Tuesday 19 May 2020 | Darwin Host: Law Society NT

Environmental Law in the Pacific 3-4 April 2020 | Denarau, Fiji Click here for more information.

NTBA 40th Anniversary Dinner Saturday 4 April 2020 Host: NT Bar Association Limited tickets available. Click here for more information.

33rd LawAsia Conference 7-10 September 2020 | Ulaanbaatar, Mongolia Click here for more information.

Save the Date Law Society NT - AGM Thursday 12 November 2020 Host: Law Society NT

EOI – Youth Justice Advisory Committee The Law Society is seeking expressions of interest from experienced practitioners who wish to be on the Youth Justice Advisory Committee. The functions of the Youth Justice Advisory Committee are set out in Section 204 of the Youth Justice Act 2005 as follows: ●● monitors and evaluates the administration and operation of the Act;

2020 HAL International Legal Conference 5-10 July 2020 | Rhodes, Greece Click here for more information.

●● advises the Minister on issues relevant to the administration of youth justice, including the planning, development, integration and implementation of government policies and programs concerning youth;

8th Family Law & Children’s Rights Conference 19-22 July 2020 | Singapore Click here for more information.

●● collects, analyses and provides the Minister with information relating to issues and policies concerning youth justice; and

Save the date Ian Morris Memorial Golf Day Friday 28 August 2020 | Darwin Host: NT Bar Association

●● carries out any other functions imposed by the Act or as the Minister directs. Interested practitioners should send their expressions of interest to the Society’s CEO, Kelvin Strange, by COB 18 March 2020.

% ceo@lawsocietynt.asn.au Public Law and Inequality 8 December 2020 | Canberra Click here for more information.

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NOTICEBOARD Family Law (Priority Property Pools under $500,000)

Financial Cases Pilot From 1 March 2020, the Federal Circuit Court will commence a pilot for family law applications filed in Brisbane, Parramatta, Adelaide and Melbourne that meet the definition of a Priority Property Pool under $500,000 (PPP500) case. The pilot will run for two years. The aim of the pilot is to trial an improved response to achieving just, efficient and timely resolution of PPP500 cases at a cost that is reasonable and proportionate to the circumstances of the case. For more information, see the following documents: ●● Practice Direction 2 of 2020 – sets out the guiding principles for case management of PPP500 cases. ●● Guide for Practitioners and Parties in PPP500 cases – sets out the procedural arrangements for case management of PPP500 cases.

Alice Springs Local Court has a new weekly schedule The new schedule, commencing 16 March 2020, was developed with feedback from stakeholders about several issues and takes into consideration recommendations of the Royal Commission into the Protection and Detention of Children. Most notably, it facilitates the separation of youth and their families attending court for youth justice and care and protection matters, from other court users by separating the main list days for domestic and family violence matters from youth justice and care and protection matters. In addition, it achieves a working day between youth justice lists, requested by several stakeholders in the youth justice field. The new schedule will support the specialist approach to domestic violence, which will have a staged commencement this year and takes into account Alice Springs Local Court now has a 5th local Court judge. Judge Meredith Huntingford was sworn in as a Local Court Judge on 7 October 2019 and commenced in Alice Springs on 2 March 2020.

●● PPP500 Financial Summary form – to be used once the Court makes a declaration or notation that the case is designated as a PPP500 case.

The Alice Springs Local Court’s weekly schedule is subject to change at the discretion of the Managing Judge.

Contact for further enquiries is Lisa O’Neil, Family Law Registrar Practice and Procedure.

Aboriginal Justice Agreement

New monetary value of revenue unit

Time is running out for you to provide your feedback to the Department of AttorneyGeneral and Justice on the draft Aboriginal Justice Agreement.

The new value of a revenue unit, to take effect on 1 July 2020, will be $1.24.

Balance magazine Do you have anything you want to publish in Balance? Send your submissions to balance@lawsocietynt.asn.au.

Details of how you can provide feedback on the draft Agreement, make a submission, or tell them about your own experiences can be done by emailing the Aboriginal Justice Unit aju.agd@nt.gov.au or calling 08 8935 7655. Submissions close 31 March 2020.

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Joint Practice Direction: JPD1 of 2020 Core Principles in the Case Management of Family Law Matters Information sourced 29/01/2020 from the Federal Court of Australia’s website. Please see: http://www.federalcircuitcourt.gov.au/wps/wcm/connect/fccweb/rules-and-legislation/practice-directions/2020/jpd012020

A. This Joint Practice Direction applies to all family law applications filed in the Family Court of Australia and the Federal Circuit Court of Australia (“the Courts”), and where applicable, to appeals in family law. B. This Practice Direction sets out the ten core principles that underpin the exercise of the family law jurisdiction of the Courts. All steps taken in proceedings before the Courts, including commencement of proceedings, should follow these principles. C. This Practice Direction takes effect from the date it is issued and, to the extent practicable, applies to all family law applications whether filed before, or after, the date of issuing.

Statement of Core Principles Risk 1. The prioritisation of the safety of children, vulnerable parties and litigants, as well as the early and ongoing identification and appropriate handling of issues of risk, including allegations of family violence, are essential elements of all case management.

Parties,’ lawyers’ and the Courts’ obligations and overarching purpose 2. The overarching purpose to be achieved is to ensure the just, safe, efficient and timely resolution of matters at a cost to the parties that is reasonable and proportionate in all the circumstances of the case, having regard to the significant impact of family law disputes on children and families.

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Efficient and effective use of resources 3. The Courts’ judicial, registrar and family consultant resources are to be allocated and used efficiently to achieve the overarching purpose in the context of ensuring the appropriate handling of risks wherever they are identified as issues in proceedings.

Approach to case management 4. Effective case management of all cases relies on: a. a consistent approach to the case management of like-cases; b. early triaging of matters to an appropriate case pathway, including assessment of risk; c. the use of both internal and external Alternative Dispute Resolution (ADR), including private mediation, family dispute resolution, conciliation conferences and arbitration in property disputes for as many appropriate cases as possible.

Importance of ADR 5. The Courts encourage the use of appropriate dispute resolution procedures. Before commencing an action, parties are expected to make a genuine attempt to resolve their dispute, complying with the requirements and obligations of section 60I of the Family Law Act (Cth), the pre-action procedures in Schedule 1 to the Family Law Rules 2004 and rule 1.03 of the Federal Circuit Court Rules 2001 as applicable. Subject to an exception applying,


the Court must not hear an application for parenting orders unless a section 60I certificate has been filed. After commencing an action, parties are expected to:

c. it is expected that parties will negotiate both prior to, and at court, in order to narrow the issues in dispute before having the matter heard;

a. be proactive in identifying the appropriate time, and the appropriate way, in which they can participate in ADR, either by agreement or by court order; and

d. when appropriate, a single expert or an assessor should be engaged to assist the parties and the Court to resolve disputes; and

b. Be prepared to consider reasonable offers of settlement at any stage of the proceedings. Failure to do so may have cost consequences.

e. costs consequences may flow if parties seek to reopen issues already resolved or unreasonably agitate issues.

Costs consequences for failure to comply with orders 6. Non-compliance with orders of the Court and the Rules of Court may attract costs consequences, including, if relevant, the possibility of costs being awarded personally against lawyers in accordance with the Family Law Act 1975 (Cth) and the Rules of Court.

Lawyers’ obligations about costs 7. Parties and their lawyers are expected to take a sensible and pragmatic approach to litigation, and to incur costs only as are fair, reasonable and proportionate to the issues that are genuinely in dispute. Parties and their lawyers are expected to engage in cost budgeting, and regularly inform their clients and the Court of the actual costs they have incurred and are likely to incur (see Part 19.2 of the Family Law Rules 2004).

Identifying and narrowing issues in dispute 8. Issues in the case are to be narrowed to those issues genuinely in dispute. In particular: a. all parties are required to make frank disclosure to assist the Court in the determination of the dispute or the parties in the resolution of the dispute;

Preparation for hearings 9. Parties and their lawyers are to be familiar with the specific issues in the case and prepared for court events and the final hearing in a timely manner. Parties must provide the Court with a considered and informed estimate of the expected hearing time, the number of witnesses, and the specific issues to be decided.

Efficient and timely disposition of Cases 10. The Courts will act effectively and efficiently in achieving the prompt and fair disposition of pending matters, with judgments being delivered as soon as reasonably practicable after the receipt of the final submissions. Where permitted by legislation, short form reasons may be utilised in appropriate cases to facilitate the expeditious delivery of judgments. [Signed in hard copy] THE HONOURABLE JUSTICE WILLIAM ALSTERGREN CHIEF JUSTICE FAMILY COURT OF AUSTRALIA CHIEF JUDGE FEDERAL CIRCUIT COURT OF AUSTRALIA DATE: 28 JANUARY 2020

b. applications should only be brought before the court if they are reasonably justified on the material available;

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CA SE NOTES

ï www.thefamilylawbook.com.au

Family law judgments ROBERT GLADE-WRIGHT FOUNDER, AUTHOR & SENIOR EDITOR, THE FAMILY LAW BOOK

Property Contributions can continue during separations – Rise in value of property resumed by government In Whiton & Dagne [2019] FamCAFC 192 (31 October 2019) the Full Court (Aldridge, Kent & Tree JJ) allowed Ms Whiton’s appeal against a property division of 75:25 in favour of her de facto partner. An 18 year relationship with 20 separations meant a 12‑year cohabitation in total. At first instance a judge of the FCC found proved the wife’s allegation that the separations were due to domestic violence by the respondent. It was also found that the appellant “bore the major share of responsibility as a homemaker and parent for the parties’ children throughout the relationship” ([12]) and that the respondent should be credited with an initial contribution of a property at “Suburb B”. Its proceeds of sale of $160 000 five years later were used towards the purchase of a property at “Suburb C” for $258 000 which was resumed by the State Government 11 years later for $2 336 288. On appeal by the wife, the Full Court said (from [13]): “(...) [I]t appears the trial judge equated each separation with the de facto relationship having then ended, for the purpose of assessing contributions. (...)

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[18] … [C]ommencing in mid 1999 with the birth of the parties’ first child and continuing … with the birth of [their] second child in late 2000 the wife maintained her contribution as the primary homemaker and parent … irrespective of any … separation … [19] … [T]he wife maintained external employment for much of the … relationship and provided financial support to the family and to the children (...) [25] The approach adopted by the trial judge was wrong in law. …” The Full Court said ([30]): “The Suburb B property … were … contributed to by the wife in both a financial sense, given her employment, and the payments towards the … mortgage, and by her non-financial contributions … Thus, the trial judge was clearly wrong to treat the $160 000 as solely the husband’s contribution and … to find that the wife made no contribution to the acquisition of the Suburb C property.” The Full Court added ([34]), citing Zappacosta [[1976] FamCA 56, that “it is well settled … that a … rise in property value brought about by a rezoning or resumption is properly treated as a windfall gain for which neither party can take sole credit”.


Property Interim dollar-for-dollar order granted to wife was ineffectual as husband’s solicitors carried their costs In Shelbourne [2019] FamCAFC 196 (4 November 2019) Loughnan J had made a dollarfor-dollar order three months before the trial by which the husband was to pay to the wife’s solicitor a sum equal to any amount he paid to his solicitor. The husband did not pay his lawyers any amount, so the amount paid to the wife’s lawyers was also nil. In the absence of payment the parties’ unpaid legal fees ballooned by the time of trial to $152 000 (the husband) and $264 000 (the wife). At the final hearing Gill J granted the wife’s application for a continuation of the dollar-fordollar order so as to secure payment of costs paid by the husband post-trial. The Full Court (Ainslie-Wallace, Ryan & Tree JJ) allowed the husband’s appeal, saying (from [17]): “(...) The source of power to make a litigation funding order includes s74 … (by way of interim spouse maintenance), s79 and s80 … (interim property division) and s117 … (interim costs order) … Different considerations will apply depending upon which head of power is sought to be engaged (...) [21] Plainly in making order 18 the primary judge was exercising discretion under s117 … That discretion must be exercised by reference to … s117(2A) …

There is no advertence to those considerations in the primary judge’s reasons, and indeed the path of reasoning by which his Honour proceeded cannot be adequately discerned … save that his Honour was of the stated view that not extending the operation of the dollar-fordollar order ‘would defeat’ it … It therefore follows that either his Honour did not have regard to the matters in s117(2A) … or … did not sufficiently expose his reasoning as to how he … weighed the matters referred to in the provision. (...) [25] … The appellant correctly identifies that the effect of [the final dollar-for-dollar order] was to create an additional liability of the husband in the sum of $152 000, together with a corresponding asset … for the wife. That asset and liability were not extant at the time of trial, but only arose in consequence of order 18. The authorities are clear that any litigation funding order needs to be taken into account in determining the final property adjustment … The impact of order 18 ought therefore to have been taken into account … in the division of … property.”

Property Add-back of post-separation livestock sale proceeds in error where husband habitually relied on them In Cabadas [2019] FamCAFC 179 (11 October 2019) Kent J, sitting in the appellate jurisdiction of the Family Court of Australia, heard the husband’s appeal against an equal division made by a judge of the FCC of

a $901 078 asset pool which included a notional $130 176 received by the husband from the sale of livestock over the previous five years. Kent J said (at [17]): “ … [There is a] fundamental ... error of notionally adding back sums of money that may have been available to a party postseparation, as a notional asset, without any necessary finding to support that approach. Here, it can be seen that the trial judge took no account of the husband’s longstanding dependence upon income from livestock sales for his livelihood which continued in the postseparation period; nor did his Honour have any regard to likely business expenses or expenditure offsetting the gross livestock sales income over a five year period between the first recorded sale in August 2013 and trial in August 2018. In short, his Honour gave no consideration to the fact that reasonably incurred expenditure by the husband, either for his own living expenses and support or for business expenses to maintain the livestock/business operation, had to be taken into account as an offset to the gross amount of livestock sales income produced over a period of some five years.” The appeal was allowed, discretion re-exercised and the adjusted pool (absent any notional add back) divided equally.

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Property Wife’s application for financial orders permanently stayed as she failed to contest divorce proceedings in Dubai In Bant & Clayton (No. 2) [2019] FamCAFC 200 (7 November 2019) the parties married in the United Arab Emirates (UAE) and lived there and in Australia. Upon separation the husband was granted a divorce order in the UAE which was unopposed by the wife. The wife later applied for property and maintenance orders in Australia. At the hearing Hogan J held that UAE law did not permit an adjustment of property interests so the UAE divorce did not prevent the wife’s application in Australia. On the husband’s appeal, the Full Court (Strickland, AinslieWallace & Ryan JJ) said (from [6]): “Although the wife was notified of those proceedings and had lawyers acting … for her in Dubai, she did not appear … and orders were made on the husband’s application in … 2015. The orders granted the husband a divorce and … had the effect of bringing to an end the wife’s rights to seek property orders under the law of Dubai. No appeal was brought … [8] … [H]er Honour correctly identified … that for a claim of res judicata estoppel to be made out it is necessary for the Court to be satisfied that in prior proceedings a court … over the same subject matter and … parties has by … order … finally … determined the same cause of action (...)

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[13] The thrust of the challenge to her Honour’s order is that she erred in concluding that the law of Dubai did not allow for redistribution of the parties’ assets, thus concluding erroneously that the Dubai proceedings left open the … adjustment of property interests … in the Australian proceedings.” The Full Court ([14]) recited the relevant law of Dubai which, although not analogous to s79, did provide that “a woman … is free to dispose of her property and … [that if one spouse] participates with the other in the development of a property … he may claim from the latter his share therein upon divorce or death” with a right to alimony too ([37]). In allowing the appeal, the Full Court ([22]) cited Taylor v Hollard (1902) 1 KB 676 where it was said that “the fact that a party in local proceedings may receive more or less than the foreign proceedings does not prevent a cause of action in estoppel arising”, adding ([23][24]): “The doctrine explicitly embraces national differences … and the fact that different law will be applied in the two jurisdictions does not detract from the identity of the cause of action … The application of the doctrine has been extended to circumstances where a party who might be expected to raise a claim in the proceedings does not. [Henderson [1843] EngR 917 cited] (...)”

Children Father’s application for parenting orders dismissed for non-compliance with s 60I (family dispute resolution) In Ellwood & Ravenhill [2019] FamCAFC 153 (6 September 2019) Kent J (sitting in the appellate jurisdiction of the Family Court of Australia) allowed the mother’s appeal against orders made on the application of the father in respect of the parties’ daughter (17) and son (nearly 16). His application sought to have the existing, informal parenting arrangement (equal time with daughter but son spending no time with mother due to conflict between them) reflected in an order. In response, the mother applied for the dismissal of the father’s application as s60I had not been complied with, arguing that the Court lacked jurisdiction. The father filed an affidavit as to his not filing a s60I certificate, deposing that mediation had been tried by the parties but failed, which the mother disputed. At first instance, a judge of the Federal Circuit Court directed the parties to attend with a family consultant pursuant to s 11F of the Act. The mother appealed. In setting aside the order and dismissing the father’s parenting application, Kent J said (from [21]): “(...) [T]he provisions [of s60I(7)] emphasise the requirement for parties to a dispute about parenting orders to make a genuine effort to resolve that


dispute with the assistance of family dispute resolution before application is made to the Court. Only if one of the exceptions contained in subsection (9) applies, can an application be filed without the parties having participated in family dispute resolution. Even then, it can be seen that subsection (10) requires the Court to consider an order for the parties to attend family dispute resolution with a family dispute resolution practitioner. (...) [28] … [T]he primary judge was in error in proceeding to hear the father’s application not having made any finding … that any of the exceptions in subsection (9) applied. In other words, the mandatory requirement of subsection (7) applied, and the primary judge was in error in proceeding to hear the application notwithstanding that that mandatory requirement had not been complied with.”

Property Initial contributions of $4.97m (H) and $500 000 (W) to $12.5m pool assessed at 80:20 In Daly & Terrazas [2019] FamCAFC 142 (13 August 2019) the Full Court (Ainslie-Wallace, Aldridge & Austin JJ) considered a nine year cohabitation between a 47 year old husband and 44 year old wife. The parties’ 14 and 11 year old children lived with the husband and saw the wife on weekends and on holidays. Finding that the husband’s initial contributions were worth $4.97m and the wife’s $500 000, Rees J at first instance said that during the

parties’ relationship they “conducted their financial affairs independently” although “each party invested both formally and informally in properties owned by the other” ([10]) and “each contributed their money and their efforts to the enterprise of their family” ([59]). The $12.5m pool excluded superannuation, which was worth $342 351 (husband) and $83 619 (wife). The wife had worked professionally and earned income from shares during the relationship. Rees J found that the parties’ contributions up to the date of trial were equal, but that their initial contributions warranted an 80:20 contributions based adjustment. The wife then received a 10% adjustment for s75(2) factors, a division of 70:30 in favour of the husband overall. The husband appealed. In dismissing the appeal, AinslieWallace J (with whom Aldridge and Austin JJ agreed) said (from [20]): “In short, the argument as to the first ground, shorn of the lawyerly language of the submission, is: ‘20% is too much’. (...) [22] The appeal ground invites this Court to do the impermissible, to substitute our determination of what figure is appropriate to reflect the parties’ contributions instead of her Honour’s. Nothing put to us persuades me that we ought to, and further, her Honour’s conclusion was entirely open to her on the evidence. The outcome is not unreasonable or plainly unjust such that a

failure properly to exercise the discretion may be inferred (see House v The King (1936) 55 CLR 499 at 505). [23] In my view his challenge has no foundation and must fail.”

Spousal maintenance Applicant may reasonably claim expenses not being incurred due to inability to pay In Garston & Yeo (No. 2) [2019] FamCAFC 139 (16 August 2019) Aldridge J (sitting in the appellate jurisdiction of the Family Court of Australia) heard Mr Garston’s appeal against an interim order for spousal maintenance after the breakdown of a same sex marriage. Mr Yeo sought maintenance of $2500 per week, Judge Boyle at first instance accepting that Mr Yeo was not in good health and although looking for work, he had been unemployed since 2014 while receiving a $1000 weekly allowance from Mr Garston. It was ordered that the stipend continue at $1000 per week, the Court rejecting $1500 of Mr Yeo’s claimed expenses, including rent, skincare and holidays. In refusing leave to appeal, Aldridge J said (from [24]): “The appellant correctly submitted that a person seeking an order for spousal maintenance must satisfy the court, on the evidence before it, that he or she cannot support himself or herself adequately as set out in s72(1) of the Act (Hall v Hall [2016] HCA 23 … at [8]). (...)

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[29] A claim for maintenance is not limited by reference to current expenses because an applicant applying for maintenance may not have the ability to pay for commitments necessary to support themselves (s 75(2)(d) of the Act) and thus avoid incurring what otherwise would be a reasonable expense. Therefore, the focus is on what is necessary for support. [30] Often, and conveniently, the identification of reasonable needs may be done by reference to expenses that are currently being incurred but obviously, that will not be possible or lead to adequate support in all cases. It is reasonable to claim that you need more money than you are currently spending (Seitzinger & Seitzinger [2014] FamCAFC 244 … at [53]). Here too, the Financial Statement was prepared very shortly after separation when it would be more difficult to identify the cost of reasonable needs. [31] It follows that the submission that because a claim is an estimate it must be disregarded cannot be accepted. It also follows that verification of expenditure is not necessarily required. (...)”

Property De facto partner for 18 months proved “substantial contributions” but not “serious injustice” if order not made In Beaumont & Schultes [2019] FCCA 1831 (17 July 2019) Judge Turner heard Ms Beaumont’s application for a property order following a childless de facto relationship lasting 18 months,

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during which the applicant assisted with renovating properties that had been acquired by the respondent in his sole name. The Court (at [48]) reviewed the authorities as to the meaning of “substantial contributions” for the purpose of s 90SB(3) (c)(i). While the applicant’s contributions to the welfare of the family were found not to have been “substantial” ([126]), it was found [116]) that her nonfinancial contributions pursuant to s90SM(4)(b) were substantial. They included cleaning, assisting with installation of fence pailings and with spray painting of the fence, sanding the front deck, painting kitchen cupboards, assisting with preparation for the front of the house, doing ‘dump runs’, collecting items from hardware stores and preparing food and drinks. However, in dismissing the application, the Court said (from [135]): “I find … that the applicant would not suffer a serious injustice if an alteration of property interests did not occur. [136] I make this finding based on the following: a. This is a very short relationship of some 18 months. b. The applicant is leaving the relationship in a similar financial position as the applicant entered it … being in full-time employment and part way through her degree. c. The applicant made no financial contributions to

the acquisition, renovation, maintenance or preservation of the … properties. d. Whilst the non-financial contributions by way of renovations … were accepted as substantial, in the scheme of the extent of the renovations undertaken, the added value to the properties by the nature of the applicant’s contributions is small. e. In any event the evidence supports that the renovations as a whole added very little to the overall value of the properties with much of the renovation required to make the properties liveable and rentable. f. The applicant had the benefit of rent free living for the 17 months that the parties cohabitated. g. The applicant benefited from the financial support provided by the applicant on a day-to-day basis including his meeting the costs of outgoings, contributions towards food and entertainment and towards travel. h. The applicant had choices as to how to expend her earnings given these benefits and to penalise the respondent in the choices he made to acquire, improve and retain real property during that time would be unjust to the respondent. [137] As the applicant has failed to establish a serious injustice then the gateway offered by s90SB(3)(c) shuts resulting in the court not having the jurisdiction to alter property interests due to the breakdown of the de facto relationship.”


CA SE NOTES

ayuile@vicbar.com.au ! (03) 9225 7222 % The full version of these judgments can be found at: www.austlii.edu.au.

High Court judgments September to November ANDREW YUILE BARRISTER, VICTORIAN BAR

Limitation of actions Recovery of debts – conflicting limitations periods In Brisbane City Council v Amos [2019] HCA 27 (4 September 2019) the High Court considered which of two potentially overlapping limitation periods applied to the appellant’s action. Pursuant to statutory powers, the appellant levied rates and charges against the respondent, the owner of land in Brisbane. Statute also provided that “overdue rates and charges are a charge on the land”. The appellant brought an action to recover unpaid rates levied between 1999 and 2012. A number of defences were raised, but the High Court appeal related only to a limitation period pleaded. Section 26(1) of the Limitation of Actions Act 1974 (Qld) provided for a 12-year limitation period for actions “to recover a principal sum of money secured by a mortgage or other charge on property”. That provision encompassed debts created by statute and secured by charge. Relevantly for this appeal, s10(1)(d) provided for a six-year limitation period for “an action to recover a sum recoverable by virtue of any enactment”. The appellant argued that only the longer of the two limitation periods applied. The High Court said that one cannot understand the overlap between the sections without understanding their history. There was a long history of predecessor provisions and authorities dealing with interpretation of such provisions, English and Australian. Until the late 1800s, the overlap was dealt with by confining the longer limitation period to actions for real or

proprietary claims, and the second and shorter period applied only to personal claims. However, in Barnes v Glenton [1899] 1 QB 885 it was held that a defendant could plead either limitation period where there was overlap. The shorter period for personal claims would not be extended by the s26 predecessor. The appellant in this case argued that Barnes v Glenton should not be followed. The High Court unanimously rejected that submission. The case had been followed consistently for more than 100 years and was the understanding on which the current provision had been drafted. The Court agreed with the majority from the Court of Appeal and dismissed the appeal. The defendant could plead either limitation period where there was overlap. Kiefel CJ and Edelman J jointly; Gageler J, Keane J and Nettle J each separately concurring. Appeal from Court of Appeal (Qld) dismissed.

Personal injury Inferences of fact – error in material inferences at trial – review of Court of Appeal Lee v Lee; Hsu v RACQ Insurance Limited; Lee v RACQ Insurance Limited [2019] HCA 27 (4 September 2019) concerned the correctness of inferences of fact drawn by the trial judge. The case concerned a car accident in which the appellant was rendered an incomplete tetraplegic. The critical issue at trial was, who was driving the car? The appellant and his family argued that the father was driving. The respondent argued that the appellant was driving and that he had been moved by his father into LAW SOCIETY NT

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the back of the car following the crash. The driver of the other car involved in the crash observed the father, very shortly after the crash, in the back of the car removing one of the children. There was blood on the driver’s side airbag belonging to the appellant. The trial judge found that the appellant was driving the car. On appeal, the Court of Appeal found critical errors in the reasoning of the trial judge. McMurdo JA said that, absent the DNA evidence, he would have found that the father was driving the car. However, the DNA evidence was such that the trial judge’s finding could not be said to be wrong. The High Court held that judicial restraint in interfering with a trial judge’s findings are limited to findings likely to have been influenced by impressions about witnesses and reliability. Aside from that, the Appeal Court is in as good a position as the trial judge to draw inferences from facts found. In this case, having rejected critical planks in the trial judge’s reasoning, the Court of Appeal had to weigh the conflicting evidence and decide for itself what was the correct inference to draw. Further, the view that the DNA evidence was persuasive failed to consider an important assumption underlying expert evidence about the DNA, that the appellant was unrestrained by a seatbelt. However, the Court of Appeal found, consistent with the evidence at trial, that the driver was wearing a seatbelt. That finding required consideration of further expert evidence about seatbelts, which would have prevented

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the driver’s face (and blood) coming into contact with the airbag. The High Court assessed the evidence and inferences for itself, and held that the better conclusion was that the father was the driver. Consequential orders were made allowing the appeal. Bell, Gageler, Nettle and Edelman JJ jointly; Kiefel CJ separately concurring. Appeal from the Court of Appeal (Qld) allowed.

Costs Legal practitioners acting for themselves – Chorley exception In Bell Lawyers v Pentelow [2019] HCA 28 (4 September 2019) the High Court considered whether a barrister acting for themselves in litigation should be able to recover costs for their time spent in the matter. As a general rule, a self-represented litigant cannot get recompense for the value of their time spent in litigation. However, there is a general exception to that rule for self-represented litigants who also happen to be solicitors. The exception was established in London Scottish Benefit Society v Chorley (1884) 13 QBD 872. In the present case, the appellant retained the respondent, a barrister, to act in proceedings in the NSW Supreme Court. At the end of the proceedings there was a dispute over the respondent’s costs. The respondent was unsuccessful in the local court but successful on appeal in the Supreme Court. Costs were awarded to the respondent. The respondent was represented by a solicitor in the local court and by senior counsel in the Supreme

Court. She also attended court herself a number of times and was engaged in preparation of the case. The appellant disputed the respondent’s costs. The issue for the High Court was whether the Chorley exception for solicitors should be extended to self-represented litigants who were also barristers. The Court unanimously held that the Chorley exception should not extend to barristers and a majority of the Court held that the Chorley exception should not be recognised as part of the common law of Australia at all (Nettle J held that there was no need or justification to decide the second point). The plurality said the exception was “an affront to the fundamental value of equality of all persons before the law”, which could not be justified by policy. It was also inconsistent with the relevant statutory definition of “costs”. Kiefel CJ, Bell, Keane and Gordon JJ jointly; Gageler J, Nettle J and Edelman J separately concurring. Appeal from the Court of Appeal (NSW) allowed.

Criminal law Private prosecution – authority to prosecute federal crime – requirement for AttorneyGeneral consent Taylor v Attorney-General (Cth) [2019] HCA 30 (Orders 19 June 2019; reasons 11 September 2019) concerned whether a private citizen could institute a prosecution for crimes against humanity under the Criminal Code (Cth). The plaintiff lodged with the Melbourne Magistrates’ Court a charge sheet and summons alleging that Aung


San Suu Kyi (president and foreign minister of Myanmar) had committed crimes against humanity contrary to s268.11 of the Criminal Code. Section 13(a) of the Crimes Act 1914 (Cth) provides that, unless the contrary intention appears in the relevant Act, any person may institute proceedings for commitment for trial in respect of any indictable offence against the law of the Commonwealth. Section 268.121(1) of the Criminal Code provides that proceedings for an offence against Div 268 of the Code must not be commenced without the consent of the AttorneyGeneral, and s268.121(2) of the Code provides that an offence against Division 268 of the Code “may only be prosecuted in the name of the Attorney-General”. The plaintiff sought the consent of the Attorney-General to commence his prosecution, which was refused. The plaintiff commenced judicial review proceedings in the original jurisdiction of the High Court. The parties stated questions for the Full Court’s consideration concerning whether the Attorney-General’s decision was susceptible to review on the grounds presented. However, a majority of the High Court held that it was unnecessary to answer those questions. The case was instead decided on an anterior question about whether Div 268 precluded the plaintiff’s prosecution. A majority of the Court held that by providing that an offence against Div 268 could only be prosecuted in the name of the Attorney-General, there was a contrary intention for the purposes of s13(a) of the

Crimes Act. That limit imposed an absolute restriction and exhaustive statement on the right to prosecute. It followed that the Attorney-General’s decision not to consent was the only decision legally available in this case. The relief sought by the plaintiff had to be refused. Kiefel CJ, Bell, Gageler and Keane JJ jointly; Nettle and Gordon JJ jointly dissenting; Edelman J separately dissenting. Answers to Special Case given.

Constitutional law Chapter III – parole periods – extension of non-parole by naming person In Minogue v Victoria [2019] HCA 31 (11 September 2019) the High Court upheld the constitutional validity of provisions specifically preventing the parole of the plaintiff except in very limited circumstances. The plaintiff was convicted of the murder of Angela Taylor in 1988. The Court set a non-parole period of 28 years, which ended on 30 September 2016. On 3 October 2016, the plaintiff applied for parole. On 14 December 2016, the Corrections Act 1986 (Vic) was amended to insert s74AAA, which prevented the Parole Board (“Board”) making parole orders where the prisoner had been sentenced to a non-parole period for the murder of a person who the prisoner knew or as reckless as to whether the person was a police officer, except where the Board was satisfied that the prisoner was in imminent danger of dying or was seriously incapacitated, so that the prisoner no longer had the physical capacity to do

harm to any person. The plaintiff commenced proceedings in the High Court’s original jurisdiction challenging the constitutional validity of s74AAA. On 1 August 2018, the Corrections Act was further amended to insert s74AB. That section specifically applied to the plaintiff and prevented the Board from allowing his parole unless the Board was satisfied that: the plaintiff was in imminent danger of dying or was seriously incapacitated, such that he no longer had the physical capacity to do harm to any person; the plaintiff had demonstrated that he does not pose a risk to the community; and other circumstances justified the order. The plaintiff alleged that the amended provisions were contrary to Ch III of the Constitution because they impose additional or separate punishment by extending the non-parole period; they constitute cruel, inhuman or degrading treatment or punishment contrary to the Bill of Rights 1688; and they are inconsistent with the constitutional assumption of the rule of law. The High Court held that the new provisions were relevantly indistinguishable from the provision upheld in Knight v Victoria (2017) 261 CLR 306, where the Court refused to reopen its decision in Crump v New South Wales (2012) 247 CLR 1. The sections did not alter the sentence or impose additional punishment, nor did they involve the exercise of judicial power. They do no more than change the conditions that had to be met before the plaintiff could be released on

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parole. This conclusion meant that the second and third arguments of the plaintiff did not need to be considered. Section 74AB was valid, and as such, s74AAA did not need to be considered. Kiefel CJ, Bell, Keane, Nettle and Gordon JJ jointly; Gageler J and Edelman J separately concurring. Answers to Special Case given.

Restitution Unjust enrichment – breach of contract – building contracts In Mann v Paterson Constructions [2019] HCA 32 (9 October 2019) the High Court considered the application and interaction of principles of breach of contract and restitution in respect of a building contract. The appellants entered into a “major domestic building contract”, as defined by the Domestic Building Contracts Act 1995 (Vic), with the respondent builder. The contract provided for progress payments to be made on completion of stages of work. As work was being done, the appellants sought 42 variations without giving written notice as required by s38 of the Act. The builder carried out the variations, also without giving written notice as required by s38. Section 38 provides that a builder is not entitled to recover for work done in respect of a variation unless notice has been given (s38(6)(a)) or the Victorian Civil and Administrative Tribunal (VCAT) is satisfied that there are exceptional circumstances or that the builder would suffer significant or exceptional hardship; and that it would not be unfair to the building owner

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for the builder to recover the money (s38(6)(b)). After being issued with an invoice for the variations, the appellants repudiated the contract, which was accepted, thus terminating the contract. The respondent began proceedings in VCAT seeking damages or, alternatively, moneys for work done and materials provided. VCAT found that the appellants had wrongfully repudiated the contract and that the respondent was entitled to recover for the value of the benefit conferred on the owners, being the fair and reasonable value of the work. That amount was considerably greater than if the claim had been confined to the contract. VCAT also decided that s38 did not apply to a claim for restitution and it did not need to decide whether s38 applied in this case. Appeals to the Supreme Court and to the Court of Appeal were dismissed. The High Court unanimously held that s38 did operate to limit the amount that might be recovered by way of restitution. It excluded the availability of restitutionary relief for variations other than in accordance with s38. The Court also held that, for amounts not in respect of the variations, the builder could claim for amounts due for stages completed by the time of termination or for breach of contract for any uncompleted stage of the contract. A majority of the Court also held that the builder was entitled to recovery by way of restitution, in the alternative to breach of contract. However, the claimant should not be able to recover more by restitution

than would have been available under the contract. Any amount recoverable in restitution should therefore be limited in accordance with the rates or overall price in the contract. Kiefel CJ, Bell and Keane JJ jointly; Nettle, Gordon and Edelman JJ jointly; Gageler J separately concurring with Nettle, Gordon and Edelman JJ. Appeal from Court of Appeal (Vic) allowed.

Corporations law Financial assistance of company to acquire shares in the company Connective Services Pty Ltd v Slea Pty Ltd [2019] HCA 33 (9 October 2019) concerned the scope of s260A of the Corporations Act 2001 (Cth). The appellant companies (Connective Companies) were incorporated in 2001. The shareholders have relevantly been the first respondent (Slea Pty Ltd, (Slea)), the third respondent (Millsave Holdings Pty Ltd (Millsave)) and the fourth respondent (Mr Haron). The constitution of each Connective Company contained a pre-emption clause, requiring that before a shareholder could transfer shares of a particular class, those shares had to be offered to existing shareholders. In 2009, the sole director and shareholder of Slea, Mr Tsialtas, entered into an agreement with the second respondent (Minerva Financial Group Pty Ltd (Minerva)) for the sale of Mr Tsialtas’s shares in Slea. A second agreement was made in 2010 between Mr Tsialtas, Slea and Minerva. In 2016, the Connective Companies began


proceedings against Slea and Minerva (also joining Millsave and Mr Haron), alleging that Slea intended to transfer its shares in the Connective Companies to Minerva without complying with the pre-emption provision. Slea and Minerva applied to have the proceedings dismissed or stayed. One form of relief sought was an injunction under s1324 of the Act, restraining the Connective Companies from prosecuting the pre-emption proceedings on the basis that the proceedings constituted a contravention of s260A of the Act. That provision prevents a company from providing financial assistance to a person to acquire shares in the company except if the assistance does not materially prejudice the interests of the company or its shareholders, or the company’s ability to pay its shareholders. The High Court held that “Any action by the company can be financial assistance if it eases the financial burden that would be involved in the process of acquisition or if it improves the person’s ‘net balance of financial advantage’”. It extends beyond direct contributions to share price. In this case, bringing legal proceedings against Slea was a necessary step for the vindication of the pre-emption rights of Millsave and Mr Haron. The proceedings could have been brought by Millsave or Mr Haron. If that had been done, the provision of any financial assistance by the Connective Companies would have contravened s260A. Instead, the Connective Companies, in which Millsave and Mr Haron held 66.67 per cent of the shares,

themselves commenced the proceedings, at the companies’ expense. That commencement was financial assistance to Millsave and Mr Haron. And the Connective Companies had not shown that there was no material prejudice to the Connective Companies or their shareholders. Kiefel CJ, Gageler, Keane, Gordon and Edelman JJ jointly. Appeal from the Court of Appeal (Vic) dismissed.

Migration Fast Track – procedural fairness – certificates under s473GB In BVD17 v Minister for Immigration and Border Protection [2019] HCA 34 (9 October 2019) the High Court held that procedural fairness did not require the Immigration Assessment Authority (IAA) to inform the applicant of a notification under s473GB(2) (b) of the Migration Act 1958 (Cth). The appellant made an application for a protection visa that was refused by a delegate of the Minister. The application was referred to the IAA for consideration under the Fast Track regime in Part 7AA of the Act. Section 473GB applies to documents given to the Minister or the Department in confidence. Where it applies, s473GB(2) (a) obliges the Secretary to notify the IAA in writing that s473GB applies in relation to a document or information. The IAA may then have regard to any matter in the document or information and may, in certain circumstances, disclose the document or material to the applicant. In relation to reviews

by the IAA, s473DA(1) provides that Div 3 of Part 7AA, with ss473GA and 473GB, “is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to reviews conducted by the [IAA]”. In this case, a s473GB notification was issued to the IAA. The IAA did not disclose to the applicant any of the documents or information in the file and did not disclose the fact of the notification. The applicant argued, relying on the decision in Minister for Immigration and Border Protection v SZMTA (2019) 363 ALR 599 (SZMTA), that the failure to tell the applicant about the fact of the notification from the Secretary was a breach of procedural fairness. SZMTA concerned review under Part 7 of the Act by the Administrative Appeals Tribunal. The High Court held that s473DA provides for a different procedural fairness obligation to that imposed under Part 7 of the Act. Section 473DA precludes an obligation equivalent to that in SZMTA. Further, in this case, there was insufficient evidence to infer that the IAA failed to consider exercising the discretion conferred by s473GB(3)(b) of the Act. Kiefel CJ, Bell, Gageler, Keane, Nettle and Gordon JJ jointly; Edelman J dissenting. Appeal from the Full Federal Court dismissed.

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Criminal law Statutory construction – meaning of “mutilates” and “clitoris” in female genital mutilation offence The Queen v A2; The Queen v Magennis; The Queen v Vaziri [2019] HCA 35 (16 October 2019) concerned the proper interpretation of s45(1)(a) of the Crimes Act 1900 (NSW). That section makes it an offence to excise, infibulate or “otherwise mutilate the whole or any part of the labia majora or labia minora or clitoris” of another person. A2 and Magennis were charged with mutilating the clitoris of C1 and C2 on separate occasions. Vaziri was charged with assisting A2 and Magennis. The charges arose from a ceremony called “khatna” performed on C1 and C2. It involves causing injury to a girl’s clitoris by cutting or nicking it. The defence case was that the procedure was merely ritualistic and did not involve any nick or cut to the clitoris of C1 or C2. Evidence was led by the Crown to rebut this. The defence further argued that, even if there was a cut or a nick, there had not been “mutilation” within the meaning of s45(1)(a). The trial judge directed the jury that “mutilate” in the context of this provision meant “injure to any extent”. A nick or a cut was capable of being mutilation. There was also a question whether “clitoris” included the clitoral hood or prepuce. The jury found each accused guilty. The Court of Appeal held that the trial judge misdirected the jury and that “mutilates” should be given its ordinary

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meaning, requiring more than superficial injury or some irreparable damage. The High Court, by majority, upheld an appeal from that decision. The majority held that, in context, s45(1)(a) should be read as extending to criminalise female genital mutilation in its various forms. That encompassed the nicking or cutting of the clitoris of a child, even if there was no permanent damage. Further, “clitoris” in this context included the clitoral hood and the prepuce. The trial judge had therefore not misdirected the jury. The majority held that the matters should be remitted to the Court of Appeal for further consideration of other grounds of appeal in light of the proper construction of s45(1)(a). Kiefel CJ and Keane J jointly; Nettle and Gordon JJ jointly concurring; Edelman J separately concurring; Bell and Gageler JJ jointly dissenting. Appeal from the Court of Appeal (NSW) allowed.

Tax law Income tax – capital expenditure – gaming machine entitlements Commissioner of Taxation v Sharpcan Pty Ltd [2019] HCA 36 (16 October 2019) concerned whether gaming machine entitlements (GMEs) acquired by the respondent were deductible under s8-1 of the Income Tax Assessment Act 1997 (Cth). The respondent was the sole beneficiary of the Daylesford Royal Hotel Trust. Spazor Pty Ltd, the trustee of the Trust, purchased the Royal Hotel in Daylesford. The trustee did not purchase 18 gaming machines

in the hotel, but received a percentage of income derived from them. In 2008, under new legislation, the trustee bid for and was allocated 18 GMEs allowing it to operate the gaming machines itself. The GMEs were paid for by instalment, with forfeiture in default. The trustee claimed the purchase price as a deduction under s8-1 of the Act, or onefifth of the price under s40-880 of the Act. The claims were disallowed by the Commissioner. That decision was set aside by the Administrative Appeals Tribunal (AAT), which decided that the purchases were not of a capital nature and deductible. The Full Federal Court by majority dismissed an appeal from the AAT’s decision. The High Court unanimously upheld an appeal. The Court held it was not to the point that the price was to be recouped out of daily trading; that the purchase price may have reflected the economic value of the income stream expected to be derived; that the business was integrated and would have been prejudiced if the GMEs had not been purchased; or that a change in the law allowed the trustee to purchase the GMEs. The purpose in paying the purchase price was to acquire, hold and deploy the GMEs as enduring assets of the business for the purpose of generating income. The GMEs were also necessary for the structure of the business. Although by instalment, the purchase was in the nature of a once-and-for-all outgoing for the purchase of an enduring asset, not a regular and recurrent payment for the


use of an asset. Further, the High Court held that evidence did not establish that the purpose of purchasing the GMEs was to preserve but not enhance the goodwill of the business. The value of the GMEs to the trustee was also not solely attributable to the effect that the GMEs had on goodwill. Section 40-880 of the Act did not apply. Kiefel CJ, Bell, Gageler, Nettle and Gordon JJ jointly. Appeal from the Full Federal Court allowed.

Corporations law Financial assistance of company to acquire shares in the company Connective Services Pty Ltd v Slea Pty Ltd [2019] HCA 33 (9 October 2019) concerned the scope of s260A of the Corporations Act 2001 (Cth). The appellant companies (Connective Companies) were incorporated in 2001. The shareholders have relevantly been the first respondent (Slea Pty Ltd, (Slea)), the third respondent (Millsave Holdings Pty Ltd (Millsave)) and the fourth respondent (Mr Haron). The constitution of each Connective Company contained a pre-emption clause, requiring that before a shareholder could transfer shares of a particular class, those shares had to be offered to existing shareholders. In 2009, the sole director and shareholder of Slea, Mr Tsialtas, entered into an agreement with the second respondent (Minerva Financial Group Pty Ltd (Minerva)) for the sale of Mr Tsialtas’s shares in Slea. A second agreement was made in 2010 between Mr Tsialtas, Slea and Minerva. In 2016, the Connective Companies began

proceedings against Slea and Minerva (also joining Millsave and Mr Haron), alleging that Slea intended to transfer its shares in the Connective Companies to Minerva without complying with the pre-emption provision. Slea and Minerva applied to have the proceedings dismissed or stayed. One form of relief sought was an injunction under s1324 of the Act, restraining the Connective Companies from prosecuting the pre-emption proceedings on the basis that the proceedings constituted a contravention of s260A of the Act. That provision prevents a company from providing financial assistance to a person to acquire shares in the company except if the assistance does not materially prejudice the interests of the company or its shareholders, or the company’s ability to pay its shareholders. The High Court held that “Any action by the company can be financial assistance if it eases the financial burden that would be involved in the process of acquisition or if it improves the person’s ‘net balance of financial advantage’”. It extends beyond direct contributions to share price. In this case, bringing legal proceedings against Slea was a necessary step for the vindication of the pre-emption rights of Millsave and Mr Haron. The proceedings could have been brought by Millsave or Mr Haron. If that had been done, the provision of any financial assistance by the Connective Companies would have contravened s260A. Instead, the Connective Companies, in which Millsave and Mr Haron held 66.67 per cent of the shares, themselves commenced the

proceedings, at the companies’ expense. That commencement was financial assistance to Millsave and Mr Haron. And the Connective Companies had not shown that there was no material prejudice to the Connective Companies or their shareholders. Kiefel CJ, Gageler, Keane, Gordon and Edelman JJ jointly. Appeal from the Court of Appeal (Vic) dismissed.

Criminal law Murder – case based on circumstantial evidence – unreasonable verdict In Fennell v The Queen [2019] HCA 37 (Orders 11 September 2019; reasons 6 November 2019) the High Court quashed the appellant’s conviction on the basis that it was not open to the jury to be satisfied of his guilt. Mr Fennell was convicted of the murder of Ms Liselotte Watson in her home in a small community on Macleay Island. The Crown case was entirely circumstantial, relying on a window of opportunity and Mr Fennell’s access to Ms Watsons’ house; motive (he knew Ms Watson had cash in her house, he had been stealing from her to service gambling debts, and he didn’t want her to find this out); and other matters said to be inculpatory. The most significant “other matter” was evidence from a Mr and Mrs Matheson purporting to identify a hammer that was the likely murder weapon as one they had given the appellant many years before. The jury convicted and the Court of Appeal dismissed an appeal, finding that the motive and opportunity evidence were sufficient and the evidence of LAW SOCIETY NT

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the Mathesons could be taken as convincing proof of his link to the murder. The High Court held that the crown case on motive and opportunity was extremely weak. The relevant window for the alleged murder was very small and required assumptions contradicted by other evidence. On motive, the appellant was in no different position to other residents of Macleay Island. Further, Mr Fennell’s gambling habits had not changed, but he was not in debt and ahead on mortgage repayments. A search of the appellant’s home found nothing to link him to the murder. None of his DNA or fingerprints were at the crime scene and he was excluded as a DNA contributor to a bag found with the hammer. Finally, the evidence of the Mathesons was glaringly improbable and should have been given such little weight that it was barely admissible. In light of all of these matters, it was not open on the evidence for the jury to be satisfied of Mr Fennell’s guilt. Kiefel CJ, Keane, Nettle, Gordon and Edelman JJ jointly. Appeal from Court of Appeal (Qld) allowed.

Constitutional law Ch III – principles from Kable and Kirk – preventative control orders In Vella v Commissioner of Police (NSW) [2019] HCA 38 (6 November 2019) a majority of the High Court upheld the validity of s5(1) of the Crimes (Serious Crime Prevention Orders) Act 2016 (NSW) (SCPO Act). Sections 5 and 6 of the SCPO Act empower the District Court or the Supreme Court of NSW to

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make “civil preventative orders” that can restrain the liberty of an individual, including without proof of the commission of an offence by that individual. The plaintiffs were the object of orders sought in the Supreme Court, seeking to restrain and prohibit them from associating with persons involved in Outlaw Motorcycle Gangs, attending the premises of such gangs, travelling in a vehicle in certain periods except in case of emergency, and possessing more than one mobile phone. Section 5 was challenged on the basis of the principles developed from Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51 – incompatibility with the institutional integrity of the relevant Courts. The majority identified six steps to be satisfied before power to make a preventative order was enlivened. The majority noted previous decisions of the Court holding that other preventative order regimes dealing with possible terrorist acts, sexual offenders and criminal acts do not infringe the Kable principles. The majority held that the SCPO Act gives courts substantial judicial discretion in respect of making orders and their content. The Courts were not enlisted by the Executive. The challenge based on judicial power was contrary to history and prior authority. And there was nothing antithetical to the judicial process in opentextured legislation establishing broad principles to be developed and applied by courts. To the contrary, if such powers are to exist, it is desirable that they be exercised by courts with broad discretions. Bell, Keane,

Nettle and Edelman JJ jointly; Kiefel CJ separately concurring; Gageler J and Gordon J each separately dissenting. Answers to Questions in Special Case given.

Proceeds of crime Forfeiture of tainted property – proceeds or instruments of offending – third party acquisition Lordianto v Commissioner of the Australian Federal Police; Kalimuthu v Commissioner of the Australian Federal Police [2019] HCA 39 (13 November 2019) both concerned whether money held in bank accounts had ceased to be the proceeds of crime or the instrument of an offence under s330(4) (a) of the Proceeds of Crime Act 2002 (Cth) (POCA). The appellants were involved in a money laundering scheme known as “cuckoo smurfing”, in which a person offshore asks a remitter to transfer funds to Australia. The remitter withholds the money, while in Australia associates deposit money into the transferee’s account, in amounts beneath a reporting threshold of $10 000. In both cases, the Commissioner obtained orders under s19 of the POCA restraining the funds in bank accounts of the appellants, on the basis that they were the proceeds of crime or instruments of offending. The relevant offences were structuring offences contrary to the Anti‑Money Laundering and Counter-Terrorism Financing Act 2006 (Cth). The appellants later sought to have excluded from the restraining order choses in


action in respect of the bank accounts (being the entitlement to require the banks to pay out the money to the appellants’ credit in the accounts). The appellants in both cases conceded that the “property” had been the proceeds of crime or an instrument of offending, but argued that it had ceased to have that character. They argued that the property had been acquired by a third party for sufficient consideration, without the third party knowing that the property was the proceeds or instrument of an offence, pursuant to s330(4) (a) of the POCA. The High Court considered the proper interpretation of s330(4)(a), holding that the section must be read as a whole and not as a series of isolated elements. Section 330(4)(a) provides a limited exclusion, in many cases similar to the inquiry about bona fide purchaser for value without notice. After considering the matters to be satisfied in s330(4) (b), the Court held – unanimously in respect of the appellant in the Lordianto appeal and the first appellant in the Kalimuthu appeal; and by majority in respect of the second appellant in the Kalimuthu appeal – that the appellants had failed to discharge the onus to meet the section’s requirements. Kiefel CJ, Bell, Keane and Gordon JJ jointly; Edelman J separately concurring in respect of Lordianto and the first appellant in Kalimuthu, and dissenting in respect of the second appellant in Kalimuthu. Appeals from the Court of Appeal (NSW) and Court of Appeal (WA) dismissed.

Criminal law

Crown appealed the sentence. On appeal, counsel for the Crown appeal against sentence accused sought access to the – procedural fairness – public confidential exhibit. The Court interest immunity of Appeal took the document into account but upheld a claim HT v The Queen [2019] HCA 40 of PII over the exhibit made by (13 November 2019) concerned the Police (supported by the procedural fairness to an Crown) to prevent access for the accused in circumstances where accused. The Court increased a confidential summary of the discount for assistance to assistance was provided to the 40 per cent, but re-sentenced Court but not to the accused the accused to six years and six on grounds of public interest months’ imprisonment, with immunity (PII). The accused a non-parole period of three pleaded guilty to 11 counts years and six months. The High of fraud each with maximum Court held unanimously that penalties of five or 10 years’ the accused had been denied imprisonment. The offending procedural fairness in the Court was found to be very serious of Appeal. By being denied with a high level of moral access to the exhibit, she was culpability. By s23(3) of the denied a reasonable opportunity Crimes (Sentencing Procedure) to be heard. PII did not justify Act 1999 (NSW), one matter the the denial of procedural sentencing judge had to take fairness. That doctrine, where into account was assistance it applies, excludes material given to law enforcement. from being admissible. Where The accused was a registered necessary, orders can be informant and had provided tailored to meet the demands of significant assistance. Before sensitive evidence. However, PII the sentencing judge, the Crown does not allow for material to be gave the accused’s counsel a admitted into evidence but kept choice between producing a confidential from an accused. No much shorter (inferentially less other sources of power sought beneficial) document outlining to be relied on justified that the accused’s assistance that position. Further, the Crown the accused could see, and had an obligation to place all a longer (inferentially more relevant material before the beneficial) statement that Court. Where sensitivities arose, would be provided only to tailored orders might be made. the Court. Counsel chose the In the circumstances, the Court latter. A confidential exhibit set aside the orders of the Court was given to the judge setting of Appeal and reinstated the out the assistance. The judge orders of the trial judge. Kiefel gave the accused a discount CJ, Bell and Keane JJ jointly; of 35 per cent of which 15 per Nettle and Edelman JJ jointly cent was identified as for her concurring; Gordon J separately guilty plea. She was sentenced concurring. Appeal from the to three years and six months’ Court of Criminal Appeal (NSW) imprisonment, with a nonallowed. parole period of 18 months. The LAW SOCIETY NT

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CA SE NOTES

dkelseysugg@vicbar.com.au ! (03) 9225 6286 % The full version of these judgments can be found at: www.austlii.edu.au.

High Court judgments November to December DAVID KELSEY-SUGG BARRISTER, VICTORIAN BAR

Criminal practice Crown appeal against sentence – procedural fairness HT v The Queen [2019] HCA 40 (13 November 2019) concerned whether the appellant had been denied procedural fairness in the Court of Criminal Appeal and, if so, whether that denial was justified. The appellant had been convicted and sentenced in the District Court of New South Wales. She was a registered police informer who had provided assistance to law enforcement authorities. The sentencing judge was required, by statute, to take that assistance into account as a mitigating factor. Confidential evidence of the appellant’s assistance was given to the sentencing judge and was seen by the Crown Prosecutor. It was not, however, given to the appellant’s counsel. The Commissioner of Police had opposed making the confidential information available to the appellant or her legal representatives even with the imposition of conditions. The basis given for this was public interest immunity. The Crown supported that stance. The Court of Criminal Appeal upheld the Commissioner’s objection on the ground that the confidential information was subject to public interest immunity. The High Court said the appellant, having been denied access to the confidential evidence, and therefore an opportunity to test and respond to it, was denied procedural fairness. The doctrine of public interest immunity did not provide a basis

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for keeping the confidential evidence from the appellant. The Court of Criminal Appeal was wrong to exercise its residual discretion. Kiefel CJ, Bell and Keane JJ jointly. Nettle and Edelman JJ jointly concurring. Gordon J separately concurring. Appeal from the Supreme Court of New South Wales allowed.

Immigration Administrative law – judicial review – jurisdictional error In EBT16 v Minister for Home Affairs [2019] HCA 44 (13 November 2019) the plaintiff applied for a constitutional or other writ in the original jurisdiction of the High Court under s75(v) of the Constitution. The plaintiff sought a writ of certiorari quashing two orders of the Federal Circuit Court. By the first order, the Federal Circuit Court refused an application by the plaintiff for an extension of time under s477(1) of the Migration Act 1958 (Cth) for the filing of an application for judicial review of a decision of the Administrative Appeals Tribunal. The second order dismissed the application for judicial review in respect of which the extension of time was sought. The plaintiff also sought a writ of mandamus requiring the Federal Circuit Court to determine his application for an extension of time according to law. The High Court did not consider that the plaintiff’s application raised an arguable basis for the relief


S sought by the plaintiff. Gageler J. Application dismissed under r25.09.1 of the High Court Rules 2004 (Cth).

Income tax Appeal against objection decision In Bosanac v Commissioner of Taxation [2019] HCA 41 (22 November 2019) the plaintiff sought a writ of certiorari to quash a judgment and orders of the Full Court of the Federal Court, a writ of certiorari to quash the primary judge’s judgment, and other orders including a writ of mandamus to compel the Commissioner of Taxation to excise $600 000 from the plaintiff’s assessable income for the year ended 30 June 2009. In March 2014, the Commissioner commenced an audit into the plaintiff’s tax affairs. Before the completion of the audit, the plaintiff lodged tax returns for the years ended 30 June 2006 to 30 June 2013 for the first time. On completion of the audit, the Commissioner issued notices of amended assessments that substantially increased the plaintiff’s taxable income. The plaintiff objected. The Commissioner then issued notices of further amended assessments. The plaintiff commenced an appeal in the Federal Court against those assessments pursuant to s14ZZ of the Taxation Administration Act 1953 (Cth).

The onus was on the plaintiff to prove on the balance of probabilities the extent to which the impugned assessments were excessive. The plaintiff failed to do so before the primary judge. He then appealed to the Full Court, which dismissed the appeal. The High Court said there was no error in the reasoning of the Full Court and no basis for compelling the Commissioner to reduce the further amended assessment in respect of the 2009 year of income by the amount of $600 000. Nettle J. Application dismissed.

Representative proceedings Power to make common fund orders BMW Australia Ltd v Brewster; Westpac Banking Corporation v Lenthall [2019] HCA 45 (4 December 2019) concerned whether, in representative proceedings, s33ZF of the (Cth) and s183 of the Civil Procedure Act 2005 (NSW) empower the Federal Court and the Supreme Court of New South Wales to make a “common fund order”. Such an order is usually made early in representative proceedings and provides for the quantum of a litigation funder’s remuneration to be fixed as a proportion of any money ultimately recovered in the proceedings, for all group members to bear a proportionate share of that liability, and for that liability to be discharged as a first priority from any money so recovered.

The issue was resolved in the affirmative against the appellants – in the Westpac appeal by the Full Court of the Federal Court of Australia, and in the BMW appeal by the Court of Appeal of the Supreme Court of New South Wales. By majority, the High Court said that properly construed, neither s33ZF of the FCA nor s183 of the CPA empowers a court to make a common fund order. Those sections provide that in a representative proceeding, the court may make any order the court thinks appropriate or necessary to ensure that justice is done in the proceeding. While the power conferred is wide, it does not extend to the making of a common fund order. The sections empower the making of orders as to how an action should proceed in order to do justice. They are not concerned with the different question of whether an action can proceed at all. It was not appropriate or necessary to ensure that justice is done in a representative proceeding for a court to promote the prosecution of the proceeding in order to enable it to be heard and determined by that court. The making of an order at the outset of a representative proceeding, in order to assure a potential funder of the litigation of a sufficient level of return on its investment to secure its support for the proceeding, was beyond the purpose of the legislation.

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C Kiefel CJ, Bell and Keane JJ jointly. Nettle and Gordon JJ each separately concurring. Gageler and Edelman JJ each separately dissenting. Appeal from the Court of Appeal of the Supreme Court of New South Wales allowed in the BMW appeal. Appeal from the Full Court of the Federal Court of Australia allowed in the Westpac appeal.

Police powers Arrest without warrant New South Wales v Robinson [2019] HCA 46 (4 December 2019) concerned whether a police officer has the power to arrest a person, without warrant, under s99 of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) (LEPRA) when, at the time of the arrest, the officer had not formed the intention to charge the arrested person. Mr Robinson had brought proceedings in the District Court of New South Wales against the State of New South Wales

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claiming damages for wrongful arrest and false imprisonment constituted by his arrest. The State of New South Wales defended the claim on the basis that the arrest was lawfully effected pursuant to s99 of LEPRA. On the evidence, the arresting officer had no intention, at the time of the arrest, of bringing Mr Robinson before an authorised officer to be dealt with according to law unless it emerged subsequent to the arrest that there was sufficient reason to charge him. By majority, the High Court said an arrest under s99 can only be for the purpose, as soon as is reasonably practicable, of taking the arrested person before a magistrate (or other authorised officer) to be dealt with according to law to answer a charge for that offence. An arrest merely for the purpose of asking questions or making

investigations in order to see whether it would be proper or prudent to charge the arrested person with the crime is unlawful. The arresting officer did not have the power to arrest Mr Robinson, without warrant, under s99 of LEPRA when, at the time of the arrest, the officer had not formed the intention to charge Mr Robinson. The arrest was unlawful. Bell, Gageler, Gordon and Edelman JJ jointly. Kiefel CJ, Keane and Nettle JJ jointly dissenting. Appeal from the Supreme Court of New South Wales dismissed.


CA SE NOTES

danstar@vicbar.com.au (03) 9225 8757 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.

%

!

Federal Court judgments DAN STAR QC BARRISTER, VICTORIAN BAR

Consumer law Construction of disclosure obligation in the Franchising Code – civil penalties In Ultra Tune Australia Pty Ltd v Australian Competition and Consumer Commission [2019] FCAFC 164 (20 September 2019) the appellant (Ultra Tune) appealed against the trial judge’s decision that it contravened a disclosure obligation owed to franchisees in cl 15(1) of the Franchising Code (Schedule 1 to the Competition and Consumer (Industry Codes – Franchising) Regulation 2014 (Cth)) and the imposition of penalties for that and other admitted contraventions of the disclosure obligations in the Franchising Code. Ultra Tune is a franchisor for motor vehicle engine repair and maintenance services provided by a national network of approximately 200 franchises. It admitted various contraventions of the Franchising Code but disputed other claims of contraventions pressed by the respondent (ACCC). The disputed contraventions gave rise to a question of construction as to the proper meaning of the expression “sufficient detail” in cl 15(1)(b) of the Franchising Code (at [19]). The Full Court dismissed Ultra Tune’s appeal on the contested contraventions and upheld the trial judge’s construction (at [46]-[48]). Further, Allsop CJ and Jagot and Abraham JJ said at [47]: “The facts of the particular case will determine the issue of sufficiency which lends support to the primary judge’s observation at [104], that a franchisor

would be well advised to err on the side of candour”. However, the appeal against penalty was allowed and the Full Court reduced the trial judge’s penalty of $2 604 000 to $2 014 000. The Full Court disagreed with the trial judge that the disclosure contraventions were in or towards the worst category of case (at [60]). Ultra Tune’s contravening conduct was characterised and assessed by the Full Court as “egregious inadvertence” (at [59] and [70]-[72]).

Consumer law, torts and trade marks Whether conduct in the course of an industrial dispute (i) infringed trade mark, (ii) was misleading or deceptive or (iii) injurious falsehood – “in trade or commerce” requirement for misleading or deceptive conduct In National Roads and Motorists’ Association Limited v Construction, Forestry, Maritime, Mining and Energy Union [2019] FCA 1491 (11 September 2019) the applicant (NRMA) brought a proceeding alleging that the respondent (MUA) engaged in trade mark infringements, misleading or deceptive conduct and committed the tort of injurious falsehood. The Court dismissed the NRMA’s case on all bases. The impugned conduct occurred in an industrial dispute relating to the wages and conditions of employees of a ferry business owned by the NRMA. The NRMA’s claims included that, as part of the industrial dispute, the MUA used the NRMA’s word and device marks, and made false or LAW SOCIETY NT

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misleading statements which were detrimental to, and designed to injure, the NRMA and its brand. In relation to the claims of misleading or deceptive conduct, the central issue was whether the conduct was “in trade or commerce”. The Court considered and applied the principles from the seminal High Court case of Concrete Constructions (NSW) Pty Ltd v Nelson (1990) 169 CLR 594 (at [132]). The Court also discussed the body of caselaw which indicates that it is not the intention of ss18 and 29 of the Australian Consumer Law (or its predecessor) to govern public or political debate (at [133]-[149]). It was held that the relevant conduct of the MUA was not conduct “in trade or commerce” (at [154]). Griffiths J explained at [135]: “It was properly acknowledged by [Counsel for the NRMA] that there is no precedent which establishes that the conduct of a trade union or its members in campaigning for improved wages or conditions of employment constitutes conduct ‘in trade or commerce’. Conduct in the course of an existing employment relationship is unlikely to constitute conduct ‘in trade or commerce’ even where it is the conduct of the parties to the relationship itself. . . Similarly, I consider that statements by an employer to its employees in the context of a proposed enterprise agreement will not generally constitute conduct ‘in trade or commerce’. By analogy, representations made by a trade union in the context of an

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industrial campaign in relation to the existing conditions of employment of employees will generally fall outside conduct that is ‘in trade or commerce’”. The claim based on the tort of injurious falsehood failed because the relevant statements and representations were not made maliciously and because the NRMA did not establish actual damage in the relevant legal sense (at [191][219]).

Evidence and industrial law Accessorial liability – inferences and the rule in Blatch v Archer In Fair Work Ombudsman v Hu [2019] FCAFC 133 (16 August 2019) the Full Court dismissed the appellant’s (FWO) appeal. The underlying case concerned whether workers who picked mushrooms were “casual employees” and were not paid in accordance with the relevant award. One respondent admitted contravening s45 of the Fair Work Act 2009 (Cth) (FW Act), which provides “A person must not contravene a term of a modern award”. The FWO appealed the trial judge’s decision that other respondents were not “knowingly involved” and therefore a person involved in a contravention within the meaning of s550 of the FW Act. The majority concurred with the trial judge’s refusal to infer that the relevant person lacked certain knowledge (namely, the trial judge could not infer that Mr Marland knew that the employees were casual employees) (at [33]-[48]).

Certain potentially relevant witnesses (including Mr Marland) were not called to give evidence by the respondents. An issue raised in the appeal issue was whether the trial judge erred in applying the principles in Jones v Dunkel too narrowly and erred in not applying the approach in Blatch v Archer (1774) 1 Cowp 63, (1774) 98 ER 969. The former case is more well-known that the latter. The rule in Blatch v Archer sought to be invoked by the FWO was Lord Mansfield’s statement that: “. . . [i]t is certainly a maxim that all evidence is to be weighed according to the proof which it was in the power of one side to have produced, and in the power of the other to have contradicted”. The majority held that on the facts of the present case, it lead to no different result whether recourse is had to the observations of Kitto J in Jones v Dunkel or those of Lord Mansfield in Blatch v Archer (at [55]). Flick and Reeves JJ explained at [56]: “Although on the facts of the present case considerable reservation may be expressed as to whether an adverse inference was available to be drawn against Mr Marland, by reason of him being in possession of sufficient information to arouse a not inconsiderable suspicion as to the employees being casual employees, and thus a ‘basis for concluding‘ (cf. Hellicar [2012] HCA 17 at [168], (2012) 247 CLR at 413) that he in fact knew that the employees were casual employees, neither Blatch v Archer nor Jones v Dunkel


can be relied upon to ‘convert conjecture and suspicion into inference’: cf. Council of the Law Society of the ACT [2015] ACTCA 20 at [56]. The more so is this the case in the present appeal in circumstances where there was no comparable basis for imposing upon the Respondents the same expectation as to “fairness” in the conduct of the litigation as was assumed (but not decided) to be imposed upon the Australian Securities and Investments Commission in Hellicar: [2012] HCA 17 at [147] and [152], (2012) 247 CLR at 406 to 407”.

grant two permissions under the Great Barrier Reef Marine Park Regulations 1983 (Cth) to the applicant to use and enter the Marine Park (i) to conduct a program to take animals or plants that pose a threat to human life or safety, being the Queensland Shark Control Program; and (ii) to conduct a research program comprising certain specified studies. The AAT varied the decision under review and the appellant challenged the AAT’s decision on various administrative grounds, all of which were dismissed by the Full Court.

The dissenting judgment of Bromberg J principally concerned the proper construction of cl 15 of the Horticultural Award 2010. Flick and Reeves JJ disagreed with Bromberg J’s approach and held that recourse to the industrial context out of which cl 15 emerged cannot be relied on as a means of construing cl 15 contrary to the clear terms employed (at [30]).

Among other matters, there was consideration of the “precautionary principle”. The precautionary principle is one of the “principles of ecologically sustainable use” in s3AB of the Great Barrier Reef Marine Park Act 1975 (Cth). Section 3(1) of that Act defines the “precautionary principle” to mean “the principle that lack of full scientific certainty should not be used as a reason for postponing a measure to prevent degradation of the environment where there are threats of serious or irreversible environmental damage”. The precautionary principle is also defined in the same terms in s391(2) of the Environment Protection and Biodiversity Conservation Act 1999 (Cth). Allsop CJ and Greenwood and Robertson JJ rejected the ground of appeal that the AAT misunderstood or erred in applying the precautionary

Administrative law and environment law Appeal from AAT – the precuationary principle In State of Queensland (Department of Agriculture and Fisheries) v Humane Society International (Australia) Inc [2019] FCAFC 163 (18 September 2019) the Full Court dismissed an appeal on a question of law from a decision of the Administrative Appeals Tribunal (AAT). The primary decision under review by the AAT was the decision of the Great Barrier Reef Marine Park Authority to

principle (at [119]-[128]).

Corporations law – consumer law – regulatory law What is “financial product advice”, when is it “personal advice” or “general advice” and the duties that arise depending on which type of advice it is Australian Securities and Investment Commission v Westpac Securities Administration Ltd [2019] FCAFC 187 (28 October 2019) is an important decision on the interpretation and application of the provisions addressing financial services and markets provided for by Chapter 7 of the Corporations Act 2001 (Cth) (the Act). Relevantly, Division 4 in Part 7.1 concerns when a person provides a financial service. The legislation contains a significant distinction between “personal advice” or “general advice” (as defined in s766B). If only general advice is given, the primary obligations on the provider of the advice are fewer (see Pt 7.6 Div 3 and Pt 7.7 Divs 2 and 4). In contrast, where personal advice is given, there are many additional obligations in order to provide protection to the client (see Pt 7.7 Div 3 and Pt 7.7A, Div 2). This Full Court decision explores the contours of “financial product advice”, “personal advice” and “general advice”. Facts The appeal and cross-appeal was in respect of campaigns in 2014 and 2015 by the respondents/ cross-appellants to encourage their customers to roll over external superannuation LAW SOCIETY NT

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accounts into existing accounts (the BT accounts) that they held with the first respondent/crossappellant, Westpac Securities Administration Limited (Westpac), and the second respondent/cross-appellant, BT Funds Management. The campaign comprised sending letters and making telephone calls to the customers. By the campaign, Westpac successfully increased its funds under management in the BT accounts by almost $650m. The heart of the appeal concerned whether Westpac’s campaign (in particular by the telephone calls) involved the provision of financial product advice and, if so, whether that financial product advice should properly be characterised as personal advice or general advice. The campaign involved calls to more than 95 000 customers but ASIC’s case at trial was determined on the basis of sample calls to 15 customers (although on appeal the call to one of the customers was no longer relied on). Trial judge and main issues on appeal In summary, the trial judge found: a) Westpac’s telephone communications involved the provision of “financial product advice” within the meaning of s766B(1) of the Act. Westpac’s cross-appeal included this threshold issue

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b) This “financial product advice” in the telephone calls was “general advice” (s766B(4)), and not “personal advice” within the meaning of s766B(3) of the Act. This conclusion was the subject of ASIC’s appeal c) If there was personal advice, there were contraventions of provisions such as to provide services efficiently, honestly and fairly (s912A(1)(a)) and the duty to act in the best interests of the customers (s912B(1)). This also formed part of the cross-appeal. In three separate judgments, the Full Court (comprising Allsop CJ, Jagot J and O’Bryan J) allowed ASIC’s appeal and dismissed the cross-appeal. Issue 1 – “financial product advice” On the threshold issue, having regard to components of the definition of “financial product advice” in s766B(1) of the Act, what had to be established was that Westpac, by the telephone calls, made a “recommendation or a statement of opinion” that was intended, or could reasonably be regarded as having been intended, to influence the customer in making a decision in relation to his or her BT account. Each of the judges held that the telephone communications amounted to financial product advice as defined in s766B(1) on the basis of there being both a “recommendation” and a “statement of opinion” as to the required matters. See Allsop CJ at [67], Jagot J at [234]-[240] and

O’Bryan J at [340]-[349]. This was despite the callers not expressly making any recommendation or statement of opinion and there were marketing elements to the calls. The Full Court rejected the distinction that Westpac sought to draw between advertising/ marketing, on the one hand, and advice on the other hand (Allsop CJ at [22] and [67] and Jagot J at [218]; see also O’Bryan J at [338][339]). Communications could involve both elements. Issue 2 – “personal advice” or “general advice” Relevantly, under s766B(2), “personal advice” is financial product advice given or directed to a person where “the provider of the advice has considered one or more of the person’s objectives, financial situation and needs” or “a reasonable person might expect the provider to have considered one or more of those matters”. Under s766B(4), “general advice” is financial product advice that is not personal advice. ASIC succeeded in its appeal grounds that Westpac’s campaign involved the provision of “personal advice” within the meaning of s766B(2) of the Act. See Allsop CJ at [75]-[146], Jagot J at [241]-[280] and O’Bryan J at [381]-[398]. This was despite the fact that, in each call, the caller said (following the call script) words to the effect that everything being discussed would be general in nature and wouldn’t take into account the customer’s personal needs.


On this key issue in the appeal, the Chief Justice summarised his conclusion at [5]: “. . . Westpac’s attempts to have customers transfer funds from their external accounts with other superannuation funds into their BT accounts were carefully calculated to bring about this desired result by giving no more than general advice. It was marketing by telephone selling. The difficulty is that the decision to consolidate superannuation funds into one chosen fund is not a decision suitable for marketing or general advice. It is a decision that requires attention to the personal circumstances of a customer and the features of the multiple funds held by the customer. Westpac attempted, assiduously, to get the customer to make a decision to move funds to BT without giving personal financial product advice as defined in the legislation. It failed. It gave personal advice, because when the telephone exchanges are considered as a whole and in their context, including importantly the “closing” on the telephone by getting the decision made during the call, there was an implied recommendation in each call that the customer should accept the service to move accounts funds into his or her BT account carrying with it an implied statement of opinion that this step would meet and fulfil the concerns and objectives the customer had enunciated on the call in answer to deliberate questions by the callers about paying too much in fees and enhancing manageability . . .”

Each of the judges considered that there were errors in aspects of the primary’s construction of elements of the statutory definition of “personal advice” in s766B of the Act. The various issues of construction were addressed by Allsop CJ at [13][30], Jagot J at [241]-[260] and O’Bryan J at [360]-[380]. Issue 3 – contraventions The Full Court held that Westpac contravened a number of provisions that applied where there is personal advice. Most attention was given to the duty to act in the best interests of customers (s961B(1)) and to do all things necessary to provide services efficiently, honestly and fairly (s912A(1). See Allsop CJ at [147]-[176], Jagot J at [286]-[302] and O’Bryan J at [404]-[428]. The Court made strong statements about Westpac’s conduct. For instance, O’Bryan J said at [427]: “. . . Westpac took unfair advantage of that asymmetry [of knowledge] by implementing a carefully crafted telephone campaign, reinforcing in the minds of its customers an erroneous assumption that the decision to consolidate their superannuation into a Westpac fund was straightforward and was likely to generate benefits for the customer by saving fees and by reducing the burden of managing superannuation. The telephone campaign was directed to persons with whom Westpac had an existing relationship and in a real sense occupied a position of trust with respect to the customer’s superannuation fund. Despite knowing that the decision was not straightforward,

Westpac did not advise its customers about the matters that they should consider before deciding to consolidate their superannuation. Nor did Westpac even suggest to its customers that they reflect on the decision or seek advice about the decision. Through the campaign, Westpac pursued its own self-interest and disregarded the best interests of its customers. That conduct can rightly be described as unfair and involved a contravention of s912A(1)(a) of the Act”. The other two judges referred to calculated or systemic sharpness in the campaign’s practices (at [174] per Allsop CJ and [290] per Jagot J)). Next steps At the time of writing this summary, the Court had not made the declarations and other orders consequential on allowing ASIC’s appeal and dismissing the cross-appeal. It is apparent that the matter will need to be remitted to the trial judge for the fixing of pecuniary penalties and other matters. It will be interesting to see if Westpac and BT Funds Management seek special leave to appeal to the High Court from the Full Court’s decision.

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Consumer law Whether misleading or deceptive conduct by online search and price comparison platform for travel accommodation In Australian Competition and Consumer Commission v Trivago NV [2020] FCA 16 (20 January 2020) the Court held that Trivago contravened ss18, 29 and 34 of the Australian Consumer Law (ACL) by various representations that it made when Trivago conducted an online search and price comparison platform for travel accommodation. Trivago’s website presented prices from a number of different online booking sites for a particular hotel. One price was presented in green, in a large font with space around it (the Top Position Offer). The ACCC’s case was that at various times in the period from 1 December 2016 to 13 September 2019, Trivago made the following representations in breach of the ACL: a) that the Trivago website would quickly and easily identify the cheapest rates available for a hotel room responding to a consumer’s search (the Cheapest Price Representation) b) that the Top Position Offers were the cheapest available offers for an identified hotel, or had some other characteristic which made them more attractive than any other offer for that hotel (the Top Position Representation)

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c) that the red strike through text on the website (the Strike-Through Price) was a comparison between prices offered for the same room category in the same hotel (the Strike-Through Representation) d) that the red text without strike-through (the Red Price) was a comparison between prices offered for the same room category in the same hotel (the Red Price Representation). The ACCC also alleged that Trivago engaged in conduct that led consumers to believe that the Trivago website provided an impartial, objective and transparent price comparison which would enable them to quickly and easily identify the cheapest available offer for a particular (or the exact same) room at a particular hotel (the additional conduct allegations). Trivago admitted parts of the ACCC’s case but disputed others (at [11] and [34]). The Court substantially found for the ACCC on the contested parts of the case, although not necessarily for all the time periods argued by the ACCC (at [15] and from [190]). The Court received and analysed complex computer science expert evidence from both parties (at [91]-[145]), particularly on the algorithm used by Trivago to select the Top Position Offer. The experts agreed that in approximately 66 per cent of listings, higher priced hotel offers were selected as the Top Position Offer over alternative lower

priced offers (at [13] and [125]). This was of particular relevance to why the Cheapest Price Representation was misleading and deceptive. Moshinsky J explained at [204]: “. . . the expert evidence establishes that the offer that was given most prominence on the website (that is, the Top Position Offer) was in many cases not the cheapest offer for the hotel room. Based on the data they examined, the computer science experts agreed that higher priced offers were selected as the Top Position Offer over alternative lower priced offers in 66.8% of listings. Conversely, 33.2% of listings had a Top Position Offer that was the cheapest offer. . . . The explanation for the fact that in many cases the Top Position Offer was not the cheapest offer relates to the role of the CPC in the Top Position algorithm . . . ” The CPC is the Cost Per Click, which is Trivago’s principal source of revenue. Trivago’s contractual terms required online booking sites to pay Trivago the CPC if a consumer clicks on the online booking site’s offer on the Trivago website whether or not the consumer makes a booking on the online booking site’s website (at [12]). The judgment includes findings on consumer behaviour evidence based on expert evidence called by both parties (at [146]-[177]). There will be a subsequent hearing on relief including the quantum of pecuniary penalties to be paid by Trivago.


Court of Disputed Returns Challenge to validity of election of Gladys Liu and Joshua Frydenberg – whether signs used at polling stations were likely to mislead or deceive an elector in relation to the casting of a vote – whether result of election affected In Garbett v Liu [2019] FCAFC 241 (24 December 2019) the Full Court, sitting at the Court of Disputed Returns pursuant to s354(1) of the Commonwealth Electoral Act 1976 (Cth) (the Act), determined a challenge to the validity of the election of Ms Gladys Liu for the seat of Chisholm and Mr Joshua Frydenberg for the seat of Kooyong in the May 2019 election. The challenges concerned signs (referred to as corflutes) placed at polling stations in both electorates that were alleged to be likely to mislead or deceive an elector in relation to the casting of a vote in alleged contravention of s329(1) of the Act. The corflutes were in Chinese script and each of Chisholm and Kooyong had a substantial Chinese speaking community. The corflutes were in purple and white colours and the purple hue was similar to the purple hue used by the Australian Electoral Commission (AEC) in its signage at polling stations. At a number of polling places the impugned corflute was placed near or adjacent to a sign of the AEC. In translation, the various corflutes said things such as “Correct voting method”, “The right way to vote” or “The

correct way to vote” was “On the green ballot paper, put 1 next to the Liberal Party candidate”. In summary, the complaint was that voters who saw, read and understood the corflutes would or may have considered them to be a direction by the AEC as to the correct way to vote, such that electors were being told that the only way to cast a correct (and so valid) vote was to vote for the Liberal Party or that the AEC was officially instructing people to vote for the Liberal Party. Section 362 of the Act concerns the declaring void of elections for illegal practices. By s352(1), the phrase “illegal practice” is defined as meaning a contravention of the Act or of the regulations. In this case, the alleged contraventions concerned s329. Section 329(1) provides: “A person shall not, during the relevant period in relation to an election under this Act, print, publish or distribute, or cause, permit or authorise to be printed, published or distributed, any matter or thing that is likely to mislead or deceive an elector in relation to the casting of a vote”. Having regard to s362, the Court must not declare that Ms Liu or Mr Frydenberg was not duly elected nor declare the two elections (or either of them) void unless the Court was satisfied that the results or result of the elections or election were or was likely to be affected and that it is just that she or he should be declared not to be duly elected or the election (in respect of her or him) should be declared void.

The Full Court summarised the broad issues before it at [28]: (1) Were the corflutes likely to mislead or deceive an elector in relation to the casting of a vote? (2) Was anyone, and if so who, responsible for that, in the language of s329(1): printing, publishing or distributing or causing, permitting or authorising the printing, publishing or distributing of the corflute? (3) Was the result of the election likely to be affected? and (4) Is it just to order the relief sought, if otherwise available? The Court first addressed various issues of statutory construction that arose under ss329 and 362 of the Act (at [30]-[93]). Turning to the evidence, the Court found that the corflutes were matters or things likely to mislead or deceive an elector in relation to the casting of a vote (at [142]-[154]). Allsop CJ, Greenwood and Besanko JJ explained at [144]: “First, as was the intention of Mr Frost, at least when placed adjacent to AEC signage, it purports to be a sign of, and convey a message from, an independent government agency concerned with the supervision, in a general sense, of the election, when in fact the message is from the Liberal Party. Secondly, if understood as a statement or message by the AEC, it is palpably misleading or deceptive to say that putting the Liberal Party first is the “correct” or “right” way to vote, impliedly stating the way to cast a valid vote is to vote Liberal . . .”

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The Court found that the Mr Frost (the person responsible for the dressing of the polling booths in Victoria in the Victorian Division of the Liberal Party) caused or authorised the printing, publishing and distribution of the corflutes which were matters or things that were likely to mislead or deceive an elector in relation to the casting of a vote (at [155]). No adverse finding was made against Ms Liu or Mr Frydenberg (at [157]-[163]). Finally, the Court held that the result of the election was not likely to be affected (at [164][175]). Ms Liu won the two candidate preferred result by a margin of 1090 votes and for the result to have been affected in Chisholm it would need to be found that at least 546 electors who voted 1 for Ms Liu would not have so voted but would have voted 1 for Ms Yang or for another candidate and directed their preference to Ms Yang (at [167]). Mr Frydenberg’s margin was 11,287 votes and for the result to have been affected, a conclusion would be required that 5644 electors voted for Mr Frydenberg who would not have so voted but would have voted for Mr Burnside or for another candidate and directed their preferences to Mr Burnside (at [168]). However, the Court held that it could only have been a very small group of people who would have felt that they should follow the direction on the corflute (at [170]). Allsop CJ, Greenwood and Besanko JJ stated at [172]: “Whatever the

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number, if any, of people who may have been influenced or may have felt directed to have voted Liberal when they would not have done so had it not been for the corflutes, it would, in our view, not have been anywhere near 500 or 5000 in either electorate”.

Representative proceedings Application of cy-près doctrine to the distribution of monies from the settlement of a class action In Simpson v Thorn Australia Pty Ltd trading as Radio Rentals (No 5) [2019] FCA 2196 (20 December 2019) the Court approved the settlement of a proceeding instituted under Part IVA of the Federal Court of Australia Act 1976 (Cth) (FCA Act) pursuant to s33V of the FCA Act. The allegations in the class action concerned the obtaining of financial products for personal, domestic or household purposes and whether the provider engaged in conduct, which was misleading or deceptive, involved the imposition of contract terms that were unfair, and engaged in unconscionable conduct contrary to various statutory norms. Of interest is the Court’s consideration of a clause in the settlement distribution scheme which provided that if there is an outstanding balance remaining in the settlement fund as at the date of final distribution to group members who are participating, the administrator:

“. . . may exercise its discretion based on a consideration of what is materially proportionate to distribute the additional amount to some or all Participating Group Members or make a donation to the Financial Rights Legal Centre . . . or such other community legal centre as approved by the Court” (at [16]). Lee J considered the source of power to allow an administrator to pay the residuum of a settlement distribution pool to charities and not-for-profit organisations and when such a power, if it exists, should be exercised (at [17]-[27]). The origins of the cy-près doctrine were summarised. In general terms, the doctrine allows a court to continue to apply charitable trusts where the intent of the settlor can no longer be effectuated, such that an alternative plan can be designed which will serve to carry out the donor’s intent as nearly as possible (at [19]). The Court discussed the adaption of the cy-près doctrine to the class action context in the United States (at [20]-[22]). After turning to the principles relevant for a court to order a cy-près scheme in Australia (at [22]), Lee J held at [24]: “I consider that the Court presently possesses sufficient power to fashion a remedy to allow a distribution of a settlement sum pursuant to a form of cy-près scheme if it is impracticable or impossible to distribute all or some of the settlement sum to group members individually


(being circumstances directly analogous to there being a trust which has exhausted its original purpose and a surplus remains)�. Lee J further held at [25] that even if he was wrong about the position in equity, s33V(2) of the FCA Act is wide enough to provide this Court with such power. On the clause before it, the Court was not satisfied on the present evidence that it is impracticable or impossible to distribute all of the settlement sum to group members or to some of them (at [28]). Instead of approving the proposed clause, the Court reserved liberty for the claims administrator to apply to the Court, in the event there is a residual sum, to present proposals which facilitate the most efficient distribution of this residual sum to those of the group members who are most in need of it (at [29]).

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