Brief December 2018 by The Law Society of Western Australia

VOLUME 45 | NUMBER 11 | DECEMBER 2018

Interview with Solicitor-General Joshua Thomson SC See inside The Need for Lawyers Trials and Tribulations Interview: Faith Cheok The Ethics of Settlement Negotiations in Employment Disputes Cervantes in Law

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Volume 45 | Number 11 | December 2018

CONTENTS

ARTICLES 07

Interview with Solicitor-General Joshua Thomson SC

The Need for Lawyers

Trials and Tribulations Interview: Faith Cheok

2017/18 Law Society Annual Report

The Ethics of Settlement Negotiations in Employment Disputes

DISCLAIMER: The views and opinions expressed in Brief and the claims made in advertisements published within it, are not to be taken as those of, or as being endorsed by the Law Society of Western Australia (Inc.) or the Brief Editorial Committee. No responsibility whatsoever is accepted by the Society, or the Editorial Committee for any opinion, information or advertisement contained in or conveyed by Brief. COPYRIGHT: Readers are advised that the materials that appear in Brief Journal are copyright protected. Copyright is retained by the author. Readers wanting to cite from or reference articles in Brief Journal should reference as follows: (Month and Year) Brief Magazine (Perth: The Law Society of Western Australia) at page __). Readers wanting to reproduce a substantial part of any article in Brief Journal should obtain permission from individual authors. If an author’s name is not provided, or if readers are not able to locate an author’s contact details, readers should contact the Law Society of Western Australia (Inc.). The trade mark BRIEF is the subject of registered trade mark 1253722 and is owned by the Law Society of Western Australia (Inc). Trade mark 1253722 is registered for Western Australia. Published monthly (except January) Advertising enquiries to Manager Marketing and Communications: Madeleine McErlain Tel: (08) 9324 8650 | Email: mmcerlain@lawsocietywa.asn.au

Cervantes in Law

Senior Communications and Media Officer: Andrew MacNiven

Mock Trial Competition Grand Final Review

RRP $16.00 incl. GST Printed by Vanguard Press

Later Lawyers Event Wrap-Up

Editor: Jason MacLaurin

2019 Law Society Council

Editorial Committee: Gregory Boyle, Thomas Camp, Dr Rebecca Collins, Natalie Connor, The Hon John McKechnie QC, Dr Pat Saraceni, Robert Sceales, Verginia Serdev-Patterson, Eu-Min Teng

Communications and Design Officer: Charles McDonald

Brief is the official journal of the Law Society of Western Australia Level 4, 160 St Georges Tce Perth WA 6000 Phone: (08) 9324 8600 | Fax: (08) 9324 8699 Email: brief@lawsocietywa.asn.au | Web: lawsocietywa.asn.au ISSN 0312 5831 Submission of articles: Contributions to Brief are always welcome. For details, contact brief@lawsocietywa.asn.au

REGULARS 02 President's Report

46 Law Council Update

04 Editor's Opinion

47 Drover's Dog

36 Book Review: In Your Defence: Stories of Life and Law

48 Family Law Case Notes

38 Young Lawyers Case Notes

50 Professional Announcements

42 Quirky Case

50 New Members

45 Ex Juris: Travel Tales from the Legal Profession

51 Classifieds

49 Cartoon

President: Hayley Cormann Senior Vice President: Greg McIntyre SC Junior Vice President & Treasurer: Jocelyne Boujos Immediate Past President: Alain Musikanth SC Ordinary Members: Brahma Dharmananda SC, Elisabeth Edwards, Ante Golem, Emma Griffiths, Karina Hafford, Fiona Low, Marshall McKenna, Denis McLeod, Jodie Moffat, Nicholas van Hattem, Paula Wilkinson Junior Members: Zoe Bush, Sarah O’Brien-Smith, Brooke Sojan Country Member: Kerstin Stringer Chief Executive Officer: David Price

52 Events Calendar 01

PRESIDENT'S REPORT Hayley Cormann President, The Law Society of Western Australia

Welcome to the December edition of Brief, the final edition for 2018 and my final Report to you as President of the Law Society of Western Australia.

Law Society Council Election Congratulations to each of the members elected to the Law Society’s Council for 2019, and in particular to Mr Greg McIntyre SC, elected as the Society’s next President. Having worked closely with Greg for a number of years, I know he will continue to strongly represent the Society’s members and the interests of the broader legal profession. I look forward to working with him, his Executive and the other members of the 2019 Council next year in my role as Immediate Past President. You can find a full list of the 2019 members of Council on page 41 of this edition of Brief. I also take this opportunity to thank every member who stepped forward to nominate for a position on Council, and indeed all members who took the time to vote in the Council election; this year nearly double the number of eligible members voted as compared to recent years. Finally, best wishes and thank you to the valued members of our Council who are finishing their terms at the end of this year: Jocelyne Boujos, Brahma Dharmananda SC, Elisabeth Edwards, Eric Heenan, Marshall McKenna, Alain Musikanth SC and Sarah O’Brien-Smith.

Law Society Annual General Meeting The Law Society's Annual General Meeting was held on Thursday, 22 November at the Perth offices of Herbert Smith Freehills. Members approved the Law Society's 2017/18 Annual Report and Financial Statements. From page 24 of this edition of Brief you will find a copy of my Report from the 2017/18 Annual Report, along with a Report by Chief Executive Officer, David Price and a selection of key statistics from the 2017/18 year. Finally, my warmest congratulations to Mr Kevin Edwards, Cav. Maria Saraceni and His Honour Judge Hylton Quail, who were each awarded Life Membership of the Law Society at this year's Annual General Meeting.

02 | BRIEF DECEMBER 2018

New Senior Counsel On behalf of the Law Society, may I again congratulate each of the practitioners appointed Senior Counsel, as announced by the Hon Peter Quinlan, Chief Justice of Western Australia in November. They are: John Ley, Gary Cobby, John Hedges, Alain Musikanth, Steven Penglis, Michael Feutrill, Carolyn Thatcher and Mara Barone.

amendments to the Legal Profession Regulations 2009 (the Regulations) which, among other things, extend exemptions from the requirement to take out cover under the Law Mutual insurance arrangements for providing pro bono legal services. The Attorney General was receptive to those representations and a number of amendments were gazetted on 27 October 2018.

Appointment as Senior Counsel is a rare honour granted to those practitioners who have demonstrated eminence in the practice of law especially in advocacy, together with unquestioned integrity, availability and independence. The Law Society wishes each of them the very best in their appointments.

The changes include: •

in-house Counsel are now exempt from having to take out cover under the Law Mutual insurance arrangements in relation to legal services provided to related entities to their employing entity;

Law Society Advocacy Helps Secure Improvements to Redress Bill for Survivors of Child Sexual Abuse

•

volunteers to Community Legal Centres, Legal Aid and the Aboriginal Legal Service are now exempt (certain conditions may apply) from having to take out cover under the Law Mutual insurance arrangements; and

•

a number of amendments to clarify and simplify administration of the Law Mutual insurance arrangements.

In November, the Law Society expressed its support for a proposed amendment to the National Redress Bill, which was the subject of debate in the WA Legislative Council. Part 4 of the Bill as drafted would have barred survivors of child sexual abuse from applying for criminal injuries compensation if they had already received a redress payment. The Law Society supported an amendment, proposed to allow victims to retain their existing statutory right to claim criminal injuries compensation regardless of any redress payment, on the grounds of uniformity and fairness. Ultimately, the State Government agreed to incorporate the amendment to the Bill, ensuring survivors of child sexual abuse retain their existing statutory right to claim criminal injuries compensation. Had the Bill not been amended, it would have resulted in Western Australia standing alone as the only State in which an applicant would have been unable to receive criminal injuries compensation after accepting a redress payment. The amended legislation will now help create a nationally consistent redress scheme, which the Law Society has always supported.

Amendments to the Legal Profession Regulations 2009 Since August 2017, the Law Society has made representations to and been involved in discussions with the Attorney General and various other stakeholders to effect

The Law Society is appreciative of the consideration given by the Attorney General and his Department and the work of the State Solicitor’s Office that have enabled the amendments to be effected.1

Thank You and Best Wishes In 2018, it has been an honour to serve as your President. I have done so with the extraordinary support and backing of my firm, Clayton Utz and our team members, who have given me the freedom to engage in my role and fulfil my commitments to the membership and broader profession. Thank you also to the Law Society’s members, my Executive and our Council, Committee Convenors and members, as well as the Society’s dedicated and professional staff for their support and commitment to the Society and its members. I wish everyone a happy and restful holiday season, and the very best for the New Year. NOTES: 1.

Please note this is a summary of some of the changes and should not be relied upon. Practitioners are encouraged to read the relevant Regulations in their entirety. Further details on the changes can be found at legislation.wa.gov.au/legislation/statutes.nsf/ law_s41031.html.

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EDITOR'S OPINION Jason MacLaurin Editor, Brief | Barrister, Francis Burt Chambers

2018 has been remarkable year for the WA legal community, in no small part due to the number of prominent appointments and retirements in the judiciary and other important positions. It is fitting that this final edition for 2018 features an interview with the newly appointed State Solicitor-General, Joshua Thomson SC, who replaces Chief Justice the Hon Peter Quinlan in that role. Brief also extends its congratulations to recently appointed Senior Counsel John Ley SC (Past President of the Law Society), John Hedges SC, Steven Penglis SC (Life Member and former member of the Society’s Council), Carolyn Thatcher SC, Gary Cobby SC, Alain Musikanth SC (Immediate Past President), Michael Feutrill SC and Mara Barone SC. Brief thanks all contributors who submitted items, articles, letters to the Editor, comments and suggestions. This the fuel that powers Brief. It is sadly not a renewable fuel source, so Brief not only receives zero government subsidies, but has to beg the indulgence of the profession and ask for more of it over the Xmas period and in 2019. To stir things up for next year, Brief welcomes for consideration material that might be considered in some parts toxic emissions. Readers will have noted that Brief has included new and different items this year, such as the revived Drover’s Dog, Aunt Prudence from the Young Lawyers Committee, travel items and ‘Quirky Cases’. Brief hopes to continue this trend in 2019, and would be assisted by contributions and suggestions from the profession. Sincere thanks also to the Brief Editorial Committee for all their hard work and support during the year, and to those at the Society who are actually responsible for Brief being produced: principally Madeleine McErlain, Manager Marketing & Communications, Andrew MacNiven, Senior Communications and Media Officer and Charles McDonald, our Communications and Design Officer and talented graphic designer. The above thanks are so strongly felt that it should read THANK YOU!!, which was almost balked at when it was discovered that the use of all-capital letters is the latest diagnosed microaggression.1 To anyone triggered by this, apologies, but no action can be taken because, well, READ THE DISCLAIMER at the start of Brief (note to self and Andrew, Madeleine and Charles – I think the disclaimer needs some work next

04 | BRIEF DECEMBER 2018

year as it seems it doesn’t cover this sort of thing). With Christmas coming up, it is worth noting an interesting legal angle to the beloved A Christmas Carol, by Charles Dickens, who is of course a favourite of lawyers for his astute and memorable writings about the law and the legal profession. In January 1844, Dickens brought, in the Chancery Court2, a copyright suit against publishers Lee & Haddock who had published an obvious rip-off of A Christmas Carol described by the defendants as a “re-origination” of the original work. It was cunningly entitled (cue eye rolls) “A Christmas Ghost Story” with authorship attributed to a Henry Hewitt. If slightly changing the name of a “reorigination” makes a difference, one looks forward with trepidation to the updated and suited-to-contemporary times Dual-Citizen Kane and The Gender X Who Shot Liberty Valance. To add insult to injury, in their defence, the defendants stated they had “tastefully remedied” the “defects and inconsistencies” in Dickens’ work and supplemented it with “a more artistical style of expression” and “large original additions.”3 At least the proponents of some of the most misconceived remakes such as Psycho, The Wicker Man, Total Recall, Get Carter, and The Manchurian Candidate never had the chutzpah to advance that argument. Judge Knight Bruce was having none of it, though, and granted an injunction in Dickens’ favour. Dickens welcomed the victory proclaiming: “The pirates are beaten flat. They are bruised, bloody, battered, smashed, squelched, and utterly undone.” Just pausing there, and it is not just the use of the word “squelched”, but does that statement not sound like one of the greatest figures in English literature putting out what is, in effect, a perfect replica of a Donald Trump tweet?4 The Christmas and New Year holiday season is a significant one for lawyers, providing an opportunity to take time off, even if in some WA legal circles the Christmas celebration period starts after Melbourne Cup day and may extend to Australia Day, whenever that may be (check your post code). Brief does not put out a January edition, and this Editorial

is not going to embark upon the perilous exercise of speculating about Australia Day (at least until the disclaimer is fixed up) and instead only notes that there is a date in February next year that deserves some commemoration, possessing many characteristics of an Australian celebration, with a notable legal twist to it. It is arguably more significant than February 2019 being the 40th anniversary of “C’mon Aussie C’mon” by the Mojo Singers reaching #1 in the Australian Charts. 8 February next year is the 140th anniversary of the 1879 Sydney Riot at an early international cricket match at the (now) SCG. The match was between New South Wales, and an English team whose captain is and was at the time described only as “Lord Harris” (I mean, come on [Aussie come on] how was that ever not going to result in a riot?). The riot was set off by a controversial umpiring decision by a Victorian, George Coulthard, who had been employed by the Englishmen. Spectators invaded the pitch and assaulted Coulthard and some English players. Avid AFL fans will recognise Coulthard (1856 to 1883) as the first genuine Australian football star5 and an inaugural inductee into the AFL’s Hall of Fame in 1996. And, the other umpire whose handling of the situation is credited with calming the riot and preventing further injury or damage, which apparently contributed to his reputation, being elected to the lower house later that year, and then greater things? Edmund Barton. Yes, that Edmund Barton. Have a great holiday season and Brief looks forward to welcoming readers back in February 2019. NOTES: 1.

See, for instance, “Writing in All Caps Comes Across As Shouting”, lifewire.com (31/3/18) or as the article should have been titled “ALL CAPS COMES ACROSS AS SHOUTING!”.

The significance of the Court of Chancery will not be lost on Dickens fans Jarndyce v Jarndyce in Bleak House being litigated (sort of) in that Court. It has been suggested that Dickens’ experience in this Court partially inspired that element of Bleak House.

“Charles Dickens’ 1844 Copyright Suit” at lawartscult. osgoode.yorku.ca.

All that was missing was the “Sad!” and “Scrooge you!”

And the first player to receive a season-long suspension, read into that what you will.

Brief welcomes your thoughts and feedback. Send letters to the editor to brief@lawsocietywa.asn.au

What is KBE Legal Hub? KBE Legal Hub is a full-service legal recruitment firm. For talented lawyers – we empower lawyers to choose how and when you work, with the best law firms and in-house teams in Western Australia. For law firms and in-house teams – we deliver unrivalled legal talent, allowing you to scale your legal workforce up and down, as and when required. We are here to help you build your workforce of the future. KBE Legal Hub consists of Managing Partners, In-House Legal Counsel, Senior Lawyers, Legal Recruitment Consultants and Law Firm Futurists. We have united with one clear purpose – to help make the Western Australian legal profession a happier, healthier place for lawyers, law firms and in-house teams.

Permanent employment options

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We are interested in speaking with experienced Partners, as well as SAs/SCs seeking their first Partnership appointments. We work with the most innovative national, international and boutique teams in the Perth market. Many of KBE Legal Hub’s clients are bringing together the best of BigLaw and NewLaw, experimenting with new client engagement models, and offering a range of pricing methodologies to win market share. We are receiving exclusive partnership opportunities on a weekly basis. It would be a pleasure to provide you with comprehensive advice and discuss the changes occurring throughout the Perth legal market.

1 YEAR PAE TO SPECIAL COUNSEL The WA legal market continues to gain traction very quickly, in what is the busiest recruitment market we have seen for 5+ years. We partner with the best law firms and in-house teams in Western Australia. Here is a snapshot of some active roles we are working on this month: • Banking & Finance Lawyers – we are partnering with three top-tier B&F teams to secure junior lawyers with 2-6 years’ PAE and SAs for their teams. • Corporate/M&A Lawyers – boutique, national and international firms – if you are an Associate from 2-5 years’ PAE or a Senior Associate from 5-10+ years’ PAE, then you are in very high demand. Several firms are offering significantly above market salaries and other incentives to secure the most talented lawyers in Perth. • Insurance Lawyers – multiple firms across all tiers – advise a range of insurers and high profile self-insureds across complex insurance matters. We would like to speak to lawyers with 2+ years’ experience from all insurance backgrounds. • Litigation Lawyers – national and global top-tier firms – client facing roles, working closely with Partners who are committed to training and development. 2-6 years’ PAE with experience mining, energy, construction and projects litigation, and an interest in international arbitration. • Property Lawyer – Senior Associate to inherit a practice – advise private and government clients throughout the real estate lifecycle, including development projects, disposals, commercial law and related leasing work. 6+ years’ PAE. Unique opportunity to inherit a $500,000+ practice. • Workplace Relations – Senior Associate looking to transition to Partnership in 12-24 months – we are interested in speaking to WPR lawyers with 6-8+ years’ PAE. Inherit a $400,000+ practice and join one of Australia’s fastest growing WPR teams.

KBE Legal Hub is currently partnering with ASX listed and large private in-house teams to secure experienced Energy & Resources lawyers, on both short/longer term contracts and permanent positions. Our clients are looking to engage E&R lawyers with experience in contracting, EPCM, mining, energy and resources. We are interested in speaking with top-tier private practice and in-house lawyers with E&R experience, from 2 years’ to Senior Legal Counsel level with 12 years’ PAE. Each of the in-house teams offer a diverse variety of work, with generous day rates and salaries depending on your experience.

PART-TIME IN-HOUSE COUNSEL – ASX LISTED MINING COMPANY KBE Legal Hub has been exclusively briefed by a rapidly growing ASX listed mining company to secure a senior lawyer with 5-10+ years’ PAE, with a background in Corporate/M&A, Energy & Resources, or front end Construction Law. This is an ideal opportunity for a private practice lawyer to transition into your first in-house role, or equally for an experienced in-house counsel seeking a new and interesting career opportunity. Reporting to and working closely with the General Counsel within a high-profile Resources company, the successful candidate will provide corporate, resources and general commercial law advice to senior stakeholders within the business. The role is part time (3 or 4 days per week, with some flexibility around how you work) with potential to transition to full-time in the future depending on your preferences. The role is unique in that it provides genuine career progression opportunities working with senior stakeholders, both within and outside of the company. We are interested in speaking with lawyers with 5-10+ years of experience from a leading top/mid-tier firm in either Corporate, Energy & Resources or front-end Construction, or experience gained in-house with a major blue-chip company. We are receiving new contracting and flexible working opportunities on a weekly basis, and it would be a pleasure to meet in person to discuss your options.

Merry Christmas and a Happy New Year We would like to take this opportunity to thank our friends and colleagues from across the Western Australian legal community for your ongoing support. It is greatly appreciated.

We’re here to help you gain access to the most interesting work, receive training/support from the senior lawyers in your teams, and hopefully have a little fun along the way.

Chris Bates

Rebecca Johnston

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Sharon Lotufo

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Principal Consultant

M: 0411 645 984 E: chris.bates@kbe.com.au

M: 0413 132 049 E: rebecca.johnston@kbe.com.au

M: 0403 383 326 E: siemone.neutgens@kbe.com.au

M: 0413 132 049 E: sharon.lotufo@kbe.com.au

KBE LEGAL HUB P: 08 6467 7889 A: Level 18, 140 St Georges Terrace, Perth W: kbe.com.au

The Law Society’s wellbeing and resilience programme LawCare WA has a holistic approach to wellbeing and resilience. Membership of the Law Society provides complimentary access to LawCare WA to help you manage your career, life, health and wellbeing.

Member Assistance Programme

Employee Relations Advice Line

The member assistance programme offers support with personal and work-related issues that may impact your job performance, health, mental and emotional wellbeing.

LawCare WA offers a free confidential telephone advice service to members on personal matters relating to a range of human resources and employee relations issues.*

Service provided by Converge International

Service provided by CCIWA

Phone: 1300 687 327

Phone: (08) 9365 7660

Practitioner Advice

Health and Wellbeing

Members of the profession connect with experienced practitioners for advice on ethical issues or complaints through the Senior Advisors Panel and Western Australian Bar Association Referral Service.

Working in the legal profession can be rewarding and challenging. It is important to find balance in your life as you juggle career, family, friends and hobbies.

Referral service provided by WABA

Phone: (08) 9220 0477

LawCare WA is available to members of

• • •

Attend complimentary Pilates classes provided by HBF twice a year Participate in sporting tournaments hosted by the Law Society’s Young Lawyers Committee Take advantage of exclusive offers through the Law Society’s member privileges programme

For more information about LawCare WA please visit

lawsocietywa.asn.au/lawcare

*This service is only for a Law Society member who is an individual employee (not an employer). If after speaking to CCIWA more substantial employee relations advice is required, members may use the Law Society’s Find a Lawyer service to find legal practitioners specialising in employee relations law. Disclaimer: The Law Society facilitates all the above services and does not warrant or guarantee the work undertaken by any third party organisation, firm or individual listed or provided and is not liable in relation to any aspect of services they may provide to you.

06 | BRIEF DECEMBER 2018

Interview with Solicitor-General Joshua Thomson SC By Jason MacLaurin Editor, Brief Your legal career commenced at the State Crown Law Department1 – as it then was – and you have now returned to the fold – though at the other, and top, end of the hierarchy (like your predecessor the now Chief Justice). What is it like being back with the State? Almost as if I never left! Working in the public sector requires you to think about your client’s objectives a little bit differently from private sector clients. One of the things I learned right from the start is the need for a public sector lawyer to act as a model litigant. Now that is often a misunderstood concept. It doesn’t prevent the State from taking legitimate points, and fighting them vigorously. However, it does mean that a public lawyer has an independent role in acting in a way which advances the public interest in the administration of justice generally. That independence breeds objectivity in a lawyer, and makes you appreciate the importance of the rule of law as the paramount object, beyond winning at all costs. No doubt learning that lesson early on in a legal career explains why many of the State’s best judges have been drawn from the ranks of the State Solicitor’s Office.

There would be quite a few people still at the State Solicitors’ Office from the old days. What’s it like working with them in the same office again? There has always been a core band of dedicated and hardworking lawyers at the State Solicitor’s Office, who have forged a lengthy career there. It is a privilege to be back among them, and to refresh and continue old friendships.

What got you into the law in the first place – and why did you

decide to start at the Crown? Was advocacy experience the main goal?

community such as the manner in which substantial cases are conducted.

I started at the Crown Solicitor’s Office in order to obtain advocacy experience, but always with the aim of becoming a commercial lawyer. I almost did not leave the Office to go to the bar, because I found so much satisfaction in the public law work which I did at the Office. The depth and variety of that work was unparalleled by comparison to my friends in private practice. When I left to become a barrister, I had developed a sense of the importance of public law, and the excitement of being involved in many current political issues. I quenched the thirst to pursue a career as a commercial lawyer over the next 17 years at the private bar. Now I have the best possible opportunity to return to public law.

What’s the most unusual, odd or surprising function (or matter that can be delegated to you) that you’ve found out can be conferred upon you?

Your office occupies a singular, unique place as a gateway between the law and independent legal advice, and government/politics. What are the greatest challenges for a Solicitor-General? The most important role of a SolicitorGeneral is to protect the constitutional interests of the State before the High Court. That is the most intellectually challenging and satisfying part of the job. However, the Solicitor-General has a more general role in facilitating the proper administration of justice in the State. The ultimate responsibility for that lies with the Chief Justice and the Attorney General. However, there are many things that a Solicitor-General can do to assist both of them to reach the best outcome. That may involve canvassing the views of the profession about judicial appointments, it may involve advising about legislation which is integral to the administration of justice in this State, or it may mean being aware of large issues for the legal

The role of the Solicitor-General is not confined to constitutional cases and civil issues. I have a range of statutory powers relating to criminal law matters, including the ability to sign indictments and to authorize certain investigations. Perhaps the oddest thing I have had to do so far was my first appearance as Solicitor-General. Far from being a large constitutional case before seven judges of the High Court, I had to deal with a subpoena matter in the Full Family Court. However, small as it sounds, it raised substantial and important issues about the relationship between judges and litigants.

What do you, or suspect that you will miss the most about private practice? The daily interaction with a wide range of very talented barristers who were close friends in chambers with me, particularly on level 12 of Francis Burt Chambers. I will also miss the network of dedicated solicitors who supported me with interesting briefs on all manner of topics. I have found that some of my best friendships have been forged in the heat of doing legal battle for private clients.

And what do you miss the least? (no names or strongly identifying material please) Paying my BAS statement.

When you were at the Crown Law Department early in your career you worked with and saw other Solicitors-General in action. What’s changed, to your mind, in the role and pressures upon the Solicitor-General in all these years? To a large extent, the role and workload of the Solicitor-General depends upon the legislative aims of the government of the day, and the reforms which the Attorney General may wish to make to improve the legal profession. The role also depends upon the likelihood of constitutional clashes arising, between Commonwealth and State governments of different persuasions or with different federalist philosophies. The present State government has a substantial legislative agenda and the present Attorney General has a long list of important reforms for the legal profession. That makes my own role particularly interesting, and particularly busy.

Is there anything special, whether by advice or observation, that you got from your working with Solicitors-General in the past that helps you in your current role? One former Solicitor-General advised me (I think with his tongue in his cheek) that I should never aim to keep an Attorney General happy. I recall another SolicitorGeneral used to refer to strapping on his “flak jacket” in the robing room just before he had to present difficult State-based arguments to a High Court which was then inclined to favour the expansion of Commonwealth powers.

Who were the greatest influences upon you throughout your initial years with the State and then at the private Bar? It is very difficult to isolate all of those people who have had a great influence on me, legally speaking. Many people at the State Solicitor’s Office and the Bar have substantially influenced my development as a lawyer. When I was at the State Solicitor’s Office, I was surrounded by key people who went out of their way to help me. I often worked with Lindy Jenkins and Jennifer Smith (now both judges of the Supreme Court). They taught me a great deal about how to conduct myself as an advocate. As well, Rob Mitchell (now also a judge of the WA Court of Appeal) was assigned as a mentor to help me with trial work. He showed me the power of remaining calm, and presenting logical arguments, even in 08 | BRIEF DECEMBER 2018

the most difficult circumstances. We also had a core group of young practitioners who helped each other very often, by bouncing ideas off each other, including (Chief Justice) Peter Quinlan, (Justice) Janine Pritchard, (Judge) Kate Glancy and Mike Lundberg. It was very important to be surrounded by a cohort like that, which was passionate about the law and all of whom were motivated by the same core commitment to public service. My early years at the bar were only successful due to the help and support of three senior silks who acted as mentors, and taught me almost everything I know about the practice of commercial law. They were Chris Zelestis QC, (President) Michael Buss and (Justice) Ken Martin. These people were uniformly generous with their time and personal support, and became very good friends. Subsequently, there have been other key people who have been significant in my career. I have argued about the finer points of restitution, equity, causation and constitutional law with (Justice) James Edelman for over 20 years. I am yet to win one of these debates. (Justice) Andrew Beech sentenced me to a lengthy period as editor and consulting editor of the WA Reports, from which I have only just escaped. (Justice) Gail Archer provided advice and guidance later on at the bar. And Theo Lampropoulos SC, himself a former member of the State Solicitor’s Ofifce, pushed me hard to think about the position of Solicitor-General (I think mainly because he had wagered on the result).

How do you explain to your family that you’re now subject to and regulated by statute (that is, your own Act which, from memory, is two years older than you are)? Frankly, I don’t. They are more interested in whether I am still able to stack the dishwasher at night!

As a prominent commercial silk you were no stranger to hopping on planes – will this position, do you think, involve more travel or less from a work/family balance perspective? Strangely, the most intense period of travel so far has been as a senior junior counsel, when I was junioring Eastern States silks. I suspect that there will be a bit more travel as Solicitor-General. However, the feeling that a barrister has going to the High Court is, I expect, a bit like a cricketer playing at Lords. The travel is worth it!

What case or cases are you most proud of running when you were at the private bar? The two cases which I was most satisfied in running at the bar both involved long and difficult trials for natural individuals acting by themselves or through small companies. One was a lease case involving a forgery, the other was a contract and estoppel case in a family context. I lost both at trial, and this caused immense financial and reputational hardship for my clients. However, in both cases we fought on and succeeded on appeal. I felt that an injustice had been rectified. It is worth reflecting that only one of these cases produced interesting law which now represents the position around Australia. The other was purely factual. However, the intellectually interesting law in the first case was not an end in itself. It was a by-product of correcting an immediate injustice.

Having practiced at it, what are your observations about the importance of an independent Bar in Western Australia? Barristers at the independent Bar are required to exercise independent judgment. That means that they are not simply the tools of a client to achieve strategic objectives for their client. Their role is broader than that. It is to promote justice, and within that context to fairly advance their client’s case. Sometimes promoting justice is inconsistent with the strategic goals of a client. Clients may wish to prolong litigation, or may wish to instruct a barrister to advance arguments only for reputational reasons, or which the barrister knows are factually or legally incorrect. It is at this point that the independence of a barrister becomes significant, because a barrister must serve the broader interests of justice rather than simply advancing a client’s strategic goals. That is the most important function of the independent Bar, and the most important test of a barrister’s integrity. My own experience is that, by and large, members of the independent bar understand that role and serve the broader interests of justice when it counts. Another important function of the independent Bar is to foster competence in barristers. That occurs by reason of more senior barristers listening to, and mentoring, junior ones. As I have said, that occurred in my case. It is essential that barristers should be part of a set of chambers, and that chambers should

be designed to facilitate this role. Competent barristers are essential for the administration of justice, as they reduce the time required for hearing cases, assist a judge to reach a correct decision according to law, and reduce the prospect of appeals. Again, my impression is that the independent Bar in WA has been successful in this area as well.

What do you think are the greatest challenges facing the independent Bar? The Bar needs to be better at recruiting members. That is essential to develop the depth of the Bar at all levels. Since I started at the bar, I have seen a trend towards more junior practitioners joining the Bar, rather than pursuing a career as a partner in a law firm first. That is encouraging. I think that the future of the Bar lies in this trend continuing, and the juniors who have come early rising through the ranks. That will take some time, as people deliberately chose to be a barrister as a lifetime career. A challenge for the bar is to make the conditions of practice conducive to people joining the Bar and making it a career early on. As I have mentioned, this will foster integrity and competence at the Bar. The key to this is to have sets of chambers which support junior members.

Do you think that the “tyranny of distance” that is so often spoken about in relation to Western Australia and the law has been effectively overcome by technology and other measures? Or is there still something to it, out here in WA? Is there any substitute, as far as advocacy is concerned, to “being there” in the Court, as opposed to by video? Courtroom technology has developed very significantly over the last 20 years. It is now commonplace for this technology to be used to overcome the need for victims in child sexual assault matters being confronted by the accused in Court. If it can be used regularly in this context, where the credibility and liberty of individuals are in contest, there is no reason why it cannot be used effectively to overcome the tyrannies of distance in most cases. All justice involves a degree of balancing various imperatives, and the cost imperative is an important consideration. In many cases, the cost of having everyone present in one court room cannot now be justified, having regard to the technological improvements

Brief Editor Jason MacLaurin chats with Solicitor-General Joshua Thomson SC

which exist. Nonetheless, there is inevitably a degree of lag time in courts becoming familiar and comfortable in the use of technology. I can foresee a sharp increase in the use of technology over the next decade.

What do you think are the greatest challenges for the legal profession in Western Australian at the moment? The immediate challenge for the WA legal profession is joining the National Uniform Legal Scheme. I think that this is a desirable development. It introduces uniformity into the rules which apply to regulate the legal services market nationally. This makes that market more accessible to smaller jurisdictions, such as WA. It also preserves regulatory and disciplinary controls for the WA profession within WA, which is an important principle.

Being Solicitor-General of course involves much more than appearing in Court for the State – it involves interaction with other State and Federal SolicitorsGeneral and a host of other things. What new elements of practice, which you didn’t get to do at the private bar, are most exciting or interesting or challenging for you? Considering the constitutionality of proposed legislation, and suggesting ways to make sure that it is valid, is something new which is challenging and interesting. The meetings with other Solicitors-General is a collegiate experience, where everyone is interested in the same types of arguments.

of faith and faith-based issues. You are a person of strong faith – what role does your faith play in your practice of the law, and are there complications in the practice of the law with persons of faith? My Christian faith has been integral in shaping my life and how I act. Equally, I fundamentally respect the principle that each person is entitled to make choices about their own faith, and how they act. Jurisprudentially, I regard law as an instrument to serve society. Consequently, if society chooses to make policy decisions about laws which are not based upon my particular faith, that is the choice of society. As a member of society, I would not wish to have policy decisions about laws based upon another faith thrust upon me. Hence, society is free to make policy choices based upon the values which a majority of society regards as important, and that is democracy. I would do my utmost to uphold laws based upon those choices. The only time this would present a problem is where a law positively and compulsorily required me to do something which I believed to be wrong, for example murdering all blue-eyed babies, to use Dicey’s well know example. However, I have never encountered anything like that in the Australian statute book.

Describe the feeling and emotions involved in knowing, as SolicitorGeneral, that there is a much higher possibility that any of your opinions might at some point be released and bandied about publically. That comes with the territory! NOTES:

The Chief Justice, at his welcome and in his speeches, often speaks

1. Along with some damn excellent colleagues if I may say so.

The Need for Lawyers By Dr Lyria Bennett Moses, Director of the Allens Hub for Technology Law and Innovation and Associate Professor at UNSW Law1 This article was first published in The Future of Australian Legal Education, Thomson Reuters, 2018. Reproduced with permission of Thomson Reuters (Professional) Australia Limited, legal.thomsonreuters.com.au.

1. Introduction It is becoming a frequent refrain that the future will not need lawyers, or at least not as many of them. This is the argument made by the Susskinds in their book The Future of the Professions2 and it forms part of current media stories on automation and job losses.3 Predicting the future is generally unwise, so this paper does not challenge those forecasts directly. Instead it makes a normative claim that runs counter to these predictions – that society is better off having people with legal training in an increasingly automated future. It also makes a more specific point, being that a kind of lawyer that will increasingly be needed is one that has sufficient grasp of these new technologies to understand the ways in which they support or challenge fundamental legal norms and values. This does not mean that every law student should learn how to code, but it does mean that legal education should include opportunities to reflect on the ethical, legal and social implications of increasingly prevalent technologies. It also highlights the importance of having

10 | BRIEF DECEMBER 2018

sufficient numbers of legal graduates with interdisciplinary expertise that enables them to make more specific and targeted critiques in relation to particular applications of artificial intelligence and technology and to build systems that will incorporate the kinds of fundamental values that are a core part of a legal education. Lawyers will be needed in the future, but only if they can work effectively alongside automated processes, with a critical awareness of their limitations. We will need lawyers to establish governance frameworks for automated decision-making, to construct expert systems creating legal documents and providing legal information, as well as to understand the relationship between intentionality in a contract and automated processes (including “smart contract” elements). Despite the rhetoric around automation, new technologies, including artificial intelligence, thus create as well as reduce legal work. But the lawyers of the future will need to be in a position to understand and challenge the roles that technology plays. And that is a challenge that universities need to take on.

In accordance with the “rule of three”,4 what follows is three sections each comprising three subsections. Section 2 explains why we need lawyers to challenge technology. While arguments about the need to critique and challenge technology are old, the focus here is on the necessary legal components of such critique and why this needs to combine with an understanding of the technological context. Section 3 discusses predictions of increased automation of legal services and dispute resolution, arguing that pessimistic job predictions and the issues highlighted in Section 2 combine to pose challenges for legal education. Section 4 explores those challenges further and outlines how my own institution (UNSW Law) is responding. Section 5 concludes.

2. Wanted: Legal knowledge, skills and values Our socio-technical landscape is constantly changing. While scientific discovery and technological invention, innovation and diffusion are occurring across a range of fields, the implications of the developments in automated

self-service, where individuals enter relevant information about themselves online, with consequences and benefits automatically determined by the system itself.7 In principle, the Australian government is concerned that these systems replicate legislative requirements, retain discretion where appropriate or required, and incorporate audit trails and reasons for decision.8 But there are questions about the ability of administrative lawyers, familiar with doctrines of unreasonableness, irrelevant considerations and so forth, to be able to understand the new “reasons for decision” in order to mount effective challenges.9

processes and data-assisted decisionmaking have particularly pertinent implications. These developments, across the fields of artificial intelligence (expert systems, machine learning and contextual adaptation)5 and information technology more broadly, are changing how decisions are made by individuals, governments and corporations as well as the form taken by transactions. While automation generally supplants human workers and doers (see further Section 3 below), this section will argue that human legal analysis remains crucial as these new socio-technical structures continue to evolve. There is thus still a need for legal expertise in determining how and to what extent transactions, sentencing decisions, administrative decisions and the provision of targeted legal information should be automated, as well as advocating for remedies when technology fails.

2.1 Government decision-making Governments are increasingly relying on automation to make decisions that affect the lives of individuals.6 In particular, there is a move towards

Automated processes sometimes rely on faulty processes and false assumptions and, where this is the case, these are replicated across more decisions than might have been made by a poorly trained employee.10 An example in government decision-making affecting many individuals can be seen in the online compliance intervention system created for raising and recovering debts owed to the Commonwealth Department of Human Services.11 This matched, across individuals, the earnings recorded in Centrelink records with employer-reported income data from the Australian Tax Office.12 Individuals who did not confirm or update their income online were assumed to earn a fortnightly income figure calculated pro rata from annualised data reported to the Australian Tax Office.13 The initial letter sent to individuals asked them to confirm their annual income information without explaining the fact that recording the lumpiness of this figure was important to an accurate calculation.14 Non-transparency as to how the system worked (including the averaging of annual figures to calculate the fortnightly figure) also led to confusion for individuals engaging with the online system.15 The final result was that some of the debt calculations and hence debt notices were based on a flawed calculation. This example was relatively simple – it does not require significant skills in mathematics, statistics, computer science or machine learning to realise that fortnightly amounts cannot necessarily be deduced from an annual figure. The problem was largely one of program administration, requiring clearer explanations to affected individuals of the importance of entering fortnightly figures online (as well as mechanisms for those who were not computer literate), rather than a coding error.16 However, it will not always be so simple to deduce the erroneous assumptions

and errors in automated decisionmaking and decision-support systems used to make administrative decisions. There are at least 29 Commonwealth Acts and instruments that specifically authorise automated decision-making.17 None of these sets out at the legislative level what is required in terms of the transparency of the system’s logic or evaluation of the relevant decisionmaking programs against fixed criteria. Rather, the processes for evaluating software seem to be internal. For example, the Migration Act 1958 (Cth) s 271(1)(l) contemplates a certificate that might be signed stating whether or not a specified computer program was “functioning correctly”, which then becomes prima facie evidence of the matters stated in the certificate for the purposes of migration proceedings. “Functioning correctly” is defined as producing outcomes that comply with the Act and the regulations and that would be valid if they were personal decisions of the Minister.18 However, nothing in the Act explains how these matters can be properly challenged in court proceedings or subjected to independent testing. Further, it is unclear how functioning is assessed in situations where a decision is made automatically based on a probabilistic assessment. For example, a program that assumes that J Smith is the same person as John Smith living at the same address might be in line with a data-matching program’s statistical parameters, but it could still result in an error. It is not clear whether data matching software in this situation could be certified or how an individual or their legal advisor could be put into a position where they can detect the error. The same issues arise with similar provisions in the Australian Citizenship Act 2007 (Cth).19 Evaluation of the functioning of software is ultimately more complex than the duality of correct functioning (or not) assumed in legislation. Obtaining or reverse engineering, and then understanding, reasons for decision from automated decision-makers, will be crucial.20 It is likely that automated systems will make errors. These might be systemic, as in the case of the Department of Human Services. However, even programs without similar largescale problems may still draw wrong conclusions for particular individuals. Without mechanisms in legislation to expose government systems to rigorous independent evaluation and testing, and in light of internal priorities that may focus on cost reduction or debt recovery rather than individual

justice, automation does not reduce the importance of administrative law challenges to government decisionmaking. Administrative decisions made on the basis of erroneous logic should be challenged whether that logic is human or automated. To do this, we need lawyers who are able to understand that, while computer programs are not “disobedient”, they can rely on erroneous assumptions, contain flawed logic or be programmed to draw inferences that may be right most of the time, but wrong in a specific instance. The code used by the Department of Human Services, for example, functioned in accordance with its programming, yielding accurate results for those with non-fluctuating incomes, but for many individuals the program used the wrong formula to calculate the relevant debt. Even this would not have been a problem had sufficient explanation been given early in the process, encouraging and enabling those with fluctuating incomes to record their information accurately. But where decisions are flawed, administrative lawyers need to be able to interpret automated reasoning and mount an effective challenge.

2.2 Risk assessment tools In the United States, “risk assessment tools” (relying on correlations in historic data) are employed in bail, parole and most recently sentencing decisions. “Risk assessment” has a long history in criminal justice, having been used in matters such as the management of prisoners. However, its use at earlier points on the process, such as bail applications and during sentencing, is growing. The sales pitch is strong, with companies like equivant (formally Northpointe Inc) marketing its tools directly to judicial officers, district attorneys, court administrators and clerks and public defenders in the United States.21 These tools have limitations, most prominently the potential for differential impact on minority communities.22 In particular, in the United States, African Americans are more likely than whites to be given a false positive score by COMPAS risk assessment software.23 The discrimination is not necessarily the result of intentional bias or even the use of a race variable in the analysis. A minority community will be disadvantaged where negative correlations applicable to the majority do not apply equally to that minority. Indeed, in some cases, discrimination in practice can only be avoided through a deeper understanding of the impact of historic 12 | BRIEF DECEMBER 2018

human racial bias on data quality and racially distinct causation pathways. The example of racial bias also highlights a more fundamental challenge that goes to an understanding of what these tools do and the lack of alignment with what courts do. Tools based on data analytics and machine learning rely on historic data to determine correlative links between particular characteristics or particular survey responses and particular future events (such as that an offender will re-offend when released from prison). A particular offender is compared to people “like” them in various ways and allocated a risk score based on the behaviour of those other people. There will be occasions where this aligns with what courts do. For example, if an offender has a long history of committing violent assaults then, like other people with similar histories, it may be appropriate for a court to take into account the risk that would accordingly be posed were bail granted. But the reason why the logic works in that case is not simply because of the broad empirical fact that people who have been violent frequently in the past are likely to be violent again, but rather because the offender has demonstrated a lack of self-control and there is thus a significant risk that such lack of self-control will manifest again leading to harm. In other words, there is a causal explanation that explains why we treat a defendant with a long history of violent assaults as high risk as well as a connection to the defendant’s own actions. Not every correlation can be fairly taken into account on the same basis. Race, discussed above, is something that our society has determined should not generally be taken into account. 24 But what about other characteristics that might be historically correlated with particular behaviours? Those developing these tools would include anything statistically correlated with relevant behaviour, including physical characteristics such as shoe size.25 If lawyers do not develop the appropriate specifications and limits for such tools, based on fairness and an understanding of what ought to be relevant in making particular kinds of decisions in the criminal justice system, systems and tools will be designed without taking these matters into account. We need to insist that the metrics are not based purely around predictive accuracy but reflect the nature of the decisions concerned. The response of judges in the United

States to these tools shows a lack of critical understanding of these tools that can hopefully be pre-empted in Australia. In its 2011 Annual Meeting, the Conference of Chief Justices in the United States came out in favour of risk assessment tools, including their use in the sentencing process.26 Similarly, in Wisconsin v Loomis, the Supreme Court of Wisconsin concluded that partial reliance on a black-boxed risk assessment score in sentencing (affecting probation rather than overall severity) did not violate the defendant’s right to due process.27 None of these discussions and decisions have engaged deeply with the kinds of fundamental questions suggested above. Risk assessment tools are rather treated as a “scientific” means of reducing incarceration with minimal “risk”. The judges ultimately deferred to the technical metrics. We need lawyers with sufficient technical expertise to understand the difference between the logic embedded in these tools and the goals of different decisions in the criminal justice process. Without their clients arguing otherwise, technologists will continue to be concerned primarily with metrics for predictive accuracy.28 Addressing the questions that these tools pose requires individuals who understand both the legal context and the data-driven, correlationseeking tools being used. We need judges and lawyers who are in a position to take on this role. This is not only a question for judges and criminal defence lawyers, but also for administrative and intellectual property lawyers in a position to rethink how the law can be adapted to encourage openness in decision-support systems, particularly when they are used by government.

2.3 Automation of lawyering There are many aspects of traditional legal services that are being automated. While this does replace some legal tasks, legal skills are necessary in the design process to ensure that automated systems are used appropriately. Legal expert systems provide an opportunity to provide targeted and relevant legal information as an alternative to seeking advice from a human lawyer. Commercial software such as Neota Logic and open source tools such as Datalex make it relatively easy to programme chains of “if…then…” reasoning without computer coding skills. These are being used to increase access to justice and legal information, leveraging the capacities of not for profit and pro bono organisations,29 as well as by commercial

law firms. Building expert systems requires lawyers with an understanding of relevant areas of law, the ability to conceptualise them as a series of logical propositions and a realisation of the limitations of such an approach in light of vague and contested concepts. The full impact of blockchain and smart contract technologies on how transactions are recorded and implemented is not yet known. What is already clear is the need for lawyers employing these tools to understand their limitations. This can be illustrated through the fate of the DAO (decentralised, autonomous organisation), which was to operate on the Ethereum blockchain as a stateless, contractless investment vehicle. An “attack” (valid within the code but not within the intention of the founders/investors) led to a socalled hard-fork in the blockchain. This ought to have been foreseeable by those understanding the role that contract law plays in ensuring that agreements are enforced in line with parties’ intentions. Someone who says that a contract among multiple parties intended to operate over an extended period of time enacted purely in computer code is a good idea has not read enough contract cases. What we need are lawyers who have a deep understanding of the fundamental

values and commercial interests that our legal system protects and are able to combine this with a practical understanding of the tools that they use to benefit clients. In addition, advocacy by lawyers (as representatives and within organisations) remains crucial in ensuring that technology does not replace fundamental values in a drive for efficiency and progress.

3. Technology replaces lawyers 3.1 Susskind’s argument Richard Susskind, through a series of sole and co-authored books,30 has articulated his vision of the future of the legal profession. In general, he predicts a future of fewer lawyers as we currently think of them, with tasks being broken down into those able to be done by artificial intelligence, those that lay people can accomplish themselves with online self-help tools, those able to be done by (cheaper) paralegals assisted by technology, and so forth.31 A similar future, he and Daniel Susskind argue, is likely for all professions based on the provision of “expertise”.32 In justifying his prediction, Susskind focusses primarily on economic drivers for reducing the cost of legal services, the

ability to commoditise legal services and decompose them into separate tasks, and the trend towards automation.33 My concern here with Susskind is not that he has the wrong answer to the question he poses, which is a prediction as to the nature of legal work in the future, although I have argued previously that what machines offer is not the same as what they replace.34 My concern here is rather addressed to the question that Susskind does not ask, which is how legal analysis (combined with technical know- how) is particularly important both to society and to clients because of the move to automation. As an example of the difference in our approach, consider the following passage from one of Susskind’s books: Likewise, self-executing contracts, possibly enabled through the currently much-vaunted Blockchain technology, will be able to initiate actions and automatically execute processes and provisions, without directly involving lawyers.35 In my view, in this shift to self-executing contracts, lawyers remain crucial. The example of the DAO illustrates the naivety of assuming that automation implies that law is not required here. 13

Humans entering into contractual relationships intend that this will achieve certain results and will be disappointed where this is not the case. Lawyers will be needed first to provide techno-legal advice that explains the consequences of entering into self-executing contracts including both how the code works and the legal implications where it does not perform as expected. Many clients will be better served by a more sophisticated blend of contract protections and automated execution than was involved in the DAO. Lawyers will also be needed to litigate the disputes where code contains errors, does not perform as expected, or is truly “hacked”. Susskind argues that automation, among other forces, will reduce the need for lawyers. While I do not argue with Susskind quantitatively, I believe that automation will simultaneously increase the need for appropriately skilled lawyers advising clients as they navigate transactions and decisions. Lawyers are good at being sceptical about law – we have seen the sausage factory and know its biases, inefficiencies, and circular reasoning. The technology that takes over from lawyers, whether in the form of machine learning, expert systems or blockchain, is often flawed as well, albeit in different ways. The legal profession of the future may well be smaller, but it will need lawyers who can understand the limitations of 14 | BRIEF DECEMBER 2018

law and technology and weave them together in ways that increase efficiency without increasing risk, and ensure clients are protected where code does not perform appropriately.

3.2 Australian Law Firms Susskind and I agree on the fact that automation is and will continue to increase, and that this has important implications for those entering a career in law. Law firms, in Australia as elsewhere, are drawing on technology to perform tasks previously undertaken by lawyers. One example is Allens, which has put together an application called REDDA, or Real Estate Due Diligence App, to streamline due diligence of lease agreements in the context of real estate transactions.36 The application is able to extract relevant information from lease documents in order to flag particular issues for further review, thus reducing the need for lawyers to manually scan large numbers of leases.37 This reduces, in particular, the need to hire junior lawyers, apparently saving the firm up to 6 hours per lease.38 Similarly, Gilbert + Tobin is using Luminance’s artificial intelligence technology for due diligence in mergers and acquisitions.39 The Neota Logic platform used as part of REDDA, and other tools for building expert systems, can also automate responses to legal questions,

document assembly and some practice management tasks. An expert system asks users a series of questions and, based on the responses given, provides targeted legal information, selects appropriate clauses for insertion into a document and substitutes relevant entity names, or indicates the kinds of legal services that are available to solve the user’s problem. These functions can also be combined, as in the case of PLEXUS’s “Promotions Wizard” that guides users through state, gambling, social media and alcohol restrictions to ensure that relevant laws are followed, while also automatically generating terms and conditions, obtaining permits and generating reminders.40 Similarly, LawPath, an Australian company focussed on automatic generation of legal documents, now has a chatbot to assist.41 As is the case for systems that automate due diligence and discovery, expert systems can capably perform repetitive tasks that were previously undertaken by junior lawyers.

3.3 Impact on law graduates As illustrated in the previous section, the loss of jobs will impact most on positions for junior lawyers, at least in the immediate future. This is the group that would have otherwise performed time-consuming repetitive tasks requiring relatively low levels of skills and experience, such as due diligence,

discovery and routine legal advice. These roles, while often dull, have been an important means through which junior lawyers could contribute to transactions and litigation, while gaining at least some expertise and experience in these areas through observation. One solution that is often suggested and may be inevitable over the longer term is to reduce the number of students admitted into law degree programs. Fewer graduate-level jobs will, over time, reduce demand for law degrees, as has been the case in the United States.42 This is unfortunate, as we need the social benefits that come from having legally trained people ask the questions raised in Section 2. Legal skills are needed not only in the profession, but also in government and industry, at least if we want to avoid sacrificing legal values and virtues on the altar of efficiency and progress. Nevertheless, it is important to recognise that law firms are unlikely to be willing to continue to operate as the practical training ground for future lawyers. All of this raises profound issues for legal education. Law schools need to expose students to cross-disciplinary contexts, provide graduates that are more

immediately useful to their employers, all while still teaching the doctrinal content that continues to be mandatory. If law graduates are to remain employable despite the circumstances set out in this Section, while becoming able to meet new challenges of the type highlighted in Section 2, then legal education needs to change.

4. Legal education The challenge for legal education is how to train students to work productively (and immediately) alongside artificial intelligence, with a clear understanding of its limitations, while ensuring that sufficient numbers of students are equipped to challenge new technologies from a legal perspective where their use is inappropriate, discriminatory, unfair or contrary to law. Unfortunately, current regulation of legal education is of little assistance.

4.1 The mandatory curriculum and what all law students should learn The challenge for the current mandatory curriculum is that it does not always

ask the right questions. The core requirement for law schools, in terms of ensuring that our students are eligible for admission to practice, remains the “Priestley 11” set out in Schedule 1 of the Legal Profession Uniform Admission Rules 2015. These are articulated as “academic areas of knowledge” and are focussed entirely on areas of law that students should know. The reality is that tools such as Google search and IBM Watson are already better at knowing basic information and that future tools will come to “know” more complex or advanced knowledge. Of course, there is more to understanding a topic such as “fiduciary obligations” than knowing information and no expert system can always accurately conclude whether a fiduciary relationship exists in a particular situation. But we need to think about what capabilities students need beyond knowledge, particularly where knowing things leaves our students with a declining competitive advantage over artificial intelligence. A different attempt to articulate what needs to be learnt within a law degree was the threshold learning outcomes (TLOs) developed by the Learning and Teaching Academic

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A third set of standards is the PLT (Practical Legal Training) Competency Standards for Entry-level Lawyers, recommended by the Law Admissions Consultative Committee and endorsed by relevant admitting authorities.45 Although it can be combined with a law degree in some institutions, this is generally a step taken after formal legal education and is thus not discussed further here.

science/law degree, although additional students may be taking computer science subjects with a general Engineering (Hons)/Law or Science/Law degree, within an information systems major in a general Commerce/Law degree, or as a “free elective” within any other program. The data can be seen below.

Degrees combined with UNSW Law degrees for students admitted S1 2017

Social Sciences and Humanities Commerce

Preparing lawyers for the future, where they will work alongside automated systems, requires law schools to go beyond the TLOs.

the requirement at many Australian universities that Law students do a combined degree program. The alternative, also offered at many law schools, is the Juris Doctor program, requiring students to have already completed another degree. The number of universities where students are only exposed to the single discipline of Law is

Other

Standards Project of the Australian Learning and Teaching Council as part of the Tertiary Education Quality and Standards Agency framework.43 This went beyond knowledge to more complex combinations of skills, such as the “intellectual and practical skills needed to identify, research, evaluate and synthesise relevant factual, legal and policy issues.”44 Also included in this framework are ethics and professional responsibility, thinking skills, communication and collaboration, and self-management. While this is a useful way forward, it is important to recognise that they are designed as minimum requirements.

Arts and Business/Law Criminology and Criminal Justice/Law City Planning (Hons)/Law

3 8 3

Economics/Law

Actuarial Studies/Law

200

Commerce/Law Music (all)/Law

4 3

Social Research and Policy/Law

Social Work/Law

International Studies (all)/Law

Arts (all)/Law 20

Media (all)/Law Fine Arts/Law

2 With compulsory requirements for 13 Science/Law students to know things and universitylevel requirements that focus on general Medicinal Chemistry (Hons)/Law 1 skills (often based on the TLOs), finding 2 Psychological Science/Law room in the curriculum for anything 16 Psychology (Hons)/Law new is challenging. This problem is Advanced Mathematics (Hons)/Law 1 compounded by the fact that students often assume that they are in law school 4 Advanced Science (Hons)/Law to learn “the law” rather than gain new Computer Science/Law 2 capabilities, understandings and ways of 6 Engineering (Hons)/Law looking at society. The solution cannot be simply to add more to what a law 0 50 100 150 200 250 degree should do. Instead, universities should be encouraged to be creative by enhancing variety across the scenarios What these data demonstrate is that the students are asked to consider in class Note that, in this chart, degree “(all)” implies more than one combined degree program with a similar name. thus small. This mechanism provides law proportion of students combining legal and in assessments. Exposure to the students with a significant advantage in a studies with science and engineering questions raised in Section 2 is not just What these data demonstrate is that the proportion of students combining legal studies w world where few problems can be solved subjects is low. All of the combined about content, it is about understanding and engineering subjects is low. All of the combined programs offer students something o within a single discipline. programs offer students something how existing concepts apply in new potential value. The point is not that only a particular category of combined degrees are w of real or potential value. The point is However, at least at my own institution, contexts. The technical context in which doing, but rather that there are advantages for the profession as a whole in maintaining d not that only a particular category of UNSW Law, most students choose a these questions arise is often no more combined degrees are worth doing, but relatively narrow range of combined difficult to explain than the complex cross-disciplinary expertise across legal graduates. My sense, based on the discussion in S rather that there are advantages for the degree programs. For example, the commercial and family situations that that the supply of legal graduates with general technical expertise, and particularly with c profession as a whole in maintaining data for students commencing in crop up in the caselaw. Exposure to science and engineering expertise, is below the potential demand. However, the empirica diversity of cross-disciplinary expertise Semester 1 2017 (including transfer these questions can thus be woven into across legal graduates. My sense, based students) has only 45 students enrolling examples in relevant subjects. here is fairly thin, being restricted to one cohort in one university and without further dat on the discussion in Section 2, is that the in STEM degrees alongside their law and subject choice. Further research would be required to test the depth and breadth of m supply of legal graduates with general degree compared to 158 in social 4.2 Combined law degrees and the hypothesis. technical expertise, and particularly science or humanities degrees, need for techno-legal experts 226 in commerce degrees and 14 with computer science and engineering What does seem clear is that the demand for students with legal and technical expertise, expertise, is below the potential demand. in other degrees. Within the STEM One way in which students are able to However, the empirical analysis here is combined degrees, only 2 students Susskind’s legal knowledge engineers, legal technologists, legal hybrids and legal data scie gain cross-disciplinary skills is through fairly thin, being restricted to one cohort are doing a specialist computer likely to increase. Clayton Utz has a new Forensic and Technology Services practice that in STEM

Art Theory/Law

16 | BRIEF DECEMBER 2018

identification and management of cyber-risk and the design and implementation of anti-f programs as well as the management of IT forensic analysis, preservation and data review

in one university and without further data on majors and subject choice. Further research would be required to test the depth and breadth of my hypothesis. It will also be interesting to monitor enrolments in the new Data Science and Decisions/Law combined degree commencing at UNSW in 2019. What does seem clear is that the demand for students with legal and technical expertise, for Susskind’s legal knowledge engineers, legal technologists, legal hybrids and legal data scientists,46 is likely to increase. Clayton Utz has a new Forensic and Technology Services practice that includes the identification and management of cyber-risk and the design and implementation of anti-fraud programs as well as the management of IT forensic analysis, preservation and data review programmes.47 Corrs Chambers Westgarth, as well as launching a multidisciplinary cyber security team,48 is itself developing tools useful in legal practice and beyond, such as JustOCR which improves the quality of optical character recognition for scanned documents,49 and is looking to develop further tools through its partnership with Beagle Asia Pacific

Pty Ltd.50 It is likely that Australian law firms will follow the example of the United States and hire people with interdisciplinary expertise in fields such as data science.51 Like in the United Kingdom, we could also get “legal engineering” firms, specialising in designing and building legal solutions using data, law and technology.52 But if we are to offer future law students the employability benefits of combining a law degree with a program such as computer science, we need to convince high school careers counsellors that this is a useful path for suitably capable students. Not only would that benefit the students concerned, it would also ensure that, as a society, we are in a good position to manage new and important questions at the interface between technology and society, including those described in Section 2.

4.3 The UNSW Law response UNSW Law is responding to the issues raised in this paper by reflecting on three questions. The first is the extent to which the core curriculum can and should be revised to provide the kinds of opportunities

for critique of automation outlined in Section 2. The second is the creation of new elective courses that provide opportunities for motivated students to delve deeper into the questions surrounding techniques of automation and artificial intelligence. The third is how we can motivate students to consider a broader range of combined degree programs when entering university. This section focusses on the first two of these; the third is largely a question of rewriting dual program descriptions and marketing material to emphasise the advantages of non-traditional combinations. The process for revising the core curriculum has not yet concluded. It began with a “mini-curriculum review” working group that was asked to address two issues. The first, not relevant here, was the internal UNSW issue of trimesterisation and how existing courses (scheduled over 12 weeks) could be taught within a shortened term through more weekly hours of classroom teaching and/or greater reliance on blended learning incorporating on-line activities. The second was the need to map the extent to which relevant practical skills and the kinds of critique

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the automation of document-generation or through the automation of client intake systems. While undertaking this work, students read critical literature around the use of legal expert systems and articulate their own thoughts and ideas through a series of reflective notes. The course culminates in a series of group presentations where students present their applications as well as discussing relevant limitations, including those due to limited literacy or access, where relevant. Similar courses are also offered at the University of Melbourne and the University of Technology Sydney. These new courses stand alongside more established courses such as Information Technology Law, Cybercrime, Security and Digital Law Enforcement, and Surveillance Security and Democracy (among others) that encourage students to think about specific issues at the intersection of law and technology.

outlined in Section 2 were already included in core subjects and use this as a basis for considering the need for any revision. Both of these processes are currently underway, culminating in a faculty-wide workshop scheduled for later this year involving guest speakers from legal practice, industry, the judiciary and academia as well as opportunities for reflection and discussion. Through this process, we hope to identify courses where relevant skills can be taught and opportunities for informed critique opened. All law students need a basic understanding of the technologies that are becoming part of the practice of law and the administration of justice. This is not only about “professional legal training” or a “how to” guide, but rather as deep critical thinking about the advantages, limitations, assumptions and impacts associated with technology generally and artificial intelligence in particular. If these technologies are part of the new working environment, students need to know how to use them appropriately and in ways consistent with the rule of law and associated values including fairness, natural justice, and legal equality. We also need to make sure that future judges and practitioners do not embrace tools such as risk assessment, predictive analytics and blockchain without understanding the limitations as well as the benefits. 18 | BRIEF DECEMBER 2018

We have also introduced two new elective courses, providing opportunities for students who wish to explore these issues in more depth. The first is an overseas short course on Law and Technology: Comparative Perspectives that encourages students to think critically about the role of law and regulation in setting innovation policy, co-ordinating new forms of conduct, and limiting the development and use of new technologies are consistent with ethical, legal and social values as well as the role of judges in resolving uncertainties and inconsistencies in the application of law to new, often unforeseen, situations. In the course, students compare different government approaches to issues raised by technologies such as 3D printing, “disruptive” platforms such as Uber, automated decisionmaking, and surveillance technologies in Australia, the United States and Europe. The second is a more practical course, Designing Technology Solutions for Access to Justice,53 that teaches students how to build a legal expert system as well as how to think critically about the advantages, disadvantages, limitations and consequences of such systems. After learning technical basics, students work in groups for a not-forprofit organisation, such as a community legal centre, to build an application that supports access to justice through the provision of relevant information, through

None of these courses do replace a Bachelor degree in computer science or similar discipline. But we ought not leave the design and building of decisionmaking and decision-support systems exclusively to those with exclusively technical training. If we want to embed the values taught at law school into tools that provide access to legal information, answers to legal questions, and dispute resolution assistance, then we need legally trained people on the team. Not every law student needs these skills but it is crucial not only to the legal profession but also to the broader community that such tools be designed by teams that incorporate legal expertise. We thus need to expose all law students to the technical contexts in which contracts are negotiated and decisions are made and offer opportunities for students to explore these questions further, while encouraging interested law students to pursue a technical degree alongside a law program.

5. Conclusion Whether or not we create new minimum requirements for universities preparing students for an increasingly automated future, law schools should consider what their students need to know about technology and what additional opportunities should be made available to them. The most important ingredient is the more general one – the need for law students to be trained in critical thinking so that future legal professionals and judges remain appropriately sceptical about what precisely new technologies offer them and where their limitations lie. Legal knowledge and skills will remain an important component of

broad technology assessment and responsible innovation, particularly where technologies alter how law, legal information and legal solutions are formulated, accessed and used. Critical legal thinking, enhanced by a sufficient technical understanding, is the best protection against unfair applications of risk assessment tools and poor applications of blockchain technology. We need lawyers to appeal against inappropriate uses of data analytics and expert systems in government decisionmaking and we need them to retain core rule of law values in the face of pressures to enhance efficiency in dispute resolution. The future may be one with fewer lawyers, but legal knowledge and skills, enhanced by technological literacy, remain crucial. The challenge for law schools is to deliver the depth of education that will equip our students to protect their clients’ rights and interests in an increasingly automated world.

10. 11.

12.

13. 14. 15. 16. 17.

NOTES: 1. 2. 3.

4. 5. 6.

The author would like to thank Adrian Agius for his research assistance. Richard Susskind and Daniel Susskind, The Future of the Professions: How Technology will Transform the Work of Human Experts (Oxford University Press 2015). Eg Elysse Morgan, ‘Rise of the machines: What jobs will survive as robots move into the workplace?’ (ABC News 6 July 2017), http://www.abc.net.au/news/201707-06/what-jobs-will-survive-as-robots-move-into-theworkplace/8685894. Wikipedia, Rule of three (writing) (accessed 25 August 2017). Defense Advanced Research Projects Agency (DARPA), DARPA Perspective on AI, https:// wwwdarpa.mil/about-us/darpa-perspective-on-ai. Australian Government, Automated Assistance in Administrative Decision-Making: Better Practice Guide (February 2007) 13, https://www.oaic.gov.au/images/ documents/migrated/migrated/betterpracticeguide.pdf. This is part of the Australian Government’s Digital Transformation Agenda: Digital Transformation Agency, Digital transformation agenda (Commonwealth Government), https://www.dta.gov.au/what-we-do/ transformation-agenda. See also e.g. Department of Human Services, Annual Report 2015-16 (Commonwealth Government 2016) on Service Delivery Transformation, https://www.humanservices.gov. au/organisations/about-us/annual-reports/annualreport-2015-16/part-4-transforming-services-andtechnology/service-delivery-transformation. Australian Government, Automated Assistance in Administrative Decision-Making: Better Practice Guide (February 2007) https://www.oaic.gov.au/images/ documents/migrated/migrated/betterpracticeguide.pdf. See generally the Hon Justice Melissa Perry, ‘iDecide:

18. 19. 20.

21. 22.

23. 24. 25.

Administrative Decision-Making in the Digital World’ (2017) 91 Australian Law Journal 29, 30. Ibid, 32. The online compliance intervention system was introduced as part of a 2015-2016 Budget measure, ‘Strengthening the Integrity of Welfare Payments’ and a December 2015 Mid-Year Economic Fiscal Outlook announcement. Commonwealth Ombudsman, Centrelink’s automated debt raising and recovery system: A report about the Department of Human Services’ Online Compliance Intervention System for Debt Raising and Recovery (April 2017) 1, 4, http://www.ombudsman.gov.au/ data/assets/pdf_file/0022/43528/Report-Centrelinksautomated-debt-raising-and-recovery-systemApril-2017.pdf. Ibid. Ibid 9. Ibid 12. Ibid 1-3. Social Security (Administration) Act 1999 (Cth) s 6A; A New Tax System (Family Assistance) (Administration) Act (Cth) s 223; Migration Act 1958 s 495A; Australian Citizenship Act 2007 (Cth) s 48; Superannuation (Government Co-contribution for Low Income Earners) Act 2003 s48; National Consumer Credit Protection Act 2009 (Cth) s 242; Paid Parental Leave Act 2010 (Cth) s 305; Carbon Credits (Carbon Farming Initiative) Act 2011 (Cth) s 287; Australian National Registry of Emissions Units Act 2011 (Cth) s 87; Business Names Registration Act 2011 (Cth) s 66; My Health Records Act 2012 (Cth) s 13A; Child Support (Assessment) Act 1989 s 12A; Child Support (Registration and Collection) Act 1988 (Cth) s 4A; Australian Education Act 2013 (Cth) s 124; Trade Support Loans Act 2014 (Cth) s 102; Customs Act 1901 (Cth) s 126H; Biosecurity Act 2015 (Cth) s 280(6), (7); Export Control Act 1982 (Cth) s 23A(2)(h); Aged Care Act 1997 (Cth) s 23B.4; VET Student Loans Act 2016 (Cth) s 105; National Health Act 1953 (Cth) s 101B; Military Rehabilitation and Compensation Act 2004 (Cth) s 4A; Safety, Rehabilitation and Compensation (Defence-Related Claims) Act 1988 (Cth) s 3A; Veterans’ Entitlements Act 1986 (Cth) s 4B; Therapeutic Goods Act 1989 (Cth) s 7C(1); Export Control (High Quality Beef Export to the European Union Tariff Rate Quotas) Order 2016 cl 42; Export Control (Sheepmeat and Goatmeat Export to the European Union Tariff Rate Quotas) Order 2016 cl 25; Export Control (Beef Export to the USA Tariff Rate Quota) Order 2016 cl 19A; Export Control (Dairy Produce Tariff Rate Quotas) Order 2016 cl 36; Export Control (Japan- Australia Economic Partnership Agreement Tariff Rate Quotas) Order 2016 cl 19. These were identified in Simon Elvery, ‘How algorithms make important government decisions – and how that affects you’ ABC News (21 July 2017), http://www.abc.net.au/ news/2017-07-21/algorithms-can-make-decisions-onbehalf-of-federal-ministers/8704858 and Perry, above n 9, 31. Migration Act 1958 (Cth) s 271(5). Australian Citizenship Act 2007 (Cth) ss 48, 49. See generally Kate Crawford and Jason Schultz, ‘Big Data and Due Process: Towards a Framework to Redress Predictive Privacy Harms’ (2014) 55 Boston College Law Review 93; Danielle Keats Citron, ‘Technological Due Process’ (2008) 85 Washington University Law Review 1249. See www.equivant.com, “YOUR ROLE”. Julia Angwin et al, ‘Machine Bias’ ProPublica (23 May 2016), https://www.propublica.org/article/ machine-bias-risk-assessments-in-criminalsentencing. Ibid. See, eg, Racial Discrimination Act 1975 (Cth). Richard A Berk and Justin Bleich, ‘Statistical Procedures for Forecasting Criminal Behaviour: A Comparative Assessment’ (2013) 12 Criminology &

26.

27. 28. 29. 30.

31. 32. 33. 34. 35. 36.

37. 38. 39.

40. 41. 42. 43.

44. 45.

46. 47.

48. 49. 50.

51.

52. 53.

Public Policy 513, 516. Resolution 7 In Support of the Guiding Principles on Using Risk and Needs Assessment Information in the Sentencing Process, adopted as proposed by the CCJ/ COSCA Criminal Justice Committee at the 2011 Annual Meeting on 3 August 2011, http://ccj.ncsc.org/~/ media/Microsites/Files/CCJ/Resolutions/08032011Support-Guiding-Principles-Using-Risk-NeedsAssessment-Information-Sentencing-Process.ashx. Wisconsin v Loomis, 881 NW 2d 749 (Wis, 2016). Berk & Bleich, above n 25. For example, Justice Connect provides a tool that helps those wishing to set up a not-for-profit group get started: https://www.nfplaw.org.au/gettingstarted. For example, Richard Susskind, Tomorrow’s Lawyers: An Introduction to Your Future (2nd ed, Oxford University Press, 2017); Richard Susskind and Daniel Susskind, above n 2. Susskind and Susskind, above n 2, 71. Susskind and Susskind, above n 2, 9, 31-32 Richard Susskind, Tomorrow’s Lawyers: An Introduction to Your Future (2nd ed, Oxford University Press, 2017) Part 1. Lyria Bennett Moses, ‘Artificial intelligence in Legal Practice, Academia and the Courts: Understanding the Implications’ 91(7) Australian Law Journal 561. Ibid 52. Allens Linklaters, ‘Allens Wins ILTA Innovative Project of the Year’ (Media release, 16 August 2017), https://www. allens.com.au/med/pressreleases/ pr16aug17.htm?classic=true. Ibid. Ibid. Legal Practice Intelligence, ‘Gilbert + Tobin adopts Luminance’s artificial intelligence technology’ (3 July 2017), https://www.legalpracticeintelligence.com.au/ gilbert-tobin-adopts-luminances-artificial-intelligencetechnology/. See http://www.plxs.com.au/promotion-wizard/. https://try.lawpath.com.au/privacy-bot/. Brian Tamanaha, Failing Law Schools (University of Chicago Press 2012). In particular, see Australian Learning and Teaching Council, Learning and Teaching Academic Standards Project, Bachelor of Laws: Learning and Teaching Standards Statement (December 2010), http://www.cald.asn.au/assets/lists/Resources/ KiftetalLTASStandardsStatement2010%20TLOs%20 LLB.pdf. Ibid TLO 4. Law Admissions Consultative Committee, Practical Legal Training Competency Standards for Entry-Level Lawyers (1 January 2015) Susskind, above n 30, 135-138, 140. Clayton Utz, ‘Clayton Utz launches Forensic & Technology Services practice with new partner appointment’ (media release 21 February 2017). Corrs Chambers Westgarth, ‘Corrs Cyber Launched Amid Rising Attacks’ (media release 15 August 2017). Corrs Chambers Westgarth, ‘Corrs Launches Patented Legal Search Technology’ (media release, 21 April 2017). Corrs Chambers Westgarth, ‘Corrs Enters Joint Venture with Beagle to Provide Accessible AI Technology in Australia and New Zealand’ (media release 25 October 2016). See, for example, the biography of Bennett B Borden of DrinkerBiddle,"one of the world’s first lawyer/data scientists" at http://www.drinkerbiddle.com/people/b/ borden-bennett-b. https://www.wavelength.law/. This course is sponsored by Gilbert & Tobin and uses the Neota Logic platform.

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Trials and Tribulations: Faith Cheok By Fiona Poh, Solicitor, DLA Piper

Law school has many memories, but none as memorable, or traumatic, as the penultimate and final years when clerkships and graduate positions open. When it came to applications, many of my peers who volunteered at a community legal centre had a distinct advantage. I approached Faith Cheok, curious as to what a Principal of a CLC does, and left feeling humbled after getting to know her: a high achiever, human being, and above all, a parent. Faith was formerly the Principal Solicitor and Acting Manager of Consumer Credit Legal Service (WA) as well as the Principal Legal Officer at the Mental Health Law Centre. In October 2018, Faith commenced her role as Senior Solicitor for policy and law reform at CCLSWA. She shares how she found her purpose in the law and how she balances her career with life.

What has been your journey in law? I thought I would be a chemical engineer! But alas, my aptitude for science was limited, despite getting good grades. Fortuitously, I ended up a lawyer. I was born and raised in Singapore. My parents were very poor, and being illiterate, thought finishing high school was good enough for me. They assumed I would finish high school and start working. But I was offered a place at the National University of Singapore (NUS) Law School. NUS was the only university in Singapore back then, and their law faculty was rather prestigious. So I jumped at the chance, without thinking through what a career in law would be like. For a long time, Law School and law practice did not suit me. I struggled to fit in, as many law students at NUS and lawyers then were from affluent, uppermiddle class families. Also, studying was a misery, as the pressure was 20 | BRIEF DECEMBER 2018

tremendous. Studying in the Singapore jurisdiction meant a juxtaposition of local laws and the laws of the Commonwealth jurisdictions. We had to consult authorities as wide as English, Indian, Malaysian, and Privy Council decisions. There were no online resources then, so there was no letting-up of constantly trying to get one’s hands onto hardcopy reference materials. When I started practising law in Singapore, I realised quickly that the ideals of the law, and getting justice, were vastly different stories. I practised in civil and family law litigation, and saw all too quickly my clients’ disillusionment and disenfranchisement with the legal system: the adversarial nature of the law - which usually meant airing both parties’ dirty laundry – and the costs of getting justice. I came to live in Perth when my husband Ken pursued his Masters and PhD in Physics. Then, I seriously thought about giving up the law, thinking that there surely must be a more meaningful

vocation for me, where clients did not feel ripped off by the system meant to help them. Initially, I tried my hand at teaching law, and at selling real estate. However, the lawyer within me kept creeping up. I sat on several private school boards as the legal liaison board member, and secretary, dealing with compliance and governance. I became qualified in WA, went into an in-house role before moving into private practice in insurance litigation, and then finally finding community law. For me, the penny dropped when I got into community law, at Consumer Credit Legal Service (WA) (CCLSWA). Before then, I had no idea that community legal centres even existed. When I started practising in community law, I finally found fulfilment in pairing my legal skills with helping people access justice. That was the first time I felt happiness and peace being a lawyer. But beware if you are considering a community law career: it does not lead to a fat pay check, or to the hallowed halls of glory.

National University of Singapore

You have a jam-packed resume. How did you manage your time? What were some of trials and tribulations you encountered during this time? I volunteered on the board of several school associations for several years, while also working either in-house or in private practice. I burnt many weekends doing the board work, and many weeknights too. But I have no regrets, as

it was meaningful work, and I worked with a most committed bunch of fellow board members, most of whom were volunteers. And, really, I donâ&#x20AC;&#x2122;t think that I managed my time well. I am prone to throw myself into work and whatever goals I put my mind to. At that time, Ryan and Lauren were in primary school. My flawed idea of time management was driven by trying to have it all: career, marriage, children, fitness, social life, and community involvement. What a lie I perpetrated for

myself! For quite a long time, I would try to fit a pre-dawn run, ride, or swim; rush home to feed my kids and get them to school; head to work; rush home to do mommy activities like reading, homework, play dates, and sports, then start the drill again the next day. I was a wreck mostly. My longsuffering husband Ken probably thought it was another of my manic phases, and patiently waited for me to survive it. Kenâ&#x20AC;&#x2122;s mom too lent a hand and helped us out,

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to make sure the kids were fed proper food! I am very fortunate that I have a spouse who is much wiser than I am. He is my anchor. Without Ken, I will not be who I am today. The wiser and older me now believes that it’s better for me to find a quiet space and practise presence of mind, so that I can think clearly and function more effectively, rather than lurch from one activity to another. For most ambitious go-getter professionals who are also parents of young children, we need to make the difficult choice between being the professional that we want to be, and being the parent we should be. This is particularly true for women, since it is still usually the mothers who choose to carry more of the caring responsibilities. On that count, I finally chose to be a parent first, as I could not cope with the demands of both private practice and parenthood. I did not always do my parent role well. My kids did suffer as a result of my conflicting decisions. I was too often a ranting, raging, reluctant mom, worrying sick about work when I was meant to spend time with my kids. For a while, I relied on caffeine in the day to be alert, and on alcohol at night to wind down. My choice to choose my kids first was in fact what led me into leaving private practice and into community law. In that respect, it was a win-win decision for me. But the journey getting there was certainly fraught with conflict and restlessness.

What drives you to work so hard? I hold others and myself to high standards and values; of personal integrity and work ethic. I really struggle when I see people talk a certain talk, but do not walk it. And there are too many people who do that; they are not even politicians! But if I am being honest, another reason for my drive stems from my own insecurities. However – as a counsellor once told me – that is not necessarily a bad thing. While the fear of failure taken to the extreme is debilitating, in the right doses, my insecurities have made me get out of my comfort zone and achieve milestones. My challenge is to know and respect my limitations, and not harm myself or others on my driven journey.

What are some developments on the horizon for community legal centres? The looming challenges for CLCs are the uncertain state of funding, and the striving for efficiency in service delivery. To serve clients well in a tight funding

22 | BRIEF DECEMBER 2018

environment, CLCs need to avoid being isolated, smaller practices. For instance, accommodation, debt, physical health, domestic violence, family law, and mental health issues are often interrelated issues for our clients, and it would help to organise our services to minimise our clients’ merry-go-round journey for legal assistance. The problem is that many CLCs are too busy doing their core work, to afford the luxury of working on strategies. But it is essential to work on strategy. The demand for CLC assistance will never stop, and the fear of losing funding is unhelpful. But undoubtedly, we need to look at the bigger picture.

Have you got any advice for junior practitioners? I would encourage you to fearlessly guard your integrity and character, and never, ever sell it to someone else or for something else. Your integrity is far more important than your reputation. Reputation is often over-rated. To quote John Wooden, a UCLA basketball coach, “Be more concerned with your character than your reputation, because your character is what you really are, while your reputation is merely what others think you are.” When I unpack that, it affects how I carry myself in all spheres of my life: family, social, professional. I strive to be the same honest person to others as I am to my family as well. Of course I let my guard down more with my loved ones than I do with others, but I strive to be as true to all. Also, it is important to continue cultivating genuine relationships within and outside of the law. Some of my best and closest friends are from within the law or lawrelated: my mentors, whom I go bleating to whenever I face challenges; and my closest colleagues, who are my friends in need. Many of my close friends from outside of my law circles are among my greatest cheerleaders. They are my compass for normal life outside of the law, as they come from other walks of life, and so provide a different perspective on what life is. Look for a few mentors for your growth as a professional, and as a person. Do not settle for a mentor merely because they are “somebody” in others’ eyes. Look for mentors who are genuine and interested in investing in your life. Our mentors need not be for the long term; they could be mentors to us for a season in our lives. You will find that as you grow, you become a mentor to others on their journeys. Be prepared to go out on a limb and challenge yourself. Get out of your

comfort zone and acquire new skills, new networking contacts, new friends, and new perspectives. Never, ever be afraid of failure. Yes, I owned up earlier about my insecurities and my fear of failure, but I tell myself to keep trying, keep moving, and to keep learning. If you fail, give yourself space and time to recover, then pick yourself up and move on. Again, to quote John Wooden: “Success is never final; failure is never fatal. It’s courage that counts.”

Finally, there are many aspiring, and junior lawyers who are looking to practise in community law. Can you share what you look for in your colleagues and your team? In my former roles at CCLSWA and Mental Health Law Centre (MHLC), I recruited many staff members and volunteers. No matter the position the applicant is applying for, be it a paralegal, administrative or a solicitor role, and even if it was for a volunteer position, I looked for the same thing: people who use their heads and hearts. Obviously, intellectual rigour is important, but I also looked at whether that person was teachable, and had integrity. A person with an impressive intellect may not be the right fit if they are arrogant, unteachable, and think they are better than others. Integrity and a hardworking ethic are non-negotiable prerequisites, for me. I believe that if we have the right people and culture in an organisation, we can achieve magic, even if we have but a small team, with limited resources. I have seen that magic happen several times in my career at CCLSWA and MHLC. If we don’t have the right people and culture, the environment could become toxic or burdensome. I very much believe that culture is the most crucial determinant of sustainable success in an organisation; culture will eat strategy for breakfast, every single time. Ethical, strong leadership is vitally important. If leaders and managers are not ethical but instead care more about their own careers and images, then even if there is success for the organisation, it will be not be sustained success, and it will surely not be a constructive workplace for staff. Be careful about choosing the right organisation and people to work for. People who preach a lot about how much they care for the organisation’s causes, or for their clients, or their colleagues, may not in fact walk their talk.

SAVE THE DATE Presenting the Law Societyâ&#x20AC;&#x2122;s 2019 CPD

SUMMER GETAWAY

Friday, 22 February 2019 University Club, Crawley WA With the scenic university campus as the backdrop, the Law Society is excited to announce the 2019 CPD Summer Getaway. Presenting a diverse range of sessions that will deliver relevant content for everyone. Substantive learning is in the mix, along with thought-provoking discussion on professional skills and ethics. Test your curiosity with a design thinking workshop. Generate and implement

innovative, effective and common sense solutions to the complex challenges lawyers face. We encourage you to save the date so you can take part, along with an extraordinary calibre of speakers, in an outstanding learning experience. Depending on what you choose, there are up to 8 CPD points available.

Further information out soon, send your expression of interest to cpd@lawsocietywa.asn.au

2017/18 Annual Report The following is a summary of the Law Society's 2017/18 Annual Report, which was approved by members at the Annual General Meeting held in November 2018. A full version of the Annual Report is available on the Law Society's website.

President's Report Hayley Cormann President

2017 marked the Society's 90th Anniversary, under the leadership of Immediate Past President, Alain Musikanth, and was a period for celebration, reflection and change. On 1 July 2017, the Law Society commenced its new Strategic Direction 2017-2020, adopted by the Law Society’s Council in February 2017. The new strategic plan reflects key stakeholders’ needs and expectations and provides a clear focus and direction for the future of the Law Society. In 2018, and in the Society's 91st year, the Law Society continues to reach a greater depth and breadth of membership, achieving record numbers of over 4,000 members by 30 June. We approach 2019 with renewed hope, engagement and innovation, to continue the work of the Law Society, to reach out to even greater numbers in our profession, as well as to build the influence of the organisation with stakeholders and within the broader community. 24 | BRIEF DECEMBER 2018

Uniform Law Throughout 2017/18 the Law Society has continued to work closely and constructively with stakeholders and the profession, with a view to taking Western Australia forward in the nationalisation of our profession. The end goal is to achieve uniformity around a cohesive set of rules and regulations for how the Australian legal profession be best run. As members know, the Law Society has long advocated for the inclusion of Western Australia in a uniform system of regulation for our profession, as long as certain conditions are met in any agreement and/or legislation to effect this arrangement. This includes guaranteed Western Australian representation on the national Legal Services Council and the continuation of a local

regulatory body run by representatives of our profession and independent of government. The Society remains closely engaged in the current progress towards a national profession to ensure these conditions, and overall the interests of our profession and community, are best met.

Law Reform & Policy The Law Society remains focused on ‘closing the gap’: reducing the rates of imprisonment of Indigenous Australians in our criminal justice system. The Law Society published policy papers in 2017/18 on access to justice issues faced by Aboriginal and Torres Strait Islander peoples, deaths in custody, issues contributing to incarceration of Indigenous women and children, and mandatory sentencing. This includes maintaining the Society's sustained call on legislators to repeal, or amend laws, which provide for a penalty of imprisonment for offences arising from a

fine default, and furthermore, to abolish mandatory sentencing laws.

People Unlawfully Engaging in Legal Work

The Law Society also published policy papers relating to matters of criminal law, including family violence, mentally impaired accused, the Royal Commission into institutional responses to child sexual abuse, bail and the death penalty. The statistics on the occurrence of family violence in Australia remain a national tragedy, and the Society continues to advocate for the proper funding of courts dealing with family law matters, as well as family violence support services, the development and implementation of domestic violence strategies for particularly vulnerable groups, and finally, the identification and implementation of measures designed to reduce the prevalence of domestic and family violence.

The Law Society has also been keen to address the spectre of non-practitioners performing legal work, a practice which must be challenged to ensure the public is protected from incompetent or unethical practitioners, and to ensure the effective provision of professional services. Following a comprehensive study, the Law Society published a position paper titled People Unlawfully Engaging in Legal Work: Protecting the Community, which provides a set of substantive recommendations for law reform, each of which the Law Society continues to advocate for.

Throughout the year, the Law Society has continued to promote both the administration of justice and law reform. Through its extensive committee structure, the Law Society dealt with large numbers of requests for analysis and comment from stakeholders and third parties, made submissions, as well as initiated comment and scrutiny on various legal and practice issues, including proposals for improvement of the law. You can read more about the Law Society’s work across the many areas of law within the Committee Reports contained in the Annual Report.

Future of the Legal Profession Another major focus of the Law Society in 2017/18, and of course continuing, is the future of our legal profession. In 2017, the Law Society published guidelines on the unbundling of legal services, while the November 2017 edition of Brief was devoted largely to subjects directly relevant to the future of the profession. Also in 2017, the Law Society published a position paper titled The Future of the Legal Profession, which explored those significant issues for the legal profession likely to increase in significance in coming years, including law schools, law graduates and employment rates, the business structures of law firms, globalisation and liberalisation of markets, demographic changes, billing practices and the effect of technological advancements.

This includes making representations to the WA Attorney General for the: a) repeal of section 12(4) of the Legal Profession Act 2008 (WA), or alternatively; b) adoption of the Legal Profession Uniform Law, and the insertion of a new provision that would prevent unqualified people from providing products to the public that generate legal advice. The Society is also progressing the preparation of guidelines for nonlawyers who may engage in legal practice on the meaning of ‘legal practice’ and has published material for the community to reference on the benefits of instructing a qualified legal practitioner over an unqualified person, which is available on our website.

Website Review 2017/18 also saw the Law Society embark on a review of its website, and the refreshed site was launched in May 2018, with a view to modernising the site, improving its accessibility and usability.

CPD Review During 2017/18 the Law Society undertook a review of its Continuing Professional Development programme, with the goal of achieving greater value for members. An opportunity was identified to provide a high-value, lowcost CPD solution for members, and the Law Society was this year delighted to launch its new CPD Freedom offering, details of which are outlined in the Programmes section of the Annual Report.

Constitution Review The year in review also saw a comprehensive evaluation of the Law Society’s Constitution, to ensure conformity with the requirements of the Associations Incorporation Act 2015 (WA). As part of the review, scope for further refinements to the Constitution consistent with contemporary notions of good corporate governance was also identified. In August 2017, feedback was sought from members regarding a series of possible constitutional amendments developed as part of the review. Following completion of that process, the Law Society’s Council approved a final set of proposed amendments in October 2017. The amendments were unanimously approved by members of the Law Society at its Annual General Meeting on 9 November 2017.

90 Year Anniversary 2017 was the occasion of the Law Society’s 90th anniversary, with the celebrations culminating in the publication of Celebrating 90 Years of the Law Society of Western Australia, a book authored by historian Dr Cathy May, looking back over the first nine decades of the Law Society’s history. The book is available for purchase from the Law Society. Stakeholder Engagement Throughout the year in review the Law Society’s Executive has met both formally and informally, with senior members of the judiciary and representatives of the courts, Commonwealth and State ministers, senior government officers and other stakeholders to discuss matters of significance to the administration of justice.

A Collegiate & Connected Profession: Law Week The Law Society was delighted to showcase over 50 events for the community and legal profession across Western Australia during Law Week 2018. The Law Society itself hosted seven major events between Monday, 14 May and Friday, 18 May, attended by over 800 people. The focus of Law Week was on law and justice in the community, access to justice and recognition of legal practitioners who have provided exceptional service to the profession and community.

Chief Executive Officer’s Report David Price Chief Executive Officer

The second half of 2017 drew the Law Society’s 90th anniversary celebrations to a close. As I mentioned in my report last year, the Law Society has undergone significant changes since its establishment in 1927 but its core objects, and its commitment to those objects, remain unaltered: advancing the interests of the legal profession; promoting good practice and curbing malpractice; advancing legal education; promoting the administration of justice and the development and improvement of the law; and encouraging collegiality. It is the commitment to these objects that continues to make the Law Society the essential membership for the legal profession in Western Australia. Members were again sent an invitation to participate in the ‘2018 KPI Scorecard Survey’, undertaken by Catalyse, an independent strategic planning and research organisation. The purpose of this confidential survey was to evaluate the Law Society’s performance against eight key performance indicators in the

Law Society’s four-year strategic plan, Strategic Direction 2017-2020. Member feedback confirms the Law Society is committed to building a reputation as the essential membership for the legal profession. A growing number of members are reporting high satisfaction. Overall, 86% of members are satisfied, an increase of 3% points over the past 12 months and up 14% points since 2011. Our members consider the Law Society to be the voice of the legal profession and to be keeping them well informed about changes in legislation and key issues affecting the profession. There is high satisfaction with the Law Society’s e-communications, including Friday Facts, CPD News and YLC News. A complete report of 2018 KPI Scorecard Survey results are included on page 3 of the Annual Report. This past year has seen the Law Society continue its good work and achieve a number of positive results in line with its core objects including: •

•

Record membership of 4,062 (as at April 2018) with an 84% retention rate. (This figure includes 32 Life Members). The Law Society’s Constitution was

reviewed to ensure compliance with the Associations Incorporation Act 2015 and approved by members at the AGM in November 2017. •

The Law Society completed a review of its Continuing Professional Development programme.

•

The Law Society’s website underwent a refresh, as part of the Law Society’s commitment to keeping members informed and connected.

Thank you My thanks and sincere appreciation is extended to the Immediate Past President Alain Musikanth, current President Hayley Cormann, and both their Executive teams in 2017/18 for their support and the commitment they have provided to the Law Society, our members, the staff and me in my role. Thank you also to the Law Society Council members of 2017 and 2018 and our many committee members, all of whom volunteer many hours of their time to enable the Law Society to do the very important work that it does. Finally I would like to acknowledge and thank all of the Law Society staff for another successful year.

Breakdown Breakdown 226 301

Ordinary Members Incorporated Legal Practices

244 64 32 9

Student Members Associate Members

3,126

Judicial Members Life Members Honorary Members

26 | BRIEF DECEMBER 2018

4,737

2,701

registrations for the Law Societyâ&#x20AC;&#x2122;s continual professional development offering

registrations for Law Society events

1,489

19,261

participating members in Professional Standards Scheme, an increase of 16% members opting to cap their professional liability

Successfully lobbied for the expungement of historical homosexual convictions and lobbying for the adoption of the Legal Profession Uniform Law in Western Australia

people educated on the legal profession through the Francis Burt Law Education Programme

24 junior practitioner mentees successfully completed the Law Society mentoring programme

Reconciliation Action Plan Innovate is formally launched in February 2018

The Ethics of Settlement Negotiations in Employment Disputes By Mark Cox, Director, MDC Legal and Renae Harg, Associate, MDC Legal1

Client expectations Lawyers acting for parties to employment termination disputes often deal with stressed clients with very deeply held views of the rights and wrongs in the matter, and sometimes unrealistic expectations of what can be achieved and how it should be achieved. Feelings can run high because employment is generally one of the most important aspects to an individual’s welfare and sense of self, and it is essential to business success. An employer may be infuriated to be dragged into proceedings they believe are unmerited and may want to defend the claim to the end “as a matter of principle”, or to “set an example”, happy to pay their lawyer’s fees rather than give the ex-employee a cent (at least until the first invoice). An employee may believe they are entitled to a pot of gold without needing to sully themselves with legal expenses, believing their case is the most deserving, certain

28 | BRIEF DECEMBER 2018

that their ex-employer lives in mortal fear of the matter getting coverage in the media, or in fear of it “going all the way”, which is where they intend to take it (at least until the first invoice). As in any dispute, it is generally in the interests of the parties to genuinely attempt settlement of the matter by negotiation to avoid the inevitable protraction, stress and expense of litigation (the only guarantees of litigation). That typically requires disputants to approach settlement negotiations seriously and to make compromises. What constraints are there on legal practitioners in negotiating terms of settlement? What limitations are there on an employer and ex-employee in a dispute over a termination agreeing to re-characterise the nature of or reason for the termination, for example as a resignation or a redundancy? What room is there to agree settlement payments that are not subject to tax deductions?

There is much to keep in mind concerning our obligations as practitioners to our clients, to our colleagues and to the administration of justice, which is ensured by engaging in professional conduct within lawful constraints both as to how and what may lawfully and ethically be agreed.

Professional Conduct Rules A practitioner must act in the best interests of their client,2 and must follow a client’s lawful, proper and competent instructions;3 but a practitioner has a paramount duty to the court and the administration of justice, which overrides any obligation to their client.4 They must act courteously and honestly with other practitioners and persons involved in a matter; and they must act competently and diligently, and must not compromise their integrity and professional independence; they must not engage in conduct that is likely to diminish public confidence in the administration of justice

or bring the profession into disrepute.5 They must not attempt to further a client’s matter by unfair or dishonest means.6 In addition to this, a practitioner must not knowingly make a false or misleading statement to an opponent (including regarding a compromise).7 If a practitioner becomes aware they have made a false or misleading statement, they must take all necessary steps to correct it.8 That requires a practitioner be honest as to their client’s claims and current circumstances, for example any income they have earned from alternative employment since termination, and the true state of their health or other matters that bear on determination of liability and or quantum of compensation or settlement sum. A practitioner must not perform work in manner that is likely to increase the costs to the client,9 for example by persuading a client to press on with a matter in respect of which a reasonable settlement offer has been made, so as to generate more

legal fees while not gaining any benefit for the client. A practitioner must be frank and open with their client,10 including in giving an objective assessment of the client’s prospects and likely recovery, even where that advice is not what the client may wish to hear. Clients may want to play a strategic game involving sleight of hand; a practitioner must resist. For example, a practitioner must not put an offer as their client’s final offer if the client has not instructed that it is their final offer. Parties to a settlement negotiation are typically negotiating on an express or tacit understanding of confidentiality and without prejudice privilege. The practitioner owes not only their client, but also the other party, strict obligations of confidentiality not to disclose to third parties or in the proceedings what is discussed in such negotiations. There are only limited circumstances

in which a practitioner may make disclosures or adduce evidence of things said in without prejudice negotiations, including where it is necessary to respond to a complaint or proceedings brought against the practitioner;11 or where the welfare of a child is concerned;12 or where statements made within the privilege create an estoppel (for example, leading a party to believe that their delay would not prejudice them);13 or to explain a delay in answer to an allegation of laches;14 or where the subject matter to be disclosed concerns some material deception or “unambiguous impropriety” of a party – because the privilege will not be allowed to hide deception, perjury or blackmail from the court.15 The other exception of course is the Calderbank16 without prejudice offer, which may be relied on in support of a costs application. A practitioner who observes another practitioner making a mistake, which may involve the other party in unnecessary expense or delay, must not foster the mistake, and must draw the other 29

practitioner’s attention to the mistake if doing so will not prejudice their own client or their own client consents.17 When a practitioner receives material that they know, or reasonably suspect, is privileged and was disclosed to them in error, they must not disclose that material to their client or use it in any way; they must immediately notify the other practitioner that the material has been disclosed and that they will return, delete or destroy the material.18 Occasionally a client will want a practitioner to make use of some information or evidence (or more often mere rumour or gossip) that the client considers will undermine the other party something salacious or scandalous - but which has nothing to do with the matters in dispute. A practitioner must confine the case to identified issues which are genuinely in dispute and are relevant to the determination of the issues in dispute; a practitioner must not make or facilitate allegations principally to harass or embarrass a party, or to gain some collateral advantage.19 Even where such allegations may be relevant to the determination of the dispute, a practitioner must not suggest criminality, fraud or other serious misconduct unless the practitioner believes on reasonable grounds that the evidence in the case provides a proper basis for the suggestion.20

Client communications Clients may have unreasonable expectations as to the terms of a settlement offer. Often practitioners may view an offer as reasonable and a client may refuse to accept. It is the client’s decision as to whether they wish to settle the matter. Whilst practitioners can attempt to persuade their clients, it is never the role of a practitioner to coerce their client into accepting a settlement offer.21 The degree to which a practitioner can attempt to persuade their client will depend on the circumstances of the case.22 In some circumstances, a client’s refusal to accept a settlement offer may impact upon a practitioner’s ability to continue with the matter, particularly where the case may be considered a “hopeless cause” or if the client is choosing to ignore the advice in a manner which affects the client-practitioner relationship.23 A practitioner’s role is to assist the client in making “informed and free choice between compromise and litigation and, for the purpose to assess what is in his or

30 | BRIEF DECEMBER 2018

her own best interests.”24 A practitioner should: a) explain the advantages and disadvantages of any decision the client makes; b) give their opinion and explain the basis of that opinion; c) persuade the client to accept and act on that opinion; and d) provide any advice without regard for their self-interest.25

Re-characterising a termination In an application by an employee following a dismissal for alleged misconduct, frequently the employee may propose a term of settlement re-characterising the dismissal as a resignation. That may involve formally withdrawing the termination letter and accepting a resignation letter in its stead. In the writer’s experience that is a common term of settlement, and in the writer’s view that is perfectly sound in most cases. That is because most cases involve disagreement as to whether the employee’s conduct amounts to misconduct, and the typical basis for a resolution is that the parties agree to disagree on the matters in dispute, but agree on the footing of a settlement. Such a proposal may not, however, be sound where it is prone to mislead or deceive others, such as prospective employers reading an agreed statement of service that says the employee resigned, in clear cases of serious misconduct that could not be disputed by the employee. An example is where the employee has been convicted of an offence that led to their termination for cause. The same might be said of cases where an employee is terminated because they lose some prerequisite qualification for the performance of their role, such as a lawyer’s practicing certificate or a teacher’s, nurse’s or a doctor’s professional registration, which would render disingenuous an agreed statement that the employee resigned.

Sham redundancy Likewise, it is not open to an employer and ex-employee to re-characterize a termination as a redundancy where it is not in fact due to a genuine redundancy; where the employment has not ended because the employer made and implemented a decision not to have a particular role within their business for operational reasons. That is because, amongst other things, employees whose employment ends

because their position is genuinely redundant are entitled to more favourable tax treatment. To agree to falsely treat a termination as a redundancy is likely to have the consequence of evading tax, which is unlawful, and will expose both employer and employee to penalties.

Tax Similarly, an employer and ex-employee cannot agree to treat a settlement payment as a tax-free payment where that payment is in consequence of a termination of employment.26 Payments of notice, accrued leave, salary/wages, award entitlements and ex-gratia or settlement payments to settle a claim arising out of a termination require the employer to deduct tax and remit it to the ATO. Amounts of compensation to settle an injury claim can be made as an untaxed capital sum, but the quantum must reflect the injury. For example, in general protections claims under the Fair Work Act 2009 (Cth) where the employee asserts that they have suffered hurt, humiliation and distress, and where that precedes the termination (viz is not in consequence of the termination), the settlement agreement may provide that the sum is to be paid as a compensation amount not subject to tax deduction. This will require caution in cases of termination based general protections claims to ensure the compensation does not relate to the termination. The same could not be done with a settlement sum in an unfair dismissal claim, because, by definition, it is a payment in consequence of termination. And, in any event, it is long settled law that damages for hurt, humiliation or distress are not available in common law claims for breach of contract27 or for unfair dismissal claims.28 As to when is a payment received “in consequence of the termination of your employment” and therefore must be taxed, see generally Taxation Ruling 2003/13, [5]-[29], from which we extract the following: a) Where there is a causal connection between the termination and the payment, it is a payment in consequence of the termination of the employee’s employment. The termination does not need to be the dominant cause of the payment. There will be a sufficient connection if the payment follows as an effect or result of the termination: that is, but for the termination of employment, the payment would not have been made to the taxpayer.29

b) Payments made to compensate for hurt, humiliation and distress will still be treated as Employment Termination Payments (ETPs). Taxation Ruling IT 2424 (IT 2424) at [8] might be said to support the contrary view: By way of general comment the determination of the character of a compensation payment, and in particular whether it is liable to tax in the hands of an employee, depends upon the nature of the payment. A compensation payment to make up for lost earnings or in substitution for income which would otherwise have been earned is in the nature of income and is liable to income tax in the hands of the employee. On the other hand a payment to compensate for personal injury, injury to feelings, humiliation, embarrassment, depression, anxiety, etc. is not liable to income tax. It is a payment of a capital nature. [Emphasis added] But IT 2424 at [9] states: A second issue which is relevant to determining the assessability of a compensation payment is whether a payment in respect of an unlawful dismissal of an employee constitutes an eligible termination payment and subject to special taxation treatment. In The Public Servant v Commissioner of Taxation [2014] AATA 247 at [15], the applicant taxpayer cited IT 2424 to argue that a settlement sum paid to her under a Deed of Settlement to settle a discrimination claim was not an ETP. The Tribunal ignored this argument and

focused exclusively on whether or not the payment was in consequence of the termination. There are exceptions to ETPs for “a capital payment for, or in respect of, personal injury to you so far as the payment is reasonable having regard to the nature of the personal injury and its likely effect on your capacity to derive income from personal exertion (within the meaning of the definition of income derived from personal exertion in subsection 6(1) of the Income Tax Assessment Act 1936)”.30 [Emphasis added]

We can assure your clients that their cat will be looked after and rehomed if they are left behind if a bequest is

NOTES: 1.

Gemma Little, solicitor at MDC Legal also assisted in the writing of this article. Mark Cox also acknowledges the contribution of members of the Employment Law Subcommittee (of which he is a member) to formulation of views on the issues associated with recharacterizing a dismissal as a resignation or redundancy.

Legal Profession Conduct Rules 2010, rule 6(1)(a).

Legal Profession Conduct Rules 2010, rule 7(a).

Legal Profession Conduct Rules 2010, rule 5.

Legal Profession Conduct Rules 2010, rule 6.

Legal Profession Conduct Rules 2010, rule 16(1).

Legal Profession Conduct Rules 2010, rule 37(1).

Legal Profession Conduct Rules 2010, rule 37(2).

Legal Profession Conduct Rules 2010, rule 7(h).

10.

Legal Profession Conduct Rules 2010, rule 7(c).

11.

Legal Profession Conduct Rules 2010, rule 9(3)(g).

12.

Hutchings v Clarke (1993) 113 ALR 709.

13.

Family Housing Association (Manchester) Ltd v Michael Hyde & Partners (a firm) [1993] 2 All ER 567.

14.

Dr RJ Desiatnik, Without Prejudice Privilege in Australia, Lexis Nexis Butterworths (2010), pp 82-85.

15.

Unilever plc v Proctor & Gamble Co [1999] 2 All ER 691; Hawick Jersey International Ltd Caplan, Times Law Reports, 11 March 1988; Quad Consulting Pty Ltd v David R Bleakley & Associates Pty Ltd (1991) ATPR 41-065 at 52,019, discussed in Dr RJ Desiatnik, Without Prejudice Privilege in Australia, ibid, pp85-93.

16.

Calderbank v Calderbank [1975] 3 All ER 333.

17.

Legal Profession Conduct Rules 2010, rule 23.

“It is not enough that there is a “consideration” which can be said to have a connection with personal injury. The payment must be compensation for or in respect of the particular injury”.33

18.

Legal Profession Conduct Rules 2010, rule 24.

19.

Legal Profession Conduct Rules 2010, rule 36(1)(a), (2)(c) and 2(d).

20.

Legal Profession Conduct Rules 2010, rule 36(8).

21.

Harvey v Phillips (1956) 95 CLR 235.

22.

Studer v Boettcher [2000] NSWCA 263 at [58], [74].

23.

Studer v Boettcher [2000] NSWCA 263 at [58].

The ATO or a Court will expect the Deed of Settlement to place a monetary value on the employee’s personal injury and or to “provide for a formula, roughly comparable to the manner in which a court or tribunal might assess damages in a claim for personal injury, to quantify the amount of the payment”.34

24.

Studer v Boettcher [2000] NSWCA 263 at [75].

25.

Studer v Boettcher [2000] NSWCA 263 at [75].

26.

Income Tax Assessment Act 1997 (Cth), Division 82, Part 2-40, Volume 3; Taxation Ruling 2003/13, especially [5]-[30]; Taxation Ruling 2009/2; Celeste Black, “Employment disputes: the implications of taxing of settlement receipts as eligible termination payments”, Journal of Australian Taxation, 2007, 10(1), 1.

27.

Addis v Gramophone Co Ltd [1909] AC 488.

28.

Fair Work Act 2009 (Cth), section 392(4).

29.

Taxation Ruling 2003/13, at [5], [29].

Conclusion

30.

Income Tax Assessment Act 1997 (Cth), section 82 – 135(i).

A practitioner must resist the pressures and persuasions of a client or other party to facilitate terms of settlement, or a strategy to achieve settlement, that flouts

31.

Commissioner of Taxation v Scully [2000] HCA 6, at [24][41].

32.

Commissioner of Taxation v Scully [2000] HCA 6, at [26].

33.

Commissioner of Taxation v Scully [2000] HCA 6, at [29].

34.

Commissioner of Taxation v Scully [2000] HCA 6, at [30].

However, this exception is principally concerned with payments for loss of earnings consequent on personal injury, and for the exception to apply the payments need to be calculated by reference to the nature and extent of the injury or the likely loss to the employee.31 The use of the word ‘reasonable’ allows the Commission for Taxation to “disallow an excessive or fraudulent claim for an exclusion by a taxpayer.”32

Bequests Help Save Cats’ Lives As a charity, Cat Haven relies heavily on the kind donations and bequests of West Australians. We are WA’s premier cat welfare organisation, accepting over 6500 cats a year and rehoming as many as possible.

the law or ethical obligations, or that undermines the administration of justice, or that diminishes public regard for the law.

Please Donate, Adopt Foster, Bequeath, Volunteer

made to Cat Haven. By suggesting and guiding your clients on how to bequeath a gift, you will also be providing much needed support for the homeless cats of Perth. For more information or a brochure, go to www.cathaven.com.au or call Chandra Woodley on 9442 3600.

Cervantes, Western Australia

Cervantes in Law By Nicholas Hasluck AM, QC

The history of a community will often include an account of controversial court cases that have arisen in earlier days, especially when a case becomes a legal precedent handed down by the highest court in the land. In Nagle’s case, for example, the popular bathing place on Rottnest Island known as ‘the Basin’ was the scene of a diving accident that took the plaintiff all the way to the High Court of Australia and established that the custodian of a pool is obliged to warn swimmers about the presence of submerged rocks. Cervantes, a coastal town between Perth and Geraldton with a longstanding link to the fishing industry, provides another example. The submerged hazard on this occasion was the handiwork of a real estate agent who became confused as to which party to a transaction he was supposed to be looking after. In 1979 Mr and Mrs Bahr acquired Cervantes Lot 221 and the business of a General Store conducted on it. Also, they had a right to call for a Crown Grant upon erecting commercial premises on Lot 340. To finance the building costs their agent persuaded them to enter a so-called ‘sale, lease and buy-back’ arrangement with one of the real estate agent’s other clients, Marcus Nicolay, who was working as an airline pilot. The idea was that upon the land being sold to Nicolay the Bahrs would occupy the site and use the price obtained from Nicolay to complete the building work. In due course Nicolay would transfer the land back to the Bahrs at a previously agreed price. The building was completed and the Bahrs began to operate the business as a General Store, Post Office and Newsagency, together with a Liquor Store on Lot 221. Along the way the Post Office and Newsagency was sold to another party. But then, because some rental payments to Nicolay were overdue, the agent formed the view that the Bahrs might not be able to complete the buy-back arrangement. To quote from evidence given by the agent at trial: ‘At that stage our loyalty shifted from one t’other, and mainly to Nicolay. The 32 | BRIEF DECEMBER 2018

remedy was to get him out of it in the best way possible which was to sell the property – Lot 340.’ So the agent drew up a second contract under which Nicolay sold the property to a local couple, well-known in the fishing industry, Mr and Mrs Thompson. This was arguably a breach of Nicolay’s original contract with the Bahrs but fortunately for Nicolay (and in the end fortunately for the Bahrs) Nicolay’s solicitor insisted that the second contract include a special clause 4 whereby the purchasers (the Thompsons) ‘acknowledged’ the original contract entered into by the Bahrs and Nicolay. The land was then transferred to the Thompsons under the Transfer of Land Act but without the Bahrs interest in the property being mentioned on the registered title. The general rule is, of course, that a registered proprietor holds the land free of all other interests save for those noted on the title such as a mortgage, or an easement or an interest protected by caveat. When the Bahrs sought to complete the original ‘buy-back’ arrangement by calling on the Thompsons (now standing in place of Nicolay) to transfer the land to them, the Thompsons resisted. They did so in the belief that the original agreement had fallen away. This belief was brought about by the agent’s misunderstanding of the Bahrs’ legal and financial position. The Bahrs sought relief by commencing civil proceedings in the Supreme Court of Western Australia against Nicolay, the Thompsons and the agent. The Bahrs claim, and the various cross claims between the three defendants, raised a host of issues. For present purposes, and for non-lawyers, I will do my best to simplify the issues. There were two main matters standing in the way of the Bahrs’ claim for specific performance; that is, their claim to the land under the original buy-back arrangement. First, the Bahrs were seeking to enforce the original buy-back agreement but as the Thompsons weren’t actually a party to that agreement it was questionable, under the rules concerning privity of

contract, whether the Thompsons could be compelled to hand over the land. The only way around the privity of contract rules was to persuade the Court that the Bahrs had an enforceable interest in the land by way of a constructive trust. In other words, as the Thompsons had acknowledged the existence of the original Bahr/ Nicolay contract in clause 4 of the second agreement it was arguably unconscionable for the Thompsons to keep the land. In such a case, under equitable rules, the Court might be willing to hold that the land was held in trust for the Bahrs, subject to payment of the previously agreed price. But this would still leave a second matter standing in the Bahrs’ way. Even if the Court could be persuaded that the land was held in trust for the Bahrs, their interest in the land under that trust would be an unregistered interest. The usual rule under the Transfer of Land Act, as indicated earlier, is that a registered proprietor (in this case the Thompsons) holds the land free of any unregistered interest unless the interest in question is protected by a caveat. In the absence of a caveat the transfer of the land by Nicolay to the Thompsons arguably had the effect of extinguishing the Bahrs unregistered interest. The only way around this rule was to rely upon one of the statutory exceptions or otherwise to fall back on an exception approved in previously decided cases. These cases allowed for enforcement of a claim in equity where the registered proprietor had overlooked a previous personal commitment. The complexities of the Bahrs’ case were such that the Trial Judge dismissed their claim. The matter was taken on appeal to three judges of the Full Court, but to no avail. After a further appeal, the High Court of Australia finally handed down a decisive ruling in favour of the Bahrs. The High Court ruled that the Thompsons held the land as trustees for the Bahrs and were obliged to transfer the land to them. At the end of the day the party principally held to be in default was the agent. He had confused the parties and had failed

to exercise due care. He was held liable for the loss caused by his negligence. The decision of the High Court appears in the law reports as Bahr v Nicolay (No 2) (1988) 62 ALJR 268. The final ruling was handed down almost ten years after the date of the original transaction and this, to the parties involved, must have seemed like a never-ending saga. Two members of the High Court at that time were West Australians: Justice Sir Ronald Wilson and Justice John Toohey. They were probably better acquainted with coastal communities such as Cervantes than their judicial brethren from the east coast of Australia. At the hearing before the High Court Mr and Mrs Bahr were represented by Malcolm McCusker QC who later served as Governor of the State of Western Australia. Counsel for the agent was David Malcolm QC, who became Chief Justice of the Supreme Court of Western Australia. The High Court ruling in the Bahr case is now frequently cited in textbooks on land law throughout Australia as a precedent bearing upon issues of the kind mentioned above. It was a landmark decision.

I was reminded of the Bahr case while in Cervantes recently to attend a conference hosted by the Cervantes Historical Society. The town has grown considerably since the time of the original transaction but the premises once in dispute are still there. And I chanced upon another matter of legal interest. It seems that some years after the Bahr case, in January 1993, on a beach just north of Cervantes, 9 year old Jamie Andrich found a giant egg. This was eventually identified by a curator from the WA State Museum as being the egg of a giant elephant bird formerly on Madagascar called Aepyornis Maximus, an egg which was possibly 2000 years old. The finding of the giant egg led to another dispute about ownership, with the young finder and his family contending that the finder had the superior claim. In this case, fortunately, the parties didn’t embark upon a legal saga for the next ten years or so. Instead, pursuant to advice from the Crown Solicitor, it was determined that because the egg was found on a Crown Reserve, it was property of the Crown. Not surprisingly, however, the media

was strongly in favour of the finder and his family. The controversy was brought to an end when the government agreed to make a $25,000 gratuity payment as compensation for the finding. The egg is now held safely by the museum although there is still some debate as to how it arrived on the beach. Cervantes was named after an American whaler which was wrecked nearby in 1844. That ship, it seems, was named in honour of the great Spanish writer Miguel de Cervantes, creator of the charismatic knight Don Quixote, wellknown in popular folklore as the man who tilted at windmills in the course of his quest for enlightenment. One would like to think that legal sagas and other quests for justice in the small community of Cervantes on the west coast of the Australian continent are equally remarkable. Nicholas Hasluck’s recent book ‘Jigsaw: Patterns in Law and Literature’, Australian Scholarly Publishing, includes various reminiscences drawn from legal practice. The author can be contacted at hasluck@iinet.net.au.

Proud partners of the WA Law Society. Bankwest are proud to have been supporting the WA Law Society for 40 years, and local businesses in WA for over 120 years. WA Law Society members have special access to Brad Smith, who is your dedicated Bankwest Business Senior Relationship Manager. Whether you require day-to-day Business banking support or a more customer centric solution, Brad can help you find the best outcome for your Practice. Brad Smith Senior Relationship Manager | 0467 786 813 | brad.smith1@bankwest.com.au Bankwest, a division of Commonwealth Bank of Australia ABN 48 123 123 124 AFSL/Australian credit licence 234945. BWA-Ad264 091118.indd 2

BWA-Ad264 091118 30/10/2018 11:04 AM

Mock Trial Competition Grand Final On Thursday, 11 October 2018, the season’s top two teams, both hailing from Hale School, competed in the Grand Final of the Law Society’s Mock Trial Competition in Court 1 of the Supreme Court in Stirling Gardens. The judge was the Chief Justice of Western Australia, the Honourable Peter Quinlan. The winning team was Hale Briefs, who achieved a narrow victory over their rivals and schoolmates, Hale Defenders, in a civil matter concerning the payment of wages to a young person working in a fast food restaurant. We thank the members of the Grand Final Case Working Group, Kathryn Roach, Sam Hemachandra and Zoe Kalimeris, for devising and producing the new case material. The Mock Trials are fictional civil and criminal cases, with the rules of evidence and procedures modified and simplified. Each team prepares their own case, and the students take on the roles of barristers, solicitors, court staff and witnesses. 1,175 students in Years 10, 11 and 12 participated in 196 trials this season. 124 teams from 53 schools were involved.

34 | BRIEF DECEMBER 2018

At the presentation following the Grand Final, Law Society President Hayley Cormann thanked the legal profession for their support: 83 volunteer lawyers acted as judges, while 52 legal practitioners and law students coached the students. Ms Cormann also thanked the Chief Justice for judging the Grand Final and acknowledged the support of the Supreme Court of Western Australia, Department of Justice, Department of Education, Murdoch University and the Public Purposes Trust. She noted that the Mock Trial Competition is a fantastic, dynamic way to introduce the law and our legal system to young people, that there is strong evidence that too many Australians have an inadequate understanding of their rights and responsibilities before the law, and that community legal education has therefore never been more important. Many people at the event embraced the #MockTrialsForever message. The State Government intends to cut more than $110,000 in funding to the Law Society’s Education and Community Services Programme from July 2019, and this will directly affect the Mock Trial Competition. The Competition helps young people engage with the legal system and build

valuable skills. The Law Society is asking the State Government to reverse its decision, and hopes people will share the message and the hashtag on social media. The Mock Trial Competition has been held every year since 1987, and we hope it will continue to go from strength to strength, with proper funding from the State Government. You can register to volunteer as a judge or a coach for the 2019 Competition.

Previous participation is not required and registered practitioners can claim CPD points for their efforts. We will be running an information session in February 2019 to explain the Competition in detail. Please contact us on mocktrial@ lawsocietywa.asn.au or on (08) 9324 8604 to register your interest, or register via the Volunteer Lawyer Registration form, found on the Law Society’s website.

Plaintiff Team – ‘Hale Briefs’ – Winning Team Students:

Murray Pratt

Calum Wong

Nicholas Kane

Charlie Hurst

Nicholas Stone

Dhanush Vijayaraghavan

Nikkhil Mukundala

Jamie Warnock

Stephen Hanna

Jordan Pearce Marcus Jorgensen

Teacher – Ms Desiree Lange

Matthew Foster

Coach – Dr Marc Saupin

Defendant Team – ‘Hale Defenders’ – Runner-up Team Students:

Henry Fowler

Aaron Bloch

Lachie Stafford

Byron Ellis Connor Price

Teacher – Ms Susannah Watson

Henry Chen

Coach – Dr Marc Saupin

Department of Justice Department of Education

We extend our thanks to the following members of the profession who volunteered as coaches and judges in the 2018 Mock Trial Competition. The Competition would not be possible without your support. COACHES Alex Manning Alex Mossop Amara Hughes Amelia Ikin Anna Baker Anne Durack Aoning Li Brenton Panzich Briony Whyte Carolyn Moss Catarina Cabrera Chelsea Balm Claire Rossi Clancy Hindmarsh Cory Fogliani Craig Hershowitz Craig McIntosh Danae Aldous Danika Adair-La Dino Todorov Elisha Rayner Erica Thuijs Eugene Wong Frank Main Grant Benskin Hugh O'Sullivan Ilya Isakov Jacqui Brown James Marzec Janine Villanueva Jessica Berry Jessica Henderson Jessica Tran Johanna Overmars John McKechnie John Park John Rando John Williams Khie Gregory Kiri-Lee George Marc Saupin Menka Orellana Michael Gething Miguel de Sousa Rein Squires Rhianna Brims Sam Coten Sarah Jones Sean Gomes Simon Steenhof Troy Sauzier Veenela Veerasamy JUDGES Adam Ebell Alex McVey Alexander Noonan Alexandria Bishop Amy Ryan Angie Gimisis Annabel Sweetnam-Groom Ashley Roberts Belinda Loftus Braeden Watts Brenda Powell Briee Rogers Caitlin Liddelow Caris Tysoe Carly Price Cathryn Palfrey Catinca Hozoc Cecilia Chipangura

Chad Silver Chelsea Fruhwirth Cheyne Beetham Chris Townsend Daniel Coster Daniel Harrop Daniel Jenkins Deon de Klerk Ebenezer Assibey-Bonsu Elmi Carlean Emma Luck Eric Chan Femke Elferink Frith Gibbons Gary Cheung Gray Porter Greg Mohen Hollie Johnston Ian MacFarlane Ian Sampson Ilana Hamilton Iva Brnadic Jarrad Goold Jasdev Singh Jay Tampi Jonathon Horne Joy Horwood Jun Khew Wong Kate Banasik Kate Wilson Kathryn Roach Katie Webster Keely Liddle Ken Yin Kerstin Stringer Laura McNama Leslie Gabriel Lorraine Finlay Marshall McKenna Michael Cornes Michelle Linehan Miranda Robertson Natalie Wigg Natasha Stewart Nicola Thomas-Evans Oralee Logan Patrick Mackenzie Penelope Reid Philip Hardless Rachael King Rebecca Dennison Rhiarne Bruce Robert Lilley Sam Hemachandra Sam Pack Saoirle McCallion Sasha Dawson Seamus Rafferty Shana Yeap Stacey Watts Stephanie Smith Stephen McGrath Thomas Camp Timothy Lethbridge Zoe Bush Zoe Kalimeris

BOOK REVIEW

In Your Defence: Stories of Life and Law Review by Dr Steven Cohen Royal Courts of Justice, London

The pursuit of an ideal justice system continues to rouse jurists’ imaginations. For we often consider justice as an ideal: equality, coupled with the tempering of power. However, such ideas are both illusory and impractical. Sarah Langford, Criminal Barrister and author of In Your Defence: Stories of Life and Law sets out to deconstruct England’s floundering justice system. Through a series of real life anecdotes, Langford optimistically suggests that justice is achievable, but is found not in a kindly judge, nor in a costly QC, but in a plurality of pillars, with the focus firmly fixed upon a properly funded justice system. Through eleven evenly balanced vignettes, Langford describes her work in the Criminal and Family Courts of England. Her harrowing stories are indicative of her day to day practice, exposing the “heartache and humour of high drama and quiet pain.” Her story telling is effective. Instead of didactically dramatizing the failings of the British Legal System, the anecdotes allow Langford to define her own experiences, laying bare a personal critique without the verbosity of more seasoned writers. We are first introduced to Dominic, a child caught in the raptures of youth, but without the guidance of either good men or women; Derek, who is charged under antiquated purity laws who found it impossible to face 36 | BRIEF DECEMBER 2018

either himself or his community; and Raymond, a young man risking his freedom to protect his drug dealing mother. And if these opening sombre tales are not revealing enough, the staid doors of the Family Court are opened. We are presented with Maggie, an underprivileged mother “so poorly parented herself that local authorities did not consider she was able to look after either the daughter they had already removed… or her newborn son.” Then to Saba, a poor immigrant without the skills to navigate a complicated justice system, forced into a marriage, which spirals quickly into a violent assault upon her very freedoms that we take for granted. It is difficult not to contrast Langford’s exposé to the Secret Barrister’s tales of a putrefying justice system, in Stories of Law and How It’s Broken. Both accounts illustrate tales of human heartache and wrenching drama that seek to reveal the realities behind the law and the politics that drive these laws. But while Stories of Law is predicated on an anonymous whistle-blower’s sometimes shouty analysis, Langford’s tone is more sedate. Unfortunately, for some lawyers, these stories are all too familiar. A system bursting with ritual, procedure and routine, framed by the spellbinding tales of their clients. Langford brings this to the

fore and reminds us not only of the privileges in practising law, but more importantly our role in preventing blatant injustice. Langford is not a professional writer and at times her prose is more intricate than necessary. But what she succeeds in doing is bringing the full force of a critical mind to illustrate how a specific dilemma – of justice – must be tackled. And here is why this book is captivating: Langford is able to hold our attention to caution us that a corroded legal system threatens the viability of a democratic and open society. A warning for us all.

Later Lawyers Event Wrap-Up

On Tuesday, 11 September the Law Society welcomed approximately 60 “Later Lawyers” and penultimate or final year mature-age law students to the Young Lawyers Committee’s sold out inaugural Later Lawyers panel event. A Later Lawyer is a person with less than five years’ postadmission experience and includes individuals who have had previous careers or family commitments before entering the legal profession, may have re-entered the profession after time away, or anyone who selfidentifies as having followed a non-traditional pathway to practising law.

The Later Lawyers initiative has been created to support graduates and lawyers who are in the early stages of their career and are also Later Lawyers, and to promote awareness that the Young Lawyers Committee is not just for lawyers that are young in age, but for all practitioners in the early stages of their legal career. The panel drew upon the collective wisdom of panellists – the Honourable Magistrate John O’Sullivan, Cav. Maria Saraceni, barrister at Francis Burt Chambers, Helen De Brito of Legal Aid Western Australia, and, Janie Plant of Cullen Macleod, and was chaired by Emma Scotney of HopgoodGanim Lawyers, all of whom came to the law later in life after pursuing careers in a variety of areas, including teaching, social work, commerce and IT, or after raising a family. The entertaining and frank discussion covered the panellists’ personal stories of

their studies and first few years in the profession, both the challenges and advantages of a late or non-traditional entry to the legal profession, and the art of juggling professional and personal commitments in their busy lives. When the floor was opened up to all, attendees shared concerns with panellists, including the difficulties of finding a role in today’s tough graduate job market, and age discrimination in the workplace. It is safe to say that all in attendance would agree that hearing the first-hand experiences of widely-respected, highly successful practitioners was inspirational and motivating. The discussion was followed by a casual networking session over wine and cheese, with many business cards being exchanged and new connections forged. Look out for future “Later Lawyers” events becoming a regular fixture on the YLC calendar.

The Dogs’ Refuge Home (WA) operates under a pro-life policy and relies on community support for funding. E S TA B L I S H E D 1 9 3 5

Dog lovers can leave a lasting legacy By suggesting a bequest to the Dogs’ Refuge Home of WA, you can help your client leave a lasting legacy to support the caring and rehoming of lost and abandoned dogs in Perth. We are one of WA’s oldest animal charities and operate a pro-life policy. Your clients can also be assured that we can make arrangements for their pet dogs to be cared for and re-homed.

For information, visit www.dogshome.org.au or request our Bequest brochure on 9381 8166. You can also contact Chris Osborn, who is a Lawyer for any advice on 9481 2040; 0400 206 105 or chris.osborn@whlaw.com.au Our recommended wording is: “I leave...to the Dogs’ Refuge Home (WA) Inc of 30 Lemnos St, Shenton Park, WA for its general purposes and the receipt of its President, Treasurer or Secretary shall be a sufficient discharge to my Trustees”.

Young Lawyers Case Notes Compiled by volunteers coordinated by the Law Society's Young Lawyers Committee

Rodi v State of Western Australia This is a joint judgment of Chief Justice Kiefel and Justices, Bell, Keane, Nettle and Gordon delivered on 10 October 2018 allowing an appeal from a decision of the Court of Appeal of the Supreme Court of Western Australia comprising President Buss and Justice of Appeal Newnes (with Justice of Appeal Mitchell dissenting) which had upheld the appellant’s conviction on one count of possession of a prohibited drug, namely cannabis, with intent to sell or supply the prohibited drug to another in contravention of section 6(1) (a) of the Misuse of Drugs Act 1981 (WA) (Act). The appellant had been charged on indictment after being found in possession of 925.19 grams of cannabis which was located at his home after police had executed a search warrant on 14 April 2012. The appellant was convicted in the District Court of WA after a trial before a jury and Judge Eaton. At the commencement of his trial the appellant formally admitted he had been in possession of the cannabis located at his home by police and because of the quantity was, therefore, in the absence of the appellant proving to the contrary, deemed to have held the intention of selling or supplying the drug to others by operation of section 11 of the Act [1] – [2]. The cannabis located at his property had been located in clip seal bags and drying on a clothes rack accompanied throughout the house by cannabis seeds, electronic scales and smoking implements. The appellant gave evidence that he had grown the cannabis himself from two plants for his own personal use as a method of pain relief [3] – [5]. The State lead evidence at trial from a police detective, in part to refute the appellant’s evidence as to his intention, to the effect that 2 plants were unlikely to be capable of yielding the quantity of cannabis “head material” found in the appellant’s possession and thus the cannabis in the possession of the appellant had to have been obtained by another means [6]. However, after his conviction the appellant subsequently became aware that the police detective had previously given

38 | BRIEF DECEMBER 2018

evidence in earlier trials about the likely yield of “head material” from cannabis plants which was consistent with the evidence given by the appellant at trial that he had himself grown the cannabis found in his possession [10]. The police detective’s prior evidence was not disclosed to the appellant by the State at his trial and the appellant’s trial counsel was not otherwise aware of its existence at that time [11]. The appellant then sought to appeal his conviction to the WA Court of Appeal on the basis that the content of the “fresh evidence” (being the police detective’s earlier evidence of yield which was consistent with the appellant’s evidence at trial) and its non-disclosure gave rise to a miscarriage of justice. The appellant’s appeal was dismissed after the majority of the Court of Appeal declined to grant an extension of time within which to appeal on the basis that the appeal was without merit despite the Court concluding that the State had breached its obligation of disclosure. The police detective gave evidence at the hearing of the appeal that his opinion regarding potential cannabis yields had changed in the intervening period between the earlier trials and the trial of the appellant, and that he has placed a qualification about his change of opinion in subsequent witness statements. Importantly, however, no such qualification was given at the trial of the appellant [13]. The High Court noted that President Buss held that the evidence given by the detective for his change of opinion was a “credible and cogent” explanation [19]. Justice of Appeal Mitchell, in his dissenting judgment, held that there was a miscarriage of justice because the appellant had been deprived of the opportunity to challenge the evidence of the police detective upon which trial counsel for the State based her closing submissions about the veracity, or lack thereof, of the appellant’s evidence as to intention [21] – [22]. The appellant sought to appeal to the High Court on the following 2 grounds: 1. First, that the “fresh evidence” raised the significant possibility that the jury acting reasonably would have acquitted the appellant if that fresh evidence together with the other

evidence had been before the jury; and 2. Secondly, that the failure to disclose the “fresh evidence” by the State, was such that there was a miscarriage of justice [23] – [24]. Relevantly, a miscarriage of justice will be established “where fresh evidence, when viewed in combination with evidence given at trial, shows that there is a ‘significant possibility that the jury, acting reasonably, would have acquitted the accused’ had the fresh evidence been before the jury” [28]. In response, the State filed a notice of contention that the appeal should be dismissed for the reasons of the majority of the Court of Appeal save for it erred in so holding the State had breached its obligation of disclosure [25]. After a hearing before the Full Court comprising 5 Justices in Canberra on 7 August 2018, the High Court unanimously held that the appellant’s appeal should be allowed on the basis that “the fresh evidence gave rise to a significant possibility that the appellant would have been acquitted had the evidence been before the jury” [26]. In so holding, the High Court considered the salience to the State’s closing submissions of the police detective’s evidence as to his credibility and that of the appellant [31] – [35]. The High Court also held that President Buss’ conclusion about the police detective’s explanation about his change of opinion was “clear and cogent” was a matter for the jury [37] – [39]. Ultimately, the High Court ordered the appellant’s conviction be quashed and a new trial be held [42]. With respect to the State’s notice of contention and the appellant’s ground of appeal related to non-disclosure, the Court considered it unnecessary and inappropriate to determine the intersection of statutory and common law notions of prosecutory disclosure in the absence of considered reasons of the Court of Appeal on that point [27]. Jack Carroll Solicitor, Park Legal Solutions Young Lawyers Committee Member

Young Lawyers Case Notes Compiled by volunteers coordinated by the Law Society's Young Lawyers Committee

Santa Trade Concerns Pty Ltd v Robinson On 27 August 2018, the Federal Court of Australia made orders approving a class action settlement in the case of Santa Trade Concerns Pty Limited v Robinson (No 2) [2018] FCA 1491. The case is notable for Justice Lee’s: 1. approval of a prima facie disproportionate settlement, which involved a return to members of just one-third of the gross settlement sum (once deductions for the litigation funder and lawyers were accounted for); and 2. comments about the inappropriateness of overly broad release clauses commonly used in class action settlement deeds.

Background to the case The class action was commenced in September 2016 by owners of shares in a mining and minerals exploration company (in liquidation) against the directors and officers of the company, who held office and participated in signing-off allegedly misleading company accounts.

Prima facie disproportionate – but also fair and reasonable and in the interests of group members? The proceeding had reached the stage of discovery when, in May 2018, the parties agreed to settle the case for $3 million. The costs to be deducted amounted to $2 million, being $1.5 million legal costs and $500,000 funding commission leaving $1 million for the 215 group members. Lee J described the net return to group members in comparison to the overall settlement sum as “troubling” and a “prima facie indication that something has gone wrong”. In carefully scrutinising the proposed settlement, Lee J considered recoverability for the members of the class to be the most important factor. Here, the applicants relied on a $20 million directors and officers liability insurance policy to meet the claim. That

policy was a ‘wasting asset’ during the course of the litigation, in the sense that it was being depleted by the expenditure of defence costs by a number of large commercial firms and independently briefed counsel and also by competing claims made on the policy from other creditors, such as the ATO and company liquidator. In this regard, Lee J also considered:

(a) the likelihood of a contested

trial in the matter involving issues of complexity requiring a large amount of lay and expert evidence. For example, conflicting evidence with regard to the proper accounting treatment of prospective mineral resources;

(b) the state of interlocutory pro-

cess (or lack thereof), and the likelihood of final curial resolution, including any appeals, being some time away; and

agency of the applicant, in only dealing with claims within the scope of the class action. In this case, the releases in the deed of release and settlement deed had been drafted extremely broadly and his Honour made clear that the orders would resolve only the claims of group members, being the claims the subject of the class action and nothing more.

Concluding comments The case reveals the Court’s frustrations with cases brought under the class action regime in which litigation funding commissions and legal fees are likely to be, or in fact are, disproportionate to the return to class members. The reasons suggest that the Federal Court already takes a dim view of such cases, and in future, may take the step of substantially reducing the legal costs payable to the lawyers who commence such actions. Alyce Lynch Lawyer, Clayton Utz Young Lawyers Committee Member

Ultimately, his Honour made an order that the settlement was fair and reasonable and in the interests of group members. However, he also warned those contemplating class action litigation where “the game is not worth the candle”, stating that “it would be unwise for those acting for applicants to assume that the Court will not intervene and substantially reduce legal costs.” In issuing this stern warning, Lee J also reminded would-be class action applicants that a variety of mechanisms exist for prospective applicants to obtain early information about likely recovery prior to, or at the commencement of, litigation and that sensitivity to the proportionality of legal costs is a critical component in ensuring compliance with the overarching purpose of the Federal class action regime.

A warning about overly broad release clauses Later, Lee J issued a second warning with regard to settlement deeds which fail to recognise the limited nature of the

Young Lawyers Case Notes Compiled by volunteers coordinated by the Law Society's Young Lawyers Committee

Faruqi v Latham Editor’s note: While this article is a Young Lawyers Case Note, it might just as easily have qualified as a 'Quirky Case'! This is a decision of Justice Wigney in the Federal Court of Australia delivered on 30 August 2018 concerning interlocutory applications by parties to a defamation action each seeking orders striking out aspects of the other’s pleading pursuant to rule 16.21 of the Federal Court Rules 2011 (Cth) (Rules). The substantive proceedings were commenced by Sydney based selfstyled “public commentator” Osman Faruqi alleging he had been defamed by a video posted on-line on 2 August 2017 by a similarly self-styled “public commentator”, namely Mark Latham the former leader of the Federal parliamentary Labor party. Mr Faruqi’s statement of claim comprised just over two pages. It alleged Mr Latham’s video entitled “The Rise of Anti-White Racism in Australia and Terrorist Plots in Australia” conveyed three defamatory imputations being: 1. that Mr Faruqi knowingly assists terrorists who want to kill Australians; 2. that Mr Faruqi condones the murder of innocent people by Islamic terrorists; and 3. that Mr Faruqi encourages and facilitates terrorism [4]. Mr Latham’s application sought to strike out aspects of Mr Faruqi’s statement of claim on the basis that the impugned video was incapable of conveying the defamatory imputations as alleged. His Honour dismissed Mr Latham’s application to strike out Mr Faruqi’s defence on the basis that the impugned video was arguably capable of conveying the alleged imputations and in any event the matter was best determined after full argument at trial [23] – [24]. The remainder of Mr Latham’s application was dealt with orally at hearing or otherwise dismissed by his Honour as a “pleader’s quibble” [27]. Mr Faruqi’s application sought to strike out large swathes of Mr Latham’s 40 | BRIEF DECEMBER 2018

defence on the basis that it variously “contained scandalous, frivolous or vexatious material, or were evasive or ambiguous, or were likely to cause prejudice, embarrassment or delay in the proceeding, or failed to disclose a reasonable defence appropriate to the nature of the pleading or were otherwise an abuse of the process of the Court” [8].

The ambit of Mr Latham’s “central hypothesis” caused his Honour to ponder at the commencement of his reasons about what the martyrdom of Christians in Roman antiquity between the respective reigns of Emperors Nero and Constantine the Great “have to do with a defamation action commenced in Australia in 2017?” [1].

Mr Latham’s defence occupied some 76 pages divided into 12 parts which in turn incorporated 9 schedules including a dictionary of words and expressions used within, what his Honour describes as, an “extraordinary document” [32]. The defence purported to avail itself to many, if not all, the positive defences to an action for defamation available under both the Defamation Act 2005 (NSW) and at common law [5].

With respect to Mr Latham’s “central hypothesis”, his Honour expressed particular concern about the manner in which Mr Latham would proceed to prove the “phenomenon” articulated in his “central hypothesis” if Mr Faruqi denied its existence [107] and the inevitable disputation between people about causes and characterisation of the historical events identified as evidencing the “phenomenon” [106].

Much of Mr Latham’s defence was reliant upon an acceptance of a “central hypothesis” or “phenomenon” [44]. In summation, Mr Latham’s “central hypothesis” was that the racial vilification of a particular ethnic, religious or cultural group is causally connected to the perpetration of violence against members of that particular ethnic, religious or cultural group.

Mr Latham sought to substantiate his allegations concerning his “central hypothesis” by reference to 164 tweets posted by Mr Faruqi on his Twitter account between 16 January 2012 and 22 November 2017 contained with Schedule II to his defence [41].

Thus, the fundamental premise of Mr Latham’s defence was that Mr Faruqi is allegedly an “anti-white racist” who incites violence against “white people”. Mr Latham’s defences of justification, contextual truth, qualified privilege, honest opinion and fair comment were dependent upon an acceptance of the “central hypothesis” [51] & [85]. To support his “central hypothesis”, Mr Latham relied upon Schedule III of his defence entitled “Historical examples of racial vilification promoting genocide” which contained what his Honour described as “absurdly brief summaries of complex historical events” [105]. Examples of the historical events relied upon included: (a) the persecution of Christians by Roman Emperors Nero and Constantine the Great; (b) racial segregation in apartheid South Africa; and (c) the persecution of Catholics in Elizabethan England.

For example, Mr Latham relied upon a tweet made by Mr Faruqi critical of “middle aged white men who graduated from the University of Sydney” as substantiating his allegation of Mr Faruqi being a proponent of “anti-white racism” [135]. Ultimately, Justice Wigney ordered the defence to be struck out in its entirety which was perhaps unsurprising given the overarching case management objectives espoused in section 37M of the Federal Court Act 1974 (Cth) (Act) and the express requirements in rule 16.02 of the Rules which includes a requirement that pleadings be as brief as the nature of the case permits. In so striking out the defence, Justice Wigney held that much of the material relied upon in support of Mr Latham’s “central hypothesis” was “inappropriate commentary, history, narrative material, or material of such a general evidentiary nature that Mr Faruqi could not reasonably be expected to respond or plead to it” [104]. Jack Carroll Solicitor, Park Legal Solutions Young Lawyers Committee Member

2019 Council The Law Society's Council for 2019 is listed below, following the election which closed on 21 November 2018. Thank you to all members who voted and to everyone who nominated for a position on the Council. Council Executive Members

Greg McIntyre SC President

Nicholas van Hattem Senior Vice President

Rebecca Lee Junior Vice President & Treasurer

Hayley Cormann Immediate Past President

Barrister, John Toohey Chambers Council Term Expires: 12/2019

Barrister, Francis Burt Chambers Council Term Expires: 12/2019

Senior Associate, Clayton Utz Council Term Expires: 12/2019

Council Ordinary, Junior and Country Members

Nathan Ebbs Ordinary Member

Ante Golem Ordinary Member

Emma Griffiths Ordinary Member

Karina Hafford Ordinary Member

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The Tale of the Undergraduate Editor By John McKechnie, QC

The passing of the Hon John Wickham, QC in October 2018 brought to mind one of his early judgments, part of which is worth repeating for its lyricism, if not perhaps its clarity. To set the tale, we go back nearly 50 years to the leafy campus of the University of Western Australia and its rebellious undergraduates who, thinking they were the first generation to discover sex, published a magazine called Pelican.

school and with the standard of education (in my experience of no particularly high order) required to enable them to matriculate.

In 1969, the theme for the September issue was censorship, specifically film censorship.

Sir John Lavan, as he later became, noted the vast gulf between what is vulgar and what is obscene, fortunately for the editor, because Sir John observed.

The editor was prosecuted and convicted of publishing an obscene paper and he appealed to the full court.

“If one looks for vulgarity and bad taste he would have no difficulty in finding excellent examples of it in the papers”.

The majority, Virtue SPJ (Sir John) and Lavan J (Sir John) dismissed the appeal. Wickham J (John) dissented and would have allowed the appeal. (The ‘J’ is short for ‘Justice’ not as in this case ‘John’.)

Wickham John approached the issue by a metaphysical meditation into the meaning of words:

Although he did not achieve the knighthood usual for senior puisne judges, the editor of the law reports made up for it somewhat by referring to him throughout the judgment as Wickham CJ. The full court described the contents of the particular issue of Pelican in fairly graphic detail. Mindful of the fate of the Pelican editor, Brief has decided it would be wise to omit the details, save to say that in this day and age, what was regarded as obscene in 1970 would likely raise no eyebrows in 2020. Sir John Virtue seems to have had a poor opinion of undergraduates: I am quite unable to agree with the submission that the educational background of the university student, his standard of intelligence or the nature of the work performed by him at the University renders him any less subject to the corrupting influence of pornography than any other of the members of the community within his age group. It is a fair assumption on the figures given by the statistician that most of the students between 16 and 18 (that is nearly 2000) would be first-year students fresh from

42 | BRIEF DECEMBER 2018

The main question is whether the learned magistrate correctly directed himself as to the application of the word “obscene” to the Pelican Paper which question invites an inquiry as to the meaning of the word and which in turn is necessarily preceded by an inquiry as to whether it means anything. Since the work of the Logical Positivists of the Vienna Circle in the second quarter of this century as further refined by Analysts such as Professor Gilbert Ryle (The Concept of Mind) and Professor A J Ayer, Wykeham Professor of Logic at the University of Oxford (Language, Truth and Logic), to name but two, together with the parallel work of Ogden and Richards at Cambridge (The Meaning of Meaning), it seems fruitless to embark on a Platonic monologue in search of the essential nature of obscenity itself, “subsisting of itself and by itself in eternal oneness” on the summit of the heavenly vault in the region of the abode of “real existence, colourless, formless and intangible, visible only to the intelligence which sits at the helm of the soul”: The Symposium, St III, p 212, Joyce; Phaedrus, St III, p 247, Wright. Nevertheless for reasons which will appear

the word itself requires some attention. Attempts at synthetic definition of the noun have always failed and have resulted not in information about its referent but only in an analytic statement about the word itself by the supply of full or partial synonyms. This is to make no intellectual advance and where the synonym is partial, involves the danger of a shift of ground. The intractability of the question, “What does the word mean?” is because it does not mean anything, in the sense that it symbolizes something. It has no referent, and no denotation. It is not a “thing” word. In so far as the adjective is descriptive, it does not describe a thing. The statement, “This is an obscene paper” is a statement of a quite different sort than “This is a daily paper”. The second statement expresses an empirically verifiable fact and as such the statement may be true or false, depending upon whether it corresponds with the fact. The first statement does not express a verifiable fact and describes not the paper but what the speaker feels about it. It expresses either an evocative attitude of the speaker or an attempted evaluation of the paper by the speaker, the latter being often, perhaps to a degree always, a mixture of both. The word, therefore, can be both ambiguous and vague and the first task is to discover what idea is intended to be communicated by the statute in its reference to an “obscene paper”. The next task is to find out how to verify its truth as a predicate, that is, to identify what is to count as mattering and what is not, and the next is to consider the matter and decide. The last task was for the magistrate, but the first two must be undertaken before this Court can conclude whether or not the magistrate did consider the matter and decide, in the sense that he properly directed himself as to the relevant considerations and had grounds for his decision. Wickham J prayed in aid (perhaps channelled) Charlotte Bronte. “A large class of readers, likewise, will suffer greatly from the introduction into the pages of this work of words printed with all their letters, which it has become the custom to represent by the initial and final letter only - a blank line filling the interval. I may as well say at once that, for this circumstance, it is out of my power to apologise; deeming it, myself, a rational plan to write words at full length. The practice of hinting by single letters those

expletives with which profane and violent people are wont to garnish their discourse, strikes me as a proceeding which, however well meant, is weak and futile. I cannot tell what good it does - what feeling it spares what horror it conceals.” The date 1850, the author the gentle Charlotte Bronte, the occasion her editorial to her dying sister’s immortal work Wuthering Heights. The words referred to were it seems - damn, damned, damnable and hell, but unless my edition (that with Mark Schorer’s introduction) has been expurgated, when Emily came to include in dialogue the words “bitch” and “bloody” she used a dash. The fleeting years glide by. Wickham J then explained how words are magical: Some words have a quality which is neither that of an attitude nor of value, but are what an anthropologist might call magical. Some of the passages marked by the prosecution for special attention in this issue of the Pelican contain one or more of such words. “The taboo on ‘obscene’ words gives us a clue to our weakness for magic in words. We tend to regard those words as magical which refer to things that have a great emotional appeal to us, or that are regarded as private and sacred in some special ways. Hence, most unmentionable words are either religious or sexual… Thus we speak, in a rather halfhearted way of which Othello would probably have disapproved, of a man’s ‘embracing’ or (in progressive circles) ‘sleeping with’ a woman but we must not use other more straightforward words with the same meaning. The fact that the meaning is the same in both cases shows clearly that it is the supposed magical content in the taboo-words, not their meaning, which makes them taboo.” See the slim monograph by Mr John Wilson of The King’s School, Canterbury, Language and the Pursuit of Truth, p 33. The fact that words like “magical” and “taboo” can themselves take on “attitude” qualities further reinforces this point. This is not to say that such words should not be prescribed by the law, rather the contrary, but it does help to make clear why the question of proscription arises, and to draw attention to the relevance of whether the impugned words are beginning to lose or have lost in contemporary surroundings their taboo

qualities. Regard may also be had to changing attitudes in ethical standards. As mentioned in The Adelaide Law Review, vol 3, at p 401, the post-war generation might more vividly than before see not sexual erotica or scatology as offensive, but war itself, injustice, poverty, racial exploitation, and political and economic corruption.

It might be thought that Sir John Virtue was not hugely impressed by the highly intellectual approach taken by Wickham J. Now of course, under the terms of the statute, the task of determining whether a publication is or is not obscene is entrusted to a “Resident or Police Magistrate in Petty Sessions”. In view of this it can hardly be concluded that any esoteric or philosophical approach should be required of him in coming to a decision. His task is to determine in a robust and commonsense way and as a jury would, whether the publication complained of, considered as a whole, comes within the connotation of a commonly-used English word. It is not for any other tribunal to substitute its opinion of the publication unless the appellate tribunal finds that the magistrate could not reasonably have found as he did.

Next, the judge considered that trusty standby of the common law, the reasonable man, the man on the Clapham Omnibus, on the Prospector to Kalgoorlie, the man who takes the magazines home and in the evening pushes the lawn mower in his shirt sleeves. In what way and in what respects must he be average? This depends on the nature of the subject-matter in issue, and as the subjectmatter here has to do with censorship as exemplified by reference mainly to sexual matters then the man will be one with average attitudes to sexual matters in the context of a discussion about censorship with reference to those matters. He will not be a man given to thoughtless emotional reaction, but, on the other hand, he will not be one given to pedantic analysis, and in the relevant respects will be neither conservative nor radical, intelligent nor stupid, naïve nor cynical, prim nor libertine, imaginative nor dull, and in short whatever extremes may be mentioned he will be neither one side of the line nor the other, but right on it. This is a difficult concept to grasp and is made no easier by the fact that half the time the man will turn out to be a woman, but the person can be summed up by the word “moderate”. There is one respect, however, in which he will have an advantage and that is that he will be a man who has had drawn to his attention the relevant considerations for evaluative judgment as if he were a one-man jury, and in that respect he will not only be a reasonable man but he will be a reasonable man bringing reason to bear on the matter in hand, and he will apply with more or less weight all the relevant circumstances. While the fear remains that Alice did more with the Lizard, this then is the method of verification of the term “obscene paper” and is, therefore, the “meaning” of the word “obscene” as used in the statute. In all, after one of the more interesting reasons for judgment to be found in the law reports, Wickham J held that the editor of Pelican was not guilty of publishing an obscene paper.

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And so the tale of the undergraduate editor faded into time. What became of the players in this little drama? John Virtue, John Lavan, Ian (Scottish for John) Temby and Michael (John) Murray were all Presidents of the Law Society. John Wickham was the final member of the bench to pass on, at the venerable age of 99, after years of faithful service to the law and a long and happy retirement. The offending editor became a respected solicitor and a Law Society committee member. He maintained a busy and successful practice. His counsel, Ian Temby, became successively a Queen's Counsel, first Commonwealth DPP, first ICAC (NSW) Commissioner and appointed to the Order of Australia. The Respondent's counsel, Michael Murray became successively a Queen's Counsel, Crown Counsel, Supreme Court Judge, Parliamentary Inspector and Member of the Order of Australia. Pelican, the second oldest university paper in Australia, continues to this day. (Adapted from Mackinlay v Wiley [1971] WAR 3) NOTES: 1.

Mackinlay v Wiley [1971] WAR 3, 9-10.

Ibid 21-22.

Ibid 24.

Ibid 24-25.

Ibid 25-26.

Ibid 9.

Newcastle, United Kingdom

Ex Juris: Travel Tales from the Legal Profession Newcastle

Australians are great travellers and lawyers are no different. Each month a reader of Brief tells us about their favourite travel destination.

When travelling to England, Newcastle is probably not at the forefront of places to visit. But there are few other places protected by an angel – The Angel of the North, a vast steel sculpture the size of a jumbo jet. Once a northern city enriched by coal and shipbuilding, Newcastle, like so many others, has fallen on hard times and is reinventing itself – in unusual ways. It is apparently the premier city for stag and hen parties. This lawyer can believe it. Walking round the city centre on an overcast Saturday, we saw 13 different groups. How to tell? They wear t-shirts and costumes and tend to get a little untidy about 3 o'clock (am or pm). Like many places not on the tourist trail and perhaps because of that, Newcastle has a lot to offer. The riverbank, once festooned with gantries and warehouses, is now a pleasant walk with the Gateshead Millennium Bridge, a curious swing bridge, the centrepiece. Speaking of bridges, the forerunner to the Sydney Harbour Bridge is here too.

The Newcastle United football ground unusually perhaps is in the centre of the city so passers-by on the street can listen to the crowd singing the ‘Blaydon Races’. Fun fact, Newcastle Brown Ale is no longer made in Newcastle. Culture lovers are attracted to the Baltic Centre for Contemporary Art, a superbly repurposed five storey flour mill. The Gateshead, a Norman Foster-designed concert venue is strikingly impressive. Using Newcastle as a base, it is easy to reach Hadrian's Wall (and to walk it if you are fit) and well-presented Roman ruins. For industrial history buffs, the depressing town of Jarrow is nearby. Whether you take children or not, you will enjoy the Beamish Museum, which is a living museum covering many acres.

Of course, being lawyers, you will take a selfie in the 19th century solicitor's office. How predictable. The coast is in easy reach with many seaside towns both historic and holiday – while a drive further north takes one to the Farne Islands, chief of which is Lindisfarne. Lawyers travel throughout the world for business and pleasure. When on business, there is little time for sightseeing. When on pleasure, cities like Newcastle are unlikely to rate highly. This is a pity as there are many hidden gems that repay attention. Newcastle is one of them. A final word of warning. Be prepared to be baffled by the Geordie accent, and be prepared to be called "pet" a lot.

Tell us about your favourite (or not so favourite) destinations and why you travel there. Please send your contributions to brief@lawsocietywa.asn.au 45

Law Council Update

Crossbench bill and passed motion brings corruption watchdog closer, Government must join the table

Law Council welcomes reports of children leaving Nauru, urges Government to keep families together

The Private Members’ Bill introduced to establish a National Integrity Commission – and a Greens motion which passed – have been applauded as extremely positive steps by the Law Council, which has urged the Government to get onboard with the process.

The Australian legal profession is cautiously welcoming media reports that all asylum seeker children will be removed from Nauru by the end of the year.

The Law Council strongly supports the establishment of a National Integrity Commission to combat corruption at the federal level. Law Council of Australia President, Morry Bailes, said it was important that momentum is maintained, but that proper process is followed to ensure Parliament gets the model right. "We applaud the work of Cathy McGowan and other crossbench MPs in introducing legislation and driving a successful vote in Parliament,” Mr Bailes said. “It is looking ever more likely that the establishment of this crucial federal watchdog is a matter of ‘when’ not ‘if’. It is absolutely time that the Government joins the table. “We hope comments by the AttorneyGeneral mean the Government is preparing to engage. "The introduced Bill is an important addition to the debate. It will require careful scrutiny to ensure it strikes the appropriate balance between addressing corruption and protecting fundamental rights and freedoms. "These include important rights around protecting legal professional privilege and the exercise of coercive powers,” Mr Bailes said. Mr Bailes said that corruption is a serious global phenomenon that undermines democratic institutions, jeopardises economic development, and threatens the stability and security of governments. "There is a need for addressing federal corruption in Australia. While Australia is generally regarded in a positive light when it comes to corruption, there is still room for improvement,” Mr Bailes said. "We look forward to continuing to work with the crossbench and the Australian Parliament to get the model right and help make a National Integrity Commission a reality.

46 | BRIEF DECEMBER 2018

Law Council of Australia President, Morry Bailes, said that if the reports were correct it was very positive news, but added that the Australian Government must ensure that families are relocated together. “Reports, including comments by the former Attorney-General George Brandis, that all asylum seeker children on Nauru will be relocated to Australia by the end of the year is certainly welcome, if long overdue,” Mr Bailes said. “As part of this process, we urge the Government to move the children with their families, to minimise the risk of further dislocation and trauma. “The legal profession has been voicing its concerns alongside those in the medical profession, and the wider Australian community, over the welfare of refugee and asylum seeker children held on Nauru. “Removing asylum seeker children from Nauru is not just medically necessary, it is also consistent with Australia’s obligations under domestic and international law. “The United Nations Convention on the Rights of the Child requires that in all actions concerning children, the best interests of the child be the primary consideration. Keeping children with their families is central to that. “Indefinite detention of children for the purpose of determining their immigration status will never comply with this Convention. “It now appears that the Australian Government is finally acting on its responsibility for the health and safety of those asylum seeker children and relocating them. “The next step is to develop a long term, durable response to irregular migration and solutions for adult refugees and asylum seekers who are currently in offshore detention conditions in line with Australia’s international obligations,” Mr Bailes said. Mr Bailes said the Law Council’s Asylum

Seeker Policy and Regional Processing Policy sets out Australia’s obligations regarding the detention of refugees and asylum seekers, including children, and promotes policies that have the goal of ending long-term detention for those seeking asylum.

2018 Young Lawyer Award honours Tamsin Webster for her outstanding pro bono work 32-year-old Melbourne lawyer Tamsin Webster has won the 2018 Australian Young Lawyer Award for her continuous and outstanding contribution to the legal profession and the community through pro bono work. Ms Webster joined Maddocks as a graduate in 2011 and immediately immersed herself in the pro bono and volunteering opportunities offered by the firm. She is currently a Senior Associate in the Employment, Safety & People team. From 2012, Ms Webster has been involved in an impressive range of pro bono matters, including running a number of judicial review cases for asylum seeker clients in the Federal Circuit Court and Federal Court. She has volunteered at the Asylum Seeker Resource Centre, coordinated the Refugee Legal program at Maddocks, and made a significant contribution to the work of the Refugee and Immigration Legal Centre. “Tamsin's desire to apply her considerable skills to benefit those who most need them is clear from her impressive pro bono record,” said Law Council of Australia President Morry Bailes. “Her extensive pro bono efforts are made all the more impressive through the fact that she has simultaneously been running a full-time practice in Maddocks’ Employment, Safety and People team. “Those who have had the benefit of her efforts speak highly of her and with genuine affection. “The judging panel was also impressed by the way she has played a pivotal mentoring and leadership role in the Maddocks pro bono program. “She has organised training for young lawyers, and represented her firm in its relationship with Refugee Legal and Justice Connect. We understand Tamsin’s enthusiasm for pro bono work is infectious and she is a wonderful mentor.

Dr ver's Dog Send your comments to the Dog via brief@lawsocietywa.asn.au

In the course of the Ceremonial Welcome for the Hon Peter Quinlan, Chief Justice of WA (Brief Vol 45 No 8 September 2018), His Honour alluded to the comments of Chief Justice Warren Burger: A sense of confidence in the courts is essential to maintain the fabric of ordered liberty for a free people, and three things could destroy that confidence and do incalculable damage to society: that people come to believe that inefficiency and delay will drain even a just judgment of its value… In connection with this, your Dog was interested to read an edited version of an address by the Hon Dyson Heydon, former justice of the High Court, published in The Weekend Australian 29-30 September 2018. His Honour commented on two Federal Court matters. One is a Federal Circuit Court judge who, as at 9 September 2018, had reserved judgement in two family law judgments for more than four years. The other, a judge in the Family Court, had reserved a judgment for more than four years, and another for more than three years. The paper compares the work of 12 judges in the Commercial Court and 17 judges in the Chancery Division in London, with the work of the Supreme Court of NSW, which in 2017 had 42 judges sitting in the trial division, and the Federal Court of Australia, which had 42 judges sitting in trials. The article examines the interval between hearings and judgments, excluding judgments delivered in six days or less, on the basis that those relate to short procedural applications which should be disposed of at the time, and which usually are. The analysis was organised around five time periods, details of which follow: 7 to 29 days Supreme Court of NSW English Commercial Court English Chancery Division Federal Court of Australia

55% 50% 44% 35%

7 to 365 days English Commercial Court English Chancery Division Supreme Court of NSW Federal Court of Australia

100% 100% 97.9% 96.3%

7 to 89 days English Commercial Court English Chancery Division Supreme Court of NSW Federal Court of Australia

85% 78% 78% 65%

More than 365 days English Commercial Court English Chancery Division Supreme Court of NSW Federal Court of Australia

Nil Nil 2.1% 3.7%

7 to 179 days Supreme Court of NSW English Commercial Court English Chancery Division Federal Court of Australia

97% 96% 95% 83%

The Supreme Court of NSW’s figures are affected by the fact one judge took 700 days in one matter, and in another 659 days. Another judge took 475 days. Seven judges (16%) in that court took more than a year to deliver judgment (in 13 cases). Fourteen judges (25%) of the Federal Court took more than a year to deliver 32 judgments. His Honour commented that the figures suggest that the Australian courts are slower than the English courts in dealing with matters which come before them. The Federal Court is the slowest of all. His Honour posed the following questions: Are English judges cleverer than Australian judges? Are they better educated? Are they better at managing cases? Are they

more decisive, more confident, surer of themselves, more able to make up their minds? Do they have a better understanding of the law? Do they prepare more in advance? Do they exercise better judgement in assessing what needs to be decided, and how to decide it? Do Australian judges too weakly permit the failures of the parties and their representatives to infect their own decision making? Do they fear being overturned on appeal so much that they spend too long writing elaborately for the appellate court? Do they pile on too many references to insignificant decisions, irrelevant doctrine and academic commentary, pursuing the illusory shimmering dream of writing a seminal judgment? Do they deliver ex tempore judgments too infrequently? Or are Australian judges just lazier? For different judges there will be different answers. His Honour concluded the address with the following remarks: Slow Australian judges must try to avoid corruption by a torpid shared culture of slackness, languor and drift. They must shun any belief that all judgments must be reserved. They must intensify the diligence with which they do their duty. If all other solutions fail, the only remedy may be the persistence, intensity, even savagery, of judicial professional and public criticism. Judges have shown themselves to possess exceptionally thin skins in the last respect. Sometimes real pain comes not from mere criticism but from the truth. But the truth may make judges free – to decide with speed. The rescue of members of the 'Wild Boars' soccer team in Thailand was one of those events which brings out the best in people. As Dr Richard Harris and his diving companion Dr Craig Challen have described, they undertook a rescue in circumstances where the probable outcome and the risks involved were such that severe injury, drowning or death would follow. The only mitigating effect was that if the boys had drowned in the course of the diving rescue operation, they were anaesthetised. By the time the members of the team were found, they had been marooned on a rock in the dark in flood waters without food or light for ten days. If they had not been removed from the caves, they would have had to remain there for four months or more before the flood waters subsided. The rescue by diving to bring them out was the only option. What was not apparent from earlier accounts was that the dive to safety involved seven or eight “sumps”, effectively U-bends. Every child was anaesthetised at multiple points along the dive by other members of the rescue team, including a fireman, a rope access worker and “two IT guys”. They were taught how to administer the unnamed anaesthetic drug using a plastic bottle. Small wonder then that Dr Harris and Dr Challen asked for an indemnity before commencing the dive operation, and reportedly were granted diplomatic immunity in case any one or more of the children was injured or died. Your Dog sometimes wonders whether and how Australian officials would have reacted in similar circumstances? One would hope that the same processes and immunities would have been granted and implemented. Your Dog

FAMILY LAW CASE NOTES Robert Glade-Wright Former barrister and accredited family law specialist

Property – Decision that an application filed at 7.40 pm be treated as filed that day contrary to FLR 24.05(2) set aside In Frost (Deceased) & Whooten [2018] FamCAFC 177 (17 September 2018) the late husband’s legal personal representatives appealed against Cronin J’s decision to treat the wife’s property application filed electronically at 7.40 pm (where at 11 pm the husband died in hospital from injuries sustained the previous day) as filed on that day, not after his death pursuant to FLR 24.05(2) which provides that an electronic filing after 4.30 pm ACT time is taken to have been filed the next day. The Full Court (Alstergren DCJ, Aldridge & Kent JJ) said (at [8]): “His Honour considered that this order should be made because otherwise the strict application of the Rules would deny the respondent the right to litigate, which would be an injustice… However, this appeal is primarily concerned with whether or not the Court had jurisdiction to make any order at all and not whether the circumstances worked an injustice upon her.”

for their child K under a final parenting order made by consent when K was 11. When asked to sign an application for K’s selection in an overseas student exchange program in which her school participated the father refused. He also failed to attend family dispute resolution which the mother arranged as required by the order. The mother’s application for an urgent interim order that the father sign the form, failing which she be granted sole parental responsibility for doing so (filed as part of an initiating application for a final order in the same terms) came before Judge Coates on the eve of selection interviews. The Court agreed with the father’s case that the Court lacked jurisdiction and dismissed the application, whereupon the mother appealed (the appeal hearing coming on before the extended deadline for interviews). The Full Court (Strickland, Murphy & Kent JJ) said (from [33]): “(…) The mother seeks to vary an aspect of the… order. The Court has… jurisdiction and power to determine that question if the parties cannot agree (…)

Having agreed that the application properly invoked a matrimonial cause for property orders, the Full Court allowed the appeal, saying (at [55]):

[35] (…) [W]hen parents cannot or will not do that which they should… the Court’s powers are not excluded but, rather, enlivened, if its jurisdiction is properly invoked.

“… [B]y the operation of r 24.05(2) the Initiating Application was taken to be filed on the day after the deceased died (notwithstanding the automatically issued note placed on it to the effect it was filed the day before). Thus… the Court had no jurisdiction to proceed as there were then no proceedings between the parties to the marriage as one had died the day before. (…)

[36] (…) [A]lthough finality of litigation is desirable… final orders made in relation to… children are not final in the same sense as orders made, for example, relating to property settlement. …

The Court added ([73]) that it could not “use the Rules to extend or vary time so as to acquire that jurisdiction” as “[t]o do so would be to alter the parties’ substantive rights… create a cause of action where none then existed [and] subject the deceased’s estate to proceedings under s 79 notwithstanding that the period in which those proceedings could be commenced… had expired”.

[37] We are not persuaded that the situation here is analogous to a case invoking the application of the ‘rule in Rice & Asplund’. … There is here no attempt to reagitate issues previously agitated or issues addressed and settled by the consent orders… The… application involves a new question relating to an aspect of parental responsibility… that was not… in the contemplation of the parties at the time of the original consent orders.” The appeal was allowed with costs fixed at $11,192 and an order made that the mother have sole parental responsibility for the enrolment.

Children – After a final parenting order an issue not previously dealt with does not involve the rule in Rice & Asplund

Divorce – Forum non conveniens – Complete relief was available in India (where wife lived) but not in Australia

In Cameron & Brook [2018] FamCAFC 175 (13 September 2018) the parties had equal shared parental responsibility

In Talwar & Sarai [2018] FamCAFC 152 (10 August 2018) the Full Court (Ainslie-Wallace, Ryan & Aldridge JJ) allowed the wife’s

48 | BRIEF DECEMBER 2018

appeal from a divorce order made by Judge Tonkin. Both Indian by birth, the parties met in India in February 2013 when the husband (an Australian citizen) visited there and they arranged to be married. He returned to India in August 2013 for the wedding; returned to Australia in September 2013, applying for a wife’s partner visa but withdrawing his sponsorship for that visa in December 2013, alleging that the parties had separated. The wife brought proceedings in India under the Indian Penal Code, the Protection of Women from Domestic Violence Act and the Dowry Prohibition Act. The husband applied for divorce in the FCC on 10 March 2017, the wife on 10 April 2017 applying in the Family Court of India for an injunction restraining the husband from continuing his divorce application. Absent a Response by the wife a divorce order was made by a registrar on 12 May 2017. On 27 May 2017 the Family Court of India made the injunction. Upon a review sought by the wife the divorce application was reheard by Judge Tonkin who held that Australia was not a clearly inappropriate forum and granted the divorce order. After citing High Court authority ([19]] holding that “[i]f the court is satisfied that Australia is a clearly inappropriate forum in which to determine the proceedings the court must stay them” the Full Court remitted the case, saying ([97]): “ … [T]he exercise of the… judge’s discretion miscarried in the following ways: • on the face of s 13 of the Hindu Marriage Act a divorce was available in India … ; • complete relief was therefore available to the parties in the Indian proceedings; • undue emphasis was placed on the husband’s ‘prima facie right’ to proceed with his proceedings in Australia; • the injunction against the husband continuing with his divorce application was ignored; and • the … judge did not have proper regard to the effect of her orders upon the wife, who would not be divorced in India.” Robert Glade-Wright is the founder, principal author and editor of The Family Law Book, a one-volume, loose-leaf and online subscription service. thefamilylawbook.com.au. He is assisted by accredited family law specialist Craig Nicol.

Professional Announcements Career moves and changes in the profession

Maurice Blackburn Lawyers

Greenstone Legal Greenstone Legalâ&#x20AC;&#x2122;s West Perth office will relocate to Level 1, 32 Delhi Street, West Perth effective 3 December 2018. All other contact details remain unchanged.

MinterEllison Leading Corporate & Resources Partner joins MinterEllison in Perth MinterEllison has announced the appointment of Shaun McRobert, a leading Corporate & Resources lawyer, as a Partner in its Capital Markets and Corporate division - effective 1 November 2018.

Donna Percy & Co is delighted to announce that Phil Gleeson will be joining the practice as a partner commencing in 2019. Phil has a breadth of experience representing Western Australians injured at work, on roads and as a result of medical negligence. With 20 yearsâ&#x20AC;&#x2122; experience as a litigator and recent responsibility as a State Manager for a National Firm, Phil is a welcome addition to the practice.

Phil Gleeson

Paterson & Dowding Paterson & Dowding are pleased to announce the following appointments. Shaun McRobert

Mr McRobert, who will be based in Perth, has a significant track record advising on major foreign investment transactions and joins MinterEllison from King & Wood Mallesons.

Meredith Hunter as Managing Associate, Marnie Parkinson as Senior Associate, Caroline Teo as Senior Associate, Aleta Shilton as Managing Associate and Mary Roubos-Altrichter as Senior Associate.

New Members New members joining the Law Society (November 2018)

Ordinary Membership

Associate Membership

Miss Caris Tysoe Holden Barlow Family Lawyers

Mr Nicholas Henneberry Clifford Chance (Sydney) Miss Amy Hyde Edith Cowan University

Restricted Practitioner Miss Rebecca Gilbert Feinauer Commercial Lawyers Ms Sheryl Smith Pacer Legal - Perth

50 | BRIEF DECEMBER 2018

Mrs Carolina Latumaliemna Mr Benjamin Moore Price Sierakowski Corporate Mr Nigel Richards HHG Legal Group (ASPL)

Mrs Clair Sullivan Central Queensland University Miss Nathalia Tjandra The University of Western Australia - Law Faculty

Classifieds Low-cost serviced offices for lawyers in the court precinct If you are a court lawyer looking for the convenience of an affordable office in the proximity of the Federal, Supreme or District Courts, then we have exactly what you are looking for. We have a number of offices which are furnished or unfurnished, depending upon your requirements. Boardroom and kitchen facilities are provided free of charge. Our reception and secretarial staff are highly professional and efficient, ensuring that you will have the necessary support to operate a successful practice. Our existing tenants are all lawyers who operate legal practices in diverse areas of law, so you will have the opportunity to work in a collegiate environment. You will have the advantage of working alongside successful lawyers who are experts in their areas of legal practice. You will also have the benefit of operating an independent legal practice, whilst at the same time enjoying the camaraderie of working in the proximity of like-minded professionals. Our facilities are available immediately and we are flexible as to your requirements of occupancy (monthly or yearly). Seize the opportunity and contact Lee now! 08 9221 8337 lee@nightstyle.com.au

SALE OF LEGAL PRACTICE

Missing Will

Any person holding or knowing the whereabouts of the last Will and Testament of the late GAVIN LEA CARTER formerly of Swan Street, Guildford WA 6055 Australia, latterly of Westisley Farm, Underberg, KwaZulu Natal, South Africa, deceased on 1 February 2017, please contact FourLion Legal Ground Fl, 12 St Georges Terrace, Perth WA – (08) 9335 6643 or lstrydom@fourlionlegal.com.au within 1 month of the date of publication of this advertisement quoting ref: 18868.

Any person holding or knowing the whereabouts of the last Will and Testament of the late Paul David Harrison formerly of 16 Adela Bend, Lakelands WA 6108 (D.O.B 25/03/1971), deceased on on 6 October 2018, please contact Ross Harrison on 0400 272 929 or email roharrison@csr.com.au within one month of the date of publication of this advertisement.

Missing Will

Eric Tan of Robertson Hayles Lawyers is the limited administrator of the estate of John Arthur Fowler, later of 9 Robinson Terrace, Daglish, born on 23 February 1939, who died on or before 24 November 2017. Anyone knowing the existence or whereabouts of the last Will made by John Arthur Fowler, please contact Eric Tan at: Robertson Hayles Lawyers PO BOX Z5403, Perth WA 6831 Tel: (08) 9325 1700 Email: etan@robertsonhayles.com

Eric Tan of Robertson Hayles Lawyers is the limited administrator of the estate of Phaik Choo Ong (Maria), late of 5/52 Royal Street, Tuart Hill, born on 16 August 1953, who died on 10 September 2017. Anyone knowing the existence or whereabouts of the last Will made by her, or information in relation to her assets or debts please contact Eric Tan at: Robertson Hayles Lawyers PO BOX Z5403, Perth WA 6831 Tel: (08) 9325 1700 Email: etan@robertsonhayles.com

(PERTH’S NORTHERN SUBURBS)

Missing Will

WIWO well established, fully equipped and very busy legal practice including extensive library, comprehensive precedent database with all associated electronic equipment (60% Family Law files, 40% various other areas of law including Criminal Law, Succession Law). Will sell for 50% of unbilled WIP (nil Goodwill). Aged Debtors can be included. Long or short term office lease negotiable. Please send expressions of interest to “the Accountant” at droneb44@hotmail.com

Any person who may have a copy of, or information concerning, the Will of MARIA ANN BROTHERSTON, who died on 29 November 2008 in the Nickol Bay Hospital in Karratha, WA, please contact John Ralph. It is likely the Will was made in 2008. Contact details: Dr John Ralph Ralph Legal Lawyers PO Box 1072 Fremantle WA 6959 Email: john@ralph.legal Mobile: 0417 845 255

BRIEF For advertising opportunities in Brief please contact:

Season’s Greetings

and a happy New Year

Madeleine McErlain Manager, Marketing and Communications T: (08) 9324 8650 E: advertising@lawsocietywa.asn.au

2019

Wishing you a joyous holiday season and a prosperous New Year, from everyone at the Law Society of Western Australia.

lawsocietywa.asn.au

Events Calendar

With thanks to our CPD partner

Stay up-to-date with the latest Law Society member events and CPD seminars

DECEMBER 2018 Membership Events Wednesday, 5 December End of Year Celebration The Westin, Perth

FEBRUARY 2019 CPD Seminars Friday, 15 February EOF: The Weinstein Effect: Just what is inappropriate behaviour? (Seminar and webinar) Monday, 18 February Tips for Writing Submissions (Seminar and webinar)

Tuesday, 19 February Alternative Fee Arrangements (Seminar and webinar) Thursday, 28 February Working with Email (Seminar and webinar)

MARCH 2019 CPD Seminars Tuesday, 5 March Costs: The Essentials (Seminar and webinar)

Friday, 15 March The Ides of March (Seminar and webinar)

Tuesday, 12 March The Art of Negotiation (Seminar only)

Wednesday, 20 March How to Brief Counsel (Seminar and Webinar)

For all CPD-related enquiries please contact cpd@lawsocietywa.asn.au or (08) 9324 8640. For all membership-related enquiries please contact membership@lawsocietywa.asn.au or (08) 9324 8692. For all upcoming events and further information please visit lawsocietywa.asn.au

52 | BRIEF DECEMBER 2018

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