Brief July 2018

VOLUME 45 | NUMBER 6 | JULY 2018

A View from the Bench Also inside Ceremonial Farewell for Justice Stephen Thackray Natural Justice in the Parliamentary Sphere Judicial advice applications under s92 of the Trustees Act

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Volume 45 | Number 6 | July 2018

CONTENTS

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ARTICLES 06

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A View from the Bench: Magistrates Courts in Western Australia: Part One – Navigating Conveyor-Belt Justice in the General Lists Ceremonial Farewell for Justice Stephen Thackray from the Appeal Division of the Family Court of Australia

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Ethics Column: Profession

by Lawyers

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)

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Trials and Tribulations

Advertising enquiries to Manager Marketing and Communications: Madeleine McErlain Tel: (08) 9324 8650 | Email: mmcerlain@lawsocietywa.asn.au

34

Judicial Advice Applications Under s92 of the Trustees Act

Communications and Media Officer: Andrew MacNiven

40

Insights from the Bench

Communications and Design Officer: Charles McDonald RRP $16.00 incl GST. Printed by Vanguard Press

Editor: Jason MacLaurin Editorial Committee: Gregory Boyle, Thomas Camp, Dr Rebecca Collins, The Hon John McKechnie QC, Fiona Poh, Dr Pat Saraceni, Robert Sceales, Verginia Serdev-Patterson, Eu-Min Teng

Natural Justice in the Parliamentary Sphere: Should Parliaments Retain the Power to Punish?

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

President: Hayley Cormann

02 President's Report 04 Editor's Opinion 39 Cartoon 46 Young Lawyers Case Notes 47 Ex Juris: Travel tales from the legal profession 48 Drover's Dog

50 Aunt Prudence Juris: Your one stop solution to problems after law school 51 Professional Announcements 52 New Members 52 Classifieds

Senior Vice President: Greg McIntyre SC Junior Vice President & Treasurer: Jocelyne Boujos Immediate Past President: Alain Musikanth Ordinary Members: Brahma Dharmananda SC, Elisabeth Edwards, Catherine Fletcher, Emma Griffiths, Karina Hafford, Eric Heenan, 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

53 Events Calendar

49 Law Council Update 01

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

Welcome to the July edition of Brief, which focuses attention on the courts, judiciary and related topics. There have been further judicial appointments and retirements recently, and it has been my privilege to represent our members and the profession at the various ceremonies.

There will be further occasions in the coming months, and on that note in particular, I pay tribute to the Hon Wayne Martin AC, who as members will be aware, retires this month as Chief Justice of Western Australia. Chief Justice Martin has given over a decade of service to the people of our State in this role, and remains a great friend and supporter of the Law Society. He is a highly valued Life Member and former President of the Society. Look out for a wide-ranging interview with Chief Justice Martin in the August edition of Brief.

I also congratulate the Hon Justice Jennifer Smith on her recent appointment to the Supreme Court of Western Australia.

Her Honour previously served as Senior Commissioner and Acting President of the Western Australian Industrial Relations Commission and has replaced the retiring Hon Justice John Chaney. I recently spoke at Justice Chaney’s farewell, and I again take the opportunity to thank him, also a former President of the Law Society, for his many years of service to our community, and for his support of the Society.

Renew Your Essential Membership The new Law Society membership year began on 1 July 2018. There has been no increase to membership prices this year, once again giving our members outstanding value for a wide range of services.

To add further value to your membership, the Law Society has introduced CPD Freedom, a new CPD offering available exclusively to members. For an additional annual fee of $600, Ordinary Members can access unlimited attendance at our live CPD seminars, plus a range of other benefits*. Restricted Practitioner and Community Legal Centre members can access CPD Freedom for just $300*.

02 | BRIEF JULY 2018

Visit lawsocietywa.asn.au/cpdfreedom or contact us on (08) 9324 8640 to find out more about what CPD Freedom can offer you.

In order to retain all of the benefits that come with your essential membership of the legal profession, please renew today, if you are yet to do so.

If you pay for your own membership, you can renew online 24 hours a day; simply login to members.lawsocietywa.asn.au and click ‘payment details’. Alternatively, an invoice will have been emailed to you, with options to pay by EFT, credit card or cheque.

In the meantime, I thank members for your continued loyalty to the Law Society. We are dedicated to supporting you throughout your career. With over 4,000 members as at the end of last month, the Law Society continues to grow, becoming ever more representative as the profession's "essential membership".

For all queries related to your membership please email membership@lawsocietywa. asn.au or call (08) 9324 8692.

Visit of the High Court of Australia to Perth On Monday, 18 June 2018, the Law Society was delighted to host a cocktail function to welcome to Perth the Hon Susan Kiefel AC, Chief Justice of Australia, and five of the Justices of the High Court of Australia.

The event was available exclusively to Law Society members, and more than 200 members attended and enjoyed canapés and refreshments at the impressive new Westin Perth hotel. The Justices moved freely throughout the event and spoke to as many attendees as possible. Barrister Simon Freitag SC offered the traditional toast to the Justices of the High Court and it was only fitting that the response on behalf of the High Court was provided by proud West Australian, the Hon Justice James Edelman. The Justices and attendees were also moved by a significant and meaningful Welcome to Country by Barry McGuire.

Thank you to our sponsors, The College of Law Western Australia, Curtin University, Edith Cowan University, Murdoch University, The University of Notre Dame

Australia, The University of Western Australia and The Westin Perth for their support for this event.

A full overview of the evening’s festivities, together with photographs, will be published in the August edition of Brief. For now, check out some of the images from the night on the Law Society’s Facebook page.

The Law Society looks forward to again welcoming the Justices of the High Court, when the Court next visits Perth!

Black Tie Gala Dinner Saturday, 4 August 2018, Crown Towers, Perth With the successful visit of the High Court now complete, attention moves swiftly to the major social event on the legal profession’s calendar this year, the Black Tie Gala Dinner. Co-hosted with the Western Australian Bar Association, the night is now just a few short weeks away, on Saturday, 4 August 2018.

The Ballroom at Crown Towers, Perth will be the venue for this unforgettable occasion, with the Attorney-General for Australia, the Hon Christian Porter MP being the evening’s keynote speaker.

Starting at 6.30pm, guests will enjoy predinner drinks, a five hour beverage package with French and Western Australian wines and a three course meal. The night will feature plenty of entertainment throughout, including one of Perth’s most sought-after bands, Hip Mo’ Toast, and the opportunity to contribute to a worthy cause by bidding on fabulous prizes through our charity silent auction. In particular, part proceeds raised will go to Anglicare WA’s ‘Street Connect’ programme, through the Chief Justice’s Law Week Youth Appeal Trust.

The Law Society has also negotiated a discounted accommodation rate for those that wish to stay on and experience the luxurious surrounds of Crown Towers.

The dinner will bring together the WA legal profession for a night of fun and celebration – please visit our website at lawsocietywa. asn.au/event/black-tie-gala-dinner to register your place, or book a table for you and your colleagues. I look forward to seeing you there! *Terms, conditions, fees and exclusions apply

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

This month’s feature article is part one of 'A View from the Bench' by Magistrate Deen Potter, which provides insight into the challenges of administrating general lists in the Magistrates Court, and practical advice for practitioners appearing before that Court.

Items in both this and next month’s Brief will be providing an insight into the judiciary in Western Australia.

2018 is a year of prominent welcomes to and farewells from the Bench. These occasions provide noteworthy observations, some serious and others more light hearted, upon the judiciary and the functions it performs.

This edition contains notable extracts from the welcome ceremonies for Justices Colvin and Banks-Smith of the Federal Court, Justices Derrick and Vaughan of the Supreme Court, as well as the farewell speech of Justice Thackray of the Family Court.

The farewell for Justice Chaney of the Supreme Court was held recently and of course the farewell for the Chief Justice of Western Australia, the Hon Wayne Martin AC will be held this month. His Honour's replacement has not, at the time of writing, been announced. Those events will, in addition to the upcoming welcome for Supreme Court Justice Jennifer Smith and the farewells for Justices Gilmour and Siopis of the Federal Court and welcomes for District Court Judges Vernon, Quail, Glancy, Gillan, Prior and Burrows earlier this year, be the subject of upcoming editions of Brief.

As to views from the Bench overseas, some insight into what is currently on the mind of US Supreme Court Chief Justice John Roberts can be gleaned from his recent speech at the graduation ceremony for his daughter’s high school, in which he warned graduates to “beware the robots” and expressed concern that “we will start thinking like machines”.

As Canadian academics, the authors were probably doubly assured that they would not ever have to appear before His Honour, which might have been somewhat uncomfortable. It seems they were aware of the possibility of offence being taken, as the paper commenced with: “The title of this article is not pejorative, but rather suggestive in asking readers to imagine the counterfactual” where Roberts CJ was discovered, after a life-threatening mishap, to be a robot.2 The paper is heavy going but fascinating – including quotes and analysis from Wittgenstein3 such as: “a person’s psychological states and their representational content are individuated in terms of their behaviour, history and social environment, irrespective of their internal states” [thus holding that] “behaviour in accordance with a rule is only rule following if the rule follower has a certain social and environmental history.” Readers are invited to apply AI to work out exactly what that means, and whether it may have been written by a robot.

Roberts CJ’s audience at the graduation ceremony may have been less surprised at being told to “beware the robots” than the audience to his address at his son’s graduation ceremony a few years before, the theme of which was “I wish you bad luck”.

That address was not as harsh as it sounds, and contained a beautiful twist: “From time to time in the years to come, I hope you will be treated unfairly, so that you will come to know the value of justice. I hope that you will suffer betrayal because that will teach you the importance of loyalty. I wish you bad luck, again, from time to time so that you will be conscious of the role of chance in life and understand that your success is not completely deserved and that the failure of others is not completely deserved either.”

The impact of Artificial Intelligence (AI) technology in the law is a subject familiar to readers of Brief. And, there has recently been some talk about the role AI could play in helping judges.

His Honour went on to note: “And when you lose, as you will from time to time, I hope every now and then, your opponent will gloat over your failure. It is a way for you to understand the importance of sportsmanship.” To anyone involved in the law, that experience is almost assured, rather than being a matter of mere hope.

Roberts CJ’s concerns might also have arisen from his alarm at a paper by University of Ottawa academics entitled 'John Roberts is a Robot'.1

Many American judges bear some unique pressures of office, because they are either elected or subject to “retention elections” after an initial term, or are subject to

04 | BRIEF JULY 2018

being grilled mercilessly by Senators in confirmation hearings.

July 2018 is in fact the 31st anniversary of a notoriously unsuccessful SCOTUS nomination, that of Ronald Reagan nominated conservative justice Robert Bork, which actually gave rise to a new verb used in popular culture.

The late Edward Kennedy launched an infamous attack on Robert Bork which started with the words “Robert Bork’s America is a land in which…” and then lay out a series of descriptions that could well have been the foundation for Margaret Atwood’s The Handmaid's Tale or any Mad Max film (though with less car chases).

Kennedy’s speech did not include reference to what happens to women in Ted Kennedy’s part of America, being not entirely land, called Chappaquiddick.4 In any event, the entire episode led to the minting of the term “Borking” which refers to a systematic attack (particularly of a candidate or public figure) especially in the media.

July 2018 is the 48th anniversary of not only the Chappaquiddick incident but also the Moon landing, the latter being regarded as either one of the greatest human achievements, or, by some, a conspiracy even greater than that which seems to have Australian soccer teams continually denied success in the World Cup due to divehappy European opponents.

If only there were a robot referee on hand.

NOTES: 1

By Ian Kerr and Carissima Mathen of the University of Ottawa, which was also presented at a symposium held by the University of Miami entitled 'We Robot'.

2

That’s an interesting phrase. I’m sure in terse domestic discourse, one would feel less offended if someone said “my comments are not intended to be pejorative. but rather suggestive in asking you to imagine the counterfactual in which you are not a lazy inconsiderate slob who doesn’t take the garbage out”.

3

With apologies to Wittgenstein fans, there are many who would not have an objection to a university course on Western Civilisation that omitted reference to Wittgenstein.

4

Which is an excellent film well worth a look. Also, the lead character of Kennedy was played by an Australian, Jason Clarke. The Editor can attest to how impressed the film buffs who attend Cinema Paradiso are by the mid-film exclamation: “Hey, I know him - that guy's been in Home and Away and Blue Heelers”.

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

SALARIED/EQUITY PARTNERSHIP OPPORTUNITIES PARTNER – CORPORATE/COMMERCIAL – National firm. A rapidly growing Australian firm and longterm client of KBE is seeking an experienced Partner to take over an existing Corporate/Commercial Practice. The firm has a strong reputation and has grown to become a leader in the Australian legal market, with a focus on advising public, large private, and highly respected SME businesses.

Inherit an existing client base of $500k to $700k+.

PARTNER – CORPORATE/EQUITY CAPITAL MARKETS – International firm. KBE is working exclusively with a key client to secure a Corporate Partner to inherit an established client base and team, with a strong focus on IPO’s and Equity Capital Markets. This international firm has experienced rapid and sustained growth with a highly collegiate Partnership group. The successful candidate will be a lateral hire Partner or quality SA/SC, who is keen to work closely with the firm’s Senior Partners to further build the fee base through leveraging your combined client networks and supervising all existing deal flow.

Senior Partners transitioning to retirement may find this role attractive, given the firm is willing to be flexible with regards to hours and expectations, for the right person.

PARTNERS – FAMILY LAW – Market leading teams.

We are currently seeking two Senior Family Lawyers to take on Partnership/leadership roles as part of our client firms’ growth and succession plans. You will enjoy mentoring junior lawyers and oversee file strategy for HNW clients across complex property and children’s matters. $250k transportable fee bases or established referral networks required.

PARTNER – TAX/TAX LITIGATION – International firm. A high profile international firm is seeking a leading Tax Partner to develop/lead the Tax Practice in Western Australia and replicate the firm’s success on the East Coast. You will bring an established contact network to the firm, with the ability to manage junior lawyers and rapidly build up a fee base from the firm’s existing client network.

PARTNER – WORKPLACE RELATIONS – National firm. Leadership role within a national WPR team to replace a retiring Partner as they transition to a Consultant role. Lead the strategic development of the practice and oversee a small team, advising listed and large private companies. Transportable fee base of $150k+ required.

Please contact Chris Bates to discuss the above positions, or for comprehensive advice on the Partnership/law firm M&A opportunities available throughout the Western Australian legal market.

2 YEARS’ PAE TO SENIOR ASSOCIATE/ SPECIAL COUNSEL BANKING & FINANCE LAWYERS – ASSOCIATES/ SENIOR ASSOCIATES – National and international firms. The successful applicants will join teams with extensive experience in all forms of debt/equity and hybrid funding structures, having advised on many landmark transactions

across the domestic, Asia Pacific and European markets. These particular teams have specialist experience in limited and non-recourse financings, both domestic and cross-border, in the resources and infrastructure sectors. We are interested in speaking with B&F Lawyers with 3-8+ years’ PAE from national/international firms. These roles would suit motivated individuals with strong technical knowledge, who are comfortable taking the lead role on complex matters and working directly with senior stakeholders from tier-one client bases.

CONSTRUCTION LITIGATION LAWYERS – ASSOCIATES/SENIOR ASSOCIATES – International firms. We are currently working with two of the leading Construction Litigation teams across the Asia Pacific region to secure highly skilled Construction Litigation Lawyers to bolster their Perth offices. The successful candidates will manage complex matters with a high degree of autonomy, extensive client contact, and be paid at the very top of the market.

CORPORATE/M&A LAWYERS – Multiple firms across all tiers. If you are a Junior Lawyer, Associate or Senior Associate with 1-4 years’ PAE or 5-10+ years’ PAE, then you are in very high demand. Each of our clients offer slightly different benefits, including performance bonuses, flexible working conditions, time off in lieu, and other financial/non-financial incentives.

INSURANCE LAWYERS – Multiple firms across all tiers. We are currently working with several of KBE’s key clients across multiple tiers to secure Insurance Lawyers from 2 years’ PAE through Partner level.

These positions involve working with a range of insurers and high profile self-insureds across a variety of insurance matters. We are interested in speaking with suitably qualified Lawyers with 2+ years’ experience in some or all of General Liability, Product Liability, Professional Indemnity, Property Liability, Public Liability, Medical Negligence, MVA/CTP claims, and Workers’ Comp. Both plaintiff and defendant side applicants are encouraged to apply.

INSURANCE/COMMERCIAL LITIGATION LAWYER – Top-tier international firm. This Insurance Group is widely regarded as one of the strongest Litigation teams across Australia, including a number of Award Winning Partners. Working across a diverse range of Insurance matters, including PI, D&O, Liability as well as complex Commercial Litigation, you will be supervised by two tier-one Partners who genuinely enjoy mentoring and consistently invest in the development of their team. The Partners take an active interest in the careers of the juniors and spend time teaching and training on an ongoing basis. Striving to be an Employer of Choice, the firm prides itself on maintaining a high level of professionalism and sustaining a balanced and positive work environment. To be successful in this role, you will have 3-6 years’ PAE in Insurance/Commercial Litigation from a quality firm, with the desire to take on additional client facing responsibilities and run matters with significant autonomy.

Chris Bates

Siemone Neutgens

Sharon Apathy

Managing Director

Principal Consultant

Principal Consultant

M: 0411 645 984 E: chris@kbehc.com.au

M: 0403 383 326 E: siemone@kbehc.com.au

M: 0413 132 049 E: sharon@kbehc.com.au

IN-HOUSE LEGAL COUNSEL – EPCM/contracting company. 3-6 years’ PAE. This high profile ASX listed company services clients in Australia and internationally. Working closely with a senior GC and junior Legal Counsel, this position will involve reviewing, drafting and negotiating a variety of commercial agreements including hire agreements, services contracts, leases and other commercial contracts. In addition, you will assist in preparing annual reports, liaising with the ASX/ASIC in relation to all corporate governance, providing company secretarial support, and advising on property/general commercial law.

Our client is seeking a lawyer with 3-6+ years’ PAE with strong commercial acumen, from a Corporate, Commercial, Mining/Energy/Resources or Construction background, either in private practice or in house. A salary package $130,000 to $160,000 is on offer, commensurate with your experience.

JUNIOR LEGAL COUNSEL – Corporate/M&A for ASX200 company. 2-6 years’ PAE. KBE has been exclusively briefed by this well known, rapidly growing ASX200 company to source a junior to mid-level Corporate/M&A Lawyer. You will work directly with a number of Senior Legal Counsel on all Corporate and acquisition related matters, in a company that is looking to acquire several high profile businesses in 2018. The successful candidate will have experience advising across corporate/ASIC/ASX compliance issues with strong exposure to the Corporations Act. LITIGATION LAWYERS – Top-tier international firm. This is a new opportunity for a junior (2-4 years’ PAE) and mid level Litigation Lawyer (3-8 years’ PAE) to join a rapidly growing top-tier firm and work alongside Partners who are regarded as among the best strategic litigators in Australia.

You will act for domestic and international clients across a range of industry sectors, and complete a diverse mix of energy and resources, construction and insolvency litigation within Australia and multiple foreign jurisdictions.

PROPERTY LAWYERS – National and international firms. 2-4 years’ PAE and 5-8+ years’ PAE. Opportunities to join a national and international firm, both of which continue to grow in the current market. Advise private and government clients throughout the real estate lifecycle, including environmental and planning issues, development projects, disposals developments and related leasing work.

TAX LAWYER – National mid-tier firm.

Opportunity for a SA/SC to lead the Tax Advisory/Litigation practice for the WA office of a leading national firm. You will receive strong support from Tax Partners in Sydney and Melbourne, who will assist you to leverage long term client relationships and rapidly build the Perth Tax team.

Please contact Siemone Neutgens or Sharon Apathy to discuss the above positions, or for comprehensive advice on the opportunities available throughout the Western Australian legal market.

KBE Human Capital P: 08 6467 7889 A: Level 18, 140 St Georges Terrace, Perth W: kbehumancapital.com.au

A View from the Bench

Magistrates Courts in Western Australia: Part One – Navigating Conveyor-Belt Justice in the General Lists

By Magistrate Deen Potter

This article is adapted from a paper presented at a Law Society CPD seminar on 21 March 2018.

The objective of this article is to give practitioners an insight into the current working environment of the Magistrates Courts and provide some useful guidelines as to how they may assist in making the best use of limited time and resources in General Lists

The role of the Magistrate has become increasingly demanding and complex.

Western Australia represents a unique geographical area and landscape within which to work and live. Magistrates are required to develop an acute understanding of the logistical, cultural and social realities of its diverse population. On a daily basis Magistrates Courts across the State are dealing in a very direct and real way with individuals presenting with co-morbidities inclusive of poly-substance and alcohol abuse and diagnosed and undiagnosed

06 | BRIEF JULY 2018

psychological traumas and psychiatric conditions. In addition, the Court is asked to navigate the day-to-day lives of individuals who are alienated, confused, whom are unemployed and experiencing extreme financial and infinite social pressures, homelessness and family violence. The Court must recognise the impact of and react proportionately to behaviours which have often left a trail of devastated victims in their wake and which offend against the law and moral sensibilities. Many Accused persons appear without any legal representation

and the expectation is that the judicial officer applies the law in a measured, considered way that gives effect to the principles of equitable justice. The Magistrates Court is expected to deliver justice in an efficient, expeditious manner.

It is a Court that is all things to all people.

Arrest and remand lists in most Magistrates Courts are regularly processing 80 to 100 individuals per sitting. Legislative changes at both State and Federal levels add to the scope of what is considered to be criminalised behaviour.

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Bail applications are as varied and complex as the individuals who seek to be released from custody. The granting of bail is an exercise in assessing risk and risk management. Magistrates are required to undertake and complete complex sentencing matters in an efficient manner while taking into account the detailed intricacies of an individual’s current and past circumstances. A diverse and complex community presents with equally diverse and complex circumstances and judicial responses are expected to deal with the case at hand with an appreciation of that complexity and diversity.

Criminal Trial Lists are under constant pressure. Multiple defended hearings, or trials, are listed to be heard on a single day predicated on the fact that the majority of those cases will not proceed.

This practice is a necessary consequence of the volume of work coming through the jurisdiction. However, it places significant pressure upon limited judicial, police, corrective services and allied agency resources, particularly if a number of those concurrently listed trials do, in fact, proceed on their allocated day.

Unavailability of judicial resources may require a listed trial to be adjourned to another day well into the future. The emotional, logistical and financial impact of a delayed case finalisation upon civilian accused and witnesses does not enhance the standing of the justice system within the broader community.

08 | BRIEF JULY 2018

Civil Lists in the Magistrates Courts are not considered and factored into the publicly available statistics. Failure to adequately take into account the increasing amount of judicial time spent in the civil jurisdiction results in a distorted view of the overall workload. Civil matters are similarly becoming increasingly complex and the litigation protracted.

Access to justice is a fine and noble principle now enshrined in our system due the commitment and advocacy of some of our nation’s greatest leaders and unsung heroes. However, the principle does not stop at the point of lodging documents or being heard. The access to justice principle requires Magistrates to walk unrepresented Accused, Claimants and Defendants through law and process.

With access to justice comes very little gatekeeping. Particularly in the Civil Jurisdiction the Courts are inundated with largely unintelligible and irrelevant materials that it must sift through to understand the issues between the parties and what legal principles may or may not be at stake.

Restraining Order Applications in of themselves consume a very significant portion of judicial time both at the initial ex parte and at the defended final order hearing stage. As in the general civil jurisdiction the parties can be volatile and unpredictable in their behaviour and are generally unrepresented and so often appear in Court without the objective intermediatory advice of a

legal practitioner. There are often very significant issues at stake in defended hearings, particularly where children are involved, and the presiding Magistrate must ensure that the Courtroom environment is safe and conducive to a fair hearing for the parties.

Many court-users have anecdotally commented about a perceived diminution in peoples’ respect for the Courts probably from a multiplicity of reasons but, I would suggest, that high amongst them, is a conveyor-belt style justice that has become the norm.

Large, dehumanised Court lists have resulted in the gravity of the Court process, the impact of the offending behaviour and the sentencing disposition being undermined.

Magistrates managing these lists are under constant pressure to focus on expediency rather than explore robust and innovative sentencing dispositions that enhance resilient rehabilitative outcomes.

For the more serious matters that come before the Court, scarce time must be found and specifically allocated to enable the Magistrate to pause, reflect and deliver considered remarks. However, for the vast majority of those citizens who come before the Magistrates Court, particularly in the metropolitan region, the experience is devoid of any real connection because the interaction is perfunctory.

The concern that arises is that the Court is then seen as no more than another administrative agency of Government, which is a dangerous perception to allow to develop given that Courts are our fundamental independent pillar in the Westminster system.

For all of the negative commentary directed towards Courts, usually around the emotive subject of sentencing, the Australian community has generally been well served by its judiciary, even against a backdrop of a diminution in real resources and time. Whereas scandal, corruption and lack of independence are commonplace in many other jurisdictions around the world, even in first world democracies, it simply has not been the case in Australia. Magisterial appointments have steadily edged towards gender equality but it should be noted there is still has work to do in achieving ethnic and cultural diversity.

The specialist Lists in the Magistrates Courts have generally been embraced by Magistrates. Initiatives such as the Drug Court, START Court, Family Violence Lists and the IDD List and judicial casemanagement on conditional bail all reflect the Magistracy’s ability and desire to be flexible and adapt to the complexity of the communities it serves. That in itself demonstrates the level of commitment that abounds within the Magistracy and its deep understanding of the issues faced by the community. It certainly is not out of touch. It is eminently accessible.

The Magistrates Court now sits seven days a week, 365 days per year, save Good Friday and Christmas Day. Saturday Court sittings in the Northbridge Court commenced in May 2013 and Sunday sittings commenced in July 2014.

That same Northbridge Court will often deal with matters via video or audio link from regional and remote areas where the regional Magistrates or local Justices of the Peace are unavailable and the local Police have refused bail.

In addition, a Duty Magistrate is on-call by way of a 24-hour a day, 365 days per year, dedicated telephone link.

With the proliferation of Federal and State legislation the scope of the duties undertaken by the Duty Magistrate has expanded dramatically from being limited to urgent applications for Violence Restraining Orders to requiring the review and signature of a Magistrate in respect of wide range of warrants or applications for the extended detention of suspects.

Regional Magistrates are deeply involved with their local jurisdiction and whereas once regional service was seen as

the initiation phase for reluctant new appointments eager to return as soon as possible to the safety of a metropolitan sitting, that is no longer the case.

Country appointments are eagerly taken up in recognition of the added independence that they represent and ability to be innovative. The real bonus of regional service is being able to be close to community, to people and agency services and managing time to break the cycle of conveyor-belt style justice.

The Magistrates Courts are generally well serviced by the West Australian legal profession. However, for new practitioners entering the jurisdiction, or for those who make the occasional appearance, stepping into the maelstrom can be a daunting and confusing experience. For the hardened veteran advocate or experienced Duty Lawyer they will have observed the exponential shift in the numbers on Court Lists, the complexity of matters coming before the Courts and the extended waiting times for matters to be finalised.

The Statistics1 The statistical information provided within this article warrants further research and investigation. To take an example, the rates of finalisation by way of plea of guilty are high when compared to matters proceeding to trial and the Court determining the Accused as being not guilty.

However, this does not reflect the rate of

pleas of not guilty being entered initially and then ultimately determined by a plea of guilty, withdrawal of a charge by the prosecution or conviction in the Accused’s absence pursuant to section 55 of the Criminal Procedure Act. Trials being listed and hearing dates allocated on the basis of a plea of not guilty only to be ultimately determined without proceeding to trial on the allocated day are having a direct and increasingly adverse and detrimental impact upon Court hearing lists. This is particularly so in relation to family violence matters, a phenomenon I will discuss in Part Two of this article.

In addition, the figures do not reflect the qualitative shift in the legal and factual complexity of matters being dealt with by the Magistrates Courts.

What the figures do demonstrate is that the Magistrates Courts are dealing with increases in numbers beyond the recorded population growth for the State.

The measures below compare 2012/13 figures with 2016/17 figures and record the percentage increase across that fiveyear period.

For the purpose of statistical recording a case lodgement is an individual person. A criminal charge lodgement is an individual criminal charge. An individual person can be charged with multiple criminal charges.

The 2016 Census counted 2,474,410 usual residents of Western Australia on Census night; an 11 per cent increase from the 2011 Census.2

Case Lodgements Year

2012/13

2016/17

5 Year % change

No.

91,144

106,337

16.7

Criminal Charge Lodgements Year

2012/13

2016/17

5 Year % change

No.

161,724

210,258

30

Method of Case Finalisation Year

2012/13

2016/17

5 Year % change

Plea of Guilty

61,022

66,474

8.9

Finding of Guilt

1,453

545

-62.5

Acquitted

3,486

591

-83.0

Ex Parte Conviction

19,708

33,277

68.9

Pros. Withdrawn

120

3,992

3,226.7

Sentencing Disposition Year

2012/13

2016/17

5 Year % change

Imprisonment

3,262

6,908

90.5

Suspend Imprison

2,216

3,304

49.1

Intensive Supervision

870

2,045

135.1

Fine

70,987

80,017

12.7

09

Final Observations Perspective and view will always differ depending upon which you bench sit.

I recommend to you South Hedland’s Youth Involvement Council ‘Capture the Moment’ music project and, in the East Pilbara, the Martu KJ Ranger programmes as examples of grass-community initiatives that can be presented to Magistrates by counsel representing Accused persons looking to engage in meaningful rehabilitation. Each of these initiatives encapsulates the types of grass-roots movements that are working to redefine communities and provide positive hope and direction for young people, their families and communities.3 There are many similar initiatives both nascent and well established within other regional and remote areas and the metropolitan environment.

Conveyor-belt justice cannot and does not do real justice to the work of these innovative, energetic and dedicated community members who have to deal with day-to-day realities against the backdrop of a complex history, present and future.

Given the prevalence of so many complexities and co-morbidities with our communities, the modern day Magistrate’s task distils to one of triagestyle risk assessment and management, balancing multi-layered and multifaceted objectives often in direct opposition with each other. Conveyer-belt justice has the potential to undermine the considered courtroom process.

As complex sentencing and bail determinations are undertaken in volume by Magistrates on a daily basis throughout Western Australia, legal practitioners can assist in utilising precious time by being prepared. Counsel should also be prepared to be innovative and solution-focused in seeking to achieve the best outcomes for their client.

Counsel should seek out and engage with community-based organisations and develop working relationships with the aim to present Magistrates with reputable rehabilitation options. In addition, counsel are encouraged to seek out and develop working relationships with these initiatives and organisations, not only for the benefit of their clients but also to add depth to their own practice satisfaction.

This will in turn provide Magistrates with the opportunity and tools to be equally innovative, solution-focused and find the time to step off the conveyor-belt.

10 | BRIEF JULY 2018

Check List for Counsel in Magistrates Courts 1. Be innovative and solution-focused in seeking to achieve the best outcomes for your client. Develop working relationships with agencies and NGOs. Present Magistrates with reputable rehabilitation options. This will in turn provide them with the opportunity and tools to be equally innovative and solution-focused.

Provide written confirmation of assessments, placements, timelines and programme objectives.

2. Do not double book client appearances in different Courts. It leads to unnecessary adjournments and looks unprofessional if you are unable to make your appearances.

3. Ensure that you register your full name with the Court Orderly against the names of the clients for whom you are appearing. Announce your name/appearance clearly to the Magistrate even if you regularly appear before that presiding Magistrate. Duty Counsel can usually announce their appearance once for their first client and advise the

Magistrate that they appearing for “other duty counsel matters on the list”. Magistrates Courts are busy and noisy hubs and names and other information can be easily misheard or misunderstood.

4. Ensure that your client is within the Courtroom ready to proceed when their matter is called on by the Orderly.

5. If you are seeking an adjournment/ remand and amendment to bail conditions and/or wishing to making ancillary applications briefly advise the presiding Magistrate early at the outset of your intention to make those various applications.

6. You should endeavour to finalise a bail application with all information presented before the Court rather than embark on an application that has to then be adjourned for more information. Examples include, 2nd Schedule “exceptional circumstances” and charges of Breach of Protective Bail Conditions where the Protected Persons have an opportunity to be heard by way of Affidavit. Do not ask

for a Home Detention Bail Report before establishing “exceptional circumstances” in 2nd Schedule Applications.

least 24-hours in advance. Emails at 4.30pm and later with volumes of documents do not assist in efficiency.

7. Check Bail addresses to ensure that they exist and provide information as to who the primary occupant is and confirm that your client has their permission to reside there.

12. Applications for the ordering of Presentence Reports should be reserved for the most serious factual or complex matters and those cases which are genuinely going to require, as a bare minimum, intensive supervision in the community. Oral PSRs are a viable option to explore with CJS on the day of entering a plea. Do not ask for PSR and do not repeat the contents of the PSR as a substitute for a plea in mitigation.

8. Complex or lengthy Bail Conditions should be reduced to writing and handed up with, if possible, agreement of the prosecutor.

9. Ensure sureties are present or readily available to re-sign if necessary.

10. For clients with multiple charges who intend entering mixed pleas a written schedule of indicated pleas signed by your client should be handed up to the Magistrate. Reference to the charge number is essential. Be aware that a singular bail undertaking that was originally in place will most likely need to be split as different Court dates are allocated and so sureties will need to be readily available.

11. References, independent reports, transcripts etc. need to be provided to the Court and prosecutors at

13. Prior to entering a Plea of Not Guilty correspond or liaise with the Investigating Officer and/or Police Prosecutors to determine if evidence can be admitted without the need for calling witnesses. Attempt to narrow the triable issues as much as possible. Indicate to the presiding Magistrate whether admissions/ concessions have been made. This will reduce the amount of time that needs to be allocated for the trial and assist in reducing delays in trial listings.

14. If approached by alleged victims, particularly in family violence matters, refer them to the Victim Support or Family Violence Services as soon as possible. This can assist in avoiding delays and additional adjournments when making applications to amend bail conditions. Be careful suggesting to a Magistrate that a victim is present in Court and can stand up and give their views as to bail conditions; and equally careful in advising your client that this will be able to take place. This practice may not be accepted by the presiding Magistrates and more likely will be firmly rejected.

Look out for Part Two of this article in an upcoming edition of Brief.

NOTES: 1

2

3

Report on Criminal Cases in the Magistrates Courts of Western Australia 2012/13 to 2106/17, Department of Justice, Government of Western Australia, 04 October 2017: available at http://www.department.dotag.wa.gov. au/s/statistics.aspx 2016 Census: Western Australia, Media Release (27 June 2017), Australian Bureau of Statistics, Commonwealth Government of Australia.

See Capture the Moment, Youth Involvement Council and hip hop artist ‘KJ’, 2014 at https://www.youtube. com/watch?v=v2J-CX8Roy8 ; see also Kanyirninpa Jukurrpa (‘KJ Rangers’) at http://www.kj.org.au/

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11

Ceremonial Farewell for Justice Stephen Thackray from the Appeal Division of the Family Court of Australia

By Hon Justice Stephen Thackray

The following article is adapted from a speech given by the Hon Justice Stephen Thackray on the occasion of His Honour’s last sitting on the Appeal Division of the Family Court of Australia on 23 March 2018.

Now, as this proceeding today has assumed something of the appearance of a ceremonial, before I get any further into my remarks I would like to acknowledge the Traditional Owners of the land in this area and pay my sincere respects to their elders, past, present and emerging. I would also like to acknowledge all of the Aboriginal peoples of Australia and make particular mention of the Martu people of the Pilbara area of North Western Australia.

Ladies and gentlemen, I was lucky enough to grow up on a small wheat farm north of Perth. The Honourable Ian Coleman SC, who I am told these days is one of your less distinguished members, would be pleased to hear that I still regard myself as a boy from the bush.

It was therefore with some trepidation that I stepped into this courtroom for the first time 11Â years ago having heard a little of the reputation of the great New South Wales bar. I need not have been fearful as I have been treated here with nothing other than the utmost courtesy and respect from the members of your bar and have received much needed help in coming to decisions that I have often found very difficult.

12 | BRIEF JULY 2018

I hope, though, to make my exit today with somewhat more dignity than I managed on one occasion in this court, when my robes became stuck in the mechanism of the chair on which I was perched. I wiggled and I waggled, hoping nobody was looking, trying to extract my robes from the chair. All efforts failed and then the presiding judge decided it was a good idea to adjourn. My options were to drag the chair out behind me or to elegantly slip out of my robes and walk off in my business suit. That was one of the easier decisions I had to make on this bench.

I have had the privilege of sitting on appeals all around the country, and each city has its legal culture. I remember the first time I had to walk

13

onto this bench alone in order to deliver a judgment prior to the main business of the day. The first thing that happened, as usual, was that the court officer banged on the door as if he wanted to knock it down rather than open it. I am curious why practitioners in this state, more so than in other states, are presumed to be stone deaf – perhaps it is because guidance from the bench sometimes seems to fall on deaf ears. I have often thought that a quieter knock would not scare the pants off me and everyone on the other side of the door, especially the self-represented litigants.

As you may have heard, I am rather attracted to modern technology. My first piece of technology was an Olympia portable typewriter my mother purchased when I was at primary school. As I had no interest whatsoever in farm work I decided to teach myself to type. My ability to type has been an enormous advantage to me and, as those of you who have appeared before me will know, I always bring my laptop onto the bench.

I learned a while back that the more savvy members of your Bar, instead of following the judge’s pen were following the judge’s keyboard – and apparently the word around town was that when I stopped 14 | BRIEF JULY 2018

typing you were going down screaming.

After I heard that, I used to stop typing for fun just to see the look of horror that came across your faces.

Now, as Justice Ainslie-Wallace has suggested, I have quite a lot to say today but I do want to make a promise – and it is the same one made by the late and wonderful John Purdy at his ceremonial farewell – I promise not to go “part heard”.

First and most importantly can I thank the staff of this court and the staff at each of the other registries around Australia.

While some people seem to think of courts as consisting only of judges, that is like believing that the tip above the water is the only part of the iceberg. Without the ice below the water, the tip would rapidly melt and become nothing at all.

I am not sure whether it is widely known but the staff in this registry and all the other registries around the country have not had a pay rise for four years and eight months. And yet, everywhere I go I see loyal public servants putting their heart and soul into their work and desperately caring about the reputation of their judges and magistrates and their courts.

Despite the issues with their pay, they

happily go the extra mile to look after judges who keep getting pay rises – that is, except state judges in Western Australia where we have run out of money because you guys are taking all of our GST. In any event, while there are good reasons why judges get paid a lot and have excellent conditions and almost complete security of tenure, our staff have not been so lucky.

I was glad for our wonderful staff here that they recently reached an “in principle” agreement about a pay rise and were, until yesterday, waiting for that agreement to be approved by the Public Service Commissioner. I was devastated this morning when I was informed, admittedly on the grapevine, that the approval has not been forthcoming. I thank the staff from the bottom of my heart for being prepared to continue to come to work without complaint, with happy dispositions and for continuing to perform at the level that they do. Without them, there would be no court.

I thank in particular Susan Brennan and Maryrose Portelli and all the other people around the country who have worked tirelessly to arrange this complicated hearing which is being telecast to at least Melbourne, Brisbane, Parramatta and

Perth. You are the forgotten people of this court along with people like the pocketrocket Cathy Jordan who has been working in this institution for 34 years and who I ran into on the street this morning and who I have invited to sit up front here as a representative of all of our wonderful staff. I also heard just before I came on the bench that the wonderful Eileen Smith is today very quietly leaving my own court after 36 years of dedicated service.

Thank you to all the Kathys and Eileens.

Next, I want to thank the Appeals Registrars and their small staff in each of our registries. The Appeal Division is now running as efficiently as it ever has in the history of this court and much of the credit is due to them and particularly to the National Appeals Registrar Teresa Kane, who is one of the most exceptional people I have had the good fortune to meet.

Thank you Teresa very much if you are watching up there in Brisbane.

Closer to home, it will probably come as a great surprise for you to learn that the Sydney Registry was long regarded as the problem child of the Appeal Division.

However, the number of pending appeals in Sydney has reduced by more than half and appeals are coming on more quickly

than they have in recent memory. Indeed, Paul Doolan spoke at a conference in Perth last Saturday and said that from personal experience he knew this to be the case since all of his appeals were now being dismissed with costs in record time.

All of the improvements made here in Sydney have been largely due to the efforts of your fantastic coordinating Registrar Phillip Cameron and the wonderful Registrar Sally McNamara and their people, ably supported by the three very busy Sydney judges.

Thanks also to our terrific new Registrar Katherine Sudholz down in Melbourne, her predecessor Pia Marrone and my old friend Registrar Tom Kuurstra over in Perth, who have their registries humming along beautifully. You are all terrific.

Next I would like to acknowledge the very talented legal associates who have stopped me – and I imagine the other judges – from making many, many errors and who have willingly traipsed around the country, like the judges, giving up their Sundays routinely to be at their station first thing on the Monday morning of a Full Court.

I thank in particular all of my own exceptionally talented legal associates Benn Hill, Michelle Smith, Alison

Cameron, Kelly Merris, Kate Hesford and last but not least my current legal associate Emilie Adlide who I will single out as an example of the sort of talent we have amongst this elite group.

Having graduated from ANU with first class honours, in her spare time when not looking after me, Emilie is also the national chair of CanTeen, the organisation for young people living with cancer. I particularly appreciated her wise counsel and support in the last week or two, and especially yesterday when the lift got stuck, with me inside it!

I turn next to the retired judges of the Appeal Division almost all of whom I think are either in this or other courtrooms around Australia today or who have sent me messages. Mr Kearney has mentioned my name in the same breath as people I revered as a young lawyer spending too much time reading law reports. I do not consider myself worthy of being mentioned amongst those people and although I thank you sincerely Mr Kearney, had you said I was half as good as them I would have left this place very contented.

As a representative of all of the retired judges, may I single out the Honourable Mary Finn. For most of my time on the

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Full Court my dearest friend Mary was the Head of the Appeal Division. She ran the Division single-handedly with no more support than what was provided from within her own chambers. I, on the other hand, have had the benefit of an exceptional National Appeals Registrar as I have already mentioned.

Apart from administering the Appeal Division, Mary wrote some of the most beautiful and learned judgments you will ever have the pleasure of reading. The fact that my name appears on some of them is an added bonus although my role was largely restricted to placement of commas. Justice Finn led us by the brilliance of her jurisprudence, by her unfailing courtesy to counsel and selfrepresented litigants alike and by her diplomacy in managing her devoted group of disciples.

Mary was always there for me when I took over from Justice May who in her time as the Head of the Division showed the same qualities Mary had demonstrated for us over such a long period of time. I made a speech to the Perth family lawyers last Saturday and there is a possibility I departed from my script. I had not slept much the night before and even I was rather surprised by my own stream of consciousness. But I was particularly pleased with the bit when I said people should stop saying what a good job I had done on the Appeal Division because, for me, it felt like I had been standing on the shoulders of giant-esses.

By the way, this court has, of course, been led for 26 of its 42 years by Chief Justices who happened to be women.

Although my own court in Perth has not yet had a woman Chief Judge, we were the first court in Australia in which the majority of judges were women, and over half our current judicial officers across all levels are women – and every single one of our senior managers and administrators is a woman. That is a record of which I am very proud.

Ladies and gentlemen, the task of the Head of the Appeal Division is an interesting one in this court. It is not a statutory position and the role is not defined. I had some appreciation of the work from watching Mary and Michelle but when the time came for me to do the work I greatly appreciated their support.

In performing the role I was always most grateful that I had the full confidence of Chief Justice Bryant and I will always be grateful to Chief Justice Pascoe for regularly expressing to me his great confidence in the work that I was doing.

I next thank this extraordinary group of people who sit supporting me on the 16 | BRIEF JULY 2018

bench today and who have been a source of pleasure and inspiration over many years. I regret that Justice Ryan is unable to join us today as her mother sadly passed away earlier this week. I also regret that Justice Strickland is able to appear only by video link but he is busily as always holding the fort not only in Adelaide where he lives, but in Melbourne as well. I do not regret that Justice Kent is not here although I see him by video sitting on the bench in Brisbane. I wanted to be the best looking man on the bench on my last day.

By the way, Justice Kent is not here because he is taking some well-earned leave. The fact that, like other judges of this court, he has spent most of that leave writing a very difficult judgment is neither here nor there – but it would have been pushing things to ask him to tell his family that on top of all that he was flying to Sydney today as I dearly would have wanted him to be.

As you may now be getting the impression, I could speak for a long time about the qualities of each of these individuals on the Appeal Division. I will content myself by saying that I regard each and every one of them as a friend.

If we are remembered for nothing else I hope that this group is remembered as those who have brought the Appeal Division into the position it occupies today, that is of being a very efficient Full Court, which is not to criticise our predecessors who were among our country’s finest jurists and who worked their fingers to the bone, without proper support.

Ladies and gentlemen, it is an unfortunate fact that people look for easy answers and easy explanations when dealing with complex issues and there is a tendency to confuse cause with association. But can I assure you that a very large number of converging factors have led us to today where the stocks of the Appeal Division are at an all-time high.

If I had to attribute that to one single factor other than the work ethic of the judges and their staff, I would say it was the very wise decision to create the position of National Appeals Registrar. Were it not for the creation of that position, not one of the technical innovations that were introduced in the last 12 months would have been possible.

It is all very well having ideas but getting them implemented requires skill, time and effort that I did not have to devote to that task.

If I have one attribute that has served me well in my leadership roles, it is that I recognise the merit and

importance of every single member of my organisations. I like to think that my staff feel appreciated, even if my effort to remember everyone’s names gets harder by the year. I also hope I foster a work environment where I can be easily challenged when I have yet another cocka-mamie idea. In my view, surrounding yourself as a leader with people who will always agree with you is not the best approach. Good leaders surround themselves with people who are strong and independent and prepared to take them on, by speaking truth to power.

There were, however, also many other forces at play that have led to the improvements which Mr Kearney has so kindly recognised today. There is no need for me to go into the detail but I can certainly say that the personnel we have in place in each registry around Australia deserve a great deal of credit as do my predecessors.

I would like to think that what has happened in the Appeal Division over the last little while is an example of what could be achieved in the larger family law system if it was properly resourced and supported. For example, the very modest cost of a National Appeals Registrar has

in my view probably saved millions of dollars to this Australian economy, when one looks at the bigger picture rather than focussing on one budget item in isolation.

There is a huge social and broader economic cost in having thousands of the citizens of this country tied up in litigation, while their mental and physical health deteriorates. The very modest cost of one Appeals Registrar (itself only a part time position) led to greatly improved productivity of an entire appeal division of one of the major courts in the country – which in turn led to massive reductions in delay in litigation – which leads to savings in wasted legal costs and improvement in health and quality of life for Australian families.

Finding the funds to create this one job in the whole of the country was not a cost – it was a spectacularly good investment. It will pay a dividend in perpetuity.

The other most important factor at play in the improvements was the willingness of the appeal judges to march together toward a more efficient environment, where as many judgments as possible are given ex tempore, where costs are fixed on the spot without having to be taxed

and where we take every advantage of modern technology.

We have also collectively embraced a philosophical approach to judgment writing introduced to us in Brisbane by one of the greatest legal philosophers this court has ever produced, Bernie Warnick, alongside an outstanding and pragmatic jurist who has since gone onto become the first woman Chief Justice of our country, and whose conversation with us as respected judicial officers in Brisbane left us feeling supported, understood and truly inspired.

As I am on a roll now, I want to turn to some brief observations on the wider family law system in this country.

As some of you already know, I have held on either a permanent or acting basis every possible different judicial office in the family law arena, with only one exception; from a registrar of the Family Court of Western Australia right the way through to a few scary couple of occasions acting as the Chief Justice of the Family Court of Australia, which I think is one of the most important and difficult jobs in Australia. I therefore wish

Chief Justice Pascoe all the very best in that role, and I also extend best wishes to Deputy Chief Justice Alstergren in his work both in this court and in the Federal Circuit Court and as the new Head of the Appeal Division.

The only role in the Australian family law system that I have not had the honour of filling is that of a judge of the Federal Circuit Court – but can I assure you that some of my best friends are Federal Circuit Court judges!! I hold those judges in particularly high regard and always have. I know from long personal experience how hard they have to work, and I am pleased to see so many of you here and around the country today, including those who have retired.

There is now no judicial officer in either my home court or in this court here on the East Coast who is able to say to me, “but you don’t know what my job is like”.

Although it is very easy to forget how hard life really was in the trenches, I do know what every job in the family law system is like and I therefore know how very important every cog in the system is – judicial officers, family consultants, administrative, clerical, cleaning and security staff all make a vital contribution

17

to the efficient operation of the system.

Accordingly, if ladies and gentlemen I continue to detain you from all of your important business for a little longer this afternoon, I hope at least that I can speak to you and perhaps to others outside this room with at least as much authority as anybody else who has observed the family law system and indeed loved the family law system for the last 40 years.

Now I hear and I read a lot of criticism of the family law system in this country and the criticism has been growing stronger over the years. And the funny thing is that almost all of the criticism has been directed at the Family Court and the Federal Circuit Court and the judges of those courts – and I have not been hearing too many people standing up to defend those courts and those judges – and I did not think that was very fair. So I thought today, speaking from my perhaps unique vantage point, I might tell you just a little about the history of this great court – the Family Court of Australia.

The full history would occupy a book, but it is a tragedy in my view that the people of Australia do not know just how highly regarded this court really is in every place in the world other than in Australia. So it is perhaps sad that most people do not know for starters that our original Family Law Act has been plagiarised in many places around the world.

I know a good deal about the family law system in Fiji and I know that after careful study they decided to adopt the Australian law and the Western Australian method of applying it. As another exotic example, Barbados adopted our family law in 1983 – hopefully they have been sensible enough to leave it in the original form.

And of course there is the Family Court’s ground breaking less adversarial trial system which has been followed closely by many overseas jurisdictions.

Importantly, it was chosen as the model for the sophisticated family law system in Oregon which interestingly has now found its way back to Australia as informing the new Parenting Management Hearings out at Parramatta – except I am told in Oregon they have a judge in charge.

Australia also has always punched well above its weight at the Hague, following in the tradition of our own Justice Peter Nygh, one of the most brilliant jurists to have ever graced any court, all the way through to our recently retired Chief Justice being asked to chair the Hague Working Group drafting the Guide to Good Practice in the Child Abduction Convention.

This Family Court has also been a world leader in judicial education. Our judges, led by the great and sadly missed Justice Neil Buckley, provided some of the

At a more mundane level, it was our court which first published its decisions in anonymous form using pseudonyms, and that innovation has now been copied by other jurisdictions. And while on that topic, what a pity we cannot bring back our old more relaxed rules about the pseudonyms.

Then there is the Magellan program and in my own court there was the Columbus program which has now been superseded by a more sophisticated case management system, which depends on a multidisciplinary approach. And in my court we have a unique program designed to intensively case manage the large number of cases which we have identified as involving a risk of death or serious injury to one of our clients or their children.

Now all of these innovations introduced by this court and its judges over 40 years are a matter of record – and I could go on and on – as I think you are now readily imagining I might. But there are other things that are known only by people with a close intimate involvement with this court.

Although I am, or at least was until this week, the senior judge of this court, that was only because of my position as Head of the Appeal Division – my substantive job is as the head of the unique and very efficient state Family Court in Western Australia.

"There is a lot I could say about how successive governments have dealt with this court, but as I am a judge, not a politician, I will not."

The Australian family law system is also revered in the United Kingdom – just ask any visiting judge from that part of the world. This international high regard for this court continues to the present day with delegations from around the world beating a path to our door to study our system and transport ideas from it back to their own countries.

The use by this Family Court of family consultants was regarded all around the world as a great innovation. If you visit a Family Court in Japan I am told you will see how they have sensibly modelled their equivalent to family consultants on our system. Even the structure of their family reports follows the high quality reports produced by our family consultants.

18 | BRIEF JULY 2018

earliest training in Australia for judges in family violence, gender discrimination and cultural diversity.

Continuing this fine tradition, Justice Ainslie-Wallace, who is recognised internationally as an educator and advocacy coach, heads our program of judicial education in family law and other areas of law for our judges. Under the auspices of the National Judicial College of Australia, an Australia wide program is being conducted in family violence training for judicial officers chaired by former Chief Justice Bryant and by my colleague Justice Judith Ryan. My colleague Justice Peter Murphy chairs the advanced judgment writing skills program conducted throughout Australia.

My colleague Justice Murray Aldridge is a member of the Council of the Australasian Institute of Judicial Administration and recently with that body produced the second edition of the Guide to Judicial Conduct.

In that capacity and while holding all of the other jobs that I mentioned, I have had the good fortune to be able to visit and observe at close hand the work of the judges of the Family Court of Australia and also, albeit not quite as closely, the work of the judges of the Federal Circuit Court, some of whose offices I always try to visit when I am sitting on the Full Court.

Given that I have been administering judges and magistrates for over two decades, I have a fairly good idea of how hard I think they should work and how hard they do in fact work. Like any group, performance differs from individual to individual and some people, through their superior intellect or efficient working practices, are able to get through their work much more quickly than others. I am a bit of a plonker as Ainslie-Wallace would say, and it takes me twice as long to do things as it would let us say Ian Coleman or Jennifer Boland, who was always keen to find just that little bit more work to do.

But what I have observed over my 20 years of close observation is that with just a handful of exceptions the judges of this court have worked very much harder

than I think the Australian taxpayer would consider reasonable. They work so hard that I worry for their health. They work so hard that I worry for their families. They agonise so much over their decisions that sometimes I feel they might crack. Then I see how they look ten years younger when they come back from a break.

By the way I notice the same with their chambers’ associates.

So why with all of this innovation, with all of this world best practice, with all of this hard work and commitment are the judges of this court and the judges of the Circuit Court blamed for what is the undoubted current inefficiency of the Australian family law system.

There are a lot of reasons but I will single out just three.

First, there are simply not enough judges and registrars and those judges we do have are either not replaced or replaced after inordinate delay.

Secondly, we have what I consider be a bizarre structure where two courts share almost an identical jurisdiction and instead of working together, almost everywhere work in isolation, confusing the hell out of everyone with separate

forms, rules and processes.

Thirdly, we have been lumbered with most extraordinary legislation that has grown like topsy and appears to have been drafted by a committee of people charged with responsibility of making things as difficult as possible for judges and particularly for self-represented litigants.

Our current law is completely misunderstood by even well-educated Australians, and indeed I am sorry to say it is often misunderstood by some lawyers and worse still it is misunderstood by some judges, particularly those very unfortunate ones who are appointed to sit in family law matters with no family law experience. I know – I was the head of the Appeal Division until last Monday.

During my 40 years’ experience in this system I have not only studied the system itself, but I have studied the way successive governments handle the hot potato it represents – since our family law system is front and centre in the gender wars in which the men’s groups say we favour the women and the women’s groups say we favour the men. If there is any winner in that war it sure is not the

Family Court and it sure is not the children of Australia.

There is a lot I could say about how successive governments have dealt with this court, but as I am a judge, not a politician, I will not.

All I will say is that I entirely agree with Chief Justice Pascoe in the remarks made in the press this week – I would be very, very careful before taking decisionmaking away from expert decisionmakers and giving that responsibility to social workers and psychologists, notwithstanding that some of my best friends are social workers and psychologists. In my very long experience of working with them they prefer not to make decisions about other people but instead help them and support them once the decision has been made, as well as providing expert advice to the decision-maker.

There are many other good things that have been done by governments for our family law system – look at the Family Relationship Centres for starters. And I sincerely believe that every Australian government does want a strong and effective family law system. But

19

unfortunately, along the way there has been a misguided attempt to save what in the overall scheme of things is a very modest amount of money and, in the process, these two courts have been brought almost to their knees.

You have already heard what we have done on the Appeal Division in a very short space of time and in particular I have highlighted how just a tiny amount of money ends up saving the Australian people millions of dollars. We need a much better resourced family law system and we desperately need a bipartisan attempt to reconstruct our federal family law system into a coherent model.

I am afraid it has not made a splash in the press but earlier this week there was finally a glimmer of hope from our Parliament which warmed my heart. A whole bunch of senators from a range of parties got together to support our great courts and our great family law system and passed by a very large majority a motion in the Australian Senate. Time does not permit me to read out the entire motion but it is a cracker.

I thank you very much for your polite attention but I am not getting any younger and I have been burning to say these things for years and an opportunity just presented itself for which I will be forever grateful. I am not sure how grateful you are of course.

When I wrote this speech last night, I was going to conclude by telling you that I had had a lovely dream in which I found myself in a place with my dream Family Court. It would no doubt surprise you to learn that by the time I had finished clacking away on the typewriter, driving my darling wife berserk, I had 20 dot points describing a dream Family Court.

And then, I was going to say that I realised I was wide awake and just reflecting on how happy I am that tomorrow morning I get on a plane to Perth and return to my dream Family Court.

You are all welcome to come visit us in WA any time you like – we not only have a nifty little family court, we have wonderful wines, we have wonderful beaches, our sharks don’t eat lawyers, we now have electricity, and we have the best footy team in Australia and I am going to the Eagles first game on Sunday with our best mates at our beautiful new world class stadium.

I would offer for you to come and visit me personally in my rather lovely office in Perth but my plan over the next year or so is to be spending a lot of time in the Pilbara area where the Martu people live and struggle with the effects of

20 | BRIEF JULY 2018

colonisation. I have been working on a new model of delivering family law justice to our Aboriginal people and I have become very excited about it. The Martu elders have become very excited about it too. Only problem was I realised that I had too many jobs and I did not have time to do what I wanted to do. Then the wonderful God of Fate looked down upon me recently and I now find myself with a great deal of time to do something really useful.

I was going to end with some thanks to the most important people in my life; my wonderful wife, my terrific kids, my Legal Associate Emilie, my amazing Administrator Kathy and my incredible court officer Lex. Finally I was going to thank each and every one of you for coming here today and all the others who have turned up in such extraordinary numbers around this country. I know you are not really here to acknowledge me although I have been feeling pretty acknowledged this week.

You are here to acknowledge the great Family Court of Australia and the great Australian family law system and I know it has warmed the hearts of my loyal colleagues and friends in both the Family Court and the Federal Circuit Court to see you here and in every other Australian city gathered in unity to support your family law system and your family judges.

And ladies and gentlemen that was where I was going to finish – until I walked past the coffee shop in Elizabeth Street this morning and saw my ugly mug on the front page of the national newspaper. It may not surprise you to know that I have a few words to say about what I read when I got to the office.

What I would say about this morning’s press are these five short things: 1. As an experienced judicial administrator of what has always been regarded as the most successful Family Court in the country, can I ask you to resist the temptation to believe in quick-fix solutions?

2. In 21 years on the bench, I have never spoken to a journalist other than through the court’s media officer. And I never will.

3. In 21 years of judicial administration I have never spoken to a politician other than at a professional function unless they are the Attorney General or the Minister for Child Protection.

And I never will.

4. In my long history of association with the judges of this court I have found

them to be the friendliest and most collegiate of people who go about their work fairly, respectfully and with utmost integrity.

5. During my time on the Appeal Division, I enjoyed the unanimous support of the Appeal Judges. I leave the Appeal Division in very good shape not due to my efforts but due to theirs. I have every confidence in them and I would stake my life on their integrity.

Ladies and gentlemen I have been inundated in the last two weeks with messages from around Australia and around the world. I have been touched by every one of them but the one that touched and humbled me most was the one sent by a Federal Circuit Court judge whose work, let us say, I know somewhat better than the work of some others. I give that judge credit for being appealed fairly often because quite clearly he is working his backside off in an effort to get through the work because he cares passionately about what he does and is trying his best to reach good outcomes for Australian children. And I have said some pretty tough things about one of his judgments only fairly recently.

So this is the message that touched me most, and I would never have dreamt of reading it in public were it not for the story in this morning’s newspaper: Please excuse my uninvited email.

However, I just received notice of the special sitting this Friday. I am unable to participate as I will be in transit between X, Y and Z. Otherwise, I most surely would have attended if only by video.

I wish to express my admiration and thanks to you your service to the community and to the jurisprudence of family law. I’ve always, both prior to and post-appointment, found your judgements instructive and abundantly infused by your clear knowledge and intellect and demonstrating a human decency and respect for others. This has been so even when, post-appointment I have been the subject of such judgments. I and, I am sure, the court and the community, will miss your contribution to appellate jurisprudence.

Ladies and gentlemen that praise was not for me – it was for this group of judges that I have been proud to lead for the last year.

Thank you.

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Natural Justice in the Parliamentary Sphere: Should Parliaments Retain the Power to Punish?

By The Hon Wayne Martin AC Chief Justice of Western Australia1

This article is adapted from a speech given at the Australian and New Zealand Association of Clerks at the Table Conference on 24 January 2018.

In a previous address, I joined the many who have expressed concerns that the retention by many parliaments of the traditional power to punish for contempt lacks many of the safeguards, both substantive and procedural, which have evolved with respect to the imposition of punishment by courts.1 In this article I will develop that general proposition in more detail.

Criminal justice v parliamentary process The powers of the parliaments of Australia and New Zealand to impose punishment for contempt of parliament vary from

22 | BRIEF JULY 2018

jurisdiction to jurisdiction, as do the legal regimes governing the exercise of those powers. It is not the purpose of this article to undertake an analysis of the varying breadth of those powers.

Despite some jurisdictional variations,

most parliaments in Australia and New Zealand retain privileges and powers to punish for breach of privilege which are analogous to, and derive from the powers and privileges enjoyed by the Houses of Parliament at Westminster.

The propositions advanced in this article will be developed on that general assumption, and without regard to the differences in the laws applicable in the different jurisdictions represented at this conference, although from time to time points will be illustrated by reference to the law and/or practices of a particular jurisdiction.

The thesis of this article will be developed by a comparison between the various stages of the criminal justice process, and the analogous stages in proceedings for contempt of parliament.

No clear statement of prohibited conduct The parliaments represented at this conference regularly pass laws which define the acts or omissions which will render a person liable to punishment with as much clarity and precision as can be achieved by the English language.

So, in Western Australia, for example, with two exceptions, people can only be punished if they have acted, or failed to act, in a way which is specified in a written law. People who want to know whether any particular act or omission which they are contemplating will render them liable to punishment can review the relevant written law and form a view as to whether they will, or will not, be potentially exposed to a sanction. The two exceptions are contempt of court2 and contempt of parliament.

Like beauty, the acts which can constitute contempt of court or contempt of parliament can only be seen by the beholder. The uncertainty which this creates is exacerbated by the fact that the relevant ‘beholder’, be it a court or a parliament, is the same body which will investigate, formulate and present the charge, and will also determine guilt or innocence.

Defenders of the current arrangements with respect to contempt of parliament often draw analogies with the current arrangements relating to contempt of court, as and by way of justification for the parliamentary process. For my own part, I cannot see how one can justify uncertainty with respect to the range of conduct likely to attract a sanction, and a lack of impartiality in the determination of guilt or innocence by pointing to another system which has similar defects. The defects in the current arrangements relating to contempt in the face of the court is a topic for another day, but for present purposes it is sufficient to say that many of the issues I will be addressing in this article apply with equal force to the issues which arise when proceedings are brought for contempt in the face of the court, and to note that deficiencies in respect of arrangements relating to contempt of that kind have been recognised by law reform bodies.3 Defenders of the parliamentary process point to the fact that in many jurisdictions there are statutes which purport to define

the conduct which can be punished as contempt of parliament. However, reference to those statutes reinforces the proposition I am advancing with respect to uncertainty. So, for example, s 4 of the Parliamentary Privileges Act 1987 (Cth) provides: Conduct (including the use of words) does not constitute an offence against a House unless it amounts, or is intended or likely to amount, to an improper interference with the free exercise by a House or committee of its authority or functions, or with the free performance by a member of the member’s duties as a member.

While there are clearly some categories of conduct which would fall outside the scope of the section, and not be liable to punishment as a contempt of parliament, the range of conduct which falls within the scope of the section, because, for example, it amounts to an improper interference with the free exercise of a House or committee of its authority or functions is far from clear or certain.

Taking, parochially perhaps, another example from the State in which this conference is being held, s 8 of the Parliamentary Privileges Act 1891 (WA) provides that each House of the Western Australian Parliament is empowered to impose a fine in respect of conduct falling within seven specific categories enunciated in the section. However, s 1 of the same Act provides that the two Houses have and may exercise the privilege, immunities and powers set out in the Act and also, to the extent that they are not inconsistent with the Act, the privileges, immunities and powers of the House of Commons of the Parliament of the United Kingdom and its members and committees as at 1 January 1989.

In 1994, the equivalent section provided that the Houses of the Western Australian Parliament would have the same powers and privileges as the House of Commons from time to time rather than at a specific date but subject to the proviso that ‘with respect to the powers hereinafter more particularly defined by this Act, the provisions of this Act shall prevail’. Notwithstanding that proviso, in 1994 the Legislative Council purported to utilise the powers conferred by s 1 of the Act to imprison Mr Brian Easton for conduct which did not fall within any of the seven categories of conduct expressly enunciated in s 8. Professor Enid Campbell argued, with some force in my view, that the proviso to then s 1 had the effect that s 8 was a code, prescribing the entire range of conduct which could be punished as a contempt

of the parliament.4 Clearly the parliament took a different view, and the lawfulness of Mr Easton’s detention was never reviewed by a court.

Whatever be the better view of the law as it was then, in 2004 s 1 was re-enacted without any equivalent to the proviso, with the consequence that it now appears clear that s 8 does not prescribe the entire range of conduct which can render a person liable to punishment for contempt of the Western Australian Parliament.5 Defenders of parliamentary process might also point to resolutions agreed to by the Senate on 25 February 19886 in which the Senate resolved that ‘without derogating from its power to determine that particular acts constitute contempts, the Senate declares, as a matter of general guidance, that breaches of the following prohibitions … may be treated by the Senate as contempts’.7 Then follow 16 categories of conduct which may be treated as contempt. It is, however, clear from the terms of the resolution that those categories of conduct are not intended to provide an exhaustive statement of all conduct which can be punished as a contempt and in any event, the Senate is not, of course, bound by its own earlier

23

resolutions, and is only one of the many Australasian Houses with a power to punish for contempt.

Investigation The investigation of suspected crime is usually conducted by trained and experienced police officers who are subject to procedures specified in police manuals and laws which protect the rights of persons under investigation. Taking Western Australia as an example, those laws specify the rights which a suspect must be given, including the cautions which must be administered,8 and further require that any interview of a suspect must be video recorded.9 The conduct of police officers can be subjected to internal review within the police force, and in many jurisdictions, to external review by bodies such as the Law Enforcement Conduct Commission in New South Wales10 or the Corruption and Crime Commission in Western Australia.11 By contrast, a person suspected of committing a contempt of parliament enjoys none of these rights and the officers of the parliament responsible for the investigation of such conduct are subject to none of the constraints or avenues of review to which I have referred. Indeed, any person, entity or agency purporting to regulate or oversee the conduct of such officers in the course of investigation of a possible contempt of parliament could themselves be the subject of proceedings for contempt.

The charge Any charge of a criminal offence must state clearly and precisely what the person charged is alleged to have done, or not done,12 and the law which is said to have been infringed.13 By contrast, there are no formal or minimum requirements with respect to the content of a motion to the effect that a person be punished for contempt of parliament. Although s 9 of the Parliamentary Privileges Act 1987 (Cth) requires that the resolution of the House imposing a penalty and the warrant committing a person to custody must set out particulars of the matters determined by the House to constitute the offence,14 there is no legislative provision requiring the provision of particulars to the person concerned at the commencement of the contempt proceedings.15

Independent review of a prosecution All the jurisdictions represented at this conference have created independent

24 | BRIEF JULY 2018

statutory officers, generally styled as Directors of Public Prosecutions, charged with the responsibility of reviewing charges brought by police (at least in more serious cases) and deciding whether those charges should proceed. One of the main reasons that function was taken from the Attorney General, as a member of the government, and given to an independent statutory officeholder, was concern that decisions with respect to the pursuit or discontinuance of prosecutions might be influenced by political considerations.

By contrast, decisions with respect to the pursuit of proceedings for contempt of parliament, and the outcome of those proceedings if commenced, may be determined by political considerations, rather than merely influenced, or be seen to be influenced, by them.

Disclosure Persons charged with criminal offences are entitled to disclosure of all information and documents within the possession of the prosecution which could have a bearing on the case. In many jurisdictions that right, and its ambit, is enshrined in legislation.16 By contrast, a person subjected to proceedings for contempt of parliament has no legal right to be given any documents or information relating to the allegations against him or her.

Pre-trial procedures In most, if not all, jurisdictions, a person charged with a criminal offence has access to various procedures available prior to trial relating to the production of information or evidence relevant to the trial, including, in many jurisdictions,17 a right to a committal hearing. So, for example, a summons can be issued by a court, at the request of a criminal defendant, compelling the production of

a document or documents, or, in some limited circumstances, requiring a person to attend in order that their evidence might be taken on deposition prior to the trial.

By contrast, a person subjected to proceedings for contempt of parliament has no corresponding or equivalent rights or powers.

Hearing by an impartial tribunal A person charged with a criminal offence must be tried by a judge, or a judge and jury, or a magistrate who is/are entirely impartial, without any personal interest in the outcome of the case, or personal knowledge of the events giving rise to the case.

By contrast, as I have already noted, a House deciding whether or not a person has committed a contempt is, in effect, the judge of its own cause, being at one and the same time the alleged victim, prosecutor, arbiter of guilt or innocence and sanction imposer.

These characteristics of proceedings for contempt of parliament constitute a very serious departure from fundamental principles of procedural fairness which reflect contemporary community standards and expectations. I reiterate my earlier observation to the effect that such serious departures from fundamental principles of fairness cannot be justified by pointing to the fact that proceedings for contempt in the face of the court suffer the same defects.

The significance of the manner in which parliamentary proceedings for contempt depart from fundamental principles of fairness is underscored by the provisions of the International Covenant on Civil and Political Rights (ICCPR).18 Article 14(1) of the ICCPR provides that in the determination of criminal charges against them ‘everyone shall be entitled to a

fair and public hearing by a competent, independent and impartial tribunal established by law’. Clearly the current arrangements relating to punishment for contempt of parliament do not comply with the ICCPR. Article 6 of the European Convention on Human Rights19 provides a corresponding guarantee of trial by an independent impartial tribunal. Concern has been expressed in the United Kingdom that the European Court of Human Rights would quash any punishment imposed by a House of Parliament by reason of contravention of that Convention.20 That was in view of the European Court of Human Rights having already asserted its jurisdiction to review parliamentary proceedings for contempt under Article 6 in Demicoli v Malta.21 The applicant in that case, Mr Demicoli, was a Maltese citizen and editor of a political satirical periodical titled ‘NOT in the people’s interest’ (when translated to English). The Maltese House of Representatives passed a resolution that deemed an article published in the periodical to be a breach of privilege.

A subsequent resolution required Mr Demicoli to appear before the House to state why he should not be declared guilty of breach of privilege. He was found guilty after a three day hearing before the House, and fined 250 Maltese liri. The European Court of Human Rights found that the House was exercising a judicial function in determining the applicant’s guilt, and that the participation in the proceedings of the two members whose behaviour had been criticised in the impugned article constituted partiality of the adjudicating body.

Hearing procedure The trial of a person charged with a criminal offence by a court must conform

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with established principles of procedural fairness. As I have noted, those principles include the right to be tried by an impartial tribunal, but also include the right to know the case alleged, and the right to present evidence and submissions in order to meet that case.

So, in a criminal trial, the prosecutor will be obliged to open the case by advising the court and the defendant what he or she is alleged to have done, or not done, and the nature of the evidence that will be called to make out the prosecution case.

The defendant has the right to crossexamine prosecution witnesses, and at the close of the prosecution case, to submit to the court that there is no case to answer. If the court rules that there is a case to answer, the defendant then has the right to give evidence, and call other witnesses in defence of the charge.

By contrast, a person subjected to proceedings for contempt of parliament enjoys none of the same fundamental rights. Although it is the practice to call such persons before the bar of the House, where they are given the opportunity to explain themselves, that opportunity falls well short of the rights conferred upon a person tried for a criminal offence in a court. So, in the famous case of The Queen v Richards; Ex parte Fitzpatrick and Browne,22 before the contemnors were called before the bar of the House, a committee of the House had recommended that they be punished for contempt, and the motion that they be punished for contempt was presented to the House by the Prime Minister of the day, Sir Robert Menzies. Although each had been called before the relevant committee, in substance their guilt had been determined before they were called before the bar of the House and given the opportunity to speak in their own defence. Although the resolutions of the Senate to which I have referred go some (but not all) of the way to redressing these deficiencies, they are non-binding resolutions of only one of the many Houses in our region.

Further, the effective determination of guilt prior to being given the opportunity to speak and raise a defence departs from Article 14(2) of the ICCPR which provides that ‘[e]veryone charged with a criminal offence shall have the right to be presumed innocent until proved guilty according to law’.

The onus and standard of proof In all criminal proceedings, the prosecution carry the onus of proving all matters necessary to sustain guilt to the highest standard known to the law 26 | BRIEF JULY 2018

- namely, beyond reasonable doubt. By contrast, in proceedings for contempt of parliament there is no real notion of an onus of proof, or a standard of proof - rather, the question will usually be resolved initially by a majority vote of the relevant privileges committee and, if the matter goes further, by a majority vote in the relevant House.

Penalty All legislation creating an offence prescribes a maximum penalty.23 By contrast, although some jurisdictions prescribe a maximum penalty for contempt of parliament,24 that practice is by no means universal. As I have noted, the effect of s 1 of the Parliamentary Privileges Act 1891 (WA) is that the penalty for contempt of the Western Australian Parliament is at large, perhaps constrained only by the date upon which parliament is prorogued.

Further, a court sentencing an offender for an offence will generally have a wide range of available sentencing options, including fines, community-based orders, suspended imprisonment (perhaps subject to compliance with conditions during the period of suspension) and imprisonment.

By contrast, although a parliament punishing for contempt will, unless constrained by statute, have the power to order imprisonment, doubt has been expressed with respect to the power of a parliament to impose a fine for contempt in the absence of express statutory authority,25 and none of the other sentencing options available to a court are available to a parliament.

Appeals

Parliament of a privilege, but, given an undoubted privilege, it is for the House to judge of the occasion and of the manner of its exercise. The judgment of the House is expressed by its resolution and by the warrant of the Speaker. If the warrant specifies the ground of the commitment, the court may, it would seem, determine whether it is sufficient in law as a ground to amount to a breach of privilege, but if the warrant is upon its face consistent with a breach of an acknowledged privilege it is conclusive and it is no objection that the breach of privilege is stated in general terms.27 As I have noted, s 9 of the Parliamentary Privileges Act 1987 (Cth) requires that a warrant committing a person to custody set out particulars of the matters determined to constitute the offence, thereby preventing the parliament from effectively immunising itself from any form of judicial review by issuing a warrant expressed in general terms. However, even when particulars of the offence are provided in the warrant, the extent of review by a court will be limited to the question of whether those particulars are, as a matter of law, capable of constituting a contempt. There is no scope for a court to review the parliament’s conclusion that a person was guilty of the conduct particularised in the warrant, nor can the court review the fairness and justice of any penalty imposed by the parliament.

The significance of these departures from contemporary community expectations and standards is again underscored by Article 14(5) of the ICCPR which provides: Everyone convicted of a crime shall have the right to his conviction and sentence being reviewed by a higher tribunal according to law.

A person convicted of a criminal offence in the jurisdictions represented at this conference will generally have at least one, and perhaps more opportunities to appeal against that conviction, and against any punishment imposed.

Clearly, the current arrangements relating to punishment for contempt of parliament do not conform to this standard.

By contrast, there is no appeal from a determination by a House of Parliament to the effect that a person is guilty of contempt, or from the punishment imposed by that House. Further, it is clear from the decision of the High Court in The Queen v Richards; Ex parte Fitzpatrick and Browne26 that judicial review of proceedings for contempt of parliament will be strictly confined. In that case Dixon CJ observed that

Persons imprisoned for criminal offences will generally have the right to be considered for release on parole prior to the expiry of the term of their sentence. Although I have not undertaken an exhaustive analysis of the parole legislation in the various jurisdictions represented at this conference, I think it most unlikely that parole would be available to somebody imprisoned for contempt of parliament in any of those jurisdictions.28

…it is for the courts to judge of the existence in either House of

Parole

The comparison - summary This comparison shows that, at every single stage of the process relating to proceedings for contempt of parliament, the rights enjoyed by a person the subject of such proceedings are manifestly and dramatically inferior to the rights enjoyed by a person charged with a criminal offence before a court. In a number of significant respects, proceedings for contempt of parliament depart very significantly from fundamental principles of fairness and justice, and depart equally significantly from contemporary community standards and expectations.

The parliament, in effect, acts as the judge in its own cause, is not required to comply with basic standards of procedural fairness and is not subject to any meaningful review by a court. In a number of significant respects, the current procedures for dealing with contempt of parliament depart from minimum standards embodied in the ICCPR. The question which this poses is whether there is, in truth, any justification for these significant departures from basic principles of fairness and contemporary community standards and expectations.

That is the question I will now address.

Can this be justified?

From time to time, in both Australia and the United Kingdom, parliamentary committees have addressed the question of whether the continuance of procedures relating to contempt of parliament can be justified notwithstanding their departure from fundamental principles of fairness and justice. In this section of the article, I will address the reasons given by some of those committees for concluding that the unjustifiable can, in fact, be justified, starting with Australia.

The 1984 Joint Select Committee on Parliamentary Privilege The reasons given in 1984 by a Joint Select Committee of the Federal Parliament on Parliamentary Privilege (the Committee) for recommending that the penal jurisdiction of the Commonwealth Houses be retained have been conveniently summarised by Professor Enid Campbell.29 I will deal with each in turn using the terms of her summary.

The Committee contended that the penal jurisdiction ‘exists as the ultimate guarantee of parliament’s independence and its free and effective working’.30 The problem with this proposition is that there is no evidence that parliaments which have abandoned their penal

jurisdiction31 are any less independent, free or effective. Nor is there any reason to suppose that enforcement by courts of statutory provisions prohibiting acts which would constitute a contempt of parliament would be any less effective in preserving the rights of parliament than parliamentary processes. As the courts are generally regarded as the appropriate branch of government to enforce and protect rights and freedoms, one might ask rhetorically why the courts should not be regarded as appropriate protectors of the rights and freedoms of parliaments. At a time when the English Parliament was locked in a struggle for power with the monarch, and all judges were appointed by the Crown, sensitivities with respect to parliamentary independence were understandable. But those days are long gone.32 Next, the Committee asserted that the courts’ lack of ‘acquired understanding of parliamentary life’33 would make it difficult for a court to assess whether conduct alleged to be a contempt was such as to obstruct or impede parliament or its members in the discharge of their functions. This is, with respect, nonsense.

Courts make decisions every day with respect to whether standards of conduct prescribed in areas of endeavour with which courts have no direct experience have been infringed. Where necessary, courts receive evidence with respect to specialised areas of activity beyond their expertise, and there is no reason why a court could not receive evidence with respect to parliamentary practice and the effect which particular conduct had upon parliamentary practices and procedures.

Next, the Committee asserted that courts lacked the flexibility that Houses possess in the exercise of their penal jurisdiction because they cannot take into account factors which Houses may entertain, ‘chiefly the potent force of public opinion and the political consequences for parliament and the principal parliamentary actors if they act harshly, capriciously or arbitrarily when dealing with a complaint of contempt’.34 This is also nonsense. It suggests that parliamentarians who have been, in effect, investigator, prosecutor and judge of their own cause, and who are not subject to any meaningful form of review, are less likely to act harshly, capriciously or arbitrarily than an independent and impartial court subject to an appeal.

The assertion is redolent with the extraordinary proposition that political considerations are more likely to produce a just outcome than an obligation to act impartially, independently and according to law on the basis of admissible evidence adduced in a procedurally fair hearing,

at which a high standard of proof is required, and which is subject to full review by another independent tribunal.

These propositions are, with respect, selfevidently preposterous.

Next, the committee asserted that even if prosecutions for contempt of parliament could not be initiated except on the instruction of a House, there would be potential for undesirable ‘clashes between the courts and the parliament’35 regarding what conduct was contemptuous.

Several points should be made in response to this proposition. First, the parliaments and the courts have quite separate roles to perform under our system of government, which includes a separation of powers with consequential checks and balances upon the improper use of power. Under our system of government, determinations with respect to guilt or innocence, and with respect to the imposition of penalty are the exclusive province of courts established under Chapter III of the Constitution of the Commonwealth.36 Within that framework, there would only be a clash between a court and a parliament if the parliament took it upon itself to intrude into a function exclusively assigned to the courts.

Secondly, implicit in this proposition is again the assertion that a parliament is as well-equipped as a court to adjudicate upon guilt or innocence notwithstanding the many fundamental deficiencies in process which attend proceedings for contempt of parliament. The continuation of a system which contains those gross deficiencies cannot be justified by the prospect of occasional disagreement between the court and the parliament.

Finally, and perhaps the Committee saved the best until last, it asserted that transfer of the penal jurisdiction of the parliament to the courts would expose the courts to ‘the odium that parliament sometimes attracts when it exercises that jurisdiction’.37 Again, several points can be made in response to this extraordinary proposition.

First, the odium that parliaments attract when they exercise penal jurisdiction may well be due to the fact that they are acting as judges in their own cause, in proceedings which depart from fundamental principles of fairness and without any meaningful form of review.

Secondly, judges and magistrates are not strangers to public controversy and are subjected to strident and sometimes outrageous criticisms very frequently.

Thirdly, and perhaps most importantly of all, one of the reasons why judges and magistrates are independent and

27

are given security of tenure, is precisely so that their decisions will not be influenced, or be seen to be influenced, by the prospect of public odium. By contrast, parliamentarians who rely upon a sometimes fickle electorate for their continuation in office are extremely vulnerable to influence by public opinion.

Accordingly, there is, with respect, nothing in the 1984 report of the Joint Select Committee which could possibly justify the unjustifiable.

Odgers’ Australian Senate Practice Odgers’ Australian Senate Practice (Odgers) contains a section responding to criticisms of the current arrangements relating to contempt of parliament.38 In response to the criticism that the conduct which can constitute a contempt is not defined or specified by a code, it is asserted that the ‘enactment of s 4 of the Parliamentary Privileges Act 1987 (Cth) and the specification by the Senate by resolution of the acts which may be treated as contempts have largely overcome this criticism’.39 It will be clear from what I have already written that I do not agree. Section 4 of the Commonwealth Act is a statement of general principle which provides no certainty or prescription with respect to the conduct which falls within its terms.

The list of matters identified by the Senate is not expressed to be exhaustive and in any event does not bind either the Senate or the House or, of course, any other House.

Next, it is asserted that it is impossible to specify with precision all acts which constitute contempts because it is the effect or tendency of an act which constitutes the offence.40 That is, with respect, just as unconvincing.

Parliaments with the assistance of parliamentary counsel are adept at prescribing and defining vast ranges of conduct which constitute offences, including conduct which is prohibited because of its effect or tendency, an obvious example being the statutory offence of interference with the course of justice.41 Further, this assertion overlooks the fact that in a number of jurisdictions, parliaments have enacted criminal laws which cover much the same area of conduct as is covered by contempt of parliament.42 In response to the criticism that parliament acts as judge in its own cause, Odgers makes reference to courts punishing for contempt in the face of the court.43 As I have already noted,

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the fact that there is another area of deficient practice provides no justification.

Further, Odgers dismisses the fact that there is a right of appeal from a court convicting a person of contempt because ‘the appeal is to another court’.44 This entirely misses the point that if the ‘other court’ is not the court before which the contempt was committed, the right of appeal introduces an independent and impartial arbiter. In the same section it is asserted that ‘there is just as effective an appeal in respect of a contempt of parliament, from the privileges committee to the whole House’.45 In a context in which the votes of a committee, and of the House, may each be dictated by party politics, this is nonsense.

In response to the criticism that by judging and punishing contempt of parliament the Houses are usurping a judicial function, it is asserted that ‘the very premise of this criticism is questionable’.46 That proposition is explained in the following passage: The question of what acts obstruct the Houses in the performance of their functions may well be seen as essentially a political question requiring a political judgment and political responsibility. As elected bodies, subject to electoral sanction, the Houses may be seen as well fitted to exercise a judgment on the question of improper obstruction of the political processes embodied in the legislature.47 Implicit in this passage are many of the propositions which underpinned the position adopted by the Joint Select Committee in 1984 - namely, the proposition that political constraints are more likely to produce proper outcomes than independence and impartiality, fairness of procedure, and completely independent review. That proposition is no less preposterous in the current version of Odgers than it was in 1984 when enunciated by the Joint Select Committee.

Finally, the criticism that persons accused of contempt of parliament do not enjoy the normal rights allowed by the law is accepted as valid in Odgers, but is accompanied by the assertion that: This criticism has been largely overcome in the Senate by the adoption of procedures for privilege inquiries and proceedings before the privileges committee.48 While those procedures are clearly an advance on the entirely unregulated procedures of the past, they apply only to the Senate and have not been adopted

uniformly by other Houses of Parliaments.

Nor can the procedures be equated to those applicable in a court. For example, one of the procedural provisions is to the effect that ‘the committee shall ensure as far as possible’49 that a person is present when evidence is given against that person. Of course, a court can only receive evidence of that character in the presence of the accused.

In another section of Odgers dealing with the question of whether the power to punish for contempt should be transferred to the courts,50 a number of arguments against that proposition are advanced.

The first is that the Houses of Parliament are more likely to be lenient than a court.

I am not sure that argument would persuade Messrs Fitzpatrick, Browne and Easton, all of whom were imprisoned by a parliament acting as judge in its own cause. The notion that a partial adjudicator is likely to produce a fairer outcome than an impartial adjudicator is quite extraordinary.

Next, it is asserted that if Houses of Parliament were absolved of the responsibility for conviction and punishment they would be more inclined to send cases to the courts and more convictions might result.51 However, if, as most have proposed, proceedings for contempt could only be commenced with the approval of the relevant House, the Houses would retain complete control over the number and nature of cases in which proceedings were brought.

Next, it is asserted that the current powers enable a disorderly person to be removed from the galleries of the House in order to prevent the continuance of the offence, or a recalcitrant witness committed to custody not as punishment, but to compel the answering of the questions or the production of the documents.52 However, there is no reason why these objectives cannot be achieved through a court. A person arrested for disorderly conduct in a House of Parliament and taken to a court would no doubt be refused bail if the court perceived any risk of the conduct being repeated in the near future. In relation to recalcitrant witnesses, it is quite common for courts to be given power to punish people who refuse to give evidence to administrative bodies like royal commissions or corruption investigations, and for those powers to be exercised for the purpose of compelling the provision of evidence. So, for example, in the exercise of those powers it is common for a court to provide that if a person purges their contempt by complying with the requirement to give evidence or produce documents, punishment will cease.

In the same section reference is also made to the occasional need for urgent action to prevent destruction of documents.53 However, courts commonly grant injunctive relief in urgent situations in order to maintain the status quo or preserve evidence, and there is no reason why those powers could not be utilised in such a case.

Finally, reference is made to the difficulties which might arise dealing with contempts by members of a House if all jurisdiction to punish for contempt was transferred to a court.54 That proposition has force, and should be accepted, provided that no punishment other than reprimand or suspension is imposed upon a member. If a fine or custodial sentence is to be imposed, in my view there is no reason why a member should not enjoy the same rights as other members of the community. However, it must be said that my main concern is with respect to the manner in which Houses of Parliament deal with non- members.

Again, with respect, I do not find any of the propositions advanced in the current version of Odgers by way of defence of the indefensible to be convincing.

The United Kingdom In 2012 a consultation paper was published by the UK Parliament dealing with contempt,55 considering in more detail options first considered in 1999, including legislation codifying the existing powers of the two Houses or, alternatively, creating criminal offences which would be enforced through the courts. In relation to the former option, the paper acknowledges that it would be extremely difficult to modify the procedures of a House to provide the kind of safeguards generally associated

with contemporary due process.56 I respectfully agree. In the context of the option of creating criminal offences enforced by the courts, it was contended that any attempt to create a statutory definition of contempt would result in courts having an element of discretion in determining what constitutes contempt of parliament which would not be compatible with the long-established position whereby it is for each House alone to decide what constitutes a contempt.57 With respect, as I have already indicated, it is not clear to me why any legislative prescription of the conduct which constitutes a contempt of parliament would necessarily confer a discretion upon a court to any greater extent than any other provision defining criminal conduct. The process of determining whether an offence has been committed by applying the law to the facts established by admissible evidence is not properly described as the exercise of a discretion.

After the process of consultation commenced by the publication of the consultation paper, the Joint Committee on Parliamentary Privilege of the UK Parliament (the UK Committee) published a report in 2013.58 As I have already discussed, that paper refers to the non-conformity of existing procedures with Article 6 of the European Convention on Human Rights, and in that context noted that a modern statute prescribing specific offences was more likely to satisfy the European Court of Human Rights, than what was described by one witness as a mix of ‘17th century cant and common law’.59 However, the UK Committee rejected that recommendation on the basis that criminalising specific contempts, would entail a radical shift of power between parliament and the courts.

It would introduce delay. It would increase uncertainty about how contempts which were not covered by criminal statute could or should be dealt with, and remove the flexibility which is the chief advantage of the current system.60 No system is perfect, and some of the disadvantages attending criminalising specific contempts must be acknowledged. However, those disadvantages must be viewed in the context of a current system which falls manifestly short of conforming to contemporary standards of fairness and justice.

The UK Committee also recommended against legislating to confirm parliament’s penal powers because it would invite the courts to examine proceedings in parliament which would again alter the balance of power between the two institutions.61 However, in a federation with a written constitution, like Australia, it is, of course, commonplace for courts to rule legislation to be invalid because of non-compliance with constitutional or procedural requirements. It seems to me to be quite possible that institutional sensitivities may be greater in jurisdictions (like the UK) which have not had that experience. For my own part, I cannot see any reason why parliament should not be held to comply with the laws which it passes, by the courts if necessary.

Summary and conclusion Any fair comparison of the substantive and procedural rights afforded to a person subject to proceedings for contempt of parliament, as compared to a person charged with a criminal offence can only lead to the conclusion that the principles and procedures

29

relating to proceedings for contempt of parliament are anachronistic and depart very substantially from fundamental principles of fairness and justice, and from contemporary community standards and expectations. It is my respectful view that the various justifications advanced for the continuance of this manifestly deficient state of affairs are unconvincing and, in some cases, spurious. Reform is needed, and will be facilitated by a rational and reasoned approach to the issues involved, freed from entirely unrealistic assumptions about the beneficial impact of political influence on the adjudication of guilt or innocence and the imposition of punishment.

NOTES: 1

2

3

4

5

6 7 8 9 10 11 12 13 14

15

16

17 18

Wayne Martin, ‘Parliament and the courts: a contemporary assessment of the ethic of mutual respect’ (Spring/Summer 2015) 30(2) Australasian Parliamentary Review, 80.

Contempt of court was traditionally a common law offence, and the common law continues to play the dominant role in determining what constitutes contempt of court. However some contempt of court offences in Western Australia (primarily in the lower courts) are now in statutory form. See, for example, Magistrates Court Act 2004 (WA) ss 15, 16; District Court of Western Australia Act 1969 (WA) s 63; Civil Judgments Enforcement Act 2004 (WA) ss 24(3), 30(4), 63(5), 89(5), 90, 98.

Such as the Law Reform Commission of Western Australia, Review of the Law of Contempt, Project 93 (June 2003) 59-80.

See the discussion of the interplay between s 1 and s 8 of the Parliamentary Privileges Act 1891 (WA) in Heather Goodwin, Arran Stewart and Melville Thomas, ‘Imprisonment for contempt of the Western Australian Parliament’, University of Western Australia Law Review (July 1995) 187, 199-200.

Heather Goodwin, Arran Stewart and Melville Thomas, ‘Imprisonment for contempt of the Western Australian Parliament’, University of Western Australia Law Review (July 1995) 187.

Which are published as appendix 2 to Harry Evans (Ed), Odgers’ Australian Senate Practice, 14th ed (2016).

Harry Evans (Ed), Odgers’ Australian Senate Practice, 14th ed (2016) 791.

Criminal Investigation Act 2006 (WA) s 138(2)(b).

Criminal Investigation Act 2006 (WA) s 118.

Established by the Law Enforcement Conduct Commission Act (NSW) s 17.

Established by the Corruption, Crime and Misconduct Act 2003 (WA) s 8.

Criminal Procedure Act 2004 (WA) Sch 1 cl 5(1)(a).

Criminal Procedure Act 2004 (WA) Sch 1 cl 5(1)(b).

A provision inserted to overcome the very significant constraint upon judicial review of a parliamentary warrant for imprisonment for contempt enunciated in the case of the Sheriff of Middlesex (1840) 11 Ad & E 273; 113 ER 419, applied by the High Court in The Queen v Richards; Ex parte Fitzpatrick and Browne (1955) 92 CLR 157, 162. See the Explanatory Memorandum to the Parliamentary Privileges Bill 1987 (Cth) (1163/87, Cat. No. 8741679).

Although the resolutions of the Senate to which I have referred express the desirability of that course in proceedings by that House.

In Western Australia, for example, in the Criminal Procedure Act 2004 (WA) ss 35, 42, 61 and the Criminal Investigations Act 2006 (WA) s 117.

But not Western Australia.

International Covenant on Civil and Political Rights, opened for signature 16 December 1966, UN General Assembly 2200A (XXJ) (entered into force 23 March 1976). Australia signed the ICCPR on 18 December 1972 and ratified it on 13 August 1980. The ICCPR has not been incorporated into Australian domestic law but domestic courts can still take the ICCPR into consideration when interpreting legislation or deciding questions on the common law. In November 2017, the UN Human Rights Committee expressed concerns about the ‘gaps in the application of the [ICCPR] and … the lack of comprehensive incorporating legislation’. See Human Rights Committee, ‘Concluding Observations on the sixth periodic report on Australia’ (121st session, 16 October - 10 November 2017, agenda item 5) [C(5)].

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19

20

21 22 23 24 25 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 54 55 56 57 58

59 60

Convention for the Protection of Human Rights and Fundamental Freedoms, opened for signature 4 November 1950, ETS No 005 (entered into force 3 September 1953).

See, for example, House of Lords - House of Commons - Joint Committee on Parliamentary Privilege, Joint Committee on Parliamentary Privilege - Report of Session 2013-14 (3 July 2013), 16-17.

[1991] ECHR 13057/87.

(1955) 92 CLR 157.

And sometimes, especially in Western Australia, a minimum penalty.

For example, Parliamentary Privileges Act 1987 (Cth) s 7.

Harry Evans (Ed), Odgers’ Australian Senate Practice, 14th ed (2016) 94.

(1955) 92 CLR 157.

(1955) 92 CLR 157, 162.

Certainly parole is not available to a person imprisoned for contempt of parliament in Western Australia.

Enid Campbell, Parliamentary Privilege (Federation Press, 2003) 192-193.

Joint Select Committee on Parliamentary Privilege, Final Report, PP 219 (1984) [7.7].

For example, New South Wales. The position in New South Wales is discussed in Egan v Willis (1998) 195 CLR 424.

See the discussion in Enid Campbell, Parliamentary Privilege (Federation Press, 2003) 192.

Joint Select Committee on Parliamentary Privilege Final Report, PP 219 (1984) [7.8].

Joint Select Committee on Parliamentary Privilege Final Report, PP 219 (1984) [7.9].

Joint Select Committee on Parliamentary Privilege Final Report, PP 219 (1984) [7.11].

See Enid Campbell, Parliamentary Privilege (Federation Press, 2003) 205-206. Professor Campbell discusses that in The Queen v Richards; Ex parte Fitzpatrick and Browne (1955) 92 CLR 157, the High Court held that s 49 of the Constitution had the effect of conferring some judicial powers on the Federal Houses of Parliament (as an exception to the general rule under Chapter III).

However, she argues that because that decision was prior to Australia signing the ICCPR, the High Court might now take the view that the conditions under which the Houses are permitted to exercise a penal jurisdiction are now much more limited.

Joint Select Committee on Parliamentary Privilege Final Report, PP 219 (1984) [7.11].

Harry Evans (Ed), Odgers’ Australian Senate Practice, 14th ed (2016) 89-90.

Harry Evans (Ed), Odgers’ Australian Senate Practice, 14th ed (2016) 89.

Harry Evans (Ed), Odgers’ Australian Senate Practice, 14th ed (2016) 90.

Criminal Code (WA) ss 135, 143.

See, for example, ss 55-61 of the Criminal Code (WA).

Harry Evans (Ed), Odgers’ Australian Senate Practice, 14th ed (2016) 90.

Harry Evans (Ed), Odgers’ Australian Senate Practice, 14th ed (2016) 90.

Harry Evans (Ed), Odgers’ Australian Senate Practice, 14th ed (2016) 90.

Harry Evans (Ed), Odgers’ Australian Senate Practice, 14th ed (2016) 90.

Harry Evans (Ed), Odgers’ Australian Senate Practice, 14th ed (2016) 90.

Harry Evans (Ed), Odgers’ Australian Senate Practice, 14th ed (2016) 90.

Harry Evans (Ed), Odgers’ Australian Senate Practice, 14th ed (2016) 788.

Harry Evans (Ed), Odgers’ Australian Senate Practice, 14th ed (2016) 91-93.

Harry Evans (Ed), Odgers’ Australian Senate Practice, 14th ed (2016) 91.

Harry Evans (Ed), Odgers’ Australian Senate Practice, 14th ed (2016) 92.

Harry Evans (Ed), Odgers’ Australian Senate Practice, 14th ed (2016) 92.

Harry Evans (Ed), Odgers’ Australian Senate Practice, 14th ed (2016) 93.

United Kingdom Government, Parliamentary Privilege (Green Paper), Cm 8318 (April 2012).

United Kingdom Government, Parliamentary Privilege (Green Paper), Cm 8318 (April 2012), 62-63.

United Kingdom Government, Parliamentary Privilege (Green Paper), Cm 8318 (April 2012), 63-65.

House of Lords - House of Commons - Joint Committee on Parliamentary Privilege, Joint Committee on Parliamentary Privilege - Report of Session 2013-14 (3 July 2013) 16-17.

Evidence given by Sir Malcolm Jack KCB, former Clerk of the House of Commons.

House of Lords - House of Commons - Joint Committee on Parliamentary Privilege, Joint Committee on

61

Parliamentary Privilege - Report of Session 2013-14 (3 July 2013) 21.

House of Lords - House of Commons - Joint Committee on Parliamentary Privilege, Joint Committee on Parliamentary Privilege - Report of Session 2013-14 (3 July 2013) 21.

Profession by lawyers Gino Dal Pont Professor, Faculty of Law, University of Tasmania Ethics Column

•

Law has been recognised as a profession from early times.

•

A commitment to public service lies at the core of membership of a profession.

•

It is apt to ask: what is it that lawyers actually ‘profess’?

Law has since medieval times taken its place as one of the three recognised ‘learned’ professions, the others being divinity and medicine. A body of literature has developed over time probing the characteristics of professions. The primary indicia target special skill and learning, a commitment to public service, and some ability to control admission and rules of membership.1 These interrelate. The barriers to entering a profession stemming from skill and learning ordinarily place its members in a power position vis-à-vis those to whom relevant services are supplied. Hence, a public service commitment is needed to counterbalance potential to abuse this power position. And in return, the profession can be trusted to regulate itself.

It is perhaps ironic that, concurrently with the expansion of endeavours seeking to sneak under the mantle of a ‘profession’, the above indicia have, so far as the legal profession is concerned, witnessed sustained attack.

Whether by reason of the (high) cost of legal services, and a related concern over impediments to accessing justice, or for other reasons, the last three decades in particular have seen calls to curtail the profession’s monopoly on the provision of legal services.2 This has in turn raised question marks over whether every aspect of legal practice necessitates the skill and learning expected of members of the legal profession.

The same time frame has been punctuated by intensifying challenges to the profession’s commitment to public service. Many have lamented a perceived the decline of the profession into little more than a business activity, where clients are profit centres and the objective is to maximise profit.3 If so, the burgeoning level of statutory regulation of the legal profession — to date without parallel in other professions or quasiprofessions — maybe should stand as little surprise.

Of course, this is not to say that, in an increasingly regulatory world, the profession’s stake in selfregulation would have survived independent of some questioning over its public service commitment. The latter raises broader questions over the extent to which an endeavour that charges (sometimes handsomely)

for its services can substantiate its commitment to public service. While some in society view the latter as characterised by a sense of altruism inconsistent with private profit, to propound this as a litmus test for a profession would leave few if any endeavours within its remit.

A commitment to public service must nonetheless involve more than providing a service to the public. And if in providing that service the sole object is to maximise the profit of the service provider, it is difficult to see what vestiges remain of any claimed commitment to public service. Hence, it is apt for the legal profession (as it is for others who claim professional status) to be precise as to what, beyond the financial interests of its membership, it is committed to. Indeed, one may argue that it is a commitment to what may lie against those financial interests that best exemplifies public service.

The latter are hardly absent from the legal profession.

A commitment to providing legal services for low or no cost is perhaps the most obvious example. While not all perform pro bono work, all litigation lawyers will prejudice their financial interests by recommending that clients settle their disputes rather than proceed to adjudication. And every lawyer is, in any event, subject to fiduciary obligations that function to place their own economic interests second to others; few other recognised professions can make that same boast. A Victorian judge has, to this end, recently remarked that ‘[t]he responsibility upon lawyers, which is individual and personal, draws upon the deepest convictions, and requires moderation of the common failings, inherited by humanity’.4 While the foregoing may not be exhaustive of the profession’s commitment to public service, it does focus the inquiry on the need for a profession, as a matter of terminology, to actually ‘profess’ something.

The latter is sometimes lost in the narrative over what constitutes a profession. The term ‘profess’ owes its genesis to the Latin profiteri, the conjugation of two words pro and fateri, meaning ‘before’ and ‘confess’. Thus the core inquiry: what is it that a person ‘confesses’ upon entering the legal profession?

NOTES: 1 2 3 4

See, for example, E Greenwood, ‘Attributes of a Profession’ (1957) Social Work 2(3), pp 44–55.

See, for example, Trade Practices Commission, Study of the Professions: Legal, Final Report, March 1994, pp 67–71.

A seminal work is A Kronman, The Lost Lawyer: Failing Ideals of the Legal Profession, Harvard University Press, 1993.

McDonald v Legal Services Commissioner (No 2) [2017] VSC 89 at [53] per Bell J.

31

Trials and Tribulations Kate Offer She’s irreverent, genuine and just plain awesome.

Kate Offer, Lecturer and Director of Disruption at the Law School of the University of Western Australia talks to the Young Lawyers Committee about the path she has taken in her career.

By Fiona Poh Solicitor, DLA Piper Kate Offer

Let’s start from the beginning – why did you choose to do law?

I’ve always been interested in politics and humanities in general, and my interest in the law stems from more of that historical and socio-political perspective. Also, when I was in high school, I didn’t really enjoy maths or the sciences. I’m very much a people person.

Lots of people at school told me that I should be a lawyer because I loved to debate (and talk!). To me at that time, law just seemed interesting and doable and overall a good choice for me.

Can you talk me through your career?

I’ve done a few different things since graduating from university, and looking back now, I realise that I have always been moving my career in the direction of my interests.

When I first graduated, I got a position as an associate at the Supreme Court.

Justice Geoffrey Kennedy, who was my judge at the Supreme Court, was then appointed to the role of Chairman of the Royal Commission into Commercial Activities of Government in 1991. It was really interesting to be involved in something of that nature so soon out of law school.

After that, I did my articles at a commercial law firm. I liked the firm I was at, but the commercial side of things not so much. After 18 months, I moved to the Youth Legal Service, where I represented young people in the Children’s Court.

32 | BRIEF JULY 2018

The decision to move was one that I made quite easily. Although it was not particularly well paid, I felt for the first time that I was doing ‘real law’ on a daily basis and getting involved in people’s lives. I also enjoyed not having the pressure of billing and being able to get into court on a daily basis.

What was the next stage after that?

Even though I loved my time at the Youth Legal Service, the type of matters, issues and clients became routine after a few years. I seriously thought about where I would go from there and whether I should go to the Bar, but I wasn’t convinced that was for me. I decided that I might take a break from law and pursue a higher degree in history and while I was on campus part-time for that, I ended up doing some casual tutoring at the Law School. That’s when the lights went on for me, career-wise. I found that I absolutely loved teaching. From there, I was lucky enough to get a position in the Law School and ended up switching from history to a Masters of Law. That was over 20 years ago and I’ve not looked back since. It’s also been a particularly flexible career and one that made it easy to work part-time when my children were small, which was a bonus.

Now you wear many hats. One of them is that of the Director of Disruption at the UWA Law School.

That is the literally the coolest job title I’ve ever had.

The Director of Disruption role has got two components. One is looking at how we can incorporate more disruptive teaching technologies into the Law School. That means, looking at technology in a meaningful way, not just a “shiny things” way, and how we can use technology to make teaching better. The other is looking at incorporating skills into the curriculum that will equip graduates for a changing legal profession.

What are some projects that you’re working on at the moment?

This year I’ve been really involved in introducing new electives to the Law School curriculum.

Since mid-2017 we’ve been working on a new unit called ‘Legal APPtitude’ where students will learn to design and create a legal app for a not-for-profit client. We’ve been really lucky to partner with Corrs Chambers Westgarth who are generously supporting the unit, which will start running in Semester 2, 2018. More recently, I’ve also started to put together an undergraduate broadening unit called ‘Adulting: The Law of Everyday Lives’ that will hopefully run in Semester 1, 2019.

The unit is structured around the aspects of law that young people should know as they enter adulthood: how to return faulty goods, how to rent a home, driving laws and insurance, laws to be aware of when using the internet, etc.

I’ve also been experimenting with blended learning and creating a ‘flipped’ classroom in one of my first year units.

This involved creating online lecture

modules and then using the class time to run workshops, rather than lecture, in order to get the students to engage more deeply with the material. That involved a huge amount of time to rework the unit as well as create a lot of new content.

That, in addition to my other research and administrative roles is making for an extremely busy time.

What was your motivation for these projects?

'Adulting' was an idea that came about when I thought about my kids, who are transitioning from being teenagers to adults. Both my husband and myself are lawyers, and are able to give them answers to the questions that they may have. Not everyone has such easy access to legal information. Legal APPtitude has come about because of the increasing use of AI in the legal profession. A few universities in New South Wales and Victoria have these units but it’s a first for Western Australia. And the ‘flipping’ experiment came about through my research about different teaching methods.

What would you have done if not the law?

Almost certainly I would have been a high school teacher or possibly a psychologist (although the fact you had to study statistics put me off that!). I do remember being discouraged from pursuing a career in teaching by a few teachers at my high school who thought it would be too limiting and they encouraged me to think about law instead. In retrospect that’s a shame. I’m not sure teaching as a career

is as valued as it should be and I suspect I would have enjoyed a career in secondary teaching as well.

You mention disconnecting after hours, an aspiration for many of us in commercial practice…

But of course, I have ended up as a lecturer and I do love working in a university. My interest in education extends to the teaching side of academia and publishing in that area. I’m also a board member of the Teachers’ Registration Board and chair of its Second Disciplinary Committee. So I am heavily involved in the education sector in many ways.

It’s not always possible but I do try because I think it’s important. When I think back to when I first started my career (1992/1993), the law firm as it was then is virtually unrecognisable compared to today! For instance, you would correspond through letters and landlines, you did not have internet, emails or mobile phones and of course, that meant that nobody would ring you on a Saturday saying, “Can you get this done by Monday?” Not to say that legal practice was not stressful in those days – it was!

However, the current pace of practice and the acceleration of work expectation is definitely a factor that exacerbates anxiety. This is why the focus on mental health is so important in this field.

You’re doing so many things! How do you balance that with time to recharge?

It can be difficult at times although the good thing about university life is that whilst life can get extremely hectic when semester is on, you know it will calm down a bit in the in-between times, and you’ll have a bit more time to work on your own research projects.

Even when things are busy I try to make sure I take time to properly disconnect from work. I’m definitely better at my job when I can quarantine some time after work and on the weekend to focus on other things, specifically my family. I find it helpful to avoid email on weekends and at night whenever possible (and it’s not always!). I take my dog, George, for a long walk most evenings, which I always look forward to as it gives me a chance to think (or listen to a podcast. I am currently obsessed with The West Wing Weekly) as well as get some exercise. Eating well, getting enough sleep and exercising are important so I prioritise them.

Do you have any advice for your younger self?

If I could go back to the days when I was a graduate at a commercial law firm, I’d say, be mindful of opportunities all around you. I’d also tell young Kate to trust her intuition more and not be as swayed by what others were doing.

Lastly, if you won the lotto tomorrow what would be the first thing you do?

Book tickets to Hamilton – really, really good ones. Then, honestly, I’d return to Law School to continue teaching. When the thought of not going to work feels weird, you know you’re in the right place!

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Judicial Advice Applications under s92 of the Trustees Act

By Steven Standing Barrister and Accredited Mediator, Francis Burt Chambers

In Western Australia, trustees, executors and administrators can apply under section 92 of the Trustees Act for directions from the court concerning the management of the trust or estate, and regarding the exercise of powers and discretions. There are equivalents in other states of Australia. A person acting in accordance with the court’s directions gains significant protection, as well as being assured of acting in the best interests of the trust or estate. This procedure has historically been relatively quick and inexpensive, with interested parties having only a limited right to be heard. However, some s92 applications have been adversarial, and consequently, expensive and time consuming. This article considers the nature of s92 applications and whether more can be done to emphasise the summary nature of these applications and the importance of speed and efficiency.

Section 92 of the Trustees Act 1962 WA (Act) permits a trustee to seek directions 34 | BRIEF JULY 2018

concerning any property subject to a trust, or respecting the management or administration of that property, or respecting the exercise of any power or discretion vested in the trustee. Directions are usually given in the form of advice – an exception to the usual rule that the courts will not provide advice.

The Act contains a broad definition of ‘trustee’ which includes the executors and administrators of estates. Accordingly, s92 applies to estate administration as well as to trusts, and references in this paper to ‘trustee’ include executors and administrators.

Why seek advice from the court?

Before looking more closely at s92, it is worth considering why a trustee would want to seek advice from the court. The primary reason is to protect the interests of the trust. However, another important purpose is to limit the potential exposure of trustees to personal liability. There are

several aspects to a trustee’s exposure.

In the first place, trustees are, generally speaking, personally liable for debts incurred as trustee. However, under s71 of the Act, a trustee is entitled to indemnify itself for or pay or discharge out of trust property all expenses reasonably incurred in or about the execution of the trusts or powers. It has been said that the test is whether the costs were improperly incurred.

Secondly, trustees are personally liable for acts or omissions that are in breach of the terms of the trust and their duties as trustee. A trustee who does the best it can may still be liable if its best did not meet the standards of care and skill of a person of ordinary prudence. There is scope for a trustee to be relieved of personal liability (in whole or in part) for breach of trust; see s75 of the Act. However, the trustee will only be excused if it can show that it has acted honestly and reasonably and ought fairly be

excused for the breach and for omitting to obtain the directions of the court in the matter in respect of which the breach occurred.

Accordingly, trustees have an exposure both in relation to debts they incur and as regards their conduct, and ss71 and 75 of the Act only partially mitigate that exposure. In the case of s71, the trustee must establish that it has acted reasonably, and in the case of s75, the trustee must positively demonstrate why it should be exonerated. It is clear that trustees would be better off avoiding any exposure to personal liability in the first place, and that is where ss92 and 95 of the Act come in.

The benefit of obtaining a direction under s92 becomes apparent upon a consideration of s95, which provides that any trustee acting under direction of the court shall be deemed, as regards its own personal responsibility, to have discharged its duty as trustee in the subject matter of the direction, notwithstanding that the order giving the direction was subsequently invalidated, overruled, set aside, varied or otherwise rendered of no effect. A trustee will not be indemnified if it has been guilty of any fraud or wilful concealment or misrepresentation in obtaining the direction; s95(2).

In other words, the effect of s95 is that a trustee acting in accordance with a direction under s92 is protected

against any claim that those actions were in breach of its duty as trustee and is assured of indemnity from trust assets, provided there has been proper disclosure to the court.

For the above reasons, a prudent trustee facing a decision whether to commence or defend court proceedings will commonly seek a direction under s92. If the court determines that the court proceedings should be pursued, it will usually provide advice that the trustee would be ‘justified’ in commencing (or defending) the proceedings. That advice is permissive rather than mandatory.

A trustee who unsuccessfully brings or defends proceedings without the sanction of the court does so at its own risk, regardless of whether it is acting on counsel’s opinion. Unless it is later able to persuade the court that it acted properly and reasonably in relation to the proceedings, the trustee will be personally liable for the costs of the proceedings.

As noted above, this can surprise some trustees, who often tend to believe that they will always be protected by the trustee’s right of indemnity.

A trustee cannot simply delegate its decision making to the court. The courts have made clear that a trustee must actively and honestly bring its mind to bear on the proposed course of action, and should not simply approach the court without having formed its own view, with the assistance of legal advice, as to how it

will resolve the problem.1 Nor should a trustee necessarily seek judicial advice every time proceedings are pending. A trustee may be criticised for wasting the trust’s funds seeking approval from the court to do what is already plainly appropriate. However, there will often be scope for argument about the appropriateness of court proceedings. In such cases, it is plainly prudent to seek judicial advice.

A trustee is probably not obliged to seek judicial advice before bringing or defending a claim, although it is desirable to do so rather than make a judgment about a problematic cause of action and then rely on sections 71 and 75 of the Act after the event.2 It may be that in some cases, judicial advice will need to be sought at several stages of proceedings, as the trustee becomes better able to assess the merits of the proceedings.3 Other typical cases for judicial advice include advice as to the nature or extent of a power or duty of management or administration under a trust instrument, or advice regarding the extent of a power of sale or how it should be exercised.

Other provisions For completeness, several other provisions should be mentioned.

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Order 58 Rule 2 of the Rules of the Supreme Court makes provision for trustees (and other interested parties) to bring an application for determination of a range of questions or matters including any question affecting the rights or interests of the person claiming to be creditor, devisee, legatee, next of kin or cestui que trust including the ascertainment of any class of the same, directing trustees to do or abstain from doing any particular act, approval of a sale, purchase, compromise or other transaction, and determination of any question arising in the administration of the estate or trust.

Section 45 of the Administration Act provides, inter alia, that the court can make such order with reference to any question arising in respect of any will or administration as the circumstances of the case may require.

It is doubtful that either of these provisions offer trustees any assistance additional to that which is available under s92 of the Act. A liquidator in a winding up by the court has a similar right to apply for directions concerning any particular matter arising under the winding up.4

Approach to judicial advice proceedings How should parties and the courts 36 | BRIEF JULY 2018

approach judicial advice proceedings? In particular, are the proceedings summary in nature, or is it appropriate that they be adversarial and involve detailed analysis of issues?

deciding the issues that are to be agitated in the principal proceeding, that the two steps were not to be elided, and that judicial advice proceedings were not to be treated as a trial.

A useful starting point is the decision of the High Court in Macedonian Orthodox Community Church St Petka Inc v His Eminence Petar The Diocesan Bishop of the Macedonian Orthodox Diocese of Australia and New Zealand (the ‘Macedonian’ case)5. The case dealt with an application for directions under s63 of the Trustees Act 1925 (NSW) (which although in different terms to s92 of the Act has been held to be broadly equivalent to s92).

In this regard, interested third parties are ‘participants’ in advice proceedings rather than ‘parties,’ albeit that they are permitted to be heard and to participate in the proceedings to some extent. Section 92(2) of the Act provides that every application under s92 must be served upon, and the hearing attended by, all persons interested in the application or such of them as the court thinks expedient.

The majority in the Macedonian case made it clear at [61] to [63] that the procedure under s63 was of a ‘summary’ character. The procedure, when introduced into the UK Parliament in 1857, was described as having the objective of providing a ‘cheap and simple process’ as an alternative to the cumbersome and expensive exercise of a general administration suit. The majority in Macedonian held that elements of that objective survive in s63.

Consistent with the notion of advice proceedings being summary in nature, the majority in Macedonian also made it clear at [74] that an application for directions whether to commence or defend proceedings was radically different from

Section 92 reflects a compromise between a procedure for affording private advice to trustees and the need for affected persons to be given a hearing in some cases; Macedonian at [65].6 It is entirely understandable that third parties will want to be involved in advice proceedings, particularly where the advice sought is that the trustee is justified in bringing or defending proceedings. A third party will gain a significant strategic advantage if it can persuade the court not to give the direction sought, because in the absence of the direction, the trustee will have no assurance that it can recover expenses from trust assets and will not be in breach of trust. Instead, the trustee would have to rely upon its own legal advice that it was acting appropriately,

and the trustee’s faith in that advice is likely to have been shaken by the court’s unwillingness to give the direction sought.

The court may also appreciate hearing from third parties, as this can sometimes assist the court in forming an appreciation of the issues and in particular what competing interests say.

On the other hand, much of the delay and complication and hence, expense in advice proceedings, is caused by the excessive involvement of third parties, who may seek to advance extensive evidence and submissions in support of their position. The result is that, although the court is not supposed to treat the s92 application as a trial, it may nonetheless hear disputed evidence and submissions, and it is not unknown for detailed objections to be made to evidence and the like (which probably have no place in what are supposed to be non-adversarial proceedings; in this regard, see the comments of Kenneth Martin J in Wood v Wood (No 4)7 at [18]).

Re Rosewood Research Pty Ltd (No 2)8 is a salutary case for third parties. Trustees sought judicial advice as to whether they were justified in defending proceedings in which they were alleged to have acted in breach of trust. Objectors advanced various arguments in opposition, and sought an order for costs out of the estate regardless of whether they were successful in persuading the court not to give the judicial advice. The numerous arguments and matters raised by the objectors against the giving of the advice sought by the trustees were largely unsuccessful. The court held at [70] and [71] that the adversarial approach adopted by the objectors bore a character that was far away from the summary character of the procedure, that was not something to be encouraged, and that the court could see no good reason why the objectors should have their costs paid out of the trust assets. The objectors were left to pay their own costs.

However, third parties are not always solely to blame for the complications and expense of advice proceedings. A properly advised trustee will know that it will only be protected by the court’s direction if all material and relevant facts have been submitted to the court. This means that a trustee will be tempted to err on the side of caution when compiling evidence in support of the application, lest it be said that there had been inadequate disclosure.

However, it will be counterproductive to produce unnecessary volumes of material. In Wood v Wood, Kenneth Martin J emphasised at [137] that,

notwithstanding the large volume of evidence before him, the proceedings were not the occasion upon which facts put before the court were supposed to be seriously challenged. His Honour was also critical of the large volume of affidavits (which included material of no apparent relevance) and submissions filed in the application; [14], [96], [111], [116], [181], [182].

His Honour also confirmed at [13] and [103(e)] the summary character of the s92 proceedings before him, and at [181] noted that although the Court was obliged to form some view of the underlying merits, it was not its task to evaluate the final merits. The court determined the directions application promptly, but it seems safe to assume that the approach taken by the parties nonetheless involved considerable expense.

Tendering Counsel’s advice as evidence Another aspect of judicial advice proceedings is that applicants have in the past generally been expected to provide the court with an opinion from counsel regarding the proposed course of action.

When such an opinion is provided, it is not usually available to third parties, who are required to be out of court when the opinion is discussed as between the court and the applicant’s counsel.

However, in Plan B Trustees v Parker,9 Edelman J held that the better view today may be that, although a trustee should generally obtain legal advice and form its own view before approaching the court for directions, it should not be the practice for courts to assess the prospects for success of an action by reference to an ‘expert opinion’ from counsel. His Honour expressed various reasons for this view, including that applications are generally no longer ex parte (raising questions of procedural fairness for the parties who cannot see the opinion), that anything in an opinion can just as easily be put in submissions, and that there are real questions about waiver of legal professional privilege. Similar views were expressed by Kenneth Martin J in Wood v Wood.

Accordingly, in WA at least, it is suggested that an applicant will always need to establish that it is proposing to act in a way that is consistent with legal advice, and will need to support its proposed conduct with legal submissions, but will not ordinarily need to provide the court with a copy of the legal advice it has received.

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Maintaining the summary nature of advice proceedings

2. limiting the length of written submissions;

There are numerous cases where trustees obtain advice under s92 with a minimum of fuss and expense. However, in some other cases (of which Macedonian, Wood v Wood and Re Rosewood are examples) the parties seem to have moved away, at least in some respects, from the nonadversarial, summary process originally intended. This can be a serious issue; the advice sought in s92 proceedings is often to do with questions that are fundamental to the due administration of a trust or estate, and if the s92 proceedings become complicated and protracted, then the administration of the trust or estate will be held up.

3. limiting the time allowed for oral submissions;

Of course, the duration and cost of s92 applications will be influenced, to some extent, by the complexity of the issues in respect of which the advice is sought, and by the number of interested parties.

Nonetheless, is there a way of minimising the risk of s92 applications becoming complicated, adversarial and expensive?

It is certainly open to the courts to keep a tight rein on the proceedings, and to remind the parties about the summary nature of s92 applications. This might involve some or all of the following steps being taken at an initial directions hearing: 1. directing the parties to produce only the materials that are genuinely necessary to ensure adequate disclosure of the facts;

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4. informing the applicant that, although it will be required to establish that adequate legal advice has been sought and obtained, the court will not ordinarily expect the advice to form part of the evidence (at least in cases where other parties seek to be heard); 5. making it clear (if the direction sought is in relation to the trustee’s involvement in other proceedings) that the application for directions will not be permitted to become a mini-trial of the issues in the other proceedings, and that there will be no findings of fact or determination of issues; 6. warning third parties that, even if they have a relevant interest in the trust that warrants them being heard, they are likely to have their costs disallowed if they take an excessive role which turns the application into an adversarial one.

However, much of the work in relation to a s92 application will have been done (at least by the applicant) before getting to an initial directions hearing. Because of this (and to achieve consistency in approach) it might be preferable for some or all of the above to be confirmed in practice directions or rules of court.

Section 92 applications are important not only because they protect the interests of the trust, but also because they provide a means by which trustees can manage their risk. The procedure should be as originally intended - relatively quick, inexpensive and summary in nature.

If the procedure is allowed to become unduly complicated, adversarial and expensive, that may act as a disincentive for people to take on the office of trustee, trust resources (and the resources of the courts) will be wasted, and the due administration of trusts and estates will be held up.

NOTES: 1

2

3 4 5

6 7

8 9

In the application of NSW Trustee and Guardian [2014] NSWSC 423 at [24] – [26], Plan B Trustees v Parker [2013] WASC 216 at [48].

Campbell (as trustee for the Joan Macpherson Trust and the Banandra Pastoral Settlement Trust) [2016] NSWSC 1751 at [31].

See for example AMP Capital Investors as Responsible Entity for the KSC Trust [2010] NSWSC 1259 at [17] See s479(3) of the Corporations Act and Read v Bowesco Pty Ltd [2013] WASC 240.

Macedonian Orthodox Community Church St Petka Inc v His Eminence Petar The Diocesan Bishop of the Macedonian Orthodox Diocese of Australia and New Zealand [2008] HCA 42. See also the general discussion of s92 applications in Hockley & McMillan Wills Probate and Administration Service WA at [36,020] and following.

See also Re Estate late Chow Cho-Poon [2013] NSWSC 844 at [199] Wood v Wood (No 4) [2014] WASC 393. See similar comments by Kenneth Martin J in Abbott Trustee Services Pty Ltd v Attorney General of WA [2017] WASC 117 at [19] and [59], where His Honour emphasised the summary, non-adversarial nature of the proceedings.

Re Rosewood Research Pty Ltd (No 2) [2014] NSWSC 1226.

Plan B Trustees v Parker [2013] WASC 216.

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Insights from the Bench There have been many comings and goings from the judiciary in 2018, and hence many welcome and farewell ceremonies. These occasions provide insights into the human side of judges, the practice of the law and the challenges and expectations of judicial office.

What follows are extracts from recent welcome ceremonies. They of course do not do justice (pun partially intended) to the whole of the ceremony in which all of the judges’ achievements, qualities and esteem in which they are held are recognised and celebrated, nor to the thanks and emphasis that is always placed upon the support of their Honours' family and friends.

Nevertheless, the following snippets are hopefully notable and insightful.

From the welcome for the Hon Justice John Vaughan, Supreme Court of Western Australia (1 May 2018) Some observations upon Vaughan J’s style as a surgeon – sorry – advocate, by the Attorney General, the Hon John Quigley MLA: Your Honour is known for being a thoughtful and considerate advisor and advocate, never having given to hyperbole or theatrics. In many ways, your Honour was a model of what is traditionally

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known at the bar as an equity whisperer.

The opposite of the bombastic lawyer, the equity whisperer is quiet, methodical and even surgical in the way in which he or she approaches a case or dismantles the case of an opponent.

In this, your Honour has no doubt followed your father, Richard, a leading Australian neurosurgeon. While many of your colleagues tended to emulate the brutal approach of the orthopaedic surgeon […] your Honour always adopted a careful and surgical approach to the problem at hand, in many ways more in keeping with the delicate brain surgery.

The Hon John Quigley MLA on Vaughan J’s humility: While never lacking confidence or decisiveness required of a successful advocate or advisor, your Honour always discharged your duties in an unassuming and humble way.

Evidence of both your Honour’s humility and your Honour’s high regard was the fact that in 2013, your Honour had to be prevailed upon by colleagues to apply to the Chief Justice for appointment as Senior Counsel.

And of course, your Honour was appointed that very same year. It would seem that the only question raised in

combining the complementary qualities brought by your Honour and your partner, Lee Christensen, who was something of an Oscar Madison to your Felix Unger.

relation to your application is why had it not been made sooner. In addition to your Honour’s unquestioned legal expertise, these personal qualities will serve you well as a judge of this court.

Whatever the final result in any given case, all litigants want to know and be assured that their case has been properly heard and has been given thorough and careful consideration by the court.

In this, litigants before your Honour can have complete confidence. As for humility, it is no small thing to stand or sit in judgment of one’s fellow citizens. Those who assume that responsibility, conscious of its gravity and its seriousness, can only be better for it. Again, the community can be confident that your Honour will bring that gravity and seriousness to the task.

On the practice of law occasionally giving rise to ‘Odd Couples’ – The Felix Unger Factor. From Matthew Howard SC, President of the WA Bar Association: Your Honour practised as a partner of Deacons for five years before commencing your own firm, Christensen & Vaughan, in August 2003. It was a specialist insolvency firm. Christensen & Vaughan soon proved to be a significant local force in the WA legal landscape,

Further, your Honour reportedly did not seek to demean your instructors by denying them the right of free determination and the right to purchase their own sandwich.

On Vaughan J’s experience, a certain prominent matter, and being in good company. From the Hon John Quigley MLA:

Matthew Howard SC on the perils of cultural references from the past:1

In the High Court, most recently your Honour appeared with his Honour Justice Colvin of the Federal Court for the liquidator of the various Bell Group entities in the successful constitutional challenge to the Western Australian Bell Group Finalisation Legislation. Your Honour’s reputation at the Bar extended not only to your Honour’s considerable expertise and scholarship, but to your Honour’s personal qualities; personal qualities that will be of great value as a member of this Honourable Court.

In a particular case […] you described the other side’s proposal, which required this Court’s approval, in your written submission as a “Clayton’s proposal”.

It was, with respect, an effective piece of written advocacy. However, your Honour perhaps did not anticipate that junior counsel on the other side would not grasp the cultural reference that your Honour was making and therefore spent considerable time frustratingly trying to identify the Clayton’s case that lay behind your Honour’s written observation.

From Matthew Howard SC:

Vaughan J channelling Yoda:

Your Honour was regularly engaged in the most difficult cases, especially if they involved an insolvency aspect, none more so than the hundred years war, which is also known as the Bell case, and in which your Honour was briefed and appeared in the High Court in 2016. Indeed, your Honour becomes, no doubt on an imperfect count, at least the seventh silk involved in that litigation to be elevated to the bench following Finkelstein, Allsop, Corboy, Robson, Bathurst, BanksSmith and, more recently Colvin. It is a revealingly elite field which your Honour joins.

Mr Attorney, notwithstanding the mishap of my overseas birth, I am a proud and parochial Western Australian. I am deeply honoured by the appointment as a Judge of this Court and the trust and confidence placed in me by yourself and the government on behalf of the people of Western Australia. I will do my very best. My children will have noticed that I have not said that I will try to do my best.

Do or do not. There is no try.

Matthew Howard SC on there really being no such thing as a free lunch and the importance of free determination: Some may think that moving from being a leading commercial silk to this court is rather like swapping a palace for a monastery, where a certain frugality is necessarily encouraged by the somewhat reduced resources available. In this respect, your Honour should find the transition perhaps less difficult than some. No one could ever accuse your Honour of extravagance while at the Bar. Indeed, your solicitors have reported of celebratory lunches following large and important wins consisting of a sandwich in a food hall.

Vaughan J on being a solicitor and the merits of a general practice: The challenges that are presented in being a good solicitor are, in my respectful opinion, far more demanding than those that confront a barrister. That is particularly the case for a commercial solicitor. He or she must deal with an increasingly complex legal and regulatory environment and try to second guess what may happen years after a transaction has been completed.

Although after a while I developed a specialty in the area of insolvency, that is something that happened naturally after I had been exposed to and worked in a number of diverse areas. In more recent times, I’ve observed that young practitioners are pushed to specialise very early in their careers. I am grateful that I was not and that, in that early time, I was exposed to a variety of work across many areas of the law.

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From the welcome for the Hon Justice Katrina Banks-Smith and the Hon Justice Craig Colvin, Federal Court of Australia (28 February 2018)2 Peter Macliver, representing the Commonwealth Attorney-General on medicine’s loss being the law’s gain in respect to Banks-Smith J: I am told that your Honour narrowly avoided a career in medicine, following an unsavoury tour of a cadaver laboratory. I think we’re all grateful for that. I’m certain that many members of the judiciary, the legal profession and members of the Australian community […] are thankful that you instead did choose to study a Bachelor of Laws at the University of Tasmania.

Peter Macliver on the uncanny intersection between musical and legal talent in respect to both Justice Banks-Smith and Justice Colvin:

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I’m told that shortly following your Honour [Banks-Smith J]’s appointment to the Supreme Court, you were conscripted without much resistance into the Supreme Court’s occasional rock band which has been known as a feature for staff at the Court’s annual Christmas party. I’m certain that your talents as a pianist and backing vocalist will be sorely missed. In fact, it is rumoured that an amendment to the Practice Directions is under consideration with Judges from other jurisdictions to make guest appearances in the band in the future.

Your Honour [Colvin J] like Justice Banks-Smith, has also demonstrated considerable talent as a musician, though you may be the only member of this Court to star in your own musical video.

Konrad de Kerloy, Treasurer of the Law Council of Australia, on their Honours ticking all the boxes for being a great judge: Now that you’ve left the Bar and joined the Federal Court, all I can say is: welcome home. I can also say with confidence that your Honours will make great Judges of this Court. In that regard, I thought it worth noting the traits of a good Judge and then seeing whether

your Honours measured up. I adapted what one sees sometimes in chambers as client comments. Trait number 1: good guy, used in a gender-neutral way. Banks-Smith, tick. Colvin, tick.

Trait 2: has the smarts. Banks-Smith, tick. Colvin, tick. Believes judicial stress is something suffered by Judges, not something Judges inflict on advocates.

Tick, tick. Delivers Judgment in a timely way. BanksSmith, tick. Proven performer.

Colvin, tick to be advised.

On a more serious note and from my own personal knowledge of you, your Honours are honest and straight-shooting, guileless and perceptive, humorous, empathetic and compassionate people.

These traits will stand you in very good stead in dealing with the onerous responsibilities of a Judge of this Court.

Both of your Honours have made significant contributions to the Law Society of Western Australia for which the Law Society is very grateful.

Banks-Smith J incorporating by reference, observations on one aspect of the Bar, and recognising the support system that is so important for those in the law: In 2016 when I joined the Supreme

extracts from that ceremony are pertinent and are reproduced below.]

Elizabeth Needham on the Bar’s loss: Your Honour’s appointment is both celebrated and mourned, mourned by women at the depletion of senior counsel in their ranks and their leaders, mourned by the loss of a friend and colleague; by the juniors, men and women, who you have mentored, something that you would have seen very clearly at Chambers – your farewell from Chambers– where you were surrounded by many junior practitioners from the Bar who you have supported and inspired, and of course, by your instructors, but also celebrated by all those very same people, and many more besides, for both an appointment richly deserved and for the added diversity that your appointment brings.

Your Honour’s appointment now enables you to make a very significant contribution to the administration of justice in Western Australia, one which I have no doubt you will execute with all the skill and ability that has marked your life on this side of the bar table.

Banks-Smith J on the qualities to be aspired to as a Judge: And so I come to this new role as a Judge of this Court. It is an enormous honour. I am honoured and humbled by it. I have received so many lovely letters, flowers, reminiscences and expressions of support. One thoughtful writer reflected on the values that he considered make a good judge: humane, slow to cast judgment, quick to afford a fair hearing, aware of the pressures and limits we all work under, and alive to the nature of human experience. Those values are clearly aspirational, but I do give you all my assurance that I will remind myself regularly to aspire to them.

Colvin J on humility and the weight of judicial office: Many of you know my fondness for hyperbole and adverbs in Court submissions. Given the liberal deployment of both this afternoon, I hope there remains sufficient truth in what has been said that I may still be recognised.

Nevertheless, I do protest a little. One of the best Australian virtues is that we

Court, I was fortunate to have what I remember as a very warm welcome ceremony. I used up all the good stuff in that ceremony, as I never anticipated there would be another. So I will keep this reply short, conscious also that this is an afternoon welcome and it is never a good idea to keep the Bar from their drinks.

We are all a product of the friends and family around us who support and endure.

[Her Honour then proceeded to make a number of observations about the humbling nature of being appointed, thanked and recognised all in the profession who had influenced and assisted her, and noted the great importance of support from family and friends.]

From Banks-Smith J’s Honour’s Supreme Court welcome – the loss to the Bar from BanksSmith J’s move to the Bench and the qualities of a judge to aspire to: [As Banks-Smith J referred to her welcome to the Supreme Court some 43

have a way of keeping in check those who would set themselves up as being better than the rest of us. […] We are fair dinkum, genuine, plain speaking people.

This is just as well because, to borrow a line, half the harm that is done in this world is due to people who want to feel important. So as I begin this new task, I hope that each of you will accept my request in future to please keep me short, honest and plain.

Despite the best efforts of those who have spoken, I question indeed whether it’s possible to be worthy of Judicial appointment. Manifestly, our imperfections mean that we are unable, without some hypocrisy, to sit upon the judgment of the behaviour of others.

Fortunately, the strength of the Court system depends upon much more than saying overly nice things to a new Judge, or, indeed, upon the confidence of the new Judge. It requires Judges to hear cases in open Courts where they’re subject to public scrutiny, to adhere to fair, consistent, established procedures, to reflect carefully before deciding, indeed, to labour and agonise in difficult cases, to publish considered reasons, to refrain from speaking in defence of their own decisions, even in the face of unjustified criticism, to refrain from debating in political forums or to have interests that conflict with their office.

From the welcome of the Hon Justice Anthony Derrick, Supreme Court of Western Australia (16 March 2018) From the Hon Chief Justice Wayne Martin AC on the benefits of diverse experience and having runs on the board and carrying of the bat: Your Honour’s capacity as an instructor […] reflected the extensive experience which you gained as an advocate during your period as a prosecutor and at the bar. Your Honour has served with distinction as a member of the District Court for almost eight years. Because of the breadth of your forensic experience you have no difficulty undertaking work within any area of that court’s jurisdiction, including criminal cases, personal injury claims and commercial cases. Despite your active discharge of cases in all those areas of the court’s jurisdiction, your

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name has seldom been seen in appeal books.

The breadth of the forensic and judicial experience to which I have referred will be of great advantage to you as you undertake the variety of work which this Court will provide over that period, and we hope much longer, and will be of very considerable assistance to the Court in the discharge of its demanding and ever increasing case load.

Given your fondness for cricket, if I might use a metaphor drawn from that sporting arena, you already have the runs on the board and might now be said to be heading to the crease for your second innings having carried your bat through the first innings. I and your colleagues on this court have every expectation that your dig in this innings will be every bit as prolific and successful as your first innings in the District Court.

Stephen Davies SC on being a lawyers’ lawyer and a cheeky observation upon the Bar: The Chief Justice has accurately described your demeanour as calm, thorough, measured, diligent and strategic. Your Honour in practice was what is sometimes called a lawyer’s Lawyer, an expression with various connotations including the epitome of a lawyer, a lawyer that other lawyers admire or seek to emulate and a lawyer that other lawyers would have as their own lawyer.

All of those meanings applied to your Honour, but combined with those qualities where your Honour’s unassuming nature and modesty, neither of those characteristics being particularly obviously in surplus among your Honour’s colleagues at the bar at that time. Your Honour will know, of course, that the bar is now a softer, kinder, gentler, more inclusive place.

Derrick J on some of the lighter moments (pun again partially intended) on juries Dealing with juries also has its lighter moments. I recall that in one of my earlier trials after my appointment to the District Court I received, within a short time of the trial starting, a note from the rather Bohemian looking foreperson inquiring if I had given any consideration to the damage that I was doing to the environment by leaving all of the lights on in the courtroom. After speaking to this gentleman I thanked him for his service to

that point and discharged him given my concern that he was perhaps not properly focusing on the issues at hand.

I realised that I probably made the right decision when my advice to the rest of the jury that I had discharged one of their number was met with furious nods of agreement.

Derrick J on moving courts and the District Court – and more on juries Without in any way wishing to diminish the honour that has been bestowed upon me by being appointed to this court, I confess to feeling a degree of sadness about having left the District Court. I very much enjoyed my time on the court. The District Court does important and often difficult work. Of course, much of that work consists of presiding over trials of serious criminal charges before a jury; a type of work that I very much enjoy. I am a supporter of the jury system; I am a firm believer in the proposition that the ability of a jury as a whole is greater than the sum of its parts. Further, I have always found observing and interacting with juries to be particularly interesting.

I have watched jurors, who at the beginning of a trial reluctantly dragged themselves into the jury box when their number is called, become obviously engaged in and stimulated by the important task that they are asked to then perform over a few days.

Attorney-General the Hon John Quigley MLA on Derrick J and a certain endless love: Your reputation as counsel, as the Chief Justice has noted, was calm, thorough, measured and diligent. Those traits as counsel have carried through onto the bench in your judicial career thus far. Your Honour has a reputation as the judge for being polite, patient, thorough and, as your Honour’s academic achievements foreshadowed, your Honour brings great scholarship to your written judgments. As one of your fellow judges at the District Court said upon hearing upon your appointment to this court “He is such a hard worker, and what’s more, amazingly after so many years, he still loves the law.”

NOTES: 1

2

Which hopefully younger readers of Brief do not suffer from in relation to the Felix Unger/Oscar Madison reference.

With a reference also to Banks-Smith J’s welcome to the Supreme Court.

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

Property – De facto thresholds – Evidence that parties “presented as a couple” meaningless – Bald denial without contrary evidence also inadequate In Crick & Bennett [2018] FamCAFC 68 (13 April 2018) the Full Court (Ainslie-Wallace, Aldridge & Watts JJ) dismissed Mr Crick’s appeal against Judge Tonkin’s declaration that a de facto relationship existed while he lived in Ms Bennett’s home from 2001 to 2014. He argued that despite having a child in 2003 they had lived apart under one roof since 2004, never acquiring any joint property nor operating any joint account.

The Full Court said (at [9]-[10]): “ … [O]n many occasions the respondent gave evidence that the parties went out to particular events where they ‘presented as a couple’. The appellant simply denied that they did so. … [T]he evidence does not add to those bald descriptions and denials to give any indication of what actually occurred at these events. It is difficult to understand what is meant by the phrase ‘presented as a couple’. If it meant that the parties arrived at a function or event together and left together, then the phrase adds little to the evidence … already before the Court. If it is intended to suggest something else … it is not clear to us what that might be.

The appellant accepted that the parties attended many family, social and school events with the child but denied that when they were at these events the parties presented as a couple. He did not set out any facts or circumstances that could illuminate his assertion and, as with the respondent’s evidence along similar lines, it is impossible to attribute any probative weight to that evidence.”

The Full Court continued (from [64]): “The appellant submitted that the notion of a ‘couple’, of itself, is not a relevant consideration for the purposes of s 4AA(2).

[65] That is not entirely correct. The ultimate task of the court is to determine whether the parties had ‘a relationship as a couple living together on a genuine domestic basis’ (s 4AA(1)(c)). The concept of a couple is thus part of the test. How that test is met is determined by the considerations required by s 4AA(2). None of those directly refers to ‘couple’. It is here that care needs to be taken not to add a gloss to the words of the section …

[66] … [T]he primary judge rejected many, but importantly not all, references to

‘presenting as a couple’ … on the ground that they were conclusions ( … we assume by this that her Honour rejected th[at] evidence because it had no probative value – see Britt & Britt (2017) FLC 93-764 at 77,105–77,107). ( … ) [69] Shorn of the gloss of ‘presenting as a couple’, it is clear that the primary judge found that between 2002 and 2013 the parties attended many social and family events and school functions with the child.

These events included family Christmases and birthdays … at the home of the parties [and] the homes of other relatives. The parties … visited the respondent’s sister (almost weekly) over the summer …

[70] This was significant evidence of the public aspects of the … relationship and supported a finding that there was a de facto relationship. If the appellant wished to contend that the parties’ conduct at those events led to a different conclusion then it was incumbent on him to adduce evidence to support that proposition.”

Property – Escort agreed to move interstate with former client if he bought her a house – Gift or loan In Higgins [2018] FamCA 243 (15 February 2018) an escort (respondent) and her client (applicant) married after associating for some years but never living together.

Each lived with a de facto partner and the respondent had a daughter. Meeting in 2006, the applicant was 64, the respondent 31. She was charging $275 per hour or $1,500 overnight for her services until late 2007 when the applicant began supporting her and her daughter.

The respondent said ([34]) that she was to provide the applicant with “companionship” in return, although she continued working as an escort until 2010, saying ([36]) that she considered “repulsive” some things about the applicant. In 2010 she agreed to move from Brisbane to Melbourne if he bought her a house. He intended to live in a house near hers upon selling his business. He bought a house in her name for $1.1m structured as a loan from his company “PPL”. She signed a loan acknowledgment.

The parties married in 2012 (still not cohabiting) but “separated” in 2015. PPL sued to recover the loan, the respondent seeking a declaration that the property was hers. She also sought maintenance.

Cronin J said (from [41]): “The respondent claimed that she was

spending time with the applicant and as a consequence, made ‘sacrifices’ and ‘endured’ his behaviour because of his earlier statement that he would buy her a house. That endurance included talking with him each night that she was away from him and reassuring him of her interest in him by replying to his text or email messages.

She bought him gifts but with his credit card. Throughout these periods apart, the respondent continued to live with her partner and daughter … [which] was always known to the applicant. As such, it defies logic to say that this was anything other than a commercial arrangement except with friendship considerations thrown in.

[42] ( … ) The applicant was besotted with the respondent and generous because she fulfilled his needs. ( … ) [48] ( … ) [T]he applicant agreed [to buy a house in her name] and then said he would also buy a home for himself near [her] so that they could ‘see each other regularly’.

That is … what happened.

As to the loan acknowledgment, the Court (at [134]) cited Israel v Foreshore Properties Pty Ltd (in liq) (1980) 30 ALR 631 where it was held that “[w]hether a contractual relationship arises depends ‘upon all the circumstances’ so [that] all of what occurred is relevant”. ( … ) The Court said (from [141]): “The applicant wanted the respondent close by to continue an arrangement which suited them both and … the conversations until at least after settlement were [about] a gift because otherwise the respondent would not have come to Melbourne. ( … ) [147] … I find that … the funds of PPL … needed to be documented for tax effective purposes.”

Cronin J said ([180]) that unconscionability could not arise either “because the applicant got what he bargained for”, concluding ([212]) that “it would not be just and equitable to alter the respondent’s interest in her house”.

Her application for maintenance was dismissed and she was ordered to repay $180,000 paid as an interim property settlement.

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.

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Young Lawyers Case Notes Compiled by volunteers coordinated by the Law Society's Young Lawyers Committee STEPHEN BRADLEY LAUDER as executor of the will of Elaine Kathleen Rankin -V- Lauder [2018] WASC 91 This case concerns an application by an executor for rectification of a clause in a will to give effect to a deceased testator’s intention (Lauder Case).

Rectification of a clause is necessary when an error means the will does not carry out the intention of a testator.

Section 50(1) of the Wills Act 1970 (WA) (Wills Act) outlines the circumstances in which a court may rectify a will to carry out the intentions of a testator. The will the subject of this case was drafted by a solicitor. According to the testator’s will, the residuary estate was to be distributed as follows: •

one undivided one twentieth share to Mr Stanley Lauder (Mr Kay Woods having predeceased Mrs Rankin),

•

another undivided one twentieth share to Mr Stanley Lauder (Mr Albert Everett having predeceased Mrs Rankin), and

•

the remaining eight undivided one tenth shares to Mr Stanley Lauder who survived Mrs Rankin.

The result of this clause was a partial intestacy as to a one tenth share of the residuary estate.

Rectification of the Will Section 50(1) of the Wills Act enables a court to rectify a will to carry out the intentions of a testator if: a clerical error was made, or the will does not give effect to the testator’s intentions.

Justice Pritchard did not rectify the will on the basis that a clerical error was made by the solicitor. It was not clear on the facts which typographical error was the cause of confusion.

It was a question of whether: the clause that stated that the residual estate be distributed ‘one twentieth’ shares, rather than ‘one-tenth shares’ shares was the source of confusion. Or, whether the reference to “eight’ undivided one tenth shares, rather than ‘nine’ undivided one tenth shares” was the main source of confusion.

Therefore, Justice Pritchard found that rectification of the will is permitted when, on its proper construction, it does not conform to the testator’s

46 | BRIEF JULY 2018

intention when at the time that he or she instructed the solicitor. To determine the testator’s intention at the time of making the will the standard of proof had to be, on the balance of probabilities, clear and convincing proof. Justice Pritchard stipulated that evidence of a legal practitioner who received the testator’s instructions will carry great weight in determining the testator’s intention to uphold this standard of proof.

Justice Pritchard held that the word ‘remaining’ is indicative on its face, that after the first two shares were distributed, of the testator’s intention of letting Stanley receive the remainder of the residuary estate. The clear and convincing evidence was obtained from the solicitor’s affidavit which comprised of information about what the solicitor recalled from the meeting.

The solicitor deposed that the testator was ‘adamant in her instructions’ that if both Albert and Kay died, then Stanley were to receive the residuary estate. Justice Pritchard ruled that an additional clause could be inserted to rectify the Will.

Extension of time The testator died on 10 November 2016 and the application was filed on 17 August 2017, which was outside the scope of the 6-month time period required under section 50(2) of the Wills Act. However, an extension of time to bring the Application to the Court by the executor was granted. Section 50(3) of the Wills Act gives the Court a wide discretion to extend the period of time the executor can make an application.

Justice Pritchard assessed whether the in the interests of justice, an extension should be granted. This was due to the fact that a substantial delay did not occur. Justice Pritchard was satisfied that the executor adequately explained the reasons for the delay. The reasons included factors such as: renunciation of executors and the need to obtain an affidavit from the solicitor to provide evidence of the testator’s intention.

The costs of the application by the executor were out of the deceased estate.

Author: Natalie Connor, Solicitor at Legal Consolidated Barristers and Solicitors

Lunenburg, Canada

Ex Juris: Travel Tales from the Legal Profession The Maritime Provinces of Canada The Maritime Provinces on the east coast of Canada are the home of spectacular scenery and wildlife. They are a naturalist and a photographer's dream.

Winter is bleak. The locals tend to head to Florida. But summer is amazing.

Lunenburg, near Halifax, is a pretty village used in the filming of Tom Sellick's series or Robert B Parker’s tortured detective Jesse Stone (typical Nordic-type noir but set in New England).

Halifax was the scene of the world's largest explosion until the atomic bomb. In 1917 an explosives ship, the Mont-Blanc, blew up after a collision leading to devastation and loss of life. Some effects are still visible. The town itself is not especially noteworthy.

Interestingly, Halifax Cemetery holds the graves of the victims of the Titanic who were pulled from the sea following the sinking. Graves are not normally associated with the Titanic but there are many in the Fairview Cemetery arranged in the shape of a ship's hull.

The tomb of the unknown child is special. In 2007 the baby was finally identified through DNA matched to a pair of shoes.

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

North of Nova Scotia and reachable by bridge from New Brunswick is Prince Edward Island.

Head over if you are a fan of Anne of Green Gables and visit her home – well at least the gables are green.

When in the Maritime Provinces, getting on the water is a must. The sea life, including whales and all types of sea bird will stir even those with little interest in nature. The fishing is good and the lobsters ideal. The coastlines are picture perfect all the way to St John's in the extreme east of Newfoundland, and a surprisingly vibrant city.

The Ile de Madeleine is home to Acadians.

Neither English nor French; they are their own people. Long ago many emigrated to Louisiana where their name contracted to Cajun. Try the smoked fish.

Crossing over into Quebec, many visitors stop at Saguenay, an unremarkable town with two remarkable features. First, the Saguenay Fjord is home to many pods of whales. Secondly, the good citizens enact a history of the area in a lengthy play called La Fabuleuse variously described on Trip Advisor as 'absolutely awful' to 'fabulous'. It has to be seen to be believed and make up your own mind. The 200-strong

cast are all amateurs and the performance includes real cattle, floods, battles and even a descent from helicopters.

My partner and I travelled from Portland, Maine to Toronto on the Pearl Mist, a cruise ship designed for the St Laurence Seaway.

The journey west from Montreal takes a day and passes through eight locks. Other lawyers have taken cruises including Viking Lines and Cunard.

The best way to see the Maritime Provinces is by car interspersed with ferry trips.

There is so much to see and do, you could spend six weeks touring if your practice allowed it.

Oh – and you get to eat poutine!

Tell us about your favourite (or not so favourite) destinations and why you travel there.

Please send your contributions to brief@lawsocietywa.asn.au

47

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

Your Dog enjoys celebrating Christmas in July, when there is a bite in the air overnight, and blissful weather during the day, to don a jacket and walk in the wind and rain, celebrating the end of the financial year, and the start of the next cycle. Thence to repair home, where a large pot of coq au vin simmers gently on the hob, with baked potatoes in their jackets and a green salad to go with it. A couple of bottles of the celebrated Watershed Estate Awakening Cabernet Sauvignon, lively conversation, good humour and the camaraderie which goes with it make a memorable event. Vastly preferable to the Western celebration of Christmas, a religious event, which has fallen prey to and been overtaken by commercialisation in all its forms.

Apparently, Christmas in July has its origins in the opera Werther (1892), where children rehearse a Christmas song in July, prompting the comment “vous chantez Noël en juillet… c’est s’y prendre à l’avance”.

July is one of those months where one reflects on the events of the past year, the end of the financial year and what may lie ahead.

This year is no exception to the rule! Thanks to the fact we live in a democracy with a free Press, matters which might other be suppressed ultimately see the light of day.

The dual citizenship saga, which has played itself out in the Parliament, the High Court and now the ballot box, regarding s44 of the Constitution provides one of the less illuminating aspects of what passes for acceptable conduct by parliamentarians.

Surely the candidates who have found themselves disqualified knew this at the time, and if not, when they were put on enquiry in the latter part of 2017? One thinks of written assurances given in the Parliament that those who have since been disqualified were qualified. Interestingly, people elected to a position in the Parliament often complain they do not enjoy the respect of the populace. Surely respect is earned? It is not a fringe benefit which goes with the position.

In a different context, there are the usual reports relating to abuse of travel and housing allowances. Your Dog believes it would be better to pay a gross salary, inclusive of allowances, so that how it is spent, what is deductible and what is not deductible is for determination under the tax laws. Of course, this is confused by provisions of the fringe benefits tax legislation. Perhaps diligent enforcement of the income tax laws would be more effective.

The spectacle of Mr. Urban’s conduct as an elected representative in Western Australia is just as distressing. The Press suggests he faces prosecution: why do people succumb to do these things?

For those who want to wear medals not bestowed for service or the like, it would be easier to buy a Christmas cracker and use one of the medals or other toys they provide! Who does one impress, or, more accurately, fool? Perhaps oneself?

As many readers would know, dogs tend to release hydrogen sulphide gas after consuming some dishes. Your Dog is no exception. In that context, he has always thought of taxation laws as a form of hydrogen sulphide: these laws float above the atmosphere, sometimes descending with a horrible smell.

An example is Ellison v Sandini Pty Ltd [2018] FCAFC 44, where the warring spouses reached agreement on a property settlement.

48 | BRIEF JULY 2018

It turned out that the transaction in that form triggered CGT event A1 (quite why the ITAA now has 83 CGT events is a mystery.

Perhaps the clever country has become too clever!).

As Logan J said at para [5]: “The evidence in this case in relation to the application by Ms Ellison for the making and amendment of an order (I refer to the orders collectively as “the order”) under s79 of the Family Law Act (Cth) (Family Law Act), the subsequent lodgement of a consent by her and Mr Ellison and supporting materials and their approval by the Family Court, all, seemingly, without any attention to the possible federal or revenue law consequences of the order proposed, made and later amended, gives pause for thought about the risks of over-specialisation in both the practising profession and the judiciary. However this may be, the task in these appeals is just to determine what those consequences were.”

Could it be the case that as the demands on the profession have become more intense, specialisation has become a driver? Back in the 80s and 90s, David Maister’s profit formula for law firms drove the refinement of drivers which had a marked effect on profitability, used to determine profit per partner. The big drivers were leverage (increased staff to partner ratios), blended billing rate (noting the relevant inelasticity of charge rates, increasing the average rate across the firm), utilisation (by increasing hours worked), and recovery. While that model may have changed in certain respects, has it come at the expense of generalisation, specialisation being seen as a means of increasing utilisation, the blended billing rate and leverage? One hears stories, perhaps anecdotal, that 30 years or so since the model was adopted, corporate clients now resist inclusion of younger solicitors in a team, it being the client’s perception that it is paying for the training.

In a previous note your Dog commented on some of the transcripts of the Royal Commission into misconduct in the Banking, Superannuation and Financial Services Industry.

One wonders what the outcome of the Royal Commission will be on the finance industry. Practically everyone is alive to what used to be said about insurance salesmen, encyclopedia salesmen, carpet salesmen and the like. Commission-based remuneration has inherent drawbacks going to what is provided, the manner in which it is done, and the inevitable conflict of interest.

In one of your Dog’s more celebrated victories, acting for a scrap metal dealer (read Rogue) he was reminded of the second-hand dealer who died and went to heaven. St Peter asked him to wait at the Pearly Gates while he went to check the admissions and death register. By the time St Peter returned the Pearly Gates had been stolen.

The moral is that the financial planners of today, some of whom charge for no service, or charge the dead, are the encyclopedia and life insurance salesmen of bygone years. What do they sell?

Nothing – they use the client’s funds as the base from which to charge fees, which once again brings one to the iniquity of commission-based remuneration.

Law Council Update

Law Council supports calls for Voice to Parliament The Law Council has called on the Australian Government to work with Aboriginal and Torres Strait Islander peoples to constitutionally enshrine a representative Voice to the Australian Parliament.

The Joint Select Committee on Constitutional Recognition Relating to Aboriginal and Torres Strait Islander Peoples 2018 is currently producing an interim report having been asked to recommend options for constitutional change and any potential complementary legislative measures to advance self-determination for Aboriginal and Torres Strait Islander peoples.

Law Council President, Morry Bailes, said the Law Council has consistently supported the capacity by which Aboriginal and Torres Strait Islander peoples are able to determine their own political future, such as a constitutionally enshrined representative body that gives Aboriginal and Torres Strait Islander First Nations a Voice to the Australian Parliament, as has been recommended by the Referendum Council in its report of June 2017.

“An enshrined Voice to Parliament in the Australian Constitution, as recommended by the Referendum Council, would play a vital role in Aboriginal and Torres Strait Islander peoples’ pursuit of self-determination,” Mr Bailes said.

The work of the Referendum Council, informed by First Nations Regional Dialogues and the National Convention at Uluru, represents one of the most significant consultations with Aboriginal and Torres Strait Islander peoples in Australia’s history and the call for a Voice to Parliament was the proposal that received the highest level of support.

Mr Bailes said the Uluru Statement and Referendum Council have provided an important and unique opportunity to reset the nation’s relationship with Aboriginal and Torres Strait Islander peoples in Australia, providing direction for a more unified and reconciled nation.

“It was profoundly disappointing that the Referendum Council’s recommendation was rejected by the Australian Government last year,” Mr Bailes said.

“The right to self-determination is a fundamental and non-derogable principle of international law, and as the Law Council has previously stated, there is no legal impediment to making provision for a representative body to provide Aboriginal and Torres Strait Islander First Nations a Voice to Parliament in the Constitution.

“It does not call for a decisionmaking power to be afforded to the proposed representative body and the proposal would not affect the structure or operation of a bi-cameral federal Parliament. “It also ought to be noted, the proposal is consistent with parliamentary sovereignty and seeks to give Aboriginal and Torres Strait Islander First Nations a Voice to the Australian Parliament, not in the Australian Parliament.

“The Law Council would urge the Australian Government to engage with Aboriginal and Torres Strait Islander communities to progress the realisation of the proposals that emerged from the Uluru Statement and Referendum Council, proposals that are endorsed by clear expressions of support from Aboriginal and Torres Strait Islander peoples.” Mr Bailes said.

Progress in foreign influence legislation acknowledged, yet concerns remain The Law Council acknowledges the Australian Government’s proposed amendments to the Foreign Influence Transparency Scheme Bill (FITS Bill) addresses some of the significant concerns raised by the Law Council and others, yet requires further changes before passage through the Parliament.

Law Council President, Morry Bailes, said the original Bill had the potential to create a chilling effect on public policy dialogue, due to the potential legislative over-reach of the scheme, the ambiguity of its key terms, and the significant penalties attached to non-compliance.

“The Law Council is pleased that the Attorney-General intends to introduce amendments seeking to limit who would be considered to be a foreign principal, narrowing the instances where a person will be taken to be acting under the influence or a foreign principal and broadening the exemptions from registration,” Mr Bailes said.

Mr Bailes said while further amendments would be required, which the Law Council will explore fully in a subsequent submission, it is the Law Council’s preliminary view the latest amendments amount to a significant improvement of the Bill, including its impact on freedom of speech.

“The Law Council particularly welcomes a broadening of the exemption for the provision of legal advice beyond just representation in proceedings, including in relation to the administrative processes of government,” Mr Bailes said.

“Protections for parliamentary and legal professional privilege are also positive.

“Nonetheless, we need to consider the amendments in closer detail to determine how they fit with other legislation currently before Parliament, and to ensure consistency with fundamental rule of law principles.”

The Law Council intends to provide a supplementary submission to the Parliamentary Joint Committee on Intelligence and Security in relation to the FITS Bill which will carefully examine the: •

impact on charities and the not-forprofit sector;

•

new foreign principal category of a ‘foreign government related entity’;

•

proposed new transparency notice scheme for which procedural fairness is not required to be observed; and

•

proposed introduction of an absolute liability element for certain criminal offence provisions.

The Law Council would welcome the opportunity to work through these concerns with Australian Government and the Parliament on the Bill.

49

Aunt Prudence Juris Your one stop solution to problems after law school Ever wondered about how to recover from a faux pas at work, how to reject work-social invitations without becoming a pariah, or whether honesty can cost you your job? Life as a junior is filled with perils, but it’s not all doom and gloom! The YLC is starting a column to answer those beleaguered questions of yours or to hear your side of the story.

Dear Aunt Pru,

Dear DOOMED,

I got a graduate position at a top tier firm and was lucky enough to be placed in the team that was first preference.

I like the work I do, and the majority of the team that I work with, I get along with really well. The problem is my buddy (who I’ll call “Andy”).

First of all, well done on finding a graduate job, and at a top tier firm no less. You have obviously worked very hard to get where you are, but remember dear, this is just the beginning of your career.

When Andy and I were first introduced, I immediately knew that we would not quite get along. I get a really competitive vibe from Andy and constantly feel like I have to justify myself when we talk. I recently heard that Andy had been spreading rumours about me to everyone in my team and to other graduates. Andy has been with the team longer than I have and I’m just afraid that they would use that position to damage my reputation. I really want to settle in this team, but the thought of having to work with this deceitful and deceptive person makes me sick to my stomach.

What should I do?

Yours in anguish, Do Others Mind Explaining Deception

No question is too big or small, and Auntie loves a nip of gossip!

So send your burning questions to Aunt Pru at http://freesuggestionbox.com/pub/iddzxds 50 | BRIEF JULY 2018

Take it from an old timer, the workplace can be a battle zone with its fair share of nasty personalities and you must always be wary of people who want to pull you down.

It is unfortunate that your buddy, a person who is intended to help you transition into your role and give you mentorship, is not somebody that you can, or should, trust.

But cheer up dear, firms usually provide ample opportunity to rotate through other teams, so keep your chin up and eyes open and work at establishing connections with other people in your team and in the firm.

Toxic co-workers are a dime a dozen, but if you focus on maintaining professionalism with other people at work, the rumours that Andy is spreading about you will come out in the wash. Keep interactions with Andy to a minimum and maintain a strong work ethic and you’ll be right as rain.

Hugs and kisses, Auntie

Professional Announcements Career moves and changes in the profession

HLS Legal

Hotchkin Hanly Lawyers

Glen McLeod Legal

The Directors at HLS Legal, Tony Smetana and Alisanne Ride, welcome our new Associate, Aimee Donjerkovich.

Hotchkin Hanly Lawyers is pleased to announce that from 1 July 2018, Luke Swanson has been promoted to role of Senior Associate.

Glen McLeod Legal is pleased to announce that Sam Lander has joined our firm as an Associate.

Sam represents clients in the areas of land compensation, planning and environmental applications Sam Lander appeals, clearing prosecutions and remediation of contaminated sites.

Sam’s contact details are: sam@glenmcleodlegal.com and (08) 6460 5179.

Her experience in Employment Law, Industrial Relations and Litigation matters ensure the Employment Law Practice can continue to respond to the demand for advice in this area.

We congratulate Aimee on her new position, she is a welcome addition to the HLS Legal team.

HLS Legal is delighted to announce our Graduate Megan Flower has recently been Admitted as a Practitioner to the Supreme Court of WA.

Aimee Donjerkovich

Kim Wilson & Co Family Lawyers The Directors of Kim Wilson & Co Family Lawyers are pleased to advise that William Sloan commenced as a Director on 1 July 2018.

William Sloan

Provident Lawyers Yikai Hoe, Director of Provident Lawyers, is delighted to announce the establishment of Provident Lawyers as of 12 March 2018.

Wendy Meggison

Julia Wilcock

Megan Flower

We congratulate Megan on her successful Admission.

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

Patricia Schrape, appointed an Associate of the firm from 6 June 2018 and Ursula Stevens as a Lawyer/ Restricted Practitioner from 11 June 2018.

Panetta McGrath Lawyers Panetta McGrath Lawyers are pleased to announce the appointment of Wendy Meggison and Julia Wilcock as Principals in the Health Law team, effective 1 July 2018.

Panetta McGrath Lawyers are also pleased to announce that Rebecca Taylor has joined our Health Law team as an Associate and Natalie Knight has joined our Employment and Workplace Relations team as a Solicitor.

Provident Lawyers practices in superannuation, tax and commercial law and focuses in the areas of selfmanaged superannuation funds and Federal and State taxes.

As well as its superannuation and tax practice, Provident Lawyers is also a commercial law practice assisting clients in the areas of trusts, property, commercial transactions, business succession planning and estate planning law.

You can contact Provident Lawyers on (08) 6316 4538 or by email on admin@providentlawyers.com.au.

51

New Members Restricted Practitioner Mr Siddharth Jain Zilkens

Associate Membership Miss Georgina Due Allion Partners Miss Jordan Leahy Ashurst Australia Mr Timothy Inglis Ashurst Australia Mr Meng-Yeow Lim Ashurst Australia Ms Nicola Thomas-Evans Ashurst Australia

New members joining the Law Society (June 2018)

Miss Amy Saunders Ashurst Australia

Miss Anna Lea Hiltenkamp Glen McLeod Legal

Mr Benjamin Thomas Ashurst Australia

Mr Samuel Lindsay Glen McLeod Legal

Miss Cheye Gameren Clayton Utz

Miss Louise Lijun Chen Hall & Wilcox Lawyers

Mr Alexander Davies Clayton Utz

Mr Zac Sharp Lavan

Mr Alexander Crockett Clayton Utz

Mr Xander Kingsbury Lavan

Miss Alyce Rae Corrs Chambers Westgarth

Mrs Lynn Wolfe Lavan

Mr Shounok Chatterjee Corrs Chambers Westgarth

Miss Stephanie Paolino Minter Ellison

Mr Jason Smith Edith Cowan University Business & Law

Classifieds

Missing Will

PERTH’S BUSINESS VALUATION EXPERTS

Anyone having knowledge of or knowing the whereabouts of the last Will and Testament of the late ASHER NEVINS is requested to contact Mr Andrew Lynn of Andrew Lynn Lawyers on 9375 2353 or by email lennard.admin@iinet.net.au or PO Box 8278 Angelo Street South Perth.

 Family Law Disputes  Partnership Dissolutions

and Admissions  Licensing Applications  Bank Opinions  Purchaser and Vendor Opinions Contact:

Graham O’Hehir MBA

Managing Director (08) 9481 4422 or graham@buyabusiness.com.au

BRIEF For advertising opportunities in Brief please contact:

The Alternative Dispute Resolution Centre

www.buyabusiness.com.au 52 | BRIEF JULY 2018

1300 237 237 info@theadrcentre.com.au theadrcentre.com.au

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

JULY 2018 Membership Event Friday, 6 July Golden Gavel

CPD Seminars Thursday, 19 July Advanced ADR Technologies

AUGUST 2018 Membership Event

CPD Seminars

Saturday, 4 August Black Tie Gala Dinner

Saturday, 18 August and Sunday, 19 August Practical Advocacy Weekend

SEPTEMBER 2018 Membership Event

CPD Seminars

Date TBC Sole Practitioner and Small Firm Forum

Wednesday, 5 September Criminal Property Confiscation Thursday, 6 September Disclosure Obligations and Consequences of Non-Disclosure in Family Court Proceedings

OCTOBER 2018 CPD Seminars Tuesday, 9 October Mental Health and Wellbeing with Dr Marny Lishman Thursday, 11 October Contract Law Masterclass

Wednesday, 10 October Fostering Healthy Relationships with the Bench Friday, 12 October Ethics on Friday: Ethical Issues in Representing Alleged Perpetrators of Family and Domestic Violence

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

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