Brief April 2019 by The Law Society of Western Australia

VOLUME 46 | NUMBER 3 | APRIL 2019

The Role of Law in International Commercial Arbitration Also inside Procedural Good Faith in International Arbitration Developments in Investment Treaty Arbitration in Asia Third-party Funding of International Arbitration in Asia Cyber Duty of Care: How to Minimise Cyber Vulnerability in the Practice of Law

Volume 46 | Number 3 | April 2019

CONTENTS

ARTICLES 08

The Role of Law in International Commercial Arbitration

Procedural Good Faith in International Arbitration

Developments in Investment Treaty Arbitration in Asia

20 21

The Penultimate Peril: Strickland (a pseudonym); Galloway (a pseudonym); Hodges (a pseudonym); Tucker (a pseudonym) v Commonwealth Director of Public Prosecutions & Ors

Third-party Funding of International Arbitration in Asia

Cyber Duty of Care: How to Minimise Cyber Vulnerability in the Practice of Law

Super Catch-up Catching On

National Redress Scheme

The Lore Law Project

Trials and Tribulations Interview: Nigel Lo

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 authorâ&#x20AC;&#x2122;s name is not provided, or if readers are not able to locate an authorâ&#x20AC;&#x2122;s contact details, readers should contact the Law Society of Western Australia (Inc.). The trade mark BRIEF is the subject of registered trade mark 1253722 and is owned by the Law Society of Western Australia (Inc). Trade mark 1253722 is registered for Western Australia. Published monthly (except January) Advertising enquiries to Manager Marketing and Communications: Madeleine McErlain Tel: (08) 9324 8650 | Email: mmcerlain@lawsocietywa.asn.au Senior Communications and Media Officer: Andrew MacNiven 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, Natalie Connor, The Hon John McKechnie QC, Dr Pat Saraceni, Robert Sceales, Verginia Serdev-Patterson, Eu-Min Teng 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: Greg McIntyre SC

02 President's Report

44 Drover's Dog

04 Editor's Opinion

45 Cartoon

24 Taxing Matters: Duties Act and the Onus of Proof

46 Professional Announcements

40 Law Council Update

47 Classifieds

41 Family Law Case Notes

48 Events Calendar

46 New Members

Senior Vice President: Nicholas van Hattem Junior Vice President & Treasurer: Rebecca Lee Immediate Past President: Hayley Cormann Ordinary Members: Jocelyne Boujos, Nathan Ebbs, Ante Golem, Emma Griffiths, Karina Hafford, Matthew Howard SC, Joanna Knoth, Fiona Low, Denis McLeod, Jodie Moffat, Shayla Strapps, Paula Wilkinson Junior Members: Zoe Bush, Brooke Sojan, Demi Swain Country Member: Kerstin Stringer Chief Executive Officer: David Price

43 Quirky Case

PRESIDENT'S REPORT Greg McIntyre SC President, The Law Society of Western Australia

Welcome to the April edition of Brief. Readers will have noted from the cover that this edition has international arbitration as its major theme (alongside articles on various other topics including cyber security and taxation). The Law Society maintains a Panel of Arbitrators and a Panel of Mediators, which have been established to assist both the legal profession and the public when the services of an arbitrator or mediator are required. The Law Society is also a Recognised Mediation Accreditation Body under the National Mediator Accreditation System, which identifies standards of practice and competencies for mediators in Australia. You can find out more at lawsocietywa.asn.au/ accreditation/#mediation-accreditation.

Law Week 2019 Every year, the Law Society promotes Law Week, an opportunity to bring together the legal profession and the broader community to build a shared understanding of the law. This year’s programme again promises to be another exciting one, with a range of events for both the profession and the community from Monday, 13 May to Friday, 17 May. In Law Week 2019, the Law Society will launch its new campaign, ‘Lawyers Make a Difference’ to celebrate the good work performed by lawyers which benefits the wider community. Throughout Western Australia you will find lawyers using their skills to help others in a wide range of ways, and the Law Society seeks to showcase positive stories and highlight the importance and benefits of seeking legal representation. On the inside back cover of this edition of Brief you will find details of some of the major events taking place during Law Week 2019. Please visit lawsocietywa. asn.au/law-week/#law-week-events to find out more.

Resources for Country Lawyers As part of the Law Society’s commitment to supporting country lawyers, a web banner has been set up on the homepage of the Society’s website, linking practitioners directly to a dedicated 'country lawyers' page (lawsocietywa. asn.au/legal-circles/#country-lawyers).

02 | BRIEF APRIL 2019

There you will find information on the Law Society's Country Practitioners Committee, CPD Programme, the Rural, Regional and Remote Law initiative and resources and guidelines to assist country practitioners in managing their practice. The Law Society understands that costs associated with travel and accommodation can make it difficult for country practitioners to attend CPD seminars. The Law Society has developed its eLearning portal with this in mind, providing all practitioners with high-quality, convenient online learning, regardless of where they live and work. Visit elearning.lawsocietywa.asn.au to explore the seminars available. Country practitioners should save the date for the Law Society's Law Week Special CPD Day for Rural, Regional and Remote Legal Practitioners to be held at the Parmelia Hilton Perth on Friday, 17 May 2019. To express your interest, please email cpd@lawsocietywa.asn.au. Also, look out for a regular 'For Country Lawyers' item in Friday Facts, promoting various Law Society resources available for the benefit of country practitioners (some of these will also be useful for metropolitan lawyers). Many rural practitioners may not be aware of the resources available to them, so this will offer a valuable opportunity to make that information available, as well as providing relevant details on events and CPD seminars.

Environmental Protection Authority The Law Society recently wrote to the Minister for the Environment and Chairman of the Environmental Protection Authority (EPA). This follows the EPA’s announcement of its Environmental Factor Guideline on Greenhouse Gas Emissions on 7 March 2019 and the subsequent negative public commentary from the Federal Minister for Resources, the WA Premier and then the EPA’s decision to defer the Guideline, which occurred almost simultaneously with negative commentary from the oil and gas industry. In the letter, the Law Society urged the State Government to ensure that the independence of the EPA is respected and seen to be respected, and that it is not prevented or discouraged

from pursuing its object of protecting the environment. The environmental protection objective of the EPA is clearly entrenched in the Environmental Protection Act 1986 (WA), as also is its necessary independence of direction by government. Those principles are expressions of the rule of law in Western Australia, the protection of which should be as important as the protection of the environment.

Congratulations to Award Recipients In my President’s Report in the March edition of Brief I noted that Friday, 8 March marked International Women’s Day. Members will recall further promotion and celebration of that day through Friday Facts and the Law Society’s social media channels. I would like to reiterate the Law Society’s congratulations to those practitioners honoured at the Women Lawyers of Western Australia Awards, including: •

Joint Junior Woman Lawyer of the Year: Kelsi Forrest and Zoe Bush;

•

Rural, Regional and Remote Woman Lawyer of the Year: Najette Alaraibi;

•

Woman Lawyer of the Year: Cheryl Chan;

•

Senior Woman Lawyer of the Year: Dr Carolyn Tan; and

•

Aboriginal Women’s Legal Education Trust Scholarship recipient Marion Leggett.

My congratulations also to Violet Arrey and the Hon Anette Schoombee, members of the legal profession who were inducted into the WA Women's Hall of Fame.

Cheryl Chan, Woman Lawyer of the Year Image courtesy Women Lawyers of Western Australia

Report on Results of 2018 Member Perceptions Survey Society will maintain a strong focus on these areas, and strive for high performance, as they are considered to be of greatest importance for members.

The Law Society’s overall performance is strong and continues to improve. According to an independent online survey conducted by CATALYSE® in October 2018 the Law Society’s Overall Performance Index Score has climbed from 66 to 71 points over the past two years. The Law Society continues to be well regarded as the voice of the legal profession. There is strong agreement among members that the Society is addressing essential professional development needs through its Continuing Professional Development (CPD) programme and it is keeping members well informed about changes in legislation and key issues affecting the profession. The Law

Members have indicated that they want increased membership value and asked that the Law Society focuses on growing and developing its CPD programme, lobbying and advocating effectively on behalf of the profession and improving its understanding of members’ needs. Technology disruption is the top issue facing lawyers. Members discuss challenges with technology moving faster than law changes, keeping up to date, cyber security and the expectation to be accessible around

the clock. Members are seeking cultural change across the profession and continued improvement in health and wellbeing among lawyers. The Law Society will consider ways to provide better support for members in these areas. While there is high satisfaction with ecommunication and the Brief journal, ratings have been trending downward and there is lower satisfaction with the Law Society’s website. The Law Society will be taking steps to develop a strategy to better meet members’ needs in these areas.

96%

83%

82%

78%

Member Satisfaction (Overall Performance

The Society is the voice of the legal profession in Western Australia

Addresses essential professional development needs through its CPD programme and information provision

Keeps members well informed about changes in legislation and key issues affecting the profession

68%

79%

78%

55%

Has a good understanding of members’ needs

ecommunication

Brief journal

The Society's website

Index Score: 71/100)

Target achieved Focus area

If you have ideas about how the Society could improve, or to discuss these results further, please contact the Chief Executive Officer, David Price on (08) 9324 8605 or by email dprice@lawsocietywa.asn.au.

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

This edition contains articles on diverse subjects, though with familiar themes to readers of Brief: alternative dispute resolution, the globalisation of law, cyberlaw and the judiciary. We are also grateful for Grahame Young’s ‘Taxing Matters’ article, which is the first of regular contributions on tax law, alternating monthly, Ying and Yang like, with the item ‘Matters of Trust’ concerning trusts law.1 We are also delighted to publish Malcolm McCusker QC’s letter providing some interesting observations upon a case mentioned in a previous article in Brief ‘Cervantes in Law’ by the former Justice Hasluck QC. As always, such contributions and comments are greatly appreciated. Just when April seems enjoyable along comes T. S. Eliot, master of comedy, with his famous: “April is the cruellest month, breeding lilacs out of the dead land, mixing memory and desire, stirring dull roots with spring rain” (it is impossible to avoid, given all those T.S. Eliot ‘The Waste Land’ ringtones and screensavers that are so popular with the kids nowadays). Most of T.S. Eliot’s works are of course heavy going, and it is an interesting quirk of history that a dinner T.S Elliot hosted for the king of the one liners Groucho Marx (as opposed to the 434 liners, like Eliot’s The Waste Land) has been described as one of the biggest dinner party misfires ever.2 They had corresponded for three years, after Eliot had written, in effect, a fan letter to Marx, but had never met. Apparently, on the big night, Eliot only wanted to discuss the Marx Brothers’ movie Duck Soup and attempt to crack jokes, and Marx only wanted to talk about poetry, literature and his take on King Lear. After the dinner, they neither wrote nor spoke to each other ever again. The warning signs were there in advance, given one of Groucho Marx’s famous cracks: “my favourite poem is the one that starts 'Thirty days hath September' because it actually tells you something” (September is in the Southern Hemisphere being a little closer to a Northern Hemisphere April in its vibe). 04 | BRIEF APRIL 2019

April is looking to indeed be a cruel month for a number of lawyers here and abroad. In Australia, the fallout from the Lawyer X police informant enquiry rolls on. In the USA, prominent lawyers have also suffered very public misfortunes. Stormy Daniels’ one time lawyer and Trump tormentor turned Trump family tormentee, Michael Avenatti has been charged with embezzling a client's settlement money, wire and tax fraud and trying to extort $25 million from Nike (it is too much to hope that the extortion demand ended with: “Just Do It”). This edition contains, as will future editions, articles on arbitration. In furtherance of the theory that the Zeitgeist of the age dictates that “everything is about Trump” the whole Stormy Daniels fracas involved arbitration law. The infamous non-disclosure agreement that (then) Trump attorney, and now soon to be incarcerated, Michael Cohen arranged for Daniels to sign in return for US $130,000, contained – crucially – an arbitration clause. The object of this was to mean any dispute about it could not be public, as it had to be privately arbitrated. Daniels and Avenatti ignored this by commencing public Court proceedings (contrary to an emergency order by the arbitrator) and thus thwarted the effect of the arbitration clause. Daniels’ court proceedings were recently dismissed, the judge finding that the point was now moot, which, following on from Daniels’ defamation proceedings against Trump being dismissed, led Avenatti to declare total victory, being a declaration of “winning” right up there with Charlie Sheen’s bathrobe clad pronouncements of “winning” while holed up in his mansion with his own porn star. Prominent lawyers have also been caught up, along with Hollywood actors and captains of industry, in the college admissions bribery scandal currently rocking the US. A co-chair of a major US based international law firm is facing charges for paying off the organiser of the scam, a Mr Singer, to fake a learning disability for his daughter and fix the results of her exams to secure her admission to a prestigious college.3 The lawyer apparently expressed some

hesitancy to Singer, when discussing the scam, saying “I am a lawyer. So I’m sort of rules oriented.” Which is nice to know. Singer emphasised that the plan required the lawyer’s daughter “to be stupid” [insert your own jokes here] during testing for a learning disability, to ensure she got extra time and a separate sitting area for the exam. After the exam, a paid-off proctor (invigilator) would doctor her answers, to reach an agreed-upon score. Oh, for the days when the only attempted bribe of an invigilator would be to be allowed to go to the toilet with only 29 and a half minutes left for the exam.4 As to President Trump’s former lawyer, Michael Cohen, the publicity surrounding him led to renewed criticism of his law school, Michigan’s Thomas M. Cooley Law School, labelled by some as the worst (or in gentler parlance the “least selective”) in the country.5 This led to the media investigating another embarrassing incident concerning a Cooley Law School alumni, Pennsylvania state judge Elizabeth Beckley, who was in the year below Cohen. Last year, the judge was asked to preside over a marriage. However, instead of marrying the happy couple, she instead called immigration agents, suspecting the groom was in the US illegally. Hence, the 22-year-old Guatemalan-born groom, legally adopted at the age of eight months by a US couple, was fingerprinted and faced with arrest on what was to be his wedding day. This is indeed a bizarre twist on the Groucho Marx joke: “I was married by a judge. I should have asked for a jury”. NOTES: 1.

Of course, to any law student, these subjects are less Ying and Yang and more Scylla and Charybdis.

The Disastrous Dinner Date of Groucho Marx And T.S. Eliot by M. Admin, www.knowledgenuts.com, 4 August 2014.

Top Law Firm’s Chairman Allegedly Faked Daughter’s Disability in College Cheating Scandal: www. thedailybeast.com

Which they would never accept anyway. Australian university invigilators were truly “The Untouchables” of their day, in the Brian De Palma movie sense.

“Trump’s Lawyer Went to the Worst Law School in America”, P Shenon, www.politico.com, 4 May 2018.

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

UNRIVALLED LEGAL TALENT

Western Australia’s

LEGAL MARKET is changing...

ARE YOU READY? Contact Western Australia’s leading legal recruitment ﬁrm, and stay one step ahead of the curve.

Market Hot Spots Partner – Insolvency • Long established national firm • Minimal $200,000+ transportable client base • Working closely with the East Coast based team

Property Lawyer – Junior Lawyer through to Senior Associate Opportunities • Multiple briefs across all tiers • Sophisticated client bases, complex and diverse range, client contact • All highly reputable WA and market leading Property Partners/teams

Senior Associate – Top-tier Construction Litigation • Complex international matters • Provide mentorship and guidance to junior lawyers • High performing team working alongside exceptional Partners

Chris Bates

Siemone Neutgens

Sharon Lotufo

Managing Director

Principal Consultant and Hub Team Manager

Principal Consultant

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

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

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

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

Letter to the Editor The Honourable Malcolm James McCusker AC CVO QC

Dear Jason, I read with interest the article by the Honourable Nicholas Hasluck AM QC, “Cervantes in Law” in a recent edition of Brief. As he said, I was counsel for the (ultimately) successful Mr & Mrs Bahr, in the case which he described, Bahr v Nicolay (No 2) {1987) 164 CLR 604. The Bahrs sought to enforce their entitlement to repurchase a property at Cervantes, pursuant to a somewhat unusual “sale and re-purchase” arrangement, negotiated by a real estate agent who, as Nicholas Hasluck observed, “became confused as to which parties to the transaction he was supposed to be looking after”. Their claim was dismissed by Franklyn, J, and in turn by the Full Court of the Supreme Court of Western Australia. The Bahrs then applied for special leave to appeal to the High Court. At that point, before the special leave application had been heard by the High Court, the solicitors for Nicolay applied for security for costs. Had that been successful, it would probably have put an end to the special leave application, as it was most unlikely that the Bahrs would have had access to sufficient funds to comply with a costs order. Fortunately for the Bahrs, the application for security for costs, heard in Perth by the late Justice Toohey, was dismissed, essentially for the reason that the Court had no power to order security for costs on a special leave application. That decision, Bahr v Nicholay (No. 1) 1987 163 CLR 490, was given in Perth in July 1987. Michael Hawkins (who was, some years later, Acting Master of the

06 | BRIEF APRIL 2019

Supreme Court) appeared before Toohey J, to oppose the application. The application for special leave to appeal was heard in September 1987. Leave was granted. Another attempt was then made by the Respondents to get security for costs of the appeal. The Bahrs had no prospect of providing security for costs. The application was, again, heard by Toohey, J. Again, it was unsuccessful. (When the appeal was finally heard, Toohey J, who also sat on the appeal, was by then thoroughly familiar with the facts of the case, as was apparent from his (always polite) interventions during the hearing). The appeal was heard in Melbourne by the High Court (Mason CJ, Wilson, Brennan, Dawson and Toohey J) in April 1988 and the decision delivered in June 1988. Michael Hawkins was my junior at the hearing. As Nicholas Hasluck mentioned, the late David Malcolm QC (as he was before he became Chief Justice) appeared for the third respondents. Nicholas Hasluck QC appeared for the first respondent, Nicolay. One of the many interesting issues dealt with by the High Court in Bahr v Nicolay (including the meaning of “fraud” in section 68 TLA, and privity of contract) was the question of whether specific performance could be ordered where (as Franklyn J and the Full Court both held) there was no evidence of the ability of the appellants (the Bahrs) to pay the purchase price. This was a point on which the Bahrs were unsuccessful before both Franklyn J and the Full Court, where reliance was placed (I think, misplaced) inter alia, on a dictum by

his crayfishing licence. (I ultimately Windeyer J in Mehmet v Benson (1965) r, the very 113 CLR at 314, to support the view that, persuaded the then Directo Bernard able fair-minded and reason absent a plea of “ready, willing & able”, Bowen, to give Dabovic “special and evidence to support it, specific dispensation”). performance would not be ordered. The High Court decided that although the Courts below had held that the Bahrs had failed to establish that they were able to complete the purchase, it would (unusually) depart from those “concurrent findings of fact”, pointing out that the purchase price was only payable on registration of a clear title to the land, and since the property was clearly worth much more than the agreed price (or there would not have been a legal action in the first place), the Bahrs could probably have obtained a mortgage loan; and also that they had in fact made some arrangements (not absolutely clear) for financing the purchase.

There was no real town, not much more than a cluster of huts. Dabovic put on a “banquet” in his wooden hut – crayfish and baked wild rabbit were the main (and only) course. The drink was a very potent grappa. While we dined at his rough-hewn wooden table, we were “entertained” by a group of very vocal, moderately melodious, (and slightly inebriated) young Yugoslav fishermen, who looked up to Dabovic as their “patron”. He had fought in the war (on Tito’s side, I think), and after the war came to Australia as a refugee. He was classically educated, spoke about five languages, and was versed in Latin.

I have not kept track of the Bahrs, who occasionally supplied Mike Hawkins and me with fresh fish caught at Cervantes, during the saga of the extended litigation (though they didn’t supply much funds for the Court actions). However, I understand that one of the respondents, Mr Thompson, later became a major force in the crayfishing industry in Cervantes.

We remained in contact over many years. He would sometimes turn up, unannounced, with a box of crayfish. Ultimately, he went to live at Sunset Home, where I visited him before he died.

The Bahr case was not the only connection I had with “old Cervantes”. About 45 years ago, I had a client, an old Yugoslav (as they then called themselves – not “Serbs” or “Croats”) named Jovo Dabovic, who was a cray fisherman living at Cervantes, in a one room wooden hut. I drove down to see him there one weekend, over what was then the only way in, a dirt track. The Fisheries Department was threatening to cancel

The Cervantes of today is vastly different from Cervantes as it was all those years ago. Warm Regards

Malcolm McCusker

The Role of Law in International Commercial Arbitration By The Hon James Allsop AO Chief Justice of the Federal Court of Australia Chartered Institute of Arbitrators (CIArb) Annual Lecture, 15 October 2018

I chose the topic of this article because of the variety of perspectives from which the relationships between arbitration, the courts, and law can be viewed, both practically and theoretically. Further, some of those perspectives raise the important question of the nature of law. For now, I will proceed as if the phrase “the law” has a familiar meaning and usage. There are at least three laws, or systems of law, that are easily recognisable, which bear upon an international commercial arbitration: the law governing the agreement to arbitrate; the law governing the arbitral tribunal and procedure – the lex arbitri; and the law governing the resolution of the substantive dispute – the applicable or governing or substantive law. Added to these may be the law concerned with a party’s capacity to enter into an arbitration agreement, and the law or laws concerned with challenges to and recognition and enforcement of awards. There may also be other applicable rules that the parties may agree upon that perhaps fall for consideration in the above categories. 08 | BRIEF APRIL 2019

There is also the woollier (and none the worse for that warmth) application of non-binding guidelines, approaches and recommendations in the form of socalled “soft law”, that may importantly affect the resolution of the dispute. Let me say something briefly about these laws before turning to some aspects of the relationships between law, courts and arbitration that have been and continue to be the subject of contemporary discussion.

The law and the agreement to arbitrate1 The now embedded notion of separability or severability of the

arbitration agreement from the substantive contract to which it relates2 makes unreliable any assumption that the law governing the substantive contract will always be the law to govern the agreement to arbitrate. The choice may be different and deliberate – express or implied. See for example Tamil Nadu Electricity Board,3 where a contract for the supply of electricity was governed by the laws of India, but London arbitration in accordance with English law was chosen. Thus, the scope of the arbitration agreement fell to be decided according to English law. If no precisely directed choice be made by the parties (expressly or impliedly), the available approaches appear to be between the substantive law (that is, the law governing the rest of the contract) or the law of the seat. If one gives proper weight to the underlying and fundamental notion of separability, the law of the seat can be seen to be a more appropriate approach than the law of the substantive contract. A contract to be governed by New York law, but subject to arbitration in London would see the arbitration agreement (and so such things as the scope of the clause)

governed by English, not New York law.4 This approach seems to have broad support.5 An additional approach present in a number of French cases is to apply a non-national law chosen by the parties to govern the arbitration agreement.6

The law governing the arbitration7 The fact that this law (the lex arbitri) is, or is quite likely to be, different from the law governing the substantive contract and the dispute is a product of at least two considerations: the embedded notion of separability, and the entrenched perceived advantage of a seat that is neutral and so likely to be distant from the interests, commercial relationships and values of the parties that may tend towards a governing law more closely related to those relational features. The related questions of the lex arbitri, and the place and importance of the seat of the arbitration continue to be important in the conceptualisation of arbitration and the extent to which it can be seen to be delocalised. There are important questions of principle to be addressed in the application of any principle of delocalisation. For instance, the approach of the French Cour de cassation in Putrabali8 in enforcing an award set aside at the seat may, on one view, tend to undermine the institution of arbitration by weakening the prudential control of the fairness of arbitrations by the seat court, deliberately chosen by the parties to control or supervise the conduct (including the farness) of the arbitration. Thus, though delocalisation may stress the autonomy and independence of the parties, by the lessening or undermining of the authority of the seat court, there can be seen to be a weakening of the effect of the parties’ choice of seat, and a weakening of the ability of the seat court to ensure the fairness and reliability of arbitration by reference to its own legal culture. I accept that the correctness of this view is not self-evident. These are contentious issues, for discussion on another day.

The law applicable to the contract and the substance of the dispute At the point that this question becomes relevant to discuss, we have an operational arbitration agreement covering a dispute in a reference governed by a procedural law. The dispute will require the resolution of contested facts by reference to or against some standard made up of

operative legal rules and principles. What are these rules and principles? What is this law? What questions about arbitration as an institution and a procedure arise from those considerations? The discussion can perhaps be usefully introduced or framed by recognising at the outset certain matters. First, whilst the proposition is capable of qualification by reference to the lex arbitri and immanent notions of public policy, as a procedure and an institution, arbitration is built on the free will and choice of autonomous actors in international commerce. Secondly, not as a qualification to the first point, but as a manifestation or demonstration of it, arbitration is to be recognised as part of a worldwide legal order or system of dispute resolution – of a system of justice. It is part of a complex, integrated justice system that involves courts (national and international), arbitrators, and arbitral institutions, mediators, facilitators and legal advisers. This integrated justice system is the manifestation of a true international legal order. The importance of that development in the 20th and 21st centuries should not be ignored or devalued. The recognition of the importance of this, and of the fragility and dynamism of any such system, should frame all serious discussion about it. It is from these two features – a respect for the autonomy of the individual and the place of arbitration as a fair way of vindicating the rule of law – that the institution draws its international support from nations, legislatures and judiciaries. Thirdly, the parties are free to choose the governing law for themselves.9 There is now widespread acceptance that this choice is not restricted to the choice of a national law. There may be restrictions on this choice drawn from public policy,10 or from the lex arbitri. This issue of non-national law is of particular interest and importance to Australia. As a federal system we suffer from the absence of a single law. Except for specific purposes, there is no such thing as “Australian law”. There is one Australian common law and there is the interplay between State, Territory and Commonwealth laws, mediated through the Constitution and the Judiciary Act 1903 (Cth). There is no reason why, for instance, a model Australian commercial law could not be constructed upon the common law of Australian and selected statutes and international conventions. 09

This would, perhaps, provide a framework for Australia as a seat more attractive (to a foreigner) than a choice of law of a State (after the complexities of federalism have been assimilated). The choice of non-national law may take a number of forms. First, soft law instruments may now form the basis of chosen principles. Secondly, unstated, but discernible, international principles of commercial law. Thirdly, hybrid systems of law bound by the cement of overriding general principles. A well-known example was the mixture of French and English law and, where in conflict, international principles of commercial law exhibited by the clause in the Channel Tunnel Case.11 The recognition of the legitimacy of this choice of non-national law highlights the necessary relationship created by the choice between the notion of the law to govern the dispute and the view of the person to decide the dispute. The dispute is not governed by the application of an external, abstracted standard set by the law-making organs of a nation state (whether or not correction or review is available by reference to that external standard), but by the application of the (bona fide and honest) views of the chosen tribunal as to standards, principles and rules that may be more fluid, open-textured and flexible than a national law. This close interrelationship between governing rule and principle, and tribunal and location, was well captured by Lord Mustill in the Channel Tunnel Case:12 The parties chose an indeterminate “law” to govern their substantive rights; an elaborate process for ascertaining those rights; and a location for that process outside the territories of the participants. The development of transnational principles of law has been informed by a number of factors: the growth in international commercial arbitration; the desire not only for a neutral venue but also a neutral body of rules; the increasing availability and proliferation of soft law instruments upon which to choose a standard for fair and reasonable adjudication; and the necessity at a practical level and on a daily basis to reconcile and harmonise through convergence the competing demands and approaches of the civil law and the common law, not just in procedure, but in familiarity of principle. Perhaps the Uniform Customs and Practice for Documentary Credits (UCP), the International Rules for the Interpretation of Trade Terms (Incoterms), the UNIDROIT Principles 10 | BRIEF APRIL 2019

of International Commercial Contracts, and, in the context of a non-national procedure law, the UNIDROIT/ ALI principles of trans-national civil procedure are good examples of these kinds of convergences. They provide clarity, flexibility and command wide acceptance. If one is disturbed by the proposition that law exists outside a positive system of legal command, one is perhaps only betraying an intellectual framework anchored in an assumption that law ultimately can only exists in a system of enforceable ultimate command. Such an assumption is false. If it were true, international law would not be law. An ultimate conception of law is not an abstraction alone. It is the product of a willingness of humans to accept and conform to standards. In any given “system” that may involve force and compulsion, but ultimately it depends on a form of consent. Take maritime law. Its character is derived from its maritime, international and transnational informing characteristics. It is not the law reflecting a community’s values, it is the law reflecting the shared values of those who have undertaken a body of transactions in a setting – a maritime and international setting – over millenia. Of course, each country has its rules and statutes. But the way to analyse those national laws is not to view them through the lens of comparative law, comparing the chosen rules of different communities. Rather, these national laws are all drawn from a well of common internationally recognised principles and rules properly called the general maritime law, from which common transnational source

national laws are adopted and adapted. Reference to four United States Supreme Court decisions, over 130 years apart, eloquently illustrates this point. In 1815, Story J sitting on circuit in De Lovio v Boit had said the following of the words “admiralty and maritime jurisdiction” in the Constitution:13 That maritime jurisdiction, which commercial convenience, public policy, and national rights, have contributed to establish, with slight local differences, all over Europe; that jurisdiction, which under the name of consular courts, first established itself upon the shores of the Mediterranean, and, from the general equity and simplicity of its proceedings, soon commended itself to all of the maritime states; that jurisdiction, in short, which collecting the wisdom of the civil law, and combining it with the customs and usages of the sea, produced the venerable Consolato del Mare, and still continues in its decisions to regulate the commerce, the intercourse and the warfare of mankind. In 1828, Chief Justice John Marshall said, in speaking of Art III section 2 of the United States Constitution and in reference to cases in Admiralty:14 A case in admiralty does not arise, in fact, under the Constitution or laws of the United States. These cases are as old as navigation itself; and the law, admiralty and maritime, as it has existed for ages, is supplied by our Courts to the cases as they arise. In 1874, in The Lottawanna,15 Bradley J

Enjoy the many beneﬁts of our Corporate Programme*. Mercedes-Benz vehicles are renowned for quality, safety, luxury and performance. That’s why cars with the Mercedes-Benz three-pointed star are the choice of those who demand the best. The Mercedes-Benz Corporate Programme is designed to make ownership easier and more beneficial for you. As a qualified member, you are also eligible to receive exclusive benefits, including: • Reduced Dealer Delivery fee1. • Complimentary scheduled servicing at an authorised participating Mercedes-Benz dealership for up to 3 years or 75,000 km2 (whichever comes first). • Total of 4 years complimentary Mercedes-Benz Road Care nationwide. Take advantage of the benefits today. Diesel Motors 1093 Albany Highway, Bentley 1300 780 733 www.mbdieselmotors.com.au

Westpoint Star 472 Scarborough Beach Road, Osborne Park 1300 880 862 www.mbwestpointstar.com.au

Terms & Conditions: 1. Not applicable to all models. 2. Non-AMG up to 3 years or 75,000km from new (whichever comes first). AMG (excluding V12 vehicles) 3 years or 60,000 km from new (whichever comes first). All V12 vehicles 3 years or 50,000 km from new (whichever comes first). *Corporate Programme is subject to eligibility.

expressed the subtle and sophisticated relationship between the non-national existing and historically derived general maritime law and the municipal maritime law, here of the United States. In a long passage, six propositions were made: first, the existence, separate from municipal maritime law, of the general maritime law; secondly, this separate existence of the general maritime law being owed to its internationality; thirdly, the necessity for the adoption of the general maritime law by relevant sovereign act for it to be an enforceable municipal law; fourthly, the adoption in the United States of the general maritime law by the sovereign act of the creation of a nation and a Constitution which in its terms recognised the existence of maritime law as US law; fifthly, the content of the general maritime law not being fixed or uniform, but being capable of local particular adoption and adaption; and sixthly, the general maritime law being the basis, or groundwork, of municipal maritime law. In 1953, in Lauritzen v Larsen,16 dealing with the question of whether a United States seafarers compensation statute applied to a foreign seafarer injured while in the port of New York on board the foreign vessel on which he was serving, Justice Jackson said: … courts of this and other commercial nations have generally deferred to a non-national or international maritime law of impressive maturity and universality. It has the force of law, not from extraterritorial reach of national laws, nor from abdication of its sovereign powers by any nation, but from acceptance by common consent of civilized communities of rules designed to foster amicable and workable commercial relations. International or maritime law in such matters as this does not seek uniformity and does not purport to restrict any nation from making and altering its laws to govern its own shipping and territory. However, it aims at stability and order through usages which considerations of comity, reciprocity and long-range interest have developed to define the domain which each nation will claim as its own. … The point of this is not merely to listen to the balance and melody of the cadences of great lawyers who understood that language was not just the vehicle of law, but part of law to enliven the cognisant emotion. It is also to recognise that international conduct has for millennia been based on rules, principles, customs 12 | BRIEF APRIL 2019

and procedures that are not the domain (or at least the exclusive domain) of nation states, national legislatures or national courts. Law is not just command; it is as much the accepted approach to a problem as a defined rule by command. The authority to apply non-national law depends on the agreement of the parties and applicable laws – whether the lex arbitri or law which otherwise governs. For instance, the Washington Convention (Art 42) provides that the tribunal will decide a dispute in accordance with such rules of law as may be agreed by the parties. Some national laws (as the lex arbitri) permit arbitrators to decide according to rules of law.17 The Model Law (Art 28) leaves it to the parties to make an express choice of such rules of law as they wish, but, if no such choice is made, requires the tribunal to go to conflict of law rules it considers applicable, thus requiring a reversion to national law, but as seen fit by the arbitrator. Section 46 of the English Arbitration Act 1996 (UK) similarly provides: (1) The arbitral tribunal shall decide the dispute— (a) in accordance with the law chosen by the parties as applicable to the substance of the dispute, or (b) if the parties so agree, in accordance with such other considerations as are agreed by them or determined by the tribunal. (2) For this purpose the choice of the laws of a country shall be understood to refer to the substantive laws of that country and not its conflict of laws rules. (3) If or to the extent that there is no such choice or agreement, the tribunal shall apply the law determined by the conflict of laws rules which it considers applicable. Section 46(1)(a) and the use of the phrase “the law” implies a system of law; national law. The phrase “such other considerations” in s 46(1)(b), on the other hand, includes non-national principles: see Halpern v Halpern.18 That said, in the same case, the Court required the lex arbitri to be (although at the choice of the parties) a law that would satisfy the task of governing how proceedings will be conducted. It is difficult for this to be other than a national law.

The ICC Rules permit the tribunal in the absence of agreement of the parties to apply rules of law that it determines to be appropriate. Thus, even before one comes to the notion of equity and good conscience (ex aequo et bono) or decisions by amiable compositeurs, there is a significant latitude for the application of nonnational principles from a wide variety of sources. The parties may expressly agree to this approach of equity and good conscience wholly, or as a theme or feature of a reference, otherwise governed by chosen law or laws. Various approaches can be identified: the ignoring of formalism; the ignoring of rules that operate harshly or unfairly in the circumstances; the application only of general principles; and (although not widely accepted) decisions without regard to principles of law, but on the merits as they appear to the tribunal. Different countries approach this matter differently. Some State laws assume the arbitrator will decide in equity unless required to decide at law, others assume at law unless stated in equity.19 The UNCITRAL Rules require that, for such an “equity clause” to be effective, it be expressly agreed between the parties and authorised by the lex arbitri. The point of the discussion so far is to illustrate the wide and deep latitude for non-national law in the fabric of an international system of dispute resolution. This is important to illuminate the lack of necessity for pre-existing abstracted defined standards drawn from national law for the process to work.

The health of law, courts and arbitration In March 2016, the then Lord Chief Justice of England and Wales, Lord Thomas of Cwmgiedd, gave an important lecture on developing commercial law through the courts and called for a rebalancing of the relationship between the courts and arbitration.20 In that lecture, his Lordship examined the role of the courts in the development of the law underpinning commerce, finance and industry. He saw the burgeoning of dispute resolution by arbitration as threatening the development of commercial law. His Lordship contextualised that state of affairs by reminding his audience of some of the delays and complexities that had dogged commercial litigation in an earlier era.

If there be a threat to the development of the sinews of the law by arbitration, it is partly by the lack of publication of the reasons for the resolution of disputes that bear upon law and its organic growth and change, and partly by the lack of authoritative curial declaration. It is understandable that those concerned with the English legal system, who would wish as much commercial litigation as possible to be heard either in England or by reference to English law, would jealously guard the place of the English courts in stating the law of England. That is why, as a matter of English public policy, s 69 of the Arbitration Act 1996 (UK) is in the form it is: Appeal on point of law (1) Unless otherwise agreed by the parties, a party to arbitral proceedings may (upon notice to the other parties and to the tribunal) appeal to the court on a question of law arising out of an award made in the proceedings.

An agreement to dispense with reasons for the tribunal’s award shall be considered an agreement to exclude the court’s jurisdiction under this section.

(2) An appeal shall not be brought under this section except— (a) with the agreement of all the other parties to the proceedings, or (b) with the leave of the court.

The right to appeal is also subject to the restrictions in section 70(2) and (3).

is at least open to serious doubt, and

(3) Leave to appeal shall be given only if the court is satisfied—

(d) that, despite the agreement of the parties to resolve the matter by arbitration, it is just and proper in all the circumstances for the court to determine the question.

(a) that the determination of the question will substantially affect the rights of one or more of the parties, (b) that the question is one which the tribunal was asked to determine, (c) that, on the basis of the findings of fact in the award— (i) the decision of the tribunal on the question is obviously wrong, or (ii) the question is one of general public importance and the decision of the tribunal

… A significant body of cases in the London Commercial Court is comprised of s 69 appeals that concern insurance, shipping, commercial law and arbitration practice, though the number has hugely decreased from earlier generations. Is the burgeoning of arbitration and a lessening of commercial court judgments (if there be such) a bad thing? I am not persuaded that it is. (That is not to say that there is not a legitimate policy question for England in the reinforcement

of the position of English law as controlled by English courts. But that is a different question.) Until recent times, for instance, there were precious few cases on general average or reinsurance or salvage. Disputes are and have always been resolved by arbitration. Commerce is satisfied. English law has not eroded. Section 69 has allowed important principle to be litigated. There appears no clamour from the commercial community for rescue from the embrace of arbitration. Further, the need for courts to be hearing more commercial cases for the law to develop may underestimate the capacity for arbitration to develop the law, in areas where relevant publication of important awards conforms with the needs of the parties and the commercial community. The reality is, however, that there is a longstanding and important tradition of the development and maintenance of legal principle by arbitrators. Doug Jones, in a valuable recent paper,21 reminded us of the part arbitrators have played in the development of legal principle. I did not intend this article to be a defence of the proposition that arbitrators influence the development of the law. I think it plain that they can and do. A passing familiarity with ICCA’s Yearbook of Commercial Arbitration demonstrates as much. To the extent that this is seen as an important function, the editing and publication of important awards can be seen as part of the institutional responsibility of relevant arbitral bodies. All that said, the better question is, if I may respectfully suggest, whether the courts can do more for the commercial community. The answer to that is yes, and they are. In 2015, not long before Lord Thomas’ lecture, I spoke in London at the Centenary Chartered Institute Conference. My speech was entitled “National Courts and Arbitration: Collaboration or Competition?” My answer was that the two complemented each other, as partners in a competitive collaboration. This is how the two parts of an integrated dispute resolution system should work. For all the theoretical debate there might be about the autonomous or delocalised nature of arbitral awards, they are mere paper without enforcement. And the system under the New York Convention and the Model Law is that they are enforced by the courts. The New York Convention and the Model Law provide the framework for efficient enforcement. 14 | BRIEF APRIL 2019

But the conventions do no practical work, only the courts enforce. There is efficiency and skill in that process. An international outlook, commercial skill and competence, and a knowledge of and sympathy to arbitration are essential for courts to discharge their duties efficiently in this respect. But the courts are not just handmaidens to the mistress of arbitral dispute resolution. Commercial courts must take their place in commercial dispute resolution for the health of the legal order to which I have referred. This is so, for a number of reasons. First, it is of benefit to the development of common and harmonised legal principles for a share of that development to be in the hands of publicly accountable commercial judges. The underlying premise of Lord Thomas’ lecture that courts have an important place in the development of commercial law is valid. Secondly, every system improves upon the presentation of real competition. Commercial courts are capable of delivering rapid and effective commercial justice. The enforcement mechanism of the Choice of Court Convention,22 similarly structured to enforcement under the New York Convention, for courts chosen by exclusive jurisdiction clauses, will, over time, overcome a significant perceived disadvantage of court resolution of disputes. Thirdly, commercial courts, as standing institutions, have the capacity to change and influence legal culture, which is vital to the health of dispute resolution both in courts and in arbitration. Over the last few years, there have been two developments of importance in the area of commercial court dispute resolution. First, there has been the setting up of bespoke international commercial courts, such as those in Singapore, Dubai, Abu Dhabi and Qatar. These courts are unashamedly drawing on the intellectual capital of the commercial world in using serving and retired judges of great distinction. Secondly, under the guidance, and with the inspiring energy of Lord Thomas, there has been established the Standing International Forum of Commercial Courts (SIFoCC). This body is comprised of judges from commercial courts from all over the world: of established commercial courts and developing commercial courts. Its aim is to develop and enhance the skill of commercial courts around the world and to harmonise and improve upon important features of their operation in practical working areas such as the enforcement of judgments, case management and

cost reduction, technology in court, litigation funding, and, of course, arbitration issues. There have been two meetings: London in 2017, and recently in New York. What can arbitration and arbitrators take from these developments? I do not think they should be a source of friction; rather, they reflect a healthy energy in a necessary partner for international commercial arbitration. Also, they remind those who arbitrate and those who are concerned with the institution of arbitration of the place of the courts and the law, and their importance in the principled and fair resolution of disputes. I doubt whether English law is likely to lose its vitality and utility. There remains the enormous well of skill and expertise in London, and s 69 of the Arbitration Act 1996 is well able to operate through a leave provision of maintaining the flow of important arbitration appeals to feed the development of English law. An equally, or more, important question is whether the form of arbitration laws based on the Model Law in some way has the seeds of some wider disadvantage or ill, by its absence of curial correction for error of law. It is perhaps odd that that question even be posed in this first quarter of the 21st century. After all, it was the ready availability of curial review (or interference, depending on one’s taste) that led to the rejection of curial oversight for error of law in the second half of the 20th century. Let me, immediately then, give my answer: no. The reasons for my view are both practical and theoretical. Practically, greater scope for legal review by the courts will not work. It risks bringing back the difficulties and delays of a past era. Let skilled people exercise their contracted authority under the mandate of the parties’ contract. Subject to the lex arbitri (usually) chosen by the parties, the choice of arbitration involved a deliberate choice to live with the mistakes, factual and legal, made by the tribunal. The tribunal has been armed with the authority to err. Further, it is not to be forgotten that the application of the chosen law will generally be a species of fact finding, involving evidence, even if it also involves legal reasoning. The nature and content of international commercial law is not the hegemonic domain of judges. Their task is shared by the academy, by arbitrators, by the profession, and by the drafters of conventions and model laws. To give to judge-made law overwhelming importance in the development of

commercial law undervalues the nature, character and importance of transnational principle. The rule of law is not the law of rules. C’est l’état du droit. It is a state of affairs where principle, rule and value, not power, wealth and caprice or arbitrary acts, resolve disputes. The most important aspects of law generally cannot be defined. Principle, rule and value are conceptions shared by all those learned in the law. What is essential is that arbitrators be entitled to fulfil, but at the same time be kept to, their fundamental tasks, such that a decision is made within the boundaries of the arbitration agreement. To the extent that this agreement identifies a system or rules of law, that law and those rules be honestly and bona fide applied; in a procedure which is fair and impartial, and in which the parties are treated equally and are given a full (in a reasonably practical sense) opportunity of presenting their case. A faithfulness to the tasks involved in the contractual reference does require, however, in the resolution of the dispute, a relevant degree of obedience to the particular principles or rules of system of law chosen by the parties. An arbitrator who is charged with resolving a dispute under English law who decides to apply New York law, or who decides not to apply a recent and clear UK Supreme Court decision, may not just be making an error of law, but may be seen as deciding the dispute otherwise than in accordance with the contractual submission to arbitrate. For Art V(1)(c) of the New York Convention and Arts 34(2)(a)(iii) and 36(1) (a)(iii) of the Model Law, proof that the award “contains decisions on matters beyond the scope of the submission to arbitration” can be a basis for

setting aside or refusing to recognise or to enforce the award. Though an accidental overlooking of the Supreme Court decision, whether through lack of assistance or otherwise, may be seen as an error within authority, a deliberate refusal to apply it may be something more. For Australian public lawyers, the faint chorus of jurisdictional error can begin to be heard with all the difficulty of conceptualisation as its sounds drift forward like the first time one hears Stravinsky’s The Rite of Spring. That is a correct response, because this is about jurisdiction – the authority to decide. Let me illustrate what I mean by discussing briefly how the United States courts have approached a similar problem. Since the 1985 Mitsubishi Motors Corp Case,23 the United States Supreme Court has consistently enforced domestic arbitration agreements, including over areas that can be called mandatory law. Previously, in cases such as Alexander v Gardner-Denver Co,24 the Court had not enforced arbitration of labour disputes. In 1953, in Wilko v Swan,25 the Court held that securities claims were not arbitrable. All this changed with Mitsubishi. The Court has since consistently found socalled mandatory law claims (securities, anti-trust, employment, discrimination) to be arbitrable. For example, the Court said in McMahon, dealing with the Securities Exchange Act 1934 (US) and the Racketeer Influenced and Corrupt Organisations Act 1970 (US) (RICO), that the Federal Arbitration Act:26 mandates enforcement of agreements to arbitrate statutory claims…[unless it can be shown] that Congress intended to preclude a waiver of judicial remedies for the statutory rights at issue…such an

intent [being] deducible from [the statute’s] text or legislative history … or from an inherent conflict between arbitration and the statute’s underlying purposes. The Federal Arbitration Act has no provision for review of awards for error of law. Thus, many important domestic social issues were capable of being resolved outside the court system. But there came to be developed a form of review derived from the somewhat Delphic aside in McMahon27 that “judicial scrutiny of arbitration awards … is sufficient to ensure that arbitrators comply with the requirements of the statute.” This hint led to the judge-made development of review for manifest disregard of the law. In 1987, in Misco,28 the Court said that as long as the arbitrator is arguably construing or applying the contract and acting within the scope of his or her authority, even serious legal error will not overturn his or her decision. The Federal Circuits, nonetheless, in cases such as Cole v Burns International Security Services,29 found a basis for review of “manifest disregard of the law”. The content of this varied in the cases. Mere legal error was insufficient.30 A manifest disregard, rather than mistake or misapplication, was key.31 This could be shown by irrationality.32 This development might have been ended by the Supreme Court decision in 2008 in Hall Street Associates, LLC v Mattel, Inc.33 Nevertheless, manifest disregard of the law continued to be used,34 as an illustration of an arbitrator exceeding power under s 10(a)(4) of the Federal Arbitration Act, where “power” brings in the concept of jurisdiction. The precise resolution of this issue for the United States need not detain us.35 It is sufficient that the discourse gives a

Gifts in Wills help us fund Research

Support

Prevention

Australia will become the first country to effectively eliminate cervical cancer if vaccination and screening rates are maintained1. Our daughters and granddaughters will likely live in a world that is free of cervical cancer thanks to Professor Ian Frazer AC, former VicePresident and President of Cancer Council Australia and our investment in cancer research. Gifts in wills make a real difference. When writing a Will for a client please ask them to consider including a charitable gift. To find out more contact us on 08 9212 4333 or visit cancerwa.asn.au. Cancer Council Western Australia (Inc). Level 1, 420 Bagot Road, Subiaco, WA 6008. ABN: 15 190 821 561 Lancet Public Health 2 October 2018

clue as to the potential use of Art V of the New York Convention and Arts 34 and 36 of the Model Law to permit the review of awards that so depart from the mandate of the law that there has been a departure from the reference. As I said earlier, this kind of approach has an echo with jurisdictional error. This concept has developed in recent years to encompass the recognition that whilst there are accepted categories of jurisdictional error, ultimately the question is whether what happened is a fulfilment of the statutory power of the decision-maker. Findings of fact, even credit findings, by administrators or administrative tribunals are not immune from review if they have been undertaken in a way that is not sufficient to reflect a reasonable exercise of the statutory power. Returning to the Model Law, whilst error of law is not a ground to set aside or refuse to enforce the award, how the law is treated, or not, as the case may be, may be very important. The Canadian Courts have used the phrase “true jurisdictional error” in cases such as United Mexican States v Cargill Inc.36 Article 34(2)(a)(ii) was dealt with using the language of jurisdiction. A warning was given, however, as to the narrowness of the conception. The Court37 referred to the relevant enquiry as whether the tribunal dealt with a matter beyond the submission to arbitration, not how the tribunal decided issues within its jurisdiction.38 In applying Cargill, the Court in SMART Technologies said that if the decision was made not by reference to the required standard identified in the reference, but ex aequo et bono it would have been beyond jurisdiction.39 Thus, ascertainment as to whether the arbitrator kept to the fundamental task of deciding by reference to the rules and principles chosen by the parties may involve an examination of the treatment of legal questions. It is not, however, to assess whether there was error, but to see whether the dispute has been resolved by reference (with or without error) to the chosen law or standard. As with many dichotomies in law, this distinction may be more easily stated in the abstract than discerned in practical application. Law is not the preserve of judges, or of legislatures. It is principle, rule, value and a cast of mind of civil and civilised behaviour that belongs to the community it serves. A system of commercial justice requires a sufficient degree of stability and certainty to facilitate the fair and just resolution of disputes in a manner

16 | BRIEF APRIL 2019

satisfying commercial demands of despatch and human demands of justice.

Commerce). 6.

Municipalite de Khoms El Mergeb c/Ste Dalico, Cass. Civ. 1ere, 20 December 1993, [1994] Rev Arb 116.

National law and national courts have their part to play in this process. The contextual legitimacy of non-national principle and flexible adjudication by a chosen arbitrator should, however, be fully recognised as a partner of the Courts, in the international legal order (or vice versa depending on your perspective).

See generally Blackaby et al (eds), above n 1, at 173193.

Société PT Putrabali Adyamulia v. Société Rena Holding et Société Moguntia Est Epices (2007) Revue de l’Arbitrage 507.

See e.g. UNCITRAL Rules, Art 33.1.

10.

Such as a choice to avoid or evade mandatory public laws e.g. tax or competition laws.

11.

Channel Tunnel Group Ltd v Balfour Beatty Constructions Ltd [1993] AC 334; 2 WLR 262; 1 All ER 664.

12.

Ibid, [1993] AC 334 at 368.

Law and tribunal, and law and procedure, are inseparably linked. The content of law is in part determined by the identity of, and method of resolution by, the tribunal. Take the law of salvage. Its identifying principles are historical and drawn from thousands of years of maritime activity reduced to readily understandable language of daily practice as well as international conventions. The law is founded on equity and the fairness of the reward for the quality of, and the risks involved in, the successful response to danger. The tribunals that decide these matters are invariably people skilled and knowledgable in seafaring and familiar with the salvage task. The cases are dealt with promptly and broadly, without technicality. There are few legal court cases in modern times. The law of salvage is none the worse for that. The law is to be felt and found in the responses of honest commercial people, by reference to principles discussed by text writers, arbitrators, ancient codes, modern conventions, judges, and professional and academic commentators. The law lives and breathes in the human activity and in its literature, in the academy, and in wisdom passed on.

13.

7 F Cas 418 at 443 (1815).

14.

American Insurance Co v 356 Bales of Cotton, 26 US 511 at 545-546 (1828).

15.

88 US 558 (1874).

16.

345 US 571 at 581-582 (1953).

17.

See the Swiss and French provisions referred to by Blackaby et al, above n 1, at 227 fn 246.

18.

[2007] EWCA Civ 291.

19.

See Blackaby et al, above n 1, at 229 fn 256.

20.

The Right Hon Lord Thomas of Cwmgiedd, ‘Developing commercial law through the courts: rebalancing the relationship between the courts and arbitration’ (Speech delivered at the Bailii Lecture 2016, London, 9 March 2016).

21.

Doug Jones, ‘Arbitrators as Law-Makers’ (2018) 6 Indian Journal of Arbitration Law 18 and see the important discussion of the topic in the articles footnotes.

22.

Hague Convention on Choice of Court Agreements, 30 June 2005 (entered into force on 1 October 2018).

23.

473 US 614 (1985).

24.

415 US 36 (1974).

25.

346 US 427 (1953).

26.

Shearson/American Express Inc v McMahon 482 US 220 at 226-227 (1987).

27.

Ibid, 482 US 220 at 232.

28.

Chartered Paperworkers International Union, AFL-CIO v Misco, Inc, 484 US 29 at 38 (1987).

29.

105 F 3d 465 (DC Cir. 1997).

30.

See e.g. PR Tel Co v US Phone Mfg Corp, 427 F 3d 21 at 32 (1st Cir. 200); T Co Metals, LLC v Dempsey Pipe & Supply, Inc, 592 F 3d 329 at 339 (2d Cir. 2010); Wallace v Buttar, 378 F 3d 182 at 190 (2d Cir. 2004).

31.

Univ Commons-Urbana, Ltd v Universal Constructors Inc, 304 F 2d 1331 at 1337 (11th Cir. 2002); Wise v Wachovia Sec, LLC, 450 F 3d 265 at 268-269 (7th Cir. 2006).

32.

Todd Shpyards Corp v Cunard Line, 943 F 2d 1056 at 1060 (9th Cir. 1991).

33.

552 US 57 (2008).

34.

See Stephen J Ware, ‘Vacating Legally-Erroneous Arbitration Awards’ (2014) 6 Arbitration Law Review 56 at 97 fn 159.

35.

See the lack of clarity in Stott-Nielson SA v Animalfeeds International Corp, 559 US 662; 130 S Ct 1758 and Oxford Health Plans LLC v Sutter, 133 S Ct 2064 (2013).

The task we have as legal participants in the international legal order is to recognise the place of arbitration, courts, commentators, professors, and professionals in keeping honest, efficient and healthy an international legal order that serves the commercial community. The law is central to that. Not the law narrowly conceived, but a conception in the many featured forms that it takes. Endnotes 1.

See generally N Blackaby, C Partasides, A Redfern and M Hunter (eds), Redfern and Hunter on International Arbitration (Oxford University Press, 5th ed, 2009) at 166-173.

See Hancock Prospecting Pty Ltd v Rinehart [2017] FCAFC 170; 350 ALR 658.

Tamil Nadu Electricity Board v ST-CMS Electric Company Private Limited [2007] EWHC 1713 (Comm).

See C v D [2007] WHC 1542 (Comm).

See Bulgarian Foreign Trade Bank Ltd v A.I. Trade Finance Inc (2001) XXVI Yearbook Commercial Arbitration 291 (Swedish Supreme Court); Matermaco SA v. PPMCranes Inc. et al (2000) XXV Yearbook Commercial Arbitration 673 (Brussels Tribunal of

36.

(2011) 107 OR (3d) 528.

37.

The Ontario Court of Appeal.

38.

(2011) 107 OR (3d) 528 at [66].

39.

SMART Technologies ULC v. Electroboard Solutions Pty Ltd. [2017] ABQB 559.

The Law Society’s Wellbeing and Resilience Programme Did you know? Your membership with the Law Society provides complimentary access to these support programmes through LawCare WA. To find out more about all resources offered through LawCare WA, visit www.lawsocietywa.asn.au/lawcare-wa

Member Assistance Programme

Employee Relations Advice Line

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

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

Service provided by Converge International

Service provided by CCIWA

Phone: 1300 687 327

Phone: (08) 9365 7660

Practitioner Advice

Health and Wellbeing

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

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

Referral service provided by WABA

Phone: (08) 9220 0477

LawCare WA is available to members of

• • •

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

For more information about LawCare WA please visit

lawsocietywa.asn.au/lawcare

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

Procedural Good Faith in International Arbitration By Brendan Reilly, Principal, Reilly IDR, and Tim O’Shannassy, Associate, Squire Patton Boggs The following arbitration-themed articles are authored by the above practitioners

Good Faith Principle Good faith is, in essence, a principle of “fair and open dealing”,1 one that contemplates high standards of both commercial morality and practice. In particular, good faith requires contracting parties to exercise their rights in such a way that the parties in question may enjoy the benefits derived out of the contract. The rationale behind the principle of good faith is to prevent parties from purporting to rely upon express contractual rights, where exercising the right would result in the party obtaining a benefit extraneous to the contract.2 To that end, the concept of “good faith” builds upon fundamental implied terms, such as: a) To act reasonably, honestly and fairly b) To do all things necessary as to cooperate in achieving the contractual aim c) Not to prevent, impede, fetter or hinder the other party in the performance of the contract

Good Faith in International Arbitration In the context of international arbitration, the general principle of good faith imposes a positive obligation on parties to co-operate. More specifically, good faith applies to arbitration agreements (themselves a form of “contract”), such that parties adhere to the “obligation to act with fairness, reasonableness, and decency in the formation and performance”3 of agreements to arbitrate disputes.

Procedural Good Faith In contract or law, good faith commands that parties co-operate in evidentiary procedure. That is, the parties must: a) Provide truthful responses to

18 | BRIEF APRIL 2019

information requests b) Not use document production as a means of obstructing proceedings c) Produce responsive documents and witnesses following an evidence order Good faith compels the parties to produce relevant and material information that is within their control and not subject to privilege. In fact, when parties agree to be guided by the IBA Rules on the Taking of Evidence in International Arbitration, they agree to be guided by good faith in evidence production.4

Adverse Inferences: Enforcement of Good Faith International law ratifies an arbitrator’s inherent authority to draw adverse inferences against a party for unjustified non-compliance with an order to produce information. Adverse inferences are considered a means of enforcing the good faith principle and, whilst a breach of procedural good faith does not propagate a separate cause of action, it opens the door to arbitral tribunal recourse. The tribunal’s authority to draw adverse inferences arises from the: a) Express law of the arbitral forum b) Arbitration rules c) IBA Rules This promotes a procedurally fair and efficient arbitration while discouraging questionable conduct.5

an adverse inference made must have cooperated in good faith and been unable to produce the information.7

Efficiency It is important for parties and arbitral tribunals to find methods to resolve their disputes in the most effective and least costly manner.8 A tribunal may decide not to address a potential breach of procedural good faith and any related adverse inference request if it considers that the request is unlikely to succeed or that it is unnecessary.9

Conclusion The procedural good faith principle in international arbitration requires that the parties cooperate in the evidence gathering process. If procedural good faith is breached, adverse inferences are justified as a matter of general principles of law and apply in defence of the parties’ obligations under the relevant arbitral agreement. To that end, subject to the tribunal’s considerations of fairness and efficiency, parties to an arbitration agreement must be alive to the principle of good faith. Endnotes 1 2 3

Fairness Adverse inferences can be a useful tool in filling an evidentiary gap and assisting a party in presenting its case. Case law suggests that the breach of good faith or unjustified non-co-operation must be attributable to the party against whom the adverse inference is sought.6 It is also understood that the party seeking to have

6 7

8 9

Interfoto Picture Library v Stiletto Visual Programmes Ltd [1989] 1 QB 133, per Bingham LJ. Julian Bailey, Construction Law Volume One, Informa Law, 1st edition, 2011, 3.127. Charles T. Kotuby Jr. and Luke A. Sobota, General Principles of Law and International Due Process, Oxford University Press, 2017, p. 88. IBA Rules on the Taking of Evidence in International Arbitration (in force as from 29 May 2010), per paragraph 3 (Preamble) and Article 9.5. Sharpe, Jeremy K., Drawing Adverse Inferences from the Non-production of Evidence, Arbitration International 22, no. 4 2006, p. 550. Copper Mesa Mining v Republic of Ecuador, PCA Case No. 2012-2, Award, 15 March 2016, paragraph 4.8. ConocoPhillips v Bolivarian Republic of Venezuela, ICSID Case No. ARB/07/30, Interim Decision, 17 January 2017, paragraph 70. Commentary on revised text of the 2010 IBA Rules on the Taking of Evidence in International Arbitration, p 3. WNC Factoring Ltd (UK) v The Czech Republic, PCA Case No. 2014-34, Award (22 February 2017) paragraphs 394-5.

Developments in Investment Treaty Arbitration in Asia Image mapping China's Belt and Road Initiative

As China forges ahead with its ambitious “Belt and Road Initiative” (BRI), it has also adopted a progressive approach towards dispute resolution. One of the more prominent developments remains the announcement by the China International Economic and Trade Arbitration Commission (CIETAC) of its new rules governing the arbitration of international investment disputes (Rules) and the CIETAC Investment Dispute Resolution Centre in Beijing (CIETAC IDRC) being established to administer those Rules. Whilst the primary motivator for the new Rules is to support Chinese companies’ outbound investment in furtherance of China’s BRI, there is also a strong desire to support the independent and impartial resolution of international investment disputes between investors and host countries. To that end, the Rules also provide an alternative for Chinese investors concerned about potential bias in offshore forums due to a lack of understanding of Chinese law and practice. Importantly, the Rules preserve traditional arbitration characteristics such as flexibility, efficiency and economy, whilst incorporating elements of Chinese and international arbitration law and practice. These recent developments in the dispute resolution space are widely considered a necessary step. Although international investment arbitration is considered the main way to resolve disputes between investors and host states,1 no Chinese institution offered its own dispute resolution procedure. In fact, with many BRI countries devoid of their own investment dispute resolution forum, the Rules are set to become an effective way of “filling the gap” in the area of Chinese international investment arbitration, whilst also serving to develop and promote the international investment

arbitration practice in China through effective and expeditious resolution of BRI-related investor claims.

Key Characteristics •

Wide scope of jurisdiction: the CIETAC Investment Arbitration Rules are designed to regulate both investment treaty arbitrations and investor-state arbitrations, as a contractually agreed dispute resolution mechanism.

•

Primacy: all investment cases will be heard by the newly established CIETAC IDRC, but can also be referred and administered by CIETAC’s Hong Kong Arbitration Centre if so agreed (by the parties who choose Hong Kong as the seat).

•

Panel: arbitrators are to be appointed from a panel that is to be maintained by CIETAC, with deviations from the status quo requiring the approval of CIETAC’s chairman. CIETAC will also have scope to scrutinise draft awards and to draw the attention of the tribunal to “certain points” as long as that does not affect the tribunal’s independence.

•

treaties (BITs) with China to include CIETAC investment arbitration as a dispute resolution mechanism, there is potential for parties to select CIETAC investment arbitration in future contracts between investors and foreign states, governmental organisations or entities whose conduct is attributable to a state. Further, whether the hosting state agrees to name CIETAC in a specific investment agreement (when not a designated or contemplated dispute resolution institution in BITs between states) will depend largely on the negotiating power of the investor, including the Chinese banks or financial institutions providing the funding for the project. We note that there have been few China-related investor-state arbitrations. This is because, historically, these types of disputes have been resolved diplomatically or by direct settlement between the parties. That being so, how the Rules will be adopted in practice remains to be seen. Notwithstanding, given the unprecedented growth in outbound Chinese investment via the BRI, as well as increased Chinese investor awareness of investment treaty rights, we expect that this will likely soon change. We will continue to follow the practical application of the Rules to BRI projects with interest. Endnotes 1

“Interview with Wang Chengjie Regarding Investment Arbitration Rules”, 22 September 2017.

Third-party funding: parties may receive third-party funding, although it must be disclosed upfront to the counterparty, arbitrators and CIETAC.

Adoption of CIETAC and Its Rules Although states are unlikely to renegotiate their bilateral investment

Third-party Funding of International Arbitration in Asia Third-party Funding Third-party funding (TPF) is an alternative method of funding legal proceedings whereby a third party, not affiliated with the dispute, agrees to finance a disputing party, affiliate or law firm representing that party. The aim of TPF is to provide support or finance for part or all of the cost of the proceedings, in return for remuneration or reimbursement wholly or partially dependent upon the outcome of the dispute. Traditionally, parties opted to use TPF because they would not otherwise have the funds to pursue or defend proceedings. We are seeing an increasing number of well-resourced commercial entities opting to have their arbitral proceedings funded by third parties as a way of: •

Regulating cash flow

•

Apportioning risk

•

Encouraging an additional layer of due diligence on the merits of their case

Since its inception in Australia and the UK less than a decade ago, dispute funding has emerged from the shadows to take centre stage in the global commercial litigation and arbitration markets.

Asia Historically, TPF in South East Asia was met with suspicion or silence. However, in recent years, driven by commercial pressures, a growing number of jurisdictions in the region have reformed or abolished their longstanding rules of champerty and maintenance. Singapore’s signing into law of the Civil Law (Amendment) Bill 20161 and Hong Kong’s passing of the Arbitration and Mediation Legislation (Third Party Funding) Amendment Bill 20162 have since opened the door to parties involved in disputes seated in those jurisdictions to seek TPF to support their meritorious claims. With the International Investment Arbitration Rules of the China International Economic and Trade Commission (CIETAC) coming into force on 1 October 2017,3 the permanency of the trend indicating an

20 | BRIEF APRIL 2019

increase in TPF in international arbitration is now firmly established. To that end, we await the Australian Law Reform Commission’s Report to the Attorney-General,4 which is to consider whether and to what extent Commonwealth regulation ought to apply to third-party funders. This “opening” of Asia to alternative means of funding a claim is indicative of the push for arbitration centres in Asia to modernise their arbitration mechanisms in an effort to attract investors and states involved in the widely funded and promoted “Belt and Road Initiative”.

Risks There are inherent risks involved in TPF. Some of those perceived (and real) risks stem from public policy fears that by “gambling” on the outcome of the dispute, an agreement to share in the spoils may encourage the perversion of justice and endanger the integrity of judicial processes. The potential risks of TPF to parties involved in arbitrations include: High Cost If a party is successful, funders are likely to expect to recoup the sum funded plus a substantial fee. This fee is often calculated as a percentage, as a factor of the amount advanced, or a combination of both. The upfront cost of running due diligence on (and engaging) funders can also be significant. Conflicts of Interest The involvement of a third party via TPF may result in undisclosed conflicts of interest. This includes prior relationships between funder and party or law firm involved in the proceedings. This has the potential to generate costly satellite disputes. Confidentiality Given the variety in rules and approaches to privilege across jurisdictions, parties should enter into confidentiality or nondisclosure agreements with prospective funders.

Improper Influence As funders have a direct financial interest in the outcome of a dispute, there is a risk that it might seek to interfere with the conduct of the proceedings. Tensions may also arise where, for example, a funder wishes to pressure a party to settle, even if it is not in the party’s best interest. The funder may also wield excessive control by placing contingencies on, or unreasonably withdrawing, funding. Recovery of Costs Against Funders We note that there may be circumstances where a funded party is unsuccessful at arbitration, yet the tribunal is unlikely to have jurisdiction to make a costs award against a funder. That being so, if an unsuccessful party cannot meet an adverse costs order, the successful party may find itself unable to recover the full amount. In those circumstances, parties will need to consider making applications for security for its costs as early as possible.

Conclusion We expect the rapid growth in TPF in international arbitration to continue. In the interim, conscientious due diligence on funders and disputants, as well as bespoke drafting of funding and confidentiality agreements by experienced practitioners, may assist in alleviating some of the risks associated with TPF in international arbitration. Endnotes 1 2 3

10 January 2017. 14 June 2017. CIETAC’s rules are the first investment arbitration rules ever promulgated by a Chinese arbitration institution.

If an organisation does not demonstrate a commitment to privacy, people will look for alternative suppliers, products, and services. Office of the Australian Information Commissioner

Cyber Duty of Care How to Minimise Cyber Vulnerability in the Practice of Law By EJ Wise, Principal, Wise Law Find out more about cyber security by searching for the Law Council of Australia's 'Cyber Precedent' resources, and look out for upcoming communications and seminars provided by the Law Society of Western Australia and Law Mutual (WA)

Debunking cyber fears This article will help you quickly identify the areas in your law firm or legal practice which need regular review in order to ensure you are compliant with relevant laws, regulations, standards, and guidelines, as well as help you meet basic client expectations. You will find easy-to-read tools, recommendations, and resources.

The pace of development in modern legal practices is a reflection of societal norms, as well as the particular style of the practice owner(s). In law, many of us fear 'the cloud' or other modern technologies that replace traditional and 'reliable' paper files, books, and methods. While most practitioners are busy with the myriad elements in running or participating in a modern legal practice, it is easy for fundamental data obligations to remain unchecked. This is certainly evidenced by the new reporting being collated by the Office of the Australian Information Commissioner since the changes to the

Commonwealth Privacy Act 1988 in 2018 which showed that the legal industry ranked third (out of the top five industry sectors that reported privacy breaches) in the quarter from 1 July - 30 September 2018.

Your client’s rights include ethical and safe handling of their information.

...poorly maintained cyber security makes your practice vulnerable to hacking, theft or misuse of information which means you may be subject to statutory penalties and/ or lawsuits (not to mention reputational harm) Do you know if your practice meets the minimum standards for:

So what?

•

data security

Technologies and their coincidental obligations have brought legal practices under the spotlight as places of business holding distinctly private, personal, proprietary, strategic and privileged information or data.

•

client information

•

security

•

software vulnerabilities

•

adequate employee computer / cyber training

•

cyber insurance

•

data breach response

•

strategy

•

mandatory data breach reporting

Legal clients and society reasonably expect that you as a practitioner are fulfilling the continuing professional development requirements of your State (i.e., so you are not considered negligent in your area of practice). Legal clients and society expect you and your firm to maintain physical

filing, storage, cyber and computing infrastructure in a way that exceeds or, at minimum, complies with industry standard and government laws and standards (i.e., so you are not negligent in your obligations in collection and holding of personal data).

What is my ‘industry’ (legal profession) standard for cyber security? In February of 2018, the Office of the Australian Information Commissioner released ‘A Guide to Managing Data Breaches in Accordance with the Commonwealth Privacy Act 1988’. This guide provides easy to read information on how: •

the Privacy Act applies to law practices;

•

the 2018 changes to the Privacy Act affect legal practices;

•

to identify examples of breaches;

•

to find information related to: – getting a greater understanding of the Privacy Act [Part 1 and Part 4 of the Guide]; – preparing a data breach response strategy [Part 2 and Part 3 of the Guide]; – how to respond to a data breach [Part 4 of the Guide – specifically the mandatory data breach reporting and assessment requirements of the National Data Breaches (NDB) scheme].

Legal practices that have successfully remained largely paper-based have the same duty of care as those who have embraced information technology and data back-ups to hardware or ‘the cloud’ (hardware you don’t see). For paperbased legal practices, there are different measures required. Having an off-site storage facility is not a definitive answer unless that facility has its own adequate security. Having on-site storage of paper files, without any duplicates or scanned copies held safely off-site, may not be sufficient to meet the duty of care – what if there is fire or flood? Does the practice insurance policy cover liability for loss of personal data or cyber theft above and beyond the standard policy cover for bricks and mortar/fixtures and fittings?

RISK MANAGEMENT Much of meeting the demands of legal practice, complicated as it is by the need for internet safety, proper data/ information practices, and respect for the requirements of privacy laws, will 22 | BRIEF APRIL 2019

be satisfied by your due diligence. For the busy practitioner, this involves ensuring you have at least an awareness of your obligations, are performing risk management (or having it performed for you) and are determining what your minimum effort/best approach for your practice is. Why perform your own risk management? •

Liability

•

Practicality

•

Best Practice

•

Financial Surety

A pragmatic legal practitioner might ask ‘well, what can I get away with?’ The area of cyber law and litigation remains relatively untested in Australian courts; however the principles of privacy, client rights, duty of care and due diligence are well established. A court would balance what a practice did (positive actions to respect privacy laws, guidelines and so forth), failed to do (actions which a client or member of the public would reasonably expect to be done on their behalf), or were negligent in failing to do. A court would look at what information was easily and practically available for the practice (see reference list below, a large amount of which is free). A court would most likely consider whether the practice had: – performed its own risk assessment and managed accordingly; – appointed person(s) to be responsible for managing data/ information/privacy/technology within the practice; – conformed with the relevant practice guidelines on cyber security from bodies such as the Law Society Western Australia and the Law Council of Australia, the Australian Cyber Security Centre’s ‘Stay Smart Online’, the Australian Government Department of Industry, Innovation and Science’s business, and the Office of the Australian Information Commissioner; and – adequately discharged their basic duty of care. In the context of all the freely available information, it would be challenging to argue that it was too hard, too costly or too time-consuming to have one’s legal practice compliant with laws, policies and guidelines. It is parallel to the practice’s own interests (economic,

social, ethical) to know about, and implement, these fundamental cyber safety precautions because even with adequate cyber insurance (again not a well tested area in Australia), the insurer may deny a claim where there was clearly a failure to implement proper cyber safety and, indeed, insurance policies, as this area matures, will likely require proof of basic risk assessment and/or practice policies. Furthermore, larger clients will require some level of coverage for cyber perils (thus triggering due diligence to determine premium costs).

I am resource and time poor Even the briefest risk assessment will reveal that this is not window dressing. Weighing the relatively low investment of time and money into decent cyber safety against the high loss/high risk outcome of having inadequate cyber safety. The practice investment into cyber safety is elementary. Cyber safety is a fundamental component of modern legal practice – it is a business function akin to accounting and human resources.

What kind of penalties or litigation could I, or my firm, be exposed to if I opt to do nothing? In Australia there has so far been less litigation than presently occurs in the USA and in the UK. In these overseas jurisdictions data breach/cyber theft has led to breach of contract, negligence, and class actions. This is not to say that class actions and private law suits are not possible in Australia, and as discussed above, the only answer to litigation will be the diligent application of readily available basic cyber safety. Aside from potentially devastating reputational loss, every, and any, breach of personal data/information has the potential to result in litigation above and beyond any Commonwealth and State/ Territory law penalties. There is some case law jurisprudence in Australia for breach of confidence litigation, plain ‘negligence’ litigation and although Australia has not yet recognised a tort of privacy, Australia has previously adopted jurisprudence and case law from foreign jurisdictions as guidance. My advice: do not be the legal practice ‘cyber-fail’ test case for Australia. After the breach is not the time to test just how far your relationship with your partners/law firm extends in terms of shared liability, contributory negligence and vicarious and/or fiduciary liability.

RECOMMENDATIONS 1. Establish a base line for your legal practice – a stock take – of your software, data/information and technology practices; 2. Perform a risk management analysis of your cyber security (see free Australian Government Risk Assessment Tool below, ref. 12); 3. Ensure the data/information (including trust account/banking) you collect from your clients conforms with the Commonwealth Privacy Act 1988 and relevant State/ Territory legislation; 4. Ensure that your law firm insurance policy includes adequate cyber insurance specific to the data you collect and hold, this may require more than the mandatory professional indemnity insurance required;

References 1.

5. Ensure that your practice complies with the National Data Breaches Scheme, relevant recommendations of the Law Society of Western Australia, Law Council of Australia any further applicable Western Australian statutory obligations; 6. Refer to the Law Society of Western Australia, Law Council of Australia and additional websites (cited below) to ensure you have properly minimised your firm’s and your own vulnerability to avoidable cyber pitfalls. 7. Understand that actively managing cyber risk means regularly reviewing your contracts and the practices of all the 3rd and Nth party vendors used by you and those who provide services to your practice and/or its clients.

Commonwealth Privacy Act 1988. Compilation No. 79. Compilation date 6 Nov 18. http://classic.austlii. edu.au/au/legis/cth/consol_act/pa1988108/ (accessed Jan 2019).

Queensland Law Society. Cyber Security. http://www. qls.com.au/Knowledge_centre/ Ethics/Resources/ Cyber_security (accessed Jan 2019).

Australian Cyber Security Centre. https://cyber.gov.au/ business/ (accessed Jan 2019).

Stay Smart Online. Small Business ‘Protect Your Business in 5 Minutes’ 2nd edition. Stay Smart Online. Canberra: 2017. https://www.staysmartonline.gov.au/ sites/ default/files/Stay-Smart-Online-Small-BusinessGuide_1.pdf (accessed Jan 2019).

10.

Australian Office of the Information Commissioner. Data Breach Preparation and Response Guide. 2018. https://www.oaic.gov.au/agencies-and-organisations/ guides/ data-breach-preparation-and-response (accessed Jan 2019).

Legal Practitioners’ Liability Committee. Cyber Security. http:// lca.lawcouncil.asn.au/lawcouncil/ cyber-precedent-home (accessed Jan 2019).

11.

Australian Competition and Consumer Commission. https://www.accc.gov.au/ business/business-rightsprotections/avoiding-scams (accessed Jan 2019).

Law Institute of Victoria. Cyber Security Essentials for Law Firms. 2017. https:// www.liv.asn.au/ getattachment/Professional-Practice/Areas-of-Law/ Technology-and- the-Law/Resources/20171122_LP_ LawTechEssentials_CyberSecuirtyFirms- v02.pdf.aspx (accessed Jan 2019).

12.

Law Institute of Victoria. Cyber Security Essentials for the individual. 2017. https:// www.liv.asn.au/ getattachment/Professional-Practice/Areas-of-Law/ Technology-and- the-Law/Resources/ 20170817_LP_ LawTechEssentials_CyberSecurityIndividual_V04.pdf. aspx (accessed Jan 2019).

Australian Government Department of Industry, Innovation & Science. Cyber Security risk assessment tool. Canberra: November 2018. https:// www. business.gov.au/centre-for-defence-industrycapability/resources/useful-cybersecurity-resources (accessed Jan 2019).

13.

Australian CyberCrime Online Reporting Network (ACORN). https:// www.acorn.gov.au/ (accessed Jan 2019).

14.

Law Institute Journal. Notifiable Data Breaches: It’s complicated. Fabian Horton. 2018. https://www.liv.asn. au/Staying-Informed/LIJ/LIJ/March-2018/Notifiabledata-breaches--it%E2%80%99s-complicated# (accessed Jan 2019).

International Organization for Standardization. Information technology — Security techniques — Cybersecurity and ISO and IEC Standards. ISO/IEC TR 27103:2018 (accessed Jan 2019).

15.

Victorian Legal Services Board + Commissioner. RPA News. Cybercrime: a growing threat to lawyers and clients. 2018. http://www.lsbc.vic.gov.au/documents/ RPA_News_44_June_2018.pdf (accessed Jan 2019).

International Organization for Standardization. Information technology - Information Security Management Systems. ISO/IEC TR 27001:2013 (accessed Jan 2019).

16.

International Organization for Standardization. Information technology - Guidelines for Cybersecurity. ISO/IEC TR 27032:2012 (accessed Jan 2019).

Associate/Senior Associate

Employment Law

About HLS Legal

Requirements

HLS Legal is a commercial law firm specialising in employment law, industrial relations, litigation and OHS for corporate clients.

The ideal candidate will have: • a minimum of 3 years + PAE in employment and/or industrial relations law; • private practice experience and preferably be working in the area of employment law in a law firm; • an aptitude for providing clients with commercial legal solutions; • litigation experience; • the ability to work as part of a close knit team as well as lead and mentor junior lawyers; • excellent academic results.

The Position HLS Legal is seeking an Associate or Senior Associate level lawyer to join our established practice.

The successful applicant will work on a range of complex employment and IR matters across our corporate employer client base. To apply, please send your resume to Emma Smetana at esmetana@hlslegal.com.au

Taxing Matters By Grahame Young Francis Burt Chambers

The Duties Act and the Onus of Proof The decision of the High Court in Commissioner of State Revenue v Placer Dome Inc [2018] HCA 59 is notable for the sheer amount of duty in dispute – $55 million – and for their forthright restatement “the attraction of custom remained the critical focus of, and central to, the legal concept of goodwill.”

be difficult, even impossible if evidence or records are not available, and may involve very significant expense.

•

the proper construction of the Act;

Another notable aspect, which has attracted less attention, is that the taxpayer bears the onus of proving the assessment of duty is incorrect.

•

the legal effect of a document;

•

the characterisation of the legal effect of a transaction or event; and

Both the plurality and Gageler J held that the taxpayer had failed to discharge the onus it bore.

•

the application of the Act to agreed facts or circumstances.

Despite the views of Buss JA, as he then was, in Commissioner of State Revenue v Serana Pty Ltd [2008] WASCA 82, the State Administrative Tribunal in Cheng v Commissioner of State Revenue [2008] WASAT 52(S) had taken the position that there is no onus of proof on the taxpayer on a review by the Tribunal. The Court of Appeal in Placer Dome rejected the approach of the Tribunal and reasserted the views of Buss JA. In the High Court Gageler J explicitly noted that the Court of Appeal, in an important aspect of its reasoning unchallenged on appeal, had held that the relevant legislation placed on the taxpayer the onus of establishing that the assessment to which its objection relates is “invalid or incorrect.” The plurality accepted, without discussion, that the taxpayer bore the onus. In the Court of Appeal Martin CJ had analysed the decisions and reasoning in Serana and Cheng and held the views expressed by Buss JA in Serana were clearly correct. He also referred to the Administrative Appeals Tribunal Act 1975 (Cth) and the cases decided under it in relation to the onus of proof. As practitioners in the area are acutely aware, it is insufficient to demonstrate that an assessment is wrong. It is up to the taxpayer to prove what their liability under the assessment should have been. The discharge of the onus can

24 | BRIEF APRIL 2019

In many cases where a taxpayer objects to an assessment of duty under the Duties Act, the burden of discharging the onus will have little impact. Such cases will include:

But there are at least two types of case where the ability of the taxpayer to discharge the onus will be crucial: •

as in Placer Dome, if there is a challenge to a valuation adopted by the Commissioner;

•

if the Commissioner has found a prescribed scheme or arrangement does or does not exist.

In the first instance the taxpayer must prove what is the correct value. Value is at the heart of every assessment. The taxpayer in Placer Dome failed to discharge the onus; first, by attributing the difference between the value of its land and the value of all its property to goodwill, when the Court found there was no goodwill of any material value; and second, by failing to explain the gap between the value its valuers put on its land and the agreed value of all property. Merely showing the Commissioner’s valuation had been supported by expert evidence which was no longer relied upon did not show the valuation was wrong, much less what the correct valuation was. The second type of case may present greater difficulty. Many provisions of the Act provide for consequences dependent on the existence or non-existence of a scheme or arrangement. Some examples are: s20 (5) and s36, a scheme or arrangement having a dominant purpose of reduction of

duty; s67, a scheme or arrangement that results in a change of beneficial ownership of dutiable property; s87, a scheme or arrangement the sole or dominant purpose of which is to defer the payment of duty; s119 (3)(a), no scheme or arrangement to confer an interest in relation to trust property to the detriment of the beneficial interest or potential beneficial interest of any person; Chapter 7, tax avoidance schemes. Whenever there is a transaction, it is inevitable that it will be, or will be part of, a scheme or arrangement, even if that scheme or arrangement is simply to effect the transaction. If the Commissioner finds, as a condition of her assessment, that there is, or is not, a scheme having the prescribed characteristics, then the onus will be on the taxpayer to prove what the actual scheme or arrangement was. It will be rare that there is contemporaneous, independent evidence. Usually it will be necessary to rely on the recollections and assertions of the parties, currently as supplemented by email trails. These may well be regarded as self-serving and having reduced weight, but that may be all that is available. A complicating factor can be that the legislation may be expressed as the Commissioner being satisfied or of the opinion that there is such a scheme or arrangement. In such cases, the taxpayer may first be required to show that the Commissioner could not reasonably form the opinion or be satisfied. The wellknown passage from the judgment of Dixon J in Avon Downs Pty Ltd v F C of T (1949) 78 CLR 353 at 360 concerning the circumstances in which the Commissioner’s decision is examinable will be relevant. Having surmounted that hurdle, the proof of the actual scheme should follow. In future, on objection and review, representatives of taxpayers will have to pay close attention to the means of discharging the onus of proof.

2018 WA Lawyer of the Year Awards Winners (L-R): 2018 Law Society President Hayley Cormann, Haley Allan, Dr Jürgen Bröhmer - Professor and Dean of Law, Murdoch University and Tegan Harrington.

THE LAW SOCIETY LAWYER OF THE YEAR AWARDS In the lead up to Law Week, the Law Society invites members to submit entries to the Law Society Lawyer of the Year Awards. The Law Society Lawyer of the Year Awards recognise practitioners who have made particularly noteworthy contributions to the Western Australian legal profession, over and above what might be reasonably expected through paid legal employment. Do you know someone who could be the Law Society Lawyer of the Year? Nominations for the Law Society Lawyer of the Year Awards are now open until 2.00pm Monday, 15 April 2019. Law Society members are invited to nominate a worthy recipient in the categories of Lawyer of the Year (more than 5 years’ experience) and Lawyer of the Year (less than 5 years’ experience). Winners are announced at the Law Week Awards Night and Cocktail Evening, on Friday, 17 May 2019 at The Westin, Perth. For full criteria and further information, please visit www.lawsocietywa.asn.au/law-week Proudly sponsored by

Principal Sponsor

Law Society Lawyer of the Year Award Recipients Practitioner with more than five years’ experience 2018 – Haley Allan 2017 – Simon Creek and Nicholas van Hattem 2016 – Claire Rossi and Glen McLeod 2015 – John Fiocco 2014 – Melanie Cave 2013 – Thomas Percy QC 2012 – Denis McLeod and Clare Thompson 2011 – Shayla Strapps and Amanda Goodier 2009 – Steven Penglis 2008 – Dr Johannes Schoombee Practitioner with less than five years’ experience 2018 – Tegan Harrington 2017 – Krista McMeeken 2016 – Michael Geelhoed 2015 – Callum Hair 2014 – Jessica Bowman and Stephanie Puris 2013 – Gary Mack 2012 – Tammy Solonec 2011 – Breony Allen 2009 – Toni Emmanuel 2008 – Anna Rakoczy

Lawyer of the Year (less than five years’ experience)

lawsocietywa.asn.au Law Week 2019

The Penultimate Peril Strickland (a pseudonym); Galloway (a pseudonym); Hodges (a pseudonym); Tucker (a pseudonym) v Commonwealth Director of Public Prosecutions & Ors By Jeremy Gans Professor, Melbourne Law School

Tony Strickland, according to Wikipedia, is a former Californian legislator who twice failed to make the jump to the US Congress. Strickland’s fellow High Court appellant, Donald Galloway, has a longer entry in the Internet’s encyclopaedia thanks to his prominent roles in 1960s procedural Ironside and 1980s soap General Hospital. The third man arrested alongside them on Friday, 1 July 2011 doesn’t satisfy Wikipedia’s significance criterion; however, Google reveals that one Edmund Hodges is seeking a female penpal willing to overlook his imprisonment for a dramatic Chicago bank heist. Joining Strickland, Galloway and Hodges at the apex court is Rick Tucker, who was charged nearly two years after the others and whose name appears alongside Buddy Holly’s and Roy Orbison’s on various YouTube clips. The only thing that the ex-legislator, exactor, ex-heister and ex-singer actually have in common is that their names were generated by one of the following websites: •

http://www.behindthename.com/ random/

•

http://www.fakenamegenerator.com/

•

http://www.starmanseries.com/ toolkit/names.html

Victoria’s Court of Appeal uses these 26 | BRIEF APRIL 2019

sites to comply with the state’s ubiquitous suppression laws, while avoiding the ‘alphabet soup’ problem posed by using initials instead. As Gageler J explains in Strickland (a pseudonym); Galloway (a pseudonym); Hodges (a pseudonym); Tucker (a pseudonym) v Commonwealth Director of Public Prosecutions & Ors [2018] HCA 53, the quartet’s pseudonyms are courtesy of "orders of the Supreme Court of Victoria, unchallenged in the appeals and made for reasons not revealed in the appellate record." All we really know about the four appellants is that they are either managers or employees of two companies that were given the (soupy) pseudonyms XYZ Ltd and QRS Ltd, presumably to the chagrin of a colour management company in Clayton South and a third party support company in Worcestershire. While all four men have appeared twice in Victoria Court of Appeal judgments in 2014 and 2017, the High Court judgment is the first time we learnt what they were actually arrested for in 2011 and 2013; Gageler J and Edelman J reveal that all four were charged with the federal offence of conspiracy to bribe a foreign public official and that three (excluding Tucker) were also charged with the Victorian offence of dishonestly falsifying a document for an accounting purpose.

Each offence carries a maximum penalty of ten years in prison. Well, there are two more things we now know. Justice Edelman quotes Strickland’s own counsel as admitting that the four were ”sharks”, not “minnows”. And a majority of the High Court has ruled that none of these sharks can ever be tried for their alleged crimes. The four defendants owe their new impunity to events on Thursday, 12 November 2009, nearly twenty months before any of them were charged. A year earlier, the Australian Crime Commission received information from an ‘unregistered human source’ alleging criminal activity at XYZ Ltd. Over the next six months, the ACC reviewed the allegations and decided against investigating them itself. Instead, the ACC referred them to the Australian Federal Police, which quickly launched Operation ‘Thuja’ (a pseudonym for the operation’s arbitrary codename and also, according to Wikipedia, a genus of trees that make excellent hedges). After a visit to XYZ Ltd’s premises, Thuja staff had an enormous pile of documents to sift through. Crucially, the ACC stayed in touch with Thuja. Indeed, from the moment it referred XYZ’s shenanigans to the AFP, ACC staff made it clear that the AFP was welcome to use the Commission’s

The High Court of Australia, Canberra

most significant resource — its statutory authority to force people who might know something to attend before it and answer questions — any question — at all — on oath. Thuja’s staff, faced with reading some 80 million documents, certainly liked the sound of that. At a meeting at the ACC’s Melbourne officers on Friday 6 November 2009, Thuja and ACC staff agreed on a timeline to ‘examine’ various XYZ and QRS employees and directors. But there was a hiccup: the manager of the ACC’s original review of the allegations and the head of Thuja each recommended against using coercive powers albeit for different reasons: the former because the powers shouldn’t be used on likely criminals and the latter because XYZ was accused of crimes that fell outside the ACC Board’s recent determination of which financial crimes merited the use of coercive questioning powers. Both objectors were prescient. The High Court in 2013 and 2014 ruled that coercive questioning powers should not be used against charged suspects and prosecutors should never be given the fruits of questioning of uncharged suspects, absent clear legislative authority or established legal tradition. More recently, ten of the eleven judges who ruled on the four defendants’ stay application held that the lack of a relevant prior Board determination

meant that the coercive powers were unavailable to investigate XYZ’s crimes. Alas, in 2009, less wise heads prevailed. At the 6 November meeting, Thuja staff adopted the fiction that the investigation’s sole suspect was XYZ Ltd itself. Six days later, Tony Negus, appointed AFP Commissioner just two months earlier, gave Thuja his ‘approval’ to use the coercive powers on offer. That same day, he replaced Thuja’s head with ‘Officer Schwartz’ (yet another pseudonym of course), who overruled his or her predecessor’s legal objections. We don’t yet know the full story of how things went so awry in Australia’s top two crime agencies. The detailed (but partly redacted) chronology the defendants submitted to the High Court shows that the AFP, the ACC and the Cth DPP were in constant communication throughout Operation Thuja. However, in 2014, the Victorian Court of Appeal barred the defendants from cross-examining their prosecutors on the legal advice they gave to the AFP, dramatically reading down a uniform evidence legislation exception to legal professional privilege. But it’s easy to see how the AFP’s and ACC’s roles became so blurred. Despite the ACC being granted powers that went well beyond any held by regular Australian police officers, its Board is

mainly made up of the heads of those same police forces. Its Chair was Negus himself, who headed both the ACC Board and the AFP until 2014, when he was appointed Australia’s high commissioner to Canada. The AFP’s and ACC’s huge error played out across 2010, with the investigation proceeding ‘outside-in’, from apparent peripheral players to actual suspects. Eleven people (including Galloway and Hodges) were examined between March and May, with a further five (including Strickland and Tucker) in November. In every case, the examinees were first offered an interview ‘under caution’ with the AFP but opted to exercise their right to remain silent. They were then summoned to an examination, where they were offered a different choice: speak the truth or go to jail for up to five years. As the High Court later held, the latter threat was legally unenforceable. The person supposedly in charge of these events was Geoffrey Sage — that’s his real name, though he’s widely known as Tim — an ACC examiner. Sage had a lengthy career as a lawyer in law enforcement agencies, starting as a NSW Local Court clerk and then becoming a legal officer and regional director of the National Crime Authority, an Assistant Commissioner of the NSW Integrity Commission and 27

finally appointed by the GovernorGeneral as an examiner at the ACC, the NCA’s successor. His theoretical role in the examinations of XYZ and QRS employees was to decide who to summon, whether to require them to give sworn testimony and what questions the ACC counsel should ask them. But, as a Victorian Supreme Court judge found in 2017, he didn’t exercise any independent judgment in these matters and instead simply did what Schwartz asked him to do, including endorsing questions that were actually prepared by the AFP. As she pithily put it, Sage provided Thuja with a ‘hearing room for hire’ – a ‘hearing room’ that was actually a Star Chamber. Sage’s – well, Schwartz’s – decisions to summon and question criminal suspects about their alleged crimes – in circumstances where the privilege against self-incrimination was abrogated – completely contradicted guidelines written by both the AFP (setting out the force’s understanding of the ACC’s role) and the ACC (its standard operating procedures.) As well, Sage breached the ACC Act in at least two ways. Despite a provision requiring him to inform examinees if a non-ACC staff member is ‘present’ at the examination, he failed to inform the four defendants that between six and nine Thuja investigators were watching from another room. And, despite a statutory obligation to prohibit dissemination of the examination answers as needed to ensure that soonto-be-charged examinees would receive a fair trial, he expressly permitted video and transcripts of their examinations to be given to both Thuja investigators and the Commonwealth DPP. It is clear that the AFP and ACC had no idea that their actions had fatally damaged Operation Thuja. In mid2010, an unnamed AFP Commander wrote an appreciative letter to an ACC investigator, Bruce Bullock, concluding: The use of the ACC coercive powers in the course of AFP investigations is a highly valuable resource. The forging of a close working relationship between both agencies can only strengthen the capabilities of both law enforcement agencies. The ACC has since been renamed the Australian Criminal Intelligence Commission, after it absorbed another struggling agency. Tim Sage currently sits on the ACIC’s internal management board. Even though their trial has never commenced (and now never will), the defendants’ prosecution has been 28 | BRIEF APRIL 2019

before a Victorian Supreme Court judge for at least four years. From August 2014 to June 2015, Justice Elizabeth Hollingworth presided over 57 days of hearings, including the examinations and cross-examinations of 23 witnesses from the ACC, AFP and DPP, and read over one thousand pages of submissions and an ‘extraordinary volume’ of documentation, all on the question of whether the prosecution can proceed despite the events in 2010. On two occasions, she ruled in the defence’s favour – once to let them cross-examine their prosecutors about the legal advice they provided to their investigators; and once to grant the stay they sought – only to be overruled each time by a unanimous Court of Appeal that included Court President Chris Maxwell. The issue before the High Court was whether the Court of Appeal was correct to overrule Hollingworth J’s stay. The Court of Appeal didn’t differ from her damning findings about Sage’s errors – indeed, they went further in labelling the entire examination both illegal and improper. But they found two errors in her rulings. First, they disagreed with her assessment Sage "was reckless as to his various obligations to an unacceptable degree"; not true, said the Court of Appeal, as he was merely negligently ignorant. Second, and more cogently, they held that she had been too lenient to the defendants at the stay hearing by seemingly excusing them the need to prove that Sage’s actions would disadvantage them at their trial; to the contrary, the defendants had failed to challenge the police’s claim that Sage’s examinations gave them little of substance and cited Gageler and Keane JJ’s view in a 2013 case that defendants are not ‘locked in’ to their earlier examination answers. Unsurprisingly, Gageler J reiterated these views in the High Court and he and Gordon J upheld the Court of Appeal’s ruling that any disadvantage the defendants faced could be managed by changing the prosecution team and barring the investigators from mentioning the coerced questioning. But the plurality of Kiefel CJ, Bell and Nettle J firmly disagreed, unsurprisingly citing the contrary view of Bell and Hayne JJ in an earlier High Court case that a defendant who has already been compelled to reveal his or her account "can no longer decide the course which he or she should adopt at any subsequent trial according only to the strength of the prosecution case" and firmly rejecting the Court of Appeal’s view that the defendants could have

proven how they were disadvantaged: After all, how were the [defendants] practically to go about that? Where, as here, there were some tens of millions of relevant documents and no documentary record of the distribution of examination product within the AFP and the Office of the CDPP and the manner in which it was used to inform prosecutorial decisions it would surely have been extremely difficult. And it would have been potentially dangerous for the appellants to make a serious attempt at discrediting the perfunctory denials of use which appeared in several prosecution witnesses’ affidavits, as it would have risked exacerbating the prejudice to the appellants by potentially exposing perceived weaknesses in the prosecution case and possible paths of available defences. Likewise, the plurality (with Gageler J agreeing on this point) rejected as sophistry the Court of Appeal’s critique of Hollingworth J’s finding that Sage was reckless: Plainly, her Honour used the term in the sense of heedlessness of or indifference towards the requirements of the ACC Act, and, semasiologically, that was an entirely apt description of Sage’s lack of care in the discharge of the functions legislatively entrusted to him in his capacity as examiner. Like nearly all joint judgments in the High Court, we don’t know which of Kiefel CJ, Bell J or Nettle J wrote the plurality’s damning assessment of Sage (and, indirectly, the Court of Appeal). But we can peek. ‘Semasiologically’ – a word that here means ‘a word that here means’ – has been used on occasion previously in both the High Court and the Court of Appeal, but always in judgments written by or joined in by one particular former judge of Victoria’s Court of Appeal. Justice Geoffrey Nettle, writing for the High Court plurality, concluded: To condone such grossly negligent disregard of statutory protections and fundamental rights as occurred in these cases would be to encourage further negligent infractions of the strict statutory requirements of Div 2 of Pt II of the ACC Act and thus of the common law right to silence. In effect, it would be to imply that, short of intentional or advertent reckless disregard of the ACC Act, ACC

officers might proceed however negligently in violation of the Act and the protections which it expressly affords to examinees, and therefore however much in violation of a suspect’s common law right to silence, confident in the knowledge that this Court would wave through the results… But Justice Stephen Gageler ruled that it was the plurality that risked bringing the administration of justice into disrepute: Neither in permitting the proceedings to continue nor in implementing procedural measures for the purpose of avoiding substantial unfairness in the conduct of those proceedings can the court seized of jurisdiction in the proceedings realistically be characterised as tolerating or excusing the unlawful conduct which has occurred. The effect of the unlawful conduct on the conduct of the proceedings, in my opinion, is not such as to undermine public confidence in the administration of justice by that or any other court. Courts must be made of sterner stuff lest the public’s confidence in them be eroded by their own timidity.

Justice Michelle Gordon made the same point more pithily: "If the ACC’s conduct warrants criticisms of the kind and intensity levelled by the plurality, those criticisms would be relevant only if seeking to punish the ACC." In the prosecution of Strickland, Galloway, Hodges and Tucker, who is actually on trial? Is it only the defendants, as Gageler J and Gordon J argue? Or is it also the ACC whose illegal actions must be condemned and deterred, as the plurality suggests? And are the courts (or the Court) somehow on trial too? These questions determined the appeal and were the focus on the separate judgments of Justices Pat Keane and James Edelman, who effectively decided the case. Based solely on his past decisions on crime examiners’ powers, you might have predicted that Keane J would side with the Commission in general and Gageler J in particular, as he did in 2013. But Keane J held that the outcome of this case turned neither on whether Sage was reckless, nor whether the defendants were prejudiced, but rather on whether the courts owe their fidelity to the executive or the legislature:

In approaching this issue, the primary consideration must be that the courts, as the branch of government directly responsible for the administration of justice, should not give effect to a preference for the wishes of the executive government over the legislative purpose. It would put the courts at odds with the legislature if the courts were to take unusual steps specifically to accommodate a bid by the executive government to overcome a deficit in the integrity of a trial that arose solely by reason of the executive’s disregard of the relevant legislation. That would bring the administration of justice into disrepute. In other words, the courts' duty is to the legislature. It would be wrong, Keane J held, to "embroil the court in the invidious process of accommodating the wish of the executive government to prosecute the appellants notwithstanding the executive’s disregard of the legislative purpose that such accommodation should not be necessary." The Court’s newest member is the only justice not to have previously ruled on crime examiners’ powers. Justice

YOUR HOME STYLE to ARTIQUE ARTISTRY & CRAFTSMANSHIP AWARDED CUSTOM HOME DESIGNER & BUILDER Building with confidence since 1988

Build a High Quality Custom Home – Completed at less cost than your average Project Builder

• Free design by Designer/Builder • Designed for your site & lifestyle • Demolition & approvals included • Direct contact with Builder • Complete pricing – no hidden extras

Contact Malcolm Goode ‘Today’ for a personal obligation free appointment to discuss your new home ideas, direct with the Designer/Builder/Director himself providing the confidence of over 30 years’ experience in producing Great Homes.

T: 0418 959 741

www.artiquehomes.com.au

enquiries@artiquehomes.com.au

• Completion costs less than project builders – All inclusive costs • Awarded Quality & Trust since 1988 • Custom building – why settle for less? • Experience the difference with Artique

Artique EST. 1988

HOMES

CUSTOM HOME DESIGNER & BUILDER

Experience – C onfidence – Trust

Artique Building Pty Ltd – BC #9669 Registered Builder/Supervisor: Malcolm Goode – BP #7816

Australian Federal Police car

Edelman was also the only justice to openly struggle over whether or not to grant a stay. "There are powerful reasons that favour the refusal of a stay in this case", he observed, noting the seriousness of bribery and false accounting, and the fact that the four defendants are alleged ‘sharks’. And orders could be made to remove much of the forensic disadvantage they face from the ACC’s errors. Yes, the ACC and AFP’s conduct was an attempt, arguably successful, to ‘stultify’ the legislation and common law that bind them, but the defendants were going to be charged with much the same offences on much the same evidence anyway. However, ultimately two factors swayed Edelman J in favour of the defendants. First, the Thuja agents were the only ones who truly knew what a difference the examinations had made. Expecting the defendants, as the Court of Appeal demanded, to prove that the examinations had helped the people investigating them had a ‘ring of absurdity’ given the AFP’s own lack of records and the impossibility of tracing ‘the precise mental process’ the investigators used to sift through their millions of documents to construct the DPP’s brief. Second, the lack of a strict 30 | BRIEF APRIL 2019

link between the illegal investigation and the future trial isn’t so important, given the ‘nature and extent’ of the wrongdoing; in particular, it’s no answer to say that the AFP could probably have reached the same ends lawfully. These two findings are very close to Hollingworth J’s rulings, as was Edelman J’s conclusion: It is telling that neither the ACC nor the CDPP ever suggested that it might be a realistic alternative to recommence, from scratch, an assessment of up to, or even more than, 80 million documents, but without the benefit of the appellants’ unlawful examinations. To use the primary judge’s metaphor, the egg could not be unscrambled. Allowing the trials to proceed would undermine the statutory regime and compromise the integrity of the court. Justice Edelman’s conclusion added an unnecessary fifth vote to the majority of the High Court that opted to stay the prosecution, but also created a slim sixfive majority in favour of a stay amongst the eleven judges who heard the case. Of the five votes in favour of a stay in the High Court, four belong to the Court’s

four oldest judges, who will all leave the Court by 2024. Justice Edelman, the youngest judge, could remain on the High Court for up to two decades after that. I’m often left cold by High Court decisions of late, but this one is different. The heart of this case is a question of judgment, rather than legal interpretation. The High Court presented five distinct voices and each of their reasons for judgment was well-written, clear and convincing. No-one will be left with the impression that this was anything other than a difficult call on a close case, but nor will they have any doubt why each of the authors came down the way they did. More so than usual, the judgments also speak to one another (albeit implicitly), with Edelman J backing the trial judge, Gordon J backing the Court of Appeal (and rebuking Nettle J), Nettle J responding to the Court of Appeal, Gageler J responding to Nettle J and Keane J responding to Gageler J. But there is one thing that is missing in this case – and I’m not referring to the unfortunately silent voices of Kiefel CJ and Bell J. Rather, what’s missing is the facts. At the heart of this case is

a major scandal at the top reaches of Australia’s top two anti-crime agencies. And yet one of those agencies, the Australian Federal Police, has been largely granted anonymity, with the central figure awarded a pseudonym – Schwartz – alongside his or her fellow senior investigators: Webb, Benson and Singleton. We don’t even know the name of the operation they ran or (apart from these four defendants) its outcome. Nor do we know the reasons for the anonymity, other than that they are the result of orders made by a Victorian court (presumably under that State’s Orwellian Open Courts Act 2013). As a result, there has not been a single media report about how these people, together with Sage and the leadership of the ACC and AFP, brought down a major prosecution. Nor do we know what these largely anonymous people’s actions cost. Again, courtesy of Victorian suppression orders, Strickland, Galloway, Hodges, Tucker, XYZ and QRS are anonymous, as are the details of their alleged foreign bribes and false accounting. Such suppression orders are typical in preliminary proceedings ahead of jury trials, but concerns about sub judice typically end when the prosecution ends, as it has here; presumably, other concerns are behind the continuing suppression orders in this case, but we have no idea what those are. The upshot is that we have no way of assessing the stakes of the law enforcement errors or the judgment calls of a majority of the High Court in this case. There are two possibilities. Either up to four ‘sharks’ have gotten away with committing serious crimes without (at least) criminal punishment, or they and the public have lost the option of resolving the accusations against them by way of a jury trial. As Gageler J

Our Government is the potent, the omnipresent teacher. For good or for ill, it teaches the whole people by its example. Crime is contagious. If the Government becomes a lawbreaker, it breeds contempt for law; it invites every man to become a law unto himself; it invites anarchy. To declare that, in the administration of the criminal law, the end justifies the means – to declare that the Government may commit crimes in order to secure the conviction of a private criminal – would bring terrible retribution. Against that pernicious doctrine this Court should resolutely set its face.

observed: Fundamental amongst the considerations to be weighed in determining whether criminal proceedings should be permanently stayed as an abuse of process is “the legitimate public interest in the disposition of charges of serious offences and in the conviction of those guilty of crime”. That is because a permanent stay order has the practical effect of providing immunity from prosecution to a criminal defendant, leaving that criminal defendant under an “irremovable cloud of suspicion” and leaving the potential if not the likelihood of engendering within the community “a festering sense of injustice”, if not cynicism. Justice Edelman’s reasons for judgment begin with a compelling list of previous occasions when courts have been asked to stop prosecutions because of law enforcement conduct – be it reneging on an indemnity promise, breaching legal professional privilege or kidnapping a defendant into jurisdiction – but in every one of those cases, the public knew who the alleged offenders were and exactly what they were accused of. Likewise, we know the names and crimes of defendants whose convictions were upheld by the High Court despite police schemes to overcome the right to silence. The pseudonymous people in Strickland know who they are, as do a select few in the legal and investigative community. However, the judgment calls that courts must make in such cases serve, not merely an adjudicative function between competing parties, but a very public one, as eloquently described by Louis Brandeis just over nine decades ago:

How can the lessons of government, including those taught by its courts, be learnt if the facts of the alleged crimes of government and lay people alike are kept from the public? The Court’s judgment in Strickland is a powerful (if controversial) step in the promotion of the rule of law and the right to silence, but it is only a penultimate one. Only when (or if) the Victorian courts finally lift their suppression orders will the Australian public be able to judge to nobility or villainy of the investigators, prosecutors and courts in this matter. This is an edited version of an article originally published in the Melbourne Law School High Court blog, Opinions on High, available at blogs.unimelb. edu.au/opinionsonhigh. When the article was first published, the suppression order in the case was still in place. For details of the subsequent lifting of the order and what was then revealed, see blogs.unimelb.edu.au/ opinionsonhigh/2018/11/29/newsputting-names-to-pseudonyms.

Shearn HR Legal - Human Resource + Recruitment is proud to announce its 21st Anniversary in 2019, having first opened the doors on 16 February 1998 and still going strong! It has been a pleasure working with the legal fraternity, locally and afar, over all these wonderful years and it is our aim to continue doing so, for many years to come. Please call or email for a confidential discussion about your most important asset, you or your firm, for your legal career needs and requirements. Julianna Shearn B.Juris.,LL.B. Director 0401 001 888 julianna@shearnhrlegal.com.au

Suite 4, 5 Colin Street, West Perth WA 6005 T (08) 9322 3300 F (08) 9322 3355 www.shearnhrlegal.com.au

Trials and Tribulations Interview: Nigel Lo By Fiona Poh Solicitor, Herbert Smith Freehills

Nigel Lo was admitted to practice in 2016 and now practices as a commercial and property lawyer at Perth-based firm, Robertson Hayles Lawyers. His energy and vision have set him down a long and enterprising road, which has taken him through some interesting twists and turns. In this interview with the Law Society’s Young Lawyers Committee, he shares his take on the art of networking, dealmaking and persevering through set-backs.

Over time I found myself involved in various non-profit organisations in Malaysia and I got to meet many lawmakers and prominent business leaders who themselves were part of those charities. I’ve always adopted the ‘curious student’ mindset by seeking advice and mentorship from those more experienced than I was. My mentors have helped me a great deal by introducing me to their network and a lot of opportunities have come from those connections.

What's interesting to me is that you're a junior lawyer, but yet, you have some very unique experiences in dealing with large commercial developments and high net-worth individuals. Can you tell us a bit about yourself and what you do?

What made you decide to do law?

I have always been a people person. 32 | BRIEF APRIL 2019

If you were to ask how I spend my free time – it would probably be having coffee catch-ups with my friends, meeting new people and sharing ideas. I’ve always had a keen interest in community leadership. When I was 14, my mother made me join the Youth Division of Red Cross in my home town. That really helped me grow my confidence as I was a total introvert in primary school.

I have always looked up to my father who has enjoyed a stellar career in the legal profession in Malaysia. While I was very young, I remember him turning down a personal offer from the current Chief Justice of Malaysia to be appointed to the bench of the High Court of Sarawak

in east Malaysia. As I grew older, I wanted to emulate him and so I decided to follow his footsteps.

Can you take me through some of your highs and lows? What are some particularly difficult moments in your professional life – and how did you overcome them? I was diagnosed with ADHD when I was in primary school. ADHD is “under-diagnosed” in Malaysia and my teachers struggled to find the best way to help me get through my studies. My parents on the other hand refused to put me on medication and so I learnt to cope with ADHD without medication. Until today, I remain un-medicated. Professionally, a particularly difficult deal that I was involved with was a large commercial development in Perth. I assisted a developer in securing private funding from my

contacts in Asia for the project. The relationship soured because the developer failed to deliver on what they had promised to our investors. Fortunately, we found other developers with the proper expertise to complete the project which is now under construction in the northern suburbs of Perth. One of the developers who offered to assist us happened to be the seller of another major project that our investor had previously acquired. I guess one of the highs would be helping to run the digital campaign of a local Malaysian political party shortly after graduating. It was a challenge balancing a heavy study workload at the College of Law and running a significant part of an election campaign over three thousand miles away. We were very blessed that our candidates ended up winning five out of seven legislative assembly seats that the party contested in 2016.

These experiences of yours put you in situations where you deal with high-net-worth individuals. Can you share how you communicate with highnet-worth people and how you network with purpose? The easiest way to connect with high-net-worth individuals or people of influence is to find a mutual friend you may have and ask for a connection. You must assure your mutual friend about your intentions. Be frank with them. Honesty is the best policy. Ask yourself, why do you want to connect with this particular person? Remember that you are leveraging someone else’s network. Because of that, this mutual friend or “connector” as I would call them would have to vouch for you. Their own reputation is on the stake so empathise with them. Assure the “connector” that you will not waste his or her friend’s time. If you do not have a mutual friend

Master your career. Postgraduate Applied Law Programs with practical learning you can immediately apply to your work. Intake 2 Commences 20 May 2019 Enrol at collaw.edu.au/ALP or call 1300 506 402

Choose from 11 areas of law specialisation streams

to connect you, do some research and find out where these individuals hang out. Do they play golf? Which country clubs or private membership organisations do they frequent? Go there and engage with them. You can do this by attending monthly events hosted by those organisations and clubs. You should have done your research about who you wish to build a relationship with. Armed with that information, find a way to offer value to this person. This could be as simple as offering to connect your target individual to someone you believe can help them or benefit them in some way. Politely ask for their contact details or their business card after the conversation has warmed up. Once you have their contact details, you can follow up with them. If you remain actively engaged in the club or community, other members will notice and you may even be tapped on the shoulder to take up a volunteer board position. This will definitely boost your credibility in the organisation. Lastly, I feel it is important to touch on the topic of ‘mindset’. We tend to perceive high-net-worth individuals as those who seem to live in their own private, insulated world. They drive into gated communities, they relax at country clubs while we don’t. This perception couldn’t be further from the truth. Most are actually quite involved in the community. When you get to a certain social level, there’s a motivation to be a central figure in the community and give back. If they are giving back to the community, by definition, they are involved in the community. If you truly want to crack into the high-networth market, you must first become part of that world and be in places where this group of individuals spend their time. From there you can ask for the appropriate introductions.

A lot of junior solicitors approach networking cautiously. Do you have any tips or advice to share with other junior solicitors when it comes to networking? Networking events can be daunting, especially if you are an introvert.

34 | BRIEF APRIL 2019

Personally, I am not the biggest fan of networking events because I feel that it takes a long time to build a genuine relationship with someone new. Building a bond with a new contact can’t be done in one networking event unless you click so well that you end up following up for regular catch-ups. Small talk is often shallow and that is how a conversation is when you meet people for the first time at an event. For me, my secret sauce is found in LinkedIn. LinkedIn allows me to reach out directly to decision makers whose goals and needs are aligned with my services. If this person is going to an event I will be attending, I will first send them a message requesting some time to chat at the event. That way, this person is prepared for you and will warmly receive you. If you are a lawyer, chances are that you are networking to bring in more clients. Put yourself in the shoes of a prospective client you wish to bring to your firm. What do they want to see in a lawyer? Most people would take comfort in having a lawyer who is caring but at the same time tough and knowledgeable. Having a good understanding of your prospect’s industry and lingo is critical. If you speak their language, bonding becomes easier. Start with that and as time passes, you will develop your own preferred method of networking after some trial and error. Bottom line: know your client’s industry well, speak their language, and show them you care about their business goals and their success. For face-to-face networking, the key is to market who you are, not what you do. Build personal relationships with people, follow up for coffee meets or even lunch. Remind them that if they ever need help, that you have their back. This statement goes a long way in networking. You stand out from the crowd because you showed your caring personality to them, not just what you do for a job. If these prospects are in need of a lawyer, you will be at the top of their mind because of the personal connection they already have with you.

In your experience, how do you think Perth can be more attractive to ASEAN investors? I would encourage Australians seeking to do business in Asia to understand the concept of “Guan Xi”. Guan Xi is a central idea in Chinese society that describes the rudimentary dynamics of opening doors to new business opportunities. The concept is widely embraced among Asian businesses. The central idea can be likened to “mateship but in business”. Loyalty is very important. Guan Xi, or personal connection, is powerful stuff, and it can divide the loyalties of the people your business or client depends on. When relationships come first, as they always do in China and Asia, you’d better know who’s friends with whom. Because Guan Xi is so pervasive and powerful, it’s crucial to understand and manage personal networks before they turn into liabilities. Businesses must bring transparency to existing relationships and prevent conflicts of interest from developing.

Are there any pitfalls when it comes to ‘Guan Xi’? Can you give me some examples? That’s a great question. I have lost count of deals that have gone sideways because of a lack of cultural understanding. I am referring to cross border and international deals where project funders are usually from China, Malaysia and Singapore. A couple of years ago, I witnessed firsthand how a developer and his business broker lost a potential multi-million funding deal because the broker had tried to cut the “gatekeepers” to the investor, out of the deal. The gatekeepers had helped make the introduction to the investor however the broker wanted a large share of the commission and tried to cut the “gatekeepers” out of the transaction. When the gatekeepers inevitably found out that such bad faith was present in the deal, they collectively decided to convince the investor to dump the deal saying in Chinese that “there is no honour in this transaction”. Guan Xi is built between parties over many

years of trust, loyalty and mateship. As such, the Guan Xi between the investor and his long-time associates prevailed.

What projects are you working on now, and what is in the horizon for you? I hope to be able to continue connecting Australian businesses with our investors in Malaysia

and foster greater international trade between the two countries. Australian entrepreneurs are very innovative but access to private capital remains a major hurdle many startups have to overcome in order to scale quickly. With a slightly reduced company tax rate for SMEs, Australia is slowly becoming more attractive to foreign investors. Australia has steered through tough economic times well and I believe

Bequests Help Save Catsâ&#x20AC;&#x2122; Lives As a charity, Cat Haven relies heavily on the kind donations and bequests of West Australians. We are WAâ&#x20AC;&#x2122;s premier cat welfare organisation, accepting over 6500 cats a year and rehoming as many as possible. We can assure your clients that their cat will be looked after and rehomed if they are left behind if a bequest is

Australia will continue to be a major player in the Asia-Pacific region.

Please Donate, Adopt Foster, Bequeath, Volunteer

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

Super Catch-up Catching On By Andrew Proebstl, Chief Executive of legalsuper

A change to the way people can boost their super with “catch-up concessional contributions” is great news for eligible super fund members. People typically contribute to their superannuation account in three ways: •

•

Super Guarantee (SG) contributions: Money their employer(s) deducts from their salary and pays into their super fund. Total payments over a financial year must, by law, total 9.5 per cent of the person’s salary. There are some exemptions to paying SG. Concessional contributions: If your SG contributions total less than $25,000 in a financial year, you can choose to make additional voluntary super contributions from your salary up to the $25,000 limit. These additional ‘salary sacrifice’ or ‘personal tax deductible’ contributions (also known as concessional contributions) are taxed at a concessional tax rate of 15 per cent (in some cases up to 30 per cent) compared to your marginal tax rate, which in most cases will be higher. Non-concessional contributions: As well as choosing to make voluntary concessional contributions up to the $25,000 cap, eligible super fund members can also make what are called non-concessional (after-tax) contributions. These contributions carry attractive taxation advantages. The current after-tax non-concessional contribution cap is $100,000 for each financial year. However, people under the age of 65 on 1 July in a financial year may be able to contribute in excess of the $100,000 cap up to an amount of $300,000 in a single financial year pursuant to the “bringforward rule”. This can be a valuable and significant way to boost your savings for retirement.

Catch-up concessional contributions As part of the 2016 budget the Federal Government introduced a change to concessional contributions called ‘catchup’ concessional contributions. The change, which came into effect on 36 | BRIEF APRIL 2019

The Federal Government has made it easier for eligible super fund members to make additional tax concessional contributions into their super.

1 July 2018, allows individuals with a total superannuation balance of less than $500,000 just before the beginning of a financial year to make ‘catch-up’ superannuation contributions if they did not reach their $25,000 concessional contributions caps in the previous financial year. For example, if in 2018-19 you make concessional contributions totaling $10,000 (as opposed to the cap of $25,000), then the following financial year you can ‘catchup’ by making concessional contributions up to a total of $40,000 (consisting of the usual cap of $25,000 plus the $15,000 you chose not to contribute previously). Some degree of flexibility is afforded with this change as individuals can access their unused concessional contributions cap on a rolling basis for a period of five years. Amounts that have not been used after five years will expire. The changes apply from 2018/19 onwards.

Increased fairness for interrupted careers As the Federal Government has pointed out: “The annual concessional (beforetax) superannuation caps currently offer little flexibility for those who take time out of work, work part-time, or have ‘lumpy’ income and therefore have periods in which they make no or limited contributions to superannuation.” “Women often have interrupted work patterns or work part-time, which contributes to lower, on average, superannuation account balances than men.” “Additionally, individuals may take time out of the workforce to undertake caring responsibilities, further studies, or due to physical or mental illness.” “Similarly, there is limited flexibility for those who find that they have greater disposable income later in life when some ongoing costs, such as mortgage repayments and school fees diminish.” “Allowing people to carry forward unused concessional cap amounts provides them with the opportunity to ‘catch-up’ if they have the capacity and choose to do so.”1

The financial benefits The following scenario from the Federal Government explains how catch-up concessional contributions can work. “‘Cassandra’ is a 46-year-old earning $100,000 per year. She has a superannuation balance of $400,000. In 2018-19, Cassandra has total concessional superannuation contributions of $10,000. In 2019-20, Cassandra has the ability to contribute $40,000 into superannuation of which $25,000 is the amount allowed under the annual concessional cap and $15,000 is her unused amount from 201819 which has been carried forward. The full $40,000 will be taxed at 15 per cent in the superannuation fund. Prior to the changes, her amounts in excess of the annual cap would have been subject to tax at her marginal rate, resulting in an additional $3,300 tax liability.”2 In addition to the specific tax advantages ‘Cassandra’ will gain by taking advantage of catch-up concessional contributions, she has increased her overall super balance and will also enjoy the compound earnings advantages her super savings receive. Super fund members eligible to take advantage of catch-up concessional contributions, along with all super fund members considering making other concessional or non-concessional contributions, should ensure that the contributions they make do not exceed the prescribed caps. The respective caps apply as an aggregate across all super funds a person may have. Contributions in excess of these limits may be taxed at a higher rate. Your super fund(s) will be able to provide information and guidance regarding the amounts you have contributed and how this compares to the relevant caps. Andrew Proebstl is chief executive of legalsuper, Australia’s industry super fund for the legal community. He can be contacted on (03) 9602 0101 or via aproebstl@legalsuper.com.au Endnotes 1

See https://www.budget.gov.au/2016-17/content/ glossies/tax_super/downloads/FS-Super/08-SFSCatch_up_contributions-161109.pdf

Reaching out for knowledge, expertise and engagement

CPD Day for

Rural, Regional and Remote Legal Practitioners

Save the Date

Friday, 17 May 2019 To register your expression of interest please email cpd@lawsocietywa.asn.au

lawsocietywa.asn.au

National Redress Scheme Department of Social Services, Australian Government

The National Redress Scheme for Institutional Child Sexual Abuse (the National Redress Scheme or Scheme) was established by the National Redress Scheme for Institutional Child Sexual Abuse Act 2018 (the Redress Act), in response to the recommendations of the Royal Commission into Institutional Responses to Child Sexual Abuse (the Royal Commission). This Royal Commission was Australia’s longest running public inquiry. Over a period of five years, the Royal Commission inquired into how institutions with responsibility for children managed and responded to allegations and instances of child sexual abuse, including what institutions and governments should do to address, or alleviate the impact of, past child sexual abuse in institutional contexts. During its inquiry, the Royal Commission heard over 8,000 personal stories of people who experienced child sexual abuse, with over 1,000 more providing a written account of their experiences. On 15 December 2017, the Royal Commission issued a final report, making 409 recommendations on how to improve laws, policies and practices to prevent and better respond to child sexual abuse in institutions. The establishment of the Scheme is an acknowledgement by the Australian Government that sexual abuse suffered by children in institutional settings was wrong, a betrayal of trust, and should never have happened. The Scheme began on 1 July 2018 and will operate for 10 years. The Scheme 38 | BRIEF APRIL 2019

is intended to be an alternative to civil litigation and is administrative in nature. Redress under the Scheme helps people who have experienced institutional child sexual abuse gain access to counselling and psychological services, a direct personal response from the institutions responsible, and a monetary payment of up to $150,000 as a tangible means of recognising the wrong survivors have suffered. In order for a nationwide Scheme to be legislated, referral of constitutional powers by States has occurred. Western Australia is a participating State, having passed the National Redress Scheme for Institutional Child Sexual Abuse (Commonwealth Powers) Bill 2018 (WA), which commenced on 5 December 2018. This means redress payments can be made in relation to abuse occurring in Western Australia for which non-government participating institutions are responsible. The Redress Act provides for participation of Commonwealth institutions, but State and Territory institutions and non-government institutions must agree to participate in the Scheme. Relevant Western Australian government institutions commenced participation in the Scheme on 1 January 2019. Participating institutions can be found at nationalredress.gov. au/institutions or through the National Redress Scheme for Institutional Child Sexual Abuse Declaration 2018 on the Federal Register of Legislation. A person may be eligible for redress if the person was sexually abused as a child prior to 1 July 2018, the abuse

occurred inside a participating State, a territory or outside Australia, one or more participating institutions are responsible for the abuse, and the person is an Australian citizen or a permanent resident at the time of their application. Additional considerations and requirements apply if a person has a serious criminal conviction, is in gaol, or is a child at the time of making an application. A person’s eligibility is assessed on a ‘reasonable likelihood’ basis, where a reasonable likelihood means the chance of the person being eligible is real, is not fanciful or remote and is more than merely plausible. This differs from the higher standard of proof required in civil or criminal proceedings. The Scheme operates on a ‘responsible institution pays’ basis. Participating institutions found responsible for abuse of a person are liable to pay a funding contribution, including a redress element for each person who is entitled to redress. Experienced, independent assessors, known as Independent Decision Makers, have been appointed to make determinations on redress applications. Further information about Independent Decision Makers is available at nationalredress.gov.au/applying/whathappens-next/independent-decisionmakers. Applicants can only make one application under the Scheme, although they will have access to internal review if they do not agree with the original determination.

Once a person accepts an offer of redress, they release the relevant responsible institution from liability, and forego any entitlement to damages from that institution. This means that person cannot continue or start new civil action against the relevant responsible institution for the sexual abuse that is the subject of the offer of redress.

Legal assistance options for applicants The Scheme is designed with maximum simplicity to minimise the need for applicants to require professional advice in order to apply for redress. However, applicants may choose to seek legal advice to assist with consideration of any offer of redress, including whether redress is the right option for them. As the maximum redress payment available to a person under the Scheme is $150,000, it is important that free legal support is available and that any legal fees a person agrees to pay do not have the effect of substantially reducing their redress payment. To ensure anyone who is applying or thinking of applying for redress under the Scheme has access to free expert legal advice, the Australian Government has funded the legal service ‘knowmore’. knowmore is a confidential and independent legal service provider available when a person is considering applying for redress, is applying for redress, or is considering an offer of redress. knowmore provides advice and assistance on a range of matters including the effect of confidentiality agreements in past proceedings, the Scheme application process, nonredress options available (such as civil litigation), and referrals to other lawyers where a person has decided to pursue a claim outside of the Scheme.

The Australian Government also recognises that many people may have existing relationships with lawyers, or may wish to seek legal opinions outside the free services from knowmore. A person may have a nominee appointed to act on their behalf for the purposes of the Scheme. There are two different types of nominees under the Scheme: assistance nominees and legal nominees. An assistance nominee can provide an applicant with assistance engaging with the Scheme and act for the person, except for certain specified actions. In particular, as assistance nominee may not make an application for redress, or accept or decline an offer of redress on the person’s behalf. Both the applicant and the prospective nominee must consent to the arrangement. A legal representative may be appointed as an assistance nominee provided the applicant agrees and subject to meeting other requirements under the Redress Act. Legal nominees are generally intended for people who may not have the capacity to consent to appointment of a nominee to make decisions on their behalf. A legal nominee can do any act under the Scheme on behalf of a person, including making an application and accepting or declining an offer of redress. To become a legal nominee, person must have the power to make decisions for the applicant in all matters that are relevant to the duties of a legal nominee (for example, under a guardianship order or a power of attorney arrangement). The wishes of the applicant must also be taken into account and the prospective legal nomine must agree to the arrangement. Legal nominee arrangements were not intended specifically to extend to legal representatives, however, they are not excluded from becoming legal nominees

if they meet the requirements of the Redress Act.

Institutions seeking legal assistance Institutions, particularly non-government institutions, may also choose to engage legal representation, for example to facilitate and assist them joining the Scheme. This might include advice about meeting certain legislative requirements, including satisfying the responsible Minister the institution will have capacity to meet liabilities (for example, by taking out a bank guarantee).

Conclusion It is important for the success and legitimacy of the National Redress Scheme that people seeking legal advice are provided with accurate information. Lawyers and law firms are an important partner in ensuring people can access the form of justice that is right for them. The Australian Government appreciates the Australian legal community’s continued interest in the Scheme, and hopes to continue to build cooperative relationships with the legal industry as the Scheme progresses. Further information about the National Redress Scheme can be found on the Scheme’s website at nationalredress. gov.au. The National Redress Scheme for Institutional Child Sexual Abuse Act 2018 and supporting instruments can also be accessed at legislation.gov.au/ Series/C2018A00045. Endnotes 1

The release includes the associates and officials (other than the abuser of the person) of the responsible participating institution(s).

The protection against new or continuing legal action includes the associates and officials (other than the abuser of the person) of the responsible participating institution(s).

Walk for Justice 7.30am Tuesday, 14 May 2019

Breakfast Sponsor

Walk Sponsor

University Sponsors

Principal Supporters School of

Business & Law Perth | Dubai | Singapore

Law Council Update

Alleged terrorists should face ‘full force’ of Australian laws, says Law Council Australians who have travelled overseas to support terrorist organisations should be allowed back to Australia to face the full force of our laws, the Law Council of Australia said. President, Arthur Moses SC told a Parliamentary Intelligence and Security Committee hearing that the Law Council did not support the implementation of temporary exclusion orders (TEOs), which would ban citizens suspected of engaging in terrorism-related activities from returning to Australia for at least two years. “Ultimately, these citizens are our responsibility. It would be wrong to let them stay in another country unchecked, with the chance they could create even more harm to Australia,” Mr Moses said. “The message needs to be clear – if you support a terrorist organisation here or overseas, there will be consequences under Australian law. “While most Australians are rightly appalled that our citizens have travelled into war zones to support terrorist organisations like ISIS, that does not mean we should shirk our international obligations to repatriate these citizens to Australia where they can be dealt with according to law and if convicted imprisoned. “The introduction of TEOs could have the effect of rendering an Australian unable to legally enter Australia – or indeed any other country – while the order is in place. Hence, these laws may be inconsistent with Australia’s international obligations. “Matters of national security and protecting Australians from terrorism are of utmost importance. However, the Federal Parliament must ensure responses are proportional, constitutional and take into account Australia’s international obligations. “The Law Council does not support the establishment of the proposed 40 | BRIEF APRIL 2019

TEO scheme and recommends the Bill should not proceed.” Mr Moses said there were serious questions regarding the constitutional validity of the legislation and reiterated: “There is no point enacting invalid laws”. “The High Court has made it very clear that one of the primary rights of Australian citizenship is the ability to enter and leave without government interference,” he said. “The alleged offences of people seeking to return to Australia cannot be excused but it is the Law Council’s view that they should be permitted to return to Australia, where they can face Australian justice. Australia has some of the most comprehensive anti-terrorism laws and the best security agencies. “Deterrence and accountability are vital cornerstones of the law. If alleged terrorists are brought back to Australia and prosecuted before our courts, this deterrent effect is important to help prevent others following the same path.”

Full-time Townsville judge a must to serve community in need The Law Council of Australia has called on the Federal Government to urgently ensure a permanent Federal Circuit Court judge is appointed to in the floodravaged community of Townsville, after the judge assigned to the region was directed to other registries. Townsville is Queensland’s largest regional centre and home to a population of around 235,000 people. The Law Council understands the community has been without a full-time Federal Circuit Court judge for more than a month, after Judge Middleton who had been assigned to the region, was asked by the Chief Judge to assist the Brisbane and Cairns registries, and ceased to sit in Townsville on 8 February 2019. Law Council President, Arthur Moses SC, said the situation was “extremely concerning as it puts significant pressure on litigants in Townsville, at a time when the region is in particular

need of support as the community recovers from the devastating floods”. “Many court matters have already been delayed and have had to be re-listed due to the floods. This further delay, cost and stress places a substantial burden on people involved, including families and children living with ongoing family law matters,” Mr Moses said. “The Law Council has been advised that during this time Judge Middleton has continued to deal with urgent matters in Townsville, and that where necessary other judges have sat in the Townsville Registry in recent weeks. However, the local legal profession is of the view that there are sufficient matters in Townsville to require the presence of a full-time Federal Circuit Court judge. Fly-in fly-out justice does not serve the best interests of the community.” The Law Council has written to the Commonwealth Attorney-General and the Chief Judge of the Federal Circuit Court to seek urgent support for Townsville including a full-time judge. No additional resources have been forthcoming. The Law Council has been advised Judge Middleton will return to Townsville by the end of March but will continue to support other registries. While the Law Council welcomes the allocation of additional judges to the Family and Federal Circuit Courts, Mr Moses has questioned why six new appointments were named this week while Townsville remains without a permanent judge. “Ensuring there are sufficient judges available to sit in rural, regional and remote Australia is critical to alleviate pressures placed on judicial officers and the communities they serve. Regional areas must receive greater priority when it comes to judicial resourcing, as demonstrated by the Law Council’s Justice Project final report. All Australians deserve equal access to justice regardless of where they live,” Mr Moses said.

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

Property – Court’s interim appointment of receiver to sell parties’ business set aside In Scott [2019] FamCAFC 9 (24 January 2019) the wife worked as practice manager in a professional practice in which the husband worked as a professional until 2016, a year after separation, when he set up his own practice. A month earlier the court appointed an independent interim manager to run the practice and directed the parties to remain involved in the business, subject to the manager’s discretion. In 2018 when the wife sought an order that the manager no longer be required to involve the husband in decisions the husband sought the discharge of the manager and the appointment of a receiver. Cleary J removed the manager and appointed a receiver on the basis that the business was dysfunctional and each party would have the chance to buy the business from the receiver. The Full Court (Ainslie-Wallace, Ryan and Watts JJ) said (from [22]): “At its highest … the husband’s complaints are that the manager acted inconsistently with his appointment in not providing the husband with financial information and the husband said that he would not sign the documents to roll over the financial facility … where he was unaware of the financial state of the business. ( … ) [24] ( … ) [T]he husband’s solution to his complaints about the manager and the suggestion that the business was insolvent was that a receiver be appointed to sell the business. [25] Her Honour’s reasons do not indicate the basis on which she concluded that the business was ‘dysfunctional’ and that management ha[d] been ‘shredded’ such that the manager’s position was untenable … [26] ( … ) Her Honour’s order, if the receivers exercised their power of sale, would be incapable of being reversed at a final hearing and … the wife’s hope of purchasing the business as a going concern would be lost. To sell the business would also bring the wife’s employment to an end.”

Property – “Equalisation” of parties’ superannuation entitlements set aside In Bulow [2019] FamCAFC 3 (18 January 2019) the Full Court (Strickland, Murphy & Kent JJ)

considered a 20 year marriage between the wife (a registered nurse) and the husband who had worked for the Australian Government as an engineer. The wife had superannuation worth $289,705 in two accumulation accounts in the growth phase and the husband a defined benefit interest in the Commonwealth Public Sector Superannuation Scheme (“PSS”) in the growth phase worth $636,013. At first instance Judge Heffernan ordered that the parties’ super entitlements be “equalised” by a splitting order under s 90XT(1)(a) of the Family Law Act which allocated a base amount of $173,154 to the wife. The husband appealed, arguing that the Court erred in its approach, particularly given that throughout the 4 years since separation he had increased contributions from 2 per cent to 10 per cent of his salary. The Full Court allowed the appeal, saying (from [17]): “ … [W]here the superannuation interests of both parties to family law proceedings are accumulation interests, few difficulties are usually encountered. However, an accumulation interest in the growth phase (as held by the wife in this case) and a defined benefit interest in the growth phase (as held by the husband in this case) differ in several important respects. [18] Those differences include the method by which the ultimate benefit is calculated; the risk to the member inherent in each and, very importantly, the effect of a s 90XT(1)(a) order (an order which allocates a base amount to the non-member spouse). Each and all of those differences can, and very often do, have a dramatic impact upon the justice and equity of a proposed splitting order and, in turn, its place within just and equitable orders for settlement of property. ( … ) [20] Crucially … defined benefit funds … are not regulated by Part 7A of the SIS Regulations … It is therefore fundamental to a consideration of any proposed splitting order that the Court consider the governing rules of such funds contained within their specific trust deeds. It is those rules which will determine the effect of any splitting order on the underlying interest within that particular fund. As an example, within a defined benefit fund the fund’s rules can dictate that a splitting order has significant effects on the formula by which a member’s ultimate entitlement is calculated.”

Children – Child smacked by mother – No unacceptable risk of harm – Lawful chastisement In Cao [2018] FamCAFC 252 (19 December 2018) the father of 8 and 4 year old children filed an urgent interim application for a change of residence to him, his case being that the eldest child told him that the mother had struck her. The father kept the children in his care after the disclosure notwithstanding an interim order made in 2016 that the children live with the mother. The ICL supported the father’s case, submitting that the mother’s new partner (“Mr C”) also posed a welfare risk to the child who witnessed a prior assault of the mother by Mr C. Judge Obradovic dismissed the application and the father appealed. In dismissing the appeal with costs, Austin J ([24]) said that the child’s exposure to a prior assault occurred 15 months before the father filed his urgent application and ([26]) that “[i]n reality it was the first asserted risk [alleged physical abuse by the mother] which motivated the father to act”. Austin J continued (from [37]): “In summary, the primary judge found the risk of harm to the children in the mother’s household was not unacceptably high because she lived alone with the children and Mr C was not a member of her household … , [and] she agreed to … an injunction restraining the children’s interaction with Mr C ( … ) [42] … [E]ven if the eldest child was struck by the mother … it did not necessarily mean she was physically assaulted. For example, she may only have been physically chastised. Even though corporal punishment is falling out of favour under contemporary moral standards, it is still not yet unlawful to use modest physical force to chastise a child (s 61AA of the Crimes Act 1900 (NSW)). Corporal punishment does not amount to physical ‘abuse’ under the Act unless it constitutes an assault (s 4(1)). ( … ) [43] It would … seem [from their records that] the police contemplated [that] the mother may have smacked the … child and they remained unconvinced [that] the incident amounted to an assault ( … )”

Robert Glade-Wright is the founder, principal author and editor of The Family Law Book, a one-volume, looseleaf and online subscription service thefamilylawbook.com.au. He is assisted by accredited family law specialist Craig Nicol.

The Law Society’s Lore Law Project By Krista Dunstan, Principal Policy Officer at the Department of Planning, Heritage and Lands | Member, Lore Law Steering Group

In late February, the McGowan government announced its ‘Our Priorities: Sharing Prosperity’ vision which included commitments to a safer community and Aboriginal wellbeing focused on “Reduc[ing] youth reoffending: By 2022-23, have no more than 50 per cent of young offenders return to detention within two years of release” and “Reduc[ing] the overrepresentation of Aboriginal people in custody: By 2028-29, reduce the number of Aboriginal adults in prison by 23 per cent from 2017-18 numbers” respectively. One programme ahead of the curve in tackling these community issues is the Lore Law project; Lore Law is a Law Society of Western Australia project which acknowledges that Aboriginal and Torres Strait Islander youth often walk in two worlds. It is an unashamedly ambitious 25+ year intergenerational project that provides a long-term solution to reduce the high rates of Aboriginal and Torres Strait Islander youth contact with the WA justice system. The programme has worked towards building and training a strong Aboriginal and Torres Strait Islander Youth Leadership Team to facilitate a Human Centred Design (HCD) process with high risk communities. April 2019 will mark seven years of the evolution and development of the Lore Law project to reach the implementation phase that will commence this year. Project partners include Millennium Kids, Media on Mars, the Aboriginal and Torres Strait Islander Youth Leadership Team with support from Periscope Pictures and University to Community. Using HCD and the co-design approach, Lore Law will build capacity in Aboriginal youth and communities, create Aboriginal and Torres Strait Islander youth leaders, and build the relationships and networks between Aboriginal communities and relevant stakeholder organisations to deliver sustainable change. HCD encourages users to take ownership and genuinely recognises and values the contributions of participants. This facilitates the development of the kind of safe and nurturing environment necessary to encourage an in-depth conversation from not only those with relevant formal expertise or positions in the community, but also those

42 | BRIEF APRIL 2019

with direct experience of the issues driving contact with the justice system. Lore Law is founded on the belief that the tension between the two worlds experienced by Aboriginal and Torres Strait Islander youth, and the lack of understanding of that tension by key stakeholders, is a significant driver in the overrepresentation of Aboriginal and Torres Strait Islander Peoples in the WA justice system. Lore Law aims is to facilitate two-way awareness and understanding of Lore and Law in Aboriginal and non-Aboriginal communities through active and genuine engagement with all key stakeholders to create meaningful relationships and substantive change. A key focus is to empower Aboriginal and Torres Strait Islander youth to engage with local issues rather than simply experience them and to meaningfully contribute to developing and implementing solutions. Lore Law provides the cultural sensitivity, place based focus and flexibility needed to address this complexity and has four key drivers: 1. Local Aboriginal and Torres Strait Islander youth identifying the underlying Lore and/or Law issues affecting individual communities. 2. Working with Aboriginal and Torres Strait Islander youth, Elders and local stakeholders to better understand and to address the identified Lore / Law issues. 3. Creating a lasting and sustainable network of Aboriginal and Torres Strait Islander youth leaders, making a positive difference in communities. 4.

Providing a platform for the Aboriginal and Torres Strait Islander youth leaders, Elders and their supporting community to engage with key stakeholders to build relationships and implement solutions.

Pilot workshops with students at Sevenoaks College and Gosnells PCYC, facilitated by Millennium Kids and the Aboriginal and Torres Strait Islander Youth Leadership Team, and supported by a broader mentoring programme, have generated several practical solutions to the locally identified issue of public transport fare evasion and accumulating fines including: • An app that allows young people to easily look up the status of their fines and allows

them to make small contributions towards paying off the fines. • Alternative ways for young people to pay off their fines (e.g. recognised community work). • Empowering youth to better manage their finances, including easy and practical options for youth to credit their Smartrider or equivalent to avoid the fine (where possible). • Script writing and the development of a short film by the youth engaged in the project to provide them with useful skills, empower them to share and promote the project and therefore advocate on the issue in their own voice and allow active participation in the search to attract further funding to enact the solutions identified by the young people involved. Having completed this pilot phase, Lore Law will now move to full implementation in two communities: • Armadale: three months completing the final stages of the Armadale Project. This project is currently seeking a final phase of funding in order to progress and initiate these initiatives. • Kalgoorlie-Boulder: two years working with three different groups. Lore Law has already held one Kalgoorlie workshop with 35 young people, which outlined Lore Law and what the project is working towards. The Project resonated with the youth that attended, who identified numerous law issues impacting their lives. The Department of Justice’s Criminal Property Confiscation Grants Program recently provided a $200,000 grant for implementation in Kalgoorlie-Boulder. The Law Society is now sourcing the required matching funds to commence implementation. With appropriate support and development, in the long term, the collaborative and co-design process of Lore Law will lead to a reduction in the rate of contact of Aboriginal and Torres Strait Islander Peoples with justice system in Western Australia. Key determinants of that success will be the empowerment of the affected youth in each target location and the development and support of relationships with key stakeholders in a position to make a positive difference in this space in the community.

The Tale of the Parsimonious Pearler By John McKechnie QC

There once was a young man who decided to make his fortune collecting pearls and shell out of Onslow. Pearling was a dangerous and difficult trade, though it could pay well. So, our pearler engaged a man whose race were particularly adept at diving for the valuable pearl shell. Mr Ah Mat Siam, for that was his name, was an experienced diver. For a time, the pearler and his diver worked amiably together but one day, they fell out. So it was that the pearler first sued Mr Siam in the Onslow Magistrates Court. It ended badly for the pearler. He lost. Dr Thorp, the resident Magistrate did not believe him. Now this was a problem. He had other actions to pursue. The pearler came up with a crafty solution. In every other action, he subpoenaed a particular witness - the Magistrate, Dr Thorp. But Dr Thorp proved equal to the task. He continued to sit in judgment on the actions brought by the pearler, undeterred by such a transparent device. Throughout their squabble, Mr Siam had not been paid by the parsimonious pearler. Mr Siam was no lawyer, nor did he hire one but utilised the provisions of a new piece of remedial legislation, the Pearling Act 1912. So it was that on 9 October 1914, Mr Siam's claim for £24 18s 6d for wages 18s for sustenance and £10 in lieu of notice came on for hearing before two judicial officers as required under the Pearling Act. Dr Thorp presided with a Justice of the Peace. It is difficult to escape the conclusion that a degree of animosity may have crept into the relations between the bench and the pearler. The pearler suffered from a speech defect. Accordingly, he asked for an agent to assist him in court, articulating his defence. Well, Mr McKenzie's friend hadn't even been born yet, either in the flesh or in legal substance. The pearler's request was refused. However, Mr Siam had no similar difficulty in persuading the bench to allow the Onslow wharfinger, Mr Morgan, to prosecute the case on his behalf. More was to come. The new-fangled Evidence Act was passed just eight years before and allowed the Plaintiff to call the Defendant to give evidence. And this is just what Mr Siam did. The pearler indignantly refused. The bench was not amused and immediately committed the pearler to prison for 24 hours for contempt of court. Tempers must have cooled somewhat because after about 10 minutes, Dr Thorp went to the police station where the pearler was confined and withdrew the contempt charges. So the pearler came back to court and the case continued. Now the pearler admitted that he owed Mr Siam some £2 3s 4d but that was all after he had deducted the cost of pearl shells misappropriated by Mr Siam.

The trouble was that the Magistrate had ruled against the pearler on this very point in earlier proceedings. Undeterred, the pearler now played his trump card - yet again. He called the Magistrate to give evidence. This time, the Magistrate did not disappoint. He descended from the bench, leaving the Justice of the Peace in charge, demanded and received 1 guinea, the sum required to be proffered to a witness under subpoena and took the oath. He was examined by the pearler. When that concluded, with the majesty that only a resident Magistrate can exude, he ascended again to the seat of judgment. The parsimonious pearler lost. Badly. And so it was that the whole messy business landed in the full Court on 18 August 1915. All day, the Court heard arguments from two leading counsel of the time. At the end, in the words of the Daily News for that day: In fact it was too much for their Honours to settle off hand so they decided to take time to talk it over and give their judgment later. How much friendlier than 'c. a. v'?1 A week later, the Court spoke. It may have been alright for the Magistrate to go into the witness box but it was definitely not okay for him to return to the bench. Among other things, the Magistrate had made an order for witnesses to remain out of Court. So he disobeyed his own order. There was no-one to rule on the admissibility of the evidence. If he refused to answer a question - could he compel himself to answer, and if he did not, commit himself for contempt? So the pearler had a victory. History does not record whether Mr Siam was ever eventually paid but perhaps there is a clue to the answer. On the day the argument was held in the full Court, 18 August 1915, the pearler quietly enlisted in the army and did not return to civilian life until 1919. Both the pearler and the diver lived long lives. Mr Siam stayed in Onslow as a fisherman and died in 1955, at the age of 84. Mr Horace Lister Holmes, for that was the pearler's name, married in 1928, moved to Claremont in 1936 and died in 1974, at the age of 83. And the pearling industry in Onslow collapsed soon after the events in this tale, moving north to the more plentiful waters of Broome. (Adapted from Ah Mat Siam v Holmes (1915) 17 WAR 197) Endnotes 1

Curia advisari vult, a Latin term meaning "the court wishes to consider the matter”, reserving judgment until a subsequent day.

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

As we pause this month to pay tribute to the men and women who died in or as a result of World War I, the so-called Great War, your Dog’s thoughts turned to reflect on the events of a hundred years before that, and what those might have signified for what is now Western Australia. In March 1800 Napoléon Bonaparte, then First Consul, received a delegation from members of the Institut National des Sciences et Arts to commission an expedition to map the coast of New Holland. The purpose of the voyage was to carry out observations and research relating to geometry and natural history. In October 1800 the expedition departed Le Havre, France aboard 2 ships, Géographe, captained by Nicolas Baudin, and Naturaliste, captained by Jacques Felix Emmanuel Hamelin, accompanied by a number of zoologists and botanists, including Jean-Baptiste Leschenault de la Tour, François Péron and Charles-Alexandre Lesueur and a geographer, Pierre Faure. After visiting what is now Mauritius, the expedition reached Cape Leeuwin in May 1801. After rounding Cape Naturaliste the expedition anchored in Geographe Bay. As readers would be aware, the expedition there lost helmsman Timothée Vasse in bad weather, whose name lives on in the township of Vasse, and probably more famously in that of Vasse Felix Estate. Thence the two ships sailed north to Timor, surveying large stretches of the north western coast. The expedition then retraced its tracks, surveying the north west and west coast, and round the south and to the east, crossing the Great Australian Bight and arriving in Tasmania in January 1802. The expedition there surveyed Tasmania’s east coast, where there were interactions with the Indigenous inhabitants, which were reportedly peaceful. The expedition then commenced surveying the south coast, and ultimately made for Port Jackson to reprovision the ships. Naturaliste commenced its return to France, with the Colony’s staff surgeon, James Thomson, while Géographe continued its exploration and surveys. Baudin purchased a schooner, Casuarina, under command of Louis de Freycinet. After further surveys of Tasmania and the south and west coast, and subsequently the north coast, the expedition returned to France, arriving in March 1804. Baudin had died of tuberculosis in Mauritius in 1803. The expedition named hundreds of places in WA, of which more than 240 names remain, from Cape Le Grand and Esperance in the south to Joseph Bonaparte Gulf and Lesueur Island in the north. The expedition collected more than 200,000 specimens of flora and fauna, of which 2,542 were new to science. The collection included live species, the survivors of which formed a zoo at the summer palace of Empress Josephine at Malmaison. Meanwhile, by 1802 Napoleon was named First Consul for

44 | BRIEF APRIL 2019

life, and in 1804 he proclaimed himself Emperor. The First Empire (1804 to 1814) was characterised by the Napoleonic Wars, leading ultimately to Napoleon’s abdication in 1814, his subsequent escape from Elba, and then following Waterloo, his abdication and exile to St Helena, where he died in 1821. Against that background of turmoil it is unsurprising that the French did not return to Western Australia in the period of conflict that ensued from the time the Baudin Expedition returned to France. Napoleon had other things on his mind, including the idea of invading England, invading Portugal, with the consequences that flowed from that, and invading Russia, a disastrous mistake. What would have happened if the French had decided in different circumstances to occupy Western Australia? The Code Napoléon (originally named Code Civil des Français) came into effect in March 1804, designed to replace the different bodies of law in different parts of France. Had Western Australia been occupied by the French, the legal system as we know it would have been different. What impact would occupation and French colonisation have had on so many things: language, education, government, the arts, food, choice of sport, larrikin behaviour, clothing and so on? It is unlikely the state would have been named Western Australia, because that did not exist as a name at the time! The exhortation in the school at Villers-Bretonneux “N’oublions jamais l’Australie” would possibly have been phrased slightly differently? One wonders? To those and other questions we will never know the hypothetical answer, but it is interesting to speculate! A young woman was advised by her doctor to consult a brain surgeon about severe pain in her head. He referred her for a scan which came back positive – a serious and inoperable tumour. The surgeon said to her “I regret to say you have an inoperable brain tumour. Professionally I must tell you your life expectancy is about six months”. She was devastated. “Doctor – you must be wrong! I can change my diet, I can do more exercise, I can cut out alcohol – won’t that help?” “I regret to say none of that will achieve any benefit,” came the response. “Surely there must be something you can do?” she said. The surgeon thought for a while. “You could marry an accountant,” he said helpfully. “Marry an accountant? We are talking about death in six months!” she cried. “Well,” he said, “it would make the next six months seem like eternity!”

Professional Announcements Career moves and changes in the profession

Cullen Macleod Lawyers

Panetta McGrath Lawyers

West Family Lawyers

Cullen Macleod Lawyers wish to congratulate Patrick Jeffree, who was appointed to Senior Associate in their team on 30 January 2019. Patrick Jeffree Patrick is a Solicitor in the Liquor Licensing and Property & Commercial Teams

Panetta McGrath Lawyers are pleased to announce that Manuela Lalli has joined our firm as an Associate, assisting in both the Employment and Workplace Relations team and our Health and Aged Care team.

West Family Lawyers is pleased to welcome Melissa Milne as a Senior Associate to the team. Melissa is a senior family lawyer and brings with her a wealth of experience in complex family law matters.

Manuela Lalli

Patrick advises clients in the hospitality, commercial and property areas. With a family background in liquor stores and associated businesses, and currently undertaking a Masters degree in Economics, Patrick’s experience and skills give his clients a unique insight and practical viewpoint.

Melissa Milne

Congratulations Patrick on your appointment. Andrew Logan

Kott Gunning Lawyers Emma Leys has been appointed Kott Gunning’s new Managing Partner, taking over from Stephen Williams who has led the firm through a strategic rebrand over a number of years.

Tottle Partners

Emma Leys

The role includes overseeing the firm’s big picture direction and strategic opportunities, and Emma is honoured to be taking on that responsibility in the firm’s centenary year.

New Members Restricted Practitioner Ms Elle Woo Anser Legal

Associate Membership Ms Raelene Bartlett Murdoch University - School of Law Mrs Mona Ciancotti Ms Tammara Davenport Edith Cowan University - Business & Law Miss Emily Edgar University of Notre Dame Australia Mr Owen Evans Murdoch University - School of Law

46 | BRIEF APRIL 2019

Alistair Talbert

Tottle Partners are pleased to welcome Partner Andrew Logan to head up their Property team. Andrew has extensive experience in property development and all aspects of commercial, industrial and retail leasing including the acquisition and sale of assets, due diligence and property related dispute resolution. Special Counsel Alistair Talbert has also joined to head up their new Workplace team. Alistair has extensive experience in private practice and as in-house counsel providing safety, employment and industrial relations services.

New members joining the Law Society (March 2019) Ms Rebecca French University of Notre Dame Australia

Mr Cameron O'Neil DLA Piper Australia

Mr Anirudh Garg The University of Western Australia - Business & Law UWA Library

Mrs Madhuri Patil Sinha Edith Cowan University - Business & Law

Mr David McCulloch Edith Cowan University - Business & Law

Mr Luigi Rayapen The University of Western Australia - Business & Law UWA Library

Mr Casimiro Minniti Murdoch University - School of Law

Miss Monica Meng-Yu Roberts Edith Cowan University - Business & Law

Ms Xue Ying Ng Murdoch University - School of Law

Mr Saj Sehgal The University of Western Australia - Business & Law UWA Library

Mr Davor Nikolic Murdoch University - School of Law Miss Sophia Nugawela DLA Piper Australia

Miss Megan Symonds University of Notre Dame Australia Miss Ash Wilkens Ricetti Murdoch University - School of Law

Classifieds

Missing Will

Any person holding or knowing the whereabouts of the last Will and Testament of the late THOMAS HERBERT STINTON formerly of Lot 35 Railway Crescent, Herne Hill, WA 6056 born on 20 March 1944 and who died on 15 January 2019 please contact David Earnshaw of Earnshaw Lawyers of PO Box 2235 Midland DC Midland WA 6936 – (08) 9274 0622 or david@earnshawlawyers.com.au within one (1) month of publication of this advertisement.

Any person knowing the existence or whereabouts of the last Will made by JEDDA SALLY COLE late of Northam Guest House, Room 7/51 Wellington Street, Northam, WA, who died on 25 October 2008 at Royal Perth Hospital, WA, please contact Margaret Sandford of M6:8 Legal, Unit 3, 16 Hulme Court, Myaree, WA 6154. Telephone: (08) 9316 8363. Email: admin@m68legal.com.au

FOR LEASE

PARTITIONED OFFICES

• Newly refurbished • Three private offices – 18m2 • Ample room for support staff • Good sized conference room and reception area • Internet and telephone (personal answering) • Parking at rear. Free street client parking • Great company with other lawyers

• Up to 5 offices • Shared reception & Boardroom • From $1,400 p/m per office including Outgoings and GST

Contact: Chris Hogan 0419 199 582 or chris.hogan@chco.com.au

Taylah: equusofficelease@gmail.com

 Family Law Disputes  Partnership Dissolutions

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

Any person or firm having knowledge of any Will made by CHRIS STOICHEV born 19/3/1956 died 24/01/2019 late of 84 Matheson Road, Ascot please contact Paul D’Angelo of D’Angelo Legal, PO Box 1953, West Perth 6872. Telephone: 9381 1147

SHARED OFFICES - ROKEBY ROAD, SUBIACO

5th Floor Equus 580 Hay Street Perth

PERTH’S BUSINESS VALUATION EXPERTS

Missing Will

HEART OF LEGAL PRECINCT – READY TO OCCUPY CBD Location – 6 offices available (sizes ranging from 8m2 to 18m2) Ideally located on Level 4 of the prestigious Irwin Chambers building on the corner of Hay Street and Irwin Street. The serviced offices are directly across the road from the Perth District Court and within walking distance to the centre of the Perth CBD. Enquiries to Lee on 9221 8337 or email lee@nightstyle.com.au

Contact:

Graham O’Hehir MBA

Managing Director 0438 882 626 or graham@buyabusiness.com.au

BRIEF For advertising opportunities in Brief please contact:

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

www.buyabusiness.com.au 47

Events Calendar

With thanks to our CPD partner

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

APRIL 2019 Membership Events Thursday, 4, 11 and 18 April Pilates Classes

MAY 2019 Membership Events

CPD Seminars

Thursday, 2 and 9 May Pilates Classes

Friday, 17 May CPD Day for Rural, Regional and Remote Legal Practitioners

Monday, 13 May Law Week Breakfast and the 2019 Attorney Generalâ&#x20AC;&#x2122;s Community Service Law Awards

Thursday, 30 May Quality Practice Standard Accreditation Workshop 1

Tuesday, 14 May Law Access Walk for Justice Wednesday, 15 May Law Week Presentation hosted by the Law Societyâ&#x20AC;&#x2122;s Young Lawyers Committee Friday, 17 May Law Week Awards Night 2019

JUNE 2019 CPD Seminars Thursday, 6 June Quality Practice Standard Accreditation Workshop 2 Friday, 21 June & Saturday, 22 June Essentials of Advocacy & Negotiation

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