Brief February 2019 by The Law Society of Western Australia

VOLUME 46 | NUMBER 1 | FEBRUARY 2019

Welcome 2019 President Greg McIntyre SC See inside Business and Human Rights: Relevance for WA Lawyers Can employees be dismissed for making vexatious complaints? Rhetoric and reasoning: Contributions to the common law Civil justice reforms in class actions and litigation funding

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Volume 46 | Number 1 | February 2019

CONTENTS

ARTICLES

DISCLAIMER: The views and opinions expressed in Brief and the claims made in advertisements published within it, are not to be taken as those of, or as being endorsed by the Law Society of Western Australia (Inc.) or the Brief Editorial Committee. No responsibility whatsoever is accepted by the Society, or the Editorial Committee for any opinion, information or advertisement contained in or conveyed by Brief. COPYRIGHT: Readers are advised that the materials that appear in Brief Journal are copyright protected. Copyright is retained by the author. Readers wanting to cite from or reference articles in Brief Journal should reference as follows: (Month and Year) Brief Magazine (Perth: The Law Society of Western Australia) at page __). Readers wanting to reproduce a substantial part of any article in Brief Journal should obtain permission from individual authors. If an author’s name is not provided, or if readers are not able to locate an author’s contact details, readers should contact the Law Society of Western Australia (Inc.).

Business and Human Rights: Relevance for WA Lawyers

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“Where do they go now?” Untangling the Web of Uncertainty Faced by Refugees with Character Concerns

Trials and Tribulations: Interview with Iain McIntyre

Published monthly (except January)

Civil Justice Reforms in Class Actions and Litigation Funding

Communications and Media Officer: Andrew MacNiven

Welcome to the Profession

The Law Society’s Mock Trial Competition

Can Employees be Dismissed for Making Vexatious Complaints? Rhetoric and Reasoning – Contributions to the Common Law

Top Five Tips to Keep Your Legal Career Charged

The Law Society Brings Design Thinking to the Legal Profession

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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 Senior Vice President: Nicholas van Hattem Junior Vice President & Treasurer: Rebecca Lee

02 President's Report

44 Drover's Dog

04 Editor's Opinion

45 Cartoon

40 Ethics Column: My Client the Bully

46 Law Council Update

41 Family Law Case Notes

47 Professional Announcements

42 Quirky Cases: The Tale of the Naughty Comic Books

48 Classifieds

43 Ex Juris: Travel Tales from the Legal Profession

49 Events Calendar

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

48 New Members

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

Welcome to the first issue of Brief for 2019 and my first Report to you as President. I look forward to working closely with the Law Society’s Executive, Council and staff throughout the year to advance the interests of the legal profession and wider community. In this Report, I outline some of the issues I anticipate will be on the agenda for the Society in 2019. Justice Project An outreach role of the Society as the representative of the profession is advocating for justice for all members of the community. The Justice Project of the Law Council of Australia identified 13 vulnerable groups suffering significant impediments to obtaining access to justice: Aboriginal and Torres Strait Islander peoples; people with disability; older persons; people experiencing economic disadvantage; people who are homeless; children and young people; prisoners and detainees; people who are trafficked and exploited; LGBTI+ people; recent arrivals in Australia; asylum seekers; people who are experiencing family violence; and rural, remote and regional Australians. The Justice Project advocates targeted legal education, professional development and accreditation for lawyers working with disadvantaged groups; school curricula which includes legal literacy and capacity building; laws and policies which are subjected to a Justice Impact Test to identify those initiatives which exacerbate access to justice problems and which are measured against an evidence-based Justice Index; a 'polluter pays' principle applicable to agencies who impact adversely on access to justice; and multi-disciplinary efforts to meet legal needs. The Society has a responsibility to pursue those aims in its advocacy and activities and should do so taking into account social justice reinvestment and therapeutic jurisprudence approaches. 02 | BRIEF FEBRUARY 2019

Indeed, the Society already performs a great deal of important work in the areas addressed by the Justice Project, including through our Francis Burt Law Education Programme, Old Court House Law Museum and Mock Trial Competition, providing members of the community and particularly young people with unique learning experiences that foster a deeper understanding of the law. The Society’s Education and Community Services actively work to engage with marginalised groups. For example, our Lore Law Project is led by Aboriginal and Torres Strait Islander youth, offering a ‘skills for life’ approach and human-centred design process to create self-worth in young people, enabling them to make positive contributions to society, as they grow into adulthood and embark on pathways to employment. In January, the Society was pleased to receive a discrete project grant of $200,000 from the State Government's Criminal Property Confiscation Grants Program for the Lore Law Project. As part of core business, the Society is focused on ensuring adequate resourcing from 1 July 2019 to sustain and build the Society’s Education and Community Services, as we work to progress the Justice Project recommendations in WA. At its December meeting, the Society’s Council approved the establishment of a Justice Project Working Group constituted by two members from each relevant Society Committee (including Access to Justice, Elder Law and Succession, Indigenous Legal Issues, and Administrative, Constitutional and Migration Law). The Working Group will prepare terms of reference and undertake a review of the Justice Project Report’s findings and prepare a draft implementation strategy to progress those recommendations relevant to Western Australia.

Continuing Professional Development Recent surveying of the profession has told us that the Society’s CPD programme is highly valued by members. The Society should continue to strive to maintain that service at a

high standard, while adopting flexible methods of delivery suited to the busy practitioner. Entry to the 'national' profession may provide further opportunities to consider during the year, leading to a broader category of accredited fields of practice, which exist in other jurisdictions, but not in Western Australia presently.

Diversity 2019 will see a continuation of work towards the strategic objective adopted in March 2016 of gender diversity and advancement of women in the legal profession. I will have beside me in this endeavour Past President Hayley Cormann, who did so much to exemplify this cause during her Presidency, Vice President (and former Women Lawyers of WA President) Rebecca Lee and 12 women Councillors (out of a total of 20). The Australian Human Rights Commission is in the process of conducting a National Inquiry into Sexual Harassment in Australian Workplaces and Women Lawyers of WA will be making a submission to that Inquiry. To assist with that submission, they are conducting a survey to obtain data on the prevalence of sexual harassment in the WA legal profession. The Society supports this initiative. Sexual harassment and other forms of bullying and misuse of power are anathema to the promotion of diversity within legal workplaces. It was reported at the Australasian Conference of Regulatory Officers held in Fremantle in October 2018 that empirical research in New Zealand and other jurisdictions has revealed a disturbing prevalence of sexual harassment in legal workplaces. The message which emerged from the Conference was that the most effective approach to preventing or eradicating such behaviour is to take measures which achieve cultural change. Whatever the Women Lawyers of WA survey may reveal, the Society will do its utmost through continuing education and other approaches to ensure its members and legal workplaces in general are not infected by sexual harassment and bullying.

Networking and Mentoring An important role of the Society is providing the opportunity for practitioners to engage in the osmotic process of learning what it means to be in a profession. By providing the opportunity to meet with peers and engage with those who have the wisdom of experience, the Society’s informal social settings and formal mentoring processes provide enormous value. This year, the Society will continue to create as many of those valuable opportunities as it can.

Defence of Lawyers The Law Mutual Professional Indemnity policy presently exempts from cover any disciplinary or cost related matters. By way of contrast, a typical barrister's Professional Indemnity policy does cover legal representation in relation to disciplinary matters. Legal Professional Indemnity policies throughout Australasia vary between those two positions. MDA National provides medical practitioners with legal support across the board in relation to legal issues they have to face. As they say on their website:

We understand that a complaint or claim is more than a medicolegal matter; it’s about your professional reputation. We also know medico-legal matters can be stressful... Medico-legal matters can be daunting, which is why we aim to empower Members with information and a clear view of what to expect. My experience of representing legal practitioners facing disciplinary matters is that legal practitioners find them equally stressful and daunting. They often lead to mental health issues and extreme financial stress. The Society has instituted LawCare WA, which provides assistance with mental health and wellness issues and a Senior Advisors Panel which enables practitioners to seek ethical advice. In addition, the Western Australian Bar Association provides a complaints referral service in which counsel provide advice at no or minimal charge to legal practitioners responding to a conduct complaint or inquiry by the Legal Practitioners Complaints Committee. However, in my view, the Society should explore a means of providing legal defence services for its members when required to defend themselves

against disciplinary proceedings; whether that is by a modification or topup/gap cover connected with a current Professional Indemnity policy or an independent scheme.

Imprisonment for Unpaid Fines – Law Society Advocacy In January, the Society and Law Council released a joint statement, calling on the WA Government to repeal laws that have led to disadvantaged members of our community being incarcerated due to non-payment of fines. You can read the full statement at the Society’s website. I was pleased to note the Society’s advocacy was taken up by the media. An article was published in The West Australian and I took part in interviews with ABC Radio's AM and Statewide Drive programmes. The State Government has said it takes the issue very seriously and intends to introduce legislation into Parliament in the first half of 2019, acknowledging the impact on vulnerable members of our community and making imprisonment for fine default a last resort.

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

Brief extends readers a warm welcome to 2019, hoping that all had a happy and refreshing break over the festive season. Brief does not produce a January edition, recognising that the profession takes the important opportunity to unwind and get refreshed for the year to come. TV also follows suit, in that there is even less on TV worth watching than usual, and one is consigned to watching Australian, and Western Australian, cricket teams lose or, upon viewing something that appears to be worth watching, having the segment end with the terrible words: “coming soon”.1 Many are fortunate enough to take a nice overseas holiday during this period, which was regrettable for those who took a long-planned vacation to romantic Paris, just in time for the “Festival of the Yellow Jackets”. At least the Yellow Jackets gave some relief to those who jumped to the immediate conclusion (as the Editor would have) that the Arc de Triomphe had been graffiti spray-painted by their own unruly children. Brief also seeks to refresh itself for the New Year. Readers will note some new and hopefully stimulating items in this edition. We hope that contributions, feedback and suggestions from readers will allow us to continue to provide diverse content on interesting, and entertaining, matters. The feature article and other items in this edition concern the interaction between human rights, business and the law. They are a timely reminder of the implications of human rights considerations, whether international or domestic, for the law. Predictions about key issues for the law in 2019 largely involve artificial intelligence (AI). The Editor is looking forward to giving AI a long-awaited comeuppance in 2019 and dragging it back to reality, by seizing upon any opportunity to condemn a robot’s “toxic artificiality”, “toxic intelligence” or to tell it to “check its AI privilege”.2 Nesta, a global innovation foundation, published more considered predictions 04 | BRIEF FEBRUARY 2019

about 20193 suggesting that “Legal AI” will become mainstream in 2019 such that it would allow people to sue their employers, dispute an immigration decision or get a divorce using their smartphones, instead of having to visit a law firm. Of course, this would be particularly useful (if not depressing) for an individual who has to do all those things on the one day. Strangely, Nesta also predicted that 2019 would see a rise in people paying to test bacteria in their digestive systems and a new industry of “microbiome management.” Traditionally, the function of assessing digestive system bacteria was left to frank comments made by colleagues, spouses, and relatives. It is also significant that Europe (whatever constitutes that at the moment) saw fit to introduce the General Data Protection Regulation, which gives citizens some protection against decisions which have “legal or other significant” impact on their lives being made solely by machines.4 A lawyer’s mind is immediately drawn to disquieting questions such as “so… can someone please fill me in on what decisions have already been made by machines already affecting me” and “who decides what are ‘significant’ decisions?” It would be nice to know the answer to those questions before having, for instance, to ask HAL to “Open the pod bay doors please”. Drawing again from Kubrick’s 2001: A Space Odyssey, there is one priceless line from HAL 9000: “I know I’ve made some very poor decisions recently, but I can give you my complete assurance that my work will be back to normal. I’ve still got the greatest enthusiasm and confidence in the mission. And I want to help you.” Forget AI – that statement is familiar to anyone who has asked a junior practitioner to help with something involving a hard deadline. While looking forward is fascinating, looking back to the events of a century ago also reveals some matters of historical interest. In January 1919 the 18th Amendment was passed, introducing prohibition in the USA (prohibition having already been introduced in the Australian

Capital Territory and the subject of what was to be four failed referenda in Western Australia). And this was the time when many who served in the First World War (including, as noted in previous editorials, a significant number of lawyers) were returning – or tragically not returning – from the field. It was also the time when Australia, for really the first time, projected itself as a player in international affairs through the negotiations for the Treaty of Versailles, which was signed later that year in the “Hall of Mirrors” (the Hall of Mirrors being something which, in a different context, prohibition was presumably intended to remove the need for). It was during the negotiations that Australia was recognised as deserving independent recognition as a member of, and having a vote in, the to-be-formed League of Nations. And is also where Australian Prime Minister Billy Hughes threw his weight around in a stinging rebuke to US President Woodrow Wilson. During negotiations, when Hughes was asserting Australia’s position on a number of matters including arrangements in the Pacific and close to Australia, Wilson snootily questioned Hughes’ authority, as the leader of a country of only five million people. Hughes’ response was epic: “I speak for 60,000 dead. For how many do you speak?” After that exchange, Wilson probably should have retreated to the Hall of Mirrors and (having unsuccessfully tried to veto prohibition in his home country) taken in a few stiff drinks. NOTES: 1

2 3

If you wanted to be aggravated by seeing (or having to send) a communication with those words “coming soon” in it, you may as well have stayed at work. That is, to AI, in the immortal words of John McClane (Bruce Willis) in Die Hard: “Welcome to the party pal!” C Taylor, “Robot lawyers, smart cities and a political crisis could sum up 2019, UK firm predicts”, www.cnbc.com (6/12/18). “5 Important AI Predictions for 2019 Everyone Should Read”, AI trends.com (7/12/18).

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

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Business and Human Rights: Relevance for WA Lawyers By John Southalan1 Barrister (WA Bar Association); Adjunct Academic (University of Dundee, UWA, Murdoch); Member of Business-Human Rights Committee (Law Council of Australia) and Academic Network for the OECD Guidelines on Multinational Enterprises; Resources Law Network

There are growing implications, for the operation of businesses, from international human rights. The Modern Slavery Act 2018 (Cwth) commenced operation on 1 January 2019; the Commonwealth Treasury is strengthening a complaints mechanism around multinational enterprises and human rights; and various government inquiries are examining business impacts in banking, aged-care providers, and the gigeconomy.2 Many international standards are enacted as Australian law – e.g. prohibiting discrimination on gender, race, age and other grounds; outlawing corruption and bribery; criminalising trafficking – and compliance with these is a matter of Australian statutory, administrative and constitutional law. But there are increasing roles and legal implications of international human rights standards regardless of Australian domestic law. This article summarises the key documents and recent developments.

1 UN Guiding Principles on Business and Human Rights The Guiding Principles on Business and Human Rights (known as the UNGPs)3 were adopted by the United Nations in 20114 and have been accepted and endorsed by many businesses.5 The UNGPs have become the predominant framework of the current understanding and approach to business and human rights. The UNGPs confirm that human rights obligations on (and of) the state remain unchanged6 but, in addition, each business has a ‘responsibility to respect’ human rights. By ‘human rights’, the UNGPs include the standards in the 1948 UN Declaration of Human Rights plus all the main international human rights treaties which have since been developed7 06 | BRIEF FEBRUARY 2019

– even if the particular treaty has not been adopted by the country where the company is operating, or that country’s domestic law is inconsistent. That is: if the domestic law permits activities below what is specified by international human rights standards, then the company is expected to respect the international standards.8 The ‘respect’ for human rights, as explicated in the UNGPs, comprises three elements. a)

The business should adopt a human rights policy, involving a public commitment of the organisation’s responsibilities and expectations regarding human rights impacts of its work and workers, reflected in operational policies and procedures.9

The business needs to conduct human rights due diligence of its operations, which involves identifying and preventing potential impacts as well as addressing actual impacts.10

Remediation processes should be established for impacts which have occurred or been identified.11 This aspect comprises two areas, depending on the company’s connection with the impact. For impacts the company has caused or contributed to – the business must provide for, or cooperate in, remediation itself. However, for impacts with which the company is ‘directly linked’ (such as harm by a supplier to the company) the business need only use leverage to prevent and mitigate its recurrence but, if unsuccessful, consider ending the relationship.12

1.1 Implementing the UNGPs UNGP processes, or parts thereof, have gained legal implications for businesses in four main ways. •

The first is national or regional regulation, like France’s Due Diligence law, California’s Transparency in Supply Chains Act, and the EU’s Directive on Disclosures of Non-Financial Information. The Commonwealth Modern Slavery Act 2018 is another example of this, and is examined further below.

•

The second way in which UNGPs have legal implications is through contractual obligations, particularly prevalent in membership and certification requirements such as involvement in the International Council on Mining and Metals, the Roundtable on Sustainable Palm Oil, and the International Code of Conduct for Private Security Service Providers; and increasing examples within procurement contracts from large organisations like the Dutch Government and FIFA.

•

Financier requirements is the third way in which UNGP compliance arises, such as certain types of projects and financial assistance from the World Bank (through the IFC Performance Standards on Environmental and Social Sustainability) and Equator Principles Banks, which in Australia includes the 'big four'. Financial requirements relevant to human rights and the UNGPs also arise in stock exchange listing obligations like the UK’s Strategic Report and Directors’ Report Regulations 2013, South Africa’s

Companies Regulations 2011 (r43), and conflict minerals reporting for listing on the US Stock Exchange, under the US Dodd-Frank Act. •

The fourth way in which UNGP compliance may arise for companies is through general procedures, involving reporting or complaints investigation – such as the International Labour Organisation and UN initiatives13 – the broadest of which the OECD’s Guidelines on Multinational Enterprises which is examined in section 2.

1.2 UNGP statements and Australian laws on misleading conduct The UNGPs – and related reporting obligations such as modern slavery laws – have expanded corporate publications about human rights, which will give increased relevance to the regulation of statements under the Australian Consumer Law. The prohibition on false/misleading statements14 was not envisaged as addressing human rights reporting but can extend to corporate statements which occur through the UNGPs.15 While this has not yet arisen in Australia, corporate liability for human rights and related statements has occurred in the USA16 and the UK.17 The area will likely mirror how regulation responded to corporate environmental statements – where companies face civil action and regulator prosecutions if they make unsubstantiated claims about their products or services.18

2 OECD Guidelines on Multinational Enterprises The widest application of the UNGPs is through the OECD Guidelines,19 which are an internationally agreed code of standards for responsible business, featuring a complaints mechanism and implementation bodies (‘National Contact Points’ or NCPs). The OECD Guidelines apply to any multinational company (but also to stateowned entities and even NGOs20) from an ‘adhering country’, which includes Australia, and therefore any Australian company operating overseas as well as multinationals operating in Australia. The OECD Guidelines cover much more than just human rights,21 in also outlining expected standards regarding ‘Employment and Industrial Relations’, ‘Environment’, ‘Competition’ and ‘Taxation’. The OECD Guidelines establish a complaint-mediation process – through the National Contact Points – about company compliance with the content of the Guidelines which, since 2011, has included

the UNGPs. Like the UNGPs, the OECD Guidelines emphasise that where domestic law falls below international human rights standards, a company is expected to ensure compliance with the international standards. If domestic law actually prohibits conduct which complies with the international standards, then the OECD Guidelines would not require a company to breach the domestic law.22 However, in many cases, the domestic law will simply enable company rights or actions without the level of protection of rights which international standards specify, and so the domestic law does not prevent a company from meeting the (higher) international standards while acting consistently with domestic law. The OECD Guidelines are the only current international mechanism (with government, business and labour endorsement) which examines UNGP compliance at a case level, so the OECD Guidelines are an important and increasing area of attention. The majority of complaints since 2011 have been about corporate non-compliance with human rights.23 The OECD Guidelines ‘complaint’ process essentially involves the following stages. 1. Any party can make a ‘complaint’ (i.e. there is no need for ‘standing’ or any connection with the matter or the alleged victim24).The complaint is formally termed a ‘specific instance’ under the OECD Guidelines.25 It is lodged with the NCP of the country where the impact occurred or where the company is registered – frequently a complaint is lodged with both ‘host’ and ‘home’ country NCPs. A complaint must identify those parts of the OECD Guidelines alleged to have been breached. Where it is related to human rights, a complaint normally alleges some deficiency of the company regarding a human rights policy, due diligence, or remediation (those concepts having been framed by the UNGPs). 2. The NCP conducts an initial assessment. The National Contact Point decides whether a bona fide case has been demonstrated26 (if not, then the NCP refuses to proceed with the matter27). This should occur within three months of receipt of the complaint. 3. If a NCP considers a bona fide case exists, then the NCP can facilitate mediation between the parties. This is formally termed the NCP "offer[ing its] good offices to help the parties involved to resolve the issues",28 and there is no time limit on these processes.

This stage can also involve the NCP commissioning independent inquiries and reports. 4. The NCP issues a final statement, which should be less than three months after any mediation finishes. The final statement is effectively the NCP’s decision or report on the process and: •

wherever possible, any statement and outcomes are agreed by the parties;

•

may include the NCP’s recommendations for the company, and observations on company default of (or compliance with) the OECD Guidelines; and

•

may presage the NCP undertaking future review of the matter and following-up with statements on compliance.

The published decisions of NCPs is a relatively young ‘jurisprudence’, and somewhat uneven (some NCPs are wellresourced and active; but others do little to promote the OECD Guidelines and their compliance29). However NCP decisions provide an important guide on UNGP implementation, and will be an increasing forum of disputation, as illustrated by some NCP final statements of recent years. •

In 2005-2006, the Australian NCP mediated a dispute between an NGO and GSL Australia, about the treatment of children in detention centres managed by the company. The outcome saw the company commit "to upholding the human rights of those in its care ... [and] embedding this approach within the company’s policy and procedures, including training of its officers".30

•

In 2013 the NCPs from Norway, the Netherlands, and South Korea all examined complaints about the South Korean steel company, POSCO, and its mining and processing developments in India. Concerns about environmental and social impacts of the development, and alleged non-compliance with the OECD Guidelines, were raised against POSCO and also two of its investors who were government pension funds in Norway and Holland. The Korean NCP dismissed the complaint against POSCO.31 The Dutch NCP engaged in mediation involving the Netherlands Government Pension Fund (which had encouraged POSCO to ameliorate its impacts) and decided that pension fund had complied with its obligations under the OECD Guidelines.32 However, the Norwegian

proceedings took a different path, after the Norwegian Government Pension Fund refused to mediate. The Fund reasoned that it was not responsible under the OECD Guidelines as a minority investor and that its work had broader human rights benefits. The Norwegian NCP concluded, however, that the Norwegian pension fund "violates the OECD Guidelines chiefly on two accounts. ...[1] by refusing to cooperate with the OECD NCP ...[and 2] by not having any strategy on how to react if it becomes aware of human rights risks related to companies in which NBIM [the Fund] is invested, apart from child labour violations".33 •

•

In 2009, the Australian NCP issued a final statement about a mediation following complaints about environmental and social impacts from coal mining operations of a BHP subsidiary in Colombia. Following an independent review of the case, mediation saw the parties’ agreement including "contributions ... totalling US$1.8 million; and a further US$1.3 million for sustainable projects", with BHP also agreeing to ongoing pollution monitoring and those results being provided to affected communities.34 In 2016, the Dutch NCP addressed a complaint about the misuse of anaesthetics produced by Mylan, in executions in US jails. Authorities there had begun mixing drugs for conducting the death penalty, after other producers prevented their products from being so used. The Mylan anaesthetics were made in India, were "never delivered, marketed, or distributed... for use in lethal injections"35 and should have been monitored by US authorities for any misuse. Nevertheless, the Dutch NCP mediated, and in its final statement made two significant points: (1) that despite a company’s earlier precautions, if it learns of new impacts the company has an obligation to do more, and (2) a company’s responsibilities exist not only up the supply chain to suppliers, but also down the supply chain to customers and users.36

NCPs do not, however, routinely find companies in breach of the OECD Guidelines. Many complaints are summarily rejected37 or, when examined and mediated, result in the NCP confirming the company has not breached the OECD Guidelines occurred. A 2016 Swedish NCP decision is informative. The NCP received a complaint and arranged a mediation concerning a wind energy project which was impacting 08 | BRIEF FEBRUARY 2019

an indigenous group in Sweden. The NCP decided that the lengthy consultation and review process under Swedish law, which the company had followed and addressed environmental and social impacts, sufficed to meet the UNGPs and the OECD Guidelines and, although there were impacts, the company’s conduct did not breach the OECD Guidelines.38 The decision was not that adherence to national laws was sufficient but rather that the national laws and procedures followed here ensured compliance with the relevant requirements in the UNGPs and OECD Guidelines. There are cases where a company’s compliance with national laws was insufficient to meet the OECD Guidelines because the national laws and procedures did not ensure the relevant international standards were fulfilled.39

outcome, including that the company ensure the OECD Guidelines are reflected in its policies and statements, and "keep abreast of any changes or further guidance published by the OECD, particularly ...[regarding] business structures and operational arrangements."46 •

2.1 Australian National Contact Point for OECD Guidelines The AusNCP40 is the Australian Government body (an individual within Commonwealth Treasury) which oversees the implementation of the OECD Guidelines in Australia. The AusNCP can receive, and mediate, complaints that Australian companies have breached the OECD Guidelines. It has operated for nearly 20 years, with variable effect. Some earlier cases saw outcomes reducing Australian company impacts on human rights (e.g. the GSL and BHP cases summarised above) but there have also been less positive results.41 For example a 2011 case involving Xstrata Coal ended because the company was unwilling to engage in the AusNCP’s mediation of concerns raised by unions;42 and in 2016 the AusNCP rejected a complaint about the G4s company’s management of the Manus Island detention Centre for various reasons including that "aspects of the complaint could be interpreted as a comment on government policy".43 In 2017, an independent review identified many deficiencies in the AusNCP’s work and procedures, particularly related to inadequate resources.44 The Commonwealth Treasury committed, in November 2018, to improvements and greater resourcing;45 and recent AusNCP cases and statements herald increased AusNCP involvement in companies and human rights issues. Two recent examples are these. •

In June 2017, the AusNCP issued a final statement regarding a complaint about workplace conditions in factories of subsidiaries of Ansell Ltd in Sri Lanka and Malaysia. The matter was mediated and reached an agreed

In 2018, the AusNCP examined complaints that the ANZ Bank had breached the OECD Guidelines (including human rights) in its financing of a sugar plantation and refinery in Cambodia. After mediation, the AusNCP issued a final statement, acknowledging ANZ’s policies were sufficient but doubted whether they had been followed in practice, given the impacts and ANZ’s decision to continue funding its client.47 The AusNCP recommended the ANZ improve its internal compliance procedures, strengthen its human rights due diligence, and establish grievance mechanisms.48

2.2 Due diligence guidelines The OECD (sometimes partnering with other international organisations) has produced a range of ‘due diligence’ guidance to assist businesses in understanding their human rights responsibilities and conducting due diligence. Some of these OECD documents are then used and referenced by international and domestic laws and standards in identifying appropriate corporate conduct,49 as well as in NCP decisions. These OECD guidance documents include a general guide (2018)50 but also particular guides for sectors or actors with higher prevalence of human rights impacts or specific issues to consider in due diligence. These include the following: •

Responsible Agricultural Supply Chains (2016);51

•

Responsible Supply Chains of Minerals (2016);52

•

Meaningful Stakeholder Engagement in the Extractives Sector (2017);53

•

Institutional investors (2017);54 and

•

Responsible Supply Chains in the Garment and Footwear Sector (2018).55

3 UN and international developments The UN’s Human Rights Council continues to debate the role and content of a possible treaty about business and human rights. This does not propose any changes to human rights standards; rather, it envisages

more mechanisms (and obligations on states and companies) than what currently exists under the UNGPs and associated structures. The first draft of a proposed treaty was released, in July 2018, by a working group of the UN Human Rights Council.56 Whether anything, and what, may develop from this is uncertain and, even at its highest, still envisages a state-based mechanism, directed at states to enforce (through courts or other national initiatives), with the usual treaty-monitoring committee (comprising members chosen by state parties). As such, in the absence of state action, this provides no current implications for corporate observance of human rights, and little change in the foreseeable future.57 However there are already existing processes at the international level – through the UN and elsewhere – which consider UNGP compliance by companies. Two of these, expanded below, are reports from UN bodies and the ‘Chinese Due Diligence Guidelines’.

complicity in serious violations of human rights in countries such as the Democratic Republic of Congo, the Philippines, Indonesia and Fiji... 28. In light of Human Rights Council resolutions… adopting the… [UNGPs], in which it is noted that the rights of the child should be included when exploring the relationship between business and human rights, the Committee recommends that the State party [ie. the Australian Government]: (a) Examine and adapt its legislative framework (civil, criminal and administrative) to ensure the legal accountability of Australian companies and their subsidiaries regarding abuses to human rights, especially child rights, committed in the territory of the State party or overseas and establish monitoring mechanisms, investigation, and redress of such abuses, with a view to improving accountability, transparency and prevention of violations;60

3.1 UN human rights reports and information There are various UN bodies and groups which produce materials addressing companies and human rights. These can focus on a specific company/country, or on the issue more generally (e.g. in expounding how the UNGP processes should work). This material produced by the UN provides important information in how a company should implement its ‘responsibility’ for human rights. Examples include the following. •

•

Statements and reports from the Office of the High Commissioner for Human Rights. For example, the Commissioner provided observations on remediation initiatives developed by Barrick Gold Corporation regarding impacts related to its Porgera mine site in Papua New Guinea.58 Observations and decisions from treaty bodies (being the committees established to oversee implementation of each human rights treaty and monitor national compliance). These committee publications sometimes address corporate responsibility in theory59 but have even greater relevance (in raising flags for companies’ attention) where they address specific cases. For example, in its 2012 observations on Australia, the Committee on the Rights of the Child made the following statement. 27. The Committee is concerned at reports on Australian mining companies' participation and

•

Inquiries and recommendations of UN bodies and officials, examples of which include the recent statement on ‘Corporate human rights due diligence – Getting started, emerging practices, tools and resources’,61 the Human Rights Council’s recommendations to Australia,62 and observations of various Special Rapporteurs.63

While many of these recommendations are explicitly directed at nation-states, they still have relevance for companies. The identification, in a UN document, of human rights impacts and deficiencies in a state’s responses, should be red flags to a company operating in that environment: extra attention will be needed in the company’s due diligence and remediation processes under the UNGPs.

3.2 Chinese Guidelines regarding minerals The Chinese Due Diligence Guidelines for Responsible Mineral Supply Chains state they are "guidance to all Chinese companies which are extracting and/or are using mineral resources and their related products ... to observe the UN Guiding Principles on Business and Human Rights during the entire life-cycle of the mining project."64 The Chinese Guidelines were adopted, in December 2015, by the China

Chamber of Commerce of Metals Minerals and Chemicals Importers & Exporters. The Guidelines requires all Chinese companies extracting or using minerals to have a risk-based, supply chain due diligence framework and, where there is risk in their supply chain, to act to reduce that.65 Consistent with the UNGPs and the OECD Guidelines, the Chinese Guidelines emphasise they require company compliance beyond domestic law. This can be seen in how the Chinese Guidelines require companies to assess and address risk in their supply chain, and define ‘risk’ as including: Extracting or sourcing resources from land where the free, prior and informed consent of local communities… has not been obtained, including those for which the extractor holds a legal title, lease, concession, or license.66 The Chinese Guidelines do not, as yet, have any structure for their implementation or monitoring, and so their potential is unclear but potentially vast. If Chinese companies which process or use minerals do begin assessing compliance with the Guidelines, then those companies will need to ensure their raw product is sourced consistently with the Chinese Guidelines. Relevant to Australia, this would have significant implications for businesses selling minerals to Chinese customers because they will need to demonstrate they have obtained the free, prior and informed consent of local communities regardless of whether the extractor holds a legal title.

4 Australian Modern Slavery laws The Modern Slavery Act 2018 commenced at the start of 2019. This requires entities based, or operating, in Australia with annual revenue exceeding $100m to report on "the risks of modern slavery in their operations and supply chains, and actions to address those risks".67 The regime is expected to cover more than 3,000 entities and Commonwealth agencies. These organisations must lodge an annual statement (the first statements due in 2020), which are published in a free, online register and the Government can identify entities which should have reported but failed to do so.68 The Department of Home Affairs is currently consulting about proposed guidance on the detail required to prepare and submit the annual statements.

5 Relevance for WA practitioners The main implication from the above, for WA lawyers, is that advising and representing clients involves more than 09

just the relevant ‘domestic’ law (be that Western Australian or Commonwealth). Lawyers therefore need to understand whether international human rights standards indicate further requirements beyond the Australian law relevant to the particular events or transaction on which the lawyer is advising. Perhaps discomfortingly, the High Court is not the arbiter of international human rights standards and has acknowledged that Australian law – including its pronouncements – may interpret obligations differently to international bodies.69 It is those international standards which reign in this field. As the AusNCP observed, in one of its statements, the OECD Guidelines "represent standards of behaviour supplemental to domestic laws and, as such, do not create conflicting requirements".70 Australia’s laws and government procedures provide many human rights protections, and companies are, of course, entitled to rely on these. However there are areas where Australian law does not ensure international human rights standards, and additional attention would be prudent in these situations, such as the extractives sector (mining, oil, gas); native title issues; investment contracts with governments; and operators in conflict-prone or failing states.71 The key question for WA lawyers, in determining a company’s requirements to ‘respect human rights’ is: if the Australian law/practice is insufficient to meet international standards, what more is required from the company (e.g. to ensure it is compliant with the OECD Guidelines)? Lawyers need familiarity with this area to properly advise and assist clients (and perhaps even avoid professional negligence/liability72) – whether the client is corporate, government or a third-party affected by company activities. Useful materials include: •

Endnotes 1

IBA & Law Council of Australia materials and training;73

•

OECD guidance documents (see section 2.2 above);

•

the UN’s 2012 Interpretive Guide74 and more recent publications;75 and

•

publications of the Parliamentary Joint Committee on Human Rights.76

8 9 10 11

12 13

To learn more about the topics covered in this article, register for the Law Society's CPD seminar 'Modern Slavery: What it Means for Your Clients' on Tuesday, 12 March 2019. Register online at lawsocietywa.asn.au/event/modernslavery 10 | BRIEF FEBRUARY 2019

The author is grateful for feedback on earlier drafts from Kate Eastman SC, Professor Paul Redmond and Lauren Zanetti. Any errors remain the author’s responsibility. https://resourceslawnetwork.com/john-southalan/ The developments in modern slavery and multinational enterprises are detailed in sections 2-4 of this article. The government inquiries are: • The interim report of the Royal Commission on Banks, which noted: ‘The more complicated the law, the easier it is for compliance to be seen as asking “Can I do this?” and answering that question by ticking boxes instead of asking “Should I do this? What is the right thing to do?’’: Commissioner Hayne Interim Report Royal Commission into Misconduct in the Banking, Superannuation and Financial Services Industry. Australian Government, 28 September 2018, 290 (emphasis in original); • The forthcoming ‘Royal Commission into Aged Care Quality and Safety’ is a national inquiry examining how "aged care services... meet the needs of the people accessing them...including mistreatment and all forms of abuse ... and any actions that should be taken in response": https://agedcare.royalcommission.gov. au/Pages/Terms-of-reference.aspx (accessed 30 Dec 2018); and • The ‘Inquiry into the Victorian on-demand workforce’ will report in 2019 on working conditions in the ‘on-demand’ economy: Inquiry into the Victorian On-Demand Workforce Background Paper Victorian Government, December 2018; see also Ch 8 ‘The gig economy: hyper flexibility or sham contracting?’ of Senate Standing Committee on Education and Employment Corporate Avoidance of the Fair Work Act Australian Parliament, 6 September 2017. UN (Special Representative of the Secretary-General on the issue of human rights and transnational corporations and other business enterprises), Guiding Principles on Business and Human Rights: Implementing the United Nations “Protect, Respect and Remedy” Framework, Annex to UN doc A/HRC/17/31. United Nations Human Rights Council, 21 March 2011 (UNGPs). UN (Human Rights Council), Human rights and transnational corporations and other business enterprises, UN doc A/HRC/RES/17/4. United Nations, 6 June 2011. Prominent international examples are BP, BT, Cisco, Ericsson, H&M, Nestlé, Newmont and Unilever. In Australia, examples include BHP Billiton (p 18-19 of BHP Billiton, Our Code of Conduct, The guide to bringing Our Charter values to life. August 2018), Commonwealth Bank (Chairman, Human Rights Position Statement, Commonwealth Bank of Australia, 2015), Rio Tinto (Executive Committee, Human Rights Policy, EXT-A-001. October 2015), and Wesfarmers (Managing Director, 2018 Modern Slavery Statement for Wesfarmers, 13 September 2018). UNGPs (refer note 3), Guiding Principle 1. This confirms the existing international law and structures which oblige states to respect & protect human rights (through laws, policies and measures) and fulfil human rights (ensuring remedies where these human rights are violated); further detail expanded in Guiding Principles 2-10. The obligations arise under existing treaty and UN processes (e.g. Human Rights Committee General Comment No. 31: Nature of the General Legal Obligation Imposed on States Parties to the Covenant (UN doc CCPR/C/21/ Rev.1/Add.13, 26 May 2004), [4]-[8]; see more generally Smith, R, Textbook on International Human Rights, Oxford University Press, 2012, ch 10). UNGPs (refer note 3), Guiding Principle 12 and its following Commentary, which explicitly identifies some standards of the UN and the International Labour Organization but also incorporates "additional standards…depending on the circumstances" which has been understood to include subsequent human rights treaties and declarations: e.g. UN (Office of the UN High Commissioner for Human Rights), The Corporate Responsibility to Respect Human Rights: An Interpretive Guide, UN doc HR/PUB/12/02. United Nations, June 2012, 11-12. UNGPs (refer note 3), Principle 23. UNGPs (refer note 3), Guiding Principle 16. UNGPs (refer note 3), Guiding Principles 17-21. UNGPs (refer note 3), Guiding Principles 13 (distinguishing between the three instances of cause, contribute and linkage through a business relationship), 22 & 31. The concepts of ‘directly linked’ and ‘leverage’ are further explicated in UN 2012 (refer note 7), 46-51. See this article section 3.1 UN human rights reports and information. e.g. Section 18 of Australian Consumer Law (sch 2 to Competition and Consumer Act 2010 (Cwth); s12DA of Australian Securities and Investments Commission Act 2001 (Cwth); s1309 of Corporations Act 2001 (Cwth). Southalan, J, ‘Say what? The regulation of company statements arising from UNGP processes’, Human Rights Law Committee News, 1/1 (2017) 51. There was US litigation against Nike regarding its statements about its factory conditions. These settled after a 2003 US Supreme Court decision (Nike Inc v.

27 28 29

Kasky 539 U.S 654, dismissing an appeal and directing the proceeding to continue) but similar court proceedings continue to arise in the US: see Myers, C, ‘What’s the legal definition of PR?: An analysis of commercial speech and public relations’, Public Relations Review, 42/5 (2016) 821. e.g. United Kingdom Advertising Standards Authority Final Adjudication - Shell International (A08-50657, 13 August 2008). Relevant concepts are summarised in Australian Competition & Consumer Commission Green marketing and the Australian Consumer Law ACCC 03/11_30681_292. Australian Government, 11 March 2011; and cases include Australian Competition and Consumer Commission -v- Holden Ltd [2008] FCA 1428 and earlier decisions against Lloyds and Sanyo: those court orders reported in Australian Competition and Consumer Commission statements Environmental bag claims ‘Misleading’ (release # MR 087/04, 25 May 2004) and Federal Court finds “Green” claims to be misleading (release # MR 235/03, 11 November 2003). OECD (Adhering Governments), OECD Guidelines for Multinational Enterprises, Organisation for Economic Co-operation & Development, 25 May 2011 (OECD Guidelines). e.g. OECD (Secretary General), Annual Report on the OECD Guidelines for Multinational Enterprises 2017, Organisation for Economic Co-Operation and Development, 19 June 2018, 18 (describing cases under the OECD Guidelines involving state-owned entities and ‘a non-profit organisation involved in commercial activity (World Wildlife Federation)’. The OECD Guidelines were originally adopted 1976 but have been amended various times and their latest format (2011) incorporates UNGP frameworks. OECD Guidelines (refer note 19), Part I, [2]. The actual wording is: "…in countries where domestic laws and regulations conflict with the principles and standards of the Guidelines, enterprises should seek ways to honour such principles and standards to the fullest extent which does not place them in violation of domestic law". OECD (Secretary-General of the OECD), Implementing the OECD Guidelines for Multinational Enterprises, The National Contact Points from 2000 to 2015. Organisation for Economic Co-Operation and Development, 21 June 2016, 40; OECD 2018 (refer note 20), 23. Complaints have been accepted by NCPs having been lodged by parties impacted, unions, companies, local government, politicians, community groups, lawyers and others. Although the OECD Guidelines formally use the terms ‘specific instance’ (rather than ‘complaint’ to an NCP) and ‘statement’ (rather than ‘decision’ of an NCP); they are nonetheless developing a forum of ‘determinations’ on ‘cases’ – both those terms are used by the OECD Secretariat in its latest annual report (rather than ‘statements’ on ‘specific instances’): see OECD 2018 (refer note 20), 8 (‘cases’) and 19 (‘determinations’). OECD Guidelines (refer note 19), Part II, Commentary [27]. In assessing ‘bona fide’ and whether to continue with the matter, ‘the NCP will take into account: • the identity of the party concerned and its interest in the matter; • whether the issue is material and substantiated; • whether there seems to be a link between the enterprise’s activities and the issue raised in the specific instance; • the relevance of applicable law and procedures, including court rulings; • how similar issues have been, or are being, treated in other domestic or international proceedings[; and] • whether the consideration of the specific issue would contribute to the purposes and effectiveness of the Guidelines’: ibid., [25]. And 20-50% of complaints resolve in this manner: OECD 2016 (refer note 23), 32-34; OECD 2018 (refer note 20), 13. OECD Guidelines (refer note 19), Part II, Procedural Guidance C(2). See, more generally, about the OECD Guidelines and NCP decisions: OECD Watch (Secretariat), Effective NCPs now! Remedy is the reason, Centre for Research on Multinational Corporations (SOMO), November 2017; Roberts–Freeman, C & ors (OECD Watch Secretariat), Calling for Corporate Accountability, A Guide to the 2011 OECD Guidelines for Multinational Enterprises. Centre for Research on Multinational Corporations (SOMO), October 2017; OECD, OECD Guidelines for Multinational Enterprises: a Glass Half Full, Liber Amicorum for Roel Nieuwenkamp. Organisation for Economic Co-Operation and Development, 20 June 2018. AUS NCP (Australian National Contact Point), Statement on ‘GSL Australia Specific Instance’, Gerry Antioch (Department of Treasury). 6 April 2006, [10]. The South Korean NCP stated that it "considers the complaint to be related to the administrative activities of the provincial government of India rather than business activities of Posco... and it is not the Korean NCP but the Indian court that should determine legality and legitimacy of such activities": p8 of KOR NCP (Korean National Contact Point), Initial Assessment of Complaint on Violation of OECD Guidelines for Multinational Enterprises, Annex 7 to NLD National Contact Point for OECD

36 37 38

40 41

Guidelines ‘Final Statement: ABP/APG’ 18 September 2013, Dutch Ministry of Foreign Affairs. 21 June 2013. NLD NCP (Netherlands National Contact Point for OECD Guidelines for Multinational Enteprises), Final Statement: ABP/APG - Lok Shakti Abhiyan, KTNC Watch, Fair Green and Global Alliance, Forum for Environment and Development, NLD National Contact Point for OECD Guidelines. Ministry of Foreign Affairs, Netherlands Government, 18 September 2013, p7. NOR NCP (Norges OECD-kontaktpunkt), Lok Shakti Abhiyan, Korean Transnational Corporations Watch, Fair Green and Global Alliance and Forum for Environment and Development vs. POSCO (South Korea), Abp/Apg (Netherlands) and NBIM (Norway), Final Statement. National Contact Point for OECD Guidelines, 27 May 2013, 6. AUS NCP (Patrick Colmer), Statement on BHP Billiton – Cerrejon Coal Specific Instance, Australian National Contact Point. Department of Treasury, 12 June 2009, [15]-[17]. NLD NCP (Nationaal Contactpunt OESO-richtlijnen), Final Statement Bart Stapert, attorney, vs Mylan, Ministry of Foreign Affairs, 11 April 2016, 4. ibid., 5. Refer note 27 above. NOR NCP (Norges OECD-kontaktpunkt), Jijnjevaerie Saami village – Statkraft SCA Vind AB (SSVAB), Final Statement. Norwegian National Contact Point for the OECD Guidelines for Multinational Enterprises, 8 February 2016, 14-16. e.g. NOR NCP (Norges OECD-kontaktpunkt), Complaint from The Future In Our Hands (FIOH) against Intex Resources Asa and the Mindoro Nickel Project, Final Statement. Norwegian National Contact Point for the OECD Guidelines for Multinational Enterprises, 30 November 2011, 21-25. http://ausncp.gov.au/contactpoint/ See, more broadly Zornada, K (Non-Judicial Human Rights Redress Mechanisms Project), The Australian OECD National Contact Point: How it can be reformed, Corporate Accountability Research, 12 June 2017. AUS NCP (Australian National Contact Point), Statement: Specific Instance complaint CFMEU – Xstrata Coal Pty Ltd – Industrial Relations/Employment Practices/Marketing Arrangements, Department of Treasury, 8 June 2011, 3. AUS NCP (Australian National Contact Point for the OECD Guidelines for Multinational Enterprises), Statement: Specific Instance – G4S Australia Pty Ltd, Treasury, 10 June 2015, 3. An ‘appeal’ against this decision was dismissed, although the OECD’s Investment Committee acknowledged various ‘problems associated with the handling of this specific instance’ including: divergence from the AusNCP’s own published rules of procedure, withholding information, ambiguity in distinguishing corporate responsibility and state duty, and factfinding without corroboration: OECD (Investment Committee of Directorate for Financial and Enterprise Affairs), Response by the Investment Committee to the Substantiated Submission by OECD Watch regarding the Australian National Contact Point, DAF/INV(2018)34/ FINAL. Organisation for Economic Co-Operation and Development, 30 November 2018, [20], [37], [43]-[44] & [52]. Newton, A (Treasury), Independent Review: Australian National Contact Point under the OECD Guidelines for Multinational Enterprise, Australian Government, 26 September 2017, 11 & 44-45. The Treasury Treasury response to the 2017 AusNCP Independent Review Australian Government, November 2018. AUS NCP (Australian National Contact Point for the OECD Guidelines for Multinational Enterprises), Final Statement: IndustriALL Global Union on behalf of the Free Trade Zones and General Services Employee Union (FTZGSEU) of Sri Lanka and the National Union of Employees in

48 49

Companies Manufacturing Rubber Products (NUECMRP) of Malaysia, against Ansell Limited, Treasury, June 2017, p9. AUS NCP (Australian National Contact Point for the OECD Guidelines for Multinational Enterprises), Final Statement: Specific Instance by Equitable Cambodia and Inclusive Development International regarding ANZ Group, Treasury, 27 June 2018, [30] & [37]. ibid., 46 – 48. e.g. ‘[T]he OECD Due Diligence Guidance for Responsible Mineral Supply Chains [refer note 52 below] is referenced in a range of international declarations, regulations and initiatives...[including]: · The Mosi-oa-Tunya Declaration, adopted on 13 September 2018 at the International Conference on Artisanal and Small-scale Mining and Quarrying ... · In May 2017, the European Union adopted Regulation (EU) 2017/821 ...[which] ... lays down supply chain due diligence obligations for Union importers of tin, tantalum and tungsten, their ores, and gold originating from conflict-affected and highrisk areas ... The EU Regulation will enter into force in January 2021. · The Chinese Due Diligence Guidelines [see n64 and related text below] ... · In 2012, the US Securities and Exchange Commission recognised the OECD Guidance as an international framework for due diligence measures undertaken by companies that are required to file a conflict minerals report under the final rule implementing section 1502 of the Dodd-Frank legislation. · The Lusaka Declaration signed by 11 Heads of State of the International Conference on the Great Lakes Region (ICGLR) in December 2010 ...[and] · The United Nations Security Council resolution 1952 (2010) supports taking forward the due diligence recommendations contained in the UN Group of Experts on the Democratic Republic of the Congo’ www.oecd.org/daf/inv/mne/mining.htm (accessed 30 Dec 2018). OECD (OECD Council), Due Diligence Guidance for Responsible Business Conduct, C(2018)42. Organisation for Economic Co-operation & Development, 2018. OECD (OECD Investment Committee, OECD Committee for Agriculture and Cabinet of FAO Director-General), OECD-FAO Guidance for Responsible Agricultural Supply Chains, Organisation for Economic Co-operation & Development, 11 March 2016. OECD (Secretariat), Due Diligence Guidance for Responsible Supply Chains of Minerals from ConflictAffected and High-Risk Areas, 3rd edition. OECD Publishing, April 2016. Note that, despite the title, this 2016 ‘updated edition now clarifies that the Guidance provides a framework for detailed due diligence as a basis for responsible supply chain management of all minerals’: ibid., p4 (emphasis added). OECD (OECD Secretariat), Due Diligence Guidance for Meaningful Stakeholder Engagement in the Extractives Sector, Organisation for Economic Co-Operation and Development, 2 February 2017. OECD (Secretary-General of the OECD), Responsible business conduct for institutional investors, Key considerations for due diligence under the OECD Guidelines for Multinational Enterprises. Organisation for Economic Cooperation and Development, 28 March 2017. OECD (Secretary-General), Due Diligence Guidance for Responsible Supply Chains in the Garment and Footwear Sector, OECD Publishing, 7 March 2018. UN (Open-ended intergovernmental working group on transnational corporations and other business enterprises with respect to human rights), Legally binding instrument to regulate, in international human rights law, the activities of transnational corporations and other business

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

65 66 67 68 69

70 71

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enterprises, Zero Draft, attached to Note 4-7-158/2018 Note Verbale by the Chairmanship of the Working Group. UN Human Rights Council, 16 July 2018 (UN Human Rights Council, 16 July 2018). A large collation of opinions and blogs about the draft – and the general potential for a business-human rights treaty – is available at https://www.business-humanrights. org/en/binding-treaty/statements-initiatives-commentaries (accessed 8 January 2019). e.g. UN (Office of the High Commissioner of Human Rights), Opinion regarding the Porgera remediation framework, United Nations, July 2013. e.g. Committee on Economic Social and Cultural Rights General comment No. 24 on State obligations in the context of business activities (UN doc E/C.12/GC/24, 10 August 2017). Committee on the Rights of the Child Concluding Observations: Australia (UN doc CRC/C/AUS/CO/4, 28 August 2012). UN (Working Group on Business and Human Rights), Corporate human rights due diligence – Getting started, emerging practices, tools and resources, Companion note II to 2018 report to the General Assembly. United Nations, 16 October 2018. UN (Working Group on the Universal Periodic Review), Report on Australia, UN doc A/HRC/31/14. Human Rights Council, 13 January 2016, [130] & [136]. e.g. UN (Special Rapporteur on the implications for human rights of the environmentally sound management and disposal of hazardous substances and wastes), Report on mission to Germany, UN doc A/HRC/33/41/Add.2. Human Rights Council, 14 September 2016, section III D; UN (Special Rapporteur on the rights of indigenous peoples), Report on mission to Brazil, UN doc A/HRC/33/42/Add.1. Human Rights Council, 8 August 2016, section VI H. CCCMC, Chinese Due Diligence Guidelines for Responsible Mineral Supply Chains, China Chamber of Commerce of Metals, Minerals and Chemicals Importers & Exporters, 2 December 2015, 8. ibid., p12-21. ibid., 5.2.1.4 (emphasis added). Modern Slavery Act 2018 (Cwth), s3. ibid., s16A(4). e.g. Maloney -v- R [2013] HCA 28; 252 CLR 168, [15] & [23] per French CJ (acknowledging the possibility of divergence between the Australian domestic law enforced by courts here, and what the treaty committees may indicate contemporary international obligations involve); WA -v- Cwth [1995] HCA 47; 183 CLR 373, 453 per Mason CJ, Brennan, Deane, Toohey, Gaudron & McHugh JJ (inconsistency with human rights protections does not invalidate legislation); WA -v- Ward [2002] HCA 28; 213 CLR 1, [956]-[963] per Callinan J. AUS NCP 2017 (refer note 46), 6. The specific issues, and relevant guidance material, are expanded in Southalan, J, ‘Human rights and business lawyers: The 2011 watershed’, Australian Law Journal, 90/12 (2016) 889, 901-904. ibid., 905-906. IBA (Zerk), Handbook for lawyers on business and human rights, (first two chapters online) Legal Policy & Research Unit. International Bar Association, September 2017. UN 2012 (refer note 7). e.g. UN (Castan Centre for Human Rights Law), Human Rights Translated 2.0: A Business Reference Guide, UN doc HR/PUB/17/1. Monash University, 20 June 2016; UN (Office of the High Commissioner of Human Rights), Frequently Asked Questions about the Guiding Principles on Business and Human Rights, UN doc HR/PUB/14/3. United Nations, October 2014. Particularly: Parliamentary Joint Committee on Human Rights Guide to Human Rights Department of the Senate, June 2015.

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“Where do they go now?” Untangling the Web of Uncertainty Faced by Refugees with Character Concerns

By Sophie Manera, Principal Solicitor, and Ken Chong, Solicitor, Rothstein Lawyers

This article is adapted from a presentation given at the Migration Institute of Australia’s national conference in Sydney on 19 October 2018.

Section 501 of the Migration Act 1958 (the Act) provides the regulatory framework on which the Minister for Home Affairs (the Minister) or a delegate of the Minister may refuse or cancel a temporary or permanent visa on character grounds. The effect of this section on refugees is that they face the prospect of having their visas refused or cancelled should they fail to meet the character requirement. While s 501 also applies to non-refugees, this article will focus on (as the title indicates) persons in respect of whom Australia has protection obligations. Operating in parallel to s 501 is s 36, which sets out the specific criteria required for the grant of a Protection visa. Within s 36 is a character requirement provided for by s 36(1C) and equivalently, s 36(2C)(b), which mandate that an applicant cannot be granted a Protection visa if they are a person whom the Minister considers to be a danger to Australia’s security or, having been convicted of a particularly serious crime, is a danger to the Australian community. Accordingly, a refugee may be refused the grant of a Protection visa should they fail to meet the s 36(1C) character requirement. Section 499 of the Migration Act endows the Minister with the power to give written directions to decision-makers regarding the exercise of their powers. Accordingly, delegates of the Minister are legally bound to comply with such directions. In December 2014, the then-Minister for Immigration and Border Protection, the Honourable Scott Morrison issued Ministerial Direction No. 65 under s 499 of the Migration Act. The direction provided a framework within which decision-makers

12 | BRIEF FEBRUARY 2019

should approach their task of deciding whether to refuse or cancel a non-citizen’s visa under s 501, or whether to revoke the mandatory cancellation of a temporary or permanent visa under s 501CA. Mandatory considerations in Direction No. 65 include (but are not limited to) the best interests of minor children and the strength, nature and duration of the non-citizen’s ties to Australia. Respectively Ministerial Direction No. 75, introduced in September 2017, assists decision-makers in interpreting the character provisions under s 36(1C) and s 36(2C)(b). Ministerial Directions No. 65 and 75 both make mention of Australia’s nonrefoulement obligations – the obligation not to return a refugee or asylum seeker to a country where they face serious threats to their life or freedom. As one of the contracting states to the United Nations 1951 Refugee Convention, Australia has accepted significant obligations by virtue of Articles 32 (Expulsion) and 33 (Prohibition of expulsion or return (‘refoulement’)) of the Convention. In addition to those under the Convention,

Australia also accepts that it has similar obligations under the Convention Against Torture (CAT) and International Covenant on Civil and Political Rights (ICCPR). Together, the Refugees Convention, CAT and ICCPR form the international law basis of Australia’s non-refoulement obligations. Upon close reading of the contents of Directions No. 65 and 75, one will find that Direction No. 65 stipulates Australia’s international non-refoulement obligations, under the international treaties outlined above, as a factor which must be considered in all situations of character cancellations and refusals under s 501. On the other hand, Direction No. 75 simply states that even though a person is refused a Protection visa on character grounds under s 36(1C), non-refoulement obligations may still exist, and this does not necessarily mean that a person should be removed from Australia. A key issue then is the inconsistency between the applicability of Australia’s non-refoulement obligations between the two Ministerial Directions. Particularly, as Direction No. 65 makes it such that nonrefoulement obligations must always be considered, it considers a situation where a Protection visa application is refused and may result in indefinite immigration detention. Somewhat strangely however, Direction No. 75 appears to implicitly suggest that there is a possibility that Australia’s non-refoulement obligations could be extinguished when an individual does not meet the character criteria

provided for in s 36. Following on from that logic, this individual could then go on and be removed from Australia, despite the fact that the person could well have been found to be a ‘refugee’ as defined by the Act, or would engage Australia’s complementary protection obligations. The practical effect of the inconsistency highlighted above is that if a refugee is refused a visa under s 501, they face probable indefinite detention. While if they are refused under s 36(1C) or s 36(2C)(b) they may face deportation. The relevant statement is as follows: 4. Refusal of a Protection visa because of the specific ineligibility criteria governing such a visa does not extinguish Australia’s non-refoulement obligations in all instances. While Australia may refuse to grant a Protection visa to a person who is a danger to Australia’s security or to the community, this does not necessarily mean that a person should be removed from Australia.1 Meanwhile, the Department of Home Affairs’ Refugee Law Guidelines, which serve to "provide advice and assistance on the law relevant to the assessment of whether Australia has protection obligations", seemingly seeks to refute the highlighted inconsistency by virtue of the following extract: The inclusion of the elements of Article 33(2) in s 36(1C) of the Act does not make reference to the nonrefoulement obligation or provide an exception to it. Instead, the elements of Article 33(2) of the Refugees Convention included in s36(1C) operate such that a Protection visa applicant cannot meet the criteria for grant of a Protection visa if they are a person that the Minister considers, on reasonable grounds, to fall within the ambit of one or both limbs of s36(1C). If the person does fall within the ambit of s36(1C), the Minister must refuse the Protection visa.2 This seems to assert that s 36(1C) acts as a mere criterion on which a decisionmaker may refuse a Protection visa, and not an exception to the principle of nonrefoulement. Even stranger still, a separate set of Home Affairs policy called the ‘Complementary Protection Guidelines’ reflects a completely different line of thought than that of Direction No. 75. In reference to the criteria provided in s 36(2C)(b), which for all intents and purposes are equivalent to those under s 36(1C), the Complementary Protection Guidelines state the following:

Australia’s non-refoulement obligations under the ICCPR and the CAT are absolute and cannot be derogated from. Therefore, even if a non-citizen is considered ineligible to be granted a protection visa, Australia would be bound by its nonrefoulement obligations not to remove the non-citizen to a country in respect of which there are substantial grounds for believing that, as a necessary and foreseeable consequence of the noncitizen’s removal to that country, there is a real risk that the non-citizen will suffer significant harm. In the event that a non-citizen is ineligible to be granted a protection visa, but is owed a non-refoulement obligation, such a person will not be removed from Australia while the real risk of suffering significant harm continues, but will be managed towards case resolution, taking into account key considerations including protection of the Australian community; Australia’s nonrefoulement obligations; and the individual circumstances of their case.3 The question then becomes: why is it that the Complementary Protection Guidelines use such certain and definite language with regard to the principle of nonrefoulement i.e. "absolute" and "cannot be derogated from", whereas Direction No. 75 appears to say the contrary, that Australia’s non-refoulement obligations may be extinguished in some instances? Even the Refugee Law Guidelines and Complementary Protection Guidelines highlighted above display some degree of inconsistency between each other. If one were to raise the argument that the Complementary Protection Guidelines only apply to individuals who engage Australia’s protection obligations on complementary protection grounds, whereas the Refugee Law Guidelines only apply to refugees, one can then ask the question: why should refugees be treated any different than individuals found to be owed complementary protection? Why should refugees in particular be singled out and subject to the possibility of refoulement?

danger to Australia’s security or to the community.4 Given that "a danger to Australia’s security or to the community" has specific definitions under the Act, one may argue that the Minister’s intention in making the statement above was to subject individuals with more serious character concerns to a stricter set of considerations, and perhaps less forgiving, as compared with those of Direction No. 65. If this was indeed the guiding policy underlying Direction No. 75, then the issue of discrimination towards refugees and asylum seekers is clear, for non-refugees are not subject to s 36 and will only be refused a visa under s 501 of the Act. This means that no matter how serious a character concern a non-refugee may be, they will always be subjected to the full suite of considerations set out in Direction No. 65 (which include Australia’s non-refoulement obligations, the best interests of minor children and the non-citizen’s ties to Australia), whereas refugees caught with similarly serious character concerns would only have the benefit of the more limited set of considerations under Direction No. 75 (which does not require any consideration to be given to the risks faced by a person upon his or her return to another country). Many difficult questions have been raised in this article. Until a landmark case is able to provide a resolution, or at least some clarity to these issues, it would not be far-fetched to say that the ultimate fate of refugees and asylum seekers remain at the mercy of the discretion of decision-makers (including the Minister for Home Affairs personally), which is, quite regrettably, contrary to the fundamental legal principle of the rule of law. Endnotes 1. 2. 3.

Direction No. 75 – Refusal Of Protection Visas Relying On Section 36(1c) And Section 36(2C)(b). Department of Home Affairs Procedures Advice Manual 3, Refugee Law Guidelines, at item 14.3. Procedures Advice Manual 3: Refugee and Humanitarian – Protection visas – Complementary Protection Guidelines at item 40. Direction No. 75 – Refusal Of Protection Visas Relying On Section 36(1c) And Section 36(2C)(b).

Another issue, one that is perhaps less obvious than those highlighted above, but no less relevant to this discussion, is the apparent discrimination faced by refugees over non-refugees. Direction No. 75 provides the following in this regard: The purpose of this Direction is to direct decision-makers to refuse applications using section 36(1C) or 36(2C)(b) rather than to refer the case for consideration under section 501 where an applicant presents a 13

Can Employees be Dismissed for Making Vexatious Complaints? By Gemma Little Lawyer, MDC Legal What can an employer do if an employee makes vexatious or baseless complaints in the pursuit of some ulterior purpose? These complaints might be made within the business or organisation, for example to a supervisor, HR or the Board, or externally, for example by way of a bullying application to the Fair Work Commission. In either case, the employer will likely be required to divert considerable resources away from the business or organisation to respond to, investigate and manage the complaint, and it is likely to be a stressful and destabilising matter for the business and those affected. Moreover, care is required to avoid the risk inherent in responding adversely to such complaints. Taking disciplinary action against the employee because they have made a complaint risks a claim that the employer has breached the employee’s general protections. The Fair Work Act 2009 (Cth) (FW Act) prohibits an employer from taking adverse action against an employee because, amongst other things, they make a complaint or enquiry in relation to their employment: section 340. However, from an employer’s perspective, the vexatious nature of the complaint must be dealt with to avoid anarchic or capricious workplace practices. 14 | BRIEF FEBRUARY 2019

This article will consider how courts have approached the issue and discuss how an employer may effectively manage vexatious complaints to mitigate the risk of legal claims.

The case law: Shea The difficulties associated with managing vexatious complaints were considered by the Federal Court in Shea v TRUenergy Services Pty Ltd (No 6) [2014] FCA 271. Ms Shea alleged that her employer made her position redundant because she made various complaints, including that she had been sexually harassed by the Chief Financial Officer on a work trip, that the Chief Executive Officer had engaged in sexual misconduct towards other employees, and that the investigation of her complaints was deficient. TRUenergy argued that a number of Ms Shea’s complaints were not valid complaints made in good faith, but rather

“grave accusations of serious misconduct by other employees which were largely based only on rumour or gossip.” Ms Shea, on the other hand, argued that her complaints were genuinely made in good faith but that, in any case, the general protections provisions of the FW Act did not require complaints to express a bona fide grievance, be capable of proof or substantiation, or be made in good faith. In this context, Judge Dodds-Streeton found that, to be an exercise of a workplace right within the meaning of the FW Act, a complaint: •

need not be factually correct, substantiated, proved or ultimately established; but

•

must be genuinely held or considered valid by the complainant; and

•

must be made in good faith and for a proper purpose.

A 'proper purpose' when making a complaint was considered to be “giving notification of the grievance, accusation or finding of fault so that it may be, at least, received and, where appropriate, investigated or redressed.”

While the object of the general protections provisions is to protect employees from retribution because they have made a complaint in relation to their employment, Dodds-Streeton J stated that it does not follow that the making of false, baseless, unreasonable or contrived accusations invokes the statutory protection. In Dodds-Streeton J’s view, a complaint made for some ulterior purpose or collateral advantage would not invoke the statutory protection.

part of the reasoning in the decision to make Ms Shea’s position redundant. As such, Ms Shea’s general protections claim failed.

Further, Dodds-Streeton J noted that, to protect its employees, an employer must discipline or restrain an employee who is making baseless and damaging accusations of misconduct against other employees in an abusive or threatening manner. The statutory protection should not operate to secure immunity from the consequences of misconduct.

•

“considerable care” needs to be exercised before constraining the meaning of the exercise of a workplace right to make a complaint; and

•

“to too readily imply” the need for the complaint to be genuine or bona fide may discourage those who may have mixed motivates for making a complaint.

Dodds-Streeton J ultimately found there was no reasonable basis for a number of Ms Shea’s complaints, and that she did not genuinely hold those grievances or communicate them in good faith or for a proper purpose. Therefore, these complaints were not an exercise of a workplace right within the meaning of the FW Act. In any case, Dodds-Streeton J found that the complaints did not form

Ms Shea appealed the decision to the Full Court of the Federal Court: Shea v EnergyAustralia Services Pty Ltd [2014] FCAFC 167. The appeal was dismissed. However, in its judgement, the Full Court cautioned that:

However, because the Full Court found that Ms Shea’s complaints were not part of the reasoning in making her position redundant, it was not necessary to decide whether Dodds-Streeton J was correct in finding that a complaint must be genuine to be the exercise of a workplace right within the meaning of the FW Act.

Post-Shea – the drawing of fine lines Following the Shea cases, the issue remains unresolved. In light of the Full Court’s caution, courts have been unwilling to find that a complaint must be genuine to be considered the exercise of a workplace right. However, as the following cases demonstrate, it appears that courts are prepared to make fine and, at times, tenuous distinctions between the vexatious complaint and the consequences flowing from it, such as a loss of trust and confidence, resulting in the general protections claims flowing from such complaints failing. The following three cases are illustrative of this. Wilson v Victorian Aboriginal Health Service Cooperative Limited [2015] FCCA 3237 Mr Wilson brought a general protections claim alleging that his employer terminated his employment because he made complaints. These complaints included that clients of the employer’s service were bullying, harassing and racially discriminating against him when they talked, laughed and looked at him when he walked through the waiting

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area, and that the Chief Executive Officer bullied, victimised and racially discriminated against him by not appropriately dealing with his complaints. An independent investigation into Mr Wilson’s complaints found that they had no basis in fact, that at least one complaint was “nothing more than fabrication” (and which Mr Wilson admitted he knew was false), and that the complaints were “completely vexatious and trivial”, motivated by a desire to damage the reputations and careers of those he complained against. The employer defended the claim on the basis that it terminated Mr Wilson’s employment because of gross misconduct, consisting of making false claims against senior members of the management team. Judge Riley considered the Shea cases and concluded that, in light of the Full Court’s caution, he ought not to apply Dodds-Streeton J’s findings. Rather, Riley J considered that the “better approach” was to proceed on the basis that Mr Wilson’s complaints were exercises of workplace rights within the meaning of the FW Act. However, Riley J found that the employer dismissed Mr Wilson, not because he made complaints, but because the complaints he made “were worded in such a way that they destroyed any possibility of a viable working relationship with senior management”; and that the employment relationship had broken down irretrievably. Mr Wilson’s general protections claim was dismissed. Mikulic v Ecolab Pty Ltd [2017] FCCA 146 Ms Mikulic alleged that Ecolab dismissed her because she made complaints about her supervisor engaging in bullying behaviour towards her. An investigation into Ms Mikulic’s complaints found them to be unsubstantiated. Ecolab submitted that Ms Mikulic’s complaints were not made in good faith but were a tactical response to management of her performance. Evidence in support of this submission included an email from Ms Mikulic to a friend which stated: They are trying to get rid of me but I am giving them a hard time. YOU KNOW HOW DIFFICULT I CAN BE ESPECIALLY WHEN I THINK THAT I AM RIGHT. Judge Cameron stated that it was not necessary to determine whether Ms Mikulic believed in her complaints or not. Cameron J accepted, without deciding,

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that the complaints Ms Mikulic made were an exercise of a workplace right within the meaning of the FW Act; while noting that “the meaning of ‘complaint’ is not finally settled”. Ultimately, Cameron J held that Ms Mikulic’s complaints evidenced two fundamental problems: •

an inability to work harmoniously with her supervisor and thus to function effectively as a member of the team; and

•

a propensity to make allegations against her supervisor that were not, upon inquiry, made out.

In relation to the latter issue, Cameron J considered that it was not unreasonable for Ecolab to conclude, as it did, that Ms Mikulic was not being truthful and accurate in her complaints. As such, Cameron J accepted that Ecolab had lost trust and confidence in Ms Mikulic. Cameron J held that these were the reasons motivating Ecolab’s decision to dismiss Ms Mikulic, rather than because she made complaints. Ms Mikulic’s general protections claim was dismissed. Morley v Monza Imports Australia Pty Ltd [2018] FCCA 622 Ms Morley claimed that Monza dismissed her because she made complaints, including about inappropriate behaviour by an employee (Mr P) towards her (in 2012) and other employees (in 2015) at work Christmas parties. Ms Morley’s complaints about the inappropriate behaviour were investigated and found to be unsubstantiated. During the course of the investigation, it came to light that Ms Morley harassed, intimidated and pressured employees to corroborate her complaints and to raise other complaints. These employees said that they felt Ms Morley dramatised Mr P’s behaviour and that they did not consider that the matter required investigation. In this context, Judge Reithmuller reiterated that the mere fact that a complaint is not substantiated does not make it a complaint that was not genuinely held or otherwise made in good faith. However, Reithmuller J went on to state that it is easy to imagine some complaints being so frivolous or vexatious, or simply made for ulterior motives, that the conduct of the employee could not be intended to be protected by the FW Act. Monza argued that it dismissed Ms Morley, not because she made complaints, but because of her

unwillingness to accept the outcome of the company’s investigation, and the pressure she put on other employees to continue to agitate the complaints. Ultimately, Reithmuller J held that “the making of complaints per se” was not a reason for Ms Morley’s dismissal, but rather her dismissal was by reason of her harassment and intimidation of staff associated with her complaint and her inability to reasonably engage with the company on the outcome of the investigation. Ms Morley’s general protections claims was dismissed.

Takeaways for employers Where does this leave an employer who is managing an employee who makes damaging, baseless or vexatious complaints for some collateral advantage? Whether a complaint must be genuinely held or made for a proper purpose for the purposes of a general protections claim is unresolved and, in the absence of affirmative authority, courts are unwilling to restrict the operation of the general protections provisions in the FW Act in this way. However, not all is lost. There is an obvious need to balance the legitimate interests of both employees and employers in a manner consistent with the objects of the FW Act and the general protections provisions. The courts do recognise the irrationality of an employer being unable to take disciplinary action, up to and including termination, against an employee who makes vexatious complaints. Courts appear willing to draw a distinction between the complaints and matters closely connected to or resulting from the complaints, for example by having regard to the complaints as a basis for determining that the employee is unable to work with supervisors, management or within a team; or to conclude that the employer has lost trust and confidence in the employee; or that there has been an irretrievable breakdown in the employment relationship. Taking disciplinary action against employees who make vexatious complaints is not without risk; however, with careful management and a strategic approach focussed on assessment of the employee’s ability to work within the company/organisation or with key employees, rather than on the employee’s complaints, the risk can be mitigated.

Rhetoric and Reasoning: Contributions to the Common Law By The Hon Susan Kiefel AC Chief Justice of Australia

A speech given to the Hellenic Lawyers Association International Conference, Rhodes, Greece, 9 July 2018

Methods of logical argument and the art of persuasion through reason were at the heart of the philosophical enquiry which was founded and developed by the ancient Greeks. Aspects of them are to be found in the processes of argument and persuasion which are used in common law courts and in the methods employed by common law judges. In these respects the common law is the beneficiary of the ideas and writings of Plato, Socrates and Aristotle, amongst others, over two millennia ago. Other influences of the dialectical methods they employed have been felt by the common law more indirectly. They would be used by three groups of scholars in Europe in the period from the 12th century to the 18th century first to shape a body of law, then to synthesise Greek philosophy and Roman law and then to disperse the resulting doctrines to the civilian and the common law.

The dialectic method Skills of argument and persuasion were important in the times of the ancient Greeks. The nature of participative democracy in Athens and the other city-states required citizens to take part in political debate. This required the majority of citizens to listen to the speeches of orators and decide between them. They might be required to speak on their own behalf if they came before a judicial assembly, which might consist of a jury of law and fact comprising more than 200 citizens. It was therefore necessary for some citizens to receive instruction in the skill of argument. It is not necessary to survey the differences of purpose which informed the methods employed by the sophists on the one hand and philosophers such as Socrates on the other.

Socrates’ method of argument was reasoning through dialectic – a dialogue between the proponents of opposing views. The hallmark of this method was that it concerned a specific problem. Techniques of persuasion were employed to bring the audience to the desired point of view or, at the least, to conclude that it was acceptable. Its possible application to the adjudication of legal disputes is evident, as are the techniques which were employed. They involved: (1) refutation of an opponent’s thesis by drawing from it, through a series of questions and answers, consequences that contradict it or that are otherwise unacceptable; (2) deriving of a generalisation – again by questions and answers – from a series of true propositions about particular cases; and (3) definition of concepts by the techniques of distinction, via repeated analysis of a genus into species, species into subspecies and so on. It is the second, inductive reasoning, which Aristotle described as involving a passage from the particular to the universal which may be most familiar to our judges and lawyers. He considered that inductive logic is preferable to deductive logic in dialectical reasoning for the reason that it is clearer and

more convincing to people. This may in part account for its use by judges on occasions when seeking to make a new rule. Aristotle’s refinement of the dialectic method involved, amongst other things, drawing a distinction between reasoning from premises which are known to be true (such as “all men are mortal”) and reasoning from premises that are accepted among reasonable and reputable persons but may be debateable (such as “man is a political animal”). The distinction to which he pointed is that the first may be apt to demonstrate a truth but the latter cannot, because its premises are open to dispute. Certainty, such as may be required by science, cannot be reached. In his view it was this feature which made inductive reasoning the province of dialectical argument. It also renders it suitable to the law.

Induction and deduction In ancient Athenian democratic courts there was no concept of precedent. Whilst our system does evolve rules which are followed, it cannot provide

an off-the-shelf answer to every legal problem. As Justice Windeyer observed in Skelton v Collins, it is simply not true to think that the common law is composed of a body of rules waiting to be declared and applied in a given case. In difficult cases which present novel situations there may be no rule which applies to the particular circumstances. It might also be the case that if an existing rule is applied to the particular circumstances an unjust result would follow. In either case, a remedy might not be possible. In situations such as this the solution may be found by the common law courts in accepted judicial methods of extending the law or creating new legal rules. The processes of induction and deduction may be utilised to that end. Recently in PGA v The Queen, it was said that the creative element of inductive and deductive reasoning in the work of the courts includes taking the steps identified by Sir Owen Dixon in his well-known address, “Concerning Judicial Method”. These are: extending the application of settled principles to new cases; reasoning from settled legal principles to new conclusions; and deciding that a category is not closed and that unforeseen circumstances might be included in it. In Home Office v Dorset Yacht Co Ltd, Lord Diplock described induction as the first step of the judicial enquiry towards a new rule. Paraphrasing to an extent his explanation of it: “In all the decisions that have been analysed a duty of care has been held to exist whenever the conduct and the relationship possessed each of the characteristics A, B, C, D, etc., and has not so far been found to exist when any of these characteristics were absent.” The second step of judicial analysis he said, is deductive and analytical. At this point the proposition is converted to: “In all cases where the conduct and relationship possess each of the characteristics A, B, C, D, etc., a duty of care arises.” The rule is stated. The features of the case at hand are then examined to see if they possess these characteristics and, if they do, a duty of care might be held to arise. The process may not be quite as black and white as these statements suggest. Induction and deduction are, after all, acknowledged to have a creative element. A judge needs to have a general idea of what kinds of acts or relationships ought to give rise to a duty of care. The rule proposed will have a kind of shape.

18 | BRIEF FEBRUARY 2019

Especially is this so with respect to inductive reasoning. This intuitive aspect of the judicial method is perhaps exemplified by the reasons given by Lord Atkin in Donoghue v Stephenson, which has been regarded as a leading example of the use of inductive reasoning. The question for the House of Lords in that case, you will recall, was whether a manufacturer should be held liable to the ultimate consumer of its product for injuries suffered by consumption of it. Mrs Donoghue had become ill after drinking ginger beer in which a snail had been decomposing. Liability at this point in English law was generally limited to the initial purchaser from the manufacturer, by reference to the contract between them. The issue was whether liability should be extended beyond that. Lord Atkin surveyed the decided cases. He remarked that it was difficult to find in the English authorities statements of general application defining the relationships between parties that give rise to a duty of care. The courts had engaged in an elaborate classification of duties with respect to property and made further divisions as to ownership, occupation and control, and drawn distinctions based on particular relationships such as manufacturer, salesman, landlord and tenant, but no general rule had been stated. And yet, he said, logically there must be some element common to the cases where liability is established. There must be some “general conception” of relations giving rise to a duty of care. He said that “[t]he rule that you are to love your neighbour becomes in law, you must not injure your neighbour”. He went on, more controversially and creatively, to identify who in law might be one’s neighbour. An earlier example of this method of reasoning is Blackburn J’s judgment in Rylands v Fletcher. It was there reasoned that a general rule could be discerned from a variety of cases concerning the duty of owners of land. Whether things brought onto land be beasts, water, filth or stenches, he said, a person is prima facie answerable for all the damage done by them if they escape. Closer to home, in Australian Safeway Stores Pty Ltd v Zaluzna, it was said that although the decided cases had given different categories of duties owed by occupiers to different types of entrants, they were merely an expression of a more general duty which applies to the particular situation. It will be observed that inductive reasoning is used in tort law, probably

for the reason that novel situations more often arise in that area of the law. The method is more readily capable of application in an area of law which deals with highly specific fact situations. It may not be so useful in an area such as criminal law. Lord Simon of Glaisdale said as much. He accepted that whilst inductive reasoning may be utilised to develop general principles of criminal law, “special caution” is required. He considered that an “inductive, syncretic process is apt to give a special dynamism to a rule of law”. But, he said, the potential of dynamism means that care should be exercised in using a process of generalisation in criminal law. Criminal law jurisprudence tends to proceed more cautiously from case to case, to define categories and state principles with a close regard for authority. It may be observed that the method he mentions is also a reflection of the dialectical method.

Rhetoric Of course judges have only reached the point of reasoning to a conclusion after hearing and reading arguments put by the parties. The method of adjudication in common law courts involves, in the first instance, an argumentative process. In a novel case the advocate for the person claiming the remedy seeks to persuade the court that the existing law should be extended or developed; the advocate for the defendant seeks to dissuade the court from taking that course by pointing up difficulties in the plaintiff’s argument or consequences which might make its acceptance unattractive. To an extent they are involved in rhetoric, at least as that word was originally understood. Dialectic argument produces persuasion, Aristotle said. He may not have been the first proponent of the art of rhetoric, but he is regarded as the most systematic and complete in his approach. He compared “artful” to “artless” proofs in argument. Rhetoric he defined as the ability to see the available means of persuasion and then to employ them. The first method of persuasion which he identified seems admirably suited to the courtroom. It involves the credibility of the speaker. It is well known that a barrister is more likely to be effective if the court takes the view that he or she is reliable and therefore more likely to be correct. In what some have called the golden age of the English Bar, Sir Edward Marshall Hall is said to have been amongst the greatest of its advocates. He was by all accounts a tall, handsome man with a

melodious voice. He was able to instil in jurors the conviction that he actually believed the case that he was presenting to them. Therefore, to reject his argument was tantamount to saying that he was dishonest and they felt unable to do so. The second method of persuasion is sensible. It requires the person putting the argument to take account of the emotional state of the audience. This might be approached in a number of ways in a courtroom setting. Experienced counsel will be aware that judges expect argument and the examination of witnesses to be conducted with tact and courtesy. It is also to be expected that counsel will be alert to the concerns which judges convey about aspects of the argument. This requires judges to participate in the dialogue. Sir Rufus Isaacs, later Lord Reading, was said to have no equal at the bar for persuasive reasoning. He was unerringly courteous and fair. Therein lay his success. An example is given of a controversial case which he was prosecuting as Attorney-General. The evidence given by the accused was of critical importance. Isaacs’ crossexamination was described as deadly. During what was a lengthy crossexamination it is said he never once raised his voice, never argued with the accused, never interrupted him and scarcely put a leading question. A strong case became a conclusive one.

Murray Gleeson, who is acknowledged as having been a great advocate, had a similar style. He has often counselled the Bar that the art of persuasion requires sensitivity, tact, objectivity and selectivity. He described sensitivity as awareness of the considerations likely to influence the person sought to be persuaded. Tact he explained as requiring an appreciation of the likely response of the audience to particular levels of argument. Which brings me to the third method of persuasion which is effected through the argument itself. The proposition in question is rendered acceptable by persuading the audience that it is a view held by all, or at least the most wise. This is a technique barristers commonly deploy to persuade judges. In the early years of the High Court, Justices Isaacs and Higgins were the subject of criticism by a newspaper about the rhetorical language with which they “thought fit to clothe their dissenting judgments”. Professor Sawer has suggested that Justice Isaacs was given to rhetoric and to repetition. One such occasion involving the use of rhetoric concerned the question whether an action which was available to a husband for the loss of his wife’s affections should also be made available to a wife for the loss of her husband’s. In each case the defendant would be the person who stole the spouse away. Justice Isaacs appealed to the common

experience and modernity of his reader in arguing that there was no logical reason to deny the action to a wife. After quoting some passages from The Taming of the Shrew, he said: “There is no need of antiquated reasons springing from a primitive state of civilisation originally impressed into service to attain justice, later abandoned in favour of better reasons, and today utterly repugnant to the present conditions of society. Still less is there any justification for rummaging among the ruined and abandoned structures of the past to find materials for erecting a barrier against the wife’s claim for redress, when a clearly recognized principle of law admits it.” Hardly any lawyer would be unfamiliar with the use of rhetoric by Lord Denning in the opening paragraph of some of his judgments, usually in tort cases: “It was bluebell time in Kent. Mr and Mrs Hinz had been married some 10 years, and they had four children, all aged nine and under. … … Mrs Hinz had taken Stephanie, her third child, aged three, across the road to pick bluebells on the opposite side. There came along a Jaguar car driven by Mr Berry, out of control. A tyre had burst. The Jaguar rushed into this lay-by and crashed into Mr Hinz and the children. Mr Hinz was frightfully

injured and died a little later. Nearly all the children were hurt. Blood was streaming from their heads. Mrs Hinz, hearing the crash, turned round and saw this disaster.” This is, unashamedly, an appeal to the reader’s emotions. It might be thought that in more recent times courts rarely use rhetoric of the kind employed in these cases. However, in Mabo, Justices Deane and Gaudron openly acknowledged that the language used in their reasons was “unusually emotive for a judgment in this Court” and sought to explain that it was necessary to describe “the dispossession of Australian Aborigines in unrestrained language”. It was necessary, they said, because “the full facts of that dispossession are of critical importance”. The original conception of rhetoric in dialectic argument was not an appeal to emotion. It was an appeal to reason. It may be, in part, that because rhetoric has come to be understood as emotive that the term now carries negative connotations. It did for Plato too who despised some sophists, would-be teachers of rhetoric, as mere charlatans and likened even eloquent and persuasive orators such as Pericles to a mere pastrycook stuffing the masses with sweetmeats, which is to say, appealing to their baser emotions. Rhetoric is now defined in the Oxford Dictionary not only as “the art of effective or persuasive speaking or writing” but also as language which is “often regarded as lacking in sincerity or meaningful content”. The prevailing view, it is said, is that rhetoric is “largely a trick to be exposed and shunned”. The authors of these remarks are members of the New South Wales Bar who are editors of a recent collection of essays the purpose of which is to encourage the rediscovery of rhetoric in advocacy in the courts. The rhetoric of which they speak is the technique employed by the ancient Greeks. There may yet be hope for its recovery.

The further legacy Professor Harold J Berman explains that dialectic reasoning was imported into Rome by the Stoics in the republican period, in the second and first centuries BC. However, their view of its use differed from that of Aristotle. They saw it as a method of analysing arguments and defining concepts by distinction and synthesis rather than as a method of arriving at first principles. It was used in Roman legal institutions but not as part of Roman law. Cicero is said to have admired the Greek methods. He, like many well-educated 20 | BRIEF FEBRUARY 2019

persons of his time, was familiar with Aristotelian philosophy and methods of argument. In fact he studied in Rhodes. He considered Roman law to be too focused on individual cases and to have rules of narrow application. He argued for a more complex system of law with broader, more abstract rules. But he was an orator and he was unable to influence the jurists. His suggestions were apparently met with polite silence.

philosophy and Roman law were then united more closely than they had ever been or ever will be. By this time the writings of Thomas of Aquinas had become influential. Questions which they raised about justice and Aristotelian principles were applied to Roman law. In this way Roman law was organised and presented as a commentary on the Aristotelian and Thomastic virtues of justice.

The philosophy and methods of dialectic reasoning could have been entirely lost as interest in the ancient Greeks waned over the centuries. The bringing together of Roman law, as later developed and codified, and Greek philosophy was not to occur for over a thousand years in the universities of western Europe.

The conclusions of the late scholastics were in turn disseminated throughout Europe in the 17th and 18th century by the northern natural law school, founded by Hugo Grotius. This occurred even though interest in Aristotelian philosophy was in decline. The members of the school may have been vague about the philosophical underpinnings of these conclusions, but they nevertheless drifted on over time and place.

Maitland called the 12th century “a legal century”. Others consider that it marked the beginning of a Western legal tradition. At this time there was no body of rules called the law and little thought had been given to values or concepts which might inform any kind of system of law. Scholars of this period set about creating a whole set of rules which could be used to interpret each part of the whole. Three ingredients are identified as then present and necessary for the creation of this body of law. The first was the rediscovery in an Italian library of Justinian’s Digest, written six centuries earlier. This provided an extensive body of Roman law as a basis for the second ingredient – the scholastic method of analysis and synthesis. The third was the context in which this took place: the universities which had now been established and at which law was being taught. Professor Berman explains that the scholastics presupposed the absolute authority of some texts, such as the Bible and the Digest, but at the same time acknowledged gaps and contradictions in them. They proceeded to summarise the texts, close the gaps and resolve the contradictions. The method was called “dialectical” in the 12th century sense, which was to seek the reconciliation of opposites. The scholastics differed from the Greek philosophers in their belief not only in there being universal legal principles but also in the nature of those principles. Nevertheless they carried Aristotle’s dialectics over into the body of law, achieving a level of synthesis. A further synthesis was to be achieved in the 16th and 17th centuries by the late scholastics. Professor James Gordley says that the traditions of Greek

Professor Gordley suggests that the late scholastics’ conclusions, which had been informed by Aristotelian thinking, were imported into the common law. The English treatise writers borrowed doctrines from the natural lawyers such as Grotius and Pufendorf and from French jurists whom they had influenced, such as Domat and Pothier, who were influential in the drafting of the French Code Civil. The doctrines the treatise writers borrowed were then, in turn, borrowed by common law judges. He gives as an example Blackstone’s definition of a contract as “an agreement upon sufficient consideration to do or not to do a particular thing” and says that there was nothing novel about it. Blackstone was not in fact describing English law, but rather natural law, informed by much earlier thinking.

Conclusion Western civilisation owes much to the ancient Greeks and their philosophy of persuasive argument and rational reasoning. Their methods inform much of the approach of common law courts to adjudication. Here today in Rhodes, where Cicero studied, we can reflect upon the possibility he saw of its wider influence on substantive law. We can be grateful that later scholars would return to those methods of reasoning in creating bodies of law which in turn have shaped some of our legal doctrines. More broadly, we might agree with the observation that the legacy of the Greeks to Western Philosophy was Western Philosophy.

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The Law Society Brings Design Thinking to the Legal Profession By Nick Lim Management Consultant, Strategy, Culture and Organisational Transformation

The Law Society is embracing design thinking as part of our core professional education offering in 2019. As the peak professional association for the legal profession, we continue our commitment to extending knowledge and promoting collaboration with new people and the propagation of new ideas. Nick Lim, Management Consultant, Strategy, Culture and Organisational Transformation is presenting our design thinking morning in February and presents his views on design thinking in this article. Over the past 15 years we have observed many of the well-known industries become subject to transformation: the music industry with iTunes and Spotify, marketplace with Amazon, transport industry with Uber, entertainment with Netflix, and accommodation with Airbnb to name a few well-known brands. There are many factors that have led to the disruption and transition of age-old industries. These are common products of a digital revolution such as the speed of the internet, increase in data storage, and connectedness of disparate markets. Many assume that these transformations are isolated to technologically pliable industries and there are still businesses that are protected from a transformation that these have encountered. I challenge this assumption. Placing this argument aside for the meantime, we cannot deny the impact that these transformed industries have had on customer and employee expectations. For instance, music anytime or anywhere, products at the click of a button, transport just in time, unlimited entertainment without leaving my home and authentic travel experiences create an overwhelming expectation of immediacy. What about the noble health, accountancy and legal professions to name a few? Will these be ripe for similar transformation as we have seen in other more transactional industries or are they shielded? We are observing transformations already occurring with online services, robot process automation of technical records and services and platform business models. This

22 | BRIEF FEBRUARY 2019

race will continue to exploit technological advancements whether we like it or not and disruption is on the precipice for many of these professions. However, I believe that the new race for innovation for the technical nobility is not via technology but with intimacy, connectedness and uniqueness. Customers are overwhelmed with the spam they receive on social media, where advertising second guesses what they need. They are disenchanted by their relationship with a business as they feel more like a number than ever before. This is why I believe that people, not customers, are looking back to the ‘golden era’ where personalisation was not derived through a computer but by a relationship and a human network. Further to this, big business has observed impacts to employee loyalty. Millennials do not want to be in the same job for more than five years and it is commonly understood that they will have more than five career changes in their lifetime. Millennials do not see the value in a career that takes their life but they want to build a lifestyle within their careers. As big industry tries to grapple with these changing expectations, they have explored new opportunities. This includes workplace flexibility, culture change, new office layouts, faster job cycles, and mentor programs to name a few. To me, these point to similar markers in the world of customer expectations: intimacy, connectedness and uniqueness. The technical industries and professions must not shy away from creating

experiences that embrace intimacy, connectedness and uniqueness. This is increasingly important since they are service driven. Embracing innovations in these areas for both customer and employee experiences could pry open a new era of transformation. Who better to transform the customer and employee experiences than the people that have served them for generations? A key enabler in this transformation is Design Thinking. The Design Management Institute irrevocably proves the impact of a designer’s toolkit on business results noting a 219% difference in market value for businesses that embrace design thinking. So, why not apply these same tools to transform the customer and employee experience in the technical industries and professions? Andrea Perry-Petersen recently referenced the five design phases in her article in Lawyers Weekly: ‘Could a designer’s mindset bridge the justice gap?’ • Empathise with and seek input from those who use your services or products • Define your users’ needs and problems, and your insights about the issue • Ideate through challenging assumptions and imagining innovative solutions • Prototype to start creating solutions – build to think and learn • Test solutions with users, seek feedback and adjust I believe these tools could create an experience revolution for technical industries and professions and I’m passionate about supporting organisations to explore their options through creative measures. I will be speaking on and facilitating a workshop for the Law Society of Western Australia and its members on 22 February 2019 to explore Design Thinking and its applicability to the legal industry now and into the future. We are really excited about creating a collaboration of minds to focus on the subject of designing flexible work practices through the methodology of design thinking.

Find out more at lawsocietywa.asn.au/ event/cpd-summer-getaway-designthinking.

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

SUMMER GETAWAY

Friday, 22 February 2019 University Club, Crawley WA With the scenic university campus as the backdrop, the Law Society is excited to announce the 2019 CPD Summer Getaway. Presenting a diverse range of sessions that will deliver relevant content for everyone. Substantive learning is in the mix, along with thought-provoking discussion on professional skills, practice management and ethics. Start the day by testing your curiosity with a design thinking workshop. Generate and implement innovative, effective and common sense solutions to the complex challenges lawyers face.

Visit our website to register today lawsocietywa.asn.au/cpd-seminars

PICK FROM TWO GREAT EVENTS ON THE DAY Design Thinking: Designing a Flexible Workplace 3 points Professional Skills

Essential Topics for the Busy Lawyer 1 point Professional Skills 2 points Substantive Law 1 point Ethics 1 point Practice Management

Sponsored by

LAW SOCIETY EVENT

End of Year Celebration at the Westin With thanks to our sponsors

On Wednesday, 5 December 2018, the Law Society was delighted to welcome over 200 guests from the legal profession to the fabulous Westin hotel in Perth for our End of Year Celebration. Law Society members, representatives from the judiciary and special guests enjoyed the excellent hospitality on offer, including delicious canapĂŠs and beverages. Contemporary music, provided by a live trio, added to the relaxed and convivial atmosphere.

24 | BRIEF FEBRUARY 2019

It was the perfect occasion on which to celebrate a successful year for the Law Society and to usher in the holiday season. Thank you to our generous sponsors, Premium Sponsor Bankwest and Supporting Sponsors Glen McLeod Legal and PEXA. You can view more photographs from the event at the Law Societyâ&#x20AC;&#x2122;s Facebook page: facebook.com/ LawSocietyWA.

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Photos: 1. Hayley Cormann, Immediate Past President – The Law Society of Western Australia 2. His Honour Judge Hylton Quail; Hayley Cormann, Immediate Past President – The Law Society of Western Australia and Konrad de Kerloy, President-elect – Law Council of Australia 3. Paul Evans, Quinn Emanuel Urquhart & Sullivan; Ros Fogliani, State Coroner – Coroner’s Court of Western Australia; The Hon Justice Michael Barker, Federal Court of Australia; Shane Melville, Principal Registrar – District Court of Western Australia and George Kingsley, Registrar – District Court of Western Australia 4. Charlotte Wallace, Senior Member - State Administrative Tribunal; and His Honour Judge Timothy Sharp, Acting President - State Administrative Tribunal 5. The Hon Peter Quinlan, Chief Justice of Western Australia; Hayley Cormann, Immediate Past President – The Law Society of Western Australia; His Honour Kevin Sleight, Chief Judge – District Court of Western Australia; The Hon Justice Andrew Beech, Supreme Court of Western Australia; The Hon Justice Bruno Fiannaca, Supreme Court of Western Australia 6. Myra Quartermaine, Nicholas Steinsvaag; Tara Connolly; Matthew Keating; and Stacy Singh of Valenti Lawyers; 7. Joshua Willox; Matt Webster; Martin Dobson; Penny Moore; and Daniel Costanzo of Moray & Agnew 8. George Kingsley, Registrar – District Court of Western Australia; Shane Melville, Principal Registrar – District Court of Western Australia; and, Magistrate Catherine Crawford, Children’s Court of Western Australia

9. Mark Webster, Moray & Agnew 10. Matthew Keating and Mark Webster of Moray & Agnew 11. Natalie Connor, Ernst & Young; Haley Graydon, DLA Piper Australia; Andrew Bartlett, PricewaterhouseCoopers; and Fiona Poh, DLA Piper Australia 12. Melanie Callow, Vix Technology; Martin Udall, Martin Udall & Associates; Sean Gomes, Leaker Partners; and Varun Ghosh, Francis Burt Chambers 13. Anthony Jarvis, Opportuna Legal; Hayley Cormann, Immediate Past President – The Law Society of Western Australia; and Brad Smith, Bankwest 14. Nicholas Steinsvaag, Valenti Lawyers; Hayley Cormann, President – The Law Society of Western Australia; and Brad Smith, Bankwest 15. Amy Fels, Kerr Fels Pty Ltd; Nicola Jansen; Leach Legal; Denby Kerr, Kerr Fels Pty Ltd; The Hon Justice Stephen Thackray, Chief Judge, Family Court of West Australia; and Dominique Hansen, Law Access Limited 16. Tim Kavenagh, Kavenagh Legal; Phylicia Fenwick, SFP Law Pty Ltd; and, Christopher MacCarthy, The Australian National University

McIntyre Trials and Tribulations: Interview with Iain McIntyre

Iain McIntyre is a self-starter. He has started university clubs and businesses, is an EDM enthusiast and is that person you either know, or know of. The Young Lawyers Committee speaks to Iain about how he left a career path in law to become a co-founder of HUMM Technology and what his thoughts are regarding personal, commercial and legal issues in the startup world. Youâ&#x20AC;&#x2122;re a co-founder of a neurotechnology startup called HUMM Tech and are based in San Francisco now. Can you take us through your journey? I was once a law student at UWA. When I was studying law, I put my heart and soul into it. However at the same time, there were several things that I went through that made me realise that some 26 | BRIEF FEBRUARY 2019

of the things I learnt and which made me good at law went opposite to what I also enjoyed, which is running my own business. While I was at UWA, I was also running my business in event management, and got a taste for entrepreneurship. Therefore at the time I joined HUMM, I already had some sort of business experience, albeit at a different place with different people and at a different scale.

By Fiona Poh

Essentially, I went to school with the founding team of HUMM. Some I knew from high school and others, while I was at university. UWA was involved in doing brain research, and in particular, looking into the topic of how to influence the brain from the outside and using priming motor circuits and magnetic therapy to aid recovery from spinal injuries from car accidents. I realised that this was an opportunity where technology could not just help people recover brain function from an injury, but can help them improve their brain performance and learning in general. I would say that co-founding HUMM Tech was possible because I started a club at UWA called EMAS. I met my other cofounder, Chris Norman, who had started the same club at Curtin University, and

that’s how I became good friends with him. Chris later went to NASA to work as an engineer, and by the time he came back, I’d already been talking to Ahmud Auleear and Tim Fiori about starting a neurotechnology startup. By the end of 2017, everyone had put down what they were doing to go into business together and in June 2018, HUMM Tech relocated from Perth to San Francisco.

So, everyone on your team was a friend prior to starting the company. Did that lead to challenges? What advice can you give to someone who might not know the ‘right’ people to go into business with? Nobody really knows the perfect solution. I think it’s important that although we all knew each other, we didn’t make decisions based on our friendship and we’re all on the same page. I think if everyone is trying to make something possible, then you’d find a way to solve the problem. You expose yourself to a lot of risk by going into business with friends, but there are no general rules either way and

there’s no single solution. However in my situation, I put myself out there, met as many people as I could and did as many things as I could with my life (such as running university club at the same time, getting exposed to a lot of technical people, as well as working a legal job, and socialising!). I think the biggest barrier is not knowing enough people. If you put yourself out there, you’re guaranteed to find the right person.

What was going through your mind when you gave up a career pathway in the legal profession to work on your own biotechnology startup? Deciding to stop doing what you were doing is never easy. Another co-founder had just gotten married, another was a junior doctor at a hospital, and we had all consciously decided to choose a path other than a career path which could obviously be very lucrative. I’d have to say that the having worked on the idea for eight months and being exposed to help and support from the Spacecubed community made it much easier to take that step.

How did you view your legal background? I’d say that you have to unlearn a lot of your legal learning. You must take a rapid view of things and avoid getting too caught up in the detail of the legal documentation. Sometimes when I sign a contract, there’re definitely clauses in where things can go wrong. However you can’t focus too much on that. It’s infinitely more important to network with the right people around you. In law, we are taught to rote learn, to memorise how to research and go into exam with 400 pages of notes. This encourages a cautious approach. Conversely, my colleague who was a junior doctor, worked in a world where if you’re not keeping up with the contemporary research, then your patient might die. A lot of learning is on the fly, similar to what it’s like in a startup. Law makes you good at being critical and picking things apart – that’s the definition of being a good lawyer! But that part of me has to be put to rest sometimes in entrepreneurship, I have to believe in what I’m doing.

Top performing law students receive College of Law Awards Twelve students have been recognised for their outstanding achievement in the 2018 Practical Legal Training program. Outstanding Achievement in Ethics – Emily Archer Outstanding Achievement in Civil Litigation – Nigel Siegwart Special Mention for Outstanding Achievement in Civil Litigation

Outstanding Achievement in Property Practice – Emma Cummings Outstanding Achievement in Commercial and Corporate Practice – Christopher Burch Award for Professional Excellence

• Matheo Vincuillo

• Lynn Wolfe

• Larissa Welmans

• Gabrielle Vuleta

• Daniel Gould

• Catherine Wallace

• Andrew Weston

• Rickelle Kenny

We congratulate each student and wish them well in the next stage of their legal journey.

How long did it take for HUMM to develop its first prototype?

What does your typical day look like, if there’s one at all...?

A long time! The way that we understand the brain has really changed, even in the past decade. This technology is in itself, an incredibly complicated thing, and a lot of groundwork is needed in order to do anything functional.

We work weekdays, sometimes weekends, and sometimes we give ourselves time off. But when you’re trying to grow fast, you’re meeting sometimes 60 people a week, you’re networking really fast and you just have to throw the traditional working week out the window. During the day we’d be doing anything from planning to executing, technical sprints, meeting random people, meeting investors and potential business partners.

Work on the prototype started in late 2015, in the warehouse of my other company, where we had started to visualise the brain and understand brain waves. We then did a hackathon with Spacecubed in late 2015 and early 2016, and with their help, started thinking about health and wellness side of what we’re trying to do. The hackathon was a very difficult weekend, but incredibly important to us getting started and getting support and feedback. We then got into an accelerator program called the Plus Eight Accelerator which was also run by Spacecubed and in the end, in 2017, we managed to get funding of about $450,000 from it. When we got the funding, we realised that this was something that we could do, and we all quit our jobs. At that time, I was working full-time in my other businesses, which I left, and I also turned down an offer at Macquarie Group and decided to take a break on my law degree.

Was it difficult to get funding at that time? What advice do you have for those who are seeking funding? Getting funding is not easy. In Perth, you’ve got to be either incredibly lucky, hard working or intelligent. When we went through the Plus Eight Accelerator, we gained exposure to a lot of people in the right community, and we were able to take on their constructive and technical feedback. Our investors know that investing in us, there’ll be a good chance that they get their money back, and have a chance to make something valuable. I think it’s important that we strongly believe in the change that we want to see in the world. Therefore my advice to fundraising is to have a vision, have exposure to programs like accelerator program to network with the right people. By the end of 2018, we’re looking at raising at least $1 million, basically whatever it will cost to take the product to the next level. I would also advise to not be afraid to be vocal about asking for what you want. In San Francisco, we have noticed that other entrepreneurs are not shy about strongly asking for, pursuing and opening opportunities. It pays to be verbalise what you want. 28 | BRIEF FEBRUARY 2019

We work until we know that we’ve done all that we can. It’s not hard when you do what you love. I don’t feel like I’m overworked.

Dare I ask – how do you set your own salary and work with the risk of having no guaranteed income? At the moment, we pay ourselves as little as possible. We have four co-founders and one full-time staff. I haven’t quite worked this out, but I think we earn less than $30,000 per year each as cofounders, which will have to go to rent, food and everything else. We base this off what is just enough to get by. I think that when you’ve got investors who have given you money to develop something, you shouldn’t pay yourself until the time you’ve got an inflection point in terms of growth. Different people have different ways – there are some who pay themselves from day one and if they can’t make it work within a certain period of time, they go on to try and do something else. But in our case, we’re doing something that’s really difficult and it’s important to stretch funding to make sure you have enough money to do that through the journey.

Everything is contingent on the product – not only does it have to work, but it has to be commercial and scaleable. What were some problems you encountered on this front? As a startup, I think that the natural instinct is to try to do everything at once, as fast as possible. In this case, there were several priorities we were looking at: building a wearable headset that was easy to use by everyone, not too expensive and something that scientifically has to accelerate learning. The problems we had in the early days were that the headset was too expensive, it worked very slowly, and most critically, it was technically challenging to put together. We also then realised that we

haven’t yet captured the value proposition of what we were doing. So we had to pivot ourselves, twice. Initially, we thought our target customer was the education or young professionals market. We were targeting universities and young professionals who might want to enhance their learning with this headset. However, this was going to be an expensive product and not many people in that economic bracket would be willing to pay for this, and we learnt this from customer feedback and talking to more entrepreneurs. Therefore we pivoted our target customer to those in the eSport or competitive gaming industry. This is a billion dollar industry and a great opportunity as the user will be sitting in front of a computer and not moving around too much (overcoming one of the first technical obstacles), they’d be looking to make small improvements in their brain and are already spending a lot of money. The second time, we pivoted because we realised that it was challenging trying to build tech hardware from scratch in WA. This was a soft pivot as we then focused on working on the software and put development of our hardware on the shelf so to speak. We’re now coming back to hardware as planned, but it was an example of us re-routing instead of bashing our head against the wall.

Thoughts on the startup culture in San Francisco? The San Francisco startup culture is quite unique, and I don’t think there’d be any other place in the world that’s able to compete with it, except perhaps some cities in China. The difference is the fact that San Francisco, and in particular the Bay Area, has all the things you need in one place. Perth is probably as innovative as San Francisco in some ways. One good example is the mining industry and its in-roads into driverless car technology. But what we don’t have in Perth is that ecosystem, which has come about because it is capital friendly, risk averse and has a scientific community that integrates and collaborates with entrepreneurship. People here in San Francisco are aligned from an early age to do startup, to acquire skills needed to successfully run a startup. Perth is not only geologically separated, but there is also not a huge market for the stuff that we’re doing. It doesn’t mean that it’s not possible to run a successful startup, but it makes it difficult.

Is there much competition in opportunities? Yes, absolutely. It’s a fast paced place to live and if you miss an opportunity, you miss it. Paradoxically, people are also much more open to sharing with each other. They recognise there’s more risk (everyone’s conscious of their intellectual property), but in helping each other, then you promote the industry as a whole, which normalises the thing that people are trying to invent or innovate. I’d say, in the small startup industry, people are much more supportive of each other.

We’ve already touched on the commercial issues you face, what are some legal issues that you may be confronting at the moment? Things can be stressful for those who have a legal background in a startup! Law is difficult and different in different countries too. In terms of an agreement, you have to let the entrepreneurial side of you outweigh the legal side of you. A good example of that is, now I’ve just split the company up, I’ve set up and incorporated the company in the USA, then made the Australian company a wholly owned subsidiary of the US company – it’s like an international merger and you’re not even a graduate lawyer. The nature of work that has to be done in the legal space is more alike to a corporate finance lawyer. I’ve been working a large law firm that helps Facebook and Apple’s IPOs, managed to wrap it up for about $50,000, which I think is a huge sum given our size! We’ve had legal help along the way. For instance, we had Telstra’s lawyers help us set up our company, and a couple of future investors now advising us on how

to do pitch documents. We take other people’s templates and advice (not much different to what I’d be doing in a law firm), but the massive difference is that there’s no oversight – you’re making it up. It’s your problem, not just your client’s problem.

What kind of mentoring did you get and how did that help you? Mentoring is without a doubt important. An important mentor to us is an Australian guy called Andy Walshe, who was working for Red Bull at the time we approached him. When he was 25 years old, he was a lifeguard in Sydney and basically decided he’d pack up his bags and go to USA to make a difference in the world. He started in sport psychology and eventually went on to become Red Bull’s High Performance Director, essentially executing amazing stunts that made Red Bull get its top performance image. Andy had a lot of sympathy for us as a bunch of young Australians moving to America to do something. We just messaged him on LinkedIn, and then spent a whole day with him at the Red Bull office and talking to his team. We continued talking to him, and early this year, he invited us to a conference on cognitive performance in eSport run by Logitech (he’d moved to Logitech by this time). We were there while Skydeck, a university accelerator program for UC Berkeley, was interviewing for its accelerator program. We pitched to them what we were doing, which they were interested in, but what made it much easier for us to get in the program was the fact that we were already in the States and had already have arrangements to work with certain researchers in the field. It’s much harder to get into the Skydeck program than MIT

or Harvard, and we really were in the right place at the right time because of who we spoke and reached out to.

What advice would you like to give to lawyers or future lawyers who are interested in entrepreneurship? I’d like to encourage people to think of this pathway as a possibility more than a fantasy. A lot of uni mates and friends have come up to me and say, “I’d never be able to do what you do”, and I myself would have thought the same thing a few years ago. But having walked this path, I definitely don’t think that lawyers are stuck. In university, the mentality is very much – you’re either ‘in’ law and committed to legal practice, or you’re not in law, in which case you will likely not have anything to do with the law when you graduate. That binarism should not continue to prevail. In law, we are going to have to start thinking of ourselves as entrepreneurs and especially get comfortable with different amounts of risks in our everyday lives. The risks in the legal profession will only get greater, but very quickly, the job of the graduate or the lawyer is not going to look like what it does now. I used to get a lot of comments from friends from law school who are surprised that I’m still involved in HUMM tech (“Oh, you’re still doing that!”). Of course now that we’ve moved to San Francisco everybody thinks that you’re a millionaire! But on a more serious note, I’d never considered this to be option in my life because it wasn’t something that I’d seen done before. I’m by no means a special case; I’m just one of the first few that have done it early. So I’d say, do more rather than focus on the legal profession.

Civil Justice Reforms in Class Actions and Litigation Funding By The Hon Justice Bernard Murphy, Federal Court of Australia This article is adapted from a presentation given at the ALFA Class Action Litigation Funding Reform Conference, 26 October 2018. Note: This article was completed prior to the release of the Australian Law Reform Commission's Report into Class Action Proceedings and Third-Party Litigation Funders.

There have been seven reviews into Part IVA-type regimes in the last 10 years, on average about every one and a half years, by the Commonwealth Attorney-General’s Department, the Department of Treasury, the Productivity Commission, the Western Australia Law Reform Commission, two by the Victorian Law Reform Commission and we are now awaiting the report of the Australian Law Reform Commission. None have pointed to any serious or systemic problems in the operation of Part IVA-type regimes. Justice Sarah Derrington who heads the ALRC Inquiry has said that she considers the regime works reasonably well, and the proposed reforms are better described as “repair” rather than “revolution”. The adoption of Part IVA-type regimes by state legislatures – Victoria in 2000, NSW in 2010 and Queensland in 2016, and the pending adoption in WA – also indicates those governments consider the regime operates reasonably well. Empirical data produced by Professor Morabito bears this out, as does the vast number of successful claimants and the diversity and variety in their claims. 30 | BRIEF FEBRUARY 2019

It is also plain from the views expressed by judges experienced in the regime’s operation. In 2016, on making orders paving the way for the distribution of almost $700 million to many thousands of class members devastated by the Kilmore East-Kinglake and Murrindindi bushfires, Justice Jack Forrest of the Victorian Supreme Court said: This demonstrates that the class action process works. It shows that when it is properly managed, many substantially disadvantaged and affected people can recover compensation that they would otherwise not have been able to obtain.1 In 2017 in a book chapter I co-authored with Prof Morabito we wrote:2 [T]he procedure provides real, practical and broad-based access to justice, which must be seen as a substantial improvement, and it has proved flexible and adaptable in meeting challenges to the utility of the regime as they appear. The regime seems appropriately balanced. We can see few signs of systemic problems in its operation and there are reasons to be confident that the courts will deal with any serious problems that may later emerge. That remains my view. But that does not mean that I consider the operation of the regime is perfect. Nor does it mean that the regime will continue to operate reasonably well in the absence

of further reforms. The operation of Part IVA-type regimes is constantly evolving and history shows that some remediation is necessary from time to time. Key stakeholders are presently raising concerns which centre on shareholder class actions, which concerns deserve careful consideration.

I. Court-instituted reforms It is important to understand that one of the reasons Part IVA-type regimes have worked well is the steps courts have taken to address problems in the operation of the regime as they are identified. I will start by addressing some of those steps and then I will turn to outline and offer some commentary on some of the likely recommendations in the ALRC report. The court-instituted reforms follow two broad themes. First, cost and efficiency measures in aid of the overarching purpose of facilitating the just resolution of disputes according to law as quickly, inexpensively and efficiently as possible. Second, measures directed at ensuring the regime continues to reflect the legislative intent of enacting an ‘open class’ opt-out procedure. A. Cost and efficiency measures In the past five years numerous measures have been introduced which are aimed at reducing legal costs and funding charges and improving efficiency, including:

•

First, case management by experienced judges. The Court identified in 2015 that allocating judges experienced in class actions to case management meant that matters were listed for trial more quickly, where they usually settle. Allocation of experienced judges has become standard practice where it can be accommodated.

•

Where competing proceedings are commenced in the Federal Court and a State Supreme Court respectively, there are obvious difficulties. Recently, one open securities class action against AMP arising out of matters raised at the Financial Services Royal Commission was filed in the NSW Supreme Court and another four open securities class actions in relation to the same issues were filed in the Federal Court. We saw the unhappy spectacle of an anti-suit injunction being raised in relation to the four cases before the Federal Court, in response an anti-anti-suit injunction was raised, and in further response an anti-anti-anti-suit injunction was filed: see Wileypark Pty Ltd v AMP Limited8 (Wileypark).

Second, case management of competing class actions. When dealing with overlapping or competing class actions the Court has repeatedly said that it will not countenance increased legal costs, wastage of court resources, delay, and unfairness to respondents through such cases.3 For example: • In Cantor v Audi Australia Pty Limited (No 2)4, the VW class action, Foster J allowed two competing class actions to remain on foot but ordered a joint trial of the cases and made orders directed at reducing wastage of costs.

The Court has and will continue to address the problems of wasted

Fourth, enhanced disclosure of litigation funding charges. Since 2016 the Court has required the applicant to confidentially file with the Court any litigation funding agreement, and to serve on the respondent a funding agreement redacted to conceal confidential “war chest” information, and has discouraged the use of undisclosed side letters between the funder and a representative applicant.11 Through this requirement any contentious features of the funding agreement will come to the attention of the docket judge. •

A protocol has been drafted to address this issue. Although the final form of the protocol is still being discussed, the essential proposal is that when competing class actions are filed in different courts, senior judges of those courts will convene a joint case management hearing to decide questions such as the case or cases to go forward and the forum in which the proceeding will be heard. •

Third, striking out abuses of process. In the last five years the courts have found various models used to fund class actions and to act for the applicant and class members constituted an abuse of process. These generally involved the same or associated entities acting as the applicant, litigation funder and solicitor for the applicant. Those

Fifth, increased judicial scrutiny of litigation funding charges and legal costs. In settlement approval decisions in the great majority of class actions the courts have found the legal costs and funding charges to be reasonable and proportionate. In such cases the class action regime is a relatively efficient mechanism for dealing with mass claims and distributing compensation to the claimants.

The case illustrates the shortcomings in the cross-vesting procedure when applied to class actions because a court cannot ‘pull’ a proceeding across to it, and the respondent – as the only common party in the competing cases – is the only party that can apply to ‘push’ the case to another court. As the Full Court said in Wileypark, there is a risk of procedural arbitrage based on the view of the applicant’s lawyers and funders about the approach of different judges in different courts to the facts and law, as well as to lawyer’s fees and funder’s charges.9 These risks are increased when a respondent submits that it would prefer to be sued in one Court than another.10

• In McKay Super Solutions v Bellamy’s Australia Ltd5 two overlapping open securities class actions were filed. Beach J closed the class in one proceeding and allowed the other proceeding to remain as an open class. His Honour ordered a joint trial of both proceedings and required the opposing applicant’s lawyers and funders to cooperate. • In Perera v GetSwift Limited6 (GetSwift) Lee J conducted a tender process between three competing solicitors and funders. He found that there was no significant difference between the cases in terms of scope, pleadings, preparation, experience or competence of the legal practitioners or the number of group members. In this context he made orders for the Webb proceeding to continue as its funding model was “very likely to produce a better return for class members in the vast bulk of realistic scenarios at all stages of the proceeding”.7 The other two proceedings were stayed. The decision in GetSwift has been appealed and the judgment of the Full Court is reserved.

models are now no longer used.

costs and resources, delay, and unfairness to the respondent through competing cases.

There is, however, a problem with which the Court is presently grappling, in which settlements are reached where the quantum of legal costs and funding charges is seriously disproportionate to the recoveries by class members. I agree with Justice Derrington’s observation that “the legitimate use of the court’s processes…should not be undermined by proceedings that disproportionally benefit the funder and solicitor rather the litigants.”12 The Court is now scrutinising the proportionality of costs and funding charges more closely: •

Funding charges A number of judges of the Federal Court (including myself,13 Justice Beach14) and Justice Middleton15 have held that the Court has power to vary the funding commission required to be paid by class members pursuant to the funding agreements, and that it is appropriate to review the funding commission sought by reference to criteria developed by the Full Court in Money Max Int Pty Ltd (Trustee) v QBE Insurance Group Limited16 (Money Max). More recently Justice Lee has doubted the Court’s power to effectively vary the contractual bargain between a funder and a 31

class member.17. Funding charges may also be reduced through common fund orders which require court approval of the funding rate. In Money Max this led to a reduction in the funding rate from 32.5% - 35% down to 23.2%, such that upon settlement class members were between $12.3 and $15.6 million better off.18 The tender process in GetSwift also resulted in a significant reduction in the funding rates offered to class members. • Legal costs The court scrutiny of the legal costs charged or proposed to be charged to class members has increased significantly over the last five years. The methods of scrutiny include: • appointing a contradictor to represent class members’ interests in relation to costs;19 • referring costs to a Registrar, costs referee or a courtappointed expert rather than rely on the report of the applicant’s costs expert;20 • auditing the report of the applicant’s costs expert;21 • expressly considering the proportionality of costs;22 • appointing persons other than the applicant’s solicitors to undertake the settlement administration work after requiring quotations or a tender process;23 • in competing class actions, conducting a tender processes that requires costs budgets be provided. Some judges of the Court are also considering piloting a cost budgeting approach, modelled on the English Civil Procedure Rules Part 3 Section II Practice Direction 3E. This would require both sides to prepare costs budgets for the different stages of the litigation, with only approved budgeted costs recoverable from the other side. This would give the court greater control over expenditure of unnecessary costs, should allow funders and insurers to more accurately estimate costs, and would put downward pressure on both parties’ legal costs.

32 | BRIEF FEBRUARY 2019

B. Measures to ensure the operation of the regime reflects legislative intent

•

The Court has also addressed the practice of seeking consent class member registration orders which operate so that class members who neither registered nor opted out were bound into any settlement, but precluded from sharing in any settlement or judgment. Such orders were said to be necessary to facilitate settlement.

These measures have taken several forms: •

First, increasing use of common fund orders. The most fundamental of these measures has been the Full Court decision in Money Max to allow common fund orders. As we know, the advent of litigation funding has produced a fundamentally different class action landscape today than that envisaged by the ALRC and the drafters of Part IVA. The ALRC in 1988 expressly cautioned against allowing third parties who fund class actions to receive a share in the proceeds or subject matter of the action.24 Limiting classes to funded members clearly undermines one of the key rationales for an opt-out regime.25

In Melbourne City Investments Pty Ltd v Treasury Wine Estates Limited28 the Full Court accepted that a preclusion from sharing in the settlement might be appropriate because the requirement to register claims would allow both sides to have a better understanding of total quantum of claims, and therefore facilitate settlement. However it said that it was not appropriate for class closure orders to be made that, in the event a settlement was not achieved, operated to lock class members out of any entitlement to share in a judgement. That is, facilitation of settlement is a good reason for a class closure order but, if settlement is not achieved, an order to shut out class members who do not respond to the chosen deadline is not.

The rationale for the decision in Money Max was the interests of justice in the proceeding, including that class members would have the benefit of Court supervision of the funding rate, and would pay a lower funding rate. As I have said, the orders ultimately resulted in class members being better off by between $12.3 and $15.6 million. The Full Court also said that taking a common fund approach was likely to enhance access to justice by encouraging ‘open class’ representative proceedings. There can be no question that open class actions are more consistent with the opt-out representative procedure envisaged by the legislature in enacting Part IVA.26 Professor Morabito’s recent Seventh Empirical Report shows that, in the period following the Money Max decision in October 2016 up to September 2018, only seven (or 13.2%) of funded federal class actions were commenced as closed classes, whereas in the period before the decision 36% of funded federal class actions were commenced on that basis.27 In the case of shareholder class actions, the change is even more pronounced. In the few years immediately preceding Money Max almost all shareholder class actions were commenced as closed classes, and now very few or none are. Commencing cases on an open class basis is consistent with legislative intent and enhances access to justice.

Second, a changing approach to class closure orders.

More recently, in Kuterba v Sirtex Medical Limited29 I declined the respondent’s application for class closure because I considered settlement would be sufficiently facilitated by a class member registration process conducted using the share register. I concluded that informing class members that they should register – but not requiring them to do so on threat of being excluded from participating in the case – was unlikely to make a significant difference to the level of registration. •

Third, increased acceptance of the importance of judicial scrutiny of settlements. The legislature conferred power on the Court to protect class members’ interests through the requirement of judicial approval for any settlement and, particularly in recent years, judges of the Court have taken their role in scrutinising settlements more seriously. Settlement approval judgments are more detailed30 and give close consideration of a wider range of matters,31 there is a greater use of a contradictor or amicus curiae where the Court has concerns

with aspects of the settlement,32 and there seems to be a greater judicial willingness to refuse settlements that have unjust or unreasonable features.33

II. alrc Reform Proposals The main reform proposals include the following. A. Express powers in relation to litigation funding agreements The ALRC is likely to recommend that Part IVA be amended to provide that litigation funding agreements with respect to class members are enforceable only with the approval of the Court, and that the Federal Court have an express statutory power to reject, vary, or amend the terms in third-party funding agreements. In circumstances where 100% of shareholder class actions and 50% of all other class actions have litigation funding, funding charges have become a standard cost for class members. There is no reason in principle for treating litigation funding costs incurred to achieve a settlement differently from legal costs incurred to achieve

a settlement,34 and the interests of class members and the utility of the regime weigh strongly in favour of court supervision. The Court’s power to vary the quantum of litigation funding charges as part of settlement approval has been doubted, and it is appropriate that the power be put beyond question. This is all the more so given the growing number of cases in which funding charges have been disproportionate to the recovery for class members. It is understandable that litigation funders may be uncomfortable with a power to vary funding agreements when they agree to take on the substantial burden involved in funding a class action in return for a specified funding rate. However, similarly what was said in Money Max,35 I expect that such concerns will diminish as the case law develops. In the absence of misleading conduct or unfair contract terms I would expect the variation power to be used only in relation to setting a fair and reasonable funding rate. The courts are already doing this, and there is no sign it has reduced the willingness of funders to provide funding. The utility of the regime will also be reduced if the Court does not have

power to deal with disputes about funding terms. That power too has been doubted36 and it is appropriate that it be put beyond question. B. The requirement that all class actions be initiated as ‘open’ class actions The ALRC is likely to recommend that Part IVA be amended to provide that all class actions be initiated as open class actions. It is likely to recommend that the Federal Court Class Action Practice Note be amended to provide criteria for when it is appropriate to order class closure during the course of a class action and the limited circumstances in which a class may be reopened. These changes can be seen as consistent with legislative intent, but in my view the Court must have discretion to allow a closed class in an appropriate case. In some cases it may be that an open class proceeding would be so inefficient that it would not be commenced, while the proceeding would be commenced with a closed class. Allowing this would provide some measure of access to justice as against none.

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Further, as Professor Morabito noted in his Seventh Empirical Report, the expression “open class actions” is unclear. Does it mean, for example, that class actions will not be permitted where they are brought only on behalf of the members of a trade union or unincorporated association? One can readily understand the reluctance of a trade union or association to underwrite the costs and risks of a class action if it meant they were forced to also pay for persons who are not members. Alternatively, does it mean that cartel class actions will not be permitted if the class is defined to exclude consumers who suffered losses below a specified minimum? A requirement that a cartel class action must be ‘open’ so as to include consumers who suffered losses less than, say, $500 is likely to mean that the action will be very inefficient. The transaction costs of achieving compensation for such class members would exceed the losses they suffered. Further, any criteria limiting class closure must leave the Court with a broad discretion. There are many circumstances in which class closure may be in the interests of class members and consistent with legislative intent. C. Express powers to deal with competing class actions The appeals against the decision in GetSwift include the contention that in the absence of showing abuse of process the Court lacked power to stay a non-preferred competing class action. It is appropriate that the power to do so be put beyond question. D. Express power to make a common fund order There are two appeals against common fund orders on foot, in which it is contended that the courts do not have power to make such orders. It is appropriate that the power to do so be put beyond question. E. Lifting the prohibition on contingency fees The ARLC is likely to recommend the prohibition on contingency fees be lifted, subject to two conditions: (a) that it will be by leave of the Court; and (b) that the Court have power to reject, vary or amend the terms of any such agreement. Solicitors who fund class actions under contingency fee arrangements will be subject to a statutory presumption that they will be required to provide security for costs. Litigation funders will not be permitted to fund a case in which a contingency fee is also being charged. 34 | BRIEF FEBRUARY 2019

As could be expected, this recommendation has attracted some controversy. The objections include that it would give the applicant’s lawyers a personal stake in the litigation which might lead the lawyers to prefer their own interest to the interests of the applicant and class members. It is also argued that the applicant’s lawyer presently acts as a bulwark protecting class members’ interests against the funder’s commercial imperatives.

do not suggest that this will always be appropriate, but in my view it is likely to be better if the Court approves the rate at the stage of settlement approval or judgement because at that point it will be armed with better information as to the important considerations, including:

The ALRC has noted that the introduction of contingency fees is likely to result in a material reduction in the total amount charged to class members. Importantly the ALRC recommendation includes two critical safeguards. First, that a contingency fee can only be charged by leave of the Court. Second, that the percentage fee rate will be subject to Court supervision and the Court may vary it.

• the amount or likely amount of any settlement or judgment;

In relation to one of the main arguments against allowing contingency fees, the ALRC and VLRC have both noted that, even absent contingency fees, the lawyers for the applicant in no-winno-fee class actions already have a substantial stake in the litigation. For example, in the Kilmore East – Kinglake bushfire class action which settled for $494 million after a 12 month trial, the applicant’s lawyers had incurred costs and disbursements of $60 million payable only upon a successful outcome. They argue that introduction of percentagebased contingency fees would make any such stake more transparent and allow improved Court supervision. Also, litigation funders are currently permitted to charge on a percentage basis without owing the professional and ethical duties that the applicant’s lawyers owe to the class members.

• the percentage fee agreed by sophisticated class members and the number of such class members who agreed;

There is broad support for lifting the prohibition on contingency fees in the submissions: 71% of submissions supported the lifting the prohibition. This level of support is most likely because the introduction of contingency fees is likely to lead to a material reduction in the total amount paid by class members and because of the two critical safeguards to which I have referred. Provided the two safeguards remain I support this recommendation. I expect that the Court would only grant leave to charge contingency fees where the solicitors could demonstrate that they properly understand their professional and ethical duties, put appropriate arrangements in place to address any conflicts of duty and interest, and that the contingency rate is reasonable. I

• the litigation risks of conducting the case on a contingency basis, avoiding the risk of hindsight bias in this assessment;

• the quantum of adverse costs exposure and any security for costs provided; • the time-based legal costs, and what they would be if the case proceeded to hearing; • the security for costs provided and to be provided;

• the information provided to class members as to the percentage rate; • a comparison of the percentage rates applied in other class actions; • class members’ likely recovery.

F. Regulation of litigation funding The ALRC is likely to recommend that the definition of ‘financial service’ in the Corporations Act should be amended to include litigation funding for a class action, so that the licensing regime is based on holding an AFSL. It is likely to recommend that the Corporations Act be amended to provide that persons that provide litigation funding in class actions under an AFSL must maintain capital adequacy. I would note that the ALRC Discussion Paper is incorrect to relate the proposed requirement for capital adequacy to the funder’s obligation to pay the applicant’s legal fees. It is standard practice in funded class actions that the applicant and class members have no obligation to pay any legal costs that are not paid by the funder. The applicant’s lawyers assume any risk that they will not be paid and they have recourse to the usual legal remedies against the funder. There is no requirement to create a regulatory regime to protect the interests of lawyers that act for applicants.

The proposed requirement for capital adequacy is primarily relevant to the capacity of the funder to meet its contractual promise to pay the respondent’s costs if the case is unsuccessful. In my experience a number of competent and reputable funders prefer to meet that obligation by putting on security for costs, rather than holding funds to demonstrate capital adequacy. I can see little reason to choose a regulatory model which excludes competent and reputable funders who are able to meet their obligations as they arise when doing so may (a) operate to diminish the availability of funding and thereby reduce access to justice; and (b) reduce competition between funders, which is one of the factors presently putting downward pressure on funding rates.

III. CONCLUSION

15.

The requirement to address any emerging difficulties in the operation of Part IVA-type regimes is a continuing one. It did not start with the likely ALRC recommendations and it will not end with them, but the proposals are the result of a great deal of conscientious and detailed work and are worthy of careful thought. The guiding considerations should include the objectives of: (a) enhancing access to justice while avoiding the operation of regime becoming “overheated”; (b) avoiding the stifling of litigation funding while protecting against excesses; and (c) ensuring the regime operates in accordance with the overarching purpose of facilitating the just resolution of disputes according to law as quickly, inexpensively and efficiently as possible.

16. 17.

In my view it would be best to require that: (a)

(b)

funders may demonstrate capital adequacy and thereby avoid the need pay security; or if funders do not demonstrate capital adequacy, they must provide sufficient security in an acceptable form.

I keep in mind that the debate about the necessity for greater regulation of litigation funding has gone on now for more than a decade and, as far as I am aware, there is still no example of a class action funder failing to meet its obligation to pay adverse costs. Even so, in the post-Financial Services Royal Commission era it is unlikely that selfregulation will be seen to be sufficient. I support appropriate regulation of litigation funding but I find it hard to see this as a first-order issue.

2. 3. 4. 5. 6. 7. 8. 9. 10. 11. 12. 13. 14.

20.

21.

22. 23. 24.

25.

26. 27.

Endnotes 1.

18. 19.

Some parts of this paper draw upon a chapter by the author and V Morabito entitled The First 25 Years: Has the Class Action Regime hit the Mark on Access to Justice? in D Graves and H Mould (ed), 25 Years of Class Actions in Australia, The Ross Parsons Centre of Commercial, Corporate and Taxation Law Publication Series, 2017 at 13 (25 Years of Class Actions in Australia). Supreme Court of Victoria, ‘Court approves distribution of almost $700M in 2009 Black Saturday bushfire class actions’, 7 December 2016, quoting Justice J Forrest. 25 Years of Class Actions in Australia at 14. Money Max Int Pty Ltd (Trustee) v QBE Insurance Group Limited [2016] FCAFC 148 at [196]. [2017] FCA 1042 at [38]-[79]. [2017] FCA 947. [2018] FCA 732; (2018) 357 ALR 586. Ibid at [305]-[324]. [2018] FCAFC 143. Ibid at [15]. Ibid at [19]. Caason Investments Pty Ltd v Cao (No 2) [2018] FCA 527 at [216] (Caason). M Pelly, Judge takes aim at class action ‘trafficking’, Australian Financial Review, 26 October 2018. Earglow Pty Ltd v Newcrest Mining Limited [2016] FCA 1433 at [113]-[132] (Earglow). Blairgowrie Trading Ltd v Allco Finance Group Ltd (Receivers & Managers Appointed) (In Liq) (No 3) [2017] FCA 330; (2017) 343 ALR 476 at [101].

28. 29. 30.

31.

32.

33.

34. 35. 36.

Mitic v OZ Minerals Limited (No 2) [2017] FCA 409 at [27]-[29]. Money Max [2016] FCAFC 148 at [82]-[83]. Liverpool City Council v McGraw-Hill Financial, Inc (now known as S&P Global Inc) [2018] FCA 1289 at [148]. Money Max [2016] FCAFC 148 at [8](c). Kelly v Willmott Forests Ltd (in liquidation) (No 5) [2017] FCA 689. Caason [2018] FCA 527 at [111]-[124]; Lifeplan Australia Friendly Society Limited v S&P Global Inc (Formerly McGraw-Hill Financial, Inc) (A Company Incorporated in New York) [2018] FCA 379 at [40]-[41]; Dillon v RBS Group Pty Ltd (No 2) [2018] FCA 395; Matthews v AusNet Pty Ltd & Ors (Ruling No 40) [2015] VSC 131 at [29]; Rowe v Ausnet Electricity Services Pty Ltd (Ruling No 9) [2016] VSC 731 at [1]-[7]; Downie v Spiral Foods Pty Ltd & Ors [2016] VSC 411 at [20]; Matthews v AusNet Pty Ltd & Ors (Ruling No 44) [2016] VSC 732 at [13]. Money Max Int Pty Ltd v QBE Insurance Group Ltd [2018] FCA 1030 (Money Max Settlement Approval) at [160]-[180]. Petersen v Bank of Queensland; Clarke v Sandhurst Trustees Limited (No 2) [2018] FCA 511. Caason at [157]. Australian Law Reform Commission, Grouped Proceedings in the Federal Court, Report No 46, 1988, at [318]. Money Max [2016] FCAFC 148 at [193], citing Multiplex Funds Management Ltd v P Dawson Nominees Pty Ltd [2007] FCAFC 200; (2007) 164 FCR 275 at [116]-[117] (Jacobson J). Money Max [2016] FCAFC 148 at [14]. Morabito, V, Closed Class Actions, Open Class Actions and Access to Justice (Seventh Empirical Report), 9-10. (2017) 355 ALR 392; [2017] FCAFC 98 at [75]-[76]. [2018] FCA 1467 at [13]. Modtech Engineering Pty Ltd v GPT Management Holdings Ltd [2013] FCA 626 (Modtech); Matthews v AusNet Electricity Services Pty Ltd [2014] VSC 663; Downie v Spiral Foods Pty Ltd [2015] VSC 190; Kelly No 4 (2016) 335 ALR 439; Hodges v Waters (No 7) (2015) 232 FCR 97; Earglow [2016] FCA 1433; Newstart 123 Pty Ltd v Billabong International Ltd [2016] FCA 1194; Stanford v DePuy International Ltd (No 6) [2016] FCA 1452. Casey v DePuy International Ltd (No 2) [2012] FCA 1370 at [15]; Winterford v Pfizer Australia Pty Ltd [2015] FCA 426 at [25]; Modtech [2013] FCA 626; Kelly No 4 (2016) 335 ALR 439; Earglow [2016] FCA 1433. 32 Kelly v Willmott Forests Ltd (in liquidation) (No 4) (2016) 335 ALR 439 at [4]; Bolitho v Banksia Securities Ltd (in liquidation) (receivers and managers appointed) Order 13, Orders of Justice Robson, Supreme Court of Victoria, 2 June 2016. ASIC v Richards [2013] FCAFC 89; Peterson v Merck Sharp & Dohme (Aust) Pty Ltd (No 6) [2013] FCA 447; Modtech [2013] FCA 626; Kelly No 4 (2016) 335 ALR 439. Money Max [2016] FCAFC 148 at [71]. [2016] FCAFC 148 at [82]-[83]. Caason [2018] FCA 527 at [232]-[250]; Caason Investments Pty Ltd v International Litigation Partners No.3 Ltd [2018] FCAFC 176 at [26].

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LAW SOCIETY EVENT

Welcome to the Profession 2.

More than 150 guests from a mix of large, medium and small firms joined us at the Law Society’s Welcome to the Profession Breakfast at the Parmelia Hilton on Wednesday, 28 November 2018. The Law Society was delighted to recognise and congratulate our newest Western Australian legal practitioners, who heard an insightful and inspiring keynote address from the Chief Justice of Western Australia, the Hon Peter Quinlan. The Law Society wishes all of our new practitioners the very best as they 36 | BRIEF FEBRUARY 2019

embark upon the first steps in their legal careers. The Law Society looks forward to supporting our newly-admitted lawyers throughout their career journeys. Many thanks to our event sponsor, The College of Law. You can view more photographs from the event at the Law Society’s Young Lawyers Committee Facebook page: facebook.com/YLC.WA. Photos: 1.

Hayley Cormann, Immediate Past President – The Law Society of Western Australia

The Hon Peter Quinlan, Chief Justice of Western Australia

Proudly sponsored by

The Law Society's Mock Trial Competition By Daniel Coster Senior Associate, Moray & Agnew Lawyers I never had the chance to participate in a mock trial whilst a student. Until recently, I never realised what a missed opportunity that was. You could say I had a deprived childhood, having never been exposed to the cut and thrust of the mock court with my peers, as well as missing out on the learning experience and perhaps guidance on a future career. You may, dear reader, be wondering how indeed I made it into the profession in spite of such tragedy shaping my formative years. If you are troubled by the mournful sound of violins at this juncture fear not, the story has a happy ending: I responded to an email from the Law Society seeking volunteers for its Mock Trial Competition. The Law Society coordinates the annual competition for High School students (Years 10-12). Students, coached by members of the profession, play the part of the barristers, instructing solicitors, witnesses, and court officials. The trials are held in the Supreme Court, affording students the opportunity to not only appear in a real court, but also to present their case to a member of the profession acting as the judge. The enthusiastic and perspicacious students made the trials thoroughly enjoyable, with many getting deep into character and playing their parts with aplomb. The value of the mock trial as a learning experience was made clear to me through judging trials across the various stages of the competition. The quality of the presentations improved markedly from round to round, with the students taking on feedback from the earlier rounds and adapting their cases accordingly. It is no exaggeration to suggest that, by the end of the

competition, some students would have been capable of giving practising lawyers a run for their money. I was particularly impressed by the number of astute objections raised by the barristers, demonstrating a burgeoning understanding of the principles of evidence, and the well-developed case theories that emerged. But enough about the students. I personally thoroughly enjoyed acting as a judge (and I am available for more than acting should the Attorney-General be reading this). Apart from a brief brush up on the rules of evidence (a handy mock trial guide is provided to all volunteer judges) and reading the case facts (also provided in advance of the trial and with useful annotations for the judge), there was very little required of me other than a few hours of my time. Yes, time is valuable (and valued), but the reward of volunteering for this competition outweighs pecuniary considerations. That is not to say there are no tangible benefits, with CPD points being offered as an extra incentive.

members of the profession. The fact the competition has been running for over 30 years is a testament to the willingness of the profession to volunteer its time and experience to provide an invaluable learning opportunity to what may well be the next cohort of law students and, in due course, legal practitioners. It is a thoroughly worthwhile endeavour and I strongly encourage anyone considering volunteering to, in the words of a certain sportswear brand, just do it! The Law Society is now taking registrations for volunteers for the 2019 Competition. Previous participation is not required. An Information and Orientation Session will be held at the Law Societyâ&#x20AC;&#x2122;s offices on Thursday, 28 February, from 5.15pm â&#x20AC;&#x201C; 6.15pm. Please contact us at mocktrial@ lawsocietywa.asn.au if you would like to register your interest in attending this event and/or participating as a volunteer.

This competition would not be possible without the sterling work of the Law Society and the generous assistance of 37

Top Five Tips to Keep Your Legal Career Charged By Cav. Maria Saraceni Barrister, Francis Burt Chambers

Lawyers are now facing an identity crisis – do we have a vocation or do we do a job? In other more eloquent words – are we autonomous professionals, part of a noble and long standing profession or are we an active participant in a legal services market with the intrusive imposition of commercial values? Or, if it were possible, can we be both? What role will lawyers have moving forward with IBM Watson now a reality? With many sophisticated clients who use lawyers in essentially the same way as their other service providers, will lawyers be mere functionaries? If that is a step too far to contemplate, how are lawyers in the current environment coping with the changing demands being placed on us not just by clients – or would it be more accurate to refer to them as consumers; by cost pressures in a globalising legal market; by employer demands of greater productivity and even greater efficiencies; a justice system that is changing the landscape of the art of advocacy and persuasion away from an adversarial system to what has historically been referred to as alternative dispute measures worked out as much as possible in private and a costing regime which reduces all legal thought, analysis, work output and advocacy to bite-sized six minute units? In Victoria, the health and safety legislation that applies to all employment relationships has recently been used as a disruptor such that the governmentsponsored regulator has seen fit to intervene in work practices in a large commercial (albeit private) law firm that appears not to meet the standard 38 | BRIEF FEBRUARY 2019

of doing everything “reasonably practicable” to ensure that its employees (including lawyers) are not exposed to hazards that could adversely impact on their health and wellbeing. How do lawyers navigate this everchanging environment? A positive first step is joining and remaining part of the Law Society of Western Australia, an organisation that is at the forefront of caring for its individual members’ health and wellbeing and ensuring that lawyers retain their professionalism and standing in the community and before the Courts and Tribunals of this land. In my view, it has never been more important to take charge and invest in your career, and being part of your professional association is very much central to this strategy. Here are my five tips that have helped me in my legal career and which I share with you: 1. Be part of your professional body – Play an active role in, the Law Society and its advocacy and thought-leadership work. With over 90 years’ history and over 4,000 members (including prominent and well-respected members of the legal profession) and a proud history of advocacy, you will have a strong support network through the Society. For less than the daily cost of your mobile phone, the benefits far outweigh the cost of your membership. The Law Society provides access to an influential network and significant support and guidance (including a mentorship programme) throughout your career journey.

2. Never stop learning and seek out quality professional development – participate in the Society’s highly regarded and relevant seminars presented by leaders in the profession and at discounted member rates and access the exclusive CPD Freedom subscription, it is unbeatable value. 3. Always be astute in managing your risk exposure – cap your occupational liability through the Society’s Professional Standards Scheme. 4. Work hard at staying connected – keep abreast of changes in legislation, case notes, local news and articles of interest and see what your colleagues are getting up to. 5. Get support when needed – for example, LawCare WA provides a wealth of resources on life, family, relationships, finances, health, education, work and career wellbeing, as well as three confidential and free counselling sessions through your membership with the Law Society. Make the most of your Law Society membership and be part of the history and future of the legal profession in WA. You can make a difference – and give your career a powerful advantage to achieve your career goals. How can you afford not to be a member of the Law Society?

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My Client the Bully Gino Dal Pont Professor, Faculty of Law, University of Tasmania Ethics Column There is a longstanding assumption in the law that the relationship between lawyer and client is characterised by imbalance. The lawyer, it is assumed, is in a position of power or dominance over the client. This assumption led the law, from early times, to view the lawyer-client relationship as giving rise to fiduciary duties, which are to this day construed with strictness. It also triggered the presumption of undue influence in respect of lawyer-client dealings, and informed the courts’ inherent jurisdiction to set aside costs agreements for unfairness or unreasonableness. Yet the modern legal environment has witnessed the rise of the multinational, a client with considerable clout, in what has become known as the ‘legal services market’. When coupled with the application of the tenets of competition policy to the legal profession, changes in community attitudes to professionals and various avenues designed to foster client empowerment, it can no longer be assumed that the power imbalance between lawyer and client runs the one way. It is perhaps unsurprising that the foregoing has translated, at least in some instances, to lawyers so closely aligning themselves with client demands as to undermine the independence traditionally associated with the lawyer-client relationship. This in turn can manifest itself not merely in disservice to the client — who, notwithstanding his or her demands, the law has always considered to be best served by independent advice — but in unethical or even illegal conduct by lawyers. It follows that lawyers must remain alert to the dangers of too closely identifying with their client. This explains why it is, generally speaking, not a good practice to act for persons with whom the lawyer has an emotional connection, such as family members. Disciplinary decisions reveal examples of lawyers who have acted for their spouses and, whether blinded by emotional attachment to their client or for some other reason, have behaved unethically.1 There are no doubt other occasions where unethical conduct has been motivated by the pressure of keeping a client, whether the pressure be financial (reaching budget) or reputational. Some 30 years or so ago, for instance, a Tasmanian legal practitioner was struck from the roll and imprisoned as a result of yielding to client demands to accelerate the settlement of a property transaction by “temporarily” using other clients’ funds to satisfy the client’s demands.2 Also, personal costs orders loom large against lawyers who fail to exercise a moderating influence on their clients’ excessive zeal in litigating.3 In some circumstances, the very personality of a client can test the lawyer’s mettle. Indeed, anecdotal reports

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indicate that clients are, on the whole, becoming more rather than less demanding. Moreover, in a time when “bullying”, whether in the schoolyard or in the workplace, has surfaced as a major societal issue, the prospect of clients seeking to “bully” their lawyer is hardly unrealistic. The experience of a New South Wales solicitor, who had misled his client and a government department, and fabricated a document, under pressure from a client’s relative, highlights the point.4 The facts revealed that the client’s brother bullied and intimidated the solicitor in seeking to secure a positive outcome for the client’s visa application, and that his communications with the solicitor heightened in aggression with the passage of time. Evidence from the solicitor’s treating psychiatrist indicated that the client’s brother became so “nagging, angry, demanding, repetitive and insistent” that the solicitor “felt defenceless, vulnerable, helpless and manipulated”.5 That the tribunal imposed the “lenient” sanction of a public reprimand coupled with a fine — largely influenced by the bullying and intimidation to which the solicitor was subject, and its satisfaction that the solicitor understood his susceptibility to bullying — should not be seen as downplaying the seriousness of the solicitor’s conduct. More to the point for the present purposes, it highlights that certain personality types may be ill suited to legal practice, or at least certain forms of legal practice. The fortitude needed to stand up to demanding clients (or associates of clients), though it may be developed through time, and sometimes even with professional assistance, is not always inherent. When combined with other challenges in legal practice — financial, management and liability-wise — that are intensifying rather than subsiding, the modern practice of law is not for the weak willed or faint hearted. Endnotes 1.

See, for example, Guss v Law Institute of Victoria Ltd [2006] VSCA 88; Legal Services Commissioner v Bradshaw [2008] LPT 9.

As to the criminal proceedings see Scott v The Queen (CCA(Tas), 18 December 1986, unreported).

See, for example, Wentworth v Rogers [1999] NSWCA 403 (where the lawyer was described as the client’s “lackey”, having been found to have done the client’s bidding for her, allowing the client to conduct the various applications before the court in whatever way she chose).

Council of the Law Society of New South Wales v Russell [2008] NSWADT 268.

Council of the Law Society of New South Wales v Russell [2008] NSWADT 268 at [14].

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

Child support – Application for maintenance of step-child must also seek child maintenance – FCC must follow FCA decisions unless plainly wrong In Eames [2018] FamCAFC 204 (1 November 2018) the Full Court (Alstergren DCJ, Aldridge & Austin JJ) dismissed with costs the father’s appeal from Judge Bender’s summary dismissal of his application for credit of child support payments he made to third parties in respect of the parties’ children and a declaration that he was lawfully obliged to maintain his new partner’s step-children. Judge Bender followed decisions of the Family Court of Australia to the effect that an application for maintenance of step-children under s 66M FLA must be coupled with an application for child maintenance under s 66F. The father appealed on the ground that there was FCC authority that contradicted that authority. The Full Court said (from [24]): “ … [W]e do not agree that there are competing authorities on the point. The position has been settled by a number of first instance decisions of the Family Court of Australia. There are two decisions of judges of the then Federal Magistrates Court of Australia to the contrary. ( … ) [26] It is clear that a court … is obliged to follow decisions of a court to which an appeal lies (Viro v The Queen [1978] HCA 9 … ) [27] However, no appeal lay from a decision of a judge of the [FMC] or lies from a judge of the [FCC] to a single judge of the Family Court of Australia sitting at first instance. [FCC] judges are therefore not bound to follow first instance Family Court decisions. ( … ) [28] This does not mean that the decisions of the Family Court should

not have been followed. Judicial comity required that those decisions be followed unless a judge was convinced that they were ‘plainly wrong’. ( … ) [29] A similar principle applies between judges of first instance ( … ) [30] The course taken by the primary judge entirely accorded with these principles. … ”

Property – Mother of post-divorce children fathered by former husband denied leave to apply for property order 30 years out of time In Emerald [2018] FamCAFC 217 (13 November 2018) the parties married in 1977 and divorced in 1984. Post-divorce three of their five children were born, they bought two properties together and the wife lived with the husband and his new wife for nine years. They separated in 2004. The husband applied to VCAT for a declaration that he was the sole owner of a joint property whereupon the wife, after seeking legal advice, applied to the Family Court of Australia for leave to seek property and maintenance orders. Cronin J relied on s 44(4)(b) and the wife’s Centrelink pension in granting leave for a maintenance application, but (at [66]) found that as the wife had not particularised her claim a finding of hardship if leave for a property case were refused was “difficult if not impossible”.

maintenance were different to those for a property order. Alstergren DCJ and Strickland J said (at [49]-[66]) that in the absence of particularisation of her property case the wife had failed to satisfy the test referred to in Sharp [2011] FamCAFC 150 that she had a prima facie claim worth pursuing. Murphy J disagreed, saying (at [119]) that “it was not reasonably open for his Honour to conclude that the absence of particularity in the wife’s claim for s 79 relief should lead to the conclusion that the wife would not suffer hardship if leave was refused”. The wife’s application for leave to proceed for maintenance was remitted for re-hearing.

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

In allowing the husband’s cross-appeal against leave for a maintenance case, the Full Court (Alstergren DCJ, Strickland J and Murphy JJ) held (at [32]-[35]) that Cronin J erred by applying s 44(4)(b) which did not come into operation until after the wife’s time limit had expired and (at [94]-[97]) that VCAT lacked jurisdiction to hear the husband’s claim, the wife’s proceedings being “a matrimonial cause … within the exclusive purview of courts exercising jurisdiction under the Act [which] plainly … does not include VCAT”. The Full Court also agreed (at [38]-[39]) that the criteria for hardship for

The Tale of the Naughty Comic Books By John McKechnie QC As all good stories begin, once upon a time more than 60 years ago, Australian girls were at risk of becoming lured into immorality and misfortune. Not by evil and manipulative men, but by comics with such salacious titles as Real Love, Darling Romance and other suggestive names. To deal with ‘this great menace in our midst’, Queensland established the Objectionable Literature Board (whether the literature or the board was objectionable is open to interpretation). Almost immediately it struck, banning a host of comic books; targeted it must be said on a group we would today call ‘teenagers’. Clearly these books were dangerous. The matron of a Salvation Army industrial home for girls had known girls to read the books from cover to cover and over and over again. Girls accustomed to reading these books were found to be excited and unbalanced in the presence of males, but their behaviour improved when deprived of the books in question. If this was not enough, a psychiatrist testified that the books constituted a danger to emotional, rather than intellectual interests. The Board banned the books. The publishers appealed to the Supreme Court. Alas, no succour there, although Sir Mostyn Hanger was on their side. The majority prevailed. The publishers did not let the matter rest. After all, the comic books were popular (and profitable).

This latter observation by the Three of course denotes that the books are obviously works of fiction. The Three found that the pages contain nothing prurient, lewd or licentious. There are adventures, short lived because of the size of the book, bad men, sometimes wealthy but the heroine always escapes by the aid of the strong embracing arms of a good young man on whom fortune is yet to smile. So what was the fuss all about? It appears that the books were illustrated. The eyes of the heroine are drawn with lids either drooping or unduly raised and her lips, though drawn in black and white, are obviously as rosy as lipstick can make them. “There is too an evident though crude attempt to infuse the subject with glamour, in the modern technical sense of the term.” Obviously, at least one of the Three was a fan of Robbie Burns who used the word ‘glamour’ in a less modern way. Or maybe they were just pedantic. It appears that all the heroine in any of the comic books did physically, was embrace and kiss. That may have been enough for the majority of the Court of Appeal to find obscenity but not for the Three.

So it was that after three elderly gentlemen had considered the content of Love Experiences and Popular Romances to name two more, novels written expressly for teenage girls, five elderly gentlemen would decide on the literary merits of the publications.

So what of the minority?

The result was a cliff hanger (or Hanger) 3:2.

He described the books as consecutive drawings in panels of young persons in postures of enthusiastic affection, often kissing and fondling and indulging in absurd slang and erotic patter: The motif is an accent on sex.

First the Three disposed of any idea that the works might be regarded as literature in the same league as Pride and Prejudice or Wuthering Heights. “What they contain is an affront to the intelligence of the reader… The stories are extremely silly, the letter press is stupid, the drawings are artless and crude and situations are absurd.” Tell us what you really think your Honours! But the Three reminded themselves that they are not concerned with the damage done to the intellect or for that matter, the eyesight of the readers. To modern readers accustomed to Judges who voraciously devour every document before an appeal commences, it may come as a surprise that the court did not actually read the books until after hearing the argument as to why they were obscene. Then the Three were surprised. When they turned to the publications, their actual character proved quite unexpected. The theme of nearly all is love, courtship and marriage, virtue never falters and right triumphs. Matrimony is the proper end and if you are not told that happiness ensues, it is the constant assumption.

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Sir Edward McTiernan was 64. He had married less than 10 years before and had no children.

You can tell the way this is going. And of course if does. “All of the books are calculated to excite the amorous passions of adolescents and immature persons and to infect those who are sweethearts with brutish standards of behaviour unworthy of the custom of courtship and the institution of marriage.” Justice Webb was no less forthright. He was satisfied that reading the books would engender a desire to seek similar experience and stimulate in them immoral sexual behaviour. And so virtue either triumphed or was defeated according to your personal point of view and the girls of Australia were free to read comic book romances to their hearts’ content. All the Judges, sad to say, have passed on so leaving an unanswerable question: What would each one make of Mills & Boon (100 books a month), Tinder and The Bachelor? (Adapted from Transport Publishing Co Pty Ltd v Literature Board of Review (1956) 99 CLR 111)

Ex Juris: Travel Tales from the Legal Profession Vietnam

Australians are great travelers and lawyers are no different. Each month a reader of Brief tells us about their favourite travel destination. Older lawyers may view a visit to Vietnam with mixed feelings. Some were conscripted to serve there while others remember the angst and passion surrounding what the Vietnamese describe as "The American War". Younger lawyers have enjoyed the scenery, the food, the mountains, the beaches and above all, the friendliness of the people. Being in the former category, I approached a forthcoming trip to Vietnam with mixed feelings. My preconceptions were all confounded. We found modern cities, towns steeped in history and a general vibrancy. The Vietnamese describe their political system as open communism but rampant capitalism seems a better describer, especially in Ho Chi Minh City (formerly Saigon). Because of the French influence in Indochina, the bigger cities such as Ha Noi are laid out along Haussmann lines – broad boulevardes, green parks. Many French colonial buildings including opera houses remain intact alongside more purposeful structures.

I believe it. Crossing the road is an adventure but the trick is to walk slowly and steadily. Uniformed volunteers will guide you across. Keep calm and carry on.

covered bridge. Or visit the bridge held up with giant hands.

Ha Noi was heavily bombed during the war but is now largely rebuilt. It is worth at least a few days' stay to take in the sights and smells, bustle and bedlam.

Big boisterous and rapacious, it has a feel that it never quite lost the war. Unlike Ha Noi, it was not bombed (except for one bomb which fell on the Presidential Palace from a plane flown by a North Vietnamese spy).

Drink the coffee, eat a bánh mì and look at the passing parade of motorcycles carrying everything from families to mattresses (really). Hue, by the Perfume River, was the home of the Imperial City for 200 years. Though much was destroyed in wars, the remaining gardens and buildings are fascinating. There are many things to do in Hue and at least three days is recommended.

Our visit commenced in Ha Long Bay. Everyone has seen pictures of the bay with its thousands of islands which are as beautiful as the pictures suggest.

If you are not careful, a visit to Vietnam can become an ABP (another bloody pagoda) tour. There are enough pagodas and temples to last a lifetime. That said, check out the Lady Buddha in Da Nang, 72 metres tall.

What the pictures do not prepare a traveller for are the many junks and tourists. Cruising the bay is like being in an endless traffic line. The once deserted beach is now lined with resort hotels and the giant sun wheel overlooking the bay.

Da Nang itself is a tourist paradise, though why West Australians want to travel to white beaches and good surf is a mystery to me! Da Nang has these and more – marble mountains, monkeys and a bridge that looks like a dragon.

Ha Noi is two and a half hours' drive on a good motorway – until you come to the outskirts. It is said there are 10 million people and six million motorcycles.

Nearby on Hoi An, history buffs can wander through the old town with houses dating back to the 16th century and narrow streets, lanes and the Japanese

Ho Chi Minh City is another destination that needs several days to savour.

So the French architecture and prosperous Vietnamese buildings remain. All that is missing is quiet. The city never sleeps. For the less acrophobic, a visit to the EON Heli Bar is a must – 42 floors above the city. A visitor can queue for a ticket to the observation platform or, much better, take a lift to the bar and drink a cocktail looking down on one of Asia's great cities. This first time to Vietnam skimmed through only cities. A second trip to the mountains and the Mekong Delta is on the cards.

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

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

Well, here we are in 2019. Another year has flown by, the year-end break being little more than a distant memory. We have arrived in the Year of the Pig, according to the Chinese horoscope said to be a year of good fortune, and a time to invest! February is one of those months in the year when the entertainment world hits a high note, with the Perth Fringe Festival winding up to its finale, and the Perth Festival commencing – 63 years since it first commenced. The infinite variety of different performances on offer in February 2019, ranging from The Magic Flute, Gatz, Cat Power, the wide range of films from different countries and other artistic works is awe inspiring. It draws together such a wide range of talent, and caters to such a diversity of interests and tastes. We are fortunate. On the other side of the coin, your Dog wonders what the year will bring? A Federal election looms, perhaps leading to a change of government. If so, will the proposed changes to the law relating to negative gearing of investments in property and shares come to fruition, and in what form? What will the changes be to the declaration and payment of franked dividends, carrying an imputation credit for the tax paid by the distributing company? In 1986 the then Labor Government introduced legislation to abolish “negative gearing”, on the basis that allowing the deduction of interest and other expenses against income derived from letting and hiring property resulted in “the general tax paying community” being obliged effectively to subsidise the acquisition of investments by “a particular group of taxpayers”. It was claimed negative gearing had resulted in the increase of property prices, to the detriment of ordinary homebuyers. As Blind Freddy knows, if one’s expenses exceed one’s income, bankruptcy follows. As it turned out, when the legislation had been in force for little more than 18 months, its operation was suspended, because rentals rose. The legislation was later repealed. There was no evidence that the cost of housing had increased by reason of negative gearing – more likely it increased by reason of the shortage of suitable property, the cost of and delays attendant upon obtaining approvals, establishing and servicing new townships, the holding costs, interest charges and inflation. One wonders what the effect of the proposed legislation will be this time around on the acquisition and holding of immovable property for letting and hiring, and the acquisition of investments. One also wonders what will occur to the imputation system. The payment of franked dividends simply enables the recipient to claim an offset of tax payable against the imputed credit. Of course, this operates to the financial advantage of those entitled to claim a refund of the imputation credit, including industry superannuation and self-managed superannuation funds, notably to the benefit of those in pension phase. In turn that reduces their dependence on the public purse. Your Dog anticipates that the French saying plus ça change, plus c’est la même chose will once again apply.

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There is a curious disconnect when governments claim that allowing some concession, either by way of exemption or deduction, comes at a “cost to the government”. After all, the money was never that of the government. What about the multiplier effect of expenditure and investment of capital? Mr Kerry Packer famously commented there is little evidence that politicians and bureaucrats are better able to invest and generate returns than those who made the money in the first place. It would be fascinating to have a crystal ball to divine what will happen on the international stage, as much as on the national stage. No doubt the government of the USA will continue its attempts to boost its economy at the expense of the Chinese economy. Hopefully a trade war, to call it that, will not develop into something more serious. We know from experience that the best way of achieving full employment and increased activity is by placing an economy on a war footing. Merely imposing tariffs does not necessarily result in substitution of home-made products. This is all rather glum reading! Turning to something more amusing, a woman drove home, the front of her car covered in branches, sticks, leaves, mud and lots of blood. “I am really sorry about the car,” she said to her husband. “I hit a lawyer on the way home.” “Well, that explains the blood,” said the husband, “but what about the other stuff?” “I had to chase him through the park,” said the woman. Australia’s sporting achievements took a knock in 2018, with poor showings in cricket, rugby and some other sports. One marvels at the activities which went on amongst board members at Cricket Australia, Rugby Australia and others. There is a tendency by those who occupy those and similar positions so to use them as to derive financial advantage for themselves. This tendency was demonstrated by the evidence at the hearings of the Royal Commission into Banking and Financial Services. One wonders what the Commission will recommend in relation to remuneration of staff and executives, to move away from financial incentives, commissions and the like to something else, whatever that may be. The evidence given by the Chief Executives of the banks in the Seventh Round of hearings in November 2018 underscores a view that the pursuit of financial gain became an object in itself, ignoring the interests of customers and clients of those financial institutions, either to prefer the interests of shareholders or of themselves. Coupled with changes to financial planning rules, the economic climate may change considerably by the end of 2019. In the theatrical Camelot, the King (Richard Burton) explained that when the simple folk felt down and disheartened, they whistled to cheer themselves up. Your Dog frequently turns to You Tube, amongst others to play the Notturno in E Flat Major, Opus 148, D 897, composed by Franz Schubert, as played by Wesolowska, Kostecki and Firlej, a magnificent piece of music. It soothes the soul!

Law Council Update Cautious approach for sex offender register required, says Law Council While the Law Council of Australia does not object in principle to the establishment of a National Public Register of Child Sex Offenders, it believes only offenders who pose a demonstrated risk to children should be required to register. Law Council President, Arthur Moses SC, said such a register had to be stringently monitored to avoid unintended consequences or errors and only apply to high-level offending. He also stated inclusion on such a register should never be automatic. “For all offenders, inclusion on child sex offender registers should always be at the discretion of, and by order of, the sentencing court, upon application by the prosecution, or upon application to a court after a high-risk offender has served their sentence,” Mr Moses said. “Inclusion brings onerous reporting obligations like ongoing police monitoring of, and involvement in a person’s activities, the risk of adverse community attention, and vigilantism. Therefore, only offenders posing a demonstrated risk should be required to register. “Sentencing courts should be granted a discretion to take into account the individual circumstances of the offence and offender in determining whether an eligible person should be required to register and report.” Mr Moses also raised issues relating to the perceived deterrent effect of such registers, noting evidence from the US, where public sex offender registers have existed for several decades, which has shown they do not reduce recidivism or prevent sex offending in the general community. “The establishment of a National Public Register of Child Sex Offenders must be approached cautiously and take into account the experience of countries where such registers exist,” Mr Moses said. “A public sex offender register is not a silver bullet and, as such, must be developed in a way that respects the rule of law. “Child sex offences are amongst the most abhorrent that come before our courts and, as the recent Royal Commission illustrated, for too long offenders were placed in a position where they could reoffend. “This is why we need to get it right - we must

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be careful to ensure laws are not enacted that create negative unintended consequences that impact the wider community. We look forward to consulting with the parliament on this important issue.”

Joint statement: Law Council of Australia and Law Society of Western Australia regarding imprisonment for unpaid fines The Law Council of Australia and the Law Society of Western Australia urge the Western Australian government to repeal laws that provide for imprisonment as a result of unpaid fines. Imprisonment for fine default disproportionately impacts people who experience significant disadvantage, including Aboriginal and Torres Strait Islander people, and particularly Aboriginal and Torres Strait Islander women. It has a discriminatory impact upon those who are cannot afford to pay fines. In these circumstances, we consider imprisonment for fine default to be an unjust and disproportionate punishment. Reports Aboriginal women have been arrested for unpaid fines while trying to report domestic violence situations are unacceptable. We are also deeply concerned single mothers with young children have been detained under the laws. The Law Council of Australia’s Justice Project found Aboriginal and Torres Strait Islander people were overrepresented as fine recipients and often have a limited capacity to pay the fine upon receipt, due to factors such as financial capacity, itinerancy, social isolation and literacy levels. The Justice Project called for imprisonment arising from fine default to be abolished in all jurisdictions. It recommended the adoption of Work and Development Orders as an alternative model for addressing fine default. There is something inherently dysfunctional and ineffective about a system of social control which relies on getting money from people who do not have it and which results in the life threatening risk and social disruption of imprisonment. Any further delay in repealing laws that permit imprisonment for fine default will only result in further injustices. It is the role of legislators to act promptly when evidence is presented that laws are operating unjustly or result in vulnerable members of the community being imprisoned at disproportionately high rates.”

This is an issue that needs to be dealt with immediately and we offer our full support to WA Attorney General John Quigley in dealing with these matters.

Law Council backs the establishment of Commonwealth Integrity Commission The Law Council has strongly welcomed the Australian Government’s announcement of the establishment of a new Commonwealth Integrity Commission (CIC), aimed at detecting and preventing official corruption by commonwealth employees. The new body will lead Australia’s multi-agency anti-corruption framework and operate under two divisions – the public sector integrity and law enforcement integrity divisions. Law Council of Australia former President, Morry Bailes, said at first glance, the proposed CIC model and its functions is a truly positive step. “This is a huge leap for Australian public accountability and transparency and for that the Government needs to be applauded,” Mr Bailes said. “The CIC would apply more stringent accountability measures to not only all government bodies, departments and staff, but also members of parliament and their staff.” Mr Bailes said that the Law Council has supported the establishment of a national integrity commission for some time. “Official corruption is a serious issue here and around the world, undermining democratic processes, jeopardising economic development and threatening stability,” Mr Bailes said. “We will be examining the consultation paper thoroughly, as it is vital we strike a balance between transparency and ensuring the rights and reputations of individuals. “What we must not have unintended consequences which could have devastating outcomes for those affected. People can have their lives destroyed if we don’t get it right. “It is also essential the coervice powers exercised by the CIC through private chamber hearings are not abused and that there are rights enshrined to protect legal professional privilege,” Mr Bailes said. The Law Council looks forward to working with government, and parliament, to ensure the CIC is an effective, ethical and transparent official watchdog.

Professional Announcements Career moves and changes in the profession

Park Legal Solutions and Kott Gunning Lawyers combine forces HHG Legal Group HHG Legal Group is delighted to welcome Erin Doran and Eliza Fitzgerald as Solicitors to the Family Law team in Perth and Mischelle Hattrick to the team in Mandurah.

HLS Legal HLS Legal is delighted to announce the promotion of Amber Roncoroni to the position of Senior Associate. This promotion recognises Amber’s Amber Roncoroni extensive knowledge and understanding of industrial relations and employment law, as well as her continual dedication to achieving the best results for her clients. HLS Legal congratulates Amber on this much deserved promotion.

Kott Gunning Lawyers is pleased to announce that we are kicking off our 100th year with prominent property and strata titles lawyer John Park and members of the Park Legal Solutions team, combining forces. Park Legal Solutions is a successful CBD general contentious and non-contentious legal practice with a particular focus on strata property matters on which John is considered a market leader in Western Australia. John is well regarded within the property sector as a skilled negotiator on behalf of clients on contract, strata and franchising matters. The Park Legal Solutions team will enhance Kott Gunning’s strong property, commercial, franchising, insolvency litigation, family law and debt recovery services by providing further capacity. Also joining Kott Gunning’s Commercial Dispute Resolution team from Park Legal Solutions are lawyer Jack Carroll, law graduate Abbi Beckwith and law clerk Rebecca Barker.

Danielle Bechelet

Chenara Holford

Avon Legal Avon Legal is delighted to announce the promotion of Chenara Holford to Senior Associate. Chenara works in our Commercial Team and has extensive experience in commercial, business and property law. We extend our congratulations to Chenara on her promotion. Avon Legal is delighted to announce the promotion of Danielle Bechelet to Senior Associate. Danielle works in our Wills and Estates Team and has extensive experience in all areas of estate planning and the administration of deceased estates. We extend our congratulations to Danielle on her promotion.

Trent Passmore has also joined Kott Gunning’s Insurance Team as a Senior Associate, from Separovic Injury Lawyers.

Vibe Legal Pty Ltd

Sarah Brown

Dianne Caruso

Kim Wilson & Co Kim Wilson & Co Family Lawyers are pleased to announce that Sarah Brown and Dianne Caruso have been appointed Senior Associates of the firm from 1 January 2019.

O'Sullivan Davies Lawyers O’Sullivan Davies is delighted to announce the appointment of James Claringbold as a partner of the firm.

Vibe Legal Pty Ltd is pleased to announce the appointment of Leo Barry as their new Practice Director, with overall management of the practice. Leo was Leo Barry educated in Ireland and holds a first class honours degree in legal and business studies and a post graduate law degree. After graduating, Leo practiced as a general commercial lawyer and since moving to Perth, has gained several years’ experience in family law. Before joining Vibe Legal, Leo took a short 6-month career detour, to take up a role as a banking and finance lawyer with a national top tier firm, which provided invaluable experience that helped him re-discover his passion for commercial law.

Michael Stulic

Jordie Fienberg

Pragma Legal Pragma Legal are pleased to announce the appointment of Michael Stulic as Lawyer and Jordie Fienberg as Graduate Lawyer. Michael graduated from Murdoch University with a Bachelor of Laws in 2015 and was admitted to practice in the Supreme Court of Western Australia in 2016. Jordie graduated from the University of Notre Dame Australia with a Bachelor of Laws and Bachelor of Commerce (majoring in Finance) in 2018.

The promotion of James James Claringbold to partner recognises his exceptional client service, technical skill and his commitment to becoming a leader in his field. James has considerable experience in complex financial settlements and the law relating to de facto relationships and is recognised in Doyle’s Guide “Leading Family & Divorce Lawyers – WA 2018”.

Classifieds Missing Will

Missing Will

BRETT, Kenneth John late of 36B Transit Way, Mullaloo, WA (formerly of 35 Beagle Street, Mosman Park, WA) who died on 18 October 2018. Would any person holding his last Will and Testament or knowing the whereabouts of such last Will please contact Irdi Legal at PO Box 95, Leederville WA 6902 or 9443 2544 (Ref: NS 20190990).

Would any person or firm holding or knowing the existence or whereabouts of a Will or other testamentary document of DANIEL GRAEME WALL PRICE, (DOB 07/08/1987), late of 21 Redfern Bend, Clarkson, Western Australia, Logistics Officer, who died on or about 3 November 2018, please contact LSV Borrello Lawyers (Addr) Level 27, Exchange Tower, 2 The Esplanade, Perth (Tel) (08) 9404 9100 (Eml) info@lsvb.com.au

Missing Will

Would any person holding or knowing the whereabouts of the last Will and Testament of the late ANTONIN PRAZSKY also known as ANTHONY PRAZSKY late of 3A Ben Close, Craigie, Western Australia who died on 21 January 2018 please contact Paul Haynes at HAYNES LEEUWIN, PO Box 205, Osborne Park WA 6917 Tel: +61 8 9409 6300 or email: admin@haynesleeuwin.com.au within one month of the date of publication of this advertisement.

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

PERTH’S BUSINESS VALUATION EXPERTS  Family Law Disputes  Partnership Dissolutions and Admissions

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

Graham O’Hehir MBA

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

www.buyabusiness.com.au

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

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

New Members New members joining the Law Society (December to January 2019) Ordinary Membership

Associate Membership

Mrs Kathryn Hunter Norton Rose Fulbright Australia

Miss Jo Barrett-Lennard University of New England

Restricted Practitioner Mr Paul Hutchings CGL Legal Mr Alistair Sullivan Pragma Legal

48 | BRIEF FEBRUARY 2019

Mr Michael Janssen Janssen + Maluga Legal Dr Sarath Jayawardana Miss Sarah Lefroy Murdoch University - Faculty of Law & Business

Miss Chelsea McNeill Lynn & Brown Lawyers Mr Darren Montgomery Murdoch University - School of Law Ms Brenda Van Rensburg Murdoch University - School of Law Mr Joseph Waters The University of Western Australia Business & Law UWA Library

Events Calendar

With thanks to our CPD partner

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

FEBRUARY 2019 Membership Event Wednesday, 13 February Society Sundowner

MARCH 2019 Membership Event Friday, 1 March YLC Beach Volleyball Competition

APRIL 2019 Membership Event Commencing early April Pilates Classes â&#x20AC;&#x201C; Six week course

MAY 2019 Membership Events Monday, 13 May Law Week Breakfast and the 2019 Attorney Generalâ&#x20AC;&#x2122;s Community Service Law Awards Tuesday, 14 May Law Access Walk for Justice

Date to be confirmed Social Justice Career Opportunities Evening Friday, 17 May Law Week Cocktail Party and 2019 Lawyer of the Year Awards

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