Brief July 2019

VOLUME 46 | NUMBER 6 | JULY 2019

Blowing the Whistle: New Laws Explained Also inside Ethics and the Media Free Press Key to Our Democracy Interview with the Hon Justice Gail Sutherland Welcome to the Honourable Justice Hill Working with Elderly Clients 2019 WA Arbitration Report

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Volume 46 | Number 56 | June July 2019 2019

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CONTENTS

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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.).

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Ethics and the Media

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Working with Elderly Clients

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Opinion Piece: Free Press is Key to Our Democracy

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2019 WA Arbitration Report

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The Federal and State Courts on Constitutional Law: The 2018 Term

Published monthly (except January)

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Essentials of Advocacy and Negotiation Wrap Up

Communications and Design Officer: Charles McDonald

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Mentoring Matters – Law Society Mentoring Programme

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Geoff Ajduk Memorial Prize

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Gosnells Community Legal Centre’s Principal Solicitor Linda Saverimutto Retires After 28 Years of Dedicated Service to the Local Community

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New Whistleblowing Laws, Risks, Policies and Changes Explained Interview with the Hon Justice Gail Sutherland, Chief Judge of the Family Court of Western Australia How Family Violence Impacts on Property Settlement Proceedings

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Welcome to the Honourable Justice Hill

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D v Edgar [2019] WASC 183

The trade mark BRIEF is the subject of registered trade mark 1253722 and is owned by the Law Society of Western Australia (Inc). Trade mark 1253722 is registered for Western Australia.

Advertising enquiries to Manager Marketing and Communications: Madeleine McErlain Tel: (08) 9324 8650 | Email: mmcerlain@lawsocietywa.asn.au Senior Communications and Media Officer: Andrew MacNiven RRP $16.00 incl GST. Printed by Vanguard Press

Editor: Jason MacLaurin Editorial Committee: Gregory Boyle, Thomas Camp, Jack Carroll, Dr Rebecca Collins, The Natalie HonConnor, John McKechnie The Hon John QC, McKechnie Dr Pat Saraceni, QC, Dr Pat Saraceni, Robert Sceales, Eu-Min Robert Sceales, Teng 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

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

REGULARS

Immediate Past President: Hayley Cormann

02 President's Report

45 Cartoon

Ordinary Members: Jocelyne Boujos, Nathan Ebbs, Ante Golem, Emma Griffiths, Matthew Karina Hafford, Howard Matthew SC, Fiona Howard Low, SC, GaryJoanna Mack, Knoth, Denis Fiona Low, McLeod, Jodie Denis Moffat, McLeod, Shayla Jodie Strapps, Moffat,Paula Shayla Wilkinson, Strapps,Joel Paula Yeldon Wilkinson

04 Editor's Opinion

46 Law Council Update

Junior Members: Brooke Zoe Bush, Sojan, Brooke Demi Sojan, SwainDemi Swain

37 Taxing Matt­ers

47 Professional Announcements

38 Ethics Column

48 New Members

42 Family Law Case Notes

48 Classifieds

43 Quirky Case

49 Events Calendar

44 Drover's Dog

Country Member: Kerstin Stringer Chief Executive Officer: David Price

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PRESIDENT'S REPORT Greg McIntyre SC President, The Law Society of Western Australia Renew Your Essential Membership The new Law Society membership year commenced on 1 July 2019. Thank you to all members who have renewed for 2019/20.

If you are yet to renew your membership, I encourage you to do so before 31 July.

After that date you will lose access to membership benefits, including your subscription to Brief and other essential communications.

Please visit lawsocietywa.asn.au/ membership-renewal to renew online. For assistance with your membership, please contact our Membership Team on (08) 9324 8692 or membership@lawsocietywa.asn.au.

Law Society Organisational Review As part of its commitment to maintaining organisational excellence, strong advocacy and high value services, the Society has invited suitable consultants to submit proposals to undertake an Organisational Review.

The 2018 Member Survey found that the Society is well-regarded as the voice of the legal profession. The Society will continue to strive to provide members with the best possible value for their membership and to support members throughout their careers.

A Selection Panel determined by the Society’s Council will now consider the proposals and appoint a suitable organisation or person to undertake the Organisational Review.

Family Law Practitioners’ Association Submission The Family Law Practitioners’ Association has made a submission urging the State and Commonwealth Governments to ensure appropriate resources are provided to the Family Court of WA to meet the Court’s accommodation requirements, including providing secure facilities that ensure the separation of litigants and do not expose judicial officers to unnecessary risks. The Society’s Council has decided to support the submission.

The Future of the Legal Profession Strategic Campaign – Update The Future of the Legal Profession is a key strategic focus for the Society. Since December 2018, the Society’s Ethics Committee has considered a project to review the Ethical and Practice Guidelines, including considering new guidelines

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on technology. The Ethics Committee has agreed to defer this project until the draft legislation for introducing Uniform Law in Western Australia is available, to ensure consistency between the proposed legislation and any amendments to the Guidelines. The Society has also raised with the Law Council of Australia the possibility of preparing national guidelines on the use of technology by lawyers.

The Society has convened a Legal Profession Uniform Law Working Group (LPUL Working Group) consisting of representatives from a number of relevant committees, the Legal Practice Board and large firms to review issues relating to the adoption of the Uniform Law in WA. The LPUL Working Group will also act as a reference point for making recommendations to the Society’s Council in relation to matters being considered by the Office of the Solicitor General.

National Environmental Law Association Position Paper In a Position Paper of April 2019, the National Environmental Law Association (NELA) recommended that appeals under the Environmental Protection Act should be heard and determined by the State Administrative Tribunal. The Society’s Council has agreed to support those recommendations, but does not at this time commit itself to the NELA recommendations for third party planning appeals.

2020-2023 Strategic Plan The Society’s current Strategic Plan comes to an end on 30 June 2020. The Society’s Council has adopted a new 2020-2023 Strategic Plan effective from 1 July 2020. The 2020-2023 Strategic Plan retains the current Vision for the Society as “the essential membership for the legal profession” and the Purpose “the voice of the legal profession” while introducing four new strategic imperatives: •

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“A strong and respected voice” – proactively engaging with key stakeholders to influence positive change for the profession; “A vital support to members” – delivering targeted, relevant and highly valued services, including offering support, events, and access to communities; “A sustainable and supported future for members” – working with members to identify the driving forces

of change in the profession, and to develop programmes and services to help them pursue a sustainable career in law; and •

“A forward-thinking organisation delivering value to members” – an engaged, sustainable, and forwardthinking organisation where Council, Committee members and staff are aligned with the Vision and Purpose.

CCIWA Payroll Tax Campaign The Law Society has joined other peak industry bodies in supporting the Chamber of Commerce and Industry WA (CCIWA) campaign to increase the payroll tax threshold for small businesses. The campaign calls upon the State Government to raise the payroll tax threshold by $100,000 to $950,000, which CCIWA estimates will create almost 900 additional jobs in the first year and potentially boost the State’s economy by over $280 million.

NAIDOC Week NAIDOC Week ran from 7 to 14 July 2019.

NAIDOC Week celebrations were held across Australia to celebrate the history, culture and achievements of Aboriginal and Torres Strait Islander peoples. The Society recently signified its support for National Reconciliation Week, with a banner flying in St Georges Terrace.

The Society maintains a Reconciliation Action Plan, representing its commitment to the vision of a legal profession where Aboriginal and Torres Strait Islander law students, graduates and practitioners feel valued and respected. Find out more at lawsocietywa.asn.au/reconciliation-actionplan.

New Council Members I would like to take the opportunity to thank Karina Hafford, Joanna Knoth and Zoe Bush for their service as Members of the Society’s Council. These Members have resigned their positions on Council to pursue new opportunities in their careers.

The Council has resolved to appoint Joel Yeldon and Gary Mack until 31 December 2019 to fill the Council Ordinary Member vacancies. I warmly welcome our new Council Members.

The Young Lawyers Committee has been requested to nominate a person for Council’s consideration to fill the Junior Member vacancy until 31 December 2019, created by the resignation of Zoe Bush.

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

This edition’s feature article on ‘New Whistleblowing Laws’ by Messina Angelis concerns an important issue, not only for lawyers, but for the community as a whole. It is accompanied by other items on related topics, such as Arthur Moses SC’s ‘Free Press is Key to Our Democracy’, and Craig Slater’s ‘Ethics and the Media’.

The edition also, hopefully, demonstrates the diverse content which Brief strives to provide. We are also grateful for letters to the Editor, one of which appears below.

Please keep them coming1.

This edition also – in addition to the happily regular Drovers’ Dog and Quirky Cases – has many other fine articles, to pick just a few, Brian Millar and Scott Ellis on the important initiative of the 2019 WA Arbitration Report, Claire Thompson’s Taxing Matters article, and Susan Fielding on ‘Working with Elderly Clients’. We also have the welcome ceremony for the Hon Justice Jenni Hill of the Supreme Court, and an interview with the Chief Judge of the Family Court of Western Australia, the Hon Justice Gail Sutherland.

July 2019 is replete with significant anniversaries, including the 50th anniversary of the 16-24 July 1969 Moon landing mission. The Moon landing may lack a strong connection to the law and WA, though an interesting snippet is found in the Canberra Times’ coverage of the big day2: noting that the WA Education Minister had not, unlike his State and Territory colleagues, given WA schoolchildren a holiday to watch the event, whereas the Prisons Minister had allowed Fremantle Prison inmates the “morning off”3 to watch the landing.

There is a real possibility some inmates were prematurely but mistakenly jubilant, packing up their belongings, upon being told the Prisons Minister had granted them “free time”4.

As to another significant anniversary, the moon landing did help keep off the front pages, for a while, Ted Kennedy’s Chappaquiddick incident on 18 July 1969.

Chappaquiddick is a good example of the value of lawyers and whistleblowers, in that there were way too many of the former and way too few of the latter.

Kennedy showed his appreciation of the importance of lawyers by ensuring that 04 | BRIEF JULY 2019

for the 12 hours after he left Mary Jo Kopechne in a submerged car, he only consulted with them (most of whom he was related to – which, admittedly, was hard to avoid, in Massachusetts). Even lawyers have to admit that it would have been better, in this instance, for Kennedy to have contacted, not lawyers, but perhaps police, emergency services, the hospital, the mayor, the local publican and or/drunk, the guy who runs the fish and bait and last minute formal wear rental store (etc). Really, anyone but lawyers. Though it should be noted that it was two Kennedy confidant attorneys, Joe Gargan5 and Paul Markham, who were the first ones to actually dive into the water and try to save Kopechne.

Whistleblowing is a phrase that has been around for some time. Indeed, the term (and similar phrases) has a history of usage beyond the law. The protection given to whistleblowers is increasing and expanding. In no small measure, in the AFL. Just ask the Richmond cheer squad who are being monitored for their behavior after one of their number called an umpire a “green maggot”.

Now of course this is a rude, mean, uncivil and nowadays probably unacceptable.

However, it also demonstrates a certain Australian quality of insisting upon and sticking to a tried and true traditional insult handed down from generation to generation, notwithstanding its questionable entomological accuracy6.

Whistleblowers and associated imagery are embedded in popular culture – sometimes with romantic connotations (and this is not a reference to the shenanigans certain whistleblowers enjoy in the Ecuadorian embassy – until recently – with Pamela Anderson). No, reference in this regard is to one of the most electric scenes in movie history – when a 20-year old Lauren Bacall said to a then 44-year old Humphrey Bogart: “You know how to whistle, don’t you Steve? You just put your lips together, and blow”.

The line is in fact from 1944’s To Have and Have Not, though like many famous movie lines it is often misattributed to other great movies of the era, from Double Indemnity to The Maltese Falcon, or even the sequel The Maltese Falcon Flies Again7.

Of course, given Bogart’s notorious smoking habits, which ultimately took his life, even at 44 it may have been a genuine enquiry, as to his lung capacity, whether he remembered how to whistle.

And the romance? Well, after meeting on that movie, Becall became Bogart’s fourth wife and despite the bookies probably paying out early on any bets that there would be five or more, they remained happily married until Bogart’s death from cancer in 1957.

And more as to the romance? In Bogart’s urn of ashes8 Becall put a small silver whistle with a simple inscription: “If you want anything, just whistle.”

They sure don’t make them like they used to.

NOTES: 1.

Other than the ones demanding massive payments in Bitcoin by a particular date, or else.

2.

The Canberra Times, 22 July 1969, page 6.

3.

From what one dreads to ask.

4.

To then find out the exquisite irony of their “free time” being to witness mankind breaking free from the bondage of the planet and its atmosphere, and enjoying a celestial freedom.

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Played in the movie Chappaquiddick by Ed Helms of The Hangover and its sequels fame, in an exquisite bit of ironic casting (whether intentional or unintentional).

6.

There are possibly readers of Brief who have never witnessed first-hand an AFL game where umpires wore white.

7.

This latter is of course a deliberate error to test the younger readers of Brief.

8.

Which are possibly 50% Bogart and 50% cigarette and cigar ash.

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

Letter to the Editor Dear Jason I refer to your April 2019 column which mentions The Disastrous Dinner Date of Groucho Marx and T.S. Eliot.

Perhaps the ice between the two would have been broken had Groucho observed that T.S. Eliot is an anagram of toilets.

Kind regards Craig Slarke, Partner, McLeods Barristers & Solicitors

FIND A LAWYER The Law Society’s Find a Lawyer database is the perfect place to connect your practice to the community.

Key reasons to be on Find a Lawyer: • Get FREE referrals from the Law Society • Our database is filtered by area of law, location and language • Have your firm’s details displayed on the Society’s website • The Find a Lawyer web page has over 10,000 views per year

To ensure your firm is eligible for the Find a Lawyer database, at least 50% of your firm’s legal practitioners must be members of the Law Society.

P: (08) 9324 8600 | E: info@lawsocietywa.asn.au | W: lawsocietywa.asn.au The Find a Lawyer service randomly generates referrals based on area of law, location and language. The Society facilitates this service between members and the community, we do not screen, verify or recommend a firm, their capability or experience.

Ethics and the Media

By Craig Slater Barrister, Francis Burt Chambers

Introduction The inherent or implied and more recently statutory power to control practitioners is most visibly exercised when practitioners are restrained from acting in breach of confidence or against former clients. It is also exercised through the reference of complaints to statutory complaints bodies. The policy behind the rules governing professional conduct is partly directed to maintaining an efficient and respected system for the administration of justice.

From time to time practitioners are asked to act for clients whose activities are the subject of some interest in the community and the subject of some focus by media organisations. This article addresses some of the rules that affect how practitioners can represent clients and address the media and provide some practical examples for assisting clients with the wider media.

Authority and retainer For the most part the duties and obligations between a lawyer and the client will be determined by the retainer.

The scope of the instructions largely sets the obligations and authority to act. The instructions lead to a duty of care and obligations of confidentiality and are of a fiduciary nature.

As an agent of the client (depending on the terms of the retainer) it is likely a lawyer holds an implied authority to do all that is incidental to the object of the representation1 including that which is “necessary and reasonably available to protect client’s interests”.

Discussions with the media are sometimes the subject of a complaint that they were made without instructions from the client. Lawyers should seek express instructions before speaking to the media. The instructions should include who to communicate with and what to say. An extended authority (beyond express instructions) should be a fall back relied upon only where direct instructions and authority from the

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client were or are not available. Actions beyond the scope of the retainer and without express authority from the client are likely to be of particular interest to enforcement authorities considering a complaint.

Confidentiality The purpose of communications with the client is to guide the client to an understanding of relevant legal issues and enable the client to make informed choices. To assist a client to make those choices, the client has to provide instructions.

The rules require the client's instructions to be kept confidential. The duty of confidentiality survives termination of the retainer. The court may restrain a practitioner from abusing knowledge of that information.

Information provided by a client or potential client is presumed to be confidential2.

The practitioner has a duty to keep all information confidential that he or she would not have received but for the relationship with the client. It does not matter that some of the information is a matter of public record. Practitioners repeating information, including publicly available information, can confer an authenticity which the record may not have otherwise. The practitioner’s own views on the client’s matter are also confidential (and probably also protected by a client privilege).

Where a client needs to provide information to the media and cannot do it directly the practitioner who is asked to provide otherwise confidential information should attempt to do that with express instructions, should be conservative in expressing the information and only act in the best interests of the client.

Conflicts of interest Lawyers have obligations of undivided faithfulness to clients and must avoid

conflicts of interest. It would be a conflict of interest to use the occasion of the disclosure of client information to the media as an opportunity to advance a personal career aspiration.

Duty to preserve the integrity of hearings Because court proceedings are lengthy and for lengthy periods of time uninteresting they have to be summarised for the public. The media have undertaken that role.

The difficulty is that a fair summary of the process or outcome is easily derailed by the specialised or partisan views of the parties.

The views of those practitioners involved or attending the hearing are often given great authority by the media and the public and so practitioners dealing with the public and media must carefully observe their obligation to the court process by fairly reporting the process outcome and their own involvement.

It is not in the interests of the wider community that the judicial system is the subject of unfair criticism from practitioners expected to be in a position to know. Poorly thought or delivered communications published by the media can bring the administration of justice into disrepute.

Practical advice in dealing with the media The media are often critical of practitioners who refuse to assist them to undertake their public role as reporters of facts. The blanket “no comment” or mantra that “the client will vigorously defend the action” not only draws criticism but satire. There are some things lawyers can do to allow the media to do their task accurately and fairly.

It is better that the client makes any statement to the media directly rather than through the practitioner. If that cannot be done then, with express instructions, it is possible to do the

following: a) Prepare a written statement that is agreed with the client (and stick to the statement assiduously). b) Be accurate and conservative.

A non-contentious summary of the claims and defences is useful and will avoid journalists relying on notes that are hastily prepared, confused or muddled. c) Clients who do not want to cooperate with the media at all should be told the media will expect a degree of cooperation at least to the extent of correcting the spelling of the names of the judicial officer, the parties and witnesses and the failure to do that can cause the media to criticise the client. d) After the process or the day has concluded be prepared to confirm the substance of events in the court room (do not embellish that with commentary). e) Be prepared to accurately state the outcome including orders made (avoiding commentary on whether that was the correct or competent result).

There are some things that are best avoided: a) Do not overstate the case or the claims or the defence and do not suggest matters will be pursued if they are not being considered.

b) Do not criticise the trial process or judicial reasoning, leave that to the papers in an appeal. c) Do not criticise the personal performance of the judicial officer or the jury or the other side, leave all commentary to others. d) Do not threaten participants with consequences that are not likely (e.g. pursuit for perjury, contempt, arrest, bankruptcy, or imprisonment). e) Don’t colour your comments to suggest an expertise or skill that looks like you are assisting your professional career aspirations.

Conclusion The court process and confidence in the court process can be derailed by distracting, incomplete or misleading statements to the media. Care should be taken in making criticisms of the judicial system. The main avenue for criticism is an appeal.

In practice it is difficult to avoid engaging with the media. A fair media report is in the interests of the client. The rules do not prohibit assisting the media but they prohibit disclosures without instructions or against the interests of the client or to damage the administration of justice generally.

The thoughtful practitioner should act only with express instructions from the client and then the practitioner should be prepared to engage honestly and

accurately with the media to ensure that they are able to undertake their task accurately and efficiently. The engagement with the media for a client should not be distracted by the promotion of a practitioner’s own career aspirations.

Honesty and accuracy should ensure the administration of justice is respected and the engagement with the media positive for the client as well as the public.

Endnotes 1 2

Polkinghorne v Holland (1934) 51 CLR 143 at 156.

LPCC v Trowell [2009] WASAT 42 at [373].

UPCOMING SEMINAR Ethics on Friday: Ethical issues for lawyers engaging with print and broadcast media Speaker: Craig Slater When: Friday, 8 November 2019 Time: 1.00pm – 2.00pm Bookings: lawsocietywa.asn.au/ cpd-seminars/

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Opinion Piece: Free Press is Key to Our Democracy

By Arthur Moses SC President, Law Council of Australia

This article was first published in The Australian on Thursday, 6 June 2019 Official secrecy must be tempered by the public's right to accountable government.

It is a fundamental role of government to protect our community, our rights and our freedoms. It is aided by the media, which plays a key role in defending the public interest, holding government to account and scrutinising the exercise of power. Any perception of a threat to press freedom and journalists' sources is deeply concerning.

Reports of law enforcement activity, including a warrant executed on the home of an award-winning press gallery journalist, raise fresh concerns as to whether Australia's unauthorised disclosure and secrecy laws appropriately balance the need to protect sensitive information with freedom of the press and protections for those making disclosures in the public interest.

It is possible for a journalist to be charged with an unauthorised disclosure offence. And there are important reasons these laws exist. However, press freedom is a cornerstone of democracy and the public has a right to know about the activities of the parliament, executive government and the judiciary.

For this reason, the media must be able to lawfully report on matters of public interest without fear or favour.

At issue is an area of law that has undergone significant change. Before December 29 last year, section 79 of the Crimes Act 1914 included several offences that dealt with unauthorised disclosures and the use of official secrets, defence or security information.

These provisions were not used often and were difficult to prosecute.

The National Security Legislation Amendment (Espionage and Foreign 08 | BRIEF JULY 2019

Interference) Act 2018 created new provisions and defences, including a public interest defence that came into force in the Criminal Code from December 29 last year.

For example, section 122.4A creates offences of communicating or dealing with information, including where: the information has a security classification of secret or top secret; the communication of or dealing with the information damages the security or defence of Australia; interferes with or prejudices the prevention, detection, investigation, prosecution or punishment of a criminal offence; and/or harms or prejudices public health or safety.

Section 122.5(6) of the Criminal Code provides a defence for public interest reporting, including for a person "engaged in the business of reporting news, presenting current affairs or expressing editorial or other content in news media", where at that time the person reasonably believed engaging in that conduct was in the public interest. One would expect this defence would be carefully considered by any law enforcement or prosecuting authorities before launching proceedings against any journalist. This catch-all "public interest" defence is limited to journalists, however. Other sources and whistleblowers would have to seek protection from other provisions in the code and could be left exposed.

The media raids we have seen could have a detrimental impact on the willingness of sources to come forward with information – classified or not – out of fear of prosecution.

In a recent interview, Attorney-General Christian Porter said the investigation "is not about the journalist per se, it's about someone who may or may not have made an unauthorised disclosure against the terms of a very well-known provision of the Crimes Act to a third party".

If sources are silenced, the media's ability to effectively hold government to account is severely hindered.

There is no doubt that the work of our national security agencies is vital. For the community to have confidence in these agencies, any secrecy should be proportionately confined to information whose disclosure would undermine national security and endanger citizens.

But the government should not classify information as confidential simply because its disclosure would be a political embarrassment or expose misconduct.

Such overreach could jeopardise public confidence.

Proportionality is key.

Australians are reasonable people and understand matters of national security are serious, may involve the use of covert powers in the national interest and are on a "need to know" basis.

But this does not mean that the scope and function of such powers should be kept a secret: such suppression should relate only to their operation in sensitive matters. Australians have the right to know about the powers that can be exercised by our security agencies. In an open democracy, it is an expectation.

Australian journalists are among the best in the world and their watchdog role must be vigorously protected. They must not be subject to untoward intimidation.

Our national security policies must be consistent with the fundamental values of our society, such as press freedom.

The moment we turn upon these rights is the moment our enemies win.

Our journalists' watchdog role must be vigorously protected.

New Whistleblowing Laws: Risks, Policies and Changes Explained

By Messina Angelis Senior Employment Relations Adviser, Employsure It is more important than ever for businesses to review their compliance culture as one of the biggest changes to whistleblowing laws are set to begin on July 1, 2019. New whistleblower laws will require all public and large proprietary companies to introduce a whistleblower policy.

The Treasury Laws Amendment (Enhancing Whistleblower Protections) Act 2019 (Cth) significantly alters and expands protection for 'eligible whistleblowers' who report wrongdoing in the workplace. In other words, there are increased protections for those who raise concerns or questions about unethical or illegal conduct within the workplace.

•

breaching the confidentiality of a whistleblower ‘Personal work-related grievances' will only be protected in limited circumstances

Certain companies will be required to have a whistleblower policy The Act provides that it will be mandatory for all public companies, large proprietary companies or corporate trustees of registrable superannuation entities to have a privacy policy, and to make that policy available to officers and employees of the company.

A business will be a 'large proprietary company' if it satisfies at least two of the following criteria: • •

consolidated revenue in excess of $50 million; consolidated gross assets of more than $25 million; or at least 100 employees within the company and the entities it controls.

Emergency and public interest disclosures

•

The new laws will provide protection to eligible whistleblowers who have previously made disclosures to escalate their concerns to parliamentarians and journalists with immunity, after following a prescribed procedure. The discloser must have 'reasonable grounds' to believe that the information concerns either 'a substantial and imminent danger to the health and safety' of people or the 'natural environment', or where it would be in the 'public interest to do so'.

What must a whistleblower policy contain?

Other important changes •

• •

•

•

The definition of 'whistleblowers' will expand to cover officers, managers, employees, individuals supplying goods and services and their employees, an individual who is an associate of the regulated entity, and the relatives and dependents of the above Will allow and protect anonymous disclosure by whistleblowers Will remove the 'good faith' disclosure requirement which previously rendered whistleblowers ineligible for protection if their disclosure was not motivated by 'good faith' Will provide whistleblowers with immunity from civil, criminal, or administrative liability for protected disclosures Civil penalties for victimising or

Your organisation’s whistleblower policy needs: •

clear application to employees, past employees, contractors, suppliers, family members of employees; • a documented process for dealing with protected disclosures exists that ensures that all disclosures are dealt with within a reasonable time; • information about the protections available to whistleblowers and an outline of processes required to make disclosure; and • a clear outline of how the organisation will ensure fair treatment of employees who are mentioned in protected disclosures, or to whom protected disclosures are made.

There must also be a working system in place to ensure that the policy is distributed to anyone who may be an eligible whistleblower in relation to the organisation.

Where disclosures are made, companies are also required to ensure that the whistleblower's identity remains anonymous. Companies that fail to do this face significant penalties as well as potential criminal charges.

What constitutes victimisation is both expanded and clarified to include: • • • • • • • • •

dismissal of an employee injury of an employee in his/her employment alteration of employee’s position to his/her disadvantage discrimination between an employee and other employees of the same employer harassment or intimidation of a person damage to a person’s reputation damage to a person’s business or financial position other damage to a person victimisation to the whistleblower or persons associated with them – e.g. family/supporter.

Deadlines and penalties The amendments will come into effect from 1 July 2019 and will apply to disclosures made on, or after commencement, but may relate to conduct which occurs or "occurred before, at or after commencement".

The amendments have also significantly increased civil and criminal penalties for breaches of the new laws. Companies that fail to implement a compliant whistleblower policy or fail to do so by the deadline may be subject to a civil penalty. Breaching the confidentiality of a whistleblower or victimising a whistleblower (or threatening to do so), may also incur a significant civil or criminal penalty.

Reduce risks from the start Prevention is always better than a cure.

Fair, reasonable and safe practices and procedures within the workplace help to avoid these sorts of issues arising.

Avoid whistleblowing from happening by remaining compliant from the start.

Failure to take steps to shore up your company's whistleblower policies may expose your business to regulatory action, reputational damage and significant penalties.

If you’re unsure of your compliance or policies and procedures regarding whistleblowers, need assistance designing or updating internal whistleblower policies, or training staff to deal with whistleblower interactions in a compliant way, employers should seek workplace relations advice.

09

Interview with the Hon Justice Gail Sutherland Chief Judge of the Family Court of Western Australia

By Chloe Samuels Solicitor, O’Sullivan Davies

You are the first female Chief Judge of the Family Court of Western Australia (FCWA) since the Court's inception 43 years ago.

What are your reflections about this?

Over the last 40 years, there has been an ongoing wave of social and economic changes in Australia, including in the increased participation of women at all levels of the workforce. In many respects, my career, including my appointment as Chief Judge, has surfed that same wave.

Shortly after I started work as a lawyer, the late Justice Carolyn Martin was the first woman to be appointed as a judicial officer at the Family Court of Western Australia. She was initially appointed as a Deputy Registrar of the Court in 1983.

She enjoyed a number of “firsts” at FCWA, including in January 1990 being appointed as the first female Registrar of the Court (a position now known as Principal Registrar); and in 1995 being appointed as the first female judge of the Court.

In the years since, numerous women have been appointed as judges, magistrates and registrars of the Court, including Magistrate Annette Andrews 10 | BRIEF JULY 2019

who recently celebrated her 30th anniversary of her appointment to the Court.

Today, nearly 50%: nine out of our 19 Judges, Magistrates and Registrars of the FCWA, are female.

The workload of Family Court Judges is challenging, as are the time pressures. Apart from the obvious – more Judges – do you have thoughts as to how the court can become more efficient? Can technology play a greater role?

Technology has a very important role to play. Both government and our customers expect the FCWA to move with the times. We also know that with our available resources, our current delivery of services in many areas across the Court is under considerable pressure.

Technology can assist us to find smarter and more efficient ways to do our work.

For many years the FCWA has used an electronic case management system known as CaseTrack, together with the Commonwealth Courts Portal for the electronic filing of court documents.

CaseTrack was originally developed by the Family Court of Australia and in more recent years, has been managed

by the Federal Court of Australia. Very recently, the Federal Court made the decision to gradually end the FCWA’s access to the national family law case management system. Accordingly, over time, the FCWA will transition across to the Western Australian State courts’ case management system.

Whilst there are some “negatives” in the FCWA leaving the national family law case management system, there are also great benefits in the FCWA being fully integrated into the State system.

The Court will continue to pursue its strategic information and systems technology plan of moving towards electronic service delivery, receipt and retention of documents in an electronic format and the use of technology, where appropriate, to assist in the delivery of services, including in the registry, in chambers and in court.

It opens up the door to many possibilities. For example, Judicial Officers being able to use technology to better manage voluminous trial documents, such as affidavits, Single Expert Reports and transcript.

It also allows the judicial officer to more easily search, e-tag and mark up trial documents, particularly when dealing

with large quantities of material.

I want to focus on two main issues.

Later on it opens up the door to a greater use of technology in the courtroom environment itself. It comes with a greater outlay in terms of costs and being able to set up the courtrooms to do that. But already in the FCWA we see parties and lawyers increasingly using technology, such as their laptops and other devices, in the courtroom.

Firstly, looking back over the past 10 years, the FCWA has experienced a very steady growth in filings of final parenting applications and final financial applications. Those application types are, far and away, our most time intensive applications. So, those increasing numbers of applications coming through the door every year have certainly put a lot of extra pressure on our resources, which includes our judicial resources. I have no reason to doubt that the numbers of filings over the next decade will just continue to increase.

Also some of our more “tech savvy” Judicial Officers worked in digital environments prior to joining the Court and want to continue to do so. A digital court file opens up more and more possibilities. It is something that I’m very committed to as the Chief Judge. I am very much looking forward to working with the Department of Justice in the transition to the State courts’ IST system.

Speaking of workload, how do you remain grounded in such a busy court? How do you relax?

Well within the confines of the building, I’m very fortunate to work in a very collegiate environment. When I refer to my “colleagues” I mean not only the other Judges, Magistrates and Registrars, but also the managers, the Family Consultants, the Registry staff, staff of all different levels.

They are a very supportive group of people. They are people who really do roll up their sleeves and say “How can we help?”, “What can we do to assist?”

Working in an environment such as that provides enormous support.

Outside of the court building, I have wonderful support from my family. I enjoy spending time with my husband and my children; I’m very interested in what they do and being involved with them.

As a family we enjoy doing lots of activities together. My children are now all adults. At times they have each lived in different locations outside of Perth and my husband and I have very much enjoyed travelling to spend some time with them and travelling with them.

Exercise is also a very important part of my routine: I enjoy cycling and walking.

I tend to walk quite a bit and really enjoy just getting out into the fresh air.

Just being able to get out of the office at lunch time, even for 15 or 20 minutes and just walk down to the river and back just resets your mind.

What challenges do you see facing the Family Court of WA over the next 10 years?

One of the consequences for our court has been the increase in time that it takes to finalise matters. The vast majority of matters settle well before trial. Only a small percentage of matters actually proceed on to trial. But even in terms of pre-trial finalisations: it takes longer to get matters to Conciliation Conferences and the like.

We operate in an environment of limited resources. Realistically, we cannot assume that the FCWA will get the additional resources that would help reduce delay, so we must look for ways to do more with what we have. So what this means is that the Court has to make some decisions about priorities. For example, what is the most efficient use of judicial time? Time is the resource that Judges and Magistrates and Registrars have to utilise in dealing with matters.

The question is then: how can the Court most efficiently and appropriately use that judicial time to be able to move matters expeditiously through the system.

As an example, the FCWA receives ever increasing numbers of Form 2 Applications, which are the interim applications. I think we had over 5,000 filed in 2018. They take a significant amount of judicial time to deal with.

Parties are still able to access interim hearings more readily in the FCWA than is possible in other family courts across Australia. So from my point of view, every day that one of our Magistrates or our Judges has to deal with interim applications is one less day that they can be dealing with trials.

So, should the FCWA continue to give priority to hearing the large numbers of interim applications that are filed or should the Court give greater priority to trials? I accept that a number of interim applications are warranted and deal with urgent matters. But many do not. For example, if in a parenting matter, there are no allegations of risk of harm to the child or other family members, should

the Court prioritise an interim application for the child to go on holidays to Bali next school holidays, simply because the parents can’t agree?

Should we be allowing parties to continually file interim applications to incrementally increase the time that they are spending with their child when, in fact, the time they are already spending with the child is adequate for them to maintain a meaningful relationship until such time as we get to trial?

One of the other major issues that ties into this is how can the FCWA increase the participation of litigants in alternate dispute resolution, including family dispute resolution in the case of parenting matters. This is against the background that only approximately 12% of parties in new final parenting applications participate in family dispute resolution (FDR) and make a genuine effort to resolve issues, prior to commencing the proceedings.

This is notwithstanding that the legislation provides that the parties must participate in FDR, or be exempted from that process because of certain factors. In many parenting cases, the parties come into the court system without firstly participating in FDR and then rarely get the opportunity to attend any other form of ADR. They may go through the entire court process, including the trial, without engaging in ADR. Financial matters are different, as there is a legislative requirement that parties participate in a Conciliation Conference with a Registrar of the Court.

Parties in financial cases can also be excused from attending a Conciliation Conference if they participate in a private mediation style conference.

However, in relation to parenting matters, there is a big gap. Many parenting cases have significant risk issues. The Court has to be in a position to appropriate manage such matters, including whether the parties involved should appropriately participate in some form of dispute resolution.

There appears to be an increased awareness by the legal profession of the benefits of being able to offer ADR in parenting cases. Legal Aid Western Australia is currently running a very interesting late intervention ADR program for some complex family law parenting matters, which is producing some very positive results. So as a Court, we need to explore how we can do better in promoting dispute resolution.

The second major challenge that faces the FCWA is that a significant proportion of our clients are self-represented 11

litigants. Unsurprisingly, many find it very difficult at times to navigate the family law system. It’s not the most straight forward set of legislation and the litigation process can be difficult to understand and to manage.

The FCWA has always been very proactive in finding ways to better assist self-represented litigants. In the past the Court conducted information sessions.

The Court has produced various materials including the self-represented litigants’ handbook. In the last couple of years the FCWA has greatly improved its website. The website is now a lot more user friendly and is much easier to navigate.

appropriately, the FDR providers assess that the parties are not appropriate to participate in FDR, for example, because there are family violence issues or a restraining order is in place. However, frequently FDR does not take place because one party simply fails or refuses to participate.

Only approximately 40% of all new parenting applications in 2018 were filed with a FDR certificate. The remaining 60% of applications were exempted from attendance at FDR, for example, because of urgency or because the applicant filed a Form 4 Notice of abuse or family violence.

The Court is continuing to work on the website to increase the resources available to self-represented litigants.

For example, we are in the process of providing more information on the website in relation to ADR and Family Dispute Resolution.

In a significant proportion of new parenting cases, the parties have the benefit of meeting with a family consultant for a Case Assessment Conference and to undertake a risk assessment. However, there is very little opportunity for any mediation to take place as well.

The Court has been liaising with the Family Law Practitioners’ Association of Western Australia, the Australian Institute of Family Law Arbitrators & Mediators and various community service providers, to increase the information on our respective websites about ADR services for self-represented litigants.

The family consultants are very experienced in identifying those matters that are appropriate for some form of mediation. However, again, due to resourcing constraints, there are limits on the number of child dispute conferences that can be offered by the family consultants.

Internally, the FCWA is also exploring whether it can reallocate Registrar resources or increase our Registrar resources, so that we can offer mediation conferences to self-represented litigants, both at an early stage and at a late stage in the proceedings.

That’s something I was actually going to say because I noticed that on a lot of the circuits Registrars would undertake child dispute conferences. And the outcomes were positive.

Yes. In the past the Court was able to offer conciliation conferences in parenting cases in the Perth Registry.

Although the Court ceased offering these services in Perth, it was still able to continue to offer them during Magistrates’ circuits.

Many matters settle at conferences during the regional circuits, either on an overall basis, or partially, which is also beneficial in terms of reducing issues and the time required at trial.

As I mentioned earlier, only a small percentage of parties in parenting cases have participated in FDR and made a genuine effort prior to commencing proceedings. In many matters, very 12 | BRIEF JULY 2019

What wider challenges do you see for the administration of justice in Western Australia?

Again, I want to focus on one issue that impacts on most of the state courts at various times: accommodation pressures. There is no point in seeking additional judicial resources if you don’t have sufficient courtrooms or conference rooms or mediation suites for them to be able to do their work.

Specifically in relation to the FCWA: the Court has (and has always had since its inception) five permanently appointed Judges.

It currently has 10 full time Family Law Magistrates and 3.4 Registrars (including the Principal Registrar). The Court only has 10 courtrooms within the Perth Registry. For approximately the past 10 years, the Court has been very fortunate to be able to use, on a full time basis, two of the courtrooms located at Level 5 in the Federal Court of Australia.

In recent years, the Court has also been very fortunate to have access to two courtrooms in the old Supreme Court building. Whilst we are very grateful to have access to the courtrooms in the old Supreme Court building, it’s not ideal.

This is because so many of the ancillary services offered to our clients are located within the Family Court Registry. For example: the childminding service; the Family Court Counselling & Consultancy Services; Legal Aid’s duty lawyer service; and the Family Advocacy & Support Service. There are also the logistical difficulties for our Judicial Officers in sitting in another court building and having to run backwards and forwards to attend committee meetings and the like. There is also the inconvenience to the legal profession, particularly because the FCWA operates so many multiple lists each day.

The Federal Court is also experiencing increased demand for its services. In the very near future, the FCWA will no longer have full time access to one of the Federal Court’s courtrooms on level 5. That really does present some major challenges to the FCWA. The Court has proposed a number of different business cases to resolve the accommodation issues.

We will continue to liaise both with Commonwealth and with the State governments to seek a solution.

Are there aspects of court practice in other jurisdictions that you would like to adopt here?

I would be happy to consider any other court’s practice which has solved the issue of ensuring that parties comply with orders to get ready for trial.

Readiness for trial is an issue for the FCWA. It forms part of a review that the Court is currently conducting. However, I also acknowledge that particularly in Family Court proceedings, delay generally works to the advantage of one of the parties.

What advice would you give lawyers hoping for a career in family law?

There are two aspects I will mention: professional development and personal self-care.

Family law may seem like a niche area of practice. However it is not. Your clients come to you seeking advice and assistance in relation to their family law issues. But they do so in the context that they are embedded in different family structures and relationships.

They have very different, and often very complicated, financial structures and ways of earning their income.

To be able to successfully practice in family law requires an understanding of social science, for example, an

understanding of child development.

It also requires a broad understanding of commercial arrangements and structures: partnerships, companies and trusts, including being able to understanding the relevant financial statements, the relevant tax implications, relevant superannuation implications and the like.

The FCWA is part of the cross-vesting scheme and deals with a range of commercial and other matters as a result. If a young practitioner is considering working in family law, then

knowledge and/or experience in the commercial area would be of great benefit.

If a young practitioner considering family law hasn’t picked up a couple of accountancy units at university, then I would urge him or her to pick up a unit or two along the way.

us to be resilient, to bounce back, fresh and ready to face another day. I do it through maintaining my relationships with my family, through exercise and by maintaining my interests outside of the law. I encourage every legal practitioner, not just family lawyers, to prioritise their self-care.

At a personal level, the practice of law can be very emotionally challenging and stressful at times. As a profession, we set very high standards for ourselves. So self-care is really important. It enables

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How Family Violence Impacts on Property Settlement Proceedings Dianne Caruso, Senior Associate, HHG Legal Group and Simon Creek, Managing Director, HHG Legal Group The recent Full Court of the Family Court of Australia decision of Keating & Keating [2019] FamCAFC 46 discusses the evidentiary requirements necessary to successfully run a Kennon argument, which is essentially that family violence perpetrated by one party has adversely impacted upon the other party’s contributions to the marriage. The majority of the Court held that there must be an evidentiary nexus between the conduct complained of and the capacity (and or effort expended) to make the relevant contributions. However, quantification of the effect of the violence on the contributions was not necessary. In this article I discuss some of the Full Court decisions discussed.

The Full Court of the Family Court of Australia in the decision of Kennon & Kennon (1997) FLC 92-757 found that family violence was of relevance to property settlement proceedings within the assessment of contributions. Fogarty and Lindenmayer JJ stated at 84,294: “…where there is a course of violent conduct by one party towards the other during the marriage which is demonstrated to have had a significant adverse impact upon that party’s contributions to the marriage, or, put the other way, to have made his or her contributions significantly more arduous than they ought to have been, that is a fact which a trial judge is entitled to take into account in assessing the parties’ respective contributions within s 79.”

Their Honours went on to state: “It is essential to bear in mind the relatively narrow band of cases to which these considerations apply.

To be relevant, it would be necessary to show that the conduct occurred during the course of the marriage and had a discernible impact upon the contributions of the other party.”

In the unanimous Full Court of the Family Court of Australia decision of Spagnardi & Spagnardi [2003] FamCA 905, their Honours Kay, May & Carter JJ held at paragraph 47: 47. “An insufficiency of evidence in the present case leaves the Court with a limited ability to deal with allegations in the context of section 79 proceedings. As Kennon has established, it is necessary to provide evidence to establish: •

The incidence of domestic violence;

14 | BRIEF JULY 2019

•

The effect of domestic violence; and

•

Evidence to enable the court to quantify the effect of that violence upon the parties capacity to “contribute” as defined by section 79(4).”

The Full Court of the Family Court of Australia handed down the decision of Keating & Keating [2019] FamCAFC 46 on 21 March 2019. In this decision their Honours, Ainslie-Wallace and Ryan JJ, found at paragraph 38, that the reference to “quantification” in the decision of Spagnardi (supra) appeared to elevate the need for a “discernible impact” between the conduct complained of and its effect on the party’s ability to make contributions as set out in Kennon (supra).

Their Honours went on to state that perhaps the use of the word “quantification” by the Court in Spagnardi (supra) was “infelicitous” when in fact, the Court “was merely reinforcing the need for there to be an evidentiary nexus between the conduct complained of and the capacity (and or effort expended) to make relevant contributions”.

Their Honours went on to confirm it is well settled that a party does not require corroborative evidence before evidence of family violence can be accepted (paragraph 42), and quoted from the decision of Amador & Amador (2009) 43 Fam LR 268 in which the Full Court stated at paragraph 79 of that Judgment: “Where domestic violence occurs in a family it frequently occurs in circumstances where there are no witnesses other than the parties to the marriage, and possibly their children. We cannot accept that a court could never make a positive finding that such violence occurred

without there being corroborative evidence from a third party or a document or an admission. We have not been referred to any authority in support of such a proposition.”

Ainslie-Wallace and Ryan JJ stated at paragraph 34: “…the wife gave evidence about a course of significant family violence which was prolonged, had a significant adverse effect on her and undermined her parenting and her ability to contribute.”

They held at paragraph 43 that the primary Judge misdirected himself in focusing on there being no evidence of quantification of the husband’s violence on the wife’s capacity to make contributions. The appeal was allowed and the matter was remitted for rehearing.

Austin J dissented finding at paragraphs 65 and 67: 65. “…when they make allegations of family violence in litigation, the veracity of their contentious allegations must be tested and evaluated by the same forensic techniques as apply to all other contested issues of fact. In the adversarial process, procedural fairness demands that such allegations are not insulated from challenge.”…

67. Without in any way trivialising the serious repercussions of family violence, the wife needed to do more than allege her victimisation by the husband and express her distress about it before her contributions could have been accorded greater weight under Part VIII of the Act.” The question arises whether the decision of Keating will result in an increased number of Kennon arguments being run due to what may be perceived as a reduction of the evidentiary requirements necessary to successfully run the argument.

Justice Hill speaking at Her Honour's welcome to the Court

Welcome to the Honourable Justice Jenni Hill Supreme Court of Western Australia Friday, 7 June 2019

The Hon Chief Justice Peter Quinlan: The Court sits this afternoon to welcome the Honourable Justice Jenni Hill to the Bench of the Court. The Court acknowledges the traditional owners of the land on which we sit this afternoon, the Whadjuk people of the Noongar nation, and pay our respects to their elders, past, present and emerging.

I would particularly like to welcome her Honour Justice Hill’s family here present: her husband, Andrew Wood; their children, Lachlan and Sophie; her Honour’s father, Anthony Hill, and his partner, Cheryl; her sister, Dr Alison Hill; her brother, Graeme Hill, and his wife, Professor Adrienne Stone; and her Honour’s father-in-law, Mr Ron Wood.

I also welcome from the Federal Court of Australia the Honourable Justices Katrina Banks-Smith and Darren Jackson; Chief Judge Kevin Sleight of the District Court, and many Judges of that Court; Ms Ros Fogliani, the State Coroner; Ms Amanda Forrester SC, Director of Public Prosecutions; and other distinguished

guests including many past members of this and other Courts.

I also welcome those who will address the Court this afternoon, being the Solicitor General, Mr Joshua Thomson SC, representing the Honourable John Quigley MLA, Attorney General of Western Australia; Mr Greg McIntyre SC, President of the Law Society; and Mr Stephen Davies SC, President of the WA Bar Association.

Justice Hill’s distinguished legal career has a well-earned reputation for excellence and integrity in the practice of the law, and the many other personal qualities that make her so well suited to appointment to this Court, will soon be the subject of detailed remarks from those at the bar table. I shall not hold you in suspense. It only remains for me, on behalf of the Court, to express how pleased we are, Justice Hill, to have you join us on the Court and to bring your talents to our work; to extend our warm welcome to you, Andrew, Lachlan and Sophie, to the family of the Court, and to

assure you of our continued solicitude and support throughout what will no doubt be a distinguished judicial career.

Yes, Mr Solicitor.

Mr Joshua Thomson SC: Thank you, your Honour. I have been asked to appear on behalf of the Attorney General this afternoon. He greatly regrets that he is unable to be present on this occasion.

This is one of the very few times when he has not been able to attend such a function personally. I also would like to begin by acknowledging and honouring the people of the Whadjuk tribe of the great Noongar nation upon whose land we meet, and I pay my respects to their elders, past and present.

It is with great pleasure that I appear on behalf of the Attorney General and the West Australian Government, and also on behalf of the people of Western Australia, to welcome your Honour Justice Hill as a Judge of this Honourable Court. As the Chief Justice has already done, I acknowledge the presence of your family, and also of the many 15

Attendees at the welcome for Justice Hill

distinguished guests who have been already identified by the Chief Justice.

Your Honour grew up in Hobart in Tasmania, before moving to Canberra in 1981 and attending the Canberra Church of England Girls Grammar. Your Honour then studied at the Australian National University and graduated in 1992 with honours in a Bachelor of Science and Laws. Your Honour’s appointment now makes three Judges of the Supreme Court who have studied at the Australian National University. Your Honour joins Justice Pritchard and Justice McGrath, who I believe were friends of your Honour even in university days.

Together, your Honours plainly augment the diversity jurisdiction of the Court.

Your Honour has already seen firsthand what it is like to be a Justice of the Supreme Court. Your Honour was the associate to the Honourable Justice Walsh from 1992 to 1993. No doubt attracted by the more hospitable climate, your Honour moved to Western Australia to take up that role. I am told that your Honour generally has a passion for travel. While it has proved to be for the 16 | BRIEF JULY 2019

benefit of Western Australia that you moved here so long ago, it is perhaps somewhat ironic that your Honour has chosen the most remote capital city in the world in which to base yourself.

Your Honour’s times as associate commenced a distinguished legal career. After finishing at the Court for the first time, your Honour was admitted to practice in 1994 and joined Bennett and Co as an article clerk. Your Honour there earned a reputation for hard work and diligence at the unrelenting pace for which Bennett and Co is well known.

Your Honour’s acuity and ability were recognised in 2001 by Bennett and Co when you were appointed as a partner.

From there, your Honour’s horizons expanded. In 2005 you were appointed as a partner of Norton Rose Fulbright.

You continued there for a decade.

While there, you burnished your high reputation as one of the most capable commercial litigators in this State. In 2015, your Honour then left your position at Norton Rose to join Clifford Chance, another international law firm. At Clifford Chance, your Honour was a partner

in the litigation and dispute resolution team which was primarily concerned with major commercial litigation and arbitration. Your Honour specialised in the energy and resources sectors, advising on corporate and shareholder disputes and investigations.

It is not too much to say that at every stage your Honour has excelled in some of the most demanding and rigorous roles. Your Honour has dealt with some of the most complicated commercial disputes which have come to this State, and, indeed, even in other states. The Supreme Court is indeed fortunate to have been able to attract someone of your calibre to judicial office.

Your Honour has also found time to be a role model for many other women in the law. Among other things, you have been a member of the joint Law Society/Women Lawyers of Western Australia Committee and an ex officio member of the Human Rights and Equal Opportunity Committee. Your Honour was acknowledged for your role in promoting women as a joint winner of the West Australian Women Lawyers

Australia as a Judge of this Honourable Court. May it please the Court.

The Hon Chief Justice Peter Quinlan: Thank you, Mr Solicitor. Yes, Mr McIntyre.

Mr Greg McIntyre SC: Yes. If it please the Court. I echo the acknowledgement of the Chief Justice and the Solicitor General that we are on Whadjuk Noongar land, and acknowledge the centrality of the ethos of respect for First Nations peoples and their leaders which the Law Society holds dear and is reflected in its Reconciliation Action Plan.

It is my privilege this afternoon to appear on behalf of the Society to welcome your Honour to this Court at this beginning of the next phase of your distinguished legal career. I am informed that both of your Honour’s parents were teachers, and your Honour has noted that academic excellence was both valued and expected in your family.

I am informed that your Honour had designs on being a speech pathologist but, upon discovering that the university course would involve certain biological dissections, decided that law would be a much more civilised calling. Your Honour, however, maintained a passion for science and obtained a Bachelor of Science degree along with a Bachelor of Laws with Honours from the Australian National University, as has been noted.

Association, Woman Lawyer of the Year Award in 2011. Your Honour has also been a member of CEOs for Gender Equity of WA. On behalf of the Attorney General, the WA Government and our State community, I congratulate you on your appointment and wish you well in your service to the people of Western

I am told that upon graduating, your Honour had a number of graduate offers from Sydney-based firms but decided to move to Perth to take up your position as associate to Justice Walsh at this Court, whom I am very pleased to see is in attendance with us today.

Upon being admitted to practice in Western Australia, your Honour joined the Law Society and has remained a highly valued member ever since. As

has been mentioned, your Honour was a member of the joint Law Society/ Women Lawyers of WA Committee, and a member of the Law Society’s Courts Committee, and more recently, a member of the Human Rights and Equal Opportunity Committee. That came about because the Society headhunted you to take Elizabeth Heenan’s role on the Equal Opportunity Committee of the Law Council Australia, which you commenced in 2017. That, of course, involved you reporting back to our Society on Human Rights and Equal Opportunity.

Your Honour is also a former member of the Society’s Continuing Professional Development, General and Commercial Litigation Committee. As has been mentioned, your Honour began your career at Bennett and Co, working there giving you the opportunity to advance your skills as a litigator, and your Honour has always enjoyed, we are told, the process of preparing and presenting an argument which has developed for your Honour a reputation as a firstclass litigator, highly respected by both colleagues and clients. It’s the most remarked upon quality of your Honour among the colleagues whom I have consulted.

Throughout your career, your Honour has taken on the task of making positive changes in workplace cultures and in the broader culture of the legal profession.

Your Honour was a member of the committee which conducted the 20year review in 2014 of chapter 2 of the Chief Justice’s Gender Bias Taskforce, dealing with the careers of women in the legal profession. Your Honour has continuously sought to promote gender diversity, and diversity in other areas such as ethnicity and age.

These are goals which the Law Society is very much aligned with your Honour.

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17

Law Society President Greg McIntyre SC addressing the Court

It’s of crucial importance that the community sees our diverse society reflected in its judiciary, and in that regard it’s certainly of significant benefit to this Court for your Honour to be adding to the strong female representation on this Bench.

Your Honour has sought to use her influence as a leader in the profession to create positive outcomes. While at Norton Rose Fulbright, your Honour led moves towards flexible working arrangements and your Honour was also a member of the CEOs for Gender Equity. A female colleague at Clifford Chance described you as: a fabulous dresser, always put together sartorially, a huge champion of women, inclusive, bubbly, and someone who instantly made colleagues comfortable.

Those are all qualities which we hope will be helpful in your present role. It’s a pity your Honour will be consigned to the current enveloping black tea cosystyle robe which has become fashionable as judicial attire. You could adopt an expansive view of what amounts to an interlocutory application where no robe is required, as I mistakenly did in my first appearance before the Chief Justice Quinlan shortly after his appointment.

18 | BRIEF JULY 2019

Your Honour has certainly had a significant influence in promoting diversity within the legal profession and has left a lasting legacy in that regard.

Your Honour’s appointment to this Court presents an opportunity to further that positive influence from within our judiciary. Your Honour will no doubt be missed by colleagues and clients alike as your Honour leaves practice behind.

However, this appointment will certainly benefit the broader community of Western Australia as your Honour administers justice with integrity and impartiality in this new chapter in your career. On behalf of the Law Society, I congratulate your Honour on this appointment, and wish you all the best for a very successful judicial career. If it please the Court.

The Hon Chief Justice Peter Quinlan: Mr McIntyre. Mr Davies.

Mr Stephen Davies SC: On behalf of the West Australian Bar Association, may I present our compliments and congratulations on the occasion of your Honour’s appointment as a Judge of this Court. I wish to associate the Bar Association with each and all of the complimentary remarks that have fallen from others. I also wish to acknowledge the presence in Court of your Honour’s

husband, Mr Andrew Wood, and your Honour’s children, Lachlan and Sophie, and record, for the purposes of the transcript, that each of them is looking justifiably very pleased and proud of your Honour’s achievement that we are marking by the sitting of this Court.

Your Honour comes to the Court with a number of qualities that make your Honour eminently suitable for appointment. I propose to mention but three of them. The first is a deep and lengthy experience in the field of litigation and, in particular, in the area of difficult, complex and lengthy commercial litigation that is the mainstay of the work of this Court in the exercise of its civil jurisdiction. That is a quality most desirable in a Judge of this Court, and it is a quality that can only be obtained by direct personal experience and your Honour has obtained that experience and obtained it hands-on and at the coalface in the three different firms in which your Honour has been a member.

In that regard, I should add that at various times during your Honour’s career, at each of those firms, there had been hopes held by many at the Bar that your Honour might be persuaded to join us and practice as a barrister. Had your Honour done so, there is no doubt that your Honour would have succeeded and

prospered, but alas, it was not to be.

The second matter to mention is your Honour’s commerciality. And to guard against any sensitivity that that expression is in some way inapt in this Court, I mean, of course, your Honour’s ability to cut to the core of the matter and address the issue or issues that are important. In a time of ever increasing complexity, both in the law and in matters evidentiary, that is increasingly a critical skill for a Judge of this Court.

The third matter, and final matter, arises from, again, the longevity of your Honour’s career as a lawyer, or, more specifically, as a litigator. The length and depth of your Honour’s experience as a litigator is such that your Honour understands from your Honour’s own, deep experience that as important as the skill of cutting through is it must be tempered and leavened with the appreciation that our legal system is fundamentally a process and that it is critical that the important features of that process are duly observed.

It’s for those reasons, among other, that your Honour’s appointment has been almost universally acclaimed.

I say almost because, as with all things, there are exceptions. I am able to offer the intelligence, the necessary releases having been obtained from the clients, that purveyors of high-end women’s clothing in this city, supported by their interstate and international brethren, having conducted some basic research on the news of your appointment in relation to judicial salaries, sought counsel’s advice. They came to Chambers hoping for advice that there were grounds to injunct your Honour’s appointment, and they left disappointed with the advice that they were bound to give certain notices to their financiers.

But it is of no matter, because Andrew has told me there are enough clothes in your wardrobe to take you right through to the age of 70. The Bar Association welcomes your Honour’s appointment as a Judge of this Court.

The Hon Chief Justice Peter Quinlan: Thank you, Mr Davies. Justice Hill.

The Honourable Justice Jenni Hill: Chief Justice, current and past members of this Court, members of other Courts, Mr Solicitor, Mr McIntyre, Mr Davies, members of the legal profession, family and friends, I would like also to start by

acknowledging the traditional owners of the land on which we meet, and pay my respects to their elders, past, present and emerging.

Firstly, I would like to thank everyone for being in attendance today, for giving up both their precious time, but also to attend on what is a wet and wild Friday afternoon in Perth. I have been absolutely overwhelmed by the kind words and messages of support that I have received from the profession since the announcement of my appointment.

For everyone present in Court, apart from my children, the addresses given today are a somewhat airbrushed view of my career to date, designed to show me in the most favourable light possible. To my children, I hope that the addresses given go some way to answering the question posed by my daughter when I told them of my appointment, as to why I had been appointed.

Chief Justice, thank you for your welcome today and over the course of this week. It is particularly an honour to be the first judicial appointment since your appointment as Chief Justice. I was fortunate to have the opportunity to work with you and many other members of the

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19

Court when they were are at the Bar, and I gained much from those experiences. I am confident that I will continue to seek their advice and experience while I am in my present role.

but because I was from the dreaded eastern states. I am extremely grateful to Martin Bennett and the then partners of Bennett and Co, for seeing past my State of origin and offering me articles.

Mr Solicitor, I am honoured to have been appointed as a Judge and to be given the opportunity to serve the community of Western Australia. Mr McIntyre, thank you for your generous address. As you noted, I have been a member of the Law Society for my entire career and have enjoyed my work on the committees, particularly the joint Women Lawyers/ Law Society Committee. As with many volunteer roles, you gain so much from the experience, and I encourage everyone present, particularly junior members of the profession, to volunteer for the Law Society committees.

In many ways, my time in the profession has mirrored the changes in the legal profession in Australia over the last 25 years. When I first joined the profession in 1994, most firms were State-based practices undertaking mainly local or State-based work. In the early 2000s, the national integration of legal practices started. In 2005 I joined what had then become the integrated national firm of Deacons. In 2010 and 2011, the large international firms began their march into the Australian legal profession.

My final years in practice were at two international firms who both lay claim to being the first mover in Australia, namely, Norton Rose Fulbright and Clifford Chance.

Mr Davies, thank you for your kind words. I have known and worked with you on a variety of matters and have greatly benefited from that experience, and I look forward to you and other members of the bar appearing before me in my new role.

As has been noted, I have been appointed directly from a private firm. I believe that I am only the third solicitor, and the first woman, to have done so. At the moment, I understand that I am the ninth woman appointed to this Court, and it is gratifying to know that when the next woman is appointed, that we will finally reach double figures. That said, I acknowledge that gender is but only one measure of diversity and is the only measure of diversity that I bring to this Court.

Mr Thomson drew attention to the fact that I was not born in Western Australia, but that I first came to Western Australia to take up a role as an associate in this Court to then Justice Terry Walsh. I am absolutely delighted to see Justice Walsh and his family in Court today. During my time as an associate at this Court, I observed first-hand the variety in the work of the Court, the importance of keeping up-to-date, and the time and effort that this required from its judicial officers. Justice Walsh’s work ethic, commitment to the role, and efficiency continue to inspire me, and I hope to emulate these characteristics during my time on this Court.

Having spent two years at the Supreme Court, I decided that I would not take up my graduate role in Sydney but that I would remain in Western Australia. As I applied for what were then articles, I experienced discrimination for the first, and I believe only, time in my career. Not, I hasten to add, because of my gender, 20 | BRIEF JULY 2019

Now, I am conscious that the addresses by counsel may give the impression that my professional life has been relatively smooth sailing, and that I have effortlessly balanced the competing professional and personal commitments in my life, including two periods of parental leave for the birth of my children. It is important, on this occasion, to dissuade those present of such an impression. Firstly, so that I can acknowledge the many people who have assisted me over the years, and, secondly, so that those who are struggling with the juggle of work and family commitments, realise that they are not alone.

I have been extremely fortunate over my professional life to have mentors and sponsors in each of my workplaces who have kept me in the profession and have contributed to the successes that I have had. As a junior lawyer at Bennett and Co, I worked with practitioners of the highest quality, including Martin Bennett and Judge Stephen Lemonis, on a wide range of matters. I learnt the importance of legal excellence, developing a strategy for the resolution of matters, and to not be what one client termed “a two-handed lawyer�. With the benefit of hindsight, I recognise the small and not so small gestures that Martin, in particular, made to support me in my career, from validating my opinions in front of clients, to providing me with opportunities to work on the most difficult and challenging cases.

When I first moved to Deacons, I was fortunate to work with a collaborative and high-performing team. This period remains one of the happiest and most

fulfilling of my career. In particular, I am grateful to Derek La Ferla, Chris McLeod and Shaun Temby for their encouragement and active sponsorship over my time at the firm, particularly in encouraging me to take on the role of Head of Office, and then to stand for election for the partnership council.

Just over four years ago, I moved to Clifford Chance. For those that know me, they will know that I am a big fan of the five-year plan. The fact that I was only at Clifford Chance for four years is an indication only that the Attorney General and the Chief Justice are extremely persuasive, and not in the failure of my planning process. I thrived in the collaborative and intellectually demanding environment at Clifford Chance and thoroughly enjoyed my time there.

I have been fortunate at each of Norton Rose Fulbright and Clifford Chance to have allies, namely, people with whom I could have the most honest of conversations about the challenges I was facing, and who would not judge me as a result of those conversations.

The Hon Chief Justice Peter Quinlan speaking at Justice Hill's welcome to the Court

In particular, I want to thank Liz Hallet, Liz Allnutt and Leanne Nickels at Norton Rose Fulbright, and Tracey Renshaw and Angela Pearsall at Clifford Chance for their support and guidance.

On a personal front, I want to start by acknowledging the lifelong support and encouragement of my parents, my father, Tony, and my mother, Peta. My only sadness on this occasion is that my mother, a West Australian by birth, did not live to see this day. My parents provided me and my siblings with every opportunity, including supporting each of us in our academic studies as well as their unwavering love and devotion. My parents were both teachers and for as long as I can remember both worked fulltime. They provided a lived example of how to balance a dual career household and how to manage work and family responsibilities.

To my elder sister, Dr Alison Hill, and my younger brother, Graeme Hill, and sister-in-law, Professor Adrienne Stone, thank you for travelling from the United Kingdom and Melbourne, respectively, to be here today. To Graeme and Alison,

particular thanks must go for your contribution in sharpening my advocacy and mediation skills while we were growing up.

I am fortunate to have the best parentsin-law that one could hope for. In particular, my father-in-law, Ron, has always been prepared to come to Perth at short notice to assist Andrew and I in managing our competing travel schedules, or for long periods of absence by either of us. Without this support, I am not sure how we could have managed over the years.

When I went back to work after Lachlan was born, we used a combination of childcare and nannies to assist us.

Initially, Mrs Pina Scaffetta joined our household as Lachlan’s nanny. We were very fortunate to have Pina for well over 10 years, until her retirement, and she was, and remains, an important part of our family. After Sophie was born, this role was shared with Anna Wilshaw, who left to have her own family and remains a close friend. I am grateful to each of them for their love and devotion to Lachlan and Sophie, and their assistance

over the years.

Turning finally to my immediate family.

I start with my children, Lachlan and Sophie. You are my and your father’s greatest achievement. I am so proud of you and the people that you are becoming. I also know that I will always be able to rely on you to continue to provide me with 180-degree unsolicited feedback to ensure that I keep it real.

Finally, and most importantly, to my husband, Andrew. Quite simply, I would not be in this position unless you had sacrificed promotion in your military career to support my career. The life of an army wife, moving every three years, is simply incompatible with the demands of a legal career, which requires length of time in one spot. I will never be able to repay you for this, and I am very grateful for your love and support over the many years we have been together. Finally, can I thank everyone once again for their attendance this afternoon.

The Hon Chief Justice Peter Quinlan: Thank you, Justice Hill. Court will now adjourn.

21

D v Edgar [2019] WASC 183

By Lexi Lachal Lawyer, Aboriginal Legal Service of Western Australia Ltd

D v Edgar [2019] WASC 183, a recent decision of the Supreme Court of Western Australia, shines a light on mandatory sentencing laws for our children and young people.

The appellant in this case was D, a 13 year old Aboriginal boy from Western Australia. D’s life has been marred by severe disadvantage. His parents separated when he was a child and his father spent time in custody for serious violent offences. His mother has ongoing and entrenched substance abuse issues and D has seen siblings spend time in custody. He witnessed extreme violence in his formative years, including between his parents. His living situation has been unstable, with multiple moves between the homes of different family members.

This has meant that his primary schooling has been sporadic. Cognitive testing has revealed his reading and numerical skills are well below his peers and he has learning difficulties in a number of other areas. There is little doubt that D’s difficulties will present as vulnerabilities for the rest of his life.

It is important to point out that D’s circumstances are not a failing of the individuals who care for him. Trauma,

22 | BRIEF JULY 2019

poverty, domestic violence, housing insecurity, and mental illness intersect with, and compound, the impact of colonisation and past and present discriminatory laws and policies. To quote from the Uluru Statement from the Heart: Proportionally, we are the most incarcerated people on the planet.

We are not an innately criminal people. Our children are alienated from their families at unprecedented rates. This cannot be because we have no love for them. And our youth languish in detention in obscene numbers. They should be our hope for the future. These dimensions of our crisis tell plainly the structural nature of our problem. This is the torment of our powerlessness.

This case begins in April 2018. D is only 12 years old, not yet a teenager. He has pleaded guilty to a number of burglary offences and is before the Children’s Court for sentencing. This is the third

time D has been in this position and three strikes for burglary offences means he is a ‘repeat offender’ under mandatory sentencing laws in the Criminal Code.

Because of this, the Magistrate is bound to impose a term of detention of at least 12 months, either by way of immediate detention or an Intensive Youth Supervision Order with Detention.

Western Australia is the only State in Australia that imposes mandatory sentencing on children.

By the time of his sentencing hearing, D had spent 108 days in custody for the offences. While incarcerated in Western Australia’s only juvenile detention facility, Banksia Hill, D received a burn to his foot, which was not properly treated and a fungal infection developed in the wound. He also contracted head lice and had active scabies on his hands which caused more infected sores.

At his sentencing hearing, D’s counsel made an application under s189(3) of

mandatory sentencing provisions in the Criminal Code. The Court considered the application afresh and found that ‘special circumstances’ did apply to D’s case considering his age and maturity, cultural background, mental and cognitive condition, nature of the offending, time spent in detention and positive steps towards rehabilitation. As such, previous convictions were disregarded and the Court was able to use its discretion to re-sentence D. The Court considered the period D spent in custody prior to sentencing, his young age, his early pleas of guilty, the harsh conditions in Banksia Hill and the fact that by the time the decision was handed down, he had completed 11 months of his 12 month order. The Court concluded that no further penalty should be imposed.

The outcome was a positive one for D and the decision will no doubt provide clarity to others in his position.

However, D’s circumstances reflect a system that is failing to identify and respond to vulnerability. Further the case highlights the risk of injustice when decision makers cannot exercise judicial discretion. Why then does Western Australia persist with mandatory sentencing, particularly in regard to children and young people? Mandatory sentencing laws lack coherent justification, fail to achieve stated outcomes, breach international human rights laws and disproportionally target Aboriginal youth, contributing to high incarceration rates.

the Young Offenders Act. Section 189(3) states that if ‘special circumstances’ exist, the court may decide that previous convictions not be regarded as convictions for any purpose. Counsel pointed to D’s young age, the time spent in custody and his mental and cognitive impairments as being ‘special circumstances’. If the application was successful, essentially D would not have been a ‘repeat offender’ and the Magistrate could exercise her usual discretion when sentencing. The Magistrate, however, was not satisfied she had the power to use the section to abrogate the mandatory sentencing laws.

As a result, D was sentenced to a 12 month Intensive Youth Supervision Order with Detention.

D appealed the decision to the Supreme Court. The Court found that the Magistrate erred in failing to consider the s189 application and that a declaration made under that section can effectively displace the effect of the

The rationale for mandatory sentencing is flawed. It rests on the assumption that a custodial sentence will be an effective deterrent to future offending. However, research indicates that young people who are given a custodial sentence are 74 per cent more likely to be reconvicted at any given time than those who receive a non-custodial penalty.1 Further, introducing mandatory sentencing for burglary offences has done little to reduce the rates of home burglaries in Western Australia. Statistics show rates have remained steady since 2003/2004 up until last year.2 A similar finding was made in 2001 by a public report into the legislation by the University of Western Australia’s Crime Research Centre.3 Mandatory sentencing ignores the circumstances of individual offending.

Instances of violent home invasions are already likely to attract custodial sentences regardless of mandatory minimum sentences.4 Where mandatory sentencing has the greatest effect is at the lower end of the scale. For example, it is not unheard of for an Aboriginal child in a community to be charged

with burglary for entering a relative’s house through an unlocked door to get food, because they’ve been left to fend for themselves. If it constitutes a third strike, then it will attract the mandatory minimum sentence and the judge will not have the ability to take into account the particular circumstances of the case.

Mandatory sentencing for children breaches Australia’s international human rights obligations. Article 37(b) of the UN Convention on the Rights of the Child to which Australia is a signatory states that "no children shall be deprived of his or her liberty unlawfully or arbitrarily. The arrest, detention or imprisonment of a child shall be … used only as a measure of last resort and for the shortest appropriate time period." This stands in direct contrast to setting a minimum sentence for offences regardless of the circumstances of the offending.

Finally, mandatory sentencing disproportionately affects Aboriginal children and young people. Statistics collected by the Department of Justice as part of a 2001 four year review of the laws confirmed this: over 81 percent of the 119 young people sentenced under mandatory sentencing laws were Aboriginal. Moreover, 61 percent were from non-metropolitan areas and of those 93 percent were Aboriginal.5 This is particularly concerning given that on average over a four year period Western Australia had the highest rate of Aboriginal young people in detention on any given night.6 The shocking circumstances of D’s case should raise questions about the ability of our youth justice system to respond to the most vulnerable in our community.

Mandatory sentencing only further hinders this. Western Australia needs to step into line with the rest of the country and abolish mandatory sentencing for children.

Endnotes 1

2

3

4 5 6

Don Weatherburn, Sumitra Vignaendra, Andrew McGrath, ‘The specific deterrent effect of custodial penalties on juvenile re-offending’ (AIC Technical and Background Paper 33, Australian Institute of Criminology, 2009) 9.

Western Australia Police Force, Crime Statistics (4 June 2019) <https://www.police.wa.gov.au/Crime/ CrimeStatistics#/>.

Harry Blagg, Neil Morgan, Victoria Williams, ‘Mandatory Sentencing in Western Australia and the Impact on Aboriginal Youth’ (Report, Aboriginal Justice Council, December 2001).

Ibid.

Department of Justice, ‘Review of Section 401 of the Criminal Code’ (November 2001) 24-25.

Australia Institute of Health and Welfare, ‘Youth detention population in Australia’ (Bulletin 154, Australian Government, December 2018) 18.

23

Working with Elderly Clients

By Susan Fielding

Dealing with elderly clients should need no special skills if the maxims of courtesy and normal good manners are followed.

However in a society which at least tends to under rate the talents of its so called 'Senior Citizens' and at worst hides a large proportion of its elderly in retirement villages, many practitioners do not have any contact with the elderly until they come face to face across an office desk.

2. Low chairs – difficult to sit on and impossible to get out of.

Important Business

5. Rushing the client into the office – hurrying with the interview.

Practitioners should realise that for many elderly people the business which brings them to a lawyer's office may be stressful or even tragic. A person coping with the death of a husband or wife of 40 or 50 years will not be at their most efficient whether or not they are hampered with additional disabilities such as failing eyesight, difficulty in moving or loss of hearing.

Some introductory chat about the weather, the family (if known to the practitioner), the view (or lack of view) will all serve the useful purpose of establishing a rapport with the client and ascertaining whether it is necessary to speak a little more slowly or more loudly to aid the client in their comprehension.

It is important to remember that anyone, old or young, with a hearing disability is greatly assisted by a person who looks up at them and speaks clearly. Simply shouting is not the answer.

The Modern Office If the client is at ease, the business in hand will be dealt with more expeditiously. The observant lawyer with elderly clients will soon notice factors which are off-putting to elderly clients: 1. Modern lifts – the speed with which the doors shut can catch the slow moving unawares. It is a good idea for the practitioner or their secretary to call the lift for some elderly people and in some cases to escort the client to the ground floor.

24 | BRIEF JULY 2019

3. Interruptions during interview – this applies to any client, not only the elderly, but it can be particularly irritating to the elderly person as the train of thought may be interrupted.

4. Too much light – or the other extreme, too little light, can make seeing difficult.

Capacity In some cases the practitioner may have to make a decision about the capacity (testamentary or otherwise) of a client. If the client's interests or family are known, a discussion about those interests or the family will elucidate far more helpful information as to capacity than asking for addresses, telephone numbers, post code etc., as suggested in some authorities on dealing with the elderly.

It may not be surprising that a person who has recently moved after many years in the one house does not remember their new telephone number. However changes in appearance – an unkempt look in a person who was previously neat or inability to recall something mentioned a few minutes earlier may be warning signs of a loss of capacity.

Put The Client At Ease For those unused to dealing with the elderly, some helpful hints include: 1. When making an appointment with an elderly person, make sure that the client is given clear instructions as to where to go and make sure the timing of the appointment suits the client. Many prefer mid-morning as they use public transport.

2. Be understanding to prior commitments. Do not make the

mistake of treating an elderly person's other commitments as unimportant.

3. Don't keep an elderly client waiting unnecessarily. Most elderly clients will arrive at least 10 minutes before the appointed time so that if the practitioner is 10 minutes late this will mean a waiting time of 20 minutes.

4. If waiting is unavoidable see that it is made pleasant. A cup of tea is always welcome and a friendly smile from the receptionist puts the client at ease.

5. Go and greet the client at reception or if the client is shown in the practitioner should stand up and greet the client.

6. Let the client explain the problem at the client's pace without undue interruptions. It may be necessary to take detailed notes and ask relevant questions after the client has finished.

7. Do not be patronising. The frail lady or elderly man before you may have run a hospital, school, or company and in any event their experience of life will certainly be greater than yours.

8. Explain your advice or course of action clearly and concisely and if necessary be prepared to reiterate it.

9. If the client has to provide information make a list (this doesn't just apply to the elderly).

10. Trust your own instincts. If they don't help follow John Wayne's advice “Talk low, talk slow, and don't say too much”.

2019 WA Arbitration Report

By Brian Millar and Scott Ellis Arbitrators and Barristers, Francis Burt Chambers

Background The inaugural WA Arbitration Report was launched by the Attorney General, the Hon John Quigley MLA on 1 May 2019.

The Report is the result of a survey of practitioners, conducted by the WA Arbitration Initiative, investigating the extent of arbitration work with a WA connection during the 2017/2018 financial year.

Some arbitrations become public (eg Rinehart v Hancock Prospecting Pty Ltd [2019] HCA 13). However, most arbitrations occur behind closed doors.

This means that solid data about arbitration is not readily available. Noone really knows how much arbitration is going on.

The Survey aimed to address that information deficit. The results can be used to promote arbitration and WA and Australian arbitration practitioners within Australia and internationally.

The Survey is unique in Australia. There is no comparable data from other Australian jurisdictions.

The WA Arbitration Initiative was developed by WA arbitration practitioners Brian Millar and Scott Ellis. They were joined by the former Chief Justice of WA, Wayne Martin, who now practices as an arbitrator and mediator. The purpose of the WA Arbitration Initiative is to promote arbitration and arbitration practitioners. It is ‘institution neutral’ and ‘rule neutral’.

The WA Arbitration Initiative’s work in running the Survey and preparing the Report was supported by: • • • •

Francis Burt Chambers FTI Consulting ICC (International Chamber of Commerce) Australia Law in Order

The method The Survey interrogated the nature and

Left to right: Brian Millar, Scott Ellis, The Hon John Quigley MLA, The Hon Wayne Martin AC QC

extent of arbitration activity with a WA connection during 2017/2018. It was not limited to arbitrations that were heard in WA. The Survey was directed to: • • • •

arbitrators law firms in house counsel barristers

To preserve the confidentiality of the arbitration process, the responders and their data were de-identified. It was expected that some responders might be involved in opposite sides of the same arbitrations, so questions involved unique identifiers to enable duplicate responses to be eliminated.

The results The response revealed that during the period under review: • • •

• •

•

•

There were 105 unique arbitration proceedings Of those 105 arbitrations, 53 were domestic arbitrations and 52 were international The amounts in issue in the arbitrations totalled more than AUD$14bn in claims and an additional $8.5bn in counterclaims The larger amounts in issue were skewed towards the international arbitrations The disputes were predominately in the mining, resources, energy (oil and gas) and construction/ engineering sectors Firms in Western Australia derived at least $85m in fees for arbitration related services during the year surveyed In addition to those fees, other costs included: o o o

$9m in Tribunal costs $13m in witness fees (including fees to expert witnesses) $4.5m in other costs

Implications The survey shows that there is a substantial arbitration community in WA with significant expertise and experience in international and domestic arbitration, particularly in the resources, energy and construction sectors. That expertise has been honed by the WA arbitration communities’ involvement in the numerous, significant and high value disputes, which have arisen out of the state’s major mining, oil and gas and infrastructure projects.

It is also pleasing to see that WA practitioners are using that expertise acting in arbitrations heard overseas, which do not involve Western Australian projects or Australian parties.

Feedback form participants shows that experience in arbitration and innovative approaches are important in selecting both arbitrators and legal representatives. Another recurring theme was the need to utilise the inherent flexibility of the arbitral process to reduce the overall time and costs involved and to avoid the process resembling court litigation.

The Survey results indicate that there are opportunities for WA based practitioners to increase their involvement in the international market and to increase the use of arbitration in resolving domestic disputes.

The promotion and development of WA arbitration also brings economic advantages to the state and complements the development of WA as a global energy and resources hub.

Preparations are in train for the next Survey covering the 2018/2019 financial year. It is hoped that the results from that Survey will be just as encouraging for the continued development of the WA arbitration community.

A copy of the full report can be obtained from francisburt.com.au/waarbitrationinitiative

25

The Federal and State Courts on Constitutional Law: The 2018 Term

By Justice Mark Moshinsky Federal Court of Australia1

Paper presented to the Gilbert + Tobin Centre of Public Law, 2019 Constitutional Law Conference, Sydney, 15 February 2019

In this article I propose to focus on three decisions handed down by the State and federal courts during 2018. Each of these decisions relates to Ch III of the Constitution. One is a decision of the New South Wales Court of Appeal, sitting as a bench of five Judges. The next is a decision of the Court of Criminal Appeal of the Supreme Court of South Australia. And the third is a decision of the Full Court of the Federal Court of Australia. The proposition that I seek to develop in this article is that each of these cases makes a substantial contribution to the case law on Ch III of the Constitution, either by considering a new issue or by applying principles laid down by the High Court in a new context.

The three cases that I will focus on in this article are: •

Attorney-General (NSW) v Gatsby,2 a decision of the New South Wales Court of Appeal;

•

Question of Law Reserved (No 1 of 2018),3 a decision of the Court of Criminal Appeal of the Supreme Court of South Australia;

•

Wileypark Pty Ltd v AMP Limited,4 a decision of the Full Court of the Federal Court of Australia.

I will discuss each of these cases in turn, and then draw together some themes that emerge from the three cases. One of the points of intersection between

26 | BRIEF JULY 2019

the three cases is the notion of an “integrated Australian judicial system” or “integrated Australian judicature”. I will also offer some observations on this concept towards the end of my article.

While I have decided to focus on three cases, it should be noted that the State and federal courts decided a number of other cases involving constitutional law issues during 2018. These include a decision of the Full Court of the Federal Court on whether a State and federal co-operative scheme involved an acquisition of property without just terms contrary to s 51(xxxi) of the Constitution5, and decisions of the New South Wales Court of Appeal concerning: the implied freedom of political communication;6

the Kable principle in the context of proceeds of crime legislation;7 and the extraterritorial operation of State legislation and the territorial limits of the State.8 However, time does not permit an examination of each of these cases.9

Attorney-General (NSW) v Gatsby I turn then to consider each of the three cases I mentioned at the outset. The first of these is Attorney-General (NSW) v Gatsby.

As mentioned, this was a decision of the New South Wales Court of Appeal. The bench comprised Chief Justice Bathurst, President Beazley and Justices of Appeal McColl, Basten and Leeming.

The case was argued in April 2018, and judgment was handed down in November 2018. The timing is significant, because judgment was handed down well after the High Court decision in Burns v Corbett.10 There is a close connection between the issues considered by the High Court in that case and the issues considered by the New South Wales Court of Appeal in Gatsby.

Both Burns v Corbett and Gatsby were concerned with the New South Wales Civil and Administrative Tribunal, known as “NCAT”, and the question whether NCAT had jurisdiction to deal with disputes between residents of different

not a “court of a State” for the purposes of Ch III of the Constitution.

Those two assumptions were, however, put in issue in Gatsby. In effect, the New South Wales Court of Appeal was called upon to determine whether the assumptions that had been made in the course of the Burns v Corbett litigation were correct.

The issues in Gatsby concerned two proceedings in NCAT under residential tenancies legislation. In each of those proceedings, the Appeal Panel of NCAT had stated and answered two preliminary questions. The first preliminary question was, in effect, whether NCAT was exercising judicial power. The second preliminary question was whether NCAT was a court of a State for the purposes of Ch III of the Constitution. The Appeal Panel decided that NCAT was exercising judicial power, and that NCAT was a court of a State for the purposes of Ch III. Thus, on the Appeal Panel’s view, NCAT did have jurisdiction to determine the disputes. The question for the Court of Appeal was the correctness of the Appeal Panel’s view on these two issues.

For present purposes, I propose to focus on the “court of a State”.

States. The question of jurisdiction arises in the context of s 75 of the Constitution, which identifies a matter between residents of different States as one of the heads of federal jurisdiction, conventionally referred to as “diversity jurisdiction”.

In Burns v Corbett, handed down in April 2018, the High Court decided, in effect, that NCAT did not have jurisdiction to deal with the dispute between residents of different States. Different reasons were given for that conclusion, but it beyond the scope of this article to discuss the differences between the majority and minority reasoning.

What is important to note for present purposes is that in Burns v Corbett, it was common ground between the parties and assumed by the High Court: first, that NCAT was exercising judicial power; and, secondly, that NCAT was

As will be well-known to this audience, it is critically important from the perspective of Ch III of the Constitution to determine whether a body established by a State is, or is not, a “court of a State”. The heads of federal jurisdiction are set out in ss 75 and 76 of the Constitution. Jurisdiction with respect to the s 75 matters is conferred on the High Court by s 75 itself. Jurisdiction with respect to the s 76 matters may be conferred on the High Court by the Parliament. Section 77 then provides for the conferral of federal jurisdiction on other courts, both federal and State.

Under s 77(ii), the Parliament may make laws defining the extent to which the jurisdiction of any federal court shall be exclusive of “that which belongs to or is invested in the courts of the States”.

Under s 77(iii), the Parliament may make laws “[i]nvesting any court of a State with federal jurisdiction”. Thus, if a body is a “court of a State”, it is capable of having federal jurisdiction conferred upon it.

However, if the body is not a court of a State, federal jurisdiction cannot be conferred on the body.

A corollary of having the capacity to receive federal jurisdiction is that the doctrine in Kable11 applies. In brief summary, a State legislature cannot confer upon a State court a function or power which substantially impairs its institutional integrity.12

In Gatsby, both the Attorney-General for NSW and the Attorney-General for the Commonwealth (intervening) contended that NCAT was not a court of a State.

Some of the matters relied on by the Attorney-General for NSW were:13 •

the fact that NCAT was not predominantly composed of judges;

•

the terms of appointment of members of NCAT – they were appointed for renewable terms of five years;

•

the terms for removal of members of NCAT – members could be removed by the Governor for “incapacity, incompetence or misbehaviour”.

The Attorney-General for the Commonwealth (represented by the Commonwealth Solicitor-General) submitted that the “critical factor” was to identify the choice that the State legislature had made between the available options (that is, setting up a court, and setting up a tribunal).14 It was submitted that this question was to be assessed by reference to the construction of the legislation that created the relevant body. The Attorney-General submitted that, when the legislature chooses to establish a “court”, it must be a fit repository for federal judicial power invested under s 77 of the Constitution, which means that it must satisfy certain minimum standards of independence and impartiality.15 It was submitted that, while the labelling of a body as a “court” may not be decisive, it was properly regarded as a very weighty indicator of legislative intention.16 It was submitted that, here, there was no suggestion in the governing legislation that NCAT was being established as a “court” or a “court of record”.

The Court of Appeal made arrangements for counsel to appear as contradictors.17 The contradictors submitted (on the basis of the judgment of French CJ in Pompano18) that there were four characteristics of courts. The four characteristics were:19 •

first, the reality and appearance of decisional independence and impartiality;

•

second, the application of procedural fairness;

•

third, the adherence as a general rule to the open court principle; and

•

fourth, the requirement for the provision of reasons for the court’s decisions.

The contradictors submitted that each of

27

those characteristics was present here.

security for tenure for members of the Tribunal compared with that held by Judges under the Act of Settlement 1701 (UK) and its statutory or constitutional equivalents. Members other than the President can be removed from office by the Governor for “incapacity, incompetence or misbehaviour”. This was contrasted with the position of judges, who can only be removed by the Governor “on address from both Houses of Parliament in the same session, seeking removal on the ground of proved misbehaviour or incapacity”.

Separate judgments were delivered by each member of the Court. Chief Justice Bathurst delivered detailed reasons, with which President Beazley and Justice McColl agreed. Justice Basten and Justice Leeming each delivered separate judgments.

Chief Justice Bathurst noted20 that the parties approached the issue in a somewhat different fashion. On the one hand, the Attorney-General for NSW and the Attorney-General for the Commonwealth approached the issue as a matter of construing the legislation that established the body. On the other hand, the contradictors suggested that, if all the indispensable features of a “court” were present, then it was a “court of a State” for the purposes of Ch III irrespective of whether the State legislature intended to create it as such.

Chief Justice Bathurst said that, in the present case, the different approaches did not lead to different results.21

•

Chief Justice Bathurst referred 22 to Hospital Contribution Fund,23 in which the High Court held that “court” in s 77(iii) of the Constitution means “a court as an institution being ‘an organisation for the administration of justice, consisting of judges and with ministerial officers having specified functions’”. Chief Justice Bathurst also referred24 to the judgment of Chief Justice Spigelman in Skiwing,25 which related to the Anti-Discrimination Tribunal of NSW, a predecessor of NCAT. In that case, Chief Justice Spigelman stated that “in order to be part of the constitutionally required integrated judicial system, a tribunal must be able to be characterised not only as a court, but as a court of law”. Chief Justice Spigelman said that one aspect of this was that the body was comprised “probably exclusively although it is sufficient to say predominantly, of judges”.

In the Chief Justice’s view, the combination of these factors meant that the State legislature did not intend NCAT to be a “court of a State” for the purposes of Ch III of the Constitution, and the Tribunal did not have the necessary degree of independence and impartiality to constitute such a court.

Thus, whether one approached the matter on the basis of the intention of the State Parliament or the objective characteristics of the body, the result was the same: NCAT was not a “court of a State”.

Applying these principles to the present case, Chief Justice Bathurst was of the view that, although NCAT has many of the features of a court and could, in a number of areas, exercise State judicial power, it was not a “court of a State” for the purposes of Ch III of the Constitution.

In the Chief Justice’s view, the main factors were:26 •

First, NCAT was not designated as a “court of record”.

•

Secondly, and more importantly, it could not be said that the Tribunal was composed “predominantly of judges”.

•

Thirdly, of equal, if not greater, importance, was the absence of

28 | BRIEF JULY 2019

Fourthly, the Chief Justice referred to the method of appointment.

Apart from the President, members of the Tribunal are appointed by the Minister. The term of appointment cannot exceed five years, but the member is eligible for reappointment. There are no restrictions on the other activities that can be undertaken by members, which presumably could include employment by a government department or agency.

As noted, President Beazley and Justice McColl agreed with the reasons of the Chief Justice.27 In his judgment, Justice Basten said28 that to determine whether a body is a State court, one must consider the structure, membership and functions of the body, as defined by State law.

One consideration will be its title, but that is not necessarily determinative for constitutional purposes. He said that if the body does not satisfy the substantive criteria for a State court under s 77(iii), it may not be a State court merely because it is called a “court” or even a “court of record” under its constituting statute. He said that the fact that NCAT is described as a “tribunal”, not a “court”, was not irrelevant, but its relevance was as a signal that Parliament was establishing a body without some characteristics conventionally associated with a court.

Justice Basten referred29 to the objects of Parliament in establishing NCAT. After referring to several of the objects he said that “the intention to provide a tribunal separate from the court system is … manifest”. He referred to factors indicating that government intended to retain a “degree of flexibility in moulding the composition of the Tribunal from time to time”.30 He said that the fact that some specialist bodies are expressly designated as courts (such as the Land and Environment Court, Industrial Court, District Court, Drug Court, Children’s Court and Local Court) emphasises the distinction drawn by Parliament between courts and tribunals.31 Accordingly, Justice Basten was “content to conclude” that NCAT was not a court within the meaning of s 77(iii).32 However, he took a different view as to whether the present case turned on that question.33 Justice Leeming also concluded that NCAT was not a court of a State. He said that, while there may be cases at the margins when an elaborate analysis is called for to determine whether a body is a “court of a State” for the purposes of s 77(iii) of the Constitution, he did not regard the present case as “other than clear”.34 He placed emphasis on the history of the legislation constituting NCAT.35 In brief, it had been established

by Skiwing that the Administrative Decisions Tribunal was not a court of a State for the purposes of s 77(iii). NCAT is the successor to the Administrative Decisions Tribunal (although it is also the successor to a number of other tribunals). Yet there is nothing in the NCAT Act36 that suggests that NCAT was to be, unlike its predecessor, a court of a State for the purposes of s 77(iii). Justice Leeming also referred37 to amendments to the NCAT Act that inserted a new Part38 dealing with diversity proceedings.

The purpose of the new Part was, his Honour considered, plain.39 The former exclusive authority of NCAT to determine this class of disputes was qualified insofar as those disputes were matters in federal diversity jurisdiction. To that extent, the new provisions permit parties to make application to a court that unquestionably does have jurisdiction to hear and determine the dispute. Justice Leeming observed that the entirety of the new Part would have no operation if NCAT was a court.40 Accordingly, all members of the Court of Appeal concluded that NCAT was not a court of a State for the purposes of Ch III of the Constitution. I am not aware of any special leave application having been made in respect of the decision.

Question of Law Reserved (No 1 of 2018) I turn now to consider the second of the three cases concerning Ch III of the Constitution, namely Question of Law Reserved (No 1 of 2018), a decision of the Court of Criminal Appeal of the Supreme Court of South Australia handed down in December 2018. I understand that an application for special leave has been filed.

The issue in this case concerned the application of Kable to State legislation relating to sentencing. In brief terms, the State legislation sought to negate the effect of a decision of the High Court, in a case called Chiro,41 as to how sentencing was to occur. The question was whether the State legislation was invalid on the basis of the Kable principle.

I will now outline the facts in a little more detail. The defendant, Stephen Hamra, was charged with persistent exploitation of a child contrary to s 50 of the Criminal Law Consolidation Act42 of South Australia. The particulars of the information were that he had, between a date in 1979 and a date in 1987 – that is,

a period of some eight years, committed more than one act of sexual exploitation of a particular child under the prescribed age. The information described four different types of act that comprised the sexual exploitation. The defendant pleaded not guilty and a trial took place in the District Court. In January 2017, the jury returned a guilty verdict.

In September 2017, the High Court delivered judgment in Chiro. In summary, the High Court determined by a majority that in circumstances where a jury delivered a general verdict of guilty of a charge against s 50, and the jury was not questioned as to which of the alleged acts of sexual exploitation were found to be proved, the sentence would have to be delivered on the basis of the view of the facts most favourable to the defendant.

In the case of Mr Hamra, the Judge had, in summing up to the jury, directed them that, in order to find the defendant guilty, they needed to be agreed on two or more acts of sexual exploitation.

However, upon delivery of the jury’s verdict, the Judge had not asked the jury which acts of sexual exploitation they had found to be proved.43 Accordingly,

an application of Chiro would require Mr Hamra to be sentenced on the basis of the view of the facts most favourable to him.

Following to decision of the High Court in Chiro, the Parliament of South Australia passed an Act44 that amended the Criminal Law Consolidation Act. The amending Act made specific provision45 for those persons who had been convicted but not yet sentenced for an offence against s 50. The provision drew a distinction between the trier of fact (on the one hand) and the sentencing court (on the other). The provision had a series of paragraphs, as follows: “9—Sentencing for offences under previous law (1) …

(2) Where, after the commencement of this section, a person is to be sentenced for an offence against section 50 of the Criminal Law Consolidation Act 1935 (as in force before the commencement of section 6 of this Act) the following provisions apply: (a) a verdict of guilt handed down by the trier of fact in relation to

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Federal Court of Australia, Perth

the offence is taken to be, and always to have been, a finding by the trier of fact that the person is guilty of the acts of sexual exploitation comprising the course of conduct alleged by the information; (b) notwithstanding paragraph (a), in sentencing the person for the offence, the sentencing court may determine which alleged acts of sexual exploitation the sentencing court finds proved beyond a reasonable doubt and may disregard any acts of sexual exploitation that the sentencing court is not satisfied were proved beyond a reasonable doubt; (c) for the avoidance of doubt, the sentencing court need not ask any question of the trier of fact directed to ascertaining which 30 | BRIEF JULY 2019

acts of sexual exploitation, or which particulars of the offence as alleged, the trier of fact found to have been proved beyond a reasonable doubt and, unless it has so determined in accordance with paragraph (b), need not sentence the person on the view of the facts most favourable to the person.”

The provision contained a ‘carve out’ (in sub-section (3)) for the particular matter that was the subject of the High Court’s decision in Chiro. But the provision was otherwise intended to overturn the effect of the High Court’s decision. This was made plain by a “Note” appearing under the provision in the following terms: “Except as provided in subsection (3), this section negates the effect of the determination of the High Court in Chiro v The Queen [2017] HCA 37”.

Thus, there was no doubt what the State Parliament was trying to achieve.

The Judge of the District Court who was to sentence Mr Hamra reserved a question of law for consideration by the Court of Criminal Appeal. In substance, the question was: Is the provision in the amending Act valid?

In brief terms, the defendant contended that the provision was invalid on the basis that it impaired the institutional integrity and independence of the District Court of South Australia.46 I note at this point that this one of the few cases that has considered the Kable principle in the context of a court of a State other than the Supreme Court. Another example is K-Generation47 in the High Court. In contrast, most decisions in the Kable line of cases have concerned the Supreme Court of a State. Yet there is no doubt that the Kable principle applies to all

he had been found guilty of the two least serious acts alleged – so it was within the power of Parliament to oblige the court to sentence on the basis of a different fiction, namely that all acts alleged had been found proved, subject to the judge’s discretion to find otherwise.

All members of the Court of Criminal Appeal were of the view that the provision was invalid on the basis of the Kable principle. A judgment was delivered by Justice Vanstone. A separate judgment was delivered by Justice Hinton, with whom Justice Lovell agreed.

In her judgment, Justice Vanstone referred to the decision of the High Court in North Australian Aboriginal Justice Agency Ltd v Northern Territory50 in which Chief Justice French and Justices Kiefel and Bell had set out seven principles established by the Kable line of cases. Applying those principles, Justice Vanstone said that the legislative deeming of the verdict to involve a finding of guilt of all alleged acts, even though subject to the discretion given by paragraph (b) of the provision, seemed to impact upon the reality and appearance of the court’s independence and impartiality. Her Honour said:51 “Given that it is for the jury, as an organ of the court, to determine what elements of the offence are proved, a presumption that all are proved, even overlayed by a judicial discretion to make a fresh determination of the very questions which were addressed by the jury, must detract from the reality and appearance of the court’s independence and impartiality.”

State courts, not only the Supreme Court. This has been made clear by the High Court in many statements of the Kable principle.48 The submissions on behalf of the Director of Public Prosecutions and the Attorney-General for the State of South Australia were presented by the State Solicitor-General. He argued that s 50 had changed the orthodox position, namely that it was for the sentencing judge to find the facts relevant to sentence, so long as those facts were consistent with the verdict of the trier of fact.49 He contended that it was within the province of Parliament to alter the rule governing the location of the factfinding function as between judge and jury, always provided that the factual basis for sentence was consistent with the verdict. It was submitted that, since Chiro countenanced the resentencing of Mr Chiro on the basis of a fiction – that

Her Honour said that the legislation amounted to a “retrospective reordering of the court’s processes” and thus amounted to “a substantial interference with the judicial process such as to impair the institutional integrity of the court”.52 In his judgment, Justice Hinton described the Kable principle and in this context noted that “Chapter III creates an integrated national court system, not a uniform national court system”.53 Justice Hinton described the decision of the High Court in Chiro and considered some issues of construction concerning the provision of the amending Act. In summary, in his view, paragraph (a) operates as a starting point that will always be ameliorated by paragraph (b) if less than all the acts of sexual exploitation particularised are not proven to the satisfaction of the sentencing court beyond reasonable doubt.54

Justice Hinton emphasised that, in a criminal prosecution, the sequential steps of conviction and sentencing are inextricably linked.55 In Mr Hamra’s case, the judicial power had been exercised to quell the first stage of the controversy – the jury verdict was accepted by the trial judge and has been entered in judgment.56 The result of the exercise of judicial power was that Mr Hamra was found guilty of the offence and was liable to be punished.

Putting to one side the amending Act, Chiro is authority for the proposition that his liability to punishment is limited to those acts forming part of the actus reus of the offence as found by the jury to have been proved and only for those acts. In Mr Hamra’s case, that curial determination had already occurred.

In Justice Hinton’s view, the provision in question required, in effect, that the exercise be repeated. In his view, the State Parliament was in substance commanding that a controversy that had been resolved in the exercise of judicial power be re-opened and retried.57 This drew the District Court into a process that was antithetical to the exercise of judicial power and incompatible with that Court’s constitutionally mandated position.58

Wileypark Pty Ltd v AMP Ltd The third case that I will discuss is Wileypark v AMP. This case concerns the relationship between the Supreme Court of a State and the Federal Court of Australia and, in particular, the principles applicable to transfers and anti-suit injunctions. In considering the issues, the Full Court of the Federal Court made important observations about the constitutional assumption of an integrated Australian judicature.

The background to the judgment is as follows. As a result of matters raised at the Banking Royal Commission, five representative proceedings were commenced against AMP, both in the Federal Court of Australia and the Supreme Court of New South Wales.

Four of the representative proceeding were commenced in the Federal Court: these were the Wileypark proceeding, the Georgiou proceeding, the Fernbrook proceeding and the Komlotex proceeding.59 One representative proceeding was commenced in the Supreme Court: this was the Wigmans proceeding. This was filed shortly before – by a matter of hours – the first proceeding filed in the Federal Court.60 The subject matter and claims in the proceedings substantially overlapped.

31

In the four Federal Court proceedings, AMP filed applications for the proceedings to be transferred to the Supreme Court.

Then, the applicants in the four Federal Court proceedings approached the Supreme Court seeking to have the Supreme Court proceeding (that is, the Wigmans proceeding) transferred to the Federal Court.61 That transfer application came on for hearing and was opposed, including by AMP. In the course of the hearing, senior counsel for AMP submitted that AMP was “more content” to be sued in the Supreme Court than in the Federal Court.62 Ms Wigmans also sought an anti-suit injunction against the parties to the four Federal Court proceedings to prevent them taking any steps in the Federal Court proceedings.63 On 9 July 2018, the judge in the Supreme Court delivered judgment on the transfer application. He refused to transfer the Supreme Court proceeding to the Federal Court. In the course of his judgment, he said that he would invite the applicants in the four Federal Court proceedings to consent to the transfer of those proceedings to the Supreme Court and, if they did not, he would consider whether to grant an anti-suit injunction as sought by Ms Wigmans.64 Two days later, on 11 July 2018, the Federal Court proceedings came before Justice Lee. Justice Lee expressed some concern as to the protection of the integrity of the process of the Federal Court pending the transfer applications in the Federal Court being dealt with, given the threat of an anti-suit injunction.65 The remarks of Justice Lee apparently lead Ms Wigmans to file, the next day, a notice of motion in the Supreme Court seeking what was described as an “antianti-anti-suit injunction”.66 That motion was referred to the Chief Judge in Equity (Justice Ward). Justice Ward refused to grant any injunction and made consent orders holding the position pending the applications before the Federal Court.67 After referring to a number of cases, Justice Ward said: “17 The cases in general that have dealt with anti-suit injunctions or anti-anti-suit injunctions or the like have tended to be cases involving matters where proceedings were commenced in the court of the forum as well as in international courts. This is a relatively unique case where there are present proceedings in the Supreme Court and, at the same time, proceedings in the Federal Court.

32 | BRIEF JULY 2019

18 I am of the firm view that, as a matter of policy, this Court should not take steps that may interfere with or undermine the processes of the Federal Court; just as I would expect that judges of the Federal Court would be concerned, as a matter of comity, not to take steps which would interfere or cause interference in the integrity or processes of this Court. In my view, there would need to be powerful reasons given for an anti-anti-antisuit injunction of the kind that was sought in the notice of motion filed today to be made (just as there would need to be, I would hope, recognised a need for powerful reasons before any anti-anti-suit injunction might be granted in the Federal Court if to do so would affect or undermine the integrity of the processes of this Court).”

The next step was the hearing of the transfer applications that had been filed in the four Federal Court proceedings.

Given the significance of the issues, it was directed that these transfer applications be heard by a Full Court of the Federal Court.68 The Court comprised Chief Justice Allsop and Justices Middleton and Beach. The leading judgment was delivered by Chief Justice Allsop, with whom Justices Middleton and Beach relevantly agreed.69 After setting out the chronology of events and a passage from the judgment of Justice Ward (including the passage I have quoted), Chief Justice Allsop said:70 “I wish to express, emphatically, my complete agreement with the Chief Judge [in Equity] that comity between the Supreme Courts of the States and Territories and the Federal Court in the concurrent exercise of federal jurisdiction is of the utmost importance. Indeed, to put it thus may be to suffer understatement. In an integrated federal judicature such comity is a Constitutional assumption of the utmost practical and institutional importance.”

Chief Justice Allsop referred71 to a statement of President Kirby in Beecham (Australia) Pty Ltd v Roque Pty Ltd72 where he expressed the view that it was “unseemly, at this stage in the history of the Australian Federation for arguments as to the most convenient forum within Australia for the hearing of a case to be resolved by the procedure of an anti-suit injunction. President Kirby had referred to the constitutional status of State courts as “component parts of the

Federation”. He had stated that the State courts, although not Federal courts, “are recognised in Chapter III of the Australian Constitution as constituents of the judicial system of the Commonwealth”. In these circumstances, in President Kirby’s view, it was “constitutionally inappropriate … to proceed in a State court to apply principles of private international law which have been developed to govern relationships between courts of foreign countries”.

Chief Justice Allsop said that he took President Kirby to be referring to the “Constitutional assumption of an integrated Australian judicature, now accepted as a reality” in Kable. As such, he did not consider s 78B notices73 to be required. Chief Justice Allsop concluded this part of his reasons as follows:74 “The reality and practical significance of this Constitutional assumption is made clear in circumstances where a party seeks, or it is otherwise suggested, that one court in Australia would, or should,

Supreme Court of Western Australia

entertain an anti-suit injunction against proceedings in another court with the possible interference with the integrity of the processes of that other court, and so, of the integrated judicature itself. The undesirability of that course has a number of other unwanted features which are unnecessary to canvass.”

Turning to the transfer applications before the Court, Chief Justice Allsop considered that it was appropriate for the four proceedings in the Federal Court to be transferred to the Supreme Court of New South Wales.75 A decision could then be made, as a matter of case management, as to which of the proceedings would proceed.76 A significant factor in deciding to transfer the four proceedings to the Supreme Court was that the Supreme Court had already refused to transfer the Wigmans proceeding.77 The Chief Justice said that none of what might be called the usual considerations in a forum conveniens or transfer application outweighed

the convenience of ensuring only one substantive hearing.

But what is meant by an “integrated Australian judicial system”?

Justices Middleton agreed with the reasons of the Chief Justice and added some additional observations. Justice Beach agreed with the reasons of the Chief Justice save in one respect which is not presently relevant.

While the expression has been adopted in a number of High Court judgements – in particular, the expression was used by Justices Gaudron, McHugh and Gummow in Kable78 – the cases do not provide any definition of what is meant by an integrated judicial system.

Conceptually, the expression could cover a range of different systems.

Observations In my opinion, the three cases that I have discussed make a substantial contribution to the case law on Ch III – Gatsby, in clarifying the principles that mark out the boundary of the integrated Australian judicial system; Question of Law Reserved (No 1 of 2018), in applying the Kable principle in the context of a law that seeks to change the process of sentencing; and Wileypark, in demonstrating the way in which the constituent parts of the integrated judicial system should approach transfers and anti-suit injunctions.

Ultimately, it is necessary to look at the provisions of the Constitution in order to describe the Australian judicial system.

While the expression “integrated Australian judicial system” is apt to describe the system established by Ch III, it is the provisions of that chapter that give content to the expression. The features of Ch III of present relevance are as follows: •

First, the Constitution provides for the High Court of Australia to sit at the apex of both federal and State courts. With the abolition of appeals 33

to the Privy Council, the High Court is the final court of appeal from decisions of both federal and State courts.

•

•

•

•

Secondly, and relatedly, there is only one common law of Australia.79 Thus the same common law is applied by federal and State courts.

Thirdly, under s77, federal jurisdiction may be conferred on State courts as well as on federal courts.

Fourthly, and relatedly, it follows that the State courts must be available to receive a conferral of federal jurisdiction. Therefore, the State Parliaments cannot confer upon a State court a function or power that substantially impairs its institutional integrity.80 That said, the provisions relating to the appointment and removal of Judges of federal courts (contained in s72 of the Constitution) do not apply to State courts. Likewise, State courts are not subject to the strict separation of powers that applies to federal courts.

The State and federal court cases decided during 2018 have also made a contribution.

Endnotes 1 2 3 4 5 6 7 8

9

Fifthly, the Constitution requires there to be a body fitting the description “the Supreme Court of a State”, such that it is beyond the legislative power of a State so to alter the constitution or character of its Supreme Court that it ceases to meet the constitutional description.81

In addition to these matters, I would refer to the way the doctrine of precedent has been developed, such that a court in one part of the Australian judicial system must apply a decision of a court of another part of the system unless it considers the decision to be “plainly wrong”.82 There have also been legislative developments, such as the cross-vesting legislation,83 that fill out the picture.

To this may be added practical arrangements that exist between courts in the Australian judicial system. For example, recently, in November 2018, a proposed protocol was signed by the Chief Justice of the Supreme Court of New South Wales and the Chief Justice of the Federal Court of Australia regarding the co-operative management of class action proceedings.84 In my view, it is likely that the degree of co-operation between the constituent parts of the integrated Australian judicial system will only increase in the years to come. The High Court cases since Kable have been significant in this regard.

34 | BRIEF JULY 2019

10 11 12

13 14 15 16 17 18 19 20 21 22 23 24 25

26 27

I would like to thank my associate, Paul Annabell, for his research assistance in the preparation of this paper.

(2018) 361 ALR 570; [2018] NSWCA 254.

[2018] SASCFC 128.

(2018) 359 ALR 43; [2018] FCAFC 143.

Spencer v Commonwealth (2018) 353 ALR 682; [2018] FCAFC 17.

Dowling v Prothonotary of the Supreme Court of NSW [2018] NSWCA 340.

AD v Commissioner of the Australian Federal Police [2018] NSWCA 89.

Lavender v Director of Fisheries Compliance, Department of Industry, Skills and Regional Development (2018) 359 ALR 96.

Other constitutional law cases decided by the State and federal courts during 2018 include: Cook v Australian Postal Corporation [2018] FCA 81; Electoral Commission of Queensland v Awabdy (2018) 330 FLR 384; Ryan v Council of the City of Sydney [2018] NSWSC 265; Longley v Chief Executive, Department of Environment and Heritage Protection (2018) 331 FLR 33; Culleton v Balwyn Nominees Pty Ltd [2018] FCA 313; Hocking v Director-General of National Archives of Australia (2018) 255 FCR 1; Seymour Whyte Constructions Pty Ltd v Ostwald Bros Pty Ltd (in liq); Ostwald Bros Pty Ltd (in liq) v Seymour Whyte Constructions Pty Ltd [2018] NSWSC 412; Australian Information Commissioner v Elstone Pty Limited [2018] FCA 463; Timms v Police (SA) [2018] SASC 69; Munkara v Bencsevich & Ors [2018] NTCA 4; Searle v Commonwealth of Australia [2018] NSWSC 1017; Graham v Minister for Immigration and Border Protection [2018] FCA 1012; Sill v City of Wodonga [2018] VSCA 195; Quach v New South Wales Health Care Complaints Commission; Quach v New South Wales Civil and Administrative Tribunal [2018] NSWCA 175; Bendigo and Adelaide Bank Ltd v Laszczuk (2018) 129 ACSR 386; Cook v Australian Postal Corporation [2018] FCAFC 208; CPJ17 v Minister for Immigration and Border Protection [2018] FCA 1242; DBE17 v Commonwealth of Australia (2018) 361 ALR 423; Midson Construction (Qld) Pty Ltd & Ors v Queensland Building and Construction Commission & Ors [2018] QSC 199; Nguyen v Commissioner of Taxation [2018] FCA 1420; EHT18 v Melbourne IVF [2018] FCA 1421; Durston v Anti-Discrimination Tribunal (No 2) [2018] TASSC 48; WB Rural Pty Limited v Commissioner of State Revenue [2018] QCA 255; Commonwealth Director of Public Prosecutions v Easton [2018] NSWSC 1516; Caason Investments Pty Ltd v International Litigation Partners No 3 Ltd [2018] FCAFC 176; Tanioria v Commonwealth (No 3) [2018] FCA 1623; Scenic Tours Pty Ltd v Moore (2018) 361 ALR 456; Hanson-Young v Leyonhjelm [2018] FCA 1688; Banerjee v Commissioner of Police (NSW) [2018] NSWCA 283; Waddington v Victoria [2018] VSC 746; Fyna Projects Pty Ltd v Deputy Commissioner of Taxation [2018] FCA 2041; Practitioner D3 v Council of Law Society of ACT [2018] FCA 2080; Belan v National Union of Workers – New South Wales Branch [2018] FCAFC 239.

(2018) 353 ALR 386; [2018] HCA 15.

Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51.

See, eg, North Australian Aboriginal Justice Agency Ltd v Northern Territory (2015) 256 CLR 569; [2015] HCA 41 at [39] per French CJ, Kiefel and Bell JJ and cases there cited.

See Gatsby at [138]-[147].

See Gatsby at [152].

See Gatsby at [153].

See Gatsby at [158].

The contradictors were G Kennett SC and C Winnett of counsel, instructed by Ting Lim. Assistant Commissioner Condon v Pompano Pty Ltd (2013) 252 CLR 38; [2013] HCA 7 at [67].

See Gatsby at [160].

At [172].

At [173].

At [177].

Commonwealth v Hospital Contribution Fund of Australia (1982) 150 CLR 49.

At [178].

Trust Company of Australia Ltd (trading as Stockland Property Management) v Skiwing Pty Ltd (trading as Café Tiffany’s) (2006) 66 NSWLR 77.

At [185]-[190].

Justice McColl added that the factor that was of greatest significance to her mind was the fact that NCAT members do not enjoy the independence and impartiality essential to a finding that the NCAT is a

28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 48

49 50 51 52 53 54 55 56 57 58 59 60 61 62 63 64 65 66 67 68 69

70 71 72 73 74 75 76 77 78

79

80

81

82

83 84

court of a State. In particular, as Chief Justice Bathurst had explained, members of NCAT do not have security of tenure comparable to that held by Judges.

At [223].

At [224].

At [226].

At [227].

At [228].

At [228].

At [290].

At [291]-[292].

Civil and Administrative Tribunal Act 2013 (NSW).

At [293]-[299].

Part 3A. At [297].

At [298].

Chiro v The Queen (2017) 260 CLR 425.

Criminal Law Consolidation Act 1935 (SA).

See Question of Law Reserved at [6].

Statutes Amendment (Attorney-General’s Portfolio) (No 2) Act 2017 (SA).

Section 9(2), set out in Question of Law Reserved at [8].

See Question of Law Reserved at [22].

K-Generation Pty Ltd v Liquor Licensing Court (2009) 237 CLR 501; [2009] HCA 4.

See, eg, Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51 at 102-103 per Gaudron J, 114116 per McHugh J, 139-143 per Gummow J; North Australian Aboriginal Justice Agency Ltd v Northern Territory (2015) 256 CLR 569; [2015] HCA 41 at [39] per French CJ, Kiefel and Bell JJ. See Question of Law Reserved at [24].

(2015) 256 CLR 569; [2015] HCA 41.

At [38].

At [38].

At [58], citing Burns v Corbett (2018) 353 ALR 386; [2018] HCA 15 at [20] per Kiefel CJ, Bell and Keane JJ. At [115]-[119].

At [168].

At [169].

At [169]-[175].

At [176].

See Wileypark at [1].

See Wileypark at [3].

See Wileypark at [6].

See Wileypark at [6].

See Wileypark at [6].

See Wileypark at [7].

See Wileypark at [9].

See Wileypark at [10].

Wigmans v AMP Ltd [2018] NSWSC 1118.

See Wileypark at [21].

Justice Beach expressed different reasons in relation to certain issues concerning s 1317K of the Corporations Act 2001 (Cth) and s 33ZE of the Federal Court of Australia Act 1976 (Cth): see at [65].

At [11].

At [11].

(1987) 11 NSWLR 1 at 3.

Ie, notices under s 78B of the Judiciary Act 1903 (Cth).

At [13].

At [24], [54], [56].

At [25].

At [23].

See Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51 at 102 per Gaudron J, 114-115 per McHugh J, 143 per Gummow J. Kirk v Industrial Court (NSW) (2010) 239 CLR 531 at [99], citing Lipohar v The Queen (1999) 200 CLR 485 at [43].

See, eg, North Australian Aboriginal Justice Agency Ltd v Northern Territory (2015) 256 CLR 569 at [39] per French CJ, Kiefel and Bell JJ. Kirk v Industrial Court (NSW) (2010) 239 CLR 531 at [96], citing Forge v Australian Securities and Investments Commission (2006) 228 CLR 45 at [63].

Australian Securities Commission v Marlborough Gold Mines Ltd (1993) 177 CLR 485; Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89.

Eg, Jurisdiction of Courts (Cross-vesting) Act 1987 (Vic).

Protocol for Communication and Cooperation Between Supreme Court of New South Wales and Federal Court of Australia in Class Action Proceedings, November 2018.

Sharing skills, experience and wisdom

Essentials of Advocacy and Negotiation This is what our delegates had to say

21 June 2019 The Law Society of Western Australia On a wet and windy Friday, an enthusiastic group of lawyers spent a day gaining a wealth of invaluable knowledge from a fantastic range of distinguished members of the legal profession at the Essentials of Advocacy and Negotiation day at the Law Society.

In 2019 we were privileged to have nine speakers give their valuable time to those lawyers either new to advocacy, or seeking a refresher. Amongst our speakers were barristers from five different Chambers, the Office of the Director of Public Prosecutions for Western Australia and District Court Judge Michael Gething who generously imparted their knowledge and shared their experiences. The day was expertly chaired by Jenny Thornton, Barrister, Quayside Chambers.

This course is built on the foundation of the book Advocacy: An Introduction, Curthoys, J; Kendall, C.N., 2006 which is provided as part of this tailored course. This book marries strongly with the collective expertise of each speaker on topics such as What Makes a Good Advocate, maximising the strength

of Opening and Closing Statements, Cross Examination, Ethics and expert guidance on Negotiation skills.

Some highlights for the day was the interactive and engaging Negotiation skills workshop delivered by His Honour Judge Michael Gething and Rebecca Bunney, Head of Practice – Family Law, Cullen Macleod and the presentation on Cross Examination

by Tom Percy QC, Barrister, Wolff Chambers.

The day concluded with networking drinks providing delegates with an opportunity to reflect on the day’s learnings and to cement relationships formed throughout the day. This event is always a highlight in our calendar and a great way to conclude our professional development programme for the financial year.

“Picked up some excellent negotiation techniques and tips from Judge Gething as they are very relevant not only in the practice of law, but in everyday life outside of law!”

When asked if they would recommend this course to others, 100% of our survey respondents said they would.

“Tom Percy's session was a highlight because he was so entertaining and his topic was very interesting.”

“Thank you for a thoroughly enjoyable and practical course – I will definitely recommend to colleagues.”

“The workshop addressed how to move through an impasse and remaining future focused, while preparing to settle well.”

35

Young Lawyers Case Notes

By Jack Carroll Solicitor, Kott Gunning Lawyers Convenor, The Law Society's Young Lawyers Committee

Rush v Nationwide News Pty Ltd (No 7) [2019] FCA 496 Rush v Nationwide News Pty Ltd (No 7) [2019] FCA 496 is a decision of Justice Wigney in the Federal Court of Australia delivered on 11 April 2019 entering judgment in a defamation action in favour of the plaintiff and awarding damages for non-economic loss, with special damages for economic loss to be assessed.

The case concerned events surrounding a Sydney based production of the seminal Shakespearean tragedy, King Lear, in which much lauded thespian Geoffrey Rush played the protagonist with emerging theatrical star Eryn Norvill playing Mr Rush’s on stage daughter, Cordelia.

More than a year after the curtains were drawn on the production and in the midst of the “#MeToo movement”, Sydney publication The Daily Telegraph (Telegraph) published a story on 30 November 2017 emblazoned with the pun-laden headlines “King Leer” and “Star’s Bard Behaviour” (November Story). The November Story stated that it had been alleged, albeit in the face of denials by Mr Rush, that he had engaged in inappropriate behaviour involving Ms Norvill during the production of King Lear.

The Telegraph sought to publicise what it categorised as a ‘world exclusive’ by disseminating posters at newsagencies and other points of sale bearing the words “Geoffrey Rush in Scandal Claims” and “Theatre Company confirms inappropriate behaviour” (Posters).

The Telegraph published a further story the following day, being 1 December 2017, elaborating in part upon the November Story and said further that two actors from the production had spoken out in support of Ms Norvill under the headline “We’re with you” (December Story) [3] – [6].

Mr Rush commenced proceedings in the Federal Court under section 8 of the Defamation Act 2005 (NSW) (Act) against the Telegraph’s publisher, Nationwide News Pty Ltd, and the author of the stories, Mr Jonathon Moran. Mr Rush alleged the November Story, December Story and Posters (Publications) conveyed defamatory imputations namely that he had engaged in inappropriate behaviour of a sexual nature, had committed sexual assault, was a pervert, and had inappropriately touched an actor whilst involved in the

36 | BRIEF JULY 2019

production of King Lear. Mr Rush sought to recover significant monetary damages for reputational injury allegedly caused by the defamatory imputations and for loss of earnings [7].

Nationwide and Mr Moran defended Mr Rush’s claim on the basis that the Publications did not in fact convey the defamatory imputations alleged and, in any event, the imputations were substantially true pursuant to section 25 of the Act. Nationwide and Mr Moran also claimed that Mr Rush was not entitled to aggravated damages or any damages with respect to economic loss.

Justice Wigney’s lengthy reasons, which followed a trial of 15 days and commenced with a partial recitation from the text of Shakespeare’s King Lear itself, addressed 3 primary issues.

First, did the Publications convey the alleged imputations in the sense that the ordinary reasonable reader would consider the Publications, by “reading between the lines”, to impute the defamatory meanings contended for by Mr Rush? [11 – 12] Secondly, if the Publications were found to so convey one or more of the imputations as alleged, were they substantially true? The onus of establishing the truth of the imputations rested upon Nationwide and Mr Moran [13].

Thirdly, if one or more of the imputations were found to have been conveyed and Nationwide were unable to establish that they were substantially true, what was the loss and damage suffered by Mr Rush by virtue of the Publications? [15] With respect to the first issue, Nationwide conceded that the imputations as alleged, if indeed conveyed, were defamatory of Mr Rush. Thus, the question for determination for his Honour, was whether the imputations were in fact conveyed.

In categorising the imputations conveyed by the publications, Mr Rush sought to rely on the existence of particularised “extrinsic facts” arising from the “#MeToomovement”. As to the “extrinsic facts”, Mr Rush claimed the readers of the Publications were aware of the circumstances surrounding other similar allegations of predatory sexual behaviour made about entertainment personalities both in Australia and in the United States [59].

After detailed consideration, Justice Wigney found that all but two of the imputations were conveyed as alleged and, thus, were defamatory [216 – 219].

In so finding, his Honour rejected a submission by Nationwide and Mr Moran that the “bane” of the defamatory meanings conveyed by the Publications was vitiated by the “antidote” of the Telegraph noting that Mr Rush had denied, both personally and through his solicitor, the allegations put against him [90] & [142].

As to the second issue, Nationwide and Mr Moran relied almost entirely upon the evidence of Ms Norvill to substantiate allegations of nine separate instances of inappropriate conduct, sexual or otherwise, by Mr Rush toward her.

In assessing the evidence of Ms Norvill, Justice Wigney found that, notwithstanding she presented as an intelligent and articulate witness, she was “prone to embellishment and exaggeration” and that her evidence was inconsistent with contemporaneous statements she had previously made or went beyond matters outlined in her witness statement in a not insignificant manner [327 – 344]. After hearing the evidence, which included lengthy cross examination of both Mr Rush and Ms Norvill amongst others, his Honour was not satisfied on the balance of probabilities that the imputations were substantially true [657].

Ultimately, Justice Wigney found that Mr Rush had made out his claim under section 8 of the Act and dismissed Nationwide and Mr Moran’s defence of substantial truth under section 25 of the Act. His Honour awarded Mr Rush damages of $850,000 for non- economic loss including aggravated damages. Mr Rush was also awarded damages for economic loss, the quantum of which is to be assessed, caused by the loss of earning capacity occasioned by the defamatory Publications which his Honour termed as “recklessly irresponsible journalism in all the circumstances” [760].

Nationwide has appealed from the decision of Justice Wigney to the Full Court of the Federal Court.

Taxing Matters

Land Tax Payable When Exclusive Possession Arises as a Result of a Crown Lease of National Park Lands Used for Public Recreational Purposes

By Clare Thompson Barrister, Francis Burt Chambers Living and Leisure Australia Ltd v Commissioner of State Revenue [2018] VSCA 237; 2018 ATC 20-668 concerned land tax arising under leases for the Mt Hotham and Falls Creek snow fields in Victoria.

The case involved the question of whether agreements entered into between the Victorian State Government and Falls Creek Ski Lifts Pty Ltd and Mount Hotham Skiing Company Pty Ltd1, under the Alpine Resorts Act were leases, being agreements for the exclusive possession of land, which meant that sections 10(1)(b), and 79(2)(a) of the Land Tax Act 2005 (Victoria) provided that the grantee of the Crown leases were liable for land tax as the deemed owner of the land.

Ultimately the decision turned on the construction of the leases and the question of whether the taxpayer had â&#x20AC;&#x153;exclusive possessionâ&#x20AC;? of the land, a common law right integral to a lease.

The case is interesting because the land was leased subject to conditions which gave quite extensive public access. The two relevant provisions were:

equipment services and facilities for the time being on the demised land or which might prevent the Lessee from ensuring the safety and good behaviour of persons using such buildings, equipment, services and facilities on the demised land generally.

At first instance2 it was held that the land was held subject to a lease and the taxpayer was therefore liable to land tax. By majority, the Court of Appeal dismissed the appeal.

The case turns on an analysis of the factors which tipped the balance to a finding that the agreements were leases. The four factors the majority relied on were: a.

there were limitations to the breadth of the rights of access granted including that the access was limited to persons or groups entering in a private capacity for recreation purposes and there were limitations on where the public could go;

b.

the ski lift operators were required to control the conduct of members of the public;

c.

the High Court decision in Radaich v Smith (1959) 101 CLR 209 supports the conclusion that the instruments are leases, in that the business could not be reasonably conducted without the right of exclusive possession to certain parts of the land;

d.

the High Court decision in Goldsworthy Mining v Commissioner of Taxation (1973) 128 CLR 199 which also supported the fact that there was exclusive possession because it made clear that:

2.1 The following shall be excepted and reserved unto the Lessor out of the demised land: (j) right and authority for the Lessor, its servants, agents, contractors, licensees or grantees of authorities under the Act to enter and remain upon the demised land for so long as is necessary or desirable for the purpose of exercising or enjoying any right, entitlement, interest or legitimate expectation bestowed given or granted to such person by the Lessor (or for the purpose of undertaking any duty or obligation) whether of a contractual or statutory nature on the demised land; (k) free liberty and authority for all members of the public, including visitors and skiers to enter upon use and enjoy the demised land including rights of access for the public to any community facility whether located within the demised land or not provided that such access shall not unreasonably obstruct or interfere with the permitted uses of the demised land pursuant to the provisions of this Lease.

5.4 The Lessee shall allow the public (save for persons seeking to use the demised land for commercial gain) to have access to all parts of the demised land (excluding building and improvements) which are used and enjoyed by the public except insofar as such access might prevent the Lessee from providing reasonable protection to buildings

the terms of the instrument must be read in the context of the nature of the premises and the use to which they are to be put. Restrictions which appear very broad may, in the context, not be inconsistent with the grant of exclusive possession [21].

The case is interesting because of the nature and location of the land and the difficulty of assessing an 18th century (at least) common law concept like exclusive possession in the context of a 21st century national park and the public interest in the development and access to the recreational facilities it has to offer in the context of a private operator of that public land.

Special leave was refused3.

Endnotes 1 Related companies to the applicant taxpayer.

2 Living and Leisure Australia Ltd v Commissioner of State Revenue [2017] VSC 675.

3 Living and Leisure Australia Ltd v Commissioner of State Revenue [2019] HCATrans 56.

37

Compromising the Essential Dignity of Each Individual Gino Dal Pont Professor, Faculty of Law, University of Tasmania • Lawyers must not engage in conduct that constitutes discrimination or sexual harassment.

• This obligation is not confined to within the walls of a lawyer’s office.

• Recognition of the essential dignity of each individual precludes the public expression by lawyers of sexist, xenophobic or religiophobic views.

In my book on lawyers’ professional responsibility I make the bald assertion that “[a] lawyer is ethically obliged to recognise the essential dignity of each individual in society”.1 This obligation translates to positive obligations, such as in representing a client, to the best of the lawyer’s ability, without fear or favour.

Yet it also manifests itself by way of proscription. This is, for instance, acknowledged by rule 17(5) of the Legal Profession Conduct Rules 2010, which makes explicit that a solicitor must not, in the course of practice,2 engage in conduct that constitutes discrimination, sexual harassment or workplace bullying.3 This reflects the notion, expressed by an American court some 30 years ago in the context of a lawyer who behaved offensively to all participants in the curial process, that “[a]ny kind of conduct or verbal oppression or intimidation that projects offensive and invidious discriminatory distinctions, be it based on race or color … or, in other contexts, on gender, or ethnic or national background or handicap, is especially offensive”.4 Given this backdrop, reflecting a society that has become increasingly attuned to issues of harassment, discrimination and bullying, the emergence of disciplinary findings against lawyers in this arena should come as little surprise. Recent determinations of professional misconduct in Australian courts have, to this end, been made against lawyers who made racially offensive remarks directed at a court security supervisor,5 touched a client’s breasts ostensibly to determine the chances of success in a negligence claim relating to breast enlargement surgery,6 and repeatedly sexually harassed an employee.7 These scenarios present obvious applications of the rule, not only because they target conduct directed at a specific individual in the course of legal practice, but because the conduct contravened existing law.

That rule 17(5) appears confined by its terms to conduct occurring “in the course of practice” hardly licences lawyers to engage in unlawful discrimination or sexual 38 | BRIEF JULY 2019

Ethics Column

harassment in their non-work lives. As to the latter, by way of illustration, convictions for stalking can generate a (serious) disciplinary consequence.8 As to the former, it cannot be assumed that lawyers, in the exercise of “free speech”, can without disciplinary consequence broadcast views that are patently xenophobic, sexist or religiophobic. Aside from any questions surrounding the legality of such expressions, the concern appears to be that being voiced by lawyers, even in a private capacity, misaligns with values expected of the “modern” profession (acknowledging, to this end, that those values may well have shifted in time).

The point was ventilated in late 2017 before the English Solicitors Disciplinary Tribunal,9 faced with two specific Facebook threads posted by the respondent solicitor that were evidently anti-Semitic. In imposing a significant fine (£25,000) and a 12 month suspension (albeit itself suspended for that time frame), the tribunal reasoned that “[m]erely because the respondent was making posts on social media in a private capacity did not protect him from being held to the higher standards that apply to all those who benefit from the privilege of membership of an esteemed profession”.10 While the fact that the respondent’s Facebook page identified him as a solicitor appears to have influenced the tribunal in making its determination, it added that “[b]eing a solicitor was not a feature of one’s being that one could switch on and off as one chose”11 and that “[a] solicitor even acting in a private capacity remains a representative of the legal profession and a role model who should inspire confidence in the profession’s reputation”.12 In an environment of apparently increasing extremism in Australian society, which witnesses not infrequent public expressions of xenophobic or religiophobic views, the profession’s commitment to the essential dignity of each individual cannot accordingly be overemphasised.

Endnotes 1 2 3 4 5 6 7 8

9 10 11 12

G E Dal Pont, Lawyers’ Professional Responsibility, 6th ed, Lawbook Co, 2017, p 713.

Although the sub-rule itself does not contain the words “in the course of practice”, the context of the rule suggests that practice-related conduct is its focus.

Each of these terms is defined in Legal Profession Conduct Rules 2010 (WA) s 17(1).

Re Vincenti (1989) 554 A 2d 470 at 474.

Legal Profession Complaints Committee v in de Braekt [2013] WASC 124.

Legal Practitioners Conduct Board v Kudra [2014] SASCFC 37.

PLP v McGarvie [2014] VSCA 253.

See, for example, Legal Practitioners Complaints Committee v Tomlinson [2006] WASC 211 (where the respondent, who pled guilty to stalking his former girlfriend, was struck off, in part because he expressed no interest in obtaining psychological therapy for his behaviour).

Solicitors Regulation Authority v Mahmood, Solicitors Disciplinary Tribunal, 15 August 2017.

Ibid, [52].

Ibid.

Ibid, [54].

Mentoring Matters The Law Society’s Mentoring Programme for Junior Practitioners (1-5 years PAE) and Aboriginal and Torres Strait Islander Law Students has been available to members annually since 2008 and runs from June/July through to May the following year. The Programme is now also available to practitioners with five or more years post admission experience.

Originally funded by 10 law firms, the Law Society in recent years has recognised the importance of mentoring and now funds the Programme as a member benefit.

In the last five years, the Law Society Mentoring programmes have seen in excess of 300 mentee and mentor matches.*

Is mentoring for me?

Busy lives, heavy workloads, navigating the legal profession and making effective career decisions are common sentiments from prospective mentees.

Yet one to two hours every four to six weeks with a mentor can provide welcome conversation, links to networks, and advice from someone that understands the highs and lows of the profession.

Being matched with an independent legal professional supports career development discussions and professional development direction advice. The Programme ensures career direction can be safely discussed with an objective yet experienced practitioner.

The range of issues can range from a difficult situation or general workplace query and the options for managing them can be discussed in an informal environment.

Apart from career direction, the benefits of mentoring are numerous and range from increasing mentee’s confidence in practice competencies and potential, developing greater appreciation of the complexities of decisions to be made, providing opportunities to network, increasing understanding of a professional perspective – the norms, standards, values, ideology, history and politics of the profession.

It may surprise you to hear that our mentors also talk of benefits in participating in the programme. Comments range from providing exposure to fresh ideas, gaining personal satisfaction in teaching and sharing experiences and improving skills of counselling, listening, modelling and leadership as well as being informed of the issues confronting young practitioners in entering the profession at a time of rapid change.

“It felt most rewarding to provide positive assistance to a young member of the profession taking the next step up in her career.”

“Rewarding to help others’ plan, action and reach their goals.”

“Remembering what it is like to be a junior; process assists me with my supervision of junior lawyers.”

Some mentors have been with the Programme from its inception, some mentoring relationships extend way beyond the assigned programme and we have been delighted to have mentees return to the Programme in consecutive years to connect with another esteemed member of the profession. In the last five years the number of mentors has increased to reflect a broader cross section of the profession complementing the very experienced mentors that continue to participate in the Programme. The broader base of mentors, including senior women practising in the private and public sector, at the bar or as senior in-house counsel, provides the Programme with greater choice when pairing mentees and mentors and thereby enabling the Programme to address the increasingly changing legal environment.

We are also seeing interest to be a mentor coming from practitioners who have transitioned from senior roles in law to senior executives, including chief executives and non-executive directors.

How does it work?

Supported through the Advocacy Team at The Law Society of Western Australia, the Programme utilises the services of an independent Coordinator, with a background in training, facilitation, mentoring and coaching. The Coordinator runs the annual introductory sessions for new mentors and mentees, takes time to get to know new participants and gauge interests for the Programme and works closely with the team to make suitable matches – mentee and mentor. The Coordinator keeps in touch with mentees throughout the Programme to ensure successful matches are sustained and provides regular reports to the Law Society through the relevant Committees and Council.

Monitoring of the Programme by contact with participants aims to encourage mentees to discuss concerns with the Programme – “I find it difficult to set aside time” or “I lack confidence” and provide a consistent point of contact for mentors from one year to the next.

The Coordinator speaks of the Programme as a truly rewarding experience, “The number of mentees and mentors who thank the Law Society for the privilege of being matched with their particular mentor/mentee is nothing short of astounding.”

* The Law Society also has a mentoring programme for law students which occurs at a separate time of the year.

The number of mentees is inclusive of law student mentees.

Recent mentee feedback has included:

“

“Joining the mentoring programme was one of the best career decisions I have made especially as a junior lawyer.”

“It's nice to be able to talk to someone objective from within the legal industry about 'general' career matters.”

“I signed up for the mentoring programme primarily so I could get an insight into life at the bar and advocacy work more generally. (My mentor) has provided me with very valuable insights into how he moved to the bar, what his practice involves, how he developed his advocacy skills and how the bar works more generally.” “(My mentor) helped me to clarify career aims/ objectives and helped me in breaking down some of the preconceptions I had about working in larger forms while also overcoming the trepidation I felt in looking for alternative jobs.”

Expressions of Interest must be received by the Law Society by 5.00pm on Friday, 19 July 2019.

Please visit lawsocietywa.asn. au/careers-in-law/mentoringprogramme/ to complete an Expression of Interest form.

39

The Geoff Ajduk Memorial Prize

By Magistrate Stephen Vose On 14 January 1994, popular and well respected Magistrate, Geoff Ajduk passed away, losing his two year battle with cancer.

He left a young, grieving family and a legacy of professionalism, talent and community spirit. He strove for excellence in all of his endeavours. He was a great lawyer, starting his legal career at the Legal Aid Commission, before becoming a legal officer with the Commonwealth Attorney General's Department.

Within four years, he had been promoted to Principal Legal Officer, before being appointed as a special investigating officer with the Parliamentary Commission for Administrative Investigations. In 1986, he was appointed a Magistrate and in this role, he demonstrated the same high degree of integrity as he had shown as a lawyer. He also had a life outside law, being a dedicated family man, and a champion lawn bowler.

The Magistrates’ Society of WA in the Objects of its Constitution specifically recognises that it has a very important role to play in encouraging law students to achieve academically and to engage in volunteer activities and assist those in our community whom are disadvantaged and are in need of support and legal assistance.

In 2004, in recognition of Geoff's legacy and example, the Society established the Geoff Ajduk Memorial Prize. This Prize bestows a cash award [in 2019] of $3,000 upon a law student whose legal education would be enhanced by the prize money and whom has shown a commitment to academic excellence, social justice and community service by providing legal assistance to disadvantaged groups.

Each year, the Dean of each Law School is asked to nominate one candidate [in 2019 and beyond, two candidates] and from those nominees a Committee of the Magistrates’ Society chooses the final winner. Over the years, each of the candidates and winners have been breathtakingly remarkable in their academic excellence and their scope and commitment to providing invaluable community service.

It is notable that each prize winner to date is female. This is not an attempt by the Magistrates’ Society to address gender inequality, rather it is simply a reflection of the truly outstanding quality of the winners. The Final Winner is presented with their Award at the Magistrates’ Conference in November each year. It has also been an honour to have at each presentation, Geoff's daughters, Kate and Miranda Ajduk, who are both proudly following in their father’s footsteps as talented and capable legal practitioners.

The Magistrates Society congratulates all past winners of the Geoff Ajduk Memorial Prize, and looks forward to continuing to encourage students through the example of our late colleague and friend.

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The recipients of the Prize since its inception are: YEAR

RECIPIENT

UNIVERSITY

2004

Tamara Cole

Murdoch University

2005

Suzanne Akila

University of Western Australia

2006

Alexandra Shaw

Murdoch University

2007

Zoey Irvin

University of Western Australia

2008

Belinda Mcphee

University of Notre Dame

2009

Emma Cavanagh

University of Notre Dame

2010

Louise Watson

Murdoch University

2011

Ashlee Uren

University of Western Australia

2012

Melusha Robson

University of Western Australia

2013

Anne-Marie O’Neil

University of Notre Dame

2014

Katlin Taylor

University of Notre Dame

2015

Anu Kothapalli

Edith Cowan University

2016

Tanya Le

Murdoch University

2017

Darcy Haywood

University of Notre Dame

2018

Caitlin Joensson

Murdoch University

Gosnells Community Legal Centre’s Principal Solicitor Linda Saverimutto Retires After 28 Years of Dedicated Service to the Local Community Linda Saverimutto, Principal Solicitor of Gosnells Community Legal Centre (GCLC) retired on 31 May this year after an incredible 28 years of legal service to the local community.

Linda started in 1991 at the GCLC as a Generalist Solicitor and specialised in family law, child support and property issues. Child support matters were her passion to the extent she prepared Law Reform submissions, was part of stakeholder committees, and contributed to policy in this area. Linda also prepared a manual for community legal centres on providing legal advice and support to clients that have been victims of domestic violence.

Linda is also an accredited family dispute resolution practitioner.

Fifteen years ago, Linda was promoted to the position of Principal Solicitor at the GCLC. During this time, Linda not only maintained her own client caseload, but provided supervision to other solicitors, paralegals and volunteers. She also moved the admissions of at least 15 practitioners.

More importantly, she supported staff to reach their full potential and helped them to understand and empathise the challenges faced by the client’s in the local community.

Over the last few years, Linda showed passion in consumer law issues including financial counselling and tenant advocacy. Her efforts and dedication in this area was recognised in 2011 when she won the Department of Consumer Affairs’ Rona Oakley award.

Chair of the GCLC’s Management Committee Helen Stamp said: “Community legal work is not just about the law – it’s also about compassion and empathy for people in difficult circumstances who need assistance. Linda embodies this understanding of community legal work; not only in respect to the community members she helps but also in respect to her colleagues in the sector who benefit greatly from her experience and support.”

Linda will enjoy retirement looking after her grandchildren, but will still be involved in the CLC sector as a volunteer solicitor and will conduct mediations as a Family Dispute Resolution Practitioner.

GCLC promotes basic human rights, including housing, income, equality, freedom and dignity, by a variety of support services to resolve legal, economic or social issues.

GCLC is one of over 200 Community Legal Centres in Australia that form the National Association of Community Legal Centres.

Its mission and work practices are based on the belief in the principles of human rights and social justice. It is a not-for-profit, nongovernment community based organisation.

GCLC staff offer confidential, non-judgemental information, advice and assistance to low income earners.

41

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

Children – Expressions “supervised time” and time spent “in the presence of” may be used interchangeably In Elias [2019] FamCAFC 53 (28 March 2019) the Full Court (Ainslie-Wallace, Aldridge & Austin JJ) dismissed the father’s appeal against a parenting order where it was found that he posed an unacceptable risk of harm for a child. It was ordered that the child live with the mother, that she have sole parental responsibility and that the father’s time be supervised at a contact centre, or by the father’s sister, or a combination of both. He appealed, arguing inconsistency between the Court referring to “supervised time” and time “in the presence of” another person.

The Full Court said (from [30]): “ … [W]e … do not regard the word ‘supervision’ or the phrase ‘in the presence of’ as terms of art that have different meanings. The ordinary meaning of both suggests that constant presence is required of a person overseeing the child or children spending time with the parent subject to the supervision order.

More particularly, it is our view that in the ordinary course the phrase ‘in the presence of’ does not entail a lesser form of supervision which would permit, in the context of this case for example, the child to be left alone with the father, especially for significant periods of time. ( … ) [40] … [Johnston J’s reasons] strongly suggest that his Honour was using the word ‘supervisors’ and the phrase ‘in the presence of’ interchangeably. As they are not terms of art – or, for that matter, defined by the Act – this does not, contrary to the father’s submission, demonstrate loose thinking on the part of the primary judge or that his Honour conflated two distinct concepts. ( … ) [43] We consider that the phrase ‘in the company of’ is no different to ‘in the presence of’ – both connote constant presence. The primary judge clearly understood this to be so and used the words interchangeably as meaning the same thing. It is an arid exercise in semantics to seek to find a difference of substance in the primary judge’s choice of words, let alone one which demonstrates appealable error.”

Property – Court relies on family violence findings in earlier parenting case in support of a Kennon decision In Adair [2019] FamCAFC 70 (29 April 2019) the Full Court (Strickland, Ryan & Austin JJ)

42 | BRIEF JULY 2019

dismissed the husband’s appeal with costs of $15,000. Before ordering that three properties be transferred to the wife, Rees J had found that the wife’s contributions should be given greater weight, having been more arduous as a result of the husband’s violence. In previous parenting proceedings Hannam J had found that the husband had assaulted the wife and his three eldest daughters and posed an unacceptable risk of harm to those children such that he should spend no time with them.

The Court relied on those findings in the property case. The husband appealed.

The Full Court said (from [35]): “The husband acknowledged [that] the law does enable findings of one spouse’s violent conduct towards the other to reflect in that way in property settlement orders (Kennon [1997] FamCA 27 … [but] contended it was impermissible for the primary judge to rely upon the prior findings … [in the parenting case].

contended was worth $183,905 while the wife said it was worth $384,421. The husband’s alleged expert (“Mr C”) filed a 97 page affidavit as to which the Court said (from [26]): “Mr C gave as his occupation the following which he said entitled him to express an expert opinion in the case – ‘I am the owner/proprietor of Company where I sell books and collectables. I specialise in old books.

I opened my first book store in Suburb D in 1995 and have been selling and grading books for nearly 23 years. I currently hold a second-hand dealer’s licence.’ ( … ) [28] That was the extent of Mr C’s statement of his training, study or experience in the field of valuing secondhand books. ( … ) [30] … I do not accept Mr C as an expert (…)

[36] … [T]he husband … asserted that Hannam J’s findings about his past violent conduct were not admissible in the property … proceedings (s 91 [EA]) … [nor] by reliance upon … res judicata or issue estoppel (s 93(c) [EA]). … [H]is submissions must be rejected. ( … )

[31] Mr C did not depose to any study of books especially second-hand books that would take him into the realm of a specialist. … At all events Mr C did not depose to training or study that enabled him to express specialised knowledge in the value of books. …

[38] Section 91 … only operates to prevent the use of prior … findings of fact to prove the existence of facts which are the subject of dispute in subsequent proceedings. Before the primary judge it was not controversial [that] the husband had behaved violently towards the wife and the children, so the existence of that basal fact was not genuinely in issue. …

[32] ( … ) It is true that Mr C deposed to opening a book store … and that he owned a book store. He then said he had sold and graded books for 23 years.

He gave no information as to what he did in the course of selling or grading books. He gave no experience as to the method, technique, skills, requisite criteria … by which he could assert that his ‘experience’ … enabled me to receive his evidence as that of an expert ( … )”

[39] Importantly, s 190(1) [EA] enables a court, with the parties’ consent, to dispense with … provisions of the Evidence Act, including Part 3.5, within which s 91 is located. ( … ) [41] The inference [to be drawn from the husband’s failure to object to the admissibility of the prior reasons is that] the parties consented to the dispensation of Part 3.5 … in respect of Hannam J’s findings.”

Property – Affidavit of bookseller adduced by husband to value his book collection held inadmissible as expert evidence In Isaacson [2019] FCCA 522 (6 March 2019) Judge Wilson considered a dispute in a property case as to the value of the husband’s book collection, which the husband

Upon it being held that the affidavit of the wife’s alleged expert was also inadmissible due to the failure of that witness to attend for cross-examination, an order was made that the book collection be sold.

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.

The Tale of the Sorrowful Shopkeeper

By John McKechnie QC

The 19th of October 1937 started like any other ordinary day for Ms Lucy Bunyan, 23 year old shop assistant, working in Mr Jordon's Blacktown shop. It didn't finish that way due to Mr Jordon's extraordinary behaviour.

It was a Friday evening, late night shopping. So after tea, Ms Bunyan returned to the store.

On walking into Mr Jordon's office, she beheld a peculiar sight. Miss McGuinness was talking to Mr Jordon when he picked up a revolver and extracted the cartridges. On the table was a bottle marked 'poison'.

Ms Bunyan left the room but couldn't help but overhear Mr Jordon say to Miss McGuinness that he was going to shoot someone.

Ms Bunyan came over all shaky and nervous, a condition amplified she said when shortly afterwards she heard a shot.

It was not Mr Jordon shooting himself (or at least not then), because when she later took the day's takings into Mr Jordon's office, he tore up the pound notes and said he would not be there in the morning to mend them and have them banked. He told Ms Bunyan that "we would hear of a death the next morning".

Ms Bunyan consulted a doctor the next day who diagnosed neurasthenia which would have been brought about by shock. This was then a fashionable diagnosis.

Mr Jordon meanwhile continued his erratic ways, possibly assisted by drink.

One morning a few days later, he put some armour under his vest, shot himself (in the armour) and called the police. He said he would put "the wind up the boys" (his sons).

Whether or not he succeeded with his sons, he certainly put the wind up Ms Bunyan who sued for damages for nervous shock, losing at every level. Only the doughty Doc Evatt, then Justice Evatt, would have allowed the claim.

Chief Justice Latham adopted a robust view of the human condition.

"The acts of the defendant, taken all together cannot be said to be calculated or likely to – cause harm to any person – even his sons – if they were normal persons".

Justice Rich had a snide aside at Ms Bunyan: "It would be unkind, perhaps, to assume that both her claim and her condition were more readily attributable to the loss of her employment."

In fact, Sir George Rich illustrated a tendency towards sarcasm which may be unbecoming in a High Court Judge: Her counsel at the trial, however may be congratulated on his success in manoeuvring into a position in which

he was at liberty to disregard the pleadings and rely on any course of action which ingenuity might then or thereafter discover in the evidence which he was able to find.

As I have said, Doc Evatt was the sole dissentient: Where a person, whether for malicious motives or those of self-display, wilfully alarms or terrifies another by the unlawful act of threatening to commit suicide, and that condition or alarm or terror causes physical illness, an action lies; and it is no answer to such an action for the defendant to set up either (a) that he was threatening to kill or injure himself, and no other person, or (b) that the plaintiff did not apprehend physical danger to himself, or (c) that many persons, or a majority of persons, or even that especially formidable person "the ordinary, normal human being" would not be alarmed or terrified, or have suffered illness as a result of the defendant's action.

And so Ms Bunyan's actions ended in failure.

But that is not the end of the story.

Her solicitor was Mr Abram Landa, who, a few years later, acted for the unsuccessful appellant in another nervous shock case: Chester v Waverley Municipal Council (1939) 62 CLR 1.

So incensed was he about the unfairness of the law, as he saw it, that he campaigned for a change in the law, eventually being elected to the New South Wales Parliament.

In 1944, his efforts bore fruit. The Law Reform (Miscellaneous Provisions) Act 1944 (NSW) provided: In any action for injury to the person caused after the commencement of this Act, the Plaintiff shall not be debarred from recovery damages merely because the injury complained of arose wholly or in part from mental or nervous shock.

Although that may have been little comfort to Ms Bunyan or Ms Chester, generations of future plaintiffs were better off.

As for Ms Bunyan, she appears to have recovered from the extraordinary events of the 19th of October 1937.

In 1943 she married Mr Alfred Byrnes and outlived her husband, parents and sisters, passing away in 2000, at the age of 87.

Mr Arthur Jordan obviously overcame his suicidal impulses, living until 1950 when he died at the age of 64.

(Adapted from Bunyan v Jordan (1937) 57 CLR 1)

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

The raids carried out by the Australian Federal Police at the home of Annika Smethurst and subsequently at the offices of the Australian Broadcasting Corporation are said, in a so-called open letter to the Prime Minister, the Leader of the Opposition and to Members of the Parliament of Australia (14 June 2019) to represent a grave threat to press freedom in Australia.

It is interesting, then, to reflect that it was on 13 June 1971 that the New York Times began publishing excerpts from the Report of the Office of the Secretary of Defense Vietnam Task Force, which later became known as the Pentagon Papers. The Report was a history of the political and military involvement of the United States in Vietnam from 1945 to 1967. Daniel Ellsberg, who had worked on the study to which the Report related released the documents.

Ellsberg was charged with conspiracy, espionage and theft of government property. These charges were dismissed after prosecutors investigating the Watergate Scandal discovered that staff members in the White House under President Nixon directed the “White House Plumbers” to undertake unlawful efforts to discredit Ellsberg, including an illegal entry to the office of Ellsberg’s psychiatrist where they attempted to steal files. It was also revealed that Federal District Judge William Byrne who presided over the matter had been offered the job of director of the FBI, while records of illegal wiretapping of Ellsberg had allegedly been lost. Justice Byrne ruled: “the totality of the circumstances of this case which I have only briefly sketched offend a sense of justice. The bizarre events have incurably infected the prosecution of this case.” Ellsberg was, however, convicted on a charge of violating the Espionage Act. In New York Times Co v United States (1971) 403 US 713 the Supreme Court decided by a majority of six to three that the government had failed to satisfy the burden of proof required for an injunction restraining the newspaper from publishing further articles, after it had published three of them. Justice Black wrote:

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“Only a free and unrestrained press can effectively expose deception in government.

And paramount among the responsibilities of a free press is the duty to prevent any part of the government from deceiving the people and sending them or to distant lands to die of foreign fevers and foreign shot and shell.”

When all is said and done in relation to the AFP raid, it will be interesting to learn what the journalists and any whistleblowers actually found and disclosed.

Your Dog understands that Solicitor General Erwin N. Griswold described the Pentagon Papers as an example of “massive over classification” with “no trace of a threat to the national security.” Of course, one may speculate as to what would ever be released in relation to such proceedings in Australia, given the provisions of the National Security Information (Criminal and Civil Proceedings) Act 2004. It defines something as likely to prejudice national security if there is a real, and not merely a remote, possibility that it will prejudice national security.

When something relates to the past, as the current circumstances suggest, how does that become a “real possibility” when likelihood predicates probability as to a future event occurring?

Craig Slater has prepared the article Ethics and the Media, which is included in this edition. Your Dog has often had a chin wag with less informed dogs, drawing their attention to those matters where your Dog achieved outstanding success, more particularly those which bear the imprimatur of a report in the published case reports.

It has come as a bit of a surprise that even though these are matters of public record, chatting about it is a breach of the presumption of confidentiality.

Talking to the sharp toothed Mrs Dog with a glass of Jacobs Creek Cabernet Sauvignon in one hand, and telling her of the admiring comments of the presiding officer, is something your Dog never thought could result in a harsh letter from the Legal Practice Complaints Committee. All he had in mind was keeping Mrs Dog informed of his exploits (not all of them)!

Perhaps it’s time for your Dog to go and round up a few sheep – at least they would only say bah!

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Law Council Update

Commonwealth, states and territories must lift minimum age of criminal responsibility to 14 years, remove doli incapax Every Australian jurisdiction should lift the minimum age of criminal responsibility to 14 years to improve justice outcomes for vulnerable children and remove the need for the fraught doli incapax presumption, according to the Law Council.

Law Council Directors from around Australia unanimously resolved in Darwin at the weekend to change the Law Council’s policy, which previously called for the minimum age of criminal responsibility to be raised to “at least 12-years-old”.

“The current minimum age of criminal responsibility in all states and territories, and under federal law, is 10 years of age. This is far too low,” Law Council of Australia President, Arthur Moses SC, said.

“Research-based evidence on brain development supports a higher age as children are not sufficiently able to reflect before acting or comprehend the consequences of a criminal action.

Children belong in their communities with their families and guardians, not in detention. Imprisonment should be a last resort when it comes to children, not a first step.

“The incarceration of children as young as 10 is a national tragedy. There is something wrong when children can’t join Facebook until 13 but in Australia can be prosecuted for a criminal offence at 10.”

Mr Moses said the decision by Law Council Directors was timely, as the minimum age and its disproportionate impact on First Nations communities will be discussed at the United Nations’ Human Rights Council in Geneva.

“Raising the minimum age of criminal responsibility to 14 would also remove the need for courts to consider the confusing and complex “doli incapax” presumption,” Mr Moses said.

“Doli incapax means the law presumes a child under the age of 14 does not

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possess the necessary knowledge required to have criminal intent. This presumption can be disproved or rebutted by leading evidence to show that a child knew his or her actions were morally wrong. In practice, doli incapax has proven to be extremely difficult to apply in court.

“The presumption continues to wreak confusion as to whether the defence or prosecution bears the burden of proving that a child knew their conduct to be wrong. This leads to errors and results in children being held in custody for lengthy periods of time before the presumption can be led or tested in court, and the child acquitted. As recently as last week, the Northern Territory Court of Appeal allowed an appeal in the case of KG v Firth which demonstrated the uncertainty surrounding doli incapax and the risks of its erroneous application.

“Raising the minimum age of criminal responsibility to 14 years would improve justice outcomes for some of our most vulnerable children and honour Australia’s commitments under international law, including to promote the best interests of the child. This would also replace doli incapax altogether, significantly reducing complexity and confusion in our courts.

“We call on Australian Attorneys-General to commit to raising the minimum age in every jurisdiction,” said Mr Moses.

“Raising the age of minimum criminal responsibility is not being soft on crime: it means adopting a just, proportionate approach. The evidence clearly shows those detained as children are often imprisoned as adults. This is not the trajectory we want for vulnerable children or the best way to keep our communities safe. Children must be protected, not criminalised, and prison should never be a rite of passage.

“Many children in detention have not been sentenced. There must be greater emphasis on evidence-based alternatives to detention, including intensive rehabilitative and welfarebased responses, justice reinvestment projects, early intervention, prevention, and community-led diversion programs.”

Unfair criticism and sexist attack on High Court Judges should not be tolerated Statement from Law Council of Australia President, Arthur Moses SC A front-page story in the Courier Mail, which attacks the spouse travel allowances of spouses of High Court of Australia Judges, is unfair and sexist.

The Law Council of Australia is especially disappointed the spouse of the High Court of Australia’s Chief Justice has unfairly been drawn into the media report regarding travel expenses.

Under the guidelines clearly stated in the Judicial and Statutory Officers (Remuneration and Allowances) Act 1984, spouses of the Chief Justice and Justices of the High Court are permitted to travel with them on official duties in Australia and overseas that involve staying away from home one night or more, and that this cost is borne by the Commonwealth.

Judges and their spouses are regularly invited to attend events in Australia and overseas, which are directly related to their important and vital work, to speak to the legal profession and the broader community on a range of matters. They attend these events out of duty and service to the courts.

The Chief Justice in particular is required to undertake travel in her role at the request of the legal profession in order to address the profession across the country. Often her spouse is invited to attend these events. I am sure that the Chief Justice attends these events out of a sense of duty, not because she wants to be away from home.

I am troubled that the spouses of previous male Chief Justices have not been the subject of attention when travelling with their partner, but the male partner of our first female Chief Justice is the subject of this attention for routine travel.

It is not appropriate that the spouses of judicial officers be drawn into these types of unnecessary and misinformed commentary which detract from the public service of our judicial officers.

Professional Announcements Career moves and changes in the profession

Manuela Lalli

Emma Jack

Carolyn Meighan

Michael Mistilis

Nick Kalmund

Panetta McGrath Lawyers

Hotchkin Hanly Lawyers

Panetta McGrath Lawyers are pleased to announce the appointment of Manuela Lalli as Senior Associate and Emma Jack as Associate in our Health & Aged Care Law team, from 1 July 2019.

Hotchkin Hanly Lawyers is pleased to announce that from 1 July 2019 Carolyn Meighan, Michael Mistilis and Nick Kalmund have been promoted to role of Partner.

IRDI Legal IRDI Legal is pleased to announce the appointment of Raija Ogden as a Senior Lawyer.

Slater and Gordon Lawyers Slater and Gordon Lawyers are pleased to announce the appointment of Jeff Potter to the position of Principal Lawyer in the Medical Law team.

Jeff Potter Jeff has worked in the industry for over 25 years and has significant experience representing people with injuries arising from negligent medical treatment, dental treatment, and hospital treatment.

Raija Ogden

Raija, who was previously a Senior Legal Counsel at Atlas Professionals, brings over fifteen years of legal experience to strengthen IRDI Legalâ&#x20AC;&#x2122;s property law services.

Jeff has appeared on various radio talk-back and television programs explaining aspects of negligence law and is a familiar face at legal professional development seminars in Western Australia. Jeff is well known in the legal profession for his tenacity, diligence, and client care.

Glen McLeod Legal Glen McLeod Legal is delighted to announce that Jess Hamdorf and Connor Fisher have been advanced to the position of Associate at Glen McLeod Legal.

Jess Hamdorf Connor Fisher This is in recognition of their wide ranging and growing competence in planning and environmental law. Congratulations to you both!

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Classifieds Missing Will Would any person holding or knowing the whereabouts of a Will or any other document purporting to embody the testamentary intentions of Mr Thomas Kauri Tama Greening of 81 Bletchington Street, Orange NSW 2800 or 310 Woodville Road, Guildford NSW 2161 who died on 26th May 2019, please contact Patterson Byfield & Bryen Solicitors, PO Box 27, Walcha NSW 2354 T: 02 6777 2066 F: 02 6777 2959 E: pbbwalcha@northnet.com.au

BRIEF For advertising opportunities in Brief please contact:

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

New Members New members joining the Law Society (June 2019)

Ordinary Membership Miss Jessica Cameron Norton Rose Fulbright Australia Mr Benjamin Humphris Legal Practice Board

Restricted Practitioner Miss Cassey Smith Julian Johnson Lawyers

Ms Nicola Flach Massons

Mr Jonathan Springer Edith Cowan University

Miss Charlotte Hall Ashurst Australia

Ms Matilda Stoneman Clayton Utz

Mr Scott Howieson Clayton Utz

Miss Zoe Timms Clayton Utz

Mr Dylan Hoyne MinterEllison

Mr Matthew Wassylko

Mr Brandon McEvoy Ashurst Australia Mr Jarrod Payne University of Notre Dame Australia

Associate Membership Ms Penny Bond MinterEllison Miss Eve Bramley MinterEllison Miss Clare Duncanson Clayton Utz

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Mr Daniel Ravikovitch Ashurst Australia Miss Madeleine Rice Ashurst Australia Miss Chelsea Schroeter Ashurst Australia

Events Calendar

With thanks to our CPD partner

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

JULY 2019 Membership Event Friday, 26 July YLC Golden Gavel

AUGUST 2019 CPD Seminars

Membership & Education Events

Wednesday, 14 August LinkedIn for Lawyers (Webinar)

Wednesday, 7 August Sir Ronald Wilson Lecture

Saturday, 17 August and Sunday, 18 August Practical Advocacy Weekend

Thursday, 22 August Sole Practitioner and Small Firm Forum

Thursday, 22 August Leading in Law

D E T A D P U E B TO

Friday, 23 August Ethics on Friday: Lawyers Reporting Ethical Breaches to the LPCC

SEPTEMBER 2019 CPD Seminars Thursday, 12 September Twilight Thursday: A Lawyerâ&#x20AC;&#x2122;s Duty of Confidentiality

Thursday, 26 September Twilight Thursday: Expanding your range of influence

Friday, 13 September Ethics on Friday: Ethical issues for lawyers using social media

For all CPD-related enquiries please contact cpd@lawsocietywa.asn.au or (08) 9324 8640.

For all membership-related enquiries please contact membership@lawsocietywa.asn.au or (08) 9324 8692.

For all upcoming events and further information please visit lawsocietywa.asn.au

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