Brief June 2020 by The Law Society of Western Australia

VOLUME 47 | NUMBER 5 | JUNE 2020

Law Week 2020 Hits the Right Note Also inside... The Family Provision Act and Equity Magistrates Court Civil Rules Amendments Make it Memorable: The 2-5-3 method of pricing Section 159 of the Planning and Development Act 2005 (WA): Recovery of costs for shared roads More Than Just Precedent: Perspectives on Judgment Writing

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Volume 47 | Number 5 | June 2020

CONTENTS

ARTICLES 06

Old Court House Law Museum: Collecting During COVID-19

A Matter of Trust: Death and Digital Decisions

The Family Provision Act and Equity

Make it Memorable: The 2-5-3 method of pricing

Magistrates Court Civil Rules Amendments

Law Week 2020 Hits the Right Note

Section 159 of the Planning and Development Act 2005 (WA): Recovery of costs for shared roads

Basic Law – Does China Have the Constitutional Power to Enact and Impose Security Laws on Hong Kong

More Than Just Precedent: Perspectives on Judgment Writing

DISCLAIMER: The views and opinions expressed in Brief and the claims made in advertisements published within it, are not to be taken as those of, or as being endorsed by the Law Society of Western Australia (Inc.) or the Brief Editorial Committee. No responsibility whatsoever is accepted by the Society, or the Editorial Committee for any opinion, information or advertisement contained in or conveyed by Brief. COPYRIGHT: Readers are advised that the materials that appear in Brief Journal are copyright protected. Copyright is retained by the author. Readers wanting to cite from or reference articles in Brief Journal should reference as follows: (Month and Year) Brief Magazine (Perth: The Law Society of Western Australia) at page __). Readers wanting to reproduce a substantial part of any article in Brief Journal should obtain permission from individual authors. If an author’s name is not provided, or if readers are not able to locate an author’s contact details, readers should contact the Law Society of Western Australia (Inc.). The trade mark BRIEF is the subject of registered trade mark 1253722 and is owned by the Law Society of Western Australia (Inc). Trade mark 1253722 is registered for Western Australia. Published bi-monthly (Feb, Apr, Jun, Aug, Oct and Dec) Advertising enquiries to Manager Marketing and Communications: Madeleine McErlain Tel: (08) 9324 8650 | Email: mmcerlain@lawsocietywa.asn.au Communications and Design Officer: Charles McDonald RRP $16.00 incl GST.

Editor: Jason MacLaurin SC Editorial Committee: Gregory Boyle, Thomas Camp, Jack Carroll, Dianne Caruso, Dr Rebecca Collins, Megan Cramp, Patricia Femia, The Hon John McKechnie QC, Dr Pat Saraceni, Robert Sceales, Teresa Szunejko, Eu-Min Teng Brief is the official journal of the Law Society of Western Australia Level 4, 160 St Georges Tce Perth WA 6000 Phone: (08) 9324 8600 | Fax: (08) 9324 8699 Email: brief@lawsocietywa.asn.au | Web: lawsocietywa.asn.au ISSN 0312 5831 Submission of articles: Contributions to Brief are always welcome. For details, contact brief@lawsocietywa.asn.au.

REGULARS

President: Nicholas van Hattem Senior Vice President: Jocelyne Boujos

President's Report

Law Council Update

Editor's Opinion

Cartoon

Ethics Column: Anticipating Obligations

Quirky Cases: The Tale of the Trampled Tomatoes

Federal Court Judgments

Professional Announcements

High Court Judgments

New Members

Classifieds

46 48 47

WA Case Notes

Junior Vice President & Treasurer: Rebecca Lee Immediate Past President: Greg McIntyre SC Ordinary Members: Rebecca Bunney, Daniel Coster, Nathan Ebbs, Ante Golem, Mark Hemery, Matthew Howard SC, Craig Slater, Brooke Sojan, Shayla Strapps, Paula Wilkinson Junior Members: Thomas Camp, Lea Hiltenkamp, Gemma Swan Country Member: Melita Medcalf Chief Executive Officer: David Price

Family Law Case Notes 01

PRESIDENT'S REPORT Nicholas van Hattem President, The Law Society of Western Australia

Uniform Law The introduction of the Legal Profession Uniform Law Application Bill 2020 (WA) in March this year has brought Western Australia a significant step closer towards joining the Legal Profession Uniform Law Scheme. The Law Society is developing a series of resources and training sessions to support the profession through this change. A Society working group chaired by myself and comprised of various representatives from the profession will be steering this work. The Society is committed to providing practitioners and law practices the information they need to understand how the introduction of the Legal Profession Uniform Law might affect them.

Renew Your Membership We are nearing the end of our 2019/20 year and approaching the membership renewal period. The Law Society has put together an extraordinary membership renewal package for 2020/21 with savings of up to $850 including free CPD to support you through the extraordinary times we are living in. On behalf of the Law Society, I invite you to review the details of this package on our website and to support your peak professional body by renewing your membership. See our website for details: lawsocietywa. asn.au/support-package. Importantly, eligible members will now have the choice to pay by monthly instalments under our new payment plan option, which provides a flexible, convenient way to pay. Dealing with the ongoing challenges of COVID-19, it's more important than ever to stay connected and engage with your community. Your Law Society will continue to be there for you, to provide essential services and assist wherever possible to get you through this difficult period and be even more effective in the future. Further information on how to renew your membership will be provided via email and a membership renewal invoice will be posted to you. Should you need any assistance, please contact the Society’s Membership Team on (08) 9324 8692 or membership@lawsocietywa.asn.au.

02 | BRIEF JUNE 2020

If you have recently changed employment or address you can update your details by logging in to our member portal (members.lawsocietywa.asn.au). I would like to thank you for being one of over 4,000 members and the Society looks forward to continuing to support you in 2020/21.

The Law Society also considers that people with a disability who are able to participate in jury service should have the opportunity to do so and juries should more accurately reflect the community they represent, and supports reasonable adjustments and accommodations that allow people with a disability to serve on juries and more fully engage with their civic responsibilities.

Law Week Law Week 2020 (18 May to 22 May) brought the legal profession and public together with a focus on law and justice in the community. This year presented an opportunity to showcase Law Week in a different format with events being streamed online providing accessible engagement to a much wider audience. For a comprehensive review of Law Week, please see the article in this edition of Brief. My thanks to everyone who contributed to another successful Law Week.

REIWA - Joint Form of General Conditions A number of amendments are required to the Joint Form of General Conditions for the Sale of Land 2018 (Joint Form) to give effect to the amendments to the Strata Titles Act 1985 that came into operation on 1 May 2019. It was proposed that these amendments be published as an annexure to the Joint Form. REIWA has agreed that that the Annexure is to be published as an annexure to the Joint Form until such time as a new version of the Joint Form is released.

Participation of People with a Disability in Jury Service The Department of Justice invited the Society to provide feedback in response to a discussion paper titled, Participation of People with a Disability in Jury Service. The Society responded that it supports making amendments to the Juries Act 1957 (WA) similar to the amendments made to the Juries Act 1976 (ACT) in 2018 to remove legislative barriers preventing people with a disability from progressing past the summoning stage of the jury selection process.

Best Practice Guidelines for Young Lawyers In response to the Law Council of Australia’s (LCA) Issues Paper on a proposed Modern Award for early career lawyers (Issues Paper) earlier this year, the Executive requested further research to identify the areas of “exploitation” and the implications for firms in implementing the terms and conditions of a modern award for employees particularly administrative costs for small firms. Following the contribution by the Young Lawyers Committee (YLC) in developing the response to the LCA they have subsequently formed a Working Group to consider the issues facing young lawyers as raised in the Issues Paper, particularly in a Western Australian context. The Working Group has met a number of times and the YLC have committed to showing leadership on this important topic by providing some tangible outcomes such as papers, guidelines and support for the profession and also by making this topic a key strategic focus area for 2020. Once completed, the final documents would be made available to the legal profession and other relevant bodies such as the LCA via the Law Society’s website.

An extraordinary membership package for extraordinary times taking you above and beyond The Law Society is the essential membership for the legal profession

P: (08) 9324 8600 E: info@lawsocietywa.asn.au W: lawsocietywa.asn.au

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

Brief welcomes readers to this second digital-only edition, a format we hope readers more accustomed to hard copies are finding still enjoyable. Any comments from readers on the digital versions of Brief, or how they can be improved (other than impeaching and removing the Editor) are welcome. This includes possibly sarcastic missives from enraged junior practitioners who have spent inordinate amounts of time on mundane tasks (and wrangling flying paper and an unstable trolley on the Wizard of Oz Kansas-tornado wind tunnel that is St George’s Terrace in late June) because, ironically: “Counsel wants a full and complete hard copy brief.” Without wanting to understate the devastation COVID-19 has wrought, or be overly optimistic, it appears a return to more familiar ways of working (and living) will occur sooner than expected, albeit gradually. It may be that innovative techniques and technologies, and adaptions to address, and lessons learned from, the challenges of COVID-19 will continue to be used. One thing for certain is that lawyers and the law will be in the thick of things, as attention shifts to a post-shut-down world and the fallout from the shut-down. At the time of writing, there have been public threats of legal action regarding the reopening of borders, restrictions upon businesses and other personal rights, and disputes arising from losses and difficulties caused by COVID-19. The use of modern technology to adapt to a COVD-19 world is shown in our cover story on Law Week 2020, always an important event for the Society, and this year successfully conducted by video for the first time. Drastic changes in the way of doing things does make one think about the “old” technology and its massive impact on society and the law - most outstanding being the landmark invention and development of the modern printing press, which changed the world. The name William Caxton (1422–1491) often springs to mind, though he was only the first to establish the modern printing press in England. His first press was set up (which required Royal permission) at Westminster in 1476 publishing, as its first mass produced work, Chaucer’s The Canterbury Tales (something many year 12 English Literature students probably wished had never happened). The impact of Caxton’s modern press was extraordinary, the production of mass-publications profoundly affecting English legal history (a principal area attracting the Star Chamber’s attention and giving rise to its pejorative reputation until it

04 | BRIEF JUNE 2020

was abolished in 1641, was the prosecution of allegedly seditious or treasonous libels against the Church and State).1 Another important outcome of Caxton’s printing press was that he and it facilitated the standardisation of English written expression – in what became known as Chancery English. This great achievement is not exactly matched by the impact of modern social media, such as Twitter, which seems to have only achieved standardising the degradation of the language into novel forms such as “Standard Trolling” or “Slack-script”. In one of the Mark Twain’s greatest quips he famously wrote, “I didn’t have time to write a short letter, so I wrote a long one instead”, an observation that speaks profoundly to the question of legal drafting and legal documents. In the modern world, one is more likely to receive a perverse unenlightening variant such as: “I didn’t have or could be bothered to to you properly ” Caxton’s achievements scored him an entry in the BBC’s poll-driven “100 Greatest Britons”, somewhat ironically ranking (at 68) before Chaucer (81) though somewhat inexplicably way behind Boy George (46). One can only also speculate as to how Boudica (35) would have reacted to being beaten by David Beckham (33), though the visual imagery is enticing. Johann Gutenberg (c. 1398–1468) is credited as the father of the modern printing press, with his 1439 development of the moveable type press, and his 1455 Gutenberg’s 42-line Bible the first printed version of the Bible.2 Unfortunately, Gutenberg suffered at the hands of a lawsuit from another enterprising merchant, Johann Fust, from whom he had borrowed way too many guilders to help him complete and perfect his machine. Fust successfully sued Gutenberg in 1455 for 2,026 guilders and interest, which resulted in the relinquishment of many of Gutenberg’s rights to his press and other inventions. Interestingly, judgment was handed down in November 1455 in the refectory of the Barefooted Friars of Mainz.3 The Editor’s research has not been able to ascertain whether you could, and if so to where, appeal when you’ve been done over in the refectory of the Barefooted Friars of Mainz. Fust and his associate, Schoffer, took advantage of Gutenberg’s technology to great commercial success. It is reputed that they were the first to introduce the practice of having a publishers’ name on the first page of a work (“Fust & Schoffer”) in England.

Gutenberg still managed to do productive things in the world of publishing and other enterprises, and may have got a modicum of revenge when Johann Fust went to Paris in 1466, apparently failed to socially distance properly, and died of the plague. Many readers probably took advantage of the shutdown to get in some hitherto neglected reading of good old fashioned paper books. However, this is not to spurn the use of time at home to enjoy the digital modes of communication and edification. Many of us I’m sure are secretly hoping for the authorities to hand down a direction permitting one to work from home until catching right up to the most recent episode of Netflix’s Ozark. There is also nothing to be ashamed about flexing one’s legal mind most vigorously in the last few weeks trying to reach an informed view about whether Joe Exotic was rightly convicted and whether Carol Baskin did in fact kill her former husband and feed him to tigers.4 Hopefully things will soon get back to nearnormal so that June is marked by the more traditional rituals: last minute frantic double and triple checks that practice certificate and insurance renewal applications have been processed and approved, and having conniptions about tax returns. This edition has a number of diverse items of interest, including The Hon Justice Katrina Banks-Smith providing Perspectives on Judgment writing, Maree van der Kwast on The Family Provision Act and Equity, Magistrate Trevor Darge on amendments to the Magistrates Court Civil Rules, Sarah Walton’s A Matter of Trust item, Joel Barolsky on the “2-5-3” method of pricing, Julius Skinner on Recovery of costs for shared roads, and Chris Edmonds for his insights on China’s security laws as well as our much appreciated regular contributions. Endnotes 1. 2.

3. 4.

C. A. Jr. Peairs, Freedom of the Press, 28 Ky. L.J. 369 (1940). See 1911 Encyclopædia Britannica, entry for Johannes Gutenberg; Thomas F. Cotter, Gutenberg's Legacy: Copyright, Censorship, and Religious Pluralism, 91 Calif. L. Rev. 323 (2003). See 1911 Encyclopædia Britannica, entry for Johann Fust. Netflix’s Tiger King also did convincingly persuade many that buying a white tiger for a support animal in COVID-19 lockdown not a good idea – no matter how cool it looked when Mike Tyson had one.

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

Perth's oldest remaining public building

Collecting during COVID-19 By Toni Church Museum Curator, Old Court House Law Museum

Hubert Smeed, ‘Old Court House’ c.1930s. Old Court House Law Museum Collection 2015.4

While our corner of Stirling Gardens has been very quiet since the Old Court House Law Museum temporarily closed its doors from 20 March, work has been busily undertaken behind the scenes. It is a common misconception that a museum exists only within the walls of its public displays, when in fact most of the work happens within the collection; conducting research, carrying out conservation treatments, preparing exhibitions or publicity content for the evergrowing – and digitised – museum world. Museums cannot exist without stories to tell. This usually takes the form of objects, through which curators interpret the world around them and reflect back to visitors the society in which they live or have evolved from. Social history curators understand that every moment in time is ‘unprecedented’ – such is the nature of human society – but the social conditions surrounding the global COVID-19 pandemic of 2020 have presented unique challenges for museums (as with every industry and individual around the world). Capturing these ‘unprecedented times’ for the purposes of collective memory must be done with sensitivity and care, balanced with the practical implications of closed facilities, heightened social restrictions, and basic health and safety concerns. Social history curators around

the world have endeavoured to capture the human spirit of the COVID-19 pandemic for future generations, to reflect upon the pain and stoicism in enduring the difficulties of this once-in-a-century phenomenon, as well as celebrating the triumphs and enduring perseverance of human connection through this time. As a museum that represents the history of the law in Western Australia, with a strong thread of this state’s social history intertwined with that identity, it is important that the Old Court House Law Museum plays a role in recording the history and impact of the global COVID-19 pandemic within the Western Australian legal community.

Please donate to contribute Law Society members are invited to donate objects, documents or ephemera (signage, photographs, digital media) that reflect their experience of COVID-19 in Western Australia. These donations could relate to the impact on the Western Australian public of changing laws and instructions related to flattening the curve of infections, constantly evolving standards of social distancing that impacted the legal community and their work, or capture the humanity (fear, compassion, confusion, connection) of working within the law during this time. All donations will be assessed according to the Museum’s Collection Policy, available on our website [https://www.lawsocietywa.asn.au/themuseum/our-collection/], and can be discussed further with Toni Church, Museum Curator, tchurch@lawsocietywa.asn.au.

The Family Provision Act and Equity By Maree van der Kwast Director, Dwyer Durack

Equity and the probate jurisdiction are not the same. The Probate jurisdiction arose from the ecclesiastical courts; equity is, of course a creature of the Chancery. The two jurisdictions therefore have different origins, different aims and different operations. What then is the connection? Aside from the obligations and rights of Executors (which is not within the scope of this paper) primarily, the primary intersection between the two is that equitable doctrines and remedies can dictate the size and nature of the estate. It is trite law to say that a person can only give what they own. It is very straightforward if there is an express trust; clearly, if the Deceased does not have a beneficial interest in the property, but rather simply holds it on trust for another, they cannot give the beneficial ownership of that property away in their Will. This principle is simple when applied to express trusts; but far more complicated when resulting or constructive trusts are involved. Both of these types of trusts will be discussed below. In addition, equity may affect the

06 | BRIEF JUNE 2020

obligations that arise in relation to the act of Willmaking. This also is discussed in relation to the doctrine of estoppel below.

Distinction between equity and the Family Provision Act Finally, it should be noted that it is important not to confuse the operation of equity with that of the Family Provision Act. If the deceased gave assurances that the claimant would inherit the estate, what effect does that have? The issue was discussed in the first instance decision of Vigolo v Bastin in which McLure J stated: ‘’I have no reason to doubt Virginia’s evidence and I find that his father had on a number of occasions said to him words to the effect that he [Virginia] would inherit the Old Coach Road farm. However, this is not an estoppel

action and if it was, no doubt it would have been necessary to explore whether the statements were based on any known assumptions (such as that the partnership would continue or that the members of the partnership would work together to build a family asset base). The evidence supports a finding, and I am satisfied, that the testator worked himself (and his family) hard with minimal discretionary expenditure for the purpose of building a significant family asset base and expected Virginia to follow in that tradition. It is in that context that the testator’s disapproval of Virginia’s accumulation of personal assets is to be understood. However, I make no findings about any assumptions underlying the testator’s statements concerning Virginia’s inheritance. It is unnecessary to do so because of the nature of the claim and because the issue of Virginia’s inheritance is linked with his allegations of meagre wages (suggesting reliance, detriment and enhancement of the testator’s estate)."1

case by acknowledging that, pursuant to the terms on which the account was held with the bank, Percy had a right to the balance of the account and that therefore: “The claim that it forms part of her estate must depend upon equity. It must depend upon the existence of an equitable obligation making him trustee for the estate. What makes him a trustee of the legal right which survives to him? It is true a presumption that he is a trustee is raised by the fact of his aunt’s supplying the money that gave the legal right a value. As the relationship between them was not such as to raise a presumption of advancement, prima facie there is a resulting trust. But that is just a mere question of onus of proof". The Court noted that, in this case, there was proof of an intention to confer beneficial ownership as the Deceased had said to a bank clerk that “Percy would look after her, pay her accounts and any money remaining in that Bank would be Percy’s”. As was noted by McTiernan J: “A resulting trust did not arise because it was the intention of the deceased that the appellant should after her decease be entitled to operate on the account for his own benefit”.

It is clear that, if the plaintiff feels that they have an equitable claim as well as a claim pursuant to the Family Provision Act both claims should be made.2

Resulting Trust A resulting trust occurs when the settlor confers title to property to another person but retains beneficial ownership of the property in whole or part.3 The basis of the trust is that it is presumed that the settlor did not intend there to be a transfer of the whole beneficial ownership.4 Fundamental to the determination of resulting trusts are two presumptions: 1. A resulting trust is presumed to arise when property is wholly or partially transferred to or purchased for or with another as a gift;5 and 2. No resulting trust will be presumed to arise if the relationship between the settlor and the putative beneficiary is such that the transfer or purchase is presumed to be a gift. The presumption of advancement applies to transfers from parent to child.6

Both presumptions can be rebutted by evidence to the contrary. A resulting trust is not an express trust; there need be no express declaration. Therefore very difficult questions can arise when, after the death of the settlor, the Executor has to determine whether or not a resulting trust exists. The seminal case is the High Court case of Russell v Scott.7 The case related to the estate of Mrs Katie Russell, described as “an old lady of considerable wealth”. Her nephew, Percy Russell, helped her with her affairs. Part of that help revolved around the management of her bank account, and particularly the fact that she regularly lost her bankbook. Percy therefore arranged for an account to be opened in the name of Katie and Percy and the bank account was operated by withdrawal forms signed by the both of them. Her Will provided that her estate be divided between the appellant and Percy. The other beneficiary sought a declaration that the monies standing in the joint account formed part of the Estate. Justices Dixon and Evatt summarised the

The case has been applied throughout Australia, including in Western Australia. An example is the case of Counsel v the Estate of James Albert Counsel (Deceased)8 which was decided by Hasluck J in 2007. In that case, the Court considered the beneficial ownership of some land, belonging to the Deceased’s estate, which was purchased with monies drawn from the Deceased’s daughter’s bank accounts. His Honour reviewed the relevant case law and noted: (a) the mere opening of an account by one person in trust for another is not necessarily sufficient to make that person the trustee for the other person. All the relevant circumstances must be examined in order to determine whether the depositor really intended to create a trust; (b) where a person not only opens an account but hands the passbook to the purported beneficiary and thereafter consults that beneficiary on the basis that the latter is the beneficial owner of the money or of some interest in them, the evidence strongly tends towards establishing that the depositor intended to create an immediate trust in favour of that other person; 07

The daughter gave evidence that the Deceased had told her that she had $45,000.00 in the account set aside for the grandchildren and that she wanted her to administer it at $5,000.00 for each grandchild. The Deceased also authorised her daughter to withdraw money for the daughter’s expenses while she was caring for the Deceased. Finally, stored with the Will was a piece of folded paper attached to the Will with a paper clip and marked “Chris” (and was thus known as the “Chris note”). It included the words: “In our account and investments: $75,000 Terry $20.000 Grandchildren $45,000. Brian has his. Only if they use it properly (education house deposit) Dale Eries nephew $2000 Kathleen Eries nephew $2000 Doctor Geary $1000 ADRA Helen Hall $5000 1,000 each year" The Court found that there were four possibilities as to the beneficial ownership of the monies constituting the fund. They were:

(c) the presumption of advancement can be rebutted or qualified by evidence manifesting a contrary intention, but apart from subsequent acts and declarations as against the parties doing or making them and the general circumstances, the acts and declarations of the parties before or at the time of the purchase or so immediately thereafter as to constitute a part of the transaction formed the relevant and admissible evidence; (d) the burden of rebutting the presumption of advancement lies upon the person asserting the existence of a trust; (e) the extent of the beneficial interests of the respective parties must be determined at the time when the property was purchased and the trust created. Subsequent contributions may not be relevant to determining the extent of the interests although it might be relevant to an equitable accounting between the parties; (f) evidentiary material from which the Court might have drawn an inference as to the intention of the parties included their acts and declarations before or at the time of the purchase or so immediately after it as to

08 | BRIEF JUNE 2020

constitute a part of the transaction. Evidence of those acts and declarations were admissible either for or against the party who did the act or made the declaration, but any subsequent declarations would have been admissible on as admissions against interest; and (g) evidence of the relationship between the parties - both legal and factual will always be admissible. There are, however, some variations, as can be seen by the New South Wales case of Logan v Gardiner.9 In that case, a man brought a case against his sister and brother in law for alleged maladministration of their mother’s estate. The Will in question was a simple one. There were four persons who had a natural claim on the Deceased’s bounty, being her second husband, her son Peter, the plaintiff and the first defendant. The Will noted that the non-parties had already control of their share of the assets of the estate and then proceeded to divide the estate between the plaintiff and the defendant daughter. However, prior to her death, the Deceased had transferred about $122,000.00 from her credit union account to a joint one with her and her daughter.

(a) the possibility of a resulting trust. The Court noted, "This does not appear to be a realistic possibility because the first defendant is the daughter of the testatrix so that it would be the presumption of advancement rather than resulting trust which would apply"; (b) the presumption of advancement applies; (c) the actions of the mother show a mere desire her daughter should distribute the funds in accordance with the Chris note; or (d) the Chris note constitutes a binding trust. The Court reviewed the question of a secret trust, noting at 28: “The most common form of a secret trust is where there is an absolute gift to a legatee in the will, but the testator has communicated to the legatee a trust on which that benefaction is to be held. With a half secret trust the Will will actually use the words “on trust”. The present is not a typical case of a secret trust because this case involves the fund, not any gift by Will. However, the principle must be the same, that is, that a vesting of the legal title of property occurs because the donee has accepted the benefaction subject to

the equitable obligations suggested by the donor.” The Court noted that: (a) the mother deliberately set out a scheme for the administration of her property. The Will in its terms indicated that there were to be shares of the assets; and when the assets purportedly dealt with in the “Chris note" were added to the other property (including that distributed prior to her death) the shares appeared roughly equal; (b)

the conduct of the first defendant was more consistent with their being a trust than a gift. She paid out gifts in respect of herself, her husband and her own children, but also recognised the entitlements of ADRA and MS Ryan and Mr Cowell; and

(c) the evidence of the defendant daughter indicated that she understood that it was, and accepted, the trust. The Court found, on the evidence, that the money was held by the daughter on trust.

Constructive Trust

In 1985, Deane J noted in Muschinsky v Dodds:10 “The nature and function of the constructive trust has been the subject of considerable discussion throughout the common law world for several decades’’. This statement is equally true several decades later. Broadly speaking, a constructive trust is a non-express trust imposed by the Court when equitable relief which is to some degree equivalent or analogous to relief that would be available against an express trustee for breach of trust."11 Constructive trusts: "do not depend on an express intention to create a trust and unlike resulting trusts do not depend on an implied intention to do so. Constructive trusts arise by operation of law independently of the intentions of the parties and sometimes contrary to such intentions. They arise because it is regarded as desirable in certain circumstances to impose on a person in relation to particular property the duties of a trustee."12 While the circumstances under which a constructive trust will arise are not fixed,

in relation to probate cases, it may arise as a result of: (a) a breach of contract relating to the execution of a Will; (b) when the property of the Deceased is subject to a constructive trust. Such a trust could arise by the contributions or improvement to the property by a putative trustee; or some other form of unjust enrichment; or (c) by reason of estoppel. This was discussed above. Like the resulting trust, the difficulty is for an executor to be able to identify whether or not a constructive trust exists. In the circumstances in which a constructive trust can arise, the remedy that IS given is limited to the minimum equity needed to avoid the relevant detriment.13 In some cases, that will mean that the expectation will be fulfilled and the mechanism that will often be used is that of constructive trust. In others there will be a lesser remedy where it would be disproportionate to the requirements in the circumstances of conscionable behaviour14. In determining whether to impose a constructive trust and then deciding the form and scope

SCALES Law Clinic CRICOS Provider Code 00125J MCO0005273 05/20

Even during a pandemic, Murdoch students haven’t deterred from providing legal services to the disadvantaged community. Murdoch University in collaboration with The Southern Communities Advocacy Legal and Education Service Inc. (SCALES) allows Murdoch Law students the opportunity to participate in Clinical Legal Education. For over 20 years, Murdoch Law students have provided legal services to the community whilst engaging the opportunity to explore the role of law in society, what legal practice can achieve and its limitations. Students conduct interviews, undertake legal research, develop case theories and formulate advice to their clients. They may also assist in representation of clients, or

in drafting of court documents, including pleadings and submissions. Even through a pandemic, Murdoch students are continuing to deliver much needed legal services to the vulnerable and disadvantaged community through this program. This continuation of service has provided students a better legal understanding and has been well received by their clients, especially during a time of uncertainty with one asylum seeker from Iran saying: “Thank you so much for continuing to help, when everything feels so uncertain, it is good to know I can count on you”.

Throughout this pandemic, legal needs increase rather than decrease. Despite the move to online and virtual delivery, Murdoch students have continued to offer a quality service to their clients by video conference or phone call. The students involved have welcomed the opportunity for real life experiences and have increased their understanding of the types of services they’re providing, with one final year law student, Sarah, explaining: “It is when things like this happen that you really understand how vulnerable people are and how much they need support, this includes legal support”.

The legal clinic is still open and will continue it’s online operations until further notice. For more information, contact Anna Copeland at a.copeland@murdoch.edu.au

murdoch.edu.au 09

of the trust, it is necessary to look to the circumstances of the case to decide how the equity can be satisfied15. One of the factors that the Court will consider is the effect of the relief on third parties.16 If a constructive trust does exist, it will usually be treated as coming into existence at the time of the conduct which gives rise to the trust.17 However, the Court has discretion to modify a prima facie date on which the trust takes effect.18 Further, the doctrine of priorities would apply so that, where equities were equal, the beneficiary of the constructive trust is entitled to priority over:19 (a) the holder of a later equitable interest; (b) a later legal interest if that interest was not a bona fide purchaser for value without notice; or (c) an unsecured creditor of the constructive trustee.

Contract to make a will The seminal case is that of Barns v Barns20 in which the High Court looked at circumstances in which the parties had entered into a deed. The Court reviewed the law relating to mutual Wills and noted at [85] that there were five fundamental propositions [references omitted]: (i)

it is the disposition of the property by the first party under a will in the agreed form and upon the faith of the survivor carrying out the obligation of the contract which attracts the intervention of equity in favour of the survivor; (ii) that intervention is by the imposition of a trust of a particular character; (iii) the subject-matter is ‘’the property passing [to the survivor] under the will of the party first dying”; (iv) that which passes to the survivor is identified after due administration by the legal personal representative whereupon “the dispositions of the will become operative’ (v) there is “a floating obligation” over that property which has passed to the survivor; it is suspended during the lifetime of the survivor and “crystallises” into a trust upon the assets of the survivor at death The Court considered whether the imposition of the trust meant that the property could not be claimed by an application pursuant to the Family 10 | BRIEF JUNE 2020

Provision Act. It decided that it could not, noting that: “... where, as in the present case, the contract by Mr Barns was one not to revoke his will in favour of Mrs Barns, she cannot claim rights greater than she would have had immediately after the moment of the execution of the will. Those rights were subject to the court’s jurisdiction under the legislation to make an appropriate order having effect as a codicil. A related point was made by McLelland J in Lim with respect to trust interests which bind property in the estate of the deceased, but with the occasion for equitable intervention to produce that result and the necessary condition for that outcome being the death of the testator. A treatment of an order made under the Inheritance Act as a codicil executed immediately before the death of the testator has a significant consequence. This is that any such order which diverts property away from the operation of such a trust operates at a logically antecedent stage to the constitution of that trust”.21 The Court (at [115]) went on to cite an earlier case of Schafer Schaefer v Schuhmann:22 “Where that which is promised is the making of a will in a stated form (irrespective of whether the promise is in some such terms as ‘I will/leave you Blackacre in my will’ or ‘I will insert in my will a clause leaving you Blackacre’) there is no unqualified warranty by the promisor that the gift will take effect. In particular the promisee does not, upon such promise being made to him, thereby acquire such an equity or interest in the property as to render the will a mere further assurance to him. His rights to the property are to be drawn through the will and hence are subject to certain laws affecting testamentary succession. A promisee’s rights under a contract to leave property by will may, without any breach on the part of the testator, be subject to an inroad upon the property being made without thereby giving any consequential right, either to damages or otherwise, to the promisee under that contract. An order under the [NSW Act] is an instance of such an inroad.”

Estoppel An equitable estoppel occurs when: “First, in relation to the plaintiff’s conduct: that the plaintiff acted (or abstained from acting) in reliance upon an assumption or expectation that a particular legal

relationship existed or would exist between the Plaintiff and the defendant, or that the plaintiff had or would acquire some interest in the defendants properly; Secondly, in relation to the defendant’s conduct: that the defendant induced the plaintiff to adopt the assumption or expectation and encouraged the reliant activities of the plaintiff. or at least failed to deny the assumption or expectation with knowledge that the plaintiff was relying on it to the plaintiff’s potential detriment and that it could be fulfilled only by the transfer of the defendant’s property, a diminution of the defendant’s rights or an increase in the defendant’s obligations: Thirdly, in relation to the interest or property: that the assumption or expectation was one which the defendant could lawfully satisfy.”23 The issue of equitable estoppel may arise in the context of succession law when a Willmaker induces an assumption in someone that if he or she acts in a certain way they will receive a benefit under the testator’s Will. Usually, this inducement will occur by way of a representation. The limits of the doctrine should be noted. It does not render all representations enforceable. Rather, the representation must be clear, unequivocal and made in circumstances that the representee. Thus: “Even if a representation is insufficiently precise to give rise to a contract that fact does not necessarily disqualify the representation from founding a promissory estoppel. Much will depend on the circumstances in which the representation was made and the context against which it is to be considered. In its context, the representation is sufficiently clear and unambiguous if it is reasonable for the representee to have interpreted the representation in a particular way being a meaning which it is clearly capable of bearing and upon which if is reasonable for the representee to rely. .... On the other hand, if it is not reasonable for the representee to rely on the meaning he attributes to the representation in that he had acted reasonably he would have attributed an innocent meaning to the representation then it cannot be unconscionable for the representor to deny responsibility for the detriment that the representee sustains because of that unreasonable reliance”.24

For many years, it was assumed that representations about making a Will could not result in an estoppel unless there was an assurance by the promisor that they could not revoke their Will. In Taylor v Dickens [1998] 1 FLR (Eng) 806 the Court stated: ‘’I think that homely expression [not to count his chickens before they were hatched] is an apt statement of how, in normal circumstances, and in the absence of a specific promise, any reasonable person would regard - and should be expected by the law to regard - a representation by a living person as to his intentions for his will. Subject to specific statutory exceptions (such as for dependants), the right to decide, and change one’s mind as to, the devolution of one’s estate is a basic and well understood feature of English law. The law allows one to disappoint the expectations of those who have no more than a moral claim on one’s affections, however strong. During the lifetime of the potential testator, that is a risk which anyone seeking to rely on such a representation necessarily faces.” However, the English Court of Appeal rejected that proposition in the case of Gillett v Holt,25 stating: “The inherent revocability of testamentary dispositions ... is irrelevant to a promise or assurance that ‘all this will be

yours’. Even when the promise or assurance is in terms linked to the making of a will ... the circumstances may make clear that the assurance is more than a mere statement of present (revocable) intention, and is tantamount to a promise ... it is notorious that some elderly persons of means derive enjoyment from the possession of testamentary power, and from dropping hints as to their intentions, without any question of an estoppel arising.” In that case, the Court found it significant that there had been assurances repeated over a long period, usually before an assembled company on special family occasions some of which were completely unambiguous. The plaintiff, after speaking with his wife, decided he could rely on Mr Holt’s assurances because “Ken was a man of his word". On the facts the assurances were intended to be relied upon and were relied on to the detriment of the plaintiff. The Court of Appeal in Victoria took the same approach,26 finding that whether or not a representation could be relied upon depended on the circumstances. The Court noted that everyone knows that people can change their Wills but the circumstances may show that the promise was intended to be, and was reasonably understood to be, not of a revocable testamentary instrument but of

a gift by will taking effect on death. There are evidentiary problems with such cases. As was noted by Ward J in the New South Wales Supreme Court:27 “The difficulties facing the court where a claim is based on an assurance made by the deceased have been noted in many cases. It is conceded ... that the plaintiff bears comparatively difficult task in evidentiary terms in seeking to persuade the court on the balance of probabilities of the making of alleged promises given that [the deceased] is not alive to give his version of events... Careful scrutiny is required... the court generally looks for corroboration of those claims...” Ward J went on to note: In Weeks v Hrubala, Young CJ in Eq said: In the case of a person suing a deceased estate the court normally looks for some sort of corroboration....even though, as a matter of law, corroboration is not absolutely necessary. ... In Plunkett v Bull Isaacs said: “ ...It is not that the Court looks on the plaintiff’s case with suspicion and as prima facie fraudulent but it scrutinises the evidence very carefully to see whether it is true or untrue". (References omitted) 11

His Honour found that (at [183] to [187]):

The same judgment (at [424]) identified another problem with such evidence. Her Honour cited Mclelland CJ in Equity in Watson v Foxman,28 when he said: "...human memory of what was said in a conversation is fallible for a variety of reasons, and ordinarily the degree of fallibility increases with the passage of time, particularly where disputes or litigation intervene, and the processes of memory are overlaid, often subconsciously, by perceptions or self interest as well as conscious consideration of what should have been said or could have been said. All too often what is actually remembered is little more than an impression from which plausible details are then, again often subconsciously, constructed. All this is a matter of ordinary human experience”. As already noted above, however, the action by the representor is only one element to be considered. It is also necessary to show reliance and detriment on the part of the representee. The detriment suffered is not. detriment that results from relying on the promise, but rather the detriment which would flow from a failure by the promisor to honour the promise. Thus: “The purpose to avoid or prevent a detriment to the party asserting the estoppel by compelling the opposite party to adhere to the assumption upon which the former acted or abstained from acting. That means that the real deferment or harm from which the law seeks to give protection is that which would flow from the change of position if the assumption were 12 | BRIEF JUNE 2020

deserted that led to it”.29 In addition, the person to whom the assurance is given acts on the faith of it in such a way in such circumstances that it would be unjust and inequitable for the other party not to be bound by the assurance.30 There have been several cases in Western Australia dealing with this issue. Interestingly, both resulted in the transfer of the property prior to the death of the Willmaker. The first is the case of Currie v Currie.31 In that case, Bruce (the son) commenced proceedings against his father, Graeme, claiming that Graeme was obliged to assign or transfer ownership to Bruce of a part of the Currie farm comprised of properties referred to as Glenayr Farms on the principles of proprietary estoppel. Justice Le Miere found that Bruce assumed that Graeme would transfer the Glenayr Farms properties to him by Will or at some earlier time, that the assumption was induced or encouraged by Graeme, that Bruce had acted to his detriment in reliance upon the assumption and it would now be against the conscience for Graeme to be permitted to depart from the assumption. There was a declaration to the effect that Graeme held the remaining Glenayr Farms properties, that is the Glenayr Farms properties that had not been sold, on trust for Bruce and an order that Graeme transfer to Bruce the legal title to those properties on condition that Bruce pays $100,000 to Graeme and causes any guarantee by Graeme over the Glenayr Farms properties to be discharged.

The starting point for the remedy is the fulfilment of the assumption induced. Relief is to be moulded to recognise practical considerations, such as the need for clean break, and to take into account any injustice the party estopped would suffer. The issue of the appropriate remedy in this case, having regard to the need for proportionality, should take into account the following. Bruce’s assumption prior to 2011 was that he would, in time, assume legal ownership of the Glenayr Farms properties. However, this was on terms that this was to be at a time of Graeme’s choosing, either during his lifetime or upon his death and Bruce was to pay an annuity to Graeme until he achieved a certain age and provide other benefits to Graeme for an indeterminate period. In 2011 Graeme effectively gave Bruce some of the properties by applying the proceeds of the sale of the land to the Negris to reduce Bruce’s debt to Rabobank. To the extent Bruce has a proprietary entitlement, it will be because the title to the Glenayr Farms properties is now and has been for some time, in equity, in Bruce. That is, the Glenayr Farms properties are no longer Graeme’s property. Nevertheless, if Bruce’s assumption was only to receive the properties by inheritance from Graeme, or at an earlier time with Graeme’s agreement, the giving of a proprietary remedy now will involve the element of acceleration of the benefit the subjection of the assumption. The notion of acceleration is relevant to the appropriate remedy; any proprietary remedy to which Bruce is to be entitled will operate to deprive Graeme of part of his interest and to advantage Bruce, during Graeme’s lifetime and at a time earlier than otherwise might have been the case had Graeme adhered to his promises and representations. ... In my view Bruce’s equity will be satisfied by the transfer of the remaining Glenayr Farms properties to Bruce subject to Bruce making a payment to Graeme to account for Bruce receiving full ownership of the properties and Graeme losing any entitlement to the properties, or benefits under the succession agreement between Bruce and Graeme, at an earlier time than Bruce was entitled to insist upon. The appropriate relief is to declare

that Graeme holds the remaining Glenayr Farms properties on constructive trust for Bruce and further that Graeme is to transfer the freehold of those lands to Bruce subject to Bruce causing any guarantee by Graeme of any loans or facilities of Bruce to be discharged and Bruce paying Graeme $100,000. His Honour’s decision was affirmed by the Court of Appeal.32 The second case was that of Browne v Browne33 in which a father was again ordered to transfer the farm to his son during the father’s lifetime. The first instance decision was also appealed,34 with one ground of appeal being that by ordering the transfer during the father’s lifetime, her Honour had prevented other family members from having the chance to claim the farm as part of a Family Provision Act claim after his death. The Court of Appeal rejected that claim in these circumstances, saying (at [117] to [119]): In any event, to the extent that this court’s task is to identify the correct remedy in the circumstances of the case, no error is revealed in the primary judge’s conclusion. On the primary judge’s unchallenged findings, any potential prejudice to future claimants under the Family Provision Act did not require or justify an order different from the order for immediate transfer made by the primary judge. As we have said, no evidence was led as to the financial circumstances of any potential claimant under the Family Provision Act. Further, the primary judge found, without challenge on appeal, that Mr Browne had not led sufficient evidence to establish his overall financial position. Thus, the evidence did not indicate the extent of any need for proper maintenance or advancement of any claimant. Nor did the evidence suggest, much less establish, that, if Burracoorong were excluded, Mr Browne's estate would be insufficient to satisfy any claims under the Family Provision Act. In those circumstances, and in the circumstances outlined in above, the possibility that, upon Mr Browne's death, his wife or one (or more) of his other children might make a claim under the Family Provision Act did not justify or require relief different from that granted by the primary judge. If it had been established that the removal of Burracoorong from Mr Browne's estate would render the estate insufficient to meet the likely claims of dependents under the Family Provision Act,

questions may have arisen as to the extent to which those circumstances should detract from the enforcement of Steven’s prima facie right to have his expectations made good. For the reasons already given, no such questions arose in this case. For these reasons, in our view, the primary judge’s reasons, and the conclusion she reached, reveal no error concerning third party interests. Not only are the facts· capable of sustaining the judge’s finding as to the appropriate relief, on the facts found by her Honour, we would grant the same relief.

revocation, rather than an equitable claim.

Conclusion It is clear, then, that resulting trusts, constructive trusts and estoppel can have a considerable effect on the disposition of a deceased estate. It is important that practitioners are vigilant to this possibility when making Wills, as legal title may not be the end of the enquiry; and that when administering estates, Executors are aware of the possibilities that equity may affect their duties. Endnotes

Other doctrines -vitiating intervivos transactions In addition to what has been listed above, it is possible to reverse inter vivos transactions if it can be shown that they were effected by undue influence or unconscionable conduct. See in particular the Queensland case of Gillespie v Gillespie35 which looks at reasons for delay of such actions.

Practical issues There are a few practical issues that should be noted: 1. It seems obvious, but if a Family Provision Act claim is made after the failure of an estoppel claim, the evidence in both cases should be consistent: see what happens when that does not occur in the case of Levingston v Levingston [2017] WASC 371 at [38] to [47]. 2. A Family Provision Act claim cannot be settled until an action has been commenced; the Court will also not approve a compromise until the action is commenced: Sergi v Sergi [2012] WASC18. 3. The Family Provision Act claim should be lodged within the six month limitation period to preserve the right to make the claim.

1 2 3 4

5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 2o 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36

Vigolo v Bostin (2001] WASC 335. Green v Green (1989) 17 NSWLR 343. Cossey v Bach (1992] 3 NZLR 612 at 630 per Fisher J. Westdeutsche Landesbank Girozentrale v Islington London Borough Council [1996] AC 669; [1996] 2AII ER 961 at 990-1; [1996] 2 WLR 802 per Lord BrowneWilkinson HL. Calverley v Green (1984) 155 CLR 242 at 246-7 per Gibbs CJ, at 266-7 per Deane J; 56 ALR 483; 59 ALJR 111. Standing v Bowring (1885) 31 Ch 0 282. [1936] HCA 34; (1936) 55 CLR 440 (12 August 1936). Counsel and Anor v the Estate of James Albert Counsel (dec'd) and Anor [2007] WASC 101, [2006] NSWSC 1069 (12 October 2006). [1985] HCA 78; (1984) 160 CLR 583. Greater Pacific Investments Ply Ltd (inliq) v Australian National Industries Ltd (1996) 39 NSWLR 143 at 152-3, Counsel and Anor v the Estate of James Albert Counsel (dec'd) and Anor [2007] WASC 101. Vukic v Luca Grbin and Ors; Estate oflvonko Grbin [2006) NSWSC 41 (9 February 2006). Giumelli v Giumefli (1999) 196 CLR 101. Bathurst City Council v PWC Properties Pty Limited [1998) HCA 59; (1998) 195 CLR 566. Giumelff supra. Muschinski v Dodds [1985] HCA 78; (1984) 160 CLR 583. Parsons v McBain (2001) 109 FCR 120; (2001) 192 ALR 772; [2001] FCA 376. Varma v Varma [2010] NSWSC 786 (16 July 2010). [2003) HCA 9. Barns v Barns supra at [108]. [1972] AC 572 at 585. Vukic supra Galaxidis v Galaxidis [2004] NSWCA 111. [2001] Ch 210 at 227. Flinn v Flinn [1999] 3 VR 712. Vanna supra. (1995) NSWLR 315 at 318, Grundt v Great Boulder Pty Gold Mines Ltd (1938) 59 CLR 641, Greasfey v Cooke [1980] 3 ALL ER 710. [No2] (2017] WASC 312. Currie v Currie [No 2] [2019] WASCA 2. [No 2] [2017] WASC 375. [2019] WASCA 1. [2013] QCA 99. [NO 4] [2017] WASC 302

4. It is important to bear in mind in these circumstances, who is the party against the relief that is claimed, and can it be recovered from them? In the case of Lafferty v Waterton36 the property that the plaintiff claimed was impressed with a trust because of an estoppel that had already passed to other family members. 5. A decision will need to be made as to which action is heard first. While in most cases the estoppel argument will be, that will not be inevitable: see the case of Paton v Paton [2018] WASC 273 which deals with

Magistrates Court Civil Rules Amendments *This is an amended version of a paper presented at two Law Society Information Sessions on 17 and 19 February 2020. At the time of delivery of the paper the intended date for introduction of the rules amendments was at the end of March. Due to Covid-19 that date was moved to 1 June 2020.

By Magistrate Trevor Darge Magistrates Court Perth - Civil

Why change the Rules? The first question is, of course, why change the rules? The Magistrates Court came into being on 1 May 2005. There have been some amendments since that time however the system has remained largely unchanged. Why do it now? The answer is one of efficiency and perhaps selfishness. Before being appointed to the bench my fellow practitioners and I ran hot with ideas about how the procedures in this jurisdiction could be changed. Since becoming a Magistrate my colleagues and I have recognised that remedying those same complaints could improve both our lives.

The General Procedure General Purpose of the Changes The idea behind the changes to the General Procedure is to allow greater flexibility for parties and hopefully reduce the cost for practitioners operating in the Magistrates Court. The impression gained from the profession is that the Magistrates Court is an expensive place to litigate, out of keeping with the modest jurisdictional limit of $75,000. The core complaints centred on the overuse of forms, the complexities of the process, delays involved in making applications and the rigidity of the listing conference memorandum procedure. The rules amendments seek: •

To simplify the procedure for pleadings and bring them back to the style of the superior courts.

14 | BRIEF JUNE 2020

•

To remove unnecessary forms and procedures.

•

To allow for a more streamlined approach to trial management.

•

To change the approach to Assessment of Damages and applications.

General Procedure – Current Court Process Currently there is a form and procedure heavy approach to lower court litigation:

New Court Process System •

General Procedure Claim issued

•

Served on defendant

•

Notice of Intention to Defend

•

Statement of Claim

•

Statement of Defence (Counterclaim)

•

Reply (Defence to Counterclaim)

•

Pre-Trial Conference

•

Status Conference: Programming Orders, Tailored to Individual Action

•

Trial

•

General Procedure Claim issued

•

Service on defendant

Statements of Claim and Defence

•

Notice of Intention to Defend

•

Statement of Claim

•

Statement of Defence

•

Counterclaim

•

Response to Counterclaim

The current pleading requirements are that parties plead a series elements reflected in the layout of the current form (Statement of Claim rule 7, Defence rule 10) which asks the parties to insert in separate boxes:

•

Statement of Claim Counterclaim

•

Statement of Defence Counterclaim

•

Pre-Trial Conference - Programming Orders

•

Discovery

•

Listing Conference Memorandum with Witness Statements

•

Listing Conference

•

Trial

A common complaint from the profession is that these pleading requirements in the Magistrates Court are overly fussy and represent an unnecessary deviation from ordinary, well understood, pleading procedures in the superior courts. The amendments seek to redress this problem.

(a) a summary of the facts relevant to the claim; (b) the legal basis of the claim; (c) the basic contentions of the party; (d) the remedy or relief claimed; (e) if the amount of the claim has been reduced in order to bring the claim within the jurisdictional limit, a statement to that effect. The current form and procedures sharply separate the facts from the allegations. Practitioners and judicial officers struggled to distinguish between “legal basis” and “contentions”. The new rules utilise an open ended format leaving lawyers to plead their case in the conventional way. The pleadings are to contain:

(a) The materials facts relevant to the claim; (b) Any necessary particular of the claim; (c) Legal basis of the claim; There is also a directive that the pleading should not contain evidence. The court will provide some worked examples on the website to assist unrepresented parties dealing with general procedure claims. However, for the profession the form will be an upload, reducing processing time.

Counterclaims One of the chief complaints made about the existing system is that there is a requirement for a complete set of additional proceedings for counterclaims. A person who puts in a defence is required to lodge their counterclaim at the same time and then lodge a statement of claim in the counterclaim. The recipient then has to lodge a notice of intention to defend the counterclaim and a Statement of Defence to Counterclaim. This has resulted in unnecessary expense and pleadings. The new system mirrors the superior courts. A person wishing to plead a counterclaim need simply to complete the form for a defence and counterclaim. Three forms will therefore be combined into one. The fee charged for counterclaims will be imposed when this form is selected.

the amended pleading with a statutory declaration either by the party or their lawyer attesting to the bona fides of the amendment. Common experience has been that most amendments are genuinely the result of additional information being obtained by the party, usually after discovery. The amended rule replicates the position in the superior courts that a party can amend a pleading without leave up to the time of a hearing (explained below) - the Status Conference.

Discovery The timing of discovery has presented a problem for parties trying to resolve matters at the earliest stage. The amendment to the rules seeks to balance out the need for disclosure with the expense of providing formal discovery. Therefore, a party will be required to provide informal discovery fourteen days prior to the pre-trial conference. This will avoid the common complaint that a party produces a key document in support of the claim or defence at the pre-trial conference thereby requiring an adjournment. The option to seek formal discovery remains.

Importantly, the ability of a legal practitioner to swear the Affidavit of Discovery has been removed. The intent of allowing lawyers to verify the list on oath has always caused problems at trial, with cross examination focussing on the relationship of the party with their lawyer, rather than the failure of a party to produce relevant documents.

One new pleading procedure has been introduced.

Pre-Trial Conference

This ought not to constrain parties in their pleading but should prevent expensive repetition.

The inability of a party to plead a reply has from time to time resulted in parties not fully understanding the issues in dispute, with that confusion being passed to the judicial officer. The rules amendment adds the ability to plead a reply. It can be pleaded either as an individual document or as part of a defence and counterclaim. This allows the parties and the judicial officer presiding at trial, or even at a pre-trial conference, to understand the entirety of the case.

Amendment to Pleadings The current Rule 41D requires a party to apply to amend their case statements and then, once leave is given, to lodge

Except for the early informal discovery, the actual path to the pre-trial conference remains unchanged. The pre-trial conference procedure also remains unchanged with the parties appearing before a registrar of the Court in an attempt to resolve the dispute.

Early pre-trial conference Previous amendments to the rules have toyed with the timing of the pretrial conference. Some practitioners complained that there were too many procedural steps leading up to the conference resulting in increased costs. Others felt that the approach of having matters proceed directly to a pre-trial conference before the exchange of pleadings meant that matters proceeded

to hearing prematurely. The new system does not alter the current method of parties pleading their cases before the pre-trial conference. However, it does introduce an option for the parties to agree to an early pre-trial conference. This is not an invitation to shortcut the procedures against the will of a party. Rather it is an invitation for practitioners who believe that their cases may be capable of resolution with the assistance of a Registrar or mediator and wish to engage in this process prior to spending a good deal more money. This option is only available where both parties consent.

Status Conference A substantive change is the introduction of the Status Conference procedure. Under the current system the parties are required to exchange their pleadings and then list the matter for a pre-trial conference. If the matter is not resolved at the conference the Registrar would ordinarily make programming orders for discovery and the listing conference memoranda, accompanied by witness statements. Once the parties have lodged their respective documents the matter is set down for a listing conference before a Magistrate. Not uncommonly, these hearings are adjourned for further programming orders. Expert evidence is often left to the last stage resulting in further delays. The problems with this procedure from a case management perspective is the tendency of the timetable to be ignored. From the perspective of both the profession and the court there are other issues. The Listing Conference Memorandum document is frequently unhelpful as the parties are ordered to lodge it and the witness statements on the same date. The court then sends each party the other partyâ&#x20AC;&#x2122;s documents. Often the stories do not â&#x20AC;&#x153;matchâ&#x20AC;? on key issues in dispute resulting in amendments to statements. Frequently the issues identified by one party in the memoranda are entirely different from those raised by the other party. That procedure is now substantially altered. There will no longer be listing conference memoranda or listing conferences. Under the new procedure if the matter does not resolve at the conference then it will be set down for a status conference

before a Magistrate. The date of the status conference will be approximately three weeks from the pre-trial conference. Parties are expected to prepare for the status conference and also confer with their opponent to discuss the programming of the matter towards trial. The status conference is likely to be before the trial Magistrate. The purpose of the status conference is to tailor the programming orders to the particular case hence the need for the active engagement of practitioners. For example, a motor vehicle damage claim with only a few witnesses might benefit from listing for an immediate trial with only limited programming orders. One such order may be for the parties to lodge an agreed bundle of documents. On the other hand, a complicated contractual dispute might benefit from a more structured approach. One such approach may be for: •

the parties to confer and produce a paginated bundle of documents;

•

the claimant to lodge and serve witness statements referencing that bundle;

•

the defendant to lodge and serve responsive witness statements;

•

the claimant to lodge and serve any statements in reply.

The powers given to the Magistrate under the amended rule are purposely wideranging to allow for a tailored approach to the action. Although the new approach provides a more active involvement of the court in the trial preparation process it is to be hoped that the end result will be more streamlined cases. The orders that a Magistrate may make at a Status Conference are wide ranging and may include: 1. Amendments to pleadings; 2. Witness statements (whether concurrent or staggered); 3. Further and better particulars of the case statements; 4. Discovery on oath; 5. Interrogatories; 6. That the parties engage in mediation either privately or through another Magistrate; 7. Adjournment of the Status Conference to a further Status Conference; 8. Bundles of documents in paginated form whether separately or jointly; 9. Listing for trial; 10. Any other orders to progress the case towards trial. 16 | BRIEF JUNE 2020

In more complicated cases the court actively promotes mediation. The use of Magistrate assisted mediation in more recent times has saved the court significant trial time and the parties’ significant expense.

Applications The current application system creates problems for both the court and practitioners. Applications are frequently brought without conferring with the other party, resulting in the only dispute being about costs. Further, practitioners frequently failed to observe the requirement to lodge a Form 24 Response to Application identifying the reasons why the application is opposed. On the return date for the application the parties’ dispute whether it can be heard there and then and matters which could have been disposed of in a short period of time are often adjourned to a special appointment. Alternately, the Magistrate may have a busy list and be unable to hear a matter which will take 20-30 minutes to hear. The net result is significant delays and expense for the parties. The new system firstly introduces a requirement to confer. The party making the application will be required to certify that they have conferred with their opponent before bringing the application. Conferral has the meaning given to it RSC O 59 r 9 and as expressed in the judgment of Martin CJ in Youlden Enterprises Pty Ltd v Health Solutions (WA) Pty Ltd [2006] WASC 161 at [3] [5]. If, having conferred, the party wishes to bring an application they can do so. The current procedure is that the court would assign a hearing date and provide that date to the party for service with the application. The new system alters this procedure. The party will now lodge their application and then receive sealed copies for service. Once served, the obligation falls on the respondent to the application to either consent to it or to lodge a form 24 and affidavit in reply. If, within 14 days, the respondent does neither then, upon receipt or proof of service, the court will process the application in chambers. If the application is capable of being determined on the available materials then it will be determined immediately. If the court is of the view that the matter should still be heard in open court then it will be assigned a date. If it is opposed then the hearing date will be assigned. The hearing date will be reasonably prompt but the parties will have a longer time to

argue the application. In other words it is anticipated that is the final hearing. A Magistrate will be consulted prior to the listing and may make orders to permit the hearing to proceed. For example, if the application was to set aside a default judgement and the party making the application had failed to deal with a core element, such as the merits of their defence, then the Magistrate may make an order for further affidavit material to be provided prior to the hearing rather than adjourning the first return date for this purpose. The net effect is hoped to be less unnecessary and expensive applications. For it to succeed requires practitioners to be direct with their clients as to the need to make or oppose applications.

Witness Summons Prior to Trial The amended rules entrench the right of a party to issue a summons for the production of documents prior to trial. In the past parties have been frustrated by the difficulty in issuing a witness summons due to the specific wording in the rules. 71. Witness summons, request for and issue and service of (1) If a party wants to require a person to give evidence or to produce evidentiary material at a trial the party must lodge a request for the Court to issue a witness summons. A particular instance is where a party wishes to obtain unredacted copies of documents previously obtained via the Freedom of Information Act. The new rules move the reference to “at a trial” to after “to give evidence” and make it explicit that requests for documents can be made at any stage. A party needs to lodge a Form 48 and the court will assign a return date of approximately 4 weeks to allow for service and compliance. Shorter return dates can be given upon request.

Further and Better Particulars The current rules give a party the ability to issue requests for answers to interrogatories but not to request further and better particulars. An ability to issue these requests has now been included in the rules. A party may now request particulars from another party. Compliance with the request is to be made within 14 days. In the event of a failure to comply (or where the purported compliance is, in the view of the requesting party, inadequate) the party

may apply to the court for an order. Hopefully practitioners will use this procedure sparingly.

Assessment of damages The current procedure provides that for liquidated claims up to $75,000 a party simply needs to lodge a Form 13 Default Judgment. For unliquidated claims under $5,000 the same system applies. For unliquidated claims between $5,000 and $10,000 a registrar can enter default judgment based on supporting materials. For matters above $10,000 the claimant is required to lodge and serve affidavits and the matter proceeds to a hearing in court before a magistrate. Critics of the current system ask why a party who has chosen not to dispute the claim, either as to liability and quantum, should be involved in the assessment of damages process when in liquidated claims no such requirements apply. The experience from the bench is that only a small proportion of matters listed for assessment actually result in challenges to the quantum. More commonly the hearings are adjourned because of the difficulty of obtaining affidavit material,

particularly in insurance cases. It also presents difficulties where, as in commercial tenancy matters, the claim might be partly debt and partly damages. The new system lifts the threshold on lodging a Form 13 only to $10,000. Above that figure and up to the jurisdictional limit the Registrar is empowered to assess damages based on supporting materials. There is no automatic requirement to produce affidavits, serve them on the other party or appear in court. There are safeguard is designed to prevent abuse. If, for example, the materials were deficient the registrar is empowered to request the party to supply further documents before assessing damages. Where the registrar experiences difficulty or there is something unusual about the case it can be referred to a Magistrate for directions or the listing of it in open court. This can be with or without a requirement to serve the other party. It is anticipated that listing assessment of damages hearings in open court will be a rarity.

Discontinuances The current rule 29 states:

29 . Party may discontinue claim (1) If a party wants to discontinue the whole or part of a claim made by the party, it must lodge a notice of discontinuance in the approved form. (2) The party must serve a copy of the notice of discontinuance on the other parties. It has been the common approach of Magistrates that a party against whom a Notice of Discontinuance has been lodged may apply to the court for an order for costs. However, such a right never appeared in the rules. The amended rules include a specific right of a party against whom a discontinuance to be lodged to make an application for costs.

Minor Case Claims Legal practitioners are generally not permitted to appear in Minor Case Claims, however, it is not uncommon that practitioners are requested to advise their clients on Minor Case Claims or assist in the preparation of documents. Therefore it is important to appreciate the changes in that jurisdiction.

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Why Amend the Minor Case Rules? The desire to amend the Minor Case rules came from a need to redress problems of an entirely different nature to those in the General Procedure. The Minor Case procedure required parties to exchange pleadings before attending a pre-trial conference. This added a level of procedural complication to a jurisdiction usually involving unsophisticated litigants. If not resolved at the pre-trial conference the matter was then programmed towards a trial. Parties to Minor Case Claims had no involvement with Magistrates until the day of the trial. By contrast in Minor Case Consumer/Trader claims parties were listed before a Magistrate at the earliest opportunity, allowing for an intensive early attempt at a negotiated settlement.

prompted to provide information when completing the document.

(i)

The information required to plead the Claim and Response to Claim are intended to be a clear but comprehensive guide to each party’s case.

(ii) The claim is settled by a Registrar;

It is still common that unsophisticated unrepresented litigants provide information which is lacking in clarity. To assist unrepresented litigants the Magistrates Court website will have worked examples of plain English pleadings for a variety of courses of action.

New System Under the new system parties will be brought to Court and required to mediate at an earlier stage. If necessary they will come to trial at an earlier stage. Hopefully the net result will be quicker access to justice and fewer matters going to trial.

Purpose of the Changes

•

The purpose of the changes to the Minor Case rules is therefore:

Minor Case Claim issued – with Description of Claim

•

Served on defendant

•

To remove the obligation to produce technical pleadings.

•

Notice of Intention to Defend – With Description of Defence

•

To accelerate the pace at which matters reach Court.

•

Status Conference – Pre-Trial Conference - Programming Orders

•

To bring claims to a Magistrate prior to trial.

•

Trial

Status Conference Current Procedures The current procedure requires the following steps to be undertaken prior to a pre-trial conference: •

Minor Case Claim issued

•

Served on defendant

•

Notice of Intention to Defend

•

Statement of Claim

•

Statement of Defence

•

Pre-Trial Conference – Programming Orders

The new system removes the Statement of Claim and Statement of Defence procedures. The Minor Case form is more detailed than the existing form, as is the Response to Claim. Whilst this may place greater obligations on a party commencing the claim to provide information and, correspondingly, a greater requirement on a defendant to put forward their own information it will still be less time consuming than following the current pleading requirements. Further, the forms used for the Minor Case Claim and the Response to Claim are rendered forms meaning that, when completed online, parties will be

18 | BRIEF JUNE 2020

Once the defendant has lodged their Response to Claim the matter will be set down for a Status Conference. This will be held before a Magistrate in open court. The Status Conference will operate very much like the current Listing Conferences in Consumer Trader Claims. The parties will appear before a Magistrate who can deal with the matter themselves or stand the matter down for a pre-trial conference before a Registrar. In some instances it may be appropriate if the matter does not settle for the parties to return before the Magistrate that same morning for directions. The aim with the introduction of the Status Conference is to assist the parties in reaching a negotiated settlement and otherwise to hone in on the legal and factual issues. Sometimes the most important task of a judicial officer when dealing with Minor Case Claims is to get the parties to concentrate on the key issues and put aside the extraneous matters which can be foremost in their thinking. In practical terms the most likely result of the Status Conference will be:

The claim is settled by the Magistrate;

(iii) Settlement does not occur and it is programmed for trial; (iv) Negotiation is premature and the matter is programmed for a further Status Conference.

Representation by Subrogated Insurers In Minor Case Claims a subrogated insurer will be able to send their claims or recoveries officer to the pre-trial conference in place of their insured provided that they have authority in writing to do so.

Both Jurisdictions Generally the changes to one procedure have not flowed into the other. However, there are two mirrored changes.

Applications to Set Aside Default Judgment In both of the General Procedure rules and Minor Case rules, (Rule 87 and Rule 42), the 21-day limit for making applications after the judgment has been modified by the inclusion of the words, “or by such other date as the court allows”. The purpose of this amendment is to make clearer the Magistrate’s discretion to allow a judgment to be set aside notwithstanding that 21 days has expired. This reflects the common problem that parties often make their applications for default judgment when they are visited by the Bailiff which is often some months after the entry of judgment. Nothing prevents a party from arguing delay in making the application as one factor in exercising the discretion of whether or not to set aside the default judgment.

Partial Admissions A requirement has been added for parties in both jurisdictions to outline the basis of their admissions of part of a claim. The response to claim documentation currently permits a party to insert a figure which they admit as part of the claim. However, it is often unclear to the claimant how that amount has been calculated. Both jurisdictions will now have a requirement to outline in brief the basis of that offer to allow the claimant to better consider that offer.

Law Week 2020

This year presented an opportunity to showcase Law Week in a different format with events being streamed online providing accessible engagement to a much wider audience. Highlights of the Week Highlights of the week included the annual Law Access Walk for Justice which successfully became a virtual meeting place of individuals, teams, workplaces, family members and enthusiastic pets, all participating in their own fun way around the State and beyond. The explosion of social media posts and photographs were testimony to people’s delight at being able to come together safely with the uniting purpose of raising funds for prob bono legal services via Law Access, a wholly-owned subsidiary of the Law Society of Western Australia. Nearly 500 people registered, however, the addition of supportive family members and friends tagging along meant that participation may have surpassed that of last year. The Law Access Virtual Walk for Justice raised a record $96,271 which includes a generous donation of $50,000 from the McCusker Charitable Foundation.

News and live streamed by Business News. This was a wonderful opportunity to hear from leaders in their areas on issues such as the new Pro Bono Model in Western Australia, the effect of COVID-19 on legal processes, mental health, domestic violence, tenancy, and the importance of justice reinvestment. A distinguished panel comprised of the Hon Peter Quinlan, Chief Justice of Western Australia, Nicholas van Hattem, President of the Law Society of Western Australia, Clare Mould, Senior Associate and Pro Bono Coordinator Corrs Chambers Westgarth Perth; Corina Martin, CEO, Aboriginal Family Law Services; Sharryn Jackson, Executive Director, Community Legal WA; and Shayla Strapps, CEO Mental Health Law Centre all provided us with an hour of stimulating discussion, opinion and insights into the role of the law in our community and the importance of access to justice in 2020.

Community Events Community events included Curtin Law School Clinics Showcase which ran two sessions on Tuesday, 19 May. The Curtin Law School Clinics offer access to justice for vulnerable members of our community and through the supervised work of Clinic students, clients receive pro bono advice and assistance with legal and tax issues. The sessions included

students from the John Curtin Law Clinic and Curtin Tax Clinic together with Rosaline Tan, Principal Lawyer, Annette Morgan, Director and Donovan Castelyn, Clinic Supervisor. The Corruption and Crime Commission were pleased to make available their recording from 2019 Law Week on a Mock Examination. Viewers could see first-hand what a Commission examination may involve and the internal workings of the procedures. Law Week activities ended with a focus on regional practitioners who, more than most, understand the isolating impact of distance that can make it more difficult to get together in any one region as a profession. The RRR day is a Law Society annual event during Law Week where regional practitioners usually come to Perth to share collegiality and support, and to learn from each other through tailored Continuing Professional Development. Zoom to the rescue once again ensuring the ‘show still went on’. The free event, sponsored by legalsuper for Country members of the Law Society had over 55 participants from all around the State from the Pilbara through to Esperance. Congrats to Dylan Parker from Mount Barker Legal who won the Law Week giveaway, a signed copy of Bryan Stevenson’s book Just Mercy.

Access to Justice Online Forum Another successful event attracting an audience of more than 250 was the Law Society’s Access to Justice in 2020 online forum hosted by Mark Beyer from Business

Does China Have the Constitutional Power to Enact and Impose Security Laws on Hong Kong By Chris Edmonds Retired barrister, Perth, former Crown Counsel, Hong Kong An outsider’s view of the basic law

Abstract Within sections of the Hong Kong community, and in several Western countries (the US, Canada, the UK, Australia, New Zealand) and Asian countries (Japan, Taiwan), there is considerable opposition to China’s proposed ‘national security laws’ which are to be applied to Hong Kong. The basis for this opposition is that such laws will breach China’s undertakings as to Hong Kong’s ‘autonomy’ and undermine the agreement reached between China and Britain based on the ‘one country two systems’ principle under which Hong Kong presently operates. These generalisations do not provide any detail as to why it is claimed China’s laws will breach these agreements. That is, they do not address the threshold question whether under the legislation (of China) reflecting such agreements, China has the constitutional power to enact and impose on Hong Kong its proposed national security laws. This article outlines the general provisions of that

20 | BRIEF JUNE 2020

legislation and examines those provisions directly relevant to China’s powers in this respect. The conclusion reached, if the matter were decided by a court in the common law tradition, is that China does not have such power. However, as will be shown, the issue is not what is the correct legal position according to common law principles, but based upon its interpretation of this legislation, the position that China takes as to its legal powers under it.

Background Recent announcements on behalf of the National People’s Congress (‘the NPC’), which is ‘the highest state organ of power’ and exercises the legislative power of the People’s Republic of China, have made clear it regards The Central People’s Government (‘the Government of China’) as having power to enact national security laws and apply these to Hong Kong. Further, that the NPC will go through the necessary legal formalities to achieve this. That China has the necessary power to

do so appears also to be the view of the Government of Hong Kong.1 ‘The Basic Law of The Hong Kong Special Administrative Region of The People’s Republic of China’2 (‘Basic Law’) was enacted by the NPC following the Joint Declaration on the Question of Hong Kong (‘Joint Declaration’) signed 19 December 1984 by the Government of China and the British Government (entered into force 27 May 1985). This set out the terms for the passing of the sovereignty of Hong Kong from Britain to China to take effect after 1 July 1997 (the date for expiry of Britain’s lease of the New Territories). The Basic Law now serves as Hong Kong’s constitution. The Joint Declaration recognises that the Basic Law is to be enacted by China in accordance with the Constitution of the People’s Republic of China (‘China’s Constitution’), which (art 31) allows for the creation of Special Administrative Regions the ‘systems’ of which are to be regulated by laws enacted by the NPC.3 General provisions of the Basic Law,

Hong Kong City

reflecting the Joint Declaration, include the following. Article 2 provides that Hong Kong is ‘to exercise a high degree of autonomy and enjoy executive, legislative and independent judicial power, including that of final adjudication, in accordance with the provisions of this Law.’ Article 5 provides that ‘the socialist systems and policies shall not be practised in Hong Kong, and the previous capitalist system and way of life shall remain unchanged for 50 years.’ By art 8 and art 160, the laws previously in force in Hong Kong, including the common law, rules of equity and ordinances shall continue, except for any laws that the NPC declares to contravene the Basic Law (as to which see Instrument 17). The Government of China is responsible for Hong Kong’s foreign affairs (art 13) and defence (art 14) (as Britain previously was), but Hong Kong is responsible for the maintenance of public order (art 14). Under Article 45, the method for the selection of the Chief Executive is to be specified (see Annex 1) but ‘the ultimate aim is the selection … by universal suffrage upon nomination

by a broadly representative nominating committee in accordance with democratic procedures’ (art 45)4. However, the Government of China retains the power to appoint both the Chief Executive and the principal officials of the executive authorities of Hong Kong (art 15, art 45). Hong Kong residents are given rights of ‘freedom of speech, of the press and publication; freedom of association, of procession and of demonstration’ (art 27) and freedom of the person (art 28). Further, they shall not be ‘subjected to arbitrary or unlawful arrest, detention or imprisonment’ (art 28). Hong Kong residents also continue to enjoy other human rights as reflected in international conventions adopted in local legislation in Hong Kong (eg the International Covenant on Civil and Political Rights) (art 39).5 The Standing Committee of the NPC (‘the Standing Committee’)6 is the responsible authority for interpreting the Basic Law (art 158). Article 158 does not stipulate what law governs such interpretation and in that circumstance, given the

Basic Law is a law of China, it must necessarily be the law of China (as the Hong Kong courts have held).7 Under the Constitution of China, it is the NPC, rather than the Supreme People’s Court, which interprets its laws. The Standing Committee has given a number of such ‘Interpretations’. However, the Standing Committee authorises the Hong Kong courts to interpret ‘on their own, in adjudicating cases, the provisions of this Law which are within the limits of the autonomy of the Region.’ The courts will do so based on Hong Kong law (including where applicable the Interpretation and General Clauses Ordinance (Hong Kong) cap 1.8 With respect to provisions which are the responsibility of the Government of China, a final court in Hong Kong must seek an interpretation from the Standing Committee (art 158). It appears that it is for this final court to determine whether it has jurisdiction to interpret the relevant provision of the Basic Law or whether it must refer it to the Standing Committee. However, that decision may in effect be overridden (prospectively)

by an Interpretation of the Standing Committee. And the Standing Committee may make an Interpretation of the Basic Law, irrespective of whether the relevant provision has been referred by the court to the Standing Committee.9 The NPC also has power to amend the Basic Law but not in a manner which will ‘contravene the basic policies of the People’s Republic of China regarding Hong Kong’ (art 159.) Those basic policies are those initially set out Annex I of the Joint Declaration and again in the ‘Explanations on the Basic Law of the Hong Kong Special Administrative Region of the People’s Republic of China (Draft)’ (Instrument 9.) Before the NPC considers any such amendment, the 'Committee for the Basic Law of the Hong Kong Special Administrative Region' (‘Basic Law Committee’), which includes representatives (of a specified class) from Hong Kong, is to submit its views. Whilst Hong Kong has legislative power, the Standing Committee may invalidate laws passed by the Hong Kong legislature which it considers are not in conformity with the Basic Law (art 17). And whilst the courts of Hong Kong have general jurisdiction, this does not extend to acts of state such as defence and foreign affairs (art 19.)

Application of the laws of China to Hong Kong Article 18 of the Basic Law provides that national laws (ie of China) do not apply in Hong Kong, except for those national laws listed in Annex III. However, the Standing Committee may, after consulting the Basic Law Committee and the Hong Kong Government, add to that list, but ‘confined to those [laws] relating to defence and foreign affairs as well as other matters outside the limits of the autonomy of Hong Kong as specified by this Law.’ Such national laws are applied locally by way of promulgation (ie declaration) or legislation (in each case) by Hong Kong. By way of an exception to this provision, if the Standing Committee decides that Hong Kong is in a state of emergency by reason of turmoil which endangers national unity or security and which is beyond the control of the Hong Kong Government, the Government of China may issue an order applying the relevant national laws ie by-passing the Hong Kong Government.

Laws for Public Security Article 23 of the Basic Law provides that Hong Kong must enact laws ‘on its own’ relevantly to prohibit any act of ‘treason, secession, sedition, subversion’ 22 | BRIEF JUNE 2020

against the Government of China (‘the art 23 security laws’). To date the Hong Kong legislature has been unable to pass the art 23 security laws because of the resistance of its residents to such proposed laws, most notably in the street protests in 2003.

China Intervenes That failure, and further street protests in Hong Kong last year against proposed legislation allowing extradition of Hong Kong residents to China and (in the latter stages of the demonstrations) for greater democracy, has now prompted the Government of China to act. The NPC has recently approved the Standing Committee’s draft ‘Decision of the National People’s Congress on Establishing and Completing the Hong Kong’s Special Administrative Region’s Legal System and Implementation Mechanisms for the Preservation of National Security’ (‘the NPC Decision’)10 The NPC Decision requires that the Hong Kong legislature pass the art 23 security laws as soon as possible and for the Hong Kong authorities to enforce them. But it also authorises the Standing Committee to draft and enact laws ‘to effectively prevent, stop, and punish any conduct or activities that seriously endanger national security, such as separatism, subversion of state power, or organising or carrying out terrorist activities ...’ (‘national security laws’). The national security laws are to be listed in Annex III of the Basic Law and be promulgated and implemented locally by Hong Kong.11 Further, whilst directing Hong Kong to set up organisations to maintain national security etc, it also authorises organisations within the Government of China responsible for national security to set up organisations in Hong Kong to do so. Although the national security laws have not yet been drafted (or at least published), it is important to recognise the scope of the NPC Decision. That includes that (1) the Hong Kong Government is in effect directed to enact and enforce the art 23 security laws; (2) the NPC will itself enact what it considers are appropriate national security laws for Hong Kong, including in relation to the enforcement of such laws and (3) the Government of China will set up organisations in Hong Kong for the preservation of national security. It appears the national security laws are not intended to operate nationally (ie in mainland China)12 and are not conditional on Hong Kong itself failing to enact the art 23 security laws. The apparent intention is that Hong Kong

will, or may, have two sets of security laws enforced by both local and mainland organisations.

Power to make security laws for Hong Kong On a conventional reading of the Basic Law, it seems clear enough that China does not have the constitutional power to enact and apply the national security laws to Hong Kong in the manner it proposes. Article 23, particularly when read with art 14 (which distinguishes between defence and public order), makes clear that the Hong Kong legislature ‘on its own’ has the power (‘autonomy’), (and the obligation), to pass the art 23 security laws. Such laws are not, in a conventional sense, in the realm of defence or foreign affairs. That is, ‘defence’ in this context does not encompass dealing with civil unrest, and in the context of ‘one country’, the notion of ‘foreign affairs’ would more naturally be related to relations with other countries. Moreover, the fact that under the Basic Law the Hong Kong legislature has been authorised to enact the art 23 security laws is a powerful argument that they are not relevantly to be regarded as comprised within ‘defence or foreign affairs.’ That under the NPC Decision, the NPC has directed the Hong Kong legislature to enact the art 23 security laws is a tacit recognition by China of this position. The circumstances that the art 23 security laws are in part for the benefit of China and that the Hong Kong administration has not to date been able to pass these laws, creates an issue to be resolved between Hong Kong and China consistent with the Basic Law and (perhaps) the Joint Declaration. But it does not create a default position that China may enact national security laws in Hong Kong (leaving aside the question of consultation with the Basic Law Committee and the Hong Kong Government under art 18). Even were China to decide that Hong Kong is in a state of emergency (for the purposes of art 18), that decision would only authorise it to apply the relevant national laws in default of Hong Kong doing so – it does not widen the power to make such laws effectively on behalf of Hong Kong. (It is recognised that were the NPC to determine to amend the Basic Law to give the Government of China the power to make and enforce the art 23 security laws or some wider set of laws, it would have power to do so, provided the amendments were consistent with the ‘basic policies’ reflected in the Joint Declaration, and the formalities were observed.)

Moreover, as indicated, articles 27, 28 and 39 protect the human rights (including freedom of expression and freedom of assembly) of Hong Kong residents. Although the details of the proposed national security laws have not yet been formulated, it may well be that such provisions will offend such rights. It is the duty of the Government of Hong Kong to ‘safeguard the rights and freedoms of the residents … in accordance with law’ (art 4, Basic Law).

Power to Interpret the Basic Law So much gives those protesting China’s latest actions some legal foundation for their opposition. But under the Basic Law it is the NPC which has the power to interpret the Basic Law including, it would argue, whether or not the relevant provisions concerning security laws are within the autonomy, or exclusive autonomy, of Hong Kong. In undertaking this power of interpretation, the NPC would apply China’s, not Hong Kong’s, legal rules and principles and would likely be heavily influenced by political considerations and directions.13 Moreover, were a judicial decision of a Hong Kong (or a British) court or an advisory opinion of some international body (eg the International Court of Justice) to find that it is Hong Kong alone which has the power to pass the art 23 security laws, there is no mechanism under the Basic Law, or the Joint Declaration,14 or at international law, to enforce China’s compliance with such decision. The NPC is also the authority with the power to amend the Basic Law, again under its own interpretation of that law.

People’s Republic of China are equal before the law’ and that ‘The state shall respect and protect human rights’ (art 33), including ‘freedom of speech, the press, assembly procession and demonstration’ (art 35).15

This Ordinance contains statutory provisions common in countries (eg Australia) whose law is derived from English law. The Ordinance expressly excludes its application to the Basic Law.

Director of Immigration v Chong Fung Yuen [2001] HKCFA 48. The principles governing interpretation of the Basic Law are summarised (at first instance) in Leung Kwok Hung v Secretary for Transport and Housing [2018] HKCFI 2657

Note: Since preparing the initial draft of this note I have read the ‘Statement of Hong Kong Bar Association on proposal of National People’s Congress to enact National Security Law in Hong Kong’ dated 25 May 2020 (referred to in the Wikipedia article). This adopts some similar lines of reasoning as to why China does not on a conventional interpretation of the Basic Law have the necessary authority to enact and apply the national security laws. In addition, the Statement questions the proposed creation of Chinese security organisations operating in Hong Kong as in conflict with art 22 of the Basic Law. This article precludes interference with ‘the affairs which [Hong Kong] administers on its own in accordance with this Law.’

This summary of the NPC Decision is based on materials referenced in: Wikipedia contributors. “National People’s Congress Decision on Hong Kong national security legislation.” Wikipedia, The Free Encyclopedia. Wikipedia, The Free Encyclopedia, 30 May. 2020. Web. 31 May. 2020 (‘the Wikipedia article’). The Wikipedia article provides a link to the NPC Decision and which is available in an (unofficial) English translation under the service ‘China Law Translate’.

That presumably includes that the Hong Kong courts would have jurisdiction with respect to those laws.

Cf ‘Law of the People’s Republic of China on the Garrisoning of the Hong Kong Special Administrative Region’ (referred to in Instrument 5) which is also confined to Hong Kong.

An analysis of the NPC ‘Interpretations’ of provisions of the Basic Law given to date is beyond the scope of this article. Such Interpretations, which are set out in Instruments attached to the Basic Law booklet here referred to, do appear to engage with the formal requirements of the Basic Law and the issues raised. But some have been contentious. Reference has been made to the Standing Committee decision on the election of the Chief Executive (Instrument 24). In 2016, several elected members of the Legislative Council used the oath taking ceremony to demonstrate opposition to China. The Government brought proceedings for judicial review, seeking their disqualification. Whilst this matter was still before the court, the Standing Committee gave an interpretation (Instrument 26) of art 104 directed at the effect of a variance from the prescribed format for the oath. The article is silent as to that issue, although a local law did deal with it. The ruling read into the article that the consequence of an elected member departing from the wording of the oath or taking an oath that was not ‘sincere’ or ‘solemn’ was that they were disqualified and that no re-taking of the oath was permitted. This Interpretation was acted upon by the Hong Kong court hearing the matter and declarations were made disqualifying the elected members. The decision was upheld on appeal. The decision in Yau Wai Ching v Chief Executive of the Hong Kong Special Administrative Region, Secretary for Justice [2017] HKCFA 54, referred to above, rejected an application for leave to appeal to the Final Court of Appeal from that decision.

For some years now China has said that since the handover in 1997, the Joint Declaration is merely an historical document no longer having effect.

There is a sense that those currently protesting in Hong Kong, particularly the young, are in effect protesting against the future re-integration of Hong Kong with China and the loss of their (remaining) human rights. However, it seems inevitable, under its current regime, that China will progressively seek to bring Hong Kong under ‘one system’ and will complete what remains of that process in 2047. The outcome of such protests therefore, to the extent they are in anticipation of this event, seem as doomed as the hopes and aspirations of those Chinese protestors facing the tanks in Tiananmen Square. The best hope for these Hong Kong demonstrators may lie in those countries presently remonstrating against China’s actions, offering citizenship to Hong Kong residents.

Endnotes 1

Press Release by the Department of Justice ‘Response to concerns over national security law’ dated 25 May 2020. As explained below, the Government of Hong Kong is not democratically elected, and is largely controlled by China.

The version of the Basic Law referred to is the (unofficial) English translation published in a booklet by the Hong Kong Government, May 2020 edition. (Available online.) This includes the 3 Annexes (part of the Basic Law) and various Instruments including Interpretations, Explanations and Decisions of the NPC applicable to the Basic Law. The booklet also includes the Constitution of China.

Article 5 of China’s Constitution provides relevantly that ‘no law shall be in conflict with the Constitution’. Whether the proposed national security laws would contravene the Chinese Constitution as inconsistent with the Basic Law or in conflict with constitutional provisions for the protection of its citizens’ human rights (mentioned below) are issues not likely to be raised within China.

In 2014 Hong Kong residents seeking an election on this basis were thwarted by the Standing Committee decision on ‘Issues Relating to the Selection of the Chief Executive of the Hong Kong Special Administrative Region by Universal Suffrage and on the Method for Forming the Legislative Council of the Hong Kong Special Administrative Region in the Year 2016’ (Instrument 24, Instrument 25). By this decision a candidate for Chief Executive was required to be a person who ‘loves the country and loves Hong Kong’, candidates were limited to 2-3 people put forward by the election committee each of whom must have the endorsement of more than half of its members and the power of appointment (and therefore determination of whether the Chief Executive elect ‘loved the country’), remained with the Government of China. This led to the pro-democracy demonstrations in 2014 known as the ‘Umbrella Revolution’. Those seeking greater freedom in Hong Kong’s elections also joined the 2019 street protests.

These rights seem to have come under challenge given the arrests in April 2020 of Martin Lee (the founder of the Democratic Party) and others for organising and joining ‘unlawful’ protests in 2019.

The NPC generally meets only annually including to formally approve recommendations by the Standing Committee. The day to day work is undertaken by its committees, principally the permanent Standing Committee.

Yau Wai Ching v Chief Executive of the Hong Kong Special Administrative Region, Secretary for Justice [2017] HKCFA 54 following Director of Immigration v Zhuang Fengyuan [2001] HKCFA 48. These cases note that the powers of the Standing Committee include interpreting the law (art 67 of the Constitution of China) and such interpretation can ‘clarify or supplement’ laws.

Outcome To this point, the Standing Committee has not indicated it is even proposing to give a formal interpretation of art 23, much less to amend it. It is proceeding on the assumption that it has the necessary power to pass the national security laws and to set up the national enforcement agencies. In this respect it is relevant to observe that the ruling elite in China regularly ignore the provisions of The Constitution of the People’s Republic of China in the governance of their own citizens. For example, those provisions that provide that ‘The People’s Republic of China shall practice law-based governance and build a socialist state under the rule of law’ (art 5); that ‘discrimination against and oppression of any ethnic group are prohibited’ (art 4); that ‘All citizens of the

A Matter of Trust

Death and Digital Decisions By Sarah Walton, TEP ANZ Wealth Legal Services Treasurer, STEP WA

The way we think, plan, communicate, invest and store details relating to our lives is changing fast. Generations Z and Alpha have grown up fully immersed in technology. Many people work in paperless offices. We also have the new norm of “social distancing” imposed in response to the Covid-19 pandemic, where video conference meetings have become regular occurrences. Interwoven with these changes in society is the largest intergeneration wealth transfer the world has known. As significant amounts of money change hands and people become used to making more decisions digitally, what does this mean for modern day estate planning? When taking a client’s Will instructions, practitioners are obligated to ensure that a client has the requisite capacity to give instructions, as set out in Banks v Goodfellow1. That is, we must ensure that the client:

•

understands the extent of the property of which he or she is disposing;

•

is able to comprehend the moral claims to which he or she should be able to give effect; and

•

understands the nature of the act and its effect;

24 | BRIEF JUNE 2020

be under no delusion of the mind.

It is generally understood that a Will

draftsperson should not draft a Will for a client whom he or she has not seen2. However, in the current pandemic environment, many elderly and vulnerable clients are understandably not keen to meet in person. How does a practitioner balance the ethical obligation of protecting the client’s health and safety whilst fulfilling their legal obligation to take proper instructions and ensure that the client is not under any undue influences? A practitioner has a fundamental obligation to act in the best interests of the client. However, it is important to remember that a practitioner’s duty to the Court and the administration of justice is paramount and prevails to the extent of an inconsistency over any other duty, including the duty to the client3. When preparing a Will for a client, particularly an elderly vulnerable client, it is important to exclude third parties (especially those with an interest) during

the taking of instructions and execution of the Will unless there is an adequate reason otherwise4. During this difficult time, it is vital to remember that fraud, undue influence and a lack of knowledge or approval can all lead to a partial or invalid Will.

•

Can gloves be worn or hand sanitisers used before and after the meeting?

•

When signing a Will have 3 or 4 of the same type and colour pens so that people do not have to share pens. This also makes it a much more efficient signing process if ancillary documents such as an enduring power of attorney and enduring powers of guardianship are being signed.

•

If witnesses can be located, meet with your client outside ensuring the 2-metre distance. In the last few weeks’ some of my colleagues have told of car bonnet document signings.

Taking instructions by video Video meetings (using a secure channel) which require a scan of the room may be an alternative, although not an ideal suggestion to ensure the client is speaking freely and to enable the practitioner to pick up visual cues. You may also record the meeting subject to the client’s permission. However, a number of issues arise when taking instruction via video conference, such as: •

The clarity of communication may not be good quality as words may drop off.

•

You ideally should be able to see the client well enough to recognise and assess body language and facial expressions.

•

You need to be sure that there is no one else present in the room and that the client is able to talk freely.

•

Good file notes should be taken to ensure the clarity of discussion, duration, content and instructions are documented.

•

Advice should be confirmed in writing. This is fundamental to good practice, but even more important in the current environment.

If a client is able and willing to meet in person, there are a number of practical steps that may be taken so that the meeting or Will signing is a pleasant and stress free experience for everyone. •

Can the meeting be done from behind glass or across the room or outside?

If you are unable to see the client to witness the documents, you should still have a video conference to explain the contents and how to go about signing the Will. Clear written instructions should then be sent as to the client as to how the documents may be executed. Many clients are currently having problems getting witnesses to witness the Will. I recently assisted clients who live overseas and as a result of a hectic travel schedule had not had an opportunity to sign their Wills. When they found themselves suddenly in lock down, having their Wills witnessed became very problematic and apparently a standing joke between the pair. In such times, when we have to make big decisions quickly, is it preferable to have a Will signed informally with the intention of signing the Will formally when we have an opportunity?

Informal Will requirements As most practitioners know, to be a formal and valid Will, the Will must be made in accordance with section 8 of the Wills Act 1970 (WA) (“the Act”) – that is, it should have been made in writing and signed

by the Will maker (or at their direction) and witnessed in the presence of two independent witnesses. However, Part X of the Act provides that a document (document having a wide definition as set out in section 32 including but not limited to maps, images or writing) purporting to embody the testamentary intentions of a deceased person is a Will of that person, notwithstanding that it has not been executed in accordance with section 8, if the Supreme Court is satisfied that the deceased had intended the document to constitute his or her Will. In Hatsatouris v Hatsatouris5 (which considered the equivalent New South Wales legislation), Powell JA summarised that there are three questions of fact that arise with informal Wills: 1. Was there a document? 2. Does the document purport to embody the testamentary wishes of the deceased? 3. Did the evidence satisfy the Court that the deceased by some words or act, demonstrated that it was his or her then intention that the subject document should without more on her or his part operate as their Will? It is therefore not enough that the document simply sets out the testamentary intentions. When a person is seeking to propound an informal Will it is vital that they provide evidence that the deceased intended the document to be legally operative as his or her Will. The deceased, either when the document was created or a later time, should by words or actions, have demonstrated that the document, without further input on his or her behalf, was to operate as his or her Will. Thus it is not sufficient for a draft Will, which as practitioners know may be subject to changes, to constitute a Will6 or for individuals to seek to rely on notes of instruction7.

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With informal Wills it is of utmost important not to focus on the form of the document, but rather the evidence that the deceased envisioned the document to constitute their final Will. There is no guarantee that an informal Will will be proved. Each case turns on a careful examination of the facts and evidence provided. A validly executed Will should always be the desired objective to eliminate such risks.

In order to administer an estate, an executor must know that an asset exists and how to access or take control of the asset. This information can be passed on in several ways. For example, some people write down a list of assets and codes and store the information in a safe place like a safety deposit box. Others back up their information using a digital wallet, digital vault or password management system.

As people become more dependent on technology and the availability to meet with a lawyer in person reduces, the risk of more informal Wills surfacing becomes heightened. Technological advancements have given us many and varied ways of recording our wishes, and therefore the types of documents submitted to Probate have also become more varied. One example is the Supreme Court of Queensland case of Radford v White8 which involved a video recording of testamentary intentions. The deceased was asked by his partner to make a Will before he rode his new motorbike. The deceased recorded a video outlining his testamentary wishes as in his own words he was “too lazy to make a Will”. The deceased crashed his bike later that day and suffered from serious head injuries. He died just over a year later.

It is important to remember that not all assets are necessarily owned in a way that is easy to trace. The anonymity surrounding cryptocurrencies and the difficulty in accessing these assets without the required encrypted codes and digital wallets can mean the asset may not be accessible and therefore potentially lost to the estate. One example is the Irish drug dealer Clifton Collins, who reportedly lost the access codes to digital wallets worth an estimated €54 million, which he had hidden in a fishing rod case9. If the living can’t remember their own access codes, what can we expect from the executor?

The deceased was survived by his partner and a baby (born after the accident). An application to the Supreme Court was made by the partner, seeking clarification as to whether the video recording operated as a Will. The Court held that the video recording contained the deceased’s final testamentary intentions and was intended to operate as a Will. The Radford case was not a victory for technology. Not only were there questions regarding the construction of certain gifts, the deceased also failed to fully deal with all his estate and failed to appoint an executor which led to additional complications. The case resulted in significant delays and costs to the estate as well as distress for the parties.

Digital assets and crypto currency Pandemics and informal Wills aside, estate administration is also not immune to the challenges the digital world has created. Assets, the only record of which are held digitally, may make an estate administration more complicated if the executor is unaware of their existence. Historically a paper trail provided vital assistance to an executor to gain insight into the deceased’s financial affairs. However, in the modern paperless world, online statements are the norm for many investment and banking clients. 26 | BRIEF JUNE 2020

A practical way of assisting clients to protect access to crypto assets may be to suggest a minimum number of digital signature transactions (referred to as a Multi Sig) where a number of people are designated as signatories or key holders. For example, if you provide Bitcoin with 5 digital keys, Bitcoin may require a minimum of 3 to process the transaction. When advising clients in relation to their estate planning, the intended key holders may include the intended beneficiary, executor and nominated professional such as a lawyer or accountant. We are also holding more of our memories such as photos and music digitally. Clients should be advised that the relationship between users and service providers is generally governed by the individual terms of service agreement which may impose limitations on a user’s ability to transfer digital assets. It is important to discuss with clients that these individual agreements will govern the digital asset and that they should be aware that their Will will not over rule these terms. Service providers operating under a terms of service agreement have created a parallel succession regime which is unique to each service provider. For instance, a client may submit a Facebook Memorialisation Request to nominate someone who is not an executor to be able to delete or memorialise the account. In contrast, the iTunes terms of agreement states that music downloaded is via a non-transferable licence, therefore

such assets cannot be passed on after death. The terms of iCloud also state that the account is non-transferable and that any rights to your Apple ID or content in the account terminate after death. Indeed, some service providers are particularly keen to uphold the deceased’s privacy and will not allow access to an account unless ordered by a Court; Yahoo is one such example. In contrast PayPal and YouTube allow the Legal Personal Representative to close the account. Clients should be made aware of these variances and advised to create backups of vital photos or documents as well as to provide details of their online existence to their executor.

Conclusion As practitioners it is our job to meet our clients at their point of need to help resolve their issues. Whilst changes in society mean we must be prepared to adapt how we advise and do business, we must always uphold our obligations to the Court and our clients to properly advise and protect our clients’ interests. During the circumstances imposed upon us during the Covid-19 pandemic, it may, in some cases, be a balancing act between what must be done now and what will need to followed up when the pandemic has passed. The development of digital technology has already resulted in testamentary intentions in digital form being admitted to probate. Additionally, many assets are recorded digitally, or in themselves have no physical form but mere digital encryption. Pity the poor executor who has the task of proving not only a digital Will, but also administering the digital estate. Endnotes 1 2 3 4 5 6 7 8 9

Banks v Goodfellow (1870) LR 5 QB 549. Estate of Tucker [1962] SARS 99. Rule 5 Professional Conduct Rules 2010 (WA). LPCC v Wells [2014] WASAT 112. Hatsatouris v Hatsatouris [2001] NSWC 408 para 56. As per Young CJ in Macey v Finch [2002] NSWSC 933 para 23. In the Estate of Masters (Deceased) 33 NSWLR 446. Radford v White [2018] QSC 306. Cuthbertson, A. (2020) “Drug Dealer loses £45m Bitcoin fortune after hiding codes in fishing rode case”, The Independent, 25 February 2020, Available at https://www.independent.co.uk/life-style/gadgets-andtech/news/bitcoin-wallet-lost-cryptocurrency-crimeireland-a9355691.html accessed at 10/04/2020.

STEP (The Society of Trust and Estate Practitioners) is a worldwide professional association for lawyers, accountants and other advisers who help families plan their assets across generations. STEP promotes high professional standards by educating professionals, connecting advisers and families globally, informing public policy and acting in the public interest.

Make it Memorable: The 2-5-3 method of pricing Pricing should not be rocket science for law firms, but it is important to ensure that the fees paid are fair to the firm and fair to the client, writes Joel Barolsky. Pricing professional services can be a bit tricky. Price too high and you lose the client. Price too low and you leave money on the table. One of the main reasons for this complexity is that the perception of value is different for every client and for every matter. Each time you make a pricing decision, it needs to be tailored to the specifics of the client, the context and the cost of delivery. A one-sizefits-all approach to pricing is a recipe for profit disaster.

Keep it simple The 2-5-3 Method is a simple and memorable way to approach pricing every project. The ‘2’ relates to your primary objectives in setting price. The ‘5’ relates to the inputs or factors that should go into the pricing decision. And the ‘3’ relates to the three pricing decisions that you need to make; that is, price structure, price level and the pitch.

determining your margin and your BATNA, which stands for Best Alternative to a Negotiated Agreement. It is recommended to use a simple spreadsheet to scope and cost the project before you price it. • Client value – the client’s perceptions of the importance of the project to their business and their relative price sensitivity will have a material impact on whether you can charge more or less. To help you explore what your project or service is worth to your client, you may find Bain’s new 40 elements of client value framework particularly helpful. • Competition – pricing is likely to be quite different if the work is sole-sourced or, at the other extreme, your price will be compared to many other capable firms. • Capacity – most high-fixed-cost businesses like airlines and hotels use price as a key lever to optimise capacity utilisation. With large salary, rent and insurance bills, law firms should take a lesson or two from their corporate cousins. Offering large discounts when your team is doing 14-hour shifts is not the smartest way to do business.

Objectives

Factors

Decisions

• Client perceives good value and says yes • We make a acceptable profit

• • • • •

• Structure • Level • Pitch

Cost Client value Competition Capacity Connection

Two objectives Pricing a matter starts with being shockingly clear on your pricing objectives. In most instances, there are just two: [i] getting the client to perceive good value and say ‘yes’, and [ii] delivering an acceptable profit to your firm. Pricing is largely about finding the sweet spot where both your client and your CFO are happy. Undoubtedly, there will be times when your primary objectives will vary, such as winning an iconic brand-making project, getting on to a major client panel, buying share of wallet, positioning for future work, relationship building, or revenue (not profit) maximising, but these are more the exceptions or variations of the rule.

Five factors Once your objectives are clear, you need to start to gather data to inform your pricing decisions. In the spirit of keeping things memorable, I have labelled these the five Cs: • Cost – understanding the cost of selling and delivering the project is clearly important in

By Joel Barolsky Managing director of Barolsky Advisors, Senior Fellow of the University of Melbourne and creator of the Price High or Low smartphone app designed to help with pricing projects. Visit www.pricehighorlow.com for more details.

• Connection – Your pricing will clearly be different if the client is a one-off transactional buyer (ad-hoc relationship) versus a longterm partner relationship. Interestingly, there are different views on the level of discounting for partner relationship clients. One opinion is that you should offer your best deal to these clients as a loyalty dividend. Another perspective is that your fees should be higher to reflect the extra value you’re creating by knowing their business extremely well. You might find our new IOS pricing app helpful in setting the right price level for all fixed-fee projects. It’s an easy-to-use utility that takes all these 5C and other factors into account in setting the ‘right’ price.

Three decisions With clear objectives and the right data in hand, you’re then in the position to make some choices. Pricing usually encompasses three inter-related decisions: what price structure(s) should we offer; what price level should we set; and what’s the best way to pitch our offer.

In law and accounting firms, the most common pricing structure is still time-based hourly rates. Fixed fees, value pricing and retainers have been gaining in popularity in recent years. In consulting and engineering, project fees with variation clauses are most common. Investment bankers usually price with a percentage of transaction value contingency fee. An excellent reference article on different pricing structures can be found on the Patrick on Pricing website. In my view, there is no one perfect pricing structure. The structure chosen will usually be a function of, among other things, client preference, relative bargaining power, the nature and level of risk, the depth of relationship, the scope and benefit certainty and degrees of co-creation. Quite often you can augment your pitch by offering clients multiple pricing structure options. My recommendation is to become expert in three or four structures along the risk-sharing continuum. This way you can offer clients more choices and respond to different contingencies. Price level is the amount to be charged within the structure you’ve selected. So, if it’s hourly rates, then the level is ‘$350’ per hour; if it’s a fixed fee, then the level is ‘$8,500’. Pitching involves the strategies and tactics of communicating value and getting to ‘yes’. It includes the approach to presenting different pricing options, project staging, pitch presentation, and the approach to conversations about price and value. To illustrate the importance of price pitching, Qantas’ website usually presents its customers with three benefit-price options for every flight. Interestingly, the 8am flight from Melbourne to Sydney (in a recent price check) has one option that’s 598 per cent higher than another. These three options involve the same brand, same plane, same pilot, same airports, same flight duration, just a different level of amenity, status and flexibility. Qantas’ pitch is noteworthy for three reasons: • it optimises value capture; i.e. those seeking more benefits and/or are less price sensitive pay a lot more; • it ‘frames’ the economy option to look like an amazing deal; and • it discourages customers to shop around (if just one option was provided most customers would immediately jump on Virgin’s site to compare).

In conclusion So, lock the 2-5-3 method of pricing away in your brain. It’s not rocket science, but hopefully it will make sure your next project is priced fairly and profitably.

Section 159 of the Planning and Development Act 2005 (WA): Recovery of costs for shared roads By Julius Skinner Partner, Thomson Geer

INTRODUCTION On its face, it is a simple, logical and equitable proposition that if someone constructs or provides something that someone else later comes long and makes use of for their own benefit, that later person should contribute to costs incurred by the first person of constructing or providing that thing. Section 159 of the Planning and Development Act 2005 (WA) (PD Act) sets out to give effect to that proposition, by creating an entitlement on the part of an original subdivider to a contribution of one-half of the costs of having provided or upgraded a road, from a later subdivider of adjoining land, in particular circumstances. The entitlement, and the corresponding obligation, arise by operation of the section, and without the need for any notice or prior agreement (Starshore Pty Ltd v Kellas [2018] WADC 113 (Starshore) at [98] and [101]).

28 | BRIEF JUNE 2020

Unfortunately the simple, logical and equitable proposition underlying the section is often lost amongst its provisions.

LEGISLATIVE HISTORY Section 159 of the PD Act is largely a carry-over of section 28A of the former Town Planning and Development Act 1928 (WA) (TPD Act). With one possible exception, the amendments that were made as part of the new PD Act did not significantly change the earlier provisions, which with hindsight was a missed opportunity. As the numbering of the TPD Act suggests, section 28A was not an original part of the TPD Act. The first version of the provision appeared in 1961, but it was then replaced in 1982 in largely its current form, apart from a significant amendment in 1986 which is referred to below.

The original 1961 provision was quite different to both the 1982 version and the current provisions of section 159, but there is little need for present purposes to explore the nature of those differences in detail.

PRE-REQUISITE 1 â&#x20AC;&#x201C; A LATER SUBDIVIDER WHO MAKES USE OF AN EXISTING ROAD The starting point is that section 159(1) (a) requires a person (called the later subdivider) who: (a) subdivides land; and (b) either â&#x20AC;&#x201C; (i) a lot or lots of that later subdivision have a common boundary with an existing road to which there is access from the later subdivided land; or (ii) a road of that later subdivision joins an existing road to which

animal being driven or ridden. (b) a "private road created under Part IVA of the Transfer of Land Act 1893" (TL Act), which deals with easements and restrictive covenants created on subdivision plans, but contains no reference to the term "private road"; and (c) a private road "as defined in the Land Administration Act 1997 section 3(1)", which is itself a detailed multi-faceted definition, including a right of way created under section 167A of the Transfer of Land Act 1893 (which, of note, is not within Part IVA). The effect of this definition is that a "road" for the purposes of section 159 of the PD Act now includes things that in all likelihood would never have been considered to be included for the purposes of the otherwise virtually identical section 28A of the TPD Act. Lots having a "common boundary" with the existing road This element has not presented any difficulties and means exactly what it appears to mean. A road that "joins” the existing road Prior to an amendment in 1986 (referred to above), section 28A of the TPD Act applied only where a lot or lots of a later subdivision had a common boundary with an existing road from an original subdivision – there was no reference to the alternative of a road of the later subdivision "joining" an existing road of the earlier subdivision.

there is access from the later subdivided land. There are several elements of this apparently straightforward provision that require further explanation or comment.

incorporating each of the following – (a) a "road" as defined in section 4(1) of the PD Act, which is defined as follows –

… means a public thoroughfare for vehicles (as defined in the Road Traffic (Administration) Act 2008 section 4) or pedestrians, and includes structures or other things appurtenant to the road that are within its limits, and a thoroughfare is not prevented from being a road only because it is not open at each end.

and, for completeness, the definition of "vehicle" which is referred to above is as follows –

includes –

An expansive definition of "road" The term "road" was not defined for the purposes of section 28A of the TPD Act, or elsewhere in the TPD Act, but the section was able to be applied despite this on the basis that it was generally clear what was a "road" for the purposes of the section. A definition of "road" was inserted for the purposes of section 159 of the PD Act, and although the introduction of a definition would normally clarify what is, or is not, a "road", it is questionable whether the definition that appears in section 159(2) of the PD Act achieves this. A "road" is defined in section 159(2) in what amounts to very broad terms,

(a) every conveyance, not being a train, vessel or aircraft, and every object capable of being propelled or drawn, on wheels or tracks, by any means; and (b) where the context permits, an

The concept of a road of a later subdivision "joining" an existing road of an earlier subdivision appears straightforward, but has proved not to be. In Skypoint Investments Pty Ltd v Gavranich & Anor [2004] WADC 208 (Skypoint No.1), Martino DCJ dealt with an appeal against a decision giving summary judgment in favour of the plaintiff (the original subdivider), in circumstances where the road of the later subdivision was an "extension" of an existing road and a contribution was sought in relation to the whole of the existing road. One of grounds of appeal was whether there was an issue to be tried in terms of whether an "extension" of an existing road amounted to the road of the later subdivision "joining" the existing road for the purposes of the section. Martino DCJ referred to the Second Reading Speech for the 1986 amendment, as part of which the Minister said (my emphasis) –

There is a minor alteration of the

provisions relating to subdivision roads to overcome a technicality whereby a later subdivider can presently avoid reimbursing an earlier subdivider for half the cost of a section of road provided by that earlier subdivider if it is opposite a road junction. Martino DCJ went on to state (at [17][18]) –

Although the word junction can mean a place where two or more road meet, unite or cross the phrase road junction generally refers to an intersection, such as in the example "busy road junction" which is an example given in the Oxford English Dictionary. That seems to be how the phrase was being used in the second reading speech. In my view that speech assists in the interpretation of s.28A. Where the subdivisional road joins the existing road at an intersection then the part of the road which is joined by the subdivisional road is the intersection, and it is one half of the cost of that intersection that can be recovered by the original subdivider. It would seem therefore that s.28A may not have been intended to apply to cases such as this where the subdivisional road

30 | BRIEF JUNE 2020

a range of meanings including an intersection and a road configuration commonly called a "T-junction". The reference to a road junction is, in my view, ambiguous.

extends the existing road if the road is not opposite a junction. It must be noted that Martino DCJ was dealing only with an appeal against a summary judgment decision, to determine whether there was an issue to be tried, and was not actually determining that issue – but the obvious difficulty with the approach taken in determining that there was an issue to be tried, is that the word "junction", although used in the Second Reading Speech, is not used in the section itself, which refers only to "joins". This point was recognised by Crisford DCJ in Skypoint Investments Pty Ltd v Gavranich & Anor [2006] WADC 153 (Skypoint No.2), in which the claim by the plaintiff came up for determination. Without any reference to the decision of Martino DCJ in Skypoint No.1, Crisford DCJ held as follows (at [43]-[46]) –

The second reading speech talks about provision of financial assistance to the earlier subdivider if the road is opposite a road junction. The word road junction is not contained within the Act.

In general parlance the word "junction" means the point at which things join or are joined. It seems to me that the word "junction" covers

A second reading speech may well be of some assistance in the interpretation of legislation if wording in the legislation is ambiguous, Whilst s.28A is not easy to understand, in my view, it is not ambiguous insofar as it refers to a road of the later subdivision joining an existing road.

I see no reason why s.28A(1)(a) (ii), given the plain wording of the section, should not apply to cases such as this where the subdivisional road extends to and joins the existing road despite the fact it is not opposite an intersection…

This is not the end of the matter, however, because in Level Holdings Pty Ltd v Laurendi [No.2] [2013] WADC 33 (Level Holdings), Staude DCJ referred to the conflict between the approaches in Skypoint No.1 and Skypoint No.2 with respect to the meaning to be given to the verb "join" and expressed his own view as follows (at [39] and [43]-[45]) –

I accept that 'join' in its context means 'connect' or 'meet'. With

respect to roads, it describes one road meeting another at a junction or intersection, that is, the action of connecting two separate roads. The question in this case is whether it also means the meeting of the end of an existing road with an extension or continuation of that road in an adjoining subdivision.

…

In my view, the meaning of s.159(1) is not unclear or ambiguous. It creates an entitlement on the part of an original subdivider to a contribution of one-half the cost of a road from a later subdivider of adjoining land in particular circumstances. They are: first, that there is access from the adjoining subdivided land to the existing road; second, that the existing road has a common boundary with the original subdivider's land; and, third, that the existing road has a common boundary with the later subdivision or is joined by a road of that subdivision. That the contribution is one half means that in respect of any section of road there is only one contribution to be had. Only from the subdivider of land on the other side of that road is a contribution due.

However, if there is seen to be any ambiguity in the meaning of 'join', it may be readily resolved by reference to the second reading speech which states that the object of the 1986 amendment to s.28A(1) of the TPDA, which is substantially reproduced in s.159(1) of the PDA, was to make it clear that the later subdivider had to contribute not only half the cost of that part of the existing road with which its subdivided lots had a common boundary, but also of that part or parts at which a road of the later subdivision joined. The minister's words 'a section of road …

opposite a road junction' remove any doubt on that point.

In my view, the verb 'join' means the connecting of another road to the existing road. It does not apply to the situation where the road of a later subdivider is merely an extension of the existing road.

There is no decision of the Supreme Court that has considered this issue, and no decision in the District Court since Level Holdings that has considered the issue any further. As a result, there are currently two decisions of the District Court, both applying the "clear and unambiguous" meaning of the term "join" in the context of the section – but coming to diametrically opposite conclusions as to what that meaning is. Each of the decisions in Skypoint No.1, Skypoint No.2 and Level Holdings supports the approach taken by reference to possible scenarios that are described as unfair, or absurd, or "plainly not intended" as a result of the other approach. The difficulty is that both of the approaches can in fact give rise to such scenarios, particularly if 3 or more subdivisions of adjoining land are involved, in which case different contribution outcomes invariably flow depending simply on the order in which subdivisions may be carried out. Given that what is involved is the entitlement to receive or the obligation to make a contribution amounting to half the cost of providing the existing road (as to which, see further comments below), the effect of the different approaches is of great significance, and provides support for a fresh approach – or at least the need for clarification by way of further amendment. Access to the existing road from the later subdivided land In the case of access to an existing road from a lot or lots of a later subdivision,

this does not appear to require "actual" access in the sense of a physical crossover from each lot to the existing road, but access in the sense of the "ability to access" the existing road. As such, the requirement would be met even if the lots or lots of the later subdivision also have access to or from another road, but would not be met if, for example, there is a significant difference in levels between the lot or lots of a later subdivision and the existing road. In the case of access to the existing road from a road of the later subdivision, the meaning is obvious and clear.

PRE-REQUISITE 2 – AN ORIGINAL SUBDIVIDER WHO PROVIDED THE EXISTING ROAD The second pre-requisite is that there be a person (called the original subdivider) who has: (a) previously subdivided land; (b) in connection with the subdivision of that land, provided or upgraded a road that has a common boundary with the subdivided land; and (c) contributed to, or borne solely, the cost of providing or upgrading that road. This provision is comparatively straightforward, but several elements of this provision also require some brief further explanation or comment. An expansive definition of "road" See above… Other broad elements of the provision The provision applies where the road in question is either "provided" or "upgraded". The definition in section 159(3) of the PD Act of the term "cost of providing a road", discussed further below, gives a

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clear indication of what is intended by "providing" a road, which is both logical and relatively broad in scope. It also results in a broad range of "costs" for the purposes of triggering the application of the provision. The absence of any definition or limitation as to the meaning of "upgrade", means that this is potentially of very wide meaning, with a similarly wide range of "costs" in relation to this. The provision also applies where the road in question is either provided or upgraded "in connection with" the subdivision of the land, which again is potentially of wide meaning. Finally, the provision does not require that the original subdivider solely bear the costs of either providing or upgrading the road, but also applies where the original subdivider only "contributes" to any of the broad range of costs of either providing or upgrading the road. The meaning of "contribute" is discussed further below, and is a further element of potentially wide meaning, although it is important to note that the original subdivider is only entitled to a contribution of one half of whatever costs were borne by the original subdivider. Common boundary The existence of the common boundary referred to in both section 159(1)(b) and 159(1)(a)(i) has, logically, been held to be determined as at time of the later subdivision (Lakewood Estates Pty Ltd v De Boer (1985) 62 LGRA 141; Starshore at [80] and [83]). In effect, it is at that time, rather than at the time of the original subdivision, that it is be determined whether both the original and the later subdivisions have boundaries to the existing road.

PRE-REQUISITE 3 – THE LATER SUBDIVIDER DID NOT CONTRIBUTE TO THE COSTS OF THE EXISTING ROAD The third pre-requisite for the operation of section 159 is that the later subdivider "did not contribute to that cost", and it is necessary to consider each of the elements of this in reverse order. Did not contribute to "that cost" In Skypoint No.2, Crisford DCJ observed (at [62]) – Subsection (c) does not use the words "the later subdivider did not contribute to the cost of providing the existing road". It specifically asks whether the later subdivider did not contribute to "that cost". Given that

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expression, it appears "that cost" relates back to either the part of the existing road contributed to by the original subdivider or to the whole road if the original subdivider bore that cost solely. In my view the reference in the passage above to either "the part" or "the whole" of the existing road is incorrect. While it is correct that the section does not use the actual words, grammatically, the reference to "that" cost in section 159(1) (c) can only be a reference to the cost "of providing or upgrading the existing road" – because this is the only "cost" referred to in section 159(1)(b) or 159(1)(a). This is a reference to the cost of providing or upgrading the whole of the existing road, which is either contributed to or borne solely by the original subdivider, not merely a part of it. Where the original subdivider bore solely the cost of providing or upgrading the existing road as referred to in section 159(1)(b), it seems to follow as a matter of logic, notwithstanding the broad interpretation of "contribute" referred to above, that the later subdivider did not contribute to (and could not have contributed to) "that cost". Where the original subdivider only contributed to (rather than bore solely) the cost of providing or upgrading the existing road, if the reference to "that cost" is then limited to the cost of only "the part of the existing road contributed to by the original subdivider", the same logical conclusion would seem to follow, which would leave no scope for section 159(1)(c) to operate. Finally, as the phrase "cost of providing a road" is defined in section 159(3), the reference to the later subdivider not contributing to "that cost" in section 159(1)(c), when referring to the cost of providing (as opposed to upgrading) a road, ought to be a reference to not contributing to any of the elements set out in section 159(3). In other words, a contribution in respect of any of those elements would preclude a claim by the original subdivider under section 159(1), but a contribution to anything that is not included in section 159(3) as the "cost of providing a road" would not affect the claim. Did not "contribute" to that cost In Civil Properties Pty Ltd v Miluc Pty Ltd [2011] WASCA 195 (Civil Properties), the Court of Appeal noted the absence of any prior judicial consideration of the meaning of "contribute" in the context of section 159, and applied its ordinary meaning of "to give in common with others; give to a common stock or for a

common purpose" and "supply or pay along with others to a common fund or stock" (Newnes JA at [59], Murphy JA at [120], Hall JA at [128]). Their Honours also expressly agreed that the word encompassed more than simply a direct cash payment to the original subdivider. Finally, from the outcome of the decision, it is clear that their Honours also all agreed that the reference to a "contribution" in section 159(1)(c) does not require a contribution of the whole of the amount that is able to be recovered by the original subdivider under section 159(1). That is, the reference to "did not contribute" in section 159(1)(c) does not equate to "did not contribute a sum representing one-half of…", with the effect that the provision appears to operate on an "all or nothing" basis. If no contribution is made by the later subdivider, then the original subdivider can recover the amount referred to in section 159(1), but if the later subdivider makes a contribution to the cost of providing or upgrading the existing road (noting that this may take a variety of forms), the original subdivider can recover nothing further – not even the balance of the amount referred to in section 159(1). There is no discussion in Civil Properties as to whether there is any threshold requirement for a "contribution" in this context, but the obvious question is why a provision that is clearly intended to result in an original subdivider being reimbursed on an equitable basis for works that benefit a later subdivision, would exclude the process for that reimbursement as a result of a contribution that does not reflect the equitable sharing of costs provided for by the provision? It is also worth noting that the very broad definition of "road" for the purposes of section 159 necessarily widens the scope for a later subdivider to have "contributed" to the cost of providing or upgrading the road, perhaps in only a small amount and arguably in respect of only one element of the road – which appears to be sufficient to preclude any claim by an original subdivider. "Did not" contribute to that cost Finally, while this has not been the subject of any judicial consideration, section 159(1)(c) enquires as to whether the later subdivider "did not contribute" to the relevant cost, rather than whether the later subdivider "has not contributed to" that cost. This perhaps suggests a temporal requirement that the contribution occurred at a particular time in the past – logically being either the time that the

provided as a road, being such percentage of the market value of the total area of land comprises in that subdivision as the area of the road bears to that total area as at the date of that subdivision; and

original subdivider provided or upgraded the existing road, or perhaps the time that the original subdivider contributed to or bore solely the cost of doing so – rather than at any time since then.

WHAT IS RECOVERABLE? If the pre-requisites set out above are met, the original subdivider is entitled under section 159(1) to recover "onehalf of so much of the reasonable cost as was borne by the original subdivider of providing or upgrading the part of the existing road which has a common boundary with the lot or lots, or is joined by a subdivisional road, [of the later subdivision]". As noted above, there is no definition or guidance as to the scope of the cost of "upgrading" a road, so the scope of this will be determined on a case-by-case basis, by reference to what was in fact done and the costs of doing so.

(b) the reasonable cost of designing and carrying out the following works – (i) the survey of the land provided as a road; and (ii) the formation, preparation, priming and sealing of the road; and (iii) the provision of kerbing, drainage and service ducts in connection with the road,

escalated by the percentage by which the CPI last published prior to the date of the subsequent subdivision has increased over the CPI last published prior to the original subdivider subdividing the land referred to subsection (1)(b).

As also noted above, there is a definition as to the scope of the "cost of providing a road", in section 159(3), being –

As with other elements of section 159, there are aspects of this formulation that require further comment and explanation.

… the aggregate of –

Date of subdivision – and therefore date of valuation

(a) the value, as at the date of the subdivision referred to in subsection (1)(b), of the portion of the land

Under section 161 of the PD Act, land is taken to be subdivided on the date on which the approval of the WAPC

is endorsed on the diagram or plan of survey relating to the subdivision of the land. In effect, this means that all of the conditions of subdivision approval will have been complied with, and all of the works necessary to complete the subdivision (including the provision of roads) will have been carried out, and the subdivision will be ready in all respects for the issue of new titles for the subdivided lots. It is also important to note that the date of valuation of the land is the date of the original subdivision – not the date of the later subdivision – but the amount of the valuation is then escalated by the percentage difference in CPI between the dates of the original and later subdivisions. What is included in the "market value of land" The effect of the date of subdivision (and valuation) as set out above is confirmed by the definition of "market value of land" in section 159(2) of the PD Act. The primary definition is that it means –

… the capital sum, determined in accordance with section 155(3)(b)(ii), (iii) and (iv), which an unencumbered estate in fee simple in the land might reasonably be expected to realise if

offered for sale on such reasonable terms and conditions as a bona fide seller would require. And, to complete the picture, the provisions of section 155(3)(b) referred to above set out that the market value of land is to be determined – (ii) on the basis that there are no buildings, fences or other improvements of a like nature on the land; (iii) on the assumption that any rezoning necessary for the purposes of the subdivision has come into force; and (iv) taking into account the added value of all other improvements on or appurtenant to the land. Scope of matters referred to in section 159(3)(b) The scope of matters referred to in section 159(3)(b) is mostly straightforward, but it is important to note that in section 159(3)(b)(iii) it is only the cost of providing kerbing, drainage and service ducts "in connection with the road" that is able to be included. In Civil Properties the Court of Appeal (Newnes JA at [76]) observed that the words "in connection with" connote a relationship between one thing and another. This led to a determination (at [77]) that water and sewer pipe that had been installed along and under a road by

34 | BRIEF JUNE 2020

the original subdivider, in order to enable lots in the subdivision to be connected to water and sewerage services were not "in connection with" the road. Newnes JA explained –

They were provided for the purpose of enabling drainage and sewerage services to be provided to the individual lots created by the subdivisions. They served no purpose in relation to the road. They were installed pursuant to a requirements of the Water Corporation for purposes unrelated to the road. The fact that they were installed at the same time as the upgrade of the road occurred and located under the road reserve is not sufficient. They were no more provided in connection with the road than would ordinary overhead power lines be if they are located on the road reserve.

Of note, the cost of what appears to have been identical types of water and sewer pipes had been allowed by Crisford DCJ in Skypoint No.2 (at [103]-[108]). Physical extent of the road in respect of which costs are recoverable In circumstances where lots of the later subdivision have a common boundary with the existing road of the original subdivision, it is clear that recovery is in respect of the costs of providing or upgrading the road to the physical extent

or length of the whole of the common boundary. In circumstances where a road of the later subdivision "joins" the existing road of the original subdivision, it is far less clear what is the "part of the existing road which … is joined by" the new road – and this is the most significant implication of the different interpretations of this aspect of section 159 referred to above. The approach in Skypoint No.1 and the decision in Level Holdings limits recovery in terms of the physical extent of the road to only the area of the actual intersection or junction between the existing road and the new road of the later subdivision, and denies any recovery at all in respect of an extension of the existing road. The decision in Skypoint No.2 allows (and in fact allowed) recovery in respect of the full physical extent or length of the existing road that was extended by the new road.

More Than Just Precedent: Perspectives on Judgment Writing The Honourable David Malcolm Annual Memorial Lecture; Notre Dame University School of Law 9 October 2019 By The Hon Katrina Banks-Smith Justice of the Federal Court of Australia The Honourable David Malcolm

Notre Dame University is privileged to hold the Coram books of the late Honourable David Malcolm AC QC. Those books are a set of beautifully handwritten notes of trials and hearings before his Honour. It would be very rare these days for a judge to keep such a detailed record. Those notebooks are therefore an important piece of legal history, not just as a record of the particular trials but as a record of how judges work. I am very honoured to have been asked to deliver this fifth Memorial Lecture in tribute to David Malcolm’s legacy, and inspired by those beautiful notebooks, I have chosen to talk about the written word and judgments as records. But first I would like to say something about David Malcolm. I did not have the honour of knowing him. The only time I appeared before him was when I was admitted to the roll of practitioners in 1990. I regret that I am unable to speak first hand of his attributes and qualities. They are, however, well recognised. His professional record from Rhodes Scholar to Queens Counsel to Chief Justice of Western Australia was exemplary. As a barrister he appeared on many occasions before the High Court and the Privy Council. His judicial service included well-known highlights such as the quashing of John Button’s murder conviction.1

His commitment to the community was broad, serving on many organisations. His commitment to education was enduring, as witnessed in the later years of his career by his service to this University as a Professor and Adjunct Professor of Law. His legacy is recognised in particular by the naming of the David Malcolm Justice Centre in his honour, the building that now houses the Supreme Court of Western Australia and other offices vital to the administration of justice, including the State Solicitor’s Office. David Malcolm was also devoted to his wife Kaaren, and daughter Manisha,

and they continue to be very much in the thoughts of those who recall his remarkable contribution. I acknowledge Mrs Malcolm’s presence here this evening.2 I am also pleased to see students in the audience as in preparing this talk, I had students in particular in mind.

The topic I am speaking today from the perspective of a civil judge. Leaving aside court time, the life of a civil judge is very much one of writing. For any decision of significance, written reasons must be given. Court time is in the main the interesting part, a theatre where the unpredictable is played out. Otherwise the role can be somewhat solitary, working away in chambers formulating thoughts, making decisions on evidence and writing. The first part of this talk is about creating judgments. Some of the themes might be familiar. For example, what is the purpose of judgments? Who is the audience? How do judges write? What is revealed by different styles of writing? Some of this has been written about in detail and for those of you with an interest in how judges write, the Hon Michael Kirby’s 1990 article ‘On the Writing of

Judgments’ remains enlightening and current.3 But then in the second part, I would like to talk about the broader role of judgments, the life they might take on after delivery and their sometimes inadvertent role in recording social history. I first started thinking about this topic when I came across a line in a book about American artists that commented on the extraordinary number of paintings in galleries of court room scenes, lawyers and jury debates. The author noted that this fascination is also reflected in literature about the law. In addition to art and literature, we can add movies, TV series and podcasts. Trials and true crime capture the interest and fascination of many, many people. I do not suggest that people are anywhere near as captivated by reading civil judgments. But in their own way, judgments have a broader role in recording the history of a society than might be assumed. From the 19th century cases on disputed wills, expectancies, and improvident heirs and through the 20th century rise of industrial and consumer law, we have a written record of the changing face of society. I will make reference to some well-known and less well-known judgments from the last 50 years that reveal a record of sometimes the mundane and sometimes the more profound aspects of life in our community. Sometimes the importance of a judgment as a record is only recognised through the lens of retrospectivity, but in other cases it may as well have been thumped down on the bench, rather than ‘delivered’, such is its immediate and obvious impact. But first - to Part 1.

Part 1: Creating judgments The context As we know, judgments are records of the reasons for decisions. A judge has an obligation to find facts, record relevant findings of credibility, ascertain the applicable law and apply it in a method which exposes reasoning so that any rights of appeal can be exercised. Courts are required to resolve conflicts and provide reasons to the parties. So most importantly, judges must write for the parties, but our precedent based system means the audience is potentially broader: beyond the parties, a judgment might bind other judges and it must permit application in broader or different factual circumstances. From my perspective when sitting as a

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first instance judge, the primary aim is to write reasons that explain to the parties the outcome and address the issues they have raised. There is very rarely the luxury of time that might permit an attempt to add more generally to the jurisprudence of the law and write something of broader use. The reality in a busy court is that it is essential to focus on the issues between the parties and what the parties need to hear. There is always the spectre of an appeal court hanging over us when we deliver a first instance judgment. On a day to day basis I try to write without undue concern about the appeal process. However, it would be artificial to assume that judges respond to their decisions being overturned with equanimity. I would suggest that most judges care deeply about their work and so naturally do not like being wrong - or, as some judges might see it, being considered by others to be wrong. However, the appellate process is vital in developing the law. It is also vital in correcting error and in that sense it provides a level of comfort to primary judges. Writing at the appellate level is different. At that point the focus is very much on the law and whether there has been error below. Scrutinising the work of your fellow judge for error might seem an unpalatable task, but generally speaking appellate courts undertake that task conscious of the difficulty of matters that come to them from a primary decision. Take for example the recent High Court decision in ASIC v Kobelt,4 in which the High Court addressed whether particular conduct by Mr Kobelt in providing credit to Aboriginal people living in a remote community was unconscionable. Anyone who might think the answer was straightforward should reflect on the fact that there were five separate sets of reasons published and the decision in Mr Kobelt’s favour was a 4:3 majority.5 There is also a practical caveat that limits the extent to which judges can indulge in the writing process. In his paper to which I have referred, Michael Kirby said: Pressure upon modern judges - at first instance and on appeal - is, in most instances, much greater than it was in the case of their forebears. True, the High Court of Australia can now, by the requirement of special leave, control its workload. But for most judges, there is much less control. The backlog increases. Community and institutional pressure for speedier justice is relentless. The time for reflection, for careful planning, thoughtful research and for polishing

prose, is strictly limited. And diminishing. It is in this world of unprecedented stress and pressure that most judges, today, complete their judgments. I doubt that the position has improved since 1990. We must all do the best we can, and push our product out efficiently and carefully. So all of those things are relevant to the context in which judges write. Now I am going to turn to the far more interesting question of style. The question of style Leaving aside the requirement to give reasons, there are no rules as to how an individual judge must write. Each judge brings their own legal, cultural and educational background to the task and it is inevitable that styles will differ. Some prefer a succinct and clinical approach, and cavil with any attempt by judges to do more. Others take the opportunity to engage more generally, displaying knowledge of matters that go well beyond the issues at hand. It is perhaps the variety of approaches that makes judgment reading day after day a bearable and enjoyable task. The central task of recording the facts and the law might be predictable, but there are many tools or motifs used in writing that sometimes make it more interesting, and I will refer to five: the literary allusions; the swipes to the legal profession; the titbits for social media; the appropriate opportunity for entertainment; and the justified self-indulgence. Literary allusion Perhaps unsurprisingly, Shakespeare continues to be the runaway winner as a rich source of inspiration for judges. Over the last 50 years, Shakespeare has been referred to in more than a fleeting manner in over 64 superior court judgments. There is the occasional reference to a sonnet, but the most popular works are King Lear, The Merchant of Venice, Macbeth, Hamlet, Richard III and As You Like It. In Owen J’s 10,000 paragraph first instance judgment in the Bell litigation,6 his Honour referred to not one but three different works of Shakespeare: Timon of Athens, Hamlet and Othello. I should add that Owen J includes many other references that disclose his enormous and enviable knowledge of the classics, history and religion. This year Shakespeare was the source of renewed focus in the Federal Court, not only because of the Geoffrey Rush defamation trial.7 To be fair, the subject

matter in that case perhaps gifted the primary judge with the opportunity to quote King Lear and completely in context. Perhaps less anticipated was this headline from the Australian Financial Review: ‘Bard on side of court buttocksflasher’.8 This refers to Logan J’s judgment in Ogawa v Attorney-General (No 2),9 in which the opening paragraph cites Portia’s soliloquy on the quality of mercy from The Merchant of Venice in support of the potential for a royal pardon. Ms Ogawa, who holds a Doctor of Philosophy in Law, was jailed for contempt after flashing her buttocks when on trial. The pickings are less rich when it comes to references to Australian authors or poets. Tim Winton, Richard Flanagan, Patrick White, Manning Clark and Christina Stead have scored a mention, but not quotes. Sally Morgan has been quoted in the context of Aboriginal history. There are also the odd quotes from Banjo Paterson, Marcus Clarke and Henry Lawson. There is clearly room for improvement by judges in this area. Swipes to the profession There are then those judges who, having clearly withstood years of quiet frustration with the profession, allow things to finally reach a boil. Take for example, the occasion when Martin CJ of the WA Supreme Court, annoyed with a pleading strike out application, breathed life into the word ‘pettifogging’:10 In this case, I have reviewed the statement of claim and the objections to it and I have done so in the case management context to which I have referred. It is my view, that many of the objections which have been taken

are pedantic and pettifogging in nature. In many cases, elucidating and resolving the objection would consume an amount of time and resources, which is entirely disproportionate to the benefit to be derived from that process in terms of the identification of the true issues which have to be met in the case. Or consider the empathy-inducing catchwords of Hamill J in R v Taleb (No 3):11 CRIMINAL LAW - Indictment Amendment - Application made at the end of trial - Offence of engaging in conduct preparatory to foreign incursion offence Complications of Criminal Code - Fault element not specified - Recklessness pleaded in original indictment - Prize for providing written submission on recklessness that made sense Prize not claimed … Titbits for social media Whilst law students and young lawyers in particular have long taken a special interest in sharing either hilarious or embarrassing moments before the court, and preferably the High Court, judges have certainly been feeding them quite a bit of material by way of amusing catchwords or one-liners in the last few years, spread enthusiastically by social media. Catchwords that have been gleefully shared include this one from State of New South Wales v Michael David Jones:12 CIVIL LAW - continuing detention order - preliminary - hearing - amendments to legislation - nature of test at preliminary hearing - substantial body of evidence - rhubarb and apple crumble - no question of principle Or the lovely opening line from Lee J of the Federal Court in Oliver v Nine Network

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Australia Pty Ltd:13 [1] Nothing good happens after two o’clock in the morning. Or another from Lee J, this time in Reckitt Benckiser (Australia) Pty Limited v Procter & Gamble Australia Pty Limited,14 which concerned ongoing litigation about an advertisement for dishwashing detergent known as ‘Fairy Platinum’: [5]

The gentle rinse of dishwashing detergent is not reflective of the vigorous thrust of commercial rivalry between the protagonists. It is plain that the automatic dishwashing detergent market in which both RBA and PGA operate is highly competitive.

‘Appropriate’ opportunity for humour There are some occasions where the subject matter really invites some humour. This is an area to be handled with care. Litigation is often one of the most stressful and financially draining experiences that people endure. The result has the potential to impact quite significantly. It is not a time for humour that might not be well received by a party. However, it can be done appropriately. Take this detailed treatise on fish oil from Perram J in Nature’s Care Manufacture Pty Ltd v Australian Made Campaign Ltd,15 a case about whether fish oil tablets were ‘made in Australia’ in circumstances where all ingredients were sourced overseas: [21] I find that the fish oil imported from Chile smells unpleasant. I was provided with a sample of this fish oil as Exhibit MX-3 and have smelt it. It is smells like a cross between stale fish and vinyl. My associate thinks it smells like semi-fermented grass cuttings revealing his more sophisticated nose.

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I have not tasted it but I am prepared to infer that it would be very unpleasant to consume even in small doses. I also accept that placing the fish oil in the soft gel capsules has the effect of making palatable and flavourless a product which is essentially very unpleasant. It has another benefit too. By sealing the fish oil in the capsules the speed of oxidation is reduced and, along with that, the rate of deterioration in the fish oil caused by exposure to light. This is not the case with the liquid fish oil imported from Chile. … [23] There is a related issue. Professor Barrow properly drew my attention to the phenomenon of ‘burp-back’. ‘Burp-back’ occurs when a soft-gel capsule containing something malodorous such as fish oil is consumed. Once the capsule descends into the digestive depths of the stomach the softgel dissolves releasing its noxious payload the odour of which, thus liberated, rises up the gullet to the mouth where, unsought 38 | BRIEF JUNE 2020

and unwelcome, it presents itself as a salutary warning against the perils of belching. … Deserved indulgence Finally - there are occasions where it is expected that a judge might indulge a little and none of the parties would expect anything less. One of those cases was the epic Bell trial to which I have already referred. A single judge who wrestles with issues of such magnitude over such a period of time is fully entitled to add their own colour. I suspect Owen J had a few favourite expressions he wanted to utilise somewhere: [9761] From time to time during the last 5 years I felt as if I were confined to an oubliette. There were occasions on which I thought the task of completing this case might be sempiternal. Fortunately, I have not yet been called upon to confront the infinite and, better still, a nepenthe beckons. Part of the nepenthe (which may even bear that name) is likely to involve a yeastbased substance. It will most certainly involve a

complete avoidance of making decisions and writing judgments. [9762] For the moment, in the words of Ovid (with an embellishment from the old Latin Mass): Iamque opus exegi, Deo gratias.16 Before we move on - room for improvement But to return to the more mundane, and the common criticisms of judgments that they are too hard to read and are too long. In my view, those few examples to which I have referred indicate that writers have in fact embraced English as an evolving language. Judges have indicated a willingness to entertain English as a growing and living language: utilising a modern vocabulary; embracing the singular plural and other gender neutral and culturally sensitive terms; avoiding the over-defining of obvious expressions; and increasingly using the active as against passive voice. But these are details. The important task is to write accessble, readable judgments. In her article ‘Some Thoughts on Writing Judgments in, and for, Contemporary Australia’,17 Justice Mortimer records the progression from historically short

reasons by way of notes of court hearings that were taken by observers or a court recorder, to the detailed judgments of our time.18 Justice Mortimer notes that the notion that judges should explain their decisions is of recent origin, and queries whether we currently have the right balance between explaining the use of judicial power and the way we use judicial time and resources, with consequential effect on the parties and other litigants of seeking access to justice.19 In days of electronic data and where business and many other communications take place largely by email, the quantum of recorded evidence is so large that even setting out the relevant facts and making findings on documents can be a very lengthy task, even before assessing any oral evidence. Conversations around introducing short form judgments and similar innovations are frequent around the courts but there is no doubt that progress toward any quantum shift in the writing obligations of a trial judge is slow. However, there are some steps that are taken routinely to reduce the amount of judgment writing. These days interlocutory skirmishes around pleadings, discovery, security for costs and the like are often directed to a confidential conference with a registrar or specific mediation. The success rate of that course in order to narrow the issues that require written judgments and reduce the need for interlocutory judgments in my experience is high. A second step is continued emphasis by active case management on the role of the lawyers, and indeed their clients, in narrowing the scope of disclosure and document production and the nature of issues that are to be resolved by the court. This will often involve directing the parties to attempt to agree issues for determination. It will generally be a requirement where senior counsel are briefed that they confer about and engage in that process. All stakeholders in litigation stand to benefit from such an approach. But that is enough about the creation of judgments. Let us now apply a retrospective lens.

Part 2: Judgments as records of history We can move from viewing judgments as a pedestrian account of a moment in time, or a dispute in time, to seeing a more universal role. We can view judgments as a record of history. This role, perhaps not always appreciated, is significant.

History records cultural change and key events in a range of media, and there is no reason to exclude from that archive the written judgment with its precisely recorded factual details, its records of the common place, its record in extracts from transcripts of how we spoke and its snapshot of our social mores. Then there are Native Title judgments with their actual record of history: a record of oral history passed down, interviews, transcripts of descriptions by claimants and elders, explaining who is able to speak for country, who has control over country, identification by language group and similar connections.20 But the role of judgments in recording history is seen most keenly by any review of decisions that stand as turning points of cultural change - landmark decisions on religious freedom, women’s rights, the rights of minorities, land rights, rights to counsel, sanctions against abuse of power, censorship laws, and so on. For most Australians, Mabo21 is the definitive landmark decision, a decision that negated the 17th century doctrine of terra nullis and recognised Aboriginal Australians as the original inhabitants of Australia. It led to the introduction of native title legislation and recognition of traditional rights. There are many other such decisions: Chamberlain v The Queen,22 standing as a stark reminder to us all of the importance of keeping an open mind; Dietrich v The Queen,23 acknowledging formally the right to a fair trial; and even from the dry area of contract law, Waltons Stores (Interstate) Ltd v Maher,24 where the harshness of contract law was ameliorated by equity and the sword and shield of promissory estoppel.

in places with deceptively lyrical names like Miena, Tungatinah and Wyatinah. If you are familiar with Richard Flanagan’s ‘The Sound of One Hand Clapping’, you might recall that the father, Bojan Buloh, was a Slovenian refugee, recruited as part of an immigrant labour force to live in a construction camp in the central highlands of Tasmania to do ‘the wog work’ of building a dam. The Hydro is an important employer in Tasmania. On a personal note, my father, my father-inlaw and one of my brothers all worked for the Hydro at some point, which gives you some insight into its significance to the Tasmanian economy. The construction of the Gordon River dams would have generated one-third of the State’s electricity needs, but at the cost of flooding the nearby Franklin River wilderness area, an area of some 9,500 hectares within the National Park. The Labor State government made the area a National Park in 1981 in acknowledgement of the area’s natural significance, and asked that the area be entered on the World Heritage List. An election the following year brought in a Liberal State government that supported the dams project, and the process of construction approvals began. The majority of Tasmanians supported the project in a 1981 plebiscite. State legislation was passed to vest land in the Hydro for the purpose of construction of the dams and auxiliary works: the Gordon River Hydro-Electric Power Development Act 1982 (Tas).

First - when did we start taking the environment seriously?

However an intense public campaign then began, under the stewardship of Dr Bob Brown and The Wilderness Society. There were over 1,200 arrests as protesters set up blockades of the site. Bob Brown even spent several days in prison. There were protest marches in the streets of Hobart. This was pre-social media, pre-mobile phones: yet thousands were galvanised to march in the streets to draw attention to the impending loss. The iconic yellow ‘no dams’ triangle was a hugely successful example of branding. That triangle was everywhere, from cars to bags to banners.

South-west Tasmania is a remote and imposing part of Australia. It is now world famous and carefully protected as a wilderness area. Access is by foot, light plane or sea. Its weather is harsh but its scenery is stunning. In the late 1970s the Hydro-Electric Commission, a Tasmanian State government agency, drafted a proposal for the construction of two dams on the Gordon River. Tasmania had been building hydro dams and power stations since the turn of the last century,

The protest gained international attention, and in late 1982 UNESCO declared southwest Tasmania a World Heritage Site under the Convention for the Protection of the World Cultural and Natural Heritage. At that time the only other Australian World Heritage Site was Kakadu. The timing was important. A Federal election was due in 1983. Bob Hawke promised that if Labor won the election, it would save the south-west wilderness. Labor won the election and, as promised, took

I have chosen a selection of four cases from across environmental, criminal, family-related and consumer law, and not all High Court cases, to address the rhetorical question, ‘how far have we come’? Commonwealth v Tasmania

steps to save the wilderness area. The government looked to its obligations under the World Heritage Convention and passed the World Heritage Properties Conservation Act 1983 (Cth) which restricted activities on heritage sites, including those deemed heritage sites by international treaties. The Tasmanian government was not best pleased. And so it began. Tasmania challenged the Constitutional validity of the Act in the High Court, arguing that by the Act the Commonwealth exceeded its authority to legislate for external affairs (s 51 (xxix) of the Constitution) and to regulate corporations (s 51(xx)). The Commonwealth did not win all the arguments before the High Court and the decision itself was a 4:3 majority - but vitally, it decided that the Commonwealth had power under the external affairs power to stop the dams based on Australia’s international obligations. And the Franklin River and surrounding south-west Tasmania wilderness area remain protected to this day. In the reasons of the High Court25 (and I add that they fill half a volume of the Commonwealth Law Reports and were written in a month) the Chief Justice captured the tension that brought the claim to the High Court whilst at the same time noted the strictly legal question with which it was concerned: 40 | BRIEF JUNE 2020

No lawyer will need to be told that in these proceedings the Court is not called upon to decide whether the Gordon below Franklin Scheme ought to proceed. It is not for the Court to weigh the economic needs of Tasmania against the possible damage that will be caused to the archaeological sites and the wilderness area if the construction of the dam proceeds. The wisdom and expediency of the two competing courses are matters of policy for the Governments to consider, and not for the Court. We are concerned with a strictly legal question - whether the Commonwealth regulations and the Commonwealth statute are within constitutional power. The reasons necessarily contain a detailed consideration of the legal issues. But they do more than that. For example, they contain a history of the operations of the Hydro-Electric Commission in Tasmania from 1895;26 a list of items from the 64 sites at that time on the natural heritage sites maintained under the World Heritage Convention27 (a list that now runs to some 1,121 items);28 a complete history of the entanglement of state and federal legislation and regulations enacted during the course of the controversy; and a collection of agreements reflecting international concern about the environment and pollution.29 In short, they

provide a written record of the context in which the High Court came to consider in 1983 the particular legal questions to which its attention was limited. The Dams case is widely seen to be the most influential constitutional law case in Australian history, but it also stands very much as a record of how protest and changing policy led to valid legislative intervention. It remains relevant as we now face unprecedented environmental challenges and as we continue to witness the cycle and value of lawful, non-violent protest. LCM v State of Western Australia Now to the criminal justice system and a sad indictment - when did we finally wake up to Foetal Alcohol Spectrum Disorder, or FASD? History will show that it was not until this decade that the criminal justice system really understood that FASD was relevant to both cognitive and physical development. Although there were a handful of prior decisions that mentioned FASD,30 the decision of the Western Australian Court of Appeal in LCM v State of Western Australia31 is significant for three reasons: first, it frankly acknowledges a lack of appropriate knowledge amongst professionals of the symptoms and profile of FASD; second, it provides guidance to prosecutors,

defenders and sentencing judges as to the relevance of the disorder in the context of mental impairment; and third, it reminds us that the justice system cannot act in isolation but is dependent upon a broader community interest and research into matters that effect criminal culpability. The offender in LCM was a 15 year old boy who violently assaulted his newborn son in a hospital room, causing injuries from which the baby died. He was convicted in the Children’s Court on a plea of guilty to manslaughter and in preparation for sentencing underwent the usual pre-sentence report process and was also reviewed by a psychologist and psychiatrist, neither of whom referred to any mental impairment or brain injury. He was sentenced to 10 years detention with eligibility for supervised release. He appealed his sentence on the ground that it was manifestly excessive. While in detention, LCM was reviewed by a research team from the Telethon Kids Institute and was diagnosed with FASD. An essential element of the disorder is that the person has suffered a prenatal, permanent organic brain injury as a result of maternal alcohol consumption in pregnancy. Such foetal exposure to alcohol can produce a variety of different disorders within a spectrum, with effects that might be suffered to an extent which varies from minor to profound. The late diagnosis of LCM’s condition provided the basis for a second ground of appeal, being that the sentencing judge had not taken into account a significant mitigatory factor, the additional evidence of the FASD diagnosis not having been before his Honour at the time. Additional medical reports attested to the precise nature of LCM’s impairment. One of the specialists concluded that if a detailed nature of LCM’s impairment

had been understood and there had been some intervention early in his life, ‘some of his and his loved ones’ lived trauma may have been prevented’.32 The appeal succeeded and the sentence was reduced, as the Court was satisfied that his prenatal brain damage had left him more vulnerable to traumas he had suffered as a child, a mitigating factor when his circumstances were considered as a whole. What an important decision this is in terms of what we learn from it and apply going forward, and how fortuitous that the Telethon Kids Institute came across this particular young man. H v Minister for Immigration and Citizenship Migration cases provide a wealth of information about international civil unrest and the responses to refugee and asylum claims, but the case I want to mention is actually from the citizenship stream. It is not a case that was met with any great media attention, but it had important ramifications. At issue in H v Minister for Immigration and Citizenship33 was whether the word ‘parent’ was limited to biological parents with a genetic link. The Full Federal Court found that a child could be an Australian citizen by descent through a person who was not a biological parent but acted in a parental capacity. It found that as a matter of statutory construction, there was nothing in the Act that limited the meaning of ‘parent’ to a biological parent but rather it has the meaning it bears in ordinary contemporary English usage. The reference to contemporary usage is important and acknowledges squarely the capacity for change. The following paragraphs are particularly poignant, in my view: [128] The word ‘parent’ is

an everyday word in the English language, expressive both of status and relationship to another. Today, as the Citizenship Act itself recognizes, not all parents become parents in the same way: see, e.g., s 8 of the Citizenship Act; H v J (2006) 205 FLR 464 at 466, citing Re Patrick (2002) 168 FLR 6 at [323], [325] (Guest J). This is not to say that parents do not share common characteristics; everyday use of the word indicates that they do. [129] Being a parent within the ordinary meaning of the word may depend on various factors, including social, legal and biological. Once, in the case of an illegitimate child, biological connection was not enough; today, biological connection in specific instances may not be enough: Citizenship Act, s 8 referring to ss 60H and 60HB of the Family Law Act, in turn picking up prescribed State and Territory laws such as the Status of Children Act 1974 (Vic). Perhaps in the typical case, almost all the relevant considerations, whether biological, legal, or social, will point to the same persons as being the ‘parents’ of a person. Typically, parentage is not just a matter of biology but of intense commitment to another, expressed by acknowledging that other person as one’s own and treating him or her as one’s own. I doubt that such words would have been

said had the question been addressed by the court a few decades previously. In a similar vein, the decision in the Commonwealth v ACT34 that saw the ACT’s short-lived Marriage Equality (Same Sex) Act 2013 (ACT) struck down was important in opening the door to the vote that led to the changes to The Marriage Act 1961 (Cth), another defining moment in Australian legislative and social history. Free range egg cases But now to what might at first seem more prosaic - the topic of eggs. But in eggs we see the rise of the ethical consumer. In the last 10 years the ACCC has brought proceedings against some 11 egg producers. As Edelman J expressed it in ACCC v RL Adams Pty Ltd:35 [1]

This penalty hearing is yet another case concerning false, and misleading or deceptive conduct concerning ‘free range’ animals. Sellers of products such as chicken, duck, or eggs obtain a premium price by representing their products to be derived from animals that live or lived ‘free range’.

Some of the practices the courts have considered include egg producers engaging in misleading or deceptive conduct by putting cage eggs in cartons marked free range in order to meet high demand for free range eggs, or similarly including non-organic eggs in cartons marked as organic. Those cases have highlighted the importance of the product labelling in securing consumer dollars, and also the importance of model codes and enforceable standards that might clearly explain what is meant by terms such as ‘free range’. For example, whilst descriptions such as ‘free range densities’ might say something about how many birds per hectare might be housed, what do they say about hours of access for the birds to the outside, or rotation of access? What do they say about protection of the animals? Are conditions consistent with consumer expectations? The cases reflect the rise of the ethical consumer: that consumers care and are interested in how animals are treated by those who profit from our purchases, but that their concern can be exploited by producers. This is an area where there are many lobbyists and consumer groups. But what is interesting is that experts in the field speak of the importance of regulation and enforcement by misleading and deceptive

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conduct legislation and the courts. In fact, enforcement action has been described as the strongest force for change and improvement in the area.36 It is interesting to consider the compilation of penalties set out in ACCC v RL Adams, indicating a range of fines in the realm of $300,000 and $400,000 in some cases. Those amounts have been exceeded in subsequent cases. The number of proceedings against supermarkets and producers in the last decade in this area and the description of farming and production processes in the judgments stand as a fascinating record of a clear turning point in terms of consumer protection beyond safety or financial matters and into the ethical. I suspect we all look at egg carton labelling a little differently these days.

9 10 11 12 13 14 15 16 17 18 19 20

21 22 23 24 25 26 27 28

Conclusion It is often said that the volumes of law reports on the bookshelves are filled with cases where all the parties thought they were right. Whilst that comment stands as a reminder to the repeat litigant, it is important to remember that within those volumes, or electronic folders or databases, also lies a rich source of information about how we have looked at the world over time. I am a follower of Michael Apted’s 7 Up television documentary series. In fact, I have found the series strangely moving over the years, perhaps because of the so called recognition factor. We see bits of ourselves in the people whose lives have been followed over the years, and we recognise that in so many ways we are all the same, with the same hopes and the same fears. Or perhaps I find it moving because as the participants age, so do I, like it or not. Such social documentaries of history are invaluable. We cannot reduce years of Australian legal judgments into a television documentary archive, but we can view them differently. They are not just about precedent, but also contribute to the social history of our mistakes and our progress. Endnotes 1 2

3 4 5 6 7

Button v The Queen [2002] WASCA 35. I would like to thank Catherine Fletcher, Information Commissioner WA and member of the School of Law Advisory Board at the University of Notre Dame, for her invaluable assistance in providing archive materials relating to the Hon David Malcolm for the purpose of this talk. The Hon Michael Kirby, then President of the NSW Court of Appeal, ‘On the Writing of Judgments’ (1990) 64(11) Australian Law Journal 691. Australian Securities and Investments Commission v Kobelt [2019] HCA 18. The majority judgments were those of Kiefel CJ and Bell J; Gageler J; and Keane J. The minority was composed of Nettle and Gordon J, and Edelman J. Bell Group Ltd (in liq) v Westpac Banking Corp (No 9) [2008] WASC 239 (‘Bell’). Rush v Nationwide News Pty Ltd (No 7) [2019] FCA 496 at [1].

29 30

31 32 33 34 35 36

Michael Pelly, ‘Bard on side of court buttocksflasher’, Australian Financial Review (online at 1 July 2019) <https://www.afr.com/life-and-luxury/arts-and-culture/ bard-on-side-of-court-buttocks-flasher-judge20190625-p52197>. [2019] FCA 1003. Barclay Mowlem Construction Ltd v Dampier Port Authority [2006] WASC 281 at [9]. [2019] NSWSC 397. [2018] NSWSC 241. [2019] FCA 583. [2018] FCA 378. [2018] FCA 1936. The work is done, thanks be to God. (2018) 42(1) Melbourne University Law Review 274. Ibid at 283. Ibid. See, for example, Warrie (formerly TJ) (on behalf of the Yinjibarndi People) v State of Western Australia [2017] FCA 803 at [142]; Dempsey obh of Bularnu, Waluwarra and Wangkayujuru People v State of Queensland (No 2) [2014] FCA 528 at [548]-[556]. Mabo v Queensland (No 2) (1992) 175 CLR 1; [1992] HCA 23. Chamberlain v R (No 2) (1984) 153 CLR 521; [1984] HCA 7. Dietrich v R (1992) 177 CLR 292; [1992] HCA 57. Waltons Stores (Interstate) Ltd v Maher (1988) 164 CLR 387; [1988] HCA 7. Commonwealth v Tasmania [1983] HCA 21; (1983) 158 CLR 1. Ibid at 12-13. Ibid at 172-173. ‘World Heritage List’, United Nations Educational, Scientific and Cultural Organization, (Web Page) <https://whc.unesco.org/en/list/>. Commonwealth v Tasmania at 174-175. H Douglas, J Hammill, E Russell and W Hall, ‘Judicial views of foetal alcohol spectrum disorder in Queensland’s Criminal Justice System’ (2012) 21 JJA 178 at 179. [2016] WASCA 164. [2016] WASCA 164 at [105]. [2010] FCAFC 119; (2010) 188 FCR 393. (2013) 250 CLR 441; [2013] HCA 55. [2015] FCA 1016. C Parker and J De Costa, ‘Misleading the Ethical Consumer: The Regulation of Free-Range Egg Labelling’, (2016) 39 Melbourne University Law Review 895 at 940.

Anticipating Obligations Gino Dal Pont Professor, Faculty of Law, University of Tasmania Ethics Column

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As the lawyer-client relationship is constituted by contract, it is usual to assume that corresponding obligations are triggered by contract.

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While a common assumption, there are occasions where obligations in fiduciary law, tort law, confidentiality and statute can precede the retainer.

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Lawyers should therefore be alert to the prospect of obligations that may emerge independent of an existing retainer.

That a lawyer-client relationship is created by way of contract — termed a retainer — has long been established. The terms of this contract, whether express or implied, serve to set the boundaries of authority conferred upon the lawyer, ordinarily substantiate the lawyer’s entitlement to remuneration (often via an attendant costs agreement) as well as fundamentally to identify the client. In this context, as in various other contractual relationships, contract moreover serves as the threshold through which other duties are attracted, namely duties super-imposed by fiduciary law, tort law, the law of confidentiality and under the auspices of statute. It is often assumed, to this end, that these obligations are triggered from the moment of entry into the retainer and, with the exception of confidentiality, expire once the retainer has come to an end. Yet while perhaps a convenient rule of thumb, it is hardly one that can be stated categorically. There are instances where, say, fiduciary law and confidentiality can infuse relations outside of an existing lawyer-client retainer. In the fiduciary sphere, by way of example, the New South Wales Court of Appeal in a 2019 decision ruled that a solicitor owed fiduciary obligations to a prospective client during negotiations for and steps taken to establish a retainer.1 Macfarlan JA, with whom Bathurst CJ and McCallum JA agreed, remarked that ‘fiduciary duties may, and ordinarily will, be owed in the course of negotiations for and steps taken to establish a fiduciary relationship’.2 This observation draws support from case law on putative partnerships and joint ventures.3 His Honour voiced concern that ‘[t]he salutary effect of fiduciary duties would be considerably diminished if soon-to-be fiduciaries could ignore conflicts of interest, or fail to disclose material facts, in the creation of their fiduciary relationships’.4 That fiduciary law can invade professional relations before any retainer agreement is effected suggests potential scope for tort and confidentiality obligations preceding or pending any such agreement. From a

tort law perspective, the fact that the law is willing to countenance a duty of care owed to non-clients in a variety of scenarios, which are not closed,5 itself suggests a lack of temporal identity between contract and tort. So far as confidentiality is concerned, its tentacles are not confined to communications under the umbrella of a contractual relationship (or a fiduciary one); it can stem (in equity or under statute) independently of other legally recognised relations. Lawyers can in the course of their practice receive confidential information from a prospective client. For instance, a prospective client may consult multiple law practices in an effort to decide which to select to represent him or her in the matter (sometimes described as a ‘beauty contest’). This may involve the prospective client disclosing what may come under the veil of confidentiality, potentially sufficient to disqualify a practice that he or she did not select from subsequently acting in the matter. Professional rules in Western Australia explicitly countenance this prospect, in defining ‘former client’ to include a person who ‘provided confidential information to the solicitor, notwithstanding that the solicitor was not formally retained and did not render an account’.6 The Legal Profession Act 2008 likewise envisages the prospect of lawyer obligations preceding entry into a retainer. It requires that costs disclosure be ‘made in writing before, or as soon as practicable after, the law practice is retained in the matter’.7 While the impending ‘uniform law’ equivalent speaks in terms of disclosure ‘when or as soon as practicable after instructions are initially given in a matter’,8 and thereby appears to temporally align the obligation with (or after) entry into a retainer, it might not always be easy to correlate costs disclosure with the giving of full instructions. Ultimately, therefore, lawyers should not blindly proceed on the assumption that their professional obligations cannot antedate the retainer, but be alert to scenarios where a pre-existing obligation may arise. NOTES: 1 2 3

4 5 6 7 8

Rahme v Benjamin & Khoury Pty Ltd [2019] NSWCA 211. Ibid at [86]. As observed in United Dominions Corporation Ltd v Brian Pty Ltd (1985) 157 CLR 1 at 7–8 per Gibbs CJ. See, for example, Fraser Edmiston Pty Ltd v AGT (Qld) Pty Ltd [1988] 2 Qd R 1; Tuna Tasmania Pty Ltd v Allison [2003] TASSC 4. Rahme v Benjamin & Khoury Pty Ltd [2019] NSWCA 211 at [90]. See G E Dal Pont, Lawyers’ Professional Responsibility, 6th ed, Lawbook Co, 2017, pp 682–698. Legal Profession Conduct Rules 2010 (WA) r 13(1)(b). Legal Profession Act 2008 (WA) s 262(1). Legal Profession Uniform Law s 174(1)(a).

FEDERAL COURT JUDGMENTS Dan Star QC Owen Dixon Chambers West, Melbourne

Administrative law and corporations law Judicial review of decision of Australian Government Takeovers Panel – allegation of apprehended bias against president of the Panel In Aurora Funds Management Ltd v Australian Government Takeovers Panel (Judicial Review) [2020] FCA 496 (17 April 2020) the Court dismissed an application for judicial review of a decision of the Australian Government Takeovers Panel (Panel). The applicant had sought judicial review of the Panel’s finding that the applicant and another listed entity (Keybridge Capital Ltd (Keybridge)) were “associates” within the meaning of s12(2) of the Corporations Act 2001 (Cth) and its determination that there were unacceptable circumstances under s657A of the Corporations Act 2001. An additional ground raised was a reasonable apprehension of bias in relation to the sitting president of the Panel, Mr Ian Jackman SC. The issues before the Panel were the extent to which the applicant and Keybridge were “associates” and whether the degree of influence exercised over them by a Mr Bolton was itself a separate basis for concluding that there were “unacceptable circumstances”. It was based on events largely between October 2016 and June 2017. Many years earlier, Mr Bolton was involved in a commercial dispute that led to a proceeding in the Supreme Court of New South Wales (the Supreme Court proceeding) against a number of defendants over the affairs of a unit fund on the ASX, the Brookfield Prime Property Fund (the fund). This had nothing to do with the parties or persons before the Panel, however Mr Bolton was a common integer in both. In 2015, a company associated with Mr Bolton commenced the Supreme Court proceeding against a number of defendants over the affairs of the fund including its trustee, Brookfield Multiplex Capital Management Ltd (Brookfield). Brookfield retained King & Wood Mallesons (KWM) to act on its behalf in the Supreme Court proceeding and in November 2015 they

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delivered a first brief in the proceeding to Mr Jackman SC. The Court found that Mr Jackman SC in fact did no work on the first brief (at [69]-[70]). Mr Jackman SC was contacted by the Panel in late May 2017 to see if he would be available to form part of a panel. Mr Jackman’s evidence was that the Supreme Court proceeding simply did not cross his mind in May 2017 when the Panel contacted him (at [74]). The Panel’s decision was on 14 June 2017 (at [76]) and its decision effectively rejected sworn evidence of Mr Bolton (at [85]). In February 2019, KWM delivered a fresh second brief in the Supreme Court proceeding to Mr Jackman SC and he performed work pursuant to that retainer (at [81]). On the facts as Court assumed them to be, Mr Jackman was briefed for Brookfield in the Supreme Court proceeding while serving on the Panel but he had never done any work on the brief and he had no knowledge of the role or company associated with Mr Bolton in that proceeding (at [86]). The Court applied the accepted principles, in particular the test from Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 (at [87]-[88]). The Court held that the test for apprehended bias in Ebner was not satisfied. Perram J stated at [98]: “The result of the Panel’s deliberations could have no impact on the issues in the Supreme Court Proceeding and Mr Jackman SC had no knowledge either that Mr Bolton would be called in the Supreme Court Proceeding or any proposal to traduce his credit should he do so. Consequently, an apprehension of bias does not arise”.

Appeal and tort law Principles that guide appellate review of findings of fact In Jadwan Pty Ltd v Rae & Partners (A Firm) [2020] FCAFC 62 (9 April 2020) the Full Court dismissed an appeal challenging the trial judge’s dismissal of the appellant’s applications against the respondent solicitors seeking damages for alleged professional negligence. The appellant had sought damages against its

former solicitors for alleged professional negligence arising out of the revocation of its approval under the National Health Act 1953 (Cth) as a Commonwealthfunded nursing home by a delegate of the Minister for Health and Family Services. The appeal judgment is lengthy and deals with numerous issues. There was a dispute between the parties concerning the principles applicable to the review on appeal of the findings of fact made by the trial judge that were challenged by the appellant (at [402]-[415]). The Full Court considered the relevant wellknown authorities such as, among many others, Devries v Australian National Railways Commission, Fox v Percy and Robinson Helicopter Company Inc v McDermott. Bromwich, O’Callaghan and Wheelahan JJ observed that statements of principle in appellate judgments about these matters (such as non-interference of fact findings in the absence of “incontrovertible facts or uncontested testimony”) should not be treated as if they were provisions of a statute (at [411]).

Costs Maximum costs order under rule 40.51 In Houston v State of New South Wales [2020] FCA 502 (17 April 2020) the Court dismissed an interlocutory application seeking a maximum costs order under r40.51 of the Federal Court Rules 2011 (Cth). Rule 40.51(1) provides: “A party may apply to the Court for an order specifying the maximum costs as between party and party that may be recovered for the proceeding”. The applicant sought an order that the maximum party and party costs which the applicant and respondent could recover from the other is nil. The relevant principles guiding the exercise of the Court’s discretion under r40.51 were not in dispute (at [17]). Griffiths J said at [19]: “It has been acknowledged in various cases relating to r40.51 that the principal purpose of the provision (and its predecessor, order 62A) was not so much a desire to limit the

exposure of a respondent to an adverse costs order in complex and lengthy commercial litigation, but rather with concerns as to access to justice, public interest, and a desire to limit the costs of all parties, particularly in less complex and shorter cases . . .” In dismissing the application, the Court discussed the concept and relevance of whether the litigation was in the public interest (at [22]-[30]).

Representative proceedings Application for production of respondent’s insurance documents In Evans v Davantage Group Pty Ltd (No 2) [2020] FCA 473 (9 April 2020) the Court refused the applicant’s application for production of various insurance documents that may respond to any of the applicant’s and group members’ claims made against the respondent. The applicant relied on ss33ZF(1), 37M and 37P of the Federal Court of Australia Act 1976 (Cth) (FCA Act). The insurance documents were sought for laudable objectives, in particular so that the applicant better inform himself on a range of issues such as whether it was commercially viable to prosecute the group proceeding to judgment and whether it was appropriate to settle the matter and if so for what quantum.

The Court refused the application. Beach J explained (at [4]): “. . . resort to the mantra of contemporary case management theory and the innovative properties of s33ZF(1) do not justify my acceding to the applicant’s application. As to the latter, there has recently been a set back in the evolutionary development of s33ZF(1). As to the former, case management practices of the type encouraged by ss37M and 37P are designed to produce litigation which is run efficiently and fairly in the interests of all parties. But such provisions are not designed to distort the playing field so as to confer an asymmetric commercial advantage in favour of one party at the expense of another . . . The protective role reflected in provisions such as s33ZF(1) is there to ensure that each group member’s claim, given their non-party and presumed absent status, is litigated and resolved as well as or as close to as well as if they had been a named applicant with their own legal representation. Further, the protective role is to be viewed in the context of the pursuit of a grouped procedure to the advantage and efficiency of all. By ‘all’, I mean the applicant, the group members, the respondent and the Court. But the protective role is not designed to put a respondent at an asymmetric commercial disadvantage. It is not designed to give a group member any greater rights visa-vis a respondent, other than ones that

necessarily flow from the grouping of multiple claims per se, than they would have had if they had separately pursued individual proceedings against that respondent. Recourse to the protective role is not to be applied like some thick layer of varnish to gloss over the flawed substratum of the applicant’s arguments.” The Court held it had the power to order production of the documents under s23 of the FCA Act but declined to exercise its power to do so (at [5], [16] and [111][112]). The judgment contains reference to legal principles establishing that insurance policies are not normally discoverable where they are not relevant to the determination of a fact in issue (at [46]) and that case management principles of themselves do not justify an order for production of an insurance policy that was not otherwise discoverable in accordance with the Rules of Court (at [77]-[80] and [95]-[97]).

Dan Star QC is a Senior Counsel at the Victorian Bar, ph (03) 9225 8757 or email danstar@vicbar.com.au. The full version of these judgments can be found at www.austlii.edu.au. Numbers in square brackets refer to a paragraph number in the judgment.

HIGH COURT JUDGMENTS David Kelsey-Sugg Castan Chambers, Melbourne

Criminal Law Sentence – Chiro v The Queen In KMC v Director of Public Prosecutions (SA) [2020] HCA 6 (18 March 2020) the applicant, KMC, was charged in the District Court of South Australia with one count of persistent sexual exploitation of a child against s50(1) of the Criminal Law Consolidation Act 1935 (SA). After a trial before a judge and jury, the jury returned a unanimous verdict of guilty. The jury was discharged without being asked any questions as to the basis of its verdict. The applicant was sentenced to imprisonment for 10 years and three days, with a non-parole period of five years. After the applicant was sentenced, the High Court delivered its judgment in Chiro v The Queen (2017) 260 CLR 425 in which the plurality stated that: “the judge should request that the jury identify the underlying acts of sexual exploitation that were found to be proved unless it is otherwise apparent to the judge which acts of sexual exploitation the jury found to be proved”. Where a jury is not questioned as to the basis of its verdict, the plurality in Chiro held, “the offender will have to be sentenced on the basis most favourable to the offender”. The applicant, KMC, sought to appeal on the grounds that his sentence and the non-parole period were manifestly excessive and that, contrary to Chiro, the sentencing judge had not sentenced the applicant on the basis most favourable to him consistent with the verdict of the jury. The respondent, the Director of Public Prosecutions (SA), sought to uphold the sentence relying on s9(1), Pt 4 of the Statutes Amendment (AttorneyGeneral’s Portfolio) (No 2) Act 2017 (SA) (“the Amending Act”). The object of Pt 4 of the Amending Act was to overcome the effect of Chiro. But in order for s9(1) to apply, the applicant had to have been sentenced “having regard to the acts of

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sexual exploitation determined by the sentencing court to have been proved beyond a reasonable doubt”. The High Court unanimously held that the sentencing judge did not make findings as to what acts of sexual exploitation he found to have been proved beyond reasonable doubt. This meant that s9(1) of the Amending Act was not engaged. The High Court concluded that the applicant had not been sentenced on the basis of the facts most favourable to him, and his sentencing was therefore contrary to what the law (as stated by Chiro) required.

sentences imposed on the charges of murder and attempted murder were manifestly excessive, that the appellant had accepted the respondent’s plea of guilty to the charge of infanticide. The High Court confirmed that the appellant’s acceptance of the respondent’s plea to the charge of infanticide was irrelevant to the sentences to be imposed on the other charges. By majority, the High Court found that the Court of Appeal erred in taking that irrelevant consideration into account.

Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ jointly. Appeal allowed.

Kiefel CJ, Gageler and Nettle JJ jointly. Gordon and Edelman JJ jointly dissenting. Appeal from the Court of Appeal of the Supreme Court of Victoria allowed.

Criminal law

Native title

Sentence – irrelevant consideration

Aboriginals – native title rights and interests

In The Queen v Guode [2020] HCA 8 (18 March 2020) the respondent, Ms Guode, deliberately drove into a lake in Wyndham Vale, Victoria, while four of her children were in the car. She was charged with infanticide (charge 1), murder (charges 2 and 3) and attempted murder (charge 4). She pleaded guilty to all counts in the Supreme Court of Victoria. The primary judge imposed a total effective sentence of 26 years and six months’ imprisonment with a non-parole period of 20 years. The respondent applied for leave to appeal against her sentence on the ground that it was manifestly excessive. The Court of Appeal of the Supreme Court of Victoria allowed the appeal and resentenced her, imposing a total effective sentence of 18 years’ imprisonment with a non-parole period of 14 years. The appellant appealed to the High Court on the sole ground that the Court of Appeal had erred by taking into account as a relevant consideration, in the determination of whether the

Western Australia v Manado; Western Australia v Augustine; Commonwealth of Australia v Augustine; Commonwealth of Australia v Manado [2020] HCA 9 (18 March 2020) were four appeals from a judgment of the Full Court of the Federal Court of Australia. The appeals turned on the construction of s212(2) of the Native Title Act 1993 (Cth), which provides that: “[a] law of the Commonwealth, a State or a Territory may confirm any existing public access to and enjoyment of” various places including waterways; beds and banks or foreshores of waterways; coastal waters; beaches and stock-routes among others. The object of s212(2) was to preserve the principle of public access to beaches and other categories of lands and waters notwithstanding the possibility that native title might exist in respect of them. The question for the High Court was whether the ability of members of the public to access and enjoy unallocated Crown land comprising of waterways,

Dampier Peninsula, Western Australia

beds and banks or foreshores of waterways, coastal waters or beaches in the mid-Dampier Peninsula, Western Australia, had been validly recorded, pursuant to s225(c) of the Native Title Act 1993 (Cth), in two native title determinations made in respect of large areas of land and waters located north of Broome in the Dampier Peninsula. The High Court answered that question in the affirmative. Kiefel CJ, Bell, Gageler, Keane and Gordon JJ jointly. Nettle and Edelman JJ each separately concurring. Appeal from the Full Court of the Federal Court of Australia allowed.

Taxation Income tax (Cth) – assessable income – controlled foreign companies BHP Billiton Limited v Commissioner of Taxation [2020] HCA 5 (11 March 2020) concerned Part X of the Income Tax Assessment Act 1936 (Cth) (ITA) which deals with Australian resident taxpayers who defer or avoid tax on foreign-sourced income by interposing entities in low-tax jurisdictions between the source of income and the Australian resident. Part X applies to Australian resident taxpayers with a sufficiently substantial interest in a controlled

foreign company (CFC). It operates to attribute a share of the CFC’s income to the resident taxpayer. The appellant, BHP Billiton Ltd (BHP Ltd), was an Australian resident taxpayer and part of a dual-listed company arrangement with BHP Billiton Plc (BHP Plc). BHP Billiton Marketing AG (BMAG) was a Swiss company and was a CFC of BHP Ltd. BMAG purchased commodities from BHP Ltd’s Australian subsidiaries and from BHP Plc’s Australian entities for sale into the export market. BMAG derived income from those sales. There was no dispute that BMAG’s income from the sale of commodities it purchased from BHP Ltd’s Australian subsidiaries was to be included in the assessable income of BHP Ltd under Pt X. The question for the High Court was whether BMAG’s income from the sale of commodities it purchased from BHP Plc’s Australian entities was also to be included in the assessable income of BHP Ltd under Pt X. That question depended on whether BHP Plc’s Australian entities, the sellers of the commodities to BMAG, were “associates” of BMAG for the purpose of s318(2) of the ITA.

company is sufficiently influenced by the other entity. The respondent, the Commissioner of Taxation, contended that BHP Plc’s Australian entities were associates of BMAG for three reasons: first, BHP Ltd was “sufficiently influenced” by BHP Plc; second, BHP Plc was “sufficiently influenced” by BHP Ltd; and third, BMAG was “sufficiently influenced” by BHP Plc and BHP Ltd. The High Court unanimously accepted all three of those contentions. Kiefel CJ, Gageler, Keane, Gordon and Edelman JJ jointly. Appeal from the Full Court of the Federal Court of Australia dismissed.

David Kelsey-Sugg is a Victorian barrister, ph 9225 6286, email dkelseysugg@vicbar.com.au. The full version of these judgments can be found at www.austlii.edu.au.

For the purposes of Pt X, one company is an “associate” of another if the

WA Case Notes By Jacob Higgins

Browne v Director General, Department of Water and Environmental Regulation [2020] WASCA 16 Decision Summary The Supreme Court allowed an appeal against a decision to exclude public service in other states from calculating a severance payment for an employee of the WA Department of Water and Environmental Regulation (‘the Department’). In doing so, the Court discussed the principles by which a term can be construed where the legislation delegates the definition to another law or order.

Background & Key Facts Browne was employed by the Department for a number of years and had previously been employed in the Tasmanian public service for 16 years. He accepted a voluntary severance offer from the Director General of the Department in December 2017. The Public Sector Management (Redeployment and Redundancy) Regulations 2014 (WA) (‘the Regulations’) provide for a severance payment of 3 weeks pay per year of continuous service. The Regulations refer to the Wages Employees Long Service Leave General Order of the Industrial Commission (‘the Order’) to define “continuous service.” However, the Order was repealed in 2006, and does not contain a specific definition of “continuous service,” instead defining “service” as service as an employee of a Public Authority, excluding specific circumstances of absence or unemployment. The Director General decided Browne’s continuous service did not include his time in Tasmania and thus did not include it in calculating his severance 48 | BRIEF JUNE 2020

payment, attempting to amend the original offer. Browne contested this decision and referred the matter to the Industrial Relations Commission (‘the Commission’), where the Senior Commissioner found in Browne’s favour. On appeal, the Full Bench of the Commission overturned the decision and reinstated the Director General’s decision. Browne then appealed to the Supreme Court, on the grounds that the Full Bench erred in excluding service from outside WA in calculating the severance payment and failed to interpret the definition of “continuous service” in the Regulations as having the same meaning as in the Order.

other states. It also enlarged the meaning of “continuous” by allowing for the relevant public servant to resign from a Public Authority and commence employment with another in the same state, within a limitation period.

Key Findings

As such, both Le Mierre J at [122], and Buss & Murphy JJ at [75], found that the broad meaning of “continuous service” in the Order should be transferred to the Regulations, extending the use of “continuous service” to employment in the public service of another state. Buss & Murphy JJ, at [76], considered this construction to be neither unreasonable or unnatural, and to give the fullest relief the fair meaning of the Regulations’ language would allow.

Le Mierre J found at [118] the Court needed to ascertain the meaning of “continuous service” in the Order by considering the terms of the Order as a whole, and then apply this meaning in the Regulations based on its context and purpose. At [60], Buss & Murphy JJ emphasised the need to interpret the Regulations “so as to give the fullest relief which the fair meaning of its language will allow, but not that its true signification should be strained or exceeded,” as per Bull v Attorney-General (NSW).1 They further emphasised at [62] the need to examine the language, general purpose and policy of a provision while interpreting it. They concluded at [64] that these general rules of statutory interpretation applied to the construction of delegated legislation such as seen in this case. Le Mierre J found at [119] – [120] the Order enlarged the meaning of “service” by allowing specific periods of time spent unemployed by the relevant Public Authority, including employment in public services in

On the same evidential basis, Buss & Murphy JJ found at [46] the use of “continuous” in the Order applied to both unbroken consecutive years of service, and to service within a year of service which is unbroken. Similarly, they found at [53] that the Order considered “service” to the relevant Public Authority to include employment in service of the Commonwealth or another state.

Full Judgement https://ecourts.justice.wa.gov.au/ eCourtsPortal/Decisions/ViewDecisio n?returnUrl=%2feCourtsPortal%2fD ecisions%2fFilter%2fSC%2fRecent Decisions&id=e3b78a81-9764-4806bf22-54b3f203603a NOTES: 1

(1913) 17 CLR 630, 384.

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

Children – Hague Child Abduction Convention – Return order set aside

Property – Order set aside for denial of procedural fairness – Unwarranted judicial interventions

In Walpole & Secretary, Department of Communities and Justice [2020] FamCAFC 65 (25 March 2020) the Full Court (Ryan, Aldridge & Watts JJ) allowed the mother’s appeal from Ainslie-Wallace J’s order under the Family Law (Child Abduction) Regulations 1986 (Cth) to return to New Zealand (“NZ”) with her two children.

In Finch [2020] FamCAFC 60 (20 March 2020) the Full Court (Ryan, Aldridge & Tree JJ) allowed the wife’s appeal of a property order of the Federal Circuit Court. Her case was that excessive judicial intervention during the hearing denied her a fair trial. The Full Court agreed, at [14] eliciting from Galea v Galea (1990) 19 NSWLR 263 at 281-282 the following relevant legal principles:

The parties cohabited in NZ where the father had many convictions for assault and other offences for which he was imprisoned. He was violent towards the mother, was imprisoned again for assault and in 2012 for contravening a domestic violence order. Their first child was born in 2016 in Australia. The father was deported in 2017 to NZ where their second child was born. In the mother was granted orders for the children to live with her, whereupon she and the children returned to Australia. At the hearing of the father’s application for a return order, Ainslie-Wallace J rejected the mother’s case that there was a grave risk that a return would expose the children to harm or place them in an intolerable situation pursuant to reg 16(3) (b). On appeal the Full Court set aside the return order. Ryan and Aldridge JJ (at [61]) adopted the dissenting judgment of Hale LJ in TB v JB (Abduction: grave risk of harm) [2001] 2 FLR 515: 44. ( … ) Primary carers who have fled from abuse and maltreatment should not be expected to go back to it … We are now more conscious of the effects of such treatment, not only on the immediate victims but also on the children who witness it ( … ) 57. But it cannot be the policy of the Convention that children should be returned to a country where … they are at grave risk of harm, unless they can be adequately protected from that harm. Usually, of course, it is reasonable to expect that the home country will be able to provide such protection. ( … ) 59. … [But it] would require more than a simple protection order in New Zealand to guard the children against the risks involved here … ”

1. The test … is whether the excessive judicial questioning or pejorative comments have created a real danger that the trial was unfair. ( … ) 3. … whether such interventions indicate that a fair trial has been denied to a litigant because the judge has closed his or her mind to further persuasion, moved into counsel’s shoes and “into the perils of selfpersuasion”. ( … ) 4. ( … ) It is important to draw a distinction between intervention which suggests that an opinion has been finally reached which could not be altered by further evidence or argument and one which is provisional, put forward to test the evidence and to invite further persuasion ( … )The Full Court said ([24]-[25]):

“ … [I]f one deducts the 35 minutes which the impugned interventions took from the length of the crossexamination of one hour and 59 minutes, there was a total of no more than 84 minutes of crossexamination, but it was interrupted by impugned interventions 45 times, thereby meaning that counsel, on average, was interrupted nearly every two minutes. ( … ) [25] … Counsel for the wife was significantly impeded in conducting his crossexamination … “In setting the order aside and remitting the case for rehearing, the Full Court said (from [59]):

“ … [W]e conclude that [the] frequent … interventions were … wholly unwarranted, unduly personalised, demonstrated an unfortunate entry by the primary judge into the arena, and did not adequately undo the consequences of the very forceful initial expression of a ‘preliminary view’ by the primary judge. ( … ) [66] ( … ) There is a real danger that the trial was therefore unfair, and hence miscarried.

Children – Unilaterally relocating mother with infant ordered to return – Unacceptable risk of harm rejected In Tandy & Eastman [2020] FCCA 541 (19 February 2020) Judge Young heard the father’s application for the return of a 20 month old child (“X”) who was removed from Darwin to City B by the mother. The mother moved to Darwin to live with the father in 2015. They married in 2017, X was born in 2018 and they separated in 2019. The mother was the child’s primary carer although the father deposed that after separation he was spending “two or three nights a week with the child and some … times on the weekend” ([9]). The mother alleged family violence. Judge Young said (from [23]):

“ … [T]he mother has also annexed … SMS conversations between her and the father [in which] some of the father’s language is boorish, immature and angry and might be interpreted as him reflecting his feelings about the parties’ relationship breakdown. However, the language was not threatening. [24] … I consider that the mother’s family violence claims are not particularly forceful or compelling. ( … ) [25] ( … ) While I accept that there have been unpleasant and distressing … verbal exchanges … I am not satisfied that there is any unacceptable risk of harm to the mother or to the child resulting from family violence.” In ordering the mother to return with the child to Darwin, Judge Young concluded (at [40]-[41]):

“I do not propose to make time orders. I think it is appropriate that the parties discuss this themselves. But I would expect … that the child spend substantial and significant time with the father. Whether the material would justify an equal time arrangement … I am far from sure about: again I would expect the parties to discuss that. I don’t have any concluded view about that and I haven’t heard submissions. … [T]here was some reference … to whether … the mother had a car, should she return to Darwin. … [I]f the mother is to return I expect her to be provided with a motor car, and a serviceable one at that.”

Law Council Update Law Council President, Pauline Wright, statement on abject failure of domestic violence inquiry The Law Council of Australia is appalled at the lack of commitment shown by the majority report of the bipartisan Legal and Constitutional Affairs References Committee in tackling domestic violence. The release of the committee’s majority report Inquiry into domestic violence with particular regard to violence against women and their children represents a sad failure of regard for the lives of those Australians lost to domestic violence, and those who will be in danger in the future. The Law Council commends Senator Rex Patrick on the substance of his dissenting report and for calling out the failings of the committee in meeting its responsibilities, both as a committee of the Parliament and to the people of Australia. The majority report was delivered three months ahead of schedule, without the committee accepting submissions or holding public hearings. As a result, the report amounts to little more than a literature review, posing a number of obvious and often stated questions. This demonstrates a lack of commitment by decision-makers to address a serious community problem and a significant cause of death in Australia. The number of women in Australia who have died at the hands of a current or former partner persists without any significant reduction since 2010. A report by the Australian Institute of Health and Welfare noted that 1 in 6 women have experienced physical or sexual violence by a current or previous partner since the age of 15. One woman was killed every 9 days and one man every 29 days by a partner between 2014-15 and 2015-16. The COVID-19 pandemic has exposed additional dangers for the victims of domestic violence, with a dramatic

50 | BRIEF MARCH 2020

increase in demand for services. Eleven women have been killed in domestic violence incidents since lockdown was implemented in early March. The Law Council has welcomed the government’s announcement of $20 million earmarked to support people affected by domestic violence as well the Help is Here campaign, and the rolling out of extra measures to ensure people experiencing domestic, family and sexual violence know where to get help during the coronavirus pandemic. But a valuable opportunity to examine and improve the programs that are working well to support and protect the vulnerable members of society, has been lost. Chronic underfunding of the family law system by successive governments over many years, continues to leave vulnerable families in crisis.

Statement on drop in the rates of youth in detention by Law Council President, Pauline Wright Any drop in the rates of youth justice supervision should be cause for celebration, but the report of a slight reduction over the past five years in the Australian Institute of Health and Welfare’s (AIHW) Youth Justice Report only serves to highlight systemic problems. The detailed statistics from the AIHW’s report continues to paint a picture of an Australia where being Indigenous, coming from a remote area, or growing up in low socioeconomic circumstances increase a child’s likelihood of contact with the youth justice system. Indigenous children continue to be alarmingly overrepresented in the youth justice system. On an average day in 2018-19, Indigenous children aged 10-17 were 16 times more likely than their non-Indigenous counterparts to be under supervision, rising to 21 times more likely in some states and territories. Indigenous children are 22 times more likely to be in detention

and 15 times more likely to be under community-based supervision. We are also concerned that there has been no improvement to the rates of children in detention awaiting the outcome of their legal matter or sentencing. In 2018-19, about 3 in 5 (63 per cent) young people in detention on an average day were unsentenced, with similar rates reported in 2017-18. This is particularly disturbing given that when they do come to court, many of these children will not be sentenced to any time in detention. More needs to be done and the Law Council calls on federal, state and territory governments to: • increase the minimum age of criminal responsibility to at least 14; • put in place early preventative and diversion services to enable this to happen, with a focus on investing in Indigenous community-led solutions, and particularly in remote and very remote areas; • expand and fund justice reinvestment trials, which have had promising results so far in diverting young people out of the system; and • ensure that the COAG Closing the Gap Refresh process includes a strong youth justice target (and adult justice target) as part of its revised targets. The Law Council believes that complementary Closing the Gap Refresh targets are also critical, with an aim to reduce the proportion of Indigenous children entering out-ofhome care, which often provides a pathway into the youth justice system. The Law Council calls on governments to address the lack of appropriate bail accommodation which leads to many children being held in detention unnecessarily.

The Tale of the Driverless Tram By John McKechnie QC • A series of tornadoes ripped through Mattoon, Illinois, killing over a hundred people and injuring many more. • The second Australian division seeking to reclaim Bullecourt on the western front concluded the attempt with more than 7,000 casualties.

control handle. He was still secured to the tram. But the control handle was worn. It no longer fitted lightly into its sprockets. The handle came out of its socket. Mr Colquhoun still had it in his hand. Suddenly, he was no longer securely attached to the tram at all.

Big problem.

• On a calm and beautiful night en-route between Malta and Gibraltar, HMHS Dover Castle was torpedoed. Six stokers died but 600 wounded soldiers being transported on the hospital ship were saved.

Mr Colquhoun tumbled out the door and onto the road.

• And Mr Sydney Colquhoun reported for work as a driver (known as motorman) for the Auckland Electric Tramway Company.

He called out loudly in the hope of attracting the attention of someone on board. Even if he had succeeded so, it might not have helped much.

Thus begins our tale. The company started business in 1902 after some delay because the first three motormen who had been engaged in Sydney, drowned in the shipwreck of the SS Ellingamite on the way to Auckland.

The conductor was in the middle of the tram, too far to reach the motorman's station. And the control handle was in Mr Colquhoun's hand.

By 1917, Electric Tramway Co had established tramlines throughout Auckland. Mr Colquhoun was a well-regarded motorman had been with the company for eight and a half years.

When he reached the corner at the bottom of the hill, he came upon a terrible sight. The tram had failed to take a bend and left the rails, colliding hard with a bank.

His tram that dark evening was number 102, a nearly new tram in good order.

The tram was badly smashed. Widow Birch was dying of shock. Miss Lockwood was badly injured.

Among his passengers were Mrs Annie Birch, a widow, and Miss Lockwood.

So who was to blame?

The tram, heading for the Auckland terminus near the pier, stopped in Onehunga at Selwyn Street to allow a passenger to board. The conductor gave the signal that all was ready. As was the custom, Mr Colquhoun leaned out and looked back along the tram to make sure all his passengers were safely aboard. To do this, he held onto a nearby stanchion. Unwisely perhaps, he also hung on to the control handle in his other hand. Before the motorman regained his usual position of command, he released the air brakes and gave the control handle a couple of notches of power. This caused the tram to start forward at low speed. Unfortunately, this also caused the motorman to lose his balance and slip. No big problem. He had let go of the stanchion but still had hold of the

52 | BRIEF MAY 2020

By now, the tram was about fifteen or twenty feet away, increasing speed on the downgrade.

He ran as fast as he could but was no match for the runaway tram which disappeared out of view.

"No one" said the coroner's jury into the inquest for the late Mrs Birch though they recommended a chain across the motorman's entrance to prevent him falling off and removal of advertising material in the tram which prevented him from having a clear view of the passengers from inside the car. "No one" said the Court of Appeal when Miss Lockwood appealed against the dismissal of her case for negligence. The maxim res ipsa loquitur (the thing speaks for itself) had no application because everyone knew what happened. (Yes, I know this doesn't make sense.) But perhaps motormen in future were a little more cautious before they released the brakes and applied power. Adapted from Lockwood v Auckland Electric Tramways Company (1917) 1 NZLR 208; Inquest into the death of Elizabeth Annie Birch before a coroner and jury 7 to 8 June 1917.

Professional Announcements

Career moves and changes in the profession

WA Property Lawyers

Lynn & Brown Lawyers

We are pleased to announce the promotion of Sarah Wright to Senior Associate.

Lynn and Brown Lawyers are extremely excited to announce that Karolina Rzymkowska has joined them as Head of Estates. Karolina brings with her a wealth of knowledge and experience.

Sarah, originally from England, joined the team at WA Property Lawyers in 2015 and since that time has practised in the areas of estate planning, farm succession planning, farm leasing and family trust issues. Sarah is actively involved in her husband’s family farm at Mount Barker and is keen to assist other farmers in overcoming the legal complexities that each unique family farming situation presents.

Sarah Wright

Sarah is in charge of our Albany and Kojonup offices and has played a vital role in servicing our country clients in those areas. She is available Mondays through to Wednesdays. We congratulate Sarah on her well-deserved promotion to Senior Associate within the firm.

New Members

Working both in private practice and the financial services industry, her clients range from mums and dads to high net worth individuals with complex financial affairs. Karolina is also a regular presenter at various industry bodies including Legalwise and the Tax Institute of Australia where she educates other lawyers and accountants on all things estates. Lynn & Brown Lawyers look forward to growing as a firm even under such uncertain times that the current pandemic has brought us. We will continue to push and progress through adversity. Director Steven Brown of Lynn & Brown Lawyers believes that “With Karolina’s experience and expertise she is a brilliant addition to the Lynn & Brown team. As the largest solely value based pricing firm in Perth we continue to grow. To have someone with the background and expertise that Karolina brings to the table is a significant win for both our clients and our firm.”

New members joining the Law Society (May 2020)

Restricted Practitioner

Associate Membership

Mrs Hui Ch'ng Ernst & Young Ms Erin Flynn Oswald Legal Miss Kendall Messer Hall & Wilcox Lawyers

Miss Jacqueline Adenan DLA Piper Australia Mr Liam Anderson Corrs Chambers Westgarth Miss Zoe Blight DLA Piper Australia Mrs Cornell Calitz-Havemann Corrs Chambers Westgarth

Ms Felicia Chan Corrs Chambers Westgarth

Ms Emily Pettersson DLA Piper Australia

Miss Courtney Daly The University of Western Australia Business & Law UWA Library

Mr Zachary Rhodes DLA Piper Australia

Mr Ryan Gava DLA Piper Australia Miss Mia Henderson Corrs Chambers Westgarth

Mr Xavier Sweeney Corrs Chambers Westgarth Ms Peggy Thom DLA Piper Australia

Miss Lexie Morris Allion Partners

Classifieds Missing Will Would any person or firm knowing the whereabouts of a will or other testamentary document of RONALD JAMES MATTHEWS born 25/10/1946, late of 12 Adelaide Road, Mallala SA 5502 who died at Mallala 5502 on 27 February 2020 please contact Alex Mandry Legal Group of 329 King William Street, Adelaide SA 5000 on telephone: 08 70874544 or admin@alex-mandry.com.au

Missing Will Would anyone holding or knowing the whereabouts of a Will for the late FLORENCE MAY BLACKWOOD WEBSTER late of 13 First Avenue Mandurah Western Australia, who died on 12 June 1987 please contact Steven Pynt of MP Commercial Lawyers on (08) 9336 6300 or steve@mpcl.net.au

ExprEssions of intErEst We are an established small law firm exploring expansion opportunities, including private merger possibilities. We are a traditional yet dynamic general commercial practice with an established reputation in several specialist industries and fields of law. Whilst we work across multiple sectors, the firm is strategically positioned in our four main practice areas of commercial, employment, estates & litigation. This has allowed us to maintain high level of successful outcomes in those areas in particular. Our values of integrity, relationships and commitment to our clients are key foundations in our firm. We invite individuals and small to medium practices who share these values, and who may be also seeking to expand their capabilities and growth, to reach out to us. Regional firms are of particular interest. To complement our team we are looking for an individual or team with an established referral network and proven track record.

For confidential Eoi please contact the Business Manager on zinnikersla@gmail.com

RU • One of the lawyers our pioneering social enterprise is looking for? • Passionate about working to end global poverty, forever? • Looking for greater meaning in your work? • Driven by a strong desire to succeed? • A team player- accountable, flexible, proactive and solution oriented? • Experienced in Wills and Estates? • Able to work full time, or parttime and then progress to full time? Then tell us a bit about yourself and email your CV to: youropportunity1234@gmail.com All applications treated in strictest confidence.

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

Member Assistance Programme

Employee Relations Advice Line

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

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

Service provided by Converge International

Service provided by CCIWA

Phone: 1300 687 327

Phone: (08) 9365 7660

Practitioner Advice

CoronaCare

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

LawCare WA now includes a suite of dedicated support programmes called ‘CoronaCare’ to help support you and your organisation manage through the uncertainty that we are all experiencing as a result of the emergence of COVID-19 (Coronavirus). Visit our website to find out more.

Referral service provided by WABA

Phone: (08) 9220 0477

Service provided by Converge International

Phone: 1300 687 327 LawCare WA is available to members of

For more information about LawCare WA please visit

lawsocietywa.asn.au/lawcare

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