Brief May 2020 by The Law Society of Western Australia

VOLUME 47 | NUMBER 4 | MAY 2020

Health and Well-Being While Remote Working Also inside... 7 Ways for Lawyers to Look After Well-Being While Working Remotely 6 Keys for Lawyers to Working Remotely and Staying Productive COVID-19 and its Impact on Town Planning Law Risky Business: The Potential Consequences of Contravening a Modern Award Jurisdictional Issues in the Magistrates Court The Freedom of Religion Debate: Where are we and How Did we Get Here?

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Volume 47 | Number 4 | May 2020

CONTENTS

ARTICLES 03

Report on Results of 2020 Member Perceptions Survey

Q & A with Maria P. Falas, Head of Mental Health & Wellness, Life Insurance, Zurich Insurance Company Ltd

7 Ways For Lawyers to Look After Well-Being While Working Remotely

6 Keys For Lawyers to Working Remotely And Staying Productive

COVID-19 and its Impact on Town Planning Law

Risky business: The Potential Consequences of Contravening a Modern Award Jurisdictional Issues in the Magistrates Court

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

The Freedom of Religion Debate: Where are we and How Did we Get Here?

Communications and Design Officer: Charles McDonald

Stories from the Old Court House Law Museum: The First World War and WA’s Young Lawyers

Editor: Jason MacLaurin SC

Recollections of Laurie James From an Admirer

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

RRP $16.00 incl GST. Printed by Vanguard Press

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

Submission of articles: Contributions to Brief are always welcome. For details, contact brief@lawsocietywa.asn.au.

REGULARS

President: Nicholas van Hattem

President's Report

Law Council Update

Senior Vice President: Jocelyne Boujos

Editor's Opinion

Cartoon

Immediate Past President: Greg McIntyre SC

Taxing Matters: Partnership Property – Lessons from Rojoda

Quirky Cases: The Tale of the Trampled Tomatoes

WA Case Notes

Professional Announcements

Federal Court Judgments

New Members

High Court Judgments

Classifieds

Family Law Case Notes

Junior Vice President & Treasurer: Rebecca Lee 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

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

Welcome to the May edition, our first digital Brief! We hope we can make our stories and articles easily available to you while many are still working remotely. The Society understands the financial challenges that many of our valued members are experiencing as a result of the COVID-19 pandemic. We have been working hard to develop a package to assist you in maintaining your membership.

Your COVID-19 Support Package Council has agreed to the following “one off” COVID-19 support package for the 2020/21 financial year: •

Reduced Membership Fee – Ordinary Membership fees have been reduced by 30%.

•

Free CPD – All Ordinary members renewing or joining by 31 July will have access to free CPD for the 2020/21 CPD year via CPD Freedom (terms, conditions and exclusions apply – see our website for details) for no additional cost.

•

Payment by instalments – Individuals will have the choice to pay by monthly instalments under our new payment plan option. Law Mutual Administration Levy Refund – the levy (of $100 per practitioner) will be reduced to Nil for practitioners who are Society members as at the 31 December 2020 and had been members for at least three months prior to that date. Payments of the levy made for qualifying practitioners (by 15 November) will be repaid by Law Mutual after the 31 December 2020.

Further details and terms and conditions of the support package are available at our website: https://bit.ly/3bRBaMw The provision of support to Ordinary members by way of the 30% reduction to members fees will be primarily funded through accessing a portion of the Society’s cash reserves and rationalisation of staffing costs. As outlined in my Update from the President email of 1 April 2020, I, the CEO and Law Society staff collectively volunteered to reduce our hours and pay by 40% where it was possible to do so. 02 | BRIEF MAY 2020

Based on existing staffing levels, this initiative reflects a saving of $1.2m over a twelve-month period. Accessing capital reserves to support members has been planned and measured to ensure that the maximum membership fee support could be provided to our Ordinary Members while still maintaining the reserves required to ensure that a stable membership organisation ready to advance and grow once these challenging times pass is maintained. While our current operations are impacted by COVID-19, our team is working to assist in reducing the financial impact and to ensure that your peak professional body is here for you at this important time and into the future. Our team has worked to stagger their hours so that we collectively are able to continue to perform the important functions of the Society while our traditional face-to-face engagement is not presently possible. Right now, you don’t need to do anything to access this support. This package will be part of the Law Society's FY2020/21 renewals process, which will commence on Monday, 25 May 2020.

We are here to support you Dealing with the unprecedented challenges of COVID-19, it's more important than ever to stay connected and engage with your community. In the weeks and months ahead, 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. As the COVID-19 situation unfolds each day, we have made it a priority to keep our members updated about the latest developments, including those relating to the government, courts, tribunals and other relevant organisations. This information is published on a dedicated COVID-19 hub on the Society’s website at lawsocietywa.asn.au/covid-19information-and-resources and also on our CPD pages. We encourage you to visit this useful page, as it provides valuable information and resources for the legal profession. Despite the new challenges, the important work of the Society’s Council continues,

with meetings held remotely. The Society has also taken important measures to ensure the health and wellbeing of its members, staff and other stakeholders and to enable the Society to continue to deliver essential services. All staff are currently working remotely from home. Please feel free to contact our staff if you have any queries or concerns by emailing membership@lawsocietywa. asn.au or calling (08) 9324 8600. The Law Society looks forward to supporting you in the next year and beyond.

Vale the Honourable Stephen Thackray The Society was deeply saddened by the sudden passing of the Honourable Stephen Thackray, former Chief Judge of the Family Court of Western Australia. The Family Court of Western Australia, the WA legal profession and the wider community have benefited considerably from the Honourable Stephen Thackray’s wealth of knowledge and experience. He was an outstanding judge and leader, presiding with wisdom and compassion, and a great friend to many. He will be deeply missed.

Vale Terry O’Connor QC The Society was also saddened to hear of the passing of Terry O’Connor QC, a loyal and longstanding supporter of the Law Society who also served on the Society’s Council from 1971-72. Mr O’Connor QC provided decades of dedicated service to the legal profession and the wider community, serving on the boards of several public listed companies, educational, sporting and charitable bodies. He was a leader in so many fields and will be very much missed.

Farewell to his Honour Chief Judge Sleight The retirement of his Honour Chief Judge Sleight was formally acknowledged in the State’s first virtual ceremonial sitting, held on the District Court website on Friday 1 May 2020. It was a privilege to join her Honour Senior Judge Wager (as her Honour the Chief Judge then was), the Hon Chief Justice, the Hon Attorney General, and the presidents of WABA and Criminal Lawyers Association to wish his Honour well. At the time of publication, the video of the ceremony is available at districtcourt.wa.gov.au.

Report on Results of 2020 Member Perceptions Survey The Law Society of Western Australia’s overall performance remains at high levels. An independent survey with 107 members, conducted by CATALYSE® in March-April 2020, found that 89% consider membership to be essential or nice to have. The Law Society is seen to be doing more to understand members’ needs and to keep members well informed about changes in legislation and key issues affecting the

profession. We were pleased to see that perceptions about our level of understanding increased from 68% to 78% and our efforts to keep members informed increased from 78% to 90%. Members continue to express high levels of satisfaction with key communication channels, including the Brief Journal, Friday Facts, CPD News and YLC News.

Member Satisfaction

The Society is the Voice of the Legal Profession in Western Australia

Has a Good Understanding of Members’ Needs

Keeps Members Well Informed About Changes in Legislation and Key Issues Affecting the Profession.

ecommunication

Brief Journal

The Society's Website

Continuing Professional Development

Target achieved Focus area

Thank you to those members that responded to the survey. If you have ideas about how the Law Society can improve, or to discuss these results further, please contact the Chief Executive Officer, David Price on 9324 8605 or dprice@lawsocietywa.asn.au 03

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

While, at time of writing, there appears hope of improved conditions and a return to something more normal, the COVID-19 pandemic has already had and will continue to have a severe impact on the profession. The President’s Report in this edition of Brief updates the Society initiatives, including special measures being offered to help the profession. As mentioned in April's President's Report, Brief is now published exclusively in digital format. Following the June edition, Brief will move to a bimonthly format. This change is being made in the context of the Society’s COVID-19 membership support package. The Society will continue to provide members with valuable digital communications including email updates and video and audio content, in addition to the Brief journal you enjoy. This Brief has items concerning COVID-19, including Glen McLeod, Chelsea White and Lea Hiltenkamp on its effect on town planning law, a health and wellbeing Q & A with Maria P. Falas and David Blades, and Petris Lapis’ keys points for lawyers when working remotely. A recent trademark infringement case from the US, in the context of the courts’ response to COVID-19, gave prominence to an interesting quote. Despite the Chicago Federal Court ordering all civil litigation to be in abeyance, lawyers for British artist Anne Stokes brought and pressed urgent injunction proceedings concerning “knockoffs” of Stokes’ distinctive unicorn images, the alleged infringing works including a “puzzle of an elf-like creature embracing the head of a unicorn on a beach” and “phone cases featuring elves and unicorns, and a unicorn running beneath a castle lit by a full moon”.1 Judge Steven C. Seeger was unimpressed2, writing the “world is facing a real emergency. The Plaintiff is not” and the filing calls to mind the sage words of Elihu Root: “About half of the practice of a decent lawyer is telling would-be clients that they are damned fools and should stop.” Research into Elihu Root initially came up, unpromisingly for any editorial, with items such as “No anecdotes are told of Elihu Root: America's Twentieth Century Wise Man” and “Elihu Root did not make the history books, but he did make history”3. However, this remarkable lawyer-turnedstatesman of the late 19th and early 20th centuries was, amongst other things, US Secretary of War, Secretary of State and then an international figure, no stranger to The Hague and the international institutions he helped set up, as well as the winner of the 1912 Nobel Peace Prize.

04 | BRIEF MAY 2020

The American Bar Association described Root’s qualities as a lawyer, that held him in good stead to be a great statesman, by observing: “There are lawyers who bind their minds with the technicalities of their profession, tying up their activities with red tape”, others “so fascinated with legal researches and […] so burdened with their accumulations of learning that they are too heavily weighted for the civic struggle”, but there a few “unsurpassed in technical skill, who, without abating the zeal of their pursuit of knowledge ever show the mastery of mind whose training and information are instruments and not fetters.”4 In these binge-watching times5 such observations bring to mind Tom Hanks’ portrayal of attorney James B. Donovan, recruited in the height of the Cold Way to negotiate the release of downed U-2 plane pilot Gary Powers, in Spielberg’s Bridge of Spies. It also brought to mind how the Editor somehow can’t get his kids to watch Bridge of Spies, to see the potential greatness of lawyers, yet can’t get them to stop gleefully celebrating T-Rex eating the lawyer, in the most undignified of circumstances, in Spielberg ’s Jurassic Park. It has not been all binge-watching Hanks/ Spielberg for the Editor, who got out for a round of golf, though out of an abundance of caution in complying with the requisite conditions, had only one playing partner – a volleyball coated in hand sanitizer. It is hard to overstate how distressing it is to lose one’s playing partner in a water hazard while playing a hole with wicked downhill lies.6

One lawyer who probably wished the court had taken Judge Seeger’s approach is Mr Bijoy Adhikary, who recently had the Calcutta High Court9 urgently hear his client’s claim to prevent the auction of a bus, notwithstanding that the bank had seized it several months ago. While Justice Dipankar Datta was denying the motion, Mr Adhikary repeatedly interrupted the judge, thumping the table and microphone, and declared that the Judge’s “future shall be doomed” and “cursed that [the Judge] be infected by the coronavirus." The wheels of justice actually started turning quickly as Justice Datta issued a suo motu10 rule for contempt against Mr Adhikary. This seems to represent a lawyer’s failure to follow a modified version of the Elihu Root Rule, in which the lawyer should realise that they should “just stop”. This edition has, in addition to COVD-19 focused items, articles by Elmi Carlean on the Magistrates Court, Dr Renae Barker on freedom of religion, Cory Fogliani on the consequences of contravening a modern award, and our much-appreciated regular items including John McKechnie QC’s Quirky Cases, Grahame Young on Taxing Matters, WA Case Notes by Greg McIntyre SC & Peter Dawson and other case notes by David Kelsey-Sugg, Dan Star QC and Robert GladeWright. Finally, on the very sad note of the passing of Laurie James AM, who would be so well known to many in the profession, we have some reminiscences and tributes by Vidal Hockless. Endnotes

Unicorns do of course make occasional appearances in legal circles, as notwithstanding the conversion to the Kangaroo and Emu coat of arms, they are seen in certain parts of the Supreme Court building. The battle between the Lion and the Unicorn7 is referred to in traditional folk songs and nursery rhymes as: “The lion and the unicorn were fighting for the crown, the lion beat the unicorn all around town”8. Of course, with COVID 19 restrictions, any such battle today could only occur, World Wrestling Entertainment (WWE) being declared an essential service, with no crowd and likely ending with the Lion throwing the Unicorn off a ladder and through a table.

The Editor is hesitant to express a strong view as to the importance of those items of unicorn product, lest it reveal to all what he rather unimpressively got his mother for Mother’s Day.

“Judge slams emergency motion to halt knockoff unicorn art amid coronavirus pandemic”, D Weiss, abajournal.com, 25/3/20.

See that article by A Akiboh, ushistoryscene.com; and "Elihu Root" (1937) 18 Brit YB Inti L 152.

“Elihu Root”, ABAJ, vol. 23/3, March 1937.

Which in the Editor’s house is boiling down to three names, Tom Hanks, Jason Bateman and Stone Cold Steve Austin.

“Wilson?... Wilson? Wilson… Nooooo! Wilson... Nooooo!!!”

The Lion usually representing England, and the Unicorn representing Scotland.

Roud Folk Song Index # 20170; Opie, The Oxford Dictionary of Nursery Rhymes, OUP (1951).

The Unicorn also appears in Lewis Carrol’s Through the Looking Glass where, Alice and the Unicorn previously sharing the mutual view that each other were only “fabulous monsters”, suggests a very lawyerly, or at least deft negotiating, proposal: "Well, now that we have seen each other” then "if you'll believe in me, I'll believe in you. Is that a bargain?"

''’Be Infected With Virus,’ Lawyer Curses Judge After Unfavourable Order”, timesofindia.indiatimes.com, Apr 7, 2020.

10.

“Of the Court’s own accord” or possibly in the vernacular “You’ve really done it now”.

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

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.

Q & A with Maria P. Falas, Head of Mental Health & Wellness, Life Insurance, Zurich Australia Limited

By David Blades Chisholm Law – Member, Law Society Mental Health and Wellbeing Committee

Maria P. Falas

What insights can you provide, drawing upon your role as a Head of Mental Health & Wellness?

Mr. Perfect to our customers and partners as a place where people can get involved and feel connected with other humans.

Mental illness is a leading cause of life insurance claims in both income protection (IP) insurance and total and permanent disability insurance (TPD). When examined for lawyers specifically, our death claim data shows a high prevalence of substance abuse and deaths referred to the Coroner, indicating a related mental illness.

Health and wellbeing are core to our value proposition and I’m thrilled to be leading our focus on our customers’ mental health and wellbeing (‘MHW’). It’s a way we can bring value to and support our customers beyond the financial security that life insurance provides.

Part of my role is to identify what more we can be doing as a life insurer to support the mental wellbeing of our customers and to implement programs to support our customer’s mental health throughout their life journey. For example, we have partnered with Mr. Perfect, a grassroots charity aimed at improving connections between men in their local communities (https://mrperfect.org.au/). While technology and social media mean we are the most connected that we have ever been, large numbers of Australians report feelings of isolation and loneliness. This could be due, in part, to a lack of quality human interactions sans technology. Mr. Perfect creates an inclusive and safe environment for men to connect with other men in their community over a humble BBQ. As a life insurer we promote

06 | BRIEF MAY 2020

Why is important that we explore the mental health of lawyers? This is an important question and a topic I feel passionate about. Having started my career as a summer clerk over 20 years ago, I was exposed early on in my career to the pressures faced by lawyers day in, day out. We all want to make a positive contribution in the workplace by demonstrating our commitment and skills – taking on large volumes of demanding work. A situation which over time can lead to poor mental health. The challenge that many lawyers face is a culture where exposing vulnerabilities may be perceived as a “weakness” or “not coping”. The irony is that creating a mentally healthy workplace means people are able to bring their best selves to work, contribute positively to the workplace and still have fuel left in the tank for life outside of work.

What can law firms do in your opinion? Research supports that Australian businesses will receive an average return of $2.30 for every $1 they invest in effective workplace mental health strategies1. By providing mental healthy workplaces for lawyers and legal teams, we potentially turn the dial on the perceived vulnerabilities of mental illness. In other words, the conversation becomes about ‘how can we make this workplace mentally healthy for our people’. A personal challenge for me when working in the law was juggling the management of client expectations, tight deadlines, reasonable working hours, billable hours and having energy left for my loved ones. It’s so important that expectations around mental health and wellness form part of the training and staff development programs. It’s not about simply offering a gym membership or lunchtime yoga and ticking a box. It’s about a holistic approach to create a mentally healthy workplace for your people with a calendar of simple events every quarter, MHW discussions at 1:1s, encouraging attendance at MHW firm events, wellbeing check-ins at team meetings, rewarding and recognising hard work and

Zurich Australia Limited, North Sydney

including engaging mental health articles in your internal communications. There are many free and accessible tools available that can help support small and large businesses with directions and ideas for implementation. The first big step is acknowledging that MHW is a priority for your workplace and sharing how that will translate into an action plan.

Is stigma still a factor in the law? With so many great community-based not-for-profits promoting the importance of mental wellbeing, awareness has improved over time. There are still pockets where stigma is quite evident, and this can be shown in different ways. For example, take an individual like a lawyer, where their personal brand is so integral to who they are, admitting to experiences of mental ill health may be challenging. Similarly, from a life insurance perspective, when a person is going back to work after a claim there are times when they may experience stigma. That individual may have challenges returning to the workplace and feel additional pressure to perform after being on claims for a mental illness. This could simply be the individual returning to work’s own perceived stigma (i.e. they may think that people are seeing them

differently when they may in fact not be).

What tips do you have for lawyers? Try to find what works for you in terms of self-care and bring it into your daily routine. I completely relate that it can be a challenging balancing act when you have clients calling for advice, team and manager requests and billable hours (along with the rest) to juggle. However, investing some time in self-care should give you more energy to address the challenges. For example, it could be a 30-minute walk during lunch, reading a book in a nearby park, doing a circuit class, meditating, going out for breakfast with close friends, walking your dog… the possibilities are endless. Everyone needs self-care so find what works for you and do your best to bring it into your life as often as you need. For me personally, I try to relive a childhood memory every day. For example, it could be listening to my favourite childhood tune, sometimes it’s eating a food I loved as a child, or making a cup of tea the way my mum made it for me growing up. One of my personal favourites (granted a rare indulgence),

is eating hot chips with vinegar, chicken salt and tomato sauce (it’s delicious honestly!). Reliving childhood memories daily gives me a few moments to switch off and takes me to a happy place in my childhood. We are adults for decades of our lives so it’s nice to go back and revisit happy childhood memories every now and then. Endnotes 1

beyondblue media release, 20 May 2014, beyondblue launches landmark campaign as it says to business: “If you’re not investing in mental health you’re losing money”, <https://www.beyondblue.org.au/ docs/default-source/media-release-pdf/mr-246. pdf?sfvrsn=0>.

Ways for Lawyers to Look After Well-Being While Working Remotely By Petris Lapis B Com LLM FIPA FFA

Many of you will currently be working remotely as our organisations bring into place ‘social distancing’ measures. While these measures are essential for public health, the World Health Organisation (WHO) has acknowledged they can impact the well-being of those who are in these situations. I have worked on my own for several years now and understand intimately the impact it can have. The first couple of days are fun because they are different, but then it starts to become more difficult. Here are seven ways you can maintain your well-being while the social distancing rules apply and you are working remotely: 1. Watch Your Kitchen Habits: When you work in an office, you tend to pack your lunch in the morning and keep your snacking to a minimum during the day. The physical environment helps with this if you want a snack, you often have to leave your place of work and walk to a café. When you work from home, the same physical barriers don’t exist, so you have to be careful not to turn the fridge into an easy distraction device each time you encounter procrastination or need a break. Keep healthy food a priority and put in place some personal guidelines for eating while you are working remotely. 2. Keep A Routine: Some of us experience anxiety when our routine changes or our day is uncertain. To keep this to a minimum, keep yourself in the routine you have established for work. Keep setting your alarm and getting up at the same time, keep getting dressed for work and keep sticking to your regular working hours. This will help with feeling you have purpose and direction even though your physical environment may have changed. Everything you can do to reduce anxiety at this time is helpful. 3. Get Outside: Within the limits of the health guidelines and the building you are in, it is helpful for your wellbeing to connect with nature. If you can go for a walk and combine exercise with nature as part of your routine that is wonderful. Spend time on your balcony or open the window and let in some fresh air. The whole world does not revolve around your laptop. Take the time to focus on the other things that are going on around you and it will help you keep your perspective. 4. Build ‘Micro-Lifts’ Into Your Day: Without your conscious awareness, you normally have ‘micro-lifts’ peppered throughout your day. These are the little moments where you treat yourself to a coffee from your favourite coffee shop, you smile at someone in the street, you have a chat with a colleague or any of the other small things that give you a little boost or micro-lift without you even realising. When you work from home, these things don’t tend to happen naturally, the impact begins to accumulate and normally hits

08 | BRIEF MAY 2020

at around the two-week mark according to Dr Lucy Atcheson, a counselling psychologist. You can create these micro-lifts for yourself by doing something that generates a sense of achievement such as learn a few words in another language, join an online group, try a new form of exercise or talk to a family member, colleague or friend on the phone. Staying connected with others is a great way to give yourself a ‘micro-lift’, especially if you can find something humorous to share in your day. 5. Exercise: Exercise is beneficial for your well-being in so many ways including both physical and mental. If you are not able to do your preferred exercise regime (for example the gym, swim or sport), look for ways you can replace it within the health guidelines or within your own home. Can you, for example, set up a circuit on your deck or in your loungeroom using equipment you have at home? Can you safely go for a walk once a day and still keep your social distance? Exercise is necessary to break up the amount of time you might otherwise spend in front of a screen while working remotely. You need to replace the movement that you had getting to and from work and walking around an office, going to meetings etc. 6. Don’t Get Sucked Into The Negative Thinking Spiral: A danger of working remotely is that you have a lot of time on your own that you wouldn’t normally have. One of the unhelpful things humans do when they have time on their own is self-reflect and not in a positive way. You spend the time passing judgment on yourself and thinking about all the things that are wrong in your life. If left unchecked, this negative spiral can turn into massive life dissatisfaction. It can help if, instead of seeing this as a negative period in your life, you see it as simply a different period. One that has a different rhythm from what you have experienced before. You can head off the negative spiral by finding things to be grateful for. The negative thinking spiral will not be helped if you are getting a steady diet of doom and gloom from news websites or social media. If you can feel your anxiety levels rising, watch your media habits and choose healthier ones. Check the news once a day, instead of every time you need a mental refresher while working. 7. Do Things You Enjoy: No one can thrive on a steady diet of isolation and bad news. While you are working remotely, find the time also to do some things you enjoy. Is it time to try a new craft, pick up that musical instrument you have sitting in the corner, try cooking new dishes, reading a book, gardening or do it yourself projects around your home? Ensure you make space during the day to keep enjoying life, the work you do and the colleagues you work with.

Keys for Lawyers to Working Remotely and Staying Productive By Petris Lapis B Com LLM FIPA FFA

Over the next weeks and months an increasing number of us may be required to work remotely at least some of the time. You may have done this before when deadlines loomed large and the pressure was on, but doing it for an extended period can present some new challenges, especially for parents if schools are closed. There are a number of things you can do to stay productive while working remotely during this period. 1. Keep Your Routine: It will help if you can keep your regular routine as much as possible. This means things such as setting your alarm for the normal time and getting out of your pyjamas before starting work. Getting dressed helps make the mental switch in your mind between home and work. Set up regular times for breaks and have a start and end time to your working hours. One of the traps to working remotely is keeping healthy boundaries between home and work so that you aren’t doing ‘just one more thing’ late at night before you go to bed. 2. Plan Your Day: At the start of the day plan your tasks for the day and follow the same guidelines you would while working in the office. Do your highest priority tasks first during your greatest energy periods. If you have other family members in the home, you might have to factor planning your work around their needs or setting up their learning or craft activities. It is important to have regular breaks throughout the day and set yourself time limits on how long they will be so you don’t end up having a two hour lunch break.

working (in a meeting or making a call etc), so they can come practice being quiet and come back later with their questions. 5. Designate A Separate Comfortable Workspace: You might not have the luxury of a separate home office, but if there is some way you can delineate your workspace and have a comfortable chair you will be more productive. It is best not to work in a lounge chair, for example, as it is not only bad for your posture but also for your focus. 6. Limit Distractions: Although you have removed the distractions of open plan offices when you are working remotely, it becomes easier to distract yourself when you are not in an office environment. You can help yourself by removing browser shortcuts for social media, removing them from your toolbar bookmarks or signing out of all your social media accounts during working hours. You can also use technology to set timers for how long you will stay focused on tasks before you have a break. The other distraction to limit is the things that need doing around your home. The cleaner your home and your working space, the less inclined you will feel to distract yourself by doing the other tasks that need doing. As challenging as working remotely can be, it can also be incredibly productive and rewarding. There are opportunities to create new work habits, to find new ways of doing things and to do things you enjoy in the time you would otherwise spend commuting.

3. Use Technology To Connect: You may not be able to connect and communicate with your colleagues or clients in person, but there are a lot of ways you can use technology to check in with their well-being, have meetings and collaborate on projects even while working remotely. Pick up the phone rather than email them as it will help to check on their welfare and maintain the connection that relationships need. 4. Have A Stop Symbol For Family Members: Have a visual symbol for family members to tell them when you are working. It might be anything from a closed door on your home office to a red hand towel hanging over the chair near where you are working at the dining table. This lets other family members know when you are

COVID-19 and its Impact on Town Planning Law By Glen McLeod, Chelsea White and Lea Hiltenkamp Glen McLeod Legal Since the submission of this article, further important changes were made to the planning law regime. Some of those changes build on the comments made in the below article. We have prepared a summary of those changes, which can be found at glenmcleodlegal.com/how-effective-are-the-newly-published-exemptions-to-the-planning-regime/

The outbreak of coronavirus, or COVID-19, has significantly disrupted every facet of life. Planning law has not been immune. Landowners and developers may find themselves hard-pressed to meet deadlines for the substantial commencement of a development approval within the statutory two years1 or the implementation of a subdivision approval within the statutory period of three or four years2 (depending on the numbers of lots in the subdivision) and meet deadlines associated with construction and development. Are there options for parties to retain their approval when circumstances make it difficult to comply with the time limits? The State Government is preparing to make amendments to the legislation governing the planning system as described later in this article. Until those amendments have been made it will be necessary to work within the existing legislative framework. In any event, the extent and degree of the State’s amendments are as yet unknown. We therefore give an overview of the existing law prior to examining the proposed State Government changes.

Development approval conditions related to time and ‘Substantial Commencement’ 1. Development approvals are commonly subject to ‘substantial commencement’ conditions which require the work or development the 10 | BRIEF MAY 2020

subject of the approval to begin by the performance of some substantial part of that work or development in order for the development approval to be ‘activated’. 2. If a development is not substantially commenced within the specified time limit, the development approval will lapse. What is considered to be ‘substantial commencement’ has been the subject of judicial decisions and commentary. 3. Schedule 2 of the Planning and Development (Local Planning Schemes) Regulations 2015 (WA) (Deemed Provisions), which apply to all local planning schemes, provides for development approvals to be amended in order to extend the period within which the development

must be substantially commenced.3 Such applications are required to comply with the standard form of application for a development.4 However, there is scope for a local government to waive or vary this requirement if it is satisfied that the application relates to a minor amendment to the development approval.5 4. Whether local governments will permit a varied form of applications to extend the period for substantial commencement in light of COVID-19 remains to be seen. 5. Meeting subdivision time limits is more problematic, but is potentially possible, depending on the circumstances. If necessary, with the cooperation of the Western Australian Planning Commission, a new application may need to be made.

Notices and Offences Relating to Development 6. The Planning and Development Act 2005 (WA) (PD Act) provides an enforcement regime for development undertaken without approval. The responsible authority may give a landowner or party who undertook the development a written direction to remove the illegal development.6 A written direction must not specify a time period which is less than 60 days, after the service of the written

direction, within which the direction is to be complied with.7 7. It may be difficult to comply with a written direction at present, both in arranging for development to be removed and having sufficient funds to do, due to COVID-19 and the ‘two person per gathering’ restriction imposed by the Government. 8. The PD Act and the Planning and Development Regulations 2009 (WA) also provide that illegal development is an offence to which a monetary penalty applies.8 Where a party incurs a monetary penalty for committing an offence under the PD Act the party is required to pay the penalty within 28 days of receiving the penalty notice.9 However, there is scope under the PD Act for local governments to extend the period within which a penalty is required to be paid.10 Similar issues arise under the enforcement regime provided for under the Building Act 2011 (WA) (Building Act). 9. If you have been served with a notice under the PD Act or Building Act and are concerned about your ability to comply with the notice due to the impacts of COVID-19 on your business, then it may be possible to obtain an extension for the time for compliance. Similarly, if COVID-19 has impacted on your financial capability to pay a penalty within the 28 days, it may be possible to extend this timeframe.

Government Initiatives in Western Australia 10. In Western Australia, an amendment to Schedule 2 of the Planning and Development (Local Planning Schemes) Regulations 2015 (Deemed Provisions) was published in the Government Gazette on 3 April 2020. The Amendment is the insertion of a new Part 10B to the Deemed Provisions, entitled ‘Exemptions from planning requirements for state of emergency’. The provisions allow the Minister for Planning, Lands and Heritage, by notice published in the Government Gazette, to exempt specific ‘planning requirements’, for the purposes of ‘facilitating response to, or recovery from’ an emergency declared under the Emergency Management Act 2005. 11. Those specific planning requirements are outlined in clause 78H(3), and include:

recently made an order, the State Environmental Planning Policy Amendment (COVID-19 Response) Order 2020, which provides for special provisions to amend the State Environmental Planning Policy (Exempt and Complying Development Codes) 2008.

a. requirement to obtain development approval; b. requirement to satisfy a condition of a development approval; c. requirement relating to land use permissibility; and d. requirements in relation to consultation, advertisement, applications, time limits or forms. 12. To date, no notice has been published in the Government Gazette, however, given the current declaration by the State Government in response to COVID-19, it is expected that the powers in Part 10B will be invoked shortly.

Government initiatives in New South Wales 13. The New South Wales State Government has taken the most extensive steps to change planning and local government law in order to assist in the response to the COVID-19 crisis. These measures are described below. Development consent by Ministerial Order 14. Under the recently introduced Legislation Amendment (Emergency Measures) Act 2020 (Emergency Measures Act) the NSW Minister for Planning and Public Spaces is empowered to order development to proceed without planning approval requiring to be obtained if the development is necessary to protect public health, safety and welfare during the COVID-19 crisis. This is most likely to cover the development approval required for any new hospital or medical facilities which may be required as a result of COVID-19. 15. This grant of development approval can still be subject to conditions and can suspend the application of regulatory instruments such as rules, regulations and by-laws made under any Act or Authority, other than the Environmental Planning and Assessment Act 1979 (NSW). 16. The exceptional and wide-ranging powers are available to the Minister in the six month period following the commencement date of the Emergency Measures Act. Amendments to operating hours and vehicle movements for retail supply chain businesses

18. These special provisions have waived restrictions on operating hours for retail premises and home businesses which are commonly included as a condition of development approval. Further, these businesses are now not restricted in regard to frequency and movement of vehicles on the subject premises. 19. The purpose of these amendments is to ensure businesses, particularly supermarkets, can keep up with the unprecedented demand for certain products by allowing them to deliver supplies at all times. Importantly to note, the amendment provides that the special provisions are repealed as of 1 October 2020.

City of Perth Initiatives 20. The City of Perth has recently announced a ‘Relief and Rebound Plan’ which, among other things, provides for: a. accelerated work programs for the redevelopment of Wellington Square, the East End Revitalisation and the Roe Street Redevelopment; b. an express planning service for change of land use and development applications by small businesses; and c. waiver of fees and charges associated with licencing fees and development and planning fees. The information contained in this article is of general nature. Nothing in this article is intended to constitute legal advice and it should not be relied upon as such. Endnotes 1 2 3 4 5 6 7 8 9 10

Planning and Development (Local Planning Schemes) Regulations 2015 (WA) schedule 2 cl 71. Planning and Development Act 2005 (WA) s 145. Planning and Development (Local Planning Schemes) Regulations 2015 (WA) schedule 2 cl 77(2). Planning and Development (Local Planning Schemes) Regulations 2015 (WA) schedule 2 cl 77(2) and Part 8. Planning and Development (Local Planning Schemes) Regulations 2015 (WA) schedule 2 cl 77(3). Planning and Development Act 2005 (WA) s 214. Planning and Development Act 2005 (WA) s 214. Planning and Development Act 2005 (WA) s 227 and Planning and Development Regulations 2009 (WA) r 42. Planning and Development Act 2005 (WA) s 228 – 229. Planning and Development Act 2005 (WA) s 230.

17. The NSW Minister for Planning and Public Spaces has also 11

Risky business: The Potential Consequences of Contravening a Modern Award By Cory Fogliani This paper was written to supplement a CPD presentation that was delivered by the author to members of the Law Society of Western Australia on 16 October 2019. It is only intended to give a basic overview of the law relating to contraventions of modern awards and should not be relied upon as legal advice.

Modern awards are a key element of the federal industrial relations system. They contain a scheme of minimum conditions that apply to particular industries and occupations. Those minimum conditions are set by the Fair Work Commission and can only be displaced in limited circumstances. Section 45 of the Fair Work Act 2009 (Cth) makes it unlawful for a person to contravene the terms of a modern award. Employers that fail to comply with modern award terms are exposed to a risk of financial and reputational harm. This paper will start by introducing the prohibition in section 45 of the Fair Work Act 2009 (Cth) and various ancillary matters that ought to be considered when litigating a contravention of that section. Next, this paper will touch on the issue of accessorial liability. This paper will then discuss the types of orders that can be made by a court to remedy a section 45 contravention. Finally, this paper will look at the non-legal risks that can flow from non-compliance with a modern award.

12 | BRIEF MAY 2020

The restraint in section 45 of the Fair Work Act 2009 (Cth) Section 45 is relatively straight forward. It reads: A person must not contravene a term of a modern award. If a person contravenes a term of a modern award, then they also contravene section 45 of the Fair Work Act 2009 (Cth). Section 45 is a civil remedy provision. The effect of a provision being a civil remedy

provision is that certain classes of people have standing to sue the contravening party and seek legal remedies against that party in relation to the contravention. Despite the simplicity of section 45, there are some ancillary matters that can complicate this type of claim. Six-year time limit Litigation needs to be commenced within six years from the date of the contravention of the modern award.1 While this is at the longer end of the timebar spectrum, the limitation period has a tendency of sneaking up and presenting risks and problems for unsuspecting lawyers and clients. With award contraventions involving underpayments that have occurred systematically over a long period of time, one should take great caution not to underestimate the time it can take to gather the necessary evidence, quantify the underpayment, and to properly particularise the underpayment in the pleadings. Those issues are

applies to them.8 Three conditions must be met for an award to apply to a person. 1. The award must cover the person.9 All modern awards have a coverage clause which sets out who is covered by the award. An award will cover a person if it is expressed to cover the person.10 2. The modern award must be in operation.11 3. There must be no provision of the Fair Work Act 2009 (Cth) which provides, or has the effect, that the modern award does not apply to the person.12 For example, a modern award will not apply to a person in relation to particular employment if an enterprise agreement applies to that employment.13 Rules of evidence and procedure apply Unless a claimant elects to use the small claims procedure,14 the rules of civil procedure and evidence will apply in a section 45 matter.15 The claimant bears the burden of proving that the respondent contravened the modern award. They must do so on the balance of probabilities.16 The standard of proof required to make out a section 45 contravention claim will vary from case to case in accordance with the principles set out in Briginshaw v Briginshaw.17 In many cases, the consequences that flow from a finding that a person has contravened section 45 can be quite serious.18 This consideration will often have some bearing on the nature of the evidence required to prove a claim. amplified where the employee-client is unsophisticated or does not have a strong command of English. Standing requirements in relation to section 45 claims Sections 539 and 540 of the Fair Work Act 2009 (Cth) set out which types of people can apply for orders to remedy, amongst other things, a section 45 contravention. There are different standing requirements for award contravention claims depending on whether or not the alleged contravention relates to an outworker provision within an award.2 For a contravention involving an outworker term in an award, the following class of people has standing to make a claim: outworkers, employers, outworker entities, employee organisations, employer organisations, and Fair Work Inspectors.3 For all other types of modern award contraventions, the types of people that have standing are: employees, employers, employee organisations, employer organisations, and Fair Work Inspectors.4

Being a member of one of these two classes may not be enough to establish standing. The following further limitations also apply: 1. employees, employers, outworkers, and outworker entities can only apply for orders if they have been affected by the contravention;5 2. employee organisations can only apply for orders in relation to a contravention relating to an employee if the employee was affected by the contravention and the employee organisation is entitled to represent the industrial interests of the employee;6 and 3. employer organisations can only apply for orders if they have a member that is or has been affected by the contravention.7 The modern award must apply to the respondent Generally, a person can only contravene a term of a modern award if that award

Accessorial liability Contravening a modern award, and in turn section 45, is not something that should be written off as an issue for the corporate entity that is directly liable for a contravention. This is because any person involved in a contravention of section 45 can also be sued and penalised for the contravention.19 The purpose of the accessorial liability provision in the Fair Work Act 2009 (Cth) (s 550) is â&#x20AC;&#x2DC;to protect the public by making each entity or person that is responsible for the unlawful conduct accountable for their conduct and separately penalised.â&#x20AC;&#x2122;20 The Fair Work Act 2009 (Cth) provides that a person will be involved in a contravention if the person: 1. has aided, abetted, counselled or procured the contravention; or 2. has induced the contravention, whether by threats or promises or otherwise; or

3. has been in any way, by act or omission, directly or indirectly, knowingly concerned in or party to the contravention; or 4. has conspired with others to effect the contravention.21 The corporate veil of the entity that is primarily responsible for contravening section 45 will not protect directors, professional advisors, or employees who have had the requisite degree of involvement in the contravention. In relation to the requisite degree of involvement, Judge Oâ&#x20AC;&#x2122;Sullivan helpfully set out the following summary in Fair Work Ombudsman v Blue Impression Pty Ltd & Ors [2017] FCCA 810: The authorities establish that, in order for a person to have accessorial liability, he or she must be a knowing participant or, in other words: a. have knowledge of the essential facts constituting the 14 | BRIEF MAY 2020

contravention; b. must be knowingly concerned in the contravention; c. must be an intentional participant in the contravention based on actual not constructive knowledge of the essential facts constituting the contravention â&#x20AC;&#x201C; although constructive knowledge may be sufficient under s.550(2)(c) of the FW Act in cases of wilful blindness; and d. need not know that the matters in question constituted a contravention.22

The types of remedial orders that can be made Choice of forum is an important consideration that claimants need to grapple with before they initiate proceedings for a section 45

contravention. In Western Australia, section 45 contravention claims can be heard by: 1. the Federal Court of Australia; 2. the Federal Circuit Court of Australia; 3. the Industrial Magistrates Court of Western Australia; 4. the District Court of Western Australia; and 5. the Magistrates Court of Western Australia.23 Of those courts, the Federal Court and the Federal Circuit Court have the broadest remedial powers. The Federal Court and the Federal Circuit Court can make any order that they consider appropriate in response to a contravention of a civil remedy provision.24 This includes issuing injunctive relief to stop or remedy a contravention, making a compensation order for loss suffered as a result of a contravention, ordering reinstatement

of a person’s employment, and making pecuniary penalty orders.25 The only significant limitation on the Federal Court and the Federal Circuit Court is that they can only award costs in certain circumstances. This will be expanded upon below. The Industrial Magistrates Court, the District Court, and the Magistrates Court are much more limited in how they can respond to a contravention of section 45. Those courts can only make an underpayment order, an order for prejudgment interest, a pecuniary penalty order, and, in limited circumstances, a costs order.26 They cannot make any other type of order in response to a section 45 contravention (e.g. declarations, injunctions, reinstatement).

will bear its own costs.30 This is reflected in section 570 of the Fair Work Act 2009 (Cth). There are only three circumstances that can enliven a court’s discretionary power to award costs in a matter arising under the Fair Work Act 2009 (Cth). To enliven the costs discretion, the court must be satisfied that: 1. the claimant instituted the proceedings vexatiously or without reasonable cause; or 2. a party engaged in an unreasonable act or omission which caused the other party to incur costs; or 3. both of the following: a. the party unreasonably refused to participate in a matter before the FWC; and

Compensation orders vs underpayment orders The purpose of a compensation order is to provide the claimant with a monetary sum that will place them in the same position as they would have been in if the respondent had not breached the Fair Work Act 2009 (Cth).27 A compensation order can capture all reasonably quantifiable losses that a person has suffered as a result of a contravention of section 45. This includes economic loss and non-economic loss.28 In contrast, an underpayment order is limited in its scope. In the context of a section 45 contravention, an underpayment order can only cover amounts that an employer was required to pay to an employee under the modern award but failed to pay in contravention of section 45.29 It cannot compensate for any other types of loss – for example hurt and humiliation. Limits on the ability to make cost orders In industrial law matters, there is a longstanding principle that each party

b. the matter arose from the same facts as the proceedings.31 Pecuniary penalty orders If a person contravenes a civil penalty provision, then the court may order that person to pay a pecuniary penalty.32 The purpose of a pecuniary penalty order is to ‘promote the public interest in compliance with the law’.33 Or to put it another way, to discourage people from breaking the law. The maximum penalties for a contravention of section 45 as at 16 October 2019 are: Max penalty for a contravention

(Cth). The purpose of this new aspect of the penalty regime was to respond to concerns that civil penalties under the Fair Work Act 2009 (Cth) were ‘too low to effectively deter unscrupulous employers who exploit vulnerable workers because the costs associated with being caught are seen as an acceptable cost of doing business.’34 A serious contravention occurs where a person knowingly contravened section 45, and the person’s contravening conduct was a part of a systematic pattern of conduct relating to one or more persons.35 To obtain an order for a serious contravention, the claimant needs to apply for that order in its pleadings.36 If the wrongdoer is a corporation, then it will have knowingly contravened section 45 if it expressly, tacitly, or impliedly authorised the contravention.37 In determining whether the contravening conduct was a part of a systematic pattern of conduct, section 557A(2) provides the following, non-exhaustive list of considerations: 1. the number of contraventions committed by the person; 2. the period over which the contraventions occurred; 3. the number of other persons affected by the contraventions; 4. the person’s response or failure to respond to any complaints about the Max penalty for a serious contravention

Corporation

$63,000

$630,000

Individual

$12,600

$126,000

Pecuniary penalty orders: Serious contraventions In September 2017, a higher set of penalties was introduced for ‘serious contraventions’ of the Fair Work Act 2009

contraventions; 5. whether the person failed to make or keep employee records in accordance with section 535; and 6. whether the person failed to give

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a payslip relating to the conduct constituting the contravention. Pecuniary penalty orders: Determining the appropriate quantum The court engages in a â&#x20AC;&#x2DC;process of instinctive synthesisâ&#x20AC;&#x2122; to determine a penalty that is proportionate to the contravening conduct and the circumstances of the case.38 In plainEnglish, that means it considers the following, non-exhaustive list of matters: 1. the nature and extent of the conduct which led to the breaches; 2. the circumstances in which that conduct took place; 3. the nature and extent of any loss or damage sustained as a result of the breaches; 4. whether there had been similar previous conduct by the defendant; 5. whether the breaches were properly distinct or arose out of the one course of conduct; 6. the size of the business enterprise involved; 7. whether or not the breaches were deliberate; 8. whether senior management was involved in the breaches; 9. whether the party committing the breach had exhibited contrition; 10. whether the party committing the breach had taken corrective action; 11. whether the party committing the breach had cooperated with the enforcement authorities; 12. the need to ensure compliance with minimum standards by provision of an effective means for investigation and enforcement of employee entitlements; and 13. the need for specific and general deterrence. 39

Non-legal risks relating to a contravention Litigation is not the only risk that arises from conduct that contravenes a modern award. It is becoming increasingly common for employers to find themselves on the receiving end of onerous undertakings and adverse media coverage for contravening modern awards. Especially when those contraventions involve underpayments. One such drama recently played out in the media against George Calombaris and his company, MADE Establishment

16 | BRIEF MAY 2020

Pty Ltd. In that matter, MADE Establishment self-reported to the Fair Work Ombudsman that, between 2011 and 2017, it had failed to comply with the terms of the Restaurant Industry Award 2010. The long-running contraventions resulted in MADE Entertainment underpaying 515 of its workers to the tune of over $7.8 million. MADE Entertainment back-paid that money to its current and former employees. It also provided an enforceable undertaking to the Fair Work Ombudsman. By way of summary, that undertaking required MADE Entertainment to: 1. subscribe to the Fair Work Ombudsmanâ&#x20AC;&#x2122;s email updates relating to, amongst other things, pay rates and entitlements; 2. implement systems and processes within its business to monitor compliance at all times and in all respects with a range of workplace laws and industrial instruments; 3. provide information to the Fair Work Ombudsman about those systems and processes; 4. for a period of two years, ensure that all persons within the business

(including contractors) who have responsibility for human resources, recruitment and payroll functions, or responsibility for on-site management, have completed suitable and up to date training on compliance with workplace laws and industrial instruments; 5. undertake and provide to the Fair Work Ombudsman for a period of three years, detailed audits to confirm compliance with workplace laws and industrial instruments; 6. publish written public apologies in a range of media forums (including: its social media and websites, The Weekend Australian, The Saturday Age, The Saturday Herald Sun, Food & Beverage Industry News, Hospitality Magazine, and Restaurant & Catering Magazine); and 7. make a $200,000 contrition payment to the Commonwealth.40 Despite that undertaking, George Calombaris and MADE Establishment were battered in the media.41 Even the Federal Attorney-General came out to publicly criticise the $200,000 contrition payment as insufficient.42

Conclusion The Fair Work Act 2009 (Cth) contains an arsenal of provisions for remedying and deterring non-compliance with the terms of modern awards. Persons who contravene the terms of a modern award, or who are involved in a contravention, are exposed to adverse financial and reputational risk. Even if that risk does not manifest itself in the courts, there is a developing trend for industrial wrongdoers to be named and shamed in a range of media platforms. The takeaway message from this paper is that all businesses that employ people should be developing and continuously updating internal systems and processes to ensure that they are meeting their obligations under workplace laws and industrial instruments. Those that do not, do so at risk of their own peril. Endnotes 1 2

3 4 5 6 7 8

Fair Work Act 2009 (Cth) at s 544. Fair Work Act 2009 (Cth) at s 539(2) Item 2 and 3. An outworker term is a clause in a modern award which (1) relates to the conditions under which an employer may employ employees who are outworkers; and/or (2) relates to the conditions under which an outworker entity may arrange for work to be performed for the entity, if the work is of a kind that is often performed by outworkers (see s 140 of the Fair Work Act 2009 (Cth)). Ibid at s 539(2) Item 3. Ibid at s 539(2) Item 2. Ibid at s 540(1). Ibid at s 540(2) and (3). Ibid at s 540(5). Ibid at s 46(1) and (2). But c.f. Fair Work Act 2009 (Cth)

9 10 11 12 13 14 15 16 17

18 19 20 21 22

23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39

at s 550 in relation to accessorial liability. Ibid at s 47(1). Ibid at s 48(1). Ibid at s 47(1) Ibid. Ibid at 57. Ibid at s 548(3). Ibid at s 551. Evidence Act 1995 (Cth) at s 140. Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 at 361-363. In relation to its application in section 45 matters, see: Fair Work Ombudsman v Hu (No 2) [2018] FCA 1034 at [45]. Fair Work Ombudsman v Hu (No 2) [2018] FCA 1034 at [46]. Fair Work Act 2009 (Cth) at s 550. Fair Work Ombudsman v NSH North Pty Ltd trading as New Shanghai Charlestown [2017] FCA 1301 at [154]. Fair Work Act 2009 (Cth) at s 550(2). Fair Work Ombudsman v Blue Impression Pty Ltd & Ors [2017] FCCA 810 at [25]. The Judge’s reasoning on this point was not disturbed on appeal. See: EZY Accounting 123 Pty Ltd v Fair Work Ombudsman [2018] FCAFC 134. Fair Work Act 2009 (Cth) at s 539(2) Items 2 and 3. Ibid at s 545(1). Ibid at s 545(2), 546, 547. Ibid at s 545(3) and (3A), 546, 547. Sagona v R & C Piccoli Investments Pty Ltd & Ors [2014] FCCA 875 at [351]. Ibid at [359]. Fair Work Act 2009 (Cth) at s 545 (3) and (3A). Explanatory Memorandum to the Fair Work Bill 2008 (Cth) at cl 2228. Fair Work Act 2009 (Cth) at s 570. Ibid at s 546. Fair Work Ombudsman v Grouped Property Services Pty Ltd (No 2) [2017] FCA 557 at [388]. Explanatory Memorandum to the Fair Work Amendment (Protecting Vulnerable Workers) Bill 2017. Fair Work Act 2009 (Cth) at s 557A. Ahmed v Al-Hussain Pty Ltd t/as The Cheesecake Shop (No 3) [2019] FCA 848 at [28]. Fair Work Act 2009 (Cth) at s 557B. Also see s 793. Director of the Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union [2016] FCA 413 at [17]. Mason v Harrington Corporation Pty Ltd [2007] FMCA 7. Applied by Tracey J in Kelly v Fitzpatrick [2007] FCA 1080 at [14], (2007) 166 IR 14.

A copy of the undertaking can be found on the Fair Work Ombudsman’s website (https://www.fairwork. gov.au/about-us/news-and-media-releases/2019media-releases/july-2019/20190718-madeestablishment-eu-media-release). See for example: Rachel Eddie and Cameron Houston, ‘George Calombaris’ underpayment woes not over as more workers come forward’, The Age (https://www.theage.com.au/national/victoria/ george-calombaris-underpayment-woes-not-overas-more-workers-come-forward-20190719-p528yi. html); Frank Chung, ‘MasterChef judge George Calombaris fined for underpaying staff $7.8 million’, News.com.au (https://www.news.com.au/finance/ work/at-work/masterchef-judge-george-calombarisfined-for-underpaying-staff-78-million/news-story/ d9e26265b5d770c4358b859904785b7c); Marissa Calligeros, ‘George Calombaris’ restaurants underpaid staff $2.6 million’, The Sydney Morning Herald (https:// www.smh.com.au/business/workplace/georgecalombaris-restaurants-underpaid-staff-26-million20170403-gvctvq.html); Luke Henriques-Gomes, ‘George Calombaris: former MasterChef judge says there’s ‘no excuse’ for underpaying workers’, The Guardian https://www.theguardian.com/media/2019/ jul/31/george-calombaris-former-masterchef-judgesays-theres-no-excuse-for-underpaying-workers; David Marin-Guzman, ‘Celebrity chef George Calombaris underpayments triple to $7.8m’, The Financial Review (https://www.afr.com/work-andcareers/workplace/celebrity-chef-george-calombarisunderpayments-triple-to-7-8m-20190718-p528b8). Dana McCauley, ‘‘I think that’s light’: Porter criticises $200k fine for wage theft’, The Sydney Morning Herald (https://www.smh.com.au/politics/federal/i-thinkthat-s-light-porter-criticises-200k-fine-for-wage-theft20190724-p52a65.html).

Jurisdictional Issues in the Magistrates Court

By Elmi Carlean Barrister, Francis Burt Chambers

This article will focus on the jurisdiction and structure of the General Division and Minor Claims Division in the Magistrates Court of Western Australia. While I appreciate that this jurisdiction forms effectively a rite of passage for most practitioners, and therefore the article will be of a ‘101’ nature to most, I hope to highlight some of the jurisdictional limitations and potential issues which can arise in this jurisdiction. In Part 1 of the article I will briefly set out the statutory framework insofar as the jurisdiction in both divisions is concerned. Part 2 will focus on some problem areas and, finally, I will briefly look at legislative updates and future changes to be aware of in Part 3. PART 1: JURISDICTION OF GENERAL AND MINOR CLAIMS DIVISION IN MAGISTRATES COURT The Magistrates Court (Civil Proceedings) Act 2004 (‘the MCCP Act’) is the primary legislation which sets out the civil jurisdiction of the Magistrates Court in Western Australia1.

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Because its jurisdiction is entirely statutory, authority for its actions must be found in the express words of the statute or implications properly drawn from it2. This of course means that the Court has no inherent powers and authority3. A consequence of it being a statutory court is that the Magistrates Court does not possess any disciplinary jurisdiction

over lawyers, which as you will know is part of the inherent jurisdiction of the Supreme Court to which lawyers are appointed as officers upon their admission to practice4. Furthermore, it is worth reminding practitioners, who would in any event be aware of the general territorial limits of jurisdiction whereby it is not appropriate to issue a writ for service outside of Australia without leave (RSC O 5 r 9). And it is not appropriate to obtain an order for substituted service on a defendant who resides outside of Australia5. Some further general comments with regard to the issue of incidental or implied powers: Like all inferior courts the Magistrates Court is able to exercise implied powers, not spelt out in statute, but which are necessary for its existence. The limits of this jurisdiction were explored in Green v Daley6 in an appeal to the District Court from a decision whereby the Magistrate had dismissed

the respondent’s application for dismissal of the claimant's action for want of prosecution.

(3) the use of the court’s procedures would bring the administration of justice into disrepute.”

The claimant had instituted proceedings in 1997 seeking damages for injuries caused by the respondent’s dog when it attacked the claimant’s son in 1992. In 2001 when the matter had still not been set down for trial, the respondent sought an order for dismissal for want of prosecution, which was dismissed. The respondent appealed – the main ground of appeal being whether the Magistrates Court had discretion to dismiss for want of prosecution pursuant to an implied power. In dismissing the appeal, on the basis that the respondent’s claim for want of prosecution had no merit as the claimant’s limitation period had not ended given that the son turned eighteen in 2001 and there was a further 5 years in which a claim could commence, the District Court held that there is an implied power of the Magistrates Court to dismiss an action for want of prosecution so as to avoid an abuse of process7.

The Magistrates Court is therefore considered to have implied discretion and powers to deal with any problem likely to cause an abuse of process.

In allowing the appeal, the District Court drew on the dicta of Dawson J in the High Court case of Grassby v R8 where his Honour said in relation to the Magistrates Court: “However, notwithstanding that its powers may be defined, every court undoubtedly possesses jurisdiction arising by implication upon the principle that a grant of power carries with it everything necessary for its exercise.” More recently, the High Court per Kiefel CJ, Bell and Keane JJ in HT v The Queen9 confirmed that: “Every court possesses jurisdiction arising by implication upon the principle that a grant of power to do something carries with it a power to do everything necessary for its exercise.” His Honour Corboy J in the Western Australian Supreme Court matter Saldanha v Fujitsu Australia Ltd (No 2)10, citing the High Court decision of Rogers v R,11 helpfully set out the types of abuse which a court’s inherent powers may overcome, as follows: “Inherent in every court of justice is the power to prevent its procedures being abused. Although the categories of abuse of procedure remain open, abuses of procedure usually fall into one of three categories: (1) the court’s procedures are invoked for an illegitimate purpose; (2) the use of the court’s procedures is unjustifiably oppressive to one of the parties; or

General Division – Part 2 of the MCCP Act General civil jurisdiction: What claims are included? The general civil jurisdiction of the Magistrates Court is set out in Part 2 of the MCCP Act. The jurisdictional limit of the Court as per section 4 is $75,000, and section 6 outlines the civil matters which the Court has jurisdiction over. However, section 6(1)(a) does not attempt to confine the extent of the Court’s jurisdiction by reference to any causes of action. Section 6(1)(a)(i) — A claim for an amount of money that is a debt or damages Under section 6, provided the claims are within the jurisdictional limit, the Magistrates Court has jurisdiction to deal with monetary claims, such as claims for either liquidated or unliquidated debts or damages, with the basic principles for the award of damages in the Court of course being no different than in other jurisdictions. Namely, that damages are compensatory in character; damages for one cause of action must be recovered once and forever and in a lump sum, there being no power to order a defendant to make periodic payments, and finally, that the onus is on the plaintiff to prove the injury or loss for which damages are sought. Section 6(1)(a)(ii) — The unliquidated balance of a partnership account There are of course a myriad of potential issues that arise when a partnership is dissolved. However, section 6(1)(a) (ii) provides specific jurisdiction to the Magistrates Court for monetary claims to the whole or a part of the unliquidated balance of a partnership account. The Court’s jurisdiction is further widened under subsection (2) in these types of claims, with powers relating to the declaration of or the dissolution of partnerships. Section 6(1)(a)(iii) — The amount of the distributive share under intestacy or a legacy under a will Provided there is no issue as to the validity of the will, the Magistrates Court

has jurisdiction where the amount claimed is not more than the jurisdictional limit, even if it is a balance after allowing for a payment on account, or for any admitted set-off, or for any other amount. Section 6(1)(b) — Equitable claims While there is no general jurisdiction to grant equitable remedies, the Magistrates Court may do so in the course of dealing with other claims. Section 6(1)(b) sets out the limitations in this regard namely, an equitable claim or demand where the only relief claimed is the recovery of an amount of money or of damages, whether liquidated or unliquidated, and the amount claimed is not more than the jurisdictional limit. There is a distinct shortage of cases that address the equitable jurisdiction of the Magistrates Court in particular. Practitioners can have a look at Alma Hill Constructions Pty Ltd v Onal 12 which sets out the authorities and is a useful reference, with the principles applying equally in WA. As a result of the Court’s jurisdiction in equity being limited to section 6(1)(b) the Court does not have the jurisdiction to deal with claims for rectification, which often arise from the parties putting in place poor documentation to evidence what they have agreed. Therefore, practitioners ought to be alert to recognising a cause of action in rectification and considering whether it is worthwhile for the case to be transferred to a higher court. Section 6(1)(c) — Consumer/trader claims We will look at these in more detail in a minute. Section 6(1)(d) — Recovery of personal property Personal property recovery claims form a large part of claims that occupy the Magistrates Court, including claims in detinue to recover personal property or its value. We won’t go into these, other than to note that the plaintiff must have a right to immediate possession at the relevant time which derives from some proprietary or possessory interest in the chattel, and the value of the property must not exceed the jurisdictional limit. Section 6(1)(e) — Recovery of real property This subsection gives the Magistrates Court jurisdiction to hear claims which are subject to the Residential Tenancies Act 1987 (WA) for the recovery of possession of real property. The gross annual rental 19

value of the property may not be more than the jurisdictional limit and the term “rental value” is defined in subsection (3). An excellent example of the limited operation of this section, can be seen in Miller v Brown & Ors13. Whether the Court had jurisdiction to hear the claim depended on whether the arrangements between Mr Miller and the 24 respondents were “residential tenancy agreements” under the Residential Tenancies Act or whether the respondents had ownership over the premises themselves in circumstances where Mr. Miller had illegally subdivided the property. We will look at this case a bit more in due course, as it illustrates the limitation of the Court’s jurisdiction under this section, not least because the magistrate made a number of errors of law, including not using the statutory definitions of the terms ‘owner’ and ‘premises’, which were informative in founding jurisdiction in the first place. Section 6(1)(f) — Any of the claims set out in paragraphs (a) to (e) Section 6(1)(f) is interesting in that it provides a so-called catch-all mechanism whereby irrespective of the amount claimed or the value of the property – that is, despite the jurisdictional limit being exceeded – the Magistrates Court nonetheless has jurisdiction to deal with any of the aforementioned types of matters, if the party against which the claim is made consents. One might ask as to the utility of this section and my research assistant assures me there is no case law to be found. It does beg the question of how this would operate in practice and one would need to imagine a scenario where the claimant somehow gets the defendant to agree to being sued for a greater sum of money than the jurisdictional limit allows, yet for the matter to remain in the Magistrates Court – which, albeit that this may have advantages for the defendant, nonetheless would require them to be agreeable. Not necessarily a given in the world of litigation. Section 6(1)(g) — Claim for indemnity Finally, this subsection provides jurisdiction to the Magistrates Court to hear indemnity claims where the indemnity arises from or relates to another claim that is before the Court or that has been heard and determined by the Court.

provided that the damages claimed do not exceed the jurisdictional limit. General civil jurisdiction – What claims are not included? It is important to be aware of which claims the Magistrates Court does not have jurisdiction to hear, despite that they may fall within the jurisdictional limit. These are dealt with in section 6(5) and include: •

claims where the title of land is called into question,14

•

claims where a bequest or limitation under a will or settlement is at issue,

•

claims for damages for libel or slander in defamation law,

•

claims for damages for motor vehicle related personal injuries, and

•

claims that are dealt with in the State Administrative Tribunal under the Building Services (Complaint Resolution and Administration) Act 2011.

Section 7 – Consumer/trader claims Turning in more detail then to consumer/ trader claims, “consumer” and “trader” are defined in section 7(3) and link to their definitions in the Fair Trading Act 1987 (WA). In a nutshell, a ‘consumer’ – who must be a natural person – is either someone who buys or hires goods for personal use, or someone for whom services are supplied for a fee. The defining quality of the relevant transaction is that it is not done in the course of a trade or business being carried on by the consumer. Following on from this, the sale or the service may not be rendered to the consumer in their capacity as a member of a business partnership. Tenants within the meaning of the Residential Tenancies Act 1987 (WA) are also excluded from the definition of a consumer. The definition of a ‘trader’ on the other hand, outlined in section 7 and subject to a few exceptions, extends to the supply of goods and/or services within the course of business, but does not include a lessor within the meaning of the Residential Tenancies Act 1987 (WA).

Summary: Claims included in the General Civil Division

Section 7 also provides that in order to come within the jurisdiction, the claim must arise out of a contract between a consumer and a trader and can only be brought by one against the other.

In summary then, section 6 confers on the Magistrates Court jurisdiction to deal with claims for damages founded on, for example, actions in tort and contract

Under subsection (3) the relief sought is limited to either or all of the following: performance of work or the provision of services, payment or relief from payment

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and finally, the return or replacement of goods. It goes without saying that the value must not exceed the jurisdictional limit. Section 8 – Statutory jurisdiction Pursuant to section 8, the Magistrates Court’s civil jurisdiction also includes any statutory jurisdiction conferred on it by any other written law. An example can be found in the Dividing Fences Act 1961 (WA) whereby the term ‘court’ is defined in section 5 as the Magistrates Court. An interesting jurisdictional limitation to be aware of is that appeals from a decision of the Magistrates Court made under section 9 of the Dividing Fences Act are precluded (apart from judicial review for jurisdictional error or errors of law). Whether there is any right of appeal to the District Court from a magistrate’s decision under section 9 of the Dividing Fences Act, to the effect that there was no need to construct a new dividing fence, was an issue explored by the Western Australian Court of Appeal last year in Komorowski v Ong15. The court held that section 9(4) of the Act provides that an order made under section 9 is in fact final. This gives effect to a policy decision of Parliament that neighbours in dispute over a dividing fence should be able to have relevant aspects of that dispute determined by the Magistrates Court without being burdened by the additional cost and inconvenience of appeals to superior courts. Section 9 – Counterclaim outside jurisdiction Turning now to counterclaims: A counterclaim is defined as a claim, including a claim for a set-off, made in defence. Section 9 deals with claims where the counterclaim renders it beyond the Magistrates Court’s jurisdiction. These may still be dealt with by the Court in certain limited circumstances set out in subsections (4) and (5). For example, where it is a monetary counterclaim that is beyond the jurisdiction, the Court may still hear it unless the party against whom the counterclaim is made objects before a date is set for the trial of the counterclaim16. Practitioners must be aware of the cost implications in providing advice to the client to object. Clearly, objecting to the jurisdiction of the Court to hear the counterclaim may well result in the counterclaiming party taking their claim into the District or Supreme Court

Supreme Court of Western Australia

jurisdiction. In which case there is likely to be two sets of litigation on foot, and all the associated costs involved. Similarly, if the counterclaim is not monetary and is beyond jurisdiction, the Court may nonetheless deal with it, but cannot give any remedy or judgment that is outside its jurisdiction, unless the opposing party consents17. Again, practitioners should carefully weigh up the pros and cons of advising against consent as the cost implications of having to face a separate litigation in a higher court can be significant. Combined totals of counterclaims not beyond jurisdiction It is important to be aware that for the purpose of section 9, subsection (3) outlines that monetary counterclaims with a combined total of more than the jurisdictional limit, do not per se take the claim outside of the Court’s jurisdiction. If they separately fall within the Court’s jurisdictional limit, the counterclaim may still be within the Court’s civil jurisdiction18. An example of the application of section

9(3) can be seen in the Court of Appeal case of Defendi v Eden Hill Plasterers19. Prior to 1 January 2009, when the jurisdictional limit in the General Division was set at $50,000, the claimant was met with a counterclaim by the respondent, initially for $56,783.63, which reduced to $52,678.67, after the respondent admitted liability at trial to the initial claimed amount. The Court of Appeal observed that this was an example of the operation of section 9(3) where the counterclaim was not outside the Court’s civil jurisdiction simply by reason that it is, or includes two or more claims each of which could be separate claims within the jurisdiction but together exceed the limit20. Section 10 – Decisions for jurisdictional purposes An interesting feature of the MCCP Act is that under section 10, the Court can decide whether a claim falls within the jurisdiction conferred on it by section 6 or whether it has statutory jurisdiction as provided by way of section 8. In doing so, it must disregard any interest that may be awarded or that may be payable under the Civil Judgments Enforcement Act

2004.21 An example of the operation of this section can be found in a 2010 appeal to the District Court from the decision of the magistrate in Miller v Brown & Ors22, which I mentioned before, arising from the Magistrate’s use of section 10 to refuse to exercise the Court’s jurisdiction under section 6(1)(e). In determining, under section 10, whether he had jurisdiction to hear the matter in the first place, the central issue for the Magistrate was whether the arrangements in question were “residential tenancy agreements” within the meaning of the Residential Tenancies Act 1987 (WA). The magistrate found no existence of residential tenancy agreements as the respondents had constructed the buildings on the land at their own expense and therefore owned the premises themselves23. Yet, having found that the definition of ‘premises’ includes both the residence and the land on which the residence stands24, and considering Mr. Miller owned the land, the District Court held that the Magistrate had erred in finding 21

the arrangements were not residential tenancy agreements and remitted the matter back to the Magistrates Court to be determined according to law. Section 11 – Remedies that may be given Section 11 provides the Magistrates Court with the necessary incidental remedies and powers to exercise the jurisdiction we have discussed above. Specifically, section 11(2) enables the Court to grant any remedy or relief in respect of claims which fall within the section 6 jurisdiction, consumer/trader claims under section 7(3)(b); and finally, any remedy that the Supreme Court could grant if the claim had been made to that court25. But how far does section 11 go? An example of the operation of this section can be found in a District Court appeal in the matter of Bulcraig v Hunt26. The Bulcraigs, following the sale of a café business and a lease for the premises which went sour, commenced proceedings against the Hunts. They claimed damages pursuant to the Fair Trading Act 1987 (WA), as well as an order declaring that the whole of the agreement to purchase the business and the lease were void ab initio, and an order that the Hunts refund the purchase price of the business and all rent and outgoings paid for the lease of the premises. These were remedies expressly available under the Fair Trading Act. Davis DCJ held that a claim under section 77(3)(a) of the Fair Trading Act, declaring that the purchase of a business and a lease were void, was outside the jurisdiction of the Magistrates Court. Such a claim was not an ancillary order under section 11 of the MCCP Act. A 2009 appeal to the District Court provides a further useful example of the limitations of the section. In Rodwell v Hutchinson27 the two successful plaintiffs appealed against the Magistrates decision to refuse to grant indemnity costs. The plaintiffs relied on section 11(2)(b) of the MCCP Act arguing that costs are a part of the remedy or relief on a claim28. This interpretation was rejected by the appeal court who determined that the ‘remedy or relief in respect of a claim’ does not include costs, and since both plaintiffs had already obtained their remedy or relief which was not the subject of the appeal, section 11 did not assist them29. It is also worth noting at this point that in exercising its statutory jurisdiction under section 8, the Court may grant any remedy provided for under the written law that confers the jurisdiction on the Court30.

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Minor Claims Division – Part 4 of the MCCP Act We now move on to the Minor Claims Division of the Magistrates Court which is set out in Part 4 - Minor cases procedure. Lawyers might rightly wonder why we need to talk about this division at all, given that it is generally the case that claimants and defendants act for themselves in this division. However, it is important to be aware of the limitations, and when we discuss some of the problems that might arise in getting things wrong, it might become clearer. A minor case is a claim where the debts or damages claimed do not exceed the Magistrates Court’s minor cases jurisdictional limit of $10,00031. The default position is that the minor case procedure applies. The primary object of the Court when dealing with a minor case is to attempt to bring the parties to a settlement acceptable to all the parties. Accordingly, pursuant to section 27(2) the Court may at any stage when dealing with a minor case do all things and take all such steps as it considers to be appropriate to achieve that object. Practically speaking, for example, this allows the parties to make submissions on a ‘without prejudice’ basis for the purpose of attempting to settle a minor case. This allows the case to be later dealt with by the same person constituting the Court if settlement is not achieved. Does the Minor Cases Procedure or the General Procedure apply? Section 28 – Minor cases procedure, general provisions A minor case may be dealt with under the general procedure if the parties request this. The general procedure being the procedure prescribed by Part 3 and the rules of court, pertaining to the General Division, which we have been talking about previously. The Court also has discretion pursuant to section 28(3) to order that the matter be dealt with under the general procedure where it considers that there are important principles of law or a complex set of facts or issues involved32. However, a minor case must be dealt with under the general procedure if the case involves jurisdiction conferred by a law of the Commonwealth33. An example of a case in which an order was made that the Minor Division did not have jurisdiction by reason of a law of

the Commonwealth, was the matter of Rankilor v Etihad Airways PJSC in which I represented Etihad Airways. The matter went on appeal both to the District Court in Rankilor v Etihad Airways PJSC [2018] WADC 144 and the Supreme Court of Appeal [2019] WASCA 36’. There it was successfully shown by Etihad that the Civil Aviation (Carriers Liability) Act 1959 (‘Carriers Liability Act’) conferred jurisdiction on the Court. That Commonwealth statute gave force and effect to the Montreal Convention in Australia. Given the application of the Convention, the Court had jurisdiction to hear claims for damages relating to international air travel, as the place of destination of the claimant was Perth34. Given that a law of the Commonwealth therefore conferred jurisdiction on the Magistrates Court, section 28(2) was triggered, and accordingly, it was determined that the minor case had to be dealt with under the general procedure. We will talk about the facts giving rise to the claim in more detail in a minute as it raised a raft of jurisdictional limitations to be aware of, however, for the purposes of demonstrating the operation of section 28(2) on the jurisdiction of the Minor Division, the case is very useful. Section 28 – Counterclaim outside jurisdiction Under section 28(4) if, during the minor case proceedings, a party files a counterclaim which does not fall within the minor cases jurisdictional limit, the Court may still deal with the case under minor procedure if the parties’ consent. If they do not, the Court has powers to either deal with the counterclaim under general procedure as a separate case, or, if the claimant requests, the whole of the minor case can be heard under the general procedure. Again, practitioners ought to be aware of the costs implications for clients of moving into the General Division, because in that division the other party’s costs are potentially payable by the unsuccessful party.

PART 2: JURISDICTIONAL LIMITATIONS AND POTENTIAL ISSUES While the jurisdictional limit is generally the guide, nonetheless there are often matters brought in the minor division which ought not to be there and which must ultimately either be transferred or dismissed. Practitioners must therefore be aware that there are significant differences between a client’s matter

being heard under the Court’s minor procedure and the general procedure. Section 29 – Informal versus Formal Firstly, section 29 outlines the manner of the proceedings under minor procedure. The intention of the minor procedure is to hear smaller claims in a more timely and efficient manner than the Court would under the general procedure. Accordingly, the Court is to act ‘with as little formality as [it] thinks reasonable’, is not bound by the rules of evidence and is able to inform itself of any matter that it thinks fit. This is contrasted with the formalities of the general procedure. Furthermore, unless the Court otherwise orders, proceedings are to be closed to the public, except for relatives and friends of the parties. Section 30 – Legal representation A defining difference between claims heard under the minor procedure as opposed to the general procedure, is that the parties are not entitled to legal or non-legal representation, unless a party is granted leave from the Magistrates Court35. There are a number of situations in which the Court may grant leave which we will look at in a moment. But it must always be borne in mind to seek such leave prior to making any submissions pertaining to the case, else it will amount to a jurisdictional error if it can later be shown that those submissions were taken into consideration by the Court in reaching the conclusion, in the absence of the required leave having first been granted. The exceptions to the general position are limited to the circumstances where leave can be granted - which are listed in section 30. A carve-out to this restriction is also available to a party who is a corporation by way of a mechanism

provided under section 44(2) in its interface with section 30(2)(a), allowing representation by one of its officers or authorised employees. When can leave be granted to be represented, and to whom? Firstly, leave may be granted to a party to be represented by an agent who is not a legal practitioner under subsection 30(3). Under that subsection, and having obtained the requisite leave, a party may be so represented in certain prescribed pre-trial proceedings, or otherwise if the Court determines the party would be unfairly disadvantaged in the trial without representation. Secondly, leave may be granted to a party in a consumer/trader claim to be represented by a legal practitioner under section 30(5). Under that subsection, the Court may give leave either if all parties agree, or in the Court’s discretion if it determines that none of the other parties will be unfairly disadvantaged. Thirdly, leave may be granted to a party in all non-consumer/trader claims, to be represented by a legal practitioner under section 30(4). This subsection enables the Court to give leave again in certain prescribed proceedings, or in circumstances where all the parties agree. Finally, if the Court is satisfied that it is in the interests of justice the Court may give leave – note the threshold here is much higher than the requirement that “none of the other parties will be unfairly disadvantaged” as per subsection 30(3). How does this section operate in practice? Rankilor v Etihad Airways PJSC [2018] WADC 144 and the Supreme Court of

LEAVING A

Appeal [2019] WASCA 36 I turn now to the Rankilor matter again, where the issue of legal representation was a central issue for determination. Briefly, the facts were as follows: Ms Rankilor had purchased an airline ticket with Etihad Airways for a flight from Rome to Perth which flew via Abu Dhabi and was code shared with the Italian airline, Alitalia Airways. She was refused boarding on the flight in Rome by Alitalia, as a 'no show' and her flight was cancelled in its entirety. A series of events led to her purchasing a business class ticket to Perth which she then later sought to get refunded when she found a cheaper flight. The problem was that she had already flown one leg of the journey (from Rome to Abu Dhabi) and as such was not entitled under the carrier terms, to such a refund. Once in Abu Dhabi, various health complaints on her part also resulted in the airline refusing to let her board on the onward journey to Perth and referring her for medical assistance instead. This led to her having to stopover in Abu Dhabi for a number of days, which was all paid for by Etihad. Nonetheless, she subsequently commenced proceedings against Etihad claiming various damages for loss of enjoyment and other costs allegedly incurred by her resulting from her election not to utilise her Business class flight. The statement of claim was a true delight, including such gems as claims for “being left to her own devices”, being deprived of “dune buggying, belly dancing and a henna tatoo”, and being “left stranded” – a reference to a layover of a few hours before her flight to Rome. The monetary damages claimed, being approximately $7,500, were within the jurisdictional limit of the Minor Claims Division, and hence she commenced proceedings in that division of the

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Magistrates Court. As legal representation is prohibited in the Minor Division, the matter had been ongoing for some time, with Etihad trying to facilitate the numerous personal appearances they had to make, occasioned by Ms Rankilor’s propensity for litigation – one has but to put her name into a Lexis Nexis search – and it became very hard for the Airline to comply with the raft of demands made by her, during the course of the proceedings, particularly as they no longer had a regional Perth-based presence. This rendered it particularly onerous and costly on the Airline to have to fly a representative from Sydney or Abu Dhabi for that matter, each time Ms Rankilor invented a new interlocutory proceeding to be heard and determined in the lead up to the trial. I was briefed at this point and had to seek leave in order for Etihad to be legally represented in the circumstances of the Airline not having a regional Perth based presence any longer. Upon receiving the brief, it became clear to me that section 28(2) was triggered, and that the matter accordingly had to be heard in the General (and not the minor) Division. We have previously spoken about this briefly – given that the Carriers Liability Act is a Commonwealth statute conferring jurisdiction on the Magistrates Court, Ms Rankilor was accordingly incorrectly in the Minor Division. At the hearing for the application that the matter be dealt with under the General Division, leave had to be sought for Etihad to be legally represented. The Court granted the leave on the basis that it was satisfied that it was in the interests of justice to give such leave and proceeded to hear and grant the application in what ended up being a two-day hearing. Briefly, in terms of it being in the interests of justice to allow Etihad to have legal representation, the Magistrate referred to section 13 of the MCCP Act which requires the Court to ensure matters are dealt with ‘justly, but also efficiently and expeditiously, and to ensure fairness to both sides’. While Etihad, being a multilayered, international corporation, was significantly more financially resourceful than Ms Rankilor, an individual, the Magistrate held that it would be naïve to not bear in mind the incredible complexity which comes with an industry and business of that scale. The Magistrate’s view was that ‘justice’ required that all parties be treated fairly. Taking section 13 and the potential complexity of the matter into account, the interests of justice were best served if Etihad had legal representation to assist on matters of law 24 | BRIEF MAY 2020

at the hearing. The Magistrate added that this would also be in the best interests of Ms Rankilor to ensure the matter was dealt with according to the correct law. We will discuss Ms Rankilor’s appeal to the District Court against the decision of the Magistrate to allow Etihad to be legally represented at the hearing, in due course. Saldanha v Fujitsu Australia Ltd (No 2) [2011] WASC 360 This is an interesting decision which involved an appeal against the Magistrates decision to permit Fujitsu to be legally represented in the application, on the ground that the appellant was ‘disadvantaged’. The Supreme Court dismissed the appeal for several reasons. Firstly, section 30(2) read with section 44(2) allows a party in a minor case claim to be legally represented with leave from the Court. The Supreme Court noted section 30(4) gives the court a ‘wide discretion’ to grant leave to a party to be legally represented where the Court is satisfied it is in the interests of justice36. This discretion must be exercised while bearing in mind the Court’s duties and objectives under section 13(2)37, mentioned above. Therefore, there exists rules and procedures which allow a party to be legally represented in certain circumstances, some of which were relevant in this case. Second, the Magistrate granted leave to Fujitsu to be legally represented in their application to strike out Ms Saldanha’s claim and distinguished this from allowing Fujitsu legal representation at any trial of this claim38. Third, the Magistrate made it clear that the representation was to aid in the ‘technical legal arguments’ of the case39. The appeal court identified the Magistrates consideration of the impact of complex legal issues as a relevant factor in determining whether to permit legal representation. Accordingly, the upshot of the decision is that the parties can remain on equal footing, even when one party is legally represented, if the Court ensures the “unpresented party fully appreciates the issues that arise for determination in a claim”40. Section 31 – Costs Moving on now to the next jurisdictional limitation which practitioners need to be aware of in advising a client, should the choice of jurisdiction be an issue, namely Costs: An important distinction to be aware of is the treatment of costs in the Minor

Division, with only “allowable costs” being capable of recovery by a successful litigant. Allowable costs are defined under section 31 to include court fees, services fees and the costs of enforcing a judgment. A party’s “other costs” are not recoverable as of right. However, the Magistrates Court may make an order for the unsuccessful party in a minor case to pay the other costs of the successful party if it is satisfied that, because of the existence of exceptional circumstances, an injustice would be done to the successful party if that party’s other costs were not ordered to be paid. This was considered in the case of Dokhe v Mills41 which concerned a general procedure claim for damages in relation to a car accident between the parties. The Magistrate held that it would be an injustice under section 31(3) of MCCP Act for the claimant to not recover more than allowable costs as an exceptional circumstance existed – that being the defendant’s rejection of the Calderbank offer. However, on appeal, the District Court found that a rejection of an offer cannot amount to exceptional circumstances for the purpose of section 31(3) by reason of its rejection only42. Similarly, if the Court is satisfied that the unsuccessful party’s claim was ‘wholly without merit’ a costs order may follow43. This was demonstrated in Lim v The Owners of Romlea Court Strata Plan 931744 where the Magistrate made an order for allowable costs in the sum of $2,000 as well as for legal costs in the sum of $4,500 on the ground the defence was wholly without merit45. By contrast, this limitation on recovery of costs does not apply in the general procedure position as to costs, set out at section 25, which follows the general rule that all or a part of the successful party’s costs are capable of being recovered from the unsuccessful party. In this regard, I turn again briefly to the Rankilor matter: Having found that the matter had to be transferred to the general jurisdiction, the Magistrate, gave the claimant a choice that he could either transfer the matter, or that her minor claim could be dismissed and she could start again in the correct division. She elected the latter, and accordingly, he ordered costs against her in that she had unsuccessfully opposed the application that the matter was in the incorrect division. He came to this conclusion on the basis of ‘exceptional circumstances’ under

Etihad Airways Boeing 787-9 Dreamliner

section 31(3) allowing the Court to order other costs be paid to the successful party under section 25(1). The Magistrate took into account that Ms Rankilor was not legally represented nor a legal expert herself. However, balanced against that, was the fact that she had submitted a significant number of interlocutory applications, had consented to her claim being dismissed as being in the wrong jurisdiction, had opposed the application regarding the limitation on the Court’s jurisdiction and taken up 2 days of the Courts time in arguing matters extraneous to that question, and finally, that she had the agency and ability to react accordingly to the proceedings. Furthermore, the Magistrate found it irrelevant that Etihad had significantly more financial resources than Ms Rankilor. The expenses accrued during the time this matter ran its course in the incorrect division were awarded to Etihad based on the above exceptional circumstances. This ultimately became a further ground of appeal to the District Court in Rankilor v Etihad Airways PJSC [2018] WADC 144 namely that the Magistrate erred in finding ‘exceptional circumstances’ existed to warrant costs payable to Etihad Airways

by Ms Rankilor. Appeals in the Minor Division We turn now to Appeals and the limitations in the Minor Division and General Division. Practitioners should keep in mind that when a client’s claim is within the minor cases jurisdictional limit, but the proceedings are conducted in the general procedure for whatever reason, the proceedings will not be classified as a minor case and therefore the limits set out in section 32 which we will discuss in a moment, will not apply.46 The MCCP Act distinguishes between the right to appeal in the Minor Division and General Division. Firstly, under section 32, generally no appeal lies against an “order” or “judgment” made in a minor case proceeding. An example of the operation of this section, is provided, again, courtesy of Ms Rankilor’s appeal to the District Court which I foreshadowed earlier, pertaining to the Magistrate’s decision to allow Etihad to be legally represented at the

hearing of the application regarding the Minor Division’s lack of jurisdiction. On appeal, it was held that the decision was an interlocutory order in respect of which no appeal lies to the District Court. Accordingly, it was not an 'order’ or ‘judgment’ within the meaning of section 32, and there was no right to appeal on this particular point. Section 32(3) – Exceptions However, an appeal may be brought against a judgment made by a magistrate in a minor case, subject to one of the following grounds: •

the minor case was not within the Court’s Minor Division jurisdiction or was not a minor case at all; or

•

there was a denial of natural justice; or

•

the judgment was beyond the Court’s Minor Division jurisdiction.

Back to Ms Rankilor, given that the case was a minor case decision, she could only appeal the Magistrate’s decision to award costs against her, which we talked about earlier, subject to those three options set out in section 32(3) of the MCCP Act47.

She picked the denial of natural justice route48. However, the appeal Court found she was not denied natural justice49. Considering the Magistrate provided significant opportunity for Ms Rankilor to be heard on the issue of costs50, took into account relevant authorities51, and gave her an opportunity to seek legal advice52, the magistrate’s decision was upheld by the District Court on appeal, who found there had been no denial of natural justice. Appeals in the General Division Pursuant to section 43(3) of the MCCP Act, the appeal court hearing an appeal from the Magistrates Court, may strike out the appeal if the likely costs of the appeal to the parties would be disproportionate to the amount of the claim in, or the nature of, the case which is the subject of the appeal. The Court of Appeal decision in Defendi v Eden Hill Plasterers53 has become synonymous with authority on the principles of proportionality. The decision sets out the principles to be applied when considering whether the likely costs of the appeal to parties would be disproportionate to the amount of the claim, and is an important case for practitioners to be aware of when litigating in the Magistrates Court. In yet a further appeal to the Supreme Court against yet a further dismissal by the District Court – this time arising out of case management orders made by the Magistrate at a directions hearing, Ms Rankilor provides an opportune example of the operation of this section. The Supreme Court of Appeal exercised the power under section 43(3) to strike out the appeal on the basis that the likely costs of the appeal to the parties would be disproportionate to the amount claimed54. This decision of proportionality was based ‘on the costs which are likely to be reasonably and properly incurred’55. And while the saga continued for some time, I shall not burden you with Ms Rankilor’s legal shenanigans any further. A further decision to be aware of is Lemonis J in Lim v The Owners of Romlea Court Strata Plan 9317 56 where the appellant attempted to include the costs already incurred at first instance as to be incurred on appeal, but the Court determined that sunk costs are not to be contemplated in determining the likely costs to be incurred going forward in the appeal57.

PART 3: LEGISLATIVE UPDATES We turn now briefly to some of the more

26 | BRIEF MAY 2020

important legislative updates to be aware of. The MCCP Act has had nine amendments since its enactment in 2004.

Endnotes

The main amendments to be aware of are the 2012 amendments to section 40 concerning appeals from the Magistrates Court to the District Court, and to section 42 concerning appeals from the District Court to the Court of Appeal. The MCCP Act was amended so that an appeal cannot be commenced more than 21 days after the date of judgment58. Furthermore, the rules of the respective court to which the appeal is made, must be followed59.

3 4

Following the 2011 amendments, a ‘trader’ under section 7(1) cannot be a lessor within the meaning of the Residential Tenancies Act 1987 (WA)60 and in 2008 the term ‘lawyer’ was replaced by ‘legal practitioner’ in line with the changes made to the Legal Profession Act 2008.

15 16 17 18 19 20 21

An interesting amendment to be aware of was the 2008 addition of subsection (6) to section 14 which grants discretion to the court to determine whether the procedure set out in the rules of the Court are not appropriate to follow in the specific case in question61. This accords with the Court’s duty to conduct the proceedings as efficiently as possible as required under section 13, leaving it up to the Court to decide that the respective procedure under the rules is not appropriate for the particular case at hand, in which case the procedure is to be that decided by the Court. And finally, section 44(2)(b) was amended to widen the scope of who a corporation could use by way of nonlegal representation – that being one of its officers, or one of its employees with written authority62. Future Changes Last but not least: As of 30 March 2020, the Magistrates Court of Western Australia is mandating electronic lodgments of all documents in its civil jurisdiction. This has been promoted by the eCourts project. ‘eLodgment’ is anticipated to improve the Magistrates Courts’ communication and interactions with its stakeholders across the State. This will of course occasion necessary changes to be made by practitioners in terms of their filing processes.

I gratefully acknowledge the research assistance provided by Robyn HollisBrown, Juris Doctor Student, The University of Western Australia

1 2

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The Magistrates Court Act 2004 (WA) s 10. James Dunbar & Co v Scottish County Investment Co Ltd [1920] SC 210, 216, 218. Palmer v Clarke (1989) 19 NSWLR 158, 167 (CA). Murcia & Associates (a firm) v Grey (2001) 25 WAR 209, 212, 213; [2001] WASCA 240. Complete Credit Acquisitions Pty Ltd v Ong [2018] WADC 78. (2002) 29 SR (WA) 101; [2002] WADC 109. (2002) 29 SR (WA) 101; [2002] WADC 109, [17]. (1989) 168 CLR 1, 16–17. [2019] HCA 40, [39]. [2011] WASC 360, [92]. (1994) 181 CLR 251, 286 (McHugh J). [2007] VSC 86. [2010] WADC 102. Magistrates Court (Civil Proceedings) Act 2004 (‘The MCCP Act’) s 5(a). Section 6(6) clarifies that when the title to land is incidentally called into question by a claim, the Court’s jurisdiction to hear this is unaffected, and the Court’s judgment is not evidence of title to the land (emphasis added). [2019] WASCA 201 (Murphy and Mitchell JJA). The MCCP Act s 9(4). The MCCP Act s 9(5). The MCCP Act s 9(3). [2008] WASCA 269. Ibid [29] (Miller JA). See Jargon Pty Ltd v Good Earth Garden Products Pty Ltd [2006] WASC 282, [13]. [2010] WADC 102. Miller v Brown & Ors [2010] WADC 102, [9]. Miller v Brown & Ors [2010] WADC 102, [40] (emphasis added). The MCCP Act s 11(2)(b). [2010] WADC 99. [2009] WADC 180. Rodwell v Hutchinson [2009] WADC 180, [51]. Rodwell v Hutchinson [2009] WADC 180, [52]. The MCCP Act s 11(3). Ibid s 3. The MCCP Act s 28(3). Ibid s 28(2). Rankilor v Etihad Airways PJSC [2018] WADC 144, [12], [20]. The MCCP Act s 30(2). Saldanha v Fujitsu Australia Ltd (No 2) [2011] WASC 360, [70]. Ibid [73]. Ibid [71]. Saldanha v Fujitsu Australia Ltd (No 2) [2011] WASC 360, [71]. Ibid [73]. [2019] WADC 74. [2019] WADC 74, [52] (Quail DCJ). The MCCP Act s 31(3). [2019] WADC 35. Ibid [55]. Lim v The Owners of Romlea Court Strata Plan 9317 [2019] WADC 35, [3]. Rankilor v Etihad Airways PJSC [2018] WADC 144, [45]. Rankilor v Etihad Airways PJSC [2018] WADC 144, [45]. Ibid at [65]. Ibid at [47]. Ibid at [48]. Ibid at [51]. [2008] WASCA 269. Rankilor v Etihad Airways PJSC [2019] WASCA 36. Rankilor v Etihad Airways PJSC [2019] WASCA 36, [22]. [2019] WADC 35, [43]. Ibid. Courts Legislation Amendment Act 2012 (WA) ss 6 and 7. Ibid. Residential Tenancies Amendment Act 2011 (WA) s 102. Acts Amendment (Justice) Act 2008 (WA) s 76. Acts Amendment (Justice) Act 2008 (WA) s 79.

The Freedom of Religion Debate: Where are we and How Did we Get Here? By Dr Renae Barker Senior Lecturer, Law School, The University of Western Australia

Introduction On 29th August 2019 the AttorneyGeneral, Christian Porter, released the first exposure draft of the Religious Discrimination Bill.1 A second exposure draft was released on 10 December 2019. The draft Bills are the latest iteration of the debate in Australia about freedom of religion and religious discrimination. This article traces the evolution of this from the same-sex marriage debate and postal survey, the 2018 Religious Freedom Review and Senate inquires through to religious discrimination by schools, the Israel Folau saga and the draft Bill itself. The context in which this Bill has been drafted is important in understanding the bill both in terms of the unusual provisions

it contains and why it continues to be controversial.

Freedom of religion in Australia: a brief overview Australian law protects freedom of religion via a patchwork of provisions found in the Constitution, legislation across a number of Australian jurisdictions and the common law. S116 of the Commonwealth Constitution is the foundation of these protections. It states: The Commonwealth shall not make any law for establishing any religion, or for imposing any religious observance, or for prohibiting the free exercise of any

religion, and no religious test shall be required as a qualification for any office or public trust under the Commonwealth. While ambitious in scope, the provision is limited in application as it only applies to laws made at the federal level and has been interpreted narrowly by the High Court.2 Unlike its American counterpart, the First Amendment, s116 has not been interpreted as a broad protection of freedom of religion nor as a “repository of some broad statement of principle concerning the separation of church and state…”3 At the state level, freedom of religion is protected in the Victorian and Australian Capital Territory Charter of Rights4-5 and in 27

the Tasmanian Constitution.6 Common law protections for freedom of religion has received mixed judicial support. In Grace Bible Church v Reedman (SA), White J observed that “... the common law has never contained a fundamental guarantee of the inalienable right of religious freedom and expression.”7 By contrast, in Church of the New Faith v Commissioner of PayRoll Tax (Vic) Mason ACJ and Brennan J commented that “Freedom of religion, the paradigm freedom of conscience, is of the essence of a free society.”8 More recently in Evans v New South Wales, the court noted “...another important freedom generally accepted in Australian society is freedom of religious belief and expression.”9 Another source of protection for freedom of religion is through specific provisions in legislation. For example, the Marriage Act 1961 (Cth) provides for the celebration of marriage by a minister of religion. This enables people of faith to be married in accordance with the rituals of their faith while simultaneously having a recognised marriage under Australian law.10 Additionally, in South Australia it is an offence to intentionally obstruct or disturb a religious service under the Summary Offences Act 11953 (SA).11 Further, in some states Sikhs are exempt from weapons control legislation in order to permit them to wear a Kirpan.12 The most significant source of legislation protecting any aspect of freedom of religion are prohibitions on religious discrimination and exemptions from anti-discrimination provisions. All states and territories (bar New South Wales and South Australia) explicitly prohibit discrimination on the basis of a person’s religion.13-19 South Australia only prohibits discrimination on the basis of a person’s religious appearance.20-21 The Religious Freedom Review recommended New South Wales and South Australian amend their anti-discrimination law to include a prohibition on religious discrimination.22 In addition, state, territory and federal anti-discrimination laws provide a range of exemptions from the general operation of discrimination law for religious organisations and schools.23-30 These exemptions enable religious organisations, and individuals within them, to practise their religious beliefs even where this is in conflict with anti-discrimination law. Without these exemptions, the freedom of religion of many people of faith would be significantly compromised. Some of the exemptions are relatively uncontentious, such as those that permit religious

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organisations to select and train religious leaders in accordance with the doctrines of their faith.31-32 More controversial are those that permit faith-based schools to discriminate against LGBTI+ staff, students and contractors.33-34

Freedom of religion vs religious discrimination While prohibiting religious discrimination is an important element of freedom of religion, the two are not synonymous. The right not to be discriminated against on the basis of your religion is distinct from the right to freedom of religion or belief. These two distinct rights are dealt with separately in international law. Article 2 of the International Covenant on Civil and Political Rights (ICCPR) deals with the prohibition of religious discrimination, and requires all state parties: to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.35 Further, Article 26 states: All persons are equal before the law and are entitled without any discrimination to the equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.36 Freedom of religion and belief is protected separately. Article 18(1) of the ICCPR states: Everyone shall have the right to freedom of thought, conscience and religion. This right shall include freedom to have or to adopt a religion or belief of his choice, and freedom, either individually or in community with others and in public or private, to manifest his religion or belief in worship, observance, practice and teaching. This right “may be subject only to such limitations as are prescribed by law and are necessary to protect public safety, order, health, or morals or the fundamental rights and freedoms of others.”37 By contrast, in Australia freedom of religion and belief has generally

been treated as a component of antidiscrimination law rather than as a separate right. As outlined above, one of the chief protections of religious freedom is exemptions from anti-discrimination laws in religious organisations and schools, allowing them to operate in accordance with their religious doctrines where they may otherwise conflict with discrimination law. For example, s72(d) of the Equal Opportunity Act 1984 (WA) (Act) provides a general exemption for bodies “established for a religious purpose” in relation to “…act[s] or practice[s] that conforms to the doctrines, tenants or beliefs of that religion or is necessary to avoid injury to the religious susceptibilities of adherents of that religion.” Further, s73 of the Act provides an exemption for “educational institution[s] that [are] conducted in accordance with the doctrines, tenets, beliefs or teachings of a particular religion or creed” in relation to employees,38 contractors39 and students.40 The purpose of these exemptions is to preserve the right to freedom of religion. However in couching these provisions solely in terms of exemptions from the general operation of the law, it is implied that religious individuals and organisations are ‘getting away’ with breaking the law rather than that religious individuals and organisation exercising their fundamental right to freedom of religion.41

The Religious Discrimination Bill The first Religious Discrimination Bill exposure draft was released by the Attorney-General on 29th August 2019.42 The decision to announce the release of the draft Bill at the Great Synagogue in Sydney was no accident, given the Jewish people were subject to the worst religious persecution the world has ever seen during the Holocaust. In his speech announcing the release of the Bill, the Attorney-General also referred to the anti-religious campaign in the USSR during the first half of the 20th century. He observed that “Of course now – for modern Australians – the Soviets’ attempt to end all religion in Russia was a project whose cruelty, violence and sheer absurdity is obvious to all rational observers. But that was far from true of the intellectual thinking of the time.”43 Both examples are stark reminders of the severe consequence should the right to freedom of religion and protection from religious discrimination are cast aside. Once a vulnerable religious group is being vilified it is too late. The time to enact laws to prevent the atrocities like those seen in the USSR and World War II is now, particularly in light of current

examples of religious persecution such as that of the Yazidis in Syria and Turkey, the Rohingya in Myanmar and the Uyghurs in China.44 The time to enact a Religious Discrimination Act is while we can still say we are living in a “truly multicultural societies whose underpinning is a live and let live approach to public life.”45 Following extensive consultation and approximately 6,000 submissions the Government released a second exposure draft. Consultation on that draft received a similarly high level of interest with 6,972 submissions. The draft exposure Bills are more than a simple anti-discrimination law. It attempts to incorporate elements of freedom of religion and respond to the various incidents, debates and divisions that have emerged in the lead up to their drafting. As a religious discrimination law, if passed the Religious Discrimination Bill will complete the suite of anti-discrimination laws at the federal level. Australia already prohibits discrimination on many of the grounds listed in Article 26 of the ICCCP through Commonwealth legislation such as the Racial Discrimination Act, Sex Discrimination Act, Age Discrimination Act and Disability Discrimination Act 1992. Religion is a notable omission from this list. The Bill will therefore complete Australia’s international obligations under

article 26 of the ICCPR. However, the draft Bill attempts to do more than this. In their drafting, they are trying to respond to the various debates and controversies that have arisen in recent years in relation to freedom of religion and belief. As a result, they conflates freedom of religion and belief with religious discrimination. The current debate about freedom of religion and religious discrimination began with the same-sex marriage postal survey and subsequent legalisation of same-sex marriage. There is a clear link between changing the law to allow for samesex marriage and increased concern about freedom of religion. The tittle of the Act legalising same-sex marriage in Australia makes this explicit – Marriage Amendment (Definition and Religious Freedoms) Act 2017 (Cth). In international case law on same-sex marriage, courts have regularly linked the two concepts. The implications for freedom of religion were explicitly discussed in the United States Supreme Court case Obergefell v Hodges,46 the South African decision Minister for Home Affairs v Fourie and others; Lesbian and Gay Equality Project and Others v Minister of Home Affairs and Other47 and the Canadian case Reference re Same-Sex Marriage.48 This link can also be seen in the other draft Bills released alongside the Religious Discrimination Bill exposure draft. The exposure draft of the

Human Rights Legislation Amendment (Freedom of Religion) Bill, inter alia, amends the Marriage Act to make clear that an “educational institution that is conducted in accordance with the doctrines, tenets, beliefs or teachings of a particular religion” may refuse to provide goods and services for the solmisation of a same sex marriage.49 A similar provision was inserted into the Marriage Act by the Marriage Amendment (Definition and Religious Freedoms) Act 2017 for “bodies established for religious purposes.”50-51 The Religious Freedom Review52 was announced in the midst of the parliamentary debate on the legalisation of same-sex marriage. The Australian Statistician announced the results of the same-sex marriage postal survey on 15 November 2017. The Bill which would carry out the results of the survey by legalising same-sex marriage was introduced to Parliament the same day with the second reading debate beginning on 16 November. The Bill passed the third reading of the Senate on 29 November and the House of Representatives on 7 December. It received Royal Assent on 8 December. The Religious Freedom Review was announced on 22 November, while the Bill was before the Senate.53 The Religious Freedom Review covered

much more than religious discrimination, making a total of 20 recommendations. These cover a wide range of issues from blasphemy in the Shipping Registration Regulations 1981,54 to the collection of data on the experience of freedom of religion in Australia,55 to the role of the Australian Human Rights Commission (AHRC).56 The recommendations of the Religious Freedom Review were leaked to the media in October 2018.57 Focus immediately turned to the recommendations related to exemptions for faith-based schools. Recommendations five through eight concerned exemptions in the Sex Discrimination Act 1984 (Cth) and other state and territory-based discrimination laws which provide religious schools with exemptions from some aspects in relation to teachers, contractors and students. Despite inaccurate media reporting,58 these recommendations sought to narrow these exemptions.59 The Religious Freedom Review recommended the removal of any exemptions relating to race, disability, pregnancy or intersex status, or on the basis that existing

30 | BRIEF MAY 2020

employees had entered into a marriage. Further, the Religious Freedom Review recommended that the remaining exemptions in the Sex Discrimination Act 1984 (Cth) be amended to require schools to have a publicly available policy “outlining its position in relation to the matter and explaining how the policy will be enforced.”60-62 Since the leaking of the recommendations on October 2018, there have been two federal Senate inquires63-64 and the issue has been referred to the Australian Law Reform Commission.65 When announcing the release of the Religious Discrimination Bill exposure draft, the Attorney-General extended the reporting deadline for the Australian Law Reform Commission. They are now due to release their final report 12 months after the Religious Discrimination Bill passes parliament. The Religious Discrimination Bill exposure drafts and related draft Bills fulfil several of the key recommendations of the Religious Freedom Review including recommendations 15 and 19, although in both cases the government has taken a slightly different approach to that recommended by the panel.

In recommendation 15 the panel recommended that: The Commonwealth should amend the Racial Discrimination Act 1975, or enact a Religious Discrimination Act, to render it unlawful to discriminate on the basis of a person’s ‘religious belief or activity’, including on the basis that a person does not hold any religious belief. In doing so, consideration should be given to providing for appropriate exceptions and exemptions, including for religious bodies, religious schools and charities. The government has chosen to adopt the second of the two options presented by the Religious Freedom Review, despite the apparent preference of the panel for religious discrimination to be incorporated into the existing Racial Discrimination Act 1975 (Cth). In recommendation 19, the panel recommended that: The Australian Human Rights Commission should take a leading role in the protection of freedom of religion, including through enhancing engagement, understand-

of Religion Commissioner despite the Panel’s recommendation to the contrary.67

Controversies over specific provisions A number of the proposed provisions of the draft Bill go beyond what you may expect to see in anti-discrimination law. In most cases these respond directly to recent controversies and concerns about the erosion of freedom of religion and belief. While the Religious Freedom Review recommended a federal Religious Discrimination Act, it is the now infamous Israel Folau Instagram post and subsequent legal proceedings which catapulted the issue into the public consciousness. At the centre of the Folau saga are Rugby Australia’s Code of Conduct, which Rugby Australia claim Folau breached and Folau claims impeded his freedom of religion. while the parties eventually settled their dispute in a confidential settlement, the case has reverberated in the drafting of the Bill.

ing and dialogue. This should occur within the existing commissioner model and not necessarily through the creation of a new position.66 While the Government has accepted the recommendation that the AHRC should take a leading role in protecting freedom of religion, they have chosen to do this by creating the new position of Freedom

Like all other federal anti-discrimination Acts the Bill prohibits both direct and indirect discrimination. Employee conduct rules would, in most circumstances, be covered by the provisions relating to indirect discrimination if they impose a greater burden on people of a particular faith. S8(3) of the draft Bill goes further by specifically providing that an employee conduct rule that “would have the effect of restricting or preventing an employee of the employer from making a statement other than in the course of the employees employment” (the last eight words were added in the second exposure draft) is not reasonable unless “compliance with the rule by employees is necessary to avoid unjustifiable financial hardship to the employer.” Given that s8(2) already contemplates the indirect discrimination

provisions applying to employee conduct rules, the need for this additional provision can only be explained by high profile Israel Folau case. Similarly, the inclusion of s42 of the draft Bill (s41 in the first exposure draft) can be explained by reference to the case against the Catholic Archbishop of Hobart Julian Porteous. In 2015, Martine Delaney brought a vilification claim against Archbishop Porteous in response to a booklet distributed in Catholic schools. The booklet titled Don’t Mess with Marriage outlined the Catholic church’s position on same-sex marriage. Martine Delaney was particularly concerned with statements in the booklet that implied that same-sex marriage, and therefore parents, were “messing with kids.” After an unsuccessful attempt at mediation, Delaney withdrew her complaint.68 The link between s42 and the complaint against Archbishop Porteous is even clearer than the link between s8(3) and Israel Folau. S42(1)(a) provides that “a statement of belief does not constitute discrimination for the purposes of any anti-discrimination law.” S42(1)(b) goes even further providing that “a statement of belief does not contravene subsection 17(1) of the Anti-Discrimination Act 1998 of Tasmania.” This is the provision under which Martine Delaney brought the complaint against Archbishop Porteous. While s42 is couched in discrimination language, its aim appears to be to protecting freedom of religion and belief, rather than to prohibit discrimination. Unlike the manifestation of religion, religious belief is protected absolutely in international law. For example, while Article 18(3) of the ICCPR permits states to limit the freedom to manifest religion where it is “necessary to protect public safety, order, health, or morals or the fundamental rights and freedoms of others”, there is no equivalent provision

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for religious belief. Statements of belief could be argued to be an outward expression of the forum internum and as such it is imperative that law protects the absolute right to hold or not hold a religious belief. Such a provision sits uncomfortably in a law about religious discrimination so as to treat religious discrimination and freedom of religion, two important and separate rights, as one and the same.

Where are we and where are we going? While the public debate around freedom of religion and religious discrimination has come a long way in a relatively short period of time, the law has not. The last substantive change to the law related to freedom of religion or religious discrimination was the amendments made to the Marriage Act 1961 (Cth) at the same time as the legalisation to same sex marriage.69 None of the recommendations of the Religious Freedom Review has sounded in actual legal change, despite much debate and several inquiries (with more to come). In 1998 the AHRC (then the Human Rights and Equal Opportunity Commission) released Article 18: Freedom of Religion and Belief. The report recommended the passage of a federal Religious Freedom Act.70 The Religious Freedom Review did not go down this path.71 However, at the moment their recommendations along with those of the Senate inquires and other public consolations risk fading into history just as the Article 18 report has done. In 2011 the AHRC followed up on its 1998 report in Freedom of Religion and Belief in 21st century Australia.72 One of the aims of the report was to “evaluate the response to Article 18: Freedom of Religion and Belief and its recommendations.”73 However they found that “…evaluating the report Article 18: Freedom of Religion and Belief was unnecessary beyond establishing that most participants were unfamiliar with the report.”74 The draft Bills have been criticised by all sides of the religious freedom debate. Its major flaw is that it attempts to be both religious discrimination law and a law about freedom of religion. As outlined above, prohibiting religious discrimination is an important component of freedom of religion but the two are distinct and separate rights. Further, the creation of a federal Religious Discrimination Act is just one of the 20 recommendations made by the Religious Freedom Review. If something is to be salvaged from 32 | BRIEF MAY 2020

what is rapidly becoming a series of consultations without end, these other recommendations could be acted upon. The Australian Law Reform Commission is currently conducting its own inquiry into many of these but other such as the removing the reference to blasphemy in the Shipping Registration Regulations 1981 could be acted upon now without any further consultation or debate.

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Endnotes 1

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Attorney-General for Australia and Minister for Industrial Relations. Morrison Government delivers on religious reforms [Internet]. Canberra: AttorneyGeneral’s Department; [updated 2019 August 29; cited 2019 December 2]. Available from: (https:// www.attorneygeneral.gov.au/media/media-releases/ morrison-government-delivers-religious-reforms-29august-2019). Barker R. State and Religion: The Australian Story. New York: Routledge, 2018, p.86-94. Attorney-General (Vic); ex rel Black v The Commonwealth (1981). 146 CLR 559, 609, 652 (Stephen J). Charter of Human Rights and Responsibilities Act 2006 (Vic). Human Rights Act 2004 (ACT). Constitution Act 1934 (Tas) s46. Grace Bible Church v Reedman (1984). 36 SASR 376, 388. Church of the New Faith v Commissioner of Pay-roll Tax (Vic) (1983). 154 CLR 120, 130. Evans v New South Wales (2008). 168 FCR 576, 596 [79] (French, Branson and Stone JJ). Marriage Act 1961 (Cth) s45(1). Summary Offences Act 1953 (SA) s7A. For example Weapons Act 1990 (Qld) s51(4). Discrimination Act 1991 (ACT) s7. Anti-Discrimination Act 1992 (NT) s19(1). Anti-Discrimination Act 1991 (Qld) s7. Equal Opportunity Act 1984 (SA) s85T. Anti-Discrimination Act 1998 (Tas) ss14-15, s16(o). Equal Opportunity Act 2010 (Vic) s6(n). Equal Opportunity Act 1984 (WA) s53. Refer Note 16. It’s not because you wear Hijab, it’s because you’re Muslim – Inconsistencies in South Australia’s Discrimination Laws. QUT Law Review 2012, Vol.7(1), p.57. Philip Ruddock (Chair). Religious Freedom Review [Internet]. Canberra: Attorney General’s Department; [updated 2018 May 18; cited 2018 December 2]. Available from: (https://www.ag.gov. au/RightsAndProtections/HumanRights/Documents/ religious-freedom-review-expert-panel-report-2018 pdf). Sex Discrimination Act 1984 (Cth) s37. Anti-Discrimination Act 1977 (NSW) s56(d). Refer Note 14, at s51(d). Refer Note 16, at s50(1)(c). Refer Note 17, at s52(d). Refer Note 18, at s 82(2). Refer Note 19, at s72(d). Sexual Orientation and ‘Gay Wedding Cake’ Cases Under Australian Anti-Discrimination Legislation: A Fuller Approach to Religious Exemptions. Adelaide Law Review 2017, Vol.38(1), p.149, 156-161. Refer Note 19, at s72(a)-(c). Refer Note 23, at s37(1)(a)-(c). Refer Note 19, at s73. Refer Note 23, at s38. International Covenant on Civil and Political Rights (ICCPR) Article 2(1), emphasis added. ibid., at Article 26, emphasis added. ibid., at Article 18(3). Refer Note 19, at s73(1). Refer Note 19, at s73(2). Refer Note 19, at s73(3). Aroney N. Religious Discrimination and Religious Freedom: An Evaluation of the Exposure Draft of the Australian [Internet]. New South Wales: SSRN; [updated 2019 September 4; cited 2019 December 2]. Available from (http://dx.doi.org/10.2139/ ssrn.3455089), p.3. Refer Note 1. Attorney-General for Australia and Minister for Industrial Relations. Religious Discrimination Bill 2019 (Speech, Great Synagogue Sydney) [Internet]. Canberra: Attorney-General’s Department; [updated 2019 August 29; cited 2019 December 2]. Available from: (https://www.attorneygeneral.gov.au/Media/ Pages/religious-discrimination-bill-speech-29aug-2019.aspx). Barker R. The Religious Discrimination Bill isn’t (just) about Christians [Internet]. Perth: Australian Broadcasting Corporation; [updated 2019 September

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73 74

2; cited 2019 December 2]. Available from: (https:// www.abc.net.au/religion/the-religious-discriminationdebate-is-not-about-christians/11472040). Refer Note 43. 135 S Ct 2584 (2015). [2006] 1 SA 524 (Constitutional Court). [2004] SCC 79. Human Rights Legislation Amendment (Freedom of Religion) Bill exposure draft, Schedule 1 Clause 7. Marriage Amendment (Definition and Religious Freedoms) Act 2017, Schedule 1, Clause 21. Marriage Act 1961 (Cth) s47B. Also known as the Ruddock Review. Prime Minister, Ruddock to examine religious freedom protection in Australia [Internet]. Canberra: Parliament of Australia; [updated 2017 November 22; cited 2019 December 2]. Available from: (https:// parlinfo.aph.gov.au/parlInfo/search/display/display. w3p;query=Id:%22media/pressrel/5646245%22). Refer Note 22, at p.4. ibid., at p.6. ibid., at p.7. Sydney Morning Herald. Read the full 20 recommendations from the religious freedom review [Internet]. Sydney: Fairfax Media; [updated 2018 October 12; cited 2019 December 2]. Available from: (https://www.smh.com.au/politics/federal/read-thefull-20-recommendations-from-the-religious-freedomreview-20181011-p50918.html). Episode 36: Religious Freedom Furphy: Fairfax denies any mistakes in its reporting on schools discriminating against gay students: Media Watch [television broadcast]. Sydney: Australian Broadcasting Corporation [updated 2018 October 15; cited 2019 December 2]. Available from: (https://www.abc. net.au/mediawatch/episodes/religious-freedomfurphy/10377314). Elphick L, Maguire A and Hilkemeijer A. Ruddock report constrains, not expands, federal religious exemptions [Internet]. The Conversation; [updated 2018 October 10; cited 2019 December 2]. Available from (https://theconversation.com/ruddockreport-constrains-not-expands-federal-religiousexemptions-96347). Refer Note 22, at p.2. Refer Note 16, at s34(3): a publicly available policy is already required from schools. I have argued elsewhere that all religious organisations should be required to have such a policy, at least in relation to the hiring of staff. See Religious schools should be required to be transparent in their use of exemptions in anti-discrimination laws. Alternative Law Journal 2019 (forthcoming). Senate Legal and Constitutional Affairs Committee. Legislative exemptions that allow faith-based educational institutions to discriminate against students, teachers and staff [Internet]. Parliament of Australia; [updated 2018 November 26; cited 2019 December 2]. Available from: (https://www.aph.gov. au/Parliamentary_Business/Committees/Senate/ Legal_and_Constitutional_Affairs/Schooldiscrimination/ Report). Sex Discrimination Amendment (Removing Discrimination Against Students) Bill. Australian Government. Australian Government Response to the Religious Freedom Review [Internet]. Canberra: Attorney-General’s Department; [updated 2018 December; cited 2019 December 2]. Available from: (https://www.ag.gov.au/RightsAndProtections/ HumanRights/Documents/Response-religiousfreedom-2018.pdf), p.15-21. Refer Note 56. Religious Discrimination Bill, Part 6. Drummond A. Transgender rights acitivist Martine Delaney drops complaint over Catholic Church’s marriage booklet [Internet]. Hobart (Tas): Mercury; [updated 2016 May 5; cited 2019 December 2]. Available from: (https://www.themercury. com.au/news/tasmania/transgender-rightsactivist-martine-delaney-drops-complaint-overcatholic-churchs-marriage-booklet/news-story/ d8d9079bf932526b27e5f094e57dbe84). Marriage Amendment (Definition and Religious Freedoms) Act 2017. Human Rights and Equal Opportunities Commission. Article 18: Freedom of Religion and Belief [Internet]. Sydney (NSW): Commonwealth of Australia [updated 1998 July; cited 2019 December 2]. Available from: (https://www.humanrights.gov.au/sites/default/files/ content/pdf/human_rights/religion/article_18_religious_ freedom.pdf). Refer Note 22, at p.41. Bouma G, Cahill D, Dellal H and Zwartz A. Freedom of Religion and Belief in 21st century Australia [Internet]. Australian Human Rights Commission; [updated 2011; cited 2019 December 2]. Available from: (https://www. humanrights.gov.au/sites/default/files/content/frb/ Report_2011.pdf). ibid., at p.6. ibid.

Taxing Matters

Partnership Property â&#x20AC;&#x201C; Lessons from Rojoda By Grahame Young, Barrister, Francis Burt Chambers

The circumstances leading to the decision of the High Court in Commissioner of State Revenue v Rojoda Pty Ltd [2020] HCA 7, focus attention on the doctrine of conversion in respect of partnership property. This article deals with aspects of that doctrine and the transfer duty consequences. First, some fundamental principles concerning partnerships. A partnership is not an entity, it is defined in The Partnership Act 1895 (WA) (Partnership Act) as a relationship between persons carrying on business in common with a view of profit1. The existence of the relationship has consequences for the partners as between themselves and in their dealings with third parties.

Next, the interest of partners in partnership property is sui generis. A partner has an equitable interest in each asset of the partnership2 but has no right to any particular asset3. Section 33 of the Partnership Act provides: The share of a partner in the partnership property at any time is the proportion of the then existing partnership assets to which he would be entitled if the whole were realised and converted into money, and after all the then existing debts and liabilities of the firm had been discharged.

The interests of partners after dissolution of the partnership are set out in sections 50 and 57 which are to same effect. It is perhaps less appreciated that it follows that the proprietary interest in partnership property, being held for the benefit of the partners, is held on trust for the respective partnersâ&#x20AC;&#x2122; sui generis interests. This is true for all partnership property, but becomes more obvious where the property is not held by all partners or is held by a custodian. The doctrine of conversion in relation to partnership property is that on becoming partnership property the legal interests are converted to the sui generis interests. The reverse happens when property ceases to be partnership property. Conversion is specifically dealt with by section 32 which provides that where land becomes partnership property, it shall be treated as between partners (and the 33

representatives of a deceased partner) as personal and not real estate, that is as an interest in the surplus funds only. This had particular significance when real estate passed to the heir, but now is but an instance of the general doctrine that on becoming partnership property, the proprietary interest of the title holder is converted to a sui generis partnership interest. It was the conversion of partnership interests to fixed equitable interests after dissolution that lead to an assessment of duty in Rojoda. This article is not concerned with an analysis of that decision, but rather some lessons that may be learnt from it.

How does property cease being partnership property? It is convenient to consider this issue both during continuance of the partnership and after dissolution. Just as property becomes partnership property by agreement of the partners, which may be express or inferred, so can the partners agree that property ceases being partnership property and is held by the partners in their own right. Although there is an abundance of authority as to whether an agreement is to be inferred that property has become partnership property, there is a lack of authority as to the reverse. Despite that, in principle there is no reason why such an agreement should not be inferred, although the circumstances in which an inference may be drawn are likely to be more limited. At first blush it may seem odd that property can cease being partnership property during continuance of a partnership, but on reflection it will not affect the rights of creditors who have the advantage of the unlimited liability of partners for partnership liabilities. In seeking satisfaction of liabilities, creditors have access to partnership property and to the personal assets of each partner. It is useful to remember in a partnership, dissolution precedes winding up. After dissolution and before winding up the rights of the former partners are virtually unchanged, they retain their sui generis interests in the property of the former partnership to have it realised, the liabilities discharged and an entitlement to any surplus4. There is no reason to consider that after dissolution the partners cannot agree that property can cease being held for those interests and be held as specific equitable interests. 34 | BRIEF MAY 2020

The Court of Appeal had held that upon the liabilities being ascertained and sufficient current assets being available to satisfy them, the balance of the property was, as a matter of law, held for the partners in their fixed proportions. The High Court overruled the Court of Appeal on this aspect and held that the property continued to be held to satisfy the sui generis interests and, it would appear, that applies even after all liabilities were satisfied and although the remaining property was unsold. The High Court also held that the 2013 agreements had the effect of converting the sui generis interests to specific equitable interests and that was the creation of new trusts. At paragraph 42 of the reasons of the majority (Bell, Keane, Nettle and Edelman JJ) found that the confirmations of the former partner who had title to the partnership assets that she held properties in fixed proportions had substantive effect. But at paragraph 61 it is acknowledged that she had no power of conversion without the agreement of the other partners or their representatives. It was the combination of the agreement of the partners or their representatives to extinguish their existing, unascertained partnership interests and to create new fixed trusts of the freehold titles held by one of them and the confirmation by the title holder that resulted in the 2013 agreements constituting declarations of trust. Whenever new trusts are created over dutiable property, then, as set out below, it is virtually inevitable that there will be a declaration of those trusts. It may seem surprising that an agreement that property is, or is no longer partnership property can be or lead to a declaration of trust, but that is the effect of the decision. That will not be so where the partnership property is held by the former partners in their partnership proportions because although there will be an extinguishment of the former interests, no new trusts will be created; each will then hold their interest in their own right and not as a trustee. It may be interesting to speculate how far the decision can be applied. If property is held on trust for sale and distribution of the proceeds (as is often the case with the residue of deceased estates), will an agreement that interests in certain properties be held for the beneficiaries be considered a declaration of a new trust? Similarly, what if an appropriation is made or the beneficiaries unite to make a Saunders v Vautier request to terminate

the trust? But these matters are outside the scope of this article.

Transfer duty – formation of partnership The Duties Act 2008 (WA) (Duties Act) charges duty on partnership acquisitions5. A partnership acquisition is defined in s 72 as a person acquiring a partnership interest in a partnership that holds land, or certain land-like property, in Western Australia. Under s 75 person acquires a partnership interest if a partnership is formed or their partnership interest increases. Section 76 provides that the dutiable value of a partnership acquisition is the greater of the consideration or the value of the interest. The value is worked out by reference to the dutiable property held directly or indirectly by the partnership, which for this purpose is confined to land or certain land-like property. Section 77(2) then provides that in determining the value of a partnership interest on formation of a partnership the value of dutiable property contributed by the partner is to be disregarded. The effect of these provisions can be illustrated by a simple example. Suppose A and B enter into equal partnership. A contributes land worth $100,000 and B contributes cash of the same amount. Both A and B make a partnership acquisition of a 50% interest in the partnership so formed that has dutiable property of $100,000. Because for A’s acquisition the value of the dutiable property contributed is disregarded no duty is chargeable on that acquisition. But duty will be charged on B’s acquisition of a 50% interest in the dutiable property.

Transfer duty – acquisition of partnership property The Duties Act has no specific provisions relating to acquisition of dutiable property by an existing partnership. In most cases if there is an agreement for transfer or transfer, duty will be charged on that as a dutiable transaction. However, if there is a simple agreement that property will be partnership property without a transfer, then that property will be held on trust for the partnership. In those circumstances, following Rojoda, it is virtually certain that the agreement will be or lead to a declaration of trust, bearing in mind that the agreement need not be in writing6.

High Court of Australia

Duty on the declaration of trust will be assessed by reference to the greater of the consideration given or the unencumbered value of the dutiable property. The concession in s 77(2) for the dutiable property contributed by the holder of the contributed property will not be available because that only applies on formation of a partnership.

Transfer duty – transfer to retiring partner Before its amendment as from 13 June 2019, s 78 attempted to give credit for duty paid on formation of a partnership or on a partnership acquisition when dutiable property was transferred to a retiring partner or on dissolution. In the example above, if the property was transferred to B then credit was given for the duty paid by B on formation of the partnership. The section did not work as intended because it only dealt with transfers to

the retiring partner and did not take into account dutiable property retained by the partnership or the retiring partner without need for transfer. The new ss 78 and 78A are intended to overcome the shortcomings of the former s 78, but they only apply to transfers and deemed transfers by retention of title by the retiring partner. If there is not a transfer, but as in Rojoda, the legal title is held by a trustee following conversion to fixed equitable interests, then, because conversion is not a transfer but a declaration of trust, duty will be assessed on the full unencumbered value without the reduction in duty provided under ss 78 and 78A. It may be worth considering. before agreeing that property will cease to be partnership property, transferring it to all partners in their respective proportions relying on the nominal duty concession in s 119(3)(a), so no new trust is created on conversion.

Conclusion Whenever possible, to avoid adverse transfer duty consequences, land and other dutiable property as defined in s 70, should not be ventured into a partnership or acquired by a partnership. Endnotes 1

1 2 3 4 5 6

Stories from the Old Court House Law Museum

Young lawyers in 1913, shortly before many enlisted for the First World War. Chris Ewing stands in the back row, fourth from the left. Lindsay Glowrey stands in the middle row, seventh from the left. Old Court House Law Museum collection 2005.130

The First World War and WA’s Young Lawyers To mark Anzac Day this year, we reflect on the service of some of Western Australia's young lawyers during the First World War. Chris Ewing and Lindsay Glowrey were both working as law clerks in Perth, and even played on the same football team, when they enlisted with the Australian Imperial Force (AIF) during World War One.

Great Depression brought great financial hardship but, according to his children, Ewing and his wife Vera remained optimistic during these troubling times.

Gunner Chris Ewing

2nd Lieutenant Lindsay Glowrey

Thomas Parker Christopher (Chris) Ewing was an athletically talented 22-year-old law clerk with A.W. Henderson when he enlisted at Blackboy Hill on 17 August 1914 – the same day the AIF training camp was established there. Ewing landed at Gallipoli on 25 April 1915, as part of the AIF's 8th Artillery Battery, 2nd Australian Field Regiment. He was still there on 22 June when he wrote in a letter to his mother (pictured); "We expect at big move very shortly but shan't be sorry as we have been on this hill just on

36 | BRIEF MAY 2020

eight weeks now." He suffered shellshock and injuries to his foot (requiring a partial amputation) in this "big move", and was hospitalised on Lemnos Island, Greece, and in England before being discharged from the Army due to his injuries in September 1916. Upon returning home to Perth, Ewing continued his studies and became a special war pension magistrate, working for the government, as well as practising at his own law firm on St Georges Terrace. He was a popular figure around town, renowned for his wit, storytelling and poetry recitations. The

Despite his war-time injuries, Ewing continued to live an active lifestyle – even winning the state mixed doubles tennis championship in 1925. Sadly, his injuries caught up with him later in life when he stumbled down a flight of steep stairs in 1953, resulting in a fatally fractured skull.

Lindsay Gordon Glowrey was a dynamic 23-year-old articled law clerk when he enlisted with the AIF on 8 August 1915. He is remembered as a spirited and loyal young man while at school, whose athletic talents shone through in his college football, cricket, and rowing careers, as well as his love of surfing. He also displayed an untiring enthusiasm and energy for his drama club, in which he was coached by his elocution master Lionel Logue (who later worked with King George VI). Glowrey studied law at Adelaide University, with his AIF

The West Australian Law Students’ Football Team, featured in the Western Mail on 17 July 1914. Chris Ewing is seated at the end of the middle row, on the right. Lindsay Glowrey sits cross-legged in front of him, first on the right.

attestation papers listing him as an apprentice of three and a half years with Villeneuve Francis Smith, of Smith and Lavan Barristers in Perth. He was assigned to the 16th Battalion and embarked from Fremantle to serve on the Western Front in France, in February 1916. A letter from Glowrey to his parents (proprietors of the Palace Hotel, on the corner of William Street and St Georges Terrace) was published in The West Australian in October 1916, and sums up his dedication to his military service in France; “I could wish that I were home with you all now so that I could answer your letter personally. But it is the will of God that I should be 13,000 miles away doing my best for my country in a war that means the saving of the world, and surely you would not have your son doing anything else.” Glowrey’s abilities as a natural leader, were evident in his conduct on the battlefield. Early in the morning of 11 April 1917, aged just 25 years, he was heard calling to his men in the trenches near Bullecourt as they prepared to face

Ewing’s letter to his mother from Gaba Tepe (Ewing has spelt it “Kapa Tepe”), Gallipoli Peninsula, 22 June 1915. Courtesy of the Ewing family.

enemy fire. Shortly after leading them into battle, Glowrey was shot and wounded. Just moments later he was struck a deadly blow to the head by part of an artillery shell. In his last moments he was reported as saying “Tell them that I tried to do my best”.

of New South Wales, https://www.aif.adfa.edu.au/ showPerson?pid=112770

Glowrey has no known grave, but is commemorated alongside over 10,000 fellow Australians at the Australian National Memorial at Villers-Bretonneaux, France. His family spent years searching for the final resting place of their son, sending multiple requests to the AIF for information about his death.

‘The West Australian Law Students’ Football Team’, Western Mail, 17 July 1914, p.24, http://nla.gov.au/nla.newsarticle37975855

‘Thomas Parker Christopher EWING’, The AIF Project, University of New South Wales, https://www.aif.adfa.edu.au/ showPerson?pid=93551 Featured news articles can be read in full on Trove, courtesy of the National Library of Australia: ‘The Call for Reinforcement: Testimony of a young officer’, The West Australian, 27 Ocotber 1916, p. 7, http://nla.gov.au/ nla.news-article26995413

Endnotes Biographical details courtesy of research undertaken by Julianne Mackay for the From Law to War to Peace exhibition displayed at the Old Court House Law Museum for the Centenary of Armistice in 2018-19. Letter and further biographical details about Chris Ewing were kindly supplied by the Ewing family. Further details of Ewing and Glowrey’s service can be found in the following sources: ‘NAA: B2455, Glowrey L G’, National Archives of Australia, http://recordsearch.naa.gov.au/scripts/AutoSearch. asp?O=I&Number=5129579 ‘NAA: B2455, Ewing C T P’ National Archives of Australia, http://recordsearch.naa.gov.au/scripts/AutoSearch. asp?O=I&Number=3545610 ‘Lindsay Gordon GLOWREY’, The AIF Project, University

1 May 2020 Laurie James Obituary

Recollections of Laurie James From an Admirer

Laurie James was born in Perth on 12 April 1942. He attended Maddington Primary School, Armadale High School and then Kent Street Senior High. By way of small, but highly significant digression, I should say that it was there that Laurie met his wife Eunice through their membership of the debating team. Laurie studied law at UWA with great distinction and was awarded first-class honours in 1963, as well as the Anita and Meyer Davis Prize for jurisprudence. I doubt the “gap year” was a thing in those days, and in any event, Laurie wasted no time entering the profession and joined Kott Gunning as an article clerk in 1963. His rise was rapid and he became a partner in 1967. By the time I arrived at the firm in 1979, Laurie had already established himself as a leading litigation and construction lawyer. I feel very privileged to have the opportunity to write this obituary for Laurie. I liked Laurie a great deal and admired him enormously. I wish I could say that I knew him equally well, but the fact is that we were a generation apart and Laurie was a fairly private person for whom the law, his family and a few very strong personal interests outside of the law, such as art (in particular) wholly occupied his firmament. I do however have some very clear recollections of Laurie from my early days with the firm. Due to his breadth of legal

38 | BRIEF MAY 2020

knowledge, particularly as a litigation lawyer, as well as having established a strong construction and arbitration practice, Laurie undertook a range of work and had in his time been involved in personal injury and insurance litigation. He was therefore the logical partner to supervise me when I joined the firm to do worker’s compensation and personal injury claims. At that time we were both fortunate in being supported in our practices by the formidable Mrs Janet Saunders, a wonderful and robust lady who had been a policewoman in Warwickshire before moving to Australia and becoming a legal secretary. No, that requires correction. Janet was Laurie’s secretary. However, she found time for me as well. Laurie himself, was a smart young lawyer (not merely a reference to his intellect), and the impression he made on a very junior practitioner such as myself was considerable. He dressed very well, had a couple of wonderful oil paintings hanging in his office and almost invariably, no more than one file on his desk – in many ways, therefore, the ideal role model.

He was also generally unflappable and as a supervisor he was great, because he would gladly answer questions but did not seek to impose himself or his ideas too heavily on those he supervised. He believed that the way to learn was by doing and by making decisions (and invariably, a few mistakes). When I picture myself going to see Laurie in his office to talk about some legal issue or a problem I may have had, three things in particular stand out. First, there was almost never a legal question for which he did not have a meaningful and substantive answer, or if not an answer, sufficient information to enable the answer to be arrived at. Secondly, I recall that if you needed Laurie to read documents for the purpose of your discussion he seemed to do no more than merely scan them, taking a fraction of the time it would have taken me to read the material but nevertheless absorbing everything. Finally, I was fascinated to see that when Laurie took notes or was explaining something, he would draw pictures. There might be a stick drawing of the plaintiff, also a defendant – possibly looking like a factory representing a corporate entity, then the subject matter – perhaps a truck or car or a crane or a house, some lines with notations denoting action. It was a bit like having a shorthand PowerPoint presentation sketched right in front of you. He had a remarkably strongly diagrammatic and structured way of thinking about issues.

As already mentioned, in the early days of my association with the firm, Laurie was already a well-established construction lawyer and over the ensuing years he became one of the most prominent if not the leading construction lawyer in Perth.

government, construction and general litigation until his retirement in 2019. During that year, very pleasingly, Laurie was able to see the firm reach its 100th anniversary along with his own 56th year of practice at Kott Gunning.

In doing so, Laurie gravitated inexorably towards the particular feature of his practice of the law that he was most passionate about, namely resolving disputes by negotiation rather than through litigation. The field of construction and arbitration law was really an ideal place to develop and drive alternative dispute resolution and that is exactly what Laurie did.

Laurie was not a practitioner whose daily exploits provided fodder for gossip around the photocopier, though I have not been without such partners. He did however possess a very dry wit, was open to ideas and was capable of surprising his partners.

Over the years, Laurie distinguished himself in this field and was appointed Australian President of the Institute of Arbitrators’ and Mediators and later WA Chapter Chairman. Laurie was also appointed Deputy Chairman of the Construction and Infrastructure Committee of the Law Council of Australia and in 2015 was awarded Member of the Order of Australia in the 2015 Queen’s Birthday Honours list. All of this is perhaps not surprising considering the similarly distinguished service of his great grand uncle, Sir Walter James, who served as premier of WA from 1902 to 1904. As a partner of Laurie’s from 1985, I was aware of a number of his notable achievements, including the development of the “Fast Track Arbitration Rules” along with the amalgamation of LEADR and IAMA in Western Australia, of which I believe he was most proud. Tangibly, though less directly Laurie also influenced the more general movement of the courts to a system involving a significant court based “mediations” in 1993. During the 1990s, there was a change in the market and the environment in regard to construction law, what clients required and the number of disputes to be resolved. This provided an excellent opportunity for Laurie to extend his focus to another field in which he had previously been contributing on a limited basis to one in which he was able to take the lead role, namely Kott Gunning’s local government practice. I think he found the practice of local government law to have parallels with construction disputes. Although there was always a body of law that could be highly technical, there was a great deal that could be achieved at a more practical level and clients who seemed to respond positively to advice about practical solutions to problems rather than with a fixation on litigation at all costs. Laurie continued to work in local

An example of this is Laurie’s excursion in company with a very energetic junior lawyer at the firm, who had persuaded him to travel to South Korea to pursue some (legal) business opportunities. That energetic young lawyer should remain nameless, but Luka, if you read this, I hope it brings back memories for you. The whole idea was quite a surprise to the rest of the partners, not least, because Laurie had not prior to that time been particularly fond of travel – certainly international travel, so the whole exercise would have been a real step out of his comfort zone. And as it turned out, the whole thing was a bit of a flop. Laurie subsequently travelled east quite a bit however (maybe Korea was a turning point), both for the purpose of the board positions he held and also because he and his wife Eunice really liked Melbourne and enjoyed holidaying there. I hasten to add, though, that he has declared a preference for Perth. Travel aside, Laurie was most certainly a man of broad interests. Although he loved the law and his work, it was not an all-consuming passion. That was undoubtedly his family, with his love of art coming in a close second. Laurie served on the Curtin University Artworks Committee and was a connoisseur of Australian art. In fact, he often said that one of his most pleasurable memories was the occasion of Kott Gunning’s first art budget in about 1989 which resulted in him being given virtual carte blanche to spend a reasonable quid on the acquisition of the paintings for the new offices we were about to move into. I think I should add that Laurie has also said that one of his most painful memories of practice was when despite his best efforts, he had been unsuccessful in representing a young couple in a dispute. The result for them had been quite devastating. They nevertheless thanked him for and appreciated his efforts, a reminder to Laurie of the merit of his strong belief in the negotiated outcome whilst at the same time, the reality that it cannot always be achieved.

Laurie’s interests outside of the law were nothing if not eclectic, an example of which was his great interest in military ships and aircraft, resulting in copies of the serialised “Jane’s Fighting Ships” magazine regularly appearing on his desk along with the legal mail. At a slightly less technical level, Laurie had a keen interest in cricket and also managed to acquire the complete set of Biggles books. A more serious interest however, that he shared in his later years with his wife Eunice, was their fine 18th century English ceramics collection. Laurie also had a great interest in philosophy, having been greatly impressed by Plato’s Republic, as a student. This seems to have led him to adopt a number of sayings and mottos. The one I remember most clearly and which has influenced me to no little extent is said to have Chinese roots, namely that “the best is the enemy of the good”. That this should be the motto of someone with such a dedication to dispute resolution by mediation is not surprising. In so many ways, Laurie was always a very modern man in his thinking. Whether or not you happen to develop an affinity for use of computer is not the acid test. Years ago Laurie was espousing ideas that now form much of our contemporary approach to the marketing of legal services. When reflecting on what he thought of the broader impact on society of the law and legal practice in an interview for Brief magazine in 2007 to celebrate his 40 years as a partner, Laurie commented that he did not really like the degree of focus on legal technicality - statutes and cases. He said “we need to stand back and say what we are doing and why. What is the law? What is the purpose of that activity?” You can find a number of TED talks these days that will direct you to the “why” as a starting point for building your promotional profile as a law firm. Laurie was managing partner of Kott Gunning from 1991 to 1994 following which he became Chairman of Partners. Laurie and Eunice have a son who is currently a lecturer at the University of the West of Scotland and a daughter who is special counsel at Kott Gunning and four granddaughters that very rapidly became the apples of Laurie’s eye. Laurie was a realist and a pragmatist, unashamedly eccentric in the nicest way, a fine lawyer, a great intellect and a thoroughly decent man who has left his mark on the practice of law in WA and on those who knew and worked with him. He is, and will continue to be missed. Vale Laurie James. Vidal Hockless 39

WA Case Notes By Greg McIntyre SC & Peter Dawson

McGlade v SWALSC (No 2) Facts There are approximately 30,000 Noongar people recognised as the traditional owners of the South West Region of Western Australia, which comprises an area of around 200,000 km². Over the past 20 years, a number of native title claims have been brought on behalf of the Noongar people, including the Single Noongar Claim, which resulted in the first Federal Court case to recognise native title in a capital city.1 However, this decision was reversed on appeal on the basis that too much allowance had been made for the impacts of colonisation on Noongar society and a continuous connection had only been proven with the broader claim area and not the Perth Metropolitan Area specifically.2 In light of this, the South West Aboriginal Land and Sea Council (SWALSC), operating on instructions from the family groups represented in registered Noongar claims and input from the broader Noongar community, decided to pursue a negotiated settlement with the Western Australian Government rather than restart the entire court process.3 This resulted in the recently concluded South West Native Title Settlement, which includes the surrender of all native title in relation to the South West Region in return for a settlement package valued at $1.3 billion AUD. The Settlement is comprised of six Indigenous Land Use Agreements (ILUAs) representing the six Noongar Agreement Groups – the Yued People, Gnaala Karla Boodja, South West Boojarah, Wagyl Kaip and Southern Noongar, Ballardong People and Whadjuk People. All six agreements were authorised at separate meetings convened by SWALSC between January and March 2015 and applications for registration were then made to the National Native 40 | BRIEF MAY 2020

Title Tribunal (NNTT) Registrar in June 2015. Persons identified as holding native title in respect of the area covered by each ILUA were invited to the meetings, as well as persons who claimed they were entitled to hold native title in respect of those areas. The authorisation meetings were held ‘on country’ at locations within the Settlement Area for each of the proposed ILUAs. Over 130 objections were made against registration of the Settlement ILUAs under s 24CI(1) of the Native Title Act 1993 (Cth) (the NTA). All six Settlement ILUAs were registered on 17 October 2018. In December 2018, thirteen applications seeking judicial review were made to the Federal Court. Ten of these were referred directly to the Full Court for hearing in this case. Issue: The applicants sought judicial review of decisions by the NNTT Registrar to register six ILUAs under section 199A of the Native Title Act 1993 (Cth) (the NTA). The question before the Court was whether the Registrar erred in finding that the six ILUAs which comprise the South West Settlement had been properly authorised in circumstances where: •

Noongar native title holders were not given an opportunity to participate in the authorisation process by means other than a meeting held ‘on country’ (such as proxy or postal voting);

•

Imprisoned Noongar people were not given an opportunity to participate in the authorisation process;

•

The vast majority of Noongar people were not involved in the authorisation process; and

•

The notices inviting attendees to each authorisation meeting were restricted to descendants of particular Noongar people in the relevant Settlement Area and in

no case were all Noongar people invited to a meeting. Decision: None of the grounds raised by the McGlade or Mackay applicants succeeded and the applications were dismissed in a joint Judgment by the Full Court. Findings: “All” The Court adopted the view of Logan J in Fesl v Delegate of Native Title Registrar4 that for an area ILUA to be authorised by “all” of the native title claim group5 by a process “agreed to and adopted by” them “imports giving to all of those whose whereabouts are known and have capacity to authorise a reasonable opportunity to participate in the adoption of a particular process and the making of decisions pursuant to that process”6 and “agreement to a process may be proved by the conduct of the parties”.7 It is sufficient that their participation is “as a group” and it is not required that each and every member of the group has had a ‘reasonable opportunity to participate.8 The Court noted that – The authorities to date and the framework of the NTA appear to contemplate that opportunities may not be afforded equally and universally to every member of the community.9 The Court also adopted the observation of White J in Bright v Northern Land Council10 that when authorisation of the ILUA is certified by the Native Title Representative Body11 that does “not require that all persons who hold native title in the area in question have been identified, but only that the representative body be of the opinion that all reasonable efforts have been made to ensure that they had been identified”. The Court noted that the Registrar was of the view that 10% of the adult population voted on the ILUAs,

which represented “a healthy enough segment of the Noongar population to give reliable indication by the Noongar people towards the Settlement”.12 The Court also noted that some of the results were close, as between those who voted for and those who voted against authorisation,13 but did not accord that any particular significance.

Location and prisoners The Court noted that Rares J found in Weribone on behalf of the Mandandanji People v State of Queensland14 that objections based on the location of a meeting would be an insufficient basis on which to invalidate a meeting and that the Registrar had noted that “SWALSC offered reasonable transport services to enable people to travel to and from the meetings”, “reasonable opportunities for accommodation” and “early notification” so as to ensure adequate time to organise a trip to the meeting,15 and convened information facilities with penal facilities and efforts by SWALSC to inform the community were “sufficient to apprise Noongar prisoners and their families of the meetings and have an opportunity to discuss their views on the settlement and make arrangements for eligible family members to attend the meetings and participate”.16 The Court noted that the Registrar found an analogy with the conclusion of Cooper J in Dingaal Tribe v State of Queensland and Ors17 that those present at the meeting were apprised of the situation (including that no women’s prisons were visited) and still decided to continue with the meeting and make decisions.18

Meeting on country The Court found that the argument of the McGlade Applicant that the Registrar erred by failing to take into account an alleged fact that the native title holders were misled that the only process by which an ILUA could be authorised was by voting in person at a meeting “on country”19 failed because it was not a fact the Registrar was required to take into account.20 The Court adopted the view of White J in Bright21 that ss 24CK(2)(c) and 203BE(5) of the NTA require the Registrar to consider whether “all reasonable efforts” have been made to identify all persons who hold or may hold native title ad whether they have authorised

the ILUA.22 The Court concluded that it was open for the Registrar to conclude that SWALSC believed that the appropriate way to achieve the objectives of the NTA was for people to meet in person on country.23

Invitation to all native title holders The McKay Applicant group contended that the native title the subject of all ILUAs was, as SWALSC relied on and Wilcox J found in Bennel v Western Australia,24 a native title held by the Noongar people in relation to the whole of the Noongar settlement area and that the invitations to the several areas of the ILUAs was not an invitation to all the Noongars who held that single title, so all native title holders did not have an opportunity to authorise the ILUAs. The Court found that the meeting notices were addressed to those “who assert native title rights and interests” and so the contention was based on a mistaken factual premise that the invitations were only to descendants of particular ancestors of the Noongar people.25 The Court also noted that the Miller objection to the Registrar to similar effect to the ground which the McKay Applicant relied on had been considered and not accepted by the Registrar.26 The Court noted that – In any event, the evidence has always been that not every Noongar has rights over the totality of the Settlement Area.27

Delegation of certification: Quall The Court noted that in Northern Land Council v Quall28 the Aboriginal Land Rights (Northern Territory) Act s 28 conferred an express power of delegation but it did not apply to the certification functions of the NLC under s 203BE of the NTA.29 The Court found that the SWALSC, as a Corporation under the Corporations (Aboriginal and Torres Strait Islanders) Act s 274-10 and its Rules may delegate its powers to “an employee” or “any other person”, but concluded that such a corporation performs its functions “through its directors and/or its authorised employees and agents… irrespective of whether the directors delegate a power to an employee or agent such as the CEO”.30 The Court noted that if it is necessary to establish the state of mind of a body corporate

it is sufficient to show that the conduct was engaged in by a director, employee or agent was acting within the scope of his or her authority.31 The Court found that the SWALSC Board had “extensive involvement in the negotiation of the ILUAs”32 and it was proper to infer that the Directors had formed the opinion that the requirements of s 203E(5) had been satisfied.

Conclusion Overall the Court in in McGlade (No 2) was prepared to interpret and apply the law and make findings in relation to the facts which took into account the complexity of the process of arriving at authorisation by a claim group of an ILUA, and applied a measure of pragmatism which some might say was not so evident in the conclusion of the Court in McGlade (No 1)33, which required a legislative solution. The full judgment is available at: https://www.austlii.edu.au/ cgi-bin/viewdoc/au/cases/cth/ FCAFC/2019/238.html Endnotes 1

2 3

4 5 6 7 8

9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33

Bennell v Western Australia (2006) 230 ALR 603, per Wilcox J at 841-848; SWALSC, John Host and Chris Owen, It’s Still in My Heart, This is My Country: The Single Noongar Claim History (UWA Press, 2009). Bodney v Bennell [2008] FCAFC 63, per Finn, Sundberg and Mansfield JJ at 79-82, 167 and 185. Glen Kelly and Stuart Bradfield, ‘Winning Native Title, or Winning Out of Native Title? The Noongar Native Title Settlement’ (2012) 8(2) Indigenous Law Bulletin 14. (2008) 173 FCR 150 at [71] and [26]. In accordance with the Native Title Act 1993 (Cth) (“NTA”), s 26CG(3)(b)(ii). McGlade v South West Land & Sea Council Aboriginal Corporation (No 2) [2019] FCAFC 238 (“McGlade (No 2)”) at [33], [34], [181]. Fesl at [71]; McGlade (No 2) at [34]. McGlade (No 2) at [181], referencing Lawson on behalf of the ‘Pooncarie’ Barkandji (Paakantji) People v Minister for Land and Water Conservation for the State of New South Wales [2002] FCA 1517 at [25]. McGlade (No 2) at [184]. [2018] FCA 752, at [132]. Pursuant to the NTA s 203BE(5). McGlade (No 2) at [61]. McGlade (No 2) at [87]. [2013] FCA 255; McGlade (No 2) at [68]. McGlade (No 2) at [69]. McGlade (No 2) at [78], [177], [178]. [2003] FCA 999; McGlade (No 2) at [80]. McGlade (No 2) at [177], [178]. McGlade (No 2) at [37]. McGlade (No 2) at [150], [151], [153]. At [128]. McGlade (No 2) at [151]. McGlade (No 2) at [161]. (2006) 153 FCR 120. McGlade (No 2) at [221], [235]-[236]. McGlade (No 2) at [231]. McGlade (No 2) at [233]. [2019] FCAFC 77. McGlade (No 2) at [249]. McGlade (No 2) at [329]-[330]. McGlade (No 2) at [333]. McGlade (No 2) at [338. McGlade v Native Title Registrar (2017) 251 FCR 172; [2017] FCAFC 10.

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

Corporations law Conduct giving rise to contraventions re personal advice, best interests obligations, misleading or deceptive conduct, statutory unconscionable conduct and requirements to act efficiently, honestly and fairly In Australian Securities and Investments Commission v AGM Markets Pty Ltd (in liquidation) (No 3) [2020] FCA 208 (26 February 2020) the Court determined the liability phase of the proceeding in which ASIC alleged contraventions of the Corporations Act 2001 (Cth) and the Australian Securities and Investments Commission Act 2001 (Cth) (ASIC Act). The complicated facts were summarised by Beach J at [1]: “The present proceeding concerns the activities of the first defendant (AGM), the third defendant (OT) and the fifth defendant (Ozifin) and the promotion of derivative instruments. From the latter part of 2017 until the middle of 2018, each of the three defendants operated separate businesses in Australia that offered over-thecounter (OTC) derivative products being contracts for difference (CFDs) including margin foreign exchange contracts (FX contracts) to retail investors in Australia. They provided retail investors an online platform on which to invest in those products and also provided financial product advice to them by telephone and email (the financial services). That advice was provided by account managers (AMs) who were engaged on behalf of the defendants, but who were based overseas. The AMs engaged on behalf of AGM were based in Israel. The AMs engaged on behalf of OT were based in Cyprus and later the Philippines. And the

42 | BRIEF MAY 2020

AMs engaged on behalf of Ozifin were based in Cyprus.” The Court’s judgment primarily focused on the alleged “investor contraventions” (at [99]-[486]) but then dealt with alleged “compliance contraventions” (at [487]-[530]). The “investor contraventions” were argued to fall within four categories: •

that the defendants, by the AMs, gave or directed personal advice to the investors within the meaning of s766B(3) of the Corporations Act despite not being licensed or otherwise entitled to do so (at [102]-[104]; decided in ASIC’s favour at [182]-[196])

•

that the AMs in making their advice statements contravened s961B of the Corporations Act by failing to take the steps necessary to ensure that the advice that they provided to the investors was in each of the investor’s best interest and contravened s961G by providing advice to the investors that it was not reasonable to conclude was appropriate to those clients (at [105]-[106]; decided in ASIC’s favour at [201]-[243])

•

that the AMs made statements to various investors that constituted various misrepresentations constituting misleading or deceptive conduct under s1041H of the Corporations Act and/or s12DA of the ASIC Act and/or the making of false or misleading representations in contravention of s12DB of the ASIC Act (at [107]-[112]; decided in ASIC’s favour at [257]-[356])

•

that the defendants engaged in unconscionable conduct towards certain investors in

contravention of s12CB of the ASIC Act (at [113]; decided in ASIC’s favour at [394]-[460]). In addressing the principles about “personal advice” (s766B of the Corporations Act), Beach J analysed and discussed aspects of the judgment of the Full Federal Court in Australian Securities and Investments Commission v Westpac Securities Administration Ltd (2019) 373 ALR 455; [2019] FCAFC 187: see at [164][179]. As an aside, the writer notes that on 24 April 2020, the High Court granted Westpac special leave to appeal from the Full Federal Court’s decision, and the High Court appeal is still to be heard. In relation to the best interests and appropriate advice obligations (ss961B and 961G of the Corporations Act), the Court rejected the defendants’ submissions that Division 2 of Part 7.7A of the Corporations Act only applies in relation to the conscious or intentional provision of personal advice to a person and the relevant statutory obligations were not intended to catch situations where persons who provided general advice may have unwittingly strayed into personal advice also (at [206]-[211]). Beach J also construed s961Q to reject the defendants’ arguments to restrict the contraventions to the AMs and not OT and the Ozifin (at [212][217]). The Court set out the principles as to unconscionable conduct applicable to ss12CB and 12CC of the ASIC Act (at [358]-[392]). This included reference to the High Court decision of Australian Securities and Investments Commission v Kobelt (2019) 368 ALR 1; [2019] HCA 18. Beach J discussed at [384]-[392] the concepts of “system of conduct” and

“pattern of behaviour” in s12CB(4)(b) which states: “This section is capable of applying to a system of conduct or pattern of behaviour, whether or not a particular individual is identified as having been disadvantaged by the conduct or behaviour”. The Court held there was unconscionable conduct by the defendants towards 21 investors (at [396]-[412]). Further, the Court held that the defendants also engaged in a system of conduct or pattern of behaviour that was in all the circumstances unconscionable (at [413]-[460]). With respect to the conduct constituting the investor contraventions, the Court held the conduct undertaken by OT and Ozifin was to be considered to be conduct undertaken by those defendants on behalf of AGM (at [463]-[479], with reference to s769B(1) of the

Corporations Act and s12GH(2) of the ASIC Act). However, Beach J did not accept ASIC’s case that AGM was knowingly involved in, or aided, abetted, counselled or procured, the investor contraventions by OT and Ozifin (at [480]-[486]). Finally, in relation to the “investor contraventions”, the Court held that AGM failed to take the steps necessary to discharge its obligations under s912A(1)(a) of the Corporations Act to do all things necessary to ensure that the financial services it provided under its AFSL were provided efficiently, honestly and fairly, and under various other provisions of ss912A(1) and 961L to do those things necessary to properly supervise its representatives, which included both Ozifin and OT and the AMs engaged by AGM, Ozifin and OT (at [487]-[530]). Beach J summarised

the relationship between the words “efficiently, honestly and fairly” found in s912A(1)(a). The Court is to hear from the parties on the precise form of the declaratory relief and other relief (penalties and non-party compensation orders).

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 Sexual offences against children – appeal against conviction by jury Pell v The Queen [2020] HCA 12 (7 April 2020) concerned offences alleged to have been committed by the applicant, Mr Pell, in St Patrick’s Cathedral, East Melbourne, in 1996 and 1997. The offences were allegedly committed after the celebration of Sunday solemn Mass and within months of Mr Pell’s installation as Archbishop of Melbourne. The victims of the alleged offending were two Cathedral choirboys “A” and “B”. Following a trial before the County Court of Victoria, Mr Pell was found guilty by a jury and convicted of one charge of sexual penetration of a child under 16 years and four charges of committing an act of indecency with or in the presence of a child under the age of 16 years. He appealed to the Court of Appeal of the Supreme Court of Victoria. That appeal, by majority, was dismissed. In the High Court, Mr Pell contended that the Court of Appeal majority had erred in two ways. First, by finding that their belief in A required Mr Pell to establish that the offending was impossible in order to raise and leave a doubt. Second, by concluding that the jury verdicts were not unreasonable when there was a reasonable doubt as to the existence of any opportunity for the offending to have occurred. The High Court unanimously accepted that the Court of Appeal majority erred. The High Court said that the unchallenged evidence of Mr Pell’s movements after the Mass, his always being accompanied within the Cathedral, the timing of the alleged assaults and the priests’ sacristy being a “hive of activity” after Mass, gave rise to compounding improbabilities which required the jury to have entertained a doubt as to Mr Pell’s guilt. 44 | BRIEF MAY 2020

The High Court said that notwithstanding that the jury found A to be a credible and reliable witness, the evidence as a whole was incapable of excluding a reasonable doubt as to Mr Pell’s guilt. In relation to all five charges, there was a significant possibility that an innocent person had been convicted. Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ jointly. Appeal from the Court of Appeal of the Supreme Court of Victoria allowed.

Evidence Admissibility – evidence obtained improperly or in contravention of Australian law Kadir v The Queen; Grech v The Queen [2020] HCA 1 (5 February 2020) were two appeals concerning the admissibility in a criminal prosecution of evidence obtained unlawfully, and of evidence obtained as a result of that unlawfully obtained evidence. The appeals focused on s138(3)(h) of the Evidence Act 1995 (NSW) which required the Court to take into account the difficulty (if any) of obtaining evidence without impropriety or contravention of an Australian law. The appellants, Mr Kadir and Ms Grech, were charged with acts of serious animal cruelty. At trial, the prosecution proposed to tender several video-recordings made unlawfully by a person acting on behalf of Animals Australia. As a result of those recordings, a search warrant for Mr Kadir’s property was executed and material supportive of the prosecution case obtained. The same person who made the video-recordings also attended Mr Kadir’s property and had conversations with him in which he allegedly made certain admissions. The trial judge rejected all three categories of evidence. The respondent appealed to the Court of

Criminal Appeal of the Supreme Court of New South Wales. That Court found that the trial judge’s assessment was flawed, and concluded that the first video-recording, the search warrant evidence and admissions were all admissible. The Court of Criminal Appeal assumed that proof that it would have been difficult to lawfully obtain the surveillance evidence was a factor which weighed in favour of admitting evidence obtained in deliberate defiance of the law. The High Court said that the basis on which the parties and the Courts below had approached s138(3)(h) was misconceived. Demonstration of the difficulty of obtaining evidence of animal cruelty lawfully did not weigh in favour of admitting evidence obtained in deliberate defiance of the law. The trial judge’s conclusion that all of the surveillance evidence should be excluded was correct. The High Court determined the admissibility of the search warrant evidence and admissions itself, and concluded that the desirability of admitting that evidence outweighed the undesirability of admitting it. Kiefel CJ, Bell, Keane, Nettle and Edelman JJ jointly. Appeal from the Court of Criminal Appeal of the Supreme Court of New South Wales allowed in part.

Customs and excise Customs tariff – tariff classification – whether Administrative Appeals Tribunal erred Comptroller-General of Customs v Pharm-A-Care Laboratories Pty Ltd [2020] HCA 2 (5 February 2020) concerned the construction and application of provisions of the Customs Tariff Act 1995 (Cth) (the Tariff Act), which imposes duties of customs on goods imported into Australia. A dispute arose between the Comptroller-General of Customs

and Pharm-A-Care Laboratories Pty Ltd about the tariff classification of goods imported into Australia from Germany. The goods were referred to as “vitamin preparations” and “garcinia preparations”. At the Administrative Appeals Tribunal AAT), Pharm-A-Care contended that both preparations should be classified so as to be free of duty. The Comptroller-General contended that the preparations were to be classified so as to be dutiable at a rate of either 5 per cent or 4 per cent. The AAT, adopting the conventional two-staged approach to tariff classification explained in Re Gissing and Collector of Customs (1977) 1 ALD 144 (at 146), determined that both preparations were classifiable such that no duty was owed. The Comptroller-General appealed to the Federal Court on numerous questions of law. The Full Court of the Federal Court dismissed the appeal. On appeal to the High Court, the Comptroller-General submitted that the AAT and the Full Court of the Federal Court had erred in their construction of the Tariff Act, specifically Note 1(a) to Chapter 30 of Sch 3. The High Court unanimously accepted that submission, but said that the AAT’s misconstruction of Note 1(a) was immaterial to the decision which it made, which was otherwise correct in law. Kiefel CJ, Bell, Gageler, Keane and Gordon JJ jointly. Appeal from the Full Court of the Federal Court of Australia dismissed.

Constitutional law Power of Commonwealth Parliament to make laws with respect to naturalisation and aliens Love v Commonwealth of Australia; Thoms v Commonwealth of Australia [2020] HCA 3 (11 February 2020) were two special cases concerning s51(xix) of the Constitution, which provides that the Commonwealth Parliament has power to make laws “for the peace, order, and good government of the Commonwealth with respect to . . . naturalisation and aliens”. The question for the High Court was whether an Aboriginal Australian, born overseas, without the statutory

status of Australian citizenship and owing foreign allegiance, is an alien in Australia within the meaning of s51(xix). The plaintiffs, Mr Love and Mr Thoms, were born overseas. They had both lived in Australia for substantial periods as holders of visas which permitted their residence but were subject to revocation. They had not sought Australian citizenship. Their visas were cancelled under s501(3A) of the Migration Act 1958 (Cth) because they were each convicted of a criminal offence and sentenced to a term of imprisonment of 12 months or more. On cancellation of their visas they became unlawful non-citizens and liable to removal from Australia. Detention of unlawful non-citizens and their removal from Australia was provided for in ss189 and 198 of the Migration Act. All parties agreed that the plaintiffs were not subject to those sections if they were outside the scope of s51(xix), pursuant to which ss189 and 198 were enacted. By majority, the High Court said that Aboriginal Australians (understood according to the test in Mabo [No 2]) are not within the reach of the aliens power in s51(xix) of the Constitution. While the majority could not agree whether Mr Love was Aboriginal on the facts, this was a difference about proof, not principle. Bell, Nettle, Gordon and Edelman JJ separately concurring. Kiefel CJ, Gageler and Keane JJ separately dissenting.

Corporations Meaning of “officer” of corporation Australian Securities and Investments Commission v King [2020] HCA 4 (11 March 2020) was concerned with the construction of the word “officer” as defined in s9 of the Corporations Act 2001 (Cth) (the Act). The first respondent, Mr King, was an executive director of MFS Ltd, a publicly listed company and the parent company of the MFS Group. He was the CEO of MFS Ltd until his resignation on 21 January 2008. Until that date, he was also, in effect, the CEO of the MFS Group. He was a director of the second respondent, MFSIM, until 27 February 2007.

On 30 November 2007, $130 million was paid by MFSIM to an entity acting as the treasury company for MFS Group. On the same day it received the $130 million, the treasury company paid $103 million to Fortress Credit Corporation (Australia) II Pty Ltd. ASIC claimed that MFSIM breached its duties under s601FC(1) of the Act, and had provided a financial benefit to a related party in contravention of the Act. ASIC contended that Mr King was liable under s601FD of the Act as an “officer” of MFSIM. Although he had ceased to be a director of MFSIM on 27 February 2007, ASIC’s case was that Mr King nonetheless remained an “officer” of MFSIM until 21 January 2008 as he fell within para (b)(ii) of the definition of “officer of a corporation” in s9 of the Act, being “a person . . . who has the capacity to affect significantly the corporation’s financial standing”. The primary judge was satisfied that Mr King was an “officer” of MFSIM because he had the capacity to affect significantly MFSIM’s financial standing. Mr King appealed. The Court of Appeal of the Supreme Court of Queensland considered that to be an officer required holding a recognised position with rights and duties attaching to it, which had not been proven. The High Court said that para (b)(ii) of the definition of “officer” in s9 of the Act is not limited to those who hold or occupy a named office, or a recognised position with rights and duties attached to it, and the Court of Appeal had therefore applied the wrong test. Kiefel CJ, Gageler and Keane JJ jointly. Nettle and Gordon JJ jointly concurring. Appeal from the Court of Appeal of the Supreme Court of Queensland allowed.

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.

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

Costs – Indemnity costs against solicitor – Client’s application had no chance of success In Benard & Eames and Anor [2020] FamCAFC 47 (5 March 2020) the Full Court (Alstergren CJ, Strickland & Kent JJ) dismissed with costs of $18,000 an appeal by a solicitor ordered to pay indemnity costs. The solicitor acted for the father in an application for a credit of third party payments made for the parties’ children under s 123 of the Child Support (Assessment) Act 1989 and an order under s 66M of the Family Law Act 1975 that he has a lawful duty to maintain his step-children (the children of his new partner). At first instance Judge Bender summarily dismissed the application for having no reasonable chance of being granted. The father’s appeal of that dismissal was dismissed. Costs were subsequently awarded to the mother and the father’s solicitor was ordered to pay them. He appealed. The Full Court said (from [35]): “ … [I]t is clear that the application was brought on the advice of the appellant … where [he] would have well known that the application had no chance of success. Indeed, that was not only a finding by her Honour, but was also a finding by the Full Court … [which] also found that the application was brought for a collateral purpose and was, thus, an abuse of process. [36] ( … ) As was said by the Full Court of the Federal Court of Australia in Levick v Deputy Commissioner of Taxation [2000] FCA 674 at [44]: ‘ … [I]t is … important to uphold the right of a court to order a 46 | BRIEF MARCH 2020

solicitor to pay costs wasted by the solicitor’s unreasonable conduct of a case. What constitutes unreasonable conduct must depend upon the circumstances of a case … In the context of instituting or maintaining a proceeding … we agree with Goldberg J that unreasonable conduct must be more than acting [for] a client who has little or no prospect of success. There must be something akin to abuse of process … using the proceeding for an ulterior purpose or without any, or any proper, consideration of the prospects of success.’”

Property – Adjustment under s 75(2) set aside where children were 16 and 13 and husband was paying child support In Chan & Chih [2020] FamCAFC 31 (14 February 2020) the Full Court (Strickland, Ryan and Tree JJ) allowed the husband’s appeal of property orders. The husband was 50 and the wife 45. The parties married in 1999, moved from South Korea to Australia in 2000 and separated in 2013 with assets totalling $4 million. Their children (16 and 13) lived with the wife. At first instance Watts J held that there should be two pools, being the wife’s Korean assets and all other assets (including the husband’s Korean property). The wife’s Korean assets comprised a 5/14th share in her late father’s commercial property, her interest being worth $2.2 million which also provided the wife with an income stream. The wife had also received financial support from her mother. Watts J made a 5 per cent adjustment under s 75(2) (d)-(g) for the wife calculated on the

value of both pools. The husband appealed, arguing that no adjustment should have been made. The Full Court agreed. The Court ([42]) said that his Honour gave insufficient reasons for that adjustment, continuing (at [43]-[44]): “It is also argued that the particular factors identified … cannot justify a 5 per cent adjustment. Certainly, the financial responsibilities for the children are a highly relevant factor, but the children were aged 16 and 13 years … and the husband was paying child support as well as providing additional funds. In relation to the ‘real nature’ of the wife’s interest in the J property … his Honour made no findings as to the restrictions on the wife’s enjoyment of her interest in that property being significant enough to justify an adjustment of 5 per cent. Further, it is significant that his Honour only referred in percentage terms to the extent of the adjustment. There is no dollar figure discussed, and no analysis by his Honour of the real effect in money terms of the adjustment. The adjustment of 5 per cent represented $203,568, and created a differential of approximately $407,000. To not take that into account flies in the face of authorities such as … Clauson [1995] FamCA 10.”

Children – Father’s interim application to vary parenting order so as to commence equal time before trial dismissed In Findlay & Reis [2020] FCCA 425 (28 February 2020) Judge Hughes

dismissed an interim application by the father to vary parenting orders which had been in force for six years, by which the children (now 13 and 11) spent four nights per fortnight with him. His application sought equal time. The mother’s application for dismissal was listed as a preliminary hearing. The father’s case was that the children had repeatedly asked to spend week about time with him ([45]), that they were sufficiently mature to have more weight given to their views and that he was in a stable new relationship ([68]). After citing Rice & Asplund [1978] FamCA 84 and SPS & PLS [2008] FamCAFC 16 her Honour said (from [65]): “Their Honours [in Marsden & Winch [2009] FamCAFC 152] set out a two-step process to be followed in which there was a requirement: (1) for a prima facie case of changed circumstances to have been established; and (2) for a consideration as to whether that case is a sufficient change of circumstances to justify embarking on a hearing. [66] ( … ) The mother said the only occasion on which … [equal time] was raised with her was … the result of the father’s influence and a desire by the children to meet his need to have an arrangement which is ‘fair’ as between the parents. The veracity of the competing evidence about the children’s views is not something I am able to determine on the strength of the untested affidavit material … (…) [79] Based on the limited untested evidence before me, I am not persuaded further litigation will likely result in a substantial change in the children’s arrangements given the high level of acrimony and resentment between the three significant adults. … [T]he potential benefit to be derived by the children from [any] change is, in my view, outweighed by the negative aspects the children will be required to

endure for a period of more than 12 months until a trial can occur.”

Property – Wife failed to make out a case for an adjustment for impaired earning capacity – Relevant factors In Metzer [2020] FCCA 119 (24 January 2020) Judge B Smith heard a property case in which the wife, who was 55 and worked in customer service, sought a 10 per cent adjustment due to her health and diminution of earning capacity due to her age. There was one child (16) who lived with the wife and assets of $2 million. Her evidence centred on the cumulative effect of her hip replacement in 2007-2008 and a workplace injury in 2018. A joint conference of the parties’ experts identified that the wife would experience some pain and restriction. Judge Smith said ([181]-[182]): “The types of restrictions and issues identified would stop her working as a customer service officer, but, quite reasonably, it was not suggested for the wife that she would not have a residual earning capacity. There was no evidence of what that residual earning capacity would probably be, having reference to the five major factors usually considered when identifying earning capacity, being: (a) physical capacity, including the reasonable restrictions required by reason of injuries; (b) psychological capacity, taking into account any necessary restrictions, of which there was no evidence in this case; (c) vocational capacity, for suitable jobs within suitable occupations, including all of her education, training and experience and transferable skills;

labour market which is to be considered, including any barriers to entry and competitiveness including by reason of work history and age; and (e) earnings, including the likely range of earnings for such available jobs by reference to reliable published labour market statistics or current labour market research information.” In denying the adjustment sought, the Court concluded (at [191]): “There is no doubt that the wife has established a likely future diminution of earning capacity from age sixty by reason of her state of health and physical capacity for her current duties. However, she has not established that the diminution in capacity will necessarily, or even is likely to, result in a diminution of earnings of any particular amount. She has a broad range of skills and experience and moderate anticipated physical restrictions, and for example if she is provided with suitable ground based duties by Employer E her loss may be nothing or nominal.” The Court ([201] made a 2 per cent adjustment for the wife’s primary care of the child until his majority but made an order ([203]) for an overall property division having particular regard to her initial contributions as to 60 per cent for the wife and 40 per cent for the husband.

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

(d) labour market, including factors such as the existence of such jobs in the real world

The Tale of the Trampled Tomatoes By John McKechnie QC

Mr Kratochvil was a Czech market gardener with land skirting the shore of Lake Gnangara. He grew melons, pumpkins and tomatoes - lots of them - on land that was fenced. On the other side of Lake Gnangara Mr Dall and his son kept a number of Holstein and other cows and a young Holstein bull. It was that bull which was the cause of the trouble to follow. On 1 January 1955 Mr Kratochvil was taking a short break away from his business. The bull decided he would celebrate the New Year by leading about 15 cows around the lake and through the fence where upon they trampled the tomatoes and mashed the melons. Mr Kratochvil's loss was very severe; and in a few hours, the results of months of hard work were ruined. Mr Babra, a neighbour of Mr Kratochvil tried to chase the cattle out but the bull made to attack him so he wisely withdrew. The next morning Mr Kratochvil and his wife arrived about 7.00 am and also tried to chase to cattle out but the bull got fractious and they had to take shelter. Mr Kratochvil was reported as saying "the bull added insult to injury by chasing me and my pal when we tried to remove the cattle". In due course young Mr Dall offered a paltry sum per head in compensation and offered to buy more plants for Mr Kratochvil at a time when it would have been useless to replant. Maybe he didn't realise the steaks were high! And so later in the year (things were quicker in those days) Justice Wolff heard Mr Kratochvil's claim for damages.

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Under the Cattle Trespass Fencing and Impounding Act 1882 there was an obligation on Mr Kratochvil to have a sufficient fence. Indeed his property was surrounded by a fence which continued into Gnangara Lake for a distance of about 100 feet, the lake forming a further barrier. What is sufficient? Well nothing is sufficient if the breed and strain of cattle are particularly mischievous. Justice Wolff didn't focus only on Mr Kratochvil's fence. He examined the Dall's obligation and was scathing; "their fences were useless, and despite the habit of this type of cattle they let them roam at large without a herdsman. They have been repeatedly warned by the local authority not to let them stray, but their philosophy seems to be that it is other people's duty to keep them out not theirs to keep them in". And so Mr Kratochvil recovered damages for all of his 3,950 tomato plants and his crops of water and rock melons and pumpkins. In 1955 Perth's population was 360,000. It is now 2.06M. Lake Gnangara is no longer a rural setting. The city has advanced around it. What became of the fractious Holstein bull is not recorded. (Adapted from Kratochvil v Dall (1956) 57 W.A.L.R. 55)

Law Council Update Privacy Protections Must be Built into COVID-19 Tracking App All comments to be attributed to Law Council of Australia President, Ms Pauline Wright. While the Law Council of Australia acknowledges the government’s desire to improve the efficiency of COVID-19 contact tracing arrangements through the roll out of a tracing app, the privacy settings of any such app will require careful scrutiny, with many in the community understandably hesitant about the collection of their personal information by the government. The Law Council believes that both our health and our privacy can be protected if we are careful and there must be a balance between legitimate efforts to protect public health and individuals’ right to privacy. If privacy protections are built-in to the app, it will provide the public with greater confidence. There must also be strict limits on what kind of data can be collected and the uses to which it can be put and there must be clear limits about how long data can be kept and when it must be deleted. It must also be made clear how the collection of data be limited to ensure that only the required or necessary data points to address COVID-19 are being collected. The Law Council commends the government’s announcement of their intention to publicly release a privacy impact assessment for the app before it is rolled out, as well as the source code to be utilised by the app. Open source enables the source code to be independently inspected and audited, and this is something we would vigorously support. We understand that the government is working with the Australian Signals Directorate and some members of the private cyber security industry on the security of storage arrangements for 50 | BRIEF MAY 2020

data transmitted by the app. However, the Law Council is concerned that a number of important details have not yet been provided, which will be material to the ability of Australians to give their informed consent to the collection and use of their personal information. While it is likely that many of these details would be addressed in a privacy impact statement, it is imperative that a comprehensive privacy impact statement is released publicly, as a matter of urgency, and that Australians are given an opportunity to comment. Only then will Australians be able to make an informed decision about whether to use the app. As with any measure taken to combat the pandemic, the functionality of the app should be proportionate to the risk posed by the pandemic and should be temporary, with clear time limits.

Call for Release of ProDemocracy Leaders Arrested in Hong Kong All comments to be attributed to Law Council of Australia President, Ms Pauline Wright. The Law Council of Australia joins with international legal associations to express our profound concern regarding the arrest of 15 prominent democracy figures in Hong Kong on Saturday, 18 April 2020 and to call for their immediate release. We consider that the arrests violate the right to peaceful protest, which is protected under the Joint Declaration and the Hong Kong Basic Law. These instruments guarantee Hong Kong residents the rights to freedom of speech, of the press and of publication; freedom of association, of assembly, of procession and of demonstration until 2047. Those arrested include Martin Lee QC, who was involved in drafting Hong Kong’s Basic Law and human rights

barrister, Dr Margaret Ng. In October 2019, these two eminent lawyers were jointly awarded the International Bar Association‘s Human Rights Award for their lifelong commitment to the defence of freedom, democracy and the rule of law. Pro-democracy entrepreneur and media tycoon Jimmy Lai was also among those arrested. Hong Kong authorities purport that these arrests relate to the suspicion of organising and taking part in ‘unauthorised assemblies’ on 18 August, 1 October and 20 October 2019 in contravention of Hong Kong’s Public Order Ordinance. The Law Council is deeply concerned that these arrests have taken place well after the 2019 protests in question, and against the backdrop of the COVID-19 pandemic. The undermining of the rule of law in Hong Kong, as well as the threats to the human rights and civil liberties of its residents, will not go unnoticed. These arrests mark the single largest detainment of pro-democracy leaders since widespread democracy protests were sparked by the introduction of the controversial extradition bill in February 2019. They also coincide with comments earlier last week by Luo Huining, Beijing’s most senior representative in Hong Kong, calling for the introduction of national security legislation in response to Hong Kong’s pro-democracy protests. The Law Council, together with the international legal community, will continue to defend the rights to peaceful protest and freedom of speech in Hong Kong. We further urge the Hong Kong government to engage in constructive dialogue with leaders of the prodemocracy movement in order to foster a climate in which their legitimate concerns over democracy and human rights can be addressed.

Professional Announcements

Classifieds

Career moves and changes in the profession Chamberlains Law Firm

Mason Ledger

Chamberlains Law Firm announces the opening of a new Perth office, adding to the current locations in Canberra, Sydney and Newcastle. Newly hired Tihana Tihana Nevjestic Nevjestic will head the Perth division situated in AMP Tower. The opening marks one of many expansions by Chamberlains in the last year including multiple acquisitions, new locations and additional practice areas.

Mason Ledger launched in Western Australia in March 2020 with a 23 person-strong team. Our team consists of partners and lawyers from national/ international and preeminent WA law firms, who have united to bring fresh and innovative thinking to the legal profession and deliver more value to clients. We are a full-service commercial law Chris Bates firm, specialising in Aviation, Banking & Finance, Corporate/ M&A, Employment & Workplace Relations, Energy & Resources, Litigation & Dispute Resolution, Project & Infrastructure, Recruitment & On Demand Lawyers, Tax & Tax Disputes, and Transport & Logistics.

The new Perth office is headed by Tihana Nevjestic, an experienced lawyer with roots in Insurance Litigation, Dispute Resolution and Family Law. Tihana has nearly 10 years of experience in her field joins Chamberlains' team and as a Senior Associate focusing on Insurance Litigation and Dispute Resolution. Stipe Vuleta, Managing Director comments “We are very excited to welcome Tihana to the team. We have had the benefit of working together in the past and this move Stipe Vuleta represents the beginning of a new journey in Perth which we are excited to support her lead on”.

Mason Ledger promotes equality, support senior women/lawyers with families, empower our people, and treat our clients with empathy, kindness and respect. We’re working hard to have a positive impact on the legal profession Rebecca Johnston and leave the legal industry better than we found it.

Missing Will Would any firm knowing the whereabouts of a will, copy of a will or other document purporting to embody the testamentary intentions of the late JAMES MORRIS TOPPLE, late of Willandra Residential aged care, Marrickville NSW (formerly of 6 Senna Close, Coogee WA) who died on 26 March 2020, please contact LS Legal of Shop 14A, 6-8 Hannah Street, Beecroft NSW 2119 Tel 1300 883 942 email leah@lslegal.com.au

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Chris Bates Executive Chairman Rebecca Johnston Managing Partner

New Members New members joining the Law Society (April 2020) Restricted Practitioner Miss Monica Bierley-Hay Allens Miss Rachel O'Meara Allens Ms Jaya Prasad Mining Access Legal Associate Membership Ms Zayna Abu-Geras The University of Western Australia - Law Faculty

Miss Colette McKenna Curtin University - School of Business Law & Tax Miss Jackie Morgan Allens Mrs Shannon Prentice Superfit Financial Services P/L Miss Jinali Samarasinghe Allens Mr Manjot Singh The University of Western Australia - Law Faculty

Ms Emma Boogaerdt Allens

Mr Jing Zhi Wong The University of Western Australia - Law Faculty

Miss Maddison Kelly Curtin University - School of Business Law & Tax

Miss Noelle Yip The University of Western Australia - Law Faculty

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