Brief April Edition

Special Feature:

Celebrating the District Court’s 50th Anniversary

Also inside ...

Family Trust Distribution Tax:

The National Cabinet:

A Sleeper Issue for Growing Families

Presidentialised Politics, Power-sharing and a Deficit in Transparency

Statements of Reasons: Issues of Legality and Best Practice

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Volume 48 | Number 1 | February 2021

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CONTENTS

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FOLLOW US lawsocietywa.asn.au LawSocietyWA

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@LawSocietyWA 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.

ARTICLES 07

District Court 50th Anniversary Event Wrap Up

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Welcome to the Profession Breakfast Event Wrap Up

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History of the District Court of Western Australia

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Technology in the Court in its 50th Year

The National Cabinet: Presidentialised Politics, Power-sharing and a Deficit in Transparency

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Interview with Chief Judge Wager

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2021 International Women’s Day

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District Court - A View from the Bar Table

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Attorney General in Hunt for Pro Bono Champions

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District Court of Western Australia Judges

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Access to Justice in a COVID-19 World

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Family Trust Distribution Tax: A Sleeper Issue for Growing Families

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Supreme Court Open Day – Heritage Perth Weekend 2021

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Vale John Gilmour QC

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Legal Practice Board of WA New Online CPD Management System

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Statements of Reasons: Issues of Legality and Best Practice

COPYRIGHT: Readers are advised that the materials that appear in Brief Journal are copyright protected. Copyright is retained by the author.

Readers wanting to cite from or reference articles in Brief Journal should reference as follows: (Month and Year) Brief Magazine (Perth: The Law Society of Western Australia) at page __). Readers wanting to reproduce a substantial part of any article in Brief Journal should obtain permission from individual authors. If an author’s name is not provided, or if readers are not able to locate an author’s contact details, readers should contact the Law Society of Western Australia (Inc.).

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

Published bi-monthly (Feb, Apr, Jun, Aug, Oct and Dec) Advertising enquiries to Manager Corporate Communications: Madeleine McErlain Tel: (08) 9324 8650 | Email: mmcerlain@lawsocietywa.asn.au Communications and Design Officer: Diane Thornley, Des McKenzie RRP $16.00 incl GST.

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

For details, contact brief@lawsocietywa.asn.au.

President: Jocelyne Boujos Senior Vice President: Rebecca Lee

REGULARS

Junior Vice President & Treasurer: Shayla Strapps Immediate Past President: Nicholas van Hattem

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President’s Report

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Quirky Cases

Ordinary Members: Rebecca Bunney, Daniel Coster, Angie Gimisis, Ante Golem, Matthew Howard SC, June Kenny, Gary Mack, Judy McLean, Craig Slater, Brooke Sojan, Paula Wilkinson

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Editor’s Opinion

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Cartoon

Junior Members: Thomas Camp, Selina Gates, Lea Hiltenkamp

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WA Case Notes

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Ethics Column

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Federal Court Judgments

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Law Council Update

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High Court Judgments

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Professional Announcements

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Family Law Case Notes

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Classifieds

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New Members

Country Member: Melita Medcalf Chief Executive Officer: David Price

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PRESIDENT'S REPORT Jocelyne Boujos President, The Law Society of Western Australia

Welcome to the April edition of Brief.

This month, we are commemorating the conclusion of the District Court’s 50th anniversary year with a special feature reflecting on the history of the Court and celebrating its achievements, including how it has dealt with the challenges of the COVID-19 pandemic, including quickly embracing new technology to adapt to our fast-changing world.

The interview with Chief Judge Julie Wager gives us special insight into the biggest challenges at the Court – and recommending the best coffee spot near it! There is also a special wrap up of the District Court 50th Anniversary Black Tie Gala Dinner, which took place on Saturday, 27 February. Hosted by the Law Society of Western Australia, the night was a wonderful celebration with over 600 members of legal profession enjoying an evening of reflection, socialising and entertainment. I would like to thank the College of Law for sponsoring the event and the Department of Justice for its support. I also give a heartfelt “Shout Out” to all the Law Society and District Court staff who helped organise this wonderful event – TWICE! On behalf of the Law Society, I would like to thank Chief Judge Julie Wager, the judiciary and all the stakeholders at the District Court who contributed not only to this memorable event, but also to this special feature in Brief.

International Women’s Day International Women’s Day was celebrated on Monday, 8 March. Building on the theme “Women in Leadership: Achieving an equal future in a COVID-19 world”, the day marked a call to action for accelerating gender parity. To celebrate, the Law Society hosted a few special events for members to celebrate IWD2021 including our special “Stand Tall in Flats” sunset drinks. You can read more about it on page 43.

Exhibition Centre. I am pleased to announce that the President of the Law Council of Australia, Dr Jacoba Brasch QC will deliver this year’s Keynote address.

The theme of this year’s address is The Call for Change – Law, Culture, Diversity, Voice. Dr Brasch QC will speak on sexual harassment, bullying and inequality, which are both topical and high on the list of issues for the legal profession and more broadly the community at the moment. In 2020, the Law Council of Australia (LCA) held a national roundtable on addressing sexual harassment and has also recently adopted a National Action Plan to reduce sexual harassment in the legal profession.

The Law Society seeks to showcase positive stories of lawyers throughout Western Australia using their skills to help others in a wide range of ways and so highlight the importance and benefits of seeking legal representation to the community.

Please visit lawsocietywa.asn.au/lawweek/#law-week-events for more details of some of the major events taking place during Law Week.

Time for Change: Addressing Sexual Harassment Webpage Coinciding with International Women’s Day, the Law Council of Australia launched its “Time for Change: Addressing Sexual Harassment” webpage – a webpage with valuable resources and measures to address sexual harassment within the legal profession.

New Term of Parliament The recent re-election of the Labor Government in WA puts the state in a unique position to progress well overdue law reform.

Up until now various Western Australian Governments have not had the opportunity due The Society is proud to reflect inclusion and to their numbers in the Parliament to introduce diversity throughout its management and committees and to be part of the drive to a more Bills amending out of date legislation, or new legislation. With a Government majority in gender equal future for the legal profession. both the Assembly and the Council, WA is Law Week 2021 now in a unique position to have issues such Every year, the Law Society promotes Law as the outdated Equal Opportunity Act and Week, an opportunity to bring together the legal Administration Act updated and progressed profession and the broader community to build through the Parliament in a timely manner, and a shared understanding of the law. This year’s we have commenced advocating for these programme promises to be a jampacked and amendments to be a priority. exciting one, with a range of events for both the Indeed, the Law Society considers that the profession and the community from Monday, 17 introduction and passage of overdue law May to Friday, 21 May – Mark your Diaries! reform initiatives will be the ultimate test of this This year’s Law Week Breakfast will be held on Wednesday, 19 May at Perth Convention and

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Government’s success during its second term of office.

2021 CPD Fundraiser As I mentioned in the February edition of Brief, The University of Western Australia, in partnership with the Law Society and supported by the WA legal profession, hosted a special 2021 CPD Fundraiser, “Access to Justice in a COVID-19 World” on 25 February, which raised over $5,000 to support the important work of the Women’s Legal Service WA. The presentation of one of the keynote speakers, Dr Jacoba Brasch QC, the President of the Law Council of Australia, is published on page 45.

Advocacy The Law Society will continue to advocate for law reforms and resources that will enhance the legal profession and benefit the community in 2021. The Law Society’s Executive and representatives from the relevant Committees recently met with the Chief Justice of Western Australia, the Hon Peter Quinlan and the Solicitor General Joshua Thompson. The Law Society has also requested to meet with the Attorney General as soon as possible.

Submissions Since the last Advocacy Column in Brief, the Law Society has made submissions on: • Statutory Farm Debt mediation • Recommendations of the Lawyer X Royal Commission • Tendency and Coincidence provisions in the Evidence Act • Percentage based fees for costs assessments in the Supreme Court • Legal Costs Committee review of NonContentious Determinations • Resourcing the SAT for Strata matters • Postage delays and statutory notice periods in the Transfer of Land Act • Family Court delay in Western Australia – letters to State and Federal AttorneyGenerals LawCare WA Finally, I would like to remind you that your membership of the Law Society provides complimentary access to LawCare WA, a valuable, free, and confidential, support programme to assist you to manage the many and varied challenges of your career, life, health and wellbeing. Visit lawsocietywa.asn.au/ lawcarewa for more information and to access these resources.

Law Society Lawyer of the Year Awards

Nominations Now Open In the lead up to Law Week, the Law Society invites members to submit entries to the Law Society Lawyer of the Year Awards.

The Law Society Lawyer of the Year Awards recognise practitioners who have made particularly noteworthy contributions to the Western Australian legal profession, over and above what might be reasonably expected through paid legal employment.

Do you know someone who could be the Law Society Lawyer of the Year?

Nominations for the Law Society Lawyer of the Year Awards are now open until 2.00pm Monday, 19 April 2021.

Law Society members are invited to nominate a worthy recipient in the categories of Lawyer of the Year (more than 5 years’ experience) and Lawyer of the Year (less than 5 years’ experience).

Winners are announced at the Law Week Awards Night and Cocktail Evening, on Friday, 21 May 2021.

For full criteria and further information, please visit www.lawsocietywa.asn.au/law-week

WA Lawyer of the Year Award Recipients Practitioner with more than five years’ experience 2020 – Lucy Dickens 2019 – Dr Carolyn Tan 2018 – Haley Allan 2017 – Simon Creek and Nicholas van Hattem 2016 – Claire Rossi and Glen McLeod 2015 – John Fiocco 2014 – Melanie Cave 2013 – Thomas Percy QC 2012 – Denis McLeod and Clare Thompson 2011 – Shayla Strapps and Amanda Goodier 2009 – Steven Penglis 2008 – Dr Johannes Schoombee Practitioner with less than five years’ experience 2020 – Heidi Gan and Hamish Glenister 2019 – Kelsi Forrest 2018 – Tegan Harrington 2017 – Krista McMeeken 2016 – Michael Geelhoed 2015 – Callum Hair 2014 – Jessica Bowman and Stephanie Puris 2013 – Gary Mack 2012 – Tammy Solonec 2011 – Breony Allen 2009 – Toni Emmanuel 2008 – Anna Rakoczy

A FOCUS ON LAW AND JUSTICE IN THE COMMUNITY

17-21 May 2021

get involved Be part of Law Week and arrange for your firm or organisation to hold a Law Week event or seminar.

Register your event at our website

by Monday, 19 April 2021

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

This is a bumper edition of Brief with a special feature celebrating the (COVID delayed) 50th anniversary of the District Court, which was actually commenced on 1 April 1970.

While the more formal (and, importantly, social) aspects of celebrating the District Court’s anniversary were deferred for a year, this is an experience shared with many. This includes those who were unfortunate enough to have their scheduled weddings bumped for a year, the only silver lining, from a legal perspective, being the community’s enhanced appreciation of the Australian Consumer Law in the fallout, involving irate brides and grooms on the one hand, and reception centres, caterers, DJs, bakers, and Bucks and Hens Night venues and associated service providers on the other.

While deferred weddings are an unfortunate outcome from COVID, many viewers of the recent series of Married at First Sight are no doubt wishing that those particular weddings had been put off until that iconic date of the 25th of Never.

The much-appreciated contributors to the District Court’s 50th anniversary celebration provide informative insights into the Court, its importance and service to the community, the personalities involved in it, as well as its handling of present day challenges and future. Brief is privileged to have both Chief Judge Wager’s article on the History of the Court and an interview, which provide valuable insights. We also have Judge Gething and his associte’s article about technology and the Court, and Richard Utting’s reflections from apractitioner’s perspective.

It is a quirky fact that the Court’s first day was April Fools’ Day 1970. On the same day, John Lennon and Yoko Ono’s April Fools’ Day joke was to announce they were undergoing mutual/dual sex change operations. Today, this would barely raise an eyebrow, would hardly be recognised as a jest, and, given the nature of celebrities nowadays, probably lead to outpouring of Twitter copycat announcements.

Lennon and Ono may well have been early trailblazers of the COVID lockdown and quarantine lifestyle, voluntarily doing much the same thing with their 1969 “Bed-ins for Peace” , though their choice of hotels for their “quarantine” were not exactly spartan, being the Hilton Hotel in Amsterdam and

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Montreal’s Fairmont Queen Elizabeth Hotel.

April Fools’ Day does remind us of the importance of humour in all aspects of life and in particular towards leaders and powerful figures. IThe history of the Court Jester is an telling example of a character whose purpose was what is now described as “speaking truth to power”, being to keep check on the egos and hubris of leaders and the elite classes Remarkably, for times in which seditious or irreverent proclamations were often rewarded with a trip to the tower, the stocks, or the executioner, jesters were afforded extraordinary indulgences and protections, and were generally beloved and respected by their rulers.

It is also a happy example of an equal opportunity profession, as there are many legendary female jesters – including Astaude du Puy, jester to Charles I of France and his Queen Henrietta Maria and La Jardinière, Jester to Catherine de Médicis (although as to the latter, history does not seem to record much to laugh about in de Médicis reign).

The character of Rigoletto, of Verdi’s great opera, is based on the jester Triboulet who served French Kings Louis XII and Francis I of France (to opera lovers, Rigoletto would be familiar as the inspiration for the modern concept of “lock up your daughters”).

Triboulet, whose jests were so cutting against the elitist class that he was not infrequently physical abused and threatened, came up with a brilliant and lawyerly-crafty response when he complained to King Francis I about a nobleman’s threat to beat him to death.

When the King told him “If he [the nobleman] does, I will hang him a quarter of an hour afterward”, Triboulet replied “Ah, Sir!— “couldn’t you contrive to hang him a quarter of an hour previously?”

Jester “Archie” Armstrong (to James VI) went too far in his jibes against influential people and was punished by being discharged from the King’s Court, having “his coat pulled over his head”, which seems an odd punishment, but one that probably foreshadows the modern self same phenomenon engaged in by celebrities emerging from a hotel after an illicit affair, or a criminal defendant leaving Court.

Perkeo, jester to Heidelberg’s Elector Palatine Charles III Philip, is a Heidelberg legend honoured by a statue standing over a huge vat in that city, in tribute to what

was an apparently incredible capacity for drinking wine, which, so the story goes, is all he drank, until, in his 80’s, he fell ill and the town doctor made him drink water, whereupon he died the next day.

Another great anniversary from this time 51 years ago is Wynns wines, in 1970, perfecting the “bag in a box” and “chateu cardboard” wine cask , that had been previously developed and marketed by Angoves and Penfolds.

The Americans had used “Bag-in-a-box” packaging as early as 1955 to transport battery acid, a fact which gives rise to jokes which almost write themselves about cask wine, and which no doubt would have been seized upon immediately by the likes of Perkeo, Archie Armstrong, Triboulet, Astaude du Puy, and La Jardinière.

This bumper edition of Brief has a variety of articles to make sure there is something for everyone. The he Law Society’s Tax Committee is a regular contributor to Brief, and we have Jonathon Leek on the Family Trust Distribution Tax. We also have Executive Director Libby Fulham’s important item on the Legal Practice Board’s online CPD management system, Justice Melissa Perry on Issues of Legality and Best Practice, and UWA lecturers Tamara Tulich, Ben Reilly and Sarah Murray’s informative articles on The National Cabinet. We also have a number of reports upon social events, so please be sure look at the social pages to find your photo!

Endnotes 1

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It is difficult to ascertain how many fell for the hoax, though it might be accepted that, given the angst at the time about Ono’s apparent potential for disrupting the band, that it was believed by irate hard core Beatles fans, and perhaps also by Paul, John and Ringo.

And is fair to say that many in the legal profession entered into lock down or quarantine looking like Paul and Linda McCartney and ended up looking like John and Yoko.

It is unclear whether things are going to get better for de Médicis’ reputation given that last week it was been announced that Samantha Morton, who played the villainous Alpha on “The Walking Dead” will star as the “nefarious” Catherine de Medici in the series “The Serpent Queen”.

The History of the Court Jester by Magda Romanska 24/3/2014 Boston Lyric Opera, blog.blo.org Chisholm, Hugh, ed. (1911). “Armstrong, Archibald”.

Encyclopædia Britannica. 2 (11th ed.). Cambridge University Press.

Perkeo Perkeo of Heidelberg: The dwarf-jester who was in charge of the largest wine barrel in the world, Jan 2, 2017 Marija Georgievska 2/1/2017 thevintagenews.com https://australianfoodtimeline.com.au/tag/1970s.

Older readers will fondly remember Orlando’s Coolabah wine cask, launched in 1973, which became famous with the advertising campaign “Where do you hide your Coolabah?”

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

shout out A big

to our members You’ve showed loyalty You’ve created joy You’ve brought energy You’ve inspired

Thank You!

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District Court 50th Anniversary Event Wrap Up

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Interview with Chief Judge Wager

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History of the District Court of Western Australia

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District Court - A View from the Bar Table

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Technology in the Court in its 50th Year

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District Court of Western Australia Judges

EVENT WRAP UP

1970 – 2020

A Sparkling Affair for the District Court 50th Anniversary Gala Dinner Saturday, 27 February 2021, was a night to remember as the Law Society of Western Australia in association with the District Court of Western Australia held the much-anticipated District Court 50th Anniversary Black Tie Gala Dinner at Crown Towers.

This rescheduled event was worth the wait, with the air simply buzzing. The atmosphere and tone of the evening was set by those eager to catch up, celebrate for the first time in a while, dress to the nines and be part of this significant milestone.

Over 600 guests gathered to reflect, socialise and enjoy the entertainment.

Dr Richard Walley OAM and son Olman Walley opened the evening with a powerful Welcome to Country. The sounds of two didgeridoos filling the room in ceremonial counterpoint brought the room together in an emotional silence.

The evening was threaded together brilliantly by Retired Judge His Honour Stephen Scott, who introduced many of the VIP speakers including Law Society President, Jocelyne Boujos and Chief Judge of the District Court, Chief Judge Julie Wager who reflected on the important milestone and achievements of the District Court.

The room was treated to a trip down memory lane with a special video created by the Department of Justice to honour the 50th anniversary of the District Court which showcased footage of the development of the Court, interviews with key figures, the rise of female judges and the importance of the Court’s connection with Indigenous stakeholders.

As was apt for the occasion, a toast to the Judges of the District Court was delivered by Sam Vandongen SC, Barrister, Francis Burt Chambers followed by a toast to the profession on behalf of the Judges of the District Court delivered by His Honour Senior Judge Andrew Stavrianou, District Court of Western Australia.

The photo wall and professional photographer were a big hit, with the red carpet busy all night as guests posed and gathered for photos with friends and colleagues. The night concluded with stunning vocals and upbeat tunes from seven-piece band Eclipse, performing old and new hits which ensured the dance floor was never empty.

Thank you to all who came and supported the event and a big thanks to those that kept their tickets from when the event was postponed in 2020.

A special thanks to our valued platinum sponsor The College of Law Australia and the support received from the Department of Justice.

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1. Aaron McDonald, Pragma Lawyers; Amanda Gregson; Hayley Cormann, Quayside Chambers; Kathleen McNally of McNally Litigation; and Craig Gregson, Gregson & Associates 2. His Honour Judge Laurie Levy, The District Court of Western Australia; Loreta Murphy; Catherine Fletcher, Information Commissioner; Mark Fletcher 3. Jocelyne Boujos, President of the Law Society of Western Australia 4. VIPs from the District Court of Western Australia 5. Alison Gaines, Chapter Board Chair, The College of Law

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6. Her Honour Judge Belinda Lonsdale, The District Court of Western Australia; John Quigley MLA, Attorney General; Her Honour Judge Julie Wager, Chief Judge of The District Court of Western Australia; Richard Bayly, Helen Sleight, His Honour Kevin Sleight 7. Catherine Stokes and John Poulsen from The The College of Law 8. His Honour Stephen Scott, Retired Judge, The District Court of Western Australia 9. Lesleigh Bower, Irdi Legal and Cham Madondo, The District Court of Western Australia 10. Hannah Flynn, the Honourable Justices Jennifer Hill and Bruno Fiannaca of the Supreme Court of Western Australia

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A snapshot of guests enjoying the evening’s entertainment

Sponsored by

Supported by 9

History of the District Court of Western Australia

By Chief Judge Julie Wager

Caption

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Until 1 April 1970 Western Australia had a two-tiered judicial system comprised of the Supreme Court and the Court of Petty Sessions and the Local Court for civil matters.

By the 1960s politicians and lawyers recognised that a third tier, an intermediate court of record, was urgently needed. At that time the Supreme Court had jurisdiction in respect of all civil matters, however Local Courts had a very limited jurisdiction. They could only determine actions for awards not exceeding the sum of $1000 and could not hear certain specified causes of action.1 Apart from its very limited jurisdiction it was noted in 19682 that at least for the South and North (being north of Geraldton) civil matters received very little attention from police magistrates and a number of police magistrates were not competent to handle the matters arising.

The work of the Local Courts was placed at the bottom of some magistrates’ lists which resulted in the civil cases listed for hearing either not being heard, or, if they were heard, being allocated insufficient time to have the court consider them.3 An additional concern was that the Supreme Court did not consider regional matters because Supreme Court civil matters had to be dealt with in Perth requiring witnesses from the regions to travel. Some matters that should have proceeded were precluded from being heard because of these logistical difficulties.4 The need to address these issues became even more apparent when the population increased and the mining boom of the 1960s started. The introduction of an intermediate court of record for the whole of Western Australia was driven by the then Minister for Industrial Development, Mr Charles Court (later Premier of Western Australia from 1974 to 1982), who introduced the District Court of Western Australia Bill 1969 on 8 October 1969. The Second Reading Speech in Council was presented by the then Minister for Justice, Mr AJ Griffith.5 The speech provides details of the history of Western Australian courts and a summary of the support from the legal profession for the introduction of a District Court. Notably, the Bill received bipartisan support, the only issue being the selection of the name of the court. In the Second Reading debate, Mr T.D Evans, on behalf of the then Opposition, stated:6 The only criticism I can level at the measure is in using the term “The District Court” when, in fact, the jurisdiction of the court will be co-extensive with the State as a whole. The name “district” suggests that possibly there will be tightly drawn, compact areas in which courts will

Above: The first entry in the Government Gazette in 1970

exercise this co-extensive jurisdiction; but, in fact, this is not so.

Mr Court’s response was that:7 Whilst one might argue about the name – and we could argue about it until kingdom come – I think the choice of the word “district” is not a bad one. It has only one disadvantage inasmuch as it does give the impression it is related to a particular part of this State, when the emphasis is really on the fact that it is a court of the State for the State.

However, when we consider the three tiers we will now have – Local Court, District Court, and Supreme Court – we will realise that before long the system will settle down nicely and everyone will understand thoroughly what is meant.

Contribution of the Law Society of Western Australia Records held by the Law Society of Western Australia (Law Society) also noted the profession’s support. As early as 1956 its members had considered the desirability of setting up an intermediate court.

A Law Society correspondence from 1967 records that the introduction of a District Court was formally raised by Mr William Pidgeon at a meeting of the Council of the Society. Council resolved to establish a sub-committee convened by Mr Peter Brinsden with members, Mr William Pidgeon, Mr HS Lodge, Mr Edward Franklyn and Mr Desmond Heenan.8 11

The sub-committee report strongly favoured the introduction of a District Court for the whole of Western Australia and recommended that the then Chief Justice of Western Australia, Sir Albert Wolff KCMG be consulted as it was understood that his Honour was investigating the introduction of an intermediate court for the north of Western Australia only.

The sub-committee also recommended that District Court judges preside in Perth to avoid the disadvantages of isolation.

The report noted that District Court judges should be based in Perth because this would increase the number of selections likely to entertain appointment.

This recommendation was ultimately adopted and saw two of the subcommittee members appointed to be part of the inaugural Court becoming his Honour Judge Pidgeon and his Honour Judge Heenan of the District Court.

Establishment and initial jurisdiction The District Court commenced on 1 April 1970 following Parliamentary proclamation of the District Court of Western Australia Act 1969 on 26 March 1970.

Section 50 of the Act set out the Court’s civil jurisdiction as being the exercise of all the powers and authorities of the Supreme Court in relation to specified actions, however the value of damages sought was to be not more than $6,000.9 Section 42 of the Act provided the District Court with all judicial powers that the Supreme Court had in respect of criminal indictable offences where the maximum term of imprisonment that could be imposed did not exceed 14 years.

The 25th Anniversary of the District Court

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The Court presently has criminal jurisdiction in respect of all indictable offences, including offences that carry a maximum penalty of life imprisonment, except for homicide.

District Court Judges The District Court commenced with four judges initially sitting in the Old Supreme Court building and moving to the Public Trust Building in 1971.

His Honour Sydney Howard Good QC was appointed Chairman of Judges (the position now known as Chief Judge). He had been Solicitor-General and Chairman of the Third Party Claims Tribunal before the Tribunal was abolished in July 1967.

William Page Pidgeon AO, Desmond Charles Heenan and Robert Edmund Jones were appointed judges of the Court. Syd Johnson was the first Registrar of the Court.

Over the past 50 years, 90 judges have served as members of the Court.

The number of sitting judges is presently 33, 15 of whom are women, with two judges appointed Deputy Presidents of the State Administrative Tribunal and one judge appointed President of the Children’s Court of Western Australia.

On 7 April 1970 Judge Pidgeon was the first judge to sentence following criminal conviction in the District Court.

Mr RF Cannon was defence counsel.

The first calendar of prisoners tried in the District Court at Perth notes in respect of indictment 1 of 1970 a conviction of breaking and entering. A sentence of 2 years’ probation with the supervising court being Dalwallinu was imposed.

Special conditions were that the offender make restitution in the amount of $7 and pay the cost of restoration of damage

caused to the extent assessed by his probation officer. On that first sentencing day his Honour imposed non-custodial penalties for 9 of the 10 offenders, all of whom were convicted of breaking, entering and stealing. The only term of immediate imprisonment imposed on that day was in respect of an offence of indecent dealing with a girl under the age of 13 years for which a 3 year term of imprisonment requiring a minimum term of 12 months to be served before the offender became eligible for parole was imposed.

His Honour Chief Judge Desmond Heenan 1982-1995 Desmond Heenan has been the longest serving Chief Judge holding the position for 13 years until his appointment to the Supreme Court in 1995. The Court experienced many changes and a significant increase in the number of criminal indictments over the 13 year period welcoming the move to the Central Law Courts, considered the ultimate in court facilities in 1982. As Chief Judge, Desmond Heenan introduced procedural management for criminal matters that included the introduction of Status Conferences in order to encourage early disposition of criminal matters and a “fast track” committal procedure for early pleas of guilty that was later supported by legislation.10 Chief Judge Heenan also introduced the practice of overlisting criminal trials that was then known as stand-by trials. A stand-by trial was substituted at short notice for a trial that did not proceed on the allocated dates.

It proved to be an unpopular initiative with the profession.

In 1992 amendments were made to the Evidence Act 1906 (WA) to better facilitate the giving of evidence by children and

other vulnerable witnesses following a report published by The Law Reform Commission of Western Australia in 1991.11 The reforms included the provision of a support person for children and special witnesses giving evidence in court and the recognition that young and vulnerable complainants were reluctant to come forward by reason of the ordeal of giving evidence in open court and because of their fear of having to face the person they claimed to be the offender.

Desmond Heenan was Chief Judge when her Honour Antoinette Kennedy AO, the first woman to be appointed as a judge of the District Court, was appointed in 1985.

Her Honour was also the first District Court judge to employ a female associate, Ms Janene Howard who is now the Manager, Associates and Ushers.

Until 1985 the only women employed in the District Court worked as secretaries.

His Honour Chief Judge Kevin Hammond 1995-2004 Kevin Hammond was the first Chief Judge appointed after the founding judges.

The criminal jurisdiction of the District Court increased in 1996 when the jurisdiction in relation to sexual offences that had previously been heard in the Supreme Court moved to the District Court.12 Chief Judge Hammond chaired the “Hammond Committee”, the review committee established in 1996 to consider all aspects of remission and parole. The committee’s report led to substantial amendments to the Sentencing Act 1995 (WA), legislation that substantively changed the practice of criminal law in Western Australia.

His Honour was a skilled and powerful communicator who encouraged early pleas and pragmatic resolution of criminal issues by offering a charismatic “carrot”, being a reduction in sentence. His Honour actively supported the introduction of therapeutic measures such as the Drug Court for District Court offenders. On his retirement Chief Judge Hammond was described by Judge Kennedy as:13 … [A]n erudite and lively member of the court. Most new judges during that time would attest to the fact that he had an uncanny knack of turning up just when you needed him. Just when a problem in a particular case became too difficult and there was nowhere to turn for assistance, his Honour would turn up with much common-sense and wise advice and was always willing to assist.

Her Honour Chief Judge Antoinette Kennedy 2004-2010 As Chief Judge, Antoinette Kennedy oversaw the development and implementation of a range of initiatives that improved the quality of justice for people appearing before the court and increased the efficiency of the court’s operations both in Perth and throughout the regions.

By 2000 it had been recognised that the court had outgrown the Central Law Courts. In 2004 the State Government awarded the tender for the District Court building to Western Liberty Group.

Construction began in 2005 and was completed in 2008. Senior Judge Paul Healy was actively involved from design through to completion, however sadly his Honour passed away just prior to completion.

Chief Judge Kennedy oversaw the

introduction of amendments to the Evidence Act 1906 that allowed the initial interview of a child by police to be visually recorded for later use in court as the evidence in chief of the child or as part thereof. The amendments expanded the automatic use of video links and other benefits to all children under 18 and extended the use of video links and pre-recording of evidence to adult complainants of serious sexual offences by mandatory special witnesses orders.14 Her Honour introduced new District Court Rules in 2005, greatly improving case management and shifting from a one size fits all to a system tailored to the needs of the court users. Her Honour also introduced the Civil Trial Preparation Project in 2007 that streamlined civil procedure and reduced the cost of litigation.

Chief Judge Kennedy oversaw the introduction of the Integrated Court Management System (ICMS) in June 2003. ICMS replaced the previous case management system to facilitate real time and recording of case events and enabled the courts to develop the eLodgement system. The first writ to be lodged electronically was by the firm Trewin Norman & Co in February 2005.

Chief Judge Kennedy implemented court management of the criminal list reducing the median time to trial from 74 weeks in 2004 to 21 weeks in 2009. Chief Judge Kennedy’s criminal management techniques are still followed in part by the Court in order to address delay.

Despite taking a hard line with practitioners her Honour maintained a balanced and merciful approach when dealing with criminal accused and offenders.

13

The District Court Building

14 | BRIEF APRIL 2021

His Honour Chief Judge Peter Martino 2010-201515 Peter Martino oversaw regional circuit improvement which reduced delays to criminal trials for circuit matters.

Chief Judge Martino introduced Sentence Mention Hearings before Registrars exercising criminal jurisdiction delegated to them following amendments to the Criminal Procedure Act 2004 in 2013 in order to streamline sentencing lists, avoid delays and avoid “judge shopping”.

His Honour established a civil case management system for old cases that substantially reduced the number of cases on hand older than 12 months.

Chief Judge Martino oversaw the implementation of ICMS for the criminal jurisdiction and oversaw the introduction of appeals to the court under part two of the Workers’ Compensation and Injury and Management Act 1981 that had formerly been determined by the Commissioner of the Dispute Resolution Directorate, Workcover WA. Chief Judge Martino introduced the Trial Listing Certificates and Trial Listing Hearings requiring counsel to sign an undertaking that the trial was ready to proceed and that all pre-trial matters had been addressed. This initiative encouraged pre-trial directions hearings, agreement of evidence and conferral between parties.

His Honour Kevin Sleight 2015-202016 Kevin Sleight was the third Chief Judge appointed who had practiced predominantly in a regional location prior to appointment.17 His Honour oversaw the introduction and implementation of eFiling and eTrials in the civil jurisdiction. Chief Judge Sleight was a national leader in the introduction of the pre-recording of evidence and the provision of support for children and vulnerable witnesses in criminal matters.

His Honour also promulgated the consolidation of the Court’s Practice Directions and Circulars to Practitioners in both its civil and criminal jurisdiction.

During a 5-year period Chief Judge Sleight managed an increase in criminal matters committed to the District Court of nearly 35%.

That increase was in part due to the Court Jurisdiction Legislation Amendment Act 2018 that came into effect on 1 January 2019 giving the District Court an increased jurisdiction in non-homicide criminal matters that attracted a maximum penalty of life imprisonment. The District Court now deals with a substantial

number of matters (such as arson and armed robbery) that were previously dealt with by the Supreme Court.18 Chief Judge Sleight encouraged judicial education and organised the first Aboriginal Cultural Awareness Program that saw judges being invited “on country” in the Kimberley. Chief Judge Sleight was the first Chief Judge to acknowledge the original custodians at formal sittings of the court.

My appointment as Chief Judge commenced on 2 May 2020. I leave it to future historians to reflect on the new normal period of 2020 and 2021 and to comment on its impact on the District Court of the future.

Endnotes 1

2

2020 Onwards The 50th Anniversary year has been an unpredictable one. The formal court sitting to mark the occasion that was to be held in April 2020 was cancelled due to COVID-19 lockdown measures.

The 50th Anniversary Gala Dinner hosted

by The Law Society of Western Australia was postponed from 4 April 2020 until 27 February 2021. The court has adopted COVID-19 measures to keep all court users safe.

Additional court room accommodation is urgently needed by both the District Court and the Supreme Court. Given the increase in the number of listed murder trials and their length and complexity the Supreme Court is presently sitting in the majority of larger court room spaces in the District Court building. This has compromised District Court trial listings.

Regardless of the difficulties ahead, the judges and the staff of the District Court will ensure that justice continues to be done.

3 4 5

6 7 8

9 10 11

12 13

14 15 16 17

18

Local Courts could not hear and determine actions in ejectment, that involved the title to land or the validity of a devise, bequest or limitation under a will or settlement. The Local Court could not deal with libel or slander, seduction or breach of promise of marriage.

‘District Court of Western Australia Twentieth Anniversary’ (1990) 17(2) Brief 8, 9.

Above n 2 Brief, 9.

Above n 2 Brief, 9.

Western Australia, Parliamentary Debates, Legislative Council, 16 October 1969, p 1580 (Mr AF Griffith, Minister for Justice).

Western Australia, Parliamentary Debates, Legislative Assembly, 14 October 1969, 1485 (Mr T.D Evans).

Above n 6, Parliamentary Debates, 14 October 1969, 1485 (Mr C Court, Minister for Industrial Development).

Peter Brinsden: Supreme Court Judge 1976-1990; William Pidgeon AO: appointed District Court Judge on 1 April 1970, Supreme Court Judge 1982-2001; Edward Franklyn: Supreme Court Judge 1984-1998; Desmond Heenan: appointed District Court Judge March 1970; Chief Judge from 1982; Supreme Court Judge 1995-2000.

The present limit is $750,000.

Criminal Procedure Act 2004 (WA) s 39(a) – (c).

Law Reform Commission of Western Australia, ‘Report on Evidence of Children and Other Vulnerable Witnesses, (1991).

Anderson JNR v Melville 2003 WASCA 12 [16-23].

Her Honour Chief Judge Antoinette Kennedy, ‘Retirement of Kevin James Hammond’, (2007) Western Australian Bar Association Review 3(4).

Criminal Law Amendment (Sexual Assault and Other Matters) Act 2004.

Supreme Court Judge from 2015-2018.

His Honour served as a Commissioner of the Supreme Court for five periods from 2011 until 2014.

William Pidgeon AO had been a partner at Slee Anderson Pidgeon in Bunbury. His Honour Kevin Hammond had been a partner at Mayberry Hammond in Northam. His Honour Kevin Sleight shared a very similar legal history having also been a partner at Mayberry Hammond in Northam prior to practising in Perth 5 years before appointment in 2005.

District Court of Western Australia Annual Review (2019).

15

Technology in the Court in its 50th year

By Michael Gething (Judge) and Stephan van Heerden (Associate)

It is perhaps fitting that an article on technology in the District Court over its 50 year history be written by authors representing the current and future generations of the Court.

According to the District Court website (which in the year 2021 is an acceptable method of ascertaining the truth… or at least one version of it) the District Court of Western Australia was established on 1 April 1970 upon enactment of the District Court of Western Australia Act 1969 (WA). Notwithstanding the date, this occasion was no practical joke.

The needs of the rapidly expanding 16 | BRIEF APRIL 2021

population of Western Australia required the establishment of an intermediate court to alleviate some of the pressure being experienced by the local courts and the Supreme Court. The history of the Court is relatively well known, and if it’s not known, that information is relatively easy to access, all thanks to technology.

At this point we think it is quite appropriate

to look at what the “technosphere” looked like in the 1970s.

According to Wikipedia (a whopping 30 years younger than the District Court), the world’s first general microprocessor, the Intel 4004, came out in November 1971. A microprocessor is the brain of any computer or computer like device.

The Intel 4004 had a clock rate of around 750kHz. The most recent iPhone 12 Pro, has a processor speed of around 2990 MHz, which is about a million times faster.

At this point we would have loved to have said something about Moore’s Law,

were developed, they were adopted by the Court (if current experience is anything to go by) as a late rather than early adopter.

In the 1990s the use of video conferencing in a court hearing became possible, permissible and commonplace.

In 1996 video systems with the capacity to conference intrastate, interstate and overseas were installed in the Central Law Courts where the District Court was then housed. Amendments to the Evidence Act 1906 (WA) in 1998 enabled evidence to be taken in criminal cases by video link and for offenders to be sentenced by video link. Since then it has become routine for people in custody to appear in court for short hearings on the video link, saving the expense and disruption of a day trip to the court for a 5 minute hearing.

Over the past 12 months when the work of the Court has been disrupted

by COVID-19 the Court has made even more extensive use of video and audio conferences. In a way the pandemic showed that remote appearances by counsel can be normalised.

Remote appearances allowed the Court to continue its work in a safe and socially distant manner. At the same time, the Court is alive to concerns that overuse of video conferencing runs the risk of dehumanising court proceedings, especially for sentencing hearings.

as it combines the word “law” and something related to computers, but we digress (you can Google it later).

Allegedly, the first email was sent in 1971, on ARPANET (a precursor to what we now know as the Internet). While the inventor of email itself is disputed, the first message sent across a network, was sent in the 1970’s. The first mobile phone was invented by Motorola in 1973.

The DynaTAC 8000x weighed almost 1.2kg and was about 30cm long. Two years later, in 1975 Kodak invented the first self-contained digital camera.

It boasted a 0.01 megapixel picture resolution, which is about the same resolution we seem to get some days on a video link to Hakea!

When the Court opened its doors in 1971, everything was done in person and on paper. Ink stamps signified the imprimatur of the Court. Typewriters and telephones were about as much technology as there was to be had. Over time, as technology such as fax machines and photocopiers

One significant area of the Court’s work which has been the beneficiary of technological advances over the past 30 years or so has been the way in which the Court deals with children and other vulnerable witnesses. Amendments to the Evidence Act in 1992 allowed the Court to pre-record the evidence of a vulnerable witness at a pre-trial hearing.

The witness could be in a remote room.

The recording could then be used as the evidence of the witness at the trial.

This has been a routine procedure in the District Court since then. The Court is constantly fine tuning the arrangements with remote rooms, including to ensure that the background colour provides an optimal image of people with differing skin tones (ironically, the best colour is ‘justice blue’). The courtroom audio visual system in its current form allows for an exhibit such as a document or video displayed in the courtroom to be displayed in the remote room, with the jury seeing a split screen with the witness on one half and the exhibit on the other. Even when a vulnerable witness gives evidence at the trial, it is routine for the witness to give evidence from a remote room, and for that evidence to recorded so that if the trial is aborted or a new trial ordered on appeal, the witness does not have to give

evidence a second time.

Another significant amendment to the Evidence Act was in 2004 to allow a recorded interview of a child complainant in a sexual assault case to stand as his or her evidence in chief at the trial of the action. Again, the use of this procedure is routine.

A stark illustration was a circuit trial we did in Kununurra late last year.

No prosecution witness gave evidence in person in the Court. Their evidence was received by a combination of recorded police interviews, pre-recordings, audio links and video links. It was only when the accused elected to give evidence did we have the witness in person. The idea of running a trial without physical witnesses would have seemed preposterous in the early days of the District Court, but nowadays it’s seemingly business as usual.

Whilst the District Court still operates circuits, things have changed considerably since the days of Supreme Court judges travelling up the coast on a steamship.

Nowadays it is commonplace to dial into Halls Creek, Carnarvon or any number of regional courts to hear a simple procedural matter, saving time and money, but more importantly administering justice as efficiently and fairly as possible. It will no doubt be possible in the near future for a judge to sit in a circuit court as a holograph.

Therein lies a tension. What is possible from a technological perspective is not always an optimal way to administer justice. We can readily imagine residents of a large regional centre feeling like second class citizens when a District Court judge chooses not to make the effort to be physically present in their community to administer justice.

Where is their access to justice?

As a Metallica album once said “….

And Justice for All!” Justice must be accessible to all.

That includes both facilitating removing barriers to access and providing additional means for all participants to meaningfully engage in the court process. For example, the new District Court Building when commissioned in 2008 had hearing loops built in, allowing people with hearing devices to connect directly to the courtroom audio system.

The hearing loops were upgraded in 2019 when the technology in the DCB was refreshed. So an accused or juror with a hearing impairment can be seamlessly accommodated by the Court. Another more recent innovation is that there is now technology available for interpreters to sit in a dedicated room outside the 17

courtroom, watch a witness on a video monitor and then provide the accused (or multiple accused) with interpretation through headphones. This is a massive improvement from having an interpreter in the dock, sitting next to the accused, and whispering what is said, in effect, into the accused’s ear.

One of the most significant innovations over the last 15 years is the move to replace paper files with electronic files.

The first writ to be electronically lodged was lodged in February 2005. Over the next 13 years additional documents were added to the list of documents able to be eLodged. By the beginning of 2018 all District Court civil documents could be eLodged. In March 2018 the Court mandated the use of the eLodgment system for all lawyers, though in distinction to the Supreme Court, not litigants in person. The decision was taken that requiring litigants in person to use the eLodgment system may impose a barrier to at least some potential District Court litigants accessing justice through the Court. All new files were eFiles, meaning that paper records were no longer kept by the Court. Judges and Registrars were given the ability to sign orders electronically, which are then automatically sent to the parties.

The parties can access the eFile for their matter online. Registered users can access some basic information about all cases filed in the Court. In the future, we expect that members of the public will be able to access online the documents and information which they are entitled to access over the counter. It is possible for the District Court to run an eTrial in which all documents are tendered and managed electronically, but this is yet to occur.

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The next significant project for the Court is to move to eLodgment and eFiles in the criminal jurisdiction, which is scheduled to occur in the next few years.

Another significant project in the near future will be to manage the capture and digitization of evidence in criminal cases from the point in time it is captured or generated by police though to when it is disclosed to when it is presented to a jury in a trial, perhaps years later. We imagine a world in which electronic versions of witness statements have exhibits hyperlinked in. At the same time, we imagine a world in which primary data is only input once, and is moved seamlessly through the investigation, disclosure and trial processes.

So where to from here? Anyone who has worked for the District Court for any amount of time knows that judges, their staff and registry staff engage with technology of some sort on a daily basis.

An ongoing challenge as we rely more and more on technology is to ensure that it works first time, every time. One of the most catastrophic failures we can have as a Court is to lose the recording of a child’s evidence, so multiple layers of backup are in place to prevent this occurring. More generally, innovations like technology staff having the ability to remotely access and fix equipment in a court room assist in minimising the downtime when technology fails. Considerable work is undertaken each year to ensure that all court rooms in which the District Court sits are routinely upgraded as new and more robust technology becomes available. One such project is to enhance the court room audio visual system so that the court can use MS Teams to conduct hearings which are recorded in

the Court’s monitoring and transcription system.

As to the next 50 years, perhaps the only thing we can say with certainty is that changes in technology will inevitably impact the work of the District Court in ways we can’t yet imagine. We can image a trial in the not too distant future in which a vulnerable complaint will appear in the witness box as a three dimensional holograph. The evidence in chief of other witnesses will be interviews recorded by police officers on their body cameras at the scene of the crime. All the evidence will be presented digitally, and viewed by jurors on individual tablets provided by the Court. The movements of the complainant and the accused on the evening in question will be the subject of a movie which links together high quality CCTV footage from street and venue security cameras, almost like an AFL disciplinary hearing. The jury will be able to undertake a digital walk though of the crime scene, exploring it from the jury box using virtual reality headsets.

Once deliberating, the jury will be able to replay a video of the evidence, closing addresses and the judge’s direction in the jury room. As much of the trial as possible will be live streamed so that members of the public can watch it at home.

And the judge on sentencing will be assisted by an artificial intelligence program which summarises comparable cases.

Whilst we don’t foresee a District Court Twitter or TikTok account anytime soon, we are living in an evolving time in the Court’s history of adopting technology.

We are sure this adoption will continue into the future for the benefit of the people of this great State of Western Australia wherever they are situated.

Interview with Chief Judge Wager Chief Judge Julie Wager

Prior to your Honour’s judicial appointment what was your experience of the District Court?

Wager CJ: As a young lawyer in the criminal law section of Legal Aid of Western Australia, I had the opportunity to appear regularly in the District Court.

These appearances became almost daily once I commenced practice as a sole practitioner and prior to my appointment as a Magistrate in 2000. Although some of my very early appearances before one or two of the judges were character building, I was fortunate enough to appear as counsel before fantastic Judges of this Court who I admired so much. I was often counsel before his Honour Paul Healy who presided over impeccably run and very fair jury trials. He had a keen interest in the law and ensured that points that arose were dealt with appropriately and efficiently. Paul Healy was a judge who took his judicial oath very seriously indeed. I am so glad the District Court Library is named the Paul Healy Library in his honour.

I also appeared regularly before their Honours Kevin Hammond and Antoinette Kennedy both before and after each was appointed Chief Judge. Kevin Hammond’s presence when presiding in court was magnificent. His sentencing remarks were eloquent but pragmatic and his message clearly hit the mark with the offender. He never belittled the offender nor chastised them about their personal

circumstances or backgrounds of misfortune. Instead, his Honour used the opportunity to make it very clear that the offender’s conduct was bad and that was the reason why the offender was being punished. His Honour then went on to encourage the offender. Kevin Hammond was an early fan of therapeutic justice.

This was hardly surprising because his Honour’s sentencing remarks were naturally solution-focussed. Even where his Honour imposed a sentence that was on the high side the offender would receive it well because the offender would be given hope and dignity.

Her Honour Antoinette Kennedy sentenced with empathy, mercy and common sense.

This was a significant achievement given her many years on the bench. Even at the end of an overwhelmingly long sentencing list her Honour ensured that each offender was treated fairly and with respect.

It is fair to say I learnt a huge amount from all of the District Court judges before whom I appeared.

From a Jurisprudential perspective what have been some interesting cases heard in the Court?

Wager CJ: The Court’s jurisdiction in both criminal and civil is so broad and the issues to be determined so diverse that any list of jurisprudentially interesting cases would be frighteningly long.

The District Court has been the starting

point for many judgments that are so well-known it is easy to forget that they were originally first instance cases. One example is Longman v The Queen (1989) 168 CLR 79. This was a matter that was heard at first instance in the District Court.

The High Court decision dealing with the warning judges are required to give when there has been a significant delay between the alleged sexual offending and the offender being brought before the court is now trite law. Dinsdale v The Queen (2000) 202 CLR 321 argued by retired Judge Gillian Braddock dealing with suspended terms of imprisonment is another case referred to on a daily basis.

Washer v The State of Western Australia (2007) 234 CLR 492 and Mule v The Queen (2005) 221 ALR 85 are also simply referred to by name with little thought about their origins. Judge Levy was instructing counsel in the latter case.

In civil, Rosenburg and Percival (2001) 205 CLR 434 and Czatyrko v Edith Cowan University (2005) 214 ALR 349 and Kuhl v Zurich Financial Services Australia Ltd [2011] HCA 11 are a few of the important decisions that were heard at first instance in the District Court. Recently Lawrence v Province Leader of Oceania Province of the Congregation of the Christian Brothers [2020] WADC 27, a decision of his Honour Judge Herron, clarified a number of issues raised in historical sexual abuse causes of action following amendments to the Limitation Act 2005 (WA). The Court has dealt with so many important civil 19

matters including, but certainly not limited to, medical negligence cases, common law matters relating to traumatic brain injuries and complex contractual issues.

How has the business of the Court changed over the years with jurisdictional changes?

Wager CJ: The business of the Court has changed significantly over the past 50 years particularly in relation to criminal matters.

Last year alone 1651 indictments were lodged, 2071 sentences were imposed and 373 trials proceeded.

The jurisdiction in relation to sexual offences increased in 2005 when serious sexual offences came to be dealt with in the District Court rather than the Supreme Court.

More recently, the increased use of methyl-amphetamine in our community has led to a significant increase in serious drug trafficking and violent offences.

Since January 2019, the Court has exercised increased jurisdiction in non-homicide criminal matters with a maximum penalty of life imprisonment. Criminal matters have continued to increase in complexity too. Up until 2010 it was the norm to have jury trials that were listed for one or two days. A short trial is now a three to five day trial and an increasing number of trials are listed for multiple weeks reflecting greater forensic challenges and evidence such as DNA, telephone tapping and covert activities. There has also been an increase in the number of indictments against multiple coaccused.

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In the civil jurisdiction, personal injuries claims, workers’ compensation matters and our appeal jurisdiction have all been the subject of substantial amendment and significant growth. The amendments to the Limitation Act 2005 (WA) that came into effect on 1 July 2018 removed time limitations for claims for damages for child sexual abuse causes of action and changed the civil landscape. In the first year after the amendments 134 writs were filed by claimants in respect of child sexual abuse causes of action.

In addition, in that first year 111 applications in respect of claimants who had not previously commenced proceedings but were now seeking orders setting aside settlement agreements and seeking leave to commence proceedings were filed.

Many of the claimants are now elderly people who are claiming in respect of alleged sexual abuse that occurred when they were very young children in institutions. The Registrars of this Court, particularly Registrar Kubacz, have sensitively mediated a number of these matters. The Court needs to deal with some of the claims urgently given the age and infirmity of the claimants. Fortunately the court has systems in place to deal with hearings on an expedited basis.

In your opinion what are the biggest achievements of the Court?

Wager CJ: Despite the huge demands on the Court, the District Court has continued to be the Court for the whole of Western Australia. It still sits in 12 different locations from Kununurra in the north to Esperance in the south. This is a huge achievement in 2021.

The Court has also adopted measures to protect children and vulnerable witnesses by pre-recording evidence, using CCTV facilities during trials and engaging witness support officers.

The Court is far more efficient than it once was. The introduction of video link, audio link and electronically filed documents has assisted. The Court has continued to refine its case management measures including mediation and pre-trial conferences in the civil jurisdiction, and case management by way of Sentence Mention Hearings, Trial Listing Hearings and Direction Hearings for criminal matters.

The collegiate nature of the District Court and the dedication of the judges and staff to ensure that justice is done is something that continues to amaze me. After 50 years this is one of the Court’s greatest achievements.

Could your Honour recommend the best coffee spot near the Court?

Wager CJ: I don’t drink coffee so that is not an easy question, but Les and Chris who run the coffee shop in the foyer of the District Court Building are always cheerful and accommodating so how could you go past them.

Although the District Court is not a café, judges try to get together for coffee in Senior Judge Stavrianou’s chambers before commencing court. It is a very useful forum in which to discuss the day’s work ahead and the different approaches that we each take when exercising judicial discretion. It is also an opportunity to keep in touch with each other.

What does your Honour consider to be the biggest challenge at the Court?

Wager CJ: The disproportionate number of Aboriginal people coming before our criminal courts is a huge challenge.

It is really important for Aboriginal people all over the State to truly have access to justice through the provision of interpreters when appropriate, the training of judges and court staff to ensure that court behaviour is culturally appropriate and by encouraging the employment of Aboriginal staff. In 2019 the judges were invited on country to spend time in an Aboriginal community in the Kimberley.

The experience was invaluable and gave judges a greater insight into the many complex issues facing Aboriginal people in our courts. The court also focuses on ensuring culturally and linguistically diverse people and people with a disability are able to access justice.

Another big challenge is the significant backlog of trials in both the civil and criminal jurisdictions. Even with our practice of overlisting trials, trial dates are now being listed in 2022. Overlisting means that as soon as one matter ends the next listed matter commences.

This relentless pace places pressure on judges and staff but it needs to be maintained because our limited judicial resources do not match demand.

There is a real danger that injustices could result if judges have neither the time nor the breathing space to carefully consider issues. Although the government has attempted to assist the court by facilitating the appointment of two additional judges last year more resources are urgently needed.

The workload and the traumatic nature of the material judges consider has led

to our strong focus on judicial wellness.

Our judges are entitled to professional services and are encouraged to put wellness first. Judges need to be balanced and healthy in order to discharge their duties to the best of their abilities.

Lawyers who are not involved in criminal proceedings may not know that although the District Court sits in the District Court Building the Supreme Court also conducts its criminal trials in our courtrooms. Following the vacation of trials due to COVID-19 measures (that coincided with an increase in the number of accused indicted for murder) the Supreme Court lists are now bigger and longer than ever before. The Supreme Court is currently sitting in up to 5 of the 6 large courtrooms. This means that there are not always enough court rooms for District Court jury trials to be listed in the District Court Building. Courtroom accommodation is the biggest challenge for the future.

How did the business of the court change in response to the COVID-19 lockdown?

Wager CJ: My first day back in the District Court after two years as President of the Children’s Court was the day the lockdown commenced. Jury trials were immediately cancelled and personal appearances were virtually stopped. The Court used audio link and video link for appearances. We substantially increased sentencing in regional areas by proceeding by video link. In some circumstances judges conducted criminal trials as a judge sitting alone. Jury trials recommenced in late July 2020. We were able to get back on track by changing the way we approached the attendance of jurors and modifying the courtroom and court sitting times. Practical measures have included the insertion of perspex screens between spaced jurors’ seats, staggered court starting times to ensure that jurors are socially distanced from each other and had space to be seated to eat lunch in the jury assembly area.

We commenced remote empanelling of juries from courts situated on the same floor as the jury assembly area. Remote empanelment reduced juror movement and kept numbers in the courtroom to a minimum. We are starting to wind back some of our lockdown strategies now, however, we will continue to use measures that save time and court attendance without impacting on the quality of justice.

21

District Court A View from the Bar Table

firm guidance, not just on the law but also on the facts. O’Dea DCJ, when a jury returned a not guilty verdict, threw his pen down and exclaimed; “You didn’t listen to a word I said”.

By Richard Utting

A friend of mine tackled a District Court Judge at a social gathering as to why he didn’t uphold his ‘no case’ submission.

“Ah, I suppose I should have” was the reply.

“But I thought I could walk him through the jury”.

When I was admitted in 1975, the District Court was a mere 5 years of age. Prior to its creation, criminal and civil law was the province of the Court of Petty Sessions/ Local Court and the Supreme Court respectively.

The District Court became the muchneeded middle tier. It was based in the Supreme Court for criminal cases and had four Judges. It now has its own building and thirty judges.

Had it not been for the generous judicial pensions, it may have been difficult to recruit Judges to the new court. However, the pension made it very attractive for lawyers, approaching sixty years of age.

Do ten years as a Judge and get the pension.

As a result, the early Judges were white men in their late 50’s. Associates and ushers were the same. Associates were typically ex-service officers, ushers, ex-NCOs. The court was very WASPish.

One of the main problems in criminal law trials then was the admissibility of police interrogations.

Verbal police interviews were not recorded, apart for notes in pencil, made

22 | BRIEF APRIL 2021

He couldn’t.

on unnumbered sheets of foolscap and unsigned by the accused. Where the content of these verbal interviews was significant, a voir dire was held as to whether the admissions were voluntary or, whether they should otherwise be excluded.

I had a trial before Ackland DCJ. Chris Zelestis was prosecuting. It was in Court 7 Supreme Court thus it was before 1982 when the court moved into the Central Law Courts. His Honour was very even handed. He treated everyone, counsel, accused and jury with contempt. The trial lasted three days. My client, a vegetarian, was remanded in custody during trial.

Good luck trying to persuade a conservative white judge that your indigenous client was beaten up by the police or that the coppers were lying to get a drug dealer convicted. However, the same evidence could be placed before the jury.

It was unusual for an accused to be granted bail once a trial started, the integrity of the trial process was thought to be too important. They would be carted off to the East Perth lockup for the evening.

‘Verbals’ became so notorious within the community, that juries would not convict based on one. The High Court eventually ruled that when a prosecution case relied on a ‘verbal’ the jury had to be given a warning on the dangers of convicting on such evidence. This led to the videoing of confessional material which, in turn, halved the length of trials.

The lockup could be quite lively.

Gambling was then illegal except for a few establishments “tolerated” by the police. Every now and then the police would decide to raid a “tolerated” casino to prove it was not, in fact, tolerated.

Appropriate warning was given before the police descended – that meant that the regulars would clear off.

Some Judges thought that juries needed

Thus, the raid would net a few dozen

Japanese seamen, who were then carted off to the East Perth lockup, no doubt marvelling at this display of Western Australian hospitality. The casino boss would eventually arrive to bail them out.

The East Perth experience was thought, by defence counsel, not to be the ideal preparation, if the accused intended to give evidence.

Frank Ackland set the benchmark against which all bad Judges are measured.

Trials before him were a nightmare.

The only saving grace, as defence counsel, was that juries hated him too, The Victorian County Court was described at that time as “dispensing justice tempered with sadism”. English judges: “…the main reason for the current stagnation in criminal justice policy and practice is the conservatism of British judges who block any attempts at change. Judges are described as an upper class, elderly, and out of touch group…” (Berinson’s report) Those comments applied to our District Court in its first decade.

On 29 May 1991 the Attorney-General and Minister for Corrective Services, Joe Berinson (ALP), made a statement to the Legislative Counsel: “when the present government came into office in 1983, it was expressly committed to a reduction in the rate of imprisonment. The rate of imprisonment at that time had reached 110 per 100,000 of the WA population.”

How amazing that a government could be elected with such a policy. Even more amazing, it was supported by the Liberal party opposition. It may have been the last time that there was a sensible debate on crime and punishment in WA’s parliament.

The Minister announced that he would lead a study group to Europe. Its members were pretty hard-nosed, Joe Berinson Attorney General and Minister for Corrective Services, David Malcolm CJ, Kevin Parker QC Solicitor, General Con Zempilas CSM, Ian Hill, Executive Director and Dr Robert Fitzgerald Director Strategic Services of the Department of Corrective Services.

The group visited Austria, Finland, Germany and England. The report (Paper 930) was tabled in the Legislative Council on December 3, 1991. It’s still there John Quigley have a read!

In 1983, WA’s imprisonment rate was 110 per 100,000. In June 2019, it was 345 per 100,000 (ABS). As a State, we have, and historically have had, the highest rate of

imprisonment of any State in Australia.

Imprisonment in WA has now reached the stage where it is increasing the crime rate.

At $100,000 per inmate per year, it’s a very expensive failure.

And we are all to blame for this. Lawyers who don’t fight hard enough, the DPP which invariably submits that immediate imprisonment is the only option, judges who, to be safe, sentence at the higher end of the scale, the Court of Appeal which lacks courage but most to blame are our elected politicians. Too often elections turn into an obscene bidding war as to which side can imprison the most people.

Berinson was a reforming AttorneyGeneral. The last execution for murder in WA was in 1964 yet the death sentence remained. It was invariably commuted to life imprisonment however it was feared, for political purposes, it might be used again. It was abolished in 1984.

Mandatory imprisonment for subsequent driving under suspension offences was repealed.

Traditionally when the Chief Justice of the Supreme Court retired, the next senior judge would get the guernsey. Berinson saw the need to modernise the court.

David Malcolm QC was the leader of the independent bar and a hugely successful barrister. He was persuaded to become Chief Justice.

The conservative composition of the court changed rapidly with judicial appointments made by the Labor government. Clarke, Kennedy, Healy, H. Jackson and Keall DCJs were appointed between April 1984 and May 1986.

Younger more progressive judges.

Toni Kennedy was the first female judge.

It is perhaps unfair to other judges to mark this as the turning point for a more civilised court but she did make a dramatic difference.

I was before her on circuit in Esperance.

She bounced into court with a big smile and said a “good morning everyone” to the lawyers, staff and jury panel.

The accused was addressed by his/ her title rather than just their surname.

Overnight bail during trials became common. A trial with her presiding was fair, courteous and pleasant.

Len Roberts-Smith once told me, before he became a Supreme Court judge, “every case you do, kills you a little”.

That’s one reason why depression is a major problem amongst lawyers.

At least a trial in front of a civilised judge mitigates the damage.

The quality of District Court judges these days is a lot better than when I was first admitted. However judicial bullies still exist. We need a judicial commission, along the lines of the one in NSW. That commission can receive complaints from the public, lawyers and judges into the behaviour of other judges and magistrates.

In 1983, WA’s imprisonment rate was 110 per 100,000.

In June 2019, it was 345 per 100,000 (ABS).

As a State, we have, and historically have had, the highest rate of imprisonment of any State in Australia.

It can investigate these complaints and, if necessary, suggest to the Attorney General that a motion should be moved in both houses of parliament to dismiss the judicial officer.

Berinson was our last reforming AttorneyGeneral. Alas, his government sank under the weight of WA Inc and progress was halted.

Churchill, when he was Home Secretary, in a 1910 speech to the House of Commons, said, in part; “The mood and temper of the public in regard to the treatment of crime and criminals, is one of the most unfailing tests of the civilisation of any country.”

At the time of writing, the results of the March State election are unknown.

It appears likely that the ALP government will be returned with an increased majority. That should guarantee it another eight years in power.

Now is the time. This government has the chance to make a real difference to the way we deal with crime and punishment.

Appoint a high-powered committee, like Berinson did, to investigate the effectiveness of prison and associated topics. Give it the powers of a Royal Commission. Make sure it is properly funded. Get the support of other political parties and the public. The government will have time to undertake this exercise with thoroughness and tranquillity.

Carpe diem!

23

Judges OF THE DISTRICT COURT OF WESTERN AUSTRALIA 1970 – 2021 Period in Office Good, Sydney Howard

1970-1977

Chairman and Chief Judge

Period in Office Keall, Robert Dennis

1986-1994

White, Kerry

1987-1988

Viol, Robert John

1988-2004

Jones, Robert Edmund

1970-1973

Barlow, John Gerard

1988-1998

Pidgeon, William Page AO

1970-1977

Williams, Peter John

1988-2007

Chief Judge

1977-1982

Charters, David Dennison

1988-2001

Blaxell, Peter Donald

1991-2005

Heenan, Desmond Charles

1970-1982

Jackson, Lawrence Alton QC

1992-2004

Chief Judge

1982-1995

Muller, Michael Gerald

1993-2007

Yeats, Mary Ann, AM

1993-2011

Kay, Arthur Edward

1972-1978 1973-1986

O’Sullivan, Michael Denis Finbar QC

1994-2009

Ackland, Frank O’Connor, Victor James Alexander

1974-1987

French, Valerie Jean

1994-2009

Macknay, Roger Anthony QC

1994-2009

Gunning, Ivan Russell

1977-1998

Fenbury, Allan David

1995-2016

O’Dea, Brian Thomas

1978-1996

Wisbey, Henry John

1996-2013

Whelan, Francis Joseph

1981-1993

Deane, Shauna Marie QC

1998-2014

Nisbet, Peter Maurice QC

1998-2008

Hammond, Kevin James

1982-1995

Groves, William George

1999-2011

Chief Judge

1995-2004

O’Brien, Catherine Joan

1999-2010

Sadleir, George Travers

1982-1999

Martino, Peter Dominic

2000-2010

Samuel, John Anton

1983-1986

Chief Judge

2010-2015

Clarke, Nigel Henry Sherwood

1984-1998 Jenkins, Carolyn Frances

2001-2004

Kennedy, Antoinette AO

1985-2004

Reynolds, Denis John

2004-2018

Chief Judge

2004-2010

Eaton, Philip Richard

2004-2018

Crisford, Jane SC

2004-2006

Healy, Paul James

1985-2008

Mazza, Robert Anthony

2004-2010

Jackson, Henry Hall

1986-2006

Chaney, John Anthony SC

2004-2009

24 | BRIEF APRIL 2021

Period in Office

Period in Office Eckert, Judith Elsa

2005-2011

Braddock, Audrey Gillian SC

Sleight, Kevin Frederick

2005-2015

Curthoys, Jeremy Clive

Chief Judge

2015-2020

Cock, Robert Enos QC

Parry, David Ronald

McCann, Philip Pierre Wager, Julie Anne Chief Judge

2005-2018 2005-2020 2020-still in office

2011-2021 2011-still in office 2011-2014 2012-2018

Herron, Mark Edward

2013-still in office

Stewart, Vicki Laura

2014-still in office

Levy, Laurence Mark SC

2014-still in office

Petrusa, Linda, SC

2015-still in office

Gething, Michael John

2016-still in office

Troy, Alan Laurence

2016-still in office

Stavrianou, Andrew Steven

2006-still in office

Lonsdale, Belinda Jane

2017-still in office

Sweeney, Troy Denise SC

2006-still in office

Vernon, Fiona

2018-still in office

Quail, Hylton Colin

2018-still in office

Glancy, Kathleen Helen

2018-still in office

Gillan, Wendy

2018-still in office

Prior, John Brian

2018-still in office

Burrows, Amanda Jayne SC

2018-still in office

Lemonis, Stephen John

2019-still in office

Goetze, Bruce James Hamilton Auxiliary Judge Keen, Richard Ellis Bowden, Michael John Schoombee, Anette Margret Stevenson, Christopher Peter

2006-2020 2020-still in office 2007-2016 2007-still in office 2007-2017 2007-still in office

Scott, Stephen George

2008-2019

Davis, Felicity Clare Earls

2009-2020

O’Neal, Patrick Brian

2009-2020

Stone, Simon Elliot

2009-2020

Pritchard, Janine

2009-2010

Staude, John Gerard Birmingham, Ronald Edward QC Derrick, Anthony Samuel SC Sharp, Timothy

2010-still in office 2010-2021

MacLean, David William

2020-still in office

Wallace, Charlotte Jayne

2020-still in office

Barone, Mara Rita SC

2020-still in office

Flynn, Martin Michael

2020-still in office

Massey, Gary William

2020-still in office

Shepherd, Karen Ann

2020-still in office

Russell, Sarah

2020-still in office

Freitag, Simon Dieter SC Barbagallo, Carmel SC

2020-2021 2021-still in office

2010-2018 2010-still in office

25

Women appointed TO THE DISTRICT COURT OF WESTERN AUSTRALIA 1970 – 2021 Period in Office Kennedy, Antoinette AO Chief Judge

1985-2004 2004-2010

Yeats, Mary Ann, AM

1993-2011

French, Valerie Jean Deane, Shauna Marie QC O’Brien, Catherine Joan Jenkins, Carolyn Frances Crisford, Jane SC Eckert, Judith Elsa

1994-2009 1998-2014 1999-2010 2001-2004 2004-2016 2005-2011

Wager, Julie Anne Chief Judge

2005-2020 2020-still in office

Sweeney, Troy Denise SC Davis, Felicity Clare Earls

2006-still in office 2009-2020

Period in Office Pritchard, Janine Braddock, Audrey Gillian SC Stewart, Vicki Laura Petrusa, Linda, SC Lonsdale, Belinda Jane Vernon, Fiona Glancy, Kathleen Helen Gillan, Wendy Burrows, Amanda Jayne SC Wallace, Charlotte Jayne Barone, Mara Rita SC Shepherd, Karen Ann Russell, Sarah Barbagallo, Carmel SC

2009-2010 2011-2021 2014-still in office 2015-still in office 2017-still in office 2018-still in office 2018-still in office 2018-still in office 2018-still in office 2020-still in office 2020-still in office 2020-still in office 2020-still in office 2021-still in office

Chief Judges OF THE DISTRICT COURT OF WESTERN AUSTRALIA 1970 – 2021 Period in Office

Period in Office

Good, Sydney Howard

1970-1977

Kennedy, Antoinette AO

2004-2010

William Page Pidgeon

1977-1982

Martino, Peter Dominic

2010-2015

Heenan, Desmond Charles

1982-1995

Sleight, Kevin Frederick

2015-2020

Hammond, Kevin James

1995-2004

Wager, Julie Anne

26 | BRIEF APRIL 2021

2020-still in office

1970

His Honour Sydney Howard Good Chairman of Judges 1970 – 1977

His Honour William Page Pidgeon Judge 1970 – 1977 Chairman of Judges 1977 – 1982

His Honour Desmond Charles Heenan Judge 1970 – 1995 Chairman of Judges 1982 – 1995

His Honour Kevin James Hammond Judge 19 82 – 19 9 5 Chief Judge 1995 – 2004

Her Honour Antoinette Kennedy Judge 1985 – 2004 Chief Judge 2004 – 2010

His Honour Peter Dominic Martino Judge 2000 – 2010 Chief Judge 2010 – 2015

His Honour Kevin Frederick Sleight Judge 2005 – 2015 Chief Judge 2015 – 2020

Her Honour Julie Anne Wager

2021

Judge 2005 – 2020 Chief Judge 2020 –

27

Family Trust Distribution Tax: A sleeper issue for growing families

By Jonathon Leek Legal Practitioner Director, Deloitte Legal Family Trust Elections (“FTEs”) and Family Trust Distribution Tax (“FTDT”) have been a feature of the income tax landscape since 1998. Tax lawyers and accountants should be familiar with them.

But they need to be on guard against that familiarity breeding complacency.

As children grow up, spread their wings, establish their own business and investment vehicles, and engage their own advisers, the essential “family group” may not be what the family thinks it is. In that case, there is a risk of inadvertently triggering the imposition of FTDT at the rate of 47%.

•

the carry forward and utilisation of trust losses is easier for a family trust because only a modified “income injection test” needs to be passed;

•

the carry forward and utilisation of company losses is easier because the “continuity of ownership test” applicable to the loss company does not require tracing of ownership through a family trust;

•

a family trust is able to satisfy the “holding period rule” thereby enabling beneficiaries to more easily benefit from franking credits attached to dividends received by the trustee;

Reasons for making a family trust election

•

the small business restructure roll-over relief from capital gains tax includes special rules for family trusts; and

•

family trusts are excluded from the trustee beneficiary reporting rules.

Making an FTE entitles the trust to access certain tax concessions. In summary, the tax concessions a family trust may access are as follows: 28 | BRIEF APRIL 2021

There are, therefore, good reasons for making an FTE. The trade-off, however, is that FTDT is imposed when distributions are made outside the family group.

Making a family trust election A “family trust” is a trust in respect of which an FTE is in force.1 The trustee of a trust may make an FTE if it passes the “family control test” for the income year to be specified in the election.2 As the name suggests, the family control test requires the trust to be controlled by members of a particular family in one of a number of specified ways.3 An FTE must be made in writing and in the approved form.4 Importantly, it must specify an individual as the individual whose family group is to be taken into account in relation to the FTE.5 Subject to certain limited exceptions, once made,

an FTE generally cannot be varied or revoked.6 More often than not, the individual specified in an FTE is the notional head of the family at the time of making the FTE. Broadly, the family group then comprises: •

the parents, grandparents, brothers and sisters of the specified individual or the specified individual’s spouse;

•

the nephews, nieces and children of the specified individual or the specified individual’s spouse;

•

the lineal descendants of the nephews, nieces and children of the specified individual or the specified individual’s spouse;

•

the spouses of the specified individual and of anyone mentioned above;

•

the trust in respect of which the FTE was made;

•

other trusts with an FTE in force that specifies the same individual; and

•

companies, partnerships and trusts in respect of which Interposed Entity Elections (“IEEs”) have been made.7

Family trust distribution tax Broadly, FTDT is payable by the trustee of a trust where: •

the trustee has made an FTE or a company, the partners in a partnership or the trustee of a trust have made an IEE to be included in the family group in relation to a family trust; and

•

the trust, company or partnership makes a distribution of, or confers a present entitlement to, income or capital to a person other than the individual specified in the FTE or a member of that individual’s family group.8

Where FTDT is payable by the trustee of a family trust, it is payable on the amount or value of the income or capital distributed or to which the entitlement relates at the rate of the highest marginal rate of tax applying to an individual plus the Medicare Levy (currently 47%).9

The trouble with growing families As previously noted, the individual specified in an FTE is more often than not the notional head of the family at the time the FTE is made. At that time, the children of the specified individual may be small children or young adults. But those children will grow up, spread their wings and make their own mark. They may become involved in the family business and eventually take control of it. Or they may start businesses of their own.

For example, if the individual specified in an FTE was middle aged with children when FTDT was introduced in 1998, those children may now be aged in their 30s or 40s.

The FTDT risk creeps in when those grown-up children start to establish their own business and investment vehicles.

And the risk is exacerbated where the children engage lawyers and accountants different from those engaged by the notional head of the family.

This is because, when a new trust is established for the benefit of a grown-up child and that child’s family, the natural tendency will be to make the child the individual specified in the FTE for the new trust. However, in that case, the new trust may not be a member of the family group in relation to the original trust.

This is because the FTEs for the original trust and the new trust specify different individuals.10 In addition, multiple IEEs cannot be made in respect of more than one trust, unless the individual specified in each FTE is the same.11

A real-life example To illustrate, assume that Trust 1 carries on a successful business established decades ago. The trustee of Trust 1 has made an FTE that specifies Individual A (the founder of the business) as the individual whose family group is to be taken into account in relation to the FTE. Individual A has a daughter, Individual B. Individual B is a member of Individual A’s family group. As such, Individual B may receive distributions of income or capital from Trust 1 without triggering FTDT. Individual B grows up and starts her own business. Individual B’s tax adviser (who is different from Individual A’s tax adviser) advises Individual B to establish a new trust (Trust 2) and have the trustee make an FTE specifying Individual B as the individual whose family group is to be taken into account in relation to the FTE. Assume also that Trust 2 cannot make an IEE to be included in the family group of Individual A. In the income year ended 30 June 2019, Trust 1 has net income from the continuing success of the business carried on by Trust 1. In contrast, Trust 2 makes a tax loss due to the start-up nature of the business carried on by Trust 2. The tax advisers agree that Trust 1 should distribute income to Trust 2 with the intention of utilising the tax loss made by Trust 2 against the income made by Trust 1.

The result is that the distribution from Trust 1 to Trust 2 is liable to FTDT at the rate of 47% and payable by the trustee of Trust 1. This is because Trust 2 is not a member of Individual A’s family group. This result will come as quite a surprise to Individual A and Individual B (not to mention their tax advisers) who were expecting no tax payable on the distribution in the belief that the distribution would be offset by the tax loss made by Trust 2.

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29

Disclaimer by beneficiary If faced with a liability to FTDT, consideration may be given to whether or not the beneficiary can disclaim the distribution to them. Whether or not a disclaimer will be effective will depend on all of the facts and circumstances.

Carter v Commissioner of Taxation12 is a recent decision of the Full Federal Court on the retrospective effectiveness of disclaimers. In that case, disclaimers were held to have retrospective effect, although it remains important that the distribution be disclaimed before it is accepted by the beneficiary. The Commissioner has sought special leave to appeal to the High Court from the decision of the Full Federal Court in Carter.

In circumstances where disclaiming the distribution may be an option, it will be necessary to consider the consequences before doing so. The relevant income may be assessed in the hands of another beneficiary or the trustee depending on the terms of the trustee resolution and the trust deed.13

Other consequences of FTDT Assuming the distribution cannot be disclaimed, other consequences will flow from a liability to FTDT. The first consequence flowing from the above example is that the tax loss that would otherwise have been utilised should remain available to Trust 2 to offset future income. But the most important consequence is that future distributions

by Trust 2 and downstream companies, partnerships and trusts should be non-

30 | BRIEF APRIL 2021

assessable, non-exempt (“NANE”) income to the extent those future distributions are attributable to the distribution from Trust 1.14 Accordingly, those future distributions should not be liable to tax again in the hands of the recipient. In that sense, the imposition of FTDT may prove to be a timing difference rather than a permanent difference. But the timing difference may be significant and come at an inopportune time for the family.

The provision that deems future distributions to be NANE income is, however, imperfectly drafted and largely untested. For example, while it is clear that a distribution from Trust 2 to a corporate beneficiary will be NANE income, it is not as clear as it should be that a subsequent distribution from the corporate beneficiary to an individual shareholder (e.g. a dividend) will be NANE income in the hands of the shareholder.

But that is the policy intention and should be the outcome.

The FTEs and IEEs that have been made should also be periodically reviewed.

As noted above, once made, an FTE generally cannot be varied or revoked.

An FTE may be varied to specify a new and different individual but generally only in respect of an income year that occurs during the period starting at the beginning of the income year specified in the original FTE and finishing at the end of the fourth income year after the income year specified in the original FTE. 15 Accordingly, there is a limited window to vary but it may only be done once.16 However, the new individual must be a member of the original individual’s family group, and it must be the case that no income or capital has previously been distributed outside the new individual’s family group.17 In summary, it pays to communicate critical tax decisions within growing families and take care with FTDT.

Avoiding unintended tax consequences

Endnotes

Growing families and their tax advisers need to coordinate their tax affairs.

Communication is essential. In the absence of communication, unintended tax consequences may be encountered.

Considerable thought needs to be given to the making of FTEs and IEEs. The knee jerk response of naming the family member that is instructing the tax adviser as the specified individual in an FTE needs to be resisted. The making of IEEs also needs to be strategic given the restrictions imposed on the making of multiple IEEs.

2 3 4 5 6 7 8 9

1

10 11 12 13 14 15 16 17

Section 272-75 in Schedule 2F to the Income Tax Assessment Act 1936 (Cth) (“ITAA 1936”).

Subsection 272-80(1).

Section 272-87.

Subsection 272-80(2).

Subsection 272-80(3).

Subsection 272-80(5).

Sections 272-90 and 272-95.

Division 271 in Schedule 2F to the ITAA 1936.

Family Trust Distribution Tax (Primary Liability) Act 1998 (Cth).

Subsection 272-90(3A).

Subsection 272-85(7).

[2020] FCAFC 150.

Sections 97, 98, 99 or 99A of the ITAA 1936.

Section 271-105.

Subsection 272-80(6B).

Subsection 272-80(5B).

Subsection 272-80(5A).

New Online CPD Management System

by Libby Fulham Executive Director, Legal Practice Board of Western Australia

Continuing Professional Development (CPD) is a long standing and integral component of the maintenance and improvement of standards expected of the legal profession.

CPD’s place in WA largely mirrors that of other Australian jurisdictions, which is to earn a minimum of 10 points across 4 separate competency areas in a 12 month period. Except for practitioners in WA the delivery of CPD activities must be accredited. Making sure CPD activities actually achieve the aims of the CPD regime, and to have in place a tool to identify risks and measure effectiveness, the Board has created an online CPD management system (CPDMS).

The rationale, value of, and approach to CPD has become a talking point between various bodies who regulate or scrutinise the conduct of lawyers.

In Victoria the ‘Getting the Point?’ report1 considers improvements to reflect more contemporary approaches to education and professional development in that jurisdiction, and the final report from the Royal Commission into the Management of Police Informants recommends the Victorian regulator issues guidance notes on embedding ethics into the four compulsory fields of CPD2.

However, it is only in WA, through the accreditation and audit of CPD providers, that we have the ability to identify how our CPD activities are being delivered, who they are being delivered to, and to what extent the content recognises and educates in the relevant fields to maintain standards.

It is this information that provides WA practitioners the opportunity to embrace targeted education for the modern legal profession. For example, being able to identify gaps in training on sexual harassment in the workplace, and to promote effective learning in that area.

How we collate, communicate and promote that information, beyond the proverbial hunch, was deep in my thoughts some two years ago and is at the forefront of the Board’s thinking.

It was at this time, and during a conversation on the prospects of an App

that could be utilised for CPD purposes, I reflected on the time and resources spent by the Board on manual systems to audit and monitor compliance with CPD. That time was spent largely ensuring points were obtained, and not spent on identifying trends I referred to earlier, or promoting the delivery of quality and relevant CPD in a systematic way to maintain professional competence.

I considered a system that would capture and report on the information we already have or can obtain through the audit avenues. Having the support of the Board’s Professional Development Committee the result of that contemplation is the development and implementation of the CPDMS. Already in place through the Board’s website portal the CPDMS requires all approved CPD providers to upload records of approved CPD activities undertaken by members of the WA legal profession, and allows providers and practitioners to apply for the approval of a single CPD activity.

The CPDMS will also be extended to include applications for exemptions from CPD, for example parenting leave.

of the profession’s compliance with CPD requirements and offering early support to those members of the profession who are in danger of not satisfying the annual requirement.

•

Assess the types of CPD activities being delivered to practitioners, track relevant trends, including activities offered and activities attended, and identify the future needs of the profession.

•

Provide feedback to CPD providers on areas of emerging risk and to consider the value of including more effective CPD across all areas of practice.

The CPDMS will also assist the Board in being an effective, efficient and innovative regulator by: •

Promoting competence, selfassessment and compliance with professional obligations.

•

Simplifying access to information and providing tools for best practice.

•

Enhancing our collaborative relationship with stakeholders to promote our mandate, core functions, and strategic direction.

•

Being responsive to change.

•

Using data to support a well informed community and profession.

•

Carefully managing our resources to maintain capacity.

•

Pursuing process improvements, to better achieve our purpose.

The purpose of the CPDMS is to: •

•

•

Allow the Board and the profession to consider the delivery of CPD, ensure there is engagement by the profession, and there is value in the delivery and content of activities focussed on genuine learning and development.

Enable a practitioner to easily identify CPD activities undertaken in a particular CPD period and compliance with CPD requirements.

CPD providers will be relieved of the requirement to issue certificates to practitioners upon completion of CPD. Take a targeted approach to auditing CPD activities and compliance with a view to understanding the nature

The Board has been working with the CPD providers to make sure the CPDMS becomes a valuable resource that will provide greater insight into the educational needs of the profession and influence attitudes to include learning and growth.

Further information on the CPDMS can be found on the Board’s website.

Endnotes 1

2

Victorian Legal Services Board + Commission ‘Getting the Point?’ report on the findings of an independent review into Continuing Professional Development (CPD) in Victoria, conducted by Chris Humphreys, November 2020.

Recommendation 84 of the Final Report of the Royal Commission into the Management of Police Informants, 30 November 2020.

31

Statements of Reasons: Issues of Legality and Best Practice

By The Hon Justice Melissa Perry1

give legitimacy to a decision by showing that the decision was not made arbitrarily and that issues raised by interested parties are being adequately considered”; and

Introduction This article will address issues bearing on the provision of reasons, interpreters, and unrepresented litigants. Within these broad perimeters, I will focus on three questions.

•

Why give reasons?

•

What requirements govern the preparation of a statement of reasons according to law?

•

For whom are reasons written?

Each of these questions is intertwined with the issue of according administrative justice to unrepresented litigants in our culturally and linguistically diverse society which I consider in particular in addressing the last of these issues.

In discussing these subjects, I readily acknowledge that I continue to be on a learning curve. In common with administrative decision-makers, judges also face the challenge of producing written reasons for our decisions and the scrutiny of those reasons on appeal.

Why provide a statement of reasons?

From the perspective of a member of the Administrative Appeals Tribunal (‘Tribunal’), the most obvious reason to provide a statement of reasons is to comply with the statutory obligation to do so either on request within a specified time such as under s 13 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) (‘ADJR Act’)2 or at the time of the decision or notification of the decision such as under s 430 of the Migration Act 1958 (Cth).

Statutory obligations to provide reasons are intended to serve a number of important purposes. As Professors Robyn Creyke and John McMillan have explained: •

they “encourage better and more rational decision-making”;

•

they “enhance government transparency and accountability and

32 | BRIEF APRIL 2021

•

in compliance with procedural fairness, they enable those affected by the decisions to decide whether the decision has been lawfully made and why they have not suceeded.3

Personally I also find that being required to justify my decision in a written statement of reasons is a helpful discipline which assists in ensuring that all of the relevant issues are addressed and the correct principles are applied – at least, so I hope! Decisionmaking by the Tribunal is no different in this respect. As the Administrative Review Council has observed: … the process of writing reasons materially assists decision-makers during the process – facilitating the detailed consideration of all necessary issues. The process of providing for reasons disciplines a decision-maker’s thinking.4 From a broader perspective, providing statements of reasons which are clear and deal fairly with the issues has the capacity to enhance public confidence in the Tribunal as an institution entrusted with very considerable powers across a broad range of subject matter to affect the lives of members of the community and the administration of laws by government.

Finally, reasons provide evidence on an application for judicial review in the courts by which the legality of the Tribunal’s decision may be assessed as opposed, for example, to the Tribunal member giving evidence orally or by affidavit of her or his reasons. A statement of reasons therefore facilitates the function of the courts on judicial review in ensuring that a lawful decision has been made.5 This last point highlights the importance of preparing contemporaneous reasons or, where reasons may be required only upon request, of ensuring at least that an accurate record is kept of the reasons

for the decision in order to assist in preparing a statement of reasons later if necessary. Not only is this best practice6, but there have been cases where a court on judicial review has rejected the tender of reasons prepared after the decision in question because it was not satisfied on the evidence that they were in fact the reasons of the decision-maker when the decision was actually made. For example, in one such case, the reasons were prepared over a month later and referred to evidence which came to light only after the decision was made.7

What requirements govern the preparation of a statement of reasons according to law?

The ADJR Act, the Administrative Appeals Tribunal Act 1975 (Cth) (‘AAT Act’) and generally the other legislation applied by the Tribunal specify the matters which a statement of reasons must contain, namely: •

the decision;

•

the findings on material facts;

•

the evidence or other material on which those findings are based; and

•

the reasons for the decision.8

A failure to comply with these requirements may establish jurisdictional error such as a failure to consider a relevant consideration to the exercise of the power or found an inference that the Tribunal failed to ask itself the right question under the statute.9 Taking these elements in turn, first the decision in question will always be what the Tribunal member considers to be the correct and preferable decision at the time that she or he makes the decision.10 The reasons should also identify the source of the Tribunal’s authority to make the decision and the legislation being applied.11 It is generally wise to quote the relevant statutory provisions, rather than summarising or paraphrasing them which may inadvertently introduce a change in their meaning.12

Secondly, findings on material facts are findings critical to the decision in the sense that the existence or non-existence of each one can affect the outcome of the decision. This means in other words, the findings on those questions of facts which the member regarded subjectively as material to the decision, as opposed to those which a Court on judicial review might objectively regard as material.13 It follows that where the Tribunal does not set out a finding on some question of fact or address a piece of evidence, this will generally indicate that it made no finding on that matter. In turn, this may indicate that the Tribunal did not consider the matter to be “material”. This may or may not be demonstrative of jurisdictional error, depending upon the statutory context and all of the relevant circumstances.14

upon a number of factors. These might include that she or he had only taken steps to convert after applying for the protection visa and had a poor understanding of the basic tenets of Christianity. Where findings of fact are inferred, the statement of reasons must set out the primary facts from which the inference was drawn and explain why the inference is properly drawn from those facts. Speculation, guesswork, suspicions and unfounded assumptions are not sufficient.

Findings on material facts can of course be established directly by the evidence.

For example, a Tribunal member might find that an applicant holds Iranian citizenship based upon her Iranian passport. In other cases, the finding may be inferred, filling in gaps in direct evidence. For example, a Tribunal member might decide that a visa applicant had taken steps to convert to Christianity and attended church regularly in order to obtain a protection visa based

Fourthly, the reasons are the thread which weaves the evidence and the findings together into a logical fabric and ties them to the statutory criteria, explaining all of the steps in the reasoning process which led to the decision without leaving any holes or gaps.16 In short, it is not sufficient to state conclusions without explaining why those conclusions were reached.

Thirdly, as this example also illustrates, the reasons should identify the evidence which was considered relevant and credible in making each material finding of fact and explain why particular evidence was preferred over other evidence where there is a conflict.15

Finally, reasons are ultimately evidence

of what is intended to be, and must at law be, a real consideration of the issues.

Thus extensive plagiarising or parroting of submissions without attribution may show a failure by the decision-maker to engage in an active intellectual process and thereby establish a constructive failure to exercise jurisdiction.17 Equally, the use of formulaic or template sentences – for example, “I have considered all relevant matters including all of the evidence and material provided by or on behalf of the visa applicant” – are largely meaningless unless they are backed up by proper reasoning and analysis.

Writing reasons therefore requires that the decision-maker have the courage and integrity to explain why she or he considers that the decision reached is the correct and preferable decision, addressing the consequences of that decision for the individual in relevant respects. As to this, Chief Justice Allsop (with whom the remainder of the Full Court agreed) explained in Hands v Minister for Immigration in the context of visa cancellation decisions on character grounds: … where decisions might have devastating consequences visited

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upon people, the obligation of real consideration of the circumstances of the people affected must be approached confronting what is being done to people. This obligation and the expression of its performance is not a place for decisional checklists or formulaic expression. Mechanical formulaic expression and pre-digested shorthand expressions may hide a lack of the necessary reflection upon the whole consideration of the human consequences involved. Genuine consideration of the human consequences demands honest confrontation of what is being done to people.18 In that case, the Minister had found that Mr Hands (whose visa had been canceled) may experience short-term hardship if returned to New Zealand but over time would be capable of settling in New Zealand without undue difficulty.

Chief Justice Allsop held that there was no rational or probative evidence to support the Minister’s conclusion that this emotional and psychological hardship would be short-term despite this being “a central and crucial consideration”.19 Rather, his Honour held that: All the material, if considered, would lead any reasonable person to a conclusion that this decision, unrevoked, will cause lifelong grief and psychological hardship to a number of people, including Mr Hands …

The separation of Mr Hands from his community, his wider family, his partner, his children, grandchildren and step grandchildren is a life changing decision, potentially life destroying.20 It is true that the consequences in the decision in Hands affected the most fundamental of human rights – rights to movement, family, home, livelihood, and even potentially to life. But that is not to say that his Honour’s observations are relevant only in such cases. There remains in every case the obligation upon the Tribunal member to give substantive consideration to the submissions and the evidence, confronting and dealing with them in a real sense.21

Who are you writing the reasons for and how might that impact on the way in which they are drafted?

Reasons will provide evidence of the decision-maker’s subjective thought processes in reaching her or his decision which may or may not show error on 34 | BRIEF APRIL 2021

judicial review. However, while they must address the relevant statutory criteria and apply the law, this does not mean that the drafting of reasons should be approached with an eye to making them “judicial review proof” as, among other difficulties which this may cause, they are liable to become unreadable. Examples I have seen where this approach has been adopted include reasons replete with repetition and exceptionally long sentences littered with caveats and subcaveats. Rather, in line with the purposes of providing written reasons, reasons should be drafted in the first instance so as to explain to the losing party why she or he lost.

As a result, it is helpful to think about ways in which the statement of reasons might be made “user-friendly”, bearing in mind that those affected by the decision may, for example, be unrepresented and have limited education and/or limited or no fluency in English. It is also a helpful technique to set out an introduction which effectively “parachutes” the reader into the decision, summarising in plain English the issues for decision and how they have been resolved. A concern that a summary of this kind might oversimplify the reasons and be misconstrued as erroneous could be met by an explanation which introduced the summary stating something along the lines of “at the risk of oversimplification, the primary reasons for my decision may be summarised briefly as follows….”

It is also helpful to use headings and subheadings and, at least where the reasons are lengthy, to consider including an index. This can be automatically generated if the various heading levels are designated correctly. Also using the outline function to the side of the document in programmes such as MS Word can provide a useful way to navigate around the document in the course of drafting the reasons, keeping the structure of the reasons at the forefront of your mind. These techniques are particularly helpful in decisions which are lengthy and complex.

Setting out the main headings at the start of writing your reasons by reference to each of the issues and statutory criteria which need to be addressed can also help overcome writer’s block. They can provide the first step which, as the ancient Chinese philosopher Lao Tzu wisely said, begins the thousand mile journey. Another technique which personally I have found helpful is to pose headings as questions.

This helps in endeavouring to approach the case with an open mind directed to the matters in issue.

Finally, I would commend to you Justice Griffiths’ advice as to the importance of starting to draft your reasons while the matter is still fresh in your memory. As his Honour explained: Getting started on producing a statement of reasons can often be a challenge. All the more so if the case is a difficult one and may have occupied more than a day’s hearing time. It is so easy to put those types of cases in the drawer and focus attention on less challenging matters. Generally, this is most unwise. Complex cases normally get harder the longer you leave them. At the very least, try to get in writing your primary thoughts on how a complex case should be resolved. Don’t fall in to the temptation of believing that there will be a divine inspiration if you park the case and come back to it a few months later.22

Taking into account cultural and linguistic considerations Finally, the hearing and pre-hearing processes must be conducted in a way that takes into account such factors as a lack of legal representation, lack of facility in English, cultural sensitivities, trauma, and mental health issues. Equally, those factors may play a role in the reasoning process itself and in the manner in which reasons are expressed.

In this regard, there are many helpful publications and resources available online, including on the website for the Judicial Council on Cultural Diversity (‘JCCD’).23 These include the JCCD Recommended National Standards for Working with Interpreters in Courts and Tribunals, short videos and factsheets on such topics as assessing whether an interpreter is necessary and using plain English, and cultural diversity e-Learning tools produced by the Judicial Commission of NSW. Clearly there is much that could be said about these issues. I will stress just one at this juncture – that is, to sound a note of particular caution in placing weight upon perceived inconsistencies where evidence is being interpreted, especially where an interpreter is not available at the NAATI accredited Professional Interpreter level (formerly level 3).

In this regard, while there are 112 NAATIaccredited languages and varying accreditation standards within those languages, more than 300 languages are spoken in Australia, including indigenous languages. Indeed, even to speak of 300

languages is to mask the complexity of the issue given the prevalence of dialects within those broad language descriptions.24 For native English speakers, it can be difficult to appreciate the extent of differences between dialects in other languages. As Kristen Zornada and I have elsewhere explained, when we think of differences between Australian English and American or British English, we usually point to a few different words but at the end of the day we know that a “jumper” is the same as a “sweater”, that “fries” are “chips”, and that “chips” are “crisps”.25 However, as we also explained: In many other languages the differences occur not just in particular words or accents, but in grammatical structure and tense usage. For example, in Italian, while the remote past tense is used in written standard Italian to refer to events that occurred historically, speakers of some dialects native to the south of Italy employ it even when referring to events that may have just happened. Conversely, use of the remote past tense in speech died out in many northern dialects hundreds of years ago.

Such differences occur in other languages and other dialects, and it is not difficult to imagine the impact a misinterpretation of tense may have, for example, on applicants describing when relevant events took place. 26 A practical example of how the quality of interpreting can impact on the assessment of a person’s credibility can be found in the decision in SZOBN v Minister for Immigration and Citizenship.27 In that case, the Court overturned a decision by a Tribunal on the ground that it was unfair where a pattern emerged from intermittent errors in interpreting.

The applicant in that case was a citizen of

India, and claimed to fear persecution in her predominantly Hindu region because she was Christian. When questioned by the then Refugee Review Tribunal through a Malayalam interpreter as to what she knew about Christianity, her answers were that “Jesus died for poor people”, “I was able to see my father at church” and that she goes to church to get “Quarbana”, a Malayalam word that was not interpreted.

Given her apparent lack of knowledge of basic Christian beliefs, the Tribunal found that she was not credible and disbelieved her claims. However, evidence was led on judicial review of an interpretation by another Malayalam interpreter of the recording of the Tribunal hearing. It was his evidence that she had in fact said that Jesus died for “our sins”, I was able to see “the Pope”, and I go to church to get “the Eucharist”. These answers demonstrated knowledge of the meaning of Jesus’ life, the Pope and the Eucharist, being important aspects of Christian belief. As a result, the Court found that the Tribunal may well have formed a different view or pursued more details by further questioning if her answers had been accurately interpreted.28

Concluding thoughts By way of conclusion, I would commend a general approach to the exercise of decision-makers’ powers not simply by complying with the strict letter of the statute, but guided by fairness and respect for the dignity of those whose rights are affected by the decision. Such concepts underpin the fundamental values of the common law which are increasingly regarded as foundational to the making of lawful decisions, as the jurisprudence reflected in decisions such as Hands illustrates.

Endnotes 1 Justice of the Federal Court of Australia; LLB (Hons, Adel), LLM, PhD (Cantab), FAAL. I wish to express my sincere thanks

to my former associate, Anne Mignone, for her invaluable assistance with research and careful proofing. This article was originally presented at a seminar for the Administrative Appeals Tribunal on 10 June 2020.

2 Section 13 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) creates a right to obtain written reasons for a decision where a person has a right to apply for judicial review in the Federal Court or the Federal Circuit Court under s 5 of that Act. Reasons then have to be provided within 28 days of the request.

3 Robin Creyke and John McMillan, Control of Government Action: Text, Cases and Commentary (LexisNexis, 5th ed, 2019) at 1200–2. See also Justice John Griffiths, ‘What are Adequate Reasons?’ (Speech, Council of Australasian Tribunals’ Decision-Writing Program, Sydney, 12 and 13 March 2020) [6]–[8]; Administrative Review Council, Federal Judicial Review in Australia (Report No 50, 1 September 2012) 152–5 (‘ARC Report No 50’); Administrative Review Council, Decision Making: Reasons (Best-Practice Guide 4) (Report, August 2007) 1 (‘ARC Best-Practice Guide 4’).

4 ARC Report No 50 (n 3) 161.

5 See, eg, Civil Aviation Safety Authority v Central Aviation Pty Ltd (2009) 179 FCR 554, 561–2 [41] (the Court).

6 ARC Report No 50 (n 3) 161.

7 Minister for Immigration and Ethnic Affairs v Taveli (1990) 23 FCR 162. See also, eg Phosphate Resources Ltd v Minister for Environment, Heritage and the Arts (No. 2) (2008) 251 ALR 80.

8 See also Acts Interpretation Act 1901 (Cth) s 25D which provides that: “[w]here an Act requires a tribunal, body or person making a decision to give written reasons for the decision, whether the expression “reasons”, “grounds” or any other expression is used, the instrument giving the reasons shall also set out the findings on material questions of fact and refer to the evidence or other material on which those findings were based.”

9 See, eg, Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323, 330 [5] (Gleeson CJ); Civil Aviation Safety Authority v Central Aviation Pty Ltd (2009) 179 FCR 554, 563 [50] (the Court).

10 Shi v Migration Agents Registration Authority (2008) 235 CLR 286.

11 ARC Best-Practice Guide 4 (n 3) 7.

12 Ibid.

13 Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323, 331 [9]–[10] (Gleeson CJ), 346 [68]–[69] (McHugh, Gummow and Hayne JJ).

14 Ibid.

15 See generally Administrative Review Council, Decision Making: Evidence, Facts and Findings (Best-Practice Guide 3) (Report, August 2007).

16 ARC Best-Practice Guide 4 (n 3) 8.

17 Justice John Griffiths, ‘What are Adequate Reasons?’ (n 3) [30]–[31].

18 Hands v Minister for Immigration and Border Protection (2018) 267 FCR 628, 630 [3].

19 Ibid 640 [45].

20 Ibid 640 [44]–[45].

21 Minister for Immigration and Border Protection v Maioha (2018) 267 FCR 643, 654 [45] (Rares and Robertson JJ).

22 Justice John Griffiths, ‘What are Adequate Reasons?’ (n 3) [18].

23 Judicial Council on Cultural Diversity, Resources (Web Page) <https://jccd.org.au/resources/>.

24 See Shu Uan Eao v Commissioner of Taxation (Cth) [2009] FCA 992 [11]–[13] (Middleton J), summarising the difficulties involved with locating a speaker of the same dialect as the witness in that case, and the subsequent finding that the interpretation was so inadequate as to deny the witness the opportunity to put their evidence before the Administrative Appeals Tribunal.

25 Justice Melissa Perry and Kristen Zornada, ‘Working with Interpreters: Judicial Perspectives’ (2015) 24 Journal of Judicial Administration 207, 209 (citations omitted).

26 Ibid 209–10.

27 [2010] 119 ALD 260.

28 Ibid 267–8 [30] (North J).

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35

EVENT WRAP UP

Jocelyne Boujos, President of the Law Society of WA

Catherine Stokes, the College of Law

Chris Burch, Young Lawyers Committee

Chelsea White, Glen McLeod and Lea Hiltenkamp from Glen McLeod Legal

Welcome to the Profession More than 200 guests from a mix of large, medium and small firms joined us at the Law Society’s Welcome to the Profession Breakfast at The Westin on Thursday, 11 March 2021.

It was a fantastic morning with a huge attendance as we finally got the opportunity to recognise and congratulate our newest Western Australian legal practitioners from both 2019 and 2020, who heard an insightful and inspiring keynote address from His Honour Judge David MacLean.

The Law Society wishes all of our new practitioners the very best as they embark upon the first steps in what we hope will be fulfilling legal careers. The Law Society looks forward to supporting our newly-admitted lawyers throughout their career journeys.

36 | BRIEF APRIL 2021

Many thanks to our event sponsor, The College of Law. You can view more photographs from the event at the Law Society’s Young Lawyers Committee Facebook page: facebook.com/YLC.WA.

“The speakers at the Welcome to Profession Breakfast were highly inspirational, encouraging and relatable.

It was a great opportunity to reconvene with old colleagues and meet new ones. The breakfast is a valuable experience for those becoming part of the legal profession in WA.” - Ashley Fan, Jackson McDonald, 2020 Admittee

“We had the privilege of not only an entertaining but also an insightful and inspiring keynote address from His Honour Judge David MacLean.

Judge MacLean’s invaluable advice included that “It’s okay to make mistakes - most are fixable”, and the advice that particularly stood out - “A terrible day for the ego is a beautiful day for the soul”, reminding us of the importance of learning from our mistakes and seeing it just as that – an opportunity to learn rather than a mistake.

Thank you to the YLC and the Law Society for an excellent event.”

– Dora van der Westhuyzen, Torrens Legal, 2019 admittee

Welcome to the Profession I March 11, 2021

His Honour Judge David MacLean

Speech by His Honour Judge David MacLean - 11 March 2021 Can I first both congratulate you on your career choice; commend the efforts that each of you have made to reach this point and sincerely thank you for the opportunity to welcome you to this ancient, honourable and changing profession.

As a matter of ethics and continuing disclosure I must inform you that last night I announced, with some pride, to my 13 year old daughter that I would be speaking to you today. She said: I pity them. Your speeches are not very motivating. [Then to assuage my wounded feelings she added] they are to you [but returning to message she continued] but not to me. You just repeat them as if my opinion will change. It doesn’t.

From that you might take two observations: Firstly this speech is likely to be repetitive and unhelpful; and secondly, but happily for me, I am likely to enjoy it very much.

The most significant thing from the early stage of my legal career is that I represent the last of the generation

of lawyers that graduated when UWA was the sole university producing law graduates and was unbelievably fortunate to graduate in the last of the years where 100% employment as an article clerk for every graduating student was all but guaranteed.

I will speak about pretending later in this address, but you will understand that I can’t pretend to speak to you about the challenges that you are likely to face in practice as a newly admitted practitioner, since it is certainly the case that just as finding a job in 1991 was a lot easier than it is in 2021, I am sure that the work was also a lot lighter in 1991 than it is in 2021.

The work life balance now seems to be less jobs for law graduates but more work for those that do get jobs, which sounds both economic and rational.

The actual work on offer in 1991 consisted in large part of photocopying and walking around with the outside clerk filing and serving documents and checking titles at the land titles office or at the companies commission in between trying at every outlet a new thing called a cappuccino all the while having no monthly budget or target. I suspect that the prospects of actually gaining employment now are much more difficult and the expectations of you by your principals are much higher.

The world is less kinder now I suspect and had I graduated with you I would be unlikely to have been sitting amongst you but most likely would have pursued my second ambition to drive iron ore trains for RIO or BHP through the Pilbara so it is indeed a treat to have this opportunity to speak with you even though I do feel more than a little presumptuous doing so.

The opportunity to speak with you has presented me with a chance to reflect on what it is that I actually know and can tell you... I do my best to hide it – but in this speech I’ll reveal it – I am not an especially deep thinker when it comes to my own motivations and drivers. Perhaps that is why I have chosen a life where I assess and judge others.

However, as I am now forced to do so, I can I think distil what I know into three principles which I will address as three guiding principles followed by 12 tips for lawyers who appear in court.

Three guiding principles: 1) Pretend confidence.

2) Anyone who passes law school is good enough to get a job.

3) You will make mistakes but it is not likely that they will be the end of the world.

37

First Principle – Pretend confidence One lesson that has stayed with me and which I remind myself of often is that public speaking is not a natural thing to do. I was lucky enough to hear this first when David Malcolm came to the University to speak to the law students about the profession and practice of law.

You will see immediately - by the fact that I am speaking to you today - that the lack of a guaranteed job and the requirement to do real work straight away are not the only diminution in standards for recent law graduates. In any event Malcolm, who had recently been appointed as the CJ, told the enthralled students “public speaking is not natural. No one feels comfortable with it. We all get nervous and we all have to overcome that nervousness and to learn to pretend to be confident”. Plainly His Honour said it with considerably more eloquence than that but said it with such confidence and persuasiveness that notwithstanding its incongruity with the perfect model of confidence that appeared in front of us; – it seemed disarmingly genuine and a lived experience. A hallmark of a great advocate certainly but it left an indelible impression on me and I have remembered it on every jury trial that I did as counsel and that I now do as a judge.

Before that I had assumed that everyone else was somehow good at it, I was terrible at it and I was stuck in a life where I had not really grappled with the issue of how I would actually do the work required to be an advocate. I was and remain uncomfortable and nervous speaking and speaking publicly – but the self-direction to pretend confidence has worked for me and will work for you too.

which is – you will make mistakes (my inner monologue said “yes, lots and lots and lots of them) but some of them won’t count or affect the outcome and if they do there is a way to fix them. So make decisions and remember there is a way to fix them, if required, that is built into the system.

Again it may have been easy for Mr Thompson, a person who I suspect does not make many mistakes to say, but I found it tremendously important.

The observation applies equally to you.

With oversight and review your mistakes will also be recovered. So press on and do your job. Do your best to get it right but remember no one gets it right all the time and a quick look at the Supreme Court website will show you that we as judicial officers notwithstanding our best efforts, training and experience do get it wrong.

The fear of getting it wrong should not lead you to a paralysis in making a decision or not offering your best for fear of criticism. Failure and criticism are inevitable but every success is preceded by failure so remember a terrible day for the ego is a beautiful day for the soul so press on.

12 tips for recently admitted lawyers who practice as advocates I apologise to those of you who aspire to practice in a commercial field. I really have nothing to offer to you save to say that I have no commercial acumen and am certainly the least commercial person I can think of. These 12 tips are offered for those of you that wish to practice as lawyers who appear in court.

The Second Principle

1. You will always be on time.

The second lesson I learnt was from the great Laurie James who said to me anyone who passes law school deserves a job in the law notwithstanding their marks. Again this was perhaps easy for Mr James to offer given that he passed toward the top of every class that he ever took and easy to say to me who, perhaps finished toward the middle? I guess? But it is true. Once you have a job you are as good as the work that you are currently doing. So do your best. Take your work seriously means that you take yourself seriously because you have substance.

Whatever your marks may have been.

2. When you are late never say I was late because I had a matter in the magistrates court / I will wonder why I had to wait; please don’t say that I was late because I had a matter in the Supreme Court / I wonder why you consider this court might not be important enough to be on time for; I might also feel a slight wound to my sense of self-importance which I have carefully nurtured over decades.

The Third Principle Shortly after I was appointed I was fortunate to speak with the Solicitor General Mr Joshua Thompson SC; happily it was not to hear him say look we have made a dreadful mistake but it was to receive this very important lesson;

38 | BRIEF APRIL 2021

3. Remember that when speaking to a judge’s associate you are really speaking to the judge themselves. Be polite. Most judges have great respect and regard for their associates as we simply could not operate without them. You will also need to work with the associates when you have a number of matters in different courts and want to manage the timing of your appearances so it is to your own

best interest that you have a good relationship with them.

4. Never say I seek to tender just tender confidently I tender and force your opponent to object, if they dare.

5. Don’t expect that the judicial officer hearing the matter knows anything about it or has any sense of ownership in the matter or interest in the outcome. We really don’t. As a side observation I remember thinking for a long time that a certain judicial officer loathed me, when I met them at a function suffering under this belief it was clear that they had no idea who I was.

6. Never say as your honour would know – if it is me I probably don’t – I will just look at you and try to maintain a sphinx like reserve to hide my acute embarrassment and will be so fixed on doing that and thinking on what I don’t know but should that I will miss the really important thing you are trying to tell me.

7. You won’t in cross examination ever say to a witness I suggest to you. Ask them a question. Also you will not use (I put it to you) it sounds strange and jars if used once and much more so if repeated and sounds just impotent and pathetic if trotted out as the end of a cross examination as a series of questions in the supposed hope of meeting Browne v Dunn. Much better to simply put the proposition to Mr Jones you lied when you said / Mr Jones you punched him. If you want to see how it is done, economically and well, go and watch Tom Percy QC. 8. Do know about the rule on cross examining on prior inconsistent statements and don’t just ask the witness “you made a statement”.

Statements are not evidence; it is what they say when asked about an event which is admissible – there is an occasion on which you might ask about statements but there are important rules which must be followed before you can – learn them and you won’t be interrupted by the judge or your opponent – I won’t recite the rules now for fear of getting them wrong.

9. When calling evidence don’t lead the witness by asking a question that suggests an answer – even if the witness is allowed to respond the answer will not be as impressive as an answer to a question properly framed; direct the witness, if it helps remember the words – where/ why/ how /when/

what – as being an introductory word to the question; I used to keep a post it note on the bar table to look at and remind me if ever I got lost or confused; I also kept my brief bag open below the bar table with my car keys displayed so that I could look down from time to time, if things were not going well, and comfort myself with the thought that I could absolutely run out of the court room at that moment and never return if it got too dreadful.

10. When confused or lost remember it happens to everyone. The defining moment is how the best deal with the unexpected. Take a breath and recalibrate. Recently I saw this expertly done. Defence counsel had just called an accused who was charged with a home invasion. It was not in issue that he had been inside the home and that property was damaged and a person assaulted.

The state case was that he attended at the address with the intent to force entry and assault the occupants. The defence position was that he attended at his friend’s house and unexpectedly things became unpleasant after he entered the house. In response to a perfectly innocuous question from defence counsel, designed to give

life to the defence case, the accused proffered “I knew when I was going there that I was going to do something bad”. This answer was not expected.

The jury sat up and leaned forward, the prosecutor, who was fair and balanced throughout, picked up a pen to take a note, I tried to look uninterested while defence counsel took a breath, shuffled some paper and moved on; Mr X I would now like to ask you about.. it worked a treat because later that day the accused was acquitted.

11. When calling a witness remember that they – not just you – will be nervous about what they are going to say and how they will present. Robert Cock QC, when he was the Director of Public Prosecutions told me that you have to treat a witness like a nervous horse. Ease the witness into the witness box; like a horse into a stable.

Ask them things that they know and that they can answer with confidence so that they can become familiar with their surrounds, ask them their name, their occupation, their address. Of course this is from a prosecutorial perspective. If you are acting for an accused you may wish to be careful asking them where they live if the answer might be Casuarina Prison.

12. Ask for help and contact a barrister.

The bar is there to assist. If you have a difficult problem contact a barrister this of course includes any ethical or other problem. The bar is independent and expert and it exists to serve the profession of which you are a part.

A career in the courts is not for everyone – fighting all day – taking the point – not taking the point and asking yourself whether you should have or not – unfairly assuming responsibility for the outcome of a case you are arguing – exposing yourself to risk of failure in front of your colleagues, adverseries, judges, witnesses and clients – working relentlessly late into the night, in order to understand and identify the facts and then later on in the week to try and understand the law and once it is over you forget the time spent, forget the facts and largely forget the law and then do it again for another matter.

However, for those of you cravenly insecure enough to pursue such experiences but who do not wish to expose yourself to the popularity contest that is a life in politics or Married at First Sight, it is a challenging and oftentimes fun career and I commend it and wish you all the best.

PROFESSIONAL STANDARDS SCHEME What is the benefit of the Scheme?

The Law Society of Western Australia Professional Standards Scheme (Scheme) enables Australian legal practitioners and incorporated legal practices to limit their professional liability at $1.5 Million, $5 million or $10 million, subject to the exclusions contained in section 5 of the Professional Standards Act 1997 (WA) (the Act), depending on the total annual fee income of their law practice.

Who may benefit from the Scheme?

Only members of an occupational association can be members of a limitation of liability scheme in accordance with the Act. Therefore only Ordinary members (members with a current Australian practicing

certificate) and Incorporated Legal Practice (ILP) members of the Law Society can participate in the Scheme.

The Scheme operates on a one-in all-in basis. For a law practice to receive the full benefit of the Scheme, all practitioners within the law practice and the law practice itself (if incorporated) need to participate in the Scheme.

Participating members are required to disclose their limited liability status to clients. Failure to do so is an offence under the Act.

Who to contact.

For further information in relation to the Scheme, please visit the Law Society’s website or contact the Scheme Coordinator on (08) 9324 8653 or by email to pss@lawsocietywa.asn.au.

lawsocietywa.asn.au/pss/ 39

The National Cabinet: Presidentialised Politics, Power-sharing and a Deficit in Transparency

By Tamara Tulich, Senior Lecturer at the University of Western Australia (UWA) Law School; Ben Reilly, Professor of Political Science and International Relations at UWA; and Sarah Murray, Professor at UWA Law School.

Australia’s newest political institution, the National Cabinet, adds a fresh federal twist to the debate about the eclipse of Parliament and the presidentialisation of Australian politics.

The National Cabinet was formed on 13 March 2020 as an intergovernmental forum comprised of the Prime Minister, the Premiers and the Chief Ministers to lead a unified and coordinated response to COVID-19 across the Federation. In responding to COVID-19, the National Cabinet is advised by the National Coordination Mechanism (NCM) on nonhealth aspects of the pandemic, and the Australian Health Protection Principal Committee (AHPPC) on medical issues related to the pandemic. The AHPPC and the National COVID-19 Commission are reported to have been made committees of the federal Cabinet by the Prime Minister.

On 29 May 2020, the Prime Minister announced that the National Cabinet had agreed to replace the Council of Australian Governments (COAG) with the National Federation Reform Council, the centre of which would be the National Cabinet. COAG has long been seen as being at the mercy of the Commonwealth’s agenda, with the National Cabinet having the potential to be a more deliberative and ‘dynamic’ forum. The Prime Minister’s Media Release explained:

40 | BRIEF APRIL 2021

By any measure, National Cabinet has proven to be a much more effective body for taking decisions in the national interest than the COAG structure.

In this post, we argue that this effectiveness bears many of the touted advantages of presidential forms of government, in which the executive is directly elected and forms government separately from the legislature. These include a greater focus on individual leaders rather than their partisan allegiance; more decisive decisionmaking; cross-party cabinet formation; and the potential to sit above the fray of parliamentary politics. But it also shares the costs: a loss of transparency and, with the federal dimension to the centralisation of coordination in the form of the National Cabinet, the real risk that intergovernmental ‘power-sharing’ will be dominated by ‘coercive’ Commonwealth power.

Personalisation, presidentialisation, power-sharing and the National Cabinet The National Cabinet appears to have increased some of the underlying

trends in many parliamentary democracies towards greater ‘personalisation’ and in some ways ‘presidentialisation’ of politics. These terms refer to processes that have been at work in Australia for some time: an increasing focus on politicians as individuals rather than leaders of a collective executive; a similar focus on the role of the majority leader rather than the Parliament; and, particularly during election campaigns, a relentless media focus on the leaders of the major parties to the exclusion of almost all others.

At the National Cabinet, the Prime Minister, Premiers and Chief Ministers appear as individuals in their role as leaders of their own executives, untethered from their other positions as local members, parliamentarians and leaders of their respective political parties. This effectively elides the underlying reality under our Westminster system of government that their executive positions are all subject to the potentially shifting sands of parliamentary majorities. Parliamentary supremacy and indeed sovereignty remains in form, but in function the National Cabinet resembles a meeting of US governors and the President — each of whom are of course directly elected and thus able to claim their own mandate. In this way, the National Cabinet could be seen as an exemplar

of the ‘presidentialisation of Australian politics’ thesis, as an institutional innovation which shifts power further away from Parliament and towards individual leaders.

Another aspect of the National Cabinet is the way it has created a new arena of power-sharing between the major parties in Australia. While multiparty Cabinets along the European model are not unknown in Australia, they have usually entailed one of the major parties including a small number of representatives of minor parties or independents within one Parliament.

Occasionally this has involved more formal power-sharing arrangements, as with the Labor-Green governments in Tasmania. But never before, even during wartime, have the two major party groupings that dominate Australian politics – Labor and the Coalition – worked together in a joint executive.

The National Cabinet thus resembles the kind of grand coalitions employed during times of crisis or transition in European democracies, or the Advisory War Council which acted as war cabinet in Australia during World War II. Two key question marks that remain with this ‘big tent’ National Cabinet mechanism are what it means for transparency, and for Commonwealth dominance over sub-national governments.

What is in a name?

A transparency deficit One of the quirks of the National Cabinet is that it is called a ‘cabinet’, and is formed under the purview of the Australian Government’s Cabinet Handbook. A ‘cabinet’, as exists at the national and sub-national levels, is the primary decision-making organ of

executive government: a council of senior ministers who drive policy development and make decisions related to policy and legislative proposals, expenditure etc. Cabinet is a product of convention, and governed by two important aspects of the convention of responsible government: cabinet confidentiality and cabinet solidarity. Cabinet documents and deliberations are confidential and exempt from freedom of information (FOI) requests, safeguarding robust discussion within Cabinet. Cabinet solidarity means that all members of Cabinet publicly support Cabinet decisions, even if they were not present during deliberations or did not support the decision. Cabinet is then held to account through collective cabinet responsibility to the Parliament of which cabinet members are part. As an intergovernmental, not inter-parliamentary, body, members of the National Cabinet are not collectively responsible to one Parliament, but individually responsible to nine separate Parliaments. It cannot therefore be held to account by collective cabinet responsibility to the Parliament, or beholden to cabinet solidarity. Despite this, in a Whole-of-Government Submission (dated 12 May 2020) to the Senate Select Committee on COVID-19, the Department of Prime Minister and Cabinet reported that:

Perhaps the only convention of responsible government that has been claimed is that concerning strict rules of cabinet confidentiality. Indeed, the Morrison Government has asserted that cabinet confidentiality applies to all documents of the National Cabinet and, by extension, the AHPPC. The AHPPC, it is worth recalling, is a body chaired by the Australian Chief Medical Officer, and comprised of the Chief Health Officers of each state and territory, and relevant departmental officials. However the exact nature of AHPPC documents is unclear, as the following exchange, during a hearing of the Senate Select Committee on COVID-19 on 29 September 2020 illustrates:

By the agreement of all members, the National Cabinet is constituted as a Cabinet Office Policy Committee and operated according to longstanding conventions of Cabinet government, including the guiding principles of collective responsibility and solidarity.

In his capacity as Chair, the Prime Minister provides frequent public updates on National Cabinet decisions where appropriate. The Commonwealth and state and territory governments individually remain responsible for the implementation of decisions arising from the National Cabinet.

Dr Murphy: It was a decision of national cabinet to adopt AHPPC as a subcommittee of national cabinet.

That conferred on it that status as a cabinet subcommittee, because it was a decision of first ministers.

Dr Murphy: No, only some of them are cabinet-in-confidence—only those since the formation of national cabinet.

Any AHPPC minutes before that formation are not cabinet-in-confidence.

Senator PATRICK: You would be aware that the definition of a ‘cabinet’ in conventions that are well established is a meeting of ministers. So I am just very curious why you think that for some reason a meeting of doctors can be a subcommittee of cabinet. Can you explain that to me?

Senator PATRICK: Can you see that even prime ministers can’t make decisions that create a secrecy that is not supported by convention? Cabinet meetings are meetings of ministers, not doctors.

Dr Murphy: I understand your frustration—

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41

What follows from the classification of National Cabinet and AHPPC documents as cabinet documents is that they are exempt documents under s 34 of the Freedom of Information Act 1982 (Cth) and do not need to be disclosed in response to FOI requests (albeit that exempt documents may nonetheless be released in certain circumstances). COAG documents were not so exempt from FOI rules.

This has provoked South Australian Senator Rex Patrick to make two FOI requests in relation to National Cabinet documents (for minutes of the National Cabinet’s inaugural meeting, and information relating to its rules and procedures), as well as an FOI request for AHPPC documents.

In relation to the AHPPC documents, on 29 September 2020 Senator Patrick tweeted that “The Assistant Secretary that processed my #FOI says the AHPPC minutes I requested are only exempt because their release could cause damage to Commonwealth-State relations (s47B)”. The use of s 47B, as opposed to the Cabinet documents exception to FOI in s 34, gave rise to further interesting exchanges between Senator Patrick and Dr Murphy in the hearing of the Senate Select Committee on COVID-19 on 29 September 2020 as to the status of AHPPC documents.

In relation to the National Cabinet documents, Senator Patrick’s FOI requests were refused. Senator Patrick sought review by the Office of the Information Commissioner. In late September 2020, it appears from media reporting that the Information Commissioner exercised her discretion under s 54W(b) not to undertake a review because the Commissioner was satisfied that ‘the interests of the administration of this Act make it desirable that the IC reviewable decision be considered by the Tribunal’. On 28 September 2020, Senator Rex Patrick applied to the Freedom of Information Division of the Administrative Appeals Tribunal to have the matter heard. The outcome of that hearing will have significant ramifications for the workings of the National Cabinet.

The landscape for Commonwealth dominance?

The National Cabinet, formed in the shadow of a severe global pandemic affecting every aspect of life, but crucially aspects traditionally managed by the states – public health, schools,

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intrastate travel and entry – has given the states a unique level of bargaining power during the crisis. This has played out on a number of occasions, such as where the Commonwealth Government was pushing to have schools open, set a date for the opening of borders or increase caps on hotel quarantine numbers, only to face opposition by one or more of the states. While a compromise was ultimately reached on the cap requiring greater Commonwealth support and a longer lead time, the WA Premier Mark McGowan initially complained about what he described as the ‘ambush’ attempt by the Commonwealth Government to force an increase in international arrivals.

The Prime Minister has sought to soften areas of conflict by claiming that, ‘[f]rom time to time we disagree on this and that, when we get into the room we sort it out’.

The question that remains is in what areas the Commonwealth has the power to ‘force’ the states’ hand in how they respond to the crisis (in relation to the territories the position is much clearer pursuant to s 122 of the Commonwealth Constitution).

For example, the quarantine power in s 51(ix) of the Constitution supports legislative measures to force shutdowns and movement restrictions (such as the Biosecurity Act 2015 (Cth)) and this legislative power, coupled with the defence power in s 51(vi) and even the nationhood power (s 61 and s 51(xxxix)), could be exercised to put in place more lenient restrictions to override the states’ laws pursuant to s 109 of the Constitution. But the challenges are two-fold. First, at what point would Commonwealth pandemic controls begin to impair the ability of the states to function as governments (Austin v Commonwealth (2003) 215 CLR 185; Clarke v Commissioner of Taxation (2009) 240 CLR 272)? Secondly, even if the Commonwealth has the power to control the states’ response, there is a real question as to whether it would be willing to take the political risk of dictating the emergency response and then also taking political responsibility for any potential COVID-19 flare-up.

The Ruby Princess debacle highlighted the inevitable finger pointing that follows any perceived failings in governmental response. But in areas like schooling where there has been a perceived lower risk of COVID-19 infection, Commonwealth buttonholing was the most stark with the threat of funding withdrawals hanging over schools that

did not respond to the Commonwealth’s demands. Ultimately, it is the Commonwealth’s fiscal dominance in the Federation which has increasingly been its constitutional wildcard.

Concluding thoughts The strengths of the National Cabinet – personalisation, bipartisanship, coordinated leadership, and decisiveness – are uniquely suited to the exigencies of an emergency of the unprecedented scale of COVID-19. Bearing many of the characteristics of a more ‘presidential’ political model, these strengths harness many of the touted advantages of the ‘presidentialisation’ of politics – greater focus on individual leaders; more decisive decision-making; cross-party cabinet formation; and the potential to sit above the fray of parliamentary politics. However, the National Cabinet also evinces associated costs. Emerging concerns are how the newly formed intergovernmental body can address a potential transparency deficit and the seeming inexorability of Commonwealth dominance.

The experience of the apocalyptic 20192020 summer bushfires demonstrated the fault-lines inherent within a disjointed federal compact. What remains to be seen is whether the National Cabinet model can be sustained beyond the climate of emergency. And whether, if and when a COVID-19 vaccine is found, the National Cabinet can emerge from the experiences of 2020 a stronger and more viable federal solution and one able overcome the teething problems plaguing it.

Acknowledgement: This article was first published in AUSPUBLAW on 23 October 2020. Permission has been granted to republish in Brief.

International Women’s Day #womeninleadership #ChooseToChallenge #HerForShe

Monday, 8 March marked International Women’s Day with the theme Women in leadership: Achieving an equal future in a COVID-19 world.

The Society is proud to be part of the drive to a more gender equal future and is proud to reflect inclusion and diversity through its management and committees.

“I am very proud to lead the Law Society of WA which is an organisation which does diversity. Please look at our council make up look at the make-up of our committees and look at our management and employment policies and our management team. Yes we sign up to the Law Council’s Charter in relation to gender diversity, yes we have signed up for flexible workplace practices, but more than that we actually do it. I am very proud to lead an organisation that does diversity.” - Jocelyne Boujos, President, Law Society of Western Australia In recognition of this important day, the Society hosted events across the week complemented by an interview series

with Society President, Jocelyne Boujos reflecting on the themes of International Women’s Day 2021 and the global movement towards equality.

It was a fantastic night at the Stand Tall in Flats Sundowner on Wednesday, 10 March with over 70 attendees joining us in their funky flats to stand tall in celebrating women’s place in the world.

On Thursday, 11 March we hosted a replay of our popular Women, Finance and Empowerment Forum, presented in partnership with legalsuper, which deals with the necessity to talk more openly about financial inequality and how women can take charge of their own financial futures.

Thank you to all members who got involved and helped highlight the work that needs to be done to achieve gender equality in Western Australia.

Containers for Change Fundraising for the

Chief Justice’s Law Week Youth Appeal Trust Be The Change! To find out how you can get on board helping the environment and raising money for charity click here or email info@lawsocietywa.asn.au

Attorney General in hunt for pro bono champions Attorney General John Quigley has put pro bono services back in the spotlight by seeking nominations for the 2021 Community Services Law Awards.

The awards are returning to their usual Law Week presentation in May after the COVID-19 disruptions pushed them back to October last year.

These honours recognise the legal work being provided for the public good in Western Australia by individuals, legal firms and not-for-profit organisations.

“The Community Service Law Awards are a great opportunity to highlight the vital pro bono work being done by the legal community,” Mr Quigley said.

“They bring recognition to those who are helping make the justice system fair and equitable for all.”

introduced in 2020 to promote the importance of pro bono work.

The Citizens Advice Bureau of WA and the Consumer Credit Legal Service shared the not-for-profit award.

This will be the 15th time the awards have been staged.

Legal practices, practitioners and community organisations are being invited to nominate candidates. For further information, visit www.justice.wa.gov.au/ lawaward.

Nominations close at 2pm on Tuesday 20 April 2021.

Last year’s individual award was taken out by family lawyer Julia Johnston, who has devoted a 40-year career to protecting vulnerable children.

“I strongly urge individuals, firms and organisations to nominate deserving candidates for these prestigious honours,” the Attorney General said.

Estrin Saul Lawyers and Corrs Chambers Westgarth were the inaugural joint winners of the award for legal firms,

The award recipients will be announced at a May 19 event.

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“I strongly urge individuals, firms and organisations to nominate deserving candidates for these prestigious honours” “I’m glad to see that Law Week is back this year and look forward to presenting the awards to deserving winners in May,” Mr Quigley said.

(Photo above L-R) Julia Johnston, Gemma Mitchell and Laurence Coleman (Consumer Credit Legal Service), Hon John Quigley MLA, Reuben Saul (Estrin Saul Lawyers), Spencer Flay and Nick Ellery (Corrs Chambers Westgarth), Daniel Estrin (Estrin Saul Lawyers), Barbara Kwiecien and Kathryn Lawrence (Citizens Advice Bureau).

Access to Justice in a COVID-19 World

by Dr Jacoba Brasch QC President of the Law Council of Australia

Dr Jacoba Brasch QC

The Law Council of Australia’s President, Dr Jacoba Brasch QC, presented “Access to Justice in a COVID-19 World” at a special fundraiser to support the Women’s Legal Service WA. The University of Western Australia, in partnership with the Law Society and supported by the WA legal profession, hosted this special lecture on 25 February 2021.

Permission has kindly been granted by the Law Council of Australia to publish this presentation.

Thank you for providing me with the opportunity to speak to you all here at the Law Society of Western Australia and University of Western Australia Law School, CPD Fundraiser.

I acknowledge the traditional owners and custodians of Country throughout Australia and recognise their continuing connection to the land, sea, and community. We pay our respects to them and their cultures, and to their Elders past, present and emerging.

When I was first asked to attend this event a little while ago, I did wonder to myself - isn’t COVID ancient history for WA (and similarly so-2020 for Qld) … but then, only last month you had your six day lock down and we, our three days.

Both your State and mine have very recently been reminded how things can change so quickly.

So now I speak to the topic of Access to Justice in a COVID world with, sadly, a new sense of relevance.

Tonight, I will touch on a few topics with

broader implications to and observations about our profession, and some of the IT positives that have come from it – if you have IT access. The topics are: • access to justice in this new normal; • the electronic execution of documents; • new ways to practice; and • the importance of professional associations.

On the last point, I immediately observe that tonight’s event – where the WA legal profession, the WA Law Society and University of Western Australia have come together to support the Women’s Legal Service WA – is a prime example of the importance of professional associations working together.

There is no doubt that we have endured a tumultuous 12 months, with COVID influencing each and every one of us in some way. I must admit though that I had a sense of being safe and protected ensconced here in Brisbane, with our hard border closures, perhaps as many of you did in Western Australia. I also had

a Pollyanna expectation that all would be good at the stroke after mid-night on 1 January 2021 … but our respective Januarys were stark reminders that we will be living with this virus, and working around it, for months to come.

Indeed, having assumed the Presidency of the Law Council of Australia in the midst of the COVID-19 pandemic, part of my year will be spent engaging and supporting the profession, as it deals with some monumental changes to the way that we do business and the ways we can continue doing business, whilst also ensuring justice is done and is seen to be done.

The COVID-19 pandemic marks an undeniable paradigm shift for the legal sector. At the same time, we know that demand for – and the importance of – accessible legal assistance is heightened in times of crisis. But, crisis proffers no excuse for any diminution in our role as defenders and promoters of the rule of law.

And let me pause to acknowledge that in times of crisis, the legal profession steps up to the plate – for example, volunteering to assist people in your recent and tragic bushfires, or, in my state, when we had flood waters that ravaged and killed.

In times of crisis, we act in the finest traditions of what the French call, noblesse obligee.

Let’s stop for a moment and think about how we are convening this evening – you are a 10-hour, expensive return flight away from my hometown of Brisbane.

Yet here we are. This time last year, there would have been little thought to whether 45

I could participate by Zoom; rather, the thinking would have been along traditional lines of physical attendance.

And then COVID hit our shores.

Very quickly, we had to learn a new way of practicing, a new way of living, and a new way of connecting with friends in other locations … and new ways of assisting our most vulnerable.

Whilst this paradigm shift presented countless challenges – many of these challenges also provided opportunity to innovate, and to create a legal sector able to respond to our new normal - and perhaps most importantly, a legal sector that can look at the last 11 months, and identify efficiencies for how we deliver our services going into the future.

Of course, each state and territory had their own responses to managing the pandemic, with, perhaps, your state and mine being closely aligned in approaches.

Equally, each state and territory Law Society and Bar Association also approached their offering to members in their own fit for purpose way.

But that said, all approaches by every professional association have been underpinned by the same values and goals: • to ensure that the administration of justice may continue as smoothly as possible; • that members of our communities have continuity of access to legal services; • to keep a watchful eye that constraints imposed for health purposes do not encroach upon open and transparent justice; and • that legal practitioners are able to weather the pandemic’s economic and social impacts as well as possible.

Last year and continuing now, the legal profession has shown itself to be remarkably agile, and capable of swiftly adapting to new technologies and ways of working.

with perhaps the most uttered phrase of 2020 being “you’re on mute”.

And adapt we did.

At the Law Council, we moved to weekly executive meetings where I too was guilty of not adopting new technologies.

For a period of time, I declined to attend

by Zoom, but rather, phoned in as we had done for years. Sensing the then President’s increasing frustration with my failure to engage with the tech, I reluctantly yielded, and have since become the biggest convert to Zoom I bought myself a second monitor, a really good camera and a green screen.

An early adopter I was not, but late convert, I certainly am.

When your Law Society President, Jocelyne and I met in January, we met

by Zoom, with your CEO David Price beaming in too. Just being able to see someone whilst talking to them, as opposed to what would have been a phone call, added a depth and dimension to our meeting. For my part, it was certainly a warmer discussion than a phone call would have allowed.

Similarly, for our Directors’ meeting in March, a number of Directors and CEOs will beam in via Zoom. Some are physically attending but others, particularly where the travel is long and expensive, and those from states where borders are closed with only short notice, are attending electronically. Three of our four Directors’ meetings last year were held this way.

Whilst we did not enjoy the collegiality of having a chat over a coffee before and after meetings, there was no detraction from the business of the Law Council being conducted with rigorous debate and input from all.

I also give you another specific example of not only adaption, but also the importance of collegiality between professional associations and collaboration with the court.

As a result, a digital transformation, which may otherwise have occurred over several years, surged through our profession in a matter of weeks.

In early March last year, I was contacted by the CEO of our (my) Qld Women’s Legal Service who told me of children who were not seeing the “other” parent because of COVID restrictions, and, of the increased spike in calls about family violence where people were locked down under one roof unable to escape. I am well aware your Women’s Legal Service – like every counterpart across the nation – has seen an increase in demand for services due to COVID-19.

Research tells us that lawyers are, for the most part, notoriously bad at adopting technologies. However adapt we had too,

Back to the Qld example, Angela Lynch, the Qld CEO, was able to reach out because of the collegiality we had

In the initial pandemic response in March 2020, Australia’s legal profession and court systems had a very narrow window to transition to remote service delivery and to identify priority legal services to be maintained.

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developed over years. In turn, I asked Angela to put her concerns in writing, addressed to the Chief Justice/Chief Judge, send it to me, and I would ensure it got before him.

By the end of the week, the Family Court of Australia and Federal Circuit Court had the COVID-19 list where parenting or family violence matters would be heard expeditiously. And because we were all using new IT platforms for hearings, it did not matter where the national family court COVID judge sat, or the FCC COVID judge – everyone would be on-line and the matter dealt with within 72 hours of filling.

That is a real example of the profession and the courts working together for a truly beneficial outcome for members of our communities in crisis.

It is something we must continue to do – the collegiality and the creative use of technology.

Indeed, in my own practice, even though we can travel freely within the state (touch wood) many clients are now expecting more efficient delivery of legal services.

Why would someone (unless they wanted to) drive 2.5 hours each way from say Toowoomba to the west of Brisbane to have a conference with me, and to pay for the privilege of the solicitor doing the same? Why would someone, again, unless they wanted to, pay for me to fly to say Cairns for a mention, when the courts have been able to offer electronic hearings.

Last year, I also conducted an unprecedented number of arbitrations

by Zoom, with parties in locations from Cairns, to Adelaide, Sydney and Melbourne, as well as my own Brisbane.

I was only talking to solicitors from Melbourne earlier this week about continuing to arbitrate by Zoom even if we can travel, because it will save parties, especially when in varying locations, costs of travel, accommodation, babysitting and disruption to their lives.

I used to be a believer in the “see the whites of their eyes” approach to cross-examination. However, even before COVID, I had read a goodly body of research which concluded that determining credit by observation was a flawed methodology, and, I had conducted enough trials by video-link pre-Covid to know (at least in my courts) you in fact get a closer and better view of witnesses by this means.

I hasten to add that I am not a criminal law lawyer, nor do I suggest jury trials could be conducted this way.

On a different topic, in my view, the electronic execution of documents -

not just affidavits as I understand to be the case in WA, but for deeds and wills too – was and will remain a game changer. But we need consistency in approach – disputes (like viruses) do not stop at borders.

Of course, we need to ensure against undue influence, unconscionable conduct and turn our mind to issues of capacity, but the electronic execution of documents offers real potential for some aspects of law to be more efficient and costeffective.

For the upheaval that was 2020, these are potentially positive outcomes and so long as we can ensure fidelity and veracity of the process, they are efficiencies I would like to see remain in place.

It is also my hope that the Courts, especially the federal courts where the LCA has its focus, will continue with electronic hearings for Directions Hearings, mentions and many interim or interlocutory hearings. We have discovered that the savings to clients, both in dollars and convenience, are considerable.

However, while the introduction of technology to legal services, may be seen by some as the answer that non-urban Australians have been waiting for, it is not a complete silver bullet.

Technology will not tear down the inequality that exists, where access to the basics of online access is still lacking.

Many years ago, I was volunteering at the Qld Women’s Legal Service. We were rostered on to give advice one night a week every six weeks at the drop-in, no appointment necessary nights. Most of the inquiries were about family law.

To one woman asking me about divorce, I replied “you can download the court forms on-line.” She looked at me and said, “but I don’t have a computer.”

That reality check, 21 years ago, still haunts me today that my middle-class, first world life was not the common, shared experience of everyone in this nation.

It was a salutary reminder to me that we are not, in fact, all equal in accessing the law.

It is a reality that has particularly stuck with me this last year as many of us easily “pivoted” (as the saying goes) to digital services.

But it is not the lived experience of all.

As we forge a path to on-line service delivery where appropriate, we must remember there are the IT rich and the IT poor. That is not to say we forgo the incredible enhancements which on-line

From left to right: Nicola Ashford, Women's Legal Services WA; Law Society President Jocelyne Boujos, Natalie Skead, Dean and Head of the UWA Law School; The Hon. Robert French AC; and Chief Judge Julie Wager from the District Court.

service delivery offers many of us; but we just need to be alert to and inclusive of those who do not have: • ready access to a computer or mobile device; • good bandwidth; • language proficiency; • sufficient levels of literacy; • adequate levels of IT literacy; or • an income to support IT access and subscriptions.

In short, we are not all on a level playing field.

And on a separate issue, a closed court system is an anathema to us. The courts are generally open, and any citizen may enter at any time, just like our parliaments.

Chief Justice Gibbs of the High Court said in Russell v Russell that it is the ‘ordinary rule’ of courts of Australia that their proceedings shall be conducted ‘publicly and in open view’; without public scrutiny, ‘abuses may flourish undetected’.

Gibbs J went on to say: ‘Further, the public administration of justice tends to maintain confidence in

the integrity and independence of the courts. The fact that courts of law are held openly and not in secret is an essential aspect of their character. It distinguishes their activities from those of administrative officials, for ‘publicity is the authentic hall-mark of judicial as distinct from administrative procedure’. To require a court invariably to sit in closed court is to alter the nature of the court.’

That is not to say we should be doing anything other than using technology for the advancement of the provision of legal services and access to justice, but it does mean we need to be conscious of bringing everyone along with us, or at least as many as possible.

But we must not forget the IT poor as they are likely to have a range of vulnerabilities and disenfranchisement.

I invite you all to look at the whole of the person who is your client, and the whole of their needs and circumstances.

Thank you.

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WA Case Notes

By Katie Cranfield

Parkin v Amaca Pty Ltd (Formerly James Hardie & Coy Pty Ltd) Parkin v Amaca Pty Ltd (Formerly James Hardie & Coy Pty Ltd) [2020] WASC 306 is highly significant as, not only is it the first mesothelioma quantum judgment since 2011, it establishes a precedent for other mesothelioma survivors, with the defendant being required to fund immunotherapy in the form of Keytruda. Le Miere J recalibrated the way general damages are calculated, arriving at $360,000, the highest sum of general damages to be awarded in WA for asbestos cancer. Additionally, the total damages of $1,041,480 establishes a standard for future cases. Key judgments concern pelvic tumour, life expectancy, Keytruda treatment, future economic loss, gratuitous services, and general damages.

In October 2019 the plaintiff Ms Parkin was diagnosed with mesothelioma, caused by exposure to asbestos whilst assisting with home renovations in the 1970s and 1980s.

The defendant James Hardie Industries (now Amaca Pty Ltd) manufactured the products, admitting liability for the damage the plaintiff suffers due to mesothelioma.

Ms Parkin was fit and healthy until late2018, subsequently diagnosed with mesothelioma in October 2019 and commencing chemotherapy in November 2019, treated primarily by oncologist Dr Lam. In November 2019, aged 62, Ms Parkin indicated she did not intend to retire in the near future. However, due to her deteriorating health, Ms Parkin resigned from her job in December 2019. Ms Parkin worked alongside and lives in a two-storey house with her sister Margaret, both unmarried with no children. As Ms Parkin is unable to do so due to her health, Margaret undertakes the domestic duties, assists Ms Parkin with daily living tasks, and drives Ms Parkin to appointments. In February 2020 Ms Parkin underwent combined chemotherapy and immunotherapy using Keytruda (the brand name for cancer immunotherapy drug Pembrolizumab).

Side effects rendered Ms Parkin unable to partake in many aspects of life.

The plaintiff adduced expert evidence from treating oncologist Dr Lam, forensic accountant Mr Thompson, and occupational therapist Ms Cogger. The defendant adduced expert evidence from medical experts Professor Fox, Dr Mohan and Professor Cohen, forensic accountant Ms Lindsay, and occupational therapist Ms

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Cunningham. In March 2020 it was decided that Ms Parkin would not undergo surgical management for her pelvic tumour due to the advanced malignant mesothelioma and poor prognosis. On the balance of probabilities it was agreed that the pelvic mass was likely malignant. His Honour stated “my finding that the pelvic mass is causally related to the mesothelioma means that the pelvic mass does not need to be taken into account in considering the plaintiff’s life expectancy and future loss.”

Prognosis was another key issue. Dr Lam indicated poor life expectancy since the average mesothelioma prognosis is 12 to 18 months from diagnosis. In his 28 May 2020 report, Dr Lam estimated Ms Parkin may die within six months and, despite the forensic accountants and occupational therapists assuming different life expectancies, parties agreed to accept Dr Lam’s prognosis for the purpose of assessing damages. Indeed, parties agreed damages for gratuitous services of a domestic nature or relating to nursing and attendance (referred to by the plaintiff as Griffith v Kerkemeyer damages) to be calculated assuming the 28 November 2020 prognosis.

Ms Parkin’s $53,755.38 claim for nine Keytruda treatments succeeded. His Honour encapsulated that: “Keytruda is a brand name for Pembrolizumab. Keytruda is not a chemotherapy or radiotherapy drug – it is a checkpoint inhibitor, a type of immunotherapy. It blocks proteins that stop the immune system from attacking the cancer cells.” When cross-examined, Dr Lam indicated he both offered and recommended combination chemotherapy and immunotherapy to Ms Parkin, who gave evidence that undergoing this treatment “benefitted her and improved her wellbeing.” Subsequently, this treatment continued as “Ms Parkin was getting clinical benefit and a CT scan showed stable pleural disease. At that time there was slight progression of pleural effusion and progressive ascites.” The defendant argued the plaintiff must establish therapeutic or medical benefit, with the touchstone being reasonable, citing Sharman v Evans where the High Court found that the trial judge erred in awarding damages for future nursing and medical attention assuming the plaintiff would not permanently live in hospital. In Sharman Barwick CJ elaborates: “the expense of that course would be, to my mind, quite disproportionate to any causal connexion which might possibly

be found between that transfer and the appellant’s negligence.” In the present case, Le Miere J found that: “the Keytruda treatment was reasonably required by Ms Parkin in consequence of the mesothelioma caused by the defendant’s tort. The treatment is appropriate in the sense that it serves a purpose. There is currently no cure for mesothelioma. Standard treatment includes chemotherapy. Immunotherapy is not yet a standard first line treatment for the cancer but medical research, in particularly the DREAM study, has shown that the treatment has a greater capacity to reduce the progression of the disease than alternative treatment by conventional chemotherapy alone.

The cost is substantially greater than the cost of chemotherapy alone. However, the additional cost of the treatment is not disproportionate to its benefits.”

Future economic loss calculations must account for the total period for which the plaintiff could have expected to earn, had her lifespan not been impacted by mesothelioma. This figure is offset by the saving of expenditure on the plaintiff’s maintenance during lost years. Relying upon Bowen v Tutte the plaintiff submitted “contingencies for loss of earning capacity will generally be deducted at the rate of 2% to 6%.” The defendant submitted that deduction for vicissitudes depends on the assumed remaining period in the workforce.

After considering the forensic accountants’ report and required modification, His Honour calculated retirement age of 70 years, vicissitudes of 5%, and weekly expenses of $240, arriving at $132,594 for future economic loss.

The occupational therapists’ report divided Ms Parkin’s past care into eight stages. A key issue concerned Margaret’s assistance whilst Ms Parkin was hospitalised. Nicholson held that minor activities improving a plaintiff’s comfort carried out by a relative whilst the plaintiff is hospitalised does not fulfil the Griffiths v Kerkemeyer relevant need principle followed by Australian Courts. His Honour allowed for “4 hours per day during Ms Parkin’s hospitalization” explaining that courts “must have regard to the facts of each case. It should not be assumed that the nursing staff in hospitals can provide all necessary services.” Another key issue was provision of emotional support. His Honour stated “supervision or protective attention provided by Margaret is a compensable

gratuitous service.” His Honour referenced Wormleaton v Thomas where Campbell J accepted that one cannot provide emotional support to oneself, and Van Gervan v Fenton where the High Court stated protective attention is a service.

Ms Parkin was granted $27,615 for future aids, appliances and equipment. The parties agreed on damages of $11,747 for future aids, appliances and equipment; His Honour also allowed $15,868, agreeing “that a stair lift is reasonably necessary.”

After considering precedent and having “regard to the particular circumstances of the plaintiff” including that the “impact on the plaintiff of mesothelioma has been enormous” and “shattered” her life, His Honour awarded general damages of $360,000. In calculating this amount, His Honour recalibrated the manner in which general damages are determined. The defendant cited Lowes v Amaca Pty Ltd where “Corboy J undertook a survey of damages for pain and suffering and loss of enjoyment of life”, determining damages of $250,000. However, Le Miere J explains that Lowes was “decided almost 10 years ago and awards of damages have increased significantly during that period.”

Similarly, in Amaca Pty Ltd v King the Court dismissed the argument that $730,000 was too high for a reasonable jury properly instructed and giving due attention to evidence to arrive at. In particular, the Court pondered: “who doubts that modern society may place a higher value on the loss of enjoyment of life and the compensation of pain and suffering than was the case in the past?” Resultingly, Le Miere J has established a fresh standard for calculating general damages in similar cases.

In total, Ms Parkin was awarded $1,004,148 in damages. This is significant as it sets a new, higher standard for defendants to meet, as well as establishing a precedent in requiring the company responsible for asbestos exposure to fund treatments including immunotherapy like Keytruda.

URL: https://ecourts.justice.wa.gov.au/eCourtsPortal/Decisions/ViewDecision?ret urnUrl=%2feCourtsPortal%2fDecisions%2fFilter%2fSC%2fRecentDecisions&id=b 5f6a423-7f38-4d88-8748-4c66d8b95175 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

Parkin v Amaca Pty Ltd (Formerly James Hardie & Coy Pty Ltd) [2020] WASC 306 [40].

Griffith v Kerkmeyer (1977) 139 CLR 161.

Parkin v Amaca Pty Ltd (Formerly James Hardie & Coy Pty Ltd) [2020] WASC 306 [46].

Parkin v Amaca Pty Ltd (Formerly James Hardie & Coy Pty Ltd) [2020] WASC 306 [50].

Parkin v Amaca Pty Ltd (Formerly James Hardie & Coy Pty Ltd) [2020] WASC 306 [51].

Sharman v Evans (1977) 138 CLR 563, 573.

Sharman v Evans (1977) 138 CLR 563, 566.

Parkin v Amaca Pty Ltd (Formerly James Hardie & Coy Pty Ltd) [2020] WASC 306 [69].

Bowen v Tutte (1990) Aust Torts Reports 81-043 (Malcolm CJ) 68, 083, (Wallace J) 68, 807.

Bowen v Tutte (1990) Aust Torts Reports 81-043 (Malcolm CJ) 68, 083, (Wallace J) 68, 807.

Nicholson v Nicholson (1994) 35 NSWLR 308, 323-334.

Waller v Suncorp Metway Insurance Ltd [2010] 2 QdR 560 [10]-[11]; Wormleaton v Thomas & Coffey Ltd (No 4) [2015] NSWSC 260.

Parkin v Amaca Pty Ltd (Formerly James Hardie & Coy Pty Ltd) [2020] WASC 306 [117].

Parkin v Amaca Pty Ltd (Formerly James Hardie & Coy Pty Ltd) [2020] WASC 306 [116].

Parkin v Amaca Pty Ltd (Formerly James Hardie & Coy Pty Ltd) [2020] WASC 306 [131].

Wormleaton v Thomas & Coffey Ltd (No 4) [2015] NSWSC 260.

Van Gervan v Fenton (1992) 175 CLR 327.

Parkin v Amaca Pty Ltd (Formerly James Hardie & Coy Pty Ltd) [2020] WASC 306 [151].

Parkin v Amaca Pty Ltd (Formerly James Hardie & Coy Pty Ltd) [2020] WASC 306 [165].

Parkin v Amaca Pty Ltd (Formerly James Hardie & Coy Pty Ltd) [2020] WASC 306 [165].

Lowes v Amaca Pty Ltd [2011] WASC 287.

Parkin v Amaca Pty Ltd (Formerly James Hardie & Coy Pty Ltd) [2020] WASC 306 [159].

Parkin v Amaca Pty Ltd (Formerly James Hardie & Coy Pty Ltd) [2020] WASC 306 [160].

Amaca Pty Ltd v King (2011) 35 VR 280.

Amaca Pty Ltd v King (2011) 35 VR 280 [177].

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49

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

Consumer law and practice and procedure Unfair contract terms – summary dismissal application – whether finding that terms are unfair is possible without identifying particular contracts between identified parties In Australian Competition and Consumer Commission v Fuji Xerox Australia Pty Ltd [2021] FCA 153 (3 March 2021) the Court dismissed the interlocutory application for summary dismissal of the proceeding brought by the respondent (FX).

The applicant (ACCC) sought declarations and injunctions concerning the use by FX of nine different template forms of contract with its customers which were said by the ACCC to be “small business contracts” within the meaning of s23(4) of the Australian Consumer Law (ACL) (Sch 2 to the Competition and Consumer Act 2010) and “standard form contracts” within the meaning of s27 of the ACL. The ACCC’s case was that a number of the terms of the template form contracts were “unfair terms” within the meaning of s24 of the ACL. The ACCC also relied on analogous provisions of the Australian Securities and Investments Commission Act 2001 (Cth).

FX submitted that the ACCC’s case was fundamentally flawed because (other than in an amendment to the relief in an amended originating application) it did not identify any particular contract between FX and any particular customer (at [16]).

It argued that it was impossible to apply the relevant provisions to any given “contract” unless the contract in question had been identified (at [13]-[14]).

FX submitted the Court was impermissibly being invited to give an advisory opinion on wholly abstract questions, namely whether if a term of the kind which appears in FX’s template document features in a contract which happens to have the characteristics of a standard form contract and happens also to satisfy the requirements for a small business contract, would that be an unfair term within the meaning of s24 of the ACL (at [16]; see also [40]).

50 | BRIEF APRIL 2021

Stewart J considered that an obstacle to FX in advancing its argument was that courts had on previous occasions ordered similar relief to that which was sought in this case, referring to ACCC v JJ Richards & Sons Pty Ltd [2017] FCA 1224 and ASIC v Bendigo and Adelaide Bank Ltd [2020] FCA 716 (at [41]-[56]).

The application for summary dismissal was dismissed. The Court held it is possible under the statutory scheme that the impugned terms were unfair notwithstanding that no actual contracts between identified parties were proved (at [57]). The relief sought was not too uncertain (at [59]-[64]). Further, the relief sought by the ACCC would decide a real controversy, being the controversy between the ACCC (as “regulator” referred to in s250(2)(b) of the ACL) and FX with regard to whether the impugned terms in the identified template contracts were unfair (at [65]). The criticisms of the relief that FX made were not being finally dealt with at this stage. Rather, Stewart J was not satisfied at this stage that there is no reasonable prospect that the relief that is sought will ultimately be granted (at [66]).

Equity and human rights Discrimination and sexual harassment allegations – claim of vicarious liability of the Commonwealth – whether the Commonwealth restrained from unconscientious reliance on legal rights based on general words in Deed of Release In Leach v Commonwealth of Australia [2021] FCA 158 (2 March 2021) the Court considered the equitable principle in Grant v John Grant & Sons Pty Ltd (1954) 91 CLR 112 by which equity will restrain a party from unconscientious reliance on legal rights based on general words in a release.

The applicant (Ms Leach) was employed by the second respondent, a former Senator of the Commonwealth on behalf of the first respondent (the Commonwealth). Ms Leach claimed that her former employer discriminated

against her on the ground of sex and engaged in sexually harassing conduct in contravention of ss5, 14, 26, 28A, 28G(2) and 28L of the Sex Discrimination Act 1984 (Cth). She also claimed that the Commonwealth was vicariously liable for the actions of the former Senator in accordance with s106 of the Act. Following an unfair dismissal claim

by Ms Leach, there was a Fair Work Commission conciliation that ultimately led to Ms Leach signing a Deed of Release made on 16 January 2019 (Deed), by which Ms Leach released the Commonwealth from any “Claims” arising out of, or any way related to her former employment settling and bringing to an end the unfair dismissal claim.

The question arose as to whether the release in the Deed barred Ms Leach’s subsequent claims against the Commonwealth for vicarious liability for the discrimination and sexual harassment alleged against the former Senator for whom she was previously employed.

More specifically, the Court determined a separate question directed to whether or not Ms Leach was entitled to declaratory relief against the Commonwealth in relation to the Deed. It was common ground that if Ms Leach was entitled to the declaration, then she would be entitled to pursue her other substantive claims against the Commonwealth; if she was not entitled to the declaration (meaning the Deed was able to be enforced according to its terms), she would be prevented from maintaining her claims in relation to sexual harassment against the Commonwealth and her proceeding against the Commonwealth must necessarily be dismissed.

Ms Leach, as the moving party, bore the onus of establishing that the reliance by the Commonwealth on the legal terms of the Deed would, in all the circumstances, be contrary to conscience such that equity would intervene (at [19]; see also [23]). Lee J found that Ms Leach did genuinely (but mistakenly) believe that in signing the Deed, this step would not prevent her maintaining the claims that she wished to pursue (at [41]). However Lee J explained (at [42]): “To state the obvious, however, this is a necessary

but not sufficient basis upon which Ms Leach seeks relief. The objective theory of contract stands in command of the field: Taylor v Johnson (1983) 151 CLR 422 (at 429 per Mason ACJ, Murphy and Deane JJ). Although I am prepared to accept Ms Leach was operating under a genuine misapprehension, her mistake was entirely unilateral and her subjective misapprehensions as to the nature of the bargain she struck with the Commonwealth, without more, are neither here nor there. The inquiry relates to the state of knowledge of both parties concerning the existence, character and extent of the liability in question (as well as the actual intention of Ms Leach): Grant (at 129–30 per Dixon CJ, Fullagar, Kitto and Taylor JJ). Hence, the real question for me in the present circumstances is whether the misapprehensions: (a) were known to be held by Ms Leach by representatives of the Commonwealth; and/or (b) came about by reason of some action or conduct of the Commonwealth which renders the Deed being enforced according to its terms by the Commonwealth as being contrary to conscience”.

The Court found that Ms Leach fell well short of proving, in accordance with s140(1) of the Evidence Act 1995, the factual premises on which her claim for declaratory relief was based (at [43][44]). Consequently, the Deed could be enforced in accordance with its terms and the proceeding against the Commonwealth was dismissed (at [47]).

Evidence Admissibility of prior written statements In Australian Building and Construction Commissioner v Albert [2021] FCA 168 (3 March 2021) the Court ruled on certain objections to evidence in the proceeding.

Some of the applicant’s witnesses gave evidence in chief by affidavit, which affidavits referred to and annexed copies of earlier statements. The respondents objected to evidence of this nature as being prior statements made to the applicant (category 1 evidence) and prior statements written, or purportedly written, by the deponent after the relevant events (category 2 evidence).

The objections of the respondent included that these statements were an attempt to bolster the credibility of the relevant witnesses and were thereby inadmissible.

The applicant submitted (inter alia) that the statements were not included in the affidavits as an attempt to bolster the credibility of the respective witness.

The witness was, in essence, adopting the veracity of statements he had earlier made, as evidence in chief.

The Court considered various authorities as to the relevance of and admissibility of prior written statements (at [11]-[31]).

Having done so, the Court held the evidence to which objection was taken admissible for reasons including the following: •

The category 1 evidence and the category 2 evidence was relevant under s55 of the Evidence Act 1995 (Cth) (at [33]).

•

The evidence was deposed by way of evidence in chief of the relevant witnesses. It was not evidence subsequently sought to be adduced by the applicant as credit evidence to counter allegations of invention or reconstruction, and therefore was distinguishable from cases such as The Nominal Defendant v Clements (1960) 104 CLR 476 and Humphries v The Queen (1987) 17 FCR 182 (at [34]).

•

Authorities establish that s37(3) of the Evidence Act 1995 anticipates that a previous statement of a witness (such as those statements in categories 1 and 2) can be adopted by the witness as true and correct, and as evidence in chief, of that witness (at [35]-[36]).

•

There being no live issues of credit in the case in respect of the applicant’s witnesses, it was difficult to see any inherent unfairness in ruling the evidence admissible (at [37]-[38]).

•

The impugned evidence was not inadmissible as credibility evidence within the meaning of s101A of the Evidence Act 1995 (at [43]-[44]).

•

The impugned evidence was not hearsay. Collier J explained (at [45]): “To paraphrase Bromwich J in Australian Competition and Consumer Commission v Australian Institute of Professional Education Pty Ltd (No 2), the adopted written statements and file notes were no more hearsay than they would be if the text of that adopted material was instead simply copied into the adoption affidavit, but with the loss of the greater contemporaneity of the prior written account”.

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.

51

HIGH COURT JUDGMENTS Dr Michelle Sharpe Castan Chambers, Melbourne

Res Judicata Foreign divorce In Clayton v Bant [2020] HCA 44 (2 December 2020) the High Court was asked to determine whether Ms Clayton’s proceedings in the Family Court of Australia (Family Court) were precluded by a ruling made by the Personal Status Court of Dubai (Dubai Court) in divorce proceedings brought by Mr Bant.

Ms Clayton and Mr Bant (not their real names) were married for about five years and had a child. Ms Clayton is an Australian citizen and Mr Bant is a citizen of the United Arab Emirates (UAE).

They were married in a Sharia court.

Marriage under Personal Status Law of the UAE is a formal contract in which provision can be made for a husband to pay dowry to a wife. The written contract 52 | BRIEF APRIL 2021

here provided for Mr Bant to pay Ms Clayton an “advanced” dowry of AED 100,000 and a “deferred” dowry of the same amount in the event of death or divorce. Mr Bant owns real and personal property in the UAE and many other parts of the world. Ms Clayton owns personal property in UAE. Both own real property in Australia. Ms Clayton left Mr Bant and returned to live in Australia with their child. When Ms Clayton commenced proceedings in the Family Court seeking parenting and, later, orders for property settlement pursuant to ss74 and 79 of the Family Law Act 1975 (Cth) (Family Law Act), Mr Bant commenced proceedings in the Dubai Court seeking a divorce.

Mr Bant also sought orders for the extinguishment of all of Ms Clayton’s marital rights associated with the divorce in terms of alimony and the deferred dowry. Ms Clayton was notified of the

Dubai proceedings but did not appear.

The Dubai Court made a ruling in which Mr Bant was granted an “irrevocable fault-based divorce” dissolving the marriage (Dubai Ruling). The Dubai Ruling went on to order Ms Clayton to refund the advanced dowry and pay Mr Bant’s legal costs. In respect of the alimony and deferred dowry, the Dubai Court considered that “this subject is untimely”.

Mr Bant subsequently sought a permanent stay of the Family Court proceedings. At first instance, Mr Bant’s application was dismissed. Mr Bant successfully appealed that decision and the Full Court ordered a permanent stay.

Ms Clayton then appealed and the High Court unanimously overturned the Full Court’s decision. Keifel CJ and Bell and Gageler JJ gave reasons for their decision in a joint judgment. Gordon and Edelman JJ each delivered separate judgments.

Edelman J observed at [65] four separate rules of finality relevantly applied here.

First, res judicata (Latin for “a thing decided”) or the doctrine of merger.

The High Court noted at [66] that the doctrine is not just about the finality of litigation. It describes the extinguishment of an independent prior right. That is, when the court order “replicates” the prior right with consequences, such as enforcement mechanisms, the prior right no longer has an independent existence, instead it has merged with the order. Second, cause of action or claim estoppel. If a judgment has finally resolved a conflict about a cause of action then the parties will be precluded from relitigating that cause of action.

Third, issue estoppel. If it is necessary for the final resolution of a dispute to determine an ultimate issue of fact or law then the parties will be precluded from denying a state of fact or law inconsistent with that resolution. Finally, Anshun estoppel (or the extended principle in Henderson v Henderson (1843) 3 Hare 100). This rule was recognised in Henderson and Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589. It is an extension of the second and third rules outlined above. The rule precludes a party from raising a cause of action or an issue in a new proceeding if it was so relevant to the subject matter of the previous, resolved, proceeding that it would have been unreasonable not to have raised it in that resolved proceeding at the time. The High Court determined that the Dubai Ruling did not give rise to res judicata because the Dubai Ruling did not, and could not, determine Ms Clayton’s rights under the Family Law Act. As for estoppel (rules 2, 3 and 4) the High Court observed at [30] that Mr Bant bore the onus of proving it. The High Court considered that Mr Bant failed to prove (or at [31] “did not deign to prove”) that it was unreasonable for Ms Clayton to raise her Family Court claims in the Dubai Court (in order to establish an Anshun estoppel). But, more fundamentally, Mr Bant failed to prove substantial correspondence between Ms Clayton’s Family Court claims and any right that might have been asserted by her and was finally determined in the Dubai Court. The High Court noted at [40] and [56] that the only rights that Ms Clayton could have legally put into issue in the Dubai Court was her entitlement to the deferred dowry and to her share in any real property in Dubai (the Dubai Court having no power to alter their interests in property outside the UAE). As Edelman J observed at [64], the proper characterisation of the Dubai Ruling was that the only claim it resolved was the dissolution of the marriage.

Trespass Admissibility of evidence In Roy v O’Neill [2020] HCA 45 (9 December 2020) the High Court was required to consider whether a police officer was trespassing on private property when he administered a breath test, the results of which were used in evidence against the appellant (Ms Roy).

A Domestic Violence Order (DVO) was issued against Ms Roy out of the Local Court of the Northern Territory of Australia.

The purpose of the DVO was to protect Ms Roy’s partner, Mr Johnson. The DVO restrained Ms Roy from being in the company of Mr Johnson, or at a place where he lived, when she was consuming alcohol. Sometime after the DVO had been issued, Constable Elliott visited Mr Johnson’s home. At the time, the police in the Northern Territory were engaged in a “proactive policing” operation targeting domestic violence. Constable Elliott later gave evidence that he was concerned about Mr Johnson’s welfare. Mr Johnson lived in a unit in a public housing complex.

Constable Elliott entered the complex from the footpath and walked along one of the pathways, shared by the units, to the door of Mr Johnson’s unit. Constable Elliott knocked on the flyscreen door and, looking in, saw Mr Johnson seated on the couch and Ms Roy lying on the floor. Constable Elliott called Ms Roy to the door. As Ms Roy approached the door, she displayed signs of intoxication. Constable Elliott required Ms Roy to provide a breath test and Ms Roy complied. The machine gave a positive reading for alcohol and the results were subsequently used against Ms Roy in proceedings against her for breaching the terms of the DVO. At trial, evidence of the breath test result was objected to. Constable Elliott asserted that when he took the breath sample, he was exercising power under reg 6 of the Domestic and Family Violence Regulations (NT) (Regulations).

Regulation 6 requires a defendant to comply with a reasonable direction by a police officer to submit to a breath test.

For the direction to be reasonable, it is not necessary for the officer to suspect that the defendant has consumed alcohol.

But, importantly, the regulation does not authorise a police officer to enter private property. Section 126(2A) of the Police Administration Act (NT) (Act) though does authorise entry if the officer believes, on reasonable grounds, that a contravention has occurred. The trial judge found that neither the Regulations nor the Act gave Constable Elliott power to attend Mr Johnson’s home to check Ms Roy’s

compliance with the DVO. The decision was overturned by the Court of Appeal of the Northern Territory. And the High Court, in a 3:2 split, upheld the Appeal Court’s decision.

Keifel CJ and Keane and Edelman JJ (the latter two justices in a joint judgment) considered that Constable Elliott was not a trespasser at the time that he administered the breath test.

Their Honours noted at [11] and [66] that to lawfully enter private property permission to enter must first be given by the occupier. And that permission, their Honours observed, can be implied.

Citing Halliday v Nevill (1984) 155 CLR 1, their Honours explained at [14] and [68] that a (revokable) licence to enter will be implied to walk on a path or driveway for the purpose of lawful communication, or delivery, to any person on the property if access is unobstructed and there is no notice, or other indication, that entry is prohibited. Their Honours considered that Constable Elliott lawfully entered onto the private premises because he used an unobstructed pathway to access the property for the lawful purpose of carrying out a welfare check. Keifel CJ at [19] also considered that when Constable Elliott saw Ms Roy in an intoxicated state, he had the requisite belief for the purposes of s126(2A) of the Act to remain on the property and require Ms Roy to provide a breath sample under reg 6 of the Regulations. But Keane and Edelman JJ at [93] thought it unnecessary to decide whether the Act or Regulations applied because it was an undisputed fact that Ms Roy had voluntarily provided a sample of her breath. Bell and Gageler JJ, in dissent, in a joint judgment redolent of the film “The Castle” opined, at [31] that “In the Australian way of thinking, a home is a sanctuary”. Their Honours recognised at [34] that the implied licence can be invoked by a police officer.

But their Honours considered at [40] that a police officer exceeds the limits of that licence if the officer has any conditional or unconditional intention of ordering the occupier to do anything. Their Honours concluded that Constable Elliott was a trespasser because they considered that he intended to take a sample of Ms Roy’s breath when he entered onto the property and, as such, he had exceeded the limits of the implied licence.

Dr Michelle Sharpe is a Victorian barrister practising in general commercial, disciplinary and regulatory law, ph 9225 8722, email msharpe@vicbar.com.au.

The full version of these judgments can be found at www.austlii.edu.au.

53

FAMILY LAW CASE NOTES Craig Nicol and Keleigh Robinson Accredited family law specialists Editor and co-editor of The Family Law Book

Children – Parental capacity not always impacted where concerns held as to a child’s safety in the other parent’s care In Keane [2021] FamCAFC 1 (18 January 2021) the Full Court (Alstergren CJ, McClelland DCJ & Benjamin J) dismissed an appeal from orders made for the care of a 4 year old, where Judge McEvoy found that the father had committed acts of domestic violence towards the mother.

Judge McEvoy ordered that the father spend supervised time with the child, which was to then increase to unsupervised time.

The mother appealed, arguing that the Court had misapplied “the Re Andrews principle” (that the mother’s caregiving capacity would be discernibly impaired by an order that the child have time with the father).

The Full Court said (from [75]):

“ … [A]uthorities applying ‘the Re Andrews principle’ … [have] been expressed in a variety of ways ( … ) [80] Subsequent authorities … confirm that it is an error to assume that, in … every case where a parent is concerned about the safety of a child in the other parent’s care, the court will infer that there is an unacceptable risk that the concerned parent’s parenting capacity will be adversely impacted. ( … ) [81] … [T]he Full Court in Marra [ed. full citation: Marra & Marra (Unreported, Full Court of the Family Court, Fogarty, Baker & Butler JJ, 8 September 1993)] held that not only is it necessary 54 | BRIEF APRIL 2021

for the court to determine whether a parent has a genuine concern about the welfare of the child in the care of the other parent but it is also necessary to determine whether the concerned parent’s parenting capacity will be ‘discernibly impaired’. ( … ) [111] … [A]side from stating that she would be very distressed by such orders, no evidence was placed before the primary judge to assist his Honour in making an assessment of the level of that distress. … [H]is Honour found that the mother would seek appropriate therapy if necessary. … [T]hose findings were … open … on the … evidence … ”

Property – Interim order compelling parties to pay mortgage outgoings set aside – Proximity of the parties’ mediation irrelevant In Fei & Woong [2021] FamCAFC 2 (22 January 2021) Kent J (sitting in the appellate jurisdiction of the Family Court of Australia) allowed an appeal from an interim order made after counsel for the wife made an application for the husband to meet all mortgage payments.

The wife relied upon the husband’s income of $12,396 per week as against the wife’s income of $200 per week. Counsel for the husband contended each party had capital.

The court ordered each party to be equally responsible for all mortgage payments, noting that would entail only “two to three mortgage payments” before mediation.

The wife appealed. Kent J said (from [58]):

“ … [T]he … judge’s reasons … support the wife’s argument that his Honour was guided by irrelevant considerations. … [H] is Honour … highlight[ed] each party’s financial situations in six paragraphs … [T]hereafter … is the only reference in his Honour’s reasons which could be … a consideration of the balance of convenience. ( … ) [60] … [H]is Honour was focussed more on … settlement than the consideration of the application on its merits.

That view is fortified by his Honour’s reference to there only being an approximate two to three mortgage payments before the mediation, which … when coupled with the … implication of his Honour’s reasons that the parties ought reach settlement at … mediation, highlights his Honour’s error. ( … ) [63] It was the … judge’s obligation to consider the relevant law and … take into account only those considerations relevant to its proper exercise. It is not relevant … whether the … judge considered the parties should reach settlement at … mediation ( … ) [66] … [T]he wife sought to engage the jurisdiction of the court to grant injunctive relief to preserve capital … . The court was obliged to apply the applicable principles to that application. … The … judge made a … mandatory injunction which order could only be founded upon the power … under s 114. … [T]he authorities do not support any proposition … that it is legitimate to impose an injunction for the … purpose of exerting … pressure … to compromise the party’s … claim.”

Property – Wife appointed codirector of corporate trustees to neutralise debate as to disclosure In Hui & Bai [2021] FamCA 6 (20 January 2021) Hartnett J allowed a wife’s interim application to be made co-director of entities, of which the husband was sole director, which owned commercial buildings in its capacity as trustee. One building was worth $45 million, encumbered by a $17 million mortgage; the wife also being party to a $46.5 million personal guarantee to the ANZ bank.

The husband had been sole director of the companies for 13 years.

The wife sought to be made a co-director as she alleged the husband had not made full and frank disclosure and she contended the husband had entered into dealings without prior notice, which impacted upon her claim.

New Members

The Court said (from [44]):

“ … [T]he respondent would be afforded necessary transparency if she were to be appointed as a co-director of the entities … the respondent will be able to have input into commercial decisions made by the applicant solely, or in conjunction with (the property manager) … that may directly impact the value to be attributed to the entities. The Court notes that the evidence before it … is that the appointment of the respondent as a co-director will have no adverse impact on the credit and guarantee structure of the existing facilities…. The Respondent’s exposure as a guarantor to a significant sum … also makes the need for transparency to be more pressing. …

[45] Full and frank disclosure is an ongoing obligation for each of the parties …. Significant disclosure has already been

provided by the applicant to the respondent. ( … ) Now that the respondent’s position is enhanced by an order which shall see her appointed as a co-director of those of the parties’ entities …, the debate as to what constitutes proper disclosure , and claim that it has been inadequate, should no longer be an issue. In those instances where matters remain outstanding as between the parties, they are required to act in accordance with their ongoing obligations.”

Craig Nicol is the editor of The Family Law Book and Keleigh Robinson, co-editor. They are accredited (in Qld and Vic respectively) as specialists in family law.

The Family Law Book is a one-volume, loose-leaf and online subscription service: thefamilylawbook.com.au.

New members joining the Law Society (March 2021)

Associate Membership

Miss Harley Gardiner Curtin University

Miss Isme Stubbs Herbert Smith Freehills

Miss Laura Abbott The University of Western Australia

Miss Louisa Gardner The University of Western Australia

Miss Priya Sutharshan Curtin University

Mr Shabbir Ali

Mr Timothy Hebbard The University of Western Australia

Ms Kate Thresher Herbert Smith Freehills

Ms Alice Hewitt Commonwealth Director of Public Prosecutions

Mrs May Ven Puno Kennedys (Australasia) Pty Ltd

Mr Elliot Holland The University of Western Australia

Miss Tayor Watson Allens

Miss Tara Innes Murdoch University

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Mr Daniel Jones Murdoch University

Ms Natasha Waugh

Mr Jonathon Allard University of Notre Dame Australia Miss Maddy Barrett The University of Western Australia Mrs Kate Basta-Zima Curtin University Ms Kristy Briggs Deakin University Ms Tayla Byatt Herbert Smith Freehills Miss Cassandra Chu-Yu-Chee Allens Mr Liam Collis Butlers Lawyers & Notaries Miss Matilda Cooper University of Notre Dame Australia Miss Alana Cristinelli The University of Western Australia Mr Alex Crowhurst Murdoch University Dr Dominic Dagbanja The University of Western Australia Miss Olivia de Koning Herbert Smith Freehills Ms Tanya De Souza-Meally Curtin University Mr Matt Delmenico The University of Western Australia Mr Mark Donaldson The University of Western Australia

Ms Julie Larnach Clifford Chance (Sydney) Miss Eleanor Lau Herbert Smith Freehills Miss Ana Marija Dusmanoska Curtin University Miss Chloe Martinez Curtin University Mr Jesse Martino Herbert Smith Freehills Portia McDonald Herbert Smith Freehills

Mr John Whinnen Kott Gunning Lawyers Ms Hannah Wilcock Curtin University

Ordinary Membership Ms Rachel Gopal Jackson McDonald

Restricted Practitioner Year 1 Ms Sharon Conley BNT Legal Pty Ltd Mrs Niss Gonaduwage

Ms Paris McNeil Curtin University

Miss Jessica Kelly King & Wood Mallesons

Miss Courtney McVeigh The University of Western Australia

Mr Albert Kunneke Hammond Legal - Albany

Miss Julia Meachem Curtin University

Ms Myra Raghi CGL Legal

Miss Christina Peththa Yaddehige Miss Elizabeth Pinakis

Restricted Practitioner Year 2

Mr Brodie Dyer Murdoch University - School of Law

Ms Genevieve Rose Allens

Miss Rachel Eaton State Solicitor’s Office

Mr Sean Frewin Herbert Smith Freehills

Mr Peter Rutherford Murdoch University

Mr Farid Popal Dana K Legal

Ms Ellen Frodsham Herbert Smith Freehills

Mr Joseph Sabbagh Herbert Smith Freehills

Ms Bonnie Whyte Kott Gunning Lawyers

Miss Manvita Gandhi The University of Western Australia

Mr Hugo Shervington AGH Law

55

Supreme Court Open Day – Heritage Perth Weekend 2021

By Jamie Freestone, Supreme Court of Western Australia

If the walls of the Supreme Court could talk, they would certainly have many a tale to tell. From WA’s first murder convictions to the trial of serial killer Eric Edgar Cooke, the Supreme Court in Stirling Gardens, which opened in 1903, has played host to some of the State’s most significant and high profile criminal and civil cases.

Now, almost 120 years after it opened, the public has a rare chance to get a better insight into how justice is served in WA’s highest court.

The building will throw open its doors on Sunday, April 18 as part of Heritage Perth Weekend 2021.

It will be among dozens of iconic heritage buildings around Perth that will be open to the public between 16-18 April.

A popular feature of the Supreme Court Open Day is a tour of the cells. It gives visitors a behind-the-scenes look as 56 | BRIEF APRIL 2021

they walk down the same stairs where sentenced prisoners have made their way to custody since 1903.

In a self-guided tour, visitors will learn about historic cases; see how prisoners were once transported to the Court in the “Black Maria”; and discover how women became entitled to practise law in Western Australia.

There will be hands-on activities including a fun quiz challenge for children as they make their way through the historic building. They will learn about WA’s first

Chief Justice and see his correspondence box; see the Court’s stained glass window “Lady Justice”; and learn interesting facts about the first jury trial.

A photofit exhibit tendered during the 1983 trial of the Mickelberg brothers over the Perth Mint swindle is also sure to be a crowd favourite. It was used by a police artist to help witnesses put together a facial composite picture. Visitors will be able to try their hand at making their own photofit.

The Supreme Court building is an example of Federation Academic Classical architecture. It was designed by WA’s then Chief Architect, John Grainger, and cost £65,000. When it opened, the Court had four judges. The building has been classified by the National Trust of Australia and entered on the Heritage Council of WA’s Register of Heritage Places and the Register of the National Estate.

Court 1 is the primary home of the Court of Appeal. When the building opened, Court 1 was a jury court and the original jury box remains.

These days, Court 2 is the only criminal jury trial courtroom in the building. It has been substantially restored, but the judicial and associate benches are original.

This year, for the first time, Open Day will feature a restricted access display with haunting real audio from Cooke’s evidence at his 1963 trial as well as historic photos.

Court 3 was once the Bankruptcy Court and is now used by the Court of Appeal.

Its fireplaces had been closed, but have now been restored.

Judges, registrars and staff will be on hand to answer questions about the rule of law and how the justice system works. Visitors will also be able to learn about probate and the important function performed by the Court’s mediators in resolving disputes.

Over the years, the Supreme Court has featured in several documentaries and television series including scenes in the ABC drama The Heights. The Court also turned into a movie set for a miniseries about the “night caller”, Eric Edgar Cooke, who was the last person to be hanged in WA after he was convicted of murder.

This year, 40 criminal trials involving 44 accused and approximately 40 civil trials are listed at the Supreme Court in Perth. A further seven criminal trials will be held on circuit in Karratha, Kalgoorlie, South Hedland and Geraldton.

The Court also handles more than 7,500 applications relating to deceased estates each year.

Approximately 15,000 members of the public are required to attend WA Courts for jury service each year.

Open Day visitors, including children, will be invited to discover more about jury duty and have the opportunity to participate in a mock jury selection process in a courtroom with a judge presiding.

“The Supreme Court Open Day is a perfect opportunity for visitors to get a better understanding of Western Australia’s justice system while appreciating one of the State’s most prominent heritage buildings,” Chief Justice Peter Quinlan said.

“It also provides a rare insight into several noteworthy cases that have gone before the Court.”

The Supreme Court in Stirling Gardens will be open 11am to 3pm – Sunday, April 18. Entry is free.

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The Tale of The Shattered Skiff

By John McKechnie QC

Agnes Irving was the apple of her father’s eye.

Agnes Irving was the apple of her father’s eye.

Clark Irving, for that was he, was a successful merchant and grazier in the rich Armidale region of New South Wales in the mid 19th century. Among his many achievements, he was a founder of the Clarence and Richmond River Steam Navigation Company.

Now one thing essential to a steam navigation company is an actual steam ship. In 1862 Mr Irving travelled to England to oversee and take delivery of a paddle steamer – 203-foot-long displacing 440 tons. He was away so long that his seat in Parliament was vacated (he was re-elected) but on the 28th of November 1862 the Agnes Irving as he had named it, arrived in Brisbane and almost immediately was set to work trading along the coast and up the inland rivers.

Now a ship needs a captain and the Agnes Irving had many, but the one who features in this tale is Captain Frederick Bracegirdle. Born in Surrey in 1831, on his death in 1916 he was described as one of the oldest and most distinguished ship masters of Sydney.

The Agnes Irving under the command of Captain Bracegirdle was affected by the ebbing tide and instead of coming neatly alongside, slewed and steamed straight into the punt crushing it against the skiff ‘which broke into atoms’.

At the subsequent trial in the District Court at Grafton, Mr McKenzie told the jury that in his opinion if the skiff had not been there, nothing would have happened!

Captain Bracegirdle, who was in command, said that as far as he was concerned, the punt was at fault. He often had to move the punt and no one who knew anything about boats would leave it there.

A man of firm opinion one surmises. He continued.

Even if he had not stopped at the wharf and gone straight past, the wash from the Agnes Irving would have driven the punt against the skiff anyway.

This line of defence did not find favour in the full court on an appeal against the judge’s decision not to non suit the plaintiff Mr Streather.

(As a small digression, his son Leighton Bracegirdle had a distinguished naval career retiring as a rear admiral after serving for many years as official secretary to the Governor General.)

In the court’s decision, it was quite lawful for the Plaintiff to put his boat there and the Defendant had no right to expect it to go out of the way of their steamer.

Back to Frederick – he doesn’t seem to have been the type of man you could call Fred. After many years sailing the seven seas perhaps seeking a more domestic life, in 1869 he joined the Clarence and Richmond river company. When he retired 15 years later, Captain Bracegirdle had by then completed 658 voyages to the northern rivers.

The court held there was sufficient evidence of negligence to put before a jury.

It was on one of these voyages that the skiff shattered.

It happened this way. Bill Arkins had charge of Mr Streather’s light skiff and tied it to Ross’s wharf next to the main wharf at Grafton, while he went for his dinner. On his return, seeing the Agnes Irving approaching, he moved the skiff and moored it between a punt or lighter and the shore.

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And so presumably, Mr Streather got a new skiff.

The Agnes Irving continued in service for another two years when just after Christmas it was wrecked at the mouth of the McKay river. Captain Bracegirdle was not aboard. No lives were lost. Divers can still explore what remains of the paddle steamer.

After leaving the Clarence and Richmond Rivers company Captain Bracegirdle served as assistant harbour master in Sydney for 20 years.

(Adapted from Streather v Clarence and Richmond Rivers Steam Navigation Company Pty Ltd (1887) Knox’s Reports 453)

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An attitude of cooperation Gino Dal Pont Professor, Faculty of Law, University of Tasmania Ethics Column

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Human nature dictates that lawyers are unlikely to welcome client complaints.

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However, being candid and cooperative with the complaint investigator is not only professional but can avoid undue time and cost at a later stage.

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Hence, when advising a lawyer against whom a complaint has been made, his or her legal representative is duty bound to recommend candour and cooperation.

A lawyer’s initial reaction to a “please explain” letter from the Legal Profession Complaints Committee arising out of a complaint is unlikely to be favourable. After all, statistics reveal that only a relatively small percentage of complaints have merit;1 also, for a busy lawyer, responding in detail to a complaint takes time and effort, for which he or she cannot charge. There may also be a tendency to view the Complaints Committee as an inquisitor.

Lawyers who evince negative attitudes to inquiries arising out of complaints, or who give a low priority to responding to those inquiries, litter disciplinary determinations at both tribunal and court level. These speak of the importance of expeditiously responding to complaint inquiries from, and in being entirely frank with communications with, the Complaints Committee, and that failing to respond or corresponding so as to mislead may be misconduct.2 The duty to respond to inquiries from the Complaints Committee, and to do so promptly and candidly, can be justified by reference to the lawyer’s duty as an officer of the court; the Complaints Committee, in this sense, can be seen as statutorily appointed to perform an aspect of the court’s disciplinary (“protective”) function.3 Beyond what is statutorily required of a lawyer for this purpose, the case law suggests that lawyers are obliged to assist an inquiry into their own professional conduct,4 being a duty “to cooperate reasonably in the process”. To this end, the Full New South Wales Supreme Court in Re Veron6 emphasised that the inquiry should not be viewed as if the Complaints Committee “was a prosecutor in a criminal cause or as if we were engaged on a trial of civil issues”, in which the lawyer “engage[s] in a battle of tactics”.

The foregoing does not mean that the lawyer must actively disregard his or her own interests in responding to the inquiry. Natural justice must, in any case, be accorded.

What it does reflect is that because the lawyer will often have a better knowledge and understanding of the matter the subject of the complaint than the complainant, an investigator relies heavily on the lawyer’s cooperation and candour.7 The lawyer the subject of inquiry should also recall that a perceived attitude of disdain and non-cooperation is unlikely to receive favour in any subsequent disciplinary finding, especially if the investigation reveals other misconduct.

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On occasion, lawyers have attempted to “short circuit” the disciplinary investigation by pressuring the complainant into retracting the complaint. Although a lawyer may be justified in viewing the complaint as vexatious or unsubstantiated, any such attempt treads very dangerous ground. The policy behind the protective function accorded to the Complaints Committee in pursuing the disciplinary process is one of independence and transparency. However annoying the task of responding to a complaint, lawyers who “take the law into their own hands” by pressuring a complainant, aside from risking a finding of misconduct, undermine the role and value of the complaints and investigation process.

It follows from the foregoing that a lawyer (A) engaged to act on behalf of a lawyer (B) who is the subject of the complaint is duty bound to advise B of the obligation to cooperate and assist reasonably with the investigation of the complaint. It also follows that neither A or B should correspond with the complainant in a way that could be construed as pressuring for the withdrawal of the complaint.

Mullins J, sitting as the Queensland Legal Practice Tribunal in Legal Services Commissioner v O’Connor,8 took the opportunity of addressing this point. There the respondent, who was advising a solicitor the subject of a complaint, orchestrated the sending of a letter to the complainant alleging that the complaint was defamatory, and requesting an apology and retraction of the allegations. Her Honour held that, beyond undermining the statutorily prescribed process for protecting the public and the profession, sending the letter breached the respondent’s professional duty to the solicitor-client to advise cooperation and, in so doing, the respondent’s duty to uphold the law. The respondent was found to have engaged in unsatisfactory professional conduct, saved from a finding of professional misconduct (and a disciplinary sanction more severe than a reprimand) by the fact that he had formed his opinion about the nature of the complaint bona fide.

Of course, it is preferable to avoid complaints in the first instance. Prudent lawyers will therefore pay particular heed to client dissatisfaction and ensure open lines of communication with their clients.

Endnotes 1 2 3 4 5 6 7 8

See T Sklar, Y Taouk, D Studdert, M Spittal, R Paterson and M Bismark, “Characteristics of Lawyers who are Subject to Complaints and Misconduct Findings” (2019) 16(2) J Emp Stud 318.

See, for example, Kerin v Legal Practitioners Complaints Committee (1996) 67 SASR 149.

New South Wales Bar Association v Thomas (CA(NSW), 9 May 1989, unreported), at 19.

Johns v Law Society of New South Wales [1982] 2 NSWLR 1 at 6 per Moffitt P. Council of the Queensland Law Society Inc v Whitman [2003] QCA 438 at [36] per de Jersey CJ. (1966) 84 WN (Pt 1) (NSW) 136 at 141–2.

Law Society of South Australia v Jordan (FC(SA), 21 August 1998, unreported) at 46 per Doyle CJ. [2006] LPT 1.

Law Council Update

Time for a Government Response to Pathways to Justice Report The Law Council of Australia believes it is time for the Australian Government to take the lead in responding to the Australian Law Reform Commission’s (ALRC) Pathways to Justice–Inquiry into the Incarceration Rate of Aboriginal and Torres Strait Islander Peoples Report.

It has been three years since the Report was tabled and still statistics, showing the disproportionate incarceration of Aboriginal and Torres Strait Islander peoples, continue to be alarming despite the majority of Aboriginal and Torres Strait Islander people never committing a criminal offence.

The ALRC emphasised in 2018 that over-representation in the prison population is a fundamental, persistent, and national problem, with Aboriginal and Torres Strait Islander people making up about three per cent of the population but almost 30 per cent of the adult prisoner population.

Comprehensive action is needed to avoid repeating past mistakes and instigating future inquiries that investigate the same issues, but to act on the recommendations and conclusions reached.

In this context, recently proposed ‘youth justice reforms’ in the Northern Territory are counter-productive and troubling. They include the automatic revocation of bail. This clearly goes against recommendations by the Royal Commission into the Detention and Protection of Children in the Northern Territory that a child should be denied bail very rarely, and detention should be a last resort. This Royal Commission cost taxpayers well upwards of $50 million dollars.

Automatically placing young people into remand, and electronically monitoring them on the basis of a mere allegation they have committed a crime has no basis as a necessary or proportionate response to addressing crime.

On an average day, 96 per cent of young people in unsentenced detention in the Northern Territory are Indigenous. A national approach is urgently needed to implement key recommendations from the ALRC around the provision of more diversion, support and rehabilitation programs before, during and after incarceration.

While the Law Council welcomes the move toward adopting Closing the Gap justice targets, more action is needed.

A Government response to the ALRC report has the potential to offer national leadership and support effective solutions.

Law Council Supporting RRR Communities The launch of the Law Council of Australia’s Rural, Regional and Remote (RRR) National Strategic Plan 2021-2023, heralds the profession’s reinvigorated commitment to RRR lawyers.

Speaking at the Cooma Court House, Law Council President Dr Jacoba Brasch QC said while close to 30 per cent of Australians live in RRR areas, only 10.5 per cent of the country’s solicitors practise outside an urban centre, limiting the options for those needing legal services.

“RRR communities are diverse and dynamic, and the kinds of legal needs experienced within vary substantially, from water rights allocation, to environment and planning restrictions, to farm succession planning, and laws which have special relevance to First Nations people,” Dr Brasch said.

“Access to justice is undermined when there is a critical shortage of suitable legal representation in particular regions.”

are ineligible for publicly funded legal assistance and emergencies also exacerbate existing legal problems and directly trigger others, including in relation to credit, debt or insurance.”

“But there is a clear disparity between remote and urban justice, which means people in difficulties living in RRR communities are missing out.”

“The COVID-19 pandemic has no doubt exacerbated access to justice for RRR communities, with court hearings cancelled, difficulties in travelling to obtain legal services or attend court was made significantly more difficult or even impossible by few flights and state and territory border closures,” Dr Brasch said.

The Law Council’s National Strategic Plan focuses on five key areas for action which include building awareness, recruitment, retention and succession of lawyers, technology, and the promotion of RRR legal practice in education and advocacy.

“There is no doubt that the profession’s increased experience using technology because of COVID-19 has created opportunities for the delivery of legal services in RRR areas,” Dr Brasch said.

“But we must remember to also address issues faced by people experiencing disadvantage who may, for a variety of reasons, experience difficulties in adapting to on-line legal service delivery.”

“For too long, there has been too little regional engagement in law and policy development, which has meant that laws and policies have become ‘urban centric’ and drafted with little consideration to their application in RRR communities. That is what the National Strategic Plan is addressing,” Dr Brasch said.

“Many RRR communities are particularly vulnerable to cycles of natural disaster, such as fires, drought.

Emergencies generate particular areas of legal need for people who

61

This obituary was first published in The West Australian on 25 February 2021 and permission has been granted to republish in Brief.

Vale John Gilmour QC Picture: Angela Barnsley/Edan Photography

Travelling along Asian roads, John Gilmour heard of trouble ahead. The situation called for swift judgment.

Years after becoming a Federal Court judge in Perth, he could claim that call as one of his best.

Visiting India and Pakistan had been in his plans before leaving home in Scotland, even though he knew tense relations between the two nations had flared into war since they won their independence.

At this point, however, he exercised caution rather than valour.

He switched his compass to Australia, even though — as a keen rugby man — it was New Zealand, not this country, on his initial itinerary. In late 1975 he ended up in Perth, liked what he saw and stayed.

With three years of practice in Scotland under his belt, Gilmour soon got a job.

Attention to detail, combined with a warm personality, made him an asset to many firms and comfort to many clients.

He made friends easily and, as a judge, held fairness high as his banner.

His funeral on February 11 saw St George’s Cathedral as packed as pandemic restrictions allowed. A wide-ranging eulogy by a friend and fellow lawyer, Chris Humphry, included praise of the man’s “imposing presence, gentle intensity, dignity and humility, and an innate sense of goodness and strength, drawn largely from unshakable faith in Christ and his love for his wife, Marcia, and family.”

John and Marcia (nee Weller) married in 1978.

At 30, the busy lawyer rocked the boat, deciding to avoid working at weekends.

A keen family man and kayaker who competed in five Avon Descents, he told an interviewer: “When Mondays came around, I normally felt recharged and ready to start again.” This revelation was part of a discussion on mental health within his profession, tying in with Mental Health Week 2019.

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Showing a broad view of what lawyers need to consider in life, John recommended they “have external interests, including some which bring help to others less fortunate, to keep physically fit and maintain good friendships”.

His compassion for those “less fortunate” had impressed colleagues and was mentioned in a farewell tribute by the Chief Justice, James Allsop, when John stood down from the bench in February 2018. Much of the comment during the ceremony related to formal connections and contributions, but there was this too: “Whether it was your guitar playing, your composing of a song for Marcia on an anniversary, holding concerts at your home to raise money for the orphanage in Cambodia you support, you included your colleagues in your life and they in yours.”

Such was the accompaniment to a professional life that had attracted him even in boyhood.

In that interview on mental health two years ago, he revealed that he had, at 11, the ambition to become an advocate, as Scottish barristers are known. Family mealtimes were opportunities for often passionate debate.

John was born in Arbroath, eastern Scotland, on October 8, 1951, the fourth of five children of Frances (nee Drake) and John Gilmour. The son attended high school and university in Dundee, and then worked as a lawyer. Seeking horizons beyond the office, he took six months leave to travel.

In Perth, the accidental destination, his career prospered. After three years with the firm of E.M. Heenan, he was offered a partnership. In 1981 he established his own firm, where he was joined by Bob

Richardson. The firm thrived, doing mainly litigation work, although John’s first interest was advocacy. In 1989 he joined the bar, becoming a Queen’s Counsel in 1994.

After a successful career appearing in commercial disputes in WA and Victoria, in 2006 he was appointed a Federal Court judge, where he presided until 2018. The Supreme Courts of the ACT and Norfolk Island also benefited from his calm wisdom. Over the last three years he returned to the bar, working on international arbitrations, and in 2019 as a commissioner in a Papua New Guinea inquiry into commercial investments by government officials. Humphry’s eulogy noted that John completed his last case, a five-week arbitration conducted largely online across various countries and time zones, less than two months ago.

The current Chief Justice of WA, Peter Quinlan, describes Gilmour — before whom he has appeared as counsel — as a “model of judicial behaviour”.

The president of the WA Bar, Martin Cuerden, recalls with pride a “true gentleman and consummate advocate”.

John’s profound faith, as well as care from his family and medical technology, buoyed him during bouts of cancer, treated successfully but eventually proving fatal.

John Gilmour died on February 6, survived by Marcia, their daughters Tracy Hartley, Kathryn Bekker and Emily, sons Nic and Joshua; son-in-law Steve Bekker, daughters-in-law Verity and Emma, 11 grandchildren; and John’s sisters Matti Ferguson, Adrienne Hunt and Fran Aitken and brother, David.

Another eulogy, by Ken Clarke, concentrated on the importance of John’s faith to his spiritual and professional life but also recalled his practical side.

He had helped lay concrete at Ken’s new home. How appropriate, since strong foundations, in key ways, were John’s priorities in law and in life.

Professional Announcements Fourth Floor Chambers Konrad de Kerloy will be retiring as a partner of Herbert Smith Freehills and will commence practice as a barrister at Fourth Floor Chambers on 3 May 2021.

Konrad’s contact details at Fourth Floor Chambers are: Direct line: (08) 6217 4702 Mobile: 0419 767 552 Email: konrad@fourthfloor.com.au Konrad practices in all areas of commercial law, insolvency law, planning and valuation law, judicial review and tort.

Dwyer Durack With 2021 now well underway, Dwyer Durack are delighted to recognise a number of key practitioners who joined the firm in late 2020 and bring with them a wealth of knowledge and experience.

Chad Heslop Chad Heslop joined Dwyer Durack on 2 November 2020 and was appointed as the Head of the Family Law Department and has experience in representing married and defacto clients Chad Heslop in complex financial and children’s matters, including the enforcements of international orders and matters relating to international child-abduction and also has keen interest in Restraining Orders matters.

Chad is passionate about Family Law and places a great emphasis on building relationships with both his clients and his team in order to achieve the best possible outcomes in the circumstances for his clients.

Sebastian Sweeney Sebastian joined Dwyer Durack’s Family & De Facto Law Department in September 2020 and has practiced exclusively in the area of Family Law since his admission in 2018.

Sebastian has experience in Sebastian Sweeney a wide variety of family law matters, including property settlement, parenting arrangements and applications for divorce.

In his daily practice, Sebastian is focused on delivering clear advice to enable his clients to make well-informed decisions regarding their matter.

Beverley Sorrell Beverley joined Dwyer Durack’s Wills, Probate and Estates Department in November 2020 and practices in wills and estate planning, probate and administration of estates, inheritance claims and estate disputes.

She also acts on behalf of clients in guardianship and administration matters in the State Administrative Tribunal.

Beverley prides herself in providing an exceptional client service and is focused on assisting clients reach a cost effective stress free resolution. Beverley has a special interest in utilising collaborative practice as a form of dispute resolution focusing on the clients’ needs to achieve better outcomes.

Alec Weston Alec joined Dwyer Durack as a Senior Lawyer in the General Litigation team on 16 November 2020 and practices primarily in the liquor licensing space and has over a decade Alec Weston of experience assisting licensees and potential licensees with all aspects of liquor licensing in Western Australia. Alec also has experience in employment law where he has predominantly acted for employers defending unfair dismissal and adverse action claims.

Panetta McGrath Lawyers and O’Sullivan Partners Panetta McGrath Lawyers and O’Sullivan Partners have joined forces Perth based law firms, Panetta McGrath Lawyers and O’Sullivan Partners have combined operations. Founded in 2002, O’Sullivan Partners, led by Colin O’Sullivan and Leanne Bishop, has significant insurance law and litigation experience. They are recognised as leading defendant motor vehicle personal injury insurance lawyers.

Colin O’Sullivan and Leanne Bishop, along with their legal and support team, joined Panetta McGrath Lawyers on 1 April 2021.

Perth City Legal Perth City Legal is pleased to welcome its two new Directors, Carl Messina and Matthew Webster. Carl and Matt have experience in plaintiff and defendant litigation. The cross practice experience gives them a unique insight into both sides of personal injury litigation. Both Carl and Matt are highly respected members of the legal profession for their integrity and expertise.

Carl and Matt would like to thank the outgoing Director, Denise Chesworth for her support and mentoring and wish her well as she takes her place at the WA Bar later in the year.

Carl Messina

Matthew Webster

Beverley Sorrell Denise Chesworth

Classifieds Missing Will Mr Rocco Rossi, late of 42 Whatley Crescent, Mt Lawley, WA 6050, born 15 July 1942, died on 13 November 2020. Would anyone holding or knowing the whereabouts of Mr Rossi’s will or other testamentary document, please contact Bruce Havilah of Havilah Legal.

Telephone: (08) 9221 2339 Email : admin@havilahlegal.com.au

For advertising opportunities in Brief please contact: Madeleine McErlain Manager, Corporate Communications T: (08) 9324 8650 E: advertising@lawsocietywa.asn.au 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

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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.