Brief October Edition by The Law Society of Western Australia

VOLUME 48

NUMBER 5

OCTOBER 2021

Special Feature:

Are We OK?

A Deeper Look Into Mental Health in the Legal Profession

Also inside ... Change the Culture is Here

Equitable Briefing Policy Update

Addressing Sexual Harassment in the Legal Profession

Collaborative Legally Assisted Culturally Diverse Mediation

Young Lawyers Committee

Tax and Trust Matters

Golden Gavel Wrap Up Articles and Interviews for Young Lawyers, by Young Lawyers

Shaping Legal Minds

IN T RODUCING

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Volume 48 | Number 5 | October 2021

CONTENTS

are

OK?

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ARTICLES Are We OK? Staying Mentally Healthy in the Legal Profession

Event Wrap-up: Practical Advocacy Weekend

Change the Culture is Here: Addressing Sexual Harassment in the Legal Profession

Legally Assisted Culturally Diverse Mediation in a Collaborative Setting - a Practitioner’s Experience

Book Review: Jungle Law

Respect: A Report on the What’s Our Story Event

YLC Golden Gavel Wrap-up

YLC Case ‘Nopes’

The Sword of Damocles: Provenance of a Phrase

YLC Straight to Bar

Aunt Prudence Juris

Equitable Briefing Policy Update

Taxing Matters: Part IVC Objection Proceedings

Shaping Legal Minds: Closing Address to Qld Symposium by The Hon Susan Kiefel AC

30 31

A Matter of Trust: Do Gift and Loan Back Schemes Work?

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

Editor: Jason MacLaurin SC Editorial Committee: Gregory Boyle, Thomas Camp, Dianne Caruso, Megan Cramp, Patricia Femia, The Hon John McKechnie QC, Dr Pat Saraceni, Robert Sceales, 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

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

President’s Report

Member Privileges

Editor’s Opinion

Quirky Cases

Ethics Column

Cartoon

WA Case Notes

Law Council Update

High Court Judgments

New Members

Federal Court Judgments

Professional Announcements

Family Law Case Notes

Classifieds

President: Jocelyne Boujos Senior Vice President: Rebecca Lee Junior Vice President & Treasurer: Shayla Strapps Immediate Past President: Nicholas van Hattem 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 Junior Members: Thomas Camp, Selina Gates, Lea Hiltenkamp Country Member: Melita Medcalf Chief Executive Officer: David Price

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

Welcome to the October edition of Brief. WA Mental Health Week 2021 Every year, both RU OK? Day (9 September) and WA Mental Health Week (9-16 October) remind us of the importance of mental health and wellbeing and the need to reach out and provide assistance to, and seek support from, our colleagues, family and friends. We all experience life’s ups and downs, but some may be struggling and not know how to reach out for help. Your genuine support can make a difference whatever they are facing, big or small. I would therefore like to encourage everyone to reach out to someone they think may be troubled. It’s not always easy to have these conversations, but it could change a life. The COVID-19 pandemic has impacted us all, in both our personal and professional lives. Never has it been more important to be mindful of mental health and wellbeing as the boundaries between work and home are increasingly blurred, and new challenges arise, to create distance between work and non-work activities. The Law Society brings together a strong community of supportive professionals to whom you can reach out. There are effective strategies for mindfulness and stress management that can be explored in the Law Society’s Continuing Professional Development programme or by visiting our website. We also provide our LawCare WA health and wellbeing service for members, which includes an assistance programme and free counselling sessions. Important Note: This October edition includes a mental health and wellbeing special feature, which provides not only helpful advice and tools for creating a positive work and life balance, but also provides some entertaining reading that will inspire you. A good read not to be missed!

Elections for 2021 Law Society Council The Council of the Law Society plays a pivotal role and sets the strategic direction of the Law Society, and, with the guidance and recommendations of the Law Society’s committees, acts as the voice of the legal profession through submissions and regular liaison with government, the courts and other stakeholders.

I believe it is essential that the Council of the Law Society continues to be representative of our membership: solicitors from small, medium and large firms, sole practitioners, and barristers who all practice in the many diverse areas of law. Voting will open on Wednesday, 27 October, with ballot papers transmitted to eligible members electronically by independent voting services organisation CorpVote. Ballots will close at 3.00pm WST on Wednesday, 10 November. I strongly encourage all eligible members to engage with the voting process. Please look out for further information on the Council elections in the coming weeks.

Law Society Committees 2021 is also a biennial review for the Society’s Committees (a ‘spill’), as you would have no doubt seen in Friday Facts. I thank all members who have expressed their interest to remain on a committee and am I excited that Expressions of Interest have been received from new members who are interested in getting involved in the important policy work that the Society undertakes. Committee membership is an opportunity to contribute to improving the laws of Western Australia and the administration of justice, and can be immensely rewarding. It is also a great way to connect with your colleagues in your practice area in a friendly professional environment.

Law Society Annual General Meeting The Law Society’s Annual General Meeting will be held on Thursday, 18 November 2021 at 5.15pm on Level 26, QV1 Building, 250 St Georges Terrace – the offices of Herbert Smith Freehills. Please mark this in your calendars, and I look forward to seeing as many members as possible there for our meeting, followed by drinks and refreshments. I wish you all a safe and happy month of October, and as always, would love to hear from you, our members. Please contact either me directly, any other member of the Executive or the Law Society’s Chief Executive Officer, to share with us your ideas, feedback and concerns.

End of Year Celebration – Book Now The Law Society’s annual End of Year Celebration is fast approaching! The event will be held on Friday, 3 December 2021, from 5.30pm to 7.30pm at the Anzac Club on the stunning rooftop balcony overlooking the Terrace.

The End of Year Celebration is always a Our members come from our broad and diverse fantastic evening, so I encourage you to book legal profession in Western Australia, and so now on our website to secure your place.

2 | BRIEF OCTOBER 2021

Congratulations I warmly congratulate Kendra Turner who has won the 2021 Australian Young Lawyer Award, commended for her outstanding contribution to the legal profession through her work to promote diversity and inclusion both within and outside her workplace. Earlier this year, Kendra was also named winner of the Law Society of Western Australia’s 2021 Junior Lawyer of the Year Award as well as the Women Lawyers of Western Australia Junior Woman Lawyer of the Year Award for her continuous and outstanding contributions to the profession and the community. We are delighted and proud Kendra has received this significant accolade for her outstanding contribution, and thank the Law Society’s Young Lawyers Committee for the nomination.

Advocacy Update Since the last edition of Brief, the Society has continued to advocate for important law reform to enhance the business of the legal profession, improve access to justice and benefit the Western Australian community. The Uniform Law Bills remain referred to the Standing Committee on Uniform Legislation and Statutes Review, hopefully by the time this issue of Brief is published the Committee will have reported. The Administration Amendment Bill 2021 (Bill) (to increase the statutory legacy and so bring WA into line with other States after decades of inertia) has passed the lower house and is now in the Upper, which while encouraging is as far as the Bill went in the last session of Parliament. Since the last issue, the Law Society has also made numerous submissions and provided comment on various issues directly to decision makers and stakeholders including: Provisional Assessments by Taxing Officers Electronic Mortgages Model Provisions for Enduring Powers of Attorney Construction of a Mandatory Reporting Requirement for Lawyers (Victorian consultation) Update on the Aboriginal Cultural Heritage Bill Nominations to the Legal Costs Committee Information Sharing in the Children’s Court LCA revised Death Penalty Statement The Society is also very busy preparing a submission on the draft Workers Compensation legislation and the Law Reform Commission’s review of the Equal Opportunity Act 1984 (WA).

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

This edition contains a special Mental Health and Wellbeing segment, in recognition of Mental Health Week (9 – 16 October). It features an engaging, and inspiring foreword, “A Science Fiction Reader’s Guide to Mental Wellbeing” by former High Court Chief Justice the Hon Robert French AC. Brief is all the more grateful for the foreword, as it was actually the result of misinformation (fake news, if you like) on Brief’s part. Other feature articles are Catherine Stokes on how to create safe work environments, and an article on one of [insert preferred noun/pronoun]’s best friends, Winston the Labrador’s heartwarming contribution to helping witnesses, victims and others at the Courts. We have profiles on lawyers with interesting pursuits: including an international underwater hockey player, volunteer firefighter, female footy player drafted by the Dockers, musicians and writers, and in an area dear to the Editor’s heart, a wrestling ring announcer, who hopefully stays in kayfabe1 (Editor’s word of the month, and one not entirely inapplicable to practice of the law). A focus on mental health and wellbeing is always timely. And a focus on such issues generally is particularly timely, given some of the unlovelier outcomes of the COVID pandemic. The law played a central role in the broader issues surrounding the COVID response, which results in angst and occasionally anger: the question of freedoms, rights, duties, individual liberty and privacy and the limits of regulation. While, on the whole, society’s response to COVID has been uplifting, it is not just on social media (though this is a fertile source) that many, on all and every side of the issues, seem prone or pressured into a heightened level of, for want of a better term, unkindness towards others: whether it be acting like Donald Sutherland in the final scene of The Invasion of the Body Snatchers2 or saying things like “if you think that I just hope you and, if you have kids, 4 | BRIEF OCTOBER 2021

your kids, all [….]. Apart from the phrase “with all due respect” there is no preamble more certain to lead to awfulness than that one. Hopefully, lawyers can not only cope with their own pressures, but also, to the extent they can, assist in the law’s function to defuse these unfortunate tensions. A major threat and concern, whether it be in relation to the practice of the law, or the broader reaction to the COVID pandemic, is a state of joylessness setting in. The concept of “joy” means different things to different people, but all recognise its importance, and when it is (and isn’t) present. George Bernard Shaw wrote of joy as “the being used for a purpose recognized by yourself as a mighty one; the being thoroughly worn out before you are thrown on the scrap heap; the being a force of Nature instead of a feverish selfish little clod of ailments and grievances complaining that the world will not devote itself to making you happy.” Mention of being thrown on the scrap heap after being thoroughly worn out is hardly on the face of it uplifting (and possibly a source of night terrors) for lawyers. Shaw seems to have meant it as the fulfilment of his wish to feel completely “used up” by the end, having left nothing behind or undone. The latter/ italicised phrase seems to sum up a considerable proportion of social media users (and, yes, even you bots too) and, to the more curmudgeonly and older folk, a good description of millennials or whatever generation is coming through. Also, get off my lawn (having turned 50 I’ve always wanted to say that). The Shaw quote is from his play Man and Superman, which, aside from its sexist title, is interesting as it is for the most part a comedy of manners, but has a lengthy third act involving Don Juan’s philosophical debate in Hell with amongst others, Satan, and which is not always performed and is often omitted (as it is far heavier going than the rest of the play).3 This concept might be a source of joy

for some, as who hasn’t been at a live performance and wanted to make an audible call at the line of scrimmage along the lines of “I’m not really in a downer mood – can we just skip to the good bits” or “I have to get home for the replay.”4 The Editor has the luxury of a straightforward definition of joy: being a fervent supporter and member of a football club for 30 years that hadn’t won a premiership for 57, and watching that team win the GF at Optus with a Mrs Mac pie in hand. An internet search for “joy” and “law” brings up reference to the management principle of “Joy’s Law” attributed to Sun Microsystems co-founder Bill Joy. Joy’s Law is that “no matter who you are, most of the smartest people work for someone else”. The impetus for the law was, like many inventive developments, the result of being irked with Bill Gates (Joy apparently wanted to make a point about Gates’ claim that Microsoft was an IQ monopolist). Joy’s Law is not as harsh as it sounds, and is not a proper basis for principals to make nasty comments about their employees. It also bears no relation to that other immutable law that, when things are going badly, clients always complain that the smartest lawyers are all on the other side. Underlying Joy’s Law is that, as Friedrich Hayek observed5, knowledge never exists in a concentrated/integrated form but is dispersed bits of incomplete and contradictory knowledge possessed by all individuals, and so it is better to create an ecology that gets all the world’s smartest people toiling in your garden for your goals as relying solely on one’s own employees will never result in the customers’ needs being solved.6 Joy’s Law may be useful for principals in structuring practices, or for lawyers in avoiding trenchant criticism or asking for a pay rise. Or it may not. Such are the joys of life in finding out.

This edition has a thought-provoking “Letter to the Editor” from Steven Penglis SC, who appeared before the High Court in the recently decided Charisteas v Charisteas, about the need for an independent body to deal with complaints against the judiciary. It should be noted that the Society endorses a proposal of a formal system for investigating and dealing with complaints against judicial officers, the briefing paper being available here.

Part IVC Objection Proceedings” by Matthew Crowley; “The Sword of Damocles” by the Law Society’s very own policy lawyer and history aficionado Thomas Moorhead; and “Shaping Legal Minds” by Chief Justice of the High Court the Hon Susan Kiefel.

This edition also has, among other items, Charmaine Tsang on the “Equitable Briefing Policy”, “Taxation

End notes

Happily, the YLC is back with Case ‘Nopes’; Aunt Prudence Juris (Agony Aunt); Going Straight to Bar and a wrap up of the Golden Gavel event.

2 Though, thankfully, nobody can quite look like 1970’s Donald Sutherland at the end of that film. 3 Berst, Charles A. (1973). Bernard Shaw and the Art of Drama. Chicago: University of Illinois Press. pp. 126. ISBN 0-252-00258-X. 4 Getting straight to Wagner’s “The Ride of the Valkyries” in Die Valkyrie would also seem to be a good idea, saving 2 and a half hours, except one would then be tempted to go home immediately and watch Apocalypse Now. 5 Hayek, Friedrich A. The use of knowledge in society (XXXV, No. 4 ed.). American Economic Review. pp. 519–30. Retrieved 24 October 2014. 6 Karlgaard, Rich (2007-11-09). “How Fast Can You Learn”. Forbes. Retrieved 23 October 2014.

1 Otherwise the Editor will feel foolish about betting so heavily on the Alexa Bliss v Charlotte Flair match at the “Extreme Rules” WWE PPV.

LETTER TO THE EDITOR

Call for Independent Judicial Complaints Commission.

The High Court observed that “[t]he lack of disclosure in this case is particularly troubling. It is difficult to comprehend how the trial judge could have failed to appreciate the need to disclose the communications”, and that this was particularly so given that at one point he As many of your readers will now be “was dealing with (an) application to recuse aware, on 6 October 2021 the High Court himself on other grounds”. of Australia set aside orders made after trial by a (former) Judge of the Family Court The High Court expressly acknowledged of Australia: Charisteas v Charisteas & Ors and “accepted that many judges and lawyers, barristers in particular, may have [2021] HCA 29. continuing professional and personal The orders were set aside as a result connections”. The Court made clear, of various communications “between however, that “the means by which their the trial judge and the wife’s barrister contact may be resumed is by a judge otherwise than in the presence of or with making orders and publishing reasons, the previous knowledge and consent of thereby bringing the litigation to an end. the other parties to the litigation” during It is obviously in everyone’s interests, the the period between the commencement litigants in particular, that this is done in a of the trial and judgment. The High Court timely way”. noted that “given the timing and frequency The end result is that a long and expensive of the communications between the trial trial in 2016 has effectively come to nought judge and the wife’s barrister, it cannot as the matter has been remitted to the be imagined that the other parties to Family Court for rehearing. the litigation would have given informed consent to the communications even if The case is a stark illustration of consent had been sought, and it was not. the importance of there being no The communications should not have communications between counsel and a taken place. There were no exceptional trial judge once the trial has started until circumstances.” judgment has been delivered (at least not

without the informed consent of the other parties). Whilst this is clearly an exceptional case, it highlights the fact that whilst consumers of the legal system are able to make complaints to independent bodies about the conduct of legal practitioners, in Western Australia, and despite numerous and repeated calls over a long period, the government has not established an independent commission to which complaints can be made about judges. This unfortunate case presents yet another reason why such a commission should be established. I respectfully suggest it is high time the government did so. Liability limited by a scheme approved under Professional Standards Legislation. Steven Penglis SC - Barrister 7 October 2021

Disclosure: The author of this letter, Steven Penglis SC, was Counsel for the Appellant in the case referred to above.

are

OK?

A Mental Health Week special feature

66 || BRIEF BRIEF OCTOBER OCTOBER 2021 2021

A deeper look into mental health in the legal profession

n this special feature, Are We OK?, we celebrate Mental Health Week with a look at the diverse ways legal professionals can combat the well documented pressures they face.

Research from across the world indicates depression and other psychological issues are comparatively high among the legal profession. In Australia, arguably the most authoritative survey report on depression in the legal sector is “Courting the Blues: Attitudes towards depression in Australian law students and legal practitioners”, published in 2009 by Sydney University’s Brain and Mind Institute in conjunction with the Tristan Jepson Memorial Foundation (now called The Minds Count Foundation). The report found that the incidence of depressive symptoms amongst lawyers and law students had reached alarming levels: A third of solicitors and one in five

barristers suffer disability and distress due to depression; they do not seek help and self-medicate with alcohol. There is a high rate of suicide and

suicidal ideation among lawyers. Law students and young lawyers are

most vulnerable to experience severe stress/depression to the extent of requiring medical treatment. Lawyers were reluctant to seek help

for mental health issues. More recently, the Australian & New Zealand Meritas Wellness Survey 2019, an initiative of the Regional Meeting of Australian and New Zealand (ANZ) Meritas Member Firms and the Meritas Regional Young Lawyer Liaison Group, revealed startling findings about the mental wellbeing of those professionals. While most respondents said they found their workloads generally manageable, they were well aware of the signs of depression with 63% of respondents having experienced or observed

depression in the workplace first hand and a further 85% having experienced or observed anxiety. Interestingly, 76% of survey respondents indicated that they were likely to use resources, training and be involved in dialogue around wellbeing in the law, if it was offered by their firm. Reflecting on the statistics, we can no longer dispute the high prevalence of depression among lawyers. It is time to have open discussions and take the next steps in addressing the problem. In this special feature, we look to our peers and experts in the mental wellness fields to explore resources, training and other ways to maintain a healthy mind and find work life balance within the legal profession. An inspiring foreword by the Hon Robert French AC is followed by interviews with legal professionals who have interesting hobbies and past times, including a ring announcer for wrestling, an international underwater hockey player, a volunteer firefighter, a female footy player drafted for the Dockers, and many more. Catherine Stokes explains what workplaces can do to create a safe environment by training staff in mental health first aid. We also look at the importance of mindfulness as an essential tool for the modern lawyer.

Feature Contents 8

Foreword: A Science Fiction Reader’s Guide to Mental Wellbeing

Taking Time Out - A focus on the different extracurricular pursuits our peers use to keep their minds active

Mindfulness - An Essential Tool for the Modern Lawyer

A can of Coke and a U2 song - Why the way in which you help someone matters

Meet Winston - WA’s first Justice Facility Dog starts at Perth Children’s Court

The Pandemic of our Profession - Lawyers, burnout, and vicarious trauma

We have a special introduction to Winston, a five-year-old black Labrador, trained by Guide Dogs WA to interact gently and calmly with victims, witnesses and other Family Court users to reduce the stress and anxiety commonly experienced in the court environment. We also take the opportunity to remind Law Society members of their complimentary access to LawCare WA services which can help you manage your career, life, health and wellbeing. LawCare WA supports you through: our Member Assistance Programme (which includes free access to confidential counselling sessions), employee relations advice, ethical advice, a referral service for assistance with complaints to the Legal Profession Complaints Committee, health and wellbeing events, mentoring, and much more. Visit our website LawCare WA for more information or call 1300 687 327 to speak with a counsellor or to make an appointment. 7

Mental Health Week special feature as ‘counter-factuals’. Such readings provide one among many mechanisms, some described in the pages of this journal, for the retention of mental wellbeing in the face of the myriad demands, internal and external, placed upon the modern lawyer. They may also contribute to finding ‘that delicate balance between life and work’. It is a long-standing belief that lawyers are narrowly focussed reductionists, uncomfortable with imaginative creations. The American Poet, Carl Sandburg, once wrote: The work of a bricklayer goes to the blue. The knack of a mason outlasts a moon. The hands of a plasterer hold a room together,

A Science Fiction Reader’s Guide to Mental Wellbeing By The Hon Robert French AC At the end of August I received a request to write an Introduction for a Special Feature Edition of Brief on ‘Mental Health and Wellbeing’. The request was evidently inspired by misinformation to the effect that I write or have written science fiction books, that it is a special talent and that I could inspire readers of Brief ‘to find that delicate balance between life and work’. I had to advise Brief that I have never written a science fiction book in my life, nor that I harbour any special talent in that direction, although I have read many — of highly variable quality — over the years. Nor can I claim to have found any sweet spot in the balance between life and work. Despite that disclaimer the request to write an Introduction was repeated and accepted. I am happy to take the opportunity to indulge in a reflection of the pleasures of reading science fiction and fantasy stories which widen our perspectives about the world around us and the possibilities of our society, our world and our universe — beyond the category known to legal practitioners in damages assessment and competition law

8 | BRIEF OCTOBER 2021

The land of a farmer wishes him back again. Singers of songs and dreamers of plays Build a house no wind blows over. The lawyers – tell me why a hearse horse snickers hauling a lawyer’s bones.1 There was a direct response to him by Professor Karl Llewellyn in his famous Bramble Bush Lectures of the late 1920s and 1930s. He pointed to the way in which creative advocacy informs good judging and said: To produce out of raw facts a theory of a case is prophecy. To produce it persuasively, and to get it over, is prophecy fulfilled. Singers of songs and dreamers of plays – though they be lawyers – build a house no wind blows over.2 There are, of course, innumerable examples of lawyers who have written poems, novels, plays, songs and music and who have been and are players, singers and actors. One famous author, a non-lawyer who was close to the justice system, was Bram Stoker. He worked for a time as the Inspector of Petty Sessions in Ireland. Long before he published Dracula, he wrote a book on The Duties of Clerks of Petty Sessions in Ireland 1879. A synopsis of the book yields no hint of Gothic horrors, although a 19th century Irish Court of Petty Sessions might well have provided a setting for a tale or two. Beyond court officers, there is a respectable number of lawyers and people with legal qualifications who have written and who write science fiction and fantasy, albeit of sometimes variable quality. There is also a respectable literature on the intersection between science fiction and the law, where legal issues or processes arise in the plots of science fiction stories, films or even television series.3 The law is no stranger to science fiction and science fiction is no stranger to the law. Relevantly for the present Special Issue of

The law is no stranger to science fiction and science fiction is no stranger to the law. Relevantly for the present Special Issue of Brief reading science fiction, and its related genre fantasy, can be a great assistance to the fine art of stress relief. Brief reading science fiction, and its related genre fantasy, can be a great assistance to the fine art of stress relief. Depending on the quality of the work, it may not always be good for the mind, but is considerably less harmful than resort to bad behaviours, acting out, or substance abuse. That said, science fiction is not the preserve of second rate writers. The genre may be traced back over hundreds of years. What is said to have been the first science fiction book ever written was The Blazing World by Margaret Cavendish in 1666. The hero is a woman kidnapped to another world run by part humans and part animals — foxmen, fishmen, and geesemen. She becomes their Empress and organises an invasion of her own world, complete with fire stones raining down from the sky. Fast forwarding to 1818 we encounter Mary Shelley’s classic Gothic tale of Frankenstein. Further forward, is EM Forster’s short story entitled ‘The Machine Stops’ published in the 1909 issue of the Oxford and Cambridge Review. It tells of a dystopian society run by a machine — which, of course, breaks down. Even today it provides cause for reflection upon the vulnerability of our pervasive and interconnected information systems and societal operations which depend upon the ‘machine’ in a global sense continuing to run. Women feature strongly in the science fiction/fantasy genre — women such as Ursula K Le Guin, who published The Left Hand of Darkness in 1969; among many other books; Octavia E Butler who published Kindred in 1979; Margaret Atwood who wrote The Handmaid’s Tale and Margaret Alderman, mentored by Atwood, whose book The Power, published in 2016, put women in the ascendency. In her book, women and girls discover a powerful new ability to emit electricity from their hands. Science fiction is often written well by real scientists, even though it may lack the depth and richness of great literature. Fred Hoyle was an English astronomer who formulated a theory of how stars generate heavy elements — stellar nucleosynthesis. He was a sceptic about the Big Bang theory of the origin of the universe although ironically he himself had

areweOK? coined the term ‘the Big Bang’ to denigrate the theory. He believed in a concept of ‘continuous creation’ — as the universe expanded it continuously created new matter through an unknown mechanism. One of his academic colleagues — a Professor of Classics — once asked him if he had ever considered ‘fluff under beds’ as the origin of new matter. Hoyle wrote a number of wellknown science fiction books including The Black Cloud and ‘A’ for Andromeda which he co-authored with John Elliot. A greater name in the pantheon of science fiction is that of Isaac Asimov. He was a Professor of Biochemistry at Boston University. He wrote The Foundation trilogy, soon coming to a streaming service near you, and invented the Laws of Robotics given effect in his collection I Robot. When I retired as Chief Justice of the High Court my colleagues presented me with a first edition of The Foundation trilogy, the first volume of which was published in 1951. It was Arthur C Clarke who once remarked that ‘any sufficiently advanced technology is indistinguishable from magic’. There is a kind of twilight zone between fantasy and science fiction in which magic is presented as the manifestation of advanced science. So the mind controlling powers of the Bene Gesserit women in Dune may just be advanced psychological technique. The Jedi Knights of Star Wars and their opponents seem to be able to connect with some sort of energy field that pervades the universe — and is rather inappropriately designated ‘The Force’ with light and dark sides. The best of science fiction and fantasy can remove us briefly (unless we have addictive personalities) from the pressures of the moment and offer large imaginative perspectives on society, the world and the universe beyond. Sometimes the stresses of real life may be better managed in the knowledge that there are worlds of imagination available to us — not only in science fiction and fantasy of course, but in the immense treasure chambers of literature, art, music and theatre generally. I must confess that a stress release measure, mentioned in these pages and known as ‘mindfulness’, involves the use of a word which is not one of my favourites. That is so even though it is used by my former and estimable associate, Catherine Urquhart. That is no doubt a product of my general aversion to new usages of old words. I concede in so saying, however, that the word ‘mindfulness’ has the advantage of a long lineage. It appears to have had its origins with a British magistrate in Sri Lanka, who had the task of adjudicating Buddhist ecclesiastical disputes. He learnt the liturgical language of Theravada, an early branch of Buddhism. He coined the term ‘mindfulness’ — used as a synonym for ‘attention’ since 1530 — as an approximate translation of the Buddhist concept of Sati. In the 1970s, according to an interesting piece in The New York Times published in 2015, a

molecular biologist in New Zealand and a long time Zen Buddhist meditator, used the word to cleanse meditation of its religious origins. He adopted a new definition of ‘mindfulness’ as: The awareness that arises through paying attention on purpose in the present moment, and non-judgmentally.4 The New York Times article referred to its various usages including in MBSR Therapy (Mindfulness Based Stress Reduction). It extends to ‘just kind of stopping to smell the roses’. It is also described as ‘a lifestyle trend, a social movement and … a revolution’. I think I will take my chances with science fiction and fantasy — but that said, ‘mindfulness’ seems to have been well accepted as an approach to stress management. There is no doubt about the benefits of taking non-billable time to stand back from the problems of the moment and return to them with renewed vigour. The imaginary world of science fiction and fantasy, and more generally, of the world of literature, theatre and the transporting delights of fine music, can all play their part in the use of healthy, non-billable time. The mind’s eye can also be enlisted to pause and reflect upon non-fictitious images that provide a way of putting the streaming demands of the present into perspective. There are two pictures which I recommend for brief reflection without undue detraction from remunerative moments. One is ‘Earthrise’ — the photograph taken from the moon in 1968 of earth rising over the moon’s horizon. The other is the ‘Pale Blue Dot’, a photograph of earth taken by Voyager 1 on 14 February 1990 from a distance of 6 billion kilometres. Both are readily available on the internet. They can be looked at, memorised and called up for internal inspection on demand. For additional

photographic perspectives of that kind, I recommend the Astronomy Picture of the Day, a website which each day puts up a new image of our universe, near and far. Better still, if it is night time and you are on the south coast of Western Australia — perhaps near my favourite town of Denmark — step outside away from ambient light and look up at the magnificence of our home galaxy, the Milky Way, stretching across the sky with its at least 100 billion and possibly 400 billion stars. Indeed, you can probably do this anywhere in Western Australia away from ambient light. And looking at the Milky Way you can further reflect upon the fact that it is one of, on one estimate, two trillion galaxies in the known universe. This, of course, can make us all feel very small and insignificant but it can be destressing. And by way of consolation, the words of 17th century philosopher and theologian Blaise Pascal, are apposite. He wrote in his Pensées: It is not from space that I must seek my dignity, but from the government of my thought. I have no more if I possess worlds. By space the universe encompasses and swallows me up like an atom; by thought I comprehend the world. With that thought you can be reinvigorated and better encompass the completion of your draft contract, other legal instrument, advice, pleading or timesheet.

End notes 1 Carl Sandburg, ‘The Lawyers Know Too Much’ https://:poets.org/poem/lawyers-know-too-much 2 KN Llewellyn, The Bramble Bush: Some Lectures on Law and Its Study (New York, 1931) 53. 3 Jorge L Contreras, ‘Science Fiction and the Law: A New Wigmorian Bibliography’ Harvard Journal of Sport and Entertainment Law ,forthcoming 2021 4 Virginia Hefferman, ‘The Muddied Meaning of ‘Mindfulness’ (The New York Times, 14 April 2015).

‘Earthrise’ — taken from the moon in 1968 of earth rising over the moon’s horizon. Photo by Apollo 8 astronaut William Anders.

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Mental Health Week special feature

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Equestrian Luke Docker Paralegal, Kennedys I am in the last semester of my law degree and work as a Paralegal at Kennedys in a busy litigation team. When I’m not working or studying, I spend my time horse riding. I have been riding for nearly 25 years and competing for the last 18. I also see my riding coach every week. The sport I compete in (show horse) is like a beauty contest for horses, they are judged on their confirmation (the way the horse is put together and if it is pleasing to the eye) movement and work (like the talent portion!). Excelling in the sport requires the horses be presented at a very high standard which in turn requires commitment to my craft.

There’s good reasoning behind Mentally Healthy WA calling their guidelines for positive mental health “Act, Belong, Commit”. Engaging in meaningful pursuits away from work, especially in collaboration with others, provides a multitude of mental and physical health benefits. In this issue of Brief we take a look at some of the wonderful, and often extraordinary ways in which members of our profession stay active away from the office and keep their minds healthy.

Sci-fi Writing Anthony Durand Lawyer, Durand Gangemi Being a general practitioner the ambit of my work is broad, which means that I rarely have a boring day. Even though I work in a suburban family practice, I’ve had the good fortune to be lead counsel in an extradition matter, represent clients from all corners of the globe, and do all manner of superior court work across several different areas of practise. I spend a good deal of my spare time writing novel-length science fiction stories. Writing science fiction has allowed me to grapple with issues and themes that many young lawyers face, such as impostor syndrome, leadership, the role of mentors in growth, and responsibility to others. Most practitioners take some aspect of their work with them into their private lives. Telling stories about characters who grapple with similar issues, but in a setting of fantastical conflict, has helped me to process and deal with them. It’s also fun! It means that I spend a lot of my weekends researching all sorts of esoteric topics to use in my writing. My desk at home is covered in notes about lockpicking, the different components in a jet engine, pre-launch procedures for fighter pilots flying from aircraft carriers, and the technical difficulties in creating a complete scan of the human brain. I’d thoroughly recommend that any practitioner who has an artistic streak indulge it from time to time.

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I have two competition horses Oxford (Occie) and Kolbeach Sunrise (Gus). Riding and spending time with them gives me an escape from life’s pressures. I compete at shows like the Horse of the Year and the Royal Show and I try to give back to the sport as an accredited judge. Recently I started a small breeding program and have bred two foals in four years. When I am riding my horses it is just me and the horse. I am not distracted by anything else and focus only on my connection with them. Riding helps me keep a clear mind. It’s a time consuming sport, and a real labour of love, but I am fortunate to work for a firm and partner that encourages a work/life balance and gives me the flexibility to pursue my passion for horses.

areweOK?

Underwater Hockey Clare Gleeson Solicitor, Cape To Cape Lawyers

at the Brisbane Olympics in 2032. I was a SCUBA divemaster before I qualified as a lawyer. Spending time in the water was important for my mental health, so when I started practising as a lawyer, I started playing underwater hockey to compensate.

Underwater hockey is a relatively little known sport, played underwater on the bottom of a pool. There are 6 players per side and the aim is to move a lead weight puck into goal trays. It’s not a great spectator sport and it’s not affiliated with the international association that would make it eligible for the Olympics – though we are lobbying to be exhibited as a sport

Two casual games a week turned into a 20 year “career” of playing the sport at state, national and international level, presiding over the state committee for over a decade and hosting major competitions in Perth and Bunbury.

Football Jessica Low

This team holds a special place in my memories, as most of us were fresh to the sport and learning to kick the stupidly shaped ball together. Since that first team, I’ve played with Claremont for the past three years in the WAFLW and trained with the Under 18s State Academy and West Coast Eagles AFLW team. Most recently I was selected by the Fremantle Dockers in the 2021 Draft.

UWA, Juris Doctor Growing up I played many sports – basketball, soccer, touch rugby, netball, swimming, ballet, tennis. There were only three that, for various reasons, I avoided – hockey (due to a natural aversion), athletics (due to the hot summer season) and Auskick (as my parents knew I would have to quit soon after starting due to the lack of pathways for girls). After I graduated high school and had no school sport to keep me occupied, I was unsure about what to play. My grandad was mildly concerned when I told him this. He said it would be a real shame if I didn’t do something, and dad took the opportunity to voice his concern for my social life in the event that I had no team. That night I texted an old basketball friend, Maddie Penniment, and asked her if she was still playing footy. She put me onto West Coast Amateur Football Club, who was starting its inaugural women’s team in 2018 in the Perth Football League.

I don’t play high level competition at the moment because I have two young kids

Sport has always been a way for me to organise my life. It has been the source of many friendships, with mandated catch ups helping me develop bonds. Footy, in particular, has allowed me to meet people from all over the state, of different ages and backgrounds. Sport also provides a way for me to reenergise. Most law students spend many hours a day sitting down, working on the computer. Cases and coursework can begin to blur. A routine of breaks allows me to work more productively, and I enjoy both my studies and my training more for their contrast.

that prevent me from training, however I still play casual games for my mental health. The endorphins and the social side of the sport have been integral for my life balance. My sport and my legal career have been combined a few times, which has been a lovely experience. I worked at Lavan for 5 years and every year I would travel for the national championships and my team at Lavan would keep in touch with my underwater hockey team’s progress and send messages of support over, particularly Craig Wallace who was Partner of the Planning/Environment legal team I worked in.

Photo courtesy of Tony Lendrum Photography

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Jarrad Goold announcing at Reawakening XVIII, the biggest night on the Australian Pro Wrestling calendar. Photos courtesy of Pix Photography

Pro Wrestling Announcer Jarrad Goold State Prosecutor, Office of the Director of Public Prosecutions I have spent nearly 8 years as a State Prosecutor with the Office of the Director of Public Prosecutions. Whilst this work is incredibly rewarding, it can be difficult to switch off. This is where the sport of professional wrestling steps in. I have always been drawn to performing and when I was younger I enjoyed acting and singing (poorly). But nothing compares to pro wrestling; it is the ultimate form of entertainment, combining incredibly skilled athletes with the magic of theatre. In 2013, I took the opportunity to try out for the position of ring announcer with Australia’s premier pro wrestling company, Explosive Pro Wrestling (EPW). I wanted to try ring announcing because I missed having an outlet to perform and I wanted to fulfil the boyhood dream of being involved in the sport of pro wrestling.

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Fortunately for me, I got the gig and for the past 9 years I have announced some of the biggest names in Australian wrestling. In my time as a Prosecutor, I have enjoyed switching off during the 2 or 3 hours that a wrestling show runs. In those few hours, nothing else matters but engaging the audience and playing my role to put on the best show possible. All Perth based wrestling fans should take the opportunity to see the best pro wrestling show in Australia and buy a ticket to see EPW. This year is EPW’s 20th year, so join us on 27 November 2021 as we present our biggest show yet, ‘ReAwakening XX’. This show will be held at the Gate 1 theatre at the Claremont Showgrounds and is headlined by WWE alumni and current EPW Champion ‘Mad’ Mikey Nicholls. Tickets will be available at epwperth.com. I want to see you there!

areweOK?

NGA Foundation directors Roslyn Packer AC and Dr Andrew Lu AM, National Gallery of Australia Senior Curator of Aboriginal & Torres Strait Islander Art Franchesca Cubillo, Dr Maureen Bremner, and Indigenous artist Tony Albert in front of two of Tony’s works

Collecting, Curating & Music Dr Andrew Lu AM Partner, HBA Legal I have always cherished the Arts. Like many young people, music lessons were an extracurricular activity, and an opportunity to find a community of like-minded people. The visual arts have taught me a great deal about society and about Australia, so I have collected and now live with the works of many of the artists I’ve met. Attending performances of symphonic and chamber music, and other concerts too, was part pleasure and part education. When working long hours at a large firm in Sydney, a lunchtime walk through The Domain to the Art Gallery of NSW, or evening concert at the City Recital Hall, Angel Place, could be the highlight of my week and a chance to switch my thinking and mentally recharge. I am married to a professional musician, so music is a constant in my life. I am particularly passionate about music and music programs that engage and empower young people. More than 70% of all musicians in Australia’s symphony orchestras are alumni of the Australian Youth Orchestra and its many

programs. For more than 70 years, AYO has been our nation’s orchestral training ground and in 2017 it was a great privilege to be appointed a non-executive director of AYO. I was also the first Asian-Australian person to join the board of Australia’s national training orchestra so it was a bonus for diversity, too. My cultural background, my personality as an introvert, and my journey as a migrant to Australia have all given me the experience of being an outsider. This has taught me resilience, and helps me to empathise with other outsiders. Those who occupy creative spaces and tell our stories through music, visually or in performance also see the world differently, and some of the most extraordinary storytellers are outsiders. Serving as a director on the boards of national arts organisations that help to show the best of Australia to the world, I have found a way to be an agent for positive change in a sector I value. As a board member of and donor to the Melbourne International Film Festival, the National Gallery of Australia Foundation, the Arts Law Centre of Australia, the Art Gallery of WA Foundation, and the Chamber of Arts and Culture WA, I am able to contribute to the work each of these organisations using my heart and mind, but also my gut instinct as an experienced lawyer.

Governor of NSW & Patron of Arts Law, Her Excellency Margaret Beazley AC QC, with Arts Law Centre of Australia directors Michelle Gibbings and Dr Andrew Lu AM

Volunteer Firefighting Dr Erika Techera Professor, UWA Law School As a Professor in the Law School at the University of Western Australia my work is highly satisfying. Teaching the next generation of lawyers, policymakers and future leaders is fulfilling, as is researching and writing about environmental law. I love my job, but it is largely sedentary, and as with other types of legal work it is sometimes hard to maintain work-life balance. When I moved to Northam Shire, I began to appreciate the risk of fire in a rural community, and the sheer number of small and medium incidents that must be attended to each summer. So, in 2020, I joined the Clackline/Muresk Bush Fire Brigade. The volunteer brigades provide a vital community service, as first responders to many incidents when fires can be suppressed or managed before they escalate. I am also a volunteer member of the Avon District Incident Support Brigade, on the Incident Control Vehicle (ICV). The ICV is deployed at larger incidents and is responsible for supporting the management team through radio communications, personnel and vehicle management, and mapping. By working with my brigade colleagues, and through the training provided by the Department of Fire and Emergency Services (DFES), I have learnt a great deal about how fires start and working in teams to suppress them. I have also received updated first aid training and learnt new skills such as radio operations. Although attending a bushfire can be stressful, it is very rewarding to contribute to my community in this way. Without local volunteers - bushfire brigades and farmers - many small fires would quickly escalate to larger incidents. In the past I have had little spare time for volunteering, but now I have the time and energy to participate in this way and am happy to do so. Relevantly, I believe that this volunteer work has also positively contributed to my own physical fitness and mental well-being.

Mental Health Week special feature Writer Gary Thomas McWilliams Davis Lawyers Becoming a notable (or preferably notorious) novelist didn’t seem the most assured of career choices when I left school, so I settled for being a lawyer. However my passion for literature never left me, even though in my early years of practice, many of the documents I had to read made Dostoevsky seem like a stroll in the park. Having to interpret a legal judgment was often more daunting than making sense of Ulysses. But thankfully there were a few judges, like Lord Denning, who wrote with skilled simplicity and exceptional clarity. They were like beacons to me.

seriously. Thanks to radical changes in technology and in media generally, it’s much easier than it used to be to publish one’s work. I found my niche was in writing extended short stories, “mini novellas” as it were, and three Volumes have now been published, under the general title Casus. Here’s a link: http://www.vividpublishing. com.au/casus3/ I’m now well into volume four. Doing this kind of writing has taken effort and commitment, but I’ve found it enormously satisfying. It’s also a particularly helpful remedy for being locked down during a pandemic, not to speak of transitioning into retirement.

In the eighties I got a lot of satisfaction from being part of the “plain English” movement. I realised then that being a lawyer and writing plainly, and clearly, and even creatively, weren’t mutually exclusive. I had always kept up reading for pleasure. For me, that was a constant and absolutely essential and significant part of counterbalancing the pressures and demands of work. I’d also dabbled with my own creative writing, but it’s only been in the last ten years or so that I’ve found the time and opportunity to take it more

Volunteering Jessica Vu and Monica Vu Tang Law On 30 March 2021, we volunteered in the Lawyer Visits to Schools Programme through the Law Society to speak to students participating in Cluedunnit Kids for 2021. We both recently got admitted and wanted to give back to our community in our role as lawyers. It was fortunate the school that required assistance was our former primary school, St Kieran’s Catholic Primary School. Prior to meeting the students, we were contacted by a teacher who informed us that the students were participating in a competition involving a mock criminal investigation where the students were required to solve the matter by applying their critical thinking to a set of facts. The school wanted us to speak about our experience as lawyers and give the students tips for their competition. Arriving at the school was a nostalgic experience. While some things had changed, such as signing in on an iPad and most chairs seemed much smaller than they were

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Gary’s series of Casus containing collected mini-novellas.

previously, other things stayed the same, such as the layout of the school classrooms. We prepared a presentation about our role as lawyers and prepared an interactive activity to engage the students in understanding the difference between evidence and facts. The students were all enthusiastic and willing to participate, which made it an enjoyable experience for everyone. The students were inquisitive into our role as lawyers and how we contribute to society, and some students even expressed their desire to become lawyers after our interaction. It was an incredibly rewarding experience to have the opportunity to be a positive influence and provide an insight into our profession to the younger generation. Volunteering also has a positive impact on our mental health and wellbeing as it helps take our minds off our usually busy day-today roles and reflect on our roles as officers of the court in different contexts. We highly encourage any lawyers who are considering participating in the Lawyer Visits to Schools Programme, to volunteer. It was an overall positive experience which reinforces pride in the profession, and the work that profession does, through community outreach.

areweOK? Mindfulness AN ESSENTIAL TOOL FOR THE MODERN LAWYER by Cathryn Urquhart

Your mind is like a snow-globe…keep shaking it and there will always be snow or glitter floating around and preventing you from thinking clearly. Put down a snow-globe for a 1-2 minutes and the snowflakes settle, the liquid becomes clear and you can better see the object at the centre. The same can happen with your mind and Mindfulness is the method to settle that snow. Mark Twain said that “Life does not consist mainly, or even largely of facts and happening. It consists mainly of the thoughts that are forever flowing through one’s head”. Don’t ask me how but researchers have calculated that people have up to 50,000 thoughts a day!! I’m pretty sure lawyers are to the far right of any statistical bell-curve with factors such as working in an adversarial system with tight deadlines, demanding clients and (many) recording time in 6 minute units.

There is no shortage of research to show that lawyers are not only more stressed and at risk of experiencing mental health issues than the general population but also more than other professionals. And of these 50,000 thoughts, how many of them actually relate to what you are doing and how many are ruminating about the past or worrying about the future. Mindfulness is not magic. Nor is it about making thoughts and feelings disappear i.e. trying to achieve a “blank mind”. But it is a proven method to calm the mind and create significant improvements for the individual and teams. Plus, it can be practised in many ways from extended practices to micropractices and other options in between and so fit around/ within a busy life. Dare I say that 6 minute practices might work well for lawyers. Mindfulness is about being aware: “(it) means paying attention to what’s happening in the present moment in the

mind, body and external environment, with an attitude of curiosity and kindness”. (Mindful Nations, UK Report). The opposite of Mindfulness is being on autopilot where your attention is in the past or the future, you are distracted, less aware of your surroundings and tend to act based on habit, patterns and assumptions. Our brain loves to switch off and tune in to auto-pilot to save energy, but this is not a good way for us to meander through life and certainly doesn’t seem to be the right way to be spending our work day. I love this quote: “Between stimulus and response, there is a space. In that space is our power to choose our response. In our response, lies our growth and our freedom” (Victor Frankel’s teachings summarised by Steve Covey). Mindfulness is one way to create a space or more space between stimulus and response. For example, the aggressive

Mental Health Week special feature ...if our modern world is triggering our fight/flight response for extended periods (or all day), then our mind and body are in a constant state of arousal and we are dealing with chronic stress. email from the other side or stressed client is the stimulus. Without space, you fire off a reply in the moment that is influenced by emotion or it’s your autopilot response. Need more examples? The staff member who has not followed instructions, the IT issue that caused a document problem, the unforeseen delay, the overflowing email inbox or unreturned phone calls. These triggers can’t be avoided but we can create space to manage our response. There is a world of science behind all of this. A threat, real or imagined, physical or social, fires off our amygdala putting us

into fight or flight response. All kinds of changes happen within our body and brain including a flood of hormones like cortisol and adrenaline. One major effect is the disconnect that happens between parts of the brain i.e. our salience network (which contains the amygdala) and our pre-frontal cortex or executive network. This means our emotional responses take over and we decrease our ability to respond rationally. And whilst this worked for our cavemen ancestors to respond to very real physical danger, they were only in this state, i.e. acute stress for certain periods of time switching back to the parasympathetic system, i.e. rest and digest state after the danger was over. Cortisol levels would drop and things would calm down. But if our modern world is triggering our fight/ flight response for extended periods (or all day), then our mind and bodies are in a constant state of arousal and we are dealing with chronic stress. Mindfulness allows us to move out of the fight/flight state and to calm the mind and body. I like to think of it as a mini-vacation for the mind during a busy day. Short, regular practices can make a world of difference. And there are many ways to bring Mindfulness into the office and your workday. I can’t “teach” Mindfulness in this article but I’ll set out some ideas that you might be able to try.

Dedicated or Integrated

Mindfulness Practice Mindfulness can be both a dedicated or integrated practice. If I’m looking to improve my fitness, I can go to the gym, walk/run/swim or head to a yoga or pilates class. I can also incorporate practices during the day that help, such as taking the stairs instead of the lift, getting off the bus a few stops before my actual one, parking far away from the shop entrance, or standing on one leg while brushing my teeth or waiting for the kettle to boil (seriously, one of the best habits to form). Dedicated Mindfulness might be sitting aside 30-60 minutes at some point in the day to practice either on your own or with others or using a spoken word recording. You could sign up for an in-person or on-line 8 week Mindfulness based stress reduction course: a great place to start and how I first developed my practice many years ago. Integrated Mindfulness might look like one or more of these options: Using an app on your phone to access 1-10 minute practice at a convenient time of the day. Taking some time on your commute to focus on breathing or listen to a practice.

Micro Practices (Throughout Your Day) The Search Inside Yourself Leadership Course was developed at Google over 10 years ago. World experts were brought in to develop a 2-day course which blends Mindfulness, Emotional Intelligence and Neuroscience to build skills for peak performance, stress management, strong collaboration, innovation, creativity and effective leadership. It became Google’s most popular internal training course and now has outgrown its origins to become a NFP that delivers training the corporations, governments, educational organisations and other NFP’s around the world. Within the SIY Course, we refer to Micropractices which are excellent integrated practices that you might want to try

3 breaths First breath, pay full attention to your breath. Second breath, relax the body. Third breath, ask “what’s important right now”. People tell me they love using this one as they transition between tasks and also to create a break between work-mode and home-life. I picture people doing it in the car in the garage before entering the house after work.

minute to arrive Start a meeting with one minute of silence to allow everyone to be fully present. Sounds strange? It’s normalised now at Google and once you start, you can’t stop.

noting When you feel stuck on a thought/feeling then notice it to name it (e.g. frustration, anger, disappointment), let it be and just breathe.

head body heart

Check-in: Take 3 breaths scanning one area of the body with each breath. First breath-scan the head, registering any thoughts. Second breath-scan the body registering any emotions or sensations. Third breath-check the heart representing values or intentions.

areweOK? Mindful coffee: try to let go of thoughts and just focus on the smell and taste of the coffee, really savouring the moment and being present. Mindful walking: focus on your breath and the act of walking as you move between locations either in the office, at home or out and about. Consider you surroundings and appreciate what you can see, hear or feel at that time. WA weather means some sun is often available as well. Mindful queuing: this has changed my life as I no longer get frustrated but use the time to offer “loving kindness” to those in the queue. I know, you have raised your eyebrows but it works. Loving Kindness is a powerful exercise and would take another whole article to explain. Google it, especially Sharon Salzberg.

Impact of Mindfulness Practise You’re all busy and don’t want to read endless quotes and data from the last 20 years of research on Mindfulness so here’s a snapshot of what it has been shown to do: Helps increase happiness, reduce stress, develop self-awareness and improve communication. At work, it improves employee engagement and collaboration.

SBNRR

Builds resilience, improving ability to bounce back from emotionally challenging situations, develop emotional and cognitive resilience, equanimity and inner calm. Builds empathy i.e. the ability to tune in to how others are feeling which improves social interaction. And builds compassion i.e. empathy in action, the desire to be of service. The World Economic Forum stated in its 2018 Future of Jobs Report that “in order to truly rise to the challenge of formulating winning workforce strategies for the Fourth Industrial Revolution, businesses will need to recognise human capital investment” and that by 2022 human skills such as Emotional Intelligence, creativity, leadership and social influence will significantly increase in importance. Hmmm, little did they know of the 2020 pandemic but I’m thinking that has only made the quote here more relevant as business grapples with disruption and a distributed workforce. LinkedIn also published a list of the top skills for companies in 2020 identifying Emotional Intelligence as part of the top 5 soft skills. In late 2020, the Search Inside Yourself Leadership Institute (SIYLI) surveyed 955 leaders, managers and employees from a wide range of organisations around the world and found that 85% agree that Emotional Intelligence is important for the future up from 60% and 76% in previous surveys. This and other data lead SIYLI to state that EQ based on Mindfulness is important given:

Current levels for stress and burnout.

The need for connection in a (more) disconnected world.

The growing demand for human centred leadership.

The need to adapt and thrive.

Stop, breathe, notice, reflect, respond

accepting Whenever you feel distressed, take a few deep breaths in and out, repeat to yourself “Breathing in, I do my best. Breathing out, I let go of the rest” FYI…this was my favourite during 2020.

impact is not intention

When you notice feeling irritated or frustrated with someone, remember this phrase and consider that you don’t know what is driving their behaviour and might not be receiving the message as intended or at all.

Investment in Mindfulness by organisations pays off with data supporting measurable ROI. The SIYLI report also referred to Global firm SAP which has delivered the SIY program to 7200 of its 13000 employees worldwide. “There is a significant increase in employee engagement, leadership trust index, also an increase in retention rate and a significant decrease in unscheduled absences” resulting in their estimation that the ROI on this training investment was around 200%. Aside from all of these benefits mentioned, I also like to suggest that Mindfulness is good risk management and offer the following 4 examples:

1. Stress: Working under short periods of acute stress might help with peak performance but when we tip over into chronic stress the impact on our brain and body is significant and we are more

likely to make mistakes.

2. Distraction & Focus: Multi-tasking, being surrounded by electronic devices demanding attention, phone calls/ emails/interruptions mean that we are often not focussed on the task at hand. Regular meditators report being better able to concentrate and notice when they have been distracted and so allowing their full attention to return to the task.

3. Responding to triggers: When we respond in the moment to a triggering event, we are more likely to do so with an automatic response, based on previous conceptions, incorrect judgements and according to patterns. Or if an “amygdala hijack” has taken place because of a perceived threat, our rational brain takes a back seat as we go into “fight or flight” response. Learning techniques that can help us to stop and breathe is the first step. Being mindful here would encourage us to notice the emotions and sensations in the body. By pausing we reflect either in the moment or for some longer period. And then respond in the most appropriate way.

4. Mindful Listening: Lawyers are trained to ask questions, take instructions and provide advice or offer a solution. With time at a premium, interactions with clients, staff and others can often be rushed and the opportunity to really understand what is being said (or felt) is missed. Mindful Listening is taking the time to listen in a way that is non-judgemental, without the need to rush or provide an instant solution. Give the gift of full attention. People trying this out at one of my courses, even in a 3 minute activity, marvel at what it feels like to be truly listened to. And how hard it can be to listen attentively for that time without interrupting or thinking about what you are going to say next.

What Does This Mean For Lawyers And Law Firms Let’s bring this back to lawyers and law firms. There’s nothing new about Mindfulness programs in law firms. In December 2010, the Law Institute of Victoria reported on a Mindfulness training course developed by the LIV to address mental health issues in the legal profession (LIV December 2020 84(12) LIJ p16). Designed as a preventative health measure, the 6 week program was put together following the Resilience@ Law launch which was aimed at raising awareness and understanding of the nature and impact of stress, anxiety and depression in the legal profession. It was a joint initiative of the law firms of Allens Arthur Robinson, Blake Dawson, Clayton

Mental Health Week special feature

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Utz, Freehills, Mallesons Stephen Jaques and the College of Law. Freehills has run an in-house 6 week Mindfulness program and collected participant feedback. The self-reported results indicated a 35% decrease in stress, a 12% increase in employee focus; a 10% increase in employee performance; a 10% increase in employee efficiency; a 17% increase in employee work/life balance; an 11% increase in employee communication skills; a 14% decrease in employee multitasking. If you look at the Freehills website, there are publicly available spoken Mindfulness exercises that anyone can access e.g. Rapid Relaxation, Relaxing Body Scan, Mindfulness of Breath, Mindfulness of Body, Mindfulness of Emotion, Preparation for Stillness and Stillness Meditation. Lots of people tell me they “can’t meditate” or “can’t sit still” or “their mind is too busy”. I totally understand where they are coming from as I too find it hard to sit for 10 minutes and focus on the breath. This is why the integrated practices and micropractices mentioned earlier can be so valuable. And why I highly recommend those new to Mindfulness to try working with spoken word practices. There is so much available to you via your smart phone with a range of free and paid Apps. I suggest trying a range of them until you find the one/s that suit you best e.g. male or female voice, which accent, background noise/music or not. Here’s just a few to get you started: Simply Being, The Mindfulness App, Insight Timer, Calm, Headspace, Smiling Mind. Make sure to switch you phone to DND or Flight Mode when using the App. I also like accessing longer spoken exercises via YouTube and suggest the following: Jason Stephenson, Michael Sealey, Lauren Ostrowski and The Honest Guys. But the list is endless. What you might find particularly

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A wide range of smartphone apps, paid and free, are available with Mindfulness and meditation exercises which help you to gradually train your mind to recognise the triggers and find the mental space to step sideways allowing those emotions to pass at a safe distance. Most of these apps give you the first week (or two in the case of headspace) free to experience their “basics” sessions which ease you into how to use their techniques. Others give you the basics for free allowing you to unlock specific courses or content with a premium subscription.

of use with this group is the offerings around Mindful Sleep exercises. A lovely way to calm the active mind and get ready for a good night’s sleep or to fall back to sleep after the dreaded 3am wake-up. Mindfulness can help change the way you think, react and make decisions. Again this goes back to neuroscience and the idea that our brains are not fixed or reach a peak size/condition in early adulthood and it’s all downhill from there. On the contrary, a steady stream of research over the last few decades has shown that our brains are malleable and that what we pay attention to changes the structure and function of our brain i.e. to grow parts of our brain and improve connection between parts. It would take too long to go into this in detail but the evidence is clear and Mindfulness has been proven via this research to have an actual effect on the brain. Law Mutual WA agrees that Mindfulness training can amount to risk management training and has approved my 2 hour session “Risk Management: A More Mindful Approach” so it can be delivered in-house and firms can apply for it to count toward their training for premium discount purposes. Plus 2 CPD points, 1 for competency 1: practice management and 1 in competency 2: professional skills. The WA Legal Practice Board has recently confirmed that lawyers attending my 2-day Search Inside Yourself Leadership Course can apply to the LPB to claim 4 CPD points, 2 in Competency 1: Practice Management and 2 in Competency 2: Professional Skills.

What Can I Do As An Individual? Make time in your day for integrated or dedicated Mindfulness practices Find a tech solution that works for you Find practical exercises if you don’t want

to sit still: Mindful walking/coffee/eating Find a tribe Practise

What Can a Legal Practice Do? Invest in your staff by bringing in some training to the office or allowing staff to take up external training options Pay for staff cost of Apps or subscriptions Dedicate a room/space within the office for Mindfulness or other time-out Model behaviour from a senior level with Principals taking up the offerings Take a “minute to arrive” at the start of an internal meeting (maybe not with clients) And here’s a thought….allow people to record Mindfulness time! Remember, Mindfulness is a superpower you can practise in 6 minute units!

Cathryn Urquhart is a qualified lawyer who has worked in and around the legal profession in WA since the late 80s, practising within law firms and as a Claims Solicitor at Law Mutual. She now works as a Professional Skills Trainer and Practice/ Risk Management Consultant including a role as the Facilitator of the Legal Practice Management Course at the College of Law. Cathryn is a Certified Teacher at the Search Inside Yourself Leadership Institute. She is qualified to deliver the original 2-day SIY Course that was developed at Google over 10 years ago, blending Mindfulness/ Emotional Intelligence/Neuroscience as well at Adaptive Resilience, a one day course that was developed in 2020 in response to the Pandemic. E: cathrynu@bigpond.net.au.

areweOK? A can of Coke and a U2 song Why the way in which you help someone matters by Catherine Stokes, BA LL.B (Hons.) Executive Director, The College of Law (WA) and Accredited Mental Health First Aid Instructor

Note: this article contains an account of a car accident and reference to a panic attack. Many years ago as a young driver I was behind the wheel, heading south on a country road. My parents were passengers in the car. Approaching a bend, we saw a cloud of dust appear ahead. My mum was in the front seat and urged me to slow down, as we didn’t know what was ahead. We rounded the bend and there was a car ahead of us on the left-hand side of the road. The car was upside down on its roof. We pulled in behind the upturned car and got out. As we moved towards the car, the engine was running and the wheels were still spinning. The driver was strapped in the car upside down. I reached inside and turned off the ignition. Another vehicle stopped and together with these helpful strangers, we applied physical first aid.

This well-meaning stranger was clearly affected by the distress and the experiences that Emily was describing and urgently pressed a business card into Emily’s hand for a very niche form of “support” that they insisted would help her. The well-meaning stranger then gestured to the sunshine and water views outside the window and said “Stop worrying, just look outside, can’t you see it’s a beautiful day!” Now I have nothing against observing that it is a beautiful day, or against U2, whose song of that name was one of their biggest hits. I was however aware that those sorts of phrases and the particular “support” on the business card were (and still are) not an evidence-based first aid measure for someone suffering from

anxiety and a possible panic attack. Looking back on the more recent instance it occurred to me that the well-meaning stranger was offering the mental health first aid equivalent of a can of Coke. I want to make it clear, in both cases the well-meaning strangers wanted to help and had suggested action which they genuinely believed would assist. However, there are compelling reasons why we train people in first aid.

1. There are established evidencebased best practices There are helpful and unhelpful ways to respond to someone in need of assistance, and a substantial body of peer-reviewed,

A few minutes later, the injured driver of the upturned car was seated on the ground under a tree as we waited for help to arrive. As time went on, the well-meaning strangers felt very strongly that the injured driver should have a can of Coke, which they pressed into her hand. They were insistent that the sugar would help and the caffeine would assist her to stay conscious. Now I have nothing against Coca Cola. I was however aware that soft drinks are not an evidence-based first aid measure for someone who had just been in a car accident, was complaining of abdominal pain and/or may require surgery shortly. Fast forward many years and I am standing in a kitchenette having a conversation with a person whom I will call Emily. Emily was upset. She was pale and shaking and had just indicated to me that she thought she was having a panic attack. She spoke about her lived experience of anxiety and a recent trauma involving a close family member. Unfortunately, there was not a private place to have this conversation and we were overheard by someone nearby.

Mental Health Week special feature Mental health first aid is an evidence-based training course which has been established in Australia for 21 years. It is the only internationally recognised, evidencebased, anti-stigma mental health training course for workplaces. evidence-based guidelines to inform the way that first aiders assist, with respect to both physical and mental health first aid. Just like in physical first aid, there is an evidence-based set of practical skills that can be applied when offering assistance to someone experiencing a mental health issue. It is called Mental Health First Aid. Mental health first aid is an evidence-based1 training course which has been established in Australia for 21 years. It is the only internationally recognised, evidence-based, anti-stigma mental health training course for workplaces.2 The MHFA course is characterised by practical skills training, backed by academic research on the course content3 and efficacy4. The course gives attendees the skills and confidence to have supportive conversations with their colleagues and peers and help guide them to professional help if needed. Specifically, mental health first aid courses teach participants how to provide initial help to a person who is developing a mental health problem, experiencing a worsening of an existing mental health problem or is in a mental health crisis. The first aid is given until appropriate professional help is received, or the crisis resolves.

2. Boundaries are important Over the past six years during which I have trained people to deliver mental health first aid to colleagues in the legal profession, friends and family, the parallels between physical first aid and mental health first aid are clear to me. Not only does drinking soft drink not feature in any of the evidencebased responses, both forms of first aid aim to provide assistance to a person as a first responder until appropriate professional help is received. In both physical and mental health first aid, the first aider does not diagnose or treat the person requiring assistance. Instead, their role is to assess and provide assistance in accordance with evidence-based best practice for first aid.

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In the same way that regular first aid courses do not teach a person to become a paramedic, a Mental Health First Aid course does not teach attendees to become counsellors or take on the role of an appropriate health professional. Just as you would not perform emergency surgery as a first responder, a mental health first aider does not diagnose or treat a mental health problem. A mental health first aid officer in the workplace (for example) is not a substitute for professional support services such as a general practitioner, psychologist or EAP or a mediation or dispute resolution mechanism.

3. We know that some ways of helping work better than others Colleagues, friends and family can assist by informing themselves about mental illness and what the person is experiencing, as well as providing the kinds of support you would provide to someone experiencing a physical illness. There is now a wealth of information available on the signs and symptoms of common mental illnesses and the types of support which can be of assistance. You can inform yourself from credible sources such as Beyond Blue5, which publishes free comprehensive guides on “What Works for Depression” and “What Works for Anxiety”. These guides cover a whole range of forms of assistance, with information on what interventions help, those which have no clear evidentiary basis and those which might in fact be harmful.6 There has been a comprehensive body of research over 20 years to evaluate the efficacy of mental health first aid. These evaluations consistently show that mental health first aid training is associated with: improved knowledge of health problems and their treatments; knowledge of appropriate first aid strategies; and willingness and confidence to provide first aid to individuals with mental illness, benefits which are maintained over time.7 Some studies have also shown improved mental health in those who attend the training, decreases in stigmatising attitudes and increases in the amount and type of support provided to others.

Offering assistance Given most mental health problems develop slowly, and that we spend so much of our time at work, it is likely that a co-worker with appropriate knowledge and skills would be able to detect the early signs and symptoms of a developing mental health problem. They would also be in a good position to offer help and support a co-worker whilst they seek professional assistance.8 Research indicates that people are more likely to seek appropriate professional help

if someone close to them suggests it.9 We also know that people suffering from depression, for example, will experience faster recovery from symptoms if they feel supported by those around them.10 There are some clear differences between mental health first aid and physical first aid. I never saw the driver of the car again. I hope that she was all right. As is often the case with physical first aid, I had no further involvement in assisting her once the ambulance arrived. By contrast, I had a chance to follow up with Emily again and ask how she was going. In mental health first aid, you may become involved in assisting that person at an earlier stage, as a mental health problem develops and in some cases continue to provide that assistance over a longer period of time. In my experience, I have applied my mental health first aid skills far more often than my training in physical first aid.

Conclusion Seven years ago, Tim Marney, the former WA Mental Health Commissioner expressed a hope that it would become normal to have on any workplace noticeboard the name of the first aid officer and next to that, the name of the mental health first aid officer.11 This article covers just a few of the many reasons why we should continue to ensure that both physical and mental health first aiders are trained and available to assist in high risk environments, including our legal workplaces.

End notes 1 For example, MHFA Training has been recognised as an evidenced-based practice by the Substance Abuse and Mental Health Services Administration (SAMHSA), an agency of the US Department of Health and Human Services 2 Szeto AC, Dobson KS. Reducing the stigma of mental disorders at work: A review of current workplace antistigma intervention programs. Applied and Preventive Psychology, 2010. 3 See for example Bovopoulos, N., Jorm, A.F., Bond, K.S. et al. Providing mental health first aid in the workplace: a Delphi consensus study. BMC Psychol 4, 41 (2016) and other research informing the MHFA curriculum cited here: https://mhfa.com.au/research/mhfa-australiacourse-development 4 See peer-reviewed research cited at https://mhfa.com. au/research/mhfa-course-evaluations 5 https://www.beyondblue.org.au 6 https://www.beyondblue.org.au/docs/default-source/ resources/484150_0220_bl0762_acc.pdf

https://www.beyondblue.org.au/docs/default-source/ resources/bl0556-what-works-for-depression-booklet_ acc.pdf?sfvrsn=fe1646eb_2

7 Ibid, at 4 8 Mental Health First Aid Australia. Providing mental health first aid to a co-worker. Melbourne: Mental Health First Aid Australia; 2016. 9 Kitchener B., Jorm A. and Kelly C. (2019) Mental Health First Aid Manual 4th Edition. 10 Keitner GI et al. Role of the Family in Recovery and Major Depression. American Journal of Psychiatry 1995; 152:1002-8, cited in Kitchener B., Jorm A. and Kelly C. (2019) Mental Health First Aid Manual 4th Edition. 11 Tim Marney, WA Mental Health Commissioner quoted by Aleisha Orr “WA businesses encouraged to appoint mental health officers” WA Today 10 October 2014

areweOK? WA’s first Justice Facility Dog starts at Perth Children’s Court The Department of Justice recently commenced a 12-month pilot program to assess the viability of establishing a Facility Dog service at selected WA courts. Winston, the five-year-old black Labrador, has been trained by Guide Dogs WA to interact gently and calmly with victims, witnesses and other court users to reduce the stress and anxiety commonly experienced in the courthouse environment.

processes, which improves efficiency,” Dr Tomison said. “The Department of Justice is committed to improving outcomes for victims of crime, witnesses and other vulnerable people engaged with the justice system. Achieving this requires a range of targeted interventions across the justice system.” The pilot program will cost $97,000 and is being managed by the Office of the Commissioner for Victims of Crime. Commissioner Kati Kraszlan said research showed that the experience of going to court can be a risk to the psychological safety of victims of crime, witnesses, and children. “We hear of victims describing the experience of giving evidence in court as distressing and sometimes akin to the offence itself in terms of traumatisation,” Ms Kraszlan said.

“Young people involved in the criminal justice system are particularly vulnerable as many of them have experienced disadvantage and trauma,” Judge Quail said. “Winston reduces their anxiety when they appear in court as witnesses or as accused and they communicate better and listen more closely to what the court is saying to them.” Guide Dogs WA selected Winston for this role based on his skills, abilities and personality. Winston has a reputation as a ‘happy’ dog, characterised by the fact his tail is almost constantly wagging. Winston and his handler operate in the public waiting areas of the courthouse or private witness waiting areas. They do not enter the court room or remote witness facility while court is in session.

“The physiological effects of stress and anxiety can significantly impact a person’s memory, and ability to concentrate and communicate.

People can touch, pat and interact with Winston if they choose to. If a person is upset or anxious the dog can provide comforting body pressure by placing its head on their lap or lying on their feet.

Department of Justice Director General, Dr Adam Tomison, said Facility Dogs used in a range of legal settings internationally and other Australian jurisdictions have been highly successful in reducing anxiety in people interacting with the justice system.

“We have launched this pilot program based on strong evidence that interacting with a trained facility dog has positive effects on a person’s wellbeing. In the presence of a calm, relaxed dog, people experience physiological changes which combat the effects of courtroom induced stress.”

The handler and dog will never approach anyone directly without their consent. Public signage will inform court users of the dog’s presence each day and advise them to inform staff if they are afraid of the dog or do not wish to be near it.

“Reducing stress for victims, witnesses and other court users provides the dual benefit of making the justice system more trauma sensitive for vulnerable people, and increases engagement with court

The President of the Children’s Court of WA, His Honour Judge Hylton Quail, is very supportive of the Justice Facility Dog Pilot Program being held at the Perth Children’s Court.

The Pilot Program will be evaluated after 12 months of operation. Based on the outcomes of the evaluation, options to extend the Program, including other court locations, will be considered at that time.

He and his handler, who has tertiary qualifications in social work and animal ethics, started at the Perth Children’s Court on Tuesday, 21 September. They attend the court two to three days a week.

Kati Kraszlan, Winston, His Honour Judge Hylton Quail and Dr Adam Tomison

Mental Health Week special feature

The Pandemic of our Profession Lawyers, burnout, and vicarious trauma by Meneesha Michalka

“I haven’t seen you in ages - how have you been?” your friend asks. “Yeah good - busy” comes the automatic reply. Being busy is a reality of our profession, and a reality of life in 2021. The simple fact is if you want to be a successful lawyer, there are weekends you will have to work, there will be late night submissions to file, and there will be periods of time where you work under extended periods of high stress. For many of us, hours are spent delving through distressing evidence, and dealing with clients who are going through the worst periods of their life. There is just no point in pretending that these parameters don’t exist. Of course, this comes at a price, and for many practitioners across the country the price is mental health. Burnout is rife in the legal profession. Alcohol, gambling, drug (or even exercise and work) addictions are common. Relationship breakdown is, sadly, prolific. For many, having a personal and professional life that is joyful and fun seems a fanciful pipe dream. One of the first things professionals report when receiving a diagnosis of depression or burnout is an overwhelming feeling of failure; that they just weren’t strong enough to cope. As an intelligent professional we cannot understand why, after years of dealing with ‘all the things’, we have reached the stage of chronic exhaustion, irritability and inability to function. But what neuroscience tells us is that the working life of lawyers creates the perfect storm for burnout. Even the strongest brains have only so much ‘fuel’. And if the fuel stores are depleted over many years without adequate replenishment, burnout occurs. The science is overwhelmingly clear: a human brain exposed to prolonged periods of even moderate stress shuts down. Our primitive ‘fight or flight’ centres are engaged, and our cerebral cortex responsible for our creative and lateral thinking - stops firing. Stress hormones in the bloodstream age the human body more than poor diet and smoking. And the reality is that no amount of hard work, pushing through or working late will help this.

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Quite frankly, we should be stressed about the amount of stress we live under, and the damage it does to our minds and bodies. But of course, that wouldn’t be helpful. For many practitioners, the issue of vicarious trauma adds to this perfect storm. This is particularly true for those of us practising in criminal, family, and personal injury law. Day after day we enter into other people’s trauma - not once but several times. We close one file, open the next, and enter into the next wave of imagery, victim statements and human beings in genuine pain and distress. Vicarious trauma is real. It’s insidious. And it’s cumulative. A senior practitioner recently described it to me as being like layers of sediment on a riverbed: ‘Each case I did was just one more layer down’ he said. ‘And I thought I was fine. But one day after 30 years I woke up and realised my riverbank was clogged.’ As lawyers we like to be high functioning. We like to cope, rise above, and say that after years of practice it doesn’t affect us to the same degree as it did that first time. But we are kidding ourselves to think that vicarious trauma isn’t an occupational hazard and real threat for even the strongest of minds. Years of locking away each individual trauma has devastating effects on our mental health. It’s time to recognise this as a profession and work at treating the issue prophylactically.

The Good News The news is not all bleak - far from it in fact. Just as the negative impacts of stress and trauma are cumulative, positive changes and habits also have a cumulative effect which replenishes our ‘brain fuels’. There are many things that can be easily incorporated into even the busiest of lives. The list below is by no means exhaustive or even remotely comprehensive - but hopefully provides some practical examples and strategies.

Set spaces in your home for work and play Many lawyers take work home of an evening or weekend, and in a time of sporadic Covid19 lockdowns, most of us work from home at some point. Make sure your work doesn’t spill over into your set spaces for relaxation and rest. When work papers are spread over the home your brain quite literally doesn’t know that you are home and not at work. Don’t Zoom from

bed or your bedroom (for many reasons!). If you do need to spread work out onto a main home area, make sure it is put away somewhere out of sight when you are not working. In an age where most of us receive work emails on our mobile, invest in an alarm clock instead of using your phone as an alarm. Keep your phone charging in the kitchen rather than always keeping it on you. Staying perpetually connected to your phone is a sure way to drain your mental energy. Our brains work with physical and visual signposts. Setting boundaries within your home environment lets your brain know when it’s in a space it can switch off and wind down.

Have a ritual for vicarious trauma The effects of vicarious trauma can lie undetected for years. If you work in an area of high trauma in the law, and you haven’t given close consideration as to how you deal with vicarious trauma, you are most certainly at risk. Developing a ritual that you use regularly to release your mind from vicarious trauma is an effective technique. Walk along the beach; light a candle; leave a flower; say a prayer or blessing. The list of effective rituals is endless and completely personal. After a traumatic day at work, my ritual is swimming in the ocean and visualising the victim being released from pain and suffering. Find something that works for you and do it! What the evidence shows is that for a ritual to be effective in this area it should be practised regularly, and ideally prophylactically. If you deal with a matter at work that is objectively traumatic, don’t wait to feel the effects. Develop a ritual that works for you to let your brain know it does not have to hold onto the trauma from that day. Practised regularly, a vicarious trauma ritual can be one of the easiest and most effective techniques in your mental health toolkit.

Exercise If you’re still with me and haven’t skipped over this section after I mentioned the ‘E’ word, then read on. 30 minutes of raising your heart rate each day is absolutely proven to reverse the damaging effects of stress and brain fuel depletion. It doesn’t have to be difficult, and it doesn’t have to be all at once. Take the stairs at work; grab your morning coffee from the shop a little

areweOK?

further away from the office; take 5 minutes to walk outside on even the busiest of days. Incorporating additional exercise into daily life makes an enormous difference to your brain’s neurochemistry.

Get out in the sunshine We live in one of the sunniest places on earth. Just a few minutes of bright sunlight in the middle of the day will help boost serotonin levels. It will also increase melatonin levels which in turn will help you sleep. Both have a tremendously beneficial effect on mental health and wellbeing. Even if you can’t do much else in a day, take yourself out for a quick lunchtime walk in the sun, or stand in the sun rather than the shade while waiting for your coffee to be made – it will do your brain the world of good.

Activate a gratitude circuit Practising gratitude isn’t just for the crystal gazers. The science is clear: having a daily gratitude ritual rewires our neural networks and trains our cingulate cortex to focus on the positive. Put simply, the more grateful you are, the more you notice things to be grateful for. Gratitude is a simple but extraordinarily powerful tool in improving mental health. And studies have shown that its effects are most pronounced in those experiencing the highest levels of hopelessness. So, grab a journal, or simply set a daily reminder in your phone. And get grateful!

Contribute There’s a common saying that ‘what you get makes a living, but what you give

makes a life’. Find ways to contribute beyond yourself and your immediate family. Neuroscientists across the globe, all major religions and most leaders in psychology and psychiatry all agree: happiness comes from caring about something greater than yourself, and believing that you are contributing to something of larger importance. Engage in pro-bono work, join a community board, or donate time to charity. Bring in your neighbour’s rubbish bins, or buy a coffee for a stranger. Find ways to contribute and be kind to those in your neighbourhood. Consistently doing acts of service has demonstrated effects of improving fulfilment and personal happiness levels.

Be comfortable with your own mortality and humanness Having a healthy appreciation that none of us are getting out of here alive brings a perspective to our daily lives. Charles Bukowski once wrote “We’re all going to die, all of us, what a circus! We are terrorised by trivialities, we are eaten up by nothing!”. When we recognise that our life is limited, we can use this to bring a deeper sense of peace, acceptance, and joy to each day. When we allow ourselves to look at the larger picture, the things we endlessly worry about can begin to fade. Make a conscious choice to do at least one thing each day that sparks joy in your life. It may be engaging in a hobby you love. Or connecting with a loved one or pet. It might be watching the sunset or taking 5 minutes to appreciate the beautiful place in which we live. Daily acts of sparking joy

create a life that sparks joy – for yourself and others. Don’t let another day pass without doing something that truly lights you up. As human beings we will make mistakes. The further we climb the professional ladder, the greater our mistakes are likely to be. Be forgiving of yourself. Accept your imperfections as a human being. As lawyers we are trained to pick holes in an argument – don’t use those same honed skills to pick holes in yourself. Your brain will thank you for it. “Live fully while you’re here. Experience everything. Take care of your family, your friends, and yourself. Have fun, be crazy, be weird. Go out and screw up! You’re going to anyway so you may as well enjoy the process. Take the opportunity to learn from your mistakes: find the cause of your problem and eliminate it. Don’t try to be perfect; just be an excellent example of being human.”

Tony Robbins

Meneesha Michalka is an experienced criminal lawyer. She is secretary of the Perth Centre for Attitudinal Healing, sits on the Medical Board of Australia, and the Board of Governors of the University of Notre Dame. She is a professional public speaker, and runs CPD programs for professional bodies on practical strategies for dealing with stress, avoiding burnout and dealing with vicarious trauma. 23

areweOK? As part of the LawCare Wellbeing and Resilience Programme Law Society members have complimentary access to our Employee Assist Portal provided by Converge International

Mental Health Resources

The Employee Assistance Portal (EAP) is an online hub of resources designed to provide you with information on work related and personal issues. At times you may wish to access some information to assist you with certain issues in your life and the portal is there for this purpose. The EAP includes helpful information on: Conflict & Communication

Career Planning & Transition

Creating positive workplaces

Grief & Loss

Motivation and positivity

Mental health

However, the EAP should not replace face-to-face or telephone counselling. If you would like to book a counselling session, please call 1300 687 327. The service is completely confidential. “My sleep pattern has become terrible. I’d wake up worrying about silly things that just seemed to be overwhelming.”

“I realised after a while I was feeling anxious and starting to catastrophise pretty much everything going on and my family was worried about me.”

“I realised after while Ihas wascompletely feeling withdrawn. anxious and “Myadaughter She spends all day in her room and everything I’m worried about starting to catastrophise pretty much bullied going on and her mybeing family wason-line.“ worried about me.” “I’ve just had my work hours cut. My husband lost his job back in March “My daughter has completely withdrawn. She and our son lost his part time job too. I’m worried about our future.” spends all day in her room and I’m worried about her being bullied on-line.“

“I’ve just had my work hours cut. My husband lost his job back in March and our son lost his part time job too. I’m worried about our future.”

Logging Into the EAP To log in to the portal, go to www.convergeinternational.com.au and click the ‘Portal Login’ link on the top right corner and enter the username and password listed below to gain access. Username: converge Password: eap

“I can’t believe what a difference it made to speak someone help late me get “My mumtoand dad who are could in their 80’s now and I perspective on my problems.” can’t look after them. I feel so powerless and worry about their vulnerability. Feel so guilty too.”

“I can’t believe what a difference it made to speak to someone who could help me get perspective on my problems.”

The EAP is free to all Law Society members and is fully confidential. Best of all, it’s a flexible, super-tailored experience designed to help you with exactly what is making work/life tough for you right now. And while we’re talking about flexibility, we also offer whole range of ways to connect with you and at a time of your choosing, from phone, video conferencing, live chat or even face to face services in states where this is possible.

For assistance call 1300 687 327 lawsocietywa.asn.au/lawcare-wa/ 24 | BRIEF OCTOBER 2021

“My sleep pattern “My mumhas and become dad are interrible. their late 80’s now and I look afterabout them. Isilly feel so powerless and worry I’d wake upcan’t worrying things about their vulnerability. Feel so guilty too.” that just seemed to be overwhelming.”

Services provided via

Event Wrap-up

Practical Advocacy Weekend a High Point for Emerging Advocates!

he Law Society of Western Australia’s Young Lawyers Committee hosted the annual Practical Advocacy Weekend on 11 and 12 September at the Children’s Court of Western Australia. This bespoke intensive course provided 30 practitioners with immersive practice, over two days, by learning from the best and observing peers within small groups. Imagine a real court room, eight highly respected judges and barristers and a voice coach. The context was primed for an exceptional learning experience, including personalised feedback on advocacy skills, case analysis, the use of the voice as an important tool, and overall performance. A weekend is a very short time to cover the basics of such an enormous area of practice. The aim of the Advocacy Weekend is to provide participants with an opportunity to improve their advocacy skills in a non-threatening environment. The workshop method is intended to let participants set their own goals with each exercise, and coaches providing constructive criticism to develop their skills. The weekend was wrapped up with a well-deserved and relaxed lunch at The Shoe Bar in Yagan Square.

Thank you to the YLC volunteers for their assistance over the weekend, the course would not be possible without you. Thank you to each of the coaches and judges who so generously gave their time and shared their expertise: Bill Keane, Paul Yovich SC, The Hon Justice Stephen Hall, The Hon Justice Edwin Corboy, Her Hon Judge Carmel Barbagallo SC, His Hon Judge Gary Massey, Her Hon Judge Linda Petrusa SC, His Hon Judge Alan Troy and Henry Jackson SC, who volunteered their precious time to guide and educate our participants. Thank you also to the incredible voice coach, Julia Moody, who gives people the edge and a new-found respect for their voice.

Highlights of the weekend:

“All of the feedback from the judicial officers and coaches etc was outstanding. I learned so much and feel much more confident now”. “Being grouped with my colleagues. Spending time with the coaches/experts and getting feedback which is priceless”

“Good to hear and watch your own advocacy with a coach so you can see and hear your distracting habits while appearing before a court, to become more conscious of those habits and make changes to address them” “The weekend was an invaluable experience not only to learn and improve my advocacy skills but it was also a wonderful opportunity to meet the judicial officers and to connect with my colleagues from different firms and practice areas” “Coaches each had different preferences for the style of advocacy so it was useful getting each of their different views” “Brilliant. Would return again next year and do it all the same”.

Change the Culture is Here By Áine Whelan

General Manager Marketing, Business Development and Community Engagement, The Law Society of Western Australia

exual harassment is under the spotlight like never before, but how do we effect change and shift a culture that allows it to flourish? Understanding that sexual harassment is everyone’s business is a good starting point. Sexual harassment doesn’t just affect some of us or others i.e., victims, it affects everyone. Trauma on victims and bystanders, impact on effectiveness and productivity, poor stakeholder relations and subsequent economic fallout are all symptoms of the effects. Sexual harassment is an issue of gender inequality, power imbalance and the abuse of power in the workplace, giving rise to unsafe and toxic work environments. To quote the Sexual Discrimination Commissioner, Kate Jenkins, we need to “shift from the current reactive model that requires complaints from individuals, to a proactive model, which will require positive actions from employers. Ultimately, a safe and harassmentfree workplace is also a productive workplace”1. I would advocate positive actions from colleagues as well to shift from reactive to proactive. The definition of sexual harassment according to the Australian Human Rights Commission (AHRC) is “Any unwelcome or offensive sexual behaviour that is repeated, or is serious enough to have a harmful effect, or which contains an implied or overt promise of preferential treatment or an implied or overt threat of detrimental treatment. Sexual harassment can involve spoken, or written material, images, digital material or a physical act” Sexual harassment in the workplace has been prohibited since the Sex Discrimination Act 1984 (Cth) (Sex Discrimination Act) was introduced 37 years ago and is unlawful under antidiscrimination legislation at the federal level and in all Australian State and Territory jurisdictions. And yet, laws alone are only part of the picture. Sadly, the evidence indicates that sexual harassment is alive and well despite legislation. Taking the most recent survey results from Western Australia, conducted by Women Lawyers WA in 2019 with over 500 responses, this is what we know2:

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72% of those surveyed had

experienced sexual harassment in the workplace. The most common type of

harassment was lewd jokes or suggestive comments. Almost 95% of respondents stated

their harasser was male. 85.64% did not address the issue

with the harasser. Only 7.73% addressed the

harassment by making a formal complaint. Research conducted throughout Australia in the last few years clearly demonstrates consistent trends in sexual harassment, including that 90% of harassers are male, predominantly over the age of 40 and in a senior role in an organisation. Around one in three (36%) legal professionals said they had personally experienced sexual harassment at work with women significantly more likely to experience sexual harassment than their male counterparts (61% compared to 12% respectively). Most incidents of personally experienced sexual harassment went unreported (81%). Four in five (80%) stated it was easier to keep quiet.3 The AHRC national inquiry into Sexual Harassment in Australian Workplace in 2019 includes the following findings4:

National inquiry into Sexual Harassment in Australian Workplaces, Respect@Work: 2020 - (AHRC). Us Too? Bullying and Sexual Harassment in the Legal Profession 2019 – International Bar Association. Sexual Harassment in the Victorian Legal Sector 2019 – Victorian Legal Services Board + Commissioner. WLWA Sexual Harassment Survey

and Submission to ALRC 2019 Women Lawyers Western Australia. Seven Strategies for Addressing

Sexual Harassment in the Legal Profession 2019 - Australian women Lawyers. All the above reports indicate a high occurrence of sexual harassment in the legal profession, the majority of victims are female, there are high levels of bystanding behaviour and non-reporting and most importantly, low levels of trust in the system and processes to respond adequately to claims.

2021 - Clayton Utz, commissioned by the Australian Institute of Company Directors.

As the peak advocacy body for the legal profession in Western Australia, the Society responds to issues locally and nationally on a regular basis. In its statement to the WA legal profession on sexual harassment in 2020, the Society stated there is no place for sexual harassment in any profession, any workplace. Sexual harassment is both unlawful and entirely unacceptable. On a national level, the Society supports the Law Council of Australia’s (LCA) advocacy on sexual harassment and provided a submission to the LCA on reformulating Rule 42 of the Australian Solicitors Conduct Rules (the antidiscrimination and harassment rule). The Society also contributed to the LCA’s submission on the recent Sex Discrimination and Fair Work (Respect at Work) Amendment Bill 2021 which implements some (but not all) of the recommendations from the Respect@ Work Report, making amendments to the laws that currently exist under the Sex Discrimination Act, the Fair Work Act 2009 (Cth) and the Fair Work Regulations 2009 (Cth).

Review of Harassment in the South Australian Legal Profession 2021 – Report by the Equal Opportunity Commission to the Attorney-General.

The Society is also actively involved in consultations on the LCA’s National Model Policy on Sexual Harassment and on a state level is preparing a submission

More than half of respondents

reported they had not received training or information at their current workplace about sexual harassment. The most common type of sexual harassment experienced was “lewd jokes or suggestive comments” (77.95%). Less than 10% of those experiencing harassment addressed it by making a formal complain. The following reports provide valuable evidence and compelling arguments for change: Sexual Harassment in the Workplace

Change the Culture Training Addressing Sexual Harassment in the Workplace Learn the essential skills and tools required for your organisation to comply within our rapidly evolving social landscape. Our highly interactive workshop explores differing harassment scenarios and the best practices & procedures required to deal with them with expert Law Society facilitators. Structured over 6 chapters it incorporates four video resources which address real life stories, ‘the incident’, active bystanding and role modelling, the complaint, diary room, call to action and support services.

Learning Outcomes Greater awareness of what constitutes sexual harassment Awareness of predominant traits and culture that drive poor behaviour Knowledge the role of bystanders and the 5Ds in responding as an Active Bystander Understanding the importance of policies and procedures to deal with sexual harassment Value the role of leadership in modelling positive workplace behaviour

CPD Points The workshop is delivered by a specialist senior

trained facilitator in a 90 minute format, providing up to 1.5 CPD points in Practice Management.

More Info/Book To book one of our monthly workshops or get more info click here or visit lawsocietywa.asn.au/cpd-seminars For special inhouse training contact Áine Whelan at awhelan@lawsocietywa.asn.au 27

to the Discussion Paper recently released by the WA Law Reform Commission on our own outdated Equal Opportunity Act.

4. Confidential Support: Support

What is clear, laws and legislation alone are not a panacea to deterring unacceptable sexual harassment in the workplace. We must apply a strategic approach to addressing factors and work cultures that allow it to happen. The Law Society in reflecting on this is developing a strategic approach through four pillars under the call to action Change the Culture.

This four-pronged holistic approach requires each pillar to be activated and used in order to have an impact on culture and the systemic issues around workplace sexual harassment.

Change the Culture offers tools and training under four key pillars:

1. The Evidence: Recent research data

which sets out the facts about sexual harassment and bullying in the legal profession and supports a call for change within the legal profession.

2. Behavioural Change: Tailored

training for individuals and law firms to undertake as a means of taking action to shift the culture.

3. Systems and Procedures: Tools to support positive work cultures in response to sexual harassment.

aving been approached by senior members of the legal community to provide the necessary support for this training, the College of Law WA invested heavily in terms of financial support, time and resources to enable this event to take place. The College of Law believes that training needs to be accessible, contemporary, credible and practical. For that reason, the College utilised the experience of its extensive local practitioner teaching team, together with College alumni from a wide range of legal workplaces to contribute to the development and delivery of What’s Our Story? In addition to the above training, the Society is also delivering a training initiative licensed from the Queensland Law Society which is an Australian first legal industry training resource. Called Change the Culture – Addressing Sexual Harassment in the Workplace, this training utilises simulated scenarios of real events in a legal environment gathered from research. The training is interactive, structured over six chapters

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mechanisms for individuals impacted by sexual harassment and bullying.

This article will focus on the behavioural change component of the above Law Society strategy. The Law Society is offering two different training avenues to encourage open and safe conversations, motivate people to think about the holistic effect of workplace sexual harassment and examine their role in responding to and promoting a positive work culture. A suggestion for training with a difference came from the Joint Law Society Women Lawyers Committee (JLSWL) of the Law Society on recommendation from committee members Charmaine Tsang and Libby Fulham. Both had seen Equal Opportunity Specialists (EEO) present an interactive live theatre training environment which had strong resonance with audiences. The Society and The College of Law agreed to work with the

The International Bar Association (IBA) and The College of Law have recently collaborated to develop a set of free e-learning modules designed to assist individuals and organisations make the changes recommended by the 2019 landmark report Us Too? Bullying and Sexual Harassment in the Legal Profession. This free training is available now from the IBA website and is designed to guide individuals and workplaces towards making positive cultural change. Neville Carter, Chief Executive Officer of The College of Law, said: “Bullying and sexual harassment have no place in any profession.

incorporating four video resources which address real life stories. Standout takeaways from this training are: Awareness of predominant traits and

culture of the legal profession which drives poor culture Understanding bystanders and

the 5Ds in becoming an Active Bystander

EEO to deliver a similar event which we called What’s Our Story? Its strength is the live interactive dramatisation of sexual harassment in a legal workplace guided by the expert facilitator Franca Sala Tenna, Director of EEO. Professional actors played convincing characters in a legal workplace, with the script developed in partnership with the Law Society and local teaching staff and alumni from the WA College of Law. The audience played a vital part with opportunities to interact with the characters and the facilitator, to call out poor behaviour, reflect on the issues and change the narrative. The event in August was received very favourably with a feedback survey stating that 70% of respondents will definitely promote What’s Our Story? to others and 89% believing it is extremely important for as many people as possible from the legal profession to have access to sexual harassment training. As a result of the overwhelmingly positive response, the Society and The College of Law are looking to develop the concept with Equal Opportunity Specialists further so that others in the legal profession get to experience this memorable training.

Catherine Stokes, BA LL.B (Hons.) Executive Director, The College of Law (WA) and Accredited Mental Health First Aid Instructor

We are committed to providing our sector with the support it needs to improve its culture and practices. The 2019 report emphasised that frequent, high quality training is needed to address inappropriate workplace behaviours, which is why The College of Law is making the modules we have developed in collaboration with the IBA free for all individuals and organisations.”

Understanding the importance of

policies and procedures to deal with sexual harassment Valuing the role of leadership

in modelling positive workplace behaviour Training at the Law Society and at law firms on request, is being delivered by two trained and respected facilitators, Margie Tannock and John Poulsen.

Reflect on your own behaviour

Have proper induction processes and policies

Model the behaviour you want to see

Follow reporting and complaint processes

Be an “Active Bystander” - 5Ds

Behavioral changes and the 5Ds of Active Bystanding - integral parts of the toolkit the Law Society use in the delivery of the Change the Culture Workshops.

Margie Tannock ESG Legal “I have long been committed to an inclusive, supportive work environment to encourage the best in the practice of law. I am very pleased to be involved in this important initiative by the Law Society of WA, to deliver better integrity, transparency and accountability in identifying illegal and inappropriate behaviour in law firms.” Margie is an experienced senior lawyer, recently concluding 10 years as a partner of a global law firm. She now runs her own practice, ESG Legal, focussing on key strategic issues for clients in environmental, social and governance challenges. Margie advises clients on corporate governance and project development and works closely with clients to resolve regulatory risk across all aspects in corporate decision making, especially relating to major projects, climate change management and land access authorisations.

John Poulsen People Passion Performance “I am passionate about mental wellbeing in the workplace, which to me is all about creating an environment of trust and living values. Sexual harassment in

being an Bystander 5Ds ofActive the

1 Direct Intervention: talk directly to the harasser

2 Distraction: talk about something unrelated

Delegate: ask Delay: check Document: for help from a in with the record details third party person after the ASAP incident

the workplace is the antithesis of this. I want to help to make a difference and providing training on sexual harassment to the legal profession is one way I can do that.” John is the Principal of People, Passion & Performance and has deep ‘hands on’ experience in creating and developing workplaces where people have a shared vision and purpose, are fully motivated, engaged and empowered. From 2006 to 2017, John was the Australian Managing Partner and CEO of Squire Patton Boggs (initially as Managing Partner of Minter Ellison Perth), a top 10 Global Law Firm and led the firm to be one of the fastest growing law firms in Australia. Since the introduction of the Sex Discrimination Act 1984, the rate of change has been at such a slow pace that Australia has now fallen behind global trends in addressing and responding to sexual harassment . The Society recognises that the majority of those in the legal profession hold their professionalism and behaviour to high standards, however it is unfortunate that poor workplace behaviour and sexual harassment still prevails to the detriment of the whole profession. The conversations and feedback from the Society’s training events are helping shape conversations and action for much-needed improvement.

“Thanks for arranging what was a great and through provoking presentation” - Adam Levine, Partner K&L Gates

in the workplace is everyone’s responsibility, together, top down, bottom up, we will be the powerful agents of change”. #ChangetheCulture

End notes 1 Respect@Work: National Inquiry into Sexual Harassment in Australian Workplaces 2020 – Australian Human Rights Commission 2 https://www.wlwa.asn.au/our-projects/workplaceequality-reform-and-policies/workplace-harassment-inthe-legal-profession-survey/ 3 Sexual Harassment in the Victorian Legal Sector - 2019 study of legal professionals and legal entities (Victorian Legal Services Board) 4 National Inquiry into Sexual Harassment in Australian Workplaces 2019 - Australian Human Rights Commission 5 Respect@Work: National Inquiry into Sexual Harassment in Australian Workplaces 2020 – Australian Human Rights Commission

To finish with a quote from our President, Jocelyne Boujos, in her closing statement for What’s Our Story? “I invite you all to be part of Change the Culture, because sexual harassment

Respect

A report on the performance of What’s Our Story – Workplace Sexual Harassment By Libby Fulham

Executive Director, Legal Practice Board of Western Australia

hen I was welcomed into the Law Society’s Joint Law Society/Women Lawyers Committee (JLSWL) in 2019 the then and current Chair, Charmaine Tsang, spoke about an initiative arising from the Australian Women Lawyers report Seven Strategies for Addressing Sexual Harassment in the Legal Profession and a belief that sexual harassment training (whether mandatory or motivated) required more than 20 lawyers sitting in front of a PowerPoint slide show. Born from a visit to an experiential learning session in Melville mid-2019, where actors interact with the audience to work through inappropriate workplace conduct, and working with Charmaine to get this initiative off the ground, last night I was fortunate enough to sit with my fellow members of the JLSWL front and centre at the delivery of What’s Our Story – Workplace Sexual Harassment. Jointly sponsored by the Law Society and the College of Law, and with the support of the Legal Practice Board, the experience was led by Franca Sala Tenna of EEO Specialists. A lawyer, trainer, and workplace problem solver, Franca tries to make sense of the law to people who need to understand its everyday application. So what doesn’t make sense about sexual harassment? It is clearly misunderstood, not only as to the legal definition and its application, but dealing with displayed inappropriate behaviours, ignorance of the

impact, and acceptance of the silence that ensues when we cannot see the pathway through it. The Chief Justice opened the event reminding us of the theme underlying the subject of the performance: Respect. As put by the Chief Justice “respect for the fundamental dignity and humanity of each and every person, and how we can make that respect a reality in our workplaces”1. That script came through loud and clear in the performance. It is more than simply shaking your head, laughing it off, being complicit or making an excuse (whether or not in some uncomfortable position). It is facing the behaviour, seeing and responding, not repeating history but repairing past mistakes, putting in systems to raise awareness and providing tools we can use to meet this enormous challenge, a challenge that the Chief Justice coined as “What am I to do?”. Over one and a half hours, the innovative and dynamic performance explored the definition of sexual harassment as the ‘minimum’ standard of conduct in a workplace, not the ‘maximum’, and how as lawyers we should be beyond that conduct. Franca led us through the life of a small law practice with an embedded sexist and profit driven culture, and the experiences of a new junior solicitor when confronted with both subtle and overt inappropriate sexual harassment behaviours by a senior practitioner. Though clearly manifesting itself in the relationship between the victim and the

“It was an outright winner…..We needed something entirely different to get some cut through” - Catriona Macleod, Director, Cullen Macleod Lawyers perpetrator, the issues were exacerbated by the complicit behaviour of the founding Partner and the Senior Associate. Exploring the relationships in this law practice and unpacking some of the behaviours before the audience, Franca challenged the audience to be vulnerable and ‘pressed pause’ from time-to-time to allow the audience to discuss amongst themselves what they just witnessed and to speak to the characters truthfully. At times the audience got the opportunity not only to ‘repair’ a conversation gone wrong, but to counsel and guide the character to influence the story and discover their best practice. Just shy of 200 attended the performance, coming from every corner (independent bar, in-house, small and large firms, government, and educators). The opportunity to have present a complexity of representatives from the WA legal profession broke down barriers and generated many comments, questions and observations that openly challenged the behaviours in the performance and caused the audience to consider what they would do in the same situation. With more than 7,000 practitioners in WA, it is encouraging to have heard that this pilot performance is not intended to be the last (in occurrence or iteration). There are another 6,800 or more practitioners yet to participate in this eye opening and challenging experience assisting our whole profession to understand the impact of inappropriate behaviour. Our treatment of, and respect for, each other is an instrumental factor in meeting this challenge.

End notes The almost 200 attendees at What’s Our Story – Workplace Sexual Harassment.

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1 The full opening remarks to What’s Our Story – Workshop addressing sexual harassment by The Honourable Justice Peter Quinlan Chief Justice of Western Australia 24 August 2021 can be found on the Supreme Court website here

The Sword of Damocles provenance OF a phrase By Thomas Moorhead

Lawyer Advocacy and Professional Development The Law Society of Western Australia Classical references are a common feature of common law jurisprudence. An allusion to a mythological episode can add colour to a judgement and assist to illustrate a point of law. It is also a means by which a learned judge can demonstrate their learning.1 This article discusses one such reference and its use in Australian case law, the ‘Sword of Damocles’.

The term has also been employed in academia, notably in a learned article titled ‘The Use of Suspended Sentences in Australia: Unsheathing the Sword of Damocles’,12 which possibly misapprehends the original myth as there was never any suggestion that the sword hanging above Damocles was at any time sheathed.

The Parable

In Western Australia

The Sword of Damocles was brought into popularity by the famed Roman lawyer and statesman Cicero, in his Tusculan Disputations of 45 BC.2 The tale centres around the court of Dionysius II, who was the King of Syracuse in the late 4th Century BC. Dionysus II ruled harshly and had made many enemies, and he was so fearful of assassination that his bedroom was surrounded by a moat.

Former President of the Law Society and current Justice of the Supreme Court Kenneth Martin has used the expression at least thrice in his judicial decisions, once in 2012 to reject an argument on the characterisation of ‘high iron unbeneficiated fines material’,13 in 2019 regarding potential imprisonment for tax offences,14 and most recently in 2020 regarding removal of an applicant’s matter from the inactive cases list.15

One day, Damocles, a courtier, commented to Dionysus how fortunate he must be to be king. “Since this life delights you,” an annoyed Dionysius replied, “do you wish to taste it yourself and make a trial of my good fortune?” Damocles quickly agreed and began to live it up, eating succulent meats on a golden throne.

Master Sanderson has also recently used the allusion regarding inactive cases, considering that the sword is embodied in Order 4A Rule 28(1) of The Rules of The Supreme Court 1971 (WA).16

However, Dionysius II had made some arrangements to teach Damocles a lesson, and: There was a sharpened sword above his head That hung there by the thinnest simple thread.3 Damocles became so anxious that the sword would fall on him at any moment that he could no longer enjoy the feasting and was desperate to be excused. At the time, the parable of Damocles was one of the first illustrations in literature of the theme that those who hold power are also under constant pressure. This theme was particularly popular in the Middle Ages and found its place in Shakespeare: ‘Uneasy lies the head that wears a crown’.4 A more recent exposition of the principle may be found in Spiderman: ‘With great power comes great responsibility’.5

The Sword of Damocles in Australian Jurisprudence The Sword of Damocles is a versatile expression that has been employed in a variety of legal contexts. It has been used 169 times in Australian judicial decisions.6 Its first use in Australia is found in a 1928 High Court decision regarding awards made by the Arbitration Court which could be nullified by another tribunal.7 It has since been used in Commonwealth Courts in intellectual property matters,8 native title,9 admiralty law,10 and commercial law,11 to name a few.

The expression has also been used by the Court of Appeal to describe ‘mystery evidence’ (a video of a plaintiff in personal injuries matter), which may or may not be tendered.17 Fellow Brief contributor Justice McKechnie (as he then was) has also employed the phrase to describe suspended sentences.18

Conclusion: Damocles and Mental Health As the above examples have shown, the usage of ‘Sword of Damocles’ in judgements is to generally refer to threats, describe the practical effect of an order or rule, or the adverse consequences for a party if an uncertain interpretation of a statute or a contract is accepted. This usage is slightly different from the original parable which centred on Damocles not understanding what Dionysus II was going through as king. If the Sword of Damocles is taken to be anything that might be hanging over us and inducing anxiety, then there are many swords that hang over the lawyer. Managing the expectations of clients, courts and employers, the spectre of a complaint to the Legal Profession Complaints Committee, or a claim to explain to the Insurer are all part and parcel of practising law. Taking good care of one’s mental health, the theme of this edition of Brief, is crucial. This article has been a brief exposition of one of many classical references found in common law decisions. I hope it has provided some background to the expression, and I hope the Sword of

Sword of Damocles, Richard Westall 1812

Damocles will be alluded to in submissions, conversations and judicial decisions for centuries to come.

End notes 1 For some good examples, see Elwyn Elms ‘On the Use of Classical Allusions in Judgment Writing’ UNSW Law Journal Volume 31(1) 2 Accessible at https://www.gutenberg.org/ files/14988/14988-h/14988-h.htm page 185 3 Chaucer, Canterbury Tales, Lines 2028-2030 4 William Shakespeare Henry IV. Part II, 1597 5 http://www.quotecounterquote.com/2012/07/with-greatpower-comes-great.html 6 According to the Westlaw database 7 “Private or public confidence must be wanting respecting awards that constantly have hanging over them a sword of Damocles that is suspended, it may be, by the frailest hair of legal technicality”. Amalgamated Engineering Union v Alderdice Pty Ltd [1928] HCA 38; (1928) 41 CLR 402 (26 November 1928) Per Isaacs J 8 CQMS Pty Ltd v Bradken Resources Pty Ltd [2016] FCA 847, GM Global Technology Operations LLC v SSS Auto Parts Pty Ltd [2019] FCA 97, both decisions quoting Bowen LJ in Skinner & Co v Perry (1893) 10 RPC 1 at 8, ‘The legislature desires that threats of patent action shall not hang over a man’s head; that the sword of Damocles, in such a case, should either not be suspended or should fall at once …’ 9 Smirke v Western Australia (No 2) [2020] FCA 1728, at 369 – this was a submission of Counsel quoted in the judgement 10 Atlasnavios Navegacao LDA v The Ship “Xin Tai Hai” (No 2) [2012] FCA 1497 at 134 11 Australian Gas Light Company v Australian Competition & Consumer Commission [No 3] [2003] FCA 1525 per French J (as he then was) at 612 12 Lorana Bartels, ‘The use of suspended sentences in Australia: Unsheathing the Sword of Damocles’ Criminal Law Journal, Volume 31, No 2, 2007 13 Economically marginal UBF or HIUBF stockpiled by the defendants simply cannot have a ‘ Sword of Damocles ‘ hanging over it, dependent upon the defendants’ eventual decision about their ultimate use Process Minerals International Pty Ltd -V- Consolidated Minerals Pty Ltd [2012] WASC 268 (31 July 2012)

Kenneth Martin J at 60

14 Arbuckle -V- Commissioner Of Taxation [2019] WASC 7 (17 January 2019) at 139 15 So there will be another, in effect, ‘ Sword of Damocles ‘ poised over the applicant who succeeds in getting their action taken off the Inactive Cases List, if they do not then progress it along, once it is restored. Phoenix Eagle Company Pty Ltd -V- Tom Mcarthur Pty Ltd [No 3] [2020] WASC 272 (22 July 2020) at 62 16 Ansa Enterprises Pty Ltd -V- Australian Finance Group Ltd [2020] WASC 378 (20 October 2020) Per Master Sanderson at 7 17 Boyes v Colins [2000] WASCA 344 per Pidgeon J, Ipp J And Wallwork J at 83. 18 Marshall v Martyn, [2009] WASC 272 at 25

Update: Equitable Briefing Policy By Charmaine Tsang

Joint Law Society Women Lawyers (JLSWL) Committee Chair Partner at HFW - Workplace Relations, Director of Australian Women Lawyers

n 22 June 2021, the Law Society held a panel discussion on the Equitable Briefing Policy. The Equitable Briefing Policy was adopted by the Law Council of Australia (LCA) in June 2016, and set a target that by 2020, women barristers would be briefed in at least 30% of all briefs, and receive at least 30% of the value of all brief fees. The discussion was chaired by Joint Law Society Women Lawyers (JLSWL) Committee Chair, Charmaine Tsang, and the panellists were: Nicole Duncan, Chief Legal Officer

and Company Secretary, South32; Kim Lendich SC, Francis Burt

Chambers; Kirsty Sutherland, Partner in Charge,

Corrs Chambers Westgarth; and Clive Luck, Partner, Major Projects

and Construction, Clayton Utz. The JLSWL Committee’s purpose includes: to promote gender equality in the

legal profession; and to encourage acceptance that the

profession has a responsibility and an interest in achieving gender equality, and that it will not occur simply as a matter of time. The Equitable Briefing Policy is a standing agenda item for the JLSWL Committee, and has included the publication of an article, “The Equitable Briefing Policy – Three Years On” in the March 2020 edition of Brief. Ms Tsang is also the Law Society’s representative on the LCA’s Equal Opportunity Committee that has responsibility for preparing the Annual Reports on the Equitable Briefing Policy. The last published Annual Report is for the 2018-2019 financial year, and provided data as summarised in the diagrams on the following two pages. The LCA’s Equal Opportunity Committee is currently undertaking a review of the Equitable Briefing Policy. As part of that review, it is considering the following: the Equitable Briefing Policy’s targets; the value of briefs; annual reporting; and

32 | BRIEF OCTOBER 2021

whether the Equitable Briefing Policy

should continue in its existing form (including the commitments made under the Equitable Briefing Policy). The LCA’s Equal Opportunity Committee will be preparing a paper regarding options going forward. In the meantime, there will be some transitional arrangements while the review is underway, with the inclusion of some free-form questions in the reporting portal from 30 June 2021. These questions address whether or not COVID-related remote access arrangements have impacted on briefing practices. The panellists shared the following observations about the Equitable Briefing Policy. Nicole Duncan was motivated to adopt the Equitable Briefing Policy at South32 when it was created from the demerger from BHP. At the time, she was setting up the in-house legal function for South32 and turning her mind to the firms that South32 was looking to engage. This gave her the opportunity to reflect on why the South32 legal and company secretarial team should be championing diversity and inclusion through their engagements. At South32, external firms and the bar are sought out to assist with large matters requiring external resourcing or to advise on complex issues where external guidance and experience is required. Thus, it is imperative for South32 to ensure that its advisors cover a broad range of qualities in terms of background, experience, and diversity that prompts them to think about difficult issues in innovative ways to provide South32 with the best advice. As a result, South32 launched “Principles of Diversity – Diversity of Every Form” guidelines which are incorporated into its agreements with firms and contain commitments for equitable briefing. In Australia, this means that when firms recommend barristers to South32, they should ensure their recommendations include women barristers. In practice, this requires diligence from both the firms and South32 to incorporate equitable briefing into their working practices, especially when putting together an external team (of solicitors and barristers) is time critical.

Signing up for the Equitable Briefing Policy requires a commitment to submit a report on performance against the Equitable Briefing Policy. Nicole noted that tracking performance and making the data regarding performance against the Equitable Briefing Policy transparent would be a good way to embed and entrench equitable briefing into an organisation’s way of working, but cautioned that this leads to a resourcing impost on the organisation which may not be sustainable over the long term. Kim Lendich SC spoke to the fact that the Equitable Briefing Policy could not be adopted by a Chambers as a whole. The Board of Francis Burt Chambers had explored doing so, but each barrister is required to individually sign up. This approach prevents organisations from promoting and encouraging adoption of the Equitable Briefing Policy and leading by example. Kim had spoken anecdotally to a number of barristers before attending. Those discussions were consistent with her observations that barristers generally believed in the core values underpinning the Equitable Briefing Policy, but that reporting of performance against the Equitable Briefing Policy was generally unmet. Kim raised a concern about the value of the data in the Annual Report. The lack of uptake meant that the figures reflect the views and approach of those who have signed up to the Equitable Briefing Policy. That is, the figures were skewed and do not reflect the state of the profession as a whole. Until a significant portion of practitioners are reporting, the data is of limited value. That said, it was important to start somewhere and encourage participation. Kim was hopeful that the recent shift in mindset to accept remote access as the norm may assist women trying to work more flexibly. This is both a risk and benefit to West Australian barristers who can more easily be briefed on matters in other states, but also face increased competition from interstate barristers. The Equitable Briefing Policy sets a target for women barristers to receive both 30% of number and 30% of value of briefs. Those targets are useful, and certain types of organisations are endeavouring

41%

Were large firms

122

42%

Were medium firms

Briefing entities were adoptees of the policy in this reporting period

17%

Were small firms

57% 43%

321 Barristers were adoptees of the policy in this reporting period

Were female barristers (183) Were male barristers (138)

36% (117 barristers) reported for the reporting year (2018-2019)

44% (52 briefing entities) reported for the reporting year (2018-2019)

28,865

27%

Were female barristers (7,778)

Barristers were briefed during the reporting period

73%

Were male barristers (21,087)

to meet or exceed them. Federal regulators (like the ACCC and CDPP) are actively – and obviously – working to do so. However, the challenge lies in ensuring that women barristers receive complex or high value briefs, and to ensure that junior female barristers have opportunities for advocacy roles. Kim considers there is considerable work still to be done on that front. While targets are important, there was also a concern that women may be included in lists to clients to give the appearance of compliance, rather than as serious contenders. In Kirsty Sutherland’s experience, in complex commercial litigation the members of the senior bar are instrumental in directing briefs to the general bar, so it is disappointing to see only 183 female barristers and 138 male barristers signed up to the Equitable Briefing Policy across Australia. Corrs signed up to the Equitable Briefing Policy because it views gender equality as important and it was the right thing to do. When Kirsty started working at Corrs in the early 1990s, her supervising partner, Carmel McClure, was also the head of litigation and went on to become a senior barrister and then the first

What was paid?

Who was briefed?

Who Adopted the policy?

Findings from the 2018-2019 financial year report

female barristers received

$419.7

Approx. overall briefing fee value

president of the Court of Appeal. Corrs also went on to have a female CEO and a female head of office in Melbourne, who was also an extremely competent and fierce litigator, so there were several role models who set the tone for briefing women barristers. Corrs also signed up because it believes it is extremely important that when making a briefing decision, it is cognisant of the full array of talent at the bar. One of the most important things to do as litigation lawyers, particularly with large complex disputes, is to select the right team and the core of that team is counsel. It’s all about briefing the best barrister. The talent at the bar seems to constantly change, as new talent comes in and talent matures, and to identify the best, it is important to consider the full scope of talent available at the bar and not just a small subset who are well known in particular areas. To achieve this and ensure Corrs can provide opportunities for female barristers to showcase themselves and for the solicitors to get to know the female barristers (because when making a choice or recommendation for a barrister it is important to have trust in the barrister),

20% of the overall briefing fee value ($83,467,374.60)

Corrs actively looks for forums where people are asked to speak and showcase their legal skills, such as through trial advocacy courses, continuing legal education and networking functions. Corrs’ policies for engaging external experts include equitable briefing requirements and the firm has a ’Briefing Counsel Corrs Best Practice’ guide that includes things that should be considered when making a briefing choice, including seeking recommendations across a broader pool, consciously thinking about whether there are women in the list put forward, and if not, why not. In developing this guide a few years ago, Corrs conducted a survey asking its solicitors about their briefing practices. About 20% of survey respondents said they had been asked by a client to put forward a female barrister and 77% of respondents said their choice was based on past experience. Another significant factor was area of expertise and less significantly referrals or recommendations. (A number of Corrs’ institutional clients are signed up to the Equitable Briefing Policy and there is a general expectation that Corrs would be complying with the obligations under the Equitable Briefing Policy.)

Findings from the 2018-2019 financial year report Who did barristers recommend for current matters?

59%

41%

Were female barristers (539)

Were male barristers (367)

Who did senior barristers recommend for current matters? Recommended Seniors

49%

Were female barristers (80)

Who was recommended for new matters? By Seniors

60% Were female barristers (259)

40% Were male barristers (173)

By Juniors

62% Were female barristers (267)

The survey results support the proposition that for more women barristers to be briefed, they require more exposure, more experience, and to have established trust with firms to build up their referral network. Corrs is supported in its reporting to the LCA by its Diversity & Inclusion team. Clive Luck noted that Clayton Utz signed up to the Equitable Briefing Policy in 2016 because there was a general feeling that it was the right thing to do. In addition to that, there was also significant encouragement from key clients, particularly on the Eastern Seaboard, to do so, both in the private sector but in particular in the government sector. Reporting briefing practices against the Equitable Briefing Policy has been helpful to work out how effective the Equitable Briefing Policy has been, and whether being a signatory was making any difference. Once the data was captured, it was possible to realise the extent of the problem in terms of what was happening with briefings. Clive noted that while there is a natural inclination to not want to acknowledge a prejudice against briefing female barristers, sometimes it is unconscious bias, but when there is raw data to review, it is difficult to discount

34 | BRIEF OCTOBER 2021

38% Were male barristers (162)

51%

Were male barristers (83)

Recommended Juniors

65%

Were female barristers (317)

35%

Were male barristers (172)

Who did juniors recommend for current matters? Recommended Seniors

46%

Were female barristers (45)

these issues. Clayton Utz started to record data in significant detail in the 2019 financial year, and during the course of the next three years of capturing the data, the net value of briefs going to female barristers and also the total number of briefs going to female barristers has increased. Nationally it increased at 1% a year, and whilst the firm nationally is not at the 30% target, the performance of the Perth office increased quite dramatically (although it is still below the 30% target). The Perth Major Projects and Construction group has an approximate 50/50 split in terms of both the number of briefs and the value of briefs going to female and male junior barristers. The Perth office as a whole was running at approximately 18% in 2020. One of Clayton Utz’s largest practice areas is litigation. Nationally, Clayton Utz would brief the bar on average for $45$55 million in fees a year, and in 2021, about 18% by value was going to female barristers and about 23% by total number of briefs. Breaking the data down further, it seems more junior female barristers are being briefed compared to senior barristers.

54%

Were male barristers (52)

Recommended Juniors

62%

Were female barristers (97)

38%

Were male barristers (60)

To capture the data, when Clayton Utz briefs, it advises counsel that the firm is a signatory to the Equitable Briefing Policy and asks for confirmation of gender. This is then logged into the system, and each time a bill is issued, the data is automatically captured, enabling the annual reports to be generated for the LCA. Some clients have a particular interest in the Equitable Briefing Policy as well, and request that Clayton Utz report to them on its progress. Similarly, if the client is signed up to the Equitable Briefing Policy they will sometimes report to Clayton Utz on its own progress in that area. The data also supports that some of the strongest supporters of briefs to female barristers, particularly at the senior advocacy level, are government and quasi-government departments. The Clayton Utz data shows that its ACT office brief 45% by net value and total number of briefs to female barristers. This is possibly driven by the fact that a number of government departments go beyond a mere target approach and have something close to a mandatory obligation to appoint a variety of female and male barristers, which demonstrates that the approach is having a significant impact on briefing trends. This supports

that there is a significant client element in the success of the Equitable Briefing Policy. Firms need to take a leading role in ensuring that female juniors have an opportunity to be involved in significant matters and are engaged in an advocacy capacity. How good a barrister is often depends on the experience they have and the opportunities they have been given, so it is important for firms to engage with junior female barristers. That is not something that can be fixed quickly, and requires a significant investment by firms and members of the bar to ensure that juniors do get experience and exposure to significant matters. In Clive’s experience, whilst there is consultation with senior barristers and the client, often the firm makes the decision on the appointment of a junior barrister in a matter. This places the firm in a unique position to look at female options when trying to put together the best team. At the end of the day, clients engage firms to solve problems for them, so the primary focus is on doing the best for the client’s interests. If you start from that perspective, and then look at what options are available, inevitably you will find that there are female options

available. So where are we now? Having heard from our four panellists, in-house and the large law firms are demonstrating a strong desire to engage counsel with diverse practice areas and qualities and report on those actions. As Clive Luck commented, while there is an administrative burden to reporting, there is real value to committing to sign up to the Equitable Briefing Policy first and look to drive real change from there.

tralia

Law Council of Aus

Equitable Briefing Policy June 2016

The uptake in barristers signing up to the Equitable Briefing Policy remains very low across Australia. Perhaps this is a reflection of the technical barriers to effective reporting or the inconsistency in the approach to equitable briefing, including Chambers that don’t promote ‘even-split’ recommendations, less complex matters or matters with little in the way of advocacy work being briefed to women, or disingenuous enquiries being made in order to ‘tick the box’. What is clear is the commitment to change reaps rewards for the client, counsel and ultimately the profession as a whole. Actively promoting diversity and equality strengthens the profession and in particular the development of talent amongst the independent bar.

The Equitable Briefing Policy adopted by the Law Council of Australia. Click the cover to read the document or find out more about signing up and reporting.

Taxing Matters

Know You of This Taxation? PART IVC OBJECTION PROCEEDINGS By Matthew Crowley

Barrister, Francis Burt Chambers

Part IVC in context 1. Forgive me the cliché of invoking Shakespeare to decorate a tax paper. It is a common pox, it seems.1 But bear with me. The line falls from the mouth of Henry VIII in the eponymous play.2 Cardinal Wolsey has fallen into royal disfavour when his machinations are exposed. Among those is Wolsey’s collection of an unlawful tax – a ‘Sixth part of each … a trembling contribution!’. Queen Katherine petitions Henry on behalf of “not a few” warning his subjects are “in great grievance … and almost appear / in loud rebellion.” The Duke of Norfolk ‘mansplains’: “for, upon these taxations / The clothiers all, not able to maintain / The many to them longing, have put off / the spinsters, carders, fullers, weavers, who / Unfit for other life, compell’d by hunger / And lack of other means, in desperate manner / Daring the event of the teeth, are all in uproar / And danger serves among them!” Henry is not amused: “Taxation! / Wherein? And what taxation? My lord cardinal / You that are blamed for it alike with us / Know you of this taxation?” Henry commands that the tax is not to be recovered: “Have you a precedent / Of this commission? I believe, not any. We must not rend our subjects from our laws / And stick them in our will.” Things do not end well for Wolsey. 2. Henry VIII is not a great play. Neither funny nor emotive, it is a morality play which is nowadays rarely staged.3 It is probably most memorable for the stage prop cannon, which was actually fired during a performance in 1613, setting fire to The Globe and burning it to the ground. But the constitutional point would probably have been pretty clear. Although Magna Carta – which (among other things) forbade taxation by royal fiat – was a dead letter by the early seventeenth century, at the same time jurists such as Sir Edmund Coke began invoking it as symbolic of a fundamental principle of English constitutional law subordinating the monarch to the law.4 That is, I think, the point of the words put into Henry’s mouth.

An organizing principle: No incontestable taxation

Your grace, it would seem Wolsey did not enjoy the play

36 | BRIEF OCTOBER 2021

3. That rather large arc brings me to Part IVC of the Taxation Administration Act 1953 (Cth) (TAA). Part IVC can be seen as the fulfilment of the constitutional requirement that to be a valid exercise of the federal taxation power an assessment must be contestable.5

Of course, not all ‘objections’ or ‘objection decisions’ relate to assessments. A very recent example can be found in The Buddhist Society of Western Australia Inc v Commissioner of Taxation [2020] FCA 1126 involving the Commissioner’s revocation of the Society’s status as a deductible gift recipient. Private rulings are another. And not all objectionable decisions are ‘objection decisions’ engaging Part IVC. In fact, theoretically the validity of all decisions of the Commissioner are capable of challenge outside Part IVC for jurisdictional error. That is because the Parliament cannot oust the constitutionallyentrenched jurisdiction of the High Court to grant relief in respect of a legally invalid decision. That is, a decision vitiated by ‘jurisdictional error’ is always theoretically capable of challenge, ‘jurisdictional error’ being a conclusion that the decision was without any legal authority. But there’s the rub – Parliament does not always intend that the legal consequence of a decision wrongly made be invalidity. 4. I dare say most Part IVC proceedings do concern assessments, for obvious reasons. But in practical terms challenges to assessments must be funnelled through Part IVC. One reason is that even an otherwise meritorious challenge to an assessment made on judicial review to the High Court (or the Federal Court in its derivative statutory jurisdiction under section 39B of the Judiciary Act 1903 (Cth)) will almost certainly be refused on discretionary grounds because Part IVC has not been invoked.6 The other, more fundamental, reason is that the assessment conclusivity provisions7 mean that even assessments made wrongly are not invalid. They would not be vitiated by jurisdictional error. 5. True, a ‘provisional’ or ‘interim’ or ‘tentative’ assessment can be challenged outside Part IVC.8 But that is because they are not ‘assessments’ at all, and therefore do not engage the conclusivity provisions. Also true, an assessment affected by ‘conscious maladministration’ (bad faith) may be challenged outside Part IVC.9 But that way madness lies! There has never been a successful ‘conscious maladministration’ challenge, so far as my research has disclosed. The practically insuperable problem is a lack of evidence of bad faith. 6. Because of the assessment conclusivity provisions, an assessment would be effectively incontestable (and unconstitutional) but for Part IVC. But Part IVC is invoked on a ‘taxation objection’ –

not just assessments – being made: 14ZL TAA. A ‘taxation objection’ is capable of being made by a person ‘dissatisfied with an ‘assessment, determination, notice or decision’ where such a right is conferred by a provision of another instrument (except private rulings, which are automatically capable of being the subject of taxation objections). Not every decision (in its broad sense) invokes Part IVC. It is therefore important10 to locate Part IVC in the context of the wider Australian administrative law machinery.11

Part IVC not the Alpha and the Omega 7. Putting aside assessments for now, the Administrative Decisions (Judicial Review) Act 1974 (Cth) (ADJR) permits challenges to a range of the Commissioner’s decisions or proposed decisions in the Federal Circuit Court or Federal Court. Assessments are excluded,12 but many relevant decisions are not. Importantly, it is not necessary to establish jurisdictional error to obtain the very broad range of relief available on judicial review, including orders quashing a decision, declarations, and injunctions restraining certain conduct. 8. But most importantly, section 13 of the ADJR confers a right to written reasons for a decision (to which the ADJR applies). ADJR applications for review may be, and often are, coupled with applications for jurisdictional error under section 39B of the Judiciary Act. That is often because ADJR applications are attended with considerable complexity and particular limitations – of which 39B applications are free. Injunctions and declaratory relief may also be available under 39B irrespective of jurisdictional error. A convenient recent example highlighting the possibilities (and complexities) is supplied by Quach v Commissioner of Taxation [2019] FCA 1729; 168 ALD 130 where the taxpayer challenged the Commissioner’s decision under section 8AAG of the TAA to refuse to remit GIC under the ADJR and 39B grounds, as well as seeking declaratory relief. 9. Common decisions that can be challenged under the ADJR (and/or

39B) include: late lodgement penalties and charges, and refusals to extend the time for lodgement or to make certain elections;13 refusing to extend the time to pay tax or pay by instalments;14 GIC or SIC remission decisions;15 decisions to issue garnishee notices,16 and;notices to produce documents.17

Standing to object 10. Only a ‘dissatisfied person’ with ‘a taxation decision’ has standing to make a taxation objection. That connotes someone directly affected, not a busybody or someone with a collateral commercial interest.18 An interesting situation arose in Mark Van Gestel and Commissioner of Taxation [2014] AATA 396; 98 ATR 904 where the Tribunal accepted that a taxpayer was a ‘dissatisfied person’ on an objection decision involving disputed GST refunds because he was a victim of identity fraud. 11. But practically speaking, the requirement is mainly exclusionary. It excludes ‘partnerships’ because they are not legal persons. Rather, the individual partners have standing. It excludes bankrupts on a challenge to assessments, unless the liability would remain following discharge from bankruptcy.19 It is, ordinarily, the trustee in bankruptcy who has standing. Nevertheless, a bankrupt may still have standing before the Tribunal to seek an adjournment of a Part IVC review pending a Federal Court challenge to a bankruptcy trustee’s decision to take no steps to prosecute Part IVC proceedings already underway.20

‘Taxation objection’, ‘objection decision’, and ‘reviewable objection decision’ 12. A ‘taxation objection’ will (or should) produce an ‘objection decision’ which will in turn be productive of a ‘reviewable objection decision’ (which is an ‘objection decision that is not an ineligible income tax remission decision’) – the subject matter of the ‘review’ or ‘appeal’ under Part IVC. If no objection decision is made at all, a taxpayer may within 60 days after lodgement invoke section

14ZYA to require an objection decision to be made. There is no statutory sanction for the Commissioner not doing so, but the objection decision is deemed to be disallowed so that a review or appeal can be pursued. For that reason, mandamus will probably not be available to compel its exercise. 13. Not infrequently, a review is lodged in the Administrative Appeals Tribunal (Tribunal) in circumstances where there has not been a valid ‘taxation objection’ but no one has noticed. In such a case, the Tribunal does have jurisdiction of the de facto decision but is limited in what it can do with it. The Tribunal’s jurisdiction is invoked because there is a decision in fact which is the subject matter of the review – it is not necessary for there to be a legally valid decision.21 14. But the stream cannot rise higher than the source: the Tribunal’s powers are limited by the enabling Act so that there may be no power to set aside or vary the ‘objection decision’ because the original decisionmaker’s power was not ever enlivened.22 A recent example of this is supplied in C and K Components Plus Pty Ltd and Commissioner of Taxation (Taxation) [2018] AATA 4666 where the taxpayer sought to have reviewed the Commissioner’s refusal to make a private ruling: A private ruling actually made is a reviewable objection decision, but not a decision not to make one at all. The problem most often arises where a ‘taxation objection’ is made outside the time limits set out at section 14ZW(1) TAA (and no extension has been requested under section 14ZW(2)).

‘Review’ in Tribunal or ‘appeal’ to Federal Court? 15. An important forensic choice. The most important forensic decision in Part IVC proceedings is, I suspect, also the least considered. Part IVC is a bifurcated system conferring on the taxpayer a choice between merits review in the Tribunal or a hybrid ‘appeal’ to the Federal Court: 14ZZ(1) TAA. While the subject matter – the ‘reviewable

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Taxing Matters objection decision’ – is the same, there are fundamental differences. Tax agents have a right of appearance in the Tribunal, but not the Federal Court. There can arise the perception of a conflict of interest in a tax agent advising a client where the tax agent is likely to secure for herself a financial benefit only where one of those options are pursued. 16. Federal Court. An ‘appeal’ to the Federal Court is not a true appeal because it is an original jurisdiction application. It is really a hybrid proceeding, with some characteristics of a de novo hearing and others akin to judicial review. Where an assessment is being ‘appealed’, it is ‘necessary for the taxpayer to prove, by proper evidence put before the appeal Court, what is the correct amount of the taxpayer’s taxable income in respect of which the Commissioner should have made his assessment.’23 That may include evidence not before the Commissioner. It may involve questions of law or fact. These factors have the character of a de novo hearing. 17. However, where the objection decision involves the exercise of a discretion, the taxpayer on ‘appeal’ must demonstrate error on the part of the decision-maker. So, for example, an ‘appeal’ to the Federal Court challenging an amended assessment made outside the ordinary limitation periods on the basis of the Commissioner’s opinion of ‘fraud or evasion’ could prevail if: (a) they introduced evidence demonstrating on the balance of probabilities that the assessments were excessive in any event, or (b) demonstrating legal error in the formation of the opinion of ‘fraud or evasion’ on the basis of the evidence before the Commissioner.24 This latter point is more characteristic of an appeal in the ordinary sense. On the other hand, if a taxpayer prevails in establishing this latter challenge, then the Federal Court may exercise the discretion itself – and on the basis of evidence not before the Commissioner.25 The ‘appeal’ is a strange bird. 18. Tribunal. Conversely, a review in the Tribunal is a review de novo. Any discretion exercised by the Commissioner is reexercised by the Tribunal, and may be based upon any new information introduced by the taxpayer. Indeed, any relevant new information must be considered. It is not directed to the correction of error by the Commissioner. Where a precondition to an assessment is the formation of an opinion, for example an out-of-time assessment made on the basis of the fraud or evasion exception, then on review if the Tribunal can be persuaded that there has not been any fraud or evasion, the assessment will necessarily be excessive.26 19. How to decide? These considerations may be helpful. First, costs. A successful party on ‘appeal’ to the Federal Court will almost always be entitled to her costs. On a Part IVC challenge to an assessment, if there is a strong

38 | BRIEF OCTOBER 2021

evidentiary case showing the assessment was in fact excessive, an ‘appeal’ is probably the best bet. Second, privacy. Tribunal reviews (but not Federal Court appeals) are private if requested, and identities can be anonymized: section 14ZZJ TAA; 43 Administrative Appeals Tribunal Act 1975 (Cth). On the other hand, if either side appeals the privacy advantage may be lost: although the taxpayer’s identity will have renamed, the facts will often expose identity. Third, discretionary decisions. If the taxpayer seeks to impugn a discretionary decision, it will ordinarily be more strategic to seek a review in the Tribunal. Whereas error must be demonstrated in the Federal Court, the Tribunal simply exercises the discretion anew. Fourth, admissibility of evidence. In the Federal Court the Evidence Act 1995 (Cth) regulates the admissibility of evidence, whereas the Tribunal is not bound by rules of evidence. ‘Borderline’ evidence, including hearsay-type evidence, would be better suited to a Tribunal review. On the other hand, the difference should not be exaggerated. ‘Adventurous’ modes of evidence may command little weight.27

Burden of proof 20. As everyone knows, the taxpayer has the onus of proof in either a review or appeal: section 14ZZO; 14ZZK TAA. Where there is a factual issue, such as a challenge to an assessment, the standard is the balance of probabilities. There is no standard of proof where the review or appeal concerns the exercise of a discretion. In the case of a Tribunal review, the Tribunal simply reexercises the discretion anew. On an appeal, error must be shown. Neither invoke any standard of proof. 21. Assessments. In the typical case of an assessment, the Commissioner need not lead any evidence at all, and just rely on the taxpayer’s burden of proof.28 Brennan J’s statement in Federal Commissioner of Taxation v Dalco [1990] HCA 3; 168 CLR 614 at [12] is canonical: The manner in which a taxpayer can discharge that burden varies with the circumstances. If the Commissioner and a taxpayer agree to confine an appeal to a specific point of law or fact on which the amount of the assessment depends, it will suffice for the taxpayer to show that he is entitled to succeed on that point. Absent such a confining of the issues for determination, the Commissioner is entitled to rely upon any deficiency in proof of the excessiveness of the amount assessed to uphold the assessment, though the taxpayer is limited to the grounds of his objection. 22. In fact in the absence of some sort of concession by the Commissioner, the taxpayer must establish every aspect of his

(factual) case. Sometimes, the Commissioner will agree to confine a review in this way. An ATO position paper may lay the groundwork for such a concession. 23. A corollary is that the taxpayer cannot discharge the burden under Part IVC merely by pointing to an error by the Commissioner. On the other hand, it is a myth that a taxpayer’s own testimony evidence cannot be sufficient in itself to discharge her onus. 24. In Federal Commissioner of Taxation v Ma (1992) 37 FCR 225, Ma was a restaurateur and horse-racing punter. The Commissioner assessed all bank deposits as income as higher than could be accounted for from the business of the restaurant. Ma put on oral evidence from his bank manager, bookmaker, and an official from the Port Macquarie Racing Committee. Burchett J said at 230: if a taxpayer denies any undisclosed source of income, provides acceptable evidence of how he spends his time, and demonstrates a reasonable explanation for any appearance of the possession of assets, he will generally discharge his burden of proof unless some positive reason is shown why he is to be disbelieved. 25. A 5-member Full Court seemed to approve in Haritos v Commissioner of Taxation [2015] FCAFC 92; 233 FCR 315. 26. Of course, the taxpayer has a positive burden to show what her income actually was and the tax payable. The point is that there are many paths to the mountain peak. That is why Brennan J said in Dalco ‘[t]he manner in which a taxpayer can discharge that burden varies with the circumstances’.29 27. It is possible for a taxpayer to simply depose to her income.30 If evidence from the taxpayer is to play any significant part, questions of credibility and weight should not be overlooked. On the other hand, one consequence of the so-called ‘Brigginshaw’ test directs that ‘dishonesty’ (or other serious allegation) should not be found on skinny evidence.31 And it would be unfair for the Commissioner to submit, or the Tribunal or Federal Court to find, that a taxpayer was being untruthful unless the allegation had been properly put to the taxpayer.32 28. For corporate taxpayers, section 1305 of the Corporations Act (Cth) directs that a ‘book kept by a body corporate under a requirement of this Act is admissible in evidence in any proceeding and is prima facie evidence of any matter stated or recorded in the book.’ Whereas the exception to the hearsay rule for business records is merely a rule of admissibility, section 1305 directs not only that the evidence is admissible but that it is prima facie evidence of what it says. Importantly, ‘books’ includes ‘financial records’ embracing ‘invoices, receipts … working papers and other documents needed to

explain… the financial statements.’ It does not follow that the evidence is ultimately accepted in the deliberative process, but it would ordinarily be unless it is somehow inconsistent with other cogent evidence.33 29. Hopefully there are some things in this paper that will help you navigate your next Part IVC proceedings. Before I sign off, there is one other reason I thought Shakespeare was apt. Recent scholarship has uncovered evidence that the Bard was himself a tax evader. A ‘lay subsidy’ was apparently imposed on persons of wealth . The Bard was listed on the ‘default roll’ of 1597 for non-payment of £5.3134 EXEUNT.

End notes 1

In the United States, papers have been written on the misuse of Shakespeare in tax papers. See Tax Notes (16 November 2009); 791-9

2 Act I, Scene 2 3 ‘Why Shakespeare’s Henry VIII remains a rarity’, BBC News online (14 May 2010), http://news.bbc.co.uk/2/hi/ entertainment/8679613.stm 4 Garnett, G., ‘Sir Edward Coke’s resurrection of Magna Carta’ (pp. 51-60), in Goldman, L. (ed.), Magna Carta: history, context and influence, Univ. of London Press (2018) 5 Federal Commissioner of Taxation v Futuris Corporation Ltd [2008] HCA 32; 237 CLR 146, per Gummow, Hayne, Heydon and Crennan JJ at [9]; MacCormick v Federal Commissioner of Taxation (1984) 158 CLR 622 at 639640; [1984] HCA 20; Deputy Commissioner of Taxation v Richard Walter Pty Ltd (1995) 183 CLR 168 at 221-

222; [1995] HCA 23. 6 Federal Commissioner of Taxation v Futuris Corporation Ltd [2008] HCA 32; 237 CLR 146 7 See Section 350-10(1), Item 2, Schedule 1, TAA 8 F J Bloemen Pty Ltd v Federal Commissioner of Taxation [1981] HCA 27; 147 CLR 360; Federal Commissioner of Taxation v S Hoffnung & Co Ltd [1928] HCA 49; 42 CLR 39 9 Federal Commissioner of Taxation v Futuris Corporation Ltd [2008] HCA 32; 237 CLR 146 10 See s 359–60 of Schedule 1 to the Taxation Administration Act 11 See also limitations on objection rights at s 14ZVA of Taxation Administration Act 12 Schedule 1 s 3(e) 13 Fitzgibbon and Federal Commissioner of Taxation (2004) 56 ATR 1131; Phelps and Federal Commissioner of Taxation (2009) 76 ATR 992 14 Ahern v Deputy Commissioner of Taxation (1985) 17 ATR 224; Elias v Federal Commissioner of Taxation (2002) 51 ATR 1; Nyack Investments Pty Ltd and Federal Commissioner of Taxation (2005) 59 ATR 1116

21 Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd (1979) 41 FLR 338; 24 ALR 307; Yilmaz v Minister for Immigration and Multicultural Affairs (2000) 100 FCR 495 22 Commissioner of Taxation v Administrative Appeals Tribunal, Cheryl Walters & Kevin Walters, unpublished (P)VID285/2013, per Gordon J; And see Walters and Commissioner of Taxation [2013] AATA 834, per Forgie DP. 23 Kajewski v Federal Commissioner of Taxation [2003] FCA 258; [2003] ATC 4375 at [6]; Trautwein v Federal Commissioner of Taxation (1936) 56 CLR 63 at 87 - 88 ; Danmark Pty Ltd v Federal Commissioner of Taxation (1944) 7 ATD 333 at 336; McCormack v Federal Commissioner of Taxation (1979) 143 CLR 284 at 303 . 24 Kajewski v Federal Commissioner of Taxation [2003] FCA 258; [2003] ATC 4375 at [107] 25 Blues Pty Ltd v Deputy Commissioner of Taxation [2012] FCA 320 at [14]; Kajewski v Federal Commissioner of Taxation [2003] FCA 258; [2003] ATC 4375 at [107] 26 McAndrew v Federal Commissioner of Taxation [1956] HCA 62; 98 CLR 263, per taylor J at 282-283 27 See Ileris and Comcare [1999] AATA 647

15 Quach v Commissioner of Taxation [2019] FCA 1729; 168 ALD 130; Elias v Federal Commissioner of Taxation (2002) 51 ATR 1; Nyack Investments Pty Ltd and Federal Commissioner of Taxation (2005) 59 ATR 1116

28 Federal Commissioner of Taxation v Cassaniti [2018] FCAFC 212; 266 FCR 385, per Logan J at [17]; Federal Commissioner of Taxation v Dalco [1990] HCA 3; 168 CLR 614

16 Shail v Federal Commissioner of Taxation (2007) 66 ATR 622

29 Federal Commissioner of Taxation v Dalco [1990] HCA 3; 168 CLR 614 at [12]

17 Deputy Commissioner of Taxation v Clarke and Kann (1984) 15 ATR 483

30 Federal Commissioner of Taxation v Cassaniti [2018] FCAFC 212; 266 FCR 385

18 CTC Resources NL v The Commissioner of Taxation for the Commonwealth of Australia [1994] FCA 76

31 Brigginshaw v Brigginshaw (1938) 60 CLR 336

19 Nugawela v Commissioner of Taxation [2018] FCA 1458 at [27]; Robertson Jnr v Deputy Commissioner of Taxation of the Commonwealth of Australia [2004] FCAFC 46; 137 FCR 513; McCallum v Commissioner of Taxation [1997] FCA 533; 75 FCR 458 20 Nugawela v Commissioner of Taxation [2018] FCA 1458 at [32]

32 Federal Commissioner of Taxation v Cassaniti [2018] FCAFC 212; 266 FCR 385 at [45]; Browne v Dunn (1894) 6 R 67 33 Cf. Carter v Federal Commissioner of Taxation [2020] FCAFC 10, in which special leave is pending 34 Academics claim that Shakespeare was a ‘ruthless’ businessman who evaded taxes’, Business Insider, 26 April 2016

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A Matter of Trust

Do Gift and Loan Back Schemes Work? By Grahame Young FTI, TEP Barrister, Francis Burt Chambers

In some quarters gift and loan back schemes have had some popularity. The purpose of such schemes is to diminish the net value of the donor’s assets without affecting their use and enjoyment of those assets. One motive for entering into such a scheme can be to ensure there are no estate assets that may be available to satisfy an anticipated family provision claim. The decision of the Queensland Supreme Court in Re Permewan1 may have cast some doubt as to the efficacy of one such scheme. Mrs Prudence Permewan had assets being her principal residence and shares and loans in a private company, worth in total about $3 million. She wished to benefit her son who was to “do the right thing and look after everyone who deserves it.” By her will she appointed her son as executor and left him the shares in the corporate trustee of a family discretionary trust and the residue of the estate to the trust. The beneficiaries of the trust included the son and her two daughters. As the son would control the trust and all assets would belong to the trust, the daughters were dependent for benefit on the decisions to be made by him. The daughters had made family provision claims, but were faced with the prospect that there may not be any available assets in the estate. The scheme had been implemented by a series of transactions entered into by Mrs Permewan on the same day: she signed a bearer promissory note

promising to pay the bearer the sum of $3 million; as sole director of the corporate

trustee she signed a receipt that the trustee received the promissory note as a gift to the trust; she then resolved to loan the money

gifted by the bearer promissory note to herself, repayable on demand and secured by a mortgage over her real property and shares; she then signed a loan agreement

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between herself on behalf of the trustee as lender and herself as borrower and a security deed and real property mortgage. she then signed a further receipt

for the promissory note stating that she received it as a loan and that it was cancelled by her because of the merger of the right to be paid and the obligation to pay; The judge found, at [24]: By this series of extraordinary documents: 1. Prudence purports to gift, through the provision of the promissory note, $3 million to the Lotus Trust. This is despite the fact that Prudence clearly did not have $3 million in cash and would have to liquidate all of her assets to pay it. 2. The Lotus Trust has loaned $3 million to Prudence. This is despite the fact that the Lotus Trust clearly did not have $3 million in cash to loan to Prudence. 3. To secure the loan, so as to give effect to the gift evidenced by the promissory note, Prudence mortgaged or otherwise charged her assets. 4. The result of the transactions is that Prudence, who before these transactions had assets worth net $3 million, now has a debt of that amount to the Lotus Trust secured over her assets. The transactions effectively obliterated the fund from which provision could be made for the daughters. The judgment contains excerpts from a transcript of a recorded conversation between the son and one of the daughters which the judge found to be significant and readers may find remarkable for the vituperative and colourful language. The judge found the conversation revealed a deep-seated animosity of the son to the other daughter and his intention to access the estate’s funds to fight any claim knowing she would have to fund any legal fees. The judge also drew an inference that the son as executor had no intention to consider, let alone act upon, any issue

as to enforceability or otherwise of the transactions. The judge made orders revoking the grant of probate to the son and appointing an independent solicitor as administrator. The question of the invalidity of the scheme is yet to be determined and it is not suggested that the scheme, or any other gift and loan back scheme, will be found to be invalid or ineffective, but the entry into and implementation of such schemes is likely to be subject to intense scrutiny as to the legal effectiveness of the scheme, and issues such as incapacity, duress and undue influence. In this instance the implementation of the scheme relied upon creation of a liability by a promissory note, and the gift of that liability by delivery of the note and a loan back, again by delivery of the note. At a visceral level there appears to be an air of unreality of a person creating a liability by signing a bearer promissory note of which they are the initial bearer in another capacity or which only becomes a liability upon delivery to themselves in another capacity. A more straightforward implementation could have been the transfer by gift of the house, shares and loans. However, the transfers would have had capital gains tax implications and incurred liabilities for transfer duty and land tax in respect of the house. No doubt it was for that reason that a promissory note was used to create a liability equal to the value of the assets. Any practitioner tasked with implementing a gift and loan back scheme should take great care not only as to the effective implementation of the scheme, but also to ensure that the client fully understands and voluntarily intends the consequences of the scheme and that one consequence may be litigation between family members.

End notes 1 Re Permewan, Frater v Permewan [2021] QSC 151

Grahame Young is a member of STEP, the Society of Trust and Estate Practitioners, a multi-disciplinary group with branches worldwide, including in Western Australia. For further information concerning STEP visit https://stepaustralia.com

Legally assisted culturally diverse mediation in a collaborative setting A practitioner’s experience By Susan Hewitt

Director & Principal, Bright Side Family Law

Mediation Trial Mediation can be an incredibly powerful alternative to Court – especially in circumstances of relationship breakdown where young children are involved. And as the Family Court of Western Australia trials new ways to engage parties in mediation and alternative dispute resolution, the numbers of accredited mediators and Family Dispute Resolution Practitioners are growing. But these practitioners continue to face the hurdle of “selling” mediation to clients, and convincing colleagues that mediation can not only dramatically change the coparenting path for families but that guiding parents to make these decisions themselves can have an incredibly positive outcome. In a newly evolving Family Law environment where there must be at least an attempt to mediate in parenting matters and there is push for a similar path in property matters, mediation has to be considered as more than simply ticking a box before proceeding to Court. It needs to be seen as a genuine and feasible option for dispute resolution, no matter how intractable the parties appear. A recent nationally funded mediation program run through Relationships Australia provided an unexpected opportunity to add a new dimension to mediation while giving low socio-economic clients access to a collaborative process at a fraction of the private cost. The LACA – legally assisted, culturally appropriate – mediation program was funded as a trial by the Federal Government and ended on 30 June 2020. Despite an international pandemic, the program was able to successfully pivot and from April to June 2020 all mediations were run by telephone and video conference with only a very small number cancelled. I participated as a lawyer in more than 70 of these mediations. Lawyers were chosen from a panel of lawyers with collaborative practice or mediation training, or in many cases, both. Clients were allocated a lawyer and attended an initial legal consultation. There would then usually be two or three, two-hour joint sessions, with each client and their lawyer, and an RA mediator. For those of us with collaborative training it was a bit of a gift – a chance to participate in collaborative meetings much more

regularly than we are seeing in private practice. The uptake of collaborative matters here still lags a long way behind our colleagues on the East Coast and collaborative practice is still a bit of a grey area for many WA family lawyers. The criticism most regularly levelled at it along the lines of “it’s too expensive”, “it’s overkill” or that “it’s just a fancy name for what we do anyway”. The vast majority of family lawyers I come across in private practice understand the importance of alternative options to the Family Court. They understand the emotional and financial cost to families of engaging in protracted court proceedings. Many are settlement focused and practical from the outset and happy to discuss or engage in informal conferencing which often makes all of our work more rewarding. But that’s different to true collaborative practice. The essence of a collaborative matter is about a team of professionals – most importantly two lawyers, but others as needed – working with a former couple on a solution to the family problem. Meetings and advice are given openly amongst the team. The adversarial nature of a more traditional legal matter is completely removed, with the professionals advocating for a practical, achievable family solution, over and above the “best deal” for their client. It doesn’t work for everyone and, yes, the very nature of having a number of professionals in one room makes it expensive. It’s certainly out of reach for most RA clients. But a collaborative mindset, in combination with mediation, can deliver more efficient and ultimately more economical outcomes. Where clients understand the legal principles, have appropriate advice and then any agreements reached are correctly drafted – there is not only the likelihood of greater adherence to agreements but clients see success in a negotiated outcome and the potential that creates for future coparenting. LACA clients paid a token low fee or were exempt from fees. The lawyers were paid at standard Legal Aid rates. On my rough calculations the vast majority of mediations on the LACA program were delivered at around 15% of what it would have cost these clients to engage two lawyers and a private mediator to all then attend a series of joint meetings.

Mediation Versus Collaborative Practice As a collaborative family lawyer and mediator my practice focusses on teams1 and on finding solutions for families outside of the traditional legal process. Bright Side conducts private mediations, amicable separations and collaborative family law. For the most part our private mediations are not attended by lawyers. Anecdotally, this seems more commonplace in Western Australia than in other parts of the country and in WA there is not (yet) a strong culture, as seen in Melbourne or Sydney, of barristers running mediations only with lawyers in attendance alongside their clients. It is also a reflection of how clients come to mediation – off their own bat or after having engaged a lawyer – and the very real issue of cost. Generally family law mediation in WA seems to fall into one of the following broad categories: Government funded and not-for-profit organisations, such as Relationships Australia, Anglicare and some Community Legal Centres offer free or low-fee options for low-income clients. Clients know they must attend mediation before making an application to the Family Court and these are seen as a necessary step in that process; Private mediators who may be, but are often not, family lawyers. Many of these are mediators with a background in psychology, counselling or family therapy focusing on FDRP. Family lawyer mediators can’t give legal advice to either party, but can mediate within the bounds of what a Court would be likely to decide and this can help reduce overall legal fees outside of the mediation process; Mediation Style Conferencing, this is the Rolls Royce of mediation and often the preference of clients already engaged with a legal team. MSC is a very distinct style of mediation. A former Family Court Judge, Registrar or senior family lawyer as mediator receives papers from the parties’ lawyers (in the same format as particulars for a court-held conciliation conference), and the mediation is then held much in the manner of a private conciliation conference.

Significantly the lawyers spent a lot of time discussing and negotiating things that weren’t strictly legal issues. This is likely to give non-family lawyers the shivers. But as every family lawyer knows, people and families don’t always fit into the legislative boundaries. Having participated in all these processes, there is no doubt, with motivated lawyers, mediation as a negotiated agreement can be highly successful and sound agreements can be quickly drafted throughout the day. It is however significantly more expensive and out of reach for many. With a highly experienced and accredited mediator, two lawyers and the lengthy preparation involved, while cheaper than heading down to Family Court, MSC is financially impossible for the majority. Private mediation is significantly cheaper – around $2,500-$3,000 with a family lawyer, FDRP mediator. Which is a comparative bargain but still prohibitive for many who have no option but to use the free and lowcost government services, which inevitably have long wait lists. Cost is a particular issue in the case of parenting matters where there is no pot of gold at the end of the settlement process. Sitting alongside this is collaborative practice which also suffers from its lack of availability – firstly because many don’t understand the process or don’t know about it; secondly because old school lawyering has trouble with the concept of lawyers working together towards a common goal; and thirdly because, again it’s financially out of reach for many clients.

Mediation Meets Collaborative Clients who were invited to participate in LACA mediations were not born in Australia – or at least one parent was overseas born – or were Aboriginal. Often the parties’ marriages had been defined by very traditional roles of the male breadwinner and female homemaker and parent. Navigating a child-focussed equal shared co-parenting arrangement initially presented in many of these cases as an almost insurmountable hurdle. Often parties would present with extremely low expectations of reaching a negotiated

42 | BRIEF OCTOBER 2021

agreement, balanced against an unrealistic expectation of what the Family Court would do for them.

It quickly became apparent child support represented the only influence the father could see in his child’s life.

These clients primarily needed assistance and advice. They needed a sound and realistic perspective. And then they needed to be enabled to present their position, in their own words, in open discussion. They didn’t need advocacy.

From a legal perspective it was a no brainer. Child support is legislatively controlled, we can’t put it in agreements, she doesn’t have to tell you what she spends it on.

Significantly the lawyers spent a lot of time discussing and negotiating things that weren’t strictly legal issues. This is likely to give non-family lawyers the shivers. But as every family lawyer knows, people and families don’t always fit into the legislative boundaries. The law will apply to different families in different ways. Being a good family lawyer is about being a creative problem solver – and then knowing how to make sure agreements stick. Working collaboratively with another family lawyer to achieve this is enormously rewarding. Mediators can’t always do that, and they certainly can’t reign a client in with sobering legal advice. Of all the LACA mediations I was involved with, less than 5 requested certificates to go to Court at the end of the second session. It’s too early to predict the overall outcomes of all those mediations – parenting is an ever-changing and evolving job and doing it with someone you aren’t in a relationship with can be really tough. But if the first experience people have of dispute resolution post separation is a positive one, I strongly believe we have taken the first step in setting them on a clearer path forward. If they’ve had a conversation and come to an agreement once, they can do it again. It’s another chance for those kids to have the best possible shot at a healthy relationship with both their parents. And it’s an opportunity to reshape the reputation of alternative family dispute resolution.

Case Study 1 The father in this mediation was Sri Lankan and the mother Australian. They had a brief relationship. The child was less than one year old. The father only wanted to talk about child support. He was paying it and wanted to know what it was being spent on. He worked long hours on an on-call basis and spent no time with the child. It was clear the father cared for the child but felt the only legitimate role he had was as the financial provider. He was resigned to not being part of the child’s life. But he wanted the mother to be accountable for the money he gave her. He wanted to know it was being saved and specifically what it was being spent on.

But recognizing what it stood for in this case was key to moving this father forward. By discussing why it was important to him it opened him up to considering what was important in his relationship with his child. As his lawyer I would have struggled to get him there without the help of a mediator challenging him. The mediator on her own may have struggled to equally balance the voice of both parties in the room. The other lawyer may have resorted to the law in the face of some of my client’s wilder statements. As a team we had the chance to test what we suspected was underlying his one-track negotiation. We challenged each other on our client’s perspectives. We did five joint sessions with this couple. After the first session we never talked about money. Along the way we inevitably got a bit caught up in technicalities – who takes the sunscreen to swimming lessons? – but over the year we mediated with this couple, the child grew up a bit, the mother was able to relent her fierce hold and the father was able to build confidence in his ability to parent the child and to be involved.

Case Study 2 The parents had an arranged marriage in the Middle East, then moved to Australia. Both were very involved in their local religious community and regularly attended social functions with their community on the weekend. Since separation the parents had started doing this separately, with different communities. The child was under three years old and the father spent no time with the child. In the first joint session the father was angry, claiming the mother was withholding his child. The father had little idea of how to look after the child and had trouble expressing himself. He quite openly said his mother would look after the child when she was with him and he could not understand any problem with this. Both parties slipped from child focus very quickly and the mediator had to stop regularly to reframe and refocus the parties. It seemed at times that the differences would be insurmountable. It appeared neither were focusing on what the child needed, rather they were fighting out past anger. As lawyers in the room it may have felt natural to “rise” to the level of anger that was being expressed, and spring to our client’s “defence”. Will the child be safe with the father or mother-in-law? Would a

The essence of a collaborative matter is about a team of professionals – most importantly two lawyers, but others as needed – working with a former couple on a solution to the family problem. Meetings and advice are given openly amongst the team. The adversarial nature of a more traditional legal matter is completely removed.

Court judge the risk as being great enough to prevent the father seeing the child altogether? Let’s ask it! None of which gave the parties a positive path forward. In this case neither parent had been unhappy in their parenting role when they were married. They just really didn’t like each other. So the mediator moved discussion to how those roles could continue for each of them. Before separation they had both spent a day on the weekend with their religious community in separate groups of friends. This was a very social day where everyone attended, the children played games and food was served all day. All agreed the child loved this occasion. The parents now attended different venues and a suggestion was put that the mother’s mother would attend with the Father and child on Saturdays. (The grandmother had to attend as the father would not change the child’s nappies). This worked well. The grandmother delivered a bag of food and supplies to the father and then watched the child during the day. The father sat with his friends as usual. The child played with other children. This proposal had been put by one of the lawyers and to the other professionals in the room it had seemed a bit left field – where’s the shared care? Where’s the substantial and significant time? Does this child have an equal relationship with each of its parents? It’s unlikely to have been what a court would have ordered. It’s also what I consider one of the most successful mediations on this program and ultimately represents what we are trying to achieve in mediation – for parties to decide for themselves what is best for their family.

For this family everyone was able to settle back into their traditional roles. Dad was able to save face with his friends – and at the same time spend time with his child exactly the same way he always had. Mum knew the child was safe and it was exactly what the child would be doing if her parents weren’t separated.

Case Study 3 Both parties were from Muslim families in the UAE. The mother had a history of mental illness and the father was unsympathetic to this. He presented with very low expectations for a mediated outcome. Prior to separation the mother had been a very hands-on parent and undertook the majority of the parenting duties. There had been long absences by the father with the mother and child living in a different country. Now, a number of years post separation, the mother wanted the father to take on what looked to her like equal shared parental responsibility. The father felt he had lost out on the property settlement and the consequence was the mother should take all the parental responsibility. She had fought for more than 50% of the property pool so, in the father’s opinion, that meant the majority of parental responsibility went with it. Family lawyers please sit down. We all understood these were quite separate legal issues. The father was adamant. He paid regular child support and “was meeting his legal obligations”. Equally he strongly felt he “had a right” to see his child whenever the father was available. Many LACA clients came from traditional backgrounds where the parties had clearly

defined roles. Mum looked after the children and Dad made the money. When these families separated it became very difficult for each party to embrace the new aspects of the other party’s role. The mother usually had little choice but to take on more financial responsibility post separation, but for the fathers from these traditional cultures, taking on more of the “mothering role” – school pickups, extra curricular activities, homework, birthday parties at friends’ houses – was incomprehensible. We talked to the father about the type of role he wanted to have in his son’s life – he wanted to be a positive influence, he wanted his son to feel safe and confide in him, he wanted his son to have academic success and to do well. It became clear that “weekend dad” was also more likely to be superficial dad which wasn’t actually what dad wanted at all. Suddenly there was something valuable to the father over and above his perceived injustice in relation to the property settlement. Both parties here had the funds to take the matter to Court and were initially resolved to this course of action. But there was no way either of them was going to achieve what they each needed via rigid court orders. They needed a team who could help them put aside their “legal rights” to see and hear that what their child needed was what they both most wanted. And no matter how hard a mediator tries to do that, hearing it from your lawyer makes a big difference.

End notes 1

Susan Hewitt has worked as a lawyer, mediator and journalist. She is a trained collaborative lawyer, an NMAS accredited family law mediator and accredited FDRP. She is the Director and Principal of Bright Side Family Law & Mediation in Subiaco, Western Australia.

Book Review: Jungle Law: Mad, Bad, Stupid and Dangerous: True Crime Tales from a Perth Criminal Lawyer By Henry Sklarz

Review by Megan Cramp

Senior Associate, Wotton + Kearney Jungle Law is a collection of short stories told by Perth criminal defence barrister, Henry Sklarz. The slogan of Sklarz Lawyers is “Think outside the box”. Outside the box is an appropriate way to describe the characters within these stories.

Jungle Law tells tales of murderers, rapists, bank robbers, and prostitutes. Ranging from hilarious to horrifying, chapter titles such as “The Granny Killer” and “The Prostitutes” give an idea of what can be found within its pages. The reader is as likely to finish a tale with a chuckle as with a gasp of shock and dismay. These stories serve as a reminder of the criminal underbelly of Perth, so easily forgotten as we plod along the Terrace with our thoughts fixed on the foot traffic and our next client meeting. A reminder that criminal activity surrounds us may not sound appealing. However, the familiar territory makes it effortless to visualise each story as it unfolds. Most tales take place in Perth. However, Kalgoorlie, the Pilbara, and our beloved south-west are not excluded. The book starts off on a light note, telling the almost charming story of a hapless bank robber. The story of the man who stole a winning lotto ticket from his mother-in-law also makes for entertaining reading. In contrast, some stories are downright disturbing. One can only imagine how difficult it was for Sklarz to immerse himself in the details of these crimes.

A chapter entitled “Violence Against Women” recounts some horrific events, but also serves as a timely reminder to the community of what still occurs behind closed doors. Sklarz has certainly served the public interest in making this point. Sklarz says that Jungle Law was inspired by decades of working with complex characters in difficult situations, and after many dinner party conversations justifying the work of a criminal defence barrister. This is evident from the content of each story. Sklarz interweaves the background of each offender into their story. The reader is reminded that, while some criminals are simply terrible people, almost all come from complex backgrounds, and some deserve our sympathy. One such story is that of a Vietnam veteran who developed a drug addiction to cope with post-traumatic stress disorder sustained while serving in the Australian army. Sadly, he passed away while serving a prison sentence for drug offences. Each story also contains fundamental information about the criminal justice system. The reader will soon be able to recite the definition of murder and potential defences to that crime, amongst others. The inclusion of this information is helpful to the lay reader, providing the particulars they need to understand each story. It may also prove useful to Sklarz at future dinner parties. Guests who enjoy complaining about the state of the criminal justice system may soon have more educated complaints to make, and a better understanding of the role that a criminal defence barrister plays in the administration of justice. It was a stroke of genius to embed this information within each harrowing or hilarious story. One would

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Each story also contains fundamental information about the criminal justice system. It was a stroke of genius to embed this information within each harrowing or hilarious story. One would suggest that this is the literary equivalent of hiding vegetables in your child’s spaghetti. suggest that this is the literary equivalent of hiding vegetables in your child’s spaghetti. The stories told are not always politically correct. A story regarding the author’s secretary, an ex “Miss West Coast”, in the preface to the book gives the reader fair warning of this. Others make it clear that Sklarz has a wry sense of humour. After telling the cautionary tale of a murder caused by peer pressure, the author ends with the line, “birds of a feather do life in prison together”. A sense of humour is no doubt required to survive 35 years in the criminal law. Sklarz does not appear to take himself too seriously, and neither should you, if you are to enjoy the stories that are shared. Jungle Law is a well-timed entrant to the literary world, given the current fascination with true crime. It provides some engrossing stories to share with family and friends, or over the water cooler. A great gift for the true crime fan in your life. These are fascinating stories of, as the title suggests, the mad, bad, stupid, and dangerous.

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The Lawyer-fiduciary Gino Dal Pont Professor, Faculty of Law, University of Tasmania Ethics Column Fiduciary law has long characterised the lawyer–client relationship. Yet its practical application in this context has seen intensification from the final quarter of the twentieth century. Even so, it cannot be assumed that all lawyers are sufficiently familiar with its implications. It will be no revelation to readers that the law superimposes fiduciary obligations upon the lawyer–client relationship. These infuse the very nature of that relationship, one traditionally assumed to be characterised by notions of especial trust and confidence, vulnerability and/or inequality. Equity intervened to safeguard against the abuse of that trust and confidence, vulnerability or inequality, by proscribing lawyers (together with other fiduciaries) from engaging in dealings punctuated by conflicting interests and duties, and from making unauthorised profits from their positions. The foregoing in turn function to constrain the retainers that lawyers can accept, and in some instances dictate the need to withdraw from representation. Moreover, fiduciary law underscores lawyers’ dealings with client funds — after all, the archetypal fiduciary relationship involves the holding of property on trust — and has been utilised as a vehicle to address abuses in charging legal fees.1 And while the duty of confidentiality cannot be equated to that emanating from fiduciary law, a common genesis speaks of some confluence here. The same may be said of the intersection between fiduciary law and relationships that trigger a presumption of undue influence (as does that between lawyer and client). Given the permeation of fiduciary incidents

within the lawyer–client relationship, it is unsurprising to find judicial statements of some antiquity acknowledging the fiduciary nature thereof. For instance, in 1862 Lord Westbury LC surmised that ‘there is no relation known to society, of the duties of which it is more incumbent upon a court of justice strictly to require a faithful and honourable observance, than the relation between solicitor and client’. His Lordship used this remark as a springboard for the fiduciary notion that ‘the solicitor is not permitted to make a gain for himself at the expense of his client’ and that ‘[t]he client is entitled to the full benefit of the best exertions of the solicitor’.2 Yet for much of the first three-quarters of the twentieth century, the fiduciary concept (and its ramifications) vis-à-vis the lawyer–client relationship witnessed only limited application in the case law. More generally, one of the reasons why the 1977 publication of Dr Finn’s book Fiduciary Obligations3 proved so influential was that it functioned to fill a gap in writing in the field. Only the year before, the New South Wales Court of Appeal handed down its judgment in the ‘modern’ seminal lawyer–client fiduciary duty / breach case, namely Law Society of New South Wales v Harvey.4 There clients lent moneys to three companies of which the respondent solicitor was a director and shareholder. Street CJ, who delivered the judgment of the court, found that the solicitor had used his fiduciary position to channel client money to fund substantial speculation in land and recklessly disregarded the need to protect the clients’ property in failing to provide adequate securities. The clients were inexperienced in matters of investment and business, and trusted the solicitor to make investments on their behalf, without being told of the above details. This represented a breach of fiduciary duty, justifying the broader

proposition that ‘a solicitor who does act as a loanbroker ought to regard himself as precluded, by the very relationship between him and his client, from commending to his client a loan to a company, or for a venture, in which the solicitor has an interest’.5 The fact that the respondent in Harvey saw nothing inherently wrong in his behaviour, but instead sought to justify it by reference to the financial benefit accruing to the clients, suggests that the impact of fiduciary law in this context had been insufficiently developed or at least not well understood. That the decision prompted the Council of the New South Wales Law Society to issue as a special bulletin to disseminate the impact of the decision6 reveals an essentially reactive approach to the issue. There nonetheless remains among some within the profession a lack of understanding of fiduciary law and its implications, despite it going to the core of legal practice. Only months ago a South Australian practitioner was suspended from practice for preparing two wills for a client despite being a major beneficiary thereunder. Being ‘inexcusably ignorant of his fiduciary and ethical obligations’, the Court of Appeal remarked, led the practitioner to overlook ‘the obvious conflict between the duty of undivided loyalty owed to his client and his own personal financial interest’.7 It seems, therefore, that a timely reminder of fiduciary law as between lawyer and client does not go astray.

End notes 1 See, for example, Re Morris Fletcher & Cross’ Bill of Costs [1997] 2 Qd R 228.. 2 Tyrell v Bank of London (1862) 10 HL Cas 26 at 44. 3 P D Finn, Fiduciary Obligations, Lawbook Co, 1977. 4 [1976] 2 NSWLR 154. 5 Ibid at 172. 6 No 2 of 1979. 7 Legal Profession Conduct Commissioner v Cleland [2021] SASCA 10 at [71] per Livesey JA.

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Welcome to the YLC section of Brief where we explore the minds, lives and careers of young lawyers in WA The Young Lawyers Committee assists clerks, graduates and new lawyers as they enter the profession, and advocates within the Law Society on issues affecting young lawyers. This is the YLC’s section of Brief — a series of serious and not so serious articles and interviews for young lawyers, by young lawyers. If you’d like to contribute to the YLC’s section, please email younglawyers@lawsocietywa.asn. au with your articles and ideas.

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Event Wrap-up

Golden Gavel By Lyle Swithenbank, Communications Sub-Committee Leader, Young Lawyers Committee

“I never thought I’d learn so much about the law of defamation until 5 minutes after my speech at Golden Gavel. Truly a thrilling, career-stopping experience.” - Joseph Sabbagh, Herbert Smith Freehills On a not so spooky Friday the 13th of August 2021, the Ritz-Carlton ballroom was filled with 330 legal professionals for the 2021 Golden Gavel competition. After a cancellation last year, the Law Society and the YLC dug deep to pull together the event of the year (so far…). The event sold out in record time, with a waitlist longer than the queue in Thursday morning Master’s Chambers, all vying for a spot at a table to watch ten unsuspecting junior lawyers go head to head in a night of wit, cunning and outright comedic genius. This instalment of the Golden Gavel stayed true to history, with the contestants each provided a topic at 4.30pm the night before, on which they were to prepare a five-minute speech with a view to entertaining the crowd whilst also providing proverbial gut punches to each other’s respective firms. My experience speaking at the Golden Gavel was unlike any other. I never thought I would roast the profession in front of my peers or demand a glass of water part way through my speech. As it turned out, the only thing drier than my sense of humour was my mouth on the night. - Izzy Wilson, Ashurst - Third Place Winner The judges tasked with deciding the winner of the prestigious gavel were the Chief Justice, the Hon Peter Quinlan, his Honour Judge David MacLean of the District Court, and Ms Jocelyne Boujos, President of the Law Society of Western Australia. The judges had a difficult decision to make, as the contestants delivered some first-class banter amongst themselves as well as a few good jokes sprinkled in their speeches for good measure. I never thought that embarrassing myself in front of the Chief Justice could be so fun, I hope any future appearances before him go a little bit different. The support I received from my firm and the people I know in the profession was immense, I’d definitely recommend applying for next year’s competition if you are interested. - Max Used, Pragma Lawyers

Staying true to form, the big law firm contestants received the brunt of the insults, along with a smattering for the smaller and non-private practice lawyers who channelled their advocacy and public speaking skills on The Ritz’ lectern.

Laura Hutchinson - Without prejudice — tell us what you really think.

After a lengthy deliberation over dessert, the judges crowned Laura Hutchinson of the Department of Legislative Council as the deserved winner of the 2021 Golden Gavel. Laura had the crowd in fits of laughter with her response to the question: “Without Prejudice – Tell us what you really think”. A close runner-up was Andrew Cavenagh from Hall & Wilcox with “‘Happy to help’ and other lies we tell our Partners”. Golden Gavel was a once in a lifetime opportunity to subject a 300 person audience to stories of my dating life, and a personal challenge to see how much innuendo I could chuck into a 5 minute speech. I’m glad the audience was suitably inebriated by the time I spoke. Hopefully they only remember the funny bits. Should you do it? If a partner asks you, there is only one correct answer — happy to help.

Izzy Wilson - My tips for the 2022 grads

- Andrew Cavenagh, Hall & Wilcox Second Place Winner Thank you to the Law Society and YLC for a great evening, and thank you to the people, for making the right choice. - Aideen Myles, Norton Rose Fulbright “People’s Choice” Winner In addition to winning some prize money, Laura was tasked with representing WA in the National Golden Gavel competition, which was held in Brisbane (in a hybridtype online event for those who won’t be able to attend in person due to the ongoing international pandemic you may have heard some stuff about on the news).

Aideen Myles - Your Honour, those are my instructions.

Overall, it was a fantastic night, with delicious food and a great atmosphere. Congratulations must go to the contestants, and a big thank you to the judges and the Law Society for putting on an awesome event. I am already looking forward to the competition returning in 2022. It was an absolute pleasure to participate in the Golden Gavel — the night was truly amazing. An entrée of seared scallops, followed by a delectable main of beef fillet and creamy mash. With an abundance of dessert options and a veritable cataract of wine, I feel comfortable giving the night a rating of 9/10. The only real let-down was that myself and some other people prattled into a microphone throughout the evening. - Xavier Sweeney, Corrs Chambers Westgarth

Andrew Cavenagh - ‘Happy to help’ and other lies we tell Partners.

Event Wrap-up: Golden Gavel

Cassie Chu-Yu-Chee musing over “Mindfulness morning teas, and other superficial solutions to long term problems”

Max Used discussing “#honoured #grateful — A day in the life of a young lawyer’s LinkedIn”

Thomas Coltrona wonders “If the Weld Club let in women, who’s next?”

Golden Gavel Judges His Honour Judge David MacLean, Chief Justice of Western Australia, the Hon Peter Quinlan and Law Society President Jocelyne Boujos

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Aideen Myles, Izzy Wilson, Andrew Cavenagh, Jocelyne Boujos, His Honour Judge David MacLean, Laura Hutchinson (Golden Gavel winner) and Chief Justice of Western Australia, the Hon Peter Quinlan

Joseph Sabbagh makes some “Casual Friday revelations — do these jeans make me look left-wing?“

Xavier Sweeney laments over “Another Zoom call that could have been an email — parables from the pandemic.”

James Case highlights ‘It’s the principle’ and other ways clients fill us with dread

Young Lawyers Committee members Chris Burch (Chair), Demi Swain (Deputy Chair), Lyle Swithenbank and Briony Whyte

Case ‘Nopes’ When the law goes wrong - cautionary tales from the cases for new (and not so new) lawyers

‘These circumstances are every young practitioner’s nightmare’ — The perils of effecting service with only hours before a writ expires ‘“We have instructions to accept service on behalf of our client’.” Every solicitor involved in litigation would at some time either have sent or received a letter or email containing the above sentence. Most practitioners would assume they knew exactly what was meant when these words were used …’: City of Canning v Christou Nominees Pty Ltd [2020] WASC 97 [1]. So began Master Sanderson with another of his paragraph 1 zingers. A writ (and the claims in it) was set to expire on 29 July 2019. As sometimes happens, that day a junior lawyer was instructed to make sure it was served. One defendant’s solicitors had told the plaintiff’s previous lawyers that they had instructions to accept service. But the junior lawyer, unaware of that, sent an email attaching the writ and asking for confirmation the defendant’s solicitors had instructions to receive service. The response — we’ll get back to you. They never did. As the Master succinctly put it: ‘at 12.37 pm … [the junior lawyer] found herself in an extremely difficult position’. She knew service had to be effected that day. She had approached the defendant’s solicitors, but only received a holding response. And she had mistakenly

searched for a very similar company name, causing her arrangements for physical service to result in delivery of the writ to the wrong address. ‘These circumstances are every young practitioner’s nightmare’: [13]. Fortunately for the junior lawyer, the defendant’s solicitors’ previous undertaking saved the writ — the provision of a copy by email was enough to effect service: [23] – [25]. As the Master noted, it ‘is an essential part of the training of any junior practitioner that they learn to perform when under pressure’ ([14]), and there are a number of lessons for new lawyers about performing under pressure that come out of this case: Make sure you understand

service — You will be asked to serve documents, and what needs to happen to make sure it’s done right. You’ll probably be asked with only hours left to get it done. Looking it up and learning it now means you won’t be searching through the Rules while stressed out of your mind. Know when things need to be

served —The senior lawyers should know all the limitation periods and times for service on their matters. But you can too, and you can make sure you set up alerts so you’re aware of them before the day they expire. That might avoid you having to serve something on only a few hours’ notice. Don’t try to do it all alone — The

Master noted that ‘knowing what

LEAVING A

Chris Burch

Chair, Young Lawyers Committee

was at stake it is surprising [the senior lawyer] did not check with [the junior lawyer] on an hourly basis as to her progress in serving the writ’ and ‘[c]lose supervision may have prevented the mistake’ about the wrong corporate address being made. So when you’re facing the challenge of serving a document on a tight timeline, don’t go it alone — involve your supervisor so they can sense check the requirements and details you’ve identified. It’s their responsibility to help you do it right. Be clear in your correspondence

— One argument run in the case was that the junior solicitor’s email asking for confirmation that the defendant’s solicitors would accept service meant she never intended to effect service by email. While the Master rejected that service is ‘some part of a forensic game, in which one party, by taking advantage of an oversight by another party, gains an advantage’ ([22]), it’s an important lesson in being clear in written communications about what you intend by them. So when you’re serving a document by email, be plain — say that you’re attaching the document by way of service, and if the other side won’t confirm they accept it, keep following them up (and making notes that you have). The junior lawyer avoided her nightmare turning into a reality. But it could easily have been otherwise. So don’t wait until a writ that’s about to expire is dropped on your desk — get to know your service requirements and deadlines now. You won’t regret that later.

LASTING LASTING LEGACY LEGACY

HOMELESS

WILL HELP

DOGS

IN WA

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Straight to Bar Brooke Sojan

Where and how did you begin your career in the law? Brooke: I began my career as a Judge’s Associate in the Family Court WA. Stefan: I started off as a Judge’s Associate in 2015, initially at the WA Supreme Court but spent most of the year working in Brisbane at the Federal Court. After a year at the Courts, in 2016 I returned to Perth and commenced as an articled clerk at the State Solicitor’s Office. Cassandra: I actually started in Singapore. I was done with University and got an opportunity to do an internship at a firm in Singapore. I then returned and decided to go to London where I finished off my ANU GDLP remotely and worked as a temp/ paralegal at several law firms in London. After some travel and on my return to Perth, I started at DLA Piper. I spent time in Sydney and whilst still working in insurance, ensured that I developed my practice as one of a commercial/ construction litigator thereby gaining a new skill set and area of practice but also making sure that I kept myself dominantly litigation focussed.

Stefan Tomasich

opportunity. In coming to the Bar, I asked Chris Zelestis QC if I should focus on just one specialised area but he advised that if I had the competency and it’s an area I was previously working in, I should just say yes and allow time and the profession to guide me into whatever practice area I end up in. Verity: I practice in commercial litigation and administrative law with a particular interest in corporate governance, insolvency, resources and judicial review. I also take briefs in Native Title. Currently, I am briefed as Counsel Assisting the Perth Casino Royal Commission.

What made you decide to join the Bar? Brooke: I joined the Bar as I wanted the opportunity to ensure that I was a well-rounded advocate. In my view as a criminal advocate being able to practice as both a prosecutor and a defence lawyer makes you a more well-rounded advocate and being able to practice at the Bar gave me the opportunity not only to be in trial more but also to practice on both sides of criminal law.

Verity: I began my career in the law as a casual clerk at Tottle Partners, working one day a week while I was at University. I was utilised predominantly as a legal researcher by the commercial litigation team, but also gained some experience in drafting court documents and some familiarity with court processes.

Stefan: During my time working at the Court I realised pretty quickly that my interests aligned with practising as a barrister. In terms of timing, when I finished up my post-graduate studies I was at a bit of a cross-roads as to what I should do next. I had the opportunity to join the Bar so I took it.

What area/s of law do you practice in?

Cassandra: I realised that I had done my time in private practice and my end goal was always the Bar. I have friends at the Bar and they were relentless (in a very encouraging and supportive way ha ha) about me coming to the Bar. After thinking about it, I realised it was now or never. I have always loved advocacy and that is why I went to law school and chose this career path. I haven’t regretted the decision for a single day.

Brooke: I practice in Criminal Law, I have previously practiced in some family law. Stefan: I practice in whatever areas people want to brief me! My bread and butter are commercial, insolvency and regulatory matters. However, I try to keep an open mind and keep my practice broad to get as much experience as I can. Cassandra: I’m a generalist. I am fortunate enough to have had a range of experience prior to starting at the Bar. Although I started off predominantly in professional indemnity and public liability insurance litigation, in preparing for the Bar, I wanted to make sure that I had every opportunity to be in Court and practice my advocacy skills and get that wide range of experience. I used the time at the small firm to appear in any and every Court I could and be on my feet at every

Verity: I have always had a special interest in advocacy and came to the point in my career where I wanted to spend more time on my feet in Court.

What is your top advocacy tip for juniors? Brooke: My top tip for juniors is to learn from your mistakes. No one is perfect at any point in your career. We all continue to make mistakes but if you take on board and reflect what you would have done

Cassandra Andrews

Verity Long-Droppert

differently then you will never make that mistake again and you will grow as an advocate. Also take the opportunity to learn from people more senior than you when the opportunity presents itself as the experience will always be valuable. Stefan: I have two, and they aren’t exactly revolutionary. First, get as much experience as you can. Any time on your feet is invaluable. Second, keep it simple. More often than not it is the simple answer that gets you home, not the complicated, convoluted and complex answer. Cassandra: Know your case inside and out and know your procedure. However, if there is something you come across while on your feet that you don’t know or you are asked a question by the Bench, do not hesitate to have that humility to say that you need to stand the matter down and get some instructions or call a friend (and by that I mean a senior member) and work out what it is. Never make anything up and never be too proud to admit you don’t know it all because let’s face it, there is no way you can know every single thing. Law is about constantly learning and developing your skill and using the benefit of having the amazing collegiality that is the Bar and the mentorship that any senior member is always willing to give. Verity: Preparation is key. If you know your material and where you’re going with your line of questioning, everything else will fall into place.

Do you have any funny / war stories from being in Court? Brooke: Throughout my career I have spent a large portion of time in the regions, often consisting of court being in a multipurpose room, police rounding up accused on the list by driving around town with a megaphone and taking instructions by sitting on the floor under a tree. Court isn’t always what you expect it to be. Stefan: I have been pretty lucky so far to avoid any true horror stories. But I have also managed to avoid any funny stories as well. Fortunately/unfortunately commercial work is usually pretty uneventful. Cassandra: One instance particularly comes to mind. It was against a selfrepresentative in the RO court. They were cross applications between neighbours. Very minor stuff. Anyway, I asked if he would accept speaking to me as Counsel for the other side. We were outside

Aunt Now that I am at the Bar, I realised that everyone was right, you will never feel totally ready but if in your gut you know this is what you want to do, then just do it. Court and as the Magistrates always recommend, always try and confer and settle. Anyway, he started telling me about all the emails he was going to hand up in Court. I reminded him that they were without prejudice and he could not. He was not pleased with this so turned tack to say that me and my firm had been harassing and bullying him into signing an undertaking and trying to negotiate the matter and we had flooded him with phone calls and emails. That was not the case. Anyway, I ended the conversation. We then got into Court and this 6”5 wellbuilt Russian man gets up and tells the Magistrate that I had caused him fear and intimidation and that I had yelled at him outside of Court and how everyone in the waiting room would be his witness, and also that I pushed him. The Magistrate was like “she pushed you???!!” at which point he said “she pushed me mentally”. I rose to address the matter on record but was told that was not required and the Magistrate understood the situation. Verity: I am quite superstitious. Earlier this year I was junior counsel in a matter in the State Administrative Tribunal. A related entity of the opposing party is the owner of a well-known Australian brand of boots which are quite popular around town. I made sure I did not wear my own pair of those boots for that hearing!

How do you manage stress at the Bar and avoid burnout? Brooke: As cliché as it sounds having a work/life balance no matter how busy you are is really important. Also having something that you can do once or twice a week that is just for you whether that is making time to go to the gym, have a date night or catch up with a friend for a coffee it is important to make time away from work and out of chambers. Stefan: I am still figuring this one out — I doubt I do a particularly good job of it. I have found that often you have really intense periods of work which are then followed by quieter patches. Trying to

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enjoy, and make the most of, those quieter patches goes a long way to keeping sane. Cassandra: The Bar gives you flexibility. You are your own boss and as such you set your working hours and days and how much work you want to take on. Of course when you are new to the Bar, you say yes to everything you can but I make sure that I give myself my own parameters about what I will do and when and also ensure that I make time to do things I enjoy. Sounds a little cliché! Verity: I try to make sure I do something for myself as the first thing I do when I wake up — whether that’s meditation, gym or walking my dog. Then it’s done and I can concentrate on other things for the rest of the day.

What advice would you give to practitioners wanting to join the Bar early? Brooke: My advice would be to get a good mentoring network behind you early on, to seek advice from others and to build good relationships with both other barristers and solicitors as having good relationships at the Bar as well as other people in your practice area is really important when you’re are starting out at the Bar. Stefan: Have a plan, have something to offer, and be willing to do anything. Cassandra: Go for it! I kept saying, I am not ready, I am not ready. All this despite all the encouragement and support by peers that I was. I also did my due diligence, I made sure I spoke to senior members of the Bar and found out exactly what I was in for, both mentally and financially. Now that I am at the Bar, I realised that everyone was right, you will never feel totally ready but if in your gut you know this is what you want to do, then just do it. I have always said, yup, I was never going to be fully ready and could have even considered coming earlier. The Bar is a very supportive place and always willing to embrace young barristers — I would say, reach out, have the chats, get a feel of life as a barrister and use all the information to make your decision! Verity: Seek the advice and support of other counsel at the Bar. There is a ready-made support network there if you go looking, and don’t be afraid to email another barrister without having met them first!

Prudence Juris Dear Aunt Prudence, I’m a couple of years into my legal career and I’ve noticed a few changes in myself. Healthy eating and exercise have fallen by the wayside, my friends have stopped calling and my partner has recently left me because I’m ‘only at home 4 hours per week’. Is this normal? - The Grad 5 Dear The Grad 5, Good news! Those are all perfectly normal symptoms of Toptier-itis, a little known condition that typically affects most 0 – 3 year PQE practitioners at large national/international commercial law firms. Other signs you might be suffering from the disorder include: an effective hourly rate at or below the Award wage; an overwhelming desire to purchase a pair of RM Williams; vitamin D deficiency; and a blind optimism that ‘it’ll all be worth it once I make equity Partner’. Fortunately, there is a readily available cure — Inhousodol, a wonder treatment that is available to most 3+ PQE lawyers. In fact, it’s so widely used that you’d have to try not to end up relying on it. - Aunt Prudence

Dear Aunt Prudence, my Partner makes me wait at my desk all day until they decide to go home. What should I do to escape the office when I’m ready? - I Want to Break Free Dear I Want to Break Free, Aunt Prudence knows your plight only too well — it’s hard having a Partner who just wants you to watch. A Partner who can’t seem to manage it alone. And if you keep giving them what they want, they soon come to expect it. So keep things fresh. Take charge with your Partner and simply tell them: I’m not satisfied; I’m only doing this for you; I think we need a break. Always remember, there’s nothing stopping you from standing up for yourself and walking out. - Aunt Prudence

Dear Aunt Prudence, I’m an important barrister with a great sense of humour. Why do I keep getting overlooked to judge Golden Gavel? The Mischief Justice Dear The Mischief Justice What can we say, the Hon Peter Quinlan slays. Perhaps you haven’t been roasted by the host with the most before, but when the Chief aims he doesn’t miss. And don’t get your Aunt wrong; doubtless tens of young lawyers know who you are, and several of them have laughed at your jokes in chambers. All of which might found one of your patented ‘wit of summons’ with supporting ‘banter-davit’ to apply for a seat on next year’s panel. Your Aunt is sure that such an application would be both well-judged and received (physically, at least). - Aunt Prudence Do you have a question for your Aunt Prudence? Send all inquiries to younglawyers@lawsocietywa.asn.au and look out for your Aunt’s response in the next edition of Brief.

Shaping Legal Minds the ethical mind Closing Address to Qld Symposium by The Hon Susan Kiefel AC, Chief Justice of Australia Friday, 19 March 2021 There can be little doubt that the experience of the COVID-19 pandemic has taught lawyers and the courts much about the need to be adaptable to changing circumstances. For the courts it has meant expanding upon existing methods of conducting hearings remotely by the use of technology. For the High Court such hearings have involved judges sitting in court in different capital cities and lawyers appearing in multiple locations remote from the court. For many in the legal profession it meant working in a home environment and conducting conferences and relaying information in different formats. For all of us it involved testing the technological capabilities of our machines and ourselves. There has and will be much said about what has been learned from these experiences so far as concerns future work

practices. So far as concerns the High Court, I can say that it has confirmed it is our view that oral argument made in the presence of the Court is far superior. This is the situation to which we have recently returned and which we hope will be maintained. That is not to say that valuable lessons have not been learned which may alter future practices at institutions like the courts and in law firms. By way of example, it has been realised that people might work in more than one environment and that for some the choice is truly beneficial. Institutions and firms have found, perhaps to their surprise, not only that they can accommodate these changes in work practices but that they might be of benefit to them as well. It might also be that there will be more thought given to the need to fly to other locations for the purpose of a meeting, at least when it can be managed well enough by videolink.

Mixed Netball Competition Friday, 26 November 2021, 5.30pm registration The University of Western Australia Recreation and Fitness Centre, 35 Stirling Hwy, Crawley Unleash your competitive streak on the netball court and your team could walk away with the trophy and bragging rights!

https://www.lawsocietywa.asn.au/upcoming-events/

Generally speaking, we are rather better positioned now for the effects of restrictions on movement as may occur from time to time. Even when this pandemic has passed, there remains the possibility of another occurring in the future. At that point the High Court will be able to bring out of storage and dust off the demountable extensions which have been made to the timber bench in the main courtroom in Canberra, which enables seven justices to sit at a COVID-safe distance. There are of course other steps that can be taken which have resulted from the experience of this pandemic. Others at this Symposium (including the previous speaker, whose presentation I found most interesting) have addressed questions such as how lawyers might adapt their thinking and actions to meet the challenges presented by a crisis such

In their contact with clients lawyers may be tempted to stray from what ethics requires, in the clients’ pursuit of their interests. But the practise of law is a profession in the true sense, not just a business. as a pandemic. I will not attempt to add to this discussion. I propose to address the theme of this Symposium which is about “Shaping Legal Minds” by reference to an important and enduring topic. It concerns the ethical mind. I wish to discuss how the study and expression of ethics shapes the mind of a lawyer. The journey starts from student days and continues throughout a lawyer’s professional life. Ethical conduct is a critical aspect of the legal profession. It is an important part of what sets the profession apart from a business. Sir Owen Dixon once said that “[t]o be a good lawyer is difficult. To master the law is impossible”. The first rule of conduct (which he described as itself an ethical rule) is for the lawyer to “know his work” “to do his best to acquire such knowledge of the law so that he knows what he is doing” when he acts for a client in court or advises that person whether to go to court1. To acquire such knowledge, he said, requires “hard work for a long time”2. He said “a law school cannot give you the necessary knowledge; it is only acquired through practising law”3. What a law school does is to provide the lawyer with a body of fundamental principles and teach them how to use those principles to obtain a more extensive and detailed understanding of the law. Sir Owen Dixon’s view of legal formalism may not have paid much regard to the principles of legal ethics as guiding both an understanding of the law and its practice. But no one can doubt the importance of legal ethics. The requirement that all lawyers act ethically is one of the distinctive features of the profession. And the legal profession understands this to be the case, for it has always required it long before the regulation of professional conduct was imposed upon it. A student at law seeking admission as a lawyer must meet the “fit and proper person” standard4. The standard has ancient roots. As early as 1275 a statute provided for the imprisonment of and suspension from practice of lawyers who deceived the court or their client (LRO footnote 56). However for the most part in the common law tradition, regulation of fitness for practice was left to autonomous professional bodies.

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Australian universities recognise the importance of legal ethics to the practice of the law. Their law faculties seek to prepare students for the possibility of joining the legal profession by courses such as “Ethics and the Legal Profession”5, “Lawyers, Justice and Ethics”6 and “Ethics, Social Responsibility and the Law”7. The last-mentioned subject title captures an important aspect of the legal profession: that it has a strong public dimension. To practise as a professional lawyer is to make available skills to the state and to the community. It involves obligations which are founded on the public interest, such as that in the proper administration of justice. Sir Owen Dixon’s statements point out the fact that in reality a lawyer is educated through the actual practice of the law and what is gained by experience. So too is the necessary depth of understanding of legal ethics gained by the experience and challenges to right-thinking on the part of a practising lawyer. Every lawyer is taught that their overriding duty is that owed to the court, although litigators are more likely to be reminded of that duty in their daily practice than commercial lawyers. Duty to the court is characterised as an “overriding” or “paramount” duty in rules of professional conduct such as the Australian Solicitor Conduct Rules8. It is understood that it transcends the duty to the client. It recognises the role of a lawyer in the administration of justice. The duty owed by a lawyer to the court is but one, albeit an important, aspect of the requirements of ethical conduct. The work of lawyers is of course not confined to the courts. Lawyers who advise all manner of clients on many topics help the client navigate their legal relationship with others. They identify the bounds of lawful conduct and assist their clients’ appreciation of the law. In their contact with clients lawyers may be tempted to stray from what ethics requires, in the clients’ pursuit of their interests. But the practice of law is a profession in the true sense, not just a business. Ethics understood and applied in the practise of the law is a felt commitment to honesty and integrity. Because the practice of the law is a true profession, it has always functioned as something of a self-regulating society. It is understood that more experienced lawyers have an obligation to oversee the conduct of fledgling lawyers, to promote in them a deeper understanding of what is required of them and to guide them where necessary. Young lawyers must also appreciate that their conduct is being monitored by their peers. Lawyers talk a lot amongst themselves about experiences with other lawyers. A reputation for proper conduct is one of the most important assets a lawyer can have and it is one which may irredeemably be lost.

Sir Gerard Brennan has expressed the view9 that ethics are not what a lawyer knows he or she should do; ethics are what they do. On this view ethics is not so much learned as lived. This view may imply that ethical conduct should be second nature to a lawyer, instinctive almost. And so it should. But I do not take it to mean that a person cannot be guided by and learn from others or that experience and the observation of the conduct of others in the profession cannot be instructive. Ethical conduct, like the rules of etiquette which are peculiar to the legal profession, is something of a construct. So while much of a person’s tendency to adhere to honesty and integrity may derive from upbringing and the morals and values which have been imparted in that process, a person may also learn what is required of a professional lawyer. What statements such as Sir Gerard’s most clearly imply is that legal ethics cannot be reduced to a set of rules to be followed, although some stated rules of conduct may be indicative of the broader requirements of legal ethics. The fit and proper standard of a practitioner may be said to be one of character. But that character is shaped by a deeply-held commitment to honesty and integrity which is the basis of legal ethics. It has often been recognised, because experience over the years shows, that for a profession to continue it requires high professional standards to be maintained. If they are not, the trust and confidence of the community which it serves may well be lost.10 The profession will then become irrelevant. There can be no higher or stricter requirement of a lawyer than that she or he behave honourably and ethically. And that requires that the values and principles which inform legal ethics are so well understood that they may be said to have shaped the professional lawyer’s mind.

End notes 1 Sir Owen Dixon, “Professional Conduct”, in Susan Crennan and William Gummow (eds), Jesting Pilate, 3rd ed (Federation Press, 2019) 274 at 275-276. 2 Sir Owen Dixon, “Professional Conduct”, in Susan Crennan and William Gummow (eds), Jesting Pilate, 3rd ed (Federation Press, 2019) 274 at 276. 3 Sir Owen Dixon, “Professional Conduct”, in Susan Crennan and William Gummow (eds), Jesting Pilate, 3rd ed (Federation Press, 2019) 274 at 276. 4 See, e.g., Legal Profession Act 2007 (Qld) ss 9(1)(a), 31. 5 University of Queensland. 6 Australian National University. 7 University of Tasmania. 8 Australian Solicitor Conduct Rules 2012 (Qld) r 3. 9 Sir Gerard Brennan, “Ethics and the advocate”, Speech delivered to the Bar Association of Queensland, 3 May 1992, at 1-2. 10 Sir Owen Dixon, “The Profession of Accountancy”, in Susan Crennan and William Gummow (eds), Jesting Pilate, 3rd ed (Federation Press, 2019) 279 at 279.

WA Case Notes INTRODUCTION

Surplus proceeds issue

WIP issue

In Re RCR Tomlinson Ltd (administrators appointed) and Ors [2020] NSWSC 735, Justice Black of the Supreme Court of New South Wales, gave directions as to the classification of certain RCR assets as circulating or non-circulating and the date on which that classification is to be made. Those directions were of practical significance given the likely shortfall in RCR assets available to pay priority employee entitlements. They effectively determined the priorities in the distribution of funds in the RCR insolvency between employees with priority entitlements (or at least the Commonwealth standing in their place) and secured creditors.

In the course of its business, RCR procured performance bonds for its customers as security for its contractual obligations. If one of those bonds was called and the customer received payment in excess of the amount it was entitled to receive, it would be obliged to remit that surplus to RCR. The issue before Justice Black was if, before the Appointment Date, RCR defaulted but the customer did not call on the bonds until after the Appointment Date and after receiving payment remitted the surplus to RCR, would those surplus proceeds (Surplus Proceeds) comprise circulating assets?

A final issue arose as to which types of works in progress (WIP) would comprise circulating assets available to pay priority employee entitlements.

Background The liquidators of RCR Tomlinson Ltd (in liq) and several other companies (RCR) sought directions under s 90-15 of the Insolvency Practice Schedule (Corporations) on issues arising in the RCR liquidation. The security trustee for a syndicate of secured creditors (Lenders) and the Commonwealth were each heard as interested parties. The critical question was whether certain property of RCR was subject to a circulating security interest for the purposes of s 561 of the Corporations Act (Act). An analysis of the nature of a circulating security interest required consideration of a cascade of defined terms in the Act and Personal Property Securities Act 2009 (Cth) (PPSA). A ‘circulating security interest’ is defined in s 51C of the Act, relevantly for the purposes of this case, by reference to a ‘circulating asset’. ‘Circulating asset’ is defined in s 340 of the PPSA, relevantly, by reference to an ‘account’. ‘Account’ is defined in s 10 of the PPSA, relevantly, to mean a “monetary obligation (whether or not earned by performance) that arises from disposing of property or granting a right or providing services in the ordinary course of a business of granting rights or providing services of that kind.’ Accordingly, the meaning of ‘monetary obligation’ in this case was central to the analysis of a ‘circulating security interest’ and therefore to the scope of s 561 of the Act and the recovery by lenders and employees. The liquidators sought directions on: (a) the relevant point in time for determining if an asset is a circulating asset; and (b) whether a right to payment under various contractual arrangements is a circulating asset. Timing issue It was common ground that section 561 of the Act is silent as to the relevant date for determining whether an asset is a circulating asset. This issue was of practical significance because certain assets that were not circulating assets at the date of appointing administrators to RCR (Appointment Date) had subsequently been realised with the proceeds being held as cash such that they could then be characterised as circulating assets after the Appointment Date. Black J considered that whether assets were circulating was to be determined at the ‘relevant date’, being the date on which the winding-up was taken to have begun under Pt 5.6 of the Act. In this case, it was the Appointment Date. Black J reasoned that to find otherwise would provide a strong incentive for secured creditors to seek to remove assets from the control of an administrator/liquidator as soon as possible after their appointment to prevent the conversion of those assets to cash and thereby avert the risk that they would become property subject to circulating security interests within s 561 of the Act.

Black J determined that the Surplus Proceeds were not circulating assets for various reasons including the following. First, the Surplus Proceeds were not personal property and so did not fall within the meaning of ‘circulating asset’ under s 340 of the PPSA and could not therefore be subject to a circulating security interest for the purposes of s 561 of the Act. That was because any right to the Surplus Proceeds was so contingent at the Appointment Date that it was “nothing but an expectancy” and not an existing right. Secondly, even if the Surplus Proceeds constituted personal property for the purposes of the PPSA, that they did not comprise an ‘account’ within the meaning of s 10 of the PPSA. Black J considered that a potential claim which may or may not arise depending on the actions of a third party had no element of ‘obligation’ about it (which was a component of the definition of ‘account’ in s 10 of the PPSA). Black J also gave weight to the decision of the Court of Appeal of New Zealand in Strategic Finance (in liq) v Bridgman [2013] NZCA 357 who analysed the concept of ‘monetary obligation’ as it appeared in the definition of ‘account receivable’ in substantially equivalent legislation. The Court observed that a monetary obligation “means an existing obligation imposed on, or assumed by, one party to pay a certain amount of money to the other party on a specific or ascertainable date” and that such an obligation will include debts but does not include “a possible liability to pay an unidentifiable sum at an unascertainable future date.” Black J held that the Surplus Proceeds did not satisfy any of those requirements for a ‘monetary obligation’ since they did not constitute an existing legal obligation at the Appointment Date to pay an identifiable monetary sum on an ascertainable date. Subcontractor proceeds issue In the course of its business, RCR engaged subcontractors. Those subcontractors provided performance bonds to RCR to secure their contractual obligations. The issue before Black J was if, before the Appointment Date, a subcontractor defaulted under a contract with RCR such that RCR had a right to make a call on the bonds but only called on them after the Appointment Date, would the proceeds (after calling on the bonds) (Subcontractor Proceeds) comprise circulating assets? Black J considered that a potential claim in respect of the Subcontractor Proceeds would not fall within the term ‘monetary obligation’ or the term ‘account’ in ss 10 and 340(5) of the PPSA because it had no element of obligation about it at the Appointment Date. Black J observed that an unexercised right to require payment of money is not the same as the right to receive payment of money, and following the Strategic Finance decision, the claim to Subcontractor Proceeds did not satisfy the requirements for a monetary obligation since there was no existing legal obligation at the Appointment date to pay an identifiable sum.

The first permutation considered was where goods or services under a contract are completed before the Appointment Date but where the issuing of an invoice occurs after the Appointment Date. Black J held that such amounts were monetary obligations and an ‘account’ within ss 10 and 340(5) of the PPSA and therefore a circulating asset within s 340 of the PPSA to which s 561 of the Act could apply. This was because the definition of ‘account’ in s 10 of the PPSA included monetary obligations “whether or not earned by performance” which suggested that it would at least include amounts that had been earned by performance that were yet to be invoiced. Further, Black J observed that any disputes as to amounts to be invoiced could be determined by the relevant pre-Appointment Date contracts. The second permutation was where goods or services under a contract were completed before the Appointment Date but where the payment was subject to certification and issuance of an invoice, both of which occurred after the Appointment Date. Black J considered that these amounts should be treated in the same way as the first permutation since any dispute as to certification and the amount invoiced could be determined under the relevant contract. The third permutation was where goods or services under a contract had only been partly performed before the Appointment Date and completed after the Appointment Date and there was no contractual right to payment until after completion. Black J observed that these were not circulating assets. As there was no contractual basis for an apportionment of WIP, there was no monetary obligation in respect of any amount in this category at the Appointment Date. Further, any works performed after the Appointment Date would not have been in the ordinary course of business (having been conducted by administrators or liquidators) and so did not fall within the meaning of ‘account’ under s 10(b) of the PPSA. This decision provides considerable guidance as to the characterisation of certain assets as circulating or non-circulating assets and implications for recoveries and priorities in the distribution of assets of an insolvent company. Procedurally, the case also shows the utility of the directions procedure in insolvency matters for resolving complex disputes as to priority among creditors.

Dr Rebecca Collins Barrister, Quayside Chambers D +61 8 9460 5256 M 0420 295 794 rcollins@quaysidechambers.com Level 36 Exchange Tower, 2 The Esplanade Perth WA 6000 quaysidechambers.com.

End notes As stated at [14] of the judgment; “The case law has recognised that the object of predecessors of this section was to limit the proprietary rights of a secured creditor holding a floating charge, so that preferential debts were paid out of the property subject to the floating charge, to the extent that non-charged assets were insufficient to meet those debts”. 2 ‘Surplus Proceeds’ is defined at [3] of the judgment. 3 Strategic Finance (in liq) v Bridgman [2013] NZCA 357, [54]-[55], [57]. 4 ‘Subcontractor Proceeds’ is defined at [5] of the judgment. 1

HIGH COURT JUDGMENTS Dr Michelle Sharpe Castan Chambers, Melbourne

Constitutional Law Implied freedom of political communication In the High Court decision of LibertyWorks Inc v Commonwealth of Australia [2021] HCA 18 (16 June 2021) the High Court was required to determine whether the Foreign Influence Transparency Scheme Act 2018 (Cth) (FITS Act) was invalid, to the extent that it imposed registration obligations with respect to communications activities, because it infringed an implied freedom of political communication. The stated object of the FITS Act is “to provide for a scheme for the registration of persons who undertake certain activities on behalf of foreign governments and other foreign principals, in order to improve the transparency of their activities on behalf of those foreign principals”. Relevantly, s10(c) of the FITS Act defines “foreign principal” to mean, inter alia, a “foreign political organisation”. The FITS Act, under s18, provides that if a person undertakes a “registerable activity” on behalf of a foreign principal that person becomes liable to register under the FITS Act. A “‘registerable activity” is defined to include, in s21(1) of the FITS Act, a “communications activity”. A “communications activity” is defined, under s13(1), to consist of the communication, distribution or production (for communication or distribution) of material to the public or a section of the public. A person who is registered under the FITS Act has certain responsibilities. These include, among other things, keeping records and to giving disclosure of the foreign principal. The FITS Act includes provisions creating offences, which may result in a penalty (including imprisonment), arising from breaches of the act. The plaintiff (LibertyWorks) is an incorporated association and has been described, at [1], as “a private think-tank with an aim to move public policy in the direction of increased individual rights and freedoms, including the promotion of freedom of speech and political communication”. Since incorporation, LibertyWorks has organised political conferences, made submissions to

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parliament and maintains a website promoting individual freedom in public policy. A not dissimilar organisation to LibertyWorks was established in the United States of America: the American Conservative Union (ACU). The stated purpose of the ACU, at [2], is to influence politics and politicians, in the United States, from a “conservative/ classical liberal perspective”. In order to “harness the collective strength of the conservative movement and support the campaigns of conservative candidates”, the ACU organises an annual multi-day political conference in the United States called the Conservative Political Action Conference (CPAC). The immediate past president and vice-president of the United States and government officials have attended CPAC. In 2018, LibertyWorks and the ACU agreed that they would collaborate in a CPAC event to be held in Sydney, Australia in August 2019. The event was widely marketed by LibertyWorks. It featured speakers from Australia and overseas and included politicians (past and present), media personalities, members of “think tanks”, economists and social commentators. The promotional material described the ACU as the ‘Think Tank Host Partners” and a “co-host” with LibertyWorks. Another event was proposed to take place in Australia in November 2020. But in August 2019, a Deputy Secretary of the Commonwealth Attorney-General’s Department wrote to LibertyWorks and asked LibertyWorks to consider whether it was required to register its arrangements with the ACU under the FITS Act. The Deputy Secretary subsequently issued a notice to LibertyWorks, under s45 of the FITS Act, requiring LibertyWorks to provide information to assist the Deputy Secretary to determine whether registration under the FITS Act was required. LibertyWorks did not respond to the notice. Instead, LibertyWorks issued proceedings in the High Court, in its original jurisdiction, seeking a declaration that the registration provisions under the FITS Act were beyond the power of the Commonwealth Parliament to enact because they contravened the implied constitutional freedom of political communication. But the High Court in a 5:2 split rejected LibertyWorks’ claim. All members of the High Court, save for

Steward J, recognised the existence of an implied freedom of communication on matters of politics and government: Keifel CJ and Keane and Gleeson JJ at [44], Gageler J at [99], Gordon J at [131]-[132] and Edelman J at [198]. Keifel CJ and Keane and Gleeson JJ explain, at [44], that the basis for the implication is “well settled” and the freedom is “necessarily implied because the great underlying principle of the Constitution is that citizens are to share equally in political power and because it is only by a freedom to communicate on these matters that citizens may exercise a free and informed choice as electors”. But Steward J expressed, at [249], skepticism about the existence of such an implied right. His Honour declared “it is arguable that the implied freedom does not exist. It may not be sufficiently supported by the text, structure and context of the Constitution and, because of the continued division within this Court about the application of the doctrine of structured proportionality, it is still not yet settled law”. The plurality went on to recognise (indeed the Commonwealth conceded) that the registration provision under the FITS Act did burden the implied freedom. But, the plurality considered that the burden was justified. The plurality held that the FITS Act had a legitimate purpose to achieve transparency and obviate the risk that foreign principals will exert influence on the integrity of Australia’s political processes and the registration provisions were proportionate to that purpose: Keifel CJ and Keane and Gleeson JJ at [76]-[85], Edelman J at [198] and Steward J at [287]. Gageler and Gordon JJ, in dissent, considered that the registration provisions of the FITS Act impermissibly burdened the implied freedom.

Immigration – false imprisonment In the High Court decision of Commonwealth of Australia v AJL20 [2021] HCA 21 (23 June 2021) the High Court was required to determine whether the respondent’s detention was unlawful and he was entitled to damages for false imprisonment. The respondent is a Syrian citizen who arrived in Australia in 2005 as the holder

of a child visa. In 2014 the responsible Minister cancelled the respondent’s visa on character grounds. As a result, the respondent became a “non-citizen” and was detained under the Migration Act 1958 (Cth) (the Migration Act). The purpose of the Migration Act is described in s4 to include, among other things, to provide for the removal from Australia of non-citizens whose presence in Australia is not permitted under the Migration Act. To this end, s189(1) of the Migration Act requires an officer of the Executive to detain unlawful non-citizens. Section 14 of the Migration Act defines an “unlawful non-citizen” to be a noncitizen in the “migration zone” (ie, broadly Australia) and is not a “lawful non-citizen”. A “lawful non-citizen” is defined by s13 of the Migration Act to be a non-citizen in the migration zone who holds an effective visa. Section 196(1) of the Migration Act relevantly provides that an unlawful non-citizen is to be kept in immigration detention until removed from Australia pursuant to s198 of the Migration Act. And s198 of the Migration Act relevantly provides that an officer must remove, “as soon as reasonably practicable”, an unlawful non-citizen from Australia if the non-citizen’s application for the grant of a visa has been finally determined and refused. In this case, although his application had been finally determined and refused, the respondent’s detention was prolonged by some 14 months while officers considered Australia’s non-refoulment obligations (the obligation not to return an asylum seeker to a country in which they would be in likely danger of persecution). But, importantly, s197C(1) of the Migration Act provides that whether or not Australia has non-refoulement obligations in respect of an unlawful non-citizen is irrelevant to the operation of s198 of the Migration Act. The respondent successfully argued at first instance, in the Federal Court, that his prolonged detention was unlawful. The primary judge found that the Commonwealth had failed to remove the respondent “as soon as reasonably practicable” as required by s198 of the Migration Act. The primary judge went on to find that, as a result of this failure, the detention of the respondent was not for the purpose of his removal from Australia and was therefore unlawful. The Commonwealth appealed. The appeal was removed to the High Court pursuant to s40 of the Judiciary Act 1903 (Cth) because the dispute necessarily involved the interpretation of the Constitution. By a narrow margin of 4 to 3, the High Court allowed the Commonwealth’s appeal.

The majority (Kiefer CJ, Gageler, Keane and Steward JJ), in a single set of reasons, held that the primary judge’s reasoning was flawed in two ways. The first way, the majority considered at [39] was that the primary judge was wrong to read down s196(1) of the Migration Act. The primary judge approached the construction of s196(1) “in light of” Chapter III of the Constitution which provides for the separation of judicial power from the executive and legislative powers. In his Honour’s view the immigration detention scheme, contained in the Migration Act, could not be validly enacted, under s51(xix) of the Constitution (naturalisation and aliens power), unless the Executive performed its duty, s198 of the Migration Act, to remove as soon as reasonably practicable. The majority observed at [42] that the primary judge’s approach “conflated questions of constitutional validity with questions of statutory interpretation, and questions concerning the purpose of the [Migration] Act with questions concerning the purpose of the officers of the Executive bound by it”. The majority noted at [43] that: “If the statute, properly construed, can be seen to conform to constitutional limitations upon legislative competence without any need to read it down to save its validity, then it is valid in all its applications, and no further constitutional issue arises. The question then is whether the executive action in question was authorised by the statute”. The majority held that the immigration detention scheme was valid, and did not stray into judicial power, because the detention period was not determined by the Executive. Instead, the majority observed at [44] “the authority and obligation of the Executive to detain unlawful citizens is hedged about by enforceable duties, such as that in s198(6), that give effect to legitimate non-punitive purposes. Upon performance of these duties, the detention is brought to an end”. The second way in which the majority considered, at [67], that the primary judge’s reasoning was flawed was in leaping to the conclusion that the Executive’s failure to remove the respondent, as soon as practicably possible, meant that the Executive was detaining the respondent for a purpose other than that permitted by the Migration Act. The majority held that this leap was unjustified. And the majority held at [73] that the Executive’s failure to discharge their statutory duty simply affords a basis for orders requiring the Executive to do their duty. The majority accordingly allowed the Commonwealth’s appeal. But Gordon and Gleeson JJ, in a joint judgment, and Edelson J, in his own

separate judgment, argued that the Commonwealth’s appeal should be dismissed. Gordon and Gleeson JJ defined at [81] the central issue in dispute as being “whether detention is lawful even though it continues beyond the time at which it should have come to an end”. And Gordon and Gleeson JJ considered at [84] that “it is not the event of removal, but a time by which removal must occur, that defines the lawfulness of detention”. Their Honours argued at [87] that the power to detain an unlawful non-citizen could only be understood by reference to “two interlocking dimensions – power and duration”. And their Honours contended at [98] that once it is accepted that the Executive’s power to detain under the Migration Act has “temporal bookends”, detention beyond the “terminating bookend” is unlawful. Edelman J comes to the same conclusion as Gordon and Gleeson JJ. His Honour muses at [108] that it would be very strange if the Migration Act were “an island of freedom” in which the Executive could act for any purpose in the exercise of its powers no matter how far that purpose departs from the express or implied terms of statutory authority. And his Honour also observes at [114] that the Executive could have simply given the respondent a bridging visa while they considered the Australia’s non-refoulment obligations.

Limitation of Actions Exclusion by agreement In the High Court decision of Price v Spoor [2021] HCA 20 (23 June 2021) the High Court was required to determine whether a mortgagor’s promise not to plead the Limitation of Actions Act 1974 (Qld) (Limitation Act) as a defence to an action brought by the mortgagees was enforceable. The respondents (mortgagees) brought proceedings in the Supreme Court of Queensland in which they claimed more than $4 million as money owed under, and secured by, two mortgages and possession of the mortgaged land. The appellants (mortgagors) raised two allegations in defence. First, the mortgagors alleged that the mortgagees were statute-barred from bringing an action for debt by ss10, 13 and 26 of the Limitation Act. Second, the mortgagors alleged that the mortgagees’ title under the mortgages had been extinguished by virtue of s24(1) of the Limitation Act. The mortgagees, in reply, alleged that cl 24 of each mortgage amounted to a promise by the mortgagors not to plead the defence of limitation and, as such, the mortgagors were estopped from pleading it.

The mortgagees brought an application for summary judgment. At the hearing of their application, the mortgagees conceded that if the Limitation Act did apply their claims would be defeated. The primary judge went on to dismiss the mortgagees’ application and enter judgment for the mortgagors. The mortgagees then successfully appealed to the Court of Appeal and obtained judgment in their favour. The mortgagors, in turn, appealed to the High Court but the High Court unanimously dismissed their appeal. As to the mortgagors’ first allegation (that the mortgagees’ claim was statutebarred), the High Court held that cl 24 of the mortgages prevented the mortgagors from raising this defence. In reaching this conclusion, the High Court first had to consider whether a right to plead the Limitation Act as a defence is a right that can be surrendered and, then, whether properly construed, cl 24 of the mortgages had the effect of surrendering that right. In a joint judgment, Keifel CJ and Edelman J, citing The Commonwealth v Mewett (1997) 191 CLR 471 at 534 and The Commonwealth v Verwayen (1990) 170 CLR 394 (Verwayen) at 405, observed, at [10], that limitation provisions, like those in the Limitation Act, have been construed to “bar the remedy but not the right”. That is, the Limitation Act does not extinguish the claim (or underlying right) but, rather, arms the defendant with a defence (which must be pleaded). Their Honours also observed, at [11]-[12], that a person may renounce any right conferred on them by statute unless it would be contrary to the statute to do so. Their Honours were guided by the conclusion reached by Mason CJ, in Verwayen, that the right (in the equivalent Victorian act) was not dictated by public policy; it was an individual right conferred on the defendant and, accordingly, it could be given up by the defendant. Gageler and Gordon JJ broadly make the same observations and reach the same conclusion at [39]-[41], as does Steward J at [85]-[86]. In construing, cl 24 of the mortgages, the High Court took an objective approach and determined the meaning of its terms by reference to what a reasonable person would have understood those terms to mean: Keifel CJ and Edelman J at [27], Gageler and Gordon JJ at [42] and Steward J at [65]-[67]. The High Court concluded that cl 24 was drafted in such a way as to capture the effect of the Limitations Act and prevent the mortgagors from pleading the act as a defence: Keifel CJ and Edelman J at [28]-[31], Gageler and Gordon JJ at [47]-[49] and Steward J at [65]-[67]. Unsurprisingly, the High Court

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rejected the mortgagors contention that, if cl 24 was enforceable, the mortgagees could only sue for damages for breach of contract. Their Honours noted the availability of in relief equity to restrain the mortgagees from breaching cl 24: Keifel CJ and Edelman J at [32]-[35], Gageler and Gordon JJ at [50]-[51] and Steward J at [100]-[106]. As to the mortgagors’ second allegation (that the mortgagees’ title was extinguished by s24(1) of the Limitation Act), the High Court held that s24 does not operate automatically or independently from s13 of the Limitation Act and will not extinguish title in the absence of a defence that a claim is statute-barred: Keifel CJ and Edelman J at [21]-[25], Gageler and Gordon JJ at [37] and Steward J at [107]-[118].

Industrial Law Contract of employment In the High Court decision of WorkPac Pty Ltd v Rossato [2021] HCA 23 (4 August 2021) the High Court was required to determine whether the first respondent (Rossato) was employed by the appellant (WorkPac) as a casual employee for the purposes of s86 of the Fair Work Act 2009 (Cth) (the FW Act). It is worth noting here that the precedential value of this case is somewhat limited because the FW Act has now been amended to insert a definition of “casual employee” where, before, no such statutory definition existed. Rossato was an experienced production worker in the open-cut black coal mining industry employed by Workpac. On first commencing work with WorkPac, Rossato signed a single page document containing general terms of his employment (General Terms). Rossato was then employed episodically, until his retirement, pursuant to a series of six contracts titled Notice of Offer of Casual Employment – Flat Rate (NOCE). An enterprise agreement also regulated the terms of his work. In August 2018, the Full Federal Court of Australia delivered judgment in WorkPac Pty Ltd v Skene (2018) 264 FCR 536 (Skene). The Full Court held that Mr Skene, who was employed by Workpac in much the same way as Rossato and treated as a casual employee, was, in fact, not a casual employee for the purposes of the FW Act and the applicable enterprise agreement. Relying on Skene, Rossato wrote to Workpac claiming that he had not been employed as a casual employee and sought payment of certain entitlements. WorkPac denied Rossato’s claims and commenced proceedings in the Federal

Court of Australia. Allsop CJ, pursuant to s20(1A) of the Federal Court of Australia Act 1976 (Cth), directed that the matter be heard by a Full Court. Allsop CJ also granted leave to the responsible Minister and the CFMMEU to intervene as well as the applicant in a class action against WorkPac. The Full Federal Court, influenced by the decision in Skene, held that Rossato was not employed by Workpac as a casual employee. Both before the Full Court (and later the High Court) the parties agreed that the expression “casual employee” in the FW Act refers to “an employee who has no firm advance commitment as to the duration of the employee’s employment or the days (or hours) the employee will work” (see [32] of the High Court decision). But, in determining the nature of the work relationship, the Full Court favoured the approach adopted in Skene, and advanced by Rossato, of looking at the course of dealing between the parties and not only the written terms of the contract. The Full Court concluded that Rossato was not a casual employee because he had a firm advance commitment to his working hours in the WorkPac roster. WorkPac successfully appealed to the High Court. In a unanimous decision, the High Court held that Rossato was employed by WorkPac as a casual employee. The High Court rejected the approach in Skene of looking at the course of dealing between the parties. Re-asserting the importance of freedom of contract, the plurality (Keifel CJ, Keane, Gordon, Edelman, Steward and Gleeson JJ), in their joint judgment, noted at [63] that “nothing less than binding contractual terms are apt to characterise the legal relationship between employer and employee”. The plurality reviewed the General Terms, each of the NOCEs, and the enterprise agreement. The plurality concluded that, on a plain reading of the terms of these agreements, Rossato was a casual employee because there was no firm advance commitment of work, for either party, beyond each assignment. Gageler J, in a separate, short, set of reasons, agreed with the plurality. And WorkPac’s appeal was allowed.

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.

FEDERAL COURT JUDGMENTS By Dan Star QC, Anthony LoSurdo SC and Joanne Sheperd

Insurance – practice and procedure Insurer not entitled to rely on s28(3) of Insurance Contracts Act 1984 (Cth) – estoppel – distinction between concise statements and pleadings In Allianz Australia Insurance Limited v Delor Vue Apartments CTS 39788 [2021] FCAFC 121 (9 July 2021) the Full Court heard an appeal determining separate questions in insurance litigation. The respondent (Delor) is the body corporate for a complex of apartment buildings in far north Queensland. The buildings were constructed in 2008/2009 and various issues in relation to the eaves of the buildings had arisen by late 2014. Before any works were undertaken to repair certain defects, there was substantial roof damage to the buildings on 28 March 2017 during Tropical Cyclone Debbie. Shortly before the cyclone, Delor had taken out a policy of insurance for public liability and property damage to the buildings with the appellant (Allianz). Delor notified a claim under that policy of insurance. The parties proceeded on the basis that Allianz’s underwriting agency which it controlled (SCI) had agreed to indemnify. Subsequently, SCI gave notice that it would rely on s28 of the Insurance Contracts Act 1984 (Cth) (Act) and would pay $nil on the basis of alleged non-disclosure by Delor. Delor commenced proceedings and orders were made for two issues to be determined before the other issues in the proceedings, namely: • whether Allianz was entitled to reduce its liability to nil under the Act • whether by some operative rule or principle, Allianz was not able to rely on s28. The primary judge (Allsop CJ) determined the first issue favourably

to Allianz. However, on the second issue, the primary judge found Allianz was estopped from resiling from the representation made in an email that the claim by Delor would be honoured and indemnity provided and not by reference to s28(3) of the Act; Allianz had waived any entitlement to adopt a position based on an assertion of right under s28(3) of the Act; and in seeking to resile from the representations made by the relevant email and in seeking to rely on a non-disclosure of Delor, Allianz failed to act towards Delor in relation to the resolution of the claim with the utmost good faith contrary to s13 of the Act. The appeal by Allianz was dismissed. A considerable part of its complaint on appeal was to the effect that the primary judge’s decision rested on an understanding of the estoppel case that was not advanced below (at [39]). The Full Court considered closely the nature of the estoppel case that was put by Delor at trial. This involved considering (a) the nature of Delor’s case as to material detriment as disclosed by the concise statement and how it came to be amended; (b) the written submissions; (c) the opening submissions at the hearing; and (d) the way the estoppel case was dealt with in the course of closing submissions (at [138]; see also [155]-[203]). As the matter proceeded by concise statement and concise response instead of pleadings, the Full Court made detailed observation on the nature and purpose of a concise statement (at [140]-[154]). A concise statement is not a de facto pleading (at [148]). A concise statement and concise response, unlike pleadings, are not conceived as a comprehensive statement of all the matters that must be established in order for a claim or defence to succeed (at [144]). Mackerracher, Derrington and Colvin JJ stated: “If a claim that is at the heart of the case that a party seeks to advance at the final hearing is not to

be found in the concise statement then there will need to be an application for leave to amend that will be dealt with in accordance with the established procedural law as to late amendments to alter a case. However, where the nature of a claim is broadly disclosed by the concise statement, it is fundamental to the new approach of case management that a party cannot sit by passively and insist upon some strict curtailment of the case that may be run by reference to pleading rules. Both parties have a duty to expose the real issues. Where an issue is properly raised concerning the particular nature of an aspect of the concise statement then the party relying on that statement must assist in clarifying the position. And where an issue is expressed broadly in a concise statement and the other party considers that it will be unfair to its forensic preparation of the case for the issue to remain stated in such broad terms, then it behoves that party to seek clarification. The request may be met with the response that the clarification will be provided by affidavits and witness statements or the delivery of a statement of issues in due course. However, it may be the case that fairness dictates that earlier disclosure is required in which case the Court will make appropriate orders by way of case management. But what the party cannot do is save up its complaint that the case is stated too broadly until the conduct of the final hearing and then maintain that no detailed case can be run because no such case has been disclosed. To do so is to treat the concise statement as having the same character as a pleading which it is not. It is also to adopt a strategic and technical approach of a kind that is inconsistent with the obligation imposed upon parties and their lawyers by Part VB of the Federal Court of Australia Act (at [149]).

Bankruptcy – Insolvency – Evidence Law The process of inferential reasoning – Jones v Dunkel where a witness has already been subjected to a compulsory examination In El-Debel v Micheletto (Trustee) [2021] FCAFC 117 (30 June 2021) the trustees in bankruptcy of the bankrupt (Trustees) alleged that all or part of the purchase price for four properties registered in the names of parties associated with the bankrupt had been provided by him. On that basis, the Trustees claimed that the whole or part of the interests of those associated parties in the properties were held on resulting trust for the bankrupt. The Trustees sought declarations pursuant to s31(f) of the Bankruptcy Act 1966 (Cth) to the effect that each of the properties formed part of the property that was divisible among the creditors of the bankrupt. The primary judge upheld the claims by the Trustees. Appeals were brought by the bankrupt and associated parties to him. One of the many issues raised on appeal concerned the primary judge’s use of the bankrupt’s absence as a witness as a basis for concluding that the bankrupt funded the certain properties in circumstances where reasoning in that manner was impermissible (at [95(3)]). This and other issues led the Full Court to state legal principles and authorities concerning the process of inferential reasoning in civil proceedings (at [98]-[107]). The Full Court considered the rule in Jones v Dunkel, namely that the unexplained failure by a party to call a witness may, in appropriate circumstances, support an inference that the uncalled evidence would not have assisted the party’s case (at [105]). Relevantly, the Court considered the application of Jones v Dunkel in circumstances where a party has been required to submit to a compulsory examination concerning matters the subject of subsequent proceedings and the transcript of the examination has been relied on in those proceedings (at [207]-[217]). Markovic, Derrington and Colvin JJ stated: “It may be that the fact that a party has submitted to a compulsory examination in which questions were directed to the matters in issue could be advanced as a particular reason why there is no reasonable expectation that the party

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would again give evidence as to the same matters, the evidence having already been given and tested” (at [211]). However, the Court rejected the submission that Jones v Dunkel should not be applied in any case where the witness had already been subjected to a compulsory examination (at [212], [216]-[217]).

Arbitration International arbitration – enforcement of award – where supervisory court appointed the arbitral tribunal – whether enforcing court should accept composition of the arbitral tribunal was in accordance with the agreement of the parties – comity. Hub Street Equipment Pty Ltd v Energy City Qatar Holding Company [2021] FCAFC 110 (25 June 2021) (Allsop CJ, Middleton and Stewart JJ) The principal issue in these proceedings was whether an award should be enforced in circumstances where the appellant (‘Hub’) contended that the composition of the arbitral tribunal was not in accordance with the agreement of the parties as envisaged by s 8(5)(e) of the International Arbitration Act 1974 (Cth) (‘IAA’) notwithstanding that the tribunal was appointed by a court at the seat of the arbitration in Qatar. There was an additional issue as to whether the Court should exercise its discretion to recognise and enforce the award in issue. Section 8(5)(e) of the IAA Section 8 of the IAA provides that a foreign award is binding for all purposes on the parties to the award and may be enforced in the Federal Court as if the award were a judgment or order of that court. The court may only refuse to enforce the foreign award in the circumstances mentioned in subsections (5) and (7). Relevantly, s 8(5)(e) provides that ‘…in any proceedings in which the enforcement of a foreign award is sought…, the court may, at the request of the party against whom it is invoked, refuse to enforce the award if that party proves to the satisfaction of the court that the composition of the arbitral authority or the arbitral procedure was not in accordance with the agreement of the parties or, failing such agreement, was not in accordance with the law of the country where the arbitration took

place…’. Background The respondent (‘ECQ’) the award creditor, is a company incorporated in Qatar. Hub, the award debtor, is a company incorporated in Australia. In 2010, ECQ and Hub entered into a contract for Hub to supply and install street lighting equipment and accessories, and street furniture and accessories, in Doha, Qatar. Relevant contractual provisions included that: (a) if any dispute could not be amicably resolved and was referred to arbitration, the ‘Arbitration Committee’ was to consist of three members, one chosen by each of the parties and the third member by the two party appointees. If a decision could not be reached in relation to the third member the appointment of that member could be referred by either party to the Qatari Courts for determination (Art. 46) (b) the contract was made in the State of Qatar and is subject to the laws of the State of Qatar (Art. 47). (c) English was the ruling language of the contract and accordingly all matters relating to the contract shall be in English (Art. 50). In August 2011, ECQ paid US$820,322.16 to Hub under the contract as an advance payment. However, in 2012 ECQ decided not to proceed with the contract and sought repayment of the money paid under the contract. ECQ did not send a notice to Hub pursuant to the contract giving Hub an opportunity to appoint one member of the arbitration committee. Instead, in June 2016, ECQ filed a statement of claim in the Plenary Court of First Instance of the State of Qatar in reliance on Art 195 of Law No. 13 of 1990 promulgating the Civil and Commercial Code of Procedure (Qatar) of the Qatari Civil Procedure Code (‘Art 195’) seeking orders that the Court appoint an arbitral tribunal of three arbitrators including an arbitrator nominated by ECQ. Hub did not participate in the Qatari Court proceeding. The Qatari Court made orders in January 2017 appointing an arbitral tribunal. Thereafter, the arbitral tribunal sent to Hub’s nominated address six notices in English about the conduct of the arbitration between April 2017 and

July 2017, with the arbitration being adjourned on three occasions due to Hub’s failure to attend. Hub did not participate in the arbitration proceeding. On 1 August 2017, the arbitral tribunal issued an award, in Arabic, obliging Hub to pay ECQ amounts totalling in excess of $1,045,000. The appeal Hub appealed the determination of the primary judge who made orders for the recognition and enforcement of the award. Two broad issues were raised on appeal. The appointment of the arbitral tribunal: The first issue was whether Hub could resist enforcement of the award in Australia on the basis that the arbitral tribunal was not appointed in accordance with the parties’ agreement, notwithstanding the appointment of the tribunal by the Qatari Court. The Court observed that the contract provided the customary way for each party to a dispute to appoint an arbitrator and for the two arbitrators so appointed to appoint the third member of the tribunal. Art 195 provided, in the customary way, for the court at the seat of the arbitration to appointment arbitrators where the parties’ agreed procedure has failed. The Court determined that Art 195 did not provide for the court to appoint arbitrators contrary the parties’ agreed procedure simply because the parties are in a contractual dispute. If that were the case, then the court could always appoint arbitrators, regardless of what the parties had agreed. This would be contrary to the fundamental premise underlying arbitration, and the court’s enforcement of arbitration awards, which is that the jurisdiction of the tribunal arises from the agreement or consent of the parties. The Court found that the Qatari Court proceeded upon a misapprehension as to the facts. It appointed the tribunal because, as it understood the position, ECQ had invoked the Art 46 procedure but Hub had failed to respond. However, it had not done so. In these circumstances, under Qatari law the composition of the arbitral tribunal was not in accordance with the agreement of the parties and the basis to resist enforcement of the award in reliance on s 8(5)(e) of the IAA was established.

ECQ submitted that Hub’s remedy was to seek to set aside the appointment of the arbitral tribunal or the award at the seat and that, as a matter of comity, the Court should regard the decision of the Qatari Court as effective until set aside. The Court, however, determined that there was no detraction from the principle of comity by not enforcing the award because the Qatari Court acted on a misapprehension of the true position in appointing the arbitral tribunal. Further, the Court stated that Hub had the right (subject to the question of discretion) under the law of Australia to not have enforced against it an arbitral award by an arbitral tribunal that was not composed in accordance with what it had agreed. The discretion: The essential question identified by the Court was whether, as a matter of discretion, the award can or should be enforced notwithstanding that, first, the arbitration proceeding was conducted in Arabic, not English, and, second, the arbitral tribunal was prematurely appointed by the Qatari Court, both contrary to the procedure agreed by the parties. Contrary to the submission by Hub, the Court found the primary judge was correct to conclude that the language irregularity had no prejudice to Hub because it had received notices of the arbitration in English and it had elected not to participate, and that the immateriality of the irregularity would fully justify the exercise of the enforcement discretion notwithstanding the irregularity. However, the Court determined that the composition of the arbitral tribunal other than in accordance with the agreement of the parties was fundamental to the structural integrity of the arbitration; ‘it strikes at the very heart of the tribunal’s jurisdiction’ (at [104]). Thus, the Court would not exercise the discretion to enforce the award. Conclusion The appeal was allowed with the consequence that the orders and declaration of the Court at first instance were set aside and substituted with an order that the proceedings be dismissed.

Arbitration – Practice And Procedure Enforcement of arbitration award – discretion of court to down judgment notwithstanding the parties’ settlement In Hub Street Equipment Pty Ltd v Energy City Qatar Holding Company [2021] FCAFC 110 (25 June 2021) the Full Court allowed an appeal from a judgment enforcing an arbitration award under s8(3) of the International Arbitration Act 1974 (Cth). The substantive issue in the appeal concerned whether the composition of the arbitral tribunal was in accordance with the agreement of the parties. The matter also raised a question as to whether the Court can or should proceed to hand down its judgment notwithstanding that the proceedings have “settled in principle”. On 21 June 2021, the Court was in full agreement as to the judgment to be handed down and intended to hand down judgment on 23 June 2021, subject to administrative matters. The parties were to be notified on the morning of 21 June 2021. On that same morning (21 June), the appellant with the consent of the respondent sent an email to the Court stating: “These proceedings have settled in principle, although the settlement remains subject to its terms being carried out. Should that occur, the parties anticipate that they will seek the leave of the Court to discontinue the appeal within 30 days. We are informing the Court of this development as a courtesy”. The Court communicated to the parties that it had intended to hand down judgment on 23 June 2021, and requested that the parties communicate as soon as possible their view as to whether the judgment should be handed down. The parties did not respond to this or another Court communication. Allsop CJ (with whom Middleton and Stewart JJ agreed) held that “important considerations of public policy and public interest support the judgment in this case being handed down” (at [5]); namely: • the appeal raised points of law of general interest and it is in the public interest that these views are made the subject of a published judgment in order to facilitate the development of the law, and the provision of guidance to others (at [6])

• the judgment corrects errors of both law and fact in the judgment below (at [7]) • the stage at which preparation of judgment had reached was a relevant consideration (here, the judgment was complete at time of notification) (at [8]) • “whilst nothing in these reasons is intended to derogate from the dictum . . . that ‘the law . . . encourages reasonable settlements’, the parties had a long time in which they could have settled their dispute. They did not do so. The Court is unaware of the nature of the ‘in principle’ settlement” (at [9]).

Bankruptcy Appeal against order setting aside bankruptcy notice – whether the notice was issued for an improper purpose - whether it was an abuse of process – appeal allowed Nobarani v Mariconte [2021] FCAFC 96 (Allsop CJ, Farrell And Derrington JJ) The parties were involved in long running probate proceedings. While Mrs Mariconte won at first instance, the ultimate result of the proceedings was that Mrs Mariconte was ordered to pay Mr Nobarani’s costs of the original trial, the appeal to the New South Wales Court of Appeal, and the appeal to the High Court. These costs were to be paid out of the estate, by Mrs Mariconte, on a trustee basis. The proceedings were remitted to the Supreme Court of New South Wales where Mr Nobarani sought and obtained judgment for restitution of the original costs he had paid to Mrs Mariconte in the amount of approximately $141,000 (including interest). During the remitted proceedings, Mr Nobarani declined to seek relief for his restitution claim by way of execution against Mrs Mariconte’s property. After judgment was obtained, a Bankruptcy Notice for approximately $142,000 (including interest) was issued by the Official Trustee and was ultimately served on Mrs Mariconte after a failed mediation. Mrs Mariconte filed an application seeking an order that the Bankruptcy Notice be set aside as an abuse of process on the basis that Mr Nobarani knew Mrs Mariconte was not insolvent. The primary judge inferred that the

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Bankruptcy Notice had been issued to pressure Mrs Mariconte in the context of ongoing probate proceedings, including mediation, such that it ought to be set aside as an abuse. This was inferred from matters such as Mr Nobarani’s failure to take any other enforcement action including by way of issuing a letter of demand or taking enforcement against Mrs Mariconte’s house when that was offered to him in the remitted probate proceedings. Mr Nobarani appealed. The issues The principal issues on appeal were whether the order setting aside the Bankruptcy Notice ought, itself, be set aside where: (a) the matters relied on by the primary judge were not identified in the application, addressed in the evidence or put to Mr Nobarani in cross examination;

paid, so long as the creditor intends to invoke the Court’s bankruptcy jurisdiction if it is not. In the present case, the Court was satisfied that there was no evidence that Mr Nobarani did not intend to rely upon Mrs Mariconte’s failure to comply with the Bankruptcy Notice as constituting an act of bankruptcy pursuant to s 40(1) (g) of the Bankruptcy Act 1966 (Cth) on which he might then base a petition under s 44. Accordingly, Mrs Mariconte had not satisfied the onus of proof which she bore to establish that fact. Further, there was nothing improper in Mr Nobarani preferring to use the bankruptcy process rather than causing Mrs Mariconte’s property to be sold given the risks which attend that alternative form of enforcement as well as the risk that any recoveries obtained may be clawed back by any subsequently appointed trustee in bankruptcy.

(b) it had not been apparent or established that Mrs Mariconte was, in fact, solvent at the time that the application was issued; and (c) the availability of other remedies was irrelevant to whether the Bankruptcy Notice was properly issued.

In the result, the Court set aside the application and the orders of the primary judge, but granting an extension of the time for Mrs Mariconte to comply with the Bankruptcy Notice.

The decision

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.

The appeal was allowed. Per curiam, the Court affirmed the general principles relating to setting aside for abuse including that the applicant bore a ‘heavy onus’ of establishing the purpose with which the process was issued and that the purpose was improper. Further, the time at which to establish an abuse is the time at which the process was issued. At first instance, Mrs Mariconte had not established that she was solvent, or that Mr Nobarani ought to have perceived her as such at the time at which the Bankruptcy Notice was issued. It was, therefore, not possible for the application to set aside to succeed on the basis on which it had originally been advanced. Relying on the reasoning of Heerey J in Cavoli v Etl [2007] FCA 1191, the Full Court held that it is not a precondition to the issuing of a bankruptcy notice that a demand for payment be made or that other avenues of recovering the debt be exhausted. Further, it is not an abuse of process to issue a bankruptcy notice for the purpose of having a debt

Anthony LoSurdo SC is a barrister, arbitrator and mediator in 12 Wentworth Selborne Chambers, Sydney, and Lonsdale Chambers, Melbourne. Joanne Sheperd is a barrister in 12 Wentworth Selborne Chambers, Sydney

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

Property – Equal assessment of contributions failed to give recognition to husband’s inheritance which made up 30 per cent of the pool In Roverati [2021] FamCAFC 89 (11 June 2021) the Full Court (Strickland, Ryan and Austin JJ) considered a 33 year marriage that produced two children. In 2003, the wife received an inheritance of about $50,000 ([18]), which was put in a trust and had not generated income. In 2006, the husband received an inheritance, worth at least $404,619, that generated rental income. The net pool was $1,317,405 ([60]). Allowing the appeal, Strickland and Ryan JJ said (from [27]): “The … husband’s complaint …[is] that ... his Honour implicitly concluded that both inheritances were similar in nature, and … his Honour erred by giving no or insufficient weight to the [husband’s] inheritance ( ... ) [32] … [T]he husband’s inheritance was … at least … $404,619.64, whereas the wife’s … approximately $50,000. … [T] he husband’s financial contribution … was significantly more than the wife’s, … without taking into account the income subsequently derived therefrom, and the increases in the value of the assets … [33] … [T]he assessment of contributions is not a mathematical or accounting exercise, … it is an holistic undertaking with all … contributions … being taken into account (Dickons & Dickons [2012] FamCAFC 154 ... ) … [34] … [I]t is not apparent from his Honour’s treatment of the respective contributions … culminating in a finding of equality, how the contributions of the wife informed that outcome, such that the … financial contributions of the husband … did not result in a weighting in his favour. ( ... ) [39] ... There is no recognition that approximately 30 per centum of the asset pool … was derived from the husband’s inheritance, and his Honour’s failure … cannot be masked by suggesting that his Honour … applied the requisite holistic approach in assessing contributions ( … ) [58] … [G]iven the significant financial contribution by the husband of his inheritance, … the respective contributions of the parties should be assessed at 55 per

centum/45 per centum in the husband’s favour.”

Property – Interim order for conditional sale of property in which husband only owned a 5 per cent interest in error In Lin & Ruan [2021] FamCAFC 90 (9 June 2021) the Full Court (Ainslie-Wallace, Watts & Austin JJ) allowed an appeal from a series of interim orders, the first requiring the husband to pay mortgage outgoings for a property he owned with the wife (suburb “B”), and subsequent interim orders that in the absence of his rectifying mortgage arrears, another property, (suburb “C”) be sold. The husband owned a 5 per cent interest in the suburb C property; while his mother owned a 95 per cent share. The wife joined the husband’s mother as a party, as she argued that the husband’s mother owned her interest in the property upon trust for the husband. The Full Court said (from [25]): “… [S]ince the husband had failed to … comply with the order and the mortgage repayments on the Suburb B property were in arrears, his Honour turned to consider what ‘machinery provisions’ were necessary to ensure the mortgage repayments were met … [26] … [W]ithout any further … explanation …, the primary judge concluded: 35 ... [I]t would be appropriate to make … orders for the sale of the [Suburb C property] to use at least [the husband’s] 5% legal entitlement in that property, to pay the outstanding mortgage costs. ( … ) [28] … [T]he [husband’s mother] bore no separate obligation to financially support the wife … and so, if the orders for the conditional sale of the Suburb C property were only being made to ensure rectification of the husband’s personal default … then no more than his own five per cent stake in the Suburb C property should have been the subject of such garnishment. … [29] Even if the primary judge concluded that the appropriation of the appellant’s property to cover the husband’s individual liability was justified, it was obligatory to identify the source of power to make the orders and to satisfy himself that the preconditions for its exercise were fulfilled.

That was not done. ( … )”

Children – Parties’ contravention applications should not have been heard together In Dobbs [2021] FamCAFC 78 (21 May 2021) the Full Court (Alstergren CJ, Strickland & Austin JJ) allowed a husband’s appeal from an order made pursuant to s 70NEB(1)(d) made after each party had brought contravention applications, alleging that both property and parenting orders had been contravened. The Full Court said (from [23]): “ … [I]t was quite unclear what particular applications were the subject of attention by the … judge at any one point in time. … [T] he conduct of the proceedings in that way was procedurally unfair for two fundamental reasons. [24] … [T]he … procedure prescribed for hearing contravention applications (r 21.08 … Family Law Rules 2004 (Cth) (‘the Rules’)) is … different from the usual procedure for hearing other forms of civil application. If there is to be a departure from that procedure, it must be done so as not to cause injustice or prejudice to the respondent (Caballes & Tallant [2014] FamCAFC 112 …). … [T]he husband was defending the wife’s contravention applications and, … he enjoyed an entitlement to remain mute until the closure of the evidence offered in support of the alleged contraventions, which right he could not be forced to relinquish. He could not be expected to lead evidence about the need for further orders to facilitate implementation of the final property orders when he was … defending an allegation of his contravention of those … orders. [25] … An applicant who prosecutes a contravention application carries the burden of adducing evidence to prove the alleged contravention. … [N]either party could concurrently carry the burden of proof and reserve their right to silence. [26] The procedure adopted by the primary judge for hearing and determining the wife’s contravention applications bore no similarity at all to that prescribed by r 21.08 of the Rules ( … ) [29] ( … ) [T]he husband was improperly converted from applicant to respondent when the evidence filed in support of the contraventions alleged by the wife had not

[33] Given the denial of procedural fairness, … the … judge fell into appealable error.”

construction, such an outcome would be possible [and] would be entirely contingent on the dates on which the school holidays fell. … ”

Children – Order that routine notionally continue through holidays interpreted so that first week of school was ‘Week 2’ of cycle

Property – Mutual assumptions and consensual agreements may inform whether it is just and equitable to make a property order

In Nagel & Clay [2021] FamCA 358 (2 June 2021) Harper J heard two parents’ opposing views as to the interpretation of a parenting order made by consent.

In Oamra & Williams [2021] FamCAFC 117 (13 July 2021) the Full Court (Strickland, Watts & Sutherland JJ) dismissed with costs an appeal from a decision of O’Brien J in the Family Court of Western Australia.

yet been either formally adduced or tested in cross-examination. ( … )

The order related to the resumption of time following school holidays, specifically that at the commencement of school term, the fortnightly routine resume “as if the children had been living with the parties” in accordance with the fortnightly routine “during the duration of the school holidays”. After citing Langford & Coleman [1992] FamCA 68, the Court said (from [7]): “The decision in Langford is consistent with authority … to the extent that it denies interpretation of court orders by reference to the parties’ subjective intentions. ( …) [9] In Apoda & Apoda [2013] FamCA 265 at [35] - [41] Le Poer Trench J concluded that in construing final consent orders the Court should undertake a three step process, namely, determining whether there is ambiguity, identify surrounding circumstances, other than the subjective intentions of the parties … and reach a conclusion in relation to construction. ( … ) [15] … [T]he father construed Order 10 to mean that the question of which week in the two cycle is applicable at the commencement of Term 2, 2021 is determined by reference to the alternating weeks which would have been notionally applicable as if Order 10(a) and (b) had been operating during the … school holidays, and, for the purposes of calculating the relevant dates, as a continuation of the fortnightly cycle initiated by Order 9 on the specified dates in October 2020.( … ) [23] It is clear … that the opening words of Order 10 ‘From the commencement of school in Term 2 ...’ mean only that there will be inserted into the existing fortnightly cycle from the commencement of Term 2 … the additional Tuesday night with the father. They do not mean the fortnightly cycle is reset to commence with Week 1 to coincide with the commencement of Term 2(…) [30] The mother also argued that the parties could not have intended that Order 10 would operate so that in the week commencing Term 2, 2021 the children would have spent the second half of the immediately preceding school holidays with the father, then return for only one night with the mother before returning again to the father’s care …. Even on the mother’s

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The wife argued that the parties “had voluntarily arranged their financial circumstances on the basis that they neither owned property in their joint names, nor operated a joint bank account, and that they contributed to household expenses in a very structured way based upon an agreed, predetermined budget” ([2]). Relying on Stanford [2012] HCA 52 (“Stanford”), she argued that the Court could not find that it was just and equitable to make a property order. The Full Court said (from [29]): “ … [T]he wife’s … position was both parties operated on … assumptions that each would keep their own property separate …, that the assumptions were both expressed and implied, but primarily implied because any knowledge either party had about what the other one was doing was incidental and not the subject of any discussion ( … ) [31] … [T]he wife … argue[d] that despite the finding … that there were no mutual expressed or implied assumptions to keep the parties’ finances … separate, the wife could rely upon her own unilateral assumptions ( … ) [34] The wife asserts that the primary judge … erroneously required that the assumptions be ‘mutual’ and that error contaminated his Honour’s conclusion as to whether it was ‘just and equitable’ to make an order. The wife argues that there is no warrant to read into the obiter dicta of the High Court in Stanford any requirement for mutuality in any stated or unstated assumptions that the parties would keep their finances entirely separate ( … ) [36] We do not accept the wife’s submission … [I]t [is] clear that the High Court was talking about mutual assumptions and mutual agreements. Axiomatically any agreement must be mutual. ( … )”

Child support – Section 106A application could be heard despite mother not living in reciprocating jurisdiction In Secretary, Commonwealth Attorney General’s Department & Bashir [2021] FamCAFC 137 (30 July 2021) the Full Court (Strickland, Aldridge & Tree JJ) allowed an

appeal from Judge Boyle’s dismissal of an application by the Attorney General’s Department for a declaration of parentage pursuant to s 106A of the Child Support (Assessment) Act 1989 (Cth) (“CSA Act”) brought on behalf of a USA based mother. The Full Court said (from [16]): “Pursuant to s 99(1) of the CSA Act, ‘[j] urisdiction is conferred on the... Federal Circuit Court of Australia [FCCA] ... in relation to matters arising under this Act’. (…) [17] … [T]he … relief sought under s 106A was a matter under the CSA Act, and thus the … judge did have jurisdiction ( … ) [22] … [W]hether the FCCA has power to make a declaration under s 106A(5) of the CSA Act turns on whether four requirements are met. [23] … [Section] 106A(1) must be engaged; namely … the Registrar refused to accept an application for administrative assessment … under s 30(2) … [24] … [T]he application must be for a declaration that a person be assessed in respect of the costs of the child … (s 106A(2)(a)) … [25] … [T]he application must be made within ‘the time prescribed … ’ (s 106A(3)). … [26] … [E]ither that the person should be assessed in respect of the costs of the child because the person is a parent of the child (s 106A(5)(a)), or … the Registrar should reconsider the application … because the person who was to be assessed … is a parent of the child (s 106A(5)(b)). ( … ) [32] … [T]he appellant contended … that the … judge misconstrued s 106A in finding that in … the requirements in s 25(d) had to be met; namely, that the [mother] be a resident of a reciprocating jurisdiction. [34] … [H]er Honour did wrongly determine that, before an order under s 106A could be made, the appellant had to establish that the requirements of s 25(d) were met. …”

Property – De facto thresholds – Family violence highly relevant as to whether couple living together on a genuine domestic basis In Mayson & Wellard [2021] FamCAFC 115 (14 July 2021) the Full Court (Strickland, Ryan & Kent JJ) allowed a de facto wife’s appeal against a declaration that a de facto relationship existed for more than two years. She argued that while the parties lived under one roof until November 2015, separation occurred in late 2011 or early 2012. The Full Court said (from [30]): “ … [T]he onus was … on the [de facto husband] … to establish that there was a de facto relationship until 8 November 2015. … [H]er Honour … require[d] the [de facto wife]

In each issue of Brief we highlight a small selection of the exclusive special offers and discounts our members receive on a variety of goods and services. For the full listing of member privileges head to our website : lawsocietywa.asn.au/member-privileges/

Health & Wellness

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All Law Society members receive special discounts and benefits with HBF including: • Up to 12% off Hospital and Extras cover • Up to 23% off Home, Landlords, Car, Boat and Caravan cover, and up to 19% off Travel Insurance • HBF will even help you switch from your current fund and recognise your length of membership so you won’t need to re-start any waiting periods previously served (see policy terms and conditions).

This month Cullen Haynes took time out to explain the fantastic benefits Law Society members receive from Legal Home Loans. It is very informative and well worth a watch - click the video thumbnail below to find out more.

Find out more via our HBF member privilege page. For info phone: 1300 132 549, or visit your local HBF branch and quote your Law Society membership number to access your special discount and benefits. *Conditions apply to some offers. For the full list of member privileges please check our website.

… to establish that there was no de facto relationship after late 2011/early 2012 … This is a clear error ( … ) [33] … Section 4AA(1) of the Act mandates that regard must be had to all the circumstances of the relationship in determining whether it is one of a couple living together on a genuine domestic basis. (…) [34] … [G]iven that her Honour accepted the evidence of the [de facto wife] … as to the circumstances in this case and in particular having regard to the fact that after mid-2011 any sexual activity was non‑consensual … it is not explained by her Honour … why those circumstances could only have ‘limited relevance’ in this case; plainly they … could only have led to a finding … that there was not a genuine domestic relationship … after late 2011/ early 2012. ( … ) As to separation, the Full Court said (from [40]): “The issue is not whether the parties ‘separated’, but whether the de facto relationship broke down or ceased. ( … ) [42] There is no mention in the Act … of there needing to be an intention formed to either enter into a de facto relationship, or … to end it. ( … ) [45] … [T]he comparison of the circumstances as they existed prior to late 2011/early 2012 with the circumstances that existed thereafter should have led her

Honour to find that the de facto relationship ceased at that time.”

Property – Application for interim sale of shareholding which would prejudice wife’s position denied where no urgency In Maggio & Turner [2021] FamCA 466 (1 July 2021) Hartnett J dismissed a husband’s application for the winding up of a trust and sale of a shareholding interest, in which he argued that neither party sought to retain the interest such that a sale was inevitable. A single expert had valued the shareholdings as being worth $280,612 per share, whereas another shareholder in the group had offered the husband $150,000 per share. The Court said (from [19]): “The value of [the] … offer to the parties’ is 54% of the value attributed to the … interest … as determined by the single expert Mr M. ( … ) [21] There appears no disagreement between the parties that the sale of the shareholding … will deprive the parties of between $415,000 and $420,000 a year … [22] The husband’s argument for selling the shareholding interest as proposed by him is to allow him to obtain finance to purchase a home in the sum of approximately $2 million. … The husband does not … set out in his evidence … any urgent need to sell the interest … The sale, as proposed by the

husband, will decrease [the] income stream for each of the parties in a significant way, in particular and relevantly, by comparison with any interest the husband may pay in borrowing costs for the purchase of a new home. … The husband has the necessary income stream from the parties’ shareholding interest to purchase a home … and meet repayments ( … ) [25] The single expert, Mr M, attributed a value of $5,500,000 to the parties’ entire interest ( … ) [30] The husband submitted that in circumstances where neither party seeks to retain the shares … that the shareholding should be sold. [31] The only present offer to purchase the parties’ shareholding … is the earlier referred to $150,000 per percentage point … The wife claimed in respect of this offer that the husband was seeking to undersell a substantial asset of the parties. … [32] There is no conclusive evidence before me … to indicate that the husband is attempting to deliberately undersell a[n] … asset of the parties’. ( … ) [39] I am of the view that the shareholding need not be sold until the valuation is fully tested at trial ( … ) [A]llowing the shareholding interest to be sold would … ‘clearly cause irreversible prejudice to the wife’s ongoing financial position’.”

The Tale of The Lawyer Who Leaped By The Hon John McKechnie QC Despite being the middle of summer, Saturday the 13th of January 1951 was a blustery day – too blustery for yachts to return safely to Fremantle from Rottnest. Col Parslow whose lugger Alanna was moored in Thompson’s Bay, was in a pickle. He was part owner of the yacht but had to be back in Perth for business. So he left a somewhat inexperienced crew and with a promise to meet them at Fremantle next day to help with derigging and caught the ferry back to Perth. By next day the wind had dropped and on the return journey Alanna was becalmed. What’s more, the engine failed and by lunch time Alanna was drifting near a reef a few miles south east of Rottnest. Col was concerned about his friends and the lugger. Being an aviator himself, Col had no difficulty in persuading a fellow pilot, George Bailey, to fly Col as his passenger to Rottnest in a Tiger Moth, a sturdy biplane. They took off about 12.45 pm and the stage was set for the calamity which followed. Colville Oliver Parslow was 36. A West Australian, he had graduated from University with a law degree and completed articles with Dwyer Durack and Dunphy before spending time working with TJ Hughes, famous among other things as the gadfly who nearly brought down the government in the great constitutional case of Clydesdale v Hughes. Perhaps because it was difficult to follow his love of sailing in Boulder, Col moved back to Perth. He seems to have lived an adventurous life. In December 1938 Col and his friends had been sailing to Rockingham when they hit a sandbank and capsized. This necessitated a swim to Woodman Point over a mile away and earned a rebuke from the water police to take more care. Although Col enlisted in the army in 1941 and was discharged in 1943, he appears to have continued in legal practice. After he had enlisted, he appeared for a husband who gave evidence that his wife was in the habit of entertaining soldiers at her home. When court adjourned, the man’s son followed him into the street and began to shove him before Col intervened by stepping between them. Things calmed down but after Col moved away, the son called after him “I hope the next time you go yachting, the boat capsizes and you drown”. In 1942 Col married Madeline McAdam, known as Mollie, in Fremantle. By 1951 Col had his own practice in Mount Street and was known as the Flying Lawyer because he used air travel a great deal for work. He was a member of the Air Pilots Association and an experienced aviator. And now we return to Sunday the 14th of January 1951. A Tiger Moth has an open cockpit for pilot and another open cockpit for a passenger. Col dressed in blue overalls, scarf and flying helmet.

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At about 12.45 pm Mr Bailey took off from Maylands Aerodrome (now a police complex) and flew to Rottnest. No sign of the Alanna, so back to Fremantle then a zig zag course at 500 feet (150 metres) to Rottnest again. The sea was calm and crystal clear. The Alanna was spotted slowly drifting towards a reef. Col became agitated because he considered the crew was inexperienced even though a competent yachtsman had joined the boat in his place. He discussed the possibility of jumping with Mr Bailey who told him not to be foolish. Mr Bailey then busied himself for a few minutes, preoccupied with the lugger. When he looked forward again, Col was in a crouched position on the lower wing. Mr Bailey shouted at him. Colville Parslow rolled off the wing and to his doom. Turning slowly in the air, and out of control, he hit the water. His downward passage was observed by Mr Bailey and by all on board the Alanna. They immediately launched a dinghy but nothing could be done. Col had slipped beneath the waves. Despite an intensive search by water police, his body was never found. When George Bailey returned to Maylands Aerodrome he found the overalls neatly folded, scarf, helmet and shoes in the front cockpit. Poor Mollie. She was now a widow. Although it was quite clear what had happened, the common law required 7 years to pass before death was presumed. Fortunately Justice Walker was sympathetic and on 21 April 1951 ordered that Mollie could prove death by affidavit. Now everyone should make a will, especially solicitors. Had Col gone to the trouble of executing a will, written on parchment, sealed with wax and tied with pink ribbon? Well not exactly. He had executed a short will, duly attested by 2 witnesses and leaving everything to Mollie. The will which Justice Walker admitted to probate on the 30th of April 1951 was written on the flyleaf of a book entitled “A book of ships and seamen”. Mollie lived until 2011 and never remarried. Perhaps she took comfort from the poem Col wrote on the other side of the flyleaf: Nor time nor space the aircraft knows When sweeping us apart; But hour by mile my longing grows To be with you dear heart. Adapted from In the Will of Colville Oliver Parslow (WalkerJ 30 April 1951) and various articles in The West Australian Newspaper.

Law Council Update Law Council reaffirms its opposition to the death penalty To mark World Day Against the Death Penalty (10 October 2021), the Law Council of Australia has released its revised Policy Statement on the Death Penalty and reaffirmed its absolute opposition to the imposition or execution of the death penalty. “No person – irrespective of their nationality, the nature of the crime, or the country in which they have allegedly committed a crime – should be subjected to the death penalty,” Law Council of Australia President, Dr Jacoba Brasch QC stated. “We agree with the United Nations High Commissioner for Human Rights who said earlier this year that ‘the death penalty undermines dignity and denies our most basic human right, the right to life’. “The Law Council has reviewed its position on the death penalty in light of developments on these issues since its original policy of 2007, and our stance remains that it must be abolished in all countries across the globe. “There is no persuasive evidence the death penalty deters crime more effectively than other forms of punishment. In fact, it may contribute to a broader societal culture of violence.” The Law Council will continue to advocate for Australia to maintain its commitment to the abolition of the death penalty across the world. Australia’s Strategy for Abolition of the Death Penalty describes the Australian Government’s commitments to policy and advocacy at the national and international level that are supported by the Law Council. However, gaps remain in the Strategy which must be addressed, such as in the operation of domestic legislation and policy that may

New Members Associate Membership Miss Maddison Musa Butlers Lawyers & Notaries Mr Jordan Hindmarsh Curtin University Mr Troy Hattrick Butlers Lawyers & Notaries Mr Joseph Iannolo The University of Western Australia Ms Jessica Low The University of Western Australia Mr Newton Ndege Janssen + Maluga Legal Mr Abhinav Agrawal Central Queensland University Mr Andrew Priest University of Notre Dame Australia Miss Bonnie Knott University of Notre Dame Australia Ms Lucy Radzikowska Edith Cowan University Mr Joseph Creese The University of Western Australia Miss Tatyana Muller Edith Cowan University

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expose persons to the death penalty overseas.

persons (August 2021).

To the extent that resources allow, the Law Council is also committed to providing assistance and support to Australian legal practitioners who provide pro bono and legal assistance to Australian citizens and residents facing the death penalty abroad, and, where appropriate, to work with and support counterpart peak bodies in the Asia Pacific region seeking to build the case for abolition in their jurisdictions.

Today, the Law Council is calling for more urgent action both at home and across the globe.

A full copy of the Law Council’s Policy Statement on the Death Penalty is available here.

Urgent action needed to address ageism All comments to be attributed to Law Council of Australia President, Dr Jacoba Brasch QC. On the International Day of Older Persons, the Law Council of Australia is calling for stronger protections for the human rights of older persons, including increased efforts towards an international Convention on the Rights of Older Persons. Ageism remains the most accepted form of prejudice in Australia, according to a report released last month by the Australian Human Rights Commission. This reflects findings from the final report of the Royal Commission into Aged Care Quality and Safety released earlier this year which observed that “ageism is a systemic problem in the Australian community that must be addressed”. Age discrimination is also still prevalent around the world, as evidenced by the World Health Organisation’s Global Report on Ageism (March 2021), and the Report of the United Nations Independent Expert on the enjoyment of all human rights by older

The Law Council welcomes the increased attention to ageism drawn by these reports which call for action to strengthen the protection of the human rights of older persons and momentum towards a new international Convention on the Rights of Older Persons. The UN Open-ended Working Group on Ageing has been mandated to consider proposals for an international legal instrument to promote and protect the rights and dignity of older persons, and to present to the UN General Assembly a proposal containing the main elements of such instrument. The Law Council considers that a new international convention would provide an important legal framework to ensure that the rights of older persons are well understood and protected and provide much needed guidance to governments and policymakers at the national level as to how to ensure older persons fully enjoy their human rights. Therefore, it believes progress in identifying the elements of a possible new instrument must be a priority. While the Law Council has called for a stronger legal framework at the international level, there is also a need to translate and enforce such obligations within our own domestic settings. This includes measures to support practical access to, and enforcement of, the Age Discrimination Act 2004 (Cth) to address ageism, and to ensure that aged care legislation better reflects older persons’ human rights, as recommended by the Royal Commission.

New members joining the Law Society (August & September 2021) Mr Yannik Simkovics The University of Western Australia Miss Isabella Urry University of Notre Dame Australia Mr Josh Scoles DLA Piper Australia Ms Olivia Pusey Legal Aid Western Australia Mr Daniel Shore Crescent Legal Pty Ltd Mrs Saudamini Bhagat Women’s Legal Service WA Mr Gaurav Chitnis MKT Tax Advisors Ms Anthea Shaw

Ordinary Membership Mrs Lizettte Reis Fort Knox Legal Services Mr Caragh Morgan Carr & Co Mr Elliot Luke Clifford Chance

Mr Peter Milevski Barry Nilsson Lawyers Ms Elizabeth Madden Lawton Macmaster Legal Mr Luke Vincent Wotton + Kearney

Restricted Practitioner Ms Mikayla Hart Pricewaterhouse Coopers Ms Jasmine Trewin Lynn & Brown Lawyers Mr Gilmour Chimbetete Georgiou Pty Ltd Ms Olivia Tan Butlers Lawyers & Notaries Ms Madeleine Stevens Carr & Co Mr Jake Edwards EMK Lawyers Pty Ltd Ms Madeline Carter Law Central Legal Pty Ltd

Classifieds

Professional Announcements Trinix Lawyers

PIPPIN, Barry John late of 187 Furnissdale Road, Furnissdale, Western Australia and found on 8 March 2021 at the same address. Would any person holding the last Will and Testament of BARRY JOHN PIPPIN or knowing the whereabouts of such last Will and Testament please contact the Public Trustee at 553 Hay Street, Perth, WA, 6000 on (08) 9222 6748 within one (1) month of the date of publication of this advertisement quoting reference DE19743029 EM24. PTO_4463

JENNIFER ANN BOYD formerly of 60 Sydenham Street, Beckenham, late of SwanCare Kingia, 5 Allen Court, Bentley, Western Australia, died on 15 January 2021 at Bentley, Western Australia. Would any person holding the last Will and Testament of JENNIFER ANN BOYD or knowing the whereabouts of such last Will and Testament please contact the Public Trustee at 553 Hay Street, Perth, WA, 6000 on (08) 9222 6702 within one (1) month of the date of publication of this advertisement quoting reference DE 19962274 EM110. PTO_3596

FOR SALE

Level 11, 12 St Georges Terrace

• Areas 67sqm to 143sqm • Premier Strata Penthouse Off Suites • Overlooking the Swan River

Missing Will Any person holding or knowing the whereabouts of the Last Will and Testament of the late Allan Ingram Bartlett of 111 Ferguson Road Coondle (near Toodyay) who died on 25 September 2021. Please contact Samantha Colloff on 0412 788 137 or email colloffsan@gmail.com within one month of the date of publication of this advertisement.

Missing Will

Jake Wallman 0403 975 298

Chris Geers 0410 493 057

Find out more!

Any person holding or knowing the whereabouts of the last Will and Testament of the late AUDREY MARGARET GARDINER of 30 Swan Street East, Guildford who died on 31 August 2021, please contact Law Central Legal, Level 1 18 Richardson Street, West Perth WA on (08) 9476 4999 or greg.mohen@lawcentrallegal.com.au within 1 month of the date of publication of this advertisement.

Missing Will

Would any person or firm holding or knowing the existence or whereabouts of a Will or other testamentary document of TERESA ANNE WILCE, born 10 August 1969, late of 2 Foxcroft Court, Kardinya, Western Australia, who died on 8 September 2021, please contact Joss Legal, Suite 1.6, Level 1, 9 Bowman St, South Perth, WA 6151 (Tel) (08) 6559 7480 (Eml) lawyers@josslegal.com.au.

Mrs Kay Lesley Entwistle, born 16 May 1939, died 8 January 2021. Mrs Entwistle lived at 3/22 Ewen Street, Scarborough, and had been the owner of Asquith Handy Foods in Mount Claremont. Would anyone holding or knowing the whereabouts of Mrs Entwistle’s will, please contact Bruce Havilah of Havilah Legal. Telephone: (08) 9221 2339 Email: admin@havilahlegal.com.au

Trinix Lawyers are pleased to announce the appointment of Stella Cameron as Senior Associate from 1 July 2021. Stella has been with Trinix Lawyers for over 6 years and Stella Cameron brings to the firm extensive experience in commercial, property and wills/estate administration law.

Chamberlains Further Strengthen Perth Division and Appoint Another Senior Associate Chamberlains announces another addition to the Perth division as Senior Associate Stirling Owen joins the firm. With Stirling’s appointment, Chamberlains also moves to bigger premises and are now Stirling Owen welcoming clients to L11 Brookfield Place, 125 St Georges Terrace. Stirling has been practising for over 8 years and has appeared as Counsel in both the Magistrate, District and Supreme Court. Stirling’s primary focus has and continues to be Commercial Litigation in WA and NSW, but he has also appeared on matters in QLD, ACT, TAS and VIC. Managing Director Stipe Vuleta expressed his delight in having Stirling return to the team: “I am beyond excited to see Chamberlains continue its expansion in WA. Given his depth of experience in the commercial litigation space, there is no doubt he will be a valuable asset to the Insurance Team.

Glen McLeod Legal Moved Premises Glen McLeod Legal is pleased to announce that they have moved and are now located at Level 8, London House, 216 St Georges Terrace, Perth WA.

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

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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.

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*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.

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Brief October Edition

Articles inside

Member Privileges

Family Law Case Notes

Federal Court Judgments

WA Case Notes

High Court Judgments

Shaping Legal Minds: Closing Address to Qld Symposium by The Hon Susan Kiefel AC

YLC Case ‘Nopes’

Aunt Prudence Juris

YLC Golden Gavel Wrap-up

Ethics Column

YLC Straight to Bar

President’s Report

A Matter of Trust: Do Gift and Loan Back Schemes Work?

Editor’s Opinion

Taxing Matters: Part IVC Objection Proceedings

Legally Assisted Culturally Diverse Mediation in a Collaborative Setting - a Practitioner’s Experience

Event Wrap-up: Practical Advocacy Weekend

Book Review: Jungle Law

The Sword of Damocles Provenance of a Phrase